OTIS R. PEAVY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARTHA L. PEAVY, DECEASED, AND OTIS R. PEAVY, INDIVIDUALLY, APPELLANT,
v.
REED PARRISH AND WAYNE PARRISH, APPELLEES
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Otis Peavy, as personal representative of his deceased wife's estate, appealed the denial of his motions to dismiss and transfer venue in a suit filed by the decedent's sons seeking to enforce an alleged oral promise and impose a constructive trust on real estate. The court affirmed, holding that the motion to dismiss was not appealable and that venue was properly laid in Broward County where the property was located.
The court held that the order denying the motion to dismiss was not appealable under Florida Rule of Appellate Procedure 9.130 because such an order is non-final. Additionally, venue was properly laid in Broward County because the general venue statute applies to the independent action, the real property at issue is located in Broward County, and the plaintiff-appellees had the right to select that county for venue purposes.
[1] An order denying a motion to dismiss for failure to state a cause of action is a non-final order and is not appealable.
[2] When an independent action is filed under § 733.705(3), Florida Statutes, and the statute does not specify venue, the general venue statute applies.
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Join FLexlaw to unlock all legal intelligence“An order denying such a motion is a non-final order. The applicable rule, Rule 9.130, Florida Rules of Appellate Procedure, does not permit an appeal of such an order.”
Establishes that the motion to dismiss order is non-appealable as a matter of law.
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Join FLexlaw to unlock all legal intelligenceThe decedent's sons filed a claim against the estate in probate proceedings in Broward County. The surviving spouse, as personal representative, objec…
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HERSEY, Judge.
Appellees filed a claim against the estate of their deceased mother in probate proceedings in Broward County, Florida. The surviving spouse of the decedent, as personal representative of the estate, filed an objection to the claim.
A complaint was then filed in the Circuit Court in Broward County seeking to enforce an alleged oral promise of the decedent. One form of relief sought was the imposition of a constructive trust on decedent’s real estate located in Broward County-
Appellant countered with motions to transfer venue and to dismiss the complaint. The motions were denied and this appeal followed.
The motion to dismiss asserted failure of the complaint to state a cause of action. An order denying such a motion is a non-final order. The applicable rule, Rule 9.130, Florida Rules of Appellate Procedure, does not permit an appeal of such an order. E. E. Dean Suavely, Inc. v. Weatherking, Incorporated, 359 So. 2d 35 (Fla. 4th DCA 1978).
The motion to transfer venue asserts that suit must be brought in the county of appellant’s residence. Venue of the probate proceedings was properly laid in the county of decedent’s last residence, Broward County. § 733.101, Fla.Stat. (1979). However, the statutory provision under which appellees filed this independent action does not refer to venue. § 733.705(3) Fla.Stat. (1979). Therefore, the general venue statute applies. § 47.011 Fla.Stat. (1979).
Plaintiffs, appellees here, have certain limited options in selecting venue. Their election controls, unless venue will not lie in that place. Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So. 2d 730 (Fla. 4th DCA 1975). The complaint seeks to impose a constructive trust on decedent’s condominium. This real property is located in Broward County. The venue statute clearly permits plaintiff-appellee to select that county for venue purposes. Appellant has therefore failed to show either that venue will not lie in Broward County or that venue should be changed for some good reason. Florida Forms, Inc., supra.
Accordingly, we affirm.
AFFIRMED.
ANSTEAD and GLICKSTEIN, JJ., concur.
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Seigle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982)…At the same time appellants seek review of an order denying their motion to dismiss the complaint. That order is not properly appealable until after final judgment. Habelow v. Travelers Ins. Co., 389 So. 2d 218 (Fla. 5th DCA 1980); Heavy v. Parrish, 385 So. 2d 1034 (Fla. 4th DCA 1980). See Rule 9.130, Florida Rules of Appellate Procedure. This action was commenced to enforce certain rights under Florida’s Public Records Act, Chapter 119, Florida Statutes (1981). Appellees, professional economists, are retaine…
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Ruppel v. Gulf Winds Apts., Inc., 508 So. 2d 534 (Fla. 2d DCA 1987)…motion to dismiss should have been granted. Condo Association responds that an order denying a motion to dismiss is not appealable. We agree and decline to address this issue on the ground that we are without jurisdiction to do so. Peavy v. Parrish, 385 So. 2d 1034 (Fla. 4th DCA 1980). Although Developers maintain that under Florida Rule of Appellate Procedure 9.110(h), one final order in the case allows the court to review all earlier nonfinal orders, that Rule anticipates that the court has entered a final j…
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Maxwell Dauer and Reva B. Dauer v. Freed, 444 So. 2d 1012 (Fla. 3d DCA 1984)…2d 63 (Fla. 4th DCA 1982) (order denying defendant’s motion to dismiss not appealable); Lliteras v. Lliteras, 413 So. 2d 859 (Fla. 4th DCA 1982) (same); Habelow v. Travelers Insurance Co., 389 So. 2d 218 (Fla. 5th DCA 1980) (same); Peavy v. Parrish, 385 So. 2d 1034 (Fla. 4th DCA 1980) (same); Vaneo Construction, Inc. v. Nucor Corporation, 378 So. 2d 116 (Fla. 5th DCA 1980) (order denying defendant’s motion for summary judgment not appealable); State Farm Mutual Automobile Insurance Company v. Morris, 370 So. 2…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Forms, Inc. v. Barkett Computer Servs., Inc., 311 So. 2d 730 (Fla. 4th DCA 1975)
- Southworth v. Maher, 359 So. 2d 35 (Fla. 4th DCA 1978)