Opinion
Case No. 6D23-1186
05-19-2023
Louis P. SHASSIAN, Appellant, v. RIVERWALK PARK, LLC, Alan H. Ginsburg, Wayne Steidle, and Mark D. Lass, Appellees.
John H. Pelzer, of Greenspoon Marder, LLP, Fort Lauderdale, for Appellant. Douglas C. Spears and Benjamin C. Iseman, of Maynard Cooper & Gale, Winter Park, for Appellees, Wayne Steidle and Mark D. Lass. No appearance for Appellees, Alan H. Ginsburg and Riverwalk Park, LLC.
John H. Pelzer, of Greenspoon Marder, LLP, Fort Lauderdale, for Appellant.
Douglas C. Spears and Benjamin C. Iseman, of Maynard Cooper & Gale, Winter Park, for Appellees, Wayne Steidle and Mark D. Lass.
No appearance for Appellees, Alan H. Ginsburg and Riverwalk Park, LLC.
TRAVER, J.
Louis P. Shassian appeals the trial court's summary judgment in favor of Wayne Steidle and Mark D. Lass ("Appellees"). We lack jurisdiction over this non-final order, and we therefore dismiss this appeal.
This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023.
This case involves a business dispute between investors in a large piece of property in Tennessee. Shassian was one of several initial investors in this venture, and Riverwalk Park, LLC ("Riverwalk") is the entity they formed to own the property. Shassian approached Appellees shortly after Riverwalk's formation, seeking investment capital necessary to finalize the acquisition. Appellees each contributed $1 million. What they received in exchange comprises an aspect of their eventual dispute.
In short, Appellees believe that their contributions were loans that also entitled them to a 25% interest in Riverwalk. Shassian agrees that Appellees received 25% of Riverwalk, but insists that they each paid $500,000 for this interest. He further contends that by procuring Appellees’ capital for Riverwalk's benefit, he is entitled to a $1 million loan credit from the company. Riverwalk's records showed different amounts owed to Shassian and Appellees over the years, and Riverwalk issued promissory notes for different amounts owed to these investors. After several years during which Shassian received the $1 million loan credit, the Riverwalk members voted to divest Shassian of the credit and reapportion it to Appellees.
Shassian ultimately sued Appellees, Riverwalk, and Alan H. Ginsburg, Riverwalk's managing member, in a six-count amended complaint. Important here, count one was a claim for breach of a promissory note Riverwalk had issued to Shassian that reflected the $1 million loan credit. Count four was a declaratory judgment claim against Appellees, in which Shassian professed doubt about his rights to this credit. He asked the trial court to declare that Riverwalk owed him this money, and that the action the company had taken to divest him of this loan credit was null and void.
In response, Riverwalk and Ginsburg counterclaimed against Shassian. First, they asked the trial court to interplead the disputed money. Second, they also asked the trial court for declaratory relief and included Appellees in this request. Riverwalk and Ginsburg professed neutrality as to whom should have received the disputed funds, but voiced concern about double liability from both Shassian and Appellees. Appellees also counterclaimed against Shassian. They accused him of defrauding them in connection with their investment.
In March 2019, the trial court entered summary judgment in Appellees’ favor on Shassian's declaratory judgment claim only. Shassian timely appealed, but later dismissed his appeal when the Fifth District raised a jurisdictional question.
In August 2019, Appellees voluntarily dismissed their fraud counterclaim against Shassian without prejudice. In December 2021—over two years later—Riverwalk and Ginsburg voluntarily dismissed their declaratory judgment claim against Shassian and Appellees without prejudice.
In January 2022, Shassian filed this appeal in the Fifth District, again appealing the trial court's March 2019 summary judgment. He contended that the second notice of voluntary dismissal created a final, appealable judgment because it "eliminated [Appellees] as parties to the trial court action." The Fifth District directed Shassian to show cause why this appeal should not be dismissed. It observed that there was "a pending interrelated [interpleader] counterclaim" against Appellees, and that the order on appeal "did not appear to be a partial final judgment totally disposing of the entire case" as to Appellees. Shassian responded that Riverwalk and Ginsburg had voluntarily dismissed their interpleader counterclaim against him and Appellees in February 2022. Citing Florida Rule of Appellate Procedure 9.110(l ), Shassian insisted that his "premature appeal is now effective to vest jurisdiction in this court." Meanwhile, Shassian successfully moved to stay the parties’ remaining claims below, contending that a ruling on this appeal would affect those matters.
Appellees did not respond to the Fifth District's order to show cause, and they do not contest our jurisdiction in their answer brief. We have an independent duty, however, to determine our jurisdiction. See Medeiros v. Firth , 200 So. 3d 121, 122 (Fla. 5th DCA 2016) (citing Almacenes El Globo De Quito, S.A. v. Dalbeta L.C. , 181 So. 3d 559, 560 (Fla. 3d DCA 2015) ). We are unbound by the parties’ characterization of a lower court's order. See id . Parties also cannot stipulate to our jurisdiction when none exists. See Cunningham v. Standard Guar. Ins. , 630 So. 2d 179, 181 (Fla. 1994).
Typically, we lack jurisdiction over an appeal of a final order that is not filed within thirty days of the rendition of the lower court order at issue. See Fla. R. App. P. 9.110(b). "Rendition of an order" means that "a signed, written order is filed with the clerk of the lower tribunal." See Fla. R. App. P. 9.020(h).
Even though Shassian filed his notice of appeal nearly three years after the trial court entered summary judgment for Appellees, he contends we have jurisdiction for two interrelated reasons. First, he argues that even though the trial court's summary judgment only disposed of one of nine pending claims, it resolved all issues concerning Appellees. He contends, therefore, that we can review it as a partial final judgment. See Fla. R. App. P. 9.110(k) ("If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.").
Standing alone, this is an indefensible position because three pending counterclaims involving Appellees still existed when the trial court entered summary judgment on Shassian's declaratory judgment claim. The summary judgment order thus did not "totally dispose" of Appellees as parties to the action. Apparently recognizing this issue, Shassian voluntarily dismissed his first appeal and subsequently procured notices of voluntary dismissal without prejudice of two of the counterclaims. Riverwalk and Ginsburg did not dismiss their interpleader action without prejudice until after Shassian filed this second appeal.
Regardless, and second, Shassian contends these three without prejudice dismissals vested us with jurisdiction over this appeal, which he conceded was "premature." See Fla. R. App. P. 9.110(l ). Rule 9.110(l ), subject to a tolling exception that does not apply here, provides that if a notice of appeal is filed before rendition of a final order, it is subject to dismissal as premature. "However, the lower tribunal retains jurisdiction to render a final order, and if a final order is rendered before dismissal of the premature appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order." Fla. R. App. P. 9.110(l ).
This is not what happened here. The trial court rendered one non-final order in this case in March 2019. It did not render any additional orders, and the parties’ notices of voluntary dismissal without prejudice filed intermittently over the following three years were not orders at all. See Fla. R. App. P. 9.020(f) (defining "order" as "decision, order, judgment, decree, or rule of a lower tribunal " ) (emphasis added). For these reasons, we do not have jurisdiction over this appeal, and we therefore dismiss it.
DISMISSED.
COHEN and WOZNIAK, JJ., concur.