Opinion
No. 98-1444.
Opinion filed May 21, 1999.
Appeal from the Circuit Court for Osceola County, Ted P. Coleman, Judge.
Gary R. Gossett, Jr., of Gossett Law Offices, P.A., Sebring, for Appellant.
David S. Cohen of Korshak Beaulieu, Orlando, for Appellees.
The appellant challenges a partial final summary judgment entered against him in the amount of $18,724 for which execution lies. We do not have jurisdiction to review this order on direct appeal because there existed, at the time of the entry of this order, a pending counterclaim related to the claims for which summary judgment was granted. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla. 1974); Trivett v. Dupree, 571 So.2d 574 (Fla. 5th DCA 1990 ); SCI, Inc. v. Aneco Co., 410 So.2d 531 (Fla. 2d DCA 1982). However, we choose to treat the appeal as a petition for writ of certiorari and issue the writ for the purpose of staying any execution on the partial final summary judgment until all claims pleaded in the action have been brought to final judgment. SCI, Inc. v. Aneco Co. As we noted in Reliance Forwarding Co. v. Nilson Van Storage, 387 So.2d 513 (Fla. 5th DCA 1980), the trial court should have either entered a partial summary judgment in favor of appellee and taken evidence on the counterclaim or entered a final summary judgment but stayed its execution pending resolution of appellee's counterclaim.
PETITION FOR CERTIORARI GRANTED, EXECUTION ON JUDGMENT STAYED.
COBB and HARRIS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.