Rios v. Miami's Garage, Inc. , 2017 Fla. App. LEXIS 5764 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed April 26, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-300
Lower Tribunal No. 14-30412
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Jorge Rios,
Appellant,
vs.
Miami's Garage, Inc., a Florida Corporation, and Professional Lien
and Title Service Corp., a Florida Corporation,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge.
Law Offices of Yoder & Ohanian, LLC, and Sebastian Ohanian, for
appellant.
Richard Lorenzo, for appellees.
Before LAGOA, SALTER, and FERNANDEZ, JJ.
ON MOTION TO DISMISS
LAGOA, J.
Jorge Rios (“Rios”) appeals from a non-final order denying his motion for
summary judgment. Appellees, defendants below, Miami’s Garage, Inc.
(“Miami’s Garage”), and Professional Lien and Title Service, Corp. (“Professional
Lien”) (collectively “Defendants”), move to dismiss the appeal for lack of
jurisdiction. We grant the motion and dismiss the appeal.
I. FACTUAL AND PROCEDURAL HISTORY
Rios filed an action against Defendants for the purported taking and titling
of a Lamborgini. The parties agree that Rios and Miami’s Garage entered into an
agreement to repair the vehicle. The parties do not agree on what occurred next.
Rios asserted that Miami’s Garage ceased working on the vehicle over a dispute
about the amount of time the repairs were taking and Miami’s Garage asserted that
Rios was responsible for supplying the parts to repair the vehicle but failed to do
so. Both parties agree that Miami’s Garage hired Professional Lien to place a lien
on the vehicle and to auction the vehicle at a public auction. Because no bids
were made on the vehicle in excess of the lien amount, Miami’s Garage prevailed
on the lien claim. Following the auction, Professional Lien made an application
for title to the vehicle, which was subsequently approved in the name of Miami’s
Garage.
Rios and the Defendants filed cross-motions for summary judgment. A
hearing was held on the cross-motions and the trial court entered an order that
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stated: “Plaintiff’s motion for summary judgment . . . is denied [and] Defendants’
cross motion for summary judgment is taken under advisement.” This appeal
ensued.
II. ANALYSIS
Defendants move to dismiss this appeal as taken from a non-final, non-
appealable order. In response to the motion to dismiss, Rios contends that the trial
court’s order is an appealable order because it denies him immediate possession of
property under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii).
We are unpersuaded by Rios’s argument, as the trial court’s order did not
determine that any party was entitled to immediate possession of the vehicle. See
Profile Invs., Inc. v. Delta Prop., Inc., 957 So. 2d 70 (Fla. 1st DCA 2007)
(dismissing appeal of order as non-final and non-appealable where “order [did] not
directly determine the immediate right to possession of property”); cf.
Thunderbird, Ltd., v. Great Am. Ins. Co., 470 So. 2d 2, 3 (Fla. 1st DCA 1985)
(denying motion to dismiss appeal and finding that interlocutory order that ordered
receiver to take exclusive possession of property was an appealable non-final order
pursuant to Rule 9.130(a)(3)(C)(ii)). Indeed, the order merely denies Rios’s
motion for summary judgment and reserves ruling on Defendants’ motion for
summary judgment. An order denying a motion for summary judgment does not
fall within any of the categories as appealable, non-final orders set forth in Rule
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9.130(a)(3).1 See Taggart v. Morgan, 943 So. 2d 250 (Fla. 3d DCA 2006).
Accordingly, we dismiss the appeal for lack of jurisdiction.
1 Rule 9.130(a)(3) permits review of non-final orders that:
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to
modify or dissolve injunctions;
(C) determine
(i) the jurisdiction of the person;
(ii) the right to immediate possession of property, including but
not limited to orders that grant, modify, dissolve or refuse to
grant, modify, or dissolve writs of replevin, garnishment, or
attachment;
(iii) in family law matters:
a. the right to immediate monetary relief;
b. the rights or obligations of a party regarding child
custody or time-sharing under a parenting plan; or
c. that a marital agreement is invalid in its entirety;
(iv) the entitlement of a party to arbitration, or to an appraisal
under an insurance policy;
(v) that, as a matter of law, a party is not entitled to workers'
compensation immunity;
(vi) whether to certify a class;
(vii) that, as a matter of law, a party is not entitled to absolute
or qualified immunity in a civil rights claim arising under
federal law;
(viii) that a governmental entity has taken action that has
inordinately burdened real property within the meaning of
section 70.001(6)(a), Florida Statutes;
(ix) the issue of forum non conveniens;
(x) that, as a matter of law, a party is not entitled to immunity
under section 768.28(9), Florida Statutes; or
(xi) that, as a matter of law, a party is not entitled to sovereign
immunity.
(D) grant or deny the appointment of a receiver, and terminate or
refuse to terminate a receivership.
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Appeal Dismissed.
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