Blakeslee v. Morse Operations, Inc.

• Decision Date: 25 November 1998
• Docket Number: No. 98-0385,98-0385
• Citation: 720 So.2d 1166
• Parties: 23 Fla. L. Weekly D2613 Gwendolyn W. BLAKESLEE, Appellant, v. MORSE OPERATIONS, INC., a Florida corporation, d/b/a Ed Morse Dodge, Inc., Appellee.
• Court: Florida District Court of Appeals

Page 1166

720 So.2d 1166

23 Fla. L. Weekly D2613

Gwendolyn W. BLAKESLEE, Appellant, v. MORSE OPERATIONS, INC., a Florida corporation, d/b/a Ed Morse Dodge, Inc., Appellee.

No. 98-0385.

District Court of Appeal of Florida Fourth District.

Nov. 25, 1998.

Matthew D. Weissing and Mara Shlackman of Montero, Finizio, Velasquez, Weissing & Reyes, P.A., Ft. Lauderdale, for appellant.

Carolyn D. Dawson and Glen R. Goldsmith of Glen R. Goldsmith, P.A ., Miami, for appellee.

KLEIN, J.

In 1992 appellant plaintiff purchased a used 1990 Plymouth Voyager from defendant which turned out to be a salvage car. When plaintiff complained, defendant agreed to take care of the problem, and in 1993 she traded the Plymouth in for a Dodge Caravan. Plaintiff subsequently sued for fraud in the inducement and deceptive and unfair trade practices grounded on both the sale of the first vehicle and the lease of the second.

The contract appellant executed when she purchased the first vehicle contained a binding arbitration clause, but the lease agreement for the second vehicle did not. The trial court granted defendant's motion to stay and compelled arbitration of all of the claims.

Plaintiff subsequently moved to file an amended complaint, deleting the allegations based on the first transaction, and alleging only wrongful acts by the defendant concerning the lease of the second vehicle. The purpose of the amendment was to avoid having to arbitrate. The court denied the motion for leave to file an amended complaint, ordering plaintiff to "arbitrate within thirty days or case dismissed without prejudice."

Plaintiff filed another motion for leave to amend, again limiting the allegations to the lease transaction, which the court denied in a written order, reiterating that plaintiff's claims had to be arbitrated. Plaintiff appeals this order.

Defendant has moved to dismiss the appeal, arguing that the earlier order denying leave to amend and requiring plaintiff to arbitrate or suffer dismissal was the appealable order. In Lynbrook Court Condominium Ass'n v. Arana, 711 So.2d 249, 250 (Fla. 3d DCA 1998), the trial court entered an order providing that "this matter shall stand dismissed thirty (30) days from the date of this Order unless it appears that this matter is diligently being prosecuted in good faith within that period of thirty (30) days." The third district held that the conditional order was not a final order, citing Ponton v. Gross 576 So.2d 910, (Fla. 1st DCA 1991...