Howell v. Jackson

Full title: RALPH L. HOWELL, Appellant, v. ANITA JACKSON, Appellee

Court: District Court of Appeal of Florida, Fourth District

Date published: Mar 20, 2002

810 So. 2d 1081 (Fla. Dist. Ct. App. 2002)

Opinion

No. 4D02-400.

March 20, 2002.

Appeal from the Circuit Court, Broward County, Estella May Moriarty, J.

Michael A. Sastre and Daniel S. Schwartz of Wilson, Elser, Moskowitz, Edelman Dicker, LLP, Miami, for appellant.

Diane H. Tutt of Diane H. Tutt, P.A., Plantation, for appellee.

ORDER GRANTING RELINQUISHMENT

KLEIN, J.

Appellant defendant filed a notice of appeal from a final judgment based on a jury verdict even though his post-trial motions were pending. He has filed a motion requesting that we relinquish jurisdiction for the trial court to rule on his motions.

Appellee objects, citing Florida Rule of Appellate Procedure 9.020(h)(3), which provides that a party who files a notice of appeal is "deemed" to have abandoned his own pending post-trial motions. In re Forfeiture of $104,591, 589 So.2d 283 (Fla. 1991). Appellee, however, also had pending post-trial motions. Under rule 9.020(h)(1) the final judgment is not deemed rendered until her post-trial motions have been disposed of by written order. These two provisions of our rule defining rendition mean that a party who files a notice of appeal is deemed to have abandoned his own pending post-trial motions, but the notice of appeal has no effect on pending post-trial motions filed by another party directed at the party filing the notice of appeal.

This notice of appeal is premature because a notice of appeal must be filed within thirty days of "rendition," rule 9.110(b), and this judgment will not have been rendered until the trial court ruled on appellee's pending post-trial motions. Rule 9.020(h)(1).

We conclude that where other parties have pending post-trial motions which preclude rendition of the judgment, a prematurely filed notice of appeal does not automatically constitute an abandonment of the appealing party's post-trial motions. We note that rule 9.020(h)(3) states that where the notice of appeal is filed pending post-trial motions "shall be deemed abandoned," rather than unconditional language to the effect that the motions are abandoned. See also In re Forfeiture of $104,591, 589 So.2d 283 (Fla.l991) (Florida Supreme Court allowed trial court to rule on post-trial motions which had been deemed abandoned by the filing of a notice of appeal).

We therefore relinquish jurisdiction in order for the trial court to rule on all post-trial motions.

GROSS and HAZOURI, JJ., concur.