County Civil Court: APPELLATE PROCEDURE – Timeliness – Court does not have jurisdiction to review attorney’s fees issues as notice of appeal was not timely filed – an order awarding attorney’s fees and setting a specific amount is a final appealable order – an unauthorized motion for rehearing does not postpone the rendition of the order to be appealed - Judgment affirmed.  Lombardo v. Haige, Appeal No. 06-0011AP-88B (Fla. 6th Cir. App. Ct. Feb. 5, 2007). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MARIO LOMBARDO,

                        Appellant,

vs.                                                                                        Appeal No. 06-0011AP-88B

                                                                                            UCN522006P000011XXXXCV

HARRY RICHARD HAIGE,

                        Appellee.

____________________________________________/

Appeal from Pinellas County Court

Judge Walt Fullerton

 

Albert B. Lewis, Esquire

Attorney for Appellant

 

Warren J. Knaust, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Mario Lombardo (Lombardo), from the Judgment on Motion for Attorneys’ Fees, entered April 25, 2006.  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

The record shows that Mario Lombardo owns a four-unit apartment building located in Pinellas County.  One apartment was leased to Harry Haige under a written lease agreement.  On November 1, 2005, Lombardo filed his Complaint for Eviction against Haige, which was dismissed without prejudice by the trial court on November 22, 2005.  On December 19, 2005, Lombardo filed its Amended Complaint for Eviction seeking eviction and damages against Haige.  In response, Haige filed his Answer and Affirmative Defenses to Amended Complaint, which incorporated a motion to dismiss and motion for attorney’s fees.  On January 27, 2006, the trial court entered its Order of Dismissal and Order Directing Disbursement of Monies Paid to Court Registry that dismissed the cause and directed that Haige receive the sums he had previously deposited into the Registry of the Court.  This order was not appealed.

On February 2, 2006, Haige filed its Motion to Tax Costs and Attorneys Fees pursuant to Florida Statutes, section 83.48.  The Motion was accompanied by the Affidavit of Warren J. Knaust, counsel for Haige, and an Affidavit as to Attorney’s Fees, submitted by James A. Bryne, Esquire, as an expert opinion on the issue of attorney’s fees.  On February 17, 2006, counsel for Lombardo filed a Motion to Withdraw as Attorney for Plaintiff.  On February 20, 2006, the trial court heard the matter of attorney’s fees and costs.  The trial court granted Lombardo’s counsel leave to withdraw and denied Lombardo’s oral motion to continue the hearing.  On February 22, 2006, the trial court entered its Order Upon Fees and Costs which explicitly set forth that Haige was awarded costs in the amount of $ 300.00, and attorney’s fees in the amount of $ 3,512.50.  This order was not appealed. 

On March 2, 2006, the trial court, sua sponte, entered an Amended Order Upon Fees and Costs in which it corrected an error by clarifying that the Plaintiff rather than the Defendant was to tender money to the Defendant.[1]  On March 9, 2006, Lombardo’s new attorney filed a Notice of Appearance and Plaintiff’s Motion for Rehearing and Plaintiff’s Motion for Clarification or Correction of Order.  Haige moved to strike these motions as untimely.  On March 27, 2006, the trial court entered its Order Denying Rehearing [and] Order Clarifying Dismissal, in which the trial court stated:

 

Because the issues of possession, Count I, were thoroughly argued by capable counsel and because there is no new issue of law or fact, Rehearing is denied.  Also, Defendant/Tenant’s objection of timeliness is well taken.

 

The issue the Court decided was directed solely to possession, Count I.  The issue of money damages, Count II, as well as the defenses and counterclaims to unpaid rental, have not come before the Court.

 

Plaintiff/Landlord may take a Voluntary Dismissal and pursue those claims later together with a new case for possession or Plaintiff/Landlord may schedule claims for money damages for Final Hearing when at issue.

 

This order was not appealed.  On April 3, 2006, Haige filed a Motion for Entry of Judgment against Plaintiff, seeking a judgment against Lombardo.  On April 25, 2006, the trial court entered its Judgment on Attorneys’ Fees, in the same amount as previously awarded in the order entered February 22, 2006, or $ 3,812.50.  On May 4, 2006, Lombardo filed Plaintiff’s Motion for Rehearing, which resulted in the trial court’s entry of the Order of Clarification, stating that the trial court would consider a very short memorandum of legal argument.  Haige responded with a written letter to the trial court stating that the time for filing a motion for rehearing had “long since expired.”  On May 31, 2006, the trial court entered its Second Order Denying Rehearing finding:  “As stated previously in the Court’s March 27, 2006 Order Denying Rehearing, there is no new issue of law or fact which justifies rehearing the February 20, 2006 hearing upon fees and costs.”  Thereafter, Lombardo filed a Notice of Appeal seeking review of the Judgment on Attorney’s Fees.

Before this Court, Lombardo raises a myriad of issues.  However, the Court finds that it does not have jurisdiction to review the issues as Lombardo did not seek timely appellate review of the Order Denying Rehearing [and] Order Clarifying Dismissal, entered March 27, 2006.  The law is clear that an order awarding attorney’s fees and setting the specific amount is a final appealable order.   See Montanez v. Montanez, 697 So.2d 184, 186 (Fla. 2d DCA 1997); Mills v. Martinez, 909 So.2d 340, 342 (Fla. 5th DCA 2005); Sanders v. Palmieri, 849 So.2d 417, 417 (Fla. 5th DCA 2003).  It has nothing to do with whether the words “let execution issue” are used.  It has to do with whether all judicial labor is completed.  See Mills, 909 So.2d at 342. 

Furthermore, the law is equally clear that an unauthorized motion for rehearing does not postpone rendition of the order to be appealed.  See Wilson v. State, 2006 WL 3328210; 31 Fla. L. Weekly D2910 (Fla. 1st DCA Nov. 17, 2006).  Ordinarily, only one motion for rehearing or for clarification is authorized.  See id.; see also Johnson v. Johnson, 902 So.2d 241, 244 (Fla. 1st DCA 2005).  Indeed, Rule 9.330(b), Florida Rules of Appellate Procedure, provides that “[a] party shall not file more than 1 motion for rehearing or for clarification of that decision . . .”

 In the case at bar, the order entered March 2, 2006, Amended Order Upon Fees and Costs, was a final order.  It set the amount of fees and ordered the correct party to pay them.  It left no judicial labor to be completed.  Lombardo filed a timely motion for rehearing, Plaintiff’s Motion for Rehearing and Motion for Clarification.  On March 27, 2006, the trial court denied the motion.  That is the date that the Amended Order Upon Fees and Costs was rendered for purposes of appeal.  That means that Lombardo must have filed his notice of appeal no later than April 27, 2006.  Instead, Lombardo waited for Haige to file his Motion for Entry of Judgment against Plaintiff.  In response to that motion, the trial court entered its Judgment on Attorney’s Fees, which contained the exact same language as the March 27, 2006, order with the addition of the words “let execution arise” and a provision for interest.  These later items did not involve any judicial labor.  In other words, the trial court expressed the same decision as the earlier order on attorney’s fees.

In response to the Judgment of Attorney’s Fees, Lombardo filed a second motion for rehearing raising precisely the same arguments as his first motion for rehearing.  The second motion was not authorized and did not stay the time for appeal as to the issues directed toward the Amended Order Upon Fees and Costs.

Therefore, it is,

            ORDERED AND ADJUDGED that the Judgment on Motion for Attorney’s Fees is affirmed.  It is further

            ORDERED AND ADJUDGED that the Appellee’s Motion to Tax Attorney’s Fees is granted.  The trial court shall determine the reasonable amount of appellate attorney’s fees to be awarded.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of February 2007.

 

 

                                                         ________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

______________________________                        ______________________________

ANTHONY RONDOLINO                                      PETER RAMSBERGER

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

 

Judge Walt Fullerton

 

Albert B. Lewis, Esquire

3637 Fourth Street North, Suite 410

St. Petersburg, FL  33704

 

Warren J. Knaust, Esquire

2167 Fifth Avenue North

St. Petersburg, FL  33713

 

 



[1] The first order incorrectly stated that “Defendant shall tender the following amounts to Plaintiff.”  The amended order clarified that “Plaintiff shall tender the following amounts to Defendant.”