              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                               IN THE DISTRICT COURT OF APPEAL
                                               OF FLORIDA
                                               SECOND DISTRICT




BETHANY TRACE OWNERS'                          )
ASSOCIATION, INC., a Florida nonprofit         )
corporation,                                   )
                                               )
             Appellant,                        )
                                               )
v.                                             )      Case No. 2D13-2792
                                               )
WHISPERING LAKES I, LLC, a Florida             )
limited liability company; and                 )
WATERMEN-PINNACLE, INC., a                     )
Florida corporation, f/k/a Bethany Trace       )
Estates, Inc.,                                 )
                                               )
             Appellees.                        )
                                               )

Opinion filed February 10, 2017.

Appeal from the Circuit Court for Lee
County; Keith R. Kyle, Judge.

Matthew S. Toll of Toll Law, Cape Coral, for
Appellant.

P. Brandon Perkins of Rogers Towers, P.A.,
Fort Myers, for Appellee Whispering Lakes I,
LLC.

No appearance for Appellee Watermen-
Pinnacle, Inc.
    ORDER ON APPELLEE WHISPERING LAKES' MOTION TO REVIEW GRANT
       OF APPELLANT'S MOTION FOR APPELLATE ATTORNEY'S FEES


VILLANTI, Chief Judge.

               By motion filed pursuant to Florida Rule of Appellate Procedure 9.400(c),

Whispering Lakes I, LLC, seeks review of the trial court's order that granted the motion

for appellate attorney's fees filed by Bethany Trace Owners' Association, Inc. (the

Association), and awarded it fees in the amount of $15,000. We grant the motion for

review, reverse the trial court's appellate fee award, and remand for further

proceedings.

               On December 3, 2014, this court issued its opinion in Bethany Trace

Owners' Ass'n v. Whispering Lakes I, LLC, 155 So. 3d 1188 (Fla. 2d DCA 2014). That

decision reversed a summary judgment in favor of Whispering Lakes and codefendant

Waterman-Pinnacle, Inc., in a case that arose out of the ownership of certain land

associated with the Bethany Trace subdivision. The reversal was based on our

determination that the trial court's interpretation of the Association's Covenants,

Conditions, Restrictions & Easements (CCR&Es) was legally erroneous. As a result,

we remanded for further proceedings.

               On the issue of appellate attorney's fees, this court initially entered an

order on December 3, 2014, that granted appellate attorney's fees to the Association

outright as the prevailing party on appeal. Waterman-Pinnacle filed a timely motion for

rehearing on the issue of appellate attorney's fees, and Whispering Lakes filed an

untimely motion for rehearing. This court struck Whispering Lakes' untimely motion for

rehearing, but we granted Waterman-Pinnacle's motion for rehearing, withdrew the




                                             -2-
December 3, 2014, order, and issued a new fee order on January 23, 2015, that

authorized an award of appellate attorney's fees but only if judgment was ultimately

entered in favor of the Association.

              After further proceedings on remand, the trial court entered an order

granting summary judgment in favor of the Association on the issue of liability only.1

The order left open the issue of damages, which was to be set for trial. In the same

order, the trial court found that the Association was the prevailing party for purposes of

an award of attorney's fees under section 10.4 of the CCR&Es as against Whispering

Lakes, but it left the question of the amount of trial court attorney's fees to be

determined.

              On the same day, the trial court entered a separate judgment awarding

the Association $15,000 in appellate attorney's fees against Whispering Lakes. The

purported basis for this fee judgment was the order granting summary judgment to the

Association on the issue of liability, this court's December 3, 2014, order that provided

for an award of appellate attorney's fees in the Association's favor, and the trial court's

determination that this court's January 23, 2015, fee order requiring entry of a judgment

in the Association's favor did not apply to Whispering Lakes. Whispering Lakes timely

filed a motion for rehearing of the appellate fee award, which was denied. This timely

motion for review pursuant to rule 9.400(c) followed.

              In its motion for review, Whispering Lakes notes that there is no judgment

in favor of the Association in the underlying case because damages are still pending.




              1
               Apparently, the Association settled the case with Waterman-Pinnacle, so
there is no issue of fees as between those two parties.


                                             -3-
Rather, there is only an order granting a summary judgment on the issue of liability.

Therefore, Whispering Lakes contends that the Association is not yet entitled to an

award of appellate attorney's fees since an order granting summary judgment on liability

is not a "judgment" and this court's January 23, 2015, award of appellate fees was

conditioned on the entry of a judgment. In opposition, the Association argues that, as

against Whispering Lakes, it does not need to have a judgment entered in its favor

because this court's December 3, 2014, order granting appellate attorney's fees outright

applies to Whispering Lakes and the January 23, 2015, order qualified with the

"judgment" language applied only to Waterman-Pinnacle.

              Thus, as teed up by the motion for review and response, there are two

issues in play: first, whether this court's award of appellate attorney's fees against

Whispering Lakes was contingent on a judgment being entered in favor of the

Association, and second whether there has been a judgment entered in favor of the

Association sufficient to warrant an award of appellate attorney's fees. The answer to

the first question is yes while the answer to the second is no.

              As to the first question, the language of this court's January 23, 2015,

order on appellate attorney's fees is dispositive. In that order, this court withdrew the

order of December 3, 2014, which awarded appellate attorney's fees to the Association

outright. In its place, this court issued a new order that awarded appellate attorney's

fees "contingent on the ultimate entry of judgment in favor of" the Association. Since

the December 3, 2014, was specifically withdrawn and replaced with the new order, the

language of the January 23, 2015, order controls and is binding on all parties and the

trial court. The trial court's determination that our fee order of December 3, 2014,




                                            -4-
continued to apply to Whispering Lakes despite having been withdrawn by this court is

thus clearly incorrect.

              As to the second question, Whispering Lakes is correct that there has

been no entry of a trial court judgment sufficient to entitle the Association to an award of

appellate attorney's fees at this juncture. An order that simply grants a motion for

summary judgment is not a "judgment" because such an order contemplates further

judicial labor. See, e.g., Better Gov't Ass'n of Sarasota Cty., Inc. v. State, 802 So. 2d

414, 415 (Fla. 2d DCA 2001); Harris v. Mosteller, 253 So. 2d 275, 275 (Fla. 2d DCA

1971); see also Judgment, Black's Law Dictionary (7th ed. 1999) (defining a "judgment"

as "[a] court's final determination of the rights and obligations of the parties"). While an

order granting summary judgment may ultimately lead to entry of a "judgment," it is not

a "judgment" in and of itself.

              Here, the order at issue does not purport to enter judgment in favor of the

Association; it merely grants a motion for summary judgment on the issue of liability.

However, our January 23, 2015, order required entry of a judgment before appellate

fees could be awarded. Since the contingency required by our order, i.e., entry of a

judgment in favor of the Association in the underlying case, has not yet occurred, the

award of appellate attorney's fees was premature.

              Therefore, we grant Whispering Lakes' motion for review and quash the

order awarding the Association $15,000 in appellate attorney's fees. On remand, the




                                            -5-
Association may still be entitled to such an award if and when the trial court enters

judgment in its favor.



KELLY and CRENSHAW,2 JJ., Concur.




              2
                  Judge Crenshaw was substituted for Judge Davis, who served on the
original panel.


                                           -6-
