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RD G Leasing, Inc. v. Stebnicki

District Court of Appeal of Florida, Third District
Dec 14, 1993
626 So. 2d 1002 (Fla. Dist. Ct. App. 1993)

Summary

holding that an order denying a motion to dismiss that contains one ruling that is subject to interlocutory appeal under rule 9.130 does not mean that any other ruling contained in the same written order "tags along" and is therefore also reviewable

Summary of this case from Phuong v. Mina

Opinion

No. 92-2179.

October 26, 1993. Rehearing Denied December 14, 1993.

Appeal from the Circuit Court, Dade County, Harold Solomon, J.

Richard A. Sherman, P.A., Ft. Lauderdale, Law Offices of Roland Gomez and Steven A. Edelstein, Miami, for appellant.

G.P. Weidinger, Ft. Lauderdale, for appellee.

Before HUBBART, BASKIN and COPE, JJ.


ON MOTION TO DISMISS


RD G Leasing, Inc., appeals an order denying its motion to dismiss the complaint for failure of plaintiff-appellee Richard N. Stebnicki to accomplish service of process within the 120 days required by Florida Rule of Civil Procedure 1.070(i) (1993). As the order is a nonappealable non-final order, the appeal is dismissed on authority of Rosenthal v. Watkins, 623 So.2d 855 (Fla. 3d DCA 1993); Macke Laundry Services, Inc. v. Saintil, 568 So.2d 541 (Fla. 4th DCA 1990); DCA of Hialeah, Inc. v. Lago Grande One Condominium Ass'n, Inc., 559 So.2d 1178 (Fla. 3d DCA 1990); Cole v. Posada, 555 So.2d 367 (Fla. 3d DCA 1989). Certiorari is denied on authority of Macke, 568 So.2d at 542, because there is an adequate remedy by appeal at the conclusion of the case.

Prior to January 1, 1993, the rule was designated Rule 1.070(j). See In re Amendments to Florida Rules of Civil Procedure, 604 So.2d 1110, 1117 (Fla. 1992).
An earlier appeal between these parties is reported as Stebnicki v. Wolfson, 584 So.2d 177 (Fla. 3d DCA 1991).

RD G attempts to distinguish the foregoing authorities, based on the fortuity that the written order denying the motion to dismiss also contained a ruling which quashed service of process. It is, of course, true that an order quashing service of process is an appealable non-final order. See Fla.R.App.P. 9.130(a)(3)(C)(i); Far Out Music, Inc. v. Jordan, 438 So.2d 912, 913 (Fla. 3d DCA 1983). RD G reasons that if the written order contains one ruling which is subject to interlocutory appeal under Rule 9.130, then any other ruling which is contained in the same written order "tags along" and is reviewable on interlocutory appeal. That is not so. To begin with, RD G procured the ruling quashing service. Neither RD G nor any other party to this case has appealed the ruling quashing service. More important, only the matters set forth in Rule 9.130 have been determined to justify an interlocutory appeal as a matter of right. An order denying a motion to dismiss under present rule 1.070(i) is not such a matter and may not be the subject of interlocutory appeal. See Northcutt v. Pathway Financial, 555 So.2d 368, 369 (Fla. 3d DCA 1989), review denied, 563 So.2d 633 (Fla. 1990). Orders which are not enumerated in Rule 9.130 must await review at the end of the case, unless they meet the standard for certiorari or another extraordinary writ. As already stated, the standards for review by certiorari, the only arguably available writ, have not been satisfied in this case.

In support of its analysis, RD G relies on Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992). That case, however, by its terms involves the jurisdictional effects of section 768.28, Florida Statutes (1989), a consideration which is entirely absent in the present case. Austin is readily distinguished from the case now before us.

RD G's reliance on Morales v. Sperry Rand Corp., 601 So.2d 538 (Fla. 1992), is also misplaced. That decision did not address the question of appealability of a non-final order denying a motion to dismiss under Rule 1.070(i).

Appeal dismissed.


Summaries of

RD G Leasing, Inc. v. Stebnicki

District Court of Appeal of Florida, Third District
Dec 14, 1993
626 So. 2d 1002 (Fla. Dist. Ct. App. 1993)

holding that an order denying a motion to dismiss that contains one ruling that is subject to interlocutory appeal under rule 9.130 does not mean that any other ruling contained in the same written order "tags along" and is therefore also reviewable

Summary of this case from Phuong v. Mina

holding that where a non-final order subject to review under Rule 9.130 contains other rulings which are not independently appealable, they do not "tag along" for purposes of jurisdiction and review by the appellate court

Summary of this case from Sch. Bd. of Broward Cnty. v. City of Coral Springs

holding that an order denying a motion to dismiss, which was not an appealable, nonfinal order, did not become appealable based on the fortuity that the written order denying the motion to dismiss also contained a ruling on another motion which was an appealable, nonfinal order

Summary of this case from Tampa v. Addison

finding no interlocutory jurisdiction over order denying motion to dismiss

Summary of this case from United Services Auto. v. Modregon

recognizing rule 1.930 does not permit interlocutory review of order denying motion to dismiss simply because of fortuity that order also quashed service of process; fact that order rules on an issue that is subject to interlocutory appeal does not permit rulings made in same order on other issues to “tag along”

Summary of this case from Swartz v. CitiMortgage, Inc.

recognizing rule 1.930 does not permit interlocutory review of order denying motion to dismiss simply because of fortuity that order also quashed service of process; fact that order rules on an issue that is subject to interlocutory appeal does not permit rulings made in same order on other issues to "tag along"

Summary of this case from Swartz v. CitiMortgage, Inc.

stating that when an order contains one ruling that is subject to interlocutory appeal under Rule 9.130, other rulings that are contained in the same written order may not "tag along" and are not reviewable on interlocutory appeal

Summary of this case from Stalnaker v. Stalnaker
Case details for

RD G Leasing, Inc. v. Stebnicki

Case Details

Full title:RD G LEASING, INC., APPELLANT, v. RICHARD NICHOLAS STEBNICKI, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Dec 14, 1993

Citations

626 So. 2d 1002 (Fla. Dist. Ct. App. 1993)

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