43
Fla. L. Weekly D301a

Appeals
— Partial final judgment — Appellate court lacks jurisdiction to review
partial final judgment where interrelated counterclaims remain pending in trial
court

EUGENE BARDAKJY, Appellant, v.
EMPIRE INVESTMENT HOLDINGS, LLC, etc., Appellee. 3rd District. Case No.
3D17-2270. L.T. Case No. 16-5467. February 7, 2018. An Appeal from the Circuit
Court for Miami-Dade County, Barbara Areces, Judge. Counsel: Rafool, LLC, and
David R. Hazouri, for appellant. Waldman Barnett, P.L., and Glen H. Waldman and
Benjamin L. Keime, for appellee.

(Before FERNANDEZ, LOGUE and
LINDSEY, JJ.)

(PER CURIAM.) This is before us on
the motion of Appellee, Empire Investment Holdings, LLC (“Empire”), to dismiss
this appeal for lack of jurisdiction. In this appeal, Appellant, Eugene
Bardakjy (“Bardakjy”), appeals the trial court’s order entitled, Final Judgment
Against Plaintiff, Eugene Bardakjy, on His Claim for Breach of Contract,
entered in favor of Empire on Bardakjy’s complaint for breach of contract.
Empire’s counterclaims for breach of fiduciary duty and unjust enrichment
remain pending below. These counterclaims form the basis for Empire’s motion to
dismiss. Bardakjy argues in opposition to the motion to dismiss that Empire’s
counterclaims involve Bardakjy’s alleged conduct as an employee of Empire prior
to his resignation and, thus, involve two distinctly separate and independent
transactions and occurrences.

In its amended counterclaim, Empire
alleged that subsequent to Bardakjy’s resignation, it learned that Bardakjy had
committed acts of negligence and mismanagement with respect to the plan to
redesign and reengineer one of the manufacturing lines at one of the plants
(the “Manufacturing Line Conversion”) and then concealed its complete failure
from Empire. Empire allegedly discovered that the redesign and reengineering of
the Manufacturing Line Conversion was fatally flawed from inception and that
Bardakjy neither sought the consultation of others with the requisite expertise
nor allowed anyone with such expertise who desired to participate to have a
voice.

Empire claimed that Bardakjy
breached his fiduciary duty to Empire by failing to act in good faith and with
the best interests of Empire when designing and implementing the Manufacturing
Line Conversion, and by the reckless design and concealment of its failure.
Empire further claimed that Bardakjy was unjustly enriched by receiving the
severance package in light of his actions with respect to the Manufacturing
Line Conversion. Upon learning of Bardakjy’s failure to perform his duties with
respect to the Manufacturing Line Conversion, Empire rescinded the severance
package and ceased making payments to Bardakjy. Although Bardakjy’s alleged
misconduct was not discovered until his employment had terminated, it
nonetheless involves conduct pre-termination.

Issues and facts related to Empire’s
pending counterclaims, which involve conduct by Bardakjy prior to his
resignation that subsequently resulted in Empire’s rescission of the severance
package, are intertwined with the claims and defenses raised in this appeal. As
such, we conclude that the order on appeal is not a “partial final judgment”
under Florida Rule of Appellate Procedure 9.110(k) and, therefore, we dismiss
this premature appeal. See Almacenes El Globo De Quito, S.A. v.
Dalbeta L.C., 181 So. 3d 559, 561-62 (Fla. 3d DCA 2015) (internal citations
omitted) (“Rule 9.110(k) provides for appellate jurisdiction to hear a partial
final judgment only when the claims adjudicated by that order are separate and
independent from the portion of the case still to be adjudicated. If all claims
arise from the same set of facts, an order resolving fewer than all of the
counts is not appealable under Rule 9.110(k).”).

ORDERED that Empire’s Motion to
Dismiss Appeal for Lack of Jurisdiction is granted without prejudice to the parties’
rights on appeal after the trial court enters a final judgment on the pending
and interrelated counterclaims.

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