Court: District Court of Appeal of Florida; January 17, 2006; Florida; State Appellate Court
Florida Lifestyles Realty, Inc. and W. Robert Elkins appeal a trial court's order dismissing with prejudice one count of their six-count complaint against John Charles Goodwin, Don Goodwin Sons, Inc., and Barbara Bicknell. The appeal is dismissed for lack of jurisdiction, as the dismissed count is interrelated with remaining counts in the complaint.
The case stems from a dispute between real estate agents. Elkins, president of Florida Lifestyles Realty, listed a property and claimed to have brought in a prospective buyer, Goodwin, who allegedly entered a separate contract with the property owner, failing to pay Elkins a commission. This led to Goodwin filing an arbitration claim and an ethics complaint against Elkins, both of which Elkins won. Subsequently, Elkins filed a six-count complaint against Goodwin and others, alleging tortious interference, civil conspiracy, and malicious prosecution related to the arbitration and ethics claims.
Goodwin sought to dismiss counts one, five, and six. The trial court dismissed count five (malicious prosecution for the arbitration claim) with prejudice, ruling that an arbitration proceeding cannot support a malicious prosecution claim, while denying the dismissal of counts one and six. Elkins appealed the dismissal of count five.
The court found that for an appeal to be valid under Florida Rule of Appellate Procedure 9.110(k), a dismissed count must constitute a separate and distinct cause of action. The court applied a three-part test to assess whether the counts could stand independently, whether any parties were removed, and whether the counts were based on the same or different facts. It concluded that counts five and six were interrelated, as both were based on the same malicious prosecution theory and underlying facts of Goodwin’s arbitration and ethics claims. Therefore, the dismissal of count five was not appealable. The appeal was dismissed for lack of jurisdiction, with all judges concurring.
