Appealing an Order Granting Summary Judgment in Florida – Premature

Bernhard Law FirmThis article is an introduction to premature appeals on orders granting motions for summary judgment in Florida. If you have any questions about an appeal in Florida, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

The Courts do not favor piecemeal review of a lawsuit. S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974). Florida law does not generally allow appeals where the case has not reached finality; there are few exceptions. All Fla. Const. Co. v. SCBC Inv. Corp., 985 So. 2d 542, 542 (Fla. 3d DCA 2008) (citing S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)). The test to determine finality of any order is whether it constitutes an end to the judicial labor in the suit and nothing further remains to be done by the trial court to effectuate a termination of the cause as between the parties directly affected. Santana v. Fla. Intern. University, 922 So. 2d 242, 243 (Fla. 3d DCA 2006) (S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)).

Thus, an order simply granting a motion for summary judgment is a nonfinal order that is not an appealable final judgment, as further proceedings remain to bring the order and the action to finality. Blaustein, 997 So. 2d at 1186 (holding Final Default Judgment as to liability was merely an interlocutory order prior to final judgment, as there could be further proceedings on the default issue); Nolan’s Towing and Recovery v. Marino Trucking, Inc., 581 So. 2d 644, 644 (Fla. 3d DCA 1991) (holding order granting summary judgment was nonfinal order that was not appealable final judgment and also not proper under interlocutory appeal rule).[1]

Similarly, an order granting partial summary judgment on some claims but not others is not an appealable final partial summary judgment, where remaining claims are legally and factually related, or involve the same transaction and contract. Dempsey v. Russell, 966 So. 2d 1021, 1022 (Fla. 1st DCA 2007) (rejecting argument that order appealable under Rule 9.110(k) as remaining claims were interdependent); DeMartino v. Simat, 948 So. 2d 841, 843 (Fla. 2d DCA 2007) (holding appellate court lacked jurisdiction to review appeal from summary judgment order); see also Dep’t of Business and Prof. Reg. v. Fla. Ass’n of Wholesale Distributors, Inc., 198 So. 3d 981, 983–84 (Fla. 2d DCA 2016) (holding order granting partial summary judgment is not a final appealable order in an action seeking declaratory and injunctive relief regarding interpretation of statute, where order did not issue an injunction, dispose of an entire action, or remove a party from the action); Universal Underwriters Ins. Co. v. Stathopoulos, 113 So. 3d 957, 959 (Fla. 2d DCA 2013) (dismissing appeal of ruling on declaratory judgment and reciting factors that determine whether an order is an appealable final judgment).[2]

Where the order on appeal does not dispose of separate and distinct causes of action that are not interdependent with other pleaded claims, the Court lacks jurisdiction to review the order. State Farm Mut. Auto. Ins. Co. v. Hawkinson, 195 So. 3d 1202, 1202 (Fla. 1st DCA 2016) (holding appellate court lacked jurisdiction to review declaratory judgment that insurer required to provide coverage under policy for injuries to plaintiff). Where the order does not otherwise trigger limited review under Rule of Appellate Procedure 9.130 for specified final orders and non-final orders, the Court lacks jurisdiction to review the order. Fla. R. App. P. 9.130.

Thus, an order merely granting summary judgment is generally not an appealable final judgment or final partial summary judgment or interlocutory order. Blaustein, 997 So. 2d at 1186; Nolan’s Towing, 581 So. 2d at 644; Baumann, 619 So. 2d at n.2; Centennial, 953 So. 2d at 5; Bravo Elec. Co., 522 So. 2d at 481; Servotech,, 497 So. 2d at 1342; Santana 922 So. 2d at 243; Dempsey, 966 So. 2d at 1022; DeMartino, 948 So. 2d at 843; Dep’t of Business, 198 So. 3d at 983–84; Stathopoulos, 113 So. 3d at 959; Hawkinson, 195 So. 3d at 1202. Accordingly, the Court should lack jurisdiction to review the order should dismiss this appeal as premature.

If you have any questions about an appeal in Florida, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

[1] See also Baumann v. Intracoastal Pacific Ltd. Partnership, 619 So. 2d 403 n.2 (Fla. 3d DCA 1993) (“Although the order was entitled ‘Partial Final Summary Judgment,’ the order was not an appealable order.”); see also Centennial Ins. Co. v. Life Bank, 953 So. 2d 1, 5 (Fla. 2d DCA 2006) (holding order granting partial summary judgment on damages liability for breach was not appealable final order); Bravo Elec. Co., Inc. v. Carter Elec. Co., 522 So. 2d 480, 481 (Fla. 5th DCA 1988) (holding order granting plaintiff’s motion for partial summary judgment on liability, as opposed to judgment itself, was nonfinal, nonappealable order); Servotech, Inc. v. Atlantic Cent. Corp., 497 So. 2d 1341, 1342 (Fla. 5th DCA 1986) (holding order granting plaintiff’s motion for partial summary judgment on liability was not final appealable order, and review could only be sought under limited Rule 9.130 for nonfinal orders, if applicable).

[2] The test to determine whether an order is an appealable partial final judgment: (1) the cause of action could be maintained independently of the remaining causes; (2) one or more parties were removed from the action as a result of the partial final judgment; and (3) whether the counts can be separately disposed of based on the same or different facts. Dep’t of Business and Prof. Reg. v. Fla. Ass’n of Wholesale Distributors, Inc., 198 So. 3d 981, 983–84 (Fla. 2d DCA 2016) (citing Universal Underwriters Ins. Co. v. Stathopoulos, 113 So. 3d 957, 959 (Fla. 2d DCA 2013)).

Bernhard Law Firm

During his law career, Andrew Bernhard has represented national real estate developers, financial institutions, and corporations in their complex commercial, consumer finance, and real estate development matters. In recognition for his work, Super Lawyers magazine designated Andrew as a Rising Star, which is awarded to less than 2.5% of Florida lawyers. The Florida Bar Journal selected Andrew’s white paper on real estate contract deceleration for publication. Litigants have cited his writings in briefs to the Florida Supreme Court and Florida Third District Court of Appeal. The New York Times, Bloomberg Businessweek, and Automotive News have interviewed and quoted Andrew for his position on high-profile contract disputes.

Before establishing Bernhard Law Firm, Andrew Bernhard litigated trials and appeals for Rivero Mestre LLP, handling commercial, finance, and banking disputes. Andrew represented national financial institutions in their escalated litigation matters ranging from violation of federal business and banking statutes, preservation of bank-owned real estate, defending securities fraud claims, and negotiating director and shareholder settlements. Prior to Rivero Mestre, Andrew Bernhard represented Florida communities and national real estate developers in real estate litigation and transactional matters. He also worked under Edwin G. Torres, United States Judge for the Southern District of Florida, and at the San Diego County Public Defender’s Office.

Andrew Bernhard was born and raised in Boulder, Colorado. At age 17, Andrew moved to Costa Rica and later to Mexico. He returned to attend the University of Arizona, where he received a bachelor of science in biology and chemistry. Afterwards, Andrew taught business professionals in Buenos Aires and Milan for Repsol, BASF, American Express, Pfizer, and Phillips, working abroad for several more years. He has traveled to more than 45 countries on six continents.

Andrew Bernhard graduated magna cum laude from the University of Miami School of Law where he served as Executive Chair for the International Moot Court Board and received the CALI Excellence Award for International Moot Court. His professors named him a Dean’s Fellow for constitutional law, property, and legal research and writing, and granted him honors in Business Associations and Litigation Skills. The University of Miami School of Law awarded Andrew Bernhard the John F. Evans Memorial Scholarship for excellence in Litigation Skills.

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Andrew Bernhard – Miami Attorney
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