Pedro Realty, Inc. v. Silva, 80-2166
| Decision Date | 21 January 1981 |
| Docket Number | No. 80-2166,80-2166 |
| Citation | 392 So.2d 1005 |
| Parties | PEDRO REALTY, INC., Appellant, v. Jesus M. SILVA and Olga Silva, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Manuel Oliver, Hialeah, for appellant.
Irma V. Hernandez and Fernando E. Heria, Hialeah, for appellees.
Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
ON MOTION TO DISMISS
We are asked to decide whether an order denying a motion to vacate a default is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). We hold that such an order, because it determines liability in favor of a party seeking affirmative relief, satisfies the jurisdictional requisites of this rule and is appealable.
We adopt the reasoning found in Judge Hersey's special concurring opinion 1 in Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla.4th DCA 1980). We find some further, but slight, support in Overholser v. Overstreet, 383 So.2d 953 (Fla.3d DCA 1980), a case in which we specifically accepted jurisdiction under Rule 9.130(a)(3)(C)(iv) of an appeal from an order denying a motion to set aside a default, but in which our jurisdiction was apparently not questioned.
We find completely distinguishable cases which hold that an order granting a motion to vacate a default is not appealable, see, e. g., Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla.5th DCA 1980); Praet v. Martinez, 367 So.2d 657 (Fla.3d DCA 1979), since such an order does not determine liability in favor of a party seeking affirmative relief and, therefore, does not activate Rule 9.130(a)(3)(C)(iv). We find unpersuasive cases which, without any consideration or discussion of Rule 9.130(a)(3)(C)(iv), hold that an order denying a motion to vacate a default is not appealable. See, e. g., Moody v. Moody, 371 So.2d 553 (Fla.2d DCA 1979). 2
The motion to dismiss the appeal is denied.
I cannot agree that an order which denies a motion to vacate a default is one which, in any meaningful sense, "determines(s) ... the issue of liability in favor of a party seeking affirmative relief" under Fla.R.App.P. 9.130(a)(3)(C) (iv). It seems to me that the order "determines" only that the defendant-movant has not established his right to have a duly entered default set aside, and that the fact that this ruling has the consequential effect of foreclosing a liability defense does not bring the order within the narrowly-defined and limited class of non-final orders which are subject to interlocutory review. I therefore concur with the decisions in Moody v. Moody, 371 So.2d 553 (Fla.2d DCA 1979) and Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla.4th DCA 1980) that the rationale of Praet v. Martinez, 367 So.2d 657 (Fla.3d DCA 1979), 1 holding that the granting of a motion to vacate is unappealable, applies directly to the present situation. I would dismiss the appeal.
1 Despite being labeled a...
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B. C. Builders Supply Co., Inc. v. Maldonado
...Breezy Bay, Inc., supra. I would affirm. 1 We have jurisdiction pursuant to Fla.R.App.P. 9.130(a)(3)(C)(iv) and Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla.3d DCA 1981), supreme court review granted, Case No. 60,396. Contra, Sunny South Aircraft Service, Inc. v. Inversiones, 402 So.2d ......
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Gamboa v. Jones, 84-1183
...9.130(a)(3)(C)(iv). See Doctor's Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982), approving Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981), aff'd, 411 So.2d 872 (Fla.1982). Cognizant of the admonition that statutes governing substituted service of process mu......
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Heritage Paper Co., Inc. v. Farah, AS-319
...1980) (order determining sufficiency of allegations of class action not a determination of liability). But see Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981), approved, 411 So.2d 872 (Fla.1982) (order denying motion to vacate default does determine liability). If, however, a......
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Doctor's Hospital of Hollywood, Inc. v. Madison
...4th DCA 1981)), which is certified to be in direct conflict with a decision of another district court of appeal (Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981)). We have jurisdiction. Art. V, § 3(b)(4), Respondent, Hunter W. Madison (plaintiff below, hereinafter plaintiff), ......