Lewis v. Burnside

593 So. 2d 1185, 1992 Fla. App. LEXIS 1264, 1992 WL 25924

Opinion

PER CURIAM.

The appellant, Nola Giovina Lewis, challenges an order denying her motion to dismiss a negligence action filed against her by the appellees, Patricia Burnside and Kenneth Burnside. We affirm.

The appellant contends that the action should have been dismissed pursuant to Florida Rule of Civil Procedure 1.070(j) because process was not served upon her within 120 days of the date the action was filed. Process was served only after the appellant’s motion to dismiss was filed, heard, and ruled upon. We agree with the-holding of our sister court in Partin v. Flagler Hospital, Inc., 581 So.2d 240 (Fla. 5th DCA 1991), that rule 1.070(j) does not apply to actions commenced before the rule became effective on January 1, 1989. Since this action was filed before the effective date of the rule, the trial court properly denied the appellant’s motion to dismiss. We, as did the court in Partin, recognize that our decision is in conflict with Berdeaux v. Eagle-Picher Ind., Inc., 575 So.2d 1295 (Fla. 3d DCA 1990).

Affirmed.

SCHOONOVER, C.J., and DANAHY and FRANK, JJ., concur.