Burger King Corp. v. Rudge
630 So. 2d 632
Fla. Dist. Ct. App.
1994
Check Treatment

Lead Opinion

PER CURIAM.

AFFIRMED. The trial court declined to dismiss appellee’s case even though the ap-pellee 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).



Concurrence Opinion

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.