Review of nonfinal orders - an exception to the requirement of finality.

• Author: Reiter, Jack R.
• Position: Florida

Under Florida law, an order typically must be final before a party can seek appellate review. This maintains continuity and streamlines litigation, preserves the trial court's role as the initial arbiter of conflicts, and avoids piecemeal appeals. (1) Immediate review over nonfinal orders is only permissible when expressly authorized by Florida rules or when a departure from the essential requirements of law warrants original jurisdiction. (2) To determine when review of a specific order is authorized, it is important to distinguish between final and nonfinal orders. If an order is nonfinal, one must determine if it is appealable in accordance with Florida Rule of Appellate Procedure 9.130, or whether another avenue of review, such as an original writ proceeding, must be pursued.

Classifying Orders as Final or Nonfinal

A nonfinal order contemplates continuing judicial labor and typically evades review until the conclusion of a case, when it merges into the final judgment and may be reviewed on plenary appeal. (3)

[T]he 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 a termination of the cause as between the parties directly affected. (4)

This deceptively simple definition is elusive, however, and substance rather than form dictates the analysis. For example, an order granting a motion for summary judgment, without entering final judgment, is typically nonfinal and not appealable because it requires continuing judicial labor. (5) Similarly, an order designated as final may not actually be so if it resolves only one element of a claim arising out of the same transaction, condition, or occurrence as remaining claims. (6)

On the other hand, an order dismissing a complaint without prejudice may be final depending upon the order's impact and the right to amend. (7) A dismissal order is final when a claim can only be pursued by filing a new lawsuit, (8) where there was a failure to exhaust administrative remedies and a clear indication that the proceeding must be brought in a different forum, (9) where the statute of limitations has expired, (10) or where dismissal is based upon a legal defect that cannot be remedied. (11) Litigants must be wary of orders characterized as nonfinal that end judicial labor because the failure to appeal within 30 days will eliminate the ability to obtain review. As one court warned after dismissing an untimely appeal where the litigant failed to appeal from an order not labeled as final, "This case is a good example of why it is important to understand what a court order does and not focus only on how the order is labeled." (12)

Partial Final Judgments and Multiple Parties or Causes of Action

A partial final judgment may constitute a final order if it completely disposes of one of multiple causes of action that is severable from the remaining counts. (13) If claims are interrelated, however, the disposition of one does not necessarily yield a final, appealable order. (14) Also, if an order resolves a compulsory counterclaim or if a related cross-claim remains pending involving the same parties, an order disposing of the counterclaim or cross-claim will not be appealable until the court disposes of the primary claim. (15) But an order that completely disposes of a lawsuit as to one of multiple parties is final as to that party and must be immediately appealed, even if claims remain pending as to other parties. (16) The failure to appeal such an order will preclude review. (17)

Existence of Insurance Coverage

An order that determines the existence or nonexistence of insurance coverage in a case in which a claim has been made against an insured and coverage is disputed by the insurer may be reviewed as either a final or nonfinal order. (18) The Fourth District has held that to be immediately appealable, the order must determine an insurer's coverage liability and not merely a duty to defend. (19) But recently the Second District reiterated that the rule does not expand jurisdiction, but merely identifies the method for reviewing an otherwise final order. (20)

Motions for Rehearing

A motion for rehearing will not toll rendition of a nonfinal order. (21) This can have serious consequences if an immediate appeal is desired--or required. For example, an order denying a motion to vacate judgment under Fla. R. Civ. P. 1.540 is reviewed as a nonfinal order, but is necessarily post-judgment and cannot "merge" into a final judgment. Furthermore, a motion for rehearing directed toward such an order will not toll rendition, so the appeal must be initiated within 30 days from the order denying the motion to vacate or the ability to appeal will be lost. (22)

Categories of Appealable Nonfinal Orders

If an order is nonfinal, it is only immediately appealable if it falls within one of the categories identified in Rule 9.130. Multiple nonfinal orders may be appealed together as long as each order is independently appealable, but appealing a nonfinal order does not create "tag-along" jurisdiction relating to other nonfinal orders that are not independently appealable. (23)

Venue

Orders determining venue are immediately appealable. (24) When appealing a transfer order, the district court overseeing the transferor court addresses the ruling. (25) If other appealable orders are entered contemporaneously with the transfer order, they will also be appealed to the transferor court's district. If an independently appealable nonfinal order is entered after entry of the order transferring venue, however...