Provitola v. Comer

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ANTHONY I. PROVITOLA AND
KATHLEEN A. PROVITOLA,
Appellants,
v. Case No. 5D16-3027
DENNIS L. COMER,
Appellee.
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Opinion filed August 4, 2017
Appeal from the Circuit Court
for Volusia County,
Randell H. Rowe, III, Judge.
Anthony I. Provitola of Anthony I. Provitola,
P.A., DeLand, for Appellants.
Lindsay R. Dunn, of First American Law
Group, Largo, and F. A. (Alex) Ford, Jr., of
Landis Graham French, P.A., DeLand, for
Appellee.
PER CURIAM.
We affirm the final order dismissing Appellants’ second amended complaint with
prejudice. See Bozeman v. City of St. Petersburg, 76 So. 894, 896 (Fla. 1917) (holding
that plaintiff could not maintain action to enjoin obstruction of public street where plaintiff’s
allegations were insufficient to show that he suffered “some special damage to his
property or injury to him different not only in degree but in kind from the damage sustained
by the community at large” (quoting Robbins v. White, 42 So. 841 (Fla. 1907))); Wedner
v. Escambia Chem. Corp., 102 So. 2d 631, 632 (Fla. 1st DCA 1958) (“The unauthorized
obstruction of a public way is a common or public nuisance. It is not in itself ground upon
which to maintain a private suit for injuries occasioned thereby. In order to maintain such
a suit it must be shown that the party seeking relief has suffered some special injury,
differing not only in degree, but in kind from that sustained by the community at large.”).
We dismiss, without prejudice, Appellants’ appeal of the trial court order
determining that Appellee was entitled to recover attorney’s fees under section 57.105,
Florida Statutes (2016). An order that determines entitlement to attorney’s fees without
setting the amount is a non-final, non-appealable order. Adlow, Inc. v. Mauda, Inc., 632
So. 2d 714, 714 (Fla. 5th DCA 1994). 1
AFFIRMED, in part; DISMISSED, in part.
EVANDER and EDWARDS, JJ., and ATKIN, J.E., Associate Judge, concur.
1 The other issues raised on appeal are rendered moot by our affirmance of the
trial court’s order of dismissal.
2