ANDROS DEVELOPMENT CORP., ETC., ET AL., APPELLANTS,
v.
ORLANDO BENITEZ A/K/A ORLANDO BENITEZ, JR., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellants Andros Development Corp. and Kathleen Marrero appealed a non-final order in a foreclosure action requiring monthly mortgage payments. The Third District Court of Appeal dismissed the appeal for lack of jurisdiction, finding the order did not determine the right to immediate possession of property as required for appellate review of non-final orders.
The court lacks jurisdiction to review the non-final order because the order does not determine the right to immediate possession of property as required by the jurisdictional statute.
[1] An order directing a party to make monthly payments in a foreclosure action, with a provision for ex parte final judgment upon default unless a written undertaking is fil…
[2] An appeal from a non-final order that does not determine the right to immediate possession of property will be dismissed for lack of jurisdiction.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“although Mar-rero's notice of appeal asserts that,-this Court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(c)(ii), which permits review of non-final orders that determine "the right to immediate possession of property," the order under review does not so provide.”
Establishes the basis for dismissal—the order does not meet the jurisdictional requirement of determining immediate possession rights.
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Join FLexlaw to unlock all legal intelligenceIn a foreclosure action, the trial court issued a non-final order requiring Andros to make monthly payments of $15,333.33 to plaintiff Orlando Benitez…
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*919 ON MOTION TO DISMISS .
On August 12, 2015, Julio C. Marrero, Esq. (“Marrero”) of the law firm of Julio C. Marrero & Associates, P.A., as counsel for the defendants, Andros Development Corporation (“Andros”), and Kathleen Marrero filed the instant appeal from, as Marrero recognized, a non-final order. The non-final order in this foreclosure action directs Andros to make monthly payments in the amount of $15,333.33 to the plaintiff, Orlando' Benitez, Jr. The order further provides that pursuant to section 702.10(2)(f), Florida Statutes, and We Help Community Development Corp. v. Ciras, LLC, 144 So.3d 578, 579 (Fla. 4th DCA 2014), if Andros fails to make the mortgage payments as required by the order, Benitez’ shall be entitled to submit'an ex' parte affidavit and final judgment of foreclosure, take possession of the premises,- and the entry of a final judgment of foreclosure, unless Andros files with the court a written undertaking executed by a surety approved by the court in an amount equal to the, unpaid balance of the lien being foreclosed, including all principal, interest, unpaid taxes, and insurance paid by Benitez, in which case, the order shall be stayed. , , ,
Although Marrero filed this appeal on August 12, 2015, he has done nothing to prosecute his appeal. He has not filed an initial.brief nor sought-an enlargement of time. It is also clear that# although Mar-rero’s notice , of appeal asserts that,-this Court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(c)(ii), which permits review of non-final orders that determine “the right to immediate possession of property,” the order under review does not so provide. We, there-, fore, grant Benitez’s motion to dismiss the instant appeal for lack of jurisdiction, grant Benitez’s motion for appellate attorney’s fees, and remand for the trial court to determine the amount. .
In his motion to dismiss, Benitez has also requested this Court' to consider issuing an order compelling Marrero and his law firm to show good cause why further sanctions should not be imposed for pursuing an appeal unsupported by the law or facts. In support, Benitez has directed this Court to a number of prior appeals filed'by Marrero and his law firm that have been dismissed by this Court for lack of jurisdiction and/or failure to comply with this Court’s orders.. • Although our investigation has led us to share Benitez’s concern, we decline to take such action at this time. We, however, caution Marrero and his law firm that there is an ethical obligation to use due diligence-and candor in all filings with this Court.
Appeal dismissed; -attorney’s fees granted and remanded- for determination of amount.
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Citator
Cited By
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Benitez Jr. v. Leal, 272 So. 3d 506 (Fla. 3d DCA 2019)…e successor judge lacked jurisdiction to review or rehear the final order under Groover v. Walker, 88 So. 2d 312 (Fla. 1956), and reinstated that final order. The Client’s timely appeal of all three orders followed. 2 Andros Dev. Corp. v. Benitez, 178 So. 3d 918 (Fla. 3d DCA 2015). This Court dismissed the appeal for lack of jurisdiction. 2 In October 2016, the Attorney moved to withdraw from further representation of the Client. Neither the motion to withd…
Authorities Cited
- WE Help Cmty. Dev. Corp. v. Ciras, LLC, 144 So. 3d 578 (Fla. 4th DCA 2014)