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Fla. L. Weekly D2581aTop of Form
Fla. L. Weekly D2581aTop of Form
Appeals
— Jurisdiction — Court lacks jurisdiction over appeal from order dismissing
counterclaims where dismissed counts are intertwined with pending counterclaims
and were also compulsory counterclaims to original action
— Jurisdiction — Court lacks jurisdiction over appeal from order dismissing
counterclaims where dismissed counts are intertwined with pending counterclaims
and were also compulsory counterclaims to original action
PAUL J. POLITO, an individual,
Appellant, v. KEYBANK NATIONAL ASSOCIATION, Appellee. 4th District. Case No. 4D17-1322.
December 6, 2017. Appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Jack B. Tuter, Judge; L.T. Case No. CACE-13-010294(5).
Counsel: Robert W. Murphy, Fort Lauderdale, and Rebecca J. Covey of Rebecca J.
Covey, LLC, Fort Lauderdale, for appellant. Susan E. Trench, Alan G. Kipnis and
Steven M. Appelbaum of Arnstein & Lehr LLP, Miami, for appellee.
Appellant, v. KEYBANK NATIONAL ASSOCIATION, Appellee. 4th District. Case No. 4D17-1322.
December 6, 2017. Appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Jack B. Tuter, Judge; L.T. Case No. CACE-13-010294(5).
Counsel: Robert W. Murphy, Fort Lauderdale, and Rebecca J. Covey of Rebecca J.
Covey, LLC, Fort Lauderdale, for appellant. Susan E. Trench, Alan G. Kipnis and
Steven M. Appelbaum of Arnstein & Lehr LLP, Miami, for appellee.
(GROSS, J.) We sua sponte dismiss
this appeal of two counts of a counterclaim for lack of jurisdiction. The
dismissed counts intertwine with pending pleaded claims and are compulsory
counterclaims to the original action.
this appeal of two counts of a counterclaim for lack of jurisdiction. The
dismissed counts intertwine with pending pleaded claims and are compulsory
counterclaims to the original action.
This litigation began when appellee
KeyBank National Association sued appellant Paul Polito, seeking a deficiency
judgment of $34,932, the debt remaining after Polito’s default on a boat loan,
followed by the repossession and sale of the boat. A two-count second amended
complaint asserted claims for breach of contract and unjust enrichment,
contending that Ohio law applied to actions arising under the loan agreement.
KeyBank National Association sued appellant Paul Polito, seeking a deficiency
judgment of $34,932, the debt remaining after Polito’s default on a boat loan,
followed by the repossession and sale of the boat. A two-count second amended
complaint asserted claims for breach of contract and unjust enrichment,
contending that Ohio law applied to actions arising under the loan agreement.
Polito answered and counterclaimed
for damages, seeking class action relief for deceptive acts concerning the
repossession and sale of consumers’ boats. The counterclaim had five counts:
for damages, seeking class action relief for deceptive acts concerning the
repossession and sale of consumers’ boats. The counterclaim had five counts:
| | Claim | Basis for Claim |
| Count I | Violation of § 9-610, UCC (§ 1309.610, Ohio Revised Code) KeyBank deprived Borrower and other class members of substantial rights granted to them under the UCC, including, but not limited to, the right to obtain a reasonable notification of disposition that properly discloses their rights upon repossession. | Unlawful repossession of the boat (breach of the peace)1 |
| Count II | Violation of § 9-611, UCC (§ 1309.611, Ohio Revised Code) KeyBank failed to provide reasonable notice of disposition of collateral. | Defective notice of sale (inadequate notice) |
| Count III | Violation of § 9-612, UCC (§ 1309.612, Ohio Revised Code) KeyBank failed to provide reasonable notice of disposition of collateral. | Defective notice of sale (timeliness of notice) |
| Count IV | Equitable Relief (Common Law) KeyBank wrongfully collected and/or reported credit information to the CRAs with respect to the consumer reports of Borrower and other class members. | Unlawful collection activities and credit reporting (reporting derogatory information to consumer reporting agencies) |
| Count V | Equitable Relief (UCC) KeyBank wrongfully collected and/or reported credit information to the CRAs with respect to the consumer reports of Borrower and other class members. | Unlawful collection activities and credit reporting (reporting derogatory information to consumer reporting agencies) |
KeyBank moved for summary judgment
on counts II and III of the counterclaim, arguing that the notice of sale
comported with Ohio law. The circuit court granted KeyBank’s motion and entered
a partial final judgment in favor of KeyBank on counts II and III of the
counterclaim.
on counts II and III of the counterclaim, arguing that the notice of sale
comported with Ohio law. The circuit court granted KeyBank’s motion and entered
a partial final judgment in favor of KeyBank on counts II and III of the
counterclaim.
The jurisdictional problem with this
appeal is that the two dismissed counts are not now appealable. “An appeal from
an order dismissing a count of a complaint, where other counts against the same
parties remain, is authorized only when the dismissed count arises from a
separate and distinct transaction independent of the other pending, pleaded
claims.” Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237, 238
(Fla. 4th DCA 1995); see also Fla. R. App. P. 9.110(k). “[P]iecemeal
appeals should not be permitted where claims are legally interrelated and in
substance involve the same transaction.” Mendez v. West Flagler Family
Ass’n, Inc., 303 So. 2d 1, 5 (Fla. 1974). “Only when it is obvious that a
separate and distinct cause of action is pleaded which is not interdependent
with other pleaded claims should the appeal be permitted.” Biasetti, 654
So. 2d at 238 (internal citations and quotations omitted).
appeal is that the two dismissed counts are not now appealable. “An appeal from
an order dismissing a count of a complaint, where other counts against the same
parties remain, is authorized only when the dismissed count arises from a
separate and distinct transaction independent of the other pending, pleaded
claims.” Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237, 238
(Fla. 4th DCA 1995); see also Fla. R. App. P. 9.110(k). “[P]iecemeal
appeals should not be permitted where claims are legally interrelated and in
substance involve the same transaction.” Mendez v. West Flagler Family
Ass’n, Inc., 303 So. 2d 1, 5 (Fla. 1974). “Only when it is obvious that a
separate and distinct cause of action is pleaded which is not interdependent
with other pleaded claims should the appeal be permitted.” Biasetti, 654
So. 2d at 238 (internal citations and quotations omitted).
An
analysis of “interdependence” requires the court to look primarily to the facts
upon which the claims are based. If the claims arise out of the same incident,
the order dismissing some, but not all, of the counts will not constitute a final
appeal, even if the counts involve separate and severable legal theories.
analysis of “interdependence” requires the court to look primarily to the facts
upon which the claims are based. If the claims arise out of the same incident,
the order dismissing some, but not all, of the counts will not constitute a final
appeal, even if the counts involve separate and severable legal theories.
Id.
Here, the dismissed counts are
interdependent with the remaining causes of action in the counterclaim.
Defective notices of sale form at least a partial basis for the relief sought
in the other counts.
interdependent with the remaining causes of action in the counterclaim.
Defective notices of sale form at least a partial basis for the relief sought
in the other counts.
Also, insofar as Polito would be a
class representative on the counterclaim, counts II and III of the counterclaim
arose out of the seizure and sale of his boat, so they arose “out of the
transaction or occurrence that formed the subject matter of the plaintiff’s
claim.” Londano v. Turkey Creek, Inc., 609 So. 2d 14, 19 (Fla. 1992).
This means that the two counts were compulsory counterclaims. This court does
not have jurisdiction because an order dismissing a compulsory counterclaim is
“not appealable until a final disposition of the original cause has [been]
obtained on the merits.” 4040 Ibis Circle, LLC v. JP Morgan Chase Bank,
193 So. 3d 957, 960 (Fla. 4th DCA 2016) (quoting Johnson v. Allen, Knudsen,
DeBoest, Edwards & Rhodes, P.A., 621 So. 2d 507, 509 (Fla. 2d DCA
1993)).
class representative on the counterclaim, counts II and III of the counterclaim
arose out of the seizure and sale of his boat, so they arose “out of the
transaction or occurrence that formed the subject matter of the plaintiff’s
claim.” Londano v. Turkey Creek, Inc., 609 So. 2d 14, 19 (Fla. 1992).
This means that the two counts were compulsory counterclaims. This court does
not have jurisdiction because an order dismissing a compulsory counterclaim is
“not appealable until a final disposition of the original cause has [been]
obtained on the merits.” 4040 Ibis Circle, LLC v. JP Morgan Chase Bank,
193 So. 3d 957, 960 (Fla. 4th DCA 2016) (quoting Johnson v. Allen, Knudsen,
DeBoest, Edwards & Rhodes, P.A., 621 So. 2d 507, 509 (Fla. 2d DCA
1993)).
Dismissed for lack of jurisdiction. (MAY and KLINGENSMITH, JJ., concur.)
__________________
1Although
not explicitly mentioned within this specific count, it appears that this count
was based on the unlawful repossession of Polito’s boat, which he contends was
a breach of the peace.
not explicitly mentioned within this specific count, it appears that this count
was based on the unlawful repossession of Polito’s boat, which he contends was
a breach of the peace.
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