Perlberg v. Lubercy Asia Holdings, LLC

• Decision Date: 16 May 2018
• Docket Number: No. 3D17–2404,3D17–2404
• Parties: Robert PERLBERG, Appellant, v. LUBERCY ASIA HOLDINGS, LLC, etc., Appellee.
• Court: Florida District Court of Appeals

247 So.3d 627

Robert PERLBERG, Appellant,

v.LUBERCY ASIA HOLDINGS, LLC, etc., Appellee.

No. 3D17–2404

District Court of Appeal of Florida, Third District.

Opinion filed May 16, 2018

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 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...