Perlberg v. Lubercy Asia Holdings

247 So. 3d 627

• Court: District Court of Appeal of Florida
• Decided: May 16, 2018
• Docket: 17-2404
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 16, 2018. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-2404 Lower Tribunal No. 15-22164 ________________

Robert Perlberg, Appellant,

vs.

Lubercy Asia Holdings, LLC, etc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz Cohen, Judge.

Donald N. Jacobson, P.A., and Donald N. Jacobson (Palm Beach), for appellant.

Holland & Knight LLP, and Monte S. Starr and J. Keith Ramsey (Orlando), for appellee.

Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.

ROTHENBERG, C.J. This case involves a dispute between the owner of a condominium, Lubercy

Asia Holdings, LLC (“Lubercy”), and an interior design firm, Perlberg Associates,

Inc. (“PAI”), whose lien against the condominium was declared fraudulent by the

trial court and discharged. Specifically, the trial court’s order granted Lubercy’s

motion for summary judgment on two counts. First, the order granted summary

judgment against PAI on its claim to foreclose its lien on the condominium.

Second, the order granted summary judgment in favor of Lubercy on its

counterclaim that PAI and Robert Perlberg (“Perlberg”), the president of PAI, filed

a fraudulent lien. The trial court’s order declared PAI’s lien on the condominium

unenforceable, discharged the lien, and determined that Lubercy is entitled to

prevailing party fees and punitive damages pursuant to section 713.31(2)(c),

Florida Statutes. Perlberg appeals the trial court’s order granting summary

judgment. For the reasons that follow, we dismiss the appeal for lack of

jurisdiction.

The trial court’s order granting summary judgment is neither a final nor a

partial final judgment because there are still several counts pending before the trial

court in the complaint and counter-complaint that involve the same parties and

arise out of the same underlying facts. See Almacenes El Globo De Quito, S.A. v.

Dalbeta L.C., 181 So. 3d 559, 561-62 (Fla. 3d DCA 2015) (stating that “an order of

the circuit court is ‘final’ if it ends all judicial labor in the case” and that an

2 appellate court can hear a partial final judgment “only when the claims adjudicated

by that order are separate and independent from the portion of the case still to be

adjudicated. . . . If all claims arise from the same set of facts, an order resolving

fewer than all of the counts is not appealable”) (citations and footnote omitted).

On appeal, Perlberg also contests the trial court’s determination that Lubercy

is entitled to prevailing party fees pursuant to section 713.31(2)(c), but that

determination is not appealable because the amount of fees has not yet been fixed.

Threadgill v. Nishimura, 222 So. 3d 633, 635 (Fla. 2d DCA 2017) (“An order that

merely finds entitlement to attorney’s fees but does not set an amount is a nonfinal,

nonappealable order.”); Mem’l Sloan-Kettering Cancer Ctr. v. Levy, 681 So. 2d

842, 842 (Fla. 3d DCA 1996) (holding that “because the trial court’s order finding

that the appellees were entitled to an award of attorney’s fees against the appellant

did not fix the amount, we dismiss that portion of the appeal for lack of

jurisdiction”).

Perlberg contends that this Court has jurisdiction pursuant to Florida Rule of

Appellate Procedure 9.130(a)(3)(C)(ii), which grants district courts of appeal

jurisdiction over appeals of non-final orders that determine “the right to immediate

possession of property.” However, even an order granting summary judgment and

determining that a party has “no legal right to possess the property” is not

appealable under rule 9.130(a)(3)(C)(ii) because it does not “determine the

3 ‘immediate right to possession’ even though it may resolve the underlying legal

issues.” Tarik, Inc. v. NNN Acquisitions, Inc., 17 So. 3d 912, 913 (Fla. 4th DCA

2009). Similarly, here, although the summary judgment order on appeal

adjudicated some of the underlying legal issues, it did not determine the

immediate right to possession of property. Accordingly, rule 9.130(a)(3)(C)(ii)

does not provide this Court with jurisdiction.

For these reasons, we dismiss this appeal as taken from a non-final,

nonappealable order.

Dismissed.