DANILO VERA-GONZALEZ

v.

RIGOBERTO GUEVARA

PER CURIAM

This is an appeal from an order setting aside a final summary judgment. Finding we have no jurisdiction; we dismiss this appeal.

In the underlying lawsuit, the Appellants sued Deluxe Motors, USA, LLC and Deluxe Motors, Inc., Rigoberto Guevara, and his daughter, Stephanie Guevara, for their refusal to return the Appellants' deposit toward purchase of a used vehicle. While the Appellants never filed any proof of service upon Ms. Guevara, Ms. Guevara filed a motion to dismiss responding to the allegations in the complaint. The Appellants filed and set a hearing for final summary judgment, and Ms. Guevara did not appear. The trial court entered final summary judgment against all defendants, including Ms. Guevara.

Ms. Guevara filed a motion to set aside judgment, claiming lack of proper service of process and lack of notice of the hearing where judgment was entered. After an evidentiary hearing, the trial court granted the motion and vacated Ms. Guevara's judgment. The trial court heard and denied the Appellants' motion to reconsider. Neither order makes any findings, nor did the trial judge quash service upon Ms. Guevara. Ms. Guevara failed to supplement this record with a transcript [*2] of proceedings for either hearing, and it is unclear whether the judgment was vacated for lack of service of process or lack of notice of the summary judgment hearing.¹ On appeal, the Appellants insist that Ms. Guevara was properly served and if not, that in answering the complaint in her motion to dismiss, Ms. Guevara waived service. In turn, Ms. Guevara argues that the Complaint names her in her individual capacity, that she was never properly served, that the only proof of service in the file was upon the corporate entities, and that she was noticed for the summary judgment hearing at a nonexistent address.

Although not raised by the parties, "[a]n appellate court has an independent duty to determine whether it has appellate jurisdiction and is not bound by the trial court's caption or the parties' characterization of an order." Medeiros v. Firth, 200 So. 3d 121 (Fla. 5th DCA 2015), citing Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So. 3d 559, 560 (Fla. 3d DCA 2015).

Because the order on appeal is neither an appealable non-final order nor a final order, this appeal must be dismissed. Jurisdiction to hear nonfinal appeals is governed by Rule 9.130 in the district courts of appeal. See Art. V, § 4(b)(1), Fla. Const.; Rule 9.130(a)(1), Fla. R. App. P. However, jurisdiction to hear appeals from nonfinal orders in the circuit courts is governed by general law. See Art. V, § 5, Fla. [*3] Const. ("The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law"); Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994) ("The authority for appeals to the circuit court is established solely by general law as enacted by the legislature").

Here, no statute authorizes an appeal from an order vacating summary judgment and staying garnishment proceedings, and therefore, this appeal must be dismissed until such time as the lower court enters an appealable final order. See Padovano, P., Florida Appellate Practice § 5:3 (2019 ed.); 911 Dry Solutions, Inc. v. Florida Family Insurance Company, 259 So. 3d 167, 169 (Fla. 3d DCA 2018) (where Legislature has not enacted law authorizing appeal from order compelling appraisal, appeal from county court to circuit court was properly dismissed); Shell v. Foulkes, 19 So. 3d 438, 440 (Fla. 4th DCA 2009) (Appeal of county court order of default in eviction action properly dismissed); State v. Sowers, 763 So. 2d 394 (Fla. 1st DCA 2000) (no circuit court jurisdiction to hear appeal of order in limine).

Nor is appeal of the trial court's order authorized by Section 59.04, Florida Statutes. This statute permits an appeal from an order granting a new trial:

Upon the entry of an order granting a new trial, the party aggrieved may prosecute an appeal to the proper appellate court without waiting for final judgment. If the judgment is reversed, the appellate court may direct that final judgment be entered in the trial court for the party obtaining the verdict unless a motion in arrest of judgment or for a judgment notwithstanding the verdict be made and prevail. [*4] The order below set aside a final summary judgment; it did not grant a "new" trial nor is there a "verdict" to reinstate. Section 59.04 by its plain language governs appeals of orders which set aside a "verdict" entered following a trial on the matter. Here, summary judgment was entered following a failure of the defendants to appear; in effect, it was a default summary judgment. No statute authorizes a circuit court appeal from an order setting a summary judgment aside. See, contra, Housing Authority of City of Tampa v. Burton, 874 So. 2d 6 (Fla. 2d DCA 2004) (Section 59.04 authorizes appeal from order setting aside jury verdict and granting a new trial).

Nor is the trial court's order a final order or judgment, which would be appealable under section 59.06, Florida Statutes. "Florida's test of finality for appellate purposes is well established: the order constitutes the end of judicial labor in the trial court, and nothing further remains to be done to terminate the dispute between the parties." Bloomgarden v. Mandel, 154 So. 3d 451, 454 (Fla. 3d DCA 2014), citing Miami-Dade Water and Sewer Auth. v. Metro. Dade County, 469 So. 2d 813, 814 (Fla. 3d DCA 1985). Clearly, judicial labor is not at an end - the judgment below was vacated and the case remains pending. And again, Rules 9.110 and 9.130(a)(4) do not establish the jurisdiction of this Court to hear such an appeal - only the Florida Statutes may authorize circuit court appellate jurisdiction. [*5] Nor is the trial court's order reviewable by certiorari, because there was no departure from the essential requirements of law resulting in irreparable harm. See Pannell v. Triangle/Oaks Ltd. Partnership, 783 So. 2d 325 (Fla. 1st DCA 2001); citing Rodriguez v. Young America Corp., 717 So. 2d 621 (Fla. 3d DCA 1998) (citing numerous cases). The trial court's order vacated the judgment against Ms. Guevara and the case remains pending. There was no error for which Ms. Guevara cannot seek plenary appeal if and when a final judgment is secured against her. We therefore dismiss this appeal because an order which sets aside a default summary judgment is not an appealable order. Finally, even if we had jurisdiction, we would find no error in the trial court's order setting aside this final summary judgment.² Appeal DISMISSED.

TRAWICK, WALSH and REBULL, JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

Guevara at a nonexistent address. The trial judge relied on that same nonexistent address provided by the plaintiffs in serving its orders. Moreover, the trial court's unelaborated order vacating the summary judgment was entered after an evidentiary hearing for which no transcript has been provided to this Court.