Nolan's Towing and Recovery v. Marino Trucking, Inc. , 1991 Fla. App. LEXIS 5624 ( 1991 )

581 So.2d 644 (1991)

NOLAN'S TOWING AND RECOVERY, Appellant,
v.
MARINO TRUCKING, INC., Appellee.

Nos. 90-2903, 90-2363.

District Court of Appeal of Florida, Third District.

June 18, 1991.

Elliot L. Miller, Miami Beach, for appellant.

Nancy Little Hoffman, Fort Lauderdale, for appellee.

Before HUBBART, COPE and GODERICH, JJ.

On Motion to Dismiss

PER CURIAM.

Appellee Marino Trucking, Inc. moves to dismiss a portion of the appeal of appellant Nolan's Towing and Recovery. We grant the motion.

The trial court entered an order granting plaintiff's motion for summary judgment. No final judgment was entered thereon. Appellant moved to set aside the order granting plaintiff's motion for summary judgment, relying on Rule 1.540(b)(4), Florida Rules of Civil Procedure. The motion was denied. Nolan's Towing appeals, inter alia, from an order denying that motion and from the order granting summary judgment.

We agree with appellee, first, that the order granting summary judgment is a non-final order which is not appealable as a final judgment. Shupack v. Allstate Ins. Co., 356 So.2d 1298 (Fla. 3d DCA 1978). Because it granted affirmative relief to a party seeking such relief, it could be appealed under the interlocutory appeal rule, Fla.R.App.P. 9.130(a)(3)(C)(iv), but no timely notice of appeal was filed. The appeal is dismissed as to that order. The ruling can, of course, be appealed after entry of final judgment in the case.

Second, a motion for relief from judgment under Rule 1.540(b), Florida Rules of Civil Procedure, may only be directed to a "final judgment, decree, order or proceeding... ." Id.; accord Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988). As the order granting summary judgment was not a final order, the motion filed by appellant could not be brought under Rule 1.540(b), but must instead be deemed to have been an interlocutory motion for reconsideration. See Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1388 n. 2 (Fla. 3d DCA), review denied, 494 So.2d 1153 (Fla. 1986). The order denying that motion is in the present case a non-final, nonappealable order. We therefore grant the motion to dismiss insofar as appellant seeks to appeal, at this time, the order denying relief from order granting summary judgment.

The dismissals herein are without prejudice to appellant's right to seek review of those rulings on appeal from final judgment, when entered. Appellee concedes that appellant's notices of appeal are effective with respect to two other orders entered in this case, and the appeal will remain pending as to those orders.