By Terrie Didier, Esq.
In general, parties have 30 days from the date an adverse decision is rendered (date of filing, not signing or recording) to appeal from final orders. But the time in which to seek appellate review of a corrected, amended, or modified order is not always simple.
The Florida Supreme Court explained the rule applicable to modified orders in St. Moritz Hotel v. Doughtry, 249 So. 2d 27, 28 (Fla. 1971):
An amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought. But where the modification or amendment materially changes the original order or judgment, the limitation period is said to run from the time of such modification or amendment.
In St. Moritz, the lower tribunal sua sponte changed the amount of attorney’s fees awarded to a worker’s compensation claimant by the compensation judge. The employer appealed to the full commission. The notice of appeal was filed within 30 days of the supplemental order but more than 30 days from entry of the original order. The full commission dismissed the appeal as untimely deciding that the time in which to appeal ran from entry of the original order because the supplemental order did not go to the merits of the dispute. Id. at 28.
The Florida Supreme Court quashed the order finding that the supplemental order materially changed the original order. Id. at 29. The supreme court explained: (1) the supplemental order “made a new award of attorney’s fees computed in a substantially different manner from the award in the first order; and (2) it stated for the first time the present value of the benefits to claimant.” Id. The supreme court explained that the value of the benefits awarded could not have been challenged based on the first order alone. Id. The supreme court found it significant that the employer only challenged alleged errors in the supplemental order. Id.
Legal scholars have explained that the practical test to determine whether the 30 days begins to run from the original order, and not the supplemental order, is whether the modification (1) resolves a genuine ambiguity; (2) revises legal rights or obligations; or (3) otherwise materially changes a matter of substance. But be cautioned, the First District Court of Appeal has stated that even when the modification is substantial, if it “is entirely in the appellant’s favor; the appellant may not rely on this order to obtain an appeal of the issues decided adversely to the appellant in the earlier Final Judgment.” Churchville v. Ocean Grove R.V. Sales, Inc., 876 So. 2d 649, 651 (Fla. 1st DCA 2004); see also S/G constr., Inc. v. Bd. of Trs. of Okaloosa Walton Cmty, coll., 857 So. 2d 373, 374 (Fla. 1st DCA 2003). Likewise, an amendment correcting only clerical or scrivener’s errors will not toll the time in which to appeal.
The following cases are illustrative of the types of clerical changes that will not toll the time for filing an appeal:
- Yellow Cab Co. v. Ewing, 225 So. 3d 302, 303 (Fla 3d DCA 2017) (amendment correcting party name does not toll time);
- Rice v. Freeman, 939 So. 2d 1144, 1146 (Fla. 3d DCA 2006) (correction of clerical error in title of judgment does not toll time);
- Maxfly Aviation, Inc. v. Capital Airlines, Ltd., 843 So. 2d 973, 975 (Fla. 4th DCA 2003) (amended judgment adding post-judgment interest rate and address of debtor does not toll time);
- DeGale v. Krongold, Bass & Todd, 773 So. 2d 630, 632 (Fla. 3d DCA 2000) (correction of name of personal representative does not toll time);
- Wetherington v. Minch, 637 So. 2d 967 (Fla. 5th DCA 1994) (amended judgment of foreclosure changing sale date and awarding additional interest does not toll time);
- Betts v. Fowelin, 203 So. 2d 630, 632 (Fla. 4th DCA 1967) (correction of amount of final judgment from $63,600 to $63,660; did not toll time because assignments of error were not directed to the $60 change but rather to alleged trial errors concerning original judgment).
The moral of this story is: When in doubt, appeal the original order and the supplemental order within the 30-day time limit from the original order. If the supplemental order is not issued within the original 30-day time limit, file an amended notice of appeal including the supplemental order when it is issued.