ALTAIR MAINTENANCE SERVICES, INC., APPELLANT,
v.
GBS EXCAVATING, INC., APPELLEE
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Altair Maintenance Services appeals a non-final order granting summary judgment on a civil theft count. The court dismisses the appeal as premature under the piecemeal appeal doctrine because the resolved count arises from the same transaction and parties as remaining interrelated counts.
The appeal is premature and is dismissed without prejudice. Although the non-final appeal may be technically authorized under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), the appeal must be dismissed because the resolved count and unresolved counts arise from the same transaction, involve the same parties, and involve interdependent claims, making the appeal an impermissible piecemeal appeal.
[1] An appeal from a non-final order granting partial summary judgment is premature if the unresolved counts involve the same transaction and the same parties.
[2] Counts in a complaint are considered interdependent if they arise out of the same incident, even if they involve separate legal theories.
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Join FLexlaw to unlock all legal intelligence“the appeal is premature under Mendez v. West Flagler Family Ass'n, Inc., 303 So.2d 1, 5 (Fla.1974), which cautions against piecemeal appeals”
Establishes the controlling precedent prohibiting piecemeal appeals of interrelated counts
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Join FLexlaw to unlock all legal intelligenceGBS Excavating (plaintiff/appellee) alleged that Altair Maintenance Services (defendant/appellant) refused to pay for services performed and materials…
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PARIENTE, Judge.
Appellant, Altair Maintenance Services, Inc. (defendant), seeks review of a non-final order granting summary judgment against it on one count of a multi-count complaint. Defendant invokes the appellate jurisdiction of this court pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) to review the order as a non-final, appealable order determining the issue of liability in favor of a party seeking affirmative relief.
Even if the non-final appeal is technically authorized pursuant to the above-cited rule, because the order deals with the same transaction and parties as are involved in the remaining, undisposed-of-counts, the appeal is premature under Mendez v. West Flagler Family Ass’n, Inc., 303 So. 2d 1, 5 (Fla.1974), which cautions against piecemeal appeals. Although Mendez considered an order that dismissed one count of a complaint, our court has applied the same test to orders granting partial summary judgments where other interrelated counts remained pending. See West American Insur. Co. v. Nixon, 489 So. 2d 876, 877 (Fla. 4th DCA 1986). In Nixon, we held that even where a partial summary judgment meets the definition of an appealable, non-final order under rule 9.130(a)(3)(C)(iv), the appeal will be dismissed if the unresolved counts involve the same transaction and the same parties. Id.
Here, every count that seeks to impose liability against defendant arises from the same underlying set of factual allegations— the appellee (plaintiff) alleges that it performed services for and provided materials to defendant for which defendant refused to pay. While the civil theft count, which is the subject of the order granting the motion for partial summary judgment, requires proof of additional facts other than the breach of contract count, that in no way negates the interrelationship between the counts.
In Biasetti v. Palm Beach Blood Bank, 654 So. 2d 237 (Fla. 4th DCA 1995), we reiterated that counts are interdependent, “[i]f the claims arise out of the same incident ... even if the counts involve separate and severable legal theories.” Id. at 238. The test is whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in the separate counts. See also Pellegrino v. Horwitz, 642 So. 2d 124, 126 (Fla. 4th DCA 1994).
Defendant asserts that a finding of liability on one count will in effect put an end to the entire question of liability. This argument reinforces our view of the interdependency of the counts. This appeal is premature at the present time and will be until disposition of the remaining counts. Nixon, 489 So .2d at 877. Accordingly, this appeal is sua sponte dismissed without prejudice.
GLICKSTEIN and STONE, JJ., concur.
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Cygler v. Presjack, 667 So. 2d 458 (Fla. 4th DCA 1996)…is applicable to this case. We disagree that the summary judgment on the affirmative defense is directly related and is an aspect of the final summary judgment in favor of the Department. See Altair Maintenance Servs., Inc. v. GBS Excavating, Inc., 655 So. 2d 1281 (Fla. 4th DCA 1995). While the final judgment in favor of the Department constitutes an end to the judicial labor in the action between the relevant parties, specifically plaintiffs and the Department, and is therefore properly reviewable, the same…
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Lemon v. Groninger, 708 So. 2d 1025 (Fla. 5th DCA 1998)…erer v. Builders Supply House, Inc., 634 So. 2d 796 (Fla. 3d DCA 1994); Clermont Builders Supply, Inc. v. General Construction & Design, Inc., 423 So. 2d 518 (Fla. 5th DCA 1982). As noted in Altair Maintenance Services, Inc. v. GBS Excavating, Inc., 655 So. 2d 1281 (Fla. 4th DCA 1995), an appeal is premature where an [*1027] order deals with the same transaction, and the parties are involved in counts which are undisposed. The test to determine whether counts of a multicount complaint are interrelated, so as t…
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Croteau v. Operator Serv. Co. OF S. Fla., Inc., 721 So. 2d 386 (Fla. 4th DCA 1998)…olicy after it was issued. The test this court uses to determine whether an order is appealable under Mendez is “whether the counts arise from a set of common facts or a single transaction ...” Altair Maintenance Serv., Inc. v. GBS Excavating, Inc., 655 So. 2d 1281, 1282 (Fla. 4th DCA 1995). We conclude that the rule 1.730(c) motion to enforce the agreement reached in mediation is the equivalent of a count based on a separate and distinct cause of action under Mendez. The motion to enforce is grounded on sepa…
Previewing 3 of 13 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)
- Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237 (Fla. 4th DCA 1995)
- Pellegrino v. Jeffrey Horwitz, M.D., 642 So. 2d 124 (Fla. 4th DCA 1994)
- W. Am. Ins. Co. v. Luann Nixon, 489 So. 2d 876 (Fla. 4th DCA 1986)