JOE K. BERKAN, APPELLANT,
v.
AARON BROWN, NATHAN KATZ, FLORENCE WEISBERG, AND SAMUEL KAYE, APPELLEES
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The Third District Court of Appeal held that an order granting summary judgment is final and appealable even though it is final as to one defendant (Kaye, brought in as an additional party) but interlocutory as to others (the original plaintiffs). The court rejected the appellees' motion to dismiss the appeal, finding that treating the order as final avoids duplicative appeals and ensures all parties are before the court.
The court held that the order is final and appealable. Because the judgment is final as to Kaye (who was discharged from the cause), it should be appealable as to all defendants, even though it remains interlocutory as to the original plaintiffs.
[1] An order is a final appealable order when it is final as to one party, even if interlocutory as to others.
[2] A judgment terminating a party from a cause of action is considered final as to that party.
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Join FLexlaw to unlock all legal intelligence“The order under review entered final judgment for the appellees upon defendant-appellant's pleading, which the parties and the court called a counterclaim and third-party complaint.”
Establishes the nature of the order under review and its dual character as addressing both original parties and an added third party.
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Join FLexlaw to unlock all legal intelligenceAppellant Berkan filed a counterclaim and third-party complaint against appellees Brown, Katz, and Weisberg (original plaintiffs) and Samuel Kaye (add…
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ON MOTION
The appellees have moved to dismiss this appeal ■ upon the grounds that the *872order appealed from (a) is an interlocutory order in an action formerly cognizable in law and (b) is not one from which an interlocutory appeal is allowed by Rule 4.2, F.A.R., 32 F.S.A. The difficulty arises from the fact that the order is final as to one appellee and interlocutory as to the others. We hold that it is a final appealable order.
The order under review entered final judgment for the appellees upon defendant-appellant’s pleading, which the parties and the court called a counterclaim and third-party complaint. The pleading prayed for a money judgment against all the appel-lees. Brown, Katz, and Weisberg were plaintiffs below. Kaye was not a plaintiff ; he was brought into the cause when the appellant filed the pleading in question and made appropriate service upon him. Kaye was brought in under Rule 1.170(h),1 Florida Rules of Civil Procedure, 30 F.S.A., not Rule 1.180(a).2 The trial judge entered summary judgment in favor of all the appellees and against the appellant on the appellant’s claim.
If Kaye had not been brought into the cause, the order would have been final only when judgment terminating the entire action (plaintiffs’ claim and defendant-appellant’s claim) between the parties was entered. Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., Fla.App.1965, 179 So.2d 414; but see Rule 4.2, F.A.R., as to an interlocutory appeal from a partial summary judgment. It is clear that the order is final in relation to Kaye, since it discharged him from the cause. See Evin R. Welch & Co. v. Johnson, Fla.App. 1962, 138 So.2d 390; Shute v. Keystone State Bank, Fla.App.1964, 159 So.2d 106; Schneider v. Manheimer, Fla.App.1965, 170 So.2d 75; Conboy v. City of Naples, Fla.App.1969, 226 So.2d 108.
We conclude that since the judgment on the counterclaim and additional party complaint is final as to one party, it should be appealable as to all. This holding will avoid two appeals from the same order and is more likely to achieve a just decision because all parties will be before this court when we decide the merits of appellant’s contentions.
The motion to dismiss the appeal is denied.
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Edwards v. Landsman, 51 So. 3d 1208 (Fla. 4th DCA 2011)…r). . We might also have had jurisdiction to consider the dismissal of the counterclaim against Auto Showcase to "avoid two appeals from the same decision.” Travelers Express, Inc. v. Acosta, 397 So. 2d 733, 736 (Fla. 3d DCA 1981); Berkan v. Brown, 231 So. 2d 871, 872 (Fla. 3d DCA 1970) ("We conclude that since the judgment on the counterclaim and additional party complaint is final as to one party, it should be appealable as to all.”). Edwards, however, did not request that we also consider the dismissal of…
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Travelers Express, Inc. v. Myriam Acosta, 397 So. 2d 733 (Fla. 3d DCA 1981)…it is error to dismiss it as such. However, it may be proper to dismiss it on the merits, in which case that determination will remain interlocutory in character until the final disposition of the original claim. Our examination of Berkan v. Brown, 231 So. 2d 871 (Fla. 3d DCA 1970) and cases cited therein discloses that the same order was likewise appealable as to Myriam. The policy reasons for this conclusion were stated as follows: We conclude that since the judgment on the counterclaim and additional par…
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Newkirk Constr. Corp. v. Gulf Cnty., 366 So. 2d 813 (Fla. 1st DCA 1979)…lower court’s judgment of interpleader, though interlocutory to Newkirk and Dependable, was final to the county and ap-pealable as such by all the parties. See Miller v. Gulf Life Insurance Co., 148 Fla. 1, 3 So. 2d 519 (1941), and Berkan v. Brown, 231 So. 2d 871 (Fla. 3d DCA 1970). We conclude, in the absence of default by the contractor, the county had no bona, fide threat of exposure to suit by the surety. It was therefore improper for the interpleader action to proceed. REVERSED. McCORD, C. J., and ME…
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
- Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 179 So. 2d 414 (Fla. 3d DCA 1965)
- Evin R. Welch & Co., Inc. v. Johnson, 138 So. 2d 390 (Fla. 2d DCA 1962)
- Shute v. Keystone State Bank & Mrs. Edward J. Hutson, 159 So. 2d 106 (Fla. 1st DCA 1963)
- Hyman Schneider v. Manheimer, 170 So. 2d 75 (Fla. 3d DCA 1964)
- Conboy v. The City OF Naples, 226 So. 2d 108 (Fla. 2d DCA 1969)