NOVELLA LAND, INC., APPELLANT,
v.
PANAMA CITY BEACH OFFICE PARK, LTD., APPELLEE
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Novella Land appeals an order denying its motion to dismiss for failure to serve the defendant within 120 days. The court dismisses the appeal, holding that orders denying motions to dismiss for untimely service are not appealable non-final orders under Florida law.
An order denying a motion to dismiss for failure to timely serve a defendant is not an appealable non-final order. This court aligns with the Second and Third District Courts of Appeal in concluding that such orders are not appealable.
[1] An order denying a motion to dismiss for failure to timely serve a defendant is not an appealable non-final order.
[2] Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) provides for review of a non-final order that determines jurisdiction of the person.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) provides for review of a non-final order that determines jurisdiction of the person.”
Establishes the statutory basis for appealability of non-final orders relating to personal jurisdiction.
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Join FLexlaw to unlock all legal intelligenceNovella Land, Inc. filed a motion to dismiss or quash service against Panama City Beach Office Park, Ltd., arguing that the plaintiff failed to serve …
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PER CURIAM.
Novella Land, Inc., seeks review of an order which denied its motion to dismiss or quash service for failure of plaintiff/appellee to serve defendant/appellant within 120 days of filing of the complaint. See Fla.R.Civ.P. 1.070(1). We find the order to be reviewed is not an appealable order and, accordingly, dismiss the appeal.
Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) provides for review of a non-final order that determines jurisdiction of the person. Our sister courts disagree on whether an order which denies a rule 1.070(f) motion to dismiss is appealable pursuant to this rule. See Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993) and RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993) (both holding that an order of this nature is not appealable); Comisky v. Rosen Management Service, Inc., 630 So. 2d 628 (Fla. 4th DCA 1994) (en banc); Mid-Florida Associates, Ltd. v. Taylor, 641 So. 2d 182 (Fla. 5th DCA 1994) (finding such orders to be appealable).
This court has previously addressed the issue only in the context of failure to timely serve the Department of Insurance, a non-party, in civil actions in tort for money damages against the state or its agencies or subdivisions. See § 768.28(7), Fla.Stat. (1993). We found such orders to be appeal-able in Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 1992), but receded from that decision on grounds other than jurisdiction in Platt v. Department of Health & Rehabilitative Services, 659 So. 2d 1251 (Fla. 1st DCA 1995). Platt, however, was an appeal of an order of dismissal, a final order, and the decision did not expressly overrule Austin on the underlying jurisdictional question.
However, in McMillian v. Brown, 20 Fla.L.Weekly D2129, - So. 2d - [1995 WL 539038] (Fla. 1st DCA 1995), this court found that an order which denied a motion to dismiss for failure to timely serve the Department of Insurance pursuant to section 768.28(7) was not an appealable order and, in so doing, adopted Cannon v. Yager, 658 So. 2d 591 (Fla. 2d DCA 1995). Cannon, in turn, relied upon Khandjian.
In summary, we find that this court has implied its alliance with the second and third districts on this question and we now expressly state our agreement with their conclusion that an order which denies a motion to dismiss for failure to timely serve a defendant is not an appealable non-final order. APPEAL DISMISSED.
BOOTH, WOLF and WEBSTER, JJ., concur.
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Thomas v. Silvers, 701 So. 2d 389 (Fla. 3d DCA 1997)…e find that the trial court’s order is a nonappealable non-final order, as it does not fall within one of the enumerated 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…
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The Meadows OF Citrus Cnty., Inc. v. Jones, 704 So. 2d 202 (Fla. 5th DCA 1998)…ealable. See Mid-Florida Associates, Ltd. v. Taylor, 641 So. 2d 182 (Fla. 5th DCA 1994). Accord Comisky v. Rosen Management Service, Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)(en banc). Contra Novella Land, Inc. v. Panama City Beach Office Park, Ltd., 662 So. 2d 743 (Fla. 1st DCA 1995); Thomas v. Silvers, 701 So. 2d 389 (Fla. 3d DCA 1997); Khandjian v. Compagnie Financiera Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993). . A defendant may raise the defense of a failure to join an indispensable pa…
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Butts v. Dewitt Roberts, 713 So. 2d 1059 (Fla. 3d DCA 1998)…ternatively, certiorari is denied — on the authority of Thomas v. Silvers, 701 So. 2d 389 (Fla. 3d DCA 1997). Accord Hertz Claim Management Corp. v. Perry, 701 So. 2d 669 (Fla. 3d DCA 1997); Novella Land, Inc. v. Panama City Beach Office Park, Ltd., 662 So. 2d 743 (Fla. 1st DCA 1995); Khandjian v. Compagine Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993). Contra Mid-Florida, Associates, Ltd. v. Taylor, 641 So. 2d 182 (Fla. 5th DCA 1994); Comisky v. Rosen Management Service, Inc., 630…
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
- RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993)
- Berge O. Khandjian and Tuula Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993)
- Comisky v. Rosen Mgmt. Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)
- Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 1992)
- Mid-Florida Assocs., Ltd. v. Taylor, 641 So. 2d 182 (Fla. 5th DCA 1994)
- Cannon v. Yager, 658 So. 2d 591 (Fla. 2d DCA 1995)
- Roncell Platt v. Fla. Dep't OF Health & Rehabilitative Servs., 659 So. 2d 1251 (Fla. 1st DCA 1995)