final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, No. 14-28096 Rosa I. Rodriguez, Judge.
Offices of Gregory M. Ochalek PLLC and Gregory M. Ochalek,
Offices of Mendez & Mendez, P.A., Sergio L. Mendez, and
Daniel J. Mendez, for appellees.
ROTHENBERG, SALTER and LUCK, JJ.
Gomez appeals a nonfinal order denying his motion to dismiss
S&I Properties, LLC and Jenesco Partners, LLC's
complaint based on an arbitration clause in the parties'
contract. We dismiss the appeal for lack of
Properties entered into a contract to sell commercial real
estate (6113 Southwest 8th Street) to American Land for $4,
725, 000. Jenesco Partners, likewise, entered into a contract
to sell commercial real estate (6200 Southwest 8th Street) to
American Land for $3, 685, 000. The transactions were
conditioned upon American Land successfully closing and
conveying a separate piece of property (3905 Gem Twist Court)
to a third party for $9, 428, 175. The purchase and sale
agreements contemplated an exchange transaction in which
American Land would sell the Gem Twist property and use the
funds to purchase the Eighth Street properties. Both
contracts contained broad arbitration clauses, stating that
"[a]ny controversy or claim arising out of or relating
to this contract shall be settled by neutral binding
arbitration." Gomez, who was the manager for American
Land, signed on the company's behalf.
Land closed on the Gem Twist property on October 9, 2014 and
closing for the Eighth Street properties was scheduled for
October 20. Prior to the October 20 closing, however, S&I
Properties and Jenesco became aware that American Land would
not close on their properties and sent a demand letter to
American Land. Ultimately, American Land failed to close on
the Eighth Street properties even though it had the money
from the sale of the Gem Twist property.
Properties and Jenesco sued American Land for breach of
contract (counts 1 and 2) and specific performance (count 3
and 4). As to both American Land and Gomez, the complaint
alleged fraud (count 5), stating that Gomez
"fraudulently diverted and transferred the exchange
property funds [$9, 428, 175] for his own purposes and did
not apply the funds to the purchase of the [Eighth Street]
moved to dismiss the complaint because he was not served, he
could not be sued in his individual capacity without
allegations piercing the corporate veil, and the parties'
contract was governed by an arbitration clause. The trial
court denied the motion. Gomez appeals the trial court's
nonfinal order denying his motion to dismiss.
"a defendant cannot appeal a nonfinal order which denies
a motion to dismiss." Haridopolos v. Citizens for
Strong Sch., Inc., 81 So.3d 465, 468 (Fla. 1st DCA 2011)
(en banc) (quotation omitted). The Florida Constitution,
however, grants the district courts of appeal jurisdiction to
"review" some "interlocutory orders, "
but only to "the extent provided by rules adopted by the
supreme court." Fla. Const. art. V, § 4(b)(1).
Florida Rule of Appellate Procedure 9.130 is the rule adopted
by the Florida Supreme Court, and it lists the nonfinal
orders that are appealable to the district courts.
contends that we have jurisdiction to review the trial
court's order denying his motion to dismiss because Rule
9.130(a)(3)(C)(iv) provides for "[a]ppeals . . . of
non-final orders . . . that . . . determine . . . the
entitlement of a party to arbitration." Fla. R. App. P.
9.130(a)(3)(C)(iv). By denying his motion to dismiss based on
the arbitration clause in the real estate contracts, Gomez
argues, the trial court necessarily determined that he was
not entitled to arbitrate the fraud claim.
times, in Southeastern Title and Insurance Co. v.
Curtis, 155 So.2d 855 (Fla. 3d DCA 1963), Weber v.
Bonilla-Mathe, 807 So.2d 170 (Fla. 3d DCA 2002), and
Hopewell, LLC v. Alarion Bank, 84 So.3d 1073 (Fla.
1st DCA 2012), this court and another district court have
addressed this argument (an order denying a motion to dismiss
based on an arbitration clause is the same for appellate
jurisdiction purposes ...