CARL SHELL, PETITIONER,
v.
DAVID FOULKES, RESPONDENT
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The court held that the Circuit Court departed from the essential requirements of law by improperly reviewing non-final orders and by dismissing an appeal from the denial of a motion for relief from default.
[1] An order merely entering a default without a consequent final judgment is not a final order and is not generally reviewable by an appellate court.
[2] A circuit court exceeds its appellate jurisdiction when it reviews non-final orders from a county court that are not otherwise appealable by general law or rule.
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Join FLexlaw to unlock all legal intelligenceA tenant faced an eviction action and a default was entered. The tenant appealed the default, but the Circuit Court issued conflicting rulings. The te…
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Exercising our discretion to grant extraordinary review,1 we quash a decision of the Seventeenth Judicial Circuit in its appellate capacity and return this case for the issuance of a Mandate to the County Court for Broward County to consider and decide petitioner’s motion for relief from a default under rule 1.540(b).2 We conclude that the Circuit Court departed from the essential requirements of law, failing to provide petitioner due process and apply the correct law; hence a miscarriage of justice.3
Petitioner is the tenant in an eviction action in the County Court. After being sued, he filed a motion to determine the amount of rent to be paid into the court registry.4 That court then entered a de*440fault against petitioner. With no final judgment having been entered in the eviction case, he tried to appeal the default to the Circuit Court, filing two separate notices of appeal. In the Seventeenth Circuit an appeal from the County Court is assigned to a single Circuit Judge for decision. Two different Circuit Court Judges were assigned to the two cases, each treating them as appeals. On the first filing, Judge Moe affirmed the default; on the second filing, Judge Luzzo reversed it.
The Circuit Court exceeded its appellate jurisdiction. An order merely entering a default without a consequent final judgment is not a final order.5 The Circuit Courts do not have any general jurisdiction under the appellate rules to review non-final orders — such as the entry of a default without a final judgment.6 As for general law, nothing in Chapters 26 or 83, part II, Florida Statutes, purports to give Circuit Courts appellate jurisdiction to review non-final orders merely entering a default.7 The Circuit Court should have dismissed the appeals for lack of appellate jurisdiction.
Petitioner next filed a motion for relief from the default under rule 1.540(b), but the County Court followed the Mandate of the first judge, closed the case, and dismissed the motion for relief from the default on the grounds that it lacked jurisdiction to consider any such motion. Petitioner thereupon appealed that decision to the Circuit Court, which was — predictably — assigned to yet a third Judge. Judge Carney in turn dismissed the appeal on the grounds that the dismissal of a rule 1.540(b) motion was not appealable. This was a departure from the essential requirements of law because it is appealable as a final order.8
To repeat, the Circuit Court lacked jurisdiction over the attempts to appeal the non-final order of the County Court entering the default. Consequently the Mandate of the Circuit Court affirming the default had no effect. Yet the Circuit Court did have final appeal jurisdiction as to the County Court’s dismissal of the motion under rule 1.540(b) because it was a final order on that subject.9 The only *441possible outcome for the later appeal to the Circuit Court was to reverse the dismissal and direct the County Court to consider the motion for relief on the merits.
The County Court should give petitioner a hearing on the merits of his rule 1.540(b) motion and decide whether petitioner has shown any basis for relief from the default. In so doing, the County Court is free to address the issue in the first instance as to the correct interpretation of § 83.60(2), Fla. Stat. (2008).
Writ granted; decision quashed.
HAZOURI and CIKLIN, JJ., concur.
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Int'l House OF Pancakes (Ihop) v. Robinson, 124 So. 3d 1004 (Fla. 4th DCA 2013)…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 general jurisdiction under the appellate rules to review non-final orders-such as the entry of a default without a final judgment.”); United Auto. Ins. Co. v. Buchalter, 14 So. 3d 1100, 1101 (Fla. 4t…
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Nantucket Enters., Inc. v. Palm Beach Fla. Hotel & Off. Bldg. Ltd. P'ship, 25 So. 3d 580 (Fla. 4th DCA 2009)…PER CURIAM. Appeal dismissed. See Shell v. Foulkes, 19 So. 3d 438 (Fla. 4th DCA 2009). FARMER, TAYLOR, JJ., and LEVENSON, JEFFREY, R„ Associate Judge, concur.…
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Johary Aviation, Inc. v. Turan, 47 So. 3d 333 (Fla. 5th DCA 2010)…t Johary Aviation did not timely file its notice of appeal. See BMW Fin. Servs. NA, LLC v. Alger, 834 So. 2d 408, 409 (Fla. 5th DCA 2003) (holding that denial of a motion to set aside default is not an ap-pealable non-final order); Shell v. Foulkes, 19 So. 3d 438, 440 (Fla. 4th DCA 2009) (holding that “[a]n order merely entering a default without a consequent final judgment is not a final order.”); Trawick, Fla. Prac. & Proc., § 25:2 (2007 ed.) (default not a judgment). The notice of appeal was timely filed…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Combs v. State, 436 So. 2d 93 (Fla. 1983)
- Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So. 2d 838 (Fla. 2001)
- Fla. Power & Light Co. v. City OF Dania, 761 So. 2d 1089 (Fla. 2000)
- Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986)
- Mack v. State, 836 So. 2d 1062 (Fla. 3d DCA 2003)
- Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994)
- Bastida v. Vitaver, 590 So. 2d 1092 (Fla. 3d DCA 1991)
- Khem-Troll, Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976)
- City OF Tampa v. Emilio Ippolito, 360 So. 2d 1316 (Fla. 2d DCA 1978)