CLARENCE R. CARPENTER AND JOAN L. CARPENTER, HIS WIFE, APPELLANTS,
v.
SUPER POOLS, INC., A FLORIDA CORPORATION, APPELLEE
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The Carpenters appealed a summary judgment for mechanic's lien foreclosure and order distributing bond funds filed by Super Pools. The appellate court reversed and remanded because the trial court's grant of summary judgment on the mechanic's lien claim did not address the Carpenters' counterclaim for breach of contract and fraudulent lien, which remained pending.
The trial court erred in entering the order of distribution because the summary judgment, which was styled as a motion 'on its complaint,' did not dispose of the Carpenters' counterclaim. Since the counterclaim was still pending, the court should not have distributed the bond funds.
[1] A notice of appeal referring only to a distribution order may be construed to seek review of an earlier summary judgment if the points raised, record, and briefs indicate…
[2] A prior dismissal of an appeal does not preclude review of a pending counterclaim if the dismissal was not on the merits and the counterclaim was not necessarily resolved…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Based on the language contained in the motion itself and the summary judgment styled as a final judgment of foreclosure it is apparent that Super Pool's motion for summary judgment 'on its complaint' did not dispose of the Carpenters' counterclaim.”
Establishes that the trial court's summary judgment was limited to the mechanic's lien claim and did not address the counterclaim
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSuper Pools contracted to supply materials and install a swimming pool and hot tub on the Carpenters' property. The Carpenters alleged specific work i…
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COBB, Judge.
This is an appeal from a final judgment and order of distribution vacating a mechanic’s lien foreclosure sale and disbursing funds posted by the appellant in lieu of sale. The appellees, Super Pools, Inc., allegedly contracted to supply materials and to install a swimming pool and hot tub on appellant Carpenter’s property. Super Pools filed a two count complaint for mechanic’s lien foreclosure and breach of contract. The Carpenters and a corporation not a party to this appeal were the named defendants. The Carpenters filed an answer with affirmative defenses alleging specific work items which were either not completed or defectively completed and in need of repair. In a counterclaim the Carpenters alleged Super Pools failed to perform under the contract and that the lien claim was fraudulent.
Super Pools filed a motion for summary judgment “on its complaint” omitting express reference to the Carpenters’s affirmative defenses and counterclaim. A summary judgment styled as a “Final Judgment of Foreclosure” was granted in favor of Super Pools, and an appeal followed which was dismissed by this court without reaching the merits. Following the dismissal of the Carpenters’ earlier appeal, Super Pools filed a motion for distribution of the bond funds which had been deposited in lieu of a foreclosure sale. The Carpenters filed a motion to stay execution to prevent the bond money from being released on the ground that their counterclaim was still pending, and because they had reason to believe Super Pools was out of business and potential injustice would therefore result. The Carpenters filed a timely notice of appeal from the final judgment and order of distribution of December 17, 1987. Although the notice of appeal refers only to the distribution order, this court may consider the earlier summary judgment where, as here, it is obvious from the points raised, the record, and the briefs that review of the summary judgment is sought. Davar Corp. v. Tropic Land Improvement Corp., 330 So. 2d 482 (Fla. 4th DCA 1976).
Super Pools contends that the earlier dismissal of the Carpenters’ first appeal precludes review here as the first dismissal operates as law of the case. This argument is unavailing on two grounds. First, there is no showing that the earlier appeal was dismissed on the merits. Secondly, Super Pool’s reliance upon the doctrine of law of the case begs the threshold question of whether the Carpenters’ coun- terdaim was necessarily resolved by the prior appeal. Based on the language contained in the motion itself and the summary judgment styled as a final judgment of foreclosure it is apparent that Super Pool’s motion for summary judgment “on its complaint” did not dispose of the Carpenters’ counterclaim. See Redding v. Powell, 452 So. 2d 132, 135 (Fla. 2d DCA 1984); Atrio Consolidated Industries, Inc. v. Southeast Bank, 434 So. 2d 349 (Fla. 3d DCA 1983); Faussner v. Wever, 432 So. 2d 100 (Fla. 2d DCA), review denied, 440 So. 2d 351 (Fla.1983); Netterville v. Osborn, 139 So. 2d 921 (Fla. 1st DCA 1962). However, the motion and summary judgment did dispose of the Carpenters’ affirmative defenses. Because the Carpenters’ counterclaim was still pending, the court erred in entering the order of distribution. Reliance Forwarding Co. v. Nilson Van & Storage, 387 So. 2d 513 (Fla. 5th DCA 1980); Davar Corporation at 483. The final judgment and distribution order are reversed, and this cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
DANIEL, J., and NORRIS, W.A., Jr., Associate Judge, concur.
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Tooltrend, Inc. v. C.M.T. Utensili, 707 So. 2d 1162 (Fla. 2d DCA 1998)…ranted for a plaintiff and a counterclaim remains pending, the trial court should stay the execution of the judgment pending the resolution of the counterclaim. See Howell v. Miller, 638 So. 2d 544 (Fla. 2d DCA 1994); Carpenter v. Super Pools, Inc., 534 So. 2d 426 (Fla. 5th DCA 1988); Zanathy v. Beach Harbor Club Ass’n, 343 So. 2d 625 (Fla. 2d DCA 1977). In this case, there was testimony that the counterclaim was seeking damages for at least $80,000 to $100,000. Accordingly, we remand this case to the trial…
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Heritage Real Est. & Dev. Co., Inc. v. Gaich, 620 So. 2d 1118 (Fla. 5th DCA 1993)…mary judgment for a plaintiff and then take evidence on the counterclaim or, in the alternative, enter final summary judgment on the complaint but “stay” its execution pending resolution of the counterclaim. See also, Carpenter v. Super Pools, Inc., 534 So. 2d 426 (Fla. 5th DCA 1988); FBA Corp. v. General Air Services, Inc., 479 So. 2d 321 (Fla. 3d DCA 1985); Atrio Consolidated Industries, Inc. v. Southeast Bank, 434 So. 2d 349, 350 n. 1 (Fla. 3d DCA 1983); Davar Corp. v. Tropic Land Improvement Corp., 330 So…
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Grant v. Jones, 635 So. 2d 47 (Fla. 1st DCA 1994)…rlying disposition of the case, rehearing of which was sought by the motion.” Dobrick v. Discovery Cruises, Inc., 581 So. 2d 645 (Fla. 4th DCA 1991); see, e.g., Tunstall v. Folsom, 616 So. 2d 1123 (Fla. 1st DCA 1993); Carpenter v. Super Pools, Inc., 534 So. 2d 426 (Fla. 5th DCA 1988); Bay Area News, Inc. v. Poe, 364 So. 2d 830, 832 n. 1 (Fla. 2d DCA 1978); see also State ex rel. Poe v. Allen, 196 So. 2d 745 (Fla.1967); Florida Sugar Cane League Inc. v. Florida Dept. Envtl. Regulation, 602 So. 2d 544 (Fla. 1st…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davar Corp. v. Tropic Land Improvement Corp., 330 So. 2d 482 (Fla. 4th DCA 1976)
- Jones v. State, 434 So. 2d 349 (Fla. 3d DCA 1983)
- Reliance Forwarding Co. v. Nilson VAN & Storage, 387 So. 2d 513 (Fla. 5th DCA 1980)
- Faussner v. Wever, 432 So. 2d 100 (Fla. 2d DCA 1983)
- Redding v. Zelma D. Powell and Elma Anderson, 452 So. 2d 132 (Fla. 2d DCA 1984)
- Netterville v. Osborn, 139 So. 2d 921 (Fla. 1st DCA 1962)