Agriesti v. Clevetrust Realty Investors, 381 So. 2d 753 (Fla. 4th DCA 1980). · Go Syfert
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Agriesti v. Clevetrust Realty Investors, 381 So. 2d 753 (Fla. 4th DCA 1980). Cases Citing This Book View Copy Cite
8 citation events (2 in the last 25 years) across 1 distinct court.
Strongest positive: Ibis Circle, LLC and Shlomo Rasabi v. JPMorgan Chase Bank, National Association and WAMU Insurance Services, Inc. (fladistctapp, 2016-04-27)
Top citers, strongest first. 3 distinct citers.
discussed Cited "see" Ibis Circle, LLC and Shlomo Rasabi v. JPMorgan Chase Bank, National Association and WAMU Insurance Services, Inc.
Fla. Dist. Ct. App. · 2016 · signal: accord · confidence high
The appellate court , may exercise jurisdiction where the trial court’s dismissal of a counterclaim “adjudicates a distinct and severable cause of action.” Id. at 100 ; accord Agriesti v. Clevetrust Realty Inv’rs, 381 So.2d 753, 753-54 (Fla. 4th DCA 1980).
cited Cited "see" City of New Smyrna Beach v. Innkeepers Motor Lodge, Inc.
Fla. Dist. Ct. App. · 1980 · signal: see · confidence high
See Agriesti v. Clevetrust Realty Investors, 381 So.2d 753 (Fla. 4th DCA 1980).
discussed Cited "see, e.g." Marinich v. Special Edition Custom Homes, LLC
Fla. Dist. Ct. App. · 2009 · signal: see also · confidence medium
See also Agriesti v. Clevetrust Realty Investors, 381 So.2d 753, 753-54 (Fla. 4th DCA 1980) (holding court lacked jurisdiction to hear appeal of order dismissing two counts of a multi-count counterclaim when underlying action to foreclose a mortgage and remainder of counterclaim remained pending and counterclaim sought to have mortgage declared unenforceable).
James AGRIESTI, Appellant,
v.
CLEVETRUST REALTY INVESTORS et al., Appellees.
79-742.
District Court of Appeal of Florida, Fourth District.
Apr 2, 1980.
381 So. 2d 753
Downey.
Cited by 7 opinions  |  Published

William Robert Leonard, of Coleman, Leonard & Morrison, Fort Lauderdale, for appellant.

Maurice M. Garcia of Abrams, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellees.

DOWNEY, Chief Judge.

Appellant seeks review by plenary appeal of an alleged final order dismissing Counts I and II of his counterclaim.

We perceived an apparent lack of jurisdiction and requested counsel to file supplemental briefs addressing the jurisdiction question. In their supplemental briefs both counsel suggest that the order in question is final and appealable and entreat this court not to dismiss the appeal because this case has been pending in the trial court for an interminable period. We are quite sympathetic to counsel's entreaty and would comply therewith and consider the merits of the appeal were it within our power to do so. However, we remain convinced that the order is not appealable, as the following brief description of this litigation demonstrates.

Appellees sued appellant and others to foreclose a mortgage on a large condominium complex. Appellant, as one of the defendants owning a condominium unit, filed a multi-count counterclaim asserting facts which appellant contended should make appellee's mortgage unenforceable against appellant's unit. Counts I and II of the counterclaim seek to avoid appellee's mortgage lien via constructive or resulting trust theories or a third party beneficiary theory. As appellant phrases it in his brief:

By way of explanation then, AGRIESTI has attempted, in answering the foreclosure complaint instituted against him as the party in possession, to assert a counterclaim based upon theories of constructive trust, resulting trust, third-party beneficiary law of contracts and a declaratory judgment. Each of these vehicles has been instituted in an attempt to gain, as relief for AGRIESTI, a discharge of the mortgage as to the unit for which he has paid, a warranty deed, and whatever other documents may be necessary to fully and completely vest his title of record as the successor of BARTH, the developer, and CLEVETRUST, the financial institution whose funds were placed at risk in this development.

In S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla. 1974), the Supreme Court said that:

Piecemeal appeals will not be permitted where claims are interrelated and involve[*754] the same transaction and the same parties remain in the suit. However, it may occur that a distinct and severable branch of the controversy, cause of action, may be adjudicated by order of the trial court which would be appealable. 304 So.2d at 99.

The rule precluding an appeal unless the order involved disposes of certain issues or causes in the case is relaxed:

where the judgment, order or decree adjudicates a distinct and severable cause of action, not interrelated with remaining claims pending in the trial court. 304 So.2d at 99

The issues involved in the complaint and counterclaim are clearly interrelated; they involve the same transaction; and the parties on appeal remain parties to the litigation in the trial court.

Enticing as it may be to reach the merits of this appeal we do not have jurisdiction and thus are helpless to do so. Accordingly, the appeal must be dismissed.

APPEAL DISMISSED.

ANSTEAD and MOORE, JJ., concur.