ROSIE O'GRADY'S, INC., A FLORIDA CORPORATION, APPELLANT,
v.
CONCEPCION DEL PORTILLO, APPELLEE
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Rosie O'Grady's, Inc. appealed a trial court order denying its motion to dismiss based on the plaintiff's alleged failure to pay a transfer fee under Florida Rule of Civil Procedure 1.060(c). The Florida District Court of Appeal dismissed the appeal, holding that an order concerning payment of administrative service charges is not an immediately appealable interlocutory order under Rule 9.130(a)(3)(A), which is reserved for urgent orders with immediate adverse consequences.
The court held that such an order is not immediately appealable because it does not qualify as one of the urgent interlocutory orders designated in Rule 9.130(a)(3)(A). Although orders concerning venue are immediately appealable to avoid compelling litigants to proceed in an inappropriate forum, an order denying dismissal for failure to pay an administrative service charge lacks the immediate adverse consequences necessary to warrant appellate review as of right.
[1] An order denying a motion to dismiss for failure to prosecute is not an immediately appealable non-final order.
[2] An order denying a motion to dismiss based on a party's alleged failure to pay a transfer fee is not an immediately appealable non-final order concerning venue.
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“the non-final orders reviewable when entered are, as the committee note to Rule 9.130 tells us, 'the most urgent interlocutory orders.' These orders are deemed to have such immediate adverse consequences to the losing party that expeditious review is afforded as of right.”
Establishes the strict standard for what constitutes an immediately appealable interlocutory order under Rule 9.130(a)(3).
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Join FLexlaw to unlock all legal intelligenceConcepcion Del Portillo filed an action against Rosie O'Grady's, Inc. The defendant moved to dismiss on two grounds: (1) plaintiff's failure to prosec…
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[*184] ON MOTION TO DISMISS
DANIEL S. PEARSON, Judge.
Concepcion Del Portillo, the plaintiff below, has moved to dismiss the defendant’s appeal from the trial court’s order (1) denying the defendant’s motion to dismiss grounded on the plaintiff’s failure to prosecute and (2) denying the defendant’s motion to dismiss for the plaintiff’s alleged failure “to pay the transfer fee under Florida Rules of Civil Procedure, Rule 1.060.” 1
The defendant concedes that no appeal lies from that part of the order denying its motion to dismiss on account of the plaintiff's failure to prosecute. Southwinds Riding Academy v. Schneider, 507 So. 2d 782 (Fla. 3d DCA 1987). The defendant contends, however, that we have jurisdiction over its appeal from that part of the order which denied dismissal on the ground that the plaintiff had failed to pay the transfer fee required by Florida Rule of Civil Procedure 1.060(c), arguing that the order is one which “concern[s] venue” and is thus one of the designated non-final orders reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(A). We disagree.
As can be plainly seen, the non-final orders reviewable when entered are, as the committee note to Rule 9.130 tells us, “the most urgent interlocutory orders.” These orders are deemed to have such immediate adverse consequences to the losing party that expeditious review is afforded as of right. See School Board v. Angel, 404 So. 2d 359, 361 (Fla. 5th DCA 1981) (Rule 9.130(a)(3) “authorizes review of only a few designated interlocutory non-final orders”; ordinary reversible errors may be reached by appeals after final judgment); Powell v. Wingard, 402 So. 2d 532 (Fla. 5th DCA 1981) (ordinary interlocutory errors of trial courts may be adequately redressed by plenary appeal from final judgment). Thus, while Rule 9.130(a)(3)(A) provides that an order which “concern[s] venue” is immediately appealable so that the losing party may avoid the irreparable injury which might ensue by being compelled to litigate in the inappropriate forum, the defendant in the present case has not challenged an order fixing the locus of the action, but instead has sought dismissal based upon the plaintiff’s alleged failure to accomplish the administrative task of paying a service charge. Cf. Williams v. State, 324 So. 2d 74 (Fla.1975) (failure of appellant to pay filing fee when filing timely notice of appeal has no effect upon jurisdiction of court over appeal); Weintraub v. Alter, 482 So. 2d 454 (Fla. 3d DCA 1986) (same). Whether correct or not, the trial court’s refusal to dismiss the plaintiff’s action without prejudice (the limited sanction permitted by Rule 1.060(c)) because no service charge was paid is not a matter of such import that it requires an appellate court’s immediate attention.
Accordingly, the plaintiff’s motion to dismiss the defendant’s appeal is granted.
Appeal dismissed.
. Rule 1.060(c) provides:
"The service charge of the clerk of the court to which an action is transferred under this rule shall be paid by the party who commenced the action within 30 days from the date the order of transfer is entered, subject to taxation as provided by law when the action is determined. If the service charge is not paid within the 30 days, the action shall be dismissed without prejudice by the court that entered the order of transfer."
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Marsh & McLennan, Inc. v. Aerolineas Nacionales del Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988)…of the order on rehearing reinstating the action was to prevent the dismissal from becoming choate. It is well established that the denial of a motion to dismiss for lack of prosecution is not appealable. See Rosie O’Grady’s, Inc. v. Del Portillo, 521 So. 2d 183 (Fla. 3d DCA 1988); Southwinds Riding Academy v. Schneider, 507 So. 2d 782 (Fla. 3d DCA 1987); Bowl America Florida, Inc. v. Schmidt, 386 So. 2d 1203 (Fla. [*974] 5th DCA 1980); Killeam Properties, Inc. v. Hammons Asphalt Paving, Inc., 381 So. 2d 11…
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Dep't OF Agric. v. Bryant Middleton, 24 So. 3d 624 (Fla. 2d DCA 2009)…peal of orders that fix the locus of the action. See Dep’t of Mgmt. Servs. v. Fastrac Constr., Inc., 701 So. 2d 1200, 1201 (Fla. 5th DCA 1997); Paz v. Valencia, 561 [*627] So. 2d 1275, 1276 (Fla. 4th DCA 1990); Rosie O’Grady’s, Inc. v. Del Portillo, 521 So. 2d 183, 184 (Fla. 3d DCA 1988). While the order on appeal denies the Defendants’ motion to transfer venue “without prejudice,” it fixes the locus of the action in Pinellas County until such time as the Defendants succeed in bringing the motion to transfer…
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Ody PAZ v. Valencia, 561 So. 2d 1275 (Fla. 4th DCA 1990)…der granting defen [*1276] dant’s motion to strike the renewed motion, as a non-final order concerning venue, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A). We refer to the court’s analysis in Rosie O’Grady’s Inc. v. Del Portillo, 521 So. 2d 183 (Fla. 3d DCA 1988) and the committee notes to rule 9.130, Florida Rules of Appellate Procedure, in reaching our conclusion that this rule provides for appeal of only the most urgent interlocutory orders. The language providing that those orders whic…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 324 So. 2d 74 (Fla. 1975)
- Weintraub v. Seymour Alter, 482 So. 2d 454 (Fla. 3d DCA 1986)
- Dean Martin Leasing Co., Inc. v. Wallin, 404 So. 2d 359 (Fla. 5th DCA 1981)
- Am. Cas. Co. OF Reading PA. v. Brim's Food, Inc., 402 So. 2d 532 (Fla. 3d DCA 1981)
- Powell v. Wingard, 402 So. 2d 532 (Fla. 5th DCA 1981)
- Shepard Broad v. Bertoglio, 507 So. 2d 782 (Fla. 3d DCA 1987)
- Southwinds Riding Acad. & Wynell Sebree v. Schneider, 507 So. 2d 782 (Fla. 3d DCA 1987)