Abbey Adams Logo

Defending Liability, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Are Available to Practice In Illinois
  • Practices
  • Blog
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Robert P. Byelick
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Elisabeth K. Eubanks
  • Links
  • Contact Us

July 22, 2016 by Tom

Appeals — Order dismissing claims of age discrimination and disability discrimination is not appealable where claim of wrongful termination under Florida Workers’ Compensation law arising out of same transaction remains pending

41 Fla. L. Weekly D1618c

Appeals — Order dismissing claims of age discrimination and disability discrimination is not appealable where claim of wrongful termination under Florida Workers’ Compensation law arising out of same transaction remains pending — Order not reviewable by certiorari where there is no showing of irreparable harm
 
MARIA ROBLES, Appellant, vs. BAPTIST HEALTH SOUTH FLORIDA, INC., Appellee. 3rd District. Case No. 3D16-404. L.T. Case No. 15-26943. Opinion filed July 13, 2016. An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge. Counsel: Saenz & Anderson, PLLC and R. Martin Saenz, for appellant. Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff, Teresa Ragatz, and Christopher M. Yannuzzi, for appellee.

 

(Before ROTHENBERG, LAGOA, and SALTER, JJ.)

 

(LAGOA, J.) Appellant, Maria Robles (“Robles”), seeks review of an order granting a motion to dismiss two counts of her three-count complaint. Appellee, Baptist Health South Florida, Inc. (“Baptist”), moves to dismiss this appeal for lack of jurisdiction pursuant to Florida Rule of Appellate Procedure 9.300. Because both the dismissed claims and the remaining claim against Baptist involve the same parties and arise out of the same transaction, we conclude that Robles’s dismissed claims are interrelated with the additional claim that remains pending. Accordingly, we grant Baptist’s motion to dismiss. We decline to treat Robles’s notice of appeal as a petition for writ of certiorari, as Robles has the opportunity to obtain adequate relief on plenary appeal.

 

I. FACTUAL & PROCEDURAL HISTORY

 

In her three-count complaint, Robles asserts that Baptist employed her from September 2007 through October 2014 as a food service worker, and that on May 1, 2014, she slipped and fell while working. Baptist did not report the incident to its worker’s compensation carrier until September 2, 2014. On September 23, 2014, Baptist accused Robles of incorrectly charging a customer and subsequently terminated her employment on October 7, 2014. Robles alleges that “[t]his action arises out of [her] employment relationship with [Baptist],” and that she seeks redress for the termination of her employment.

 

Baptist filed a motion to dismiss Count I, a claim of age discrimination under the Florida Civil Rights Act (“FCRA”), and Count II, a claim of disability discrimination under the FCRA. Baptist did not make any argument with respect to Count III, a claim of wrongful termination under section 440.205, Florida Statutes (2014), otherwise known as Florida’s Workers’ Compensation law. On January 21, 2016, the trial court granted Baptist’s motion to dismiss Counts I and II for lack of jurisdiction. This appeal ensued.

 

II. ANALYSIS

 

Baptist argues that Robles’s appeal should be dismissed as premature. The test for dismissal “is whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in the separate counts.” Altair Maint. Servs., Inc. v. GBS Excavating, Inc., 655 So. 2d 1281, 1282 (Fla. 4th DCA 1995). Thus, “[i]f 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.” Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237, 238 (Fla. 4th DCA 1995).

 

Dismissed Counts I and II and the remaining Count III involve the same parties, Baptist and Robles, and we find that all three counts arise out of the same transaction — the termination of Robles’s previous employment relationship with Baptist. Although Counts I and II are based on different legal theories and forms of relief than Count III, each is based on the same factual background and seek the same end result. Because the claims are interrelated and Count III remains pending dismissal of the appeal is proper as the order is not a final, appealable order. See Kidwell v. Gen. Motors Corp., 975 So. 2d 503, 504 (Fla. 2d DCA 2007) (dismissing appeal of “a nonfinal, nonappealable order because the dismissed claims are interrelated with additional claims that remain pending”); Mass. Life Ins. Co. v. Crapo, 918 So. 2d 393, 394 (Fla. 1st DCA 2006) (dismissing appeal as premature where “remaining claims overlap and are interrelated with the claim disposed of by the order on appeal”); Gassner v. Caduceus Self Ins. Fund, Inc., 532 So. 2d 1133, 1133 (Fla. 4th DCA 1988) (dismissing appeal where certain counts were dismissed on exhaustion of administrative remedies grounds while other “legally interrelated” counts involving “the same transaction and parties” remained pending).

 

Finally, we decline Robles’s request to treat the notice of appeal as a petition for certiorari. In order for certiorari to lie, a non-final order for which no appeal is provided by Rule 9.130 “must depart from the essential requirements of law and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.” Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987). The last element, often referred to as “irreparable harm,” is jurisdictional, and must be analyzed before this Court can consider the first element. Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011). If a petition fails to make a threshold showing of irreparable harm, a petitioner is not entitled to certiorari review. Nucci v. Target Corp., 162 So. 3d 146, 151 (Fla. 4th DCA 2015) (citing Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996)).

 

The only argument Robles makes as to the existence of irreparable harm is that if the trial court’s ruling “is not rectified, it will result in other parties relying on that Order (for perhaps years) as authority to dismiss otherwise good complaints” and that this is “a waste of judicial resources.” This is not an assertion sufficient to prove that no appeal or direct method of reviewing the proceeding exists. Once a final judgment is entered, Robles is at liberty to appeal the trial court’s grant of Baptist’s motion to dismiss Counts I and II. As such, Robles cannot show that the trial court’s order resulted in a material injury for the remainder of the case that cannot be corrected on post-judgment appeal.

 

DISMISSED.
* * *

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Insurance — Automobile — Insurer who filed a claim under her automobile insurance policy after her vehicle was damaged in an accident sued insurer claiming breach of policy after insured declared the vehicle a total loss and paid her what it deemed the actual cash value of vehicle — Breach of contract — Insurer was entitled to summary judgment on claim that insurer breached the policy by using an illegal methodology to calculate actual cash value — District court did not err in ruling insurer’s methodology for calculating actual cash value complied with Florida law — As matter of first impression, Section 626.9743(5), Florida Statutes, which provides that, in calculating “actual cash value” of insured’s vehicle based on actual cost to purchase comparable motor vehicle “derived from … two or more comparable motor vehicles available [in local market area] within the preceding 90 days,” did not require that “actual cash value” equal actual cost to purchase comparable vehicle — Insurer’s use of the Uniform Condition Adjustment, advertised prices of comparable motor vehicles, and the Certified Collateral Corporation ONE Market Valuation system to calculate the actual cash value of insured’s vehicle complied with Florida statute — Statute did not require that insurer use “retail cost as determined from generally recognized motor vehicle industry source” if it utilized one of other two statutory alternative methods for determining cost to purchase comparable motor vehicle — Insurer was entitled to summary judgment on claim that it breached the policy by failing to pay, as part of vehicle’s actual cash value, dealer fees incurred in purchasing replacement vehicle — Insurer was not required to pay insured’s out-of-pocket dealer fees — Under Florida and Eleventh Circuit law, “actual cash value” in an insurance policy means replacement cost less depreciation, and replacement cost includes dealer fees if the policyholder is reasonably likely to need to incur dealer fees — Insured failed to satisfy the standard for inclusion of dealer fees in replacement cost where insured showed a reasonable likelihood that she would incur dealer fees if she chose to purchase her replacement vehicle from a dealer and that a policyholder is reasonably likely to purchase a replacement vehicle from a dealer, but failed to show that a policyholder is reasonably likely to need to purchase a replacement vehicle from a dealer
  • Torts — Punitive damages — Amendment of complaint — Action alleging that vibration from defendant’s installation of sheet piles during construction on its parcel caused damage to plaintiff’s building — Trial court erred in granting plaintiff’s motion to amend its complaint to assert a claim for punitive damages based on allegation of gross negligence where plaintiff did not make required evidentiary showing to support such a claim — Report produced by third-party contractor warning defendant against the use of large vibratory compaction equipment in construction project, when read together with contractor’s deposition testimony, offered no evidentiary support for plaintiff’s claim that contractor warned defendant against using vibratory equipment in installation of sheet piles — Plaintiff’s expert’s affidavit, which drew illogical conclusions from contractor’s report, offered no support for gross negligence claim
  • Torts — Premises liability — Malls — Dangerous condition — Landscaping features — Vicarious liability — Action against operator of mall arising from injuries plaintiff suffered after stepping into a hole or depression in a raised landscape area which separated mall’s parking lot from the sidewalk that led to mall’s entrance — No error in entering summary judgment in favor of defendant because, as a matter of law, the landscaped area was not a dangerous condition — Evidence that a few people had walked across the landscaped area to get to the sidewalk was not sufficient to create a duty where there was no evidence that the grass bed had become a well-trampled footpath or that the grass bed has been in continuous and obvious use as a pedestrian shortcut such that defendant was put on constructive notice of the condition — Defendant cannot be held vicariously liable for condition created by landscapers where landscapers were not found liable
  • Torts — Automobile accident — Permanent injury — Causation — Trial court improperly directed verdict on causation given conflicting evidence which would have permitted reasonable jury to conclude that plaintiff had a pre-existing back injury caused by weight training or prior participation in competitive crew rowing
  • Insurance — Homeowners — Coverage — Vandalism — Trial court erred by denying insurer’s motion for directed verdict where policy limited coverage to insured’s “residence premises,” and insured did not “reside” at the property at the time of loss — Fact that insured was no longer leasing the property and was intending to move back when property was vandalized does not alter analysis

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2023 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Employment Claims and Appeals Since 1982