Rollins Fruit Company, Inc. v. Wilson

• Court: Florida District Court of Appeals
• Writing for the Court: Wallace
• Citation: Rollins Fruit Company, Inc. v. Wilson, 923 So.2d 516 (Fla. App. 2005)
• Decision Date: 28 December 2005
• Docket Number: No. 2D04-2916.,2D04-2916.
• Parties: ROLLINS FRUIT COMPANY, INC., a Florida corporation; and William H. Rollins, Appellants/Cross-Appellees, v. L.S. WILSON, III, and L. Delores Wilson, his wife; and Community National Bank of Pasco County, Appellees, and Sunstate Title Agency, Inc., Appellee/Cross-Appellant.

923 So.2d 516

ROLLINS FRUIT COMPANY, INC., a Florida corporation; and William H. Rollins, Appellants/Cross-Appellees, v. L.S. WILSON, III, and L. Delores Wilson, his wife; and Community National Bank of Pasco County, Appellees, and Sunstate Title Agency, Inc., Appellee/Cross-Appellant.

No. 2D04-2916.

District Court of Appeal of Florida, Second District.

December 28, 2005.

Charlie Luckie, Jr., of Charlie Luckie, Jr., P.A., Dade City, for Appellants/Cross-Appellees.

Charles D. Waller, Dade City, for Appellees Wilson.

Stephen D. Carle of Hodges & Carle, P.A., Zephyrhills, for Appellee/Cross-Appellant Sunstate Title Agency, Inc.

No appearance for Appellee Community National Bank of Pasco County.

WALLACE, Judge.

Rollins Fruit Company, Inc., a Florida corporation, and William H. Rollins (the Sellers) challenge an order that granted motions to dismiss made by L.S. Wilson, III, and Delores Wilson, his wife (the Buyers); Sunstate Title Agency, Inc. (the Escrow Agent); and Community National Bank of Pasco County (the Bank). The Sellers also appeal an order awarding attorney's fees to the Escrow Agent. The order that granted the motions to dismiss is not a final order or an appealable nonfinal order. Therefore, we dismiss the Sellers' appeal of that order because we lack jurisdiction. We reverse the order awarding attorney's fees to the Escrow Agent because the order was prematurely entered.

THE FACTS AND PROCEDURAL HISTORY

In August 2001, the Sellers entered into a contract to sell real property in Pasco County to the Buyers. There were citrus trees on part of the property. The contract was contingent upon the Sellers' ability to obtain releases of mortgages held by Farm Credit and Wamco that encumbered the property. The Buyers arranged to obtain a construction mortgage on the property from the Bank.

At closing, the Sellers were unable to furnish the necessary release of the Wamco mortgage. The parties expected that the release would be forthcoming.¹ Therefore, they closed the transaction in escrow. The Escrow Agent agreed to act as the depositary for the parties. Several months later, the Wamco mortgage was satisfied. The Buyers' attorney notified the Escrow Agent of this fact and requested that it record the documents. The Escrow Agent promptly complied with this request. It recorded the deed from the Sellers, a mortgage from the Buyers to the Bank, and a notice of commencement. The Escrow Agent also tendered a check to the Sellers for the net sales proceeds.

After these events, the Sellers took the position that the Escrow Agent's recording of the documents it had held in escrow was unauthorized. The Sellers also refused to accept the net proceeds check tendered by the Escrow Agent. The Sellers claimed that the contract had been terminated and that they had previously notified the Escrow Agent that "the deal [was] off." The Sellers filed an action against the Buyers and the Bank to quiet title to the property and for the cancellation of the recorded documents. The Sellers also sued the Escrow Agent and the Buyers' attorney for damages. All of the defendants answered the complaint. The Buyers also counterclaimed against the Sellers for a declaration of their rights concerning the transaction and for specific performance of the contract. Although the Buyers had taken possession of the property, the Sellers had picked the fruit from the citrus trees, sold it, and retained the proceeds of the sale. Whether the Sellers or the Buyers were entitled to the proceeds of the sale of the fruit became one of the issues in the litigation.

After the Sellers had completed the presentation of their evidence in a bench trial, each of the defendants moved for a judgment of dismissal in accordance with Florida Rule of Civil Procedure 1.420(b). The trial court granted the motion as to each of the defendants. After the trial court had announced its ruling, the attorney for the Buyers stated that his clients were willing to waive their counterclaim "assuming there is no appeal." In the event the Sellers took an appeal, the Buyers' attorney proposed to "reserve the right to come back on that counterclaim and not take up that time today." The Sellers' attorney made no objection to this unusual procedure, and the trial court agreed to "reserve on the counterclaim."

In a subsequent written order, the trial court ruled, in pertinent part, as follows:

At the close of [the Sellers'] case and the Court's announced order on the motions for directed verdict, the [Buyers] announced that they would forgo their counterclaim for damages provided there was no appeal of the court's decision and the court agreed to reserve jurisdiction for that contingency.

IT IS THEREUPON ORDERED AND ADJUDGED AS FOLLOWS:

1. [The Buyers'] Motion to Dismiss is GRANTED.

2. [The Bank's] Motion to Dismiss is GRANTED.

3. [The Escrow Agent's] Motion to Dismiss is GRANTED.

. . . .

5. There are certain items due to be paid by the [Sellers] to the [Buyers] i.e.[,] the [Sellers] acknowledged that during the pendency of this action, [they] had picked the fruit and placed the moneys in escrow; therefore, the court reserves jurisdiction to determine those amounts if the parties are unable to agree.

In a separate order, the trial court granted the motion made by the Buyers' attorney to dismiss the claim that had been made against him personally. The Sellers have not appealed this order.

The Escrow Agent filed a motion seeking the recovery of its attorney's fees in accordance with Florida Rule of Civil Procedure 1.525. In a separate order entered after the order granting the motions to dismiss, the trial court determined the amount of a reasonable fee for the Escrow Agent's attorney to be $5445 and entered a judgment in favor of the Escrow Agent for this amount. Although the judgment for the Escrow Agent's attorney's fees incorporated traditional words of finality, including "for which let execution issue," it did not address the parties' substantive claims that had been asserted in the litigation.

The Sellers appealed the order granting the motions to dismiss made by the Buyers, the Escrow Agent, and the Bank. The Sellers also appealed the order granting judgment for attorney's fees in favor of the Escrow Agent. The Escrow Agent filed a notice of cross-appeal from this order, but it has not pursued the cross-appeal.

DISCUSSION

A. The Order Granting the Motions to Dismiss

We lack jurisdiction of the Sellers' appeal of the order granting the motions to dismiss. This order is not a final order, and it is not an appealable, nonfinal order. Two features of the order render it nonfinal between the Sellers and the Buyers; a third characteristic of the order is sufficient to deprive it of finality as to all of the parties.

First, the order purported to dispose of only the Sellers' claims against the Buyers, the Escrow Agent, and the Bank. The trial court specifically reserved jurisdiction over the Buyers' counterclaim against the Sellers. But the Buyers' counterclaim was compulsory, not...