561 So. 2d 1275 | Fla. Dist. Ct. App. | 1990
Lead Opinion
We dismiss for lack of jurisdiction over the order appealed. This action was brought against the plaintiff/appellant in the circuit court of Palm Beach County. The appellant moved to transfer venue on grounds that he has been a resident of Dade County for 10 years and that all activity pertinent to the action occurred in Dade County. The defendant contested the motion on grounds that the parties’ business was incorporated with its registered corporate office in Palm Beach County. The court denied Plaintiff’s motion and the plaintiff did not take an appeal from that order. Thereafter plaintiff filed a renewed motion to transfer venue, raising substantively the same grounds urged in the first motion. On motion of the defendant, the trial court struck this motion. There was no record made of the hearings on these motions and the parties were unsuccessful in their attempt to reconstruct the record from either of the hearings. The plaintiff timely appealed the order granting defen
We refer to the court’s analysis in Rosie O’Grady’s Inc. v. Del Portillo, 521 So.2d 183 (Fla. 3d DCA 1988) and the committee notes to rule 9.130, Florida Rules of Appellate Procedure, in reaching our conclusion that this rule provides for appeal of only the most urgent interlocutory orders. The language providing that those orders which “concern venue” are immediately appeal-able applies to those orders which “fix the locus” of the action. Rosie O’Grady's Inc., 521 So.2d at 184. Here, the order appealed determines only that the plaintiff may not have the court respond to his renewed motion to abate or transfer. However, it was the earlier order denying the motion to transfer which fixed the locus of the action. That order was not appealed.
We therefore conclude that the order appealed does not fall within this court’s jurisdiction and dismiss the appeal.
DISMISSED FOR LACK OF JURISDICTION.
Dissenting Opinion
dissenting.
I would take jurisdiction and affirm pursuant to Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), rather than deny jurisdiction on a close call.
I perceive from the record that defendant’s counsel raised a number of objections to venue in the initial motion and, believing the trial court did not address all of them in its order, sought action ruling on the grounds not addressed. Counsel, I believe, did the practical thing — given counsel’s belief that the other matters required addressing by the trial court. When the trial court subsequently struck the renewed motion, it made sense to appeal then.
I view the majority opinion as opting for judicial formalism at the expense of practical lawyering.
