OUTBOARD MARINE CORPORATION AND ADVENTURENT, INC., APPELLANTS,
v.
E.G. HUGGINS AND MAX PEARSON, APPELLEES
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Outboard Marine Corporation and Adventurent, Inc. appealed a trial court order striking their pleadings, but the Fourth District Court of Appeal dismissed the appeal for lack of jurisdiction because the order did not fall within the categories of non-final orders reviewable under Florida Rule of Appellate Procedure 9.180.
The order striking pleadings does not fall within any of the categories of reviewable non-final orders under Rule 9.180, and the notice of appeal was filed prematurely. The appeal is dismissed for lack of jurisdiction.
[1] An order striking a party's pleadings is not reviewable as a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) unless it determines liability i…
[2] Appellate courts may treat an improperly filed appeal as a petition for writ of certiorari only when the order violates the essential requirements of law and leaves no ad…
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Join FLexlaw to unlock all legal intelligence“Rule 9.180 provides that non-final orders are only reviewable when they concern the following issues: (A) Venue. (B) The granting, continuance, modification, denial or dissolution of injunctions, or the refusal to modify or dissolve injunctions. (C) The determination of: (i) Jurisdiction of the person. (ii) Right to immediate possession of property. (iii) Right to immediate monetary relief or child custody in domestic relations matters. (iv) Liability in favor of a party seeking affirmative relief. (v) Whether a party is entitled to arbitration.”
Establishes the exhaustive list of non-final orders that are reviewable on appeal under Florida appellate procedure rules
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Join FLexlaw to unlock all legal intelligenceThe trial court issued an order striking the pleadings of appellants Outboard Marine Corporation and Adventurent, Inc. Appellants filed a notice of ap…
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PER CURIAM.
This non-final appeal arose from the trial court’s order striking the pleadings of the appellants. Although appellants’ notice of appeal characterizes the order below as one determining liability in favor of a party seeking affirmative relief, we find that it does not. Accordingly, we are unable to consider the case under Florida Rule of Appellate Procedure 9.130 and we therefore dismiss, sua sponte.
Rule 9.180 provides that non-final orders are only reviewable when they concern the following issues:
(A) Venue.
(B) The granting, continuance, modification, denial or dissolution of injunctions, or the refusal to modify or dissolve injunctions.
(C)The determination of:
(i) Jurisdiction of the person.
(ii) Right to immediate possession of property.
(iii) Right to immediate monetary relief or child custody in domestic relations matters.
(iv) Liability in favor of a party seeking affirmative relief.
(v) Whether a party is entitled to arbitration.
In the case at bar the order appealed from does not fit into any of the categories listed above and therefore the notice of appeal of this particular matter was filed prematurely. In order for jurisdiction to lie under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) the appellee would have had to proceed (i.e., by motion for partial summary judgment or judgment on the pleadings) to an order that specifically found liability against appellants, if not a final judgment.
In some cases an improperly filed appeal can be treated by the appellate court as a petition for writ of certiorari. This is so when the order violates the essential requirements of law1 and causes material injury to the petitioner throughout the remainder of the proceedings below, leaving no adequate remedy on appeal. However, in the instant case the appellants can seek review by plenary appeal. When such a remedy is available we cannot grant certiorari. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987).
This non-final appeal is therefore dismissed, sua sponte.
LETTS and POLEN, JJ., concur. GUNTHER, J., concurs in conclusion only.
. As we are without jurisdiction to consider this case, we do not reach a determination of whether or not the order complained of violates the essential requirements of law.
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Cotton States Mut. Ins. v. D'Alto, 879 So. 2d 67 (Fla. 1st DCA 2004)…s objective, the courts have narrowly construed the scope of the rule so that it applies only to the orders it identifies as appealable orders. See, e.g., Valenzuela v. Valenzuela, 648 So. 2d 741 (Fla. 3d DCA 1994); Outboard Marine Corp. v. Huggins, 583 So. 2d 433 (Fla. 4th DCA 1991); Neilinger [*70] v. Baptist Hospital of Miami, Inc., 460 So. 2d 564 (Fla. 3d DCA 1984). The part of the rule at issue here, subdivision (a)(3)(C)(iv), authorizes an appeal from a nonfinal order that determines “the entitlement o…
Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)