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Kozusnik v. Selkowitz

District Court of Appeal of Florida, Third District
Feb 15, 1980
379 So. 2d 168 (Fla. Dist. Ct. App. 1980)

Opinion

No. 79-2110.

January 22, 1980. Rehearing Denied February 15, 1980.

Petition for review from the Dade County Circuit Court, Joseph Durant, Jr., J.

R. Stuart Huff, Coral Gables, for appellant.

Weinstein Bavly and Arthur J. Morburger, Miami, for appellee.

Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.


This petition for writ of certiorari seeks review of a judgment of the Circuit Court in its appellate capacity, which first dismissed, as frivolous, petitioner-appellant's appeal from an order of the County Court and second remanded the cause for the assessment of attorneys' fees in the trial court. The order of the County Court granted a defendant's motion to strike an amended complaint; it did not enter a judgment. As such, it was not a final order and was, therefore, not appealable. See Roberts v. Knoll, 169 So.2d 496 (Fla. 2d DCA 1964); Altiere v. Atlantic National Bank of West Palm Beach, 155 So.2d 386 (Fla. 2d DCA 1963); and Shotkin v. Deehl, 148 So.2d 538 (Fla. 3d DCA 1963).

The Circuit Court properly dismissed the appeal, but, nevertheless, that decision must be quashed because it concerned the merits, and the merits were not presented by an appeal over which the Circuit Court had jurisdiction. We hold that this is a distinction which is material because there has been no final judgment in the trial court. Accordingly, the right to amend or file a new action in the trial court still exists in the petitioner.

The judgment of the Circuit Court is quashed.

It is so ordered.


Summaries of

Kozusnik v. Selkowitz

District Court of Appeal of Florida, Third District
Feb 15, 1980
379 So. 2d 168 (Fla. Dist. Ct. App. 1980)
Case details for

Kozusnik v. Selkowitz

Case Details

Full title:SARAH ANN KOZUSNIK, APPELLANT, v. LEONARD SELKOWITZ, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Feb 15, 1980

Citations

379 So. 2d 168 (Fla. Dist. Ct. App. 1980)

Citing Cases

Bashure v. Estate of Paulk

Id. An order granting a motion to strike is not a final appealable order under Fla.R.App.P. 9.130. See…