Lemon v. Groninger

• Decision Date: 03 April 1998
• Docket Number: No. 98-289,98-289
• Citation: 708 So.2d 1025
• Parties: 23 Fla. L. Weekly D870 Chester E. LEMON, et al., Appellants, v. Keith L. GRONINGER, etc., Appellee.
• Court: Florida District Court of Appeals

Page 1025

708 So.2d 1025

23 Fla. L. Weekly D870

Chester E. LEMON, et al., Appellants, v. Keith L. GRONINGER, etc., Appellee.

No. 98-289.

District Court of Appeal of Florida Fifth District.

April 3, 1998.

David F. Tegeler of Mateer & Harbert, P.A., Orlando, for Appellants.

No Appearance for Appellee.

W. SHARP, Judge.

We issued, sua sponte, an order to show cause as to why this appeal should not be dismissed because the orders appealed from were nonfinal orders. Appellants replied, claiming the orders were final orders under Florida Rules of Appellate Procedure 9.030(b)(1)(A) and 9.110(k). We disagree and dismiss.

The Lemons, appellants, hired Groninger to build a custom home for them at a purchase price of $1.2 million. Groninger is a builder doing business as a corporation. A dispute arose between the parties, which resulted in each party suing the other. During the lawsuit, Groninger brought a motion to determine the proper party. i.e., that the corporation was the general contractor and not Groninger individually. The trial court granted this motion and issued a partial summary judgment order on December 27, 1997. The trial court issued a second order on January 5, 1998, ¹ in which the court stated:

It shall be the ruling of these consolidated cases numbered ... that the General Contractor, for all purposes in this litigation, was SOUTH-GRONINGER HOMES, INC. a/k/a K. GRONINGER HOMES, INC., and NOT KEITH GRONINGER, an individual.

The lower court's ruling removes Groninger, in his individual capacity, from any and all counts brought against the general contractor, because it determines that the corporate entity is the general contractor, and not Groninger, individually.

Under these facts, the appeal cannot lie under either rule 9.030(b)(1)(A) or 9.110(k). Rule 9.030(b)(1)(A) merely authorizes appeals from final orders; rule 9.110(k) authorizes appeals from partial summary judgments under certain circumstances. That rule provides:

(k) Review of Partial Final Judgments. Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition. (emphasis added)

See also Dustin v. Latzko, 155 Fla. 824, 21 So.2d 904 (1945); Let's Help Florida v. DHS Films, Inc., 392 So.2d 915 (Fla. 3d DCA 1980); Pena v. Tampa Federal Savings and Loan Ass'n, 363 So.2d 815 (Fla. 2d DCA 1978).

But piecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction. Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974). Only where a separate and distinct cause of action is pleaded which is not interdependent with the other pleaded claims, should it be appealable if dismissed with finality at the trial level. Mendez; Patterer v. Builders Supply House, Inc., 634 So.2d 796 (Fla. 3d DCA 1994); Clermont Builders Supply, Inc. v. General Construction & Design, Inc., 423 So.2d 518 (Fla. 5th DCA 1982). As noted in Altair Maintenance Services, Inc. v. GBS Excavating, Inc., 655 So.2d 1281 (Fla. 4th DCA 1995), an appeal is premature where an order deals with the same transaction, and the parties are involved in counts which are undisposed. The test to determine whether counts of a multicount complaint are interrelated, so as to preclude a piecemeal appeal, is whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in separate counts. Altair Maintenance.

First it must be noted that Groninger has not been entirely eliminated from...