MARSHALL GLENN ODHAM, JR. AND JUDITH ANN ODHAM, APPELLANTS,
v.
DAVID MOUAT, M.D.; ALACHUA GENERAL HOSPITAL, INC., ET AL., APPELLEES
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Odham appealed a partial summary judgment dismissing four counts of his complaint against a physician and hospital for breach of implied contract and warranty. The court dismissed the appeal, holding that a partial judgment on interrelated claims involving the same transaction and parties is not appealable when related tort claims remain pending.
A final judgment or order dismissing less than all interrelated claims or counts involving the same transaction and same parties is not appealable if any interrelated claim involving the same transaction and parties remains in the suit.
[1] A partial summary final judgment on less than all interrelated counts of a complaint is not appealable if any interrelated claim involving the same transaction and partie…
[2] Florida Statute § 725.01 prohibits actions against health care providers based on guarantees, warranties, or assurances of results of medical procedures unless the agreem…
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Join FLexlaw to unlock all legal intelligence“A final judgment or order dismissing less than all of the interrelated claims or counts involving the same transaction and the same parties is not appealable if there is any interrelated claim involving the same transaction and same parties remaining in the suit.”
The core holding establishing the jurisdictional bar to appeal of partial judgments when related claims remain pending.
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Join FLexlaw to unlock all legal intelligenceOdham filed an eight-count complaint against Dr. Mouat and Alachua General Hospital alleging medical negligence and related claims. Counts I, II, V, a…
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THOMPSON, Judge.
Odham appeals a partial summary final judgment in favor of David Mouat, M.D., (Mouat) and Alachua General Hospital (Hospital) on four of the eight counts of his complaint. We dismiss the appeal and remand for further proceedings consistent herewith.
Odham filed an eight count complaint against Mouat and the Hospital. Counts I and V are tort actions alleging that Mouat and the Hospital, respectively, were negligent in that they failed to exercise that degree of care and skill in treating Odham that is ordinarily exercised by physicians and hospitals in similar cases under similar circumstances and further alleging that Mouat committed eight specific acts of negligence. In Counts II and VI the same general allegation of negligence and the same eight specific acts of negligence were alleged by Odham’s wife in a tort action for the loss of the services, support and consortium of her husband. Counts III and VII purport to allege a cause of action against Mouat and the Hospital, respectively, for breach of implied contract and warranty. The same general allegation of negligence and the same eight specific acts of negligence were realleged as the basis for the breach of implied contract and warranty counts. In Counts IV and VIII the same general allegation of negligence and eight specific acts of negligence were alleged by Odham’s wife as a basis for her breach of contract and warranty count for the loss of the services, support and consortium of her husband.
Mouat and the Hospital filed motions for summary judgment as to Counts III, IV, VII and VIII of the complaint (the alleged breach of implied contract and warranty-counts) on the grounds that Section 725.01, Fla.Stat. prohibits any action against a health care provider upon any guarantee, warranty or assurance as to the results of any medical, surgical, or diagnostic procedure unless the agreement or promise upon which the action is brought is in writing. The trial court granted summary partial judgment in favor of the defendants as to these four counts alleging breach of implied contract and warranty. Counts I, II, V and VI, the tort claims by Odham and his wife against Mouat and the Hospital, remain pending.
Every count of the complaint involves the same parties, the same transaction, and identical acts as a basis of the alleged cause of action. Although Counts I, II, V, and VI sound in tort, and Counts III, IV, VII and VIII sound in contract, they all involve the same identical facts as a basis of the cause of action and are interrelated causes of action. A final judgment or order dismissing less than all of the interrelated claims or counts involving the same transaction and the same parties is not appealable if there is any interrelated claim involving the same transaction and same parties remaining in the suit. S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla.1974); SCI Inc. v. Aneco Co., 410 So. 2d 531 (Fla. 2d DCA 1982); Venezia A., Inc. v. Askew, 314 So. 2d 254 (Fla. 1st DCA 1975), cert. denied, 333 So. 2d 465 (Fla.1976).
We dismiss this appeal and remand for proceedings consistent herewith.
ZEHMER and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Pellegrino v. Jeffrey Horwitz, M.D., 642 So. 2d 124 (Fla. 4th DCA 1994)…laintiff and the resulting injuries. The fact that one count sounds in tort and the dismissed count sounds in contract, and thus may involve different ele- [*127] ments of proof, does not render the order of dismissal appealable. See Odham v. Mouat, 484 So. 2d 95 (Fla. 1st DCA 1986). Therefore, this appeal is hereby dismissed without prejudice to plaintiffs seeking appellate review upon conclusion of the case. DISMISSED. WARNER, J., and SMITH, FREDRICKA, Associate Judge, concur.…
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Kirkland v. State, 489 So. 2d 800 (Fla. 1st DCA 1986)…separately disposed of based on the same or different facts? Applying these criteria to this case, we find that the causes of action for negligent supervision and malpractice could not be maintained independently of each other. See Odham v. Mouat, 484 So. 2d 95 (Fla. 1st DCA, 1986). Next, although Dr. Asner, in her individual capacity, was dismissed from the case prior to the entry of the partial summary judgment, no parties were removed from the action by entry of the partial summary judgment. Finally, Ki…
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Tropic Transit, Inc. v. Comsis Mobility Servs., Inc., 805 So. 2d 1085 (Fla. 1st DCA 2002)…al as being taken from a nonfinal, nonappealable order, but do so without prejudice to appellants’ right to seek review upon final disposition of the proceedings below. See S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 100 (Fla.1974); Odham v. Mouat, 484 So. 2d 95, 96 (Fla. 1st DCA 1986). MINER, WEBSTER, and BENTON, JJ., concur.…
Previewing 3 of 18 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)
- SCI, Inc. v. Aneco Co., 410 So. 2d 531 (Fla. 2d DCA 1982)