Bounty International, Inc. v. Klein

804 So. 2d 614, 2002 Fla. App. LEXIS 384, 2002 WL 83756

Opinion

WEBSTER, J.

Appellant seeks review pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A) of a non-final order granting a motion for reconsideration and vacating a prior order granting a motion to transfer because of improper venue. Appellee responds that, because it is apparent from the trial court’s remarks that the question of where venue lies remains open and appellant has not been required to litigate on the merits, the trial court’s order did not “fix the locus of the action” and, therefore, the appeal must be dismissed because the order is not one that “concern[s] venue,” as that term is used in rule 9.130(a)(3)(A). We agree with appellee. Accordingly, the appeal is dismissed as one from a non-appealable non-final order. Compare Rosie O’Grady's Inc. v. Del Portillo, 521 So.2d 183, 184 (Fla. 3d DCA 1988) (an order denying a motion to dismiss for failure to pay the transfer fee was not appeal-able as one concerning venue because it did not “fix[ ] the locus of the action”), with Dep’t of Mgmt. Servs. v. Fastrac Constr., Inc., 701 So.2d 1200, 1201 (Fla. 5th DCA 1997) (an order which, while purporting to defer a ruling on a motion to transfer venue, required the appellant to litigate the action on the merits, “ ‘fixe[d] the locus’ of the action, and thus ‘concerned] venue’ ” as contemplated by rule 9.130(a)(3)(A)).

APPEAL DISMISSED.

WOLF and BROWNING, JJ., concur.