9 Fla. L. Weekly Supp. 223a
Appeals — Insurance — Order dismissing declaratory judgment count in multi-count complaint is not appealable final order — Even if order were appealable, appeal is premature where declaratory judgment count was interrelated with remaining count of complaint — Appellate attorney’s fees — Justiciable issues — Where jurisdictional issue does not appear to have been previously addressed in context of appeal from county court to circuit court, court cannot say that appellant’s attorney should have known appellate jurisdiction would not be supported by existing law — However, appellant’s failure to provide transcript rendered appeal without merit — Appellate fees awarded
PHYSICIANS DIAGNOSTIC SYSTEMS, Appellant, vs. ALLSTATE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 01-159 AP. L.C. Case No. 00-4425 SP 23. Opinion filed February 5, 2002. An Appeal from the County Court in and for Miami-Dade County, Mary Jo Francis, Judge. Counsel: Peter D. Weinstein, for Appellant. Jacqueline Emanuel, for Appellee.
(Before MARC SCHUMACHER, PETER LOPEZ, AND KEVIN EMAS, JJ.)
(EMAS, J.) Physicians Diagnostic Systems (PDS) filed suit against Allstate Insurance Company (Allstate). PDS provided medical care to Mr. Tangerife, who was insured by Allstate and who was injured in an auto accident. PDS alleged Allstate failed to pay PDS’ medical bills and refused to provide PDS with a Personal Injury Protection payout sheet. PDS filed a two-count complaint: Count I alleged non-payment of the medical bills. Count II sought a declaratory judgment regarding PDS’ right to know what benefits had been paid. Allstate filed a motion to dismiss Count II for failure to state a cause of action. The trial court entered a final order dismissing Count II, and this appeal followed.
Initially, we must determine whether this Court has jurisdiction to entertain this appeal. Appellee asserts that, because the trial court’s order merely granted a motion to dismiss one count of a two-count complaint, it is not a “final” order and therefore not appealable under the Rules of Appellate Procedure. Further, Appellee asserts, such an appeal is premature since the case is not totally disposed of and a related count of the complaint remains. Appellant counters that the order at issue is a final order because it dismisses one of the counts and because general law, not the rules of appellate procedure, governs appeals from County Court to Circuit Court.
We first recognize that general law, rather than the Rules of Appellate Procedure, governs the appellate jurisdiction of the circuit courts. See Blore v. Fierro, 636 So.2d 1329 (Fla. 1994) (“The authority for appeals to the circuit court is established solely by general law as enacted by the legislature.”). Fla. Stat. §26.012(1), provides:
Circuit courts shall have jurisdiction of appeals from county courts except appeals of county court orders or judgments declaring invalid a state statute or a provision of the State Constitution and except orders or judgments of a county court which are certified by the county court to the district court of appeal to be of great public importance and which are accepted by the district court of appeal for review.
Appellant argues that because the order appealed from is a “final order” under Fla. Stat. §86.011, this Court has jurisdiction. That statute provides in pertinent part that in declaratory judgment actions, a “declaration has the force and effect of a final judgment.” However, the trial court did not enter a declaration of rights or otherwise render a determination on the merits of the claim; instead, it simply entered an order dismissing count II. This is not a “final order” as contemplated for purposes of appeal. See, e.g., Dalola v. Barber, 757 So.2d 1215 (Fla. 5th DCA 2000) (order dismissing declaratory judgment action is a non-final order when order does not dismiss entire cause).
Moreover, even were this Court persuaded that such an order is appealable, it is clear that this appeal must be dismissed as premature under the facts of this case. In R. Hasner Holdings, Inc. v. Garcia, 450 So.2d 331 (Fla. 4th DCA 1984), the trial court dismissed a declaratory judgment count in a multi-count complaint. On appeal, the Fourth District Court analyzed the language of § 86.011, which provides that a declaratory judgment “has the force and effect of a final judgment.” The Court explained that “recognizing that a declaratory judgment has the force and effect of a final judgment does not require the quantum leap that such judgment in every case is a final judgment for the purpose of immediate appeal.” 450 So. 2d at 331 (Fla. 4th DCA 1984) (footnote omitted). The Court held that the entry of a final declaratory judgment as to one count of a multi-count complaint does not entitle appellant to an appeal therefrom when the remaining counts arise out of the same transaction and are interrelated.
This analysis was reaffirmed in Dalola v. Barber, supra. In Dalola, appellants sought to appeal the trial court’s order dismissing a declaratory judgment which was part of a two-count complaint. The Fifth District held that such an appeal was premature, explaining: “Piecemeal appeals are not allowed for claims that are legally interrelated and which substantively involve the same transaction.” 757 So.2d at 1216.
Although R. Hasner Holdings and Dalola involve appeals from the Circuit Court to the District Court, we believe that the underlying policy of avoiding piecemeal appeals applies with equal force to appeals from County Courts to Circuit Courts. Because we find that the declaratory judgment count was interrelated with the remaining count of the complaint (and such was conceded by Appellant at oral argument) this appeal is premature and must be dismissed. The proper time for appeal will be when both counts are resolved in the trial court, and “judicial labor [is] at an end.” Dalola, 757 So.2d at 1216.
Appellee has requested attorney’s fees under § 57.105 contending that the “appeal is premature and is not an appeal of an appealable order whereby it is lacking in any justiciable issue of law or fact.” Section 57.105(1), Fla. Stat. (1999) provides, in part, that:
Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
This provision can be used by appellate courts to assess attorney’s fees against parties who file appeals with no merit. See, e.g. Dicus v. District Board of Trustees for Valencia, 734 So. 2d 563, 564-65 (Fla. 5th DCA 1999) (in which the Fifth District instructed that attorney’s fees be assessed against a party who made an appeal with no merit.)
Because the jurisdiction issue in the instant case does not appear to have been previously addressed in the context of an appeal from a County Court to a Circuit Court, we cannot say that the Appellant’s attorney should have known that appellate jurisdiction would not be supported by existing law. This would normally end our analysis and compel a conclusion that an award of attorney’s fees under § 57.105 is not appropriate. However, additional facts warrant further scrutiny and a different result. Appellant has the burden of demonstrating reversible error, and cannot meet this burden without establishing a record of the proceedings in the trial court. Chirino v. Chirino, 710 So. 2d 696 (Fla. 2d DCA 1998); Compton v. Compton, 701 So. 2d 110 (Fla. 5th DCA 1997). Appellant has failed to provide this Court with a transcript of the hearing (or a proper substitute) at which the court below dismissed the declaratory judgment count. Further, Appellant acknowledged at oral argument that no court reporter was present at the hearing on the motion to dismiss. Accordingly, even if the appeal was ripe, this Court could not address the merits of the appeal because of Appellant’s failure to provide a record of the proceedings below. Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000); Compton, supra.
Appellant knew or reasonably should have known that, without a transcript from the hearing below, this Court would have been required to uphold the decision of the County Court. Appellant’s failure to provide a transcript rendered this an appeal without merit, for which attorney’s fees are proper under § 57.105. Therefore, this case is remanded to the trial court for the assessment of reasonable appellate attorneys fees to be paid to Appellee pursuant to § 57.105, Fla. Stat. (1999).
Appeal dismissed, and cause remanded for assessment of appellate attorneys fees in favor of Appellee. (SCHUMACHER and LOPEZ, JJ., concur.)
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