Although certain types of non-final orders are reviewable under Florida Rule of Appellate Procedure 9.130, this category of orders is limited and orders generally must be final before one can seek appellate review. Thus, before taking an appeal, Florida attorneys must first determine whether the subject order will be deemed a final order for appellate purposes. The primary purpose behind this finality requirement is the avoidance of piecemeal appeals. S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974).
Standard for Determining Whether an Order Is Final
The Florida Supreme Court has explained that “the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate terminate of the cause as between the parties directly affected.” S.L.T. Warehouse Co., 304 So. 2d at 99. Although this standard seems rather straightforward at first glance, its application often proves to be tricky. Below is a discussion of certain minefields to avoid in applying this standard.
The Title of the Order Is Not Dispositive
First and foremost, it must be emphasized that Florida attorneys cannot necessarily rely on how an order is labeled in determining whether an order is final for appellate purposes. The mere fact that an order is entitled a “final” or “non-final” order is not dispositive. As one Florida appellate court put it, “it is important to understand what a court order does and not focus only on the how the order is labeled.” Boyd v. Goff, 828 So. 2d 468, 469 (Fla. 5th DCA 2002). In other words, the substance of the order is controlling—not its title.
Finality of Summary Judgment Orders
An order that grants a motion for summary judgment but does not use language entering final judgment in favor of the prevailing party is not a final order. Ball v. Genesis Outsourcing Solutions, LLC, 174 So. 3d 498 (Fla. 3d DCA 2015). The Third District Court of Appeal has recommended that the following language be used to ensure that a summary judgment order is deemed to be final:
For a plaintiff, a final summary judgment should have language that reads something like the following: “The motion for summary judgment is granted. Final judgment is entered as follows. The plaintiff [name and address] shall recover from defendant [name and address] the sum of $ … that shall bear interest at the rate of … % per year for which let execution issue. The court reserves jurisdiction to consider a timely motion to tax costs and attorney’s fees.”
For a defendant, a final summary judgment should have language that reads something like the following: “The motion for summary judgment is granted. Final judgment is entered for defendant [name] and against plaintiff [name]. The court reserves jurisdiction to consider a timely motion to tax costs and attorney’s fees.” Particularly diligent judges and lawyers add the traditional language of finality for a defendant which includes the phrases “plaintiff shall take nothing by this action and defendant shall go hence without day.”
Id. at 499–500.
Finality of Dismissal Orders
One may be tempted to think that an order dismissing an action with prejudice is a final order, whereas a dismissal without prejudice is not. That is not always the case. Where the order makes clear that the dismissal is “‘without prejudice’ to file another, separate, action,” it will likely be considered a final order. Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451, 452 (Fla. 1st DCA 1993). Conversely, where the dismissal is “‘without prejudice’ to file an amended complaint in the first action,” it is a non-final order. Id.
Similarly, an order that dismisses an action without prejudice to the party refiling the complaint after exhausting all available administrative remedies may be considered a final order where it appears that the trial court intended the plaintiff to pursue his or her claim in a different forum or proceeding. Hollingsworth v. Brown, 788 So. 2d 1078 (Fla. 1st DCA 2001). An order dismissing without prejudice may also be considered a final order where the dismissal was based on a legal flaw that cannot be corrected by an amended complaint, such as a determination in a breach of contract action that the agreement lacked the consideration necessary to create a binding contract, Peterson Homes, Inc. v. Johnson, 691 So. 2d 563 (Fla. 5th DCA 1997), or where the court determines that the claim is barred by collateral estoppel principles, Markwood Invs. Ltd. v. Latam Invs., LLC, 40 Fla. L. Weekly D2488 (Fla. 3d DCA Nov. 4, 2015).
Likewise, an order that merely grants a motion to dismiss with prejudice may not be final for appellate purposes where a further act of the court, such as entry of an order dismissing the complaint, is required. Gries Inv. Co. v. Chelton, 388 So. 2d 1281, 1283 (Fla. 3d DCA 1980).
Furthermore, “[a]n order dismissing one or more, but not all, counts of a multi-count complaint relating to the same transaction, condition or occurrence, where the dismissed claims for relief are not ‘distinct and severable’ and no defendant is finally dismissed as a party to the cause, is not a final order . . . .” One Thousand Oaks, Inc. v. Dade Sav. & Loan Ass’n, 417 So. 2d 1135, 1136 (Fla. 5th DCA 1982).
Finality of Partial Final Judgments
A partial final judgment is appealable as a final order when the judgment adjudicates a distinct and severable cause of action that is not interrelated with remaining claims pending in the trial court. Fla. R. App. P. 9.110(k); see also Raymond James & Associates, Inc. v. Godshall, 851 So. 2d 879, 880 (Fla. 1st DCA 2003). However, a partial final judgment is not appealable when it does not dispose of “an entire case as to any party” or where the matters resolved by the order are not independent of the matters left to be resolved. Shephard v. Ouellete, 854 So. 2d 251, 252 (Fla. 5th DCA 2003). A partial final judgment adjudicating a permissive counterclaim is ordinarily appealable because, by definition, a permissive counterclaim is a claim that does “not aris[e] out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Campbell v. Gordon, 674 So. 2d 783, 785 (Fla. 1st DCA 1996) (quoting Fla. R. Civ. P. 1.170(b)).
What Happens If You’ve Prematurely Appealed a Non-Final Order?
Let’s say you’ve committed the cardinal sin of appealing a non-final order that is not reviewable under Rule 9.130. What happens next? Under Rule 9.110(l), the appellate court can dismiss the appeal as premature. Alternatively, Rule 9.110(l) allows the appellate court to grant the parties additional time to obtain a final order from the lower court. For instance, if you’ve obtained an order granting a motion for summary judgment, but the final judgment itself has not yet been entered, the appellate court may provide the appellant additional time to obtain the final order and require the appellant to file an amended notice of appeal thereafter. See, e.g., Ball, 174 So. 3d at 500. This is left to the court’s discretion, however, so the better practice is to obtain the final order prior to filing the notice of appeal.