WILLIAM L. CONTI AND MICKI CONTI, APPELLANTS,
v.
B & E HOLDINGS, LLC, ELLYSON PLACE, LLC.; ET AL., APPELLEES
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The appellants appealed a final judgment ordering them to pay amounts due under a promissory note, but the Florida District Court of Appeal dismissed the appeal as premature because the trial court had not yet resolved the related mortgage foreclosure action against them.
The appellate court held that the judgment is not final and appealable because the trial court has not resolved the mortgage foreclosure action. The appellants' status as endorsers of the promissory note makes them proper parties to the foreclosure action, and the deficiency proceeding is an integral part of foreclosure. Therefore, the order does not totally dispose of the entire case as to the appellants and does not constitute a separate and distinct cause of action.
[1] An order entering a money judgment for amounts due under a promissory note is not final and appealable when it preserves all other rights and remedies and does not resolv…
[2] An order is not a final partial judgment appealable under Florida Rule of Appellate Procedure 9.110(k) if it does not dispose of the entire case as to a party.
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Join FLexlaw to unlock all legal intelligence“The order "preserves all other rights and remedies allowable to the Plaintiff under the note, loan documents, [and] Mortgage.... " The trial court has not resolved the mortgage foreclosure action, which was brought against the appellants and other defendants in a separate count of the complaint. Therefore, the order is not final.”
Establishes that the order was not final because related claims remained pending
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Join FLexlaw to unlock all legal intelligenceThe appellants William L. Conti and Micki Conti were defendants in a case brought by B & E Holdings, LLC. The complaint contained multiple counts, inc…
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The appellants seek review of an order entitled “Final Judgment as to William L. Conti a/k/a Lawrence William Conti a/k/a Larry Conti and Micki Conti in Favor of B & E Holdings, LLC,” which enters what appears to be an executable money judgment against the appellants for amounts due under a promissory note. However, the appeal is premature. Fla. R.App. P. 9.110(l). The order “preserves all other rights and remedies allowable to the Plaintiff under the note, loan documents, [and] Mortgage.... ” The trial court has not resolved the mortgage foreclosure action, which was brought against the appellants and other defendants in a separate count of the complaint. Therefore, the order is not final. Cf. Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002); see also Couch v. Tropical Breeze Resort Assn., Inc., 867 So.2d 1219 (Fla. 1st DCA 2004); Raymond James & Assocs., Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003).
The appellants argue the order is appealable as a partial final judgment under Florida Rule of Appellate Procedure 9.110(k). However, the order does not totally dispose of the entire case as to the appellants. Cf. Batur v. Signature Props, of Nw. Florida, Inc., 903 So.2d 985, 988 (Fla. 1st DCA 2005) (finding appellate jurisdiction to review partial final judgment to the extent it disposed of the entire case as to defendants). As endorsers of the promissory note secured by the mortgage, the appellants are proper parties to the foreclosure action. See, e.g., Hobbs v. Florida First Nat’l Bank of Jacksonville, 480 So.2d 153, 155 n. 1 (Fla. 1st DCA 1985) (noting endorsers of the mortgage note are proper parties to the foreclosure action and mortgagee is not required to bring a separate action to seek a deficiency judgment against them after foreclosure); First Union Nat’l Bank v. Goodwin Beach P’ship, 644 So.2d 1361, 1362 n. 1 (Fla. 5th DCA 1994) (noting a deficiency proceeding is an integral part of the foreclosure action). Further, the order does not dispose of a separate and distinct cause of action because the pending foreclosure action is interrelated with the claim disposed of by the order on appeal. See Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) (analyzing whether order dis*1273posed of a separate and distinct cause of action). Therefore, the Court lacks appellate jurisdiction to review the instant order at this time. Fla. R.App. P. 9.080(b)(1)(A).
DISMISSED.
WOLF, DAVIS, and HAWKES, JJ., concur.
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E. Ave., LLC v. Insignia Bank, 136 So. 3d 659 (Fla. 2d DCA 2014)…ant’s assertion that such an order should be “deemed final” under McGum because, it said, McGum was limited to review of orders reserving jurisdiction to award prejudgment interest. Godshall, 851 So. 2d at 880; see also Conti v. B & E Holdings, LLC, 61 So. 3d 1272 (Fla. 1st DCA 2011); Couch v. Tropical Breeze Resort Ass’n, 867 So. 2d 1219 (Fla. 1st DCA 2004). appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order. Before dismissal, the…
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Daemon Reiydell and Billie Hensky Reiydell v. Trustmark Nat'l Bank, 63 So. 3d 910 (Fla. 1st DCA 2011)…PER CURIAM. Upon consideration of the Appellants’ response to the Court’s order of March 28, 2011, the Court has determined that the appeal is premature. See Conti v. B & E Holdings, LLC, et al., 61 So. 3d 1272 (Fla. 1st DCA 2011). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. All pending motions are denied as moot. DAVIS, ROBERTS, and ROWE, JJ., concur.…
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McMICHAEL v. McMichael, 160 So. 3d 937 (Fla. 1st DCA 2015)…judgment may be ap-pealable as final under rule 9.110(k), the instant order is not a partial final judgment because the remaining claims are related and the order does not dispose of the entire case as to any party. See Conti v. B & E Holdings, LLC, 61 So. 3d 1272 (Fla. 1st DCA 2011) (rejecting argument that order was an appealable partial final judgment).1 The third-party complaint raised substantive claims against Gary and Lisa McMichael, and against The Turn Key Group. Several of these claims are disposed…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Caufield v. Gino Cantele, 837 So. 2d 371 (Fla. 2002)
- Colon v. Nationwide Life Ins. Co., 985 So. 2d 1218 (Fla. 2d DCA 2008)
- Raymond James & Assocs., Inc. v. Godshall, 851 So. 2d 879 (Fla. 1st DCA 2003)
- C.A. Hobbs, Jr. v. Fla. First Nat'l Bank of Jacksonville, 480 So. 2d 153 (Fla. 1st DCA 1985)
- First Union Nat'l Bank OF Fla. v. Goodwin Beach P'ship, 644 So. 2d 1361 (Fla. 5th DCA 1994)
- Couch v. Tropical Breeze Resort Ass'n, Inc., 867 So. 2d 1219 (Fla. 1st DCA 2004)
- Bereciartura v. Valdes, 903 So. 2d 985 (Fla. 4th DCA 2005)
- Batur v. Signature Props. OF Nw. Fla., 903 So. 2d 985 (Fla. 1st DCA 2005)