Intro to Appealable Orders
An order rendered by a lower court is appealable if it is a final order, a non-final order appealable under Florida Rule of Appellate Procedure 9.130, or if it is appealable by what are called extraordinary writs. You may be wondering what is a final order. In this article we discuss what makes an order final and when it can be appealed.
Determining Whether an Order has Been Rendered
An order must be rendered before it is ripe for appeal. Perhaps the question of whether an order has been rendered is a separate question from whether an order is final, but rendition should always be considered as a preliminary matter when determining whether an order is subject to appellate review, so we discuss it first in this article.
Pursuant to the Florida Rules of Appellate Procedure, an order is rendered when it is both signed by the judge and filed with the clerk of the lower tribunal. If an order is signed by the judge, but not yet filed with the clerk, rendition has not yet occurred, and so an appeal of that order is not ripe.
Post-Judgement Motions
When any party files any authorized and timely post-judgment or postverdict motion addressing a final order (we will define finality later), rendition of that order is delayed until such motion is adjudicated, unless another applicable rule of procedure provides otherwise. An example of a post-judgment motion that would delay rendition of a final order is a motion for new trial or rehearing pursuant to Florida Rule of Civil Procedure 1.530. If such a motion is timely filed, then rendition of the final order to which the motion is addressed is delayed until the motion itself is adjudicated. Consequently, the time period within which you must file a notice of appeal of the final order does not begin until an order adjudicating the postverdict or postjudgment motion is entered.
At this stage a Florida appellate attorney can provide guidance to determine the best course of action for appealing the final order. Thus, as a preliminary matter when determining whether an appeal is appropriate, you ought to check-off the following criteria:
- Whether an order signed by the judge has been filed with the clerk of the lower tribunal; and
- With regard to final orders, whether an authorized and timely filed postverdict motion is pending before the lower tribunal.
What is a Final Order?
Unfortunately, a final order is not considered by an appellate court to be final merely because it is called a final order. Neither does titling an order as a “final judgment” make that order final. See, e.g., Molina v. Watkins, 824 So.2d 959 (Fla. 3d DCA 2002). An order is not final merely because it grants a motion either. This is true even when the order is one granting a motion for summary judgment or motion to dismiss. Ball v. Genesis Outsourcing Solutions, LLC, 174 So. 3d 498 (Fla. 3d DCA 2015).
Thus, final orders are not orders that are merely called final orders. Rather, a final order “‘adjudicates the merits of the cause and disposes of the action between the parties leaving no judicial labor to be done except the execution of the judgment.’” Westgate Miami Beach. Ltd. v. Newport Operating Corp., 55 So. 3d 567, 572 (Fla. 2010), quoting McGurn v. Scott, 596 So. 2d 1042, 1043 (Fla. 1992).
Determining Finality: Does the Final Order End Judicial Labor
Perhaps the most important part of this analysis is the determination of whether the order puts an end to all judicial labor. For example, an order which determines a party’s liability, but which does not determine the damages the liable party has to pay, is likely not a final order, because the issue of how much in damages the liable party has to pay requires further judicial labor.
In actions for money damages, our courts have over the course of time accepted certain “words of finality”. For example, the phrase “for which let execution issue” is intended to afford finality in a plaintiff’s action for money damages. As another example, in the case where a defendant prevails in an action for money damages, the phrase “plaintiff shall take nothing by this action and defendant shall go hence without day” is intended to afford finality to the order. However, while these phrases are useful to indicate that an order is final, these phrases are not necessary if the order is otherwise final, that is, if the order “‘adjudicates the merits of the cause and disposes of the action between the parties leaving no judicial labor to be done except the execution of the judgment.’” Westgate Miami Beach. Ltd. at 572.
In equitable actions (actions for specific performance, an injunction, declaratory relief, or other kinds of equitable, non-monetary relief) there are no historically accepted phrases which could indicate that an order is final like there are in actions for money damages. Thus, the practitioner, or Florida appellate attorney, is advised to determine whether the order disposes of the action on the merits and whether there is no further judicial labor required.
Impact of Reserved Jurisdiction on The Finality of Orders
An order can be final even if it states that the lower court shall reserve jurisdiction to preside over certain matters. It really just depends upon what the lower court reserves jurisdiction to do. If the lower court merely reserves jurisdiction to enforce the relief granted in the order, the order may still be final. Indeed, “even without an express reservation thereof, jurisdiction inherently remains in the trial court to make such orders as may be necessary to enforce its judgment.” Buckley Towers Condominium, Inc. v. Buchwald, 321 So. 2d 628, 629 (Fla. 3d DCA 1975). On the other hand, if order reserves jurisdiction in the lower court to adjudicate a remaining issue on the merits (for example, the issue of how much money a liable party will have to pay as damages), the order is likely not final.
Orders regarding motions to dismiss, motions for summary judgment, or motions for judgment on the pleadings can be a bit tricky. If the order granting such motions actually dismisses the case, or enters a judgment, as the case may be, it may be a final order. However, if the order merely grants the motion, but does not state that the case is dismissed or that judgment is entered, as the case may be, the order is not a final order. See e.g., Dedge v. Crosby, 914 So. 2d 1055 (Fla. 1st DCA 2005). In the case of summary judgement, if it disposes of all claims, it may be final.
Final Order Exceptions: Partial Final Judgements & Appeals
An order that effectively terminates an action as to one or more defendants, though not all defendants, is a final, appealable order. However, an order dismissing one or more, but not all, counts of a complaint is generally not final and subject to appellate review until the entire case is adjudicated. But there is an exception to this rule. The exception is found in Florida Rule of Appellate Procedure 9.110(k), which says that an order which “disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims” is a partial final judgment. The exception can also apply to an order dismissing a counterclaim, again provided that the order “disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims” and otherwise meets the test of finality. Note however, that a partial final judgment that is appealable under Rule 9.110(k) can be appealed either before the entry of a final judgment disposing of the entire case (but within the time allowed to appeal the partial final judgment itself), or after the entry of a final judgment disposing of the entire case, provided that in either case the notice of appeal is timely filed.
After a judgment is entered, postjudgment orders that fully dispose of postjudgment issues may also be treated as final orders.
Lastly, do not be confused by courts’ interchangeable use of the terms “final order” and “final judgment”. In the words Florida’s Third District Court of Appeals: “Any difference between the terms final ‘judgment,’ final ‘decree,’ and final ‘order’ disappeared long ago, at least for procedural purposes.” De la Osa v. Wells Fargo Bank, N.A., 208 So. 3d 259, 260 (Fla. 3d DCA 2016).
How To Determine If an Order is Final
When determining whether an order is final, first determine whether the order has been rendered. Next, determine whether the order “‘adjudicates the merits of the cause and disposes of the action between the parties leaving no judicial labor to be done except the execution of the judgment.’” Westgate Miami Beach. Ltd. at 572. Try to ascertain what issues the lower court may have reserved jurisdiction to adjudicate, and whether such reservation means that there is significant judicial labor left for the trial court to do. If the action is one concerning money damages, it is helpful to look for historically accepted words of finality like “for which let execution issue” and “plaintiff shall take nothing by this action and defendant shall go hence without day”.
If the action involves multiple defendants, consider whether the order effectively terminates an action as to one or more defendants, even if not all defendants. If the action involves several causes of action, consider whether the order “disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims”, but rest assured that in such a case, you may appeal the order within the time allowed after it is rendered, or within the time allowed after a final judgment disposing of the entire case is rendered.
Entire chapters of Florida Bar appellate practice treatises are dedicated to the subject of what makes an order subject to appellate review. While this article is not intended to provide a full and complete treatment of what makes an order final, it is a useful starting point which addresses some of the more common questions that arise in making this determination. After reviewing the information, you should now have a clear understanding of what is a final order.
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