Campbell v. Gordon, 95-1967

• Citation: 674 So.2d 783
• Decision Date: 26 April 1996
• Docket Number: No. 95-1967,95-1967
• Parties: 21 Fla. L. Weekly D1020 Wayne Enzor CAMPBELL, Appellant, v. Susan Campbell GORDON and Husband, Guy Bruce Gordon, Appellees.
• Court: Court of Appeal of Florida (US)

Page 783

674 So.2d 783

21 Fla. L. Weekly D1020

Wayne Enzor CAMPBELL, Appellant, v. Susan Campbell GORDON and Husband, Guy Bruce Gordon, Appellees.

No. 95-1967.

District Court of Appeal of Florida,

First District.

April 26, 1996.

Rehearing Denied June 17, 1996.

An appeal from the Circuit Court for Okaloosa County. Jack R. Heflin, Judge.

Ferrin C. Campbell Sr. of Ferrin C. Campbell Sr., P.A., Crestview, for Appellant.

Gregory D. Smith of Gregory D. Smith, P.A., Pensacola, for Appellees.

BENTON, Judge.

Wayne Enzor Campbell asks us to reverse the summary judgment entered on the counterclaim he filed in a partition action his former wife, Susan Campbell Gordon, brought. Her present husband, Guy Bruce Gordon, was later made an additional party plaintiff. Although the suit for partition remains pending, we conclude that we have jurisdiction over the final judgment on the counterclaim, affirm in part, reverse in part, and remand for further proceedings.

Judgment on Counterclaim Appealable

"[P]iecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction." Mendez v. West Flagler Family Ass'n, Inc., 303 So.2d 1, 5 (Fla.1974). While "most partial judgments are interrelated with remaining portions of the case and thus not final and not immediately appealable," Bay & Gulf Laundry Equip. Co., Inc. v. Chateau Tower, Inc., 484 So.2d 615, 616 (Fla. 2d DCA 1985), "when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appealable if dismissed with finality at trial level and not delayed ¹ of appeal because of the pendency of other claims between the parties." Mendez, 303 So.2d at 5.

In the present case, the complaint sought partition of certain real estate Susan Campbell Gordon and Wayne Enzor Campbell owned as tenants in common. The complaint also named First City Bank of Fort Walton as a defendant, alleging that the bank might have a claim against Mr. Campbell's interest "by virtue of a final judgment against" Mr. Campbell and others, which the bank had recorded in the official records of Okaloosa County, where the property lies. The final summary judgment as to counterclaim does not address the allegations of the complaint.

In determining whether a partial final judgment is appealable, "it makes no essential difference whether the distinct cause of action arises in a plaintiff's complaint or in a defendant's counterclaim or crossclaim." Id. Because a "pleader may set up in the same action as many claims or causes of action ... as the pleader has," Fla.R.Civ.P. 1.110(g), different counts can contain separate and distinct legal matters, just as counterclaims, crossclaims, and third-party claims can. But the difference between a compulsory counterclaim and a permissive counterclaim may be determinative:

The dismissal of a compulsory counterclaim with prejudice is not considered a final disposition and is, thus, not appealable until a final disposition of the original cause has obtained on the merits. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974); Mermel v. Rifkin, 603 So.2d 595 (Fla. 3d DCA 1992); Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315 (Fla. 3d DCA 1987); Sarasota Cloth Fabric & Foam, Inc. v. Benes, 482 So.2d 574 (Fla. 5th DCA 1986).

Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, 621 So.2d 507, 509 (Fla. 2nd DCA 1993); Dennis v. Pavlakos, 464 So.2d 1323 (Fla. 5th DCA 1985). By definition, a permissive counterclaim is "any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim." Fla.R.Civ.P. 1.170(b). A partial final judgment adjudicating a permissive counterclaim is, therefore, ordinarily appealable. Sarasota Cloth Fabric & Foam, Inc. v. Benes, 482 So.2d 574 (Fla. 5th DCA 1986); Chinos Villas Inc. v. Bermudez, 448 So.2d 1179 (Fla. 3d DCA 1984).

Here the counterclaim states four counts. Both counts one and two of the counterclaim state claims altogether separate, distinct, and independent from the partition proceeding. These first two counts allege debts Mr. Campbell asserts his former wife owes him. Neither debt bears any direct relationship ² to the parcel Ms. Gordon seeks to partition, as far as can be told from the record on appeal. As to the permissive counterclaims stated in counts one and two, the final summary judgment as to the counterclaim is clearly appealable.

Counts three and four of the counterclaim allege that Ms. Gordon fraudulently conveyed half of her undivided interest in the parcel in controversy to her new husband, and that she conspired with him to accomplish the fraudulent conveyance, in an effort to avoid payment of debts alleged in counts one and two. In the final summary judgment, the trial court ruled ³ in the Gordons' favor on the first two counts, and concluded that "if those two ... fall, then the causes of action under Counts III and IV of the subject Counter-Claim must fall as well." Because we agree with the learned trial court that counts three and four are inextricably bound up with the permissive claims set out in counts one and two of the counterclaim, we conclude that the final summary judgment as to counterclaim is appealable as to these counts, also. ⁴

Count One

Count one of the counterclaim alleges that, on November 4, 1991, the marriage between Mr. Campbell and Ms. Gordon was dissolved by an agreed final judgment incorporating the parties' stipulated division of marital assets and liabilities. Paragraph seven of the dissolution judgment provides:

DISTRIBUTION OF OTHER DEBTS. The parties shall remain jointly liable for any income tax liabilities arising out of any transactions, judgments or other financial events which first occurred during their marriage, without regard to when such liability manifests itself. Each of the parties hereto agree to indemnify and hold the other harmless for their one-half of any said tax liabilities paid by the other of them. The Wife shall indemnify and hold the Husband harmless for one-half of all sums which he may actually pay to any judgment lienholder or collateral creditors whose claims may arise by and through that liability owed to a judgment lienholder. The Husband shall be solely liable for payment of the unpaid balance due on the debt to his parents. Each of the parties shall be responsible for payment of the cost of the appraisal of the real estate they are awarded by this Judgment and shall share equally the cost of the Redstone Road property appraisal. All of said appraisal costs shall be paid from the proceeds of sale of the Redstone Road Property at the closing of said sale.

(Emphasis added.) Count one of the counterclaim alleges that First City Bank obtained a final summary judgment against Mr. Campbell and others in the amount of $425,752.53 on June 24, 1988, before dissolution of the parties' marriage.

Count one of the counterclaim further alleges that, after the dissolution and after the bank assigned the judgment to two of the other debtors, Mr. Campbell paid $75,000 and executed a promissory note for $25,000 to satisfy the judgment debt. Addressing the contention that he is entitled, pursuant to paragraph seven of the final judgment of dissolution of marriage, to recover from Ms. Gordon one-half of all sums he has paid and will pay in the future to retire this obligation, the trial court ruled:

1. That the first and second sentences of paragraph seven (7) of the Final Judgment of Dissolution of Marriage relates only to income tax liability. The sentences do not make the ex-wife jointly liable for all judgments. While the first sentence refers to "judgments", the Court finds that the word "judgments" is used to modify and qualify the underlying liability which the sentence deals with, i.e. income tax liabilities.

2. The sentences only make the parties jointly liable for income taxes and for indemnification, if they both signed joint income tax returns.

3. The sentences do not make the ex-wife liable for debts that she was not previously liable thereon and only address "income tax liabilities". There being no material issues of fact or law, the Court grants the Motion for Summary Judgment as related to Count I of the Counterclaim of the ex-husband.

This construction gives no effect to the third sentence "of paragraph seven (7) of the Final Judgment of Dissolution of Marriage," unless the Internal Revenue Service should obtain a judgment against one of the former spouses. The plain language of the...