Seeking appellate review - how to perfect your appeal.

• Author: Brannock, Steven L.

The unfortunate order has just come in the mail. Your client just lost, but you are convinced that the trial court has committed reversible error. You tell yourself (and your client), "If only we can get to the appellate court, all will be well." Knowing the goal, the questions start. Can I appeal this order? If so, to what court? What is my deadline for appealing? Do I have to take the appeal right now or can I wait and appeal the order later in the case? What are the mechanics for filing the appeal? How much does it cost to file an appeal? Read on and your questions will be answered.

Avenues of Appellate Review

Every lawyer knows that there is a right to take an appeal from a final order. But in theory, some procedural mechanism exists to seek appellate review of virtually every order entered by a lower tribunal, even before the case is over. We begin by identifying the avenues of appellate review and when they are available to your client.

There are three basic avenues of appellate review: Review of final orders, review of interlocutory orders permitted by Rule 9.130, and review by extraordinary writ. To determine whether an order can be appealed and the appropriate avenue of review, look at the character of the order. First, consider whether the order is a final order completely disposing of the case. If so, you have an absolute right to an appeal. (1)

* Final Orders--The procedure for review is set forth in Rule 9.110 and is discussed below. An order is considered final when the trial court's judicial labors are at an end. The surest sign that an order is final is when it enters judgment for or against a party to the case, completely disposing of all issues relating to that party. Simply put, a final order is reached as to a particular party when there is nothing left for the court to do to resolve the substantive controversy as to that party. (2)

If you are appealing from a final order, the notice of appeal must be filed within 30 days of the rendition of the final order. (3) If the appeal is not filed within this time period, the right to appeal is forever lost. (4) The appeal from a final order brings before the appellate court all decisions made by the trial court during the course of the case. (5) Thus, any issue raised during the case (and properly preserved for review) is a proper subject of the final appeal, including the trial court's rulings on the motions to dismiss, summary judgment, discovery orders, evidentiary rulings, procedural rulings, jury instructions, the verdict form, and decisions whether to grant a new trial or to enter judgment as a matter of law.

* Determining Whether an Order Is Final--As noted above, the general rule is that the trial court's judicial labors must be at an end as to a particular party for the order to be final. (6) For an order to be final, it must also be written and filed in the court file. (7) An oral ruling is never final. Moreover, the order must have the requisite words of finality; that is, a clear signal that a case is over. For example, an order merely granting a motion for summary judgment or a motion to dismiss is not a final order. (8) How is the appellate court to know that the granting of this motion resolves the case completely? A properly worded final order would leave no doubt: "Defendant's motion for summary judgment is granted and judgment is hereby entered in favor of defendant on all counts in plaintiffs' complaint," or "Judgment is hereby entered in favor of the plaintiff for $50,000 for which let execution issue." It is the entry of judgment rather than the mere granting of a motion that signals that the court's judicial labors are at an end and the order is final. (9)

Generally speaking, the order must dispose of all counts of the complaint as well as any counterclaim before the order is final. Thus, if plaintiff sues in tort and contract and the court enters judgment on the contract claim, there will be no final order in the case until the tort claim is resolved as well. (10) The same holds true for a counterclaim. Entry of judgment on the defendant's counterclaim is not a final order until the main claim is disposed of as well. (11) However, any order that completely disposes all counts in a complaint as to any party is final as to that party. Thus, if plaintiff sues defendants A and B and the court enters judgment in favor of B, the judgment as to B is final even though the case continues as to A. Plaintiff must appeal the judgment within 30 days or the right of appeal will be forever lost as to B. (12)

A judgment may be final even though the court reserves jurisdiction to handle a collateral matter, such as the award of attorneys' fees. For example, an order that enters judgment in favor of the only defendant in the case but reserves jurisdiction to award fees is considered final even though the trial court's labors are not yet at an end. (13) Attorneys' fees awards are collateral to the main claim and can proceed in the trial court even though...