Opinion
No. 3D18-810
03-04-2020
David LIFSHULTZ, et al., Appellants, v. The 20 CONDOMINIUM ASSOCIATION, INC., et al., Appellees.
Arthur J. Morburger, for appellants. Bushell Law, P.A., and Daniel A. Bushell (Fort Lauderdale), for appellees.
Arthur J. Morburger, for appellants.
Bushell Law, P.A., and Daniel A. Bushell (Fort Lauderdale), for appellees.
Before EMAS, C.J., and SCALES and MILLER, JJ.
EMAS, C.J.
Appellants, David Lifshultz and 20 South Shore Landowners, Inc. (defendants/counter-plaintiffs below) appeal the trial court's order dismissing with prejudice their fourth amended counterclaim/third-party claim against appellees, The 20 Condominium Association, Inc. ("the Association," plaintiff/counter-defendant below) and Antonio Silva (third-party defendant below). We affirm in part and dismiss in part. Insofar as appellants seek review of the trial court's order dismissing with prejudice the counterclaim against the Association, that order is not appealable as a partial final judgment because the claims asserted against the Association in the counterclaim are either compulsory, see Florida Rule of Civil Procedure 1.170(a), or are otherwise interdependent with the pending claims asserted by the Association in its complaint. See Fla. R. App. P. 9.110(k) (providing in pertinent part: "A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.") See also Koe v. Citizens Prop. Ins. Corp., 225 So. 3d 983, 983 (Fla. 3d DCA 2017) (dismissing appeal and holding the orders were not appealable partial final judgments "because interrelated claims involving the same parties and underlying facts... remain pending below"); Herbits v. City of Miami, 197 So. 3d 575, 578 (Fla. 3d DCA 2016) (noting: "For a final order to be appealable as a ‘partial final judgment’ under Rule 9.110(k) ... that final order must be entirely independent from other pleaded claims"); Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So. 3d 559, 562 (Fla. 3d DCA 2015) (holding trial court's order purportedly adjudicating appellant's claim was not appealable under rule 9.110(k), because appellant's claim arose from, and was intertwined with, the same set of facts as appellee's counterclaim and third-party claim, which remained pending in the trial court); GEICO Gen. Ins. Co. v. Pruitt, 122 So. 3d 484, 487 (Fla. 3d DCA 2013) (dismissing appeal because "the partial summary judgment orders are non-final and non-appealable as related claims remain pending between the parties").
Rule 1.170(a) provides in pertinent part:
Compulsory Counterclaims. A pleading must state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.
While this court has an independent duty to determine its own jurisdiction, Almacenes El Globo De Quito, S.A., v. Dalbeta L.C., 181 So. 3d 559 (Fla. 3d DCA 2015), it is worth noting that in the proceedings below, appellants maintained that the claims asserted in their counterclaim were compulsory. Only after appellees filed their motion to dismiss this appeal for lack of jurisdiction did appellants take the position that the claims asserted in their fourth amended counterclaim are neither compulsory nor interdependent with the claims asserted in appellees' complaint.
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Rule 9.110(k) is also determinative of our jurisdiction to review the remainder of the trial court's order, which dismissed with prejudice appellants' third-party claims against Antonio Silva. Silva was not a party to the original complaint, but was brought into the case as a third-party defendant when appellants filed their combined counterclaim/third-party claim. As a result of the trial court's dismissal order, Silva is no longer a party to the action below. Because this "partial final judgment totally disposes of an entire case as to" Silva, it is an appealable partial final judgment pursuant to rule 9.110(k). See Phillips v. Ostrer, 442 So. 2d 1084, 1084 (Fla. 3d DCA 1983) (holding "[t]here is no doubt that an order or judgment... which disposes of a cause with respect to a single party is final and appealable even if the action remains pending against others.") Having reviewed the record, we conclude that the trial court properly dismissed the fourth amended counterclaim/third-party claim against Silva. In doing so, we note the trial court entered a comprehensive order detailing its findings and concluding that "permitting yet another amendment at this juncture would be both prejudicial and futile." We find no abuse of discretion in the trial court's determination to deny appellants yet another opportunity to amend its fourth amended counterclaim/third-party claim against Silva.
The general rule is that "leave to amend a Complaint should not be denied unless the privilege is abused, the opposing party will be prejudiced, or amendment would be futile." Toscano Condo. Ass'n, Inc. v. DDA Eng'r, P.A., 274 So. 3d 487, 490 (Fla. 3d DCA 2019) (quotation omitted).
And as this Court has explained:
It is settled that as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice. While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion . There is simply a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims.
Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992) (emphasis added) (quotations omitted).
We affirm that portion of the trial court's order dismissing with prejudice the counterclaim/third-party claim against Antonio Silva. We dismiss the remainder of the appeal for lack of jurisdiction.
Affirmed in part and dismissed in part.