      Third District Court of Appeal
                              State of Florida

                         Opinion filed March 14, 2018.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                              No. 3D16-2633
                         Lower Tribunal No. 15-9407
                            ________________


                          Milena R. Balmaseda,
                                   Appellant,

                                       vs.

       Okay Insurance Exchange of America LLC, etc., et al.,
                                   Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Reemberto
Diaz, Judge.

     Law Offices of Sina Negahbani, and Sina Negahbani, for appellant.

     Jason M. Wandner, P.A., and Jason M. Wandner, for appellees.


Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.

                        ON MOTION FOR REVIEW

     ROTHENBERG, C.J.
      Milena R. Balmaseda (“Balmaseda”) seeks review of the trial court’s order

awarding appellate attorney’s fees to the appellees, Okay Insurance Exchange of

America LLC, etc., et al. (collectively, “Okay Insurance”), pursuant to this Court’s

order dated July 12, 2017. See Fla. R. App. P. 9.400(c) (stating that review of a

lower tribunal’s order assessing attorney’s fees and costs acting under order of an

appellate court “shall be by motion filed in the court within 30 days of rendition”);

Pellar v. Granger Asphalt Paving, Inc., 687 So. 2d 282, 284 (Fla. 1st DCA 1997)

(providing that, pursuant to rule 9.400(c), “the correct method of seeking review of

an order on appellate costs or attorney’s fees is to file a motion for review in the

appellate court in the proceeding that was the subject of the award, within 30 days

of rendition of the order in the lower tribunal”). For the reasons that follow, we

grant the motion for review and reverse the trial court’s order awarding attorney’s

fees to Okay Insurance.

      The procedural history and posture of the case are as follows. Balmaseda

filed a pregnancy discrimination suit against Okay Insurance. Thereafter, Okay

Insurance filed a counterclaim asserting that Balmaseda violated the two-year non-

compete provision in her employment agreement, seeking both monetary damages

and injunctive relief. Okay Insurance moved for a temporary injunction as to its

counterclaim to enforce the non-compete provision in the employment agreement,

which the trial court granted. Balmaseda appealed the entry of the temporary



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injunction, and this Court affirmed. Balmaseda v. Okay Ins. Exchange of Am.,

LLC, 228 So. 3d 565 (Fla. 3d DCA 2017). On July 12, 2017, this Court entered an

order granting Okay Insurance’s motion for appellate attorney’s fees and

“remanded to the trial court to fix amount.”

      Following this Court’s affirmance of the temporary injunction entered in

favor of Okay Insurance, Balmaseda moved for a summary judgment as to Okay

Insurance’s counterclaim, arguing, in part, that Okay Insurance’s right under the

non-compete provision to seek a permanent injunction had expired, and Okay

Insurance filed a competing motion for summary judgment as to its counterclaim.

Following a hearing on the competing motions for summary judgment, the trial

court entered an order: (1) denying Okay Insurance’s motion for summary

judgment; and (2) granting, in part, and denying, in part, Balmaseda’s motion for

summary judgment as to Okay Insurance’s counterclaim. Specifically, the trial

court’s order provides that “Ms. Balmaseda has clearly shown that the counter-

defendants are not entitled to injunctive relief. Final summary judgment entered in

her favor as to injunctive request.      Court denies summary judgment as to

damages.” Thus, because the trial court denied Balmaseda’s motion for summary

judgment as to Okay Insurance’s claim for damages relating to Balmaseda’s

alleged violation of the non-compete provision, the issue of damages remains

pending.



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      At a separate hearing, the trial court addressed this Court’s July 12, 2017

order, which granted Okay Insurance’s motion for appellate attorney’s fees and

“remanded to the trial court to fix amount.” Following the hearing, the trial court

entered an order awarding over $8,000 in appellate attorney’s fees to Okay

Insurance. The trial court, however, stayed the execution of the award to allow

Balmaseda to “seek clarification of the entitlement award” from this Court.

Balmaseda’s timely motion for review followed.

      In the motion for review, Balmaseda argues that the trial court should not

have awarded Okay Insurance attorney’s fees, although Okay Insurance prevailed

in the interlocutory appeal before this Court, because Okay Insurance did not

ultimately prevail in the lower tribunal. Based on our review, we conclude that

this Court’s instructions to the trial court “to fix amount” has caused the trial court

to prematurely address and rule on Okay Insurance’s motion for appellate

attorney’s fees because Okay Insurance’s counterclaim has not yet been fully

resolved.

      We accept responsibility for the confusion that this Court’s order granting

Okay Insurance’s motion for appellate attorney’s fees following the interlocutory

appeal may have caused.        The order granting Okay Insurance’s motion for

attorney’s fees should have provided that the fees were contingent on Okay

Insurance ultimately prevailing in the lower tribunal on its counterclaim against



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Balmaseda. See Sabina v. Dahlia Corp., 678 So. 2d 822, 822-23 (Fla. 2d DCA

1996) (“[I]n an interlocutory appeal, the party prevailing on the interlocutory

appeal must also be the ultimately prevailing party in the trial court to be entitled

to a final judgment of appellate fees from the interlocutory appeal.”); see also

Allstar Builders Corp. v. Zimmerman, 706 So. 2d 92, 92 (Fla. 3d DCA 1998).

      The posture of the case reflects that, although the trial court granted

summary judgment in favor of Balmaseda as to Okay Insurance’s request for

injunctive relief, the trial court denied Balmaseda’s motion for summary judgment

as to Okay Insurance’s request for damages, and thus, Okay Insurance’s request for

damages remains pending. Because the issue of damages remains pending, Okay

Insurance’s counterclaim has not yet been fully resolved and, thus, the trial court’s

fee judgment was prematurely entered.        Accordingly, we grant Balmaseda’s

motion for review and reverse the trial court’s order awarding appellate attorney’s

fees to Okay Insurance.

      Motion for review granted; trial court’s order awarding appellate attorney’s

fees reversed.




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