ADLOW, INC., APPELLANT,
v.
MAUDA, INC., DORI-JO, INC., AND SUN BANK AND TRUST COMPANY, APPELLEES
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Adlow, Inc. appealed a trial court's order awarding attorney's fees to Mauda, Inc. and related parties in a lien foreclosure case. The appellate court dismissed the appeal for lack of jurisdiction because the fee order was not final and the appeal was untimely.
The court held it lacked jurisdiction to review the case for two independent reasons: (1) the fee order was not final because it determined only the right to fees without setting the amount, leaving the matter unresolved on the merits, and (2) even if the order were considered an appealable non-final order, the appeal was untimely because a motion for rehearing does not toll the time for filing an interlocutory appeal, making the October 26, 1992 notice of appeal beyond the 30-day deadline from the August 11, 1992 order.
[1] An appeal from an order is untimely if it challenges rulings made in a prior, non-appealable order that were not substantively altered in the subsequent order.
[2] An order determining entitlement to attorney's fees, but reserving jurisdiction to determine the amount, is a non-final, non-appealable order.
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Join FLexlaw to unlock all legal intelligence“the order awarding appellees' attorney's fees is not a final order, as the order only determines appellees' right to attorney's fees without setting the amount; therefore, the matter has not been fully resolved on the merits”
Establishes the first jurisdictional defect—lack of finality
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Join FLexlaw to unlock all legal intelligenceAdlow filed suit on March 31, 1989, for lien foreclosure on a liquor license and other property based on their transfer without Adlow's consent as lie…
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THOMPSON, Judge.
Adlow, Inc. appeals the trial court’s order awarding the right to attorney’s fees to Mau-da Inc., Dori-Jo, Inc., and Sun Bank & Trust Company (“Mauda”). Although this case involves the entry of a summary judgment on a lien foreclosure, the only issue appealed by Adlow is the order.on attorney’s fees. We dismiss the appeal.
Adlow filed suit on 31 March 1989 for a lien foreclosure on a liquor license and other property, based on the transfer of the license and property without its consent as lienholder. The trial court granted final summary judgment to appellees, reserving jurisdiction to consider appellant and appellees’ motions for attorney’s fees. On 11 August 1992, the trial court rendered its order denying appellant’s motion and granting appellees’ motion, but did not set the amount of fees. Appellant filed a motion to reconsider the attorney’s fees issue which was denied by an order rendered on 12 October 1992. Notice of appeal was filed on 26 October 1992.
This court does not have jurisdiction to review this case for two reasons. First, the order awarding appellees’ attorney’s fees is not a final order, as the order only determines appellees’ right to attorney’s fees without setting the amount; therefore, the matter has not been fully resolved on the merits. See Fla.R.App.P. 9.030(b)(1)(A); Blattman v. Williams Island Assoc., Ltd., 592 So. 2d 269 (Fla. 3d DCA 1991); see also, Welch v. Resolution Trust Corp., 590 So. 2d 1098, (Fla. 5th DCA 1991) (test for whether order is final for appeal purposes is whether it disposes of cause on its merits leaving no questions open for judicial determination except for execution or enforcement if necessary).
Second, even if the order is considered as an appealable non-final order pursuant to Fla.R.App.P. 9.130(a)(4), the appeal is untimely because a motion for rehearing does not toll the time for filing an interlocutory appeal. Blattman, 592 So. 2d 269; Welch, 590 So. 2d 1098 (citations omitted); Freeman v. Perdue, 588 So. 2d 671 (Fla. 5th DCA 1991); Bell v. Geist, 531 So. 2d 406 (Fla. 5th DCA 1988) (since the motion for rehearing was not authorized because the order was a non-final order, the time to appeal was not tolled by the motion and the appeal must be filed within 30 days of the rendition of the order). The notice of appeal should have been filed by 11 September 1989 at the latest.
The appeal is dismissed for lack of jurisdiction without prejudice to appellant to appeal from a final trial court order setting the attorney’s fees. The trial court order setting attorney’s fees, however, must contain appropriate findings of facts to support an award pursuant to § 57.105(1), Florida Statutes (1991). S.A.B.T.C. Townhouse Ass’n, Inc. v. Schmitz, 565 So. 2d 827 (Fla. 5th DCA 1990); see also, Schwartz v. W-K Partners, 530 So. 2d 456 (Fla. 5th DCA 1988) (where prevailing party moved for fees not only under section 57.105, but also under the contract at issue in the litigation, held that the trial court was required to make a finding that there was a complete absence of a justiciable issue raised by the losing party when entering an award of fees under section 57.105); cf., Autorico, Inc. v. Government Employees Ins. Co., 398 So. 2d 485 (Fla. 3rd DCA 1981).
DISMISSED.
PETERSON and GRIFFIN, JJ., concur.
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Cited By (11 total)
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Gonzalez Eng'g, Inc. v. Miami Pump & Supply Co., Inc., 641 So. 2d 474 (Fla. 3d DCA 1994)…Accord Southern Management & Inv. Corp. v. Escandar, 529 So. 2d 355 (Fla. 3d DCA 1988); Hobbs v. Hobbs, 518 So. 2d 439 (Fla. 1st DCA 1988); see also Avis Rent A Car Sys., Inc. v. Newman, 641 So. 2d 915 (Fla. 3d DCA 1994); Adlow, Inc. v. Mauda, Inc., 632 So. 2d 714 (Fla. 5th DCA 1994). Although there is language to the contrary in Blattman v. Williams Island Associates, Ltd., 592 So. 2d 269 (Fla. 3d DCA 1991), upon which the appellant relies, it is apparent that, since the appeal was in fact dismissed as untim…
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AVIS Rent A CAR Sys., Inc. v. Newman, 641 So. 2d 915 (Fla. 3d DCA 1994)…ntually make these findings, but these findings may be made in the order actually awarding the attorney’s fees. The instant order merely [*916] determined the entitlement to attorney’s fees without setting the amount. See Adlow, Inc. v. Mauda, Inc., 632 So. 2d 714 (Fla. 5th DCA 1994); Ferrara v. Caves, 475 So. 2d 1295 (Fla. 4th DCA 1985). Accordingly, we dismiss the appeal without prejudice to allow Avis to appeal from the final order setting the amount of attorney’s fees, when entered.1 Dismissed without pre…
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Schultz v. Time Warner Ent. Co., 906 So. 2d 297 (Fla. 5th DCA 2005)…t should have provided additional written fact-findings indicating a basis for its decision to award attorney’s fees pursuant to section 57.105. We affirm the order finding it contains sufficient findings of fact. [*299] Adlow, Inc., v. Mauda, Inc., 632 So. 2d 714 (Fla. 5th DCA 1994) (holding that an order setting attorney’s fees must contain appropriate findings of fact to support an award pursuant to section 57.105(1)). We find that there was substantial, competent evidence presented to support the trial co…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Peadon v. State, 398 So. 2d 485 (Fla. 1st DCA 1981)
- Schwartz v. W-K P'rs, 530 So. 2d 456 (Fla. 5th DCA 1988)
- Welch v. Resolution Tr. Corp., 590 So. 2d 1098 (Fla. 5th DCA 1991)
- Bell v. Geist, 531 So. 2d 406 (Fla. 5th DCA 1988)
- Murray Blattman under that certain Tr. Agreement dated December 18 v. Williams Island Assocs., Ltd., 592 So. 2d 269 (Fla. 3d DCA 1991)
- S.A.B.T.C. Townhouse Ass'n, Inc. v. Schmitz, 565 So. 2d 827 (Fla. 5th DCA 1990)
- Freeman v. Perdue, 588 So. 2d 671 (Fla. 5th DCA 1991)