SANFORD H. COLE, M.D., SANFORD H. COLE, M.D., P.A., BAPTIST HOSPITAL, INC., D/B/A BAPTIST HOSPITAL, AND AV-MED, INC., APPELLANTS,
v.
LOURDES POSADA, AS PARENT AND NATURAL GUARDIAN OF STEPHEN POSADA, A MINOR, AND LOURDES POSADA, INDIVIDUALLY, APPELLEES
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Appellants appealed the trial court's denial of their motions to dismiss for failure to timely serve process under Florida Rule 1.070(j). The Third District Court of Appeal held that the order was not reviewable because it did not involve a true "jurisdiction of the person" issue under Rule 9.130(a)(3)(C)(i), and therefore dismissed the appeals for lack of jurisdiction.
The trial court's order denying the motions to dismiss is not an appealable non-final order because it does not relate to a true "jurisdiction of the person" issue. The order concerns only the timeliness of service, not whether the court had proper jurisdiction or power to bind the defendants, and therefore falls outside Rule 9.130(a)(3)(C)(i).
[1] An order denying a motion to dismiss for failure to timely serve process under Rule 1.070(j), Florida Rules of Civil Procedure, is not an appealable non-final order under…
[2] Appellate review of non-final orders concerning "jurisdiction of the person" under Rule 9.130(a)(3)(C)(i) is limited to issues of proper service of process or the correct…
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Join FLexlaw to unlock all legal intelligence“"jurisdiction of the person" has been interpreted as referring to whether the service of process was proper or whether the long-arm statute has been correctly applied”
Establishes the narrow definition of appealable "jurisdiction of the person" issues under Rule 9.130(a)(3)(C)(i)
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Join FLexlaw to unlock all legal intelligenceAppellants moved to dismiss the complaint filed by Lourdes Posada and her minor son Stephen Posada, arguing that service of the initial process and pl…
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PER CURIAM.
In these consolidated appeals, appellants Sanford H. Cole, M.D., Sanford H. Cole, P.A., Baptist Hospital, Inc. and AV-MED, Inc. appeal a non-final order denying their motions to dismiss the complaint filed against them by appellees Lourdes Posada, individually, and as parent and natural guardian of Stephen Posada. We dismiss the consolidated appeals for lack of jurisdiction.
In the trial court action, appellants moved to dismiss appellees’ complaint for failure to timely serve the initial process and pleading, as required by rule 1.070(j), Florida Rules of Civil Procedure. Rule 1.070(j), provides:
If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court’s own initiative after notice or on motion.
The trial court denied appellants’ motions to dismiss.
Appellants then brought this appeal to this court from the trial court’s order denying their motions to dismiss. Appellees moved this court to dismiss appellants’ appeals on the ground that the trial court order was not one of the enumerated non-final orders which we are authorized to review. Appellants assert that the trial court’s order denying their motions to dismiss is an appealable non-final order pursuant to rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure. Rule 9.130(a)(3)(C)(i), permits district courts of appeal to review non-final orders of the lower court, which determine “jurisdiction of the person.”
We conclude the trial court order denying appellants’ motions to dismiss is a non-appealable, non-final order because it does not relate to a true “jurisdiction of the person” issue. Under rule 9.130(a)(3)(C)(i), “jurisdiction of the person” has been interpreted as referring to whether the service of process was proper or whether the long-arm statute has been correctly applied. See Strauss v. Gorman, 471 So. 2d 1303 (Fla.3d DCA 1985); Page v. Ezell, 452 So. 2d 582 (Fla.3d DCA 1984); National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, Inc., 395 So. 2d 592 (Fla.2d DCA 1981), approved, 417 So. 2d 655 (Fla.1982); American Health Association, Inc. v. Helprin, 357 So. 2d 204 (Fla. 4th DCA 1978). It relates to “matters concerning the court’s jurisdiction or power to bind [defendants] to any ultimate decision rendered in the case.” Department of Professional Regulation v. Rentfast, Inc., 467 So. 2d 486, 487 (Fla. 5th DCA 1985).
Here, the issue before the trial court was the timeliness of the service of the initial process and pleading, and not whether the service of process was proper. The question before the trial court was not whether the court had the jurisdiction or power to bind the appellants to its ultimate decision. Accordingly, we dismiss these consolidated appeals based upon our holding that the order of the trial court denying appellants’ motions to dismiss under rule 1.070(j), is not a reviewable non-final order under rule 9.130(a)(3)(C)(i). Dismissed.
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RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993)…osenthal v. Watkins, 623 So. 2d 855 (Fla. 3d DCA 1993); Macke Laundry Services, Inc. v. Saintil, 568 So. 2d 541 (Fla. 4th DCA 1990); DCA of Hialeah, Inc. v. Lago Grande One Condominium Ass’n, Inc., 559 So. 2d 1178 (Fla. 3d DCA 1990); Cole v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989). Certiorari is denied on authority of Macke, 568 So. 2d at 542, because there is an adequate remedy by appeal at the conclusion of the case. RD & G attempts to distinguish the foregoing authorities, based on the fortuity that the…
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Berge O. Khandjian and Tuula Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993)…aire v. Schneider, 579 So. 2d 925 (Fla. 4th DCA 1991); DCA of Hialeah, Inc. v. Lago Grande One Condominium Ass ’n, Inc., 559 So. 2d 1178 (Fla. 3d DCA 1990); Macke Laundry Services, Inc. v. Saintil, 568 So. 2d 541 (Fla. 4th DCA 1990); Cole v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989). After the Morales decision, the only opinion that has passed upon the jurisdictional issue is Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 1992). In Austin, the plaintiff failed to effectuate service within 120 days on the sta…
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Comisky v. Rosen Mgmt. Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)…limitation of rule 1.070(i) simply adds an additional requirement for valid service. Finally, the argument advanced by prior cases contends that the rule merely relates to timeliness which does not affect the reach of the court, see Cole v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989). However, even before the adoption of rule 1.070(i), timeliness could be an issue affecting the validity of service. Section 48.20, Florida Statutes (1991) provides that service of process on a Sunday is void, and a motion to quas…1 / 3
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nat'l Lake Developments, Inc. v. Lake Tippecanoe Owners Ass'n, Inc., 417 So. 2d 655 (Fla. 1982)
- Nat'l Lake Developments, Inc. v. Lake Tippecanoe Owners Ass'n, Inc., 395 So. 2d 592 (Fla. 2d DCA 1981)
- Page v. Gale Glass Ezell and Sheldon Ezell, 452 So. 2d 582 (Fla. 3d DCA 1984)
- Am. Health Ass'n, Inc. v. Helprin, 357 So. 2d 204 (Fla. 4th DCA 1978)
- Dep't OF Prof'l Reg. & Geraldine Johnson v. Rentfast, Inc., 467 So. 2d 486 (Fla. 5th DCA 1985)
- Strauss v. Gorman, 471 So. 2d 1303 (Fla. 3d DCA 1985)