National Lake Developments, Inc. v. Lake Tippecanoe Owners Ass'n, Inc., 80-1640
| Decision Date | 20 March 1981 |
| Docket Number | No. 80-1640,80-1640 |
| Citation | 395 So.2d 592 |
| Parties | NATIONAL LAKE DEVELOPMENTS, INC. and Harry Macksey, Appellants, v. LAKE TIPPECANOE OWNERS ASSOCIATION, INC., Appellee. |
| Court | Florida District Court of Appeals |
Daryl J. Brown, of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for appellants.
Ezra J. Regen, Sarasota, and Joseph S. Paglino, Miami, for appellee.
Lake Tippecanoe Owners Association, Inc., filed a class action on behalf of the unit owners of Lake Tippecanoe Condominiums against National Lake Developments, Inc., and Harry Macksey seeking cancellation of a ninety-nine year recreation lease and compensatory and punitive damages. The defendants filed an answer to the complaint which contained twenty affirmative defenses. The sixth affirmative defense was that Lake Tippecanoe had no standing to bring the suit on behalf of those unit owners who were not original purchasers from National Lake Developments, Inc.
Lake Tippecanoe filed a motion to strike the affirmative defenses. The court subsequently entered an order striking thirteen of the affirmative defenses, including the sixth defense. The defendants then pursued an appeal in this court, and their brief attacked the trial court's order with respect to all thirteen stricken defenses. However, on motion of the association, this court dismissed the appeal except as it related to the sixth defense on the ground that the striking of the other affirmative defenses did not provide a basis for an appeal. We must now determine whether we have jurisdiction to consider the order as it concerned the sixth defense.
The order appealed from is a nonfinal order. Thus, we have jurisdiction to consider it only if it is in one of the categories of nonfinal orders listed in Florida Rule of Appellate Procedure 9.130. A recent Fourth District Court of Appeal case, Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028 (Fla. 4th DCA 1980), holds that it is. But see American Heritage Institutional Securities, Inc. v. Price, 379 So.2d 420 (Fla. 5th DCA 1980). In Kohl, the defendants sought review of pretrial orders holding that a condominium association and owners of a condominium unit had standing to maintain a class action. The district court of appeal ruled that the orders were reviewable under rule 9.130(a)(3)(C)(i) because they determined the trial court's jurisdiction over the person, namely, the members of the class.
We are not inclined to follow the conclusion reached in Kohl. What the defendants were seeking here was a determination of whether the association could represent those unit owners who were not in privity with ...
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