Third District Court of Appeal
State of Florida
Opinion filed February 3, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-843
Lower Tribunal No. 14-11578
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Caroline Weiss,
Appellant,
vs.
Adeena Weiss,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.
Billbrough & Marks, P.A., and Geoffrey B. Marks, for appellant.
Torricella Law, PLLC, and Maurice J. Baumgarten, for appellee.
Before LOGUE, HENDON, and GORDO, JJ.
HENDON, J.
Caroline Weiss (“Weiss”) appeals from an order closing the underlying
case, an order denying Weiss’s motion to reopen the case, and an order
denying Weiss’s motion for reconsideration of the order denying her motion
to reopen the case. We reverse and remand.
Facts
This is another episode in the longstanding dispute between the
mother, Weiss, and her daughter, Adeena Weiss Ortiz (“Ortiz”) regarding
property of significant value on Biscayne Bay in Coconut Grove. In 1973,
Weiss and her husband, Jack, bought bayfront lots in Coconut Grove,
numbered 0 through 7 (“the Property”) through their corporation, JAAC, Inc.
That same year, JAAC executed a warranty deed granting the Property to
Weiss and her husband as tenants by the entirety. In 1987, JAAC signed a
warranty deed to Central Bank and Trust company, which in turn executed
a land trust agreement deed to JAAC. Jack died in 1995; JAAC was
administratively dissolved in 1997. Weiss subsequently issued a number of
quitclaim deeds, transfers, and corrective documents involving various lots
comprising the Property. Ortiz filed an action against Weiss, the Estate of
her father, her sister’s trust, and other parties who might claim an interest in
the Property. Ortiz’s Third Amended Complaint, filed in 2016, included two
counts: fraudulent transfer of the Property, and an action to quiet her title to
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the Property. Weiss filed a counterclaim against Ortiz to quiet title and for
slander of title.
Weiss sought to discharge the lis pendens filed by Ortiz against the
Property. The trial court granted in part and denied in part Weiss’s motion
to discharge the lis pendens or for imposition of a bond, declined to
discharge the lis pendens but ordered Ortiz to post a $3,000,000 bond by a
certain date in order to maintain the lis pendens. Ortiz failed to post the
required bond, and the lis pendens was discharged. Ortiz then filed a petition
for writ of certiorari. This Court found in Weiss’s favor, granted Weiss’s
motion for appellate attorney’s fees and remanded to the trial court to fix the
amount. Ortiz v. Weiss, 227 So. 3d 689 (Fla. 3d DCA 2017) (3D17-420).
Following that, the trial court rendered its November 14, 2018 “Final
Judgment as to Plaintiff’s Claims” (emphasis added), in which the trial court
found against Ortiz and dismissed all counts of Ortiz’s third amended
complaint, with prejudice. Further, not only did that order reserve jurisdiction
to determine Weiss’s appellate attorney’s fees ordered by this Court, it also
reserved jurisdiction to determine liability and damages in Weiss’s
counterclaim.
Ortiz appealed from that order. Weiss again prevailed and sought
appellate attorney’s fees in that case, but this Court denied the motion
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without prejudice to Weiss’s right to seek such fees as damages on her
outstanding counterclaim for slander of title. Ortiz v. Weiss, 282 So. 3d 949,
952 (Fla. 3d DCA 2019) (“Finding no error in the order and final partial
judgment, we affirm.”) (emphasis added).
While Ortiz’s second appeal was pending, on March 25, 2019, the trial
court closed the underlying case as to all parties, although Weiss’s
counterclaim remained pending below. When Weiss sought to proceed with
her counterclaim, she discovered that an order closing the case had been
entered. Weiss timely moved to reopen the case, and in an unelaborated
order the trial court denied the motion and denied Weiss’s motion on
rehearing. Weiss’s appeal followed.
Standard of Review
The determination of the finality of an order is a pure question of law
and is subject to de novo review. M.M. v. Fla. Dep’t of Children & Families,
189 So. 3d 134, 137 (Fla. 2016).
Discussion
Ortiz characterizes the November 2018 judgment as “final,” and it was
– for her as Plaintiff. To be deemed final, “an order must demonstrate an
end to the judicial labor.” Hoffman v. Hall, 817 So. 2d 1057, 1058 (Fla. 1st
DCA 2002). “The traditional test for finality is whether the decree disposes
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of the cause on its merits leaving no questions open for judicial determination
except for execution and enforcement, if necessary.” Id. The November
2018 judgment disposed of the entirety of Ortiz’s claims against Weiss, but
reserved jurisdiction to resolve Weiss’s counterclaim for slander of title
against Ortiz. Thus, the 2018 judgment was not final as to Weiss, whose
counterclaim remained pending and still does. See e.g., Marinich v. Special
Edition Custom Homes, LLC, 1 So. 3d 1197, 1199 (Fla. 2d DCA 2009)
(finding the partial final judgment did not resolve the counterclaim for
foreclosure, which counterclaim remained pending in the trial court).
At the conclusion of Ortiz’s two appeals from adverse rulings, the
appellate fee order of entitlement in 3D17-0420 remained outstanding, and
in 3D18-2546, this Court characterized the November 14, 2018 judgment as
a “final partial judgment,” recognizing Weiss’s unlitigated counterclaim
remained to be dealt with. The trial court in its March 2019 closure order,
however, failed to recognize the partial nature of the 2018 judgment, which
was clearly set forth in its style, “Final Judgment as to Plaintiff’s Claims,”
(emphasis added), as well as the internal reservation of jurisdiction over
Weiss’s counterclaims.
Ortiz argues that jurisdictional deadlines preclude reopening the
underlying case, but this assumes that the November 2018 Final Judgment
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was final as to all parties. As it was not, we decline to address this
argument. 1
We therefore reverse the order closing the case and remand with
instructions to reopen the case in order to resolve Weiss’s outstanding
counterclaim.
Reversed and remanded with instructions.
1
We note that the November 2018 judgment does not contain words of
finality, and judicial labor has not concluded in that case. See Coral Gables
Imports, Inc. v. Suarez, 2020 WL 3815516, at *2 (Fla. 3d DCA July 8, 2020)
(“While the use of discrete verbiage is ‘not essential,’ the order must contain
such phrases as ‘hereby enters’ a ‘judgment,’ or ‘similar unequivocal
language of finality’” quoting Monticello Ins. Co. v. Thompson, 743 So. 2d
1215, 1216 (Fla. 1st DCA 1999)).
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