vs.                                                                                                        Appeal No. 01-557-CI-88A




Opinion filed ________________________

Appeal from final order of Pinellas County Court, Small Claims Division,

The Honorable Henry J. Andringa

Wendy Coxhead, Esquire
14119 SE 83rd Street
Newcastle, WA 98059
Attorney for Appellant

Kerry C. McGuinn, Jr., Esquire
109 N. Brush Street, Suite 500
Post Office Box 3283
Tampa, FL  33601
Attorney for Appellee


            THIS CAUSE came before the Court on appeal, filed by Alecia Lindsay-Stokes (Appellant), from the Order on Motion to Tax Supplemental Attorney’s Fees and Costs (Order), entered on December 21, 2000, which denied the Appellant supplemental attorney’s fees and costs.  Upon review of the record and the briefs and being otherwise fully advised in the premises, the Order entered by the lower court is affirmed as set forth below.

            Initially, the Court finds that it does not have jurisdiction to review the Order on Attorney’s Fees, entered April 13, 2000, nor the Amended Order on Attorney’s Fees, entered July 6, 2000.  Had the Appellant attached these orders to her Notice of Appeal, as required by the Florida Rules of Appellate Procedure, Rule 9.110(d), the Court would have ruled at the outset that it had no jurisdiction to review these orders.  See State Farm Mutual Automobile Ins. Co. v. Open MRI of Orlando, Inc., 780 So.2d 339, 341 (Fla. 5th DCA 2001)(finding that the untimely notice of appeal precludes the appellate court from exercising jurisdiction)(citations omitted); see also Harris v. Conderman, 113 So.2d 235, 238 (Fla. 3d DCA 1959)(citations omitted); Thermoplastic & Signs, Inc. v. Metropolitan Dade County, 746 So.2d 1140, 1141 (Fla. 3d DCA 1999); Fla. R. App. P. Rule 9.110(b)(2000).

            Although the Appellant asserts that the orders entered on April 13, 2000, and July 6, 2000, were interlocutory in nature, and therefore not final until the court’s ruling on December 21, 2000, this argument is without merit.  See Welch v. Resolution Trust Corp., 590 So.2d 1098, 1099 (Fla. 5th DCA 1991)(stating that the traditional test for whether order of lower tribunal is final for review purposes is whether decree disposes of cause on its merits leaving no questions open for judicial determination except for execution or enforcement of decree if necessary)(citations omitted).   The Appellant filed a Motion for Rehearing and/or Clarification on the lower court’s Order on Attorney’s Fees, entered April 13, 2000, asserting that the order had failed to provide for the award of prejudgment interest.  This Motion for Rehearing did not assert any entitlement to supplemental fees or costs, nor did it allege any other error in the lower court’s award of attorney’s fees.  Accordingly, the lower court awarded prejudgment interest on attorney’s fees in its Amended Order, entered July 6, 2000, but otherwise made no changes from its original Order on Attorney’s Fees.  This final Amended Order was not appealed, nor was a motion for rehearing filed pertaining to this Amended Order.  (emphasis added)  Therefore, the Court will only review the merits of Appellant’s argument as it pertains to the Order entered December 21, 2000, which was timely appealed.

            In reviewing the record, the Court finds that the Appellant filed her Motion to Tax Supplemental Attorney’s Fees and Costs approximately three weeks after the Amended Order on Attorney’s Fees was entered.  At the hearing on her motion, the Appellant argued before the lower court that she was entitled to supplemental attorney’s fees and costs due to the Appellee disputing her right to entitlement to prejudgment interest.  However, the transcript of the supplemental fee hearing provides that the lower court was unsure as to why the prejudgment interest had been omitted from the first Order on Attorney’s Fees, which was drafted by the lower court.[1]

            Although the Appellant attempted to persuade the lower court that the omission was due to the Appellee disputing her right to the entitlement of prejudgment interest, the lower court clearly felt that it was due to its own inadvertent omission as the Appellant was “obviously ... entitled to interest.”  At one point the lower court asks the Appellant, “So if I had simply put in there that you’re entitled to interest then none of this would have occurred; is that correct?” to which the Appellant responded, “That’s correct, Judge.”  Therefore, the lower court did not abuse its discretion in finding that the “plaintiff is not entitled to additional attorney’s fees as a result of the court’s omission in its order of April 13, 2000.”  See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980)(defining the abuse of discretion standard).

             Therefore, it is

            ORDERED AND ADJUDGED that the Order on Motion to Tax Supplemental Attorney’s Fees and Costs is affirmed.  It is further

            ORDERED AND ADJUDGED the Appellant’s Motion to Tax Appellate Attorney’s Fees and Costs is denied. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 31st day of August 2001.                                                                                                                                       



Circuit Judge, Appellate Division


Copies Furnished To:

The Honorable Henry Andringa

Wendy Coxhead, Esquire

Kerry C. McGuinn, Jr., Esquire

Staff Attorney, Appellate Division


[1] There is no transcript of this first attorney fee hearing in the appellate record.  The lack of this transcript before the lower court also added to the confusion as to why the prejudgment interest was original omitted.