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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
MARIO LOMBARDO,
Appellant,
vs. Appeal No. 06-0011AP-88B
UCN522006P000011XXXXCV
HARRY RICHARD
HAIGE,
Appellee.
____________________________________________/
Appeal from
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
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 (
Furthermore, the law is equally clear that an unauthorized motion for
rehearing does not postpone rendition of the order to be appealed. See
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
________________________________
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
Warren J. Knaust, Esquire
2167
[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.”