       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 12, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D18-1568
                          Lower Tribunal No. 13-18060
                              ________________


                             Michael I. Libman,
                                    Appellant,

                                        vs.

        Florida Wellness & Rehabilitation Center, Inc., et al.,
                                    Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Dennis J. Murphy,
Judge.

     Law Offices of Michael I. Libman, P.A., and Michael I. Libman; Stuart B.
Yanofsky, P.A., and Stuart B. Yanofsky (Plantation), for appellant.

      Ricardo A. Banciella, P.A., and Ricardo A. Banciella, for appellees.


Before LAGOA, SCALES, and LINDSEY, JJ.

      LAGOA, J.

                          ON MOTION TO DISMISS
      Appellees Florida Wellness & Rehabilitation Center, Inc., Cereceda &

Associates, D.C., P.A., Mark A. Cereceda, D.C., P.A., and Mark A. Cereceda, D.C.

(collectively, “Appellees”) move to dismiss Appellant Michael I. Libman’s

(“Libman”) appeal of the trial court’s order titled Final Summary Judgment Against

Michael I. Libman. For the reasons set forth below, we dismiss the appeal for lack

of jurisdiction.

      Libman and Stuart Yanofsky (“Yanofsky”), both attorneys, filed a single-

count first amended complaint against Appellees alleging breach of contract. The

complaint alleged that between 2005 and 2009, Libman and Yanofsky entered into

an oral contract with Appellees to bring suit against various insurance companies for

monies due for medical services provided by Appellees. It was further alleged that

the oral contract provided for the payment of attorney’s fees by settlement or court

award and that if Appellees decided to dismiss a case, discharge the attorneys, or

otherwise not continue with a case, Appellees would be responsible for attorney’s

fees and costs. Finally, the complaint alleged that “without permission and consent”

from Libman and Yanofsky, Appellees entered into a global settlement with an

insurance company, circumventing their “right and entitlement to fees.”

      Appellees filed an answer, affirmative defenses, and counterclaims.

Specifically, each appellee filed counterclaims against Libman for breach of

fiduciary duty, disgorgement and/or forfeiture of attorney’s fees, and legal



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malpractice. Appellees subsequently filed a motion for summary judgment against

Libman on the breach of contract claim. On June 28, 2018, the trial court entered

an order titled “Final Summary Judgment Against Michael I. Libman,” which stated

that Appellees’ “motion for Summary Judgment is hereby GRANTED” and

dismissed Libman’s amended complaint. Appellees’ counterclaims against Libman

were not a subject of the order and remain pending below. Libman subsequently

appealed from the trial court’s June 28 order.

         Appellees filed a motion to dismiss the appeal, arguing that the order is not

appealable under Florida Rule of Appellate Procedure 9.110(k), which allows for

review of partial final judgments “that dispose[] of a separate and distinct cause of

action that is not interdependent with other pleaded claims.” Fla. R. App. P.

9.110(k). 1 Specifically, Appellees argue that the claims asserted in their still-




1
    In its entirety, rule 9.110(k) states:

                (k) Review of Partial Final Judgments. Except as
                otherwise provided herein, partial final judgments are
                reviewable either on appeal from the partial final judgment
                or on appeal from the final judgment in the entire case. 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. If a partial final
                judgment totally disposes of an entire case as to any party,
                it must be appealed within 30 days of rendition.

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pending counterclaims are interrelated with the breach of contract claim asserted in

the amended complaint, and thus the appeal is premature.

      As an initial matter, we note that the trial court’s order merely grants

Appellees’ motion for summary judgment and does not contain language that enters

judgment. “An order that merely grants a motion for summary judgment is not a

final order. For an order to be final, it must constitute an entry of a judgment: it is

the final judgment that is appealable, not an order simply granting a motion.” Ball

v. Genesis Outsourcing Sols., LLC, 174 So. 3d 498, 499 (Fla. 3d DCA 2015)

(citation omitted); cf. HSBC Bank USA v. Buset, 216 So. 3d 701 (Fla. 3d DCA

2017) (finding portion of order granting motion for involuntary dismissal which

contained language entering judgment to be appealable as a final order). We

therefore lack jurisdiction to entertain an appeal from the trial court’s order to the

extent that it grants Appellees’ motion for summary judgment.

      Our analysis, however, does not end here because the trial court’s order also

dismissed Libman’s amended complaint.           A trial court’s order dismissing a

complaint may “be a final order for appeal purposes.” Carnival Corp. v. Sargent,

690 So. 2d 660, 661 (Fla. 3d DCA 1997); see also Bd. of Cty. Comm’rs of Madison

Cty. v. Grice, 438 So. 2d 392, 394 (Fla. 1983) (“An order on a motion to dismiss

may not be final, but an order which actually dismisses the complaint is.”).

However, “[f]or a final order to be appealable as a ‘partial final judgment’ under



                                          4
Rule 9.110(k) . . . that final order must be entirely independent from other pleaded

claims.” Herbits v. City of Miami, 197 So. 3d 575, 578 (Fla. 3d DCA 2016)

(emphasis in original). “If all claims arise from the same set of facts, an order

resolving fewer than all of the counts is not appealable under Rule 9.110(k).”

Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So. 3d 559, 562 (Fla. 3d

DCA 2015) (holding that the trial court’s order purportedly adjudicating appellant’s

claim was not appealable under rule 9.110(k) as appellant’s claim arose from the

same set of facts as appellee’s counterclaim and third party claim); see also Bardakjy

v. Empire Inv. Holdings, LLC, 239 So. 3d 146 (Fla. 3d DCA 2018) (concluding that

final judgment was not appealable under rule 9.110(k) and dismissing appeal as

premature where issues and facts related to pending counterclaims were intertwined

with claims and defenses raised in appeal); Skop v. P3 Grp., L.L.C., 67 So. 3d 1194

(Fla. 3d DCA 2011) (finding that the trial court’s order dismissing second amended

complaint was not a final appealable order because claims asserted in second

amended complaint were “inextricably intertwined” with defendant’s pending

counterclaims).

      Here, we find that the trial court’s order is not a final appealable order under

rule 9.110(k). 2 A review of the record shows that Libman’s breach of contract claim



2
 We note that whether the trial court’s ruling is a “judgment” or “order” is not
determinative of our analysis under rule 9.110(k). See De La Osa v. Wells Fargo

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is inextricably intertwined with Appellees’ still-pending counterclaims.       Each

counterclaim arises from the alleged oral agreement that formed the basis of

Libman’s breach of contract claim. In short, Libman’s breach of contract claim is

“interdependent with other pleaded claims,” i.e., Appellee’s counterclaims. It is

well-established that “[p]iecemeal appeals will not be permitted where claims are

interrelated and involve the same transaction and the same parties remain in the

suit.” S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974). Accordingly,

we grant Appellees’ motion to dismiss the appeal for lack of jurisdiction. Our

dismissal is without prejudice to any party’s right to appeal from a subsequent final

appealable order.

      Appeal dismissed.




Bank, N.A., 208 So. 3d 259 (Fla. 3d DCA 2016) (en banc) (stating that the term
“judgment” as used in the Florida Rules of Civil Procedure includes final “orders”).

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