EL SEGUNDO ORIGINAL REY DE LA PIZZA CUBANA, INC., PREVIOUSLY KNOWN AS ORIGINAL REY PIZZA, INC., ORIGINAL REY DE LA PIZZA CUBANA, CORP., AND MANUEL MONTES DE OCA, APPELLANTS,
v.
REY PIZZA CORP., APPELLEE
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A Florida appellate court dismissed an appeal of a partial summary judgment on trademark infringement liability, holding that the judgment was not appealable as a non-final order because the decided counts were interdependent with still-pending counts arising from the same business dispute.
A partial summary judgment on four counts is not appealable as a non-final order when those counts are interdependent with and arise out of the same common facts as the still-pending counts. Proper review can only be obtained upon appeal from a final judgment when entered at the conclusion of the case.
[1] A partial summary judgment on liability is not an appealable non-final order when the counts on which it is based are not independent and severable from counts that remai…
[2] Counts in a complaint that arise out of and depend on the same set of common facts are interrelated and interdependent for purposes of appealability.
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Join FLexlaw to unlock all legal intelligence“even though the judgment determined liability in favor of the plaintiff on the four counts of the complaint involving trademark infringement, it is not an appeal-able non-final order because those counts are not independent and severable from the still-pending counts below”
States the core holding that partial judgments on some counts are not appealable when other counts remain pending and are interdependent
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Join FLexlaw to unlock all legal intelligenceEl Segundo Original Rey De La Pizza Cubana, Inc. and Manuel Montes De Oca (defendants below) appealed a partial summary judgment entered in favor of R…
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FLETCHER, Judge.
Appellants, defendants below, appeal a partial summary judgment on liability entered in favor of the plaintiffi'appellee on four counts of a six-count complaint alleging various causes of action for trademark infringement, business injury, and fraud in the obtaining of a trademark registration. The appellants cite rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure for jurisdiction. We grant the plaintiff/appellee’s motion to dismiss the appeal.
Simply stated, even though the judgment determined liability in favor of the plaintiff on the four counts of the complaint involving trademark infringement, it is not an appeal-able non-final order because those counts are not independent and severable from the still-pending counts below. Although based on different legal theories, they are interrelated with and interdependent on the two counts that remain pending. This is the case as every count in the fourth amended complaint arises out of and depends on the same set of common facts involving a business dispute between identical parties. Altair Maintenance Servs. v. GBS Excavating, Inc., 655 So. 2d 1281, 1282 (Fla. 4th DCA 1995). Therefore, defendants may properly obtain review of the partial summary judgment “only upon a proper appeal from a final judgment or final order when entered at the conclusion of the case.” Arango v. Cainas, 666 So. 2d 970, 971 (Fla. 3d DCA 1996); see also S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla.1974); Mendez v. West Flagler Family Ass’n, 303 So. 2d 1 (Fla.1974).
In light of our ruling on the motion to dismiss, the appellee’s pending motion to strike portions of appellants’ brief and appendix is rendered moot.
Appeal dismissed.
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G.L.S. v. Dep't OF Child. & Families, 724 So. 2d 1181 (Fla. 1998)…ould not mandate an appeal of the adjudication order. Nevertheless, the issues of termination and disposition would seem to be separate and distinct and not interdependent. Compare El Segundo Original Rey de la Pizza Cubana, Inc. v. Rey Pizza Corp., 676 So. 2d 1031, 1032 (Fla. 3d DCA 1996). Under the statutory scheme, the issue of termination may be determined as a separate, independent matter following the adjudicatory hearing. See §§ 39.467 and 39.469, Fla. Stat. (1995). In such event, as to the parties, the…
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G.L.S. v. Dep't of Child. & Families, 700 So. 2d 96 (Fla. 1st DCA 1997)…ould not mandate an appeal of the adjudication order. Nevertheless, the issues of termination and disposition would seem to be separate and distinct and not interdependent. Compare El Segundo Original Rey de la Pizza Cubana, Inc. v. Rey Pizza Corp., 676 So. 2d 1031, 1032 (Fla. 3d DCA 1996). Under the statutory scheme, the issue of termination may be determined as a separate, independent matter following the adjudicatory hearing. See §§ 39.467 and 39.469, Fla. Stat. (1995). In such event, as to the parties, the…
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Miami Columbus, Inc. v. Zahid A. Ramlawi, 687 So. 2d 1378 (Fla. 3d DCA 1997)…the work should instead be considered in the accounting. Tellez v. Callejas, 683 So. 2d 175, 176 (Fla. 3d DCA 1996), and cases cited. Under all these circumstances, the holding in El Segundo Original Rey de la Pizza Cubana, Inc. v. Rey Pizza Corp., 676 So. 2d 1031, 1032 (Fla. 3d DCA 1996) is directly controlling: [Ejven [if] the judgment determined liability in favor of the plaintiff on the four counts of the complaint involving trademark infringement, it is not an appealable non-final order because those co…
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
- 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)
- Altair Maint. Servs., Inc. v. GBS Excavating, Inc., 655 So. 2d 1281 (Fla. 4th DCA 1995)
- Dacosta v. Dacosta, 666 So. 2d 970 (Fla. 3d DCA 1996)