PEDRO REALTY, INC., APPELLANT,
v.
JESUS M. SILVA AND OLGA SILVA, HIS WIFE, APPELLEES
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This case addresses whether an order denying a motion to vacate a default judgment is appealable. The court holds that such an order is appealable because it determines liability in favor of a party seeking affirmative relief, satisfying the requirements of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).
Yes, an order denying a motion to vacate a default judgment is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) because it determines liability in favor of a party seeking affirmative relief.
“We hold that such an order, because it determines liability in favor of a party seeking affirmative relief, satisfies the jurisdictional requisites of this rule and is appealable.”
Establishes the court's holding regarding the appealability of the order.
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Join FLexlaw to unlock all legal intelligencePedro Realty, Inc. (Appellant) appealed an order denying its motion to vacate a default judgment entered against it. The appellees, Jesus M. and Olga …
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DANIEL S. PEARSON, Judge.
We are asked to decide whether an order denying a motion to vacate a default is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). We hold that such an order, because it determines liability in favor of a party seeking affirmative relief, satisfies the jurisdictional requisites of this rule and is appealable.
We adopt the reasoning found in Judge Hersey’s special concurring opinion1 in Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281 (Fla.4th DCA 1980). We find some further, but slight, support in Overholser v. Overstreet, 383 So. 2d 953 (Fla.3d DCA 1980), a case in which we specifically accepted jurisdiction under Rule 9.130(a)(3)(C)(iv) of an appeal from an order denying a motion to set aside 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 cases which, without any consideration or discussion of Rule 9.130(a)(3)(C)(iv), hold that an order denying a motion to vacate a default is not appealable. See, e. g., Moody v. Moody, 371 So. 2d 553 (Fla.2d DCA 1979).2
The motion to dismiss the appeal is denied.
SCHWARTZ, J., dissents.
. Despite being labeled a concurrence, Judge Hersey’s opinion is, in fact, a dissent.
. As Judge Hersey points out, Praet begat Moody, and Moody begat the majority’s opinion in Caribbean Agencies. Caribbean Agencies is but a continuation of Moody’s misapplication of Praet.
SCHWARTZ, Judge
(dissenting).
I cannot agree that an order which denies a motion to vacate a default is one which, in any meaningful sense, “determines[s] .. . the issue of liability in favor of a party seeking affirmative relief” under Fla.R. App.P. 9.130(a)(3)(C)(iv). It seems to me that the order “determines” only that the defendant-movant has not established his right to have a duly entered default set aside, and that the fact that this ruling has the consequential effect of foreclosing a liability defense does not bring the order within the narrowly-defined and limited class of non-final orders which are subject to interlocutory review. I therefore concur with the decisions in Moody v. Moody, 371 So. 2d 553 (Fla.2d DCA 1979) and Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281 (Fla.4th DCA 1980) that the rationale of Praet v. Martinez, 367 So. 2d 657 (Fla.3d DCA 1979),1 holding that the granting of a motion to vacate is unappealable, applies directly to the present situation. I would dismiss the appeal.
. As the author of Praet, I consider Moody and Caribbean Agencies as its legitimate children, not, as note 2 of the court’s opinion suggests, as offspring of another type.
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)…trial court grossly abused its discretion in failing to set aside the default. Reversed and remanded for proceedings consistent with this opinion. . We have jurisdiction pursuant to Fla.R. App.P. 9.130(a)(3)(C)(iv) and Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla.3d DCA 1981), supreme court review granted, Case No. 60,-396. Contra, Sunny South Aircraft Service, Inc. v. Inversiones, 402 So. 2d 555 (Fla. 4th DCA 1981) (certifying conflict).…
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Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)…ct Court of Appeal, Fourth District, (Doctor’s Hospital of Hollywood, Inc. v. Madison, 404 So. 2d 132 (Fla. 4th DCA 1981)), which is certified to be in direct conflict with a decision of another district court of appeal (Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla. 3d DCA 1981)). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Respondent, Hunter W. Madison (plaintiff below, hereinafter plaintiff), filed a medical mediation claim against petitioner, Doctor’s Hospital of Hollywood, Inc. (defendant be…
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Heritage Paper Co., Inc. v. Farah, 440 So. 2d 389 (Fla. 1st DCA 1983)…ability); American Heritage Institutional Securities, Inc. v. Price, 379 So. 2d 420, 421 (Fla. 5th DCA 1980) (order determining sufficiency [*391] of allegations of class action not a determination of liability). But see Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla. 3d DCA 1981), approved, 411 So. 2d 872 (Fla.1982) (order denying motion to vacate default does determine liability). If, however, an order does nothing more than to allow a cause to “proceed towards a potential liability as yet undetermined, a…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Praet v. Martinez, 367 So. 2d 657 (Fla. 3d DCA 1979)
- Yates v. Roller Skating Rinks Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980)
- Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281 (Fla. 4th DCA 1980)
- Moody v. Moody, 371 So. 2d 553 (Fla. 2d DCA 1979)
- Overholser v. Overstreet, 383 So. 2d 953 (Fla. 3d DCA 1980)