NOLAN'S TOWING AND RECOVERY, APPELLANT,
v.
MARINO TRUCKING, INC., APPELLEE
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Nolan's Towing and Recovery appealed from a summary judgment order and an order denying its motion for relief from that judgment. The court dismissed the appeal of both orders as non-final and not properly appealable at that time, but allowed the appellant to raise these issues again on appeal from final judgment.
The order granting summary judgment is a non-final order that is not appealable as a final judgment without a timely notice of interlocutory appeal. The order denying the motion for relief under Rule 1.540(b) is likewise a non-final, nonappealable order. Both can be raised on appeal from final judgment when entered.
[1] An order granting summary judgment is a non-final order and is not appealable as a final judgment unless a timely notice of interlocutory appeal is filed.
[2] A motion for relief from judgment under Rule 1.540(b), Florida Rules of Civil Procedure, may only be directed to a final judgment, decree, order, or proceeding.
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Join FLexlaw to unlock all legal intelligence“the order granting summary judgment is a non-final order which is not appealable as a final judgment”
Establishes that summary judgment orders without final judgment are not appealable as of right
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Join FLexlaw to unlock all legal intelligenceThe trial court granted the plaintiff's motion for summary judgment. Nolan's Towing then moved to set aside the summary judgment order under Rule 1.54…
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On Motion to Dismiss
PER CURIAM.
Appellee Marino Trucking, Inc. moves to dismiss a portion of the appeal of appellant Nolan’s Towing and Recovery. We grant the motion.
The trial court entered an order granting plaintiff’s motion for summary judgment. No final judgment was entered thereon. Appellant moved to set aside the order granting plaintiff’s motion for summary judgment, relying on Rule 1.540(b)(4), Florida Rules of Civil Procedure. The motion was denied. Nolan’s Towing appeals, inter alia, from an order denying that motion and from the order granting summary judgment.
We agree with appellee, first, that the order granting summary judgment is a non-final order which is not appealable as a final judgment. Shupack v. Allstate Ins. Co., 356 So. 2d 1298 (Fla. 3d DCA 1978). Because it granted affirmative relief to a party seeking such relief, it could be appealed under the interlocutory appeal rule, Fla.R.App.P. 9.130(a)(3)(C)(iv), but no timely notice of appeal was filed. The appeal is dismissed as to that order. The ruling can, of course, be appealed after entry of final judgment in the case.
Second, a motion for relief from judgment under Rule 1.540(b), Florida Rules of Civil Procedure, may only be directed to a “final judgment, decree, order or proceeding....” Id.; accord Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988). As the order granting summary judgment was not a final order, the motion filed by appellant could not be brought under Rule 1.540(b), but must instead be deemed to have been an interlocutory motion for reconsideration. See Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1388 n. 2 (Fla. 3d DCA), review denied, 494 So. 2d 1153 (Fla.1986). The order denying that motion is in the present case a non-final, nonappealable order. We therefore grant the motion to dismiss insofar as appellant seeks to appeal, at this time, the order denying relief from order granting summary judgment.
The dismissals herein are without prejudice to appellant’s right to seek review of those rulings on appeal from final judgment, when entered. Appellee concedes that appellant’s notices of appeal are effective with respect to two other orders entered in this case, and the appeal will remain pending as to those orders.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Bennett's Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93 (Fla. 1st DCA 2003)…(Fla.2003). . See also Native Hammock Nursery, Inc. v. DuPont de Nemours & Co., 774 So. 2d 727, 728 (Fla. 3d DCA 2000) ("With no judgment to attack, a 1.540(b) motion is an exercise in futility.”); Nolans Towing & Recovery v. Marino Trucking, Inc., 581 So. 2d 644, 645 (Fla. 3d DCA 1991) ("[A] motion for relief from judgment under Rule 1.540(b), Florida Rules of Civil Procedure, may only be directed to a 'final judgment, decree, order or proceeding .... ’ As the order granting summary judgment was not a final…
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Dixon v. Allstate Ins. Co., 609 So. 2d 71 (Fla. 1st DCA 1992)…ment has ever been entered. See, e.g., BCH Mechanical, Inc. v. McCoy, 584 So. 2d 1067 (Fla. 5th DCA 1991) (an order which merely grants a motion for summary judgment is not a final order). Accord Nolan’s Towing and Recovery v. Marino Trucking, Inc., 581 So. 2d 644 (Fla. 3d DCA 1991); Arcangeli v. Albertson’s, Inc., 550 So. 2d 557 (Fla. 5th DCA 1989) (en banc); Amelco Investment Corp. v. Bryant Electric Co., 487 So. 2d 386 (Fla. 1st DCA 1986); Pompano Paint Co. v. Pompano Beach Bank & Trust Co., 208 So. 2d 152…
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Hi-Tech Mktg. Grp., Inc. v. Thiem, 659 So. 2d 479 (Fla. 4th DCA 1995)…violation sanction. This is not a “final order” as eon-templated by rule 1.540(b) Florida Rules of Civil Procedure; therefore, this appeal must be dismissed sua sponte for lack of jurisdiction. See Nolan’s Towing & Recovery v. Marino Trucking, Inc., 581 So. 2d 644 (Fla. 3d DCA 1991). Dismissed for lack of jurisdiction. GUNTHER, C.J., and DELL and SHAHOOD, JJ., concur.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986)
- Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988)
- Shupack v. Allstate Ins. Co., 356 So. 2d 1298 (Fla. 3d DCA 1978)