CELIA MORRIS, ET AL., APPELLANTS,
v.
OMAR GARCIA, APPELLEE
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Seven individuals and an LLC appealed an order granting a petition to partition real property (the "Beach Area & Access Canal") and denying their counterclaim for a non-exclusive perpetual easement. The appellate court dismissed the appeal, holding that the partition order was not yet final because the court had not yet directed the actual sale of the property.
The partition order is not yet final and therefore not appealable because no further action will be necessary only when the court directs the actual sale of the property. The partition issue and easement counterclaim are "interrelated" and involve the same transaction, not "distinct and severable" causes of action, because the property's value at auction depends on the status of title.
[1] An order granting a petition for partition of real property, which reserves ruling on the precise terms and conditions of the sale and each party's interest in the procee…
[2] An order is not final until no further action will be necessary to resolve the case.
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Join FLexlaw to unlock all legal intelligence“no further action will be necessary”
States the standard for when an order becomes final and appealable
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Join FLexlaw to unlock all legal intelligenceThe appellants and appellee were parties to a dispute over real property known as the "Beach Area & Access Canal." A trial court granted a petition fo…
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Order on Motion to Dismiss
This is an appeal' by seven individuals and one limited liability company from an order which grants á petition for the partition of a piece of real property known as the “Beach Area & Acceés' Canal,” reserving ruling on “the precise terms and conditions of the sale and each party’s interest in the proceeds.” The order also finds unmeritorious the appellants’ counterclaim that asserts they nevertheless should retain a non-exclusive perpetual easement in the property after the sale. The need to partition the property is not seriously contested. The central issue on appeal is whether the trial court correctly denied the áppellant’s counterclaim. Although not binding on us, the trial court advised the parties that “[t]his trial order does not constitute a final judgment because further proceedings must be honducted.1’ The trial judge!s advice is correct.
*679Applying the traditional test that an order becomes final when “no further action will be necessary,” see Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002), we conclude the partition order will not become final until such time as the court directs the sale of the property. Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722, 726 (1904) (holding that a verdict which decides the right of the property at issue is considered final when an order directs the sale of land “ ‘and the complainant is entitled to have such [verdict] carried immediately into execution’”) (emphasis added) (citation omitted); see also Winburn v. Lemings, 813 So.2d 289 (Fla. 1st DCA 2002) (finding that a judgment ordering partition of land was “not a final appeal-able order”).
The appellants argue to the contrary that the counterclaim seeking a non-exclusive perpetual easement over the property is a “distinct and severable” cause of action and therefore appealable. See Szewczyk v. Bayshore Props., 456 So.2d 1294, 1295-96 (Fla. 2d DCA 1984) (finding “ ‘the crucial determination on appellees’ motion to dismiss [was] whether the ... order adjudicated a ‘distinct and severable’ cause of action or whether it was ‘interrelated’ and involved ‘the same transaction’ as that which the court disposed of in the final judgment”). The appellees argue that the partition issue and easement issue are “interrelated” in this case, in part, because the attractiveness of the “Beach Area & Canal” property at a public auction, and hence its bid value, can be reasonably anticipated to be dependent upon the status of title of the property at the time. We agree with the appellees on this point.
Appeals dismissed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lisonel Perez v. Jaimot, 326 So. 3d 748 (Fla. 3d DCA 2021)…n the present case is a decree of the court dated September 30, 1925, confirming the report of the commissioners that there could be no partition, ordering a sale of the lands, and appointing commissioners to make such sale.”); Morris v. Garcia, 185 So. 3d 678, 679 (Fla. 3d DCA 2016) (“[W]e conclude the partition order will not become final until such time as the court directs the sale of the property.”) (citations omitted). Here, the contested order merely fixed a sale date. The previously appealed…
Authorities Cited
- Caufield v. Gino Cantele, 837 So. 2d 371 (Fla. 2002)
- Camp Phosphate Co. v. Anderson, 48 Fla. 226 (Fla. 1904)
- Morrison v. Smolarick (Fla. 2d DCA 2022)
- Szewczyk v. Bayshore Props., 456 So. 2d 1294 (Fla. 2d DCA 1984)
- O.A. Winburn, Jr. v. Lemings, 813 So. 2d 289 (Fla. 1st DCA 2002)