ADWEISS LLLP, etc. v. JOHN A. DAUM

• Court: District Court of Appeal of Florida
• Decided: July 26, 2023
• Docket: 22-0787
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 26, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-787 Lower Tribunal No. 20-15407 ________________

Adweiss LLLP, etc., et al., Appellants,

vs.

John A. Daum, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Vivianne Del Rio, Judge.

Law Office of Dennis Grossman, and Dennis Grossman; Law Office of Max R. Price, P.A., and Max R. Price, for appellants.

Baritz & Colman LLP, and Andrew Thomson and Heather Cooper (Boca Raton), for appellee TD Ameritrade, Inc.; Zumpano Castro, PLLC, and Emilio Dominguez, for appellees Debra Roth, Bradley Daum and Marcia Daum.

Before FERNANDEZ, SCALES, and BOKOR, JJ.

SCALES, J. In these proceedings supplementary brought pursuant to section 56.29

of the Florida Statutes, appellants Adweiss LLLP and Adweiss LLC

(together, “Adweiss”), the judgment creditors and plaintiffs below, seek to

appeal an April 8, 2022 trial court order granting appellee, co-defendant

below, TD Ameritrade, Inc.’s (“TD Ameritrade”) June 15, 2021 motion to

dismiss Adweiss’s Amended Supplemental Complaint. Adweiss’s pleading

sought a judgment holding TD Ameritrade liable for $981,000, plus statutory

interest, owed to Adweiss by the judgment debtors and co-defendants below,

John A. Daum and Daum’s wholly-owned corporation, JAD Services LLC. 1

TD Ameritrade’s motion to dismiss Adweiss’s Amended Supplemental

Complaint argued two bases for dismissal: (i) Adweiss’s claims against TD

Ameritrade under Florida’s Uniform Fraudulent Transfer Act (“FUFTA”) were

time-barred; and (ii) Adweiss’s FUFTA claims failed to state a cause of action

upon which relief could be granted. The trial court’s April 8, 2022 order

granted TD Ameritrade’s motion to dismiss on both grounds. Specifically,

with regard to TD Ameritrade’s statute of limitations argument, the trial court

dismissed Adweiss’s Amended Supplemental Complaint “with prejudice.”

But the lower court also dismissed the pleading on TD Ameritrade’s “failure

1 Adweiss also alleged claims against Wells Fargo Bank, N.A., Debra Roth, Bradley Daum and Marcia Daum that remain pending in the lower proceedings.

2 to state a cause of action” argument “without prejudice,” giving (i) Adweiss

leave to file a Second Amended Supplemental Complaint within twenty days,

and (ii) TD Ameritrade twenty days in which to respond to Adweiss’s future

pleading.

On April 28, 2022, Adweiss filed its Second Amended Supplemental

Complaint and, shortly thereafter, filed its notice of appeal to this Court,

challenging the trial court’s dismissal order. Adweiss’s Second Amended

Supplemental Complaint remains pending below. Recognizing that the

challenged order may not constitute a final, appealable order, Adweiss’s

notice of appeal contained the following “qualifying” footnote:

This appeal is taken as a protective measure, in the event the Third District Court of Appeal considers the appealed-from Order to be an [sic] final appealable Order. It is possible the Third District Court of Appeal may consider the appealed-from Order to be a final appealable Order because in part it dismissed Plaintiffs-Appellants’ claim against TD Ameritrade, Inc., "with prejudice." On the other hand, it is possible the Third District Court of Appeal may consider the appealed-from Order to be a non-final, non-appealable Order, because in part it dismissed Plaintiffs-Appellants’ claim against TD Ameritrade, Inc., with leave to replead, which Plaintiffs-Appellants did. . . . In light of this uncertainty, Plaintiffs-Appellants take this appeal to protect their rights, in an abundance of caution, and respectfully request the understanding of this Court and of the Third District Court of Appeal.

It is axiomatic that our appellate jurisdiction is generally limited to

reviewing final orders and those non-final orders specifically contained in

3 Florida Rule of Appellate Procedure 9.130’s schedule of appealable, non-

final orders. See Fla. R. App. P. 9.030(b); Fla. R. App. P. 9.130(a)(3); Truist

Bank v. De Posada, 307 So. 3d 824, 826 (Fla. 3d DCA 2020) (“[W]hen

deciding whether we have appellate jurisdiction to review a non-final order

under Florida Rule of Appellate Procedure 9.130(a)(3), we narrowly construe

the rule and its enumerated categories of orders subject to interlocutory

appellate review.”). Further, Florida Rule of Appellate Procedure 9.110(k)

allows for immediate appellate review of a “partial final judgment” that (i)

“totally disposes of an entire case as to any party,” or (ii) disposes of a claim

against a party that is “a separate and distinct cause of action that is not

interdependent with other pleaded claims.”

The challenged order is not included in rule 9.130(a)(3)’s schedule of

appealable interlocutory orders. Nor is the challenged order a final order or

a “partial final judgment.” The order plainly contemplated another Adweiss

pleading (now filed below), TD Ameritrade’s response to same, and the

expenditure of more judicial labor. See Valledor Co. v. Decky, 338 So. 3d

956, 958 (Fla. 3d DCA 2022) (“An order is final only if it puts an end to judicial

labor. . . . This [damages] issue remains open and obviously requires

additional judicial labor; hence, none of the challenged orders is final.”); City

of N. Miami Beach v. City of Miami Gardens, 306 So. 3d 211, 211 (Fla. 3d

4 DCA 2020) (“[W]e agree that this appeal became moot when, pursuant to

another provision of the same order under review, Appellee filed an amended

complaint. As a result, the initial complaint which Appellant asks this Court

to conclude should have been dismissed is no longer operative.”). Because

the challenged order is not an appealable, non-final order, a partial final

judgment or a final order, we lack the jurisdiction to adjudicate Adweiss’s

interlocutory challenge to the order, and therefore dismiss the appeal.

Appeal dismissed.