Slade v. Federated
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2005
DAVID SLADE,
Appellant,
v.
FEDERATED NATIONAL INSURANCE COMPANY,
Appellee.
No. 4D04-1463
[June 22, 2005]
FARMER, C.J.
The insured under a motor vehicle policy provi ding for collision
coverage sued the insurance carrier on behalf of himself and a proposed
class of similar policy holders for violations of the repair and replacement
provisions. The insurance carrier moved to dismiss the class action
allegations on the grounds that they were not sufficient to maintain a
class action. After two hearings, the trial court dismissed the class
action allegations with prejudice.
The insured appealed the dismissal to this court, arguing that rule
9.130(a)(3)(C)(vi) and (a)(6) give us jurisdiction. Subdivision (a)(3)(C)(vi)
allows non-final review of orders determining “that a class should be
certified.” Subdivision (a)(6) allows non-final review of orders “that deny
motions to certify a class.” The order in question grants a motion
implicitly made under rule 1.140(b)(6) and dismisses class action
allegations. It does not determine that a class should not be certified.
Nor does it deny a motion to certify a class. We do not think the order is
reviewable.
We repeat the analysis we made in Jenne v. Maranto , 825 So.2d 409
(Fla. 4th DCA 2002), reh’g denied (Aug 21, 2002):
Our jurisdiction has been invoked under rule 9.130. As
the supreme court explained about nonfinal review under
this rule:
“The thrust of rule 9.130 is to restrict the number of
appealable nonfinal orders. The theory underlying the
more restrictive rule is that appellate review of nonfinal
judgments serves to waste court resources and needlessly
delays final judgment.”
Travelers Ins. Co. v. Bruns, 443 So.2d 959, 961 (Fla.1984).
The enumerated categories of permissible nonfinal review
stated in rule 9.130 must be limited to their plain meaning.
443 So.2d at 960 (“Petitioner’s argument is contrary to the
plain meaning of the rule····”). The rule does not authorize
judges to enlarge its provisions to permit review of nonfinal
orders not specified within its provisions. See B E & K Inc. v.
Seminole Kraft Corp., 583 So.2d 361, 364 (Fla. 1st DCA
1991) (“Piecemeal review of non-final orders prior to final
disposition of all issues must be strictly limited as much as
possible to conserve the sparse judicial resources available
at the appellate level.”).
Jenne, 825 So.2d at 412-13. Appellant invites us, in effect, to create
jurisdiction over orders dismissing class action allegations for legal
insufficiency by simple construction of the rule’s cited provisions. He
argues that orders dismissing (or striking, for the effect is identical) class
action allegations are within the broad purposes of allowing non-final
review of the class action orders already permitted and thus it is no
stretch to recognize review of the present order.
We disagree. The order involved here is not within the plain meaning
of the two provisions on which appellant relies. The only basis for
dismissal raised by the motion to dismiss under rule 1.140 was the legal
sufficiency of the pleading for class relief. Appellant had not move d to
certify the class. Indeed the issue of class certification usually requires
an evidentiary hearing, but the motion to dismiss presented only the
legal sufficiency of the bare pleading without any supporting evidence.
Upon final review we might agree with appellant that it was error to
dismiss the class action allegations without first allowing an amendment
to attempt to cure any perceived defects in the class as pleaded. We may
even agree that it was also error to treat the motion to dismiss as the
functional equivalent of a motion to deny class certification because that
issue could not have been addressed or determined upon the mere filing
of the complaint and the motion to dismiss. We are confident, however,
that the trial judge will be sensitive to these issues upon remand and
allow appellant to try again.
2
Appeal Dismissed.
STONE and MAY, JJ., concur.
*
*
*
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Dorian Damoorgian, Judge; L.T. Case
No. 99-21108 CACE 12.
Diran V. Seropian of Edna L. Caruso, P.A., West Palm Beach, Jeffrey
Orseck of Jeffrey Orseck, P.A., Fort Lauderdale, Brian M. Torres of
Sheftall & Torres, P.A., Miami, and Jack Scarola and Sean C. Domnick of
Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for
appellant.
Mara Shlackman and Hinda Klein of Conroy, Simberg, Ganon,
Krevans & Abel, P.A., Hollywood, for appellee.
Not final until disposition of timely filed motion for rehearing.
3
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