Opinion
No. 2D21-2580
04-20-2022
NASMIN ENTERPRISE, INC., Appellant, v. CARLISLE/WILSON PLAZA, LLC; and Naples Supermarket Corporation, Appellees.
John A. Anthony and John W. Landkammer of Anthony & Partners, LLC, Tampa, for Appellant. David P. Fraser of Holmes Fraser, P.A., Naples, for Appellee Carlisle/Wilson Plaza, LLC. Steven V. Blount and Joseph H. Brown of Blount Law, PL, Naples, for Appellee Naples Supermarket Corporation.
John A. Anthony and John W. Landkammer of Anthony & Partners, LLC, Tampa, for Appellant.
David P. Fraser of Holmes Fraser, P.A., Naples, for Appellee Carlisle/Wilson Plaza, LLC.
Steven V. Blount and Joseph H. Brown of Blount Law, PL, Naples, for Appellee Naples Supermarket Corporation.
PER CURIAM. Nasmin Enterprise, Inc., appeals from an order dismissing with prejudice its first amended complaint against Carlisle/Wilson Plaza, LLC, and Naples Supermarket Corporation but providing the opportunity to amend to bring a count for declaratory relief against Carlisle/Wilson Plaza. Having had the benefit of briefing and oral argument, we affirm in part and dismiss in part as set forth below.
To clarify, in response to the defendants' motions to dismiss the first amended complaint, Nasmin Enterprise moved for leave to file a proposed second amended complaint, which included a count for declaratory relief against Carlisle/Wilson Plaza. With respect to that count, the court stated:
Leave to amend to bring Count III, Declaratory Judgment, of the proposed Second Amended Complaint is denied without prejudice, as said Count within the Second Amended Complaint fails to state a proper cause of action for Declaratory Judgment[.] Plaintiff is given 20 days from the date of this Order to bring a declaratory judgment action not contrary to the Court's rulings herein.
As it relates to Carlisle/Wilson Plaza, the order of dismissal is not an appealable final order because it grants Nasmin Enterprise the opportunity to amend to bring a claim for declaratory relief against Carlisle/Wilson Plaza. See Morgan v. Blancher , 489 So. 2d 1217, 1218 (Fla. 2d DCA 1986) ("An order of dismissal with leave to amend is not appealable because it is a nonfinal order." (citing Bishop v. Kelly , 404 So. 2d 1149, 1149 (Fla. 5th DCA 1981) )).
Moreover, as it relates to Carlisle/Wilson Plaza, the order of dismissal also is not appealable as a partial final judgment because the causes of action that it dismissed with prejudice are indisputably interdependent with the proposed basis for declaratory relief. See Fla. R. App. P. 9.110(k) (stating that partial final judgments are reviewable on appeal and defining a partial final judgment as "one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims"). The claims against Carlisle/Wilson Plaza that were dismissed with prejudice are premised on an argument that the lease agreement between Nasmin Enterprise and Carlisle/Wilson Plaza grants certain rights to Nasmin Enterprise, and the proposed count for declaratory relief seeks a determination of the validity of that agreement and the rights to which the parties are entitled.
Accordingly, we dismiss this appeal for lack of jurisdiction as to Carlisle/Wilson Plaza. See Wagner v. Sticky Holsters, Inc. , 291 So. 3d 1003, 1004 (Fla. 2d DCA 2020) (dismissing for lack of jurisdiction an appeal of an order of dismissal as it related to one of the parties because the dismissed claims were interrelated with other claims against that party that remained pending). Although we have jurisdiction to review the dismissal order as it relates to Naples Supermarket because the order dismisses with prejudice all claims asserted against Naples Supermarket and no counts remain in which it is a party, see Fla. R. App. P. 9.110(k) ("If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition."), we affirm to that extent without further discussion.
Affirmed in part; dismissed in part.
NORTHCUTT, CASANUEVA, and ROTHSTEIN-YOUAKIM, JJ., Concur.