25 Fla. L. Weekly Supp. 866a
Online Reference: FLWSUPP 2510BLACInsurance — Homeowners — Water damage — Contractor/assignee’s action against insurer — Order dismissing insurer’s second amended compulsory counterclaim without prejudice was non-final, non-appealable order — Second amended counterclaim alleging contractor violated Deceptive and Unfair Trade Practices Act was compulsory in nature where counterclaim arose from same aggregate of operative facts
HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Appellant-Defendant, v. COMMERCIAL WATER N MOLD, LLC, a/a/o Carol Blackwood, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-158 AP. L.T. Case No. 14-20080 SP 05. November 22, 2017. On appeal from a judgment rendered by the Miami-Dade County Court, Hon. Lourdes Simon. Counsel: M. Andrew Sperber for the Appellant-Defendant. Tracy L. Kramer, Insurance Litigation Group, P.A., for the Appellee-Plaintiff.
(Before TINKLER MENDEZ, HERSCH, & DEL PINO, Circuit Judges.)
(PER CURIAM.) Heritage Property and Casualty Insurance Company (“Insurer” or “Insurance Company”) issued a homeowner’s insurance policy to Carol Blackwood (“policyholder”). In response to water damage at her home, the policyholder sought restoration services from Commercial Water N Mold, LLC (“Restoration-Company”). Entering into a contract with the Restoration-Company, the policyholder assigned her insurance benefits to the Restoration-Company. After completing its work, the Restoration-Company submitted its bill to the Insurer for payment, the Insurer did not pay the bill, and eventually the Restoration-Company filed a contractual breach action against the Insurer. As the litigation progressed, the Insurer filed a second amended counterclaim and alleged that the Restoration-Company violated the Florida Deceptive and Unfair Trade Practices Act (“Act”), Ch. 501, Part II, Fla. Stat. (2017). The county court dismissed the Insurer’s second amended counterclaim, the order on appeal here.
APPELLATE JURISDICTION
Because the trial court dismissed a counterclaim, we analyze whether the Insurer litigates a permissive or compulsory counterclaim and whether the dismissal order qualifies as an interlocutory or a final order.I.
The Restoration-Company argues that the Insurer’s second amended counterclaim is a compulsory counterclaim. A compulsory counterclaim “arises out of the transaction or occurrence that is the subject matter of the” original “claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.” Fla. R. Civ. P. 1.170(a). A permissive counterclaim’s allegations do not arise from “the transaction or occurrence that is the subject matter” in the original claim. Id. at (b). When discerning a counterclaim’s permissive or compulsory nature, courts apply the logical relationship test:
A claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis for both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.
Cunningham v. MBNA America Bank, NA., 8 So. 3d 438, 441 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D701a].
In the instant case, the Restoration-Company’s original suit alleged a contractual breach claim and theorized that the Insurer “breached the policy by denying coverage” and refusing to pay benefits owed to the Restoration-Company. The Restoration-Company attached the contract and its invoice as exhibits to the original Complaint. In the second amended counterclaim, the Insurer alleged that the Restoration-Company violated the Florida Deceptive and Unfair Trade Practices Act. As its theory for the second amended counterclaim, the Insurer relied upon the Restoration-Company’s statement that the Insurance Company established the Restoration-Company’s prices for billing purposes. The Insurer attached the price list, containing the statements allegedly violating the Act, as an exhibit to the second amended counterclaim. Although the Restoration-Company’s contract did not reference the price list attached to the Insurer’s counterclaim, thus suggesting that the price list was not part of the contract, we find that the second amended counterclaim’s theory arises from the same aggregate of operative facts — the water damage to the policyholder’s home, the Restoration-Company’s damages claim based upon the unpaid invoice, and the Insurer’s attempt to avoid paying the invoice. Therefore, we conclude that the second amended counterclaim operates as a compulsory counterclaim. 4040 IBIS Circle, LLC v. JP Morgan Chase Bank, 193 So. 3d 957, 960 & n.2 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1035b].II.
The Restoration-Company contends that the order dismissing the counterclaim constitutes a non-final, unappealable order and does not invoke our common-law certiorari jurisdiction. An order dismissing a compulsory counterclaim with prejudice does not function as “an appealable final order until” the trial court enters a final disposition in the original, underlying case. Cunningham, 8 So. 3d at 440. Here, the trial court did not dismiss the counterclaim with prejudice and did not deny leave to amend the counterclaim (R. at 340). Because the trial court did not dismiss with prejudice or deny leave to amend, we find that the trial court did not prohibit the Insurer from filing a third amended counterclaim. Augustin v. Blount, Inc., 573 So. 2d 104, 105 (Fla. 1st DCA 1991); Berenyi v. Halifax Hosp. Dist., 451 So. 2d 524, 525 (Fla. 5th DCA 1984).
As this record does not indicate that the trial court rendered a judgment in the main action, the Restoration-Company’s original suit remains pending. Thus, the order dismissing the amended counterclaim is not an appealable final order. We dismiss this appeal without prejudice to the Insurer challenging the dismissal order on post-judgment appeal. Machinery Wholesalers, Inc. v. Wolpe, Leibowitz & Brotman, 700 So. 2d 170, 171 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D2415a].
APPELLATE ATTORNEY’S FEES
The Restoration-Company requests appellate attorney’s fees pursuant to section 627.428, Florida Statutes (2017). When an appellate court dismisses an appeal, the successful movant becomes the prevailing party for fees purposes. Arango v. United Auto. Ins. Co., 901 So. 2d 320, 321 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1129a]. Because we dismiss this appeal due to deficient jurisdiction, the Restoration-Company prevails. Id. We grant the request for appellate attorney’s fees conditioned upon the Restoration-Company ultimately prevailing in the trial court. Prof’l Med. Group, Inc. v. United Auto. Ins. Co., 967 So. 2d 243, 244 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2066a].
DISMISSED & APPELLATE FEES GRANTED.
