MARIE G. VITAL, etc. v. SUMMERTREE VILLAGE AT THE CALIFORNIA CLUB CONDOMINIUM ASSOCIATION, INC. ( 2022 )

Third District Court of Appeal
State of Florida
Opinion filed August 3, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0024
Lower Tribunal No. 15-216
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Marie G. Vital, Individually, and as Personal Representative of the
Estate of Gertrude B. Vital,
Appellants,
vs.
Summertree Village at the California
Club Condominium Association, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Carlos
Guzman, Judge.
Marie G. Vital, in proper person, and for the Estate of Gertrude B. Vital,
appellants.
Law Offices of Geoffrey B. Marks, and Geoffrey B. Marks, for appellee.
Before EMAS, SCALES and GORDO, JJ.
On Partial Confession of Error
SCALES, J.
Marie G. Vital (“ Ms.Vital”), for herself and as personal representative
of the estate of her mother, Gertrude B. Vital, appeals a series of orders and
judgments related to a condominium lien foreclosure action initiated by
appellee Summertree Condominium Association, Inc. (“Summertree”). 1
Based on Summertree’s partial confession of error, we reverse the
foreclosure judgments 2 as having been entered prematurely; we affirm the
challenged interlocutory orders underlying the final judgments of foreclosure;
and dismiss, for lack of jurisdiction, that portion of Vital’s appeal challenging
an interlocutory order directed toward counts in Vital’s counterclaim.
I. Relevant Background
Ms. Vital purchased her Summertree condominium unit in 2007. In
2012, she began complaining to the Summertree property manager, the
condominium association, and various governmental agencies that her unit
was infested with mold due to a common area water leak. She also
1
Only Ms. Vital owns the subject condominium unit and only Ms. Vital was
named as the defendant in Summertree’s foreclosure action. Both Ms. Vital
and the estate, though, are counter-plaintiffs in their counterclaim against
counter-defendant Summertree. We refer to Ms. Vital and the estate together
as “Vital” when referencing their counterclaim.
2
Although Summertree filed only one foreclosure case, for reasons not
apparent from the record, the trial court entered duplicate, identical final
judgments on December 3, 2019, and December 6, 2019.
2
complained that the unit flooded from seeping groundwater. Her complaints
brought her no satisfaction so, in 2014, Ms. Vital ceased paying her monthly
maintenance fee, and she did not pay a subsequent monthly special
assessment.
In January 2015, Summertree filed a foreclosure action against Ms.
Vital for the unpaid fees. Over the next fifteen months, Ms. Vital and Vital
filed several responsive pleadings and counterclaims. On November 1,
2016, the trial court conducted a hearing on Summertree’s motion to dismiss
Vital’s third amended counterclaim and to strike Ms. Vital’s third amended
affirmative defenses. The trial court entered two orders on November 1,
2016: (i) dismissing three of Ms. Vital’s affirmative defenses, with prejudice
(negligence, negligence of third parties, and impossibility of performance),
while dismissing four other affirmative defenses, without prejudice, and
allowing Ms. Vital twenty days to amend her pleading; and (ii) dismissing two
counts of Vital’s counterclaim, with prejudice (defamation and negligent
retention of property manager), while dismissing two other counts of Vital’s
counterclaim, without prejudice, again allowing Vital twenty days to amend
their pleading.3
3
We note that, in the Notice of Appeal, Ms. Vital and Vital mis-identify one
of these November 1, 2016 orders as a November 3, 2016 order.
3
Then, on November 3, 2016, after a hearing on Summertree’s motion
for summary judgment on its foreclosure claim, the trial court entered two
additional orders. The trial court: (i) granted partial summary judgment in
Summertree’s favor concluding that Ms. Vital had failed to pay the monthly
maintenance fees and special assessments, but specifically leaving for trial
the determination of the amount Ms. Vital owed in these unpaid assessments
(the “Partial Summary Judgment Order”); and (ii), on Summertree’s ore
tenus motion, entered an order severing, without prejudice, Vital’s
counterclaim from Summertree’s foreclosure claim.
In July 2018, Ms. Vital and Vital filed their fourth amended answer and
counterclaim. In this pleading, Ms. Vital asserted five affirmative defenses to
Summertree’s foreclosure claim: unclean hands, selective enforcement,
promissory estoppel, fraud, and setoff; and Vital asserted six counterclaims
against Summertree: breach of contract, negligence, intentional infliction of
emotional distress, tortious interference with a contractual relationship,
breach of implied covenants of good faith and fair dealing, and breach of
fiduciary duty. On October 1, 2018, the trial court entered an omnibus order
on outstanding motions (the “Omnibus Order”). In the Omnibus Order, the
trial court dismissed certain counterclaims and struck certain affirmative
defenses. Thus, after the various orders, what remains pending are Ms.
4
Vital’s affirmative defenses – directed toward Summertree’s foreclosure
claim – of unclean hands and setoff and four counts of Vital’s counterclaim
against Summertree: Count I (breach of contract), Count II (negligence),
Count III (intentional infliction of emotional distress), and Count IV (tortious
interference with a contractual relationship).
Then, in December 2019, notwithstanding Ms. Vital’s pending
affirmative defenses, a successor trial judge entered what it characterized
as “final” foreclosure judgments for Summertree purportedly ending the
judicial labor involved with Summertree’s foreclosure claim. The successor
trial judge apparently adjudicated Summertree’s pending motion for
summary judgment without consideration of the surviving affirmative
defenses of unclean hands and setoff. These judgments not only affixed
damages and attorney’s fees associated with Summertree’s foreclosure
claim, but also set a foreclosure sale date for Ms. Vital’s condominium. This
appeal timely followed.
II. Analysis
Ms. Vital and Vital appeal the final foreclosure judgments as well as
several interlocutory orders. As described below, each of the challenged
interlocutory orders relates either to: (i) Summertree’s foreclosure claim
against Ms. Vital, a claim that presumably was adjudicated with finality by
5
virtue of the final foreclosure judgments, or (ii) Vital’s counterclaim. As our
appellate jurisdiction is dependent upon the category under which each
challenged order falls, we address each category of challenged order in turn,
beginning with the final judgments of foreclosure.
A. Final judgments of foreclosure
Notwithstanding how the trial court characterized the final foreclosure
judgments, they are not “final.” They do not adjudicate with finality
Summertree’s foreclosure claim. Irrespective of whether Vital’s
counterclaims are permissive or compulsory, 4 the final foreclosure
judgments do not adjudicate the pending affirmative defenses to
Summertree’s foreclosure claim and, therefore, judicial labor remains with
regard to Summertree’s foreclosure claim. Because these orders are not
final, we ordinarily would not have appellate jurisdiction to review them. See
Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So. 3d 559, 561-
62 (Fla. 3d DCA 2015).
In this case, however, we do have appellate jurisdiction to review the
challenged orders because they purport to adjudicate, with finality,
Summertree’s foreclosure claim. They are in the form of a final judgment,
4
We express no opinion as to whether Vital’s counterclaims are permissive
or compulsory.
6
affix damages, are fully executable, and establish a foreclosure sale date.
Indeed, if Ms. Vital had not appealed the orders, the foreclosure sale
presumably would have ensued. Hence, as Summertree commendably and
correctly concedes, we have appellate jurisdiction to review these orders,
and we are compelled to reverse them. See Del Castillo v. Ralor Pharmacy,
Inc., 512 So. 2d 315, 319 (Fla. 3d DCA 1987) (“[I]t is . . . improper to render
an order in the form of an ordinary final money judgment, while contradictorily
and simultaneously leaving an issue for future adjudication.”); see also
Surijon v. Zarria, 278 So. 3d 328, 329 (Fla. 3d DCA 2019); Baumann v.
Intracoastal Pac. Ltd. P’ship, 619 So. 2d 403, 404 (Fla. 3d DCA 1993);
Pointer Oil Co. v. Butler Aviation of Miami, Inc., 293 So. 2d 389, 390-91 (Fla.
3d DCA 1974). 5
We therefore reverse the December 3, 2019, and December 6, 2019
final judgments of foreclosure.
B. Interlocutory orders related to final judgments of foreclosure
5
We note that some courts, including this Court, have reviewed such
prematurely entered orders under a certiorari, rather than an appellate,
standard and have quashed, rather than reversed, the challenged orders.
See e.g., Kratos Holdings, LLC v. Direct Invs. Int’l, LLC, 323 So. 3d 334, 336
(Fla. 3d DCA 2021); Am. Franchise Grp. LLC v. Gastone, 319 So. 3d 147,
150 (Fla. 3d DCA 2021); People’s Tr. Ins. Co. v. Gonzalez, 318 So. 3d 583,
583 (Fla. 3d DCA 2021); East Ave., LLC v. Insignia Bank, 136 So. 3d 659,
665 (Fla. 2d DCA 2014). We express no opinion in this decision as to which
is the better practice.
7
Because we have jurisdiction to review the final judgments of
foreclosure, for the purposes of this proceeding, we treat the final judgments
of foreclosure as “partial final judgments” under Florida Rule of Appellate
Procedure 9.110(k) and, therefore, we necessarily have jurisdiction to review
the several challenged interlocutory orders related to Summertree’s
foreclosure claim that are subsumed in those final foreclosure judgments.
Fla. R. App. P. 9.110(k) (“The scope of review of a partial final judgment may
include any ruling or matter occurring before filing of the notice of appeal so
long as such ruling or matter is directly related to an aspect of the partial final
judgment under review.”). Specifically, we have appellate jurisdiction to
review the following interlocutory orders challenged in Ms. Vital’s initial brief: 6
(i) the November 1, 2016 order striking, with prejudice, Ms. Vital’s affirmative
defenses alleging negligence, negligence of third parties, and impossibility
of performance; (ii) the November 3, 2016 order severing, without prejudice,
6
While Ms. Vital and Vital’s Notice of Appeal identifies (and attaches) the
Omnibus Order as a challenged order, their initial brief contains no argument
directed toward any of the rulings contained in the Omnibus Order.
Therefore, Ms. Vital has waived any arguments she might have directed to
those portions of the Omnibus Order related to Summertree’s foreclosure
claim. See V.T. v. Liberty Dental Plan of Fla., Inc., 338 So. 3d 989, 990 (Fla.
3d DCA 2022); Tillery v. Fla. Dep’t of Juvenile Justice,104 So. 3d 1253,
1255-56 (Fla. 1st DCA 2013).
8
appellee’s foreclosure claim from Vital’s counterclaim; and (iii) the Partial
Summary Judgment Order.
Without further discussion or elaboration, we affirm these challenged
interlocutory orders related to Summertree’s foreclosure claim. 7
C. Interlocutory orders related to Vital’s counterclaim
Finally, in the initial brief, Vital also seeks appellate review of the trial
court’s November 1, 2016 interlocutory order that struck Vital’s claims (in the
third amended counterclaim) of defamation and negligent hiring. 8 We lack
appellate jurisdiction to review this interlocutory order directed toward counts
contained in Vital’s pending counterclaim. Almacenes El Globo de Quito,
7
With regard to the Partial Summary Judgment Order, it bears noting that
we affirm those portions of the order that find it to be “undisputed that
Defendant failed to pay her regular and special assessments,” and that the
amount of such assessments “is at issue and will be determined at trial.”
Because Vital’s unclean hands and setoff affirmative defenses remain to be
litigated, this order does not constitute a partial summary judgment of
Summertree’s foreclosure claim as to either liability or damages.
8
As we suggested in footnote 6, supra, there is a contradiction between Ms.
Vital and Vital’s Notice of Appeal and their briefing. The Omnibus Order is
identified as a challenged order in the Notice of Appeal, yet the initial brief
contains no argument directed toward the Omnibus Order. While, as noted
in footnote 6, Ms. Vital has waived unargued challenges to those portions of
the Omnibus Order directed toward Summertree’s foreclosure action, Vital
has not waived the ability to appeal those portions of the Omnibus Order
adjudicating interlocutory issues related to Vital’s counterclaim. Such
challenges ripen only upon a final adjudication of Vital’s counterclaim.
9
S.A., 181 So. 3d at 561-62. We, therefore, dismiss Vital’s appeal to the
extent that Vital seeks review of this order, and express no opinion as to
whether the order was properly entered.
Affirmed in part, reversed in part, dismissed in part.
10