Taussig v. Ins. Co. of North America

Decision Date04 October 1974
Docket NumberNo. 74--135,74--135
Citation301 So.2d 21
PartiesRalph J. TAUSSIG, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, a corporation, Appellee.
CourtFlorida District Court of Appeals

GRIMES, Judge.

Appellant, Ralph J. Taussig (Taussig), was the plaintiff below in a suit against appellee, Insurance Company of North America (INA). In his complaint Taussig related the following facts with reference to a prior lawsuit:

(a) The Seminole Bank of Tampa filed suit in Federal District Court for the Middle District of Florida against INA on a banker's blanket fidelity bond alleging that the bank's prior $50,000 loan to Saler Corp. and its president had been predicated upon forged documents.

(b) INA filed a third-party complaint against Taussig, whose signature appears on the promissory note to the bank.

(c) The court ultimately dismissed the third-party complaint against Taussig, a resident of Pennsylvania, for lack of jurisdiction.

(d) The bank's suit against INA was thereafter dismissed as a result of INA paying the bank's claim.

Taussig alleged that inherent in INA's third-party complaint and other pleadings was the assertion that he had conspired to swindle the bank out of $50,000. Taussig contends that his alleged signature which appeared on the promissory note was forged, that the allegations of the third-party complaint were false and that INA knew or should have known them to be false. He claimed damages against INA on the theory of malicious prosecution. INA denied Taussig's allegations excepting those which related to the pleadings filed in the prior action.

INA alleged that it now was the owner of the note by assignment from the bank and counterclaimed against Taussig for payment by reason of his signature as endorser on the note. The court below entered an order dismissing Taussig's complaint with prejudice. Taussig appealed this order. INA has now moved to dismiss the appeal on the ground that since the counterclaim is pending below, the order from which the appeal is taken is not a final order. 1

The question of whether an appeal can be taken from an order dismissing a claim when a counterclaim remains pending in the same suit, or vice versa, has plagued Florida courts for many years. The applicable decisions are in disarray. The Third 2 and Fourth 3 Districts have held that an order which does not finally dispose of both the claim and counterclaim is not a final order from which an appeal can be taken. Our court appears to have gone in both directions. In Potts v. Hayden 4 and McLean v. Plant Fruit Co. 5 we took the same position as the Third and Fourth Districts. On the other hand, in Neil v. Ellis, 6 and Duncan v. Pullum, 7 we held that an appeal could be taken from an order dismissing a counterclaim even though the original claim remained pending in the court below. The Fourth District Court of Appeal in S.L.T. Warehouse Co., Supra, pointed out the inconsistency in our rulings. Unless we make a definitive ruling, we may reasonably expect continued litigation over the point, because, just as in the instant case, no appellant can afford to run the risk of not appealing the questioned order for fear we might later hold that it was final.

The complexity of this and related problems in the federal courts precipitated the adoption of Federal Rule 54(b). 8 Inherent in the adoption of the rule were the competing policy considerations of the inconvenience and cost of a piecemeal review on one hand and the danger of denying justice by delay on the other. 9 Under the current Rule 54(b), an order such as the one in the case at bar would only be final and subject to appeal if the trial court expressly direct ed this to be so. While there are now occasional attacks upon the exercise of the Federal District Judge's discretion in designating such an order as final, there is no longer any confusion over whether an appeal is unauthorized. 10

In the absence of a controlling Florida rule, the Third and Fourth Districts appear to be following the practice of the federal courts prior to the adoption of Rule 54(b); namely, that all claims and counterclaims in a suit constitute a single judicial unit and that no appeal can be taken until all of these claims are adjudicated. 11 With all due respect, we are reluctant to follow this rule because we perceive the desirability of the speedy resolution of totally separable claims. We believe that a rule predicated upon the distinction between a compulsory and a permissive counterclaim as defined by Rule 1.170(a) and (b), FRCP, might profitably be adopted. 12 If the counterclaim were compulsory, no appeal could be taken until the disposition of both the claim and the counterclaim. If the counterclaim were permissive, an appeal could be taken from the dismissal of either the claim or the counterclaim even though the other remained pending. Therefore, insofar as our court is concerned, absent a controlling decision of the supreme court to the contrary or a rule change, we shall hereafter follow this procedure.

We recognize that this will not solve all of the problems in some cases the question of whether the counterclaim is compulsory or permissible is not clear. Yet, there are precedents for this type of determination and the same precedents can be used in deciding whether an order is final for purposes of appeal. Such a rule would also appear to strike a proper balance between the need for the speedy determination of unrelated matters and the cost and vexation of piecemeal review.

While the opposing claims in the instant case are such as to put the rule to a severe test in its very first application, we are inclined to...

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19 cases
  • Del Castillo v. Ralor Pharmacy, Inc., 86-1023
    • United States
    • Court of Appeal of Florida (US)
    • 15 Septiembre 1987
    ...one, the order dismissing it was merely interlocutory and was not then subject to appeal. 13 See Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974); Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 179 So.2d 414 (Fla. 3d DCA 1965). Instead, like all non-final or......
  • Lewis v. Lewis, Record No. 1807-04-2 (VA 5/10/2005), Record No. 1807-04-2.
    • United States
    • Supreme Court of Virginia
    • 10 Mayo 2005
    ...I would hold the trial court's ruling on that challenge is not an appealable final judgment. Cf. Taussig v. Ins. Co. of North America, 301 So. 2d 21, 22-23 (Fla. Ct. App. 1974) (holding that where counterclaim is compulsory rather than permissive, no appeal may be taken from dismissal of co......
  • Harris v. P.S. Mortg. and Inv. Corp.
    • United States
    • Court of Appeal of Florida (US)
    • 16 Enero 1990
    ...Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); Saul v. Basse, 399 So.2d 130, 131 (Fla. 2d DCA 1981); Taussig v. Insurance Co. of North America, 301 So.2d 21, 22 (Fla. 2d DCA 1974); Bumby & Stimpson, Inc. v. Peninsula Util. Corp., 179 So.2d 414, 415-16 (Fla. 3d DCA 1965); see also Dunca......
  • Dixie Nat. Bank of Dade County v. Employers Commercial Union Ins. Co. of America, 65118
    • United States
    • United States State Supreme Court of Florida
    • 7 Febrero 1985
    ...(Fla. 4th DCA 1971); Dispatch Services, Inc. v. Airport Bank of Miami, 266 So.2d 127 (Fla. 3d DCA 1972); Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974); Indiana Insurance Company v. Collins, 359 So.2d 916 (Fla. 3d DCA 1978); Ranger Insurance Company v. Travel......
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