FRANK ORDZIEJESKI, APPELLANT,
v.
DAVID FREUDENBERG, VILLAGE POINTE REALTY, L.L.C., D/B/A WEICHART REALTORS-VILLAGE POINT AND GEMMA SICOLO, APPELLEES
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A seller of real estate sued for specific performance by the buyer refused to close and filed counterclaims for fraud against the buyer and realtors. The trial court dismissed these claims, and the seller appealed. The appellate court reversed the dismissal of the fraud claim against the realtors but affirmed dismissal of other claims.
The trial court erred in dismissing the fraud claim against the realtors as a matter of law based on the seller's counter-offer. When reviewing a motion to dismiss for failure to state a cause of action, the court must accept all allegations in the complaint as true. The dismissal of claims against the realtors is reversed, but the dismissal against Patricia Freudenberg (the buyer's wife, who was not a party to the transaction) is affirmed.
[1] An order dismissing a counterclaim is not a final appealable order if the underlying complaint for specific performance remains pending in the trial court.
[2] A dismissal of a complaint for failure to state a cause of action must accept the allegations in the complaint as true.
Previewing 2 of 4 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“Because the complaint for specific performance is still pending in the trial court, the portion of the order dismissing the counterclaim is not a final appealable order.”
Establishes why the counterclaim dismissal appeal cannot be heard at this stage and must be dismissed without prejudice.
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Join FLexlaw to unlock all legal intelligenceOrdziejeski (seller) entered into a contract to sell property to Freudenberg (buyer) for $175,000. Sicolo, a realtor, and her associate Freudenberg ha…
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KLEIN, J.
Ordziejeski entered into a contract to sell Freudenberg a piece of real estate. When Ordziejeski, the seller, refused to close, Freudenberg, the buyer, sued for specific performance. The seller then filed a counterclaim against the buyer for fraud and also filed a third party complaint against the realtors Sicolo and Village Point, alleging fraud. The trial court dismissed the seller’s counterclaim against the buyer for failure to state a cause of action, and seller appeals. Because the complaint for specific performance is still pending in the trial court, the portion of the order dismissing the counterclaim is not a final appealable order. S.L.T. Warehouse v. Webb, 304 So. 2d 97 (Fla.1974). We accordingly dismiss the appeal of the portion of the order dismissing the counterclaim, without prejudice to appeal from the final judgment after disposal of the specific performance case.
The trial court also dismissed the third party complaint against the realtors for failing to state a cause of action for fraud. The realtor, Sicolo, had previously secured a tenant for the seller’s rental home. After the seller asked Sicolo to obtain a renewal of the lease, Sicolo and her associate realtor, Freudenberg, the buyer, advised seller that the seller should sell the property to Freudenberg for $150,000, which would be a good price for the seller to accept. Relying on their opinion, seller counter-offered to sell for $175,000, which Freudenberg accepted.
Seller then had an independent appraisal performed and discovered that the property was worth over $300,000, and this was the basis of the seller’s fraud claims. The trial court concluded that, because the seller made a counter-offer of $175,000, as a matter of law the seller had not relied on the representations of the realtors that the property was worth only $150,000. In doing so, however, the trial court failed to accept the allegations in the complaint as true. Almarante v. Art Inst. of Fort Lauderdale, Inc., 921 So. 2d 703 (Fla. 4th DCA 2006). The order dismissing the complaint for failure to state a cause of action against Sicolo and Village Point Realty is accordingly reversed.
We affirm the order dismissing the third party complaint against Patricia Freudenberg, the wife of the buyer, because she was not a party to the transaction.
Affirmed in part and reversed in part.
POLEN and MAY, JJ., concur.
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Authorities Cited
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
- Almarante v. The ART Inst. OF Fort Lauderdale, Inc., 921 So. 2d 703 (Fla. 4th DCA 2006)