The Florida Bar

Florida Bar Journal

Welcome to the Hotel St. Moritz: A Warning Concerning the Window in Which to Seek Appellate Review of Corrected, Amended, or Modified Orders

Appellate Practice

Don Henley may have warned us about the Hotel California, but if you miss the deadline to seek review of an adverse decision, you may find yourself in a not-so-lovely place. The party on the receiving end of such decision faces a significant choice: to appeal or not to appeal. This is a choice comprising considerations too numerous to list, any of which could warrant its own in-depth discussion in this journal. This article falls on the opposite side of the spectrum, addressing only a discrete and, in this case, somewhat obscure procedural issue: the time in which to appeal. More specifically, the time in which to appeal from orders that have been corrected, amended, or modified.

Most litigators know that, in general, they have 30 days to appeal from final (and certain types of nonfinal) orders. But with adverse orders that have been corrected, amended, or modified, the time in which to seek appellate review is not always simple or obvious. For the appellate specialist, whether to seek appellate review is often the first decision on which he or she can consult. Indeed, trial specialists may not consult an appellate specialist until faced with an adverse order. But if the attorney litigating the proceedings in the lower tribunal is unaware of the nuances of this general, 30-day rule, the time in which to decide whether to appeal can expire, permanently extinguishing the right to meaningful appellate review. This article provides a useful guide on computing the time to seek appellate review for trial and appellate specialists alike who face adverse rulings that have been corrected, amended, or modified.

What Is the Rule Applicable to Amended Orders and Where Did it Come From?

In general, a party facing an appealable adverse decision has 30 days to seek appellate review.[1] This 30-day clock ticks from the date the adverse decision is rendered, meaning the date the signed order is filed (not recorded)[2] with the clerk.[3] This general rule seems straightforward enough and can be confirmed by briefly consulting the Florida Rules of Appellate Procedure. But what about a decision modified by the lower tribunal before a party invokes the jurisdiction of the appellate court? By only briefly consulting the appellate rules, one might assume that the 30-day clock simply runs anew from the date the modified order is rendered. As with many assumptions, however, this is not always accurate, and a party who makes such an assumption risks dire consequences.

In St. Moritz Hotel v. Daughtry, 249 So. 2d 27, 28 (Fla. 1971), the Florida Supreme Court laid out the modern rule applicable to modified orders:

An amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought. But where the modification or amendment materially changes the original order or judgment, the limitation period is said to run from the time of such modification or amendment.

In other words, all amended orders are not created equal. The 30-day clock does not simply restart upon the entry of a modified order in every instance. Instead, some analysis as to the nature of the modification is necessary to determine the applicable window in which to seek appellate review.

The issue before the Florida Supreme Court in St. Moritz was whether a supplemental order entered by a judge of the Florida Industrial Relations Commission constituted a material change from the original order.[4] The original order awarded the claimant compensation “in the form of weekly payments for nursing services to be continued ‘so long as such services are necessary,’” and awarded $9,500 in attorneys’ fees.[5] The award of attorneys’ fees “was based on present value of the nursing services (although he did not set a figure for the present value of the services), the time and preparation involved in the claim, the adequacy of the preparation, and the Dade County Bar Association schedule of minimum fees.”[6]

Several days later, the judge “sua sponte entered a supplemental order purporting to ‘correct an error in computation or a scrivener’s error’ with respect to” the attorneys’ fees award.[7] Specifically, the judge reset the award to $8,311.80 based on a finding that “the parties had stipulated that any award of attorney’s fees should be in the sum of 30 [percent] of the benefits recovered and that the present value of such benefits was $27,706.05.”[8]

St. Moritz Hotel, the claimant’s employer, attempted to seek appellate review of the decision.[9] The hotel’s application for review was timely as to the supplemental order but not as to the original.[10] The full commission dismissed the application as untimely reasoning that the time in which to seek review ran from entry of the original order because the supplemental order did not go to the merits of the dispute.[11]

The Florida Supreme Court quashed the order dismissing the hotel’s application for review.[12] Although the Supreme Court took no issue with the statement of law relied on by the full commission, it found that the supplemental order did materially change the order.[13] The Supreme Court explained that the supplemental order contained two significant changes: “(1) [I]t made a new award of attorney’s fees computed in a substantially different manner from the award in the first order; and (2) it stated for the first time the present value of the benefits to claimant.”[14] The court considered these significant because the hotel’s challenge to the order concerned the value of the benefits awarded — a figure that could not have been challenged based on the first order alone, which awarded compensation for an indefinite amount of nursing services.[15]

Of particular significance to the Supreme Court was that the hotel only sought to challenge alleged errors in the supplemental order.[16] The court explained that a contrary rule could cause prejudice to the appealing party because “where a party is obviously satisfied with a first order, but finds a second order objectionable, the result of not tolling the time for review is to shorten the time within which the party may seek review of the questioned order.”[17] In arriving at its conclusion, the Florida Supreme Court relied on the U.S. Supreme Court’s articulation of the rule in Federal Trade Commission v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206 (1952):

Only when the lower [c]ourt changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.

St. Moritz, thus, teaches that not all modified orders restart the 30-day clock and a practitioner who so assumes may miss the window to seek meaningful appellate review. The practical test, then, to determine whether the 30-day clock runs from rendition of the original order or the modified one, is whether the modification 1) resolves a genuine ambiguity; 2) revises legal rights or obligations; or 3) otherwise materially changes a matter of substance.

How Does the Rule Work?

While the Florida Supreme Court has not explicitly addressed the rule since its St. Moritz decision, other Florida appellate courts have had occasion to define its contours. Courts have applied the St. Moritz rule to both civil and criminal proceedings.[18] The Second District has also applied the rule to calculating the time for moving for rehearing under Rule 1.530 “because review pursuant to [R]ule 1.530 is inextricably related to the procedures for taking an appeal.”[19] And in Duval County School Board v. Rupp, 414 So. 2d 556 (Fla. 1st DCA 1982), the First District explained that the rule should be applied “with liberality.” The court explained the purpose of its liberal application was “not necessarily to encourage the appeals that may thereby be saved” but to instead encourage the lower tribunal and the parties “to correct remediable errors that might otherwise inspire needless appeals.”[20]

As mentioned, the test to determine whether the time in which to appeal runs from rendition of the original order or the modified one, is whether the modification 1) resolves a genuine ambiguity; 2) revises legal rights or obligations; or 3) otherwise materially changes a matter of substance.[21] If the modification meets one of these criteria, the time in which to invoke the jurisdiction of the appellate court will run from rendition of the modified order. Even when the modification is substantial, if it “is entirely in the appellant’s favor, the appellant may not rely on this order to obtain an appeal of the issues decided adversely to the appellant in the earlier [f]inal [j]udgment.”[22] An amendment remedying only clerical or scrivener’s errors, however, will not toll the time in which to seek appellate review.[23] The trick for any practitioner assessing the deadline to appeal is to tell these modifications apart. As the examples collected below confirm, however, this is not always an easy task.

The Duval court, for example, ultimately held that the time in which to appeal ran from rendition of the amended order on attorneys’ fees because “adding a paragraph finding bad faith as a predicate for the antecedent attorney’s fee award was a substantial amendment.”[24] The court considered this to be a substantial amendment because it served to “remedy an omission of findings supporting an award of attorney’s fees.”[25] Similar to the situation in St. Moritz, even though the initial order contained an award, the amended order was the first to contain the findings upon which the award was based — findings presumably necessary for meaningful appellate review.

Although in a different procedural context, the Fourth District applied the St. Moritz rule in Sun Harbor Homeowners’ Ass’n v. Bonura, 95 So. 3d 262, 265 (Fla. 4th DCA 2012), to conclude that an amended order constituted more than a mere procedural correction and was a nullity because it was entered after the appellant had filed a notice of appeal. The court premised its conclusion on the fact that the original order granted relief only under the Federal Fair Housing Act, while the amended order discussed, for the first time, the Florida Fair Housing Act.[26] The court explained that “[a]lthough the outcome was the same in both orders, it is obvious that the Second Order constituted more than a correction of an error or omission relating to procedural matters under Rule 9.600(a).”[27]

On the other hand, the rule has been applied to dismiss appeals as untimely in a variety of situations. For example, the Fourth District has concluded that an amended judgment adding the post-judgment interest rate and the address of the debtor does not toll the time to appeal;[28] nor does a modified judgment adding the words “for which let execution issue.”[29] Likewise, the Fifth District has explained that an amended judgment of foreclosure that changed the sale date and awarded additional interest did not toll the time.[30] The Fifth District has also dismissed an appeal from an amended order denying a timely, authorized motion for rehearing because the amended order was “identical in every respect” to the earlier order “except that paragraph 2 read: ‘Plaintiff’s motion for rehearing is denied.’”[31] In a recent case out of the Second District, the court applied the rule to dismiss an appeal from an order amended to attach an incorrect parenting plan, concluding that the incorrect attachment “was a mere clerical error.”[32]

As least one court has observed that an amended order merely rejecting a new argument directed to an earlier ruling does not toll the time to seek review of that earlier ruling. In Caldwell v. Wal-Mart Stores, Inc., 980 So. 2d 1226, 1229 (Fla. 1st DCA 2008), a majority of the First District dismissed a petition for writ of certiorari seeking review of an amended order directing a claimant to submit to an independent medical examination (IME). Rejecting the argument that the amended order tolled the time in which to file the petition, the majority emphasized that the ruling remained the same across both orders: the claimant had to submit to the IME.[33] Because “the main argument made in the petition. . . is that the claimant should not be required to submit to the examination,” the majority concluded that the time to seek interlocutory review of the order had passed.[34] Then-Judge Polston dissented, however, explaining that the error was reviewable because the newly raised argument was “essentially a motion to cancel a second IME, an issue that is materially different from the first ruling…[because] [a] second IME may only be ordered under more stringent circumstances than the first.”[35]

One thing is clear from this survey of the St. Moritz rule: the Fifth District was eminently correct when it observed that “[a]lthough this ‘general rule’ appears simple enough, its application is far from simple.”[36]

Alas, the St. Moritz rule has one other important contour: the limitation on the scope of appellate review. A litigant who misses the deadline to appeal an original order but timely invokes the jurisdiction of the appellate court as to an amended order falling within the “substantial amendment” silo does not always obtain a complete review on the merits. This is because the St. Moritz rule also provides that when an appeal is taken from an amendment considered material for the rule’s purposes, the appeal is “limited to the amended portions of the judgment and does not call up for review errors in the original.”[37] If the issue sought to be reviewed was resolved in the original order and was not materially altered in the amendment, appellate review of that issue may be lost forever if a party does not invoke the jurisdiction of the appellate court within 30 days of rendition of the original order.[38] This is so even when the appellate court believes that issue has merit.[39]

Why Is This Important?

Although its application might be narrow, the significance of this special rule cannot be overstated. This is because the deadline to initiate appellate review is jurisdictional — if it passes, an appellate court’s jurisdiction is defeated forever.[40] Courts are generally powerless to rescue would-be appellants by extending, either sua sponte or by agreement of the parties, the deadline to appeal,[41] provided the order sought to be reviewed was timely received.[42] An appellate court will dismiss an untimely appeal regardless of whether the opposing party moves to dismiss the appeal as untimely.[43]

The ostensible severity of this result serves an important purpose in our justice system: finality. As our courts have long acknowledged, “[t]he importance of finality in any justice system…cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end.”[44] Because the deadline to seek appellate review — unlike many other litigation deadlines — cannot be extended, all practitioners should familiarize themselves with the nuances involved in calculating this deadline to effectively protect their client’s right to meaningful appellate review.

What to Do?

Until an appellate court tells you whether you were right or wrong in your decision about whether a modification is substantive, you really don’t know the answer. So in an abundance of caution, experienced appellate practitioners recommend appealing both the original order and the modified one. As an inexpensive insurance policy of sorts (i.e., another filing fee), appealing both orders permits preservation of all issues baked into them. A simple procedural solution for avoiding two separate appellate proceedings is to then immediately seek consolidation of the two appeals from the appellate court for all purposes.


As (hopefully) demonstrated by this brief analysis, assessing the time a party has to contemplate the significant choice of whether to seek appellate review does not always involve a simple calculation or reference to a calendar. And because the deadline to seek review is jurisdictional, the consequences of making an error in this calculation can be any practitioner’s worst nightmare. At the least, this article will have exposed the existence of this nuanced rule and, in the words of G.I. Joe, knowing is half the battle.

[1] See, e.g., Fla. R. App. P. 9.100(c), (d); 9.110 (b), (c); 9.120(b); 9.130(b); 9.140(b)(3); 9.180(b)(3). But see, e.g., 9.140(c)(3) (state has 15 days to appeal certain adverse decisions in criminal case).

[2] The date an order is recorded, if at all, does not affect the time in which to seek appellate review. Cf. Dominguez v. Barakat, 609 So. 2d 664, 665 n.1 (Fla. 3d DCA 1992).

[3] Fla. R. App. P. 9.020(i).

[4] St. Moritz, 249 So. 2d at 28.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 30.

[13] Id. at 29.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] See, e.g., B.R. v. Dep’t of Children & Families, 175 So. 3d 388, 389 (Fla. 1st DCA 2015) (applying the rule in dependency context); Cocktails Plus v. Dep’t of Bus. & Prof’l Regulation, 958 So. 2d 1154 (Fla. 1st DCA 2007) (administrative context); State v. Carney, 393 So. 2d 609 (Fla. 4th DCA 1981) (dismissing state’s appeal from order of discharge under speedy trial rule for lack of jurisdiction, citing St. Moritz).

[19] Commonwealth Land Title Ins. Co. v. Freeman, 884 So. 2d 164, 168 (Fla. 2d DCA 2004).

[20] Duval, 414 So. 2d at 556.

[21] This assumes the earlier order is an appealable order; the rule does not come into play until an appealable order has been rendered. See, e.g., Cocktails Plus v. Dep’t of Bus. & Prof’l Regulation, 958 So. 2d 1154 (Fla. 1st DCA 2007) (discharging order to show cause because earlier order “was not final and therefore did not start the time to file a notice of appeal”); State v. Brown, 629 So. 2d 980, 980-81 (Fla. 5th DCA 1993) (explaining court minutes that have been signed and filed constituted rendered order sufficient to confer jurisdiction to appellate court).

[22] Churchville v. Ocean Grove R.V. Sales, Inc., 876 So. 2d 649, 651 (Fla. 1st DCA 2004); see also S/G Constr., Inc. v. Bd. of Trs. of OkaloosaWalton Cmty. Coll., 857 So. 2d 373, 374 (Fla. 1st DCA 2003).

[23] See, e.g., Yellow Cab Co. v. Ewing, 225 So. 3d 302, 303 (Fla. 3d DCA 2017) (amendment correcting party name does not toll time); Rice v. Freeman, 939 So. 2d 1144, 1146 (Fla. 3d DCA 2006) (“Here, the court’s second order did no more than correct a clerical error the title of the judgment and in no manner changed the rights or obligations of the parties.”); Commonwealth Land Title Ins. Co. v. Freeman, 884 So. 2d 164, 168 (Fla. 2d DCA 2004) (“In the amended final judgment, the trial court simply corrected ‘prime’ to ‘priming’ and altered the font in a footnote. These changes did not disturb, revise, or further clarify any legal rights.”); DeGale v. Krongold, Bass & Todd, 773 So. 2d 630, 632 (Fla. 3d DCA 2000) (amendment correcting name of personal representative of estate and deleting the words “so as to add a corporate plaintiff” does not toll time); Borja v. Nationsbank of Fla., N.A., 698 So. 2d 280, 281 (Fla. 3d DCA 1997) (amending case caption not material); Betts v. Fowelin, 203 So. 2d 630, 632 (Fla. 4th DCA 1967) (dismissing appeal as untimely where “the corrected final judgment merely changed the amount of the final judgment from $63,600 to $63,660. Only a clerical error was corrected. The assignments of error were not directed to this $60 item but, instead, alleged trial errors leading to the original judgment”).

[24] Duval, 414 So. 2d at 556.

[25] Id.

[26] Sun Harbor, 95 So. 3d at 265.

[27] Id.

[28] Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973, 975 (Fla. 4th DCA 2003).

[29] Friedman v. Friedman, 825 So. 2d 1010 (Fla. 4th DCA 2002).

[30] Wetherington v. Minch, 637 So. 2d 967, 967 (Fla. 5th DCA 1994).

[31] Daytona Migi Corp. v. Daytona Automotive Fiberglass, Inc., 417 So. 2d 272, 273 (Fla. 5th DCA 1982).

[32] Swierk v. Swierk, 236 So. 3d 365 (Fla. 2d DCA 2017).

[33] Caldwell, 980 So. 2d at 1229.

[34] Id.

[35] Id. at 1231 (Polston, J., dissenting) (first citing Watkins Eng’rs & Constructors v. Wise, 698 So. 2d 294 (Fla. 1st DCA 1997), then citing Fla. Stat. §440.12(5)(b) (2007)).

[36] First Cont’l Corp. v. Khan, 605 So. 2d 126, 129 (Fla. 5th DCA 1992).

[37] Caldwell, 980 So. 2d at 1229 (citing Beal Bank S.S.B., Inc. v. Sherwin, 829 So. 2d 961 (Fla. 4th DCA 2002); and First Cont’l Corp. v. Khan, 605 So. 2d 126 (Fla. 5th DCA 1992)); see, e.g., Dept. of Children & Families v. Mcshea, 913 So. 2d 722, 723 n.1 (Fla. 5th DCA 2005) (allowing review of only issues contained in amended order); DeGale v. Krongold, Bass & Todd, 773 So. 2d 630, 632 (Fla. 3d DCA 2000) (dismissing appeal as untimely and noting that appellant only challenged errors contained in the original order).

[38] The Second District has also recognized there might be unusual circumstances in which issues sought to be raised in an untimely appeal may nevertheless be included in the scope of review from a subsequent final order. Panopoulos v. Panopoulos, 155 So. 3d 1230, 1231 (Fla. 2d DCA 2015) (citing Fla. R. App. P. 9.110(h)).

[39] First Cont’l Corp. v. Khan, 605 So. 2d 126, 130 (Fla. 5th DCA 1992) (“Although such a limitation forecloses relief on an issue we believe has merit in the present case, it is not an unfairly prejudicial limitation to an appellant, like Tenant in this case, who had the opportunity to timely appeal the judgment that affected it adversely but elected not to do so.”).

[40] Fla. Stat. §59.081; Capone v. Philip Morris USA, Inc., 116 So. 3d 363, 369 (Fla. 2013) (“It is well-established that a notice of appeal must be timely filed with the appropriate court for jurisdiction to be conferred upon an appellate tribunal.”); State ex rel. Cantera v. Dist. Court of Appeal, Third Dist., 555 So. 2d 360 (Fla. 1990) (granting prohibition directing intermediate appellate court to dismiss untimely appeal for lack of jurisdiction); Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927, 929 (Fla. 3d DCA 2016).

[41] Fla. R. Civ. P. 1.090(b); Salinger v. Salinger, 100 So. 2d 393 (Fla. 1958) (trial court order amending final decree, per stipulation of the parties, to provide for a different effective date did not suspend rendition of the original order and postpone the time for taking appeal); Thigpen v. Ash, 45 So. 3d 547, 548 (Fla. 1st DCA 2010) (lower tribunal cannot extend deadline to file notice of appeal); Thomas v. Smith, 961 So. 2d 1056, 1057 (Fla. 1st DCA 2007) (lower tribunal cannot extend deadline to file motion for rehearing); Int’l Studio Apartment Ass’n v. Sun Holiday Resorts, Inc., 375 So. 2d 335, 336 (Fla. 4th DCA 1979) (deadline to file notice of appeal cannot be extended by agreement of parties). A narrow exception to this general principle exists in criminal appeals. See Fla. R. App. P. 9.141(c) (petitions seeking belated appeal or belated discretionary review).

[42] Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So. 2d 267, 269 (Fla. 3d DCA 2006) (“[W]here a litigant does not receive a final order until after the appeal time has run, the litigant is entitled to have the order reentered so as to allow the filing of a timely motion for rehearing or a notice of appeal.”).

[43] See, e.g., Free Unitholders of Outdoor Resorts at Orlando, Inc. v. Outdoor Resorts of Am., Inc., 460 So. 2d 382, 383 (Fla. 2d DCA 1984); Hawks v. Walker, 409 So. 2d 524, 525 (Fla. 5th DCA 1982).

[44] The Balmoral Condo. Ass’n v. Grimaldi, 107 So. 3d 1149, 1151 (Fla. 3d DCA 2013) (quoting Witt v. State, 387 So. 2d 922, 925 (Fla. 1980)).

CHANCE LYMAN is an associate in the Tampa office of Buchanan Ingersoll & Rooney, PC, and part of the firm’s appellate practice group. Graduating from Florida State University College of Law in 2013, he clerked for Judge Marva Crenshaw at Florida’s Second District Court of Appeal before joining Buchanan.

This column is submitted on behalf of the Appellate Practice Section, Sarah Lahlou-Amine, chair, and Thomas Seider, editor.

Appellate Practice