THOMAS J. NORTHCUTT, APPELLANT,
v.
PATHWAY FINANCIAL, HEMLOCK FEDERAL SAVINGS, UNITED SAVINGS ASSOCIATES OF AMERICA, SECURITY SAVINGS & LOAN ASSOCIATION, AND BOHEMIAN SAVINGS & LOAN ASSOCIATION, APPELLEES
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Northcutt, a defendant in a suit on a guaranty, appealed a partial summary judgment that struck his affirmative defenses and counterclaim on res judicata grounds. The Third District Court of Appeal dismissed the appeal, holding that the partial summary judgment was a non-final, nonappealable order because the struck defenses and counterclaims were compulsory and not severable from the main guaranty claim.
The partial summary judgment is a non-final, nonappealable order. The struck affirmative defenses and both counterclaim counts are compulsory counterclaims logically related to the main guaranty claim, not distinct or severable causes of action.
[1] A partial summary judgment striking affirmative defenses is a non-final, nonappealable order.
[2] A counterclaim for an accounting under a contract is a compulsory counterclaim to a suit on that contract and is not a distinct or severable cause of action.
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Join FLexlaw to unlock all legal intelligence“The partial summary judgment strikes seven of the defendant's affirmative defenses. That portion of the partial summary judgment which strikes the affirmative defenses is a non-final, nonappealable order.”
Establishes that striking affirmative defenses in a summary judgment is not appealable because it is not a final order.
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Join FLexlaw to unlock all legal intelligenceNorthcutt was sued on a guaranty contract. The trial court entered a partial summary judgment striking seven of Northcutt's affirmative defenses and h…
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COPE, Judge.
Appellant is defendant below in a suit on a guaranty. The trial court entered a partial summary judgment striking several of defendant’s affirmative defenses, and defendant’s counterclaim, on grounds of res judicata. As we conclude there is no appealable order, we dismiss the appeal.
The partial summary judgment strikes seven of the defendant’s affirmative defenses. That portion of the partial summary judgment which strikes the affirmative defenses is a non-final, nonap-pealable order. Smith v. Glisson, 468 So. 2d 394 (Fla. 3d DCA 1985).
The partial summary judgment also strikes defendant’s counterclaim. The suit on the guaranty proceeds, of course, in contract. The counterclaim has two counts, one for an accounting and the other for fraud in the inducement. The accounting claim requests an accounting under the contract. It is a compulsory counterclaim to the contract claim and cannot be deemed a distinct or severable cause of action. See S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 100 (Fla.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 likewise a compulsory counterclaim and not a distinct or severable cause of action. The counterclaim includes events occurring both before and after the loan guaranty was entered into. Much of the substance of the counterclaim includes Northcutt’s complaints about how the lender performed, or allegedly failed to perform, under the operative contract documents. There is a great deal of factual similarity between the counterclaim and Northcutt’s affirmative defenses. The fraud in the inducement claim satisfies the logical relationship test for a compulsory counterclaim. Neil v. South Florida Auto Painters, Inc., 397 So. 2d 1160, 1164 (Fla. 3d DCA 1981).
It is intertwined and interrelated with the main claim. Miami-Dade Water & Sewer Authority v. Metropolitan Dade County, 469 So. 2d 813, 814 (Fla. 3d DCA 1985).
See generally Rudner v. Cabrera, 455 So. 2d 1093, 1094-96 (Fla. 5th DCA 1984).
Appellant has suggested that dismissal is precluded by Mendez v. West Flagler Family Association. Mendez involved a complaint which contained two counts for breach of contract and a third count for fraud in connection with issuance of the policy. 303 So. 2d at 2. The details of the fraud are not set forth. The Florida Supreme Court held that dismissal of the fraud count was appealable. In so doing the court emphasized the general rule of nonappealability of trial court rulings prior to final judgment, but recognized an exception for “a separate and distinct cause of action ... which is not interdependent with other pleaded claims_” Id. at 5.
The critical part of the court’s analysis was that the breach of contract “had nothing to do with the alleged swindle in the original issuance of the policy.” Id. The absence of any commonality of law and fact rendered the fraud count separate and severable. Mendez thus does not establish a bright line tort-contract distinction, but instead the analysis in each case hinges on whether there is factual and legal overlap between claims, or in the present case, between the complaint and counterclaim. Here, the claims are legally interrelated and in substance involve the same transaction, so that the counterclaim for fraud in the inducement is a non-final, nonap-pealable order. As the partial summary judgment is not appealable, the appeal is dismissed.
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Citator
Cited By (14 total)
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RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993)…ve been determined to justify an interlocutory appeal as a matter of right. An order denying a motion to dismiss under present rule 1.070(i) is not such a matter and may not be the subject of interlocutory appeal. See Northcutt v. Pathway Financial, 555 So. 2d 368, 369 (Fla. 3d DCA 1989), review denied, 563 So. 2d 633 (Fla.1990). Orders which are not enumerated in Rule 9.130 must await review at the end of the case, unless they meet the standard for certiorari or another extraordinary writ. As already stated,…
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Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237 (Fla. 4th DCA 1995)…(Fla. 1st DCA 1975), cert. denied, 333 So. 2d 465 (Fla.1976). Mendez does not establish a bright line test, but “instead the analysis in each case hinges on whether there is factual and legal overlap between claims.” Northcutt v. Pathway Financial, 555 So. 2d 368, 369 (Fla. 3d DCA 1989), review denied, 563 So. 2d 633 (Fla.1990). In Morgan v. American Bankers Life Assur. Co. of Florida, 605 So. 2d 104, 105 (Fla. 3d DCA 1992), the third district dismissed the appeal of an order striking the father’s claim as a…
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Mass. Life Ins. Co. v. Crapo, 918 So. 2d 393 (Fla. 1st DCA 2006)…s or additional facts are involved in separate counts.” Lemon v. Groninger, 708 So. 2d 1025, 1027 (Fla. 5th DCA 1998). The “analysis in each case hinges on whether there is a factual and legal overlap between claims.” Northcutt v. Pathway Financial, 555 So. 2d 368, 369 (Fla. 3d DCA 1989). The dismissed Count III of the complaint asserted equitable estoppel to avoid ad valorem taxes on the improvements on certain property. Similarly, Counts I and II raised constitutional challenges to the same ad valorem taxes…
Previewing 3 of 14 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)
- Mendez v. W. Flagler Fam. Ass'n, Inc., 303 So. 2d 1 (Fla. 1974)
- del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987)
- Maye G. Neil v. S. Fla. Auto Painters, Inc., 397 So. 2d 1160 (Fla. 3d DCA 1981)
- Miami-Dade Water & Sewer Auth. v. Metro. Dade Cnty. & City of Miami, 469 So. 2d 813 (Fla. 3d DCA 1985)
- Ryder Truck Lines, Inc. v. Pough, 392 So. 2d 590 (Fla. 3d DCA 1981)
- Rob-Cor, Inc. v. Ines, 512 So. 2d 320 (Fla. 3d DCA 1987)
- Rudner v. Cabrera, 455 So. 2d 1093 (Fla. 5th DCA 1984)
- Dennis v. Pavlakos, 464 So. 2d 1323 (Fla. 5th DCA 1985)
- Smith v. Glisson, 468 So. 2d 394 (Fla. 3d DCA 1985)