BMW FINANCIAL SERVICES NA, LLC, PETITIONER,
v.
ELANA B. ALGER AND EDMUND W. ALGER, III, ETC., RESPONDENT
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BMW Financial Services sought certiorari review of a trial court order denying its motion to set aside a clerk's default. The Fifth District Court of Appeal denied the petition, holding that orders on motions to set aside clerk's defaults are not appealable as non-final orders and are not reviewable by certiorari absent extraordinary circumstances.
An order denying a motion to set aside a clerk's default is not appealable as a non-final order and is not reviewable by certiorari absent a showing of extraordinary circumstances. The adequate remedy is a plenary appeal from the final judgment.
[1] An order denying a motion to set aside a clerk's default is not an appealable non-final order.
[2] Certiorari review is generally unavailable for an order denying a motion to set aside a clerk's default absent extraordinary circumstances.
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Join FLexlaw to unlock all legal intelligence“An order on a motion to set aside a clerk's default is not an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). Additionally, absent a showing of extraordinary circumstances, such an order is not reviewable by certiorari, as certiorari should not be used to circumvent the appellate rule which limits interlocutory review of non-final orders.”
Establishes the core holding that orders denying motions to set aside clerk's defaults are not reviewable by certiorari without extraordinary circumstances.
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Join FLexlaw to unlock all legal intelligenceBMW Financial Services filed a motion to set aside a clerk's default in a case against Elana B. Alger and Edmund W. Alger, III. The trial court denied…
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PALMER, J.
BMW Financial Services has filed a petition seeking certiorari review of an order denying its motion to set aside a clerk’s default. Concluding that this order is not properly reviewable by certiorari, we deny the petition.
An order on a motion to set aside a clerk’s default is not an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). Additionally, absent a showing of extraordinary circumstances, such an order is not reviewable by certiorari, as certiorari should not be used to circumvent the appellate rule which limits interlocutory review of non-final orders.
In Kolb v. Florida Fruit & Vegetable Ass’n, Inc., 718 So. 2d 957 (Fla. 5th DCA 1998), this court held that a trial court’s order which sets aside a clerk’s default is not appealable as a non-final order and, since there is an adequate remedy by plenary appeal, certiorari review is also generally not available. Accord Collins v. Penske Truck Leasing, 668 So. 2d 343 (Fla. 5th DCA 1996) (denying petition for certiorari review of order which granted motion to set aside clerk’s default since no extraordinary grounds for relief were alleged).
The same is true when the trial court enters an order denying a motion to set aside a clerk’s default. The order is non-final because the case remains pending to determine damages. Such an order is not appealable,1 nor should it be reviewed by certiorari, as there is an adequate remedy by plenary appeal from a final judgment. See MacDonald v. R.A. Investments, Ltd., 830 So. 2d 916 (Fla. 4th DCA 2002) (affirming final judgment granting a default). When a court sets aside a clerk’s default, the defendant’s expense of having to proceed to trial is not recognized by the courts as being the type of irreparable injury justifying certiorari review. See Leibman v. Sportatorium, Inc., 374 So. 2d 1124 (Fla. 4th DCA 1979). The same reasoning applies in the instant situation. Although BMW Financial Service will have to proceed to trial on the issue of damages, that does not qualify as being irreparable injury.
PETITION DENIED.
PLEUS and ORFINGER, JJ„ concur. . This type of non-final order was previously appealable under the appellate rule which authorized interlocutory appeals of orders which determined “the issue of liability in favor of a party seeking affirmative relief.” See Fla. R.App. P. 9.130(a)(3)(C)(iv) (2000); Safetitle, Inc. v. Fidelity Nat. Title Ins., 701 So. 2d 565 (Fla. 5th DCA 1997). However, that particular category of appealable non-final orders was deleted in 2000 so as to limit the number of interlocutory appeals. The committee notes to rule 9.130 specifically state that such orders are not presently appealable until the conclusion of the case.
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The Panama City Gen. P'ship v. Godfrey Panama City Inv., 109 So. 3d 291 (Fla. 1st DCA 2013)…nal order ... is not in itself an appealable order.” Likewise, an order denying a motion to set aside a clerk’s default is not an appeal-able non-final order under rule 9.130(a)(3), Florida Rules of Appellate Procedure. BMW Fin. Servs. NA v. Alger, 834 So. 2d 408 (Fla. 5th DCA 2003); Bedi v. BAC Home Loans Serv., LP, 64 So. 3d 681 (Fla. 2d DCA 2011). The fact that the denial of the motion to set aside clerk’s default was contained in the same order as the denial of the motion to quash service does not allow…
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Dawkins, Inc. v. Huff, 836 So. 2d 1062 (Fla. 5th DCA 2003)…e, rather than Dawkins. Nonetheless, we must dismiss this appeal. An order on a motion to set aside a clerk’s default is not an appealable, non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). See BMW Fin. Servs. NA, LLC v. Alger, 834 So. 2d 408 (Fla. 5th DCA 2003).1 Absent extraordinary circumstances, such an order is also not renewable by certiorari, as certiorari should not be used to circumvent the appellate rule which limits interlocutory review of non-final orders. See Kolb v. Fla. Fr…
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Int'l House OF Pancakes (Ihop) v. Robinson, 124 So. 3d 1004 (Fla. 4th DCA 2013)…s been entered — is not appealable, nor subject to certiorari review. Lehner v. Durso, 816 So. 2d 1171, 1173 (Fla. 4th DCA 2002) (citing Bruno v. A.E. Handy & Assocs., Inc., 787 So. 2d 251, 252 (Fla. 5th DCA 2001)); BMW Fin. Servs. NA, LLC v. Alger, 834 So. 2d 408, 409 (Fla. 5th DCA 2003); Dawkins, Inc. v. Huff, 836 So. 2d 1062, 1065 (Fla. 5th DCA 2003); Fascetti v. Fascetti, 795 So. 2d 1094, 1095 (Fla. 4th DCA 2001); see also Shell v. Foulkes, 19 So. 3d 438, 440 (Fla. 4th DCA 2009) (“Courts do not have any g…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leibman v. Sportatorium, Inc., 374 So. 2d 1124 (Fla. 4th DCA 1979)
- Kolb v. Fla. Fruit & Vegetable Ass'n, Inc., 718 So. 2d 957 (Fla. 5th DCA 1998)
- Safetitle, Inc. v. Fid. Nat'l Title Ins., 701 So. 2d 565 (Fla. 5th DCA 1997)
- Leonidas T. Hines v. State, 668 So. 2d 343 (Fla. 5th DCA 1996)
- Desia Collins v. Penske Truck Leasing, 668 So. 2d 343 (Fla. 5th DCA 1996)
- Merrill W. MacDONALD and Raymond W. MacDonald v. R.A. Invs. Ltd., 830 So. 2d 916 (Fla. 4th DCA 2002)