The proposal to repeal Rule 9.130(a) (3) (C) (iv).

• Author: Pakula, David B.
• Position: Florida Rule of Appellate Procedure

Penny Wise, Dollar Foolish

By entering into the debate over the future of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), I may be stepping into a political minefield. District court of appeal judges would prefer that the rule be repealed to ease their workload, as well as to avoid some practical difficulties they encounter in applying the rule. Plaintiffs' lawyers agree with the district court judges, but for another reason: They hope to proceed directly to final judgment without being derailed by a nonfinal appeal. Defense attorneys, on the other hand, seek to save their clients from a judgment for damages in cases in which liability has been erroneously determined in favor of the plaintiff.

Each of these viewpoints is legitimate. However, for the Supreme Court of Florida, which will decide the fate of rule 9.130(a)(3)(C)(iv), it is not a matter of choosing one viewpoint over another. The court must determine what is best for the overall functioning of our judicial system. I believe the correct decision will be to retain the rule in its present form.

Rule 9.130(a)(3)(C)(iv) authorizes appeals of nonfinal orders "determining the issue of liability in favor of a party seeking affirmative relief." Since its promulgation in 1977, appellate courts have dismissed a number of appeals involving orders not disposing of all liability issues in the case. See, e.g., Travelers Ins. Co. v. Bruns, 443 So. 2d 959 (Fla. 1984); Heritage Paper Co. v. Farch, 440 So. 2d 389 (Fla. 1st DCA 1983). The rule plainly allows appeals only of orders determining "the" issue of liability, as opposed to "an" issue of liability. See Yelner v. Ryder Truck Rental, 683 So. 2d 655 (Fla. 4th DCA 1996); Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994).

In view of that limitation, the rule has been applied to only a few types of nonfinal orders. The largest proportion by far of rule 9.130 (a)(3)(C)(iv) appeals consists of those taken from default orders. Prior to 1977, rule 4.2 authorized nonfinal review of "orders granting or denying motions to vacate defaults." See In re Florida Appellate Rules, 211 So. 2d 198, 199 (Fla. 1968). When rule 9.130 was promulgated, it did not specifically address defaults. However, the Supreme Court held that an order refusing to set aside a default is appealable under rule 9.130(a)(3)(C)(iv) because it has the effect of an order determining the issue of liability in favor of a claimant. See Doctor's Hosp. of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla. 1982). The rule has also been held to authorize appeals of orders striking a party's pleadings for a discovery violation, see Paramount Advisors, Inc. v. Schwartz, 591 So. 2d 671 (Fla. 4th DCA 1991), Cadwell v. Cadwell, 549 So. 2d 1133 (Fla. 3d DCA 1989), or for a violation of pre-suit requirements in a medical malpractice case, see Preferred Medical Plan, Inc. v. Ramos, 742 So. 2d 322 (Fla. 3d DCA 1999), Pagan v. Smith, 705 So. 2d 1034 (Fla. 3d DCA 1998).

Opponents of rule 9.130 (a)(3)(C)(iv) are curiously silent about default appeals. Appellate courts have been flooded with them, but no one seems to be complaining. The reason is that nonfinal review of default orders has proven enormously successful. The orders are generally entered early in the litigation before significant resources have been committed to the case. The reversal rate of default orders is uncommonly high.

Immediate review of default rulings promotes the longstanding public policy favoring resolution of cases on their merits rather than on nonintentional procedural mistakes. See e.g., Lindell Motors, Inc. v. Morgan, 727 So. 2d 1112 (Fla. 2d DCA 1999); Florida West Coast R.R. v. Maxwell, 601 So. 2d 298 (Fla. 1st DCA 1992); Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990). In medical malpractice cases, nonfinal appellate review also prevents an unconstitutional denial of access to courts that occurs when a trial court erroneously strikes a party's pleadings for failure to comply with presuit requirements. See Preferred Medical Plan, Inc. v. Ramos, 742 So. 2d 322 (Fla. 3d DCA 1999); Pagan v. Smith, 705 So. 2d 1034 (Fla. 3d DCA 1998).

In addition, nonfinal review of default orders saves a huge amount of time and expense in both the trial and appellate courts. Consider the following "worst case" scenario:

The plaintiff sues ABC Corporation for injuries allegedly sustained in a collision with an automobile negligently operated by an ABC employee in the course and scope of her employment. ABC immediately assigns the case to outside counsel. As a result of a calendaring mistake, however, the attorney fails to timely respond to the complaint and a clerk's default is entered. ABC's attorney unsuccessfully moves to set aside the default. The attorney cannot appeal the trial judge's refusal to set aside the default because rule 9.130(a)(3)(C)(iv) has been repealed. He will have to wait until the end of the case to appeal the judge's ruling.

After two years of discovery, a trial is held on damages during which the issue of causation is hotly contested. Several medical experts are called to testify and the trial drags on for five days...