Wednesday, June 10, 2009

Fourth District Holds You Do Not Waive Right to Appeal After Judgment by Not Filing Interlocutory Appeal

In United Automobile Insurance Company v. Buchalter (4D09-566), on second-tier certiorari review, the Fourth District reversed the circuit court's dismissal of the appellants appeal.

The circuit court dismissed because it believed United had failed to appeal the order as an interlocutory appeal.

The Fourth DCA stated: "Second-tier certiorari will lie in this Court from final determinations by the circuit court made in its appellate capacity. The petitioner must demonstrate that the circuit court failed to afford procedural due process or failed to apply the correct law (the equivalent of a departure from the essential requirements of law)."

"As UAIC observes, there is no authority for a non-final appeal from an order striking a defendant’s pleadings and entering a default, even under rule 9.130(a)(3)(C), since the rule was amended in 2000 resulting in removal of the provision for appeals of orders determining liability in favor of a party seeking affirmative relief...Further, even if the order was appealable as an interlocutory appeal, petitioner still had the right to wait to appeal the order after final judgment in a plenary appeal."


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