JOHN PRAET, APPELLANT,
v.
RUTH MARTINEZ, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Praet appealed a non-final trial court order setting aside a default entered by the clerk. The Third District Court of Appeal dismissed the interlocutory appeal for lack of jurisdiction, holding that orders vacating defaults are not reviewable on interlocutory appeal under the new Florida Rules of Appellate Procedure.
The court lacks jurisdiction to consider the interlocutory appeal because orders setting aside defaults are not among the non-final orders specified in Fla.R.App.P. 9.130(a) as reviewable on interlocutory appeal.
[1] An order setting aside a clerk's default, but before a final judgment consequent thereon, is not an appealable non-final order under the Florida Rules of Appellate Proced…
[2] Interlocutory appeals are limited to the non-final orders specifically enumerated in Fla. …
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Only the non-final orders specified in Fla. R.App.P. 9.130(a) are reviewable on interlocutory appeal.”
Establishes the fundamental jurisdictional requirement for interlocutory appeals.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe trial court clerk entered a default against the appellant. The trial court subsequently issued an order setting aside that default under Fla.R.Civ…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Setting Aside Default cases and more on FLexlaw
[*658] SCHWARTZ, Judge.
The appellant seeks review of a non-final order of the trial court which set aside, under Fla.R.Civ.P. 1.500(d), a default entered by the clerk as provided in Fla.R. Civ.P. 1.500(a). We conclude that this court lacks jurisdiction to consider this proceeding under the “new” rules of appellate procedure, effective March 1,1978, and therefore dismiss the interlocutory appeal.
Only the non-final orders specified in Fla. R.App.P. 9.130(a) are reviewable on interlocutory appeal. See Vista View Apartments v. Hardrives Co., 364 So. 2d 494 (Fla.4th DCA 1978). The order in question here is not one of them. Since no final default judgment, as opposed to the simple default involved in this case, had been entered below, the order does not fall within Fla.R. App.P. 9.130(a)(4) which states:
“ . . . Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.” [emphasis supplied]
Nor is the order involved here reviewable under Fla.R.App.P. 9.130(a)(5) as one which was “entered on [motion] filed pursuant to Fla.R.Civ.P. 1.540 ...” This is so because Fla.R.Civ.P. 1.500(d) states:
“(d) Setting Aside Default. The court may set aside a default and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with Rule 1.540(b).” [emphasis supplied]
Our conclusion of non-reviewability is strengthened by contrasting the present rule with the provisions of the former interlocutory appeal rule, F.A.R. 4.2, which specifically provided that it applied to “orders granting or denying motions to vacate defaults.” Furthermore, it is in accordance with the avowed policy of the new rules severely to limit the number and type of appealable non-final orders. Particularly in view of that policy, moreover, we decline to treat this proceeding as an application for common law certiorari under Fla.R.App.P. 9.100(a).1 The interlocutory appeal is therefore
Dismissed.
. As is said in the 197J advisory committee and court’s commentary to Rule 9.130:
“ . it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since the most urgent interlocutory orders are appealable under this rule, there will be very few cases where common law certiorari will provide relief . . . ”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
-
Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)…iew,” 392 So. 2d at 1006, and concurred with the decisions in Moody v. Moody, 371 So. 2d 553 (Fla. 2d DCA 1979), and Caribbean Agencies. In Moody and Caribbean Agencies, the second and third district courts held that the ruling in Praet v. Martinez, 367 So. 2d 657 (Fla. 3d DCA 1979), that the granting of a motion to vacate is not appealable, is also applicable where the order in question is one denying a motion to vacate. We do not agree. In holding that orders granting a motion to vacate default are not rev…
-
Leibman v. Sportatorium, Inc., 374 So. 2d 1124 (Fla. 4th DCA 1979)…PER CURIAM. This petition for common law certiorari seeks to review an order setting aside a default entered by the Clerk after defendant failed to timely respond to plaintiff’s complaint. For reasons set forth in Praet v. Martinez, 367 So. 2d 657 (Fla. 3d DCA 1979), the petition for certiorari is denied. Even assuming the trial court’s order vacating default to be a departure from the essential requirements of law, there appears no injury which cannot be remedied by appeal after final judgme…
-
Yates v. Roller Skating Rinks Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980)…s deletion. The order in this case was not entered pursuant to Florida Rules of Civil Procedure 1.540(b), nor did the order set aside a final judgment as opposed to a simple default.2 It is not reviewable by interlocutory appeal. Praet v. Martinez, 367 So. 2d 657 (Fla. 3d DCA 1979); Sec. Motors v. Fiat Motors of North America, 373 So. 2d 396 (Fla. 1st DCA 1979). See also Moody v. Moody, 371 So. 2d 553 (Fla. 2d DCA 1979). Absent an extraordinary situation not posed by this case, this kind of order is also not…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vista View Apts. v. Hardrives Co., 364 So. 2d 494 (Fla. 4th DCA 1978)