Fiocchi v. Trainello

566 So. 2d 904, 1990 WL 129697

Opinion

566 So.2d 904 (1990)

Marie M. FIOCCHI and Edward Fiocchi, Appellants,
v.
Ralph TRAINELLO, Appellee.

No. 90-1268.

District Court of Appeal of Florida, Fourth District.

September 12, 1990.

H. Bryant Sims, West Palm Beach, for appellants.

Richard S. Cohen, West Palm Beach, for appellee.

PER CURIAM.

This is an appeal of a non-final order wherein the trial court denied appellants' motion to dismiss for lack of subject matter and personal jurisdiction. We affirm in part and dismiss in part.

Appellants' first motion to dismiss filed on March 22, 1990, asserted only the issue of the statute of limitations. The trial court denied that motion. However, appellants then filed a second motion on April 13, 1990, raising for the first time the issue of personal jurisdiction and subject matter jurisdiction. We conclude that the trial court properly denied this second motion since appellants waived the issue by not raising it in their initial motion to dismiss. Zimmerman v. Weinberg, 557 So.2d 193 (Fla. 4th DCA 1990); Joannou v. Corsini, 543 So.2d 308 (Fla. 4th DCA 1989). Further, an appeal of an order denying subject matter jurisdiction does not come within the purview of rule 9.130(a)(3)(C)(i) and is a non-final nonappealable order. Warren v. Southeastern Leisure Systems, Inc., 522 So.2d 979 (Fla. 1st DCA 1988). Thus, we dismiss that part of the appeal. Accordingly, we affirm point I in part and dismiss in part and affirm point II on appeal.

DOWNEY, WARNER and POLEN, JJ., concur.