DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PHILIP MORRIS USA INC.,

Appellant,

v.

BARBARA COHEN, as personal representative 

of the Estate of Rita Shifrin,

Appellee.

No. 4D21-467

[June 8, 2022]

Appeal and cross-appeal from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case 

No. 062008CA000521AXXXCE.

Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, 

DC, Kenneth J. Reilly and Hassia T. Diolombi of Shook, Hardy & Bacon 

L.L.P., Miami, and Jennifer M. Voss of Shook, Hardy & Bacon L.L.P., 

Tampa, for appellant.

Jeffrey V. Mansell and Bard D. Rockenbach of Burlington and 

Rockenbach, P.A., West Palm Beach, and Scott P. Schlesinger, Jonathan 

R. Gdanski, and Brittany C. Barron of Schlesinger Law Offices, P.A., Fort 

Lauderdale, for appellee.

LEVINE, J.

Philip Morris appeals an award of $559,690 in attorneys’ fees imposed

as a sanction based on section 57.105(1) and Moakley v. Smallwood, 826 

So. 2d 221 (Fla. 2002), after finding that several statements made by Philip 

Morris’s counsel during opening statements were in bad faith. We find 

that the trial court erred by awarding attorneys’ fees for the entire trial

because “the amount of the award of attorneys’ fees must be directly 

related to the attorneys’ fees and costs that the opposing party has 

incurred as a result of the specific bad faith conduct of the attorney.” 

Moakley, 826 So. 2d at 227. Since the trial court made “express finding[s]

of bad faith conduct” by Philip Morris’s counsel only as to the opening 

statement, and did not make the same “bad faith” determinations about 

other conduct during the trial, we find that the trial court failed to follow 
2

the requirements of Moakley by demonstrating how the specific bad faith 

conduct in the beginning of the trial was directly related to all the plaintiff’s 

attorneys’ fees for the entire trial. Thus, as a result, we reverse the 

sanctions awarded by the trial court.1 We also find the cross-appeal moot 

based on our reversal in the direct appeal.

The plaintiff, as personal representative of the decedent’s estate, sought 

compensatory and punitive damages against Philip Morris for wrongful 

death. Philip Morris stipulated that the decedent was addicted to 

cigarettes, but disputed whether the decedent’s addiction was a legal 

cause of her COPD, whether the COPD manifested prior to the November 

21, 1996, deadline for filing Engle2 progeny cases, and whether the 

decedent’s COPD caused her death. Philip Morris also stipulated to trying 

phase 1 liability and phase 2 punitive damages together. 

The trial court highlighted the following statements made by Philip 

Morris’s counsel in opening in its order finding “bad faith.” During opening 

statements, Philip Morris contrasted a 1993 radiology report containing 

the decedent’s COPD diagnosis, which the plaintiff referenced in her 

opening, with a 1995 medical record from a different doctor that did not 

mention COPD. Philip Morris then told the jury that the plaintiff would 

not call the doctor who authored the 1993 report. Specifically, Philip 

Morris stated: “That was written by Dr. Fabian. Will they be bringing you 

that testimony about that one paragraph? No.” The plaintiff objected, 

arguing that Philip Morris knew that Dr. Fabian was deceased. The trial 

court asked the plaintiff if she wanted a mistrial, and the plaintiff said no. 

The trial court sustained the objection and gave a curative instruction that 

the doctor had passed away and that both sides have equal access to 

subpoena witnesses. 

Several times during opening, Philip Morris also characterized the 

plaintiff’s case by referring to the plaintiff’s “position” and “theory” of the 

case. For instance, Philip Morris stated: “One theory is that [the decedent] 

was defrauded and started smoking back in the ’40s. . . . Another theory

is that she would have quit smoking in time to avoid getting COPD if she 

had not relied on something Philip Morris said in a 1994 advertisement.” 

(emphasis added). Philip Morris also suggested that “the plaintiff’s 

position” is that “her primary care doctor[] just forgot” to include the 

plaintiff’s COPD diagnosis in a 1995 medical record. (emphasis added). 

Another time, Philip Morris stated: “Can’t or won’t quit, that’s the position

1 As a result of the reversal of the sanctions, we need not address the other issues 

raised by Philip Morris in its brief.

2 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
3

that the plaintiff took in 2010.” (emphasis added). The trial court 

sustained the plaintiff’s objections. At least twice, the trial court advised 

Philip Morris during sidebar to frame its opening statements in terms of 

what the evidence would show and not to talk about the plaintiff’s position 

or frame the plaintiff’s case. 

Next, Philip Morris misrepresented that the plaintiff was seeking 

$81,000 in total compensatory damages, when in fact this figure came 

from the plaintiff’s interrogatory answer for only loss of support and 

services. Philip Morris stated, “And the interesting thing about 

compensatory damages in this claim is the plaintiff hasn’t told us what 

she thinks all of her damages are.” The trial court sustained the plaintiff’s 

objection. Philip Morris continued, “When we ask the plaintiff what are 

the damages, we were told, ‘Undetermined at this time.’” The trial court 

again sustained the plaintiff’s objection. Philip Morris then stated, “18 

months later. That’s what we were told her compensatory damages are.” 

At the time, Philip Morris was showing a slide with the amount of $81,000. 

The plaintiff then asked the trial court for an order to show cause 

against counsel for violating the trial court’s order and also requested a 

“provisional mistrial.” The trial court stated, “There’s no provisional 

mistrial.” After stating that it was “speechless,” the trial court sustained 

the objection, struck the comments about damages, and instructed Philip 

Morris to rephrase its statements.

Philip Morris moved on to discussing punitive damages, stating that 

“they are over and above whatever is awarded for compensatory damage, 

which is what we just talked about.” The plaintiff objected, complaining 

that Philip Morris again pointed to the $81,000 figure, misleading the jury. 

The plaintiff moved to show cause why Philip Morris should not be in direct 

contempt. The plaintiff stated that she “can’t get a fair trial,” but also 

stated that she did not want a mistrial. The trial court recognized that 

Philip Morris was “directly violating my orders,” but declined to hold 

counsel in contempt. The trial court gave a curative instruction, striking 

the reference to the $81,000 being the plaintiff’s compensatory claim. 

Philip Morris next mentioned other lawsuits involving e-cigarettes. 

Philip Morris stated, “Philip Morris can’t be punished for any harm that 

JUUL caused other people.” Philip Morris continued, “And the evidence 

will be that people who are harmed by JUUL can and have brought their 
4

own lawsuits against JUUL—”3 The plaintiff objected, asked the trial court 

to reserve ruling on a motion for mistrial, and again asked for a motion to 

show cause. The trial court sustained the objection and gave a curative, 

advising the jury that other pending lawsuits should not affect its decision. 

The trial court reserved ruling on “additional sanctions.” After a brief 

recess, the trial court then stated there would be entitlement to section 

57.105 sanctions due to Philip Morris’s conduct during its opening 

statement. 

During deliberations, the jury sent a note that it could not get past 

question 1, which asked the jury to determine whether the decedent’s 

addiction to cigarettes containing nicotine was a legal cause of her COPD

which was manifested prior to November 21, 1996. The trial court gave 

the jury an Allen charge. After the jury again indicated it could not come 

to a consensus, the trial court then granted a directed verdict on question 

1. 

The next day, the jury sent another note indicating it was unable to 

agree on questions 2 and 3. Question 2 asked the jury “whether [the 

decedent] reasonably relied to her detriment on a statement, concealment, 

or omission by Philip Morris USA, Inc. not otherwise known or available 

concerning the health effects and/or addictive nature of cigarettes and, if 

so, whether such reliance was a legal cause of her COPD and death.” 

Question 3 asked “whether [the decedent] reasonably relied to her 

detriment on an act or statement made in furtherance of defendant’s 

agreement to conceal or omit material information not otherwise known 

concerning the health effects and/or addictive nature of cigarettes, and, if 

so, whether such reliance was a legal cause of her COPD and death.” After 

confirming the jury was unable to reach a verdict, the trial court declared 

a mistrial and dismissed the jury. 

On March 9, 2020, the trial court entered a sanction order against 

Philip Morris, finding that Philip Morris’s actions “during opening are in 

Bad Faith.” (emphasis added). The trial court further found that “the 

conduct was willful and deliberate” given the repeated violations of

numerous rulings and instructions. The order recounted Philip Morris’s 

improper statements during opening: telling the jury that the plaintiff was 

not calling Dr. Fabian as a witness; continuing to characterize the 

plaintiff’s case contrary to the court’s instructions; informing the jury 

about other pending lawsuits for e-cigarettes; and mischaracterizing an 

3 In Philip Morris USA, Inc. v. Rintoul, No. 4D20-1963, 2022 WL 1482413 (Fla. 4th 

DCA May 11, 2022), evidence regarding JUUL was found to be inadmissible 

against Philip Morris. 
5

interrogatory answer to make it appear as if the plaintiff was claiming 

$81,000 in total economic damages. 

Although the trial court confined its finding of bad faith conduct 

entirely to the opening statement, the trial court also noted other instances 

of improper conduct during the trial, without finding those other acts to 

be in “bad faith.” The trial court found that Philip Morris violated two 

pretrial rulings during cross-examination of a witness, misrepresented the 

record, improperly attacked counsel, and disrespected and attacked the 

court. The court imposed sanctions on Philip Morris under section 

57.105(1) in lieu of contempt, reserving jurisdiction to determine the 

amount or type of sanctions.

During a March 10 sanction hearing, the plaintiff requested only an 

award of attorneys’ fees for the entire trial. The plaintiff did not request 

fees for a portion of the trial, or specifically the time before or during the 

opening statement. During a subsequent evidentiary hearing on October 

19 and 20, the plaintiff again argued she was entitled to attorneys’ fees for 

the entire trial. The plaintiff’s expert also testified that the trial court 

should award fees for the entirety of hours the plaintiff’s counsel expended 

at trial. After the evidentiary hearing, the trial court entered a final 

sanction order, awarding the plaintiff attorneys’ fees in the amount of 

$599,690 for the entire trial based on section 57.105(1) and Moakley. In 

determining this amount, the trial court refused to include fees for one of 

the plaintiff’s attorneys whom the trial court found made improper closing 

arguments. 

Philip Morris appeals. The plaintiff cross-appeals, challenging the trial 

court’s reduction of the fee award based on improper closing arguments 

by her attorney. 

“The standard of review of an order granting sanctions for attorney 

misconduct is abuse of discretion.” Rivero v. Meister, 46 So. 3d 1161, 1163 

(Fla. 4th DCA 2010). “However, to the extent a trial court’s order on 

attorney’s fees is based on its interpretation of the law, we have de novo 

review.” Ferere v. Shure, 65 So. 3d 1141, 1144 (Fla. 4th DCA 2011). 

The attorneys’ fees sanction in this case cannot be upheld under either 

section 57.105(1) or Moakley, the two grounds identified by the trial court 

as the basis for the fee award. Initially, the trial court’s reliance on section 

57.105(1) would be inapplicable. Section 57.105 provides: 

(1) Upon the court’s initiative or motion of any party, the court 

shall award a reasonable attorney’s fee, including 
6

prejudgment interest, 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.

. . . . 

(4) A motion by a party seeking sanctions under this section 

must be served but may not be filed with or presented to the 

court unless, within 21 days after service of the motion, the 

challenged paper, claim, defense, contention, allegation, or 

denial is not withdrawn or appropriately corrected.

“The central purpose of section 57.105 is. . . to deter meritless filings.” 

Davis v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019) (citation 

omitted). The instant case did not involve a meritless filing, but rather bad 

faith statements by Philip Morris in opening. Additionally, fees cannot be 

awarded under section 57.105(1) without complying with the twenty-oneday notice provision set forth in section 57.105(4). Here, there was no 

motion for sanctions under section 57.105(4) and no way for Philip Morris

to “withdraw[] or appropriately correct[]” statements made in opening. See 

§ 57.105(4), Fla. Stat.; Ferere, 65 So. 3d at 1144 (reversing section 

57.105(1) attorney’s fees where plaintiff’s counsel alleged the “doctoring of 

records” during jury selection and there was no way for counsel to 

withdraw or appropriately correct that allegation). 

The sanction also cannot be upheld under Moakley. Philip Morris 

argues that its alleged misconduct did not cause the plaintiff to lose the 

entirety of her trial fees. Philip Morris argues that the issues constituting 

the bad faith conduct earlier in the trial did not relate to the issues on 

which the jury subsequently hung. Additionally, Philip Morris points out 

that the opening statement occurred three weeks prior to the jury not 

reaching a verdict, and there was a ten-day hiatus in deliberations due to 

juror illness, which further extended the temporal relationship between 

the bad faith conduct, as determined by the trial court, and the resulting 
7

mistrial due to the jury’s inability to reach a verdict.

The plaintiff states that the trial court is in the best position to 

determine the impact of improper arguments. USAA Cas. Ins. Co. v. 

Howell, 901 So. 2d 876, 879 (Fla. 4th DCA 2005). Although the trial court 

is indeed in the best position to observe the impact of arguments, that 

position does not relieve the trial court from pointing out specifically how 

the bad faith conduct is directly related to the sanctions, especially in this 

case where the trial court sanctioned Philip Morris for attorneys’ fees for 

the entire trial. 

An award of fees as a sanction “must be directly related to the attorneys’

fees and costs that the opposing party has incurred as a result of the 

specific bad faith conduct of the attorney.” Moakley, 826 So. 2d at 227 

(emphasis added). In Moakley, the Florida Supreme Court concluded “that 

the trial court’s exercise of the inherent authority to assess attorneys’ fees 

against an attorney must be based upon an express finding of bad faith 

conduct and must be supported by detailed factual findings describing the 

specific acts of bad faith conduct that resulted in the unnecessary 

incurrence of attorneys’ fees.” Id. The court went on further to require 

that the finding of bad faith conduct “must be predicated on a high degree 

of specificity in the factual findings.” Id. 

The sanction imposed in the present case cannot be upheld under 

Moakley because the trial court’s only findings of bad faith conduct related 

to what occurred in opening statement. The trial court did not make 

findings of bad faith as to other various incidents interspersed later in the 

trial. However, even if the trial court had made such findings—which it 

did not—that still would not satisfy Moakley’s requirement. Moakley

requires an express finding of bad faith, which is “directly related” to the 

award of attorneys’ fees. Id. The trial court did not demonstrate how the 

attorneys’ fees for the entire trial were “directly related” to the bad faith 

conduct in the opening statement, or for that matter, the various other 

items highlighted by the trial court. Thus, the trial court’s findings fail to 

satisfy both key components of Moakley relating to the attorneys’ fees for 

the entire trial. See Cousins v. Duprey, 325 So. 3d 61, 75 (Fla. 4th DCA 

2021) (reversing where the sanctions award was not “directly related to the 

alleged sanctionable conduct”); Bennett v. Berges, 50 So. 3d 1154, 1160 

(Fla. 4th DCA 2010) (reversing where “the trial court awarded fees that 

were not directly related to the specific bad faith conduct of appellants”); 

Finol v. Finol, 912 So. 2d 627, 629 (Fla. 4th DCA 2005) (granting petition 

for certiorari where “[t]he record and the order also fail to show how the 

fees awarded directly relate to the fees incurred as a result of the alleged 

bad faith conduct”); Heiny v. Heiny, 113 So. 3d 897, 903 (Fla. 2d DCA 
8

2013) (reversing where “the entirety of the wife’s legal fees could not have 

been the direct result of the husband’s misconduct”). 

Further, none of the arguments that the trial court found to be made

in bad faith directly related to the questions the jury hung on. As to 

question 1, the trial court directed a verdict. Thus, the jury effectively 

hung on only questions 2 and 3, which related to concealment and 

reliance. However, the bad faith arguments in opening had nothing to do 

with concealment and reliance. Rather, the bad faith arguments in 

opening related to the plaintiff not calling her doctor witness, 

characterizing the plaintiff’s case, other pending lawsuits for e-cigarettes, 

and misrepresenting that the plaintiff sought $81,000 in total economic 

damages. Even the additional conduct the trial court found to be 

improper—without the required express finding of bad faith conduct—did 

not relate to questions 2 and 3. Additionally, the trial court issued curative 

instructions following the objectionable opening statements. It is wellestablished that a jury is presumed to follow a trial court’s instructions. 

R.J. Reynolds Tobacco Co. v. Thomas, 264 So. 3d 199, 202 (Fla. 4th DCA 

2019). The record simply does not support a finding that Philip Morris’s 

opening statements tainted the entire trial and caused the jury to hang on 

questions 2 and 3. 

As Philip Morris points out, it is impossible to know why the jury hung. 

It is possible the jury could not reach a verdict simply because of a conflict 

in the evidence. Alternatively, the plaintiff’s own closing arguments could 

have played a role in the jury’s inability to reach a verdict inasmuch as the 

trial court found that the plaintiff’s attorney had made improper closing 

arguments. See Miller v. City of Los Angeles, 661 F.3d 1024, 1026 (9th 

Cir. 2011) (reversing award of attorney’s fees for entire trial as a sanction 

where record did not support a finding that closing argument caused jury 

to hang). 

Moakley sanctions are to be awarded for specific instances of bad faith 

conduct which are directly related to the amount of fees incurred. For 

instance, in Patsy v. Patsy, 666 So. 2d 1045, 1046 (Fla. 4th DCA 1996), 

this court affirmed an award of $1,870 in attorney’s fees for filing a sham 

motion with no factual basis solely to delay the proceedings. In Bennett, 

this court found a $12,500 fee award “excessive based upon the extent of 

the sanctionable conduct.” 50 So. 3d at 1160. Instead, “[t]he fee award 

should have been limited to the narrow circumstance of the appellants’ 

failure to come forward with proof of their allegation of theft at the January 

2009 hearing.” Id. See also Moakley, 826 So. 2d at 223 (recognizing the

trial court’s inherent authority to award $1,125 in attorneys’ fees as 

compensation for the time the opposing party expended in responding to 
9

a subpoena, but reversing based on the absence of an express finding of 

bad faith).

Of course, we are not saying that attorneys’ fees can never be awarded 

as a sanction for the entire trial. In Chambers v. NASCO, Inc., 501 U.S. 

32, 51 (1991), the Supreme Court affirmed a $1 million award of attorney’s 

fees for the cost of litigation where the defendant’s “entire course of 

conduct throughout the lawsuit evidenced bad faith and an attempt to 

perpetrate a fraud on the court . . . .” However, unlike in Chambers, this 

is not a case where Philip Morris’s “entire course of conduct throughout 

the lawsuit evidenced bad faith and an attempt to perpetrate a fraud on 

the court.” Id. Rather, the trial court made specific findings of bad faith 

that were limited to Philip Morris’s comments in opening statements. See 

Tenev v. Thurston, 198 So. 3d 798, 802 (Fla. 2d DCA 2016) (reversing an 

award of attorneys’ fees for the entire trial where the “only detailed factual 

finding of bad faith on the part of [the defendant]—the dishonest 

statements to the court—did not warrant a mistrial”). 

Further, when the trial court asked the plaintiff whether she wanted to 

request a mistrial during opening statements, the plaintiff declined and 

maintained that she did not want a mistrial. When the plaintiff proceeded 

with the trial and rejected the offers of mistrial from the trial court, the 

plaintiff then proceeded at her own peril by not availing herself of a 

mistrial. Consequently, had the plaintiff accepted the offer of a mistrial, 

then she would have at least mitigated some of the attorneys’ fees incurred 

by her at trial. Instead, as a result of the plaintiff’s strategic decision, the 

amount of attorneys’ fees incurred by the plaintiff dramatically increased. 

See United States v. Carter, 45 Fed. Appx. 339, 347-48 (6th Cir. 2002) 

(finding waiver where defendant made a strategic decision and refused 

court’s offer to declare a mistrial). A plaintiff who elects to proceed with 

the trial, declines a mistrial, and then does not get the result she wants, 

may not complain about not receiving attorneys’ fees as a sanction for the 

entirety of the trial. 

This case would have been different if, for example, immediately 

following the objectionable opening statements, the plaintiff had moved for 

a mistrial, and the trial court had granted the motion. In such a scenario, 

an award of attorneys’ fees would have been directly related to the bad 

faith misconduct. See Lasar v. Ford Motor Co., 399 F.3d 1101, 1113 (9th 

Cir. 2005) (affirming award of $63,397.50 in attorney’s fees as a sanction 

where trial court granted a mistrial after defendant’s opening statements 

violated two limine rulings). 

It is important to note that the trial court only ruled specifically on the 
10

plaintiff’s request for an award of attorneys’ fees for the entire trial, made 

at the March 10, 2020 sanction hearing as well as at the evidentiary 

hearing held on October 19 and 20, 2020. Additionally, the plaintiff’s 

expert witness testified that the trial court should award attorneys’ fees for 

the entirety of hours the plaintiff’s counsel expended at trial. Significantly, 

the plaintiff never requested or sought a lesser portion of attorneys’ fees. 

Instead, she sought fees only for the entire trial. Even on appeal, the 

plaintiff does not advocate for partial attorneys’ fees. 

“The prohibition against proverbial multiple ‘bites at the apple’ for trials 

remains firmly rooted as the leading, guiding principle to govern the scope 

of remand and should serve as the default direction when these kinds of 

decisions are being made.” Morales v. Fifth Third Bank, 275 So. 3d 197, 

201 (Fla. 4th DCA 2019) (citation omitted). “The party failing to establish 

its attorney’s fees claim is not entitled to a second opportunity to make the 

requisite showing.” Warner v. Warner, 692 So. 2d 266, 268 (Fla. 5th DCA 

1997). By only requesting fees for the entire trial, the plaintiff has not 

sought fees that were “directly related” to the trial court’s finding of bad 

faith, such as the attorneys’ fees incurred prior to and during the opening 

statement. Therefore, we cannot now award attorneys’ fees for that part 

of the trial where the trial court found bad faith conduct.

We also note that the facts of cases like the present one, in principle, 

were a concern of then Chief Justice Wells at the time of the issuance of 

Moakley. Chief Justice Wells listed a host of potential issues in his

concurrence in result only, including the following: “The majority likewise 

does not set any limits on the monetary sanctions which the trial court 

can impose.” 826 So. 2d at 228. He further stated that “[f]rankly, I am 

concerned about arbitrary or intimidating applications of undefined and 

unlimited ‘bad faith’ sanctions.” Id. at 229. Chief Justice Wells’s concerns 

appear to be prophetic. This case demonstrates an example of where 

“undefined and unlimited” sanctions are being issued. Without clear 

definitions and findings of specific bad faith conduct “directly related” to 

the award of attorneys’ fees as a sanction, the sanction has become 

“arbitrary” and “intimidating.” Id.

Finally, we note that there were other remedies available to the plaintiff 

and the trial court. The plaintiff could have accepted the multiple offers 

by the trial court to grant a mistrial. Although we appreciate there may 

be strategic reasons to demur, that is still a decision that the plaintiff 

makes and lives with. Further, a trial court could refer to the Florida Bar 

any examples of specific bad faith conduct. See generally R. Regulating 

Fla. Bar Ch. 4; see also Fla. Code of Jud. Conduct, Canon 3D. There are 

potential contempt powers that may be applicable in certain limited cases. 
11

See § 38.22, Fla. Stat. (recognizing a court’s statutory power to punish 

contempt); Ex parte Earman, 95 So. 755, 760 (Fla. 1923) (recognizing a 

court’s inherent power to punish contempt). Of course, there remains the 

inherent authority of the trial court to award attorneys’ fees under 

Moakley. However, that remains viable only when utilized under the 

specific requirements of that case. Since the trial court did not follow the 

clear dictates of Moakley, we reverse.

In summary, we find the sanction did not follow the requirements of 

Moakley because the award of attorneys’ fees for the entire trial was not 

directly related to the findings of bad faith conduct that occurred during 

opening statement. As such, we reverse. Because we reverse the 

sanctions award, the cross-appeal challenging the reduction in recoverable 

attorneys’ fees is moot and therefore dismissed. 

Reversed; cross-appeal dismissed as moot. 

FORST and KLINGENSMITH, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.