Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A.

THREADGILL, Judge. Philip and Virginia Johnson appeal a final order dismissing their counterclaim with prejudice. We reverse. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., sued the Johnsons for attorneys’ fees earned by litigation in 1984 and 1985. The Johnsons counterclaimed for malpractice committed during the litigation and during real property transactions giving rise to the litigation. The Johnsons also filed a third party complaint against George Swartz, who was associated with the law firm at the time of the malpractice. The trial court, in a single order, dismissed the counterclaim and the third party complaint based on the defense of statute of limitations. The trial court also denied the Johnsons’ motion to amend their counterclaim. The Johnsons attempted to appeal the nonfinal order dismissing their counterclaim, but this court denied the appeal for lack of jurisdiction. Johnson v. Allen, Knudsen, et al., 557 So.2d 872 (Fla. 2d DCA 1990) (Johnson I). The order however was final as to Swartz, and this court accepted review in Johnson v. Allen, Knudsen, et al., 566 So.2d 327 (Fla. 2d DCA 1990) (Johnson II). Thereafter, the law firm dismissed its complaint, and the order of dismissal of the Johnsons’ counterclaim became final and appealable. This order is before us again for review. We reverse for the same reasons stated in Johnson II: that is, that the trial court erred in going outside the pleadings to determine the effect of the statute of limitations defense, and in denying the John-sons’ motion to amend their counterclaim. Because this decision on the procedural issues is dispositive, we need not address the Johnsons’ other issues on appeal. We therefore vacate the trial court’s order dismissing the counterclaim with prejudice and remand for further proceedings consistent with this opinion. RYDER, A.C.J., and LEHAN, J., concur.