JOYCE A. YATES, APPELLANT,
v.
ROLLER SKATING RINKS INCORPORATED, A FLORIDA CORPORATION D/B/A PIRATES COVE SKATING CENTER, APPELLEE
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The Florida appellate court dismissed an interlocutory appeal of an order setting aside a default judgment, holding that such orders are not reviewable by interlocutory appeal under the current Appellate Rules, despite being reviewable under prior rules.
An order setting aside a default that does not set aside a final judgment pursuant to Florida Rule of Civil Procedure 1.540(b) is not reviewable by interlocutory appeal under Rule 9.130, and the court declined to exercise common law certiorari jurisdiction.
[1] An order setting aside a default is not generally reviewable by interlocutory appeal under Rule 9.130 of the Florida Rules of Appellate Procedure.
[2] The omission of orders regarding defaults from the list of reviewable non-final orders in Rule 9.130 of the Florida Rules of Appellate Procedure indicates an intentional…
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Join FLexlaw to unlock all legal intelligence“The omission of orders regarding defaults from Rule 9.130 must have been intentional. To include them as one of the categories of orders generally reviewable by interlocutory appeal by judicial construction would do violence to an obvious deletion.”
Establishes that the court interpreted the absence of default orders from Rule 9.130 as a deliberate policy choice, not an oversight, and refused judicial construction to expand appellate jurisdiction.
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Join FLexlaw to unlock all legal intelligenceJoyce A. Yates filed a motion for default against Roller Skating Rinks Inc. for failure to file responsive pleadings timely. The trial court entered a…
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SHARP, Judge.
The plaintiff, Joyce A. Yates, filed a Motion for Default against the defendant in a civil action seeking damages. The basis for the default was failure of the defendant to file responsive pleadings timely. The trial court entered a default against the defendant on August 14, 1979, pursuant to Rule 1.500(b) of the Florida Rules of Civil Procedure.1 Upon motion and after a hearing the court set aside the default on November 19, 1979 and allowed the defendant to defend the litigation. The plaintiff timely filed a Notice of Interlocutory Appeal of the trial court’s order setting aside the default. The defendant/appellee filed a Motion to Dismiss the interlocutory appeal with this court. We agree with the appel-lee that this appeal should be dismissed.
The jurisdiction of this court is governed by the new Appellate Rules, effective March 1, 1978. Rule 9.130 of the Florida Rules of Appellate Procedure provides interlocutory appeal jurisdiction to review certain kinds of “non-final” orders of lower tribunals, but limits them to those categories specified in the Rule. This kind of interlocutory order is not among those listed by the Rule. The Committee Note to Rule 9.130 volunteers:
. Other non-final orders entered by a lower tribunal after final order are reviewable and are to be governed by this rule. Such orders include, for example, an order granting a motion to vacate default.
The implication is that such non-final orders are reviewable under this Rule, in some circumstances. Clearly they were generally reviewable under prior (but now superseded) Appellate Rule 4.2, which expressly provided: “. . . appeals may be prosecuted . . . from orders granting or denying motions to vacate defaults . . .” (In re Florida Appellate Rules, 211 So. 2d 198 (Fla.1968)). The omission of orders regarding defaults from Rule 9.130 must have been intentional. To include them as one of the categories of orders generally reviewable by interlocutory appeal by judicial construction would do violence to an obvious 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 reviewable by means of petition for common law certiorari, and we decline to treat this appeal as an application for a common law writ of certiorari. Leib-man v. Sportatorium, Inc., 374 So. 2d 1124 (Fla. 4th DCA 1979).
APPEAL DISMISSED.
COBB and UPCHURCH, JJ., concur. . No final judgment had been entered pursuant to Rule 1.500(e), Florida Rules of Civil Procedure.
. Rule 1.500(e) Florida Rules of Civil Procedure.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Minerva C. Tieche v. Fla. Physicians Ins. Reciprocal, 431 So. 2d 287 (Fla. 5th DCA 1983)…motion to set aside a default under Rule 1.500(d) are similar in nature to the grounds for relief under Rule 1.540(b). We have alluded before to the non-ap-pealability of the type of order involved here. Yates v. Roller Skating Rinks, Incorporated, 379 So. 2d 1333 (Fla. 5th DCA 1980). Other district courts which have considered this issue have concluded also that an order setting aside a simple default is entered under Rule 1.500(d) and not under Rule 1.540(b), and is thus non-appeala-ble. Broward Employment…
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Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281 (Fla. 4th DCA 1980)…v. Martinez, 367 So. 2d 657 (Fla. 3d DCA 1979). Security Motors, Inc. v. Fiat Motors of North America, Inc., 373 So. 2d 396 (Fla. 1st DCA 1979); Leibman v. Sportatorium, Inc., 374 So. 2d 1124 (Fla. 4th DCA 1979); Yates v. Roller Skating Rinks, Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980). However, a slightly different question is presented where the motion to set aside the default is denied. The Second District addressed this issue and dismissed an appeal in reliance on Praet v. Martinez, supra, which, as indica…
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Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla. 3d DCA 1981)…side a default, but in which our jurisdiction was apparently not questioned. We find completely distinguishable cases which hold that an order granting a motion to vacate a default is not appealable, see, e. g., Yates v. Roller Skating Rinks, Inc., 379 So. 2d 1333 (Fla.5th DCA 1980); Praet v. Martinez, 367 So. 2d 657 (Fla.3d DCA 1979), since such an order does not determine liability in favor of a party seeking affirmative relief and, therefore, does not activate Rule 9.130(a)(3)(C)(iv). We find unpersuasive…
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
- In re Florida Rules of Civil Procedure, 211 So. 2d 174 (Fla. 1968)
- Praet v. Martinez, 367 So. 2d 657 (Fla. 3d DCA 1979)
- Leibman v. Sportatorium, Inc., 374 So. 2d 1124 (Fla. 4th DCA 1979)
- Moody v. Moody, 371 So. 2d 553 (Fla. 2d DCA 1979)
- Sec. Motors, Inc. v. Fiat Motors OF N. Am., Inc., 373 So. 2d 396 (Fla. 1st DCA 1979)