No. 70-632 | Fla. Dist. Ct. App. | Apr 2, 1971
By interlocutory appeal we are asked to review an order denying appellant Wynn’s motion for summary judgment as to Count II of the complaint.
The complaint sought compensatory and punitive damages. Count I alleged that the defendants, acting pursuant to a conspiracy, carried into effect a scheme to defraud the plaintiff of its assets by the device of gaining control over the corporate affairs and diverting its assets to the defendants’ personal use. Count II was essentially identical with the additional allegation that the defendants had gained control of the plaintiff corporation through fraudulent means. Although the complaint prayed that the defendants be enjoined from filing suits against the plaintiff, the cause of action was and remains simply a tort action for damages rather than an action formerly cognizable in equity. As such, the order denying defendant Wynn’s motion for summary judgment on Count II is not reviewable under Rule 4.2, F.A.R., 32 F.S.A. It may be reviewed upon full appeal from final judgment if properly assigned as error.
The appeal is dismissed.