Marsh & McLennan, Inc. v. Aerolineas Nacionales Del Ecuador 530 So. 2d 971

ON HEARING EN BANC OF MOTION TO DISMISS APPEALS

DANIEL S. PEARSON, Judge.

The appellee, Aerolineas Nacionales Del Ecuador, S.A., claiming that we lack jurisdiction, has moved to dismiss these consolidated appeals from the trial court’s order on rehearing reinstating a previously dismissed action. The appellants, Marsh & McLennan and Certain Underwriters at Lloyds, have responded that their appeals are from a non-final order entered after a final order and are thus authorized by Flor*972ida Rule of Appellate Procedure 9.130(a)(4). Although aware that this court in Pan American Bank, N.A. v. World Purchasing, Inc., 507 So.2d 1192 (Fla. 3d DCA 1987), held an identical order to be appeal-able, the panel assigned to hear this case1 was of the view that the order sought to be reviewed was not appealable. On motion of the panel, this nascent conflict was brought to the attention of the entire court, which determined to consider the matter en banc. The court, sitting en banc, now holds that the order is not appealable and overrules the contrary holding in Pan American.

The case began when Aerolineas sued Marsh & McLennan, Certain Underwriters at Lloyds, and St. Paul Fire & Marine Insurance Company. Because the only record activity during a one-year period was Aerolineas’ voluntary dismissal of one of the defendants, St. Paul, the other defendants moved to dismiss the suit for lack of prosecution. The trial court dismissed the suit, and Aerolineas timely moved for rehearing. On rehearing, the trial court vacated the dismissal and reinstated the action. It is this latter order which the appellants seek to have reviewed and which they claim is appealable under Florida Rule of Appellate Procedure 9.130(a)(4).

Understandably, the appellants rely on Pan American Bank, N.A. v. World Purchasing, Inc., 507 So.2d 1192, in which a panel of this court characterized the trial court’s dismissal for lack of prosecution as a “final order,” the reinstatement of the action as a “non-final order,” and the order of reinstatement as appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(4) as a “non-final order[] entered after final order.” Because the timely motion for rehearing suspended rendition of the earlier order dismissing the action — an occurrence which the decision in Pan American overlooked — we now conclude based on the express language of Rule 9.130(a)(4) that the reinstatement order was not appealable.2

Florida Rule of Appellate Procedure 9.130(a)(4) provides:

“Non-final orders entered after final order on motions which suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in Rule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.”

It is the opening declaration of the rule— “Non-final orders entered after final order on motions which suspend rendition are not reviewable” — which controls this case.3 This court has construed this phrase to mean that there are no appeals from “non-final orders, entered after final order, which suspend rendition.” Grafman v. Grafman, 488 So.2d 115, 117 n. 2 (Fla. 3d DCA 1986). While this is certainly true, it is perhaps more accurate to say that the non-final order, rather than suspending rendition, ends all possibility that the earlier order will be rendered. Thus, it is the timely motion that suspends rendition, and the phrase should be read to mean that there are no appeals from “non-final orders entered on motions which suspend rendition.” However, under either reading, the *973result is the same: the rendition of the final order — here, the dismissal — can be permanently suspended only by a non-final order — the reinstatement of the dismissed action.4

It is clear, of course, that rendition — defined as “the filing of a signed, written order with the clerk of the lower court,” Fla.R.App.P. 9.020(g) — is suspended by a timely motion for rehearing authorized by the Rules of Civil Procedure. See Fla.R. App.P. 9.020(g) (“Where there has been filed in the lower tribunal an authorized and timely motion for ... rehearing, ... the order shall not be deemed rendered until disposition thereof.”); Sky Lake Gardens Recreation, Inc. v. District Court of Appeal, 511 So.2d 293 (Fla.1987); Casto v. Casto, 404 So.2d 1046 (Fla.1981); Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972); Palladeno v. Oesterle, 345 So.2d 382 (Fla. 3d DCA 1977). The effect of the rehearing rule “is to put the world on notice that at any time within ten days after entry of a decree by a court of equity in Florida the court may, on petition for rehearing or on its own initiative, order a rehearing or enter a new or amended decree. Any person that acts in reliance upon such a decree within that time does so at his own peril.” Fugazy Travel Bureau, Inc. v. State by Dickinson, 188 So.2d 842, 844 (Fla. 4th DCA 1966). See also State ex rel. Owens v. Pearson, 156 So.2d 4 (Fla. 1963); Dade County v. Snyder, 134 Fla. 756,184 So. 489 (1938); Johnson v. Feeney, 507 So.2d 722 (Fla. 3d DCA), rev. denied, 518 So.2d 1274 (Fla.1987); Wollman v. Levy, 489 So.2d 1239 (Fla. 3d DCA 1986); Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386 (Fla. 3d DCA 1986).5-6 Thus, the order of dismissal for lack of prosecution, although nominally final, is actually inchoate,7 and the effect of the order on rehearing reinstating the action was to prevent the dismissal from becoming choate.

It is well established that the denial of a motion to dismiss for lack of prosecution is not appealable. See Rosie O’Grady’s, Inc. v. Del Portillo, 521 So.2d 183 (Fla. 3d DCA 1988); Southwinds Riding Academy v. Schneider, 507 So.2d 782 (Fla. 3d DCA 1987); Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. *9745th DCA 1980); Killeam Properties, Inc. v. Hammons Asphalt Paving, Inc., 381 So.2d 1169 (Fla. 1st DCA 1980).8 The order sought to be reviewed in the present case is the functional equivalent of a denial of the motion to dismiss despite the fact that it comes in the form of a reinstatement of the action. It would be anomalous indeed were we to entertain an appeal where, by happenstance, the decision to deny the motion to dismiss follows a rehearing, while disallowing an appeal where the same decision is made at the outset. There is little reason to allow a litigant an appeal simply because the trial court decided to rule one way, and then changed its mind. Indeed, such a result runs counter to the well-recognized purpose of the motion for rehearing, that is, to give judges a discrete period of time to reconsider their orders and correct any perceived errors. See Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386; Elmore v. Palmer First National Bank and Trust Co., 221 So.2d 164 (Fla. 2d DCA 1969); Ortiz v. Ortiz, 211 So.2d 243 (Fla. 3d DCA 1968).

Accordingly, the appeals are dismissed for lack of jurisdiction as the order appealed from — an order on timely motion for rehearing reinstating an action dismissed for lack of prosecution — is a non-final order which is not appealable. The holding to the contrary in Pan American Bank, N.A. v. World Purchasing, Inc., 507 So.2d 1192 (Fla. 3d DCA 1987), is hereby overruled.

Appeals dismissed.

SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN and JORGENSON, JJ., concur.

FERGUSON, Judge

(dissenting to en banc).

On the procedural point this case may be interpreted to hold that a conflict exists for the purpose of en banc jurisdiction where the court finds from an examination of facts in the record of an earlier case that the result would have been different if counsel had presented the relevant facts and raised the proper issue. Our already overbroad definition of “conflict,” see State v. Navarro, 464 So.2d 137 (Fla. 3d DCA 1984) (Ferguson, J., dissenting to rehearing en banc), will not absorb this expansion.

As is noted in the court opinion [see note 2] the issue now discussed was never suggested by the losing appellee in Pan American. The court knows now that the issue could have, and probably should have been raised only because the panel searched the record in the year-old case. It was the appellee and not the court which “overlooked” the issue.1

Pan American Bank, N.A. v. World Purchasing, Inc., 507 So.2d 1192 (Fla. 3d DCA 1987), contains no holding which is contrary to the correct result reached in this case. The Pan American panel reached the merits of the case after finding, consistent with the issue as framed, and the facts as presented in the briefs, that the order of dismissal was final. By factual suggestion the order of dismissal was final because rendition was not sus*975pended by a timely motion to reinstate. The ease was thus easily distinguishable by the panel.