final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 17-17875 Pedro P.
Echarte, Jr., Judge.
Shevlin & Atkins, and Andrew S. Atkins, for appellant.
Singerman LLP, and Mitchell W. Berger and Jeffrey S. Wertman
(Fort Lauderdale), for appellee.
LOGUE, SCALES and LINDSEY, JJ.
Lincoln Enterprise, LLC, the tenant, seeks appellate review
of a non-final order that lifted a previously entered stay on
eviction proceedings against it. We lack jurisdiction to
review the trial court's non-final order and dismiss the
of 2017, Lincoln Enterprise filed a declaratory judgment
action seeking court intervention to resolve the parties'
dispute over the calculation of annual rent under the
parties' lease agreement.
two weeks after Lincoln Enterprise filed its declaratory
judgment action, appellee Herbert Z. Bookstein, the landlord,
filed a separate complaint against Lincoln Enterprise for
summary eviction and damages. In this eviction action,
Bookstein alleges that Lincoln Enterprise is in default under
the lease for failure to pay an increased sum of rent. In the
eviction action, Lincoln Enterprise filed an answer and
affirmative defenses, in which it raises many of the same
issues that form the basis of its declaratory judgment
action. In the eviction case, Bookstein filed a motion
pursuant to section 83.232 of the Florida Statutes to have
the court set an evidentiary hearing to determine the amount
of rent Lincoln Enterprise should pay into the registry of
the court while the dispute is pending. The trial court set a
December 8, 2017 hearing date for Bookstein's section
on the parties' stipulation, the trial court, in October
of 2017, consolidated the two cases under the earlier filed
declaratory judgment action's case number
(2017-017875-CA-09). In its consolidation order, the trial
court determined that "the two cases are interrelated
and a just, fair and complete resolution of the issues raised
in both cases can be accomplished more efficiently and
expeditiously by consolidating the cases."
November 22, 2017, the trial court stayed the eviction
proceedings for thirty days and cancelled the December 8,
2017 hearing. A week later, on November 29, 2017, the trial
court entered the order on appeal that lifted the previously
entered stay and re-set the December 8th hearing on
Bookstein's section 83.232 motion. Bookstein has
moved to dismiss Lincoln Enterprise's appeal on both
jurisdictional and mootness grounds.
Lincoln Enterprise's response to Bookstein's motion
to dismiss the appeal, Lincoln Enterprise states, "the
subject matter on appeal is the lower court's error in
not staying the Landlord's later filed Eviction Action,
pending the disposition of the Tenant's Declaratory
Judgment Action because the two cases involve the same
parties and the same subject matter."
of how Lincoln Enterprise characterizes "the subject
matter on appeal, " it is axiomatic that this
Court's appellate jurisdiction is limited to review of
those non-final orders specifically scheduled in Florida Rule
of Appellate Procedure 9.130(a)(3). Consequently, we lack
subject matter jurisdiction to review the trial ...