Opinion
No. 1D20-972
03-04-2021
WINBAR, L.L.C., Appellant, v. Rabia Ardan MORRIS, Appellee.
Edward Wood, Kimberly L. King, and Annalise R. Kapusta of Wood & King, P.A., Tallahassee; Manuel Farach of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach, for Appellant. Susan S. Thompson and Andrew J. Power of Smith, Thompson, Shaw, Minacci, Colon & Power, P.A., Tallahassee, for Appellee.
Edward Wood, Kimberly L. King, and Annalise R. Kapusta of Wood & King, P.A., Tallahassee; Manuel Farach of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach, for Appellant.
Susan S. Thompson and Andrew J. Power of Smith, Thompson, Shaw, Minacci, Colon & Power, P.A., Tallahassee, for Appellee.
Per Curiam.
Winbar, L.L.C., appeals the trial court's order determining Rabia Ardan Morris held a prescriptive easement appurtenant. After reviewing the record, we find the order was not timely appealed and dismiss for lack of jurisdiction.
This case initially came before the Court after a trial was held and the factfinder determined Ms. Morris had proven she had a prescriptive easement on Winbar's property. This Court affirmed the challenge to that determination in an unpublished decision. Winbar LLC v. Morris , 242 So. 3d 337 (Fla. 1st DCA 2018) (table).
After this Court affirmed, Ms. Morris sought to enforce the final judgment and argued that the prescriptive easement granted was as an easement appurtenant. Winbar opposed the motion, claiming that it had offered Ms. Morris personal access to the property subject to the prescriptive easement and that the easement was in gross rather than appurtenant. The trial court denied Ms. Morris's motion to enforce the final judgment after determining it could not grant the motion without modifying the final judgment. The trial court reasoned that the final judgment could not be modified because it became the law of the case after it had been affirmed on appeal. Ms. Morris appealed the denial of her motion to enforce the final judgment, and this Court reversed the trial court's order, finding that the final judgment was ambiguous and that during the initial appeal, this Court had not determined whether the prescriptive easement was an easement appurtenant or an easement in gross. Morris v. Winbar LLC , 273 So. 3d 176, 179 (Fla. 1st DCA 2019).
When this case was sent back to the trial court, the only authorized post-judgment motion before the trial court was the motion to enforce the final judgment. See Fla. R. Civ. P. 1.570(d). In determining whether Ms. Morris could enforce her prescriptive easement, the trial court found Ms. Morris had a prescriptive easement appurtenant and reduced that finding to an order. It is that order that Winbar has appealed. However, that order did not determine the issue before the trial court—whether to enforce the prescriptive easement in the final judgment. As a result, the order did not end the judicial labor and was an interim order. See Hoffman v. Hall , 817 So. 2d 1057, 1058-59 (Fla. 1st DCA 2002) (dismissing appeal because order on review was not final and explaining that for an order to be final, the order must dispose of the issue before the trial court so that no additional judicial labor is required).
The trial court rendered the interim order on December 13, 2019. To the extent the interim order was appealable based on the theory it determined immediate possessory rights to the easement, Winbar had thirty days to appeal from it as a nonfinal order. Cf. Fla. R. App. P. 9.130(a)(3)(C)(ii), (b). A motion for rehearing directed at an interim order is not authorized. Cf . Fla. R. Civ. P. 1.530 ; see Capone v. Philip Morris USA, Inc. , 116 So. 3d 363, 372 (Fla. 2013) ("This rule has been consistently construed to authorize rehearings of orders and judgments which are final in nature."). As such, it does not toll the time for filing a notice of appeal. Cf. Fla. R. App. P. 9.020(h)(1). Winbar did not file its notice of appeal of the interim order until March 20, 2020, which was well beyond thirty days from rendition of the order.
To the extent the trial court's interim order either was not appealable at all or was not timely appealed, it still would have been subject to review on appeal from the final order disposing of the motion to enforce the final judgment. At the latest, the final order, which denied the motion for enforcement, was rendered on June 23, 2020. Since neither party appealed that order and the time to file an appeal of that order expired a long time ago, Winbar's appeal here is untimely. This Court, in turn, is without jurisdiction to review the order Winbar requests us to review. Accordingly, we are required to dismiss this appeal.
The trial court initially granted the motion to enforce on March 2, 2020. Winbar sought rehearing on March 15, 2020. The final order denying the motion to enforce rescinded the March 2 order that had granted the motion. We base the June 23 rendition date on an assumption (but without deciding) that the March 15 motion tolled the rendition date of the March 2 order granting enforcement. Of course, if the motion for rehearing directed to the March 2 order was not authorized, then the thirty days for appealing that final order ran from March 2.
DISMISSED .
Roberts, Rowe, and Tanenbaum, JJ., concur.