       Third District Court of Appeal
                               State of Florida

                            Opinion filed April 6, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2270
                         Lower Tribunal No. 13-27767
                             ________________


                              Bertha L. Sieber,
                                    Appellant,

                                        vs.

                           Anselmo Tavares Gil,
                                    Appellee.


     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Barbara Areces, Judge.

     Rennert Vogel Mandler & Rodriguez, P.A., and Jason R. Block and Thomas
S. Ward, for appellant.

       De Varona Arango & Weinstein LLC, and Mark L. Weinstein (Cooper
City), for appellee.


Before EMAS, LOGUE and SCALES, JJ.

     SCALES, J.
      Appellant and defendant below, Bertha Sieber (“Sieber”), appeals the trial

court’s non-final order directing immediate disbursement of proceeds from the sale

of partitioned property to pay non-final, attorney’s fee orders rendered during the

petition proceedings. Because Sieber’s counterclaims, which remain pending, arise

out of the same Tenancy-In-Common Agreement (the “Agreement”) that formed

the basis of the partition action by Appellee and plaintiff below, Anselmo

Tavares Gil (“Gil”), we reverse the distribution order, and direct Gil to return any

distributed funds.

      I. Facts

      In 2011, Sieber and Gil together purchased a condominium unit in Miami

(the “Property”). The parties executed the Agreement to evidence each party’s

ownership interest in the Property, and “to provide for the orderly management and

operation of the Property.”

      The Agreement provided that Gil owned a sixty percent interest in the

Property, while Sieber owned a forty percent interest. The Agreement allowed

Sieber occupancy for two years after Gil completed a renovation of the Property.

      The Agreement allowed for either party to seek judicial partition of the

Property. In August of 2013, Gil filed suit to partition the Property. In addition to

partition, Gil sought rent from Sieber’s occupancy of the Property after June 30,



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2013, the date by which Sieber’s two-year occupancy in the Property allegedly

ended.

      Sieber counterclaimed for declaratory relief, breach of contract, and for

specific performance. Sieber’s counterclaims sought entitlement to exclusive

possession of the Property, damages as a result of Gil’s alleged breach of the

Agreement, and a judgment requiring Gil to specifically perform certain

obligations of the Agreement. Sieber alleged, among other things, that Gil never

completed renovation of the Property.

      In February of 2015, the trial court entered an order styled, “Order Granting

Plaintiff’s Motion For Summary Judgment of Partition and Setting Sale Date” (the

“Summary Judgment Order”). The Summary Judgment Order specifically

adjudicated Gil’s partition claim and Sieber’s affirmative defenses thereto, but did

not adjudicate Sieber’s counterclaims.1 The trial court made a factual finding that,

based on an appraisal, the fair market value of the Property was $450,000. The trial

court scheduled a partition sale and determined that Gil was the prevailing party on

the partition action and, therefore, was entitled to attorney’s fees pursuant to the

Agreement.




1 While not clear from the record, it appears that the Summary Judgment Order
also did not adjudicate Gil’s claim seeking rent from Sieber’s occupancy of the
Property.

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      In March of 2015, Sieber filed a petition for writ of certiorari with this

Court, seeking to have the Summary Judgment Order quashed (case number 3D15-

658). In her petition Sieber suggested that, if certiorari review of the Summary

Judgment Order were unavailable, then this Court should treat Sieber’s petition as

an appeal pursuant to Rule 9.130(a)(3)(C)(ii). Gil responded by filing both a

motion to dismiss and a response to Sieber’s petition. In both of these filings, Gil

asserted that the Summary Judgment Order was a non-final, non-appealable order,

and that significant judicial labor remained to be conducted.2 We dismissed

Sieber’s petition, entered an order granting Gil’s motion for entitlement to

appellate attorney’s fees, and remanded the determination of the amount of such

fees to the trial court. Sieber v. Gil, No. 3D15-658 (Fla. 3d DCA April 22, 2015).

      While Sieber’s petition was pending with this Court, the trial court entered

an order awarding Gil $88,891.35 in attorney’s fees for the partition action; and,

via separate order, the trial court awarded Gil $18,750 in fees related to Sieber’s

petition proceedings in this Court.3

2We note that Gil’s counsel in case number 3D15-658 is not Gil’s counsel in these
proceedings.
3 In this appeal, Sieber challenges the processes undertaken by the trial court to
determine the amount of the fees that Gil was awarded. Specifically, Sieber asserts
that Gil erroneously represented to the trial court that Sieber had no objections to
the amount of fees sought by Gil. Because the two interlocutory attorney’s fee
orders entered by the trial court were not final, appealable orders (see Analysis
infra), we need not, and do not, reach this issue. Our determination in this regard is
without prejudice to Sieber challenging these interlocutory attorney’s fee orders

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      The partition sale was held in July of 2015, and Gil was the winning bidder.

After deducting Gil’s credit bid and the costs associated with the sale, the

remaining funds were deposited into Gil’s counsel’s trust account. In August of

2015, Gil filed a motion seeking an order authorizing Gil’s counsel to

disburse $107,641.35 – the combined amount of the two fee orders – to Gil. On

September 17, 2015, the trial court conducted a hearing on Gil’s motion and

entered the order on appeal that authorized disbursement of the $107,641.35, and

ordered that the “[r]emaining funds shall be preserved.”

      Sieber appeals this disbursement order.

      II. Standard of Review

      The issue in this case is whether the trial court prematurely entered the

disbursement    order    prior   to   adjudicating Sieber’s   pending    compulsory

counterclaims. The issue involves a pure question of law and, therefore, we review

the disbursement order de novo. Bosem v. Musa Holdings, Inc., 46 So. 3d 42, 44

(Fla. 2010).

      III. Analysis

      We have little trouble in determining that the Summary Judgment Order

was not a final, appealable order. The order did not end judicial labor in the matter,

and, as argued by Gil in response to Sieber’s earlier petition proceeding before


upon plenary appeal.

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this Court, significant issues remained to be adjudicated in the case. Molina v.

Watkins, 824 So. 2d 959, 964 (Fla. 3d DCA 2002).

        We also note that Gil’s partition claim and Sieber’s counterclaims plainly

involve the same underlying transaction and occurrence and, therefore, Sieber’s

pending counterclaims are compulsory. See Del Rio v. Brandon, 696 So. 2d 1197,

1198 (Fla. 3d DCA 1997).          It was error to allow Gil to execute on those

interlocutory attorney’s fee orders – whose execution the disbursement order

plainly accomplished – prior to resolution of Sieber’s compulsory counterclaims.

Heritage Real Estate & Dev. Co. v. Gaich, 620 So. 2d 1118, 1119 (Fla. 5th DCA

1993). The trial court’s disbursement order requiring that “remaining funds shall

be preserved” does not cure the premature disbursement. Without an adjudication

of the pending compulsory counterclaims (and their accompanying attorney’s fee

claims), there was no final judgment upon which to base any execution.

        The practical rationale for prohibiting premature execution (i.e., execution

without a final judgment) is demonstrated in this case. If Sieber’s compulsory

counterclaims are successful, and Sieber is entitled to fee recovery on those

counterclaims, the final distribution of partition proceeds (the final judgment) will

be affected.4 Indeed, it is possible that, after an adjudication of all claims, Sieber

would be entitled to a greater recovery of partition proceeds than Gil.


4   We express no opinion on the merits of Sieber’s counterclaims.

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      In any event, this case requires additional judicial labor prior to the entry of

a final judgment, and execution is generally improper until a final judgment has

been entered in a case.

      IV. Conclusion

      We reverse the trial court’s disbursement order, and order Gil and his

counsel to return any proceeds disbursed by virtue of that order to Gil’s counsel’s

trust account. We remand for proceedings consistent herewith.

      Reversed and remanded.




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