39 Fla. L. Weekly D126a
Appeals — Portion of order granting motion for summary
judgment was not a final, appealable order — Portion of order transferring case
to county court was not final or appealable where underlying damage amount has
not yet been adjudicated and reduced to final judgment
judgment was not a final, appealable order — Portion of order transferring case
to county court was not final or appealable where underlying damage amount has
not yet been adjudicated and reduced to final judgment
1st PRIORITY RESTORATION, INC., Appellant/cross-appellee, vs. DIYA SALAME,
Appellee/cross-appellant. 3rd District. Case No. 3D13-492. L.T. Case No.
09-90954. Opinion filed January 8, 2014. An Appeal from the Circuit Court for
Miami-Dade County, Jacqueline Hogan Scola, Judge. Counsel: Perry & Neblett,
P.A. and Jerrod M. Paul, for appellant/cross-appellee. Andrew M. Greenidge (Ft.
Lauderdale), for appellee/cross-appellant.
Appellee/cross-appellant. 3rd District. Case No. 3D13-492. L.T. Case No.
09-90954. Opinion filed January 8, 2014. An Appeal from the Circuit Court for
Miami-Dade County, Jacqueline Hogan Scola, Judge. Counsel: Perry & Neblett,
P.A. and Jerrod M. Paul, for appellant/cross-appellee. Andrew M. Greenidge (Ft.
Lauderdale), for appellee/cross-appellant.
(Before SHEPHERD, C.J., and SALTER and FERNANDEZ, JJ.)
(SALTER, Judge.) 1st Priority Restoration, Inc. (1st Priority), appeals
non-final orders entered by the circuit court in a case involving a $4,898.87
invoice rendered for cleaning up water damage in the appellee’s, Mr. Salame’s,
home in 2007. Initially, this routine consumer dispute seemed to have been
settled with two simple terms — Mr. Salame would pay the invoice, and 1st
Priority or its attorney would return a rug or rugs to Mr. Salame.
non-final orders entered by the circuit court in a case involving a $4,898.87
invoice rendered for cleaning up water damage in the appellee’s, Mr. Salame’s,
home in 2007. Initially, this routine consumer dispute seemed to have been
settled with two simple terms — Mr. Salame would pay the invoice, and 1st
Priority or its attorney would return a rug or rugs to Mr. Salame.
In the attempted consummation of this settlement, however, the routine
consumer dispute escalated into a stop payment order issued by Mr. Salame on his
settlement check based on his allegations that three of his four rugs had not
been returned by 1st Priority (and that the fourth had been damaged). This
second dispute spawned years of pleadings, hearings, and judicial labor to
consider claims for civil theft, check fraud, and attorney’s fees and costs.
consumer dispute escalated into a stop payment order issued by Mr. Salame on his
settlement check based on his allegations that three of his four rugs had not
been returned by 1st Priority (and that the fourth had been damaged). This
second dispute spawned years of pleadings, hearings, and judicial labor to
consider claims for civil theft, check fraud, and attorney’s fees and costs.
1st Priority’s initial notice of appeal sought review of an order granting
summary judgment to Mr. Salame on Counts II and III of 1st Priority’s amended
complaint — these were the statutory claims for civil theft and check fraud —
and transferring the case to the county court on Count I, the remaining breach
of contract claim.1 That order was
rendered in the circuit court on November 2, 2012. Although 1st Priority moved
for reconsideration and rehearing of the order within ten days, that motion was
not one which would delay “rendition” of the non-final order of November 2,
2013. Fla. R. App. P. 9.020(h). The circuit court denied the motion for
reconsideration or rehearing on November 13, 2012. The notice of appeal was
filed December 6, 2012, which made it untimely as to the order of November 2,
2012, and timely only as to the order denying reconsideration and
rehearing.2
summary judgment to Mr. Salame on Counts II and III of 1st Priority’s amended
complaint — these were the statutory claims for civil theft and check fraud —
and transferring the case to the county court on Count I, the remaining breach
of contract claim.1 That order was
rendered in the circuit court on November 2, 2012. Although 1st Priority moved
for reconsideration and rehearing of the order within ten days, that motion was
not one which would delay “rendition” of the non-final order of November 2,
2013. Fla. R. App. P. 9.020(h). The circuit court denied the motion for
reconsideration or rehearing on November 13, 2012. The notice of appeal was
filed December 6, 2012, which made it untimely as to the order of November 2,
2012, and timely only as to the order denying reconsideration and
rehearing.2
More significantly, the notice of appeal was not taken from a final order or
from one of the limited categories of non-final order that may be appealed on an
interlocutory basis. Fla. R. App. P. 9.110, 9.130(a)(3). That portion of the
order granting a motion for summary judgment on Counts II and III was not a
final, appealable order. Castillo v. Deutsche Bank Nat’l Trust Co., 57
So. 3d 965 (Fla. 3d DCA 2011). That portion of the order transferring the case
to the county court also was not final or appealable, as the underlying net
damages amount (invoice amount, already awarded, less any setoff for the alleged
failure to return rugs) has not yet been adjudicated and reduced to a final
judgment.3
from one of the limited categories of non-final order that may be appealed on an
interlocutory basis. Fla. R. App. P. 9.110, 9.130(a)(3). That portion of the
order granting a motion for summary judgment on Counts II and III was not a
final, appealable order. Castillo v. Deutsche Bank Nat’l Trust Co., 57
So. 3d 965 (Fla. 3d DCA 2011). That portion of the order transferring the case
to the county court also was not final or appealable, as the underlying net
damages amount (invoice amount, already awarded, less any setoff for the alleged
failure to return rugs) has not yet been adjudicated and reduced to a final
judgment.3
Nor has our jurisdiction been properly invoked by Mr. Salame’s cross-notice
of appeal. The cross-notice was filed July 16, 2013, purportedly seeking review
of another non-final order (a May 2012 order granting 1st Priority’s motion for
summary judgment on Count I). Under Florida Rule of Appellate Procedure
9.110(g), a cross-appeal would have been untimely after December 16, 2012, even
if taken from an appealable order.
of appeal. The cross-notice was filed July 16, 2013, purportedly seeking review
of another non-final order (a May 2012 order granting 1st Priority’s motion for
summary judgment on Count I). Under Florida Rule of Appellate Procedure
9.110(g), a cross-appeal would have been untimely after December 16, 2012, even
if taken from an appealable order.
Appeal and cross-appeal dismissed.
__________________
11st Priority had already obtained a
summary judgment on that count, but not a final judgment awarding the $4,898.87
invoice amount and interest. The circuit court correctly determined that the
remaining amount in controversy warranted a transfer of the case to the county
court. DNA Ctr. for Neurology & Rehabilitation v. Progressive Am. Ins.
Co., 13 So. 3d 74 (Fla. 5th DCA 2009).
summary judgment on that count, but not a final judgment awarding the $4,898.87
invoice amount and interest. The circuit court correctly determined that the
remaining amount in controversy warranted a transfer of the case to the county
court. DNA Ctr. for Neurology & Rehabilitation v. Progressive Am. Ins.
Co., 13 So. 3d 74 (Fla. 5th DCA 2009).
2The notice of appeal was filed December
6, 2012.
6, 2012.
3Scheel v. Advance Mktg. Consultants,
Inc., 277 So. 2d 773 (Fla. 1973) (order of transfer by circuit court to
court of record held non-final and non-appealable, with review to abide the
eventual outcome of the action). Scheel predates the current rules, and
we doubt that it would apply had the circuit court simply dismissed the 1st
Priority-Salame lawsuit for lack of jurisdiction.
Inc., 277 So. 2d 773 (Fla. 1973) (order of transfer by circuit court to
court of record held non-final and non-appealable, with review to abide the
eventual outcome of the action). Scheel predates the current rules, and
we doubt that it would apply had the circuit court simply dismissed the 1st
Priority-Salame lawsuit for lack of jurisdiction.
* * *