The Florida Bar
www.floridabar.org
The Florida Bar Journal
December, 2013 Volume 87, No. 10
Early Appellate Remedies: Partial Final Judgments

by Jay A. Yagoda

Page 30

The long-settled rule in Florida, and elsewhere, is that an appeal may be taken only from final orders and judgments that bring to a close all judicial labor between the parties and dispose of every issue involved, such that no further action by the lower tribunal is necessary.1 This “bedrock” principle of appellate court jurisdiction2 owes its historic origin to judicial economy: piecemeal disposition of a cause still pending in the trial court is greatly disfavored by appellate courts in order to avoid needless or duplicative inquiry in subsequent appeals.3 But like most rules of general applicability, the final judgment rule, too, is subject to certain well-defined exceptions. One of those exceptions, recognized by Florida state and federal courts alike, authorizes the immediate appeal of orders determined to be “partial final judgments” when rendered — notwithstanding the pendency of other unresolved issues in the trial court.

The appellate courts’ authority to review partial final judgments rendered before the conclusion of litigation derives from Fla. R. App. P. 9.110(k) and its federal counterpart, Fed. R. Civ. P. 54(b). The threshold, and oftentimes determinative, inquiry under both rules turns on the nature of the order from which the appeal is taken, i.e., whether the order disposes entirely of a separable claim or dismisses a party completely from the case at hand.4 If the order satisfies either test, the forum in which a party has chosen to file his or her case will directly affect the prospects of a looming appeal.

Whereas in state court, a party can elect to appeal the order as a matter of right — and, indeed, is required to appeal under specified circumstances or run the risk of forfeiting that right — in federal court, a party’s ability to appeal the order rests solely in the trial judge’s discretion. And just like choice of forum, practitioners should consider early on whether pragmatic considerations, such as cost, delay, and doubt, outweigh the benefits of this early appellate remedy.

The Florida Rule
Rule 9.110(k) defines an appealable “partial final judgment” in two distinct ways.5 The first definition is claim specific: “[P]artial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case.”6 The second definition, on the other hand, is party specific: “If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.”7 Despite the different focus of each definition, both accomplish the same goal: to authorize the appeal of orders that adjudicate separate and independent parts of a case. Of the two definitions, the appealability of claim-specific orders spawns much more confusion and uncertainty.

The test Florida courts have used to determine whether an order qualifies as an appealable partial final judgment actually pre-dates the rule.8 In Mendez v. West Flagler Family Association, 303 So. 2d 1 (Fla. 1974), the Florida Supreme Court held that “when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appealable if dismissed with finality at trial level and not delayed of appeal because of the pendency of other claims between the parties.”9 There, the plaintiff was permitted to immediately appeal the dismissal of a cause of action, a claim sounding in tort, via summary judgment because the claim was “distinct and separate” from the two remaining contract claims.10 Three weeks later, the Court in S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla. 1974), reaffirmed this rule, but, in contrast to Mendez, held that the dismissed counterclaim from which the party appealed was “clearly interrelated” because it involved the same substance and the same transaction.11

For their part, Florida’s district courts of appeal have made considerable effort in clarifying that the supposed interdependence of claims rises and falls on the factual and legal overlap between the dismissed claim or claims from which an appeal is sought and the still-pending claims.12 As one court has put it: The policy against piecemeal appeals is “relaxed and a partial judgment is appealable as a final order under Florida Rule of Appellate Procedure 9.110(k) when the judgment resolves a distinct and severable cause of action, i.e., the remaining claims do not arise from a set of common facts or a single transaction.”13 Other courts have broken the test down into a three-pronged approach: “(1) Could the causes of action disposed of in the dismissed count be maintained independently of each other? (2) Were one or more parties removed from the action when the partial final summary judgment was entered? (3) Are the counts separately disposed of based on the same or different facts?”14

Applying this test, then, if a portion of the case that has been adjudicated involves the same parties, the same transaction, and the same underlying factual background as the remaining portions of the case, courts will not treat it as a partial final judgment subject to immediate appellate review.15

No matter which permutation of the test courts choose to employ, one thing remains certain: That different legal theories or additional facts are involved in yet-to-be resolved claims do not mean the order from which an appeal is sought is distinct and separable from those unresolved claims.16 For example, a trial court’s dismissal of several counts of a multi-count complaint would not be ripe for appeal, even if the dismissed counts sounded in contract while the remaining counts sounded in tort, where all claims in the case were interrelated.17 Therefore, it is the interrelatedness of the claims that weighs most heavily on the determination of whether an order disposes of a distinct and separable claim.18

A recitation of the foregoing test always is helpful, but, in this context, providing a laundry list of scenarios under which courts have permitted the appeal of partial final judgments would not be completely satisfying. For one thing, “it is very unusual to find claims in the same lawsuit that are not based on the same facts and were not required to be brought in the same lawsuit.”19 Consequently, courts apply the test rigidly “and, more often than not, conclude that disposed of claims are not sufficiently distinct to qualify as partial final judgments for purposes of the rule.”20 And for another, the likelihood of successfully appealing a partial judgment is incredibly case specific, wholly dependent upon the claims raised in the complaint and the manner in which those claims are pleaded. Courts generally have recognized various classes of orders as appealable partial final judgments, including orders on dismissal,21 permissive counterclaims,22 cross-claims against different parties,23 and summary judgment.24

By contrast, the second party-specific partial final judgment definition in Rule 1.110(k) is much more straightforward in application. If an order entirely resolves a case as to one of multiple parties, the order is final as to that party and promptly must be appealed within 30 days of rendition of the order.25 The mechanics of the rule make it so that courts treat this category of partial final judgments the same as any other final judgment.26 Immediate appeals are required because “the party in question will no longer have any connection with the remaining portion of the case,” and “there would be no reason to allow the opposing party or parties to wait until the conclusion of the entire case to file an appeal.”27 Examples of orders disposing entirely of one party include the dismissal or summary judgment in favor of one defendant but not others,28 the dismissal of a third-party complaint without leave to amend,29 and the denial of a third-party motion to intervene.30

As the language of Rule 1.110(k) demonstrates, timing is the critical difference between claim-specific and party-specific partial final judgments. Partial final judgments falling into the first category may, but need not, be appealed within 30 days of rendition of the order. And waiting until the conclusion of litigation to appeal could be beneficial for a variety of reasons, namely, the trial court may correct its own error, a settlement may be reached, or the party suffering the adverse ruling could ultimately prevail.31 Party-specific partial final judgments, however, must be appealed within 30 days of their rendition, or else the appellant forever loses the right to appeal and the appellate court is deprived of jurisdiction.32 Given the risk of waiving appellate review under this latter circumstance, attorneys handling cases with numerous parties should take great care in evaluating dismissal or summary judgment orders to determine whether those orders totally dispose of the case against one party individually so as to qualify as a partial final judgment, necessitating immediate appeal.

Here are some points to consider in Florida state courts when evaluating the utility of partial final judgments as an early appellate remedy. To be appealable, claim-specific partial judgments must meet a rigid, interdependence test. Prematurely appealing an order that does not satisfy this test will result in unnecessary cost and delay for a client. At the opposite end of the spectrum are party-specific partial final judgments, and failing to timely appeal such orders will result in abandonment of that right. Finally, attorneys should consider the procedure by which parties seek to appeal a partial final judgment. Because Rule 9.110(k) does not expand the class of nonfinal orders immediately appealable pursuant to Fla. R. App. P. 9.130,33 the process for appealing partial final judgment is identical to the process for appealing classic final judgments: The default (and lengthier) appellate timelines govern;34 the clerk of the court must prepare and transmit the record;35 and the burden is on the appellant to ensure that the clerk performs his or her duties.36 The expedited procedures in place to ensure the timely resolution of appeals of nonfinal orders are inapplicable.37

The Federal Rule
Title 28, United States Code, §1291 provides that the U.S. courts of appeals have jurisdiction to consider “final decisions” of the district courts. Although an order disposing of either fewer than all the claims or the rights and liabilities of fewer than all parties is normally not appealable in federal court, an exception to this rule exists when the district court certifies an order as appealable pursuant to Rule 54(b).

Similar to its Florida state equivalent, Rule 54(b) permits the district court to separate final decisions for immediate appeal in multi-claim or multi-party litigation. Specifically, “[w]hen an action presents more than one claim for relief — whether a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved,” Rule 54(b) empowers district courts to certify a partial final judgment for appellate review by “direct[ing] entry of a final judgment as to one or more, but fewer than all, claims or parties,” but “only if the court determines that there is no just reason for the delay.”38 In contrast to its Florida analogue, Rule 54(b) is permissive in nature. That is, a party’s request for certification made pursuant to the rule rests entirely within the district court’s discretion.39 Therefore, absent entry of a Rule 54(b) certification, and outside of other recognized exceptions to the final judgment rule this article does not address, a party has no right to immediately appeal a partial final judgment in federal court; the order in question remains nonfinal and subject to revision during the rest of the lawsuit.40

The district courts’ application of Rule 54(b) works as a two-step inquiry:

First, the court must determine that its final judgment is, in fact, both “final” and a “judgment.” That is, the court’s decision must be “final” in the sense that it is an ultimate disposition of an individual claim entered in the course of a multiple claims action, and a “judgment” in the sense that it is a decision upon a cognizable claim for relief. Second, having found that the decision was a final judgment, the district court must then determine that there is no “just reason for delay” in certifying it as final and immediately appealable. This inquiry is required because not all final judgments on individual claims should be immediately appealable. The district court must act as a dispatcher and exercise its discretion in certifying partial judgments in consideration of judicial administrative interests — including the historic federal policy against piecemeal appeals — and the equities involved.41

The federal rule’s first step is similar to the analysis Florida courts undertake when applying Rule 1.110(k). The second step, however, is unique to the federal rules.

Taking the second step first, the question of whether there is any just reason to delay the appeal of individual final judgments requires the district court to exercise its discretion in “balanc[ing] judicial administrative interests and relevant equitable concerns,” the latter of which “serve[] to limit Rule 54(b) certification to instances in which immediate appeal would alleviate some danger of hardship or injustice associated with delay.”42 The district courts calibrate this balance with healthy regard for the principle that Rule 54(b) certifications generally are disfavored.43 And with a policy against interlocutory appeals as a backdrop, the federal appellate courts have cautioned that “[d]istrict courts should be conservative in exercising their Rule 54(b) discretion,”44 and must reserve “Rule 54(b) certifications…for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties.”45 Far from a usual occurrence, then, the circumstances warranting certification “will be encountered only rarely.”46

The first step is more in line with Florida’s two-definition approach to partial final judgments. Akin to Florida’s process, entry of a partial final judgment under Rule 54(b) results in some claims being immediately appealable while other claims remain pending in the district court.47 “[A]n order adjudicating fewer than all the claims in a suit, or adjudicating the rights and liabilities of fewer than all the parties, is not a final judgment from which an appeal may be taken,” unless “the district court properly certifies as ‘final,’ under Rule 54(b), a judgment on fewer than all claims or parties.”48 The trial judge’s certification of a judgment as “final” for purposes of Rule 54(b) should be viewed as beneficial. As opposed to how the Florida rule operates, the federal rule, in effect, facilitates preventing the need for litigants to guess whether an order would be held “final” by an appellate court, ensuring that a decision truly is final before it is appealed, and alerting the district court to any pending appeal.49 Perhaps the flip-side of these benefits, however, is that the determination of whether an interlocutory order qualifies as an immediately appealable partial final judgment can be a difficult inquiry in federal courts.

The claim-specific component of Rule 54(b) requires that the “action present[] more than one claim for relief” and that the judgment is entered “as to one or more, but fewer than all, claims.” Unfortunately, unlike the Florida courts, the federal “courts have been completely unable to settle on a single test for determining when claims are ‘separate.’”50 One commentator has aptly observed: “[I]t is not always easy to tell whether a case involves multiple claims (to which Rule 54(b) is applicable) or a single claim supported by multiple grounds (to which Rule 54(b) is not applicable).”51 The U.S. Court of Appeals for the 11th Circuit has echoed this sentiment, noting on more than one occasion that “the line between deciding one of several claims and deciding only part of a single claim [in federal courts] is very obscure.”52

The test the 11th Circuit has adopted differs from Florida’s and focuses on the types of recovery sought, not on the factual similarities between the claims pleaded. According to the 11th Circuit, “[c]laims are separable when there is more than one possible recovery, or if different sorts of relief are sought.”53 Under the 11th Circuit’s separate-recoveries test, “claims are ‘separately enforceable’ and subject to Rule 54(b) certification[,] even if they arise out of a single transaction or occurrence,” so long as “the possible recoveries under various portions of the complaint are [not] mutually exclusive, or [do not] substantially overlap.”54 The converse is true “when the plaintiff presents more than one legal theory, but will be permitted to recover on only one of them.” In such a case, “there is only a single inseparable claim for relief.”55 That is to say, “even if a district court has adjudicated one count of a complaint, but another count seeks substantially similar relief, the adjudication of the first count does not represent a ‘final judgment’ because both counts are functionally part of the same claim under Rule 54(b).”56

Like its Florida counterpart, the party-specific component of Rule 54(b), by comparison, is relatively straightforward and resolves the simple question of whether all the rights and liabilities of one or more of the parties regarding a claim has been fully adjudicated. It has a nearly identical application in Florida, except that in federal court, to appeal the decision, the party for whom appellate relief is sought must ask the district court expressly to determine that no just reason for delay exists and to order the entry of judgment.57 Were the district court to decline this request, the party must await the conclusion of the case to appeal, otherwise the appeal will be considered premature.58 As discussed above, the opposite is true in Florida state courts.

Practitioners should also take note of an important procedural technicality. When a district court certifies a claim for immediate appeal under Rule 54(b), the time for taking the appeal begins to run on the date of certification.59 As a consequence, certification requires the party to commence an appeal within 30 days of the district court’s entry of the Rule 54(b) judgment on pain of foregoing the appeal later.60 Finally, because “[a] district court’s Rule 54(b) is not conclusive” on the courts of appeals, appellate review of an order certified as final pursuant to the rule is not guaranteed.61

Conclusion
In practical terms, a partial final judgment should be appealed only when the outcome of the appeal of that judgment cannot affect a decision on the claims against the remaining parties still pending in the trial court. The benefits (i.e., challenging a critical ruling without waiting until the case concludes) and disadvantages (i.e., cost, delay, and uncertainty as to whether the order qualifies) of appealing a partial final judgment, of course, depend on both the facts of the case and the forum selected. The intricacies of Rule 1.110(k) and Rule 54(b), some of which are outlined above, make it so that practitioners should carefully consider whether appealing a ruling subject to either rule is advisable in order to move the case forward, keeping in mind that, under certain circumstances in Florida, taking an appeal while claims remain pending in the trial court is mandatory.


1 Caufield v. Cantele, 837 So. 2d 371, 375 (Fla. 2002); Nero v. Cont’l Country Club R.O., Inc., 979 So. 2d 263, 266 (Fla. 5th DCA 2007); Hallock v. Holiday Isle Resort & Marina, Inc., 885 So. 2d 459, 461 (Fla. 3d DCA 2004); Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93, 96 (Fla. 1st DCA 2003); see also 28 U.S.C. §1291 (2012); Fla. Const. art. V, §4(b)(1); Fla. R. App. P. 9.030(b)(1)(A).

2 Carolina Power & Light Co. v. U.S. Dep’t of Labor, 43 F.3d 912, 918 (4th Cir. 1995).

3 Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438 (1956); González Figueroa v. J.C. Penney Puerto Rico, Inc., 568 F.3d 313, 317 (1st Cir. 2009); McAdams v. McCord, 533 F.3d 924, 929 (8th Cir. 2008); Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11th Cir. 1997); In re Se. Banking Corp., 69 F.3d 1539, 1547 (11th Cir. 1995); S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974); Shepardson v. Shepardson, 820 So. 2d 360, 361 (Fla. 1st DCA 2002); see also Gerald T. Wetherington, Appellate Review of Final and Non-final Orders in Florida Civil Cases — An Overview, 47 Law & Contemp. Problems at 61, 62-63 (1984).

4 Lloyd Noland Found., Inc. v. Tenet Health Care Corp., 483 F.3d 773, 779 (11th Cir. 2007); see also Campbell v. Gordon, 674 So. 2d 783, 785 (Fla. 1st DCA 1996); Bay & Gulf Laundry Equip. Co. v. Chateau Tower, Inc., 484 So. 2d 615, 616 (Fla. 2d DCA 1985).

5 El Gohary v. El Gohary, 76 So. 3d 355, 357 (Fla. 2d DCA 2011).

6 Fla. R. App. P. 9.110(k).

7 Id.

8 Id. comm. nn. 1984 amend.; see also Kirkland By & Through Kirkland v. State, Dep’t of Health & Rehab. Servs., 489 So. 2d 800, 801 (Fla. 1st DCA 1986).

9 Mendez, 303 So. 2d at 5; see also Webb, 304 So. 2d at 99.

10 Mendez, 303 So. 2d at 5.

11 S.L.T. Warehouse, 304 So. 2d at 100.

12 Mass. Life Ins. Co. v. Crapo, 918 So. 2d 393, 394 (Fla. 1st DCA 2006); Northcutt v. Fin., 555 So. 2d 368, 369 (Fla. 3d DCA 1989).

13 Jensen v. Whetstine, 985 So. 2d 1218, 1220 (Fla. 1st DCA 2008); accord Marinich v. Special Edition Custom Homes, LLC, 1 So. 3d 1197, 1199 (Fla. 2d DCA 2009); Nero, 979 So. 2d at 266; DeMartino v. Simat, 948 So. 2d 841, 843 (Fla. 2d DCA 2007); Altair Maint. Servs., Inc. v. GBS Excavating, Inc., 655 So. 2d 1281, 1282 (Fla. 4th DCA 1995).

14 Bermont Lakes, LLC v. Rooney, 980 So. 2d 580, 585 (Fla. 2d DCA 2008); accord Palm Beach Newspapers, Inc. v. Walker, 506 So. 2d 39, 40 (Fla. 4th DCA 1987); Kirkland, 489 So. 2d at 801. This test is most commonly applied by the Second District Court of Appeal. E.g., Dahly v. Dep’t of Children & Fam. Servs., 876 So. 2d 1245, 1248 (Fla. 2d DCA 2004); Szewczyk v. Bayshore Props., 456 So. 2d 1294, 1296 (Fla. 2d DCA 1984).

15 Philip J. Padovano, Florida Appellate Practice §23:5 (2013 ed.); accord Dempsey v. Russell, 966 So. 2d 1021, 1022 (Fla. 1st DCA 2007); Fla. Lifestyles Realty, Inc. v. Goodwin, 917 So. 2d 1060, 1061-62 (Fla. 2d DCA 2006); Flinn v. Flinn, 68 So. 3d 424, 424 (Fla. 4th DCA 2011); Nero, 979 So. 2d at 266-67.

16 Marinich, 1 So. 3d at 1199; Doe v. Regier, 867 So. 2d 443, 444 (Fla. 4th DCA 2004).

17 Pellegrino By & Through Pellegrino v. Horwitz, 642 So. 2d 124, 126-27 (Fla. 4th DCA 1994); Odham v. Mouat, 484 So. 2d 95, 95 (Fla. 1st DCA 1986).

18 E.g., Bay & Gulf Laundry Equip. Co. v. Chateau Tower, Inc., 484 So. 2d 615, 616 (Fla. 2d DCA 1985).

19 Mary Piccard Vance & Ann M. Piccard, Direct Appeal Jurisdiction of Florida’s District Courts of Appeal, 33 Stetson L. Rev. 153, 161 (2003).

20 Kent R. Putnam, Florida’s Partial Final Judgment Rule: Problems and Solutions, 17 FSU L. Rev. 749, 752 (1990); accord Campbell v. Gordon, 674 So. 2d 783, 785 (Fla. 1st DCA 1996); Bay & Gulf Laundry Equip., 484 So. 2d at 616.

21 E.g., Regier, 867 So. at 444; Fla. Lifestyle Realty, 917 So. 2d at 1061-62.

22 E.g., Campbell, 674 So. 2d at 785.

23 E.g., Elkind v. Knox, 933 So. 2d 1264, 1265 (Fla. 4th DCA 2006).

24 E.g., Roessler v. Novak, 858 So. 2d 1158, 1160 n.1 (Fla. 2d DCA 2003).

25 Fla. R. App. P. 9.110(k).

26 Caballero v. Phoenix Am. Holdings, Inc., 79 So. 3d 106, 107 n.1 (Fla. 3d DCA 2012); Lee v. Cole, 46 So. 3d 612, 613 (Fla. 2d DCA 2010); Alafaya Square Assocs., Ltd. v. Great W. Bank, 706 So. 2d 39, 40 (Fla. 4th DCA 2007).

27 Padovano, Florida Appellate Practice at §23:6.

28 E.g., Lee v. Cole, 46 So. 3d 612, 613 (Fla. 2d DCA 2010).

29 Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011); Attorneys’ Title Ins. Fund, Inc. v. Punta Gorda Isles, Inc., 547 So. 2d 1250, 1250 (Fla. 2d DCA 1989).

30 Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 1246 (Fla. 5th DCA 2010); Litvak v. Scylla Props., LLC, 946 So. 2d 1165, 1172 (Fla. 1st DCA 2006); Y.H. v. F.L.H., 784 So. 2d 565, 567-68 (Fla. 1st DCA 2001); J.R. v. R.M., 679 So. 2d 64, 65 (Fla. 4th DCA 1996).

31 Wetherington, Appellate Review of Final and Non-final Orders in Florida Civil Cases — An Overview, 47 Law & Contemp. Problems at 61, 62-63 (1984).

32 Gordin v. Colin, 997 So. 2d 1136, 1138 (Fla. 4th DCA 2008); Ammons v. Okeechobee Cnty., 710 So. 2d 641, 643 (Fla. 4th DCA 1998).

33 Jensen, 985 So. 2d at 1220.

34 Fla. R. App. P. 9.110(f) & 9.210(f).

35 Fla. R. App. P. 110(e) & 9.200(d).

36 Fla. R. App. P. 9.200(e).

37 E.g., Fla. R. App. P. 9.130(d) & 9.130(e); see also Putnam, Florida’s Partial Final Judgment Rule: Problems and Solutions, 17 FSU L. Rev. at 756-57 (1990).

38 Fed. R. Civ. P. 54(b).

39 Edwards v. Prime, Inc., 602 F.3d 1276, 1288 (11th Cir. 2010).

40 Haney v. City of Cumming, 69 F.3d 1098, 1101 (11th Cir. 1995); Bristol v. Fibreboard Corp., 789 F.2d 846, 848 (10th Cir. 1986); see also Hotel Roosevelt Co. v. City of Jacksonville, 192 So. 2d 334, 337 (Fla. 1st DCA 1966).

41 Lloyd Noland Found., 483 F.3d at 777-78 (parallel citations and edits omitted).

42 Ebrahimi, 114 F.3d at166 (11th Cir. 1997).

43 Clark v. Baka, 593 F.3d 712, 714-15 (8th Cir. 2010).

44 Se. Banking Corp., 69 F.3d at 1550.

45 Ebrahimi, 114 F.3d at 166 (citation omitted).

46 Id.

47 Lloyd Noland Found., 483 F.3d at 777-78 (parallel citations and edits omitted).

48 Id. at 777.

49 Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 517 (1950) (Black, J., dissenting); S.E.C. v. Capital Consultants LLC, 453 F.3d 1166, 1174 (9th Cir. 2006).

50 Tolson v. United States, 732 F.2d 998, 1001 (D.C. Cir. 1984) (citation omitted).

51 Wright & Miller, 10 Federal Practice and Proc. Civ. §2657 (3d ed.).

52 Lloyd Noland Found., 483 F.3d at 780 (quoting Se. Banking Corp., 69 F.3d at 1547).

53 Se. Banking Corp., 69 F.3d at 1547 (citations omitted); accord Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 518 F.3d 459, 464 (7th Cir. 2008); Eldredge v. Martin Marietta Corp., 207 F.3d 737, 741 (5th Cir. 2000).

54 Se. Banking Corp., 69 F.3d at 1547.

55 Lloyd Noland Found., 483 F.3d at 780 (quoting Se. Banking Corp., 69 F.3d at 1547).

56 Id.

57 Capital Consultants LLC, 453 F.3d at 1174.

58 McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387 (11th Cir. 1981).

59 Nat’l Union Fire Ins. Co. of Pittsburgh, Penn. v. Gilbert, 36 F.3d 1097 at *4 (6th Cir. 1994) (unpublished); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1549 (11th Cir. 1986); Fed. Deposit Ins. Corp. v. Tripati, 769 F.2d 507, 508 (8th Cir. 1985).

60 Smith v. Mine Safety Appliances Co., 691 F.2d 724, 725 (5th Cir. 1982); Fed. Deposit Ins. Corp. v. Tripati, 769 F.2d 507, 508 (8th Cir. 1985).

61 Ebrahimi, 114 F.3d at 166; see also id.


Jay A. Yagoda is an appellate associate with Greenberg Traurig, P.A., in Miami. Before joining Greenberg Traurig, he worked as a staff attorney for Justice Barbara J. Pariente at the Florida Supreme Court. He earned his undergraduate and J.D. degrees from the University of Florida.

This column is submitted on behalf of the Appellate Practice Section, Caryn Lynn Bellus, chair; Brandon Christian, editor, and Chris McAdams and Kristi Rothell, assistant editors.

[Revised: 11-26-2013]