PLUMBING INDUSTRY PROGRAM, INC., A NON-PROFIT CORPORATION FORMED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLANT,
v.
E. J. MCCORMICK, TRADING AND DOING BUSINESS AS MCCORMICK-BOYETT, APPELLEE
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The Florida District Court of Appeal affirmed an order that reserved ruling on a motion to dismiss until a final hearing, finding that the lower court's decision was procedurally permissible and that the merits of the motion could not be reviewed on interlocutory appeal.
Yes, an interlocutory appeal can be taken from such an order, but the appellate court cannot review the merits of the motion to dismiss when no ruling has been made by the lower court.
“Ordered, Adjudged and Decreed that the ruling on the motion be and the same is hereby reserved until final hearing and the defendant is required to answer within fifteen (15) days.”
This quote describes the specific order from the lower court that was being appealed.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a motion to dismiss in a chancery case. The lower court issued an order that reserved ruling on the motion until a final hearing a…
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This interlocutory appeal was from an order in a chancery case in which the pertinent portion of the order appealed provided :
“Ordered, Adjudged and Decreed that the ruling on the motion be and the same is hereby reserved until final hearing and the defendant is required to answer within fifteen (15) days. * * *»
We have heard oral argument of counsel, considered the briefs, appendix and record, and find that the ruling complained of was one authorized under Rule 1.11(a) and (d) of the Florida Rules of Civil Procedure, 30 F.S.A. Other than requiring the appellant to answer, no action on the appellant’s motion to dismiss was taken by the court’s order. Therefore, it appears that the merits of the motion to dismiss were not ruled upon by the chancellor and consequently cannot be reviewed by this *709court. It follows that the order appealed from should he affirmed.
However, in affirming the order, this court in no wise passes upon the merits of the motion and such affirmance is without prejudice to such rights as appellant may have under said motion.
Affirmed.
HORTON, C. J., and PEARSON and CARROLL, CHAS., JJ., concur.