Early appellate remedies: partial final judgments.

• Author: Yagoda, Jay A.
• Position: Florida

The long-settled rule in Florida, and elsewhere, is that an appeal may be taken only from final orders and judgments that bring to a close all judicial labor between the parties and dispose of every issue involved, such that no further action by the lower tribunal is necessary. (1) This "bedrock" principle of appellate court jurisdiction (2) owes its historic origin to judicial economy: piecemeal disposition of a cause still pending in the trial court is greatly disfavored by appellate courts in order to avoid needless or duplicative inquiry in subsequent appeals. (3) But like most rules of general applicability, the final judgment rule, too, is subject to certain well-defined exceptions. One of those exceptions, recognized by Florida state and federal courts alike, authorizes the immediate appeal of orders determined to be "partial final judgments" when rendered--notwithstanding the pendency of other unresolved issues in the trial court.

The appellate courts' authority to review partial final judgments rendered before the conclusion of litigation derives from Fla. R. App. P. 9.110(k) and its federal counterpart, Fed. R. Civ. P. 54(b). The threshold, and oftentimes determinative, inquiry under both rules turns on the nature of the order from which the appeal is taken, i.e., whether the order disposes entirely of a separable claim or dismisses a party completely from the case at hand. (4) If the order satisfies either test, the forum in which a party has chosen to file his or her case will directly affect the prospects of a looming appeal.

Whereas in state court, a party can elect to appeal the order as a matter of right--and, indeed, is required to appeal under specified circumstances or run the risk of forfeiting that right--in federal court, a party's ability to appeal the order rests solely in the trial judge's discretion. And just like choice of forum, practitioners should consider early on whether pragmatic considerations, such as cost, delay, and doubt, outweigh the benefits of this early appellate remedy.

The Florida Rule

Rule 9.110(k) defines an appealable "partial final judgment" in two distinct ways. (5) The first definition is claim specific: "[P]artial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case." (6) The second definition, on the other hand, is party specific: "If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition." (7) Despite the different focus of each definition, both accomplish the same goal: to authorize the appeal of orders that adjudicate separate and independent parts of a case. Of the two definitions, the appealability of claim-specific orders spawns much more confusion and uncertainty.

The test Florida courts have used to determine whether an order qualifies as an appealable partial final judgment actually pre-dates the rule. (8) In Mendez v. West Flagler Family Association, 303 So. 2d 1 (Fla. 1974), the Florida Supreme Court held that "when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appealable if dismissed with finality at trial level and not delayed of appeal because of the pendency of other claims between the parties." (9) There, the plaintiff was permitted to immediately appeal the dismissal of a cause of action, a claim sounding in tort, via summary judgment because the claim was "distinct and separate" from the two remaining contract claims. (10) Three weeks later, the Court in S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla. 1974), reaffirmed this rule, but, in contrast to Mendez, held that the dismissed counterclaim from which the party appealed was "clearly interrelated" because it involved the same substance and the same transaction. (11)

For their part, Florida's district courts of appeal have made considerable effort in clarifying that the supposed interdependence of claims rises and falls on the factual and legal overlap between the dismissed claim or claims from which an appeal is sought and the still-pending claims. (12) As one court has put it: The policy against piecemeal appeals is "relaxed and a partial judgment is appealable as a final order under Florida Rule of Appellate Procedure 9.110(k) when the judgment resolves a distinct and severable cause of action, i.e., the remaining claims do not arise from a set of common facts or a single transaction." (13) Other courts have broken the test down into a three-pronged approach: "(1) Could the causes of action disposed of in the dismissed count be maintained independently of each other? (2) Were one or more parties removed from the action when the partial final summary judgment was entered? (3) Are the counts separately disposed of based on the same or different facts?" (14)

Applying this test, then, if a portion of the case that has been adjudicated involves the same parties, the same transaction, and the same underlying factual background as the remaining portions of the case, courts will not treat it as a partial final judgment subject to immediate appellate review. (15)

No matter which permutation of the test courts choose to employ, one thing remains certain: That different legal theories or additional facts are involved in yet-to-be resolved claims do not mean the order from which an appeal is sought is distinct and separable from those unresolved claims. (16) For example, a trial court's dismissal of several counts of a multi-count complaint would not be ripe for appeal, even if the dismissed counts sounded in contract while the remaining counts sounded in tort, where all claims in the case were interrelated. (17) Therefore, it is the interrelatedness of the claims that weighs most heavily on the determination of whether an order disposes of a distinct and separable claim. (18)

A recitation of the foregoing test always is helpful, but, in this context, providing a laundry list of scenarios under which courts have permitted the appeal of partial final judgments would not be completely satisfying. For one thing, "it is very unusual to find claims in the same lawsuit that are not based on the same facts and were not required to be brought in the same lawsuit." (19) Consequently, courts apply the test rigidly "and, more often than not, conclude that disposed of claims are not sufficiently distinct to qualify as partial final judgments for purposes of the rule." (20) And for another, the likelihood of successfully appealing a partial judgment is incredibly case specific, wholly dependent upon the claims raised in the complaint and the manner in which those claims are pleaded. Courts generally have recognized various classes of orders as appealable partial final judgments, including orders on dismissal, (21) permissive...