RD & G LEASING, INC., APPELLANT,
v.
RICHARD NICHOLAS STEBNICKI, APPELLEE
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RD & G Leasing appeals an order denying its motion to dismiss for failure to serve the defendant within 120 days. The court dismisses the appeal as an impermissible interlocutory appeal of a non-final order not enumerated in the appellate rules.
An order denying a motion to dismiss under Rule 1.070(i) is not an appealable non-final order and may not be the subject of interlocutory appeal. The fact that the written order also contains a quashable ruling regarding service of process does not make the dismissal ruling appealable, especially where the appellant neither obtained nor appealed the quashing ruling.
[1] An order denying a motion to dismiss for failure to serve process within the time required by Florida Rule of Civil Procedure 1.070(i) is a nonappealable non-final order.
[2] An order quashing service of process is an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).
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“To begin with, RD & G procured the ruling quashing service. Neither RD & G nor any other party to this case has appealed the ruling quashing service. More important, only the matters set forth in Rule 9.130 have been determined to justify an interlocutory appeal as a matter of right.”
Establishes that the appellant cannot use an appealable ruling it obtained but did not appeal to bootstrap a non-appealable ruling into the appellate process
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Join FLexlaw to unlock all legal intelligencePlaintiff Stebnicki failed to accomplish service of process on defendant RD & G Leasing within the 120-day period required by Florida Rule of Civil Pr…
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COPE, Judge.
RD & G Leasing, Inc., appeals an order denying its motion to dismiss the complaint for failure of plaintiff-appellee Richard N. Stebnicki to accomplish service of process within the 120 days required by Florida Rule of Civil Procedure 1.070(i) (1993).* As the order is a nonappealable non-final order, the appeal is dismissed on authority of Rosenthal 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 written order denying the motion to dismiss also contained a ruling which quashed service of process. It is, of course, true that an order quashing service of process is an appealable non-final order. See Fla.R.App.P. 9.130(a)(3)(C)(i); Far Out Music, Inc. v. Jordan, 438 So. 2d 912, 913 (Fla. 3d DCA 1983). RD & G reasons that if the written order contains one ruling which is subject to interlocutory appeal under Rule 9.130, then any other ruling which is contained in the same written order “tags along” and is reviewable on interlocutory appeal. That is not so. To begin with, RD & G procured the ruling quashing service. Neither RD & G nor any other party to this case has appealed the ruling quashing service. More important, only the matters set forth in Rule 9.130 have been determined to justify an interlocutory appeal as a matter of right. An order denying a motion to dismiss under present rule 1.070(i) is not such a matter and may not be the subject of interlocutory appeal. See Northcutt v. Pathway Financial, 555 So. 2d 368, 369 (Fla. 3d DCA 1989), review denied, 563 So. 2d 633 (Fla.1990). Orders which are not enumerated in Rule 9.130 must await review at the end of the case, unless they meet the standard for certiorari or another extraordinary writ. As already stated, the standards for review by certiorari, the only arguably available writ, have not been satisfied in this case.
In support of its analysis, RD & G relies on Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 1992). That case, however, by its terms involves the jurisdictional effects of section 768.28, Florida Statutes (1989), a consideration which is entirely absent in the present case. Austin is readily distinguished from the case now before us.
RD & G’s reliance on Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla.1992), is also misplaced. That decision did not address the question of appealability of a non-final order denying a motion to dismiss under Rule 1.070(f).
Appeal dismissed.
*
Prior to January 1, 1993, the rule was designated Rule 1.070(j). See In re Amendments to Florida Rules of Civil Procedure, 604 So. 2d 1110, 1117 (Fla.1992).
An earlier appeal between these parties is reported as Stebnicki v. Wolfson, 584 So. 2d 177 (Fla. 3d DCA 1991).
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Citator
Cited By (21 total)
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Waxoyl v. Taylor, 711 So. 2d 1251 (Fla. 3d DCA 1998)…d by interlocutory appeal, see Thomas v. Silvers, 701 So. 2d 389, 390 (Fla. 3d DCA 1997); Polo v. Polo, 643 So. 2d 55 (Fla. 3d DCA 1994), and we decline to treat the appeal as a petition for writ of certiorari. See RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002, 1003 (Fla. 3d DCA 1993). For the reasons stated, the order under review is affirmed. . The other defendants include Edward E. Hubbard, Bernadette Hubbard, and the Waxoyl subsidiaries that had been defendants in the bankruptcy court proceeding. .…
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Thomas v. Silvers, 701 So. 2d 389 (Fla. 3d DCA 1997)…d categories under Florida Rule of Appellate Procedure 9.130(a)(3). See Novella Land, Inc. v. Panama City Beach Office Park, Ltd., 662 So. 2d 743 (Fla. 1st DCA 1995); Polo v. Polo, 643 So. 2d 55 (Fla. 3d DCA 1994); RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993); Khandjian v. Compagnie Financiere Mediterranee Cofimed, 619 So. 2d 348 (Fla. 2d DCA 1993), disagreed with on other grounds by Cannon v. Yager, 658 So. 2d 591 (Fla. 2d DCA 1995). Since we find that the trial court’s order is not a…
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Mid-Florida Assocs., Ltd. v. Taylor, 641 So. 2d 182 (Fla. 5th DCA 1994)…opinion. . We have jurisdiction. See Sheriff of Brevard County v. Lampman-Prusky, 634 So. 2d 660, 661 n. 1 (Fla. 5th DCA 1994); Comisky v. Rosen Management Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994). Contra, RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993); Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993).…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla. 1992)
- In re Amendments to the Florida Rules of Civil Procedure, 604 So. 2d 1110 (Fla. 1992)
- Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 1992)
- Northcutt v. Pathway Fin., 555 So. 2d 368 (Fla. 3d DCA 1989)
- Sanford H. Cole, M.D. v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989)
- Diaz v. State, 559 So. 2d 1178 (Fla. 3d DCA 1990)
- FAR OUT Music, Inc. v. Jordan, 438 So. 2d 912 (Fla. 3d DCA 1983)
- MacKe Laundry Servs., Inc. v. Margery Saintil, 568 So. 2d 541 (Fla. 4th DCA 1990)
- Stebnicki v. Wolfson, 584 So. 2d 177 (Fla. 3d DCA 1991)
- Hannah v. State, 623 So. 2d 855 (Fla. 3d DCA 1993)