Leibman v. Sportatorium, Inc.

• Decision Date: 12 September 1979
• Docket Number: No. 78-2669,78-2669
• Parties: Mark LEIBMAN, Petitioner, v. SPORTATORIUM, INC., a Florida Corporation, Respondent.
• Court: Florida District Court of Appeals

Page 1124

374 So.2d 1124

Mark LEIBMAN, Petitioner, v. SPORTATORIUM, INC., a Florida Corporation, Respondent.

No. 78-2669.

District Court of Appeal of Florida, Fourth District.

Sept. 12, 1979.

Elliott Heywood Lucas of Ser, DeCardenas, Levine, Busch & Allen, P. A., Miami, for petitioner.

Scott A. DiSalvo of Fazio, Dawson, Steinberg & DiSalvo, P. A., and Nancy Little Hoffman, Fort Lauderdale, for respondent.

PER CURIAM.

This petition for common law certiorari seeks to review an order setting aside a default entered by the Clerk after defendant failed to timely respond to plaintiff's complaint. For reasons set forth in Praet v. Martinez, 367 So.2d 657 (Fla. 3d DCA 1979), the petition for certiorari is denied. Even assuming the trial court's order vacating default to be a departure from the essential requirements of law, there appears no injury which cannot be remedied by appeal after final judgment. It is true that plaintiff may have to go through a needless trial, but this burden has been repeatedly held not to constitute material injury of an irreparable nature. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976), and Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975).

As stated in Praet, the order in question may not be the subject of an interlocutory appeal under Florida Rule of Appellate Procedure 9.130(a)(5) as it is not within the class of orders delineated in the rule. The order was not entered pursuant to Rule of Civil Procedure 1.540(b). Certiorari is, therefore, denied.

Certiorari denied.

DOWNEY, C. J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.

BERANEK, J., concurs specially with opinion.

BERANEK, Judge, concurring specially.

I begrudgingly concur. The new Florida Rules of Appellate Procedure effective March 1, 1978, substantially amended and restricted interlocutory appeals. Under Florida Appellate Rule 4.2 a of the 1962 revision, it was specifically provided that interlocutory appeals could be taken "from orders granting or denying motions to vacate defaults and from orders granting or denying dismissal for lack of prosecution." This provision was completely deleted from the 1977 Rules of Appellate Procedure. Rule 9.130 governs (interlocutory) appeals from non-final orders and nothing is specifically stated in the rule concerning appeals from orders vacating defaults. The committee notes are of some assistance but are not determinative. ¹ Despite some indication as to the survival of appeals from orders vacating clerk's defaults, I am persuaded by the Praet v. Martinez, supra, reasoning. As indicated in Praet and in the case of Sterling Drug, Inc. v. Wright, 307 So.2d 494 (Fla. 2d DCA 1975), Rule 1.540 applies only to final and not interlocutory orders. A court always has jurisdiction during the progress of a case to set aside or modify interlocutory orders before final judgment. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). Interlocutory orders are not within the restrictions provided in Rule 1.540 but are rather within the inherent power of the court to control the progress of the case prior to final judgment. Thus Rule 1.540 of the Rules of Civil Procedure is not the vehicle whereby a clerk's default may be vacated even though the grounds stated in the motion may be similar to or the same as the grounds listed in Rule 1.540. An order on a motion to vacate not filed pursuant to the technical requirements of the rule is not subject to interlocutory appeal.

I thus conclude that Florida Rule of Appellate Procedure 9.130 simply does not provide for an interlocutory appeal under these circumstances.

Although we do not take jurisdiction, I am constrained to comment upon the merits of the case since the matter has been thoroughly reviewed and since the propriety of the order in question has been argued at length by both parties.

Plaintiff filed suit and effected service of process through the Broward County Sheriff's Office. No responsive pleading was forthcoming and plaintiff applied for and obtained a default from the clerk of the court. Thereafter, defendant filed a motion to quash service of process and to vacate the default. This motion was based solely on alleged faulty service of process. An evidentiary hearing occurred on...