Should nonfinal orders determining liability be immediately appealable?

• Author: Fox, Susan W.
• Position: Florida Rule of Appellate Procedure

On April 1, 2000, the Appellate Court Rules Committee filed a petition with the Supreme Court of Florida identifying a variety of areas in which the appellate rules may need improvement. The committee's goal is to keep the rules clear, practical, consistent, and current, while avoiding traps for the unwary and needless delay. The current petition is a collection of points that have been raised during the past four years by court opinions, judges, and individual lawyers.

Perhaps the most substantial proposed change included in the current petition is repeal of rule 9.130(a)(3)(C)(iv), which allows review of nonfinal orders determining liability. This proposal was advocated by the district court of appeal judges who serve on the committee. After debating the issue over the course of several years, the committee decided that decisional law has given an expansive reading to this rule, allowing nonfinal appeals in situations not intended to be reviewable and contrary to the underlying philosophy of the rules. The committee feels the rule should be repealed altogether. Alternatively, the committee proposes amending the rule to allow appeal of orders determining liability only "if entered prior to trial." The Board of Governors of The Florida Bar agreed, although not without debate.

The two articles which follow were written by...