Opinion
No. 92-0274.
February 10, 1993. Rehearing Denied March 24, 1993.
Appeal from the Circuit Court for Indian River County, L.B. Vocelle, J.
Robert J. Compton of Compton Associates, P.A., Fort Pierce, for appellants.
Charles W. McKinnon of McKinnon, Stewart, Nall McKinnon Chartered, Vero Beach, for appellee.
Before us are two non-final orders, which we now dismiss.
Turning to the first, the order granting appellee's motion for summary final judgment on a permanent injunction is not a final order. See e.g., Lewis v. North Broward Hospital District, 547 So.2d 313 (Fla. 4th DCA 1989). However, it is appealable under rule 9.130(a)(3)(B), Florida Rules of Appellate Procedure. See also City of St. Petersburg v. Competition Sails, Inc., 449 So.2d 852 (Fla. 4th DCA 1984). An appeal from a non-final order must be taken within thirty days of the date of rendition of the order. Fla. R.App.P. 9.130(b). The notice of appeal in this case was filed approximately five months after entry of the non-final order therefore is untimely.
The second order at issue is one granting the appellee's motion for final summary judgment on attorney's fees. It too, is a non-final order. However, it is not appealable under rule 9.130(a)(3) because it does not fit within any of the limited categories of appealable non-final orders set forth in the rule. In Dobrick v. Discovery Cruises, Inc., 581 So.2d 645 (Fla. 4th DCA 1991), this court receded from the second aspect of its holding in Russell v. Russell, 507 So.2d 661 (Fla. 4th DCA 1987) and now holds that where an appeal has been prematurely filed, the appellant is given the opportunity to obtain a final, appealable order before dismissal. By order of this court, on November 10, 1992, appellants were given five days from the date of the order to produce a final appealable judgment. They have failed to do so.
Accordingly, we dismiss the appeal as to both orders.
DISMISSED.
FARMER, J., concurs.
ANSTEAD, J., concurs in conclusion only.