Third District Court of Appeal

State of Florida 

Opinion filed August 3, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-0024

Lower Tribunal No. 15-216

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Marie G. Vital, Individually, and as Personal Representative of the 

Estate of Gertrude B. Vital,

Appellants,

vs.

Summertree Village at the California 

Club Condominium Association, Inc.,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Carlos 

Guzman, Judge.

Marie G. Vital, in proper person, and for the Estate of Gertrude B. Vital,

appellants.

Law Offices of Geoffrey B. Marks, and Geoffrey B. Marks, for appellee.

Before EMAS, SCALES and GORDO, JJ. 

On Partial Confession of Error
2

SCALES, J.

Marie G. Vital (“ Ms.Vital”), for herself and as personal representative 

of the estate of her mother, Gertrude B. Vital, appeals a series of orders and 

judgments related to a condominium lien foreclosure action initiated by 

appellee Summertree Condominium Association, Inc. (“Summertree”).

1

Based on Summertree’s partial confession of error, we reverse the 

foreclosure judgments2 as having been entered prematurely; we affirm the 

challenged interlocutory orders underlying the final judgments of foreclosure; 

and dismiss, for lack of jurisdiction, that portion of Vital’s appeal challenging 

an interlocutory order directed toward counts in Vital’s counterclaim. 

I. Relevant Background

Ms. Vital purchased her Summertree condominium unit in 2007. In 

2012, she began complaining to the Summertree property manager, the 

condominium association, and various governmental agencies that her unit 

was infested with mold due to a common area water leak. She also 

1 Only Ms. Vital owns the subject condominium unit and only Ms. Vital was 

named as the defendant in Summertree’s foreclosure action. Both Ms. Vital 

and the estate, though, are counter-plaintiffs in their counterclaim against 

counter-defendant Summertree. We refer to Ms. Vital and the estate together 

as “Vital” when referencing their counterclaim.

2 Although Summertree filed only one foreclosure case, for reasons not 

apparent from the record, the trial court entered duplicate, identical final 

judgments on December 3, 2019, and December 6, 2019.
3

complained that the unit flooded from seeping groundwater. Her complaints 

brought her no satisfaction so, in 2014, Ms. Vital ceased paying her monthly 

maintenance fee, and she did not pay a subsequent monthly special 

assessment. 

In January 2015, Summertree filed a foreclosure action against Ms. 

Vital for the unpaid fees. Over the next fifteen months, Ms. Vital and Vital 

filed several responsive pleadings and counterclaims. On November 1, 

2016, the trial court conducted a hearing on Summertree’s motion to dismiss 

Vital’s third amended counterclaim and to strike Ms. Vital’s third amended 

affirmative defenses. The trial court entered two orders on November 1, 

2016: (i) dismissing three of Ms. Vital’s affirmative defenses, with prejudice 

(negligence, negligence of third parties, and impossibility of performance), 

while dismissing four other affirmative defenses, without prejudice, and

allowing Ms. Vital twenty days to amend her pleading; and (ii) dismissing two

counts of Vital’s counterclaim, with prejudice (defamation and negligent 

retention of property manager), while dismissing two other counts of Vital’s 

counterclaim, without prejudice, again allowing Vital twenty days to amend 

their pleading.3

3 We note that, in the Notice of Appeal, Ms. Vital and Vital mis-identify one 

of these November 1, 2016 orders as a November 3, 2016 order.
4

Then, on November 3, 2016, after a hearing on Summertree’s motion 

for summary judgment on its foreclosure claim, the trial court entered two 

additional orders. The trial court: (i) granted partial summary judgment in 

Summertree’s favor concluding that Ms. Vital had failed to pay the monthly 

maintenance fees and special assessments, but specifically leaving for trial 

the determination of the amount Ms. Vital owed in these unpaid assessments 

(the “Partial Summary Judgment Order”); and (ii), on Summertree’s ore 

tenus motion, entered an order severing, without prejudice, Vital’s

counterclaim from Summertree’s foreclosure claim.

In July 2018, Ms. Vital and Vital filed their fourth amended answer and 

counterclaim. In this pleading, Ms. Vital asserted five affirmative defenses to 

Summertree’s foreclosure claim: unclean hands, selective enforcement, 

promissory estoppel, fraud, and setoff; and Vital asserted six counterclaims

against Summertree: breach of contract, negligence, intentional infliction of 

emotional distress, tortious interference with a contractual relationship, 

breach of implied covenants of good faith and fair dealing, and breach of 

fiduciary duty. On October 1, 2018, the trial court entered an omnibus order 

on outstanding motions (the “Omnibus Order”). In the Omnibus Order, the 

trial court dismissed certain counterclaims and struck certain affirmative 

defenses. Thus, after the various orders, what remains pending are Ms. 
5

Vital’s affirmative defenses – directed toward Summertree’s foreclosure 

claim – of unclean hands and setoff and four counts of Vital’s counterclaim 

against Summertree: Count I (breach of contract), Count II (negligence), 

Count III (intentional infliction of emotional distress), and Count IV (tortious 

interference with a contractual relationship). 

Then, in December 2019, notwithstanding Ms. Vital’s pending 

affirmative defenses, a successor trial judge entered what it characterized 

as “final” foreclosure judgments for Summertree purportedly ending the 

judicial labor involved with Summertree’s foreclosure claim. The successor 

trial judge apparently adjudicated Summertree’s pending motion for 

summary judgment without consideration of the surviving affirmative 

defenses of unclean hands and setoff. These judgments not only affixed 

damages and attorney’s fees associated with Summertree’s foreclosure 

claim, but also set a foreclosure sale date for Ms. Vital’s condominium. This 

appeal timely followed. 

II. Analysis

Ms. Vital and Vital appeal the final foreclosure judgments as well as 

several interlocutory orders. As described below, each of the challenged 

interlocutory orders relates either to: (i) Summertree’s foreclosure claim

against Ms. Vital, a claim that presumably was adjudicated with finality by 
6

virtue of the final foreclosure judgments, or (ii) Vital’s counterclaim. As our 

appellate jurisdiction is dependent upon the category under which each 

challenged order falls, we address each category of challenged order in turn, 

beginning with the final judgments of foreclosure. 

A. Final judgments of foreclosure

Notwithstanding how the trial court characterized the final foreclosure 

judgments, they are not “final.” They do not adjudicate with finality 

Summertree’s foreclosure claim. Irrespective of whether Vital’s 

counterclaims are permissive or compulsory,4 the final foreclosure 

judgments do not adjudicate the pending affirmative defenses to 

Summertree’s foreclosure claim and, therefore, judicial labor remains with 

regard to Summertree’s foreclosure claim. Because these orders are not 

final, we ordinarily would not have appellate jurisdiction to review them. See

Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So. 3d 559, 561-

62 (Fla. 3d DCA 2015).

In this case, however, we do have appellate jurisdiction to review the 

challenged orders because they purport to adjudicate, with finality, 

Summertree’s foreclosure claim. They are in the form of a final judgment, 

4 We express no opinion as to whether Vital’s counterclaims are permissive 

or compulsory.
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affix damages, are fully executable, and establish a foreclosure sale date. 

Indeed, if Ms. Vital had not appealed the orders, the foreclosure sale 

presumably would have ensued. Hence, as Summertree commendably and 

correctly concedes, we have appellate jurisdiction to review these orders, 

and we are compelled to reverse them. See Del Castillo v. Ralor Pharmacy, 

Inc., 512 So. 2d 315, 319 (Fla. 3d DCA 1987) (“[I]t is . . . improper to render 

an order in the form of an ordinary final money judgment, while contradictorily 

and simultaneously leaving an issue for future adjudication.”); see also

Surijon v. Zarria, 278 So. 3d 328, 329 (Fla. 3d DCA 2019); Baumann v. 

Intracoastal Pac. Ltd. P’ship, 619 So. 2d 403, 404 (Fla. 3d DCA 1993); 

Pointer Oil Co. v. Butler Aviation of Miami, Inc., 293 So. 2d 389, 390-91 (Fla. 

3d DCA 1974).5

We therefore reverse the December 3, 2019, and December 6, 2019 

final judgments of foreclosure.

B. Interlocutory orders related to final judgments of foreclosure

5 We note that some courts, including this Court, have reviewed such 

prematurely entered orders under a certiorari, rather than an appellate, 

standard and have quashed, rather than reversed, the challenged orders. 

See e.g., Kratos Holdings, LLC v. Direct Invs. Int’l, LLC, 323 So. 3d 334, 336 

(Fla. 3d DCA 2021); Am. Franchise Grp. LLC v. Gastone, 319 So. 3d 147, 

150 (Fla. 3d DCA 2021); People’s Tr. Ins. Co. v. Gonzalez, 318 So. 3d 583, 

583 (Fla. 3d DCA 2021); East Ave., LLC v. Insignia Bank, 136 So. 3d 659, 

665 (Fla. 2d DCA 2014). We express no opinion in this decision as to which 

is the better practice.
8

Because we have jurisdiction to review the final judgments of 

foreclosure, for the purposes of this proceeding, we treat the final judgments 

of foreclosure as “partial final judgments” under Florida Rule of Appellate 

Procedure 9.110(k) and, therefore, we necessarily have jurisdiction to review 

the several challenged interlocutory orders related to Summertree’s 

foreclosure claim that are subsumed in those final foreclosure judgments. 

Fla. R. App. P. 9.110(k) (“The scope of review of a partial final judgment may 

include any ruling or matter occurring before filing of the notice of appeal so 

long as such ruling or matter is directly related to an aspect of the partial final 

judgment under review.”). Specifically, we have appellate jurisdiction to 

review the following interlocutory orders challenged in Ms. Vital’s initial brief:6

(i) the November 1, 2016 order striking, with prejudice, Ms. Vital’s affirmative 

defenses alleging negligence, negligence of third parties, and impossibility 

of performance; (ii) the November 3, 2016 order severing, without prejudice, 

6 While Ms. Vital and Vital’s Notice of Appeal identifies (and attaches) the 

Omnibus Order as a challenged order, their initial brief contains no argument 

directed toward any of the rulings contained in the Omnibus Order. 

Therefore, Ms. Vital has waived any arguments she might have directed to 

those portions of the Omnibus Order related to Summertree’s foreclosure 

claim. See V.T. v. Liberty Dental Plan of Fla., Inc., 338 So. 3d 989, 990 (Fla. 

3d DCA 2022); Tillery v. Fla. Dep’t of Juvenile Justice,104 So. 3d 1253, 

1255-56 (Fla. 1st DCA 2013).
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appellee’s foreclosure claim from Vital’s counterclaim; and (iii) the Partial 

Summary Judgment Order.

Without further discussion or elaboration, we affirm these challenged

interlocutory orders related to Summertree’s foreclosure claim.7

C. Interlocutory orders related to Vital’s counterclaim

Finally, in the initial brief, Vital also seeks appellate review of the trial 

court’s November 1, 2016 interlocutory order that struck Vital’s claims (in the

third amended counterclaim) of defamation and negligent hiring.

8 We lack 

appellate jurisdiction to review this interlocutory order directed toward counts 

contained in Vital’s pending counterclaim. Almacenes El Globo de Quito, 

7 With regard to the Partial Summary Judgment Order, it bears noting that 

we affirm those portions of the order that find it to be “undisputed that 

Defendant failed to pay her regular and special assessments,” and that the 

amount of such assessments “is at issue and will be determined at trial.” 

Because Vital’s unclean hands and setoff affirmative defenses remain to be 

litigated, this order does not constitute a partial summary judgment of 

Summertree’s foreclosure claim as to either liability or damages.

8 As we suggested in footnote 6, supra, there is a contradiction between Ms. 

Vital and Vital’s Notice of Appeal and their briefing. The Omnibus Order is 

identified as a challenged order in the Notice of Appeal, yet the initial brief 

contains no argument directed toward the Omnibus Order. While, as noted 

in footnote 6, Ms. Vital has waived unargued challenges to those portions of 

the Omnibus Order directed toward Summertree’s foreclosure action, Vital

has not waived the ability to appeal those portions of the Omnibus Order 

adjudicating interlocutory issues related to Vital’s counterclaim. Such

challenges ripen only upon a final adjudication of Vital’s counterclaim.
10

S.A., 181 So. 3d at 561-62. We, therefore, dismiss Vital’s appeal to the 

extent that Vital seeks review of this order, and express no opinion as to 

whether the order was properly entered. 

Affirmed in part, reversed in part, dismissed in part.