PHILIP C. MORSE, JR., AND BOAT HAVEN NAPLES, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
HENDRY CORPORATION, A FLORIDA CORPORATION, APPELLEE
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Appellants sought to appeal an order dismissing two counts of their complaint while leaving a negligence count pending. The court held that the dismissal order was interlocutory and not appealable under Florida law, as it did not dispose of all claims and left the negligence count pending.
The order dismissing counts one and two is an interlocutory order and not appealable because it leaves count three (the negligence claim) pending, making the judgment partial rather than final. However, appellants may raise the issues regarding the dismissed counts upon appeal from final judgment.
“the judgment dismissing the complaint is a partial summary judgment and therefore interlocutory, and not appealable within the meaning of Florida Statutes, § 59.2(1), F.S.A. and Florida Appellate Rule 3.2, subd. b”
Establishes the legal standard that partial judgments dismissing only some claims are interlocutory and not appealable
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a three-count complaint against Hendry Corporation. The lower court dismissed counts one and two, which were based on third party ben…
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The appellants, who were plaintiffs below, appeal from an order dismissing with prejudice counts one and two of their three-count complaint in an action at law. The lower court refused to dismiss count three, which was based on negligence, and ordered the defendant to answer. Counts one and two were based on the theory of third party beneficiary and strict liability.
The defendant has filed its motion to •dismiss the appeal on the ground that it is ■an interlocutory order at law not relating to venue or jurisdiction over the person ■and, therefore, nonappealable.
The case of McLean v. Plant Fruit Company, Fla.App.1964, 167 So.2d 332, was an action wherein an answer and counterclaim were filed and summary judgment was entered dismissing the amended complaint, hut left pending the counterclaim. This court held that summary judgment dismissing the amended complaint, but leaving pending a counterclaim, was partial and therefore “interlocutory” and not “appealable” within statute and appellate rule.
This court said:
“After the filing of an amended complaint at law for damages for breach of contract, answer and counterclaim were filed. The Court entered a summary judgment dismissing the amended complaint, but left pending the counterclaim. Under such circumstances the judgment dismissing the complaint is a partial summary judgment and therefore interlocutory, and not appealable within the meaning of Florida Statutes, § 59.2(1), F.S.A. and Florida Appellate Rule 3.2, subd. b, 31 F.S.A.”
In Longo v. Collins, Fla.App. 1958, 106 So.2d 1, the First District Court of Appeal held that a party aggrieved by interlocutory order other than those encompassed by rules, could seek relief therefrom only by appropriate assignment upon appeal from final judgment, except if it could be clearly demonstrated that such would not afford a full, adequate and complete remedy, and in the absence of a clear showing there could be no full and complete remedy by appeal from a final judgment, appeal would be dismissed.
The First District Court, in its opinion by Judge Wigginton, said:
“Rule 4.2, Florida Appellate Rules, 31 F.S.A., provides for the review of interlocutory orders entered in common law actions only when such orders relate to venue or jurisdiction over the person. The jurisdiction of an appellate court cannot be otherwise invoked thereunder in actions at law. Renard v. Kirkeby Hotels, Inc., Fla.App.1958, 99 So.2d 719.
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“Having failed to properly invoke the jurisdiction of this court to review the challenged order by interlocutory appeal, and absent a clear showing that there can be no full, adequate and complete relief by appeal from final judgment, this appeal must be and the same *33is hereby dismissed, but without prejudice to appellants’ right to seek a review by appeal upon the entry of final judgment if they be so advised.”
The motion to dismiss the appeal in the instant case is granted, but without prejudice to the appellants’ right to seek review by appeal upon the entry of final judgment, if they so desire. See Easley v. Garden Sanctuary, Inc., Fla.App.1960, 120 So.2d 59, 78 A.L.R.2d 1199.
ALLEN, C. J., and SMITH and ANDREWS, JJ., concur.
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Jacquelyn Hennagan v. Dep't of Hwy. Safety & Motor Vehicles, 467 So. 2d 748 (Fla. 1st DCA 1985)…below is affirmed in part and reversed in part. We affirm the summary judgment entered in favor of defendant on the third amended complaint, but reverse the order dismissing Counts I through IV of the amended complaint. Morse v. Hendry Corporation, 177 So. 2d 31 (Fla. 2d DCA 1965). The cause is remanded for further proceedings based on the allegations made in Counts I through IV of the amended complaint and consistent with this opinion. ERVIN, C.J., and ZEHMER, J., concur. . Not challenged on appeal is th…
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Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966)…remanded for further proceedings in accordance with this opinion. Reversed and remanded. . Chipley v. Atkinson, 23 Fla. 206, 1 So. 934, 940 (1887). . Prosser, Torts, § 106 at 725, 726 (2d Ed. 1955). . Morse v. Hendry Corporation, Ela.App. 1965, 177 So. 2d 31. . Note 2, supra, § 107 at 747; See Evans, Torts to Expectancies on Decedents’ Estates, 1944, 93 U.Pa.L.Rev. 187. . 210 N.C. 679, 188 S.E. 390 (1936). . McGregor v. McGregor, 101 F.Supp. 848, 849 (D.Colo.1951). . Casternovia v. Casternovia, 82 N…
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Brown v. Wood, 202 So. 2d 125 (Fla. 2d DCA 1967)…ssal by summary judgment was a final appealable order and the plaintiffs’ failure to file a notice of appeal within the required 60 days divests this court of jurisdiction. A recent decision of this court, Morse v. Hendry Corporation, Fla.App.1965, 177 So. 2d 31, is directly on point. In Morse the trial court dismissed plaintiffs’ Counts 1 and 2, which were based on the theories of third party beneficiary and strict liability, but refused to dismiss a third count based on negligence. The plaintiffs attempte…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Renard v. Kirkeby Hotels, Inc., 99 So. 2d 719 (Fla. 3d DCA 1958)
- Easley v. THE Garden Sanctuary, Inc., 120 So. 2d 59 (Fla. 2d DCA 1960)
- Longo v. Collins, 106 So. 2d 1 (Fla. 1st DCA 1958)
- McLEAN v. Plant Fruit Co., 167 So. 2d 332 (Fla. 2d DCA 1964)