Summary
quashing a partial summary judgment that allowed execution but not reaching the merits because, " ‘under traditional rules of finality,’ the partial summary judgment was not final or appealable" (quoting E. Ave., 136 So. 3d at 661)
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Case No. 2D19-63
02-07-2020
TEAM RICHCO, LLC and Richard Baxter, Appellants, v. RAPID SECURITY SOLUTIONS, LLC, a Delaware limited liability company; Steven E. Paley, an individual; Shannon G. Logsdon, an individual; Woodside Partners, LLC, an Ohio limited liability company; and Michael J. Slomak, an individual, Appellees.
Paul Bennett Seusy of Paul Bennett Seusy, P.A., Arcadia, for Appellants. No appearance for Appellees.
Paul Bennett Seusy of Paul Bennett Seusy, P.A., Arcadia, for Appellants.
No appearance for Appellees.
LaROSE, Judge.
Team Richco, LLC, and Richard Baxter (collectively, "Buyers") appeal a partial summary judgment entered in favor of Rapid Security Solutions, LLC, Steven E. Paley, Shannon G. Logsdon, Woodside Partners, LLC, and Michael J. Slomak (collectively, "Sellers"). Buyers also request that we set aside an order striking Team Richco's pleadings. As explained below, we treat the notice of appeal as a petition for writ of certiorari. We grant the petition, in part, and quash the partial summary judgment. We dismiss the petition as it relates to the order as untimely, without further discussion. See Fla. R. App. P. 9.100(c)(1) (providing that a petition for certiorari "shall be filed within 30 days of rendition of the order to be reviewed"); Bode v. State, 909 So. 2d 537, 538 (Fla. 2d DCA 2005) ("Because the petition was not timely filed, this court has no jurisdiction to consider it.").
I. Brief Background
This case arises from the failed sale of a business. Sellers sued Buyers for breach of contract, specific performance, and fraudulent inducement. Buyers filed an answer, affirmative defenses, and a counterclaim. Sellers moved for summary judgment on all three counts of their complaint.
The trial court granted summary judgment on the breach-of-contract count. It denied summary judgment as to the remaining counts. But the judgment let execution issue on the breach-of-contract count.
II. Discussion
Buyers maintain that the language of finality in the partial summary judgment was erroneous. They also assert that the trial court erred in granting summary judgment where Sellers failed to demonstrate the absence of material facts pertaining to Buyers' affirmative defenses.
Because interrelated counts remain pending in the trial court, the partial summary judgment is not final or appealable. See E. Ave., LLC v. Insignia Bank, 136 So. 3d 659, 661 (Fla. 2d DCA 2014) ("But they are named as defendants in factually and legally interrelated counts that remain pending in the circuit court. For this reason, under traditional rules of finality the judgment at hand is not final or appealable."). Thus, we treat this appeal as a proceeding seeking a writ of certiorari. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ...."); E. Ave., 136 So. 3d at 661, 664-65 (treating appeal of nonfinal summary judgment as proceeding seeking a writ of certiorari).
Certiorari relief is proper only where the petitioner shows (1) a departure from the essential requirements of the law, (2) "resulting in material injury for the remainder of the case" (3) "that cannot be remedied on direct appeal." Paylan v. Fitzgerald, 223 So. 3d 431, 434 (Fla. 2d DCA 2017) (citing Trucap Grantor Tr. 2010-1 v. Pelt, 84 So. 3d 369, 371 (Fla. 2d DCA 2012) ).
Buyers' argument directed to the judgment's form satisfies all three prongs for certiorari relief. The partial judgment results in irreparable injury where it authorizes execution prior to the entry of a final, appealable order. See Gov't Emps. Ins. Co. v. Arreola, 231 So. 3d 508, 512 (Fla. 2d DCA 2017) ("Geico has satisfied the jurisdictional prongs in this case because the partial judgment subjects it ‘to execution at a time when it has no appellate remedy and therefore cannot protect its assets by filing a supersedeas bond.’ " (quoting E. Ave., 136 So. 3d at 665 )); Fla. Ins. Guar. Ass'n v. Murphy, 162 So. 3d 1049, 1051 (Fla. 2d DCA 2015) ("Here, the jurisdictional prongs are satisfied because while the Murphys may seek execution of the judgment, FIGA may not obtain review until the trial court renders a final order." (citing E. Ave., 136 So. 3d at 665 )). The judgment also departs from the essential requirements of law. See Integrale Invs., LLC v. Hoffman, 210 So. 3d 251, 251 (Fla. 2d DCA 2017) ("Because the order is a nonfinal, nonappealable order but authorizes execution, it departs from the essential requirements of law." (citing E. Ave., 136 So. 3d at 665 )).
We therefore quash the partial summary judgment. See Gov't Emps. Ins., 231 So. 3d at 512 ; Integrale Invs., 210 So. 3d at 251. We do not reach the merits of the judgment at this time. See Gov't Emps. Ins., 231 So. 3d at 510 ("We decline to address Geico's arguments on appeal because the partial summary judgment is a nonfinal, nonappealable order."); E. Ave., 136 So. 3d at 661 (explaining that "under traditional rules of finality," the partial summary judgment was not final or appealable).
Petition for writ of certiorari granted, in part, and dismissed, in part; judgment quashed.
NORTHCUTT and MORRIS, JJ., Concur.