       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.

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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




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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.

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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




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      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.




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