Allowing interlocutory appeals from orders denying summary judgment.

• Author: Kerrigan, Robert G.

It is generally recognized that the principal purpose of summary judgment procedure is to promote the efficient allocation and use of judicial resources, (1) and to protect litigants from having to bear the costs of trial when no triable issues exist. (2) Summary judgment has been described as an integral part of Florida's judicial system. (3) Summary judgment also safeguards public confidence in the judicial process by allowing cases in which no genuine triable issue is presented to be resolved more quickly and economically than would be possible if a trial was required. (4)

Summary judgment in practice, however, has not realized its lofty objectives. One serious problem in this respect is the inability of a defendant to seek an immediate appeal from a denial of a motion for summary judgment. If claims are completely devoid of factual merit or legal merit (or both), litigants who are required to defend against such claims through a trial and subsequent appeal can only experience frustration, which may result in disdain for the judge, the lawyers, and our system of justice. From our perspective as lawyers and judges, we may not fully appreciate the stress of meritless claims persisting, in some cases, for years. The resources required to defend against meritless litigation can have an especially deleterious effect on small businesses and individual defendants.

Summary judgment procedure provides an important safeguard against unwarranted trials, at least in theory. In practice, however, the benefits that summary judgment was designed to achieve cannot be realized if the established summary judgment standards are not correctly applied at the trial level. Unfortunately, in some state courts today, a party who would be entitled to summary judgment based on a correct application of those standards may nevertheless be forced to submit to trial because interlocutory appeal of summary judgment is not available. Such litigants must endure precisely the sort of costs the summary judgment rule was designed to avoid. (5) If the trial court fails to apply the correct legal principles, appellate review of such an erroneous decision cannot be obtained until after the trial.

Establishing a workable system of pretrial appellate review of orders denying summary judgment would help ensure that the purposes of summary judgment are realized. It would protect citizens and businesses from the financial and reputational damages that can result from erroneous denials of summary judgment at the trial court level. In addition, it would preserve scarce judicial resources that are otherwise used for meritless cases. An interlocutory appeal procedure for denials of summary judgment motions could preserve the intended benefits of summary judgment and overcome the unnecessary and expensive litigation costs caused by trial judges who fail to apply the law correctly. The present rule allows for justice delayed and effectively denied, and undercuts key objectives of our judicial system.

The purpose of this article is to advocate the adoption of a system that would allow some form of interlocutory review of orders denying motions for summary judgment in Florida. The article begins by discussing the general principle prevailing in Florida, and most other jurisdictions, barring any interlocutory review of orders denying motions for summary judgment under most circumstances. The article will then discuss the exceptions to this general rule that exist in some jurisdictions, and conclude by advocating that Florida adopt a system permitting at least discretionary review of such orders before trial.

The general rule in Florida, as well as in the federal courts and most other states, is that a nonfinal order denying a motion for summary judgment is not appealable as of right. (6) Such an order is not appealable as a "final" order because it does not finally dispose of the case. It instead prolongs the case by requiring a trial on the merits. Such an order is not appealable as a nonfinal order because it is not within the limited classes of such orders for which an appeal as of right has been provided by law. (7)

Some Limited Exceptions

A few exceptions to the generally prevailing rule of nonreviewability have been established by judicial decision, statute, or rule. Thus, where defensive motions for summary judgment invoke claims of qualified immunity, appealability has been recognized under the "collateral order" doctrine. This is based on the rationale that such orders are "final" insofar as the immunity claimed encompasses an immunity from suit as well as from liability, so that such an immunity claim raises issues separate and distinct from those raised by the underlying claim on the merits, and that the order denying the claim of immunity cannot be effectively reviewed following a trial. (8) While this exception to the general rule of nonreviewability finds its origin in federal case law, the Florida Rules of Appellate Procedure have been amended to authorize appeals from certain types of orders denying summary judgment based on the same rationale. The Florida rules authorize immediate appeal as of right from orders which determine "that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law." (9) A similar right of interlocutory appeal exists where orders determine "that, as a matter of law, a party is not entitled to worker's compensation immunity." (10) Both of these exceptions appear to be based on a recognition that requiring a defendant to submit to a trial against meritless claims constitutes a substantial legal injury, separate and distinct from the possibility of being held liable to the plaintiff.

The concerns that prompted allowance of interlocutory review of summary judgment denials under the collateral-order rationale are rational, and have resulted in a beneficial and desirable change from the general rule prohibiting interlocutory appeals. Allowing immediate appeals based upon the collateral-order rationale (or on the basis of statutory or rule provisions incorporating that rationale), however, does not solve the broader problem that is the subject of this article. The courts have made clear that while a bona fide claim of immunity from suit may support pretrial appellate review, the same rationale does not extend to the vast majority of cases--cases in which the defendant asserts an entitlement to summary judgment based on the law, or on the absence of genuine issues of fact relating to the underlying claim on the merits--despite the significant costs to the parties and to the system of justice that will result if the defendant is inappropriately required to submit to a trial.

Historic Acceptance of the Burden of Trial

In a leading case, Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994), the U.S. Supreme Court refused to extend the collateral-order rationale to an order denying a motion for summary judgment based on a claimed "immunity from suit" arising out of a contractual agreement between the parties. In so holding, the Court reasoned that such a contract-based claim of immunity from suit did not occupy the same revered status in the law as the immunities to which the collateral-order doctrine has traditionally been applied (principally, the "good faith qualified immunity" available to individual government actors in response to alleged civil rights violations, and the constitutional defense against double jeopardy in criminal cases). The Court further indicated that the rights of a party claiming such a contract-based immunity could be vindicated upon an appeal after final judgment. The Court recognized that a defendant who is improperly compelled to proceed to trial may suffer injuries that are...