Florida Agriculture and Mechanical University, Board of Trustees, Appellant,
United Faculty of Florida, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Charles W.
E. Larkin, III and Matthew D. Stefany of Allen, Norton &
Blue, P.A., Tallahassee, for Appellant.
W. Brooks and Patricia A. Draper of Meyer, Brooks, Demma
& Blohm, P.A., Tallahassee, for Appellee.
Appellee's Motion to Dismiss
Faculty of Florida (UFF) moves to dismiss this appeal for
lack of jurisdiction, arguing that it is a mere republication
of a previous final judgment that Florida Agriculture and
Mechanical University, Board of Trustees (FAMU) appealed and
then abandoned. We agree and grant the motion.
FAMU discharged a faculty member, UFF challenged this
discharge in an arbitration proceeding, and the arbitrator
ruled that the discipline imposed must be modified and the
employee was entitled to certain back pay. FAMU moved for the
circuit court to vacate the arbitration award, while UFF
requested the award be confirmed.
trial court entered an order denying FAMU's motion,
confirming the award, ordering the payment of back pay, and
concluding that "JUDGMENT is entered for [UFF]."
FAMU filed a notice of appeal and we issued an order to show
cause, indicating that the order did not appear to be final
and citing SSA Sec. Inc. v. Pierre, 44 So.3d 1272,
1273 (Fla. 1st DCA 2010), which found that an administrative
order requiring the payment of back pay, but reserving
jurisdiction to set the amount, was not final and thus not
appealable. In response, FAMU moved for voluntary dismissal
and we dismissed the appeal.
parties returned to the trial court and obtained another
order, this one titled "Final Judgment." This order
contained the same language regarding back pay, so we issued
another order to show cause, again citing SSA Sec.
Inc. This time, FAMU responded that the trial court did
not reserve jurisdiction and there was no dispute as to the
back pay ordered, thus the order was final. After considering
the response, we discharged our show cause order. After
briefing, UFF filed this motion to dismiss the appeal.
Rule of Appellate Procedure 9.110(b) requires a notice of
appeal to be filed within 30 days of rendition of a final
order. This deadline to appeal is jurisdictional, see
Johnston v. State, 202 So.3d 976 (Fla. 1st DCA 2016),
and failure to comply may not be cured by obtaining a
subsequent order. After rendition, an "amendment or
modification of an order or judgment in an immaterial way
does not toll the time within which review must be
sought." St. Moritz Hotel v. Daughtry, 249
So.2d 27, 28 (Fla. 1971); see also Demming v.
Demming, 251 So.3d 284 (Fla. 1st DCA 2018) (holding that
an earlier dissolution order was an appealable order, so that
a later dissolution order was untimely); Campos v.
Campos, 230 So.3d 553, 555 (Fla. 1st DCA 2017)
("[T]he trial court's repeating the same ruling in
the later order denying the motion to vacate cannot revive an
appeal period."); Caldwell v. Wal-Mart Stores,
Inc., 980 So.2d 1226, 1229 (Fla. 1st DCA 2008) ("An
untimely appeal cannot be revived by obtaining a new order to
the same effect as the original and then filing the notice of
appeal within thirty days of the more recent order.");
Gen. Motors Corp. v. Strickland, 913 So.2d 1227,
1228 (Fla. 1st DCA 2005) (holding that the second final
judgment "was a mere republication of the earlier order
and did not restart the time for filing an appeal").
response to our second order to show cause eased any concern
we had that the final judgment was not final unless a
specific back pay award was determined. However, that
concern, rationale, and conclusion were equally applicable to
the first order that entered judgment. Thus, the first order
was a final and appealable order. FAMU admits that the second
order "was substantially the same" as the first.
Because the second order repeated the same ruling from the
first order without any material changes, it did not affect
the 30-day window to appeal; FAMU's ...