Alvin Fisher v. The Housing Authority of the City of Key West

Third District Court of Appeal
State of Florida
Opinion filed November 26, 2025.
Not final until disposition of timely filed motion for rehearing.
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No. 3D24-2065
Lower Tribunal No. 24-CC-54-K
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Alvin Fisher ,
Appellant,
vs.
The Housing Authority of the City of Key West,
Appellee.
An Appeal from the County Court for Monroe County, Mark Wilson,
Judge.
Legal Services of Greater Miami, and Karina Bodnieks, Lissie Salazar,
and Jeffrey M. Hearne, for appellant.
Highsmith & Van Loon, P.A., and David Van Loon, for appellee.
Before LINDSEY, GORDO and GOODEN, JJ.
GOODEN, J.
This case involves the clash between section 51.011, Florida Statutes,
and Florida Rule of Civil Procedure 1.530. 	Because we find that section

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51.011, Florida Statutes, controls and Appellant Alvin Fisher did not timely
file his notice of appeal, we dismiss the appeal for lack of jurisdiction.
I.
Fisher 	rented 	an 	apartment 	month-to-month 	from 	Appellee 	The
Housing Authority of Key West. 	In January 2024, Fisher received a fifteen-
day notice of termination. 	But see § 83.57(3), Fla. Stat. (2024) (requiring
thirty days’ notice). 	When Fisher did not vacate, the Housing Authority
sought possession of the premises. In accordance with summary procedure,
Fisher, pro se, filed an answer within five days. He explained that he failed
inspection and promised to maintain his unit from now on. No other defenses
were lodged and rent was not paid into the court registry. 	See § 83.60(2),
Fla. Stat. (2024).
The trial court advanced the cause on the calendar and held the final
hearing. 	Both parties appeared and, according to the Housing Authority,
Fisher testified.1 The trial court entered final judgment of possession on April
15, 2024. It allowed Fisher two more weeks to vacate the premises.
On April 23, 2024, Fisher filed a motion for rehearing under Florida
Rule of Civil Procedure 1.530.2 Fisher raised—for the first time—that the
1 The transcript of the final hearing was not included in the record on appeal.
2 Fisher retained an attorney to file the motion.

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notice was deficient under section 83.57(3), Florida Statutes. Along with this
motion, Fisher moved to amend his answer and sought to determine rent.
Shortly thereafter, Fisher voluntarily vacated the premises and turned in his
keys.
In late October, the trial court denied the motion for rehearing and
directed the clerk to close the case. On November 13, 2024, Fisher filed his
notice of appeal. This was filed within thirty days of the denial of the motion
for rehearing.
II.
“We are governed by the fundamental principle that the time for
initiating an appeal is jurisdictional.” Fire & Cas. Ins. Co. of Conn. v. Sealey,
810 So. 2d 988, 990 (Fla. 1st DCA 2002). 	“An appellate court cannot
exercise jurisdiction over a cause where a notice of appeal has not been
timely filed.” State ex rel. Cantera v. Dist. Ct. of Appeal, Third Dist., 555 So.
2d 360, 362 (Fla. 1990). See also § 59.081(2), Fla. Stat. (2024) (“Failure to
invoke the jurisdiction of any such court within the time prescribed by such
rules 	shall 	divest 	such 	court 	of 	jurisdiction 	to 	review 	such 	cause.”).
The process to file an appeal is spelled out in the Florida Rules of
Appellate Procedure. 	See Art. V, § 2(a), Fla. Const. (“The supreme court
shall adopt rules for the practice and procedure in all courts including the

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time for seeking appellate review . . . .”); § 59.081(1), Fla. Stat. (“The time
within which and the method by which the jurisdiction of any court in this
state possessed of power to review the action of any other court . . . may be
invoked by appeal . . . shall be prescribed by rule of the Supreme Court.”).
For appeals of final orders, Rule 9.110 requires the notice of appeal to be
filed within thirty days of rendition of the order to be reviewed. 	Fla. R. App.
P. 9.110(b). “An order is rendered when a signed, written order is filed with
the clerk of the lower tribunal.” Fla. R. App. P. 9.020(h).
Rendition of that order is tolled if an “authorized and timely” motion is
filed. 	Id. 	Rendition then occurs when that motion is disposed of. 	Id. 	See
also Gordon v. Barley, 383 So. 2d 322, 324 (Fla. 5th DCA 1980) (“Therefore,
a motion for rehearing must be both timely and authorized in order to fall
within the tolling provision of Rule 9.020(g).”). But if the motion is either not
authorized or not timely filed, it does not toll rendition. See McNeal v. State,
19 So. 3d 448, 448 (Fla. 2d DCA 2009) (“An untimely motion for rehearing
does not suspend rendition.”); Melton v. Schwinger, 678 So. 2d 470, 471
(Fla. 5th DCA 1996) (“In fact, the trial court lacks jurisdiction to rule on an
untimely motion for new trial.”); Potucek v. Smeja, 419 So. 2d 1192, 1193
(Fla. 2d DCA 1982) (“An unauthorized motion for rehearing does not toll the

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time.”). Then, the notice of appeal must be filed within thirty days of the final
judgment.
The Housing Authority maintains that Fisher did not timely file his
notice of appeal because his motion for rehearing was not “authorized and
timely.” To make this determination, we must analyze the relevant statutes
and rules applicable to this type of proceeding.
A.
“The Florida Residential Landlord and Tenant Act, found in Chapter
83, Part II of the Florida Statutes, affords a landlord a summary procedure in
county court when seeking to remove a tenant from its premises.” Borjas v.
Vergara, 232 So. 3d 1067, 1068–69 (Fla. 3d DCA 2017). See also § 83.21,
Fla. Stat. (2024) (“The landlord, the landlord’s attorney or agent, applying for
the removal of any tenant, shall file a complaint stating the facts which
authorize the removal of the tenant, and describing the premises in the
proper court of the county where the premises are situated and is entitled to
the summary procedure provided in s. 51.011.”); § 83.59(2), Fla. Stat. (2024)
(“The landlord is entitled to the summary procedure provided in s. 51.011,
and 	the 	court 	shall 	advance 	the 	cause 	on 	the 	calendar.”); 	Toledo 	v.
Escamilla, 962 So. 2d 1028, 1029 (Fla. 3d DCA 2007) (“The Act affords a
landlord a summary procedure in county court when seeking to remove a

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tenant from its premises.”). 	“The summary procedure statutes envision an
expedited process to determine the right to possession promptly without the
necessity of deciding all other issues between the parties.” Camena Invs. &
Prop. Mgmt. Corp. v. Cross, 791 So. 2d 595, 596–97 (Fla. 3d DCA 2001).3
Summary procedure is controlled by section 51.011, Florida Statutes.
This section was first enacted in 1967. See Ch. 67-254, § 7, Laws of Fla. It
has only undergone minor amendments. See Ch. 73-333, § 23, Laws of Fla.
(changed time to file notice of appeal from ten days to thirty days); Ch. 87-
405, § 5, Laws of Fla. (changed word “served” in subsection (1) to “filed”);
Ch. 95-147, § 292, Laws of Fla. (updated pronouns to reflect both genders).
The present version provides:
The procedure in this section applies only to those actions
specified by statute or rule. Rules of procedure apply to this
section except when this section or the statute or rule prescribing
this section provides a different procedure. If there is a difference
between the time period prescribed in a rule and in this section,
this section governs.
. . .
(4) New trial.-- Motion for new trial shall be filed and served
within 5 days after verdict, if a jury trial was had, or after entry of
judgment, if trial was by the court. A reserved motion for directed
verdict shall be renewed within the period for moving for a new
trial.
3 Outside of summary procedure, Chapter 83 does not specify any procedure
for post-decision motions.

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(5) Appeal.-- Notice of appeal shall be filed and served within 30
days from the rendition of the judgment appealed from.
§ 51.011, Fla. Stat. (2024).
As noted by the statute’s text, this section provides the procedure for
these types of matters. 	See generally Black’s Law Dictionary 1367-68 (4th
ed. 1968) (defining “procedure” as “[t]he mode of proceeding by which a legal
right is enforced, as distinguished from the law which gives or defines the
right, and which, by means of the proceeding, the court is to administer,” and
“[t]hat which regulates the formal steps 	in, 	an action or other judicial
proceeding”); Ballentine’s Law Dictionary 1000 (3d ed. 1969) (defining
“procedure” as “[t]he means adopted, that is the practice followed, whereby
a 	court 	adjudicates 	controversies 	within 	its 	jurisdiction 	and 	properly
presented to it, as distinguished form the substantive principles according to
which the rights and wrongs are determined.”). Subsection (4) sets forth the
procedure for post-decision motions. It mandates that a motion for new trial
or a reserved motion for directed verdict be filed within five days of the verdict
or final judgment. Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So.
2d 1244, 1254 (Fla. 2008). 	It is undisputed that no motion for new trial or
reserved motion for directed verdict was filed within five days of the final
judgment.

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Instead, Fisher maintains that his motion for rehearing was authorized
and timely under Florida Rule of Civil Procedure 1.530. Rule 1.530 reads:
(a) Jury and Non-Jury Actions. A new trial may be granted to
all or any of the parties and on all or a part of the issues. To
preserve for appeal a challenge to the failure of the trial court
to make required findings of fact in the final judgment, a party
must raise that issue in a motion for rehearing under this rule.
On a motion for a rehearing of matters heard without a jury,
including 	summary 	judgments, 	the 	court 	may 	open 	the
judgment if one has been entered, take additional testimony,
and enter a new judgment.
(b) Time for Motion. A motion for new trial or for rehearing must
be served not later than 15 days after the return of the verdict
in a jury action or the date of filing of the judgment in a non-
jury action. 	A timely motion may be amended to state new
grounds in the discretion of the court at any time before the
motion is determined.
Fla. R. Civ. P. 1.530. Fisher focuses on distinguishing motions for new trial
from motions for rehearing.
Yet Fisher ignores the plain language of the summary procedure
statute: 	“Rules of procedure apply to this section except when this section
or the statute or rule prescribing this section provides a different procedure.
If there is a difference between the time period prescribed in a rule and in
this section, this section governs.” § 51.011, Fla. Stat. The statute sets forth
a different procedure for post-verdict or post-judgment motions. 	And this

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procedure—filing a motion for new trial or a reserved motion for directed
verdict—controls. 	See Pro-Art 	Dental 	Lab, 	Inc., 	986 	So. 	2d 	at 	1254
(“[C]hapter 51 itself explicitly provides that the Rules of Civil Procedure apply
unless section 51.011 or the statute creating the cause of action supply a
contrary mode of procedure.”). 	Indeed, Rule 1.530 sets forth a competing
procedure that does not apply here. 	See Fla. R. Civ. P. 1.010 (“The form,
content, procedure, and time for pleading in all special statutory proceedings
shall be as prescribed by the statutes governing the proceeding unless these
rules specifically provide to the contrary.”); id. at Editors’ Notes (“To the
extent that statutes dealing specifically with a particular civil action or
proceeding do not set out a specific rule for a particular phase of practice or
procedure, such phase would appear to be governed by these rules.”).
What is more, subsection (4)’s concept of a motion for new trial
necessarily 	includes 	arguments 	which 	would 	fall 	within 	a 	motion 	for
rehearing. It accounts for both jury and non-jury trials. Rule 1.530 notes that
a motion for rehearing is for matters not heard before a jury. Fla. R. Civ. P.
1.530(a). 	Many 	summary 	proceedings 	are 	just 	that—especially 	in 	the
landlord-tenant arena.
At bottom, even if we were to construe Fisher’s motion for rehearing
as a motion for new trial, it would still not be timely under section 51.011,

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Florida Statutes. Section 51.011, Florida Statutes, requires the motion to be
filed within five days. 	This was not done here. 	The final judgment was
entered on April 15, 2024, and the motion was filed on April 23, 2024.
As a result, Fisher’s motion was not an “authorized and timely” motion
under section 51.011, Florida Statutes. 	So, the motion did not toll rendition
of the final judgment. 	Any notice of appeal was required to be filed by May
15, 2024. 	Yet Fisher filed the notice on November 13, 2024—five months
too late. 	While we are sympathetic to Fisher’s plight, this inaction divests
this Court of jurisdiction. 	§ 59.081(2), Fla. Stat.; State ex rel. Cantera, 555
So. 2d at 362. Without jurisdiction, there is only one action we can take: we
must dismiss.
Dismissed.