HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY v. PATRICK FRASER AND ALICE JACOBS ( 2022 )

Third District Court of Appeal
State of Florida
Opinion filed September 7, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0866
Lower Tribunal No. 18-8930
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Homeowners Choice Property & Casualty Insurance
Company,
Appellant,
vs.
Patrick Fraser and Alice Jacobs,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice
Butchko, Judge.
Cole, Scott & Kissane, P.A., and Mark D. Tinker (Tampa), for appellant.
Mintz Truppman, P.A., and Timothy H. Crutchfield, for appellees.
Before SCALES, GORDO and BOKOR, JJ.
On Motion to Dismiss
BOKOR, J.
Homeowners Choice seeks review of a declaratory decree and related
order under Florida Rule of Appellate Procedure 9.110(k). However, the
decree and order on appeal resolve, at most, the declaratory judgment count
asserted by the insureds, but leave unresolved the insureds’ claims for fraud
in the inducement and breach of contract. In reviewing the operative
complaint, the decree and order on appeal, the plain language of Rule
9.110(k), and the body of caselaw applying such rule, we conclude that we
lack jurisdiction to consider this premature, piecemeal appeal.
To determine the appealability of a partial summary judgment order
disposing of less than the entire action, we first determine the scope of the
orders on appeal and apply Florida Rule of Appellate Procedure 9.110(k),
the relevant rule governing the appeal of nonfinal orders. The operative
complaint filed by the insureds against Homeowners Choice asserts three
counts: one for declaratory judgment, one for fraud in the inducement, and
one for breach of contract. All three counts rely on the same operative set
of facts.
The decree Homeowners Choice seeks to appeal answers two
discrete questions in the affirmative: (1) that Homeowners Choice was
required to pay or deny the insureds’ claim within 90 days after Homeowners
Choice received notice of the claim pursuant to section 627.70131, Florida
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Statutes; and (2) that the failure of Homeowners Choice to pay or deny the
claim within 90 days constitutes a violation of Florida law and a breach of the
subject insurance contract.
The plain language of Rule 9.110(k), entitled “Review of Partial Final
Judgments,” shows that this appeal isn’t ripe. The rule explains that “[a]
partial final judgment, other than one that disposes of an entire case as to
any party, is one that disposes of a separate and distinct cause of action that
is not interdependent with other pleaded claims.” Fla. R. App. P. 9.110(k)
(emphasis added). The decree and related order on appeal resolve only the
declaratory judgment count, leaving other related counts relying on the same
factual nexus unresolved. 1 The resolution of the pending breach of contract
claim would rely, at least in part, on the findings made in the decree and
order on appeal. See Libman v. Fla. Wellness & Rehab. Ctr., Inc., 260 So.
3d 515, 518 (Fla. 3d DCA 2018) (“It is well-established that ‘[p]iecemeal
appeals will not be permitted where claims are interrelated and involve the
1
Arguably, the decree doesn’t resolve the entirety of the declaratory
judgment count, which contained numerous subcounts. We sidestep that
issue because even if the decree completely resolved the declaratory
judgment count, we nonetheless find the appeal premature based on the
other, interrelated legal claims for fraud in the inducement and breach of
contract.
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same transaction and the same parties remain in the suit.’”) (quoting S.L.T.
Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)).
Our sister court devised a three-part test, applying Rule 9.110(k) to an
order on appeal:
(1) Could the cause of action disposed of by the partial
summary judgment be maintained independently of the other
remaining causes of action? (2) Were one or more parties
removed from the action when the partial summary judgment
was entered? (3) Are the counts separately disposed of
based on the same or different facts?
Universal Underwriters Ins. Co. v. Stathopoulos, 113 So. 3d 957, 959 (Fla.
2d DCA 2013) (citing Dahly v. Dep’t of Child. & Fam. Servs., 876 So. 2d
1245, 1248 (Fla. 2d DCA 2004)). Unsurprisingly, we come to the same
conclusion in applying these factors as we do in reading the plain language
of the statute. As to the first factor, the “cause of action” disposed of by the
“partial summary judgment” could not be maintained independently of the
other remaining causes of action. The legal and declaratory counts all rely
on the same operative facts and couldn’t be maintained independently of
each other. The decree noted that “[t]he remaining issues raised in Plaintiffs’
Amended Complaint remain pending before this court, including issues that
may be interrelated with the issues resolved by this Decree.” (emphasis
added). As to the second factor, we note that all claims are between the
same parties. The resolution of the declaratory judgment through the partial
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summary judgment order fails to extinguish all claims as they relate to any
one party. Finally, as to the third factor, we note that the factual underpinning
for the claim seeking declaratory relief overlaps extensively (if not entirely)
with the facts underlying the breach of contract claim, rendering the claims
interrelated.
Accordingly, we dismiss the appeal as premature. See Koe v. Citizens
Prop. Ins. Corp., 225 So. 3d 983 (Fla. 3d DCA 2017) (dismissing appeal for
lack of jurisdiction where proposed orders failed to meet the requirements
for application of 9.110(k) in that interrelated claims remained pending before
the trial court); Geico Gen. Ins. Co. v. Pruitt, 122 So. 3d 484, 487 (Fla. 3d
DCA 2013) (dismissing appeal for lack of jurisdiction finding that partial
summary judgment orders were non-final and non-appealable because
related claims remain pending between the parties); Stathopoulos, 113 So.
3d at 959 (dismissing appeal where amended complaint reflects that the
three counts are based on the same facts and are intertwined and concluding
that allowing an appeal of the declaratory count would foster impermissible
piecemeal review); see also Mid-Continent Cas. Co. v. Flora-Tech
Plantscapes, Inc., 225 So. 3d 336, 338 (Fla. 3d DCA 2017) (dismissing
appeal for lack of jurisdiction where declaratory judgment on appeal failed to
otherwise contain the traditional words of finality); Ball v. Genesis
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Outsourcing Sols., LLC, 174 So. 3d 498, 499 (Fla. 3d DCA 2015) (explaining
that an order that merely grants a motion and does not contain language that
enters judgment is not a final order and that a notice of appeal from such
order is premature).
Motion granted; appeal dismissed.
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