Johnson v. HSBC Bank USA, National Ass'n

65 So. 3d 57 (2011)

Annette JOHNSON and Harold Johnson, et al., Appellants,
v.
HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for Home Equity Loan Trust Series Ace 2005-He5, Appellee.

No. 1D10-6223.

District Court of Appeal of Florida, First District.

June 2, 2011. Rehearing Denied July 8, 2011.

Annette Johnson, pro se; Harold Johnson, pro se; Appellants.

Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for Appellee.

PER CURIAM.

Upon consideration of the appellants' response to the Court's order of January 7, 2011, as well as the attached documents, the Court has determined that this appeal is premature. On May 6, 2009, the lower tribunal granted a motion to dismiss the appellants' counterclaims. However, because it did so without prejudice to amend, the order failed to actually dispose of the counterclaims. Augustin v. Blount, 573 So. 2d 104 (Fla. 1st DCA 1991) (noting that the appellant's proper course is to request entry of a final order which may be appealed); Ponton v. Gross, 576 So. 2d 910 (Fla. 1st DCA 1991). Although a great deal of litigation has followed entry of the Order Granting Plaintiff's Motion to Dismiss Counterclaims, including the entry of the Final Summary Judgment of Mortgage Foreclosure without mention of the counterclaims, the fact that the counterclaims remain pending, whether through oversight or by design, renders this appeal premature.

DAVIS, LEWIS, and WETHERELL, JJ., concur.