May 21, 2019

Bresky Law Obtains Dismissal of Appeal for Lack of Jurisdiction

April 8, 2019*

Bresky Law recently assisted a client in obtaining dismissal of an appeal of an order granting summary judgment on the opposing party’s counterclaims in a case arising from a failed real estate transaction.

Our client entered into a contract for sale of a home. The buyer failed to close on the purchase of the property and our client filed a complaint seeking to retain the buyer’s deposit as liquidated damages for the buyer’s breach of the contract. The buyer filed a counterclaim asserting that our client had breached the same contract by failing to disclose alleged issues with the property, and for fraud and negligent misrepresentation for the alleged nondisclosure. Our client obtained summary judgment in his favor on the buyer’s counterclaims, and the buyer appealed.

The court of appeal promptly ordered the buyer to file a brief statement explaining the basis for the appellate court’s subject matter jurisdiction. The buyer filed his statement arguing that the Summary Judgment Order was final in nature and appropriately appealable. With the help of trial counsel, we filed a Response on behalf of our client arguing that the appellate court did not have jurisdiction because the Summary Judgment Order only granted judgment as to the buyer’s compulsory counterclaims. We pointed out that an order dismissing a compulsory counterclaim is not appealable until a final disposition of the original cause on the merits.

The appellate court dismissed the appeal without prejudice for the buyer to refile once the circuit court has disposed of all the remaining interrelated claims in the underlying case. This result ended the appellate proceeding in favor of our client.

* Not final until disposition of any timely filed motions for rehearing.