Opinion
No. 73-88.
June 8, 1973. On Rehearing August 10, 1973.
Appeal from the Circuit Court for Pinellas County, John S. Andrews, J.
J.E. Satterfield, Clearwater, for appellant.
Wm. Earle Tucker, of Gibbons, Tucker, McEwen, Smith, Cofer Taub, Tampa, for appellees A.L. Ellis and Helen L. Ellis.
James M. Stevens, Tarpon Springs, for appellee Carlen Realty Co.
ON MOTIONS TO DISMISS
This matter is before the court on separate motions to dismiss of appellees, Carlen Realty Company and A.L. Ellis and Helen L. Ellis.
The pertinent part of the trial court's order is:
Amended Counterclaim of Marjorie R. Neil be and the same is hereby granted without leave to Defendant, Neil to amend.
2. Defendant, Carlen Realty Company's Motion to Dismiss Crossclaim of Marjorie R. Neil be and the same is hereby granted without leave to Defendant, Neil to amend.
The sole question for our determination is whether the order entered by the able trial judge is a final order susceptible to appeal.
The record before the court is insufficient to support the motions to dismiss the appeal. Accordingly, they are
Denied.
HOBSON, A.C.J., and McNULTY, J., concur.
ON PETITION FOR REHEARING OR, IN THE ALTERNATIVE, PETITION FOR RENEWAL OF MOTION TO DISMISS
The appellees, A.L. Ellis and Helen L. Ellis, his wife, and Carlen Realty Company, a corporation, have timely filed separate petitions for rehearing directed to our opinion filed in this cause on June 8, 1973, or, in the alternative, petitions for renewal of motions to dismiss the appeal. Appellees previously filed separate motions to dismiss the appeal. After careful review we held that the record was insufficient to support the motions to dismiss the appeal and, accordingly, entered an order denying the relief sought by appellees. Subsequently, appellees have filed in this court certified copies of complaint for partition; appellant's amended answer thereto, and counterclaim and cross-claim; appellees' motion directed to amended answer, counterclaim and cross-claim of appellant; motion to dismiss cross-claim against appellee, Carlen Realty Company; and, the order of the trial court on the motions to dismiss amended counterclaim and cross-claim. The above-mentioned pleadings were attached to the petitions for rehearing and for renewal.
An inspection of the record divulges that the order appealed from, in which the trial court granted appellees' motion to dismiss appellant's counterclaim and cross-claim, without leave to amend, is, we submit, a final order. We point out that the complaint filed by appellees, A.L. Ellis and Helen L. Ellis, his wife, is an action for partition of certain real property and seeks other appropriate relief. On the other hand, the counterclaim and cross-claim filed by appellant against appellees is an action for malicious prosecution. The trial court's ruling in dismissing the counterclaim and cross-claim ended the judicial labor concerning that litigation. The separate and distinct issues framed by the complaint for partition and the amended answer filed thereto remain to be resolved between the parties in the trial court.
In view of the posture of the case, we rule on appellees' petition for renewal of their respective motions to dismiss the appeal, therefore, it is not necessary to consider the petition for rehearing, and, after careful consideration of the record now before us, the said petitions are
Denied.
HOBSON, Acting C.J., and McNULTY, J., concur.