RELIABLE REPROGRAPHICS BLUEPRINT & SUPPLY, INC., A FLORIDA CORPORATION, AND STEVE SCHLOSBERG, APPELLANTS,
v.
FLORIDA MANGO OFFICE PARK, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 4th DCA | 1994-11-09
No. 93-2839
FARMER, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
645 So. 2d 1040 Florida District Court of Appeal, Fourth District (1994) Caution
Cited by 16 cases

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Holding

The court held that the appeal of the order denying defendants' attorney's fees was untimely and therefore dismissed, and affirmed the order granting the plaintiff attorney's fees.


Headnotes

[1] A post-judgment order denying a party's entitlement to attorney's fees and costs is an appealable non-final order.

[2] A notice of appeal for an appealable non-final order must be filed within thirty days of the order's rendition date.

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Facts & Procedural History

The plaintiff landlord sued the defendants for damages under a lease. The defendants made offers of judgment which were not accepted. The plaintiff pr…

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Opinion of the Court
GUNTHER, Judge.

GUNTHER, Judge.

Appellants, Reliable Reprographics BluePrint & Supply, Inc. and Steve Schlosberg, (Defendants) appeal two orders; (1) an order denying them attorney’s fees and costs pursuant to section 768.79, Florida Statutes (1993), and (2) an order granting the Appel-lee (Plaintiff) attorney’s fees and costs as the prevailing party. We dismiss in part and affirm in part.

Plaintiff, as landlord, sued Defendants pursuant to a written lease agreement for money damages. Pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (1993), Defendants served “Defendants’ Offers of Judgment” on Plaintiff. The total amount offered by Defendants was $16,-480.00. Plaintiff, however, never accepted the offers.

The case was tried and final judgment was entered in favor of Plaintiff in the amount of $10,946.83. Thereafter, Defendants moved to tax costs and attorney’s fees pursuant to section 768.79, Florida Statutes (1993), alleging that the final judgment was at least 25% less than the offers of judgment. The trial court, determining that the fee provision of section 768.79, Florida Statutes (1993) was not triggered, denied the motion on July 8, 1993. The order denying Defendants’ attorney’s fees and costs was rendered on July 14, 1993.

Subsequently, on September 1,1993, Plaintiff moved for attorney’s fees and costs pursuant to a prevailing party provision in the lease agreement. After a hearing, the trial court granted Plaintiffs motion and, on September 9, 1993, the trial court signed an order granting Plaintiff attorney’s fees and costs.

Defendants filed their notice of appeal on September 21, 1993. They are appealing both the July 8, 1993 order denying them attorney’s fees and costs and the September 9, 1993 order granting Plaintiff attorney’s fees and costs.

This court recently addressed the issue of .whether a post-judgment order determining a party’s entitlement to attorney’s fees is an appealable order. In Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994), this court held that a post-judgment order determining the entitlement to attorney’s fees without determining the amount of the fees was not appealable. Winkelman, 632 So. 2d at 132. This court reasoned that [w]here an order entered after final judgment is merely prefatory to another order which will be appealable either as a final judgment or an order on an authorized motion under rule 9.130(a)(4), review of the correctness of the prefatory order is available when the ultimate order is appealed, [citations omitted].

The instant case is distinguishable from Winkelman. In Winkelman, the trial court granted entitlement to the attorney’s fees while reserving jurisdiction as to the amount of those fees. Necessarily, the trial court in Winkelman had yet to rule on the entire issue of attorney’s fees before the appeal was taken. In the instant case, however, the trial court denied Defendants’ entitlement to attorney’s fees and costs. Accordingly, the trial court in the instant case had ruled on the entire issue pertaining to Defendants’ motion for attorney’s fees and costs. Thus, the July 8,1993 order was not “merely prefatory to another order” because the trial court was not required to rule on any other issue regarding Defendants’ motion for attorney’s fees and costs.

Accordingly, the July 8, 1993 order denying Defendants’ motion for attorney’s fees and costs must necessarily be an appeal-able non-final order. See Fla.R.App.P. 9.130(a)(4). As such, Defendants were required to file a notice of appeal within thirty days of the rendition date of the order, July 14, 1994. Fla.R.App.P. 9.130(b). Defendants’ notice of appeal, however, was not filed until September 21, 1993, some sixty days after the rendition of the appealable order. Consequently, this court lacks subject matter jurisdiction over the matter. Because we are unable to review the propriety of the July 8, 1993 order denying Defendants’ attorney’s fees and costs pursuant to section 768.79, Florida Statutes (1993), we are necessarily precluded from addressing the impact that section 768.79 has on the contractual right to attorney’s fees and costs as the prevailing party. As such, we affirm the September 9, 1993 order granting Plaintiffs attorney’s fees and costs.

In conclusion, because the appeal of the order denying Defendants’ attorney’s fees and costs was untimely filed, we dismiss Defendants’ appeal of the July 8, 1993 order. We affirm the order granting attorney’s fees and costs to Plaintiff as prevailing party.

DISMISSED IN PART; AFFIRMED IN PART.

FARMER, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.


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Cited By

  • Yampol v. Turnberry Isle S. Condo Assoc., 250 So. 3d 835 (Fla. 3d DCA 2018)
  • BDO Seidman, LLP v. British CAR Auctions, Inc., 789 So. 2d 1019 (Fla. 4th DCA 2001)
    …0(a)(4). In the past we have treated these appeals as both final and non-final. Sanctuary of Boca, Inc. v. Careers USA, Inc., 691 So. 2d 596 (Fla. 4th DCA 1997)(final); Reliable Reprographics Blueprint & Supply, Inc. v. Fla. Mango Office Park, Inc., 645 So. 2d 1040 (Fla. 4th DCA 1994)(non-final). Whether an order is a non-final or final order can be important where a motion for rehearing has been filed, because our rules of civil procedure do not authorize motions for rehearing directed to non-final orders. I…
  • Pelphrey-Weigand v. Weigand, 283 So. 3d 822 (Fla. 2d DCA 2019)
    …for attorneys' fees incurred in the underlying action is a final appealable order. Yampol v. Turnberry Isle S. Condo. Ass'n, 250 So. 3d 835, 837 (Fla. 3d DCA 2018); Reliable Reprographics Blueprint & Supply, Inc. v. Fla. Mango Office Park, Inc., 645 So. 2d 1040, 1041-02 (Fla. 4th DCA 1994). The same is true of a postdecretal order determining entitlement to fees incurred in a collateral proceeding instituted after the judgment in the underlying action. See Sibley, 885 So. 2d at 982, 981-82. The case b…

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