Nova Law Review - CORE

s' experience under the FloridaAdministrative Procedure Act, which provides for judicial review either in'the district court of appeal in the appellate district where the agency52. Cottingham, 672 So. 2d at 28. For a recitation of the complicated factual circumstances that led to the certified question, as well as a more complete statement of the standardsestablished by Vasilinda, see Musto, supra note 28, at 18-20.53. Cottingham,672 So. 2d at 29-30.54. 674 So. 2d 195 (Fla. 3d Dist. Ct. App. 1996).55. Key Largo is located in Monroe County, which constitutes the sixteenth circuit, a partof the third district. Miami is located in Dade County, which constitutes the eleventh circuit, apart of the third district. Tallahassee is located in Leon County, which is one of the countiesin the second circuit, a part of the first district.56. FLA. STAT. § 443.151(4)(e) (1995).57. Mendelman, 674 So. 2d at 196.58. Id.http://nsuworks.nova.edu/nlr/vol21/iss1/310

1996]MustoMusto: Appellate Practicemaintains its headquarters or where a party resides."' 59 The court also stated'6that in taking its view, it was "influenced by practical considerations,"specifically the fact that it generally grants requests for oral argument inunemployment compensation appeals and the court's belief that its interpretation would therefore "provide more convenient access to the appellatecourts.'The decision in Mendelman raises a number of questions about the ruleof law applicable to other factual situations. For instance, if a claimant andan employer participate from locations in two different districts, while theappeals referee is in a third, is a party taking an appeal able to select venuefrom among three district courts? Does the rule of law set forth in Mendelman apply if a party who lives in one district travels to another district andparticipates in a hearing for the sole purpose of being able to subsequentlyappeal to the court of appeal for that district? Can parties and their attorneysexpand the number of possible venues by participating from differentlocations? If a party participates on a cellular phone while driving throughseveral districts, can an appeal go to any of those districts? To the extentthat the practical consideration of providing convenient access for oralargument underlies the rule of law adopted in Mendelman, would a differentconclusion be reached when the oral argument in the more distant courtwould be heard by video teleconference? 62These questions and others will likely have to be dealt with at somepoint. If they prove too troublesome, consideration of whether the thirddistrict's approach should be abandoned in favor of the position advocatedby the commission in Mendelman might also become a question that willneed to be addressed.59. Id. at 196 (footnote) (citing FLA. STAT. § 120.68(2) (1995)).60. Id. at 196.61. Id.62. In In re Oral Argument By Video Teleconference Network, 648 So. 2d 763 (Fla. 1stDist. Ct. App. 1994), the first district established. remote facilities for arguments by videoteleconference. That court is presently conducting such arguments only when all attorneysexpected to present argument are located near a single remote facility. Since the attorneyrepresenting the commission in Mendleman was from Tallahassee, and since it appears that theappellant, who represented himself on appeal, was from south Florida, this factor apparentlyhad no applicability in that case. It may well play a role in striking the proper balance infuture cases, however. For instance, if the parties are both from Ft. Myers, one of thelocations at which the first district has established a remote facility, it would clearly be moreconvenient for the parties to present oral argument to the first district by video teleconferencethan it would be to travel to either Tampa or Lakeland, the locations at which the seconddistrict, which includes Ft. Myers, generally hears oral arguments.Published by NSUWorks, 199611

Nova Law Review, Vol. 21, Iss. 1 [1996], Art. 3Nova Law Review[Vol. 21:13VI. ORDERS REVIEWABLEThe courts decided a large number of cases dealing with the issue ofwhether certain orders were reviewable, either by appeal or by certiorari.The sheer volume of such cases precludes discussion of the reasoning ofeach case. This article will therefore focus on some of the more significantcases in this regard and set forth a sampling of other decisions, noting thetype of order involved, and the conclusion reached by the court as to whetherit was reviewable.A. Orders Denying Motions to Dismiss Based on Claims of UntimelyServiceConcluding that an order denying a motion to dismiss based on thefailure to effect service within 120 days, as required by Rule 1.070(i) of theFlorida Rules of Civil Procedure, is not appealable, the second districtdismissed the appeal in Nowry v. Collyar.63 The court recognized, however,that its decision was in conflict with decisions of other districts 64 and itcertified the following question to the supreme court:DOES AN ORDER DENYING A MOTION TO DISMISS ACOMPLAINT CLAIMING UNTIMELY SERVICE PURSUANTTO FLORIDA RULE OF CIVIL PROCEDURE 1.070(i) FAIL TOCONSTITUTE AN ORDER DETERMINING THE JURISDICMAKING IT A NONAPTION OVER THE PERSON,[65 1 THUS66ORDER?NON-FINALPEALABLE,The first district addressed the same issue in Novella Land, Inc. v.Panama City Beach Office Park, Ltd.,67 noting the conflict recognized inNowry and agreein

A. Florida Rules of Appellate Procedure Rule 9.130(a)(5) of the Florida Rules of Appellate Procedure was amended' to allow for appellate review of orders entered on motions filed under Rule 12.540 of the Florida Family Law Rules of Procedure requesting 1. Amendment to Florida Rule of Appellate Proced