ONE THOUSAND OAKS, INC., APPELLANT,
v.
DADE SAVINGS & LOAN ASSOCIATION, APPELLEE
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A condominium association appealed the dismissal of three counts of its complaint against a condominium developer. The court dismissed the appeal for lack of jurisdiction, holding that the dismissal of multiple counts relating to the same construction defects cannot be appealed until all claims are finally resolved.
An order dismissing one or more but not all counts of a multi-count complaint relating to the same transaction, condition or occurrence, where the dismissed claims are not distinct and severable and no defendant is finally dismissed as a party, is not a final order appealable under Florida Rule of Appellate Procedure 9.110 and does not constitute a non-final order appealable under Rule 9.130.
[1] A final judgment is not appealable when it dismisses some, but not all, counts of a multi-count complaint relating to the same transaction or occurrence, and the dismisse…
[2] An order dismissing one or more counts of a multi-count complaint is not a final order for appeal purposes if other counts remain pending before the trial court and the d…
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Join FLexlaw to unlock all legal intelligence“An order dismissing one or more, but not all, counts of a multi-count complaint relating to the same transaction, condition or occurrence, where the dismissed claims for relief are not 'distinct and severable' and no defendant is finally dismissed as a party to the cause, is not a final order for appeal under Florida Rule of Appellate Procedure 9.110 nor does such an order of dismissal constitute a non-final order appealable under Florida Rule of Appellate Procedure 9.130.”
Establishes the legal standard for when dismissal orders are appealable
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Join FLexlaw to unlock all legal intelligenceAppellant, a condominium association, filed a six-count complaint against appellee, the condominium developer, alleging defects in construction of con…
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COWART, Judge.
Appellant, a condominium association, brought a six count complaint against ap- pellee, the condominium developer. Upon motion the trial judge first dismissed counts IV, V and VI of the complaint with leave to amend. After amendment appellee’s motion to dismiss the same counts of the amended complaint was “granted with prejudice.” Finally, the trial court entered a “final judgment” for appellee and against appellant as to those counts from which appellant appeals.
Apparently the trial court correctly recognized that the granting of a motion to dismiss, even “with prejudice” is not a final appealable order and attempted to finalize the judicial labor in the trial court on this aspect of the case by entry of the final judgment appealed.
However, the “final judgment” is still not a “final” order or judgment for appeal purposes because all counts in the complaint were but different theories of recovery for the same alleged defects in construction of the condominium units and are not “distinct and severable” from each other or from the undismissed counts which remain pending before the trial court. An order dismissing one or more, but not all, counts of a multi-count complaint relating to the same transaction, condition or occurrence, where the dismissed claims for relief are not “distinct and severable” and no defendant is finally dismissed as a party to the cause, is not a final order for appeal under Florida Rule of Appellate Procedure 9.110 nor does such an order of dismissal constitute a non-final order appealable under Florida Rule of Appellate Procedure 9.130.
S. L.
T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla.1974); Fetters v. United States Fire Insurance Co., 399 So. 2d 427 (Fla. 5th DCA 1981); Finney v. Wonder Development 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.
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Brogan v. Mullins, 452 So. 2d 940 (Fla. 5th DCA 1984)…b)(3), Fla. Const. . See the dissent in Bates v. Keating, 396 So. 2d 1172 (Fla. 5th DCA 1981), and the specially concurring opinion in Sherrod v. Franza, 427 So. 2d 161 (Fla.1983). . See, e.g., One Thousand Oaks, Inc. v. Dade Savings & Loan Assn., 417 So. 2d 1135 (Fla. 5th DCA 1982); Hawaiian Inn of Daytona Beach, Inc. v. Snead Const. Corp., 393 So. 2d 1201 (Fla. 5th DCA 1981).…
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Robert Granoff Corp. v. United First Fed. Sav. & Loan Ass'n OF Sarasota, 424 So. 2d 199 (Fla. 5th DCA 1983)…. See Niesz v.6R.P. Morgan Building Company, Inc., 401 So. 2d 822 (Fla. 5th DCA 1981); Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So. 2d 1152 (Fla. 1st DCA 1978). Cf. One Thousand Oaks, Inc., v. Dade Savings & Loan Association, 417 So. 2d 1135 (Fla. 5th DCA 1982). Motion to dismiss is DENIED. DAUKSCH and COBB, JJ., concur.…
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Wickenheiser v. Ramm Vending Promotion, Inc., 560 So. 2d 350 (Fla. 5th DCA 1990)…t this time and that part of the appeal is dismissed. See S.L.T. Warehouse Company v. Webb, 304 So. 2d 97 (Fla.1974); Duffy v. Realty Growth Investors, 466 So. 2d 257 (Fla. 5th DCA 1985); One Thousand Oaks, Inc. v. Dade Savings and Loan Association, 417 So. 2d 1135 (Fla. 5th DCA 1982); Palm Beach Newspapers, Inc. v. Walker, 506 So. 2d 39 (Fla. 4th DCA 1987); Taddie Underground Utility Company, Inc. v. Sloan Pump Company, Inc., 497 So. 2d 701 (Fla. 2d DCA 1986); Kirkland v. H.R.S., 489 So. 2d 800 (Fla. 1st DCA…
Previewing 3 of 8 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)
- Venezia A., Inc. v. Reubin O'Donovan Askew, 314 So. 2d 254 (Fla. 1st DCA 1975)
- Blanche Harris Kingsland v. Nat'l Advertising Co., 384 So. 2d 701 (Fla. 5th DCA 1980)
- Winn-Dixie Stores, Inc. v. Codomo, 390 So. 2d 74 (Fla. 3d DCA 1980)
- Finney v. Wonder Dev. Corp., 392 So. 2d 583 (Fla. 5th DCA 1980)
- Darwin L. Fetters v. United States Fire Ins. Co., 399 So. 2d 427 (Fla. 5th DCA 1981)
- Robertson v. Fla. Rock & Tank Lines, Inc., 385 So. 2d 138 (Fla. 5th DCA 1980)