Mare Ruling on Motions for Summary Judgment Appealable? Florida Family Law
Is It Over Still? A Primer on Federal and State Appellate Finality Doctrines
During ceremonious litigation, trial lawyers often ask whether a dismissal or summary judgment guild is final and appealable.[1] Regrettably, even in these common scenarios, the well-known federal and state finality tests offer inadequate guidance. In theory, the tests audio straightforward and like. But in practice, they are difficult to utilise and lead to divergent results. This article illuminates some differences between the federal and state finality doctrines as applied to dismissal and summary judgment orders and explains how to file federal and state notices of appeal.
Is My Social club Final and Appealable?
When considering appellate remedies, a litigator's outset and foremost conclusion is whether a dismissal or summary judgment club is last and appealable. Merely this is easier said than done. The 11th Excursion has jurisdiction over "appeals from all final decisions of the district courts."[2] A federal order is final and appealable only when it "ends the litigation on the merits and leaves nothing for the courtroom to do only execute the judgment.'"[3] Similarly, the Florida district courts of appeal accept jurisdiction over "final orders of trial courts, not straight reviewable past the supreme court or a circuit court."[4] A country order is final and appealable only "when information technology adjudicates the merits of the crusade and disposes of the activeness…leaving no judicial labor to be done except the execution of the judgment."[5]
To the untrained middle, these federal and land finality doctrines appear identical and simple. In practice, however, these two tests are deceptively alike and nowhere near obvious. Rather, these near-tautological tests operate quite differently and obscure of import variations between federal and state appellate practice.
These variations stalk from two notable procedural distinctions. First, Federal Dominion of Ceremonious Process 58 imposes a waivable requirement that, with exceptions not pertinent here,[half-dozen] "[due east]very judgment and amended judgment must be prepare out in a carve up certificate."[vii] Second, federal law more often than not prohibits piecemeal appeals of partial judgments granted as to certain claims or parties absent certification per Fed. R. Civ. P. 54(b).[8] In contrast, state judgments need non be prepare forth on a separate document,[9] and litigants may have piecemeal appeals from last orders limited to certain claims or parties without certification.[10] Information technology is lilliputian surprise, then, that these two procedural distinctions give rise to two critical noun differences between the state and federal certitude doctrines.
The outset divergence is that Florida'south lack of a dissever-document-judgment rule means land orders are non final unless they "include specific 'language of finality.'"[11] For instance, a country order that uses magic words such as "plaintiff take zippo by this accommodate [and] become hence without day" is final, considering the additional linguistic communication "lends the necessary unequivocal declaration of finality that will support an appeal."[12] Similarly, a state club that "does non contemplate any farther judicial labor with regard to the rights of the parties" past stating "Final Summary Judgment is hereby entered" is sufficiently final for appeal.[xiii] In contrast, a state order that dismisses a complaint "with prejudice," but does not "actually dismiss the action," is non final for appellate purposes.[14] A country order that merely grants summary judgment without going further and actually entering summary judgment is never final.[15] A "not-final club denying summary judgment is not appealable."[16] Absent judgments on separate documents, only linguistic communication of finality can clarify whether state orders are final.
The federal separate-document-judgment rule, however, dispenses with the need for magic words of finality. For this reason, federal dismissals can be terminal whether they are "with or without prejudice."[17] Ordinarily, a federal "dismissal without prejudice, which is non appealable, is distinguished from a dismissal with prejudice, which is appealable."[18] But sometimes a federal "dismissal without prejudice can be appealed," and so long equally it otherwise is a concluding order.[19] For example, a federal dismissal without prejudice can be, nonetheless, final when the district court "f[inds] the defendants allowed from all claims" and "close[s] the case without granting the plaintiff permission to amend or refile."[20] It is just federal dismissals without prejudice that as well grant leave to better that are interlocutory and unappealable. Such dismissals "without prejudice to refiling are not 'final' for purposes of appeal,"[21] at least until the time menstruum within which to improve has expired,[22] because otherwise a litigant would be free to better his pleading and keep the litigation. By contrast, dismissals can exist labeled without prejudice merely because they practice not accomplish the merits and, thus, lack res judicata result, yet nevertheless remain terminal and appealable; such a dismissal without prejudice "refers to the fact that the dismissal is non on the merits, not whether the dismissal is final and appealable."[23] That is because dismissal without prejudice permits a new action, bold the statute of limitations has not run, without regard to res judicata principles.[24] Ultimately, whether a judgment is last and appealable in federal court depends exclusively on whether the district court actually entered judgment (or a judgment is accounted by constabulary to have been entered by the passage of time)[25] as to all claims and all parties.[26]
The second difference is that Florida'southward lack of a no-partial-judgment dominion means that, unlike federal orders, state orders tin can be final and appealable even though they resolve litigation as to only some claims or some parties.[27] That means putative appeals of orders partially granting (not denying) dismissal or summary judgment cannot proceed in federal courtroom absent certification nether Rule 54(b)[28] or 28 U.Southward.C. §1292(b),[29] whereas they tin can sometimes proceed in state court.[30]
How Is an Order Final and Appealable?
These finality rules are all well and good, just information technology is even so difficult to sympathize them fully without putting them in context and applying them to some common scenarios.
Suppose Penelope sues Dmitry and Daphne. In count one, Penelope claims defamation. In count two, Penelope claims invasion of privacy. Chiefly, counts i and two are based on related facts. In count three, Penelope claims breach of contract. Count 3, however, is based on facts unrelated to counts one or 2.
Many dismissal or summary judgment orders might be final and appealable depending on who is trying to appeal, which claims were resolved, and whether the case is in state or federal court. Tables 1 through 4 graphically describe some initial guidance regarding the important distinctions in common situations, with the important caveat that caselaw and court rules are always evolving.
To warm upwards, imagine that y'all are Penelope'due south counsel. The court grants Dmitry's and Daphne's motions to dismiss all counts. Penelope asks whether she can immediately appeal from the following dismissal orders. (Come across table 1.)
Now, suppose the court dismisses only some claims or parties. Penelope asks whether she can immediately appeal from the following dismissal orders. (See tabular array two.)
So, imagine the case gain to summary judgment, and the parties file cross-motions for summary judgment. Penelope asks you once again what her immediate appellate remedies are from the following summary judgment orders. (Encounter tabular array 3.)
Finally, imagine you represent Daphne at summary judgment. Daphne queries what her firsthand appellate remedies are in the same circumstances. (See table 4).
As i tin see, the event of these charts is that there are many variables at play in determining whether a dismissal or summary judgment guild is final and immediately appealable.
What If I Cannot Find My Order on t he Finality Charts?
Certitude questions tin can, of grade, arise in a wide variety of other circumstances. In each such situation, finality should exist researched and determined anew, specially given the ever-changing nature of the police. For example, suppose a federal court stayed, but did not dismiss, Penelope'due south lawsuit, because she had already sued Dmitry and Daphne for the same causes of action in state court? That would be a final appealable conclusion,[31] even though it is conspicuously interlocutory in the sense that the district court will necessarily have to revisit the litigation at some future time.
Suppose that the federal district court denied Dmitry's and Daphne's motility for summary judgment based on a claim of qualified or accented immunity. That also would exist an appealable order nether the collateral-order doctrine,[32] even though information technology as well would be interlocutory because Penelope'south instance would continue to march on. The betoken is that certitude is vexing for even the almost experienced appellate litigators, and prudent practitioners will read the rules and research the cases anew each and every time the issue arises.
What If It's Nonetheless Unclear Whether My Guild Is Concluding and Appealable?
It is helpful to know the basic contours of the state and federal finality doctrines. Simply what is a litigator to practise when it, nevertheless, remains unclear whether an guild is final? In federal court, this generally should not exist a business organization. Information technology is helpful to think that the xxx-day jurisdictional clock to file the notice of appeal[33] does non start running until the entry of final judgment on a divide certificate per Dominion 58. Indeed, at one time, the 11th Circuit had colorfully explained that litigants "'safely may defer the entreatment until Judgment Day if that is how long it takes to enter the [Rule 58] document.'"[34] Just e'er since Rule 58 was amended in 2002, a judgment is deemed to have been entered no later than 150 days after entry of the otherwise immediately appealable terminal order.[35] Nevertheless, Rule 58's requirement that judgments must exist fix forth on split up documents is waivable, so litigants may, if they wish, appeal from any final order even before judgment is entered or accounted to have been entered.[36]
Indeed, in the rare case that a federal guild were truly cryptic as to whether it was final or interlocutory, Judge Easterbrook of the Seventh Circuit has explained "the only safety route is to treat [the order] as final."[37] This prophylactic rule is necessary because the "alternative lays a trap for unwary (or even wary) litigants, who may forego appeal in reliance on the 'without prejudice' language only to acquire afterwards, and to their sorrow, that the original society was appealable and the time for appellate review has lapsed."[38] In any event, when litigants incorrectly entreatment from interlocutory orders, the 11th Circuit dismisses the entreatment.[39]
If anything, ambiguity regarding certitude is much more likely to arise in land courtroom. Generally, the all-time do is to file a then-chosen protective discover of appeal. Previously, the district courts of entreatment were divide on how to handle such protective notices. The Second, Fourth, and Fifth districts used to relinquish jurisdiction to perfect premature appeals.[40] Just the First and Third districts generally used to dismiss premature appeals.[41] The result of this distinction was that litigants needed to pay appellate filing fees merely in one case in relinquishment jurisdictions, but possibly twice in dismissal jurisdictions.
That separate was resolved by the 2014 amendment to Florida Rule of Appellate Procedure 9.110(50), which "clarif[ied] that it is neither necessary nor advisable to request a relinquishment of jurisdiction from the [appellate] court to enable the lower tribunal to render a final order."[42] Now, under Rule 9.110(l), appellate courts more often than not should dismiss premature appeals (as opposed to relinquishing jurisdiction) unless the lower tribunal enters a final gild before the dismissal occurs.[43] If that happens, the "premature discover of appeal" volition "belong jurisdiction in the [appellate] court."[44] Ultimately, however, Rule ix.110(50) as well gives appellate courts the discretion to "grant the parties additional time to obtain a last order from the lower tribunal."
My Order Is Final and Appealable: When and How Must I File The Find Of Appeal?
In one case a litigator has figured out that the social club is final and appealable, the procedure for filing of a notice of appeal is relatively straightforward. In the 11th Circuit, the notice of appeal must be filed in the commune courtroom along with the appropriate filing fee within 30 days after entry of the judgment.[45] Notably, timely motions for new trial per Dominion 59(a), or to alter or improve a judgment per Rule 59(e), or for relief from a final judgment or gild per Rule 60(b) toll the xxx-day period.[46] The notice of appeal must "designate the judgment, order, or function thereof being appealed."[47] If the wrong judgment(due south), order(south), or parts thereof are designated, the 11th Circuit'southward response will depend on what it thinks the appellant intended to do and whether the appellee is prejudiced.[48]
In state court, the observe of appeal must be filed in the trial courtroom forth with the appropriate filing fee within thirty days after rendition of the final club.[49] Rendition occurs "when a signed, written society is filed with the clerk of the lower tribunal."[50] It is critically important to understand that, particularly in these days of budget cuts, orders frequently are not necessarily filed immediately after they are signed, so prudent appellate practitioners know better than to trust online dockets. Rather, litigators must retrieve the file-stamped document from the trial court. Note as well that rendition tin can be tolled by a timely Rule 1.530 rehearing motion, but only if the order is final.[51] The notice of appeal cannot but designate, but rather must attach, the lodge or orders appealed.[52] If the wrong orders are attached, the appellate court's response will depend, every bit in federal court, on what it determines to be the appellant's intention and the appellee'south prejudice.[53]
Conclusion
The federal and state certitude doctrines are deceptively dissimilar. Although the tests sound straightforward and akin, their application, fifty-fifty in common situations, is difficult and frequently leads to divergent results. Considering application of the finality doctrines tin be then tricky, and particularly considering timely filing a notice of appeal is jurisdictional (at least in civil cases),[54] trial lawyers who exercise not routinely handle appeals should ever consider consulting an appellate practitioner.
[1] Generally, in both federal and country courtroom, the denial of a motion to dismiss or a motion for summary judgment is non an immediately appealable final guild. Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); Morton & Oxley, Ltd. v. Charles S. Eby, M.D., P.A., 916 So. 2d 820, 821 (Fla. 2d DCA 2005); Danford v. Rockledge, 387 So. second 967, 968 (Fla. fifth DCA 1980). This article does non address those situations or their exceptions.
[2] 28 U.S.C. §1291.
[three] OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1368-69 (11th Cir. 2008) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
[four] Fla. R. App. P. 9.030(b)(1)(a).
[5] McGurn v. Scott, 596 And so. second 1042, 1043 (Fla. 1992).
[6] Meet Fed. R. Civ. P. 58(a) (list exceptions).
[7] Fed. R. Civ. P. 58(a); Bank v. Pitt, 928 F.2d 1108, 1110 (11th Cir. 1991) (Rule 58 is waivable).
[8] Fed. R. Civ. P. 54(b) (absent certification, "any guild or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the activeness as to any of the claims"); Edwards v. Prime number Inc., 602 F.3d 1276, 1289 (11th Cir. 2010) (federal appellate courts "have no jurisdiction to consider interlocutory orders outside the scope of [Rule 54(b)] certification, unless some other footing of jurisdiction exists"); SEC v. Carrillo, 325 F.3d 1268, 1272 (11th Cir. 2003) (One of final judgment rule's "central objectives is to ensure that this court does not engage in piecemeal appellate review.") (citation omitted).
[nine] E.g., Monticello Ins. Co. v. Thompson, 743 So. second 1215, 1216 (Fla. 1st DCA 1999) (final orders "actually enter or render a judgment").
[10] Fla. R. App. P. 9.110(k) ("[P]artial concluding judgments are reviewable either on appeal from the partial final judgment or on appeal from the last judgment in the entire instance.").
[11] Monticello Ins. Co., 743 And so. 2nd at 1216.
[12] Allstate Ins. Co. v. Collier, 405 And so. 2d 311, 312 (Fla. 4th DCA 1981).
[thirteen] State Farm Mut. Auto. Ins. Co. v. Open up MRI of Orlando, Inc., 780 So. 2d 339, 340-41 (Fla. fifth DCA 2001).
[14] Dedge 5. Crosby, 914 So. second 1055, 1056 (Fla. 1st DCA 2005).
[15] Wahl five. Taylor, 926 So. 2d 488, 489 (Fla. 2d DCA 2006) ("[A]n gild simply granting a movement for summary judgment is non a last club because it does non enter judgment for or against a party."); Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2nd 146, 150 (Fla. 3d DCA 2002) ("[T]he police is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final gild subject to appellate review."); Mathews v. Urezzio, 788 So. 2d 1133, 1134 (Fla. fifth DCA 2001) ("[A]n order which but grants a move for summary judgment is not a last appealable order.").
[16] U.S. Fid. & Guar. Co. 5. J.D. Johnson Co., 438 So. 2d 917, 919 (Fla. 1st DCA 1983).
[17] Justice v. Usa, 6 F.3d 1474, 1481 (11th Cir. 1993) (quoting Wright & Miller, Federal Practice and Procedure §2376 at 251 (1971)).
[xviii] Versa Prods. v. Abode Depot, USA, Inc., 387 F.3d 1325, 1327 (11th Cir. 2004).
[nineteen] Liberty Nat'fifty Ins. Holding Co. v. Lease Co., 734 F.2d 545, 553 n.xviii (11th Cir. 1984).
[twenty] Samco Global Arms, Inc. v. Arita, 395 F.3d 1212, 1213 n.2 (11th Cir. 2005).
[21] Grayson v. Yard Mart Corp., 79 F.3d 1086, 1094 n.7 (11th Cir. 1996).
[22] Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004).
[23] Grayson, 79 F.3d at 1094 due north.7.
[24] Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir. 2003).
[25] Run into Fed. R. Civ. P. 58(c)(two)(B); see also note 35.
[26] E.one thousand., Citizens Concerned About Our Children v. Schoolhouse Board, 193 F.3d 1285, 1289 (11th Cir. 1999) ("[O]rder dismissing one plaintiff, but not others, is not immediately appealable.").
[27] Compare Fed. R. Civ. P. 54(b) ("[A]ny gild or other conclusion, notwithstanding designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does non cease the action every bit to any of the claims or parties and may be revised at any fourth dimension before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities."), with Fla. R. App. P. ix.110(one thousand) ("[P]artial final judgments are reviewable either on entreatment from the partial concluding judgment or on appeal from the final judgment in the unabridged case.").
[28] Nether Dominion 54(b), a district court "may straight entry of a concluding judgment equally to one or more than, but fewer than all, claims or parties" if "an action presents more than than one claim for relief" or "multiple parties are involved." Fed. R. Civ. P. 54(b). Nevertheless, Rule 54(b) certification still requires the district court to "expressly determine[] that there is no just reason for delay." Id. Additionally, a Rule 54(b) certification triggers appellate jurisdiction but if the certified ruling "'possesses the requisite degree of finality'" past "'completely dispos[ing] of at least one substantive claim.'" Edwards, 602 F.3d at 1289 (quoting Brandt v. Bassett, 69 F.3d 1539, 1547 (11th Cir. 1995)). Importantly, an appellate courtroom "ha[s] no jurisdiction to consider interlocutory orders outside the scope of [Dominion 54(b)] certification, unless some other footing of jurisdiction exists." Id.
[29] A litigant may obtain review of an interlocutory ruling via 28 United statesC. §1292(b) even if that ruling does not possesses the caste of finality required for Rule 54(b) certification. "[T]o obtain §1292(b) certification, the litigant must show not but that an immediate appeal will advance the termination of the litigation but too that the appeal involves 'a controlling question of law as to which in that location is substantial ground for departure of opinion.'" OFS Fitel, LLC, 549 F.3d at 1359 (quoting 28 U.s.C. §1292(b)). Unlike Dominion 54(b), which is a affair inside only the district court's discretion, "§1292(b) certification is wholly discretionary with both the district court and" the appellate courtroom. Id. (emphasis added).
[30] Perry v. Perry, 976 So. 2d 1151, 1153 (Fla. quaternary DCA 2008) (Partial appeals can go on unless "claims are legally interrelated and substantively involve the aforementioned transaction.").
[31] Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.Due south. i, 8-13 (1983).
[32] Light-green v. Brantley, 941 F.2d 1146, 1147 (11th Cir. 1991).
[33] Fed. R. App. P. 4(a)(1).
[34] Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1286 (11th Cir. 2001) (quoting In re Kilgus, 811 F.2d 1112, 1117 (7th Cir. 1987)).
[35] Fed. R. Civ. P. 58(c)(2).
[36] Bank, 928 F.2d at 1110 (Rule 58 is waivable).
[37] Hoskins v. Poelstra, 320 F.3d 761, 763-64 (7th Cir. 2003) (Easterbrook, J.).
[38] Id.
[39] E.k., Jordan v. Avco Fin. Servs., 117 F.3d 1254, 1258 (11th Cir. 1997).
[40] Better Gov't Ass'n of Sarasota County v. Land, 802 So. 2d 414, 415 (Fla. 2d DCA 2001) ("We relinquish this court'southward inchoate jurisdiction for twenty days to allow the appellants to obtain a final summary judgment with sufficient words of certitude."); Korandovitch v. Vista Plantation Condominium Ass'n, Inc., 614 Then. second five, 6 (Fla. 4th DCA 1993) ("Where an entreatment has been prematurely filed, the appellant is given the opportunity to obtain a final, appealable order earlier dismissal."); U.S. Bank Northward.A. 5. Bjeljac, 17 Then. 3d 862, 864 (Fla. 5th DCA 2009) ("We elect to treat this affair as a premature appeal and relinquish jurisdiction.").
[41] Johnson v. First City Banking concern of Gainesville, 491 Then. 2d 1217, 1218 (Fla. 1st DCA 1986) ("Once it has determined that it does non accept jurisdiction, the appellate court may not 'relinquish' this nonexistent jurisdiction for the entry of a proper order which would then invest the appellate courtroom with jurisdiction to hear the entreatment."); Downrite Eng'g Corp. five. Overland Carriers, Inc., 8 So. 3d 1279, 1280 (Fla. 3d DCA 2009) (dismissing premature entreatment).
[42] Fla. R. App. P. 9.110 cmt. (2014).
[43] Although the amended version of Rule nine.110(l) requires appellate courts to either dismiss premature appeals or concur them in abeyance, the Second and 3rd districts have continued their practice of relinquishing jurisdiction to a lower tribunal for it to enter a terminal lodge or rule on a postjudgment motion that has tolled rendition of an otherwise final guild. See Grayness v. Country, 198 So. 3d 780, 782 (Fla. 2d DCA 2016) ("Although we could dismiss this entreatment, we elect to relinquish jurisdiction to the trial court to requite 'the parties additional time to obtain a last social club from the lower tribunal.'" (quoting Fla. R. App. P. nine.110(l)); Santos 5. HSBC Bank U.s.a., Due north.A., 258 So. 3d 535, 536 (Fla. 3d DCA 2018) (acknowledging previous relinquishment of jurisdiction to the lower tribunal for information technology to resolve the appellant's motion to vacate).
[44] Fla. R. App. P. ix.110(l).
[45] Fed. R. App. P. 3(e), 4(a)(ane).
[46] Fed. R. App. P. 4(a)(4)(A)(four), (vi).
[47] Id. 3(a)(1), (c), (e).
[48] Moton v. Cowart, 631 F.3d 1337, 1340 n.2 (11th Cir. 2011).
[49] Fla. R. App. P. 9.110(b).
[fifty] Fla. R. App. P. 9.020(h).
[51] Fla. R. App. P. 9.020(h)(1)(B).
[52] Fla. R. App. P. nine.110(d).
[53] Puga five. Suave Shoe Corp., 417 Then. 2d 678, 679 (Fla. 3d DCA 1981).
[54] Bowles v. Russell, 551 U.Due south. 205, 214 (2007) ("The timely filing of a find of appeal in a civil case is a jurisdictional requirement."); Williams v. State, 324 So. 2d 74, 77 (Fla. 1975) ("[T]imely filing of [a] notice of appeal is jurisdictional."). Simply see Usa 5. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009) ("Considering the deadline in Dominion 4(b) for filing a notice of appeal in a criminal case is not grounded in a federal statute, we hold that it is not jurisdictional.").
This column is submitted on behalf of the Appellate Exercise Section, Nicholas Ari Shannin, chair, and Thomas Seider, editor.
Source: https://www.floridabar.org/the-florida-bar-journal/is-it-over-yet-a-primer-on-federal-and-state-appellate-finality-doctrines/
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