SERVOTECH, INC., APPELLANT,
v.
ATLANTIC CENTRAL CORPORATION, APPELLEE
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Servotech appealed the trial court's denial of its motion for relief from an order granting plaintiff's motion for partial summary judgment on liability in a breach of construction contract case. The appellate court affirmed, holding that a partial summary judgment order is not a final order and therefore is not subject to relief under Florida Rule of Civil Procedure 1.540.
The court held that a partial summary judgment order is not a final order and therefore is not subject to relief under Florida Rule of Civil Procedure 1.540, which applies only to final judgments, decrees, orders, and proceedings. The trial judge's denial of the motion for relief was proper and not an abuse of discretion.
[1] An order granting a motion for partial summary judgment is not a final order and is not subject to appeal.
[2] Florida Rule of Civil Procedure 1.540, which provides relief from judgments, decrees, orders, and proceedings, is applicable only to final judgments, decrees, orders, and…
Previewing 2 of 3 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“No partial summary judgment has ever been entered in this cause. The order granting plaintiff's motion for partial summary judgment was not a final order, Aetna Casualty and Surety Co. v. Meyer, 385 So.2d 10 (Fla.3d DCA 1980), was itself not subject to appeal, and was not subject to relief under Florida Rule of Civil Procedure 1.540, which is applicable only to final judgments, decrees, orders, and proceedings.”
Establishes the core holding that partial summary judgment orders are not final orders subject to Rule 1.540 relief
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff filed a motion for partial summary judgment on liability in a breach of construction contract action. Defendant served an opposing affidavit…
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COWART, Judge.
Appellee/plaintiff filed a motion for partial summary judgment, along with a supporting affidavit and exhibits, on the issue of liability in its breach of construction contract action. Prior to the day of hearing appellant/defendant served an opposing affidavit but did not file it with the court before the hearing. Defendant’s counsel arrived late to the hearing to discover the trial judge had already orally granted plaintiff’s motion for partial summary judgment. The court allowed defendant’s counsel to present argument, and according to defendant, would not consider the opposing affidavit, or its motion to amend answer, proposed amended answer, and counterclaim as none of them had been filed with the court prior to the hearing.
The trial judge granted plaintiff’s motion for partial summary judgment on the issue of liability. Defendant then filed a motion for relief from the order granting plaintiff’s motion for partial summary judgment pursuant to Florida Rule of Civil Procedure 1.540. The trial judge denied defendant’s motion for relief from the order on motion for partial summary judgment. Defendant appeals the order denying its motion for relief.
No partial summary judgment has ever been entered in this cause. The order granting plaintiff’s motion for partial summary judgment was not a final order, Aetna Casualty and Surety Co. v. Meyer, 385 So. 2d 10 (Fla.3d DCA 1980), was itself not subject to appeal,1 and was not subject to relief under Florida Rule of Civil Procedure 1.540, which is applicable only to final judgments, decrees, orders, and proceedings. Tieche v. Florida Physicians Insurance Reciprocal, 431 So. 2d 287 (Fla. 5th DCA 1983). Therefore, the trial judge’s denial of defendant’s motion for relief from order granting motion for partial summary judgment was proper and not an abuse of discretion, Church v. Strickland, 382 So. 2d 419 (Fla. 5th DCA 1980), because the motion was not directed at a final order subject to relief under Florida Rule of Civil Procedure 1.540.2
AFFIRMED.
DAUKSCH and ORFINGER, JJ., concur. . See Danford v. City of Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980); Kingsland v. National Advertising Company, 384 So. 2d 701 (Fla. 5th DCA 1980); Bernstein v. First Federal Savings & Loan Association of Orlando, 384 So. 2d 301 (Fla. 5th DCA 1980); McCready v. Villas Apartments, 379 So. 2d 719 (Fla. 5th DCA 1980).
. Our affirmance does not preclude defendant from obtaining review of a partial summary judgment on the issue of liability in favor of the plaintiff (Fla.R.App.P. 9.130(a)(3)(C)(iv)) (as distinguished from a mere order granting a motion for a partial summary judgment, as was entered in this case) or from a final judgment in the cause (Fla.R.App.P. 9.030(b)(1)(A)).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bravo Elec. Co., Inc. v. Carter Elec. Co., 522 So. 2d 480 (Fla. 5th DCA 1988)…which permits the review of non-final orders which “determine ... the issue of liability in favor of a party seeking affirmative relief.” Thus, Dan-ford does not apply here. Neither, in my opinion, is Servotech, Inc. v. Atlantic Central Corporation, 497 So. 2d 1341 (Fla. 5th DCA 1986) apposite here. In Servotech, it was held that Florida Rule of Civil Procedure 1.540 did not apply to non-final orders. Thus, even had there been a partial summary judgment in that case (as opposed to an order granting the partial…1 / 2
Authorities Cited
- Danford v. City OF Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980)
- AETNA Cas. & Sur. Co. & Morton Ins. Agency, Inc. v. Meyer, 385 So. 2d 10 (Fla. 3d DCA 1980)
- Minerva C. Tieche v. Fla. Physicians Ins. Reciprocal, 431 So. 2d 287 (Fla. 5th DCA 1983)
- Blanche Harris Kingsland v. Nat'l Advertising Co., 384 So. 2d 701 (Fla. 5th DCA 1980)
- Henry Church v. Strickland, 382 So. 2d 419 (Fla. 5th DCA 1980)
- McCREADY v. The Villas Apts., 379 So. 2d 719 (Fla. 5th DCA 1980)
- Bernstein v. First Fed. Sav. & Loan Ass'n OF Orlando, 384 So. 2d 301 (Fla. 5th DCA 1980)