Third District Court of Appeal State of Florida
Opinion filed December 19, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-2145 Lower Tribunal No. 18-7344 ________________
The Local Door Coupons Franchise, Inc., Appellant,
vs.
Eric Mayers, Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.
Genovese Joblove & Battista, P.A., and W. Barry Blum and Elizabeth G. McIntosh, for appellant.
Zarco Einhorn Salkowski & Brito, P.A., and Colby G. Conforti and Robert M. Einhorn, for appellee.
Before SALTER, SCALES and LUCK, JJ.
ON MOTION TO DISMISS APPEAL
SCALES, J. The Local Door Coupons Franchise, Inc. (“Corporation”), plaintiff below,
seeks review of a non-final order of the trial court requiring Corporation to
advance to defendant Eric Mayers legal fees and costs associated with the ongoing
litigation in the lower proceeding. Mayers filed a motion to dismiss Corporation’s
appeal, asserting this Court lacks jurisdiction to review the trial court’s non-final
order. Because the trial court’s order has not affixed a dollar amount to be paid by
Corporation, we lack jurisdiction to adjudicate the subject non-final order, and
dismiss the instant appeal as premature.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
Mayers is a shareholder of Corporation. In March 2018, Corporation sued
Mayers, alleging that Mayers was improperly representing himself as
Corporation’s chief executive officer, and interfering with Corporation’s
franchisees. Mayers answered Corporation’s complaint and, both individually and
derivatively on behalf of Corporation, asserted counterclaims against Corporation
and third-party claims against Corporation’s former attorney and law firm, and
several of Corporation’s shareholders and officers.
Mayers then, pursuant to section 607.0850(9) of the Florida Statutes1 and the
indemnification provision contained in Corporation’s shareholder agreement, filed
a verified motion seeking an order requiring Corporation to “pay all of Mayers’
1 This statute provides a mechanism and procedure for a corporate agent to obtain indemnification from a corporation under specified circumstances.
2 fees and costs incurred thus far and in the future in the action.” After conducting a
non-evidentiary hearing, the trial court determined that the language of the subject
indemnification provision required Corporation to advance fees and costs to
Mayers for both (i) defense of Corporation’s first-party action against Mayers, and
(ii) prosecution of Mayers’s counterclaims and third-party claims. The trial court’s
order, however, does not determine the amount of any fees and costs to which
Mayers is entitled; in fact, the order specifically states that “[t]he amounts of fees
and expenses subject to advancement will be determined in a subsequent hearing.”
Corporation now appeals this non-final order. Asserting that we lack
jurisdiction to review the subject order, Mayers has filed the instant motion to
dismiss the appeal.
II. ANALYSIS
This Court has appellate jurisdiction to review only those non-final trial
court orders scheduled in Florida Rule of Appellate Procedure 9.130(a)(3). See
Jenne v. Maranto, 825 So. 2d 409, 413 (Fla. 4th DCA 2002) (“The enumerated
categories of permissible nonfinal review stated in rule 9.130 must be limited to
their plain meaning. The rule does not authorize judges to enlarge its provisions to
permit review of nonfinal orders not specified within its provisions.”) (citation
omitted). In opposition to Mayers’s motion to dismiss, Corporation asserts that the
3 subject order determines “the right to immediate possession of property” and, thus,
that we have jurisdiction pursuant to rule 9.130(a)(3)(C)(ii).2
We have routinely concluded, in other contexts, that orders determining
mere entitlement to attorney’s fees, without affixing an amount, are non-
reviewable, non-final orders. See Perlberg v. Lubercy Asia Holdings, LLC, 247
So. 3d 627, 628 (Fla. 3d DCA 2018); Tower Hill Prime Ins. Co. v. Torralbas, 176
So. 3d 374, 374 (Fla. 3d DCA 2015); Kling Corp. v. Hola Networks Corp., 127 So.
3d 833, 833 (Fla. 3d DCA 2013); Reid v. Estate of Sonder, 63 So. 3d 7, 11 (Fla. 3d
DCA 2011); Mem’l Sloan-Kettering Cancer Ctr., v. Levy, 681 So. 2d 842, 842
(Fla. 3d DCA 1996). From our jurisdictional perspective, we view the instant
order – determining only a shareholder’s right to advancement of litigation
expenses under an indemnification provision contained in a shareholder’s
agreement and as provided by section 607.0850 – as being substantially similar to
those orders that merely entitle a party to attorney’s fees, without setting an
2 This provision of the rule reads, in its entirety:
(3) Appeals to the district courts of appeal of non-final orders are limited to those that .... (C) determine .... (ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment[.]
Fla. R. Civ. P. 9.130(a)(3)(C)(ii).
4 amount. Specifically, we conclude that the instant order does not determine
Mayers’s “right to immediate possession of property.” See Fla. R. App. P.
9.130(a)(3)(C)(ii).
In so holding, we distinguish the instant interlocutory order – granting
entitlement to advancement – from an interlocutory order denying such
entitlement. An interlocutory order that outright denies a party’s claim for
advancement of litigation expenses under an indemnification provision contained
in a shareholder’s agreement most assuredly determines a party’s right to
immediate possession of property: it determines that the party has no such right.
Ergo, review of an order denying entitlement to advancement is warranted under
rule 9.130(a)(3)(C)(ii).3
Whereas, an order granting entitlement to advancement under an
indemnification clause, without affixing an amount of such entitlement, lacks two
essential elements required under the rule. Such an order neither defines
specifically the property to which a party is entitled, nor grants immediate
possession of it. Put another way, requiring Corporation to indemnify its
shareholder (Mayers) for fees and costs Mayers has already incurred and will incur
3 Indeed, in this Court’s recent case of MVW Management, LLC v. Regalia Beach Developers LLC, 230 So. 3d 108, 109 (Fla. 3d DCA 2017), we concluded, without elaboration, that rule 9.130(a)(3)(C)(ii) provides the jurisdictional basis for interlocutory review of an order denying entitlement to advancement under an indemnification clause contained in an operating agreement.
5 during the pendency of the lower proceedings, without setting an amount, does not
determine Mayers’s right to immediate possession of property in this case, as is
required to invoke this Court’s jurisdiction under rule 9.130(a)(3)(C)(ii).
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Third District Court of Appeal State of Florida
Opinion filed December 19, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-2145 Lower Tribunal No. 18-7344 ________________
The Local Door Coupons Franchise, Inc., Appellant,
vs.
Eric Mayers, Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.
Genovese Joblove & Battista, P.A., and W. Barry Blum and Elizabeth G. McIntosh, for appellant.
Zarco Einhorn Salkowski & Brito, P.A., and Colby G. Conforti and Robert M. Einhorn, for appellee.
Before SALTER, SCALES and LUCK, JJ.
ON MOTION TO DISMISS APPEAL
SCALES, J. The Local Door Coupons Franchise, Inc. (“Corporation”), plaintiff below,
seeks review of a non-final order of the trial court requiring Corporation to
advance to defendant Eric Mayers legal fees and costs associated with the ongoing
litigation in the lower proceeding. Mayers filed a motion to dismiss Corporation’s
appeal, asserting this Court lacks jurisdiction to review the trial court’s non-final
order. Because the trial court’s order has not affixed a dollar amount to be paid by
Corporation, we lack jurisdiction to adjudicate the subject non-final order, and
dismiss the instant appeal as premature.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
Mayers is a shareholder of Corporation. In March 2018, Corporation sued
Mayers, alleging that Mayers was improperly representing himself as
Corporation’s chief executive officer, and interfering with Corporation’s
franchisees. Mayers answered Corporation’s complaint and, both individually and
derivatively on behalf of Corporation, asserted counterclaims against Corporation
and third-party claims against Corporation’s former attorney and law firm, and
several of Corporation’s shareholders and officers.
Mayers then, pursuant to section 607.0850(9) of the Florida Statutes1 and the
indemnification provision contained in Corporation’s shareholder agreement, filed
a verified motion seeking an order requiring Corporation to “pay all of Mayers’
1 This statute provides a mechanism and procedure for a corporate agent to obtain indemnification from a corporation under specified circumstances.
2 fees and costs incurred thus far and in the future in the action.” After conducting a
non-evidentiary hearing, the trial court determined that the language of the subject
indemnification provision required Corporation to advance fees and costs to
Mayers for both (i) defense of Corporation’s first-party action against Mayers, and
(ii) prosecution of Mayers’s counterclaims and third-party claims. The trial court’s
order, however, does not determine the amount of any fees and costs to which
Mayers is entitled; in fact, the order specifically states that “[t]he amounts of fees
and expenses subject to advancement will be determined in a subsequent hearing.”
Corporation now appeals this non-final order. Asserting that we lack
jurisdiction to review the subject order, Mayers has filed the instant motion to
dismiss the appeal.
II. ANALYSIS
This Court has appellate jurisdiction to review only those non-final trial
court orders scheduled in Florida Rule of Appellate Procedure 9.130(a)(3). See
Jenne v. Maranto, 825 So. 2d 409, 413 (Fla. 4th DCA 2002) (“The enumerated
categories of permissible nonfinal review stated in rule 9.130 must be limited to
their plain meaning. The rule does not authorize judges to enlarge its provisions to
permit review of nonfinal orders not specified within its provisions.”) (citation
omitted). In opposition to Mayers’s motion to dismiss, Corporation asserts that the
3 subject order determines “the right to immediate possession of property” and, thus,
that we have jurisdiction pursuant to rule 9.130(a)(3)(C)(ii).2
We have routinely concluded, in other contexts, that orders determining
mere entitlement to attorney’s fees, without affixing an amount, are non-
reviewable, non-final orders. See Perlberg v. Lubercy Asia Holdings, LLC, 247
So. 3d 627, 628 (Fla. 3d DCA 2018); Tower Hill Prime Ins. Co. v. Torralbas, 176
So. 3d 374, 374 (Fla. 3d DCA 2015); Kling Corp. v. Hola Networks Corp., 127 So.
3d 833, 833 (Fla. 3d DCA 2013); Reid v. Estate of Sonder, 63 So. 3d 7, 11 (Fla. 3d
DCA 2011); Mem’l Sloan-Kettering Cancer Ctr., v. Levy, 681 So. 2d 842, 842
(Fla. 3d DCA 1996). From our jurisdictional perspective, we view the instant
order – determining only a shareholder’s right to advancement of litigation
expenses under an indemnification provision contained in a shareholder’s
agreement and as provided by section 607.0850 – as being substantially similar to
those orders that merely entitle a party to attorney’s fees, without setting an
2 This provision of the rule reads, in its entirety:
(3) Appeals to the district courts of appeal of non-final orders are limited to those that .... (C) determine .... (ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment[.]
Fla. R. Civ. P. 9.130(a)(3)(C)(ii).
4 amount. Specifically, we conclude that the instant order does not determine
Mayers’s “right to immediate possession of property.” See Fla. R. App. P.
9.130(a)(3)(C)(ii).
In so holding, we distinguish the instant interlocutory order – granting
entitlement to advancement – from an interlocutory order denying such
entitlement. An interlocutory order that outright denies a party’s claim for
advancement of litigation expenses under an indemnification provision contained
in a shareholder’s agreement most assuredly determines a party’s right to
immediate possession of property: it determines that the party has no such right.
Ergo, review of an order denying entitlement to advancement is warranted under
rule 9.130(a)(3)(C)(ii).3
Whereas, an order granting entitlement to advancement under an
indemnification clause, without affixing an amount of such entitlement, lacks two
essential elements required under the rule. Such an order neither defines
specifically the property to which a party is entitled, nor grants immediate
possession of it. Put another way, requiring Corporation to indemnify its
shareholder (Mayers) for fees and costs Mayers has already incurred and will incur
3 Indeed, in this Court’s recent case of MVW Management, LLC v. Regalia Beach Developers LLC, 230 So. 3d 108, 109 (Fla. 3d DCA 2017), we concluded, without elaboration, that rule 9.130(a)(3)(C)(ii) provides the jurisdictional basis for interlocutory review of an order denying entitlement to advancement under an indemnification clause contained in an operating agreement.
5 during the pendency of the lower proceedings, without setting an amount, does not
determine Mayers’s right to immediate possession of property in this case, as is
required to invoke this Court’s jurisdiction under rule 9.130(a)(3)(C)(ii).
Our conclusion is buttressed not only by rule 9.130(a)(3)(C)(ii)’s plain
language, but also by the philosophy limiting piecemeal appeals. See BE & K,
Inc. v. Seminole Kraft Corp., 583 So. 2d 361, 364 (Fla. 1st DCA 1991) (“[T]he
purpose of rule 9.130 is to limit review of non-final orders to prevent the waste of
judicial resources, a consideration that becomes even more compelling as the case
filings in the appellate courts of this state continue to increase at an incredible rate.
Piecemeal review of non-final orders prior to final disposition of all issues must be
strictly limited as much as possible to conserve the sparse judicial resources
available at the appellate level. This is especially true of non-final orders awarding
conditional affirmative relief that may never result in a final judgment against the
defendant.”). It would be nonsensical for this Court to review an interlocutory
order that merely grants entitlement, and then force the parties to engage in
separate appellate proceedings if the amount of the award is also challenged. Case
in point, allowing appellate review of the instant order would necessitate a separate
interlocutory appeal if the amount of the advancement were challenged.
III. CONCLUSION
6 We lack jurisdiction to review the subject non-final order. Because the
subject order determines merely that Mayers is entitled to advancement of
attorney’s fees and costs under the indemnification clause in Corporation’s
shareholder agreement, but fixes no amount of such entitlement, Corporation’s
appeal of the order is premature.
Appeal dismissed.