BLANCHE HARRIS KINGSLAND, TRUSTEE, APPELLANT,
v.
NATIONAL ADVERTISING COMPANY, A SUBSIDIARY OF 3M COMPANY, APPELLEE
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The Fifth District Court of Appeal dismissed an appeal from a trial court order granting partial summary judgment on a punitive damages claim, holding that the order was non-final and therefore not appealable under Florida's appellate rules because compensatory and punitive damages claims arising from the same transaction cannot support a piecemeal appeal.
The order is a non-final, non-appealable interlocutory order. An order granting partial summary judgment on one claim does not become final merely because it is characterized as a 'partial final judgment' when related claims remain pending. Piecemeal appeals are not permitted where claims are interrelated, involve the same transaction, and the same parties remain in the suit.
[1] An order granting a defendant's motion for partial summary judgment is not a final, appealable order.
[2] Piecemeal appeals are not permitted when claims are interrelated and arise from the same transaction, even if pleaded in separate counts.
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Join FLexlaw to unlock all legal intelligence“Piecemeal appeals are not permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.”
Establishes the foundational rule preventing appeals when related claims are severed from a single action.
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Join FLexlaw to unlock all legal intelligenceAppellant Blanche Harris Kingsland filed a one-count complaint against National Advertising Company seeking both compensatory and punitive damages for…
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ORFINGER, Judge.
At oral argument the jurisdiction of the court to entertain this appeal was raised sua sponte. Appellant filed a one count complaint for compensatory and punitive damages as a result of an alleged trespass by appellee.
The trial court entered an order granting appellee a partial summary judgment on the claim for punitive damages, and appellant filed a notice of appeal, claiming this to be a final order. If the order appealed from is a non-final order, it is not appealable under our current rules.
Rule 9.130, Florida Rules of Appellate Procedure, permits an appeal from a non-final order which determines the issue of liability in favor of a party seeking affirmative relief. Here, the order was against such party. So we have jurisdiction only if this is a final order. We should note first that the order appealed from is not a partial final judgment, but only an order granting defendant’s motion for partial final judgment. As such, it is not an appealable final judgment. McCready v. Villas Apartments, 379 So. 2d 719 (Fla. 5th DCA 1980).
But even if we treat it as a partial final judgment, it is not appealable under the decisions of the Supreme Court of Florida and the other district courts which have considered the problem. Piecemeal appeals are not permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.
S. L.
T. Warehouse Company v. Webb, 304 So. 2d 97 (Fla.1974). It is apparent from the single count complaint that the claims for compensatory and punitive damages arise out of the same set of facts, but even had this complaint been framed in separate counts, the result would be the same here, since an order dismissing one of several counts all arising out of the same factual circumstances is not an appealable final order. McClain Construction Corporation v.
C. S. Roberts, et al., 351 So. 2d 399 (Fla. 2d DCA 1977); Venezia A., Inc. v. Askew, 314 So. 2d 254 (Fla. 1st DCA 1975); Agriesti v. Clevetrust Realty Investors, 381 So. 2d 753, (Fla. 4th DCA 1980). Only in those cases where the judgment adjudicates a distinct and severable cause of action is the action of the court final as to that count so as to support an appeal. Mendez v. West Flagler Family Association, Inc., 303 So. 2d 1 (Fla.1974).
Appellant responds to our query on jurisdiction and cites Pointer Oil Company v. Butler Aviation of Miami, Inc., 293 So. 2d 389 (Fla. 3d DCA, 1974); Allstate Insurance Company v. Gibbs, 340 So. 2d 1202 (Fla. 4th DCA 1976); and Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So. 2d 1152 (Fla. 1st DCA 1978) in support of the appealability of the order, but these cases are all distinguishable. In Pointer, a partial money judgment was entered against defendant, and although the district court held that it was premature, it was final in form and would not have been appealable later. In Allstate, the court accepted com mon law certiorari on a discovery issue, and having jurisdiction then decided all matters before it. Kennedy v. Kennedy, 303 So. 2d 629 (Fla.1974).
In Atlantic National Bank, the trial court had entered partial summary judgment in favor of certain parties (but not all) and as to those parties the action was final and complete.
This is clearly a non-final order. Under the old appellate rules, an interlocutory appeal could be taken from an order granting a pártial summary judgment on liability in civil matters (Rule 4.2, Florida Appellate Rules, 1962) but the current rules do not permit it now, except under the limited provisions of Rule 9.130(a)(3)(c)(iv), so the appeal must be dismissed.
APPEAL DISMISSED.
DAUKSCH, C. J., and CROSS, J., concur.
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Windhover Ass'n, Inc. v. Gulf OIL Realty Co., 407 So. 2d 603 (Fla. 5th DCA 1981)…e necessity of showing that a remedy by appeal is inadequate. When a final judgment of dismissal is entered as to defendant Craig, if it does finally dismiss him from the case that order will be appealable. See Kingsland v. National Advertising Co., 384 So. 2d 701 (Fla. 5th DCA 1980); Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So. 2d 1152 (Fla. 1st DCA 1978). Thus petitioner has not met the burden of showing the non-availability of a remedy by appeal. The motion for rehearing is DENIED…
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Lauda v. H. F. Mason Equip. Corp., 407 So. 2d 392 (Fla. 3d DCA 1981)…olved a breach of a single employment agreement, the difference between the counts lying in the relief sought. See North Indialantic Homeowners Association, Inc. v. Bogue, 390 So. 2d 74 (Fla. 5th DCA 1980); Kingsland v. National Advertising Company, 384 So. 2d 701 (Fla. 5th DCA 1980); Venezia A., Inc. v. Askew, 314 So. 2d 254 (Fla. 1st DCA 1975). Howell’s motion to dismiss must be denied in any event, since Howell was not a defendant in Count V, and the trial court’s actions completely disposed of the action…
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ONE Thousand Oaks, Inc. v. Dade Sav. & Loan Ass'n, 417 So. 2d 1135 (Fla. 5th DCA 1982)…ent Corp., 392 So. 2d 583 (Fla. 5th DCA 1980); North Indiaiantic Homeowners Association, Inc. v. Bogue, 390 So. 2d 74 (Fla. 5th DCA 1980); Robertson v. Florida Rock & Tank Lines, Inc., 385 So. 2d 138 (Fla. 5th DCA 1980); Kingsland v. Nat’l Adv. Co., 384 So. 2d 701 (Fla. 5th DCA 1980); Venezia A., Inc. v. Askew, 314 So. 2d 254 (Fla. 1st DCA 1975). DISMISSED. ORFINGER, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
- Mendez v. W. Flagler Fam. Ass'n, Inc., 303 So. 2d 1 (Fla. 1974)
- Venezia A., Inc. v. Reubin O'Donovan Askew, 314 So. 2d 254 (Fla. 1st DCA 1975)
- Allstate Ins. Co. v. Gibbs, 340 So. 2d 1202 (Fla. 4th DCA 1976)
- Kennedy v. Kennedy, 303 So. 2d 629 (Fla. 1974)
- Pointer OIL Co. v. Butler Aviation OF Miami, Inc., 293 So. 2d 389 (Fla. 3d DCA 1974)
- McCLAIN Constr. Corp. v. Roberts, 351 So. 2d 399 (Fla. 2d DCA 1977)
- McCREADY v. The Villas Apts., 379 So. 2d 719 (Fla. 5th DCA 1980)
- Agriesti v. Clevetrust Realty Invs., 381 So. 2d 753 (Fla. 4th DCA 1980)
- Atl. Nat'l Bank OF Jacksonville v. Modular AGE, Inc., 363 So. 2d 1152 (Fla. 1st DCA 1978)