Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
  • Blog
  • Links
  • Contact Us

March 26, 2020 by Jennifer Kennedy

Dissolution of marriage — Appeals — Former husband’s challenge to trial court’s order requiring parties to list marital home for sale within 30 days and cooperate toward that end was untimely where notice of appeal was filed more than 30 days after order was rendered — Subsequent order granting former wife’s motion to enforce did not revive the portion of court’s earlier order challenged by husband on appeal — Attorney’s fees — Order granting wife’s motion for attorney’s fees without setting amount of fees was non-final, non-appealable order

45 Fla. L. Weekly D660a

Dissolution of marriage — Appeals — Former husband’s challenge to trial court’s order requiring parties to list marital home for sale within 30 days and cooperate toward that end was untimely where notice of appeal was filed more than 30 days after order was rendered — Subsequent order granting former wife’s motion to enforce did not revive the portion of court’s earlier order challenged by husband on appeal — Attorney’s fees — Order granting wife’s motion for attorney’s fees without setting amount of fees was non-final, non-appealable order

TERRY SITARAM, Appellant, v. NANDA BIBI ALLEY, Appellee. 5th District. Case No. 5D19-2536. March 20, 2020. Appeal from the Circuit Court for Volusia County, Stasia Warren, Judge. Counsel: Linda D. Carley, of Carley Law LLC, Daytona Beach, for Appellant. Elizabeth C. King, of Rice Law Firm, P.A., Daytona Beach, for Appellee.

(PER CURIAM.) Terry Sitaram (“Former Husband”) appeals the trial court’s order granting Nanda Alley’s (“Former Wife”) motion to enforce and granting Former Wife attorney’s fees. A motions panel of this Court previously denied Former Wife’s motion to dismiss. Having reviewed the record more thoroughly, we agree with Former Wife that Former Husband’s argument related to the motion to enforce was untimely appealed and that the order on attorney’s fees was a non-final, non-appealable order.

The parties dissolved their marriage in 2018, and the trial court incorporated a property settlement agreement into the amended final judgment of dissolution. On May 30, 2019, the trial court ordered the parties to list the marital home for sale within 30 days and cooperate toward that end. Former Wife subsequently moved to enforce the trial court’s May 30 order, alleging that Former Husband refused to cooperate in listing and selling the marital home. On July 26, the trial court entered an order on Former Wife’s motion to enforce, holding:

Former Husband is ordered to cooperate in the listing and sale of the [marital home].

Former Wife is entitled to reasonable attorney’s fees and costs in an amount to be determined by the Court.

In the event Former Husband does not cooperate immediately in signing all documents necessary to effect the sale of the home, the Former Wife shall have sole authority to negotiate the contract and perform all steps necessary to effect the sale.

On August 26, Former Husband filed a notice of appeal from the July 26 order. One ground for dismissal raised by Former Wife was that the July 26 order was substantively the same as the May 30 order, such that Former Husband’s arguments related to the sale of the marital home were untimely appealed. See Caldwell v. Wal-Mart Stores, Inc., 980 So. 2d 1226, 1229 (Fla. 1st DCA 2008). We agree.

Former Husband’s first issue on appeal consists of two distinct arguments: (1) that the trial court erred in ordering the sale of the marital home and ordering that Former Wife receive the proceeds of the sale because it did not make a valid, specific reservation of jurisdiction in the amended final judgment of dissolution to modify the rights in the property settlement agreement, and (2) that the trial court erred in ordering the sale of the marital home because the order conflicted with the plain language of the property settlement agreement, which provided that if Former Wife did not refinance and pay the mortgage, Former Wife would deed the home to Former Husband. Thus, Former Husband clearly presents this Court with two reasons why the trial court should not have ordered the forced sale of the marital home and awarded the sale proceeds to Former Wife. The trial court rendered those rulings in its May 30 order.

We reject Former Husband’s argument that the July 26 order “revived” the portion of the May 30 order that he challenges. See DeGale v. Krongold, Bass & Todd, 773 So. 2d 630, 632 (Fla. 3d DCA 2000) (holding appeal from amended order was untimely where issue on appeal was “directed solely at alleged errors contained in the original judgment and order”). Former Husband is correct that the July 26 order included an additional ruling — that if he refused to cooperate with the sale, Former Wife would have sole authority to negotiate a sale contract and carry out the sale. However, the only statement in Former Husband’s brief that pertained to the additional ruling in the July 26 order was:

[T]he trial court contravened the plain language by ordering acts which were not considered by the plain language — a sale of the property and granting of all proceeds from the sale to the Former Wife, ordering that the Former Husband comply with the sale and [sic] the Former Wife the sole authority to sell the home. The plain language of the settlement agreement does not consider a sale of the property, but rather a transfer of the property to the Former Husband.

Thus, Former Husband merely listed the trial court’s rulings in the July 26 order; he makes no argument challenging the additional ruling. Furthermore, the inapplicability of his argument to the July 26 order is crystalized by his requested relief: that this Court “reverse and remand for the court to order a transfer of the property to the Former Husband pursuant to the plain language of the Property Settlement Agreement.” Pursuant to Florida Rule of Appellate Procedure 9.110(b), Former Husband was required to appeal the trial court’s May 30 order within 30 days. Instead, Former Husband waited until August 26 to challenge those rulings. Consequently, Former Husband’s first issue was untimely appealed.

Former Husband’s second issue on appeal is that the trial court erred in granting Former Wife attorney’s fees. Former Wife asserted in her motion to dismiss that the attorney’s fees order was non-appealable because an order determining entitlement to attorney’s fees without setting the amount is a non-final, non-appealable order. We agree. Mills v. Martinez, 909 So. 2d 340, 342 (Fla. 5th DCA 2005) (“An award of attorneys’ fees does not become final, and, therefore, appealable until the amount is set by the trial court.” (citing Sanders v. Palmieri, 849 So. 2d 417, 417 (Fla. 5th DCA 2003))); Igberaese v. Vill. of Stoneybrook II Condo. Ass’n, 239 So. 3d 1284, 1284 (Fla. 2d DCA 2018) (dismissing portion of appeal challenging trial court’s determination of entitlement to attorney’s fees because trial court reserved jurisdiction to determine amount of fees; issue was non-final and non-appealable).

Accordingly, this Court lacks jurisdiction to hear either issue raised by Former Husband.

DISMISSED. (ORFINGER, COHEN and EISNAUGLE, JJ., concur.)

* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Attorney’s fees — Prevailing party — Appeal from order awarding attorney’s fees and costs and attorney’s fees for fees incurred in litigating amount of fees reversed in light of appellate court’s reversal of substantive portion of summary judgment on which awards were based and remand with instructions — Reversal is without prejudice to filing new appeal after trial court has concluded its labor
  • Insurance — Property — Insured’s action against insurer — Error to enter summary judgment in favor of insurer where there were factual issues as to insured’s compliance with post-loss obligations and any ensuing prejudice — Remand for further proceedings
  • Insurance — Homeowners — Assignee’s breach of contract action against insurer — Attorney’s fees — Prevailing party — Insurer was not entitled to summary judgment in its favor after paying post-lawsuit appraisal award within time limit required by the policy where appraisal process confirmed that insurer had wrongly denied paying assignee a specified amount of benefits under the policy — Payment of postsuit appraisal award did not render case moot — Remand for further proceedings on assignee’s claim for attorney’s fees and costs
  • Civil procedure — Summary judgment — Failure to state on the record the reasons for granting motion for summary judgment, as required by amended rule — Remand to allow court an opportunity to state reasons for its decision “with enough specificity to provide useful guidance to the parties and, if necessary, to allow for appellate review”
  • Insurance — Personal injury protection — Presuit demand letter — Presuit demand letter did not comply with statute where amount claimed to be due was not sufficiently precise — Although letter asked insurer to advise plaintiff if demand letter was defective in any way, nothing in language of section 627.736 requires an insurer to give notice to the insured or an assignee that a demand letter is defective

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. Abbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2022 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982