SPECIALTY INSULATION & WATERPROOFING, CO., INC., APPELLANT,
v.
R & C OF ORLANDO, INC. ETC., ET AL., APPELLEES
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An award of attorney's fees based on a partial summary judgment is premature and must be reversed if the partial summary judgment is not independently appealable.
Specialty filed a counterclaim, and the trial court granted partial summary judgment for Capital Investment on one count, awarding attorney's fees and…
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HARRIS, J.
The trial court, in a multiple-count counterclaim filed by Specialty, entered a partial summary judgment in favor of Capital Investment Orlando, Inc. on the count seeking to foreclose a construction lien. Because of the rule against piecemeal appeals, this partial summary judgment was not appealable. The court, however, also awarded attorney’s fees to Capital Investment and authorized immediate execution. Since Specialty has not yet had the opportunity to challenge the propriety of the partial summary judgment, it claims that it is premature to subject it to execution of an attorney’s fees judgment based on the partial summary judgment. We agree.
In a similar situation, the Third District ruled in Arango v. Cainas, 666 So. 2d 970, 971 (Fla. 3d DCA 1996):
We decline to pass on the merits of the summary judgment entered on the civil theft claim as this order has not and could not be appealed because it is neither an appealable final order ... nor an appealable non-final order. We conclude, however, that the attorney’s fees order under review should be reversed because it was prematurely entered. Such an order should be entered only at the conclusion of the case below after all the counts of the complaint have been disposed of.
Likewise, we hold that the award of attorney’s fees in this case was premature.
REVERSED and REMANDED to withdraw the attorney’s fees judgment.