CHRISTOPHER LUSBY, DEBORAH LUSBY AND DONALD LUSBY

v.

CARL M. CANEVARI AND C. GENE CANEVARI

Fla. 6th DCA | 2025-06-06

No. 2024-0703

Estrada, J., Traver, C.J., Stargel, J., Wozniak, J.

2025 FL 4773 Florida District Court of Appeal, Sixth District (2025)

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Holding

A judgment granting summary judgment on some counts is nonfinal and nonappealable when factually and legally interrelated counts and a compulsory counterclaim remain pending in the trial court.

Headnotes

[1] A judgment on some counts of a complaint is nonfinal and nonappealable when factually and legally interrelated counts remain pending in the trial court.

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Key Quotes

“when 'factually and legally interrelated counts' remained pending in the circuit court, judgment was not final or appealable”
Court citing E. Ave., LLC v. Insignia Bank, 136 So. 3d 659, 661 (Fla. 2d DCA 2014)

Facts & Procedural History

The Lusbys and Canevaris disputed an easement for ingress and egress across the Lusbys' property. The trial court granted summary judgment for the Can…

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Topics

Express Easement Easement For Ingress And Egress Prescriptive Easement Compulsory Counterclaim

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Per_curiam

Per Curiam

SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 6D2024-0703 Lower Tribunal No. 2022-CA-000057 _____________________________

CHRISTOPHER LUSBY, DEBORAH LUSBY, and DONALD LUSBY, Appellants,

v. CARL M. CANEVARI and C. GENE CANEVARI, Appellees. _____________________________

Appeal from the Circuit Court for Highlands County. Peter F. Estrada, Judge. June 6, 2025

PER CURIAM.

This is a case involving a dispute over an easement for ingress and egress across portions of property owned by Appellants, the Lusbys. Appellees, the Canevaris, filed a three-count amended complaint seeking: Count I, declaration of an express easement; Count II, injunctive relief precluding the Lusbys from interfering with their use of the easement; and Count III, alternatively, to establish a prescriptive easement.¹ The trial court granted summary judgment in favor of the

DISMISSED.

TRAVER, C.J., and STARGEL and WOZNIAK, JJ., concur.

2 “A compulsory counterclaim is ‘a defendant’s cause of action arising out of the transaction or occurrence that formed the subject matter of the plaintiff’s claim.’” Londono v. Turkey Creek, Inc., 609 So. 2d 14, 19 (Fla. 1992) (quoting Yost v. Am. Nat’l Bank, 570 So. 2d 350, 352 (Fla. 1st DCA 1990)).

William C. Davell and Jennifer H. Wahba, of Tripp Scott, P.A., Fort Lauderdale, for Appellees.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING

AND DISPOSITION THEREOF IF FILED

Footnotes

1 We previously reversed an order granting a temporary injunction in favor of the Canevaris. Lusby v. Canevari, 363 So. 3d 233 (Fla. 6th DCA 2023).

2 Canevaris on Counts I and II, declaring the existence of an express easement and permanently enjoining the Lusbys from interfering with the Canevaris’ right to use the easement. The summary judgment order did not address Count III. The Lusbys now bring the instant appeal challenging the trial court’s determination that a portion of the easement had been moved by deed from its original location to the northern boundary of the subject property. However, because Count III remains pending in the trial court, the order granting summary judgment on Counts I and II is nonfinal and nonappealable. See E. Ave., LLC v. Insignia Bank, 136 So. 3d 659, 661 (Fla. 2d DCA 2014) (holding that when “factually and legally interrelated counts” remained pending in the circuit court, judgment was not final or appealable). Additionally, the Lusbys’ two-count amended counterclaim for declaratory and injunctive relief arising out of the same dispute also remains pending below. See Marinich v. Special Edition Custom Homes, LLC, 1 So. 3d 1197, 1199 (Fla. 2d DCA 2009) (“Generally, the existence of a compulsory counterclaim will render a judgment on the original complaint nonfinal for appeal purposes.”).2

3 Devin R. Maxwell, of Law Office of Devin Maxwell, Okeechobee, and Scott W. Zappolo, of Zappolo Law, P.A., Palm Beach Gardens, for Appellants.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Authorities Cited

Javier H. Londono, M.D. v. Turkey Creek, Inc., 609 So. 2d 14 (Fla. 1992)
Yost v. Am. Nat'l Bank, 570 So. 2d 350 (Fla. 1st DCA 1990)
E. Ave., LLC v. Insignia Bank, 136 So. 3d 659 (Fla. 2d DCA 2014)
Marinich v. Special Edition Custom Homes, LLC, 1 So. 3d 1197 (Fla. 2d DCA 2009)
Lusby v. Canevari, 363 So. 3d 233 (Fla. 6th DCA 2023)

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CHRISTOPHER LUSBY, DEBORAH LUSBY AND DONALD LUSBY v. CARL M. CANEVARI AND C. GENE CANEVARI