Dennis v. Pavlakos , 464 So. 2d 1323 ( 1985 )

464 So. 2d 1323 (1985)

Peter Lee DENNIS, et al., Appellants,
v.
Louis PAVLAKOS, et al., Appellees.
Louis PAVLAKOS, et al., Appellants,
v.
CENTURY 21 COMPASS POINTS, INC., Etc., Appellee.

Nos. 84-684, 84-787.

District Court of Appeal of Florida, Fifth District.

March 14, 1985.

Kenneth N. Jacoby of Jacoby, Burguet & Deese, Satellite Beach, for Peter Lee Dennis, Nadine Dennis and Jley, Inc.

Nicholas F. Tsamoutales, Palm Bay, for Louis Pavlakos and Mary Pavlakos.

Henry J. Martocci, Merritt Island, for Century 21 Compass Points, Inc., Melvin Ezell and Beverly Vivona.

ORFINGER, Judge.

The final order dismissing the third party complaint is affirmed because it does not appear that the third party defendants were parties to the contract sued upon.

Although we previously denied appellee's motion to dismiss these consolidated appeals, a review of the complete record makes it clear that the order dismissing the counterclaims of the respective defendants is a non-final non-appealable order. If the counterclaim is properly styled as such (as opposed to an affirmative defense), it clearly is compulsory because it meets the test set forth in City of Mascotte v. Florida Municipal Liability Self Insurers Program, 444 So. 2d 965 (Fla. 5th DCA 1983), review denied, 451 So. 2d 847 (Fla. 1984). An order dismissing a compulsory counterclaim is a non-final, non-appealable order. S.L.T. Warehouse v. Webb, 304 So. 2d 97 (Fla. 1974); Fetters v. United States Fire Insurance Company, 399 So. 2d 427 (Fla. 5th DCA 1981). We therefore dismiss the appeal from that portion of the order dismissing the counterclaims, without prejudice to the right of appellants to present this issue upon an appeal from a final judgment in this cause.

AFFIRMED in part; DISMISSED in part.

COBB, C.J., and DAUKSCH, J., concur.