PAUL J. POLITO v. KEYBANK NATIONAL ASSOCIATION

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PAUL J. POLITO, an individual,
Appellant,
v.
KEYBANK NATIONAL ASSOCIATION,
Appellee.
No. 4D17-1322
[December 6, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jack B. Tuter, Judge; L.T. Case No. CACE-13-010294(5).
Robert W. Murphy, Fort Lauderdale, and Rebecca J. Covey of Rebecca
J. Covey, LLC, Fort Lauderdale, for appellant.
Susan E. Trench, Alan G. Kipnis and Steven M. Appelbaum of Arnstein
& Lehr LLP, Miami, for appellee.
GROSS, J.
We sua sponte dismiss this appeal of two counts of a counterclaim for
lack of jurisdiction. The dismissed counts intertwine with pending pleaded
claims and are compulsory counterclaims to the original action.
This litigation began when appellee KeyBank National Association sued
appellant Paul Polito, seeking a deficiency judgment of $34,932, the debt
remaining after Polito’s default on a boat loan, followed by the repossession
and sale of the boat. A two-count second amended complaint asserted
claims for breach of contract and unjust enrichment, contending that Ohio
law applied to actions arising under the loan agreement.
Polito answered and counterclaimed for damages, seeking class action
relief for deceptive acts concerning the repossession and sale of
consumers’ boats. The counterclaim had five counts:
Claim Basis for Claim
Count I Violation of § 9-610, UCC Unlawful repossession
(§ 1309.610, Ohio Revised Code) of the boat (breach of
KeyBank deprived Borrower and the peace) 1
other class members of substantial
rights granted to them under the
UCC, including, but not limited to,
the right to obtain a reasonable
notification of disposition that
properly discloses their rights upon
repossession.
Count II Violation of § 9-611, UCC Defective notice of sale
§ 1309.611, Ohio Revised Code) (inadequate notice)
KeyBank failed to provide
reasonable notice of disposition of
collateral.
Count III Violation of § 9-612, UCC Defective notice of sale
§ 1309.612, Ohio Revised Code) (timeliness of notice)
KeyBank failed to provide reasonable
notice of disposition of collateral.
Count IV Equitable Relief (Common Law) Unlawful collection
KeyBank wrongfully collected activities and credit
and/or reported credit information reporting (reporting
to the CRAs with respect to the derogatory
consumer reports of Borrower and information to
other class members. consumer reporting
agencies)
Count V Equitable Relief (UCC) Unlawful collection
KeyBank wrongfully collected activities and credit
and/or reported credit information reporting (reporting
to the CRAs with respect to the derogatory
consumer reports of Borrower and information to
other class members. consumer reporting
agencies)
KeyBank moved for summary judgment on counts II and III of the
counterclaim, arguing that the notice of sale comported with Ohio law.
The circuit court granted KeyBank’s motion and entered a partial final
judgment in favor of KeyBank on counts II and III of the counterclaim.
1Although not explicitly mentioned within this specific count, it appears that this
count was based on the unlawful repossession of Polito’s boat, which he contends
was a breach of the peace.
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The jurisdictional problem with this appeal is that the two dismissed
counts are not now appealable. “An appeal from an order dismissing a
count of a complaint, where other counts against the same parties remain,
is authorized only when the dismissed count arises from a separate and
distinct transaction independent of the other pending, pleaded claims.”
Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237, 238 (Fla. 4th DCA
1995); see also Fla. R. App. P. 9.110(k). “[P]iecemeal appeals should not
be permitted where claims are legally interrelated and in substance involve
the same transaction.” Mendez v. West Flagler Family Ass’n, Inc., 303 So.
2d 1, 5 (Fla. 1974). “Only when it is obvious that a separate and distinct
cause of action is pleaded which is not interdependent with other pleaded
claims should the appeal be permitted.” Biasetti, 654 So. 2d at 238(internal citations and quotations omitted).
An analysis of “interdependence” requires the court to look
primarily to the facts upon which the claims are based. If the
claims arise out of the same incident, the order dismissing
some, but not all, of the counts will not constitute a final
appeal, even if the counts involve separate and severable legal
theories.
Id.Here, the dismissed counts are interdependent with the remaining
causes of action in the counterclaim. Defective notices of sale form at least
a partial basis for the relief sought in the other counts.
Also, insofar as Polito would be a class representative on the
counterclaim, counts II and III of the counterclaim arose out of the seizure
and sale of his boat, so they arose “out of the transaction or occurrence
that formed the subject matter of the plaintiff’s claim.” Londano v. Turkey
Creek, Inc., 609 So. 2d 14, 19 (Fla. 1992). This means that the two counts
were compulsory counterclaims. This court does not have jurisdiction
because an order dismissing a compulsory counterclaim is “not appealable
until a final disposition of the original cause has [been] obtained on the
merits.” 4040 Ibis Circle, LLC v. JP Morgan Chase Bank, 193 So. 3d 957,
960 (Fla. 4th DCA 2016) (quoting Johnson v. Allen, Knudsen, DeBoest,
Edwards & Rhodes, P.A., 621 So. 2d 507, 509 (Fla. 2d DCA 1993)).
Dismissed for lack of jurisdiction.
MAY and KLINGENSMITH, JJ., concur.
* * *
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Not final until disposition of timely filed motion for rehearing.
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