Wd 19790 v. Trust

• Court: District Court of Appeal of Florida
• Decided: October 3, 2018
• Docket: 18-1664
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 3, 2018. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D18-1664 Lower Tribunal No. 16-25037 ________________

WD 19790, LLC, Appellant,

vs.

Dan Trust, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge.

Stok Folk + Kon, and Robert A. Stok and Joshua R. Kon, for appellant.

Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Abbey L. Kaplan and Josh M. Rubens, for appellees.

Before EMAS, LOGUE, and LUCK, JJ.

ON MOTION TO DISMISS

LOGUE, J.

The order dismissing Count VI of Appellant’s Second Amended

Counterclaim is not an appealable order under Florida Rule of Appellate Procedure 9.110(k) as “a separate and distinct cause of action that is not interdependent with

other pleaded claims” because Count VI alleges abuse of process on the basis that

the Appellees’ Third Amended and Supplemental Complaint “is a sham and seeks

de minimis, nominal and/or technical damages, if any, without a reasonable

prospect of success.” This allegation is intertwined with the litigation still pending

in the trial court concerning the legal and factual merits of that Complaint. See,

e.g., Bardakjy v. Empire Inv. Holdings, LLC, 239 So. 3d 146, 147 (Fla. 3d DCA

2018). Accordingly, Appellees’ motion to dismiss is granted.

Appeal dismissed.