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Ray, my second "Plaintiff" question for you is WHAT are the…

Ray, my second "Plaintiff" question...
Ray, my second "Plaintiff" question for you is WHAT are the requirements for preserving an appeal when a motion to dismiss a corporate defendant is granted, while the "individual" defendant/owner remains a defendant?
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7/8/2018
Ray
Ray, Lawyer
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Satisfied Customers: 48,907
Experience: 30 years in civil, probate, real estate, elder law
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

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Here you want to make sure your motion and the order are contained in court's file.If there was oral argument make sure thee is a transcript, reported would have that.This then is the appellate record that you can appeal with notice of appeal.Your brief can then reference the motion and the errors.

As long as these are in the courts record you should be fine here to appeal it if you choose to do so.

Rule 9.900, Florida Rules of Appellate Procedure, provides the timeframe for when an appeal must be filed by a party or defendant in a case and the format for a Notice of Appeal. The original Notice and one copy should be filed with the Clerk’s office in the division where the court rendered the order/judgment you wish to appeal. For example, file in the Felony Division if you are appealing a felony conviction.

What happens in an appeal?
After the appropriate paperwork is timely filed (after the oral agreement), the appellate court will review the decision of the lower court and make a ruling.

Types of Cases That May be Appealed
Florida’s Rules of Court designate the types of appeals that are permitted.

  • Appeal to Circuit Court: County Court cases – misdemeanors, county civil and traffic infraction cases
  • Appeal to District Court of Appeal or Florida Supreme Court: Circuit Court cases – felonies, circuit civil, probate and juvenile cases
  • Appeal to Florida Supreme Court: Death penalty cases are appealed directly from the Circuit Court to the Florida Supreme Court by law

Appellate Filing Fees

  • Felony, Juvenile, Probate and Circuit Civil filing fees require a $100 check made payable to the Clerk of Circuit Court and a separate check for $300 made payable to the Clerk of District Court.
  • County Civil, Traffic and Misdemeanor filing fees require a $281 check made payable to the Clerk of Circuit Court.

For additional information, visit these websites:
First District Court of Appeals
Florida Supreme Court

Ray
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Customer reply replied 1 month ago
Great. Thanks as always! (Michael)

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You are in court at a hearing on a motion that, depending on the outcome, may give your client the right to appeal. The judge issues an order from the bench. Your client is considering whether to file an appeal, and he has only 30 days to do so. However, it takes a week before the judge signs the order and another two days before the order is entered on the docket. When does your appeal need to be filed? Keep in mind that if you calculate incorrectly, the consequences are severe. In Amos v. Reich, 2016 Fla. App. LEXIS 19266 (Fla.Dist.Ct.App. 3d Dist. Dec. 28, 2016), the Third District Court of Appeals provided an answer to this question.

Florida Rule of Appellate Procedure 9.110(b) sets forth that an appeal may be brought “[a]fter filing a notice… with the clerk of the lower tribunal within 30 days of rendition of the order [to be reviewed].” This statute turns on the meaning of the word “rendition” or, in its action term, “render.” Once this meaning is established for a particular case, the timing of the appeal can be calculated and a timely filing made with the applicable court. The Third District Court of Appeal recently held that “Florida Rule of Appellate Procedure 9.020(i) provides that ‘[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.’ An order is rendered when all these three conditions are met.’” Amos v. Reich, 2016 Fla. App. LEXIS 19266 (Fla.Dist.Ct.App. 3d Dist. Dec. 28, 2016).

It has long been held by the Third District Court of Appeal that if an appeal is not timely filed, it will be dismissed. In Miami-Dade County v. Peart, 843 So.2d 363, 364 (Fla.Dist.Ct.App. 3rd Dist. 2003), the court held that, “ecause this notice was filed 31 days after the hearing officer rendered her decision (one day late), the County moved to dismiss the appeal.” In Miami-Dade County, an order was granted on May 13, 2002, against a hearing officer rendering a final decision that the respondents had illegally maintained a commercial vehicle. As a result of this final decision, the respondents filed a notice of appeal on June 13, 2002. However, this notice was filed 31 days after the order was signed by the clerk of the lower court. Thus, the court found the respondents’ appeal untimely under Rule 9.110(c). Florida Rule of Appellate Procedure 9.110(c) reads similarly to 9.110(b), but specifically states, “n an appeal to review final orders of lower administrative tribunals, the appellant shall file the notice with the clerk of lower administrative tribunal within 30 days of rendition of the order to be reviewed, and shall also file a copy of the notice, accompanied by any filing fees prescribed by law with the clerk of the court.” See, Fla. R. App. P. 9110(c).

Similarly, in First Nat’l Bank v. Florida Unemployment Appeals Com., 461 So.2d 208, 209 (Fla.Dist.Ct.App. 1st Dist. 1984), the court dismissed the appeal because the proper notice was not filed with the court within the 30-day period as required by Florida Rule of Appellate Procedure 9.110(b). This rule requires the notice of appeal to be filed—not merely mailed—within 30 days of rendition of the order to be reviewed. See also, Hawks v. Walker, 409 So.2d 524, 525 (Fla.Dist.Ct.App. 5th Dist. 1982) (holding a timely notice of appeal must be filed within 30 days in order for this court to have jurisdiction; late filing is a defect no one can correct, not even the court); Dibble v. Dibble, 377 So.2d 1001, 1003-1004 (Fla.Dist.Ct.App. 3d Dist. 1979) (holding that the appeal was filed in an untimely manner because it was not filed within the applicable period after rendition of the order to be reviewed, as required by Fla. R. App. P. 9.110(b)); Crapp v. Criminal Justice Stds. & Training Comm’n, 753 So.2d 787 (Fla.Dist.Ct.App. 3d Dist. 2000) (holding that an appellate court cannot exercise jurisdiction over a cause where a notice of appeal has not been timely filed).

Likewise in Amos, the appellant, Amos, appealed a final judgment regarding his property foreclosure, and the appellee, Reich, moved to dismiss this appeal as untimely. Specifically, Reich asserted that the order on appeal was rendered on October 17, 2016. However, the order on appeal was not filed with the clerk until October 19, 2016, and thus not rendered until that day. Nevertheless, Amos failed to file his appeal until November 21, 2016, 32 days after the clerk had filed the order. On December 28, 2016, the Third District Court of Appeal issued a ruling regarding the untimely appeal. The court held that the appeal “was untimely and lacked jurisdiction to entertain the appeal.” See, Amos v. Reich, 2016 Fla. App. LEXIS 19266, at *2.

There is a clear trend toward holding that the rendition of an order is based upon the date the clerk files the final order of the lower court and that an appeal must be filed within 30 days of such date. If an appeal is not filed within the properly calculated 30 days from the final order, the appellate court will dismiss the case for lack of jurisdiction. There is no cure for late filing for an appeal. Dismissal is the one and only consequence.

Take care now.

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Customer reply replied 1 month ago
Awesome. Thanks!!

Bye for now, talk to you again soon.

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Customer reply replied 1 month ago
Congratulations on topping 30K Responses!

Thanks my friend.

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