Pulling v. Billmyre Enterprises, Inc. ( 2017 )


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  •                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    JOHN PULLING, JR., and MARSHA       )
    PULLING,                            )
    )
    Appellants,              )
    )
    v.                                  )                    Case Nos. 2D16-1770
    )                              2D16-3734
    BILLMYRE ENTERPRISES, INC., and     )                              2D16-4367
    GARY BILLMYRE, Individually,        )
    )                        CONSOLIDATED
    Appellees.               )
    ___________________________________ )
    Opinion filed May 26, 2017.
    Appeals from the Circuit Court for Collier
    County; Cynthia A. Pivacek and Lauren L.
    Brodie, Judges.
    John H. Pelzer of Greenspoon Marder,
    P.A., Ft. Lauderdale; and Thomas R. Bolf of
    Thomas R. Bolf, P.A., Plantation, for
    Appellants.
    Thomas William Franchino of Thomas W.
    Franchino, P.A., Naples, for Appellees.
    KHOUZAM, Judge.
    In these consolidated appeals, John and Marsha Pulling challenge the trial
    court's award of attorney's fees and costs to Billmyre Enterprises and Gary Billmyre
    (collectively Billmyre). We write to clarify our jurisdiction in these three appeals.
    I.     2D16-1770
    Following a jury trial on the Pullings' claims against Billmyre, the trial court
    entered a March 24, 2016, order awarding costs, which found an entitlement but did not
    determine an amount for costs. The Pullings filed a notice of appeal which resulted in
    appeal 2D16-1770. An order that finds an entitlement to costs but fails to determine an
    amount is a nonfinal nonappealable order. See Ritter v. Ritter, 
    690 So. 2d 1372
    , 1376
    (Fla. 2d DCA 1997) (denying review of attorney's fee and cost award because the
    judgment found an entitlement to attorney's fees and costs but failed to specify an
    amount). Accordingly, appeal 2D16-1770 is dismissed.
    II.    2D16-3734
    The trial court rendered a subsequent order on July 14, 2016, that
    determined an amount for certain costs owed to Billmyre, determined an entitlement to
    attorney's fees, and ordered the parties to mediation to "address all pending issues
    regarding the awards of costs and attorney's fees." This order is also a nonfinal
    nonappealable order. See Smith v. Smith, 
    169 So. 3d 220
    , 221 (Fla. 2d DCA 2015)
    ("[A]n order which only determines the right to attorney's fees without setting the amount
    is a nonappealable, nonfinal order." (quoting McIlveen v. McIlveen, 
    644 So. 2d 612
    , 612
    (Fla. 2d DCA 1994))); Nastasi v. Thomas, 
    88 So. 3d 407
    , 410 (Fla. 4th DCA 2012)
    (holding that an order sending the parties to mediation was not a final appealable order
    because it contemplated further judicial labor following mediation). Accordingly, we
    dismiss appeal 2D16-3734.
    -2-
    III.   2D16-4367
    Finally, the trial court rendered a supplemental final judgment inclusive of
    fees and costs on September 12, 2016. The judgment awarded specific sums of costs
    and attorney's fees to Billmyre. The Pullings filed a notice of appeal, resulting in appeal
    2D16-4367. The supplemental final judgment is a final appealable order. See
    Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co. of E. Fla., 
    483 So. 2d 852
    , 853 (Fla.
    5th DCA 1986) ("An order granting attorney's fees and costs after entry of a final
    judgment is a final appealable order."); see also Allstate Ins. Co. v. Jenkins, 
    32 So. 3d 163
    , 165 (Fla. 5th DCA 2010) ("[A]n attorney's fee award is not appealable until both the
    issues of entitlement and amount are ruled upon."). The Pullings have raised a number
    of issues challenging the supplemental final judgment. Having thoroughly reviewed
    their arguments, we affirm the supplemental final judgment without comment.
    Dismissed in part; affirmed in part.
    MORRIS and BLACK, JJ., Concur.
    -3-
    

Document Info

Docket Number: Case 2D16-1770, 2D16-3734, 2D16-4367

Judges: Khouzam, Morris, Black

Filed Date: 5/26/2017

Precedential Status: Precedential

Modified Date: 10/19/2024