DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

PRO-KARTING EXPERIENCE, INC.,

a Florida for-profit corporation,

Petitioner,

v.

34TH STREET, LLC,

a Florida limited liability company,

Respondent.

No. 2D22-2577

January 12, 2024

Petition for Writ of Certiorari to the Circuit Court for Pinellas County; 

Thomas M. Ramsberger, Judge.

Brandon T. Holmes of Dinsmore & Shohl LLP, Tampa; Jason S. Lambert 

and Tyler C. Troyer of Hill, Ward & Henderson, P.A., Tampa (withdrew 

after briefing); and Jay L. Farrow of Farrow Law P.A., Coral Gables 

(substituted as counsel of record), for Petitioner.

Walter Sowa, III of The Law Office of Walter Sowa, III, PL, Bradenton, for 

Respondent.

SILBERMAN, Judge.

In this dispute involving a commercial lease, 34th Street, LLC (the 

Landlord), filed an eight-count complaint against Pro-Karting Experience, 

Inc. (the Tenant). The Tenant seeks certiorari review of a writ of 

possession entered in favor of the Landlord. The Tenant also seeks 
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review of a prior "Order Granting Plaintiff's Verified Motion for Partial 

Summary Judgment for failure to Pay Property Taxes" (the Order), which 

directs the Tenant to pay $104,409.75; however, the parties dispute 

whether this court has jurisdiction to review that order. We conclude 

that we lack jurisdiction to review the Order because the petition was 

untimely filed and that the challenge to the writ of possession has 

become moot by a subsequent order. Therefore, we dismiss the Tenant's 

petition for writ of certiorari. 

On May 10, 2022, the trial court issued the Order, and the Tenant 

filed a motion for rehearing. Subsequently, the Landlord filed a "Motion 

for Contempt, Eviction, and Entry of Judgment for Failure to Pay 

Property Taxes Pursuant to Court Order" (Motion for Contempt). The 

Landlord also sought a writ of possession. On August 8, 2022, the 

Tenant filed its Emergency Motion to Stay Issuance of Writ of Possession 

(Motion to Stay) and sought to have it heard on an emergency basis. The 

trial court did not address the Motion to Stay before it issued a writ of 

possession on August 9, 2022. The Tenant then filed its certiorari 

petition on August 10, 2022. 

This court granted a provisional stay of the writ of possession until 

the trial court formally ruled on the pending Motion to Stay. After a 

hearing, the trial court granted the Motion to Stay in an order rendered 

on August 22, 2022. In doing so, the trial court acknowledged that the 

Tenant had deposited $117,026.53 into the court registry. On 

reconsideration, the trial court denied the Motion for Contempt and the 

Landlord's requests for a writ of possession without prejudice to the 

Landlord's ability to seek such a writ "on different grounds at a later 

date." Based on its ruling, the trial court declared that "the Writ of 
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Possession dated August 9, 2022 is void ab initio and shall have no legal 

effect." 

As the Landlord argued in its response to the certiorari petition, the 

August 22, 2022, order reconsidering the request for a writ of possession 

and declaring the writ of possession void ab initio rendered the challenge 

to the writ of possession moot. The Tenant has not disputed the 

Landlord's argument on this point. Therefore, as to the writ of 

possession, we dismiss the Tenant's certiorari petition as moot. 

Turning to the Order granting partial summary judgment, the 

Landlord filed its motion for partial summary judgment on count four 

which alleged breach of the parties' lease for failure to pay property taxes 

and count seven for eviction. The Tenant raised numerous affirmative 

defenses, including setoff of damages. The Order directed the Tenant to 

pay the property taxes to the Landlord by a date certain but specifically 

acknowledged remaining judicial labor on the case. 

The Tenant contends that the Order must be treated as a final 

order subject to rehearing and appeal. Because the Order directs the 

Tenant to pay $104,409.75 to the Landlord on or before June 10, 2022, 

the Tenant argues that the Order has the attributes of a final order and 

should be treated as a money judgment. The Tenant asserts that it has 

no ability to challenge the monetary judgment if it is not treated as a 

final order. 

The Landlord argues that the Order is nonfinal and that the 

Tenant's motion for rehearing did not suspend rendition of the Order 

filed on May 10, 2022; thus, the petition for certiorari filed on August 10, 

2022, is untimely, and this court lacks jurisdiction to review the Order. 

The Tenant did not file a reply to the Landlord's response. We agree with 
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the Landlord that the petition was not timely filed and that we lack 

jurisdiction to review the Order. 

East Avenue, LLC v. Insignia Bank, 136 So. 3d 659 (Fla. 2d DCA 

2014), which the Tenant relies upon, does not control the outcome here. 

In East Avenue, this court treated a direct appeal from an amended 

summary judgment for damages on some counts of a multi-count 

complaint as a certiorari proceeding. Id. at 660-61. Because there were 

pending counts that were factually and legally interrelated, the judgment 

was not final or appealable "under traditional rules of finality." Id. at 661 

(citing S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)). The 

"wrinkle" in East Avenue was that the judgment had "language 

authorizing execution." Id. Therefore, a "strict application of the S.L.T. 

Warehouse finality criteria would leave East Avenue exposed to 

enforcement of the judgment at a time when it cannot obtain review of it 

and, importantly, it cannot shield its assets from execution by posting an 

appellate supersedeas bond." Id. 

This court reasoned "that certiorari is available to review the form 

of an order, if not its underlying merits, insofar as it permits execution 

prior to rendition of an appealable final judgment." Id. at 664; see also 

Mohler v. Elliott, 332 So. 3d 1120, 1121-22 (Fla. 2d DCA 2022) (same). 

Because the summary judgment order in East Avenue "permitted 

execution prior to rendition of a truly appealable final judgment in the 

case," this court determined that certiorari relief was appropriate. 136 

So. 3d at 665; see also Team Richco, LLC v. Rapid Sec. Sols., LLC, 290 So. 

3d 629, 631 (Fla. 2d DCA 2020) (quashing a partial summary judgment 

that allowed execution but not reaching the merits because, " 'under 

traditional rules of finality,' the partial summary judgment was not final 

or appealable" (quoting E. Ave., 136 So. 3d at 661)); Innovision Prac. Grp., 
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P.A. v. Branch Banking & Tr. Co., 135 So. 3d 501, 502 (Fla. 2d DCA 2014) 

(relying upon East Avenue and noting that certiorari review was available 

because"[t]he partial final judgment included the language 'for all of 

which sums let execution issue' ").

Here, the Order does not contain the language "for all of which 

sums let execution issue" or similar wording that allowed for certiorari 

review in the cases cited above. Although the Order directs the Tenant to 

pay the Landlord by a date certain, the Order states that it is granting a 

motion for partial summary judgment and does not contain language 

authorizing execution on a judgment. Thus, the present case is 

distinguishable from East Avenue and its progeny. 

In addition, the trial court here specifically contemplated further 

judicial labor. For example, the Order states the following: "This ruling is 

without prejudice to the [Tenant]'s right to seek any setoffs that may be 

adjudicated later. This Order does not make any decision as to whether 

to allow or deny any setoffs." Thus, judicial labor remains, and the Order 

is clearly a nonfinal order. See Dep't of Bus. & Pro. Regul. v. Fla. Ass'n of 

Wholesale Distribs., Inc., 198 So. 3d 981, 984 (Fla. 2d DCA 2016) ("Here, 

the circuit court's order clearly articulates further judicial labor to be 

performed in the future and, therefore, remains a nonappealable, 

nonfinal order."). 

Further, East Avenue, Mohler, Team Richco, and Innovision did not 

involve any issue relating to the effect of a motion for rehearing on the 

timeliness of a party's attempt to obtain review of an order. "The 

characterization of an order on review as final or non-final has 

jurisdictional consequences." Guglielmi v. Guglielmi, 324 So. 3d 554, 

556, 557 (Fla. 1st DCA 2021) ("Because that [temporary] modification 

order is not a final order, even our recharacterizing the subsequent 
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motion to vacate as a motion for rehearing would be of no help to the 

former wife."). Only "authorized and timely filed" motions for rehearing 

can toll rendition of an order. Fla. R. App. P. 9.020(h)(1)(B). When a 

motion for rehearing is directed to a nonfinal order, it "is not an 

authorized motion." Guglielmi, 324 So. 3d at 557 (citing Wagner v. 

Bieley, Wagner & Assocs., 263 So. 2d 1, 4 (Fla. 1972)). 

A petition for writ of certiorari "shall be filed within 30 days of 

rendition of the order to be reviewed." Fla. R. App. P. 9.100(c)(1). "[A]n 

untimely petition for writ of certiorari is ineffective to confer jurisdiction 

on the appellate court." Caldwell v. Wal-Mart Stores, Inc., 980 So. 2d 

1226, 1228 (Fla. 1st DCA 2008). The Tenant has pointed us to no rule 

that tolls rendition based on a motion for rehearing of a nonfinal order 

for which certiorari relief is sought. 

Therefore, the petition filed approximately three months after the 

Order was rendered is untimely, and this court lacks jurisdiction to 

review the Order in this certiorari proceeding. We note that if for any 

reason this challenge to the Order were considered the appeal of a 

nonfinal order under Florida Rule of Appellate Procedure 9.130, the 

motion for rehearing likewise does not toll rendition of the Order. See 

Guglielmi, 324 So. 3d at 557 (reiterating that "a motion for rehearing 

directed to a non-final order is not an authorized motion and 'cannot 

operate to toll the time for filing an interlocutory appeal' " (quoting 

Wagner, 263 So. 2d at 4)). Thus, as to the Order, we dismiss the petition 

for lack of jurisdiction as untimely filed. 

Dismissed in part as moot; dismissed in part as untimely filed.

LaROSE and ATKINSON, JJ., Concur.
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Opinion subject to revision prior to official publication.