Cole v. Posada, s. 89-1669

• Decision Date: 12 September 1989
• Docket Number: Nos. 89-1669,89-1694 and 89-1760,s. 89-1669
• Citation: 14 Fla. L. Weekly 2132,555 So.2d 367
• Parties: 14 Fla. L. Weekly 2132 Sanford H. COLE, M.D., Sanford H. Cole, M.D., P.A., Baptist Hospital, Inc., d/b/a Baptist Hospital, and Av-Med, Inc., Appellants, v. Lourdes POSADA, as parent and natural guardian of Stephen Posada, a minor, and Lourdes Posada, individually, Appellees.
• Court: Florida District Court of Appeals

Page 367

555 So.2d 367

14 Fla. L. Weekly 2132

Sanford H. COLE, M.D., Sanford H. Cole, M.D., P.A., Baptist Hospital, Inc., d/b/a Baptist Hospital, and Av-Med, Inc., Appellants, v. Lourdes POSADA, as parent and natural guardian of Stephen Posada, a minor, and Lourdes Posada, individually, Appellees.

Nos. 89-1669, 89-1694 and 89-1760.

District Court of Appeal of Florida Third District.

Sept. 12, 1989.

Rehearings Denied Feb. 7, 1990.

Blackwell, Walker, Fascell & Hoehl, and Paul Larkin, Jr., and Kathleen M. Salyer, Miami, for appellant Baptist Hospital, Inc. d/b/a Baptist Hospital.

Stephens, Lynn, Klein & McNicholas, and Robert M. Klein, and Asa B. Groves, and Debra J. Snow, Miami, for appellants Sanford H. Cole, M.D., Sanford H. Cole, M.D., P.A.

Feldman & Ziegler, and Steven M. Ziegler, Coral Gables, for appellant AV-MED, Inc.

Stanley M. Rosenblatt, and Mary Margaret Schneider, Miami, for appellees.

Before HUBBART, FERGUSON and GERSTEN, JJ.

PER CURIAM.

In these consolidated appeals, appellants Sanford H. Cole, M.D., Sanford H. Cole, P.A., Baptist Hospital, Inc. and AV-MED, Inc. appeal a non-final order denying their motions to dismiss the complaint filed against them by appellees Lourdes Posada, individually, and as parent and natural guardian of Stephen Posada. We dismiss the consolidated appeals for lack of jurisdiction.

In the trial court action, appellants moved to dismiss appellees' complaint for failure to timely serve the initial process and pleading, as required by rule 1.070(j), Florida Rules of Civil Procedure. Rule 1.070(j), provides:

If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court's own initiative after notice or on motion.

The trial court denied appellants' motions to dismiss.

Appellants then brought this appeal to this court from the trial court's order denying their motions to dismiss. Appellees moved this court to dismiss appellants' appeals on the ground that the trial court order was not one of the enumerated non-final orders which we are authorized to review. Appellants assert that the trial court's order denying their motions to dismiss is an appealable non-final order pursuant to rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure. Rule 9.130(a)(3)(C)(i), permits district courts of appeal to review non-final orders of the lower court, which determine "jurisdiction of the person."

We conclude the trial court order denying appellants' motions to dismiss is a nonappealable, non-final order because it does not relate to a true "jurisdiction of the person" issue. Under rule 9.130(a)(3)(C)(i), "jurisdiction of the person" has been interpreted as referring to whether the service of process was proper or whether the long-arm statute has been correctly applied. See Strauss v. Gorman, 471 So.2d 1303 (Fla.3d DCA 1985); Page v. Ezell, 452 So.2d 582 (Fla.3d DCA 1984); National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, Inc., 395 So.2d 592 (Fla.2d DCA 1981), approved, 417 So.2d 655 (Fla.1982); American Health...