PREFERRED POOLS AND SPAS OF NAPLES, INC., APPELLANT,
v.
BEACHTREE HOMES, INC., AND GABRIEL AND ELIZABETH FELDMAN, APPELLEES
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Preferred Pools' nonfinal appeal from an order denying reconsideration of a dismissal order is dismissed for lack of jurisdiction because the motion for reconsideration did not stay the nonfinal dismissal order and no final judgment existed from which relief could be sought under Rule 1.540.
An order denying reconsideration of a dismissal of a counterclaim count is not appealable where no final judgment has been entered and the motion for reconsideration did not stay the nonfinal dismissal order.
[1] A motion for reconsideration that does not stay rendition of a nonfinal order of dismissal does not preserve the right to appeal that order.
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Join FLexlaw to unlock all legal intelligencePreferred Pools filed a counterclaim against Beachtree Homes and the Feldmans. The trial court granted a motion to dismiss one count of the countercla…
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ALTENBERND, Judge.
Preferred Pools and Spas of Naples, Inc. (“Preferred Pools”), files a nonfinal appeal from an order denying reconsideration of an earlier order granting a motion to dismiss one count of its counterclaim. Preferred Pools asserts that the order denying reconsideration is appealable as an order denying relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. However, the trial court never entered a final judgment under which Preferred Pools could seek relief under rule 1.540. In reality, we have an order granting a motion to dismiss one count of a counterclaim that probably would not have been appealable in the first place, see S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla.1974); Mermel v. Rifkin, 603 So. 2d 595 (Fla. 3d DCA 1992), and an unauthorized motion for rehearing that did not stay rendition of the nonfinal order of dismissal. See Wagner v. Bieley, Wagner & Assocs., 263 So. 2d 1 (Fla.1972); Bodkin v. Sweeney, 805 So. 2d 847 (Fla. 2d DCA 2001); Bell v. Geist, 531 So. 2d 406 (Fla. 5th DCA 1988). Accordingly, there is no timely appeal of an appealable order in this case.
We have some concern that the trial court’s ruling in the order granting appel-lees’ motion to dismiss, which also terminates a recorded lien, may be incorrect. Nevertheless, we cannot treat this proceeding as a petition for common law writ of certiorari because it was filed more than thirty days from the date of rendition of the dismissal order. Dismissed.
NORTHCUTT and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hotaling v. Hotaling, 962 So. 2d 1048 (Fla. 2d DCA 2007)…precluded from doing so because the order on appeal was nonfinal. See Fla. Fam. Law. R.P. 12.530; Fla. R. Civ. P. 1.530; Wagner v. Bieley, Wagner & Assocs., Inc., 263 So. 2d 1, 3 (Fla.1972); Preferred Pools & Spas of Naples v. Beachtree Homes, Inc., 825 So. 2d 531, 532 (Fla. 2d DCA 2002). Finally, we note that the wife’s assertion that the husband previously paid all sums required is without record support, and in any event, “the previous course of conduct of the parties is not the correct standard for assess…
Authorities Cited
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
- Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)
- Bell v. Geist, 531 So. 2d 406 (Fla. 5th DCA 1988)
- Mermel v. Rifkin, 603 So. 2d 595 (Fla. 3d DCA 1992)
- Denley Ann Bodkin v. Sweeney, 805 So. 2d 847 (Fla. 2d DCA 2001)