Marvella Associates, Inc. By and Through Johnson v. Carney, 87-120

• Decision Date: 18 September 1987
• Docket Number: No. 87-120,87-120
• Parties: 12 Fla. L. Weekly 2284 MARVELLA ASSOCIATES, INC., a dissolved Florida corporation, By and Through its Receiver, Franklyn A. JOHNSON, Jr., and Bonita Springs Golf Course, Ltd., an Illinois Limited Partnership, Appellants, v. Eleanor D. CARNEY, as Personal Representative of the Estate of Lee Carney, Sr., Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 1111

512 So.2d 1111

12 Fla. L. Weekly 2284

MARVELLA ASSOCIATES, INC., a dissolved Florida corporation, By and Through its Receiver, Franklyn A. JOHNSON, Jr., and Bonita Springs Golf Course, Ltd., an Illinois Limited Partnership, Appellants, v. Eleanor D. CARNEY, as Personal Representative of the Estate of Lee Carney, Sr., Deceased, Appellee.

No. 87-120.

District Court of Appeal of Florida,

Second District.

Sept. 18, 1987.

Franklyn A. Johnson, Jr. of Smoot, Adams, Corbin, Johnson & Green, P.A., Fort Myers, for Marvella Associates, Inc.; Robert L. Donald of Pavese, Garner, Haverfield, Dalton, Harrison & Jensen, Lehigh Acres, for Bonita Springs Golf Course, Ltd.

Mitchell D. Aronson, Miami, for appellee.

PER CURIAM.

The appellant, Marvella Associates, Inc., and the joinder appellant, Bonita Springs Golf Course, Ltd., filed a joint motion to consolidate this appeal, Appeal No. 87-120, with the appeal in Marvella Associates, Inc. v. Eleanor D. Carney, as personal representative of the Estate of Lee Carney, deceased, Appeal No. 87-1446.

The appeal in No. 87-120 is taken from a trial court order that denied appellant's motion for leave to file a reply to affirmative defenses and from an order that granted appellee's motion for judgment on the pleadings on appellant's cross-claim.

The appellee, Eleanor D. Carney, responds that the motion to consolidate the two cases should be denied. She submits that the trial court did not have authority to enter the orders appealed in Appeal No. 87-120 because the appellant had earlier filed a notice of voluntary dismissal. The appellant and joinder appellant agree, as do we. See Ambory v. Ambory, 442 So.2d 1087 (Fla. 2d DCA 1983).

Having previously denied the motion to consolidate, we now reverse, on the authority of Ambory, the trial court order denying the motion of Marvella Associates, Inc. for leave to file a reply to the affirmative defenses and the order granting the motion of Eleanor D. Carney, the widow and personal representative of the Estate of Lee Carney, Sr., for judgment on the pleadings on the cross-claim of Marvella Associates, Inc.

Reversed.

SCHEB, A.C.J., and RYDER and HALL, JJ., concur.