Pulling v. Billmyre Enterprises, Inc.

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.
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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.
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