DONALD STONE AND MARY STONE, HIS WIFE, APPELLANTS,
v.
VENETIAN ISLES HOMEOWNERS ASSOCIATION, INC., A FLORIDA CORPORATION NOT FOR PROFIT, APPELLEE
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The Stones appealed the dismissal of their counterpetition challenging restrictive covenants enforced by their homeowners association. The court dismissed the appeal as untimely, holding that the counterpetition dismissal was not a final, appealable order because the association's original enforcement claim remained pending and involved the same transaction.
The appeal is dismissed as untimely because the order dismissing the counterpetition is not a final, appealable order. The counterpetition and main claim involve the same transaction and parties, and their viability is interrelated. The Stones may challenge the dismissal on appeal from the final judgment in the complete case.
[1] An appeal from an order dismissing a counterpetition is untimely when the underlying claim remains pending and the counterpetition is interrelated with the main claim.
[2] Piecemeal appeals are not permitted when claims are interrelated and involve the same transaction, with the same parties remaining in the suit.
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Join FLexlaw to unlock all legal intelligence“Piecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.... Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause....”
Establishes the controlling standard that prevents premature appeals of interrelated claims involving the same parties and transaction.
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Join FLexlaw to unlock all legal intelligenceThe Stones purchased property in March 1969 subject to restrictive covenants recorded in March 1969. The Venetian Isles subdivision was developed in s…
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LEHAN, Judge.
Venetian Isles Homeowners Association sued Donald and Mary Stone to enforce certain restrictive covenants on property owned by the Stones. The Stones answered and filed affirmative defenses asserting the invalidity of the restrictions. The Stones also filed an amended counterpetition asking to have the restrictions declared invalid. The amended counterpetition was dismissed with prejudice, and the Stones appealed. The association’s original claim remains pending. We dismiss this appeal as untimely-
The Stones purchased their property on March 13,1969, subject to a set of property restrictions for the subdivision development where the property was located. The restrictions had been placed of record on March 3,1969 and were designated as covenants running with the land until January 1, 1999, unless sooner modified or terminated. The covenants included a provision that the developer, or its successor or assigns, could modify the restrictions in any block if two-thirds of the owners in the block consented and if certain other circumstances existed. The covenants also provided that the developer could assign its authority and rights under the restrictions to a committee or association of resident owners. Appellee Association claims the authority to enforce the property restrictions because of an assignment from the developer to the association.
The Venetian Isles subdivision was developed in sections, each with a set of restrictions similar to those on other sections. When the subdivision was substantially completed, a purported two-thirds majority of all homeowners voted to consolidate, amend, and enlarge the original separate restrictions. New restrictions were recorded on January 2,1978. The restriction that Venetian Isles is seeking to enforce against the Stones is one of the new restrictions and concerns the height of shrubbery on the property.
The Stones’ affirmative defenses allege that the restrictions in question should not be enforced against them because, among other things, (1) the association lacks standing to enforce the restrictions due to an ineffective assignment of authority, (2) the restrictions are invalid because two-thirds of the homeowners did not vote for them, and (3) the covenants unreasonably restrict alienation of the property. The Stones’ amended counterpetition asked for damages and an injunction against enforcement of any of the restrictions for reasons which are given in their affirmative defenses.
We dismiss, sua sponte, the Stones’ appeal from the order dismissing their amended counterpetition because that order is nonappealable at this time. As the Florida Supreme Court stated in S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla.1974),
Piecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.... Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause....
In the instant case, the counterpetition and the main claim involve the same transaction — the restrictive covenants. The counterpetition and the main claim are interrelated in that the viability of each depends upon whether or not the restrictions are valid. The facts in this case especially call for a dismissal of this appeal because the grounds for the counterpetition are the same grounds as those of the affirmative defenses to the main claim.
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Marinich v. Special Edition Custom Homes, LLC, 1 So. 3d 1197 (Fla. 2d DCA 2009)…peal purposes. See Madura v. Turosienski, 901 So. 2d 396, 397 (Fla. 2d DCA 2005); City of Haines City v. Allen, 509 So. 2d 982, 983 (Fla. 2d DCA 1987). The facts of this case are analogous to those in Stone v. Venetian Isles Homeowners Ass’n, Inc., 431 So. 2d 623 (Fla. 2d DCA 1983), and Allen, 509 So. 2d 982. In Stone, a homeowner’s association filed a suit against two homeowners to enforce restrictive covenants on the property. 431 So. 2d at 623. The homeowners filed affirmative defenses challenging the val…
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Merkle v. Home Shopping Network, Inc., 916 So. 2d 841 (Fla. 2d DCA 2005)…ry judgment, thus [*843] allowing Mrs. Merkle’s action to continue as to him, the trial court’s rulings that dispose of issues related to the continuing action against Gusler are not yet ripe for review. See Stone v. Venetian Isles Homeowners Ass’n, 431 So. 2d 623 (Fla. 2d DCA 1983). Although Mrs. Merkle argues that these rulings are appealable pursuant to Florida Rule of Appellate Procedure 9.110(h), we disagree. All three of these rulings are nonfínal and nonappealable.2 While rule 9.110(h) does allow this…
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Hinckley v. Dep't OF Revenue, 927 So. 2d 73 (Fla. 2d DCA 2006)…ty of an order, judgment or decree is whether there has been an end to the judicial labor below and nothing further remains to be done to terminate the dispute between the parties directly affected.”); Stone v. Venetian Isles Homeowners Ass’n, Inc., 431 So. 2d 623, 624 (Fla. 2d DCA 1983). It also appears that any error in the circuit court’s order can be corrected by postjudgment appeal. Thus, review is not available under our certiorari jurisdiction. See Morton & Oxley, Ltd. v. Charles S. Eby, M.D., P.A., 9…
Authorities Cited
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)