Mendez v. West Flagler Family Ass'n, Inc., 73--815

• Decision Date: 13 May 1975
• Docket Number: No. 73--815,73--815
• Citation: 315 So.2d 7
• Parties: Irma MENDEZ, Appellant, v. WEST FLAGLER FAMILY ASSOCIATION, INC., a Florida Corporation, doing business in Dade County, Florida, and Seaboard Life Insurance Company of American, in insurance corporation, Appellees.
• Court: Florida District Court of Appeals

Page 7

315 So.2d 7

Irma MENDEZ, Appellant, v. WEST FLAGLER FAMILY ASSOCIATION, INC., a Florida Corporation, doing business in Dade County, Florida, and Seaboard Life Insurance Company of American, in insurance corporation, Appellees.

No. 73--815.

District Court of Appeal of Florida, Third District.

May 13, 1975.

Rehearing Denied July 22, 1975.

Alpert & Alpert, Miami, for appellant.

Heller & Kaplan and L. Richard Mattaway, Robert Spiegel, Miami, for appellees.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

PEARSON, Judge.

The appellant, Irma Mendez, filed a complaint in the circuit court claiming breach of contract and fraud in connection with the issuance of hospital insurance against the defendants West Flagler Family Association, Inc., and Seaboard Life Insurance Company of America. After proceedings in the nature of discovery, the circuit judge entered a 'summary final judgment' for the defendants on the third count of the plaintiff's second amended complaint. This judgment left pending in the trial court plaintiff's counts I and II which are based upon breach of contract. The plaintiff filed notice of appeal of this court. We treated the notice of appeal as an interlocutory appeal from a partial summary judgment. See FAR 4.2. It thereafter was made to appear by further motion to dismiss that if said order was interlocutory in nature, the appeal was not timely filed inasmuch as jurisdiction depended upon 'rendition' of the order after the denial of a petition for rehearing. We thereupon dismissed the appeal. Upon application for writ of certiorari in the Supreme Court of Florida, that court granted the writ and quashed our decision. The court held in part as follows:

'The question presented is whether an appeal may be taken to a district court of appeal from a summary final judgment of a trial court in favor of defendants dismissing a distinct and independent claim of fraud and illegality in the issuance of a policy of hospital insurance by a hospital association and an insurance company, the defendants, which claim was plead in one count of a complaint in a civil action. Two other counts of the complaint charged breach of contract under the issued policy of hospital insurance against the hospital association and the insurance company, respectively. In other words is the appeal from an interlocutory order or a final judgment dispositive of an independent cause of action at trial level?'

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'It is our view the third court sets up a distinct and separate cause...