GEORGE S. SWAN, APPELLANT,
v.
ST. THOMAS UNIVERSITY, A FLORIDA CORPORATION, PATRICK O'NEILL, PASQUALE DIPASQUALE, JR., JACKIE SMITH, BARDIE WOLFE, AND RAYMOND O'KEEFE, APPELLEES
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George Swan appealed the partial dismissal of his third amended complaint against St. Thomas University and individual defendants. The court affirmed the dismissal, finding the appeal against the University non-final and the complaint against the individual defendants properly dismissed for failure to state causes of action.
The court affirmed the dismissal. The appeal against the University was dismissed as non-final because counts for breach of contract and defamation against the University remained pending. The dismissal of claims against the individual defendants was affirmed because the complaint failed to state causes of action.
[1] An order is not final and thus not appealable if it leaves pending claims that are legally and factually interrelated with the dismissed claims.
[2] An appeal of a non-final order that leaves pending claims legally and factually interrelated with the dismissed claims must be dismissed.
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Join FLexlaw to unlock all legal intelligence“In determining whether an order is final, and thus, appealable, the appellate court must determine whether the order appealed constitutes an end to the judicial labor below.”
Establishes the standard for determining whether an order is appealable; critical to the court's decision to dismiss the appeal against the University
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Join FLexlaw to unlock all legal intelligenceSwan sued St. Thomas University for breach of contract, fraud, and defamation. He also sued five individual defendants (O'Neill, DiPasquale, Smith, Wo…
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PER CURIAM.
Appellant, George S. Swan, appeals from the partial dismissal with prejudice of his third amended complaint. We affirm.
Appellant sued appellee St. Thomas University (University), for breach of contract, fraud and defamation. Appellant also sued appellees, Patrick O’Neill, Pasquale Di-Pasquale, Jr., Jackie Smith, Bardie Wolfe, and Raymond O’Keefe (individual appel-lees), for tortious interference with a contract, fraud, and intentional infliction of emotional distress. The trial court dismissed all counts against all defendants, except for one count for breach of contract and one count for defamation against the University.
Appellant contends that the trial court erred in partially dismissing his third amended complaint because it properly stated causes of action against appellees. The University asserts that the partial dismissal is a non-final order concerning the University, and thus the appeal against the University should be dismissed.
The individual appellees assert that appellant’s third amended complaint was properly dismissed because it failed to state a cause of action for breach of contract, tortious interference with a contract, fraud and intentional infliction of emotional distress.
1) DISMISSAL OF APPEAL
In determining whether an order is final, and thus, appealable, the appellate court must determine whether the order appealed constitutes an end to the judicial labor below. Miami-Dade Water and Sewer Authority v. Metropolitan Dade County, 469 So. 2d 813 (Fla. 3d DCA 1985), review denied 482 So. 2d 349 (Fla.1986). In this case, counts against the University for breach of contract and defamation, based upon the same facts and circumstances, remain.
The dismissed counts appealed do not meet the exception laid out in Mendez v. West Flagler Family Association, 303 So. 2d 1 (Fla.1974), because the appealed counts are legally and factually interrelated with the pending counts. Accordingly, we must dismiss the appeal against the University. Miami-Dade Water and Sewer Authority v. Metropolitan Dade County, 469 So. 2d at 813.
2) DISMISSAL OF THE THIRD AMENDED COMPLAINT
We find no merit in appellant’s contention that the trial court erred in dismissing the third amended complaint regarding the individual appellees. Accordingly, we affirm the dismissal of the counts against the individual appellees. See Metropolitan Life Insurance Company v. McCarson, 467 So. 2d 277 (Fla.1985); Scheller v. American Medical International, Inc., 502 So. 2d 1268 (Fla. 4th DCA), review denied 513 So. 2d 1060 (Fla.1987); Ponton v. Scarfone, 468 So. 2d 1009 (Fla. 3d DCA), review denied 478 So. 2d 54 (Fla.1985); Buckner v. Lower Florida Keys Hospital District, 403 So. 2d 1025 (Fla. 3d DCA 1981), review denied 412 So. 2d 463 (Fla.1982); West v. Troelstrup, 367 So. 2d 253 (Fla. 1st DCA 1979).
Affirmed.
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Harrison v. J.P.A. Enters., L.L.C., 51 So. 3d 1217 (Fla. 1st DCA 2011)…issal of a complaint is only reviewable when it is established that the dismissed claims are not legally and factually interrelated with the remaining claims. Mendez v. West Flagler Family Ass’n, 303 So. 2d 1, 5 (Fla.1974); Swan v. St. Thomas Univ., 592 So. 2d 351, 352 (Fla. 3d DCA 1992); Taddie Underground Util. Co., Inc. v. Sloan Pump Co., Inc., 497 So. 2d 701, 702 (Fla. 2d DCA 1986).” Lambou v. Wakulla County, 919 So. 2d 678, 678-79 (Fla. 1st DCA 2006). If an order does not finally end the judicial labor i…
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Anna and Peter Paul v. Humana Med. Plan, Inc., 682 So. 2d 1119 (Fla. 4th DCA 1996)…3 So. 2d 65 (Fla. 4th DCA 1990), rev. cert, question, 598 So. 2d 65 (Fla.1992). See also Lay v. Roux Lab., Inc., 379 So. 2d 451 (Fla. 1st DCA 1980), appeal after remand on other grounds, 411 So. 2d 1347 (Fla. 1st DCA 1982); Swan v. St. Thomas Univ., 592 So. 2d 351 (Fla. 3d DCA 1992); Dependable Life Ins. Co. v. Harris, 510 So. 2d 985 (Fla. 5th DCA 1987); McAlpin v. Sokolay, 596 So. 2d 1266 (Fla. 5th DCA 1992); Watson v. Bally Mfg. Corp., 844 F.Supp. 1533 (S.D.Fla.1993), affd, 84 F. 3d 438 (11th Cir. 1996); Go…
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Lambou v. Wakulla Cnty., 919 So. 2d 678 (Fla. 1st DCA 2006)…f a complaint is only reviewable when it is established that the [*679] dismissed claims are not legally and factually interrelated with the remaining claims. Mendez v. West Flagler Family Ass’n, 303 So. 2d 1, 5 (Fla.1974); Swan v. St. Thomas Univ., 592 So. 2d 351, 352 (Fla. 3d DCA 1992); Taddie Underground Util. Co., Inc. v. Sloan Pump Co., Inc., 497 So. 2d 701, 702 (Fla. 2d DCA 1986). We find that Petitioners do not meet this burden. We therefore deny the petition. DENIED. KAHN, C.J., and HAWKES and THO…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mendez v. W. Flagler Fam. Ass'n, Inc., 303 So. 2d 1 (Fla. 1974)
- Metro. Life Ins. Co. v. McCARSON, 467 So. 2d 277 (Fla. 1985)
- Ponton v. Scarfone, 468 So. 2d 1009 (Fla. 2d DCA 1985)
- John W. Buckner, M.D. v. The Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025 (Fla. 3d DCA 1981)
- West v. Troelstrup, 367 So. 2d 253 (Fla. 1st DCA 1979)
- Miami-Dade Water & Sewer Auth. v. Metro. Dade Cnty. & City of Miami, 469 So. 2d 813 (Fla. 3d DCA 1985)
- Zbigniew Scheller v. Am. Med. Int'l Inc., 502 So. 2d 1268 (Fla. 4th DCA 1987)