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Florida Agriculture and Mechanical University, Board of Trustees v. United Faculty of Florida

Florida Court of Appeals, First District

October 11, 2019

Florida Agriculture and Mechanical University, Board of Trustees, Appellant,
v.
United Faculty of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge.

          Robert E. Larkin, III and Matthew D. Stefany of Allen, Norton & Blue, P.A., Tallahassee, for Appellant.

          Thomas W. Brooks and Patricia A. Draper of Meyer, Brooks, Demma & Blohm, P.A., Tallahassee, for Appellee.

         On Appellee's Motion to Dismiss

          Per Curiam.

         United 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.

         I.

         After 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.

         The 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.[1]

         The 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.

         II.

         Florida 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").

         FAMU's 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 ...


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