DEPARTMENT OF PROFESSIONAL REGULATION AND GERALDINE JOHNSON, APPELLANTS/CROSS-APPELLEES,
v.
RENTFAST, INC., ET AL., APPELLEES/CROSS-APPELLANTS
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The Fifth District Court of Appeal dismissed an appeal and cross-appeal for lack of jurisdiction, holding that the orders being appealed—denying motions to dismiss and striking punitive damages with attorney's fees limitations—were non-final orders not appealable under Florida Rule of Appellate Procedure 9.130.
The court lacks jurisdiction to review any portions of the order under Rule 9.130 because the orders are non-final. The denial of motions to dismiss relates only to whether the complaint states a cause of action, not to the court's personal jurisdiction or power to bind the parties. The order striking punitive damages and limiting attorney's fees are also non-final matters not reviewable in an interlocutory appeal.
[1] An appellate court must sua sponte dismiss an appeal over which it lacks jurisdiction, even if the parties do not question jurisdiction.
[2] Orders denying motions to dismiss that address whether a complaint states a cause of action are generally not appealable as non-final orders.
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“Both of these matters determine whether the complaint states a cause of action against each appellant. They do not relate to matters concerning the court's jurisdiction or power to bind them to any ultimate decision rendered in the case.”
Establishes the distinction between substantive merits and jurisdictional issues in determining appealability
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Join FLexlaw to unlock all legal intelligenceRentfast, Inc., Randy Assad, and Fred Hodges filed a complaint against the Department of Professional Regulation and employee Geraldine Johnson for al…
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SHARP, Judge.
This is an appeal and cross-appeal from a non-final order, pursuant to Florida Rule of Appellate Procedure 9.130. Rentfast, Inc. (Rentfast), Randy Assad and Fred Hodges filed a complaint in the circuit court against The Department of Professional Regulation (DPR) and its employee, Geraldine Johnson, seeking compensatory and punitive damages for Johnson’s alleged illegal taping of a conversation with Hodges and Assad in Rentfast’s office, in violation of Chapter 934, Florida Statutes (1983).
DPR and Johnson filed motions to dismiss.1 The court denied DPR’s and Johnson’s motions to dismiss, struck appellees’ claim for punitive damages against DPR, and limited an award of attorney’s fees against it by applying section 768.28, Florida Statutes (1983). DPR and Johnson ap peal from the order denying their motions to dismiss and Rentfast, Assad and Hodges cross-appeal from the order striking punitive damages and limiting attorney’s fees.
After examining the appendixes and briefs filed in this case, we conclude that we lack jurisdiction to review any portions of the order being appealed under Florida Rule of Appellate Procedure 9.130. Although the jurisdiction of this court was not questioned by any party, it is our duty to sua sponte dismiss any appeal where it is clear we lack appellate jurisdiction under the rules. Ford Motor Company v. Averill, 355 So. 2d 220 (Fla. 1st DCA 1978).
In their brief, DPR and Johnson argue that the denial of their motions to dismiss determined the court’s personal jurisdiction over them. DPR argues it is not a “person” under the definition of Chapter 934,2 and therefore, it cannot make an illegal interception of an oral communication pursuant to section 934.03, Florida Statutes (1983). Johnson argues the conversation which she taped was public and not private, and therefore not a violation of Chapter 934.3
Both of these matters determine whether the complaint states a cause of action against each appellant. They do not relate to matters concerning the court’s jurisdiction or power to bind them to any ultimate decision rendered in the case. Cf. Adventura Realty, Ltd. v. Theuerkauf, 364 So. 2d 1261 (Fla. 4th DCA 1978). There is no question in this case concerning proper service of process or service on a nonresident via the “long-arm” statute. Therefore, the orders denying DPR’s and Johnson’s motions to dismiss are non-final and they are not appealable pursuant to Rule 9.130(a)(3)(c)(i). National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, Inc., 417 So. 2d 655 (Fla.1982).
The issues raised by Rentfast, Hodges and Assad in their cross-appeals are also not reviewable at this time by a non-final appeal. An order striking punitive damages, which are related to compensatory damages remaining in the suit to be tried, is not appealable. Weltz v. Mann, 383 So. 2d 324 (Fla. 5th DCA 1980); see also Bernstein v. First Federal Savings & Loan Association of Orlando, 384 So. 2d 301 (Fla. 5th DCA 1980). Similarly, the court’s ruling which limited attorney’s fees as to DPR, pursuant to section 768.28(8), Florida Statutes (1983), is also a non-final matter and not reviewable under any category set out in Rule 9.130.
DISMISSED.
DAUKSCH and COWART, JJ., concur. . They also filed a motion for the court to take judicial notice of DPR’s administrative complaint against Assad, Hodges and Rentfast, in which the appellees had filed an identical counterclaim. Pursuant to a stipulation, this motion was granted. That ruling has not been appealed.
. Section 934.02(5), Florida Statutes (1983) provides, "‘Person’ means any employee or agent of the state or political subdivision thereof and individual, partnership, association, joint stock company, trust, or corporation.”
. § 934.02, Fla.Stat. (1983).
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Comisky v. Rosen Mgmt. Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)…s for either dismissal of the action or dropping of the defendant, its violation deals with the power of the court “to bind [the defendants] to any ultimate decision rendered in the case,” see Department of Professional Regulation v. Rentfast, Inc., 467 So. 2d 486, 487 (Fla. 5th DCA 1985), because the service on a defendant will be invalid if it exceeds the prescribed time limit without good cause. In Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla.1992), the supreme court approved this court’s opinion hol…
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Sanford H. Cole, M.D. v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989)…n, Inc. v. Helprin, 357 So. 2d 204 (Fla. 4th DCA 1978). It relates to “matters concerning the court’s jurisdiction or power to bind [defendants] to any ultimate decision rendered in the case.” Department of Professional Regulation v. Rentfast, Inc., 467 So. 2d 486, 487 (Fla. 5th DCA 1985). Here, the issue before the trial court was the timeliness of the service of the initial process and pleading, and not whether the service of process was proper. The question before the trial court was not whether the court…
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WEG Industrias, S.A. v. Compania de Seguros Generales Granai, 937 So. 2d 248 (Fla. 3d DCA 2006)…between these parties must also be housed elsewhere. JURISDICTION Although not raised by the parties, we pause to consider the grounds by which we [*250] have jurisdiction to entertain this appeal. See Dep’t of Prof'l Regulation v. Rentfast, Inc., 467 So. 2d 486, 487 (Fla. 5th DCA 1985); see also Licata v. State, 80 Fla. 554, 556, 86 So. 427 (1920)(“Where the record shows a want of appellate jurisdiction in this court, the writ of error will be dismissed sua sponte.”). Some years ago, a panel of this court…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nat'l Lake Developments, Inc. v. Lake Tippecanoe Owners Ass'n, Inc., 417 So. 2d 655 (Fla. 1982)
- Graham Trucking Lines, Inc. v. C & D Trucking Serv., Inc., 383 So. 2d 324 (Fla. 5th DCA 1980)
- Bernstein v. First Fed. Sav. & Loan Ass'n OF Orlando, 384 So. 2d 301 (Fla. 5th DCA 1980)
- Ford Motor Co. v. Averill, 355 So. 2d 220 (Fla. 1st DCA 1978)
- Adventura Realty, Ltd. v. Theuerkauf, 364 So. 2d 1261 (Fla. 4th DCA 1978)