Timing is Everything With Your Notice of Appeal
Seeking and receiving an amendment to your final judgment does not toll or alter the time to file a notice of appeal, the Third District recently confirmed.
In Yellow Cab Co. v. Ewing, 3D16-969, 2017 WL 2854407 (Fla. 3d DCA July 5, 2017) [.pdf], the trial court entered a final judgment for Ewing that “incorrectly referred to the defendant as Yellow Cab, Inc., rather than Yellow Cab Company.” Yellow Cab did not appeal this judgment, instead waiting until the trial court entered an amended judgment that merely changed the party name. More than 30 days elapsed from the entry of the first final order before Yellow Cab filed its notice of appeal.
Unfortunately for Yellow Cab, longstanding Florida law establishes that “An amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought.” Id., quoting St. Mortiz Hotel v. Daughtry, 249 So. 2d 27, 28 (Fla. 1971). And a simple change of party name is considered a clerical error—an “immaterial change.” Id. The Third District Court of Appeal was without jurisdiction to consider Yellow Cab’s late appeal, and so it dismissed the appeal as untimely.
The Court’s decision does not really break any new ground, but it appears the Third District intended this opinion as another cautionary tale for the unwary. . Once 30 days has run from the date of the entry of the appealable order without a notice of appeal filed, even where the trial court might later enter an amended judgment, the right to appeal could be lost forever.
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