BURGER KING CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
WILLIAM JOHN RUDGE, AND PRISM INTEGRATED SANITATION MANAGEMENT, INC., F/K/A BUGS BURGER BUG KILLER, INC., F/K/A BUGS BURGER CHEMICAL COMPANY, INC., APPELLEES; PRISM INTEGRATED SANITATION MANAGEMENT, INC., F/K/A BUGS BURGER BUG KILLERS, INC., AND BUGS BURGER CHEMICALS, INC., F/K/A BUGS BURGER CHEMICAL COMPANY, INC., APPELLANTS, V. WILLIAM JOHN RUDGE, AND BURGER KING CORPORATION, A FLORIDA CORPORATION, APPELLEES
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PER CURIAM.
AFFIRMED. The trial court declined to dismiss appellee’s case even though the appellee did not effect service of process upon the appellants within 120 days of filing suit. See Fla.R.Civ.P. 1.070(i).1 The trial court relied upon the holding in Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla.1992), that trial courts have “broad discretion in declining to dismiss an action if reasonable cause for the failure to effect timely service is documented.” Id. at 540. Here, the appel-lee’s attorneys put on substantial evidence demonstrating their own “excusable neglect” in delaying service because a serious ethical question had arisen as to their representation of the appellee. We believe this was sufficient to permit the trial court to exercise its discretion.
ANSTEAD and WARNER, JJ., concur. POLEN, J., concurs specially with opinion.
. We have jurisdiction. See Comisky v. Rosen Management Service, Inc., 630 So. 2d 628 (Fla. 4th DCA 1994).
POLEN, Judge,
concurring specially.
I have no quarrel with the result reached by the majority. I write separately to reiterate my dissent in Comisky (fn. 1), that appellate courts should not exercise jurisdiction over non-final appeals from orders of the trial courts denying motions to dismiss pursuant to Florida Rule of Civil Procedure 1.070(i). The majority of this court, sitting en banc, has held otherwise in Comisky. I am obliged to follow that directive.
Cases With Similar Vibessemantic neighbors from the corpus
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Patterson v. Loewenstein, 686 So. 2d 776 (Fla. 4th DCA 1997)…“service could not be made within the 120-day period.” Although this holding is in conformity with Hodges v. Noel, 675 So. 2d 248 (Fla. 4th DCA 1996), our holding may be overly broad. Our holding may also conflict with Burger King Corp. v. Rudge, 630 So. 2d 632 (Fla. 4th DCA 1994), in which we upheld a trial court’s refusal to dismiss a case where the attorneys had put on “substantial evidence demonstrating their own ‘excusable neglect’ in delaying service because a serious ethical question had arisen as t…
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Devcon Int'l Corp. v. Mejia, 636 So. 2d 200 (Fla. 4th DCA 1994)…PER CURIAM. Affirmed. See Burger King Corp. v. Rudge, 630 So. 2d 632 (Fla. 4th DCA 1994). HERSEY, GLICKSTEIN and POLEN, JJ., concur.…
Authorities Cited
- Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla. 1992)
- Comisky v. Rosen Mgmt. Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)