MICHAEL THOMAS, ET AL., APPELLANTS,
v.
JAMES S. SILVERS, ET AL., APPELLEES
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The court held that an order denying a motion to dismiss based solely on the failure to obtain timely service of process is a non-appealable, non-final order.
Appellants sought review of an order denying their motion to dismiss, which was based on the appellees' failure to serve the complaint within 120 days…
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PER CURIAM.
Appellants, defendants below, seek review of an order denying their motion to dismiss which was based solely on Florida Rule of Civil Procedure 1.070(i) (formerly 1.070(j)), which provides that complaints must be served on defendants within 120 days of their filing. The appellees, plaintiffs below, have filed a motion to dismiss this appeal, which we grant.
We 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 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 an order determining jurisdiction of the person — the only possible rule 9.130(a)(3) category it might fall within — we have no jurisdiction and, therefore, we dismiss the appeal. See Polo, 643 So. 2d at 55; Khandjian, 619 So. 2d at 348.
We agree with the Khandjian court that the Supreme Court’s Morales decision1 does not expand rule 9.130(a)(3) so as to render appealable an order denying a motion to dismiss based solely on the failure to obtain timely service of process. Khandjian, 619 So. 2d at 349. We certify conflict with Mid-Florida Associates, Ltd. v. Taylor, 641 So. 2d 182 (Fla. 5th DCA 1994); and Comisky v. Rosen Management Service, Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)(en banc).
Motion granted; appeal dismissed.
. Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla.1992).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Waxoyl v. Taylor, 711 So. 2d 1251 (Fla. 3d DCA 1998)…missed because the law firm failed to serve process on it within 120 days after the filing of the complaint, as required by Florida Rule of Civil Procedure 1.070(I) (1995).3 That issue cannot be raised 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 state…
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Thomas v. Silvers, 748 So. 2d 263 (Fla. 1999)…PER CURIAM. We have for review Thomas v. Silvers, 701 So. 2d 389 (Fla. 3d DCA 1997), in which the district court certified conflict with Mid-Florida Associates, Ltd. v. Taylor, 641 So. 2d 182 (Fla. 5th DCA 1994), and Comisky v. Rosen Management Service, Inc., 630 So. 2d 628 (Fla. 4th DCA 1994). We have jurisdicti…1 / 2
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Weber v. Bonilla-Mathe, 807 So. 2d 170 (Fla. 3d DCA 2002)…ppellate Procedure 9.130(a)(3)(C)(iv). Southeastern Title Ins. Co. v. Curtis, 156 So. 2d 855 (Fla. 3d DCA 1963). Since this is the only provision which even arguably could support appellate review of the non-final order below, see Thomas v. Silvers, 701 So. 2d 389 (Fla. 3d DCA 1997), affirmed, 748 So. 2d 263 (Fla.1999); Martin Electronics, [*171] Inc. v. Glombowski, 705 So. 2d 26 (Fla. 1st DCA 1997), the appeal is dismissed.…
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
- Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla. 1992)
- 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)
- Mid-Florida Assocs., Ltd. v. Taylor, 641 So. 2d 182 (Fla. 5th DCA 1994)
- Polo v. Marcela Polo, 643 So. 2d 55 (Fla. 3d DCA 1994)
- Cannon v. Yager, 658 So. 2d 591 (Fla. 2d DCA 1995)
- Novella Land, Inc. v. Panama City Beach Off. Park, Ltd., 662 So. 2d 743 (Fla. 1st DCA 1995)