HERITAGE PAPER COMPANY, INC., APPELLANT,
v.
FRED FARAH, EDWARD FARHAT, ROBERT H. TAYLOR, SR. AND WILLIAM H. TUCK, SR., APPELLEES
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Heritage Paper Company appeals from an order directing a full accounting to determine whether it underpaid former employees on a commission basis. The court dismisses the appeal as non-final and non-appealable, holding that an order merely entitling parties to an accounting does not determine liability under Florida Appellate Procedure Rule 9.130(a)(3)(C)(iv).
The order is non-final and non-appealable. An order that merely entitles a party to an accounting to discover whether liability exists does not affirmatively determine the issue of liability under Rule 9.130(a)(3)(C)(iv); it merely allows the case to proceed toward a potential liability that may never materialize.
[1] An order directing an accounting is generally not a final, appealable order.
[2] Under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), review of non-final orders is limited to those that affirmatively determine the issue of liability in favor…
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Join FLexlaw to unlock all legal intelligence“orders finding an entitlement to an accounting, and ordering that the same be had, were non-final but appealable orders”
Describes the pre-1977 rule that Heritage relied upon, which was changed by the 1977 amendments
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Join FLexlaw to unlock all legal intelligenceHeritage Paper Company and former employees (Farah, Farhat, Taylor, and Tuck) disputed whether the company underpaid commissions owed to them. The tri…
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ERVIN, Chief Judge.
Appellant, Heritage Paper Company, Inc. (Heritage), appeals from the entry of an order finding that appellees, former employees, directors and stockholders of Heritage, were entitled to an accounting to determine whether Heritage underpaid appel-lees who were to be compensated on a commission basis. Finding the order in question to be both non-final and non-appeala-ble, we revisit appellees’ motion to dismiss and accordingly grant it.
Following the trial court’s order directing a partial accounting for a five-month period, the trial court, on March 24, 1983, entered an order directing a full accounting for that time between September 30, 1973 and February 11, 1977. In addition, the court rejected exceptions, filed by both parties, to an accounting committee’s report finding a tentative underpayment of $1,143.66 for the five-month period, and directed that the costs of the accounting be borne by the parties, with the appellees responsible for four-fifths of that cost and Heritage responsible for the remainder. Heritage appeals from this order, contending it is a non-final but appealable order in that it determines the issue of liability in favor of appellees. Appellees responded by moving to dismiss the appeal, arguing that the order in no way determined the issue of liability. Although this court initially denied the motion, a complete review of the issues and arguments raised by the parties, together with the appendices submitted, now convinces us that appellees are correct and that the order is in fact non-appealable.
Cases interpreting and applying pre-1977 rules of appellate procedure, relating to interlocutory appeals,1 held that orders finding an entitlement to an accounting, and ordering that the same be had, were non-final but appealable orders. See McCann Plumbing Co. v. Plumbing Industry Program, Inc., 105 So. 2d 26 (Fla. 3d DCA 1958); Carberry v. Foley, 206 So. 2d 425 (Fla. 3d DCA 1968); A-1 Truck Rentals, Inc. v. Vilberg, 222 So. 2d 442 (Fla. 3d DCA 1969). In 1977, however, procedures for taking interlocutory appeals were extensively altered to provide for review of only a limited group of non-final orders “based upon the necessity or desirability of expeditious review.” 32 Fla.Stat.Ann. 387, 1977 Committee Notes (1983). In particular, Florida Rule of Appellate Procedure 9.130(a)(3) now provides:
(3) Review of non-final orders of lower tribunals is limited to those which:
(A) concern venue;
(B) grant, continue, modify, deny or dissolve injunctions, or refuse to modify or dissolve injunctions;
(C) determine:
(i) jurisdiction of the person;
(ii) right to immediate possession of property;
(iii) right to immediate monetary relief or child custody in domestic relations matters; or (iv) the issue of liability in favor of a party seeking affirmative relief.
(e.s.). Post-1977 cases have generally interpreted rule 9.130(a)(3)(C)(iv) strictly, so as to limit such review to those orders which affirmatively determine the issue of liability in favor of a party seeking such relief. See State Farm Mutual Automobile Insurance Co. v. Morris, 370 So. 2d 828, 829 (Fla. 1st DCA 1979) (order determining inapplicability of insurance policy exclusionary clause did not determine issue of liability); American Heritage Institutional Securities, Inc. v. Price, 379 So. 2d 420, 421 (Fla. 5th DCA 1980) (order determining sufficiency of allegations of class action not a determination of liability). But see Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla. 3d DCA 1981), approved, 411 So. 2d 872 (Fla.1982) (order denying motion to vacate default does determine liability). If, however, an order does nothing more than to allow a cause to “proceed towards a potential liability as yet undetermined, and one which may never be established,” no liability is determined and such an order is non-appealable. Price, 379 So. 2d at 421 (e.s.).
In this case, Heritage is entitled to appellate review of the order of March 24 only if it can be said that this non-final order affirmatively determines the issue of liability in favor of appellees. Our review of the order in question leads to the conclusion that no such determination has been made at this stage of the accounting procedure.2 At most the order decides that appellees are now entitled to a full accounting in order to discover therefrom if any liability for unpaid or underpaid commissions exists. After an accounting of Heritage’s records for a five-month period, the accounting committee found discrepancies totaling $1,143.66. Although that finding suggests that appellees may have been underpaid, it is entirely conceivable that once the accounting for the five-year period is completed, the final result may establish that Heritage owes nothing. Therefore, as in Price, the order does nothing more than to allow this case to proceed toward a potential, but as yet undetermined liability, which may, in fact, never materialize. As such, it is non-appealable.
In reaching our conclusion we are strongly persuaded by the rationale of Morton v. City of Miami Beach, 376 So. 2d 279 (Fla. 3d DCA 1979), in which an accounting was sought to determine the existence and extent of alleged rent overcharges. An accounting for the calendar year 1975 was ordered and, in a later order from which an appeal was taken, a similar accounting was ordered for the calendar year 1976. In dismissing the appeal, the court reasoned that the order for accounting was clearly not an appealable, final order because the judicial labor was not at an end. 376 So. 2d at 281. At the same time, however, the order was found to be non-final and non-ap-pealable in that it was merely “... a partial accounting order ... which in no way decides a liability issue in favor of plaintiff-appellant .... ” Id. Finally, the court declined to treat the appeal as a petition for writ of certiorari, finding that appellants would have an adequate remedy by direct appeal once a final judgment was eventually entered.
Although the Morton case involved an order for a partial accounting for a one-year period, we find the reasoning and conclusions of that case are fully applicable to this situation where the court ordered a full accounting for the five-year period in dispute. Because, as the Morton court observed, “piecemeal appeals” should not be entertained, this appeal is dismissed without prejudice to the parties’ rights to raise these issues on direct appeal from the final order entered.
THOMPSON and NIMMONS; JJ., concur. . Florida Appellate Procedure Rule 4.2 is worded far differently from its later amended counterpart, rule 9.130(a)(3). That rule, quoted infra, is far more restrictive in its application than the former rule.
. An action for accounting is an equitable procedure which normally calls for a two-stage proceeding: “[Fjirst for the establishment of the right or basis for the accounting with the actual accounting following in accordance with the earlier determination.” A-1 Truck Rentals, Inc. v. Vilberg, 222 So. 2d 442, 444 (Fla. 3d DCA 1969). It is only after the accounting is actually held that the court must “balance the equities, adjust the accounts of the parties, and render complete justice between them.” F.A. Chastain Construction, Inc. v. Pratt, 146 So. 2d 910, 913 (Fla. 3d DCA 1962). Given this unique procedure, it is clear that at the conclusion of the first stage — that is the determination of entitlement to an accounting — no determination of liability is as yet made.
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Miami Columbus, Inc. v. Zahid A. Ramlawi, 687 So. 2d 1378 (Fla. 3d DCA 1997)…ng merely that the partnership existed does not determine anyone’s liability, and is therefore now unreviewable under the rule or otherwise. See De Shlesinger v. De Sleyzynger, 653 So. 2d 1135 (Fla. 3d DCA 1995); Heritage [*1380] Paper Co. v. Farah, 440 So. 2d 389 (Fla. 1st DCA 1988); Morton v. City of Miami Beach, 376 So. 2d 279 (Fla. 3d DCA 1979). Moreover, these issues are closely intertwined with the verdicts the appellants claim are now properly before us. For example, the jury found that Lipsig and Rah…
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Daddono v. Domenic Miele & Forte Equity, Inc., 69 So. 3d 320 (Fla. 4th DCA 2011)…lary. Rather, it was pursuant to an “action for accounting,” which gave the trial court broad discretion to evaluate all monies owed and due between Miele and Forte, and to settle the accounts between them. See generally Heritage Paper Co. v. Farah, 440 So. 2d 389, 391 n. 2 (Fla. 1st DCA 1983) (discussing the procedure involved in an “action for accounting”); A-1 Truck Rentals, Inc. v. Vilberg, 222 So. 2d 442, 444 (Fla. 3d DCA 1969) (same); F.A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910, 913 (Fla. 3d DC…
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de Shlesinger v. de Sleyzynger, 653 So. 2d 1135 (Fla. 3d DCA 1995)…d an entirely appropriate clarification. This court has previously held that an order for accounting is a non-final, non-appealable order. See Morton v. City of Miami Beach, 376 So. 2d 279, 281 (Fla. 3d DCA 1979); accord Heritage Paper Co. v. Farah, 440 So. 2d 389, 391 (Fla. 1st DCA 1983). The order for an accounting is properly viewed as an interlocutory order which is subject to modification by the trial court. The trial court therefore had jurisdiction to enter the order of clarification. The order of clar…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- F. A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910 (Fla. 3d DCA 1962)
- McCANN Plumbing Co. v. Plumbing Indus. Program, Inc., 105 So. 2d 26 (Fla. 3d DCA 1958)
- A-1 Truck Rentals, Inc. v. Vilberg, 222 So. 2d 442 (Fla. 3d DCA 1969)
- Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla. 3d DCA 1981)
- THE Florida BAR v. Ethier, 411 So. 2d 872 (Fla. 1982)
- T & T Trucking Co. & Ins. Co. of N. Am. v. McWILLIAMS, 379 So. 2d 420 (Fla. 1st DCA 1980)
- Emil Morton v. City OF Miami Beach, 376 So. 2d 279 (Fla. 3d DCA 1979)
- State Farm Mut. Auto. Ins. Co. v. Morris, 370 So. 2d 828 (Fla. 1st DCA 1979)
- Nat'l Serv. Fire Ins. Co. v. Randall, 206 So. 2d 425 (Fla. 3d DCA 1968)
- Carberry v. Foley, 206 So. 2d 425 (Fla. 3d DCA 1968)