Bastida v. Vitaver

590 So. 2d 1092, 1991 WL 272718

• Court: District Court of Appeal of Florida
• Decided: December 24, 1991
• Docket: 91-2157
• Status: Published

Opinion

590 So.2d 1092 (1991)

Susana Ines BASTIDA, Appellant,
v.
Pablo Raul VITAVER, Appellee.

No. 91-2157.

District Court of Appeal of Florida, Third District.

December 24, 1991.

Lazara L. Balseiro, Miami, for appellant.

Harvey D. Rogers, Miami, for appellee.

Before HUBBART, NESBITT and COPE, JJ.

ON MOTION TO DISMISS

PER CURIAM.

The appellant Susana Ines Bastida appeals from an order of the circuit court which denies appellant's motion for rehearing and clarification of an order dismissing without prejudice her motion to vacate a final judgment filed pursuant to Fla. R.Civ.P. 1.540. The appellee Pablo Raul Vitaver moves to dismiss this appeal. At the oral argument on this motion, appellant asserted that she sought solely to appeal the above order on rehearing and did not seek review of the order dismissing without prejudice her 1.540 motion to vacate. We grant the motion to dismiss upon a holding that the order sought to be reviewed is plainly a non-final order which is not appealable under Fla.R.App.P. 9.130(a), as authorized by Article V, Section 4(b)(1) of the Florida Constitution.

We note, however, that appellant has filed an amended motion to vacate under Fla.R.Civ.P. 1.540, as authorized by the above order of dismissal without prejudice, which amended motion is presently pending in the trial court. Any order finally disposing of this amended motion would be appealable as a final order under the method prescribed by Fla.R.App.P. 9.130(a)(5), although the time for taking such an appeal would not be stayed by a motion for rehearing filed thereafter. Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386 (Fla. 3d DCA), rev. denied, 494 So.2d 1153 (Fla. 1986). Moreover, the appellant on such an appeal would be permitted to assert as error the denial of her motion for rehearing and clarification from which she abortively seeks review in the instant appeal.

Appeal dismissed.