Adweiss LLLP. v. Daum

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Adweiss LLLP, etc., et al., Appellants, v. John A. Daum, et al., Appellees.

No. 3D22-787

Florida Court of Appeals, Third District

July 26, 2023

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Vivianne Del Rio, Judge. Lower Tribunal No. 20-15407

Law Office of Dennis Grossman, and Dennis Grossman; Law Office of Max R. Price, P.A., and Max R. Price, for appellants.

Baritz &Colman LLP, and Andrew Thomson and Heather Cooper (Boca Raton), for appellee TD Ameritrade, Inc.; Zumpano Castro PLLC, and Emilio Dominguez, for appellees Debra Roth, Bradley Daum and Marcia Daum.

Before FERNANDEZ, SCALES, and BOKOR, JJ.

SCALES, J.

In these proceedings supplementary brought pursuant to section 56.29 of the Florida Statutes, appellants Adweiss LLLP and Adweiss LLC (together, "Adweiss"), the judgment creditors and plaintiffs below, seek to appeal an April 8 2022 trial court order granting appellee, co-defendant below TD Ameritrade, Inc.'s ("TD Ameritrade") June 15, 2021 motion to dismiss Adweiss's Amended Supplemental Complaint. Adweiss's pleading sought a judgment holding TD Ameritrade liable for $981,000, plus statutory interest owed to Adweiss by the judgment debtors and co-defendants below, John A. Daum and Daum's wholly-owned corporation, JAD Services LLC.^[1]

TD Ameritrade's motion to dismiss Adweiss's Amended Supplemental Complaint argued two bases for dismissal: (i) Adweiss's claims against TD Ameritrade under Florida's Uniform Fraudulent Transfer Act ("FUFTA") were time-barred; and (ii) Adweiss's FUFTA claims failed to state a cause of action upon which relief could be granted. The trial court's April 8, 2022 order granted TD Ameritrade's motion to dismiss on both grounds. Specifically, with regard to TD Ameritrade's statute of limitations argument, the trial court dismissed Adweiss's Amended Supplemental Complaint "with prejudice." But the lower court also dismissed the pleading on TD Ameritrade's "failure to state a cause of action" argument "without prejudice," giving (i) Adweiss leave to file a Second Amended Supplemental Complaint within twenty days, and (ii) TD Ameritrade twenty days in which to respond to Adweiss's future pleading.

On April 28, 2022, Adweiss filed its Second Amended Supplemental Complaint and, shortly thereafter, filed its notice of appeal to this Court, challenging the trial court's dismissal order. Adweiss's Second Amended Supplemental Complaint remains pending below. Recognizing that the challenged order may not constitute a final, appealable order, Adweiss's notice of appeal contained the following "qualifying" footnote:

This appeal is taken as a protective measure, in the event the Third District Court of Appeal considers the appealed-from Order to be an [sic] final appealable Order. It is possible the Third District Court of Appeal may consider the appealed-from Order to be a final appealable Order because in part it dismissed Plaintiffs-Appellants' claim against TD Ameritrade, Inc., "with prejudice." On the other hand, it is possible the Third District Court of Appeal may consider the appealed-from Order to be a non-final, non-appealable Order, because in part it dismissed Plaintiffs-Appellants' claim against TD Ameritrade, Inc., with leave to replead, which Plaintiffs-Appellants did.... In light of this uncertainty, Plaintiffs-Appellants take this appeal to protect their rights, in an abundance of caution, and respectfully request the understanding of this Court and of the Third District Court of Appeal.

It is axiomatic that our appellate jurisdiction is generally limited to reviewing final orders and those non-final orders specifically contained in Florida Rule of Appellate Procedure 9.130's schedule of appealable, nonfinal orders. See Fla. R. App. P. 9.030(b...