MINERVA C. TIECHE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF THOMAS D. TIECHE, DECEASED, APPELLANT,
v.
FLORIDA PHYSICIANS INSURANCE RECIPROCAL, A FLORIDA CORPORATION, JAMES W. ANTOON, D.D.S., LOUIS C. JENSEN, JR., M.D., PAT HAGGERTY, MARY FLEMING, ANTHONY MINEN AND COUNTY OF BREVARD, FLORIDA, APPELLEES
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The Fifth District Court of Appeal dismissed an appeal from an order setting aside a default against a defendant physician, holding that such an order is non-final and not appealable under Florida appellate rules regardless of the grounds asserted in the motion.
An order setting aside a simple default entered under Rule 1.500(d) is a non-final, non-appealable order. Rule 1.540(b) applies only to final judgments, decrees, orders, or proceedings, not to interlocutory orders setting aside simple defaults. The trial court's decision to grant the motion does not become appealable merely because the movant argued it should be granted under Rule 1.540(b).
[1] An order setting aside a default, but not a default judgment, is a non-final order and is generally not appealable.
[2] A default may be set aside under Florida Rule of Civil Procedure 1.500(d).
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“Because Rule 1.540(b) is applicable only to final orders, it does not apply to an interlocutory order setting aside a simple default.”
Establishes the core holding that Rule 1.540(b) cannot be used to challenge orders setting aside simple defaults because those orders are interlocutory, not final.
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Join FLexlaw to unlock all legal intelligenceAppellant filed a damages action against Dr. Louis Jensen and others. Jensen failed to file an answer or plead within the prescribed time, and the cle…
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ORFINGER, Chief Judge.
This appeal is from an order of the trial court setting aside a default entered by the Clerk of the trial court against appellee Jensen. Appellee moves to dismiss the appeal on the ground that the order appealed from is a non-final order and is not among those non-final orders which may be appealed under Florida Rule of Appellate Procedure 9.130(a)(3). We agree, and dismiss the appeal.
Appellant, as plaintiff, filed an action for damages against appellee Louis Jensen, Jr., M.D., and others. When Jensen did not file an answer or otherwise plead within the prescribed time after service of process, the clerk of the court entered a default against him pursuant to the provisions of Florida Rule of Civil Procedure 9.500(a). He moved to set aside the default, and the motion was granted. No judgment had been entered against Jensen at the time the trial court granted his motion to set aside the default.
Appellant contends that the order is appealable because appellee Jensen, in presenting his motion to the trial court, relied on the provisions of Fla.R.Civ.P. 1.540(b), and orders entered under that rule are appealable. Fla.R.App.P. 9.130(a)(5). A discussion of the applicability and effect of the various rules is required. A simple default (as opposed to a default judgment) may be set aside under Fla.R. Civ.P. 1.500(d), which says:
(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).
On the other hand, Rule 1.540(b)1 by its terms clearly applies to final judgments, decrees, orders or proceedings. Because Rule 1.540(b) is applicable only to final orders, it does not apply to an interlocutory order setting aside a simple default. This view is supported by the language of Rule 1.500(d) when it says: “. .. and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with Rule 1.540(b).” This is so notwithstanding the fact that the grounds supporting a 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 and Training Administration v. Community Partnership Program, Inc., 422 So. 2d 1101 (Fla. 4th DCA 1982). The fact that appellee may have argued to the trial court that he was entitled to relief under Rule 1.540 would not make it so, and there is nothing in the order or in the transcript of proceedings to conclude that the trial court relied on that rule.
Because the appeal is taken from a non-appealable, non-final order, we have no jurisdiction.
The appeal is DISMISSED.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur. . Rule 1.540(b):
“On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, decree, order or proceeding for the following reasons: ...”
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Cited By (13 total)
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Bruno v. A.E. Handy & Assocs., Inc., 787 So. 2d 251 (Fla. 5th DCA 2001)…t A.E. Handy & Associates, Inc. Although the order is captioned as a default judgment, in reality it was merely a “simple default” entered pursuant to rule 1.500(b), rather than a “default judgment.” See Tieche v. Florida Physicians Ins. Reciprocal, 431 So. 2d 287 (Fla. 5th DCA 1983). See also Moreno Const., Inc. v. Theys Const. Co., 722 So. 2d 976 (Fla. 5th DCA 1999) (trial court properly entered initial default against corporation pursuant to rule 1.500(b) because responsive pleading was not timely filed).…
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Weaver v. Sch. Bd. OF Leon Cnty., 946 So. 2d 1184 (Fla. 1st DCA 2006)…of May 5, 2006, and July 18, 2006, the Court has determined that the September 20, 2005, “Order on Plaintiffs Motion for an Immediate Hearing on ‘Pending’ Motions,” is not an appealable order. See generally Tieche v. Fla. Physicians Ins. Reciprocal, 431 So. 2d 287 (Fla. 5th DCA 1983)(holding that Florida Rule of Civil Procedure 1.540(b), which authorizes relief from final judgments or orders is applicable only to final orders). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. BROWNING,…
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Kolb v. Fla. Fruit & Vegetable Ass'n, Inc., 718 So. 2d 957 (Fla. 5th DCA 1998)…there is an adequate remedy by plenary appeal at the conclusion of the case, certiora-ri review is generally also not available. Collins v. Penske Truck Leasing, 668 So. 2d 343 (Fla. 5th DCA 1996); Tieche v. Florida Physicians Insurance Reciprocal, 431 So. 2d 287 (Fla. 5th DCA 1983). Accordingly we dismiss this appeal for lack of jurisdiction. Appeal DISMISSED. HARRIS and ANTOON, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yates v. Roller Skating Rinks Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980)
- Broward Employment and Training Administration v. Cmty. P'ship Program, Inc., 422 So. 2d 1101 (Fla. 4th DCA 1982)