Parties on appeal.

• Author: Elligett, Raymond T., Jr.
• Position: Florida

In many appeals, especially those with only two parties, counsel do not dwell on the proper parties to an appeal. However, party issues can become more complicated in multiparty litigation, and when considering how an appeal may affect those who are not made parties to the appeal. Parties can also lose their standing to appeal.

Standing: Who Can Appeal?

Nearly half a century ago, the Florida Supreme Court summarized standing, or the question of who can appeal, by stating: "Before a person may bring an appeal he [or she] must be a party or privy to the record and must show that he [or she] is, or will be, injuriously affected by the order sought to be reviewed."[1]

A Second District decision issued in 1997 discusses two lines of Florida case law on standing: one holding a party cannot appeal an order in its favor, and another holding it can appeal if it is aggrieved by some aspect of the order.[2] The following year, in Cocoa Academy for Aerospace Tech. v. School Bd. of Brevard County, 706 So. 2d 397 (Fla. 5th DCA 1998), the Fifth District dismissed an appeal from the denial of an application to form a charter school where no entity had been formed to administer the program. The court stated:

It is a basic premise that unless an in rem proceeding is before the court, a cause of action must be conducted by or opposed by a "person" recognized under the laws of this state. Generally, this person has the capacity to sue and be sued. In the instant matter, only one party, the appellee, School Board, is visible to this court, and Cocoa Academy of Aerospace Technology, although designated as the appellant, is not.[3]

In Khazaal v. Browning, 707 So. 2d 399 (Fla. 5th DCA 1998), the Fifth District held the grantor of a security interest being foreclosed (a liquor license) had a sufficient stake in the litigation to appeal the default final judgment of foreclosure. The court also held the appellant's redemption of the license was an involuntary payment, and so did not preclude him from pursuing the appeal.

Standing questions can arise in multiparty cases. Sheradsky v. Basadre, 452 So. 2d 599 (Fla. 3d DCA 1984), addressed whether a third-party defendant could obtain relief from the third-party judgment by successfully challenging the merits of the original plaintiff's case, even though defendants/third-party plaintiffs had not taken an appeal from the original judgment.

County-Wide Commercial Laundries, Inc. (the original plaintiff), obtained a judgment for wrongful eviction against the purchasers of an apartment house, Basadre and the Gorras (defendants/third-party plaintiffs), who in turn obtained a third-party judgment against the seller of the property, Sheradsky (third-party defendant).

The court held that, notwithstanding the failure of a defendant/ third-party plaintiff to appeal, where there is error in the original judgment a third-party defendant may seek review of that judgment in an attempt to set aside the otherwise error-free third-party judgment. The court found persuasive a federal decision reaching the same result under an analogous federal rule of procedure that permits third-party defendants to assert any defense that a defendant could have asserted.[4] Sheradsky also cited a decision approved by the Florida Supreme Court that held one codefendant could appeal a judgment exonerating another codefendant that would have destroyed the appellant's right to seek contribution from the exonerated defendant.[5]

Not only can a defendant appeal an order relieving a codefendant of liability, it must do so or lose the right to seek future contribution.

In Holton v. H. J. Wilson Co., Inc., 482 So. 2d 341 (Fla. 1986), the plaintiff Collom sued the City of St. Petersburg, Jack Holton as the owner of the land, and Wilson as the builder of the storm sewer where his wife and daughter drowned. Wilson obtained a summary judgment against the plaintiff Collom in April 1980, which the appellate court affirmed in March 1981.

Holton failed to participate in the appeal of the judgment exonerating Wilson. Instead, in August 1980, Holton filed a motion for leave to file a third-party complaint against Wilson, seeking contribution or indemnity. The trial court heard and denied this motion in July 1981, finding the district court's affirmance of the summary judgment determined Holton's claims. Finding no requisite common liability justifying a claim of contribution, and no relationship between the defendants creating a right to indemnity, the court denied the motion. Holton did not appeal.

Three years later, Holton successfully brought Wilson back into the litigation when another trial judge granted Holton's motion for reconsideration of his earlier motion seeking leave to file a third-party complaint against Wilson. With his...