PETER LEE DENNIS, ET AL., APPELLANTS,
v.
LOUIS PAVLAKOS, ET AL., APPELLEES; LOUIS PAVLAKOS, ET AL., APPELLANTS, V. CENTURY 21 COMPASS POINTS, INC., ETC., APPELLEE
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ORFINGER, Judge.
The final order dismissing the third party complaint is affirmed because it does not appear that the third party defendants were parties to the contract sued upon.
Although we previously denied appellee’s motion to dismiss these consolidated appeals, a review of the complete record makes it clear that the order dismissing the counterclaims of the respective defendants is a non-final non-appealable order. If the counterclaim is properly styled as such (as opposed to an affirmative defense), it clearly is compulsory because it meets the test set forth in City of Mascotte v. Florida Municipal Liability Self Insurers Program, 444 So. 2d 965 (Fla. 5th DCA 1983), review denied, 451 So. 2d 847 (Fla. 1984). An order dismissing a compulsory counterclaim is a non-final, non-appealable order. S.L.T. Warehouse v. Webb, 304 So. 2d 97 (Fla.1974); Fetters v. United States Fire Insurance Company, 399 So. 2d 427 (Fla. 5th DCA 1981). We therefore dismiss the appeal from that portion of the order dismissing the counterclaims, without prejudice to the right of appellants to present this issue upon an appeal from a final judgment in this cause.
AFFIRMED in part; DISMISSED in part.
COBB, C.J., and DAUKSCH, J., concur.
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Northcutt v. Pathway Fin., 555 So. 2d 368 (Fla. 3d DCA 1989)…la.1974) (citing Mendez v. West Flagler Family Ass’n, Inc., 303 So. 2d 1 (Fla.1974)); Rob-Cor, Inc. v. Ines, 512 So. 2d 320, 321-22 (Fla. 3d DCA 1987); Del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315, 320 (Fla. 3d DCA 1987); Dennis v. Pavlakos, 464 So. 2d 1323, 1324 (Fla. 5th DCA 1985); Ryder Truck Lines, Inc. v. Pough, 392 So. 2d 590, 591 (Fla. 3d DCA 1981). The order under review is therefore a non-final, nonappealable order as to that count. We conclude the counterclaim for fraud in the inducement is…
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Campbell v. Gordon, 674 So. 2d 783 (Fla. 1st DCA 1996)…r Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987); Sarasota Cloth Fabric & Foam, Inc. v. Benes, 482 So. 2d 574 (Fla. 5th DCA 1986). Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, 621 So. 2d 507, 509 (Fla. 2nd DCA 1993); Dennis v. Pavlakos, 464 So. 2d 1323 (Fla. 5th DCA 1985). By definition, a permissive counterclaim is “any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fla. R.Civ.P. 1.170(b). A partial final…
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Riggins v. Rhoades, 373 So. 3d 655 (Fla. 6th DCA 2023)…Circle, LLC, 193 So. 3d at 960 (quoting Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So. 2d 507, 509 (Fla. 2d DCA 1993)). Thus, orders dismissing compulsory counterclaims are non-final and non-appealable. See Dennis v. Pavlakos, 464 So. 2d 1323, 1324 (Fla. 5th DCA 1985) (“An order dismissing a compulsory counterclaim is a non-final, non-appealable order.”). Here, Appellants’ counterclaim, which alleges legal malpractice against the law firm, arises from the same transaction or occurrence a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
- City OF Mascotte v. Florida Municipal Liability Self Insurers Program, 444 So. 2d 965 (Fla. 5th DCA 1983)
- Darwin L. Fetters v. United States Fire Ins. Co., 399 So. 2d 427 (Fla. 5th DCA 1981)