Jumping the Gun: Premature Appeals in Civil Cases
For parties seeking plenary review, rendition of a final order is like the crack of a starter’s pistol.1 An appeal filed before a final order is rendered may be dismissed as premature, just as an athlete who jumps the gun may be disqualified from a race. Correctly determining whether an order is final and appealable is critical to avoiding a premature appeal. That task can be somewhat tricky, especially in civil cases. The general test of finality is deceptively simple. “The basic rule is that a judgment or order is final if it brings to a close all judicial labor in the lower tribunal.”2 Whether an order ends the judicial labor in a case is often apparent from the nature, style, and language of the order. For example, there is no question as to finality when a final judgment is entered upon a jury verdict that fully resolves the parties’ dispute. However, finality is not always so clear, and the appellate courts still see a surprising number of premature appeals.
This article will provide an overview of the three most common types of orders appealed prematurely: 1) final orders awaiting rendition, 2) orders granting motions for summary judgment, and 3) orders granting motions to dismiss. The procedure for remedying premature appeals will also be addressed. Although the discussion will focus on premature appeals in civil cases, the same principles generally apply in criminal cases.3 The related topics of appealable, nonfinal orders, and appeals from partial final judgments are beyond the scope of this article.4
Final Orders Awaiting Rendition
The jurisdiction of an appellate court to review a final order or judgment is invoked by filing a notice of appeal within 30 days of rendition.5 Generally, “[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.”6 If any one of these elements is missing — if the order has not been reduced to writing, has not been signed, or has not been filed — then the order has not been rendered.7 The filing of a timely and authorized postjudgment motion of the type listed in Fla. R. App. P. 9.020(h) — such as a motion for rehearing — suspends rendition until a signed, written order is entered, disposing of the motion, or until the motion is withdrawn or abandoned by the moving party.8 Once a final judgment has been rendered, any subsequent orders will ordinarily be classified as nonfinal.9 However, where a postjudgment order accomplishes a final adjudication of a matter not determined in the original final judgment, it will be considered a distinct final order.10 Such orders are subject to the same rendition requirements just discussed.11
An appeal of an otherwise final order that has not been rendered is premature.12
Orders Granting Motions for Summary Judgment
Summary judgment is often accomplished through the entry of two sequential orders, an order granting the motion and a subsequent final judgment. It may also be accomplished by a single order. The finality of a summary judgment does not depend on whether it is achieved through one order or two. It depends, instead, on the nature and effect of the order as determined from the language employed. If the order finally resolves all claims between the parties pending in the action by entering judgment in favor of one side and against the other, the order is final and must be appealed within 30 days of rendition.13 The substance of the order, not the title, is controlling in this respect.14 No specific magic words are required, but the order must contain unequivocal language of finality that ends the judicial labor in the case in order to be immediately appealable.15 An order lacking hallmarks of finality that merely grants a motion for summary judgment is not final and not appealable.16 Such an order can only be challenged in an appeal of a subsequent final judgment. This is because an order granting summary judgment does not actually enter judgment for or against any party; rather, it establishes only an entitlement to judgment.17 Thus, entry of a final judgment upon an order granting summary judgment is not a benign ministerial act,18 but a substantive prerequisite for appellate jurisdiction.
An appeal of an order that merely grants, but does not finally enter, summary judgment is premature.19
Orders Granting Motions to Dismiss
As with summary judgment, an order that merely grants a motion to dismiss a complaint or an action is not final.20 To be appealable, the order must unequivocally end the case by dismissing the action between the parties.21 The title, language, and context of the order should be examined to assess finality.22 The terms “with prejudice” and “without prejudice” are helpful in making this determination, but they are not conclusive. Unless the order goes beyond granting the motion to actually dismiss the action or complaint, it will be considered nonfinal even if it contains the phrase “with prejudice.”23 That same phrase, when used in an order that accomplishes a final dismissal of the case, is redundant.24 When the dismissal is without prejudice to file a new and distinct action — not simply an amended complaint in the same case — the order is final.25 On the other hand, if the dismissal is without prejudice to file an amended complaint, the order is not final.26 A party who wishes to immediately appeal should advise the trial court that no amendment will be made and request entry of a final order of dismissal.27 A party who amends may not be able to challenge dismissal of the original complaint in a later appeal because an amended pleading supersedes the original.28 Ultimately, as with summary judgment orders, the finality of dismissal orders is determined by resort to the traditional test of whether the order ends the judicial labor in the case.29
An appeal of an order that grants a motion to dismiss but does not actually dismiss the action or complaint with finality is premature.30
Procedure for Remedying Premature Appeals
Premature appeals are governed by Fla. R. App. P. 9.110(l), but their ultimate fate rests in the hands of the reviewing court. The rule, adopted in 1992, codifies the procedure for retaining or dismissing a premature, inchoate appeal.31 It provides:
If a notice of appeal is filed before rendition of a final order, the appeal shall be subject to dismissal as premature. However, if a final order is rendered before dismissal of the premature appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order. Before dismissal, the court in its discretion may permit the lower tribunal to render a final order.32
As the committee notes explain, the rule “was added to clarify the effect of a notice of appeal filed by a party before the lower court renders a final appealable order.”33
The rule focuses on the notice of appeal because that is the mechanism for invoking an appellate court’s jurisdiction. Where the notice is prematurely filed, the appeal is necessarily subject to dismissal because the appellate court lacks jurisdiction over the order sought to be reviewed. However, under Rule 9.110(l), if a final order is rendered before the appeal, the appeal matures and is no longer subject to dismissal.34 The rule also authorizes the appellate court to relinquish jurisdiction or otherwise allow the lower court to render a final order before dismissing the appeal.35 The policy rationale behind the rule seems to be the preference for resolving appeals on their merits rather than technicalities.36 Those who disfavor the broad relief afforded by the latter part of the rule question the propriety of treating a defect that makes an impact on the reviewing court’s jurisdiction as a mere technicality.37
The procedural remedies set forth in Rule 9.110(l) apply to all three types of premature appeals discussed previously. If an appropriate final order is properly rendered before the jurisdictional defect is recognized by the parties or reviewing court, the notice of appeal will give the court jurisdiction, and the only remaining step that needs to be taken to correct the problem is to file a motion to supplement the record with a certified copy of the final order. This aspect of the rule originates from Williams v. State, 324 So. 2d 74, 79 (Fla. 1975), in which the Florida Supreme Court held that a premature notice of appeal remains in a state of limbo until the final judgment is rendered, at which time the notice matures and vests the appellate court with jurisdiction. It is more commonly applied to orders awaiting rendition than to orders merely granting motions for summary judgment or dismissal. Often, an impediment to rendition is quickly removed by the natural course of the proceedings, such as when rendition waits only for the trial court to file the order with the clerk or dispose of an opposing party’s pending postjudgment motion. The rule will also be applied when a final summary judgment or final judgment of dismissal follows closely on the heels of an order granting a motion for that relief.
In the majority of cases, the obstacle to finality will not be so easily overcome, and resorting to the latter part of the rule will be necessary. Once a party realizes the appeal has been taken prematurely, he or she is obligated to bring the jurisdictional defect to the appellate court’s attention. When the court discovers the error first, it will likely issue an order directing the appellant to show cause why the appeal should not be dismissed for lack of jurisdiction.38 If the appeal is to be saved, the appellant’s first communication with the reviewing court about the matter, whether in bringing the problem to the court’s attention or responding to an order to show cause, should include a motion to temporarily relinquish jurisdiction to the trial court to permit the appellant to obtain a final appealable order.39 If the motion is granted, jurisdiction will be relinquished for the number of days specified in the appellate court’s order. Within that time, the appellant must obtain the final order and supplement the record with a certified copy in order for the appeal to proceed.40 A motion for extension of time filed before the deadline may be granted in the appellate court’s discretion.
Whether the procedure authorized by Rule 9.110(l) works to prevent dismissal of an appeal will depend on the circumstances of the case and the discretion of the reviewing court. Relinquishment is often granted when a technical defect in finality can be easily remedied, but may not be granted — and the premature appeal may be dismissed — when an indeterminate amount of judicial labor remains.41 If an appeal is ultimately dismissed as premature, the dismissal will be without prejudice to refile after an appropriate final order has been properly rendered.42 The time, expense, and delay associated with refiling can only be avoided by resort to Rule 9.110(l). An attempt to remedy a premature appeal by some other means, such as by seeking review under the guise of certiorari or under the rule governing appealable nonfinal orders, will be unsuccessful in most cases.43 In contrast, extraordinary relief may be available to obtain a final order when the trial court has wrongfully refused to enter one.44
Premature appeals are best avoided by correctly recognizing whether an appealable final order has been rendered. The practitioner who understands the nuances of rendition will know when action is necessary to remove any hindrances preventing rendition to obtain a final, appealable order. To obtain an order that meets the test of finality, one must also be able to distinguish between a final summary judgment or final judgment of dismissal and an interlocutory order that merely grants a motion. When finality is obtained before the appeal is taken, there is no danger of the appeal being dismissed as premature. The procedure set forth by Rule 9.110(l) can be utilized to save a premature appeal and likewise avoid dismissal.
As a final cautionary matter, it should be emphasized that the consequences for filing an appeal prematurely are not as dire as filing too late. Once the jurisdictional time limit has expired, the right to appeal is forever forfeit.45 The same is not true for a premature appeal. Although subject to dismissal for lack of jurisdiction, a premature appeal may be saved when a final order is rendered before the appeal is dismissed or when the reviewing court grants a temporary relinquishment of jurisdiction for entry of a final order. In addition, dismissal of a premature appeal will be without prejudice to refile upon rendition of a final order. Accordingly, if there is any doubt as to the timing of rendition or the finality of the order sought to be reviewed, it is better to err on the side of filing an appeal too early rather than too late.
1 See Raymond James & Assocs. v. Godshall, 851 So. 2d 879, 880 (Fla. 1st D.C.A. 2003), quoting Caufield v. Cantele, 837 So. 2d 371, 375 (Fla. 2002) (“Under the Florida Constitution, [a]rticle V, [§]4(b)(1), the ‘district courts have jurisdiction to hear plenary appeals, as a matter of right, only from final judgments and orders of the trial courts.’”).
2 Bennett’s Leasing, Inc. v. First St. Mortgage Corp., 870 So. 2d 93, 96 (Fla. 1st D.C.A. 2003); see also S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974) (explaining that the general test of finality “is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected”).
3 Fla. R. App. P. 9.140(a) specifies that “[a]ppeal proceedings in criminal cases shall be as in civil cases except as modified by this rule.” Fla. R. App. P. 9.110 governs appeals from final orders in civil cases, and subdivision (l) controls premature appeals; subdivision (a) should be consulted for additional guidance regarding the types of cases to which the provisions of Rule 9.110 apply.
4 The list of appealable nonfinal orders is contained in Fla. R. App. P. 9.130, and appeals from partial final judgments are governed by Rule 9.110(k).
5 Fla. R. App. P. 9.110(b).
6 Fla. R. App. P. 9.020(h) (formerly Rule 9.020(g)).
7 See Belton v. ABC Distrib. Inc., 978 So. 2d 237, 238 (Fla. 1st D.C.A. 2008) (unsigned order was not properly rendered under Rule 9.020(h)); Rivera v. Dade County, 485 So. 2d 17, 17 (Fla. 3d D.C.A. 1986) (orders not reduced to writing cannot be reviewed); Niesz v. R.P. Morgan Bldg. Co., 401 So. 2d 822, 822 n.1 (Fla. 5th D.C.A. 1981) (order was not rendered until it was filed with clerk).
8 See also Simpson v. Simpson, 780 So. 2d 985, 986-87 (Fla. 5th D.C.A. 2001) (explaining that postjudgment motion is disposed of when court enters order ruling on it or when moving party withdraws or abandons it). It is important to note that a party who files a postjudgment motion but then files a notice of appeal before the motion is heard will generally be deemed to have abandoned that motion, thus, “rendering” the judgment. Gonzalez v. Metro Dade Police Dep’t (In re Forfeiture of $104,591 in U.S. Currency), 589 So. 2d 283, 285 (Fla. 1991).
9 See Fla. R. App. P. 9.130(a)(4).
10 See Philip J. Padovano, Florida Appellate Practice §22.15, at 482 (2007 ed.); see also Clearwater Fed. Sav. & Loan Ass’n v. Sampson, 336 So. 2d 78, 79-80 (Fla. 1976); Miller v. Miller, 959 So. 2d 421, 423-24 (Fla. 2d D.C.A. 2007).
11 See, e.g., Wells Fargo Bank, N.A. v. Lupica, 17 So. 3d 864, 865-66 (Fla. 5th D.C.A. 2009) (appeal of postjudgment final order in foreclosure case was premature where order was never rendered by filing it with trial court clerk); U.S. Bank Nat’l Ass’n v. Bjeljac, 17 So. 3d 862, 863 (Fla. 5th D.C.A. 2009) (same).
12 See Howell v. Jackson, 810 So. 2d 1081, 1082 (Fla. 4th D.C.A. 2002); Barner v. Barner, 673 So. 2d 886, 887-88 (Fla. 4th D.C.A. 1996); Kingsley v. Kingsley, 623 So. 2d 780, 789 (Fla. 5th D.C.A. 1993).
13 See State Farm Mut. Auto. Ins. Co. v. Open MRI of Orlando, Inc., 780 So. 2d 339, 340 (Fla. 5th D.C.A. 2001) (order that decreed “[f]inal [s]ummary [j]udgment is hereby entered” was sufficient to establish finality and commence jurisdictional time limits for appeal; therefore, appeal from order entered months later, which merely included additional language of finality, was untimely).
14 See Dockery v. Hood, 889 So. 2d 221, 222 (Fla. 1st D.C.A. 2004) (“Although the order sought to be reviewed is captioned as a ‘[f]inal [d]eclaratory [j]udgment,’ it lacks the requisite words of finality to make it a final order. Instead, it merely grants a motion for summary judgment and is therefore non-final.”); Boyd v. Goff, 828 So. 2d 468, 469 (Fla. 5th D.C.A. 2002) (explaining that finality of an order is not determined by its label, but by the operation and effect of its language).
15 See Cardiothoracic & Vascular Surgery, P.A. v. W. Fla. Reg’l Med. Ctr., 993 So. 2d 1060, 1061 (Fla. 1st D.C.A. 2008) (citations omitted) (“[T]he order on appeal does not contain sufficient language of finality to unequivocally bring an end to the required judicial labor, and therefore it failed to dispose of the case as to a party. Similar to an order granting a motion for summary judgment, an order granting summary judgment, without more, is not a final order.”); Chan v. Brunswick Corp., 388 So. 2d 274, 275-76 (Fla. 4th D.C.A. 1980) (holding that the phrase “for which let execution issue” was not an essential ingredient in an otherwise final summary judgment); cf. Allstate Ins. Co. v. Collier, 405 So. 2d 311, 312 (Fla. 4th D.C.A. 1981) (order granting summary judgment was final and appealable where it contained “magic words” of finality, which decreed plaintiff would “take nothing by this suit” and “go hence without day”).
16 See, e.g., McQuaig v. Wal-Mart Stores, Inc., 789 So. 2d 1215, 1215-16 (Fla. 1st D.C.A. 2001); Arcangeli v. Albertson’s, Inc., 550 So. 2d 557, 558 (Fla. 5th D.C.A. 1989); Aetna Cas. & Sur. Co. v. Meyer, 385 So. 2d 10, 11 (Fla. 3d D.C.A. 1980).
17 See Wahl v. Taylor, 926 So. 2d 488, 489 (Fla. 2d D.C.A. 2006); Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 149 (Fla. 3d D.C.A. 2002).
18 See D.J. Air Conditioning, Inc. v. BellSouth Adver. & Publ’g Corp., 705 So. 2d 913, 913 (Fla. 3d D.C.A. 1997) (citations omitted) (“It appears that the successor judge considered entry of the final judgment to be merely a ministerial act based on this court’s relinquishment of jurisdiction. The successor judge had the authority to reconsider the interlocutory order granting the motion for summary judgment and erred in failing to do so.”).
19 See Mathews v. Urezzio, 788 So. 2d 1133, 1134 (Fla. 5th D.C.A. 2001).
20 See Better Gov’t Ass’n of Sarasota County, Inc. v. State, 802 So. 2d 414, 415 n.3 (Fla. 2d D.C.A. 2001) (“Orders granting motions to dismiss that fail to dismiss the cause itself are subject to the same jurisdictional infirmities as are those that simply grant motions for summary judgment.”).
21 Hinote v. Ford Motor Co., 958 So. 2d 1009, 1010-11 (Fla. 1st D.C.A. 2007).
22 Id. at 1010 (“Whether an order unequivocally brings an end to the case by dismissing the action without prejudice to bring another action may be determined by examining the context of the order.”); Hoffman v. Hall, 817 So. 2d 1057, 1058 (Fla. 1st D.C.A. 2002) (“In the case before this court, the title of the order, the lack of language demonstrating finality and the ambiguous phrasing which suggests that some future order ‘shall be entered’ renders the order nonfinal for appellate purposes. The order on appeal merely establishes entitlement to a judgment and does not actually enter or render a judgment.”).
23 See, e.g., Becton v. K&L Contractors, Inc., 573 So. 2d 428 (Fla. 5th D.C.A. 1991); Diaz v. Metro-Dade Police Dep’t, 557 So. 2d 608 (Fla. 3d D.C.A. 1990).
24 See Gries Inv. Co. v. Chelton, 388 So. 2d 1281, 1283 (Fla. 3d D.C.A. 1980).
25 See Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451, 452 (Fla. 1st D.C.A. 1993) (explaining that an order dismissing a civil action “without prejudice” for untimely service of process was an appealable final order because the dismissal was clearly without prejudice to file a separate action, not an amended complaint).
26 See Sleepy Hollow, Inc. v. City of Archer, 10 So. 3d 1130, 1130 (Fla. 1st D.C.A. 2009) (order that granted motion to dismiss complaint without prejudice to file an amended complaint was not a final order); Klein v. Pinellas County, 685 So. 2d 945, 946 (Fla. 2d D.C.A. 1996) (citation omitted) (“An order of dismissal with leave to amend is not appealable because it is a nonfinal order. There must be a separate final order entered which disposes of the case and which is properly rendered. . . . ”).
27 See Klein, 685 So. 2d at 946.
28 See Padovano, Florida Appellate Practice §21.3, at 420-21; see also Raymond, James & Assocs. v. Zumstorchen Invest., Ltd., 488 So. 2d 843, 844 (Fla. 2d D.C.A. 1986); Commercial Garden Mall v. Success Acad., Inc., 453 So. 2d 934, 936 (Fla. 4th D.C.A. 1984).
29 Hoffman, 817 So. 2d at 1058.
30 See, e.g., Hinote, 958 So. 2d at 1010.
31 See In re Amendments to Fla. Rules of Appellate Procedure, 609 So. 2d 516, 517, 535-36 (Fla. 1992); see also Better Gov’t, 802 So. 2d at 415.
32 Fla. R. App. P. 9.110(l) (formerly 9.110(m)).
33 Id. (committee notes, 1992 amendment).
34 Fla. R. App. P. 9.110(l).
35 Fla. R. App. P. 9.110(l) (committee notes, 1992 amendment).
36 See State v. Blaney, 722 So. 2d 220, 222 (Fla. 5th D.C.A. 1998) (citing Puga v. Suave Shoe Corp., 417 So. 2d 678, 679 (Fla. 3d D.C.A. 1981)).
37 See, e.g., Benton v. Moore, 655 So. 2d 1272 (Fla. 1st D.C.A. 1995).
38 See, e.g., Mathews, 788 So. 2d at 1134; Benton, 655 So. 2d at 1273.
39 See, e.g, Mathews, 788 So. 2d at 1134-35.
40 See Wahl, 926 So. 2d at 489; Better Gov’t, 802 So. 2d at 415.
41 See, e.g., Demont v. Demont, 34 Fla. L. Weekly D2623, 2009 WL 4912605 (Fla. 1st D.C.A. Dec. 22, 2009); Lupica, 17 So. 3d at 865; Palm Hill Villas Homeowners Ass’n v. Rose-Green, 855 So. 2d 83, 84 (Fla. 4th D.C.A. 2003); Better Gov’t, 802 So. 2d at 415; D.J. Air Conditioning, 705 So. 2d at 913.
42 See Benton, 655 So. 2d at 1273.
43 See, e.g., Ware v. Polk County, 918 So. 2d 977, 978 (Fla. 2d D.C.A. 2005) (declining to treat premature appeal of order granting summary judgment as appeal of a nonfinal order); Hoffman, 817 So. 2d at 1059 (declining to review premature appeal of order granting motion to dismiss by petition for writ of certiorari).
44 In Belin v. Mitchel, 679 So. 2d 860, 861 (Fla. 1st D.C.A. 1996), the court granted a petition for writ of certiorari where “the trial court departed from the essential requirements of the law in denying petitioner’s motion for entry of a final appealable order.” Mandamus may also be available in an appropriate case. See Maddrie v. McDonough, 945 So. 2d 573, 574 (Fla. 1st D.C.A. 2006) (“Under appropriate circumstances, the remedy of mandamus is available to compel a lower tribunal to render an appealable order.”).
45 That is, absent the granting of a belated appeal in a criminal or termination of parental rights case.
Bretton C. Albrecht currently serves as a senior staff attorney to Judge Bruce W. Jacobus at Florida’s Fifth District Court of Appeal. She has also served as a staff attorney at Florida’s 19th Circuit Court. She earned her J.D., with honors, from the University of Mississippi School of Law.
This column is submitted on behalf of the Appellate Practice Section, Dorothy F. Easley, chair, and Tracy R. Gunn, Heather M. Lammers, and Kristin A. Norse, editors.