Is It Over Yet? A Primer on Federal and State Appellate Finality Doctrines
During civil litigation, trial lawyers often ask whether a dismissal or summary judgment order is final and appealable.[1] Regrettably, even in these common scenarios, the well-known federal and state finality tests offer inadequate guidance. In theory, the tests sound straightforward and similar. But in practice, they are difficult to apply and lead to divergent results. This article illuminates some differences between the federal and state finality doctrines as applied to dismissal and summary judgment orders and explains how to file federal and state notices of appeal.
Is My Order Final and Appealable?
When considering appellate remedies, a litigator’s first and foremost determination is whether a dismissal or summary judgment order is final and appealable. But this is easier said than done. The 11th Circuit has jurisdiction over “appeals from all final decisions of the district courts.”[2] A federal order is final and appealable only when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’”[3] Similarly, the Florida district courts of appeal have jurisdiction over “final orders of trial courts, not directly reviewable by the supreme court or a circuit court.”[4] A state order is final and appealable only “when it adjudicates the merits of the cause and disposes of the action…leaving no judicial labor to be done except the execution of the judgment.”[5]
To the untrained eye, these federal and state finality doctrines appear identical and simple. In practice, however, these two tests are deceptively alike and nowhere near obvious. Rather, these near-tautological tests operate quite differently and obscure important variations between federal and state appellate practice.
These variations stem from two notable procedural distinctions. First, Federal Rule of Civil Procedure 58 imposes a waivable requirement that, with exceptions not pertinent here,[6] “[e]very judgment and amended judgment must be set out in a separate document.”[7] Second, federal law generally prohibits piecemeal appeals of partial judgments granted as to certain claims or parties absent certification per Fed. R. Civ. P. 54(b).[8] In contrast, state judgments need not be set forth on a separate document,[9] and litigants may take piecemeal appeals from final orders limited to certain claims or parties without certification.[10] It is little surprise, then, that these two procedural distinctions give rise to two critical substantive differences between the state and federal finality doctrines.
The first difference is that Florida’s lack of a separate-document-judgment rule means state orders are not final unless they “include specific ‘language of finality.’”[11] For instance, a state order that uses magic words such as “plaintiff take nothing by this suit [and] go hence without day” is final, because the additional language “lends the necessary unequivocal declaration of finality that will support an appeal.”[12] Similarly, a state order that “does not contemplate any further judicial labor with regard to the rights of the parties” by stating “Final Summary Judgment is hereby entered” is sufficiently final for appeal.[13] In contrast, a state order that dismisses a complaint “with prejudice,” but does not “actually dismiss the action,” is not final for appellate purposes.[14] A state order that merely grants summary judgment without going further and actually entering summary judgment is never final.[15] A “non-final order denying summary judgment is not appealable.”[16] Absent judgments on separate documents, only language of finality can clarify whether state orders are final.
The federal separate-document-judgment rule, however, dispenses with the need for magic words of finality. For this reason, federal dismissals can be final whether they are “with or without prejudice.”[17] Ordinarily, a federal “dismissal without prejudice, which is not appealable, is distinguished from a dismissal with prejudice, which is appealable.”[18] But sometimes a federal “dismissal without prejudice can be appealed,” so long as it otherwise is a final order.[19] For instance, a federal dismissal without prejudice can be, nevertheless, final when the district court “f[inds] the defendants immune from all claims” and “close[s] the case without granting the plaintiff permission to amend or refile.”[20] It is only federal dismissals without prejudice that also grant leave to amend that are interlocutory and unappealable. Such dismissals “without prejudice to refiling are not ‘final’ for purposes of appeal,”[21] at least until the time period within which to amend has expired,[22] because otherwise a litigant would be free to amend his pleading and continue the litigation. By contrast, dismissals can be labeled without prejudice merely because they do not reach the merits and, thus, lack res judicata effect, yet nevertheless remain final and appealable; such a dismissal without prejudice “refers to the fact that the dismissal is not on the merits, not whether the dismissal is final and appealable.”[23] That is because dismissal without prejudice permits a new action, assuming the statute of limitations has not run, without regard to res judicata principles.[24] Ultimately, whether a judgment is final and appealable in federal court depends exclusively on whether the district court actually entered judgment (or a judgment is deemed by law to have been entered by the passage of time)[25] as to all claims and all parties.[26]
The second difference is that Florida’s lack of a no-partial-judgment rule means that, unlike federal orders, state orders can be final and appealable even though they resolve litigation as to only some claims or some parties.[27] That means putative appeals of orders partially granting (not denying) dismissal or summary judgment cannot proceed in federal court absent certification under Rule 54(b)[28] or 28 U.S.C. §1292(b),[29] whereas they can sometimes proceed in state court.[30]
How Is an Order Final and Appealable?
These finality rules are all well and good, but it is still difficult to understand them fully without putting them in context and applying them to some common scenarios.
Suppose Penelope sues Dmitry and Daphne. In count one, Penelope claims defamation. In count two, Penelope claims invasion of privacy. Importantly, counts one and two are based on related facts. In count three, Penelope claims breach of contract. Count three, however, is based on facts unrelated to counts one or two.
Many dismissal or summary judgment orders might be final and appealable depending on who is trying to appeal, which claims were resolved, and whether the case is in state or federal court. Tables 1 through 4 graphically depict some initial guidance regarding the important distinctions in common situations, with the important caveat that caselaw and court rules are always evolving.
To warm up, imagine that you are Penelope’s counsel. The court grants Dmitry’s and Daphne’s motions to dismiss all counts. Penelope asks whether she can immediately appeal from the following dismissal orders. (See table 1.)
Now, suppose the court dismisses only some claims or parties. Penelope asks whether she can immediately appeal from the following dismissal orders. (See table 2.)
Then, imagine the case proceeds to summary judgment, and the parties file cross-motions for summary judgment. Penelope asks you once again what her immediate appellate remedies are from the following summary judgment orders. (See table 3.)
Finally, imagine you represent Daphne at summary judgment. Daphne queries what her immediate appellate remedies are in the same circumstances. (See table 4).
As one can see, the upshot of these charts is that there are many variables at play in determining whether a dismissal or summary judgment order is final and immediately appealable.
What If I Cannot Find My Order on the Finality Charts?
Finality questions can, of course, arise in a wide variety of other circumstances. In each such situation, finality should be researched and determined anew, particularly given the ever-changing nature of the law. For example, suppose a federal court stayed, but did not dismiss, Penelope’s lawsuit, because she had already sued Dmitry and Daphne for the same causes of action in state court? That would be a final appealable decision,[31] even though it is clearly interlocutory in the sense that the district court will necessarily have to revisit the litigation at some future time.
Suppose that the federal district court denied Dmitry’s and Daphne’s motion for summary judgment based on a claim of qualified or absolute immunity. That also would be an appealable order under the collateral-order doctrine,[32] even though it too would be interlocutory because Penelope’s case would continue to march on. The point is that finality is vexing for even the most experienced appellate litigators, and prudent practitioners will read the rules and research the cases anew each and every time the issue arises.
What If It’s Still Unclear Whether My Order Is Final and Appealable?
It is helpful to know the basic contours of the state and federal finality doctrines. But what is a litigator to do when it, nevertheless, remains unclear whether an order is final? In federal court, this generally should not be a concern. It is helpful to remember that the 30-day jurisdictional clock to file the notice of appeal[33] does not start running until the entry of final judgment on a separate document per Rule 58. Indeed, at one time, the 11th Circuit had colorfully explained that litigants “‘safely may defer the appeal until Judgment Day if that is how long it takes to enter the [Rule 58] document.’”[34] But ever since Rule 58 was amended in 2002, a judgment is deemed to have been entered no later than 150 days after entry of the otherwise immediately appealable final order.[35] Nevertheless, Rule 58’s requirement that judgments must be set forth on separate documents is waivable, so litigants may, if they wish, appeal from any final order even before judgment is entered or deemed to have been entered.[36]
Indeed, in the rare case that a federal order were truly ambiguous as to whether it was final or interlocutory, Judge Easterbrook of the Seventh Circuit has explained “the only safe route is to treat [the order] as final.”[37] This prophylactic rule is necessary because the “alternative lays a trap for unwary (or even wary) litigants, who may forego appeal in reliance on the ‘without prejudice’ language only to learn later, and to their sorrow, that the original order was appealable and the time for appellate review has lapsed.”[38] In any event, when litigants incorrectly appeal from interlocutory orders, the 11th Circuit dismisses the appeal.[39]
If anything, ambiguity regarding finality is much more likely to arise in state court. Generally, the best practice is to file a so-called protective notice of appeal. Previously, the district courts of appeal were split on how to handle such protective notices. The Second, Fourth, and Fifth districts used to relinquish jurisdiction to perfect premature appeals.[40] But the First and Third districts generally used to dismiss premature appeals.[41] The upshot of this distinction was that litigants needed to pay appellate filing fees only once in relinquishment jurisdictions, but possibly twice in dismissal jurisdictions.
That split was resolved by the 2014 amendment to Florida Rule of Appellate Procedure 9.110(l), which “clarif[ied] that it is neither necessary nor appropriate to request a relinquishment of jurisdiction from the [appellate] court to enable the lower tribunal to render a final order.”[42] Now, under Rule 9.110(l), appellate courts generally should dismiss premature appeals (as opposed to relinquishing jurisdiction) unless the lower tribunal enters a final order before the dismissal occurs.[43] If that happens, the “premature notice of appeal” will “vest jurisdiction in the [appellate] court.”[44] Ultimately, however, Rule 9.110(l) also gives appellate courts the discretion to “grant the parties additional time to obtain a final order from the lower tribunal.”
My Order Is Final and Appealable: When and How Must I File The Notice Of Appeal?
Once a litigator has figured out that the order is final and appealable, the procedure for filing of a notice of appeal is relatively straightforward. In the 11th Circuit, the notice of appeal must be filed in the district court along with the appropriate filing fee within 30 days after entry of the judgment.[45] Notably, timely motions for new trial per Rule 59(a), or to alter or amend a judgment per Rule 59(e), or for relief from a final judgment or order per Rule 60(b) toll the 30-day period.[46] The notice of appeal must “designate the judgment, order, or part thereof being appealed.”[47] If the wrong judgment(s), order(s), or parts thereof are designated, the 11th Circuit’s response will depend on what it thinks the appellant intended to do and whether the appellee is prejudiced.[48]
In state court, the notice of appeal must be filed in the trial court along with the appropriate filing fee within 30 days after rendition of the final order.[49] Rendition occurs “when a signed, written order is filed with the clerk of the lower tribunal.”[50] It is critically important to understand that, especially in these days of budget cuts, orders frequently are not necessarily filed immediately after they are signed, so prudent appellate practitioners know better than to trust online dockets. Rather, litigators must retrieve the file-stamped document from the trial court. Note also that rendition can be tolled by a timely Rule 1.530 rehearing motion, but only if the order is final.[51] The notice of appeal cannot simply designate, but rather must attach, the order or orders appealed.[52] If the wrong orders are attached, the appellate court’s response will depend, as in federal court, on what it determines to be the appellant’s intention and the appellee’s prejudice.[53]
Conclusion
The federal and state finality doctrines are deceptively dissimilar. Although the tests sound straightforward and alike, their application, even in common situations, is difficult and frequently leads to divergent results. Because application of the finality doctrines can be so tricky, and especially because timely filing a notice of appeal is jurisdictional (at least in civil cases),[54] trial lawyers who do not routinely handle appeals should always consider consulting an appellate practitioner.
[1] Generally, in both federal and state court, the denial of a motion to dismiss or a motion for summary judgment is not an immediately appealable final order. Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); Morton & Oxley, Ltd. v. Charles S. Eby, M.D., P.A., 916 So. 2d 820, 821 (Fla. 2d DCA 2005); Danford v. Rockledge, 387 So. 2d 967, 968 (Fla. 5th DCA 1980). This article does not address those situations or their exceptions.
[2] 28 U.S.C. §1291.
[3] OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1368-69 (11th Cir. 2008) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
[4] Fla. R. App. P. 9.030(b)(1)(a).
[5] McGurn v. Scott, 596 So. 2d 1042, 1043 (Fla. 1992).
[6] See Fed. R. Civ. P. 58(a) (listing exceptions).
[7] Fed. R. Civ. P. 58(a); Bank v. Pitt, 928 F.2d 1108, 1110 (11th Cir. 1991) (Rule 58 is waivable).
[8] Fed. R. Civ. P. 54(b) (absent certification, “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims”); Edwards v. Prime Inc., 602 F.3d 1276, 1289 (11th Cir. 2010) (federal appellate courts “have no jurisdiction to consider interlocutory orders outside the scope of [Rule 54(b)] certification, unless some other basis of jurisdiction exists”); SEC v. Carrillo, 325 F.3d 1268, 1272 (11th Cir. 2003) (One of final judgment rule’s “central objectives is to ensure that this court does not engage in piecemeal appellate review.”) (citation omitted).
[9] E.g., Monticello Ins. Co. v. Thompson, 743 So. 2d 1215, 1216 (Fla. 1st DCA 1999) (final orders “actually enter or render a judgment”).
[10] Fla. R. App. P. 9.110(k) (“[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.”).
[11] Monticello Ins. Co., 743 So. 2d at 1216.
[12] Allstate Ins. Co. v. Collier, 405 So. 2d 311, 312 (Fla. 4th DCA 1981).
[13] State Farm Mut. Auto. Ins. Co. v. Open MRI of Orlando, Inc., 780 So. 2d 339, 340-41 (Fla. 5th DCA 2001).
[14] Dedge v. Crosby, 914 So. 2d 1055, 1056 (Fla. 1st DCA 2005).
[15] Wahl v. Taylor, 926 So. 2d 488, 489 (Fla. 2d DCA 2006) (“[A]n order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party.”); Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 150 (Fla. 3d DCA 2002) (“[T]he law is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review.”); Mathews v. Urezzio, 788 So. 2d 1133, 1134 (Fla. 5th DCA 2001) (“[A]n order which merely grants a motion for summary judgment is not a final appealable order.”).
[16] U.S. Fid. & Guar. Co. v. J.D. Johnson Co., 438 So. 2d 917, 919 (Fla. 1st DCA 1983).
[17] Justice v. United States, 6 F.3d 1474, 1481 (11th Cir. 1993) (quoting Wright & Miller, Federal Practice and Procedure §2376 at 251 (1971)).
[18] Versa Prods. v. Home Depot, USA, Inc., 387 F.3d 1325, 1327 (11th Cir. 2004).
[19] Liberty Nat’l Ins. Holding Co. v. Charter Co., 734 F.2d 545, 553 n.18 (11th Cir. 1984).
[20] Samco Global Arms, Inc. v. Arita, 395 F.3d 1212, 1213 n.2 (11th Cir. 2005).
[21] Grayson v. K Mart Corp., 79 F.3d 1086, 1094 n.7 (11th Cir. 1996).
[22] Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004).
[23] Grayson, 79 F.3d at 1094 n.7.
[24] Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir. 2003).
[25] See Fed. R. Civ. P. 58(c)(2)(B); see also note 35.
[26] E.g., Citizens Concerned About Our Children v. School Board, 193 F.3d 1285, 1289 (11th Cir. 1999) (“[O]rder dismissing one plaintiff, but not others, is not immediately appealable.”).
[27] Compare Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”), with Fla. R. App. P. 9.110(k) (“[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.”).
[28] Under Rule 54(b), a district court “may direct entry of a final judgment as to one or more, but fewer than all, claims or parties” if “an action presents more than one claim for relief” or “multiple parties are involved.” Fed. R. Civ. P. 54(b). Nevertheless, Rule 54(b) certification still requires the district court to “expressly determine[] that there is no just reason for delay.” Id. Additionally, a Rule 54(b) certification triggers appellate jurisdiction only if the certified ruling “‘possesses the requisite degree of finality’” by “‘completely dispos[ing] of at least one substantive claim.’” Edwards, 602 F.3d at 1289 (quoting Brandt v. Bassett, 69 F.3d 1539, 1547 (11th Cir. 1995)). Importantly, an appellate court “ha[s] no jurisdiction to consider interlocutory orders outside the scope of [Rule 54(b)] certification, unless some other basis of jurisdiction exists.” Id.
[29] A litigant may obtain review of an interlocutory ruling via 28 U.S.C. §1292(b) even if that ruling does not possesses the degree of finality required for Rule 54(b) certification. “[T]o obtain §1292(b) certification, the litigant must show not only that an immediate appeal will advance the termination of the litigation but also that the appeal involves ‘a controlling question of law as to which there is substantial ground for difference of opinion.’” OFS Fitel, LLC, 549 F.3d at 1359 (quoting 28 U.S.C. §1292(b)). Unlike Rule 54(b), which is a matter within only the district court’s discretion, “§1292(b) certification is wholly discretionary with both the district court and” the appellate court. Id. (emphasis added).
[30] Perry v. Perry, 976 So. 2d 1151, 1153 (Fla. 4th DCA 2008) (Partial appeals can proceed unless “claims are legally interrelated and substantively involve the same transaction.”).
[31] Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8-13 (1983).
[32] Green v. Brantley, 941 F.2d 1146, 1147 (11th Cir. 1991).
[33] Fed. R. App. P. 4(a)(1).
[34] Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1286 (11th Cir. 2001) (quoting In re Kilgus, 811 F.2d 1112, 1117 (7th Cir. 1987)).
[35] Fed. R. Civ. P. 58(c)(2).
[36] Bank, 928 F.2d at 1110 (Rule 58 is waivable).
[37] Hoskins v. Poelstra, 320 F.3d 761, 763-64 (7th Cir. 2003) (Easterbrook, J.).
[38] Id.
[39] E.g., Jordan v. Avco Fin. Servs., 117 F.3d 1254, 1258 (11th Cir. 1997).
[40] Better Gov’t Ass’n of Sarasota County v. State, 802 So. 2d 414, 415 (Fla. 2d DCA 2001) (“We relinquish this court’s inchoate jurisdiction for twenty days to allow the appellants to obtain a final summary judgment with sufficient words of finality.”); Korandovitch v. Vista Plantation Condominium Ass’n, Inc., 614 So. 2d 5, 6 (Fla. 4th DCA 1993) (“Where an appeal has been prematurely filed, the appellant is given the opportunity to obtain a final, appealable order before dismissal.”); U.S. Bank N.A. v. Bjeljac, 17 So. 3d 862, 864 (Fla. 5th DCA 2009) (“We elect to treat this matter as a premature appeal and relinquish jurisdiction.”).
[41] Johnson v. First City Bank of Gainesville, 491 So. 2d 1217, 1218 (Fla. 1st DCA 1986) (“Once it has determined that it does not have jurisdiction, the appellate court may not ‘relinquish’ this nonexistent jurisdiction for the entry of a proper order which would then invest the appellate court with jurisdiction to hear the appeal.”); Downrite Eng’g Corp. v. Overland Carriers, Inc., 8 So. 3d 1279, 1280 (Fla. 3d DCA 2009) (dismissing premature appeal).
[42] Fla. R. App. P. 9.110 cmt. (2014).
[43] Although the amended version of Rule 9.110(l) requires appellate courts to either dismiss premature appeals or hold them in abeyance, the Second and Third districts have continued their practice of relinquishing jurisdiction to a lower tribunal for it to enter a final order or rule on a postjudgment motion that has tolled rendition of an otherwise final order. See Gray v. State, 198 So. 3d 780, 782 (Fla. 2d DCA 2016) (“Although we could dismiss this appeal, we elect to relinquish jurisdiction to the trial court to give ‘the parties additional time to obtain a final order from the lower tribunal.’” (quoting Fla. R. App. P. 9.110(l)); Santos v. HSBC Bank USA, N.A., 258 So. 3d 535, 536 (Fla. 3d DCA 2018) (acknowledging previous relinquishment of jurisdiction to the lower tribunal for it to resolve the appellant’s motion to vacate).
[44] Fla. R. App. P. 9.110(l).
[45] Fed. R. App. P. 3(e), 4(a)(1).
[46] Fed. R. App. P. 4(a)(4)(A)(iv), (vi).
[47] Id. 3(a)(1), (c), (e).
[48] Moton v. Cowart, 631 F.3d 1337, 1340 n.2 (11th Cir. 2011).
[49] Fla. R. App. P. 9.110(b).
[50] Fla. R. App. P. 9.020(h).
[51] Fla. R. App. P. 9.020(h)(1)(B).
[52] Fla. R. App. P. 9.110(d).
[53] Puga v. Suave Shoe Corp., 417 So. 2d 678, 679 (Fla. 3d DCA 1981).
[54] Bowles v. Russell, 551 U.S. 205, 214 (2007) (“The timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”); Williams v. State, 324 So. 2d 74, 77 (Fla. 1975) (“[T]imely filing of [a] notice of appeal is jurisdictional.”). But see United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009) (“Because the deadline in Rule 4(b) for filing a notice of appeal in a criminal case is not grounded in a federal statute, we hold that it is not jurisdictional.”).
This column is submitted on behalf of the Appellate Practice Section, Nicholas Ari Shannin, chair, and Thomas Seider, editor.
