The uncertain future of rule 9.130(a) (3) (C) (iv).

• Author: Eaton, Joel D.
• Position: Florida Rule of Appellate Procedure

For the present at least, jury verdicts finding liability in bifurcated trials are immediately appealable as "nonfinal orders" under Fla. R. App. P. 9.130(a)(3)(C)(iv). Although the Rules of Civil Procedure do not appear to permit post-trial motions to be directed to such verdicts and the Rules of Appellate Procedure do not provide that rendition of such verdicts can be tolled by such motions, the Supreme Court of Florida recently concluded that post-trial motions can be directed to such verdicts and that the motions will toll their rendition. Meyers v. Metropolitan Dade County, 24 Fla. L. Weekly S135 (Fla. March 18, 1999). The court also asked the Appellate Court Rules Committee to recommend revisions to the appellate rules to incorporate these conclusions.

I have long been a proponent of repealing rule 9.130(a)(3)(C)(iv) altogether. I, therefore, proposed to the committee that it respond to the Supreme Court's request by recommending repeal of the rule in its entirety. And I argued for repeal of the rule in a submission to the committee, which I titled "Justification for Repeal of Rule 9.130(a)(3)(C)(iv)." The text of the submission follows:

Prior to 1977, Rule 4.2 permitted appeals from "orders granting partial summary judgment on liability in civil actions." In 1977, this provision was reworded to permit interlocutory appeals from nonfinal orders that determine "the issue of liability in favor of a party seeking affirmative relief." Rule 9.130 (a)(3)(C)(iv). The reason for the change in wording is not set forth in the 1977 committee notes. All that the committee notes reveal is that, generally, rule 9.130 "substantially alters current practice" and that it was designed to limit interlocutory appeals to "the most urgent interlocutory orders." It is probable that the rule was reworded to exclude summary judgment orders disposing of collateral liability issues, like orders disposing of affirmative defenses or less than all counts of a plaintiffs complaint. It is improbable that it was designed to expand the number of reviewable interlocutory orders.

In an early construction of rule 9.130(a)(3)(C)(iv), the Supreme Court read the rule very narrowly, with the following explanation: "The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment." Travelers Insurance Co. v. Bruns, 443 So. 2d 959, 961 (Fla. 1984) (holding that a summary judgment order determining that a defendant/ insurer's policy provided coverage for a co-defendant/insured was not appealable under the rule).

Even narrowly read, the rule is somewhat of an anomaly. It has no counterpart in the federal system and few, if any, counterparts in the remaining states. As a general rule, interlocutory rulings relating to resolution of the merits of the controversy are reviewable only after final judgment, when all the bits and pieces of the merits of the controversy have been resolved. Rule 9.130 is generally consistent with this philosophy. All but one of the orders listed in rule 9.130 deal with threshold defenses and interlocutory matters unrelated to resolution of the merits of the controversy; rule 9.130(a)(3)(C)(iv) is the sole exception.

The apparent justification for the exception is that an adjudication of liability on a motion for summary judgment, without a trial of the facts, is one of those "most urgent interlocutory orders" deserving of immediate review. While this proposition is debatable, summary judgments in favor of parties seeking affirmative relief are infrequent, and permitting appeals from them, therefore, does not overburden the appellate courts. And if the rule had been limited in that fashion, as its predecessor was, it would not have been particularly burdensome or problematical. Unfortunately, litigants began to use the rule for other purposes.

The issue came to a head in Dauer v. Freed, 444 So. 2d 1012 (Fla. 3d DCA 1984). In that case, the trial court bifurcated the case and tried the liability issues to a jury, which returned a verdict against the defendants. The transcript of the trial was 18,000...