North Indialantic Homeowners Ass'n, Inc. v. Bogue, 80-62
| Decision Date | 08 October 1980 |
| Docket Number | No. 80-62,80-62 |
| Parties | NORTH INDIALANTIC HOMEOWNERS ASSOCIATION, INC., a Florida Corporation, Hoyland M. Simison, and Barbara Bednar, Appellants, v. Charles B. BOGUE, Alfred Seegers and Mary Seegers, his wife, Frank W. Griffithand Stanford Wells Griffith, Appellees. |
| Court | Florida District Court of Appeals |
Appellant's amended complaint consisted of two counts. The first count alleged that a six foot walkway extending from State Road A1A to the Atlantic Ocean beach had been dedicated to public use on the plat where it is shown, and that the dedication had been accepted and not revoked or abandoned. Count II, relying on the same basic facts, alleges that even if the dedication of the walkway was not accomplished, plaintiffs and other property owners in the subject subdivision have continuously and without interruption used the walkway for more than 20 years predicated on their belief that they had a legal right to use said walkway under the terms of the dedication.
On motion, the trial court dismissed with prejudice Count I and those portions of Count II based on theory of dedication and plaintiff appealed that order. Appellee moves to dismiss the appeal on the ground that the order appealed from is non-final and is not within the category of appealable non-final orders described in Rule 9.130(a) Florida Rules of Appellate Procedure. Appellant agrees that the instant order cannot be appealed as a non-final order, but contends that it is a final order and appealable as such.
Piecemeal appeals are not permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit. S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla. 1974). An order dismissing one of several counts all arising out of the same factual circumstances is not an appealable final order. Kingsland v. National Advertising Company, 384 So.2d 701 (Fla. 5th DCA 1980). The only exception to this rule is found where the count dismissed constitutes a separate and distinct cause of action which is not interdependent with other pleaded claims. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla. 1974).
Although the count dismissed here is based on a different legal theory than is the count which remains, it...
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