Jumping the gun: premature appeals in civil cases.

• Author: Albrecht, Bretton C.
• Position: Florida

For parties seeking plenary review, rendition of a final order is like the crack of a starter's pistol. (1) An appeal filed before a final order is rendered may be dismissed as premature, just as an athlete who jumps the gun may be disqualified from a race. Correctly determining whether an order is final and appealable is critical to avoiding a premature appeal. That task can be somewhat tricky, especially in civil cases. The general test of finality is deceptively simple. "The basic rule is that a judgment or order is final if it brings to a close all judicial labor in the lower tribunal." (2) Whether an order ends the judicial labor in a case is often apparent from the nature, style, and language of the order. For example, there is no question as to finality when a final judgment is entered upon a jury verdict that fully resolves the parties' dispute. However, finality is not always so clear, and the appellate courts still see a surprising number of premature appeals.

This article will provide an overview of the three most common types of orders appealed prematurely: 1) final orders awaiting rendition, 2) orders granting motions for summary judgment, and 3) orders granting motions to dismiss. The procedure for remedying premature appeals will also be addressed. Although the discussion will focus on premature appeals in civil cases, the same principles generally apply in criminal cases. (3) The related topics of appealable, nonfinal orders, and appeals from partial final judgments are beyond the scope of this article. (4)

Final Orders Awaiting Rendition

The jurisdiction of an appellate court to review a final order or judgment is invoked by filing a notice of appeal within 30 days of rendition. (5) Generally, "[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal." (6) If any one of these elements is missing--if the order has not been reduced to writing, has not been signed, or has not been filed--then the order has not been rendered. (7) The filing of a timely and authorized postjudgment motion of the type listed in Fla. R. App. P. 9.020(h)--such as a motion for rehearing--suspends rendition until a signed, written order is entered, disposing of the motion, or until the motion is withdrawn or abandoned by the moving party. (8) Once a final judgment has been rendered, any subsequent orders will ordinarily be classified as nonfinal. (9) However, where a postjudgment order accomplishes a final adjudication of a matter not determined in the original final judgment, it will be considered a distinct final order. (10) Such orders are subject to the same rendition requirements just discussed. (11)

An appeal of an otherwise final order that has not been rendered is premature. (12)

Orders Granting Motions for Summary Judgment

Summary judgment is often accomplished through the entry of two sequential orders, an order granting the motion and a subsequent final judgment. It may also be accomplished by a single order. The finality of a summary judgment does not depend on whether it is achieved through one order or two. It depends, instead, on the nature and effect of the order as determined from the language employed. If the order finally resolves all claims between the parties pending in the action by entering judgment in favor of one side and against the other, the order is final and must be appealed within 30 days of rendition. (13) The substance of the order, not the title, is controlling in this respect. (14) No specific magic words are required, but the order must contain unequivocal language of finality that ends the judicial labor in the case in order to be immediately appealable. (15) An order lacking hallmarks of finality that merely grants a motion for summary judgment is not final and not appealable. (16) Such an order can only be challenged in an appeal of a subsequent final judgment. This is because an order granting summary judgment does not actually enter judgment for or against any party; rather, it establishes only an entitlement to judgment. (17) Thus, entry of a final judgment upon an order granting summary judgment is not a benign ministerial act, (18) but a substantive prerequisite for appellate jurisdiction.

An appeal of an order that merely grants, but does not finally enter, summary judgment is premature. (19)

Orders Granting Motions to Dismiss

As with summary judgment, an order that merely grants a motion to dismiss a complaint or an action is not final. (20) To be appealable, the order must unequivocally end the case by dismissing the action between the parties. (21) The title, language, and context of the order should be examined to assess finality. (22) The terms "with prejudice" and "without prejudice" are helpful in making this determination, but they are not conclusive. Unless the order goes beyond granting the motion to actually dismiss the action or complaint, it will be considered nonfinal even if it contains the phrase "with prejudice." (23) That same phrase, when used in an order that accomplishes a final dismissal of the case, is redundant. (24) When the dismissal is without prejudice to file a new and distinct action--not simply an amended complaint in the same case--the order is final. (25) On the other hand, if the dismissal is without prejudice to file an amended complaint, the order is not final. (26) A party who wishes to immediately appeal should advise the trial court that no amendment will be made and request entry of a final order of dismissal. (27) A party who amends may not be able to challenge dismissal of the original complaint in a later appeal because an amended pleading supersedes the original. (28) Ultimately, as with summary judgment orders, the finality of dismissal orders is...