Florida Bar Journal

The Misnomer of Partial Final Judgments: Is Appellate Review of Partial Final Judgments Constitutional?

Article V, §4(b)(1), of the Florida Constitution gives district courts of appeal jurisdiction to hear appeals “from final judgments or orders of trial courts...not directly appealable to the supreme court or a circuit court.”^[1] However, the Florida Supreme Court determined that in certain circumstances, a trial court judgment that does not resolve the entire action may constitute a final judgment and, therefore, be appealable as such.^[2] Following those decisions, the supreme court adopted Florida Rule of Appellate Procedure 9.110(k), which labeled these judgments as “partial final judgments” and provided the procedure for when they may be appealed.^[3] Under the rule, a partial final judgment is one that “disposes of an entire case as to any party” or that “disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.”^[4]

This article questions the correctness of the Florida Supreme Court’s rationale that “partial final judgments” are appealable as “final judgments” and, by extension, whether it is constitutional for a district court of appeal to exercise appellate jurisdiction to review a partial final judgment. The Florida Constitution only affords appellate jurisdiction to review “final judgments or orders of trial courts.”^[5] The word “final” is not qualified in any respect. By definition, judgments that are only partially final are manifestly not final. While there are certainly legitimate prudential considerations for allowing district courts to review partial final judgments, constitutionally justifying the practice is another matter.

This article suggests that the Florida Supreme Court should reexamine its rationale for the conclusion that partial final judgments are appealable as final judgments, which this author respectfully suggests is based on a distortion of the ordinary meaning of the word “final.” Consequently, this article proposes other ways to attempt to constitutionally justify the appealability of partial final judgments and encourages their consideration.

Appellate Jurisdiction

The Florida Constitution gives judicial power to “a supreme court, district courts of appeal, circuit courts and county courts.”^[6] The constitution further prescribes the jurisdiction within which those courts may exercise their judicial power. Relevant here, Florida’s district courts of appeal “shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts...not directly appealable to the supreme court or a circuit court.”^[7] District courts also “may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.”^[8] To that end, the supreme court adopted Fla. R. App. P. 9.130, which has been amended many times over the years, to authorize appeals to the district courts from certain types of “nonfinal” — that is, interlocutory — orders.^[9]

Derived from this constitutional structure are the general propositions that litigants have a right to appeal final judgments or orders of trial courts and that litigants may not appeal nonfinal orders unless the supreme court says so. If a nonfinal order is not subject to appellate review under Rule 9.130, the litigant must generally wait until the entry of a final judgment to seek review of it.^[10]

Consequently, an important determination for evaluating any prospective appeal is whether the trial court’s order at issue is final or nonfinal. That determination not only affects whether an order is appealable, but also when it may be appealable — critical information for practitioners to ensure that they do not inadvertently waive their client’s appellate rights. However, the final versus nonfinal consideration is not entirely binary given the evolution of what has come to be known under Florida law as “partial final judgment.”

Final and Partial Final Judgments

The term “final judgment” was not always part of Florida’s constitution. Historically, the constitution made the Florida Supreme Court the state’s only appellate court with “appellate jurisdiction only...as may from time to time be prescribed by law.”^[11] To that end, the legislature enacted general law providing that “[w]rits of error shall lie only from final judgments.”^[12] The constitution was amended in 1956 to establish district courts of appeal and provide them with jurisdiction over “[a]ppeals from trial courts...from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court.”^[13] The 1972 constitutional revisions established the jurisdictional language that exists today: “District courts of appeal shall have jurisdiction to hear appeals...from final judgments or orders of trial courts.”^[14]

So while the term “final judgment” has only been a part of the constitution’s text since 1956, the term has served as a trigger for appellate jurisdiction for much longer. The Florida Supreme Court has historically recited minor variations in the definition of a final judgment, but it has consistently defined a final judgment in substance as one that ended the entire action between the parties and left nothing further for the trial court to do. As examples: 1) Branch v. Branch, 5 Fla. 447, 450 (Fla. 1854) (“A final judgment is one that puts an end to the suit.”)^[15]; 2) State v. White, 24 So. 160, 165 (Fla. 1898) (concluding a decree that “finally disposes of every question involved in the case,” that “leaves nothing open for future decision,” and that does not “contemplate that any further action is to be had in the cause” was final); 3) Bell v. Niles, 53 So. 714, 714 (Fla. 1910) (“A final judgment is one that adjudicates the merits of the cause or disposes of the action.”); 4) State Rd. Dep’t v. Crill, 128 So. 412, 414-15 (Fla. 1930) (“We find that a final judgment is one that adjudicates the merits of the cause and disposes of the action,” thereby “put[ting] an end to the suit,” such that “so long as the action is pending in the lower court, this court cannot touch the case.”)^[16]; and 5) Foley v. State ex rel. Gordon, 50 So. 2d 179, 186 (Fla. 1951) (“‘Final judgment’ means the finish of the judicial labor, pronouncement of the ultimate conclusion of the court upon the case, and a direction to the clerk to enter judgment.”).^[17]

Those definitions make sense. “[W]e give the words of the constitution their plain, usual, ordinary, and commonly accepted meanings at the time they were written.”^[18] The ordinary meaning of “final” is: “[f]orming or occurring at the end; last,” and “[o]f or constituting the end result of a succession or process; ultimate.”^[19] That definition does not appear to have materially changed in over two centuries, as in the mid-1700s it was defined as, “Ultimate; last.”^[20] In other words, the ordinary meaning of a judgment that is final is one that occurs at the end of a lawsuit and represents the ultimate conclusion of the suit.

Over time, however, the meaning of a “final judgment” seemingly expanded through a series of Florida Supreme Court opinions. Those opinions, or at least one of them, precipitated the adoption of Fla. R. App. P. 9.110(k).

Crill

Research has revealed that the first time the Florida Supreme Court meaningfully considered whether a partial final judgment was appealable as a final judgment was in Crill in 1930.^[21] There, the state filed a petition to condemn the respondent’s land and “a certain quantity of sand.”^[22] After the trial court dismissed the portion of the petition seeking to condemn sand, the state appealed to the supreme court.^[23] The state argued that the trial court’s dismissal order was a final judgment because the condemnation petition contained “two separate and distinct causes of action” and the dismissal of the “part of the petition relating to sand left nothing further for determination with regard to that particular cause of action.”^[24]

The supreme court in Crill acknowledged that there was authority, albeit from other states:

[T]o support the proposition that where a distinct and separate branch of the cause is finally determined, although the suit is not ended, there may be an appeal...and that where a suit contains several distinct causes of action, and a judgment is final in its terms, an appeal may be taken as to the causes of action on which the judgment is final.^[25]

Nevertheless, the court identified other authorities providing the “general rule to be that a final decision disposes of the entire case” and “that a judgment or decree is not final or appealable unless it determines the merits of the controversy or the rights of the parties and leaves nothing for future determination.”^[26]

The court sided with the general rule, concluding that the trial court’s dismissal order was “not a final judgment.”^[27] The court said, “[W]e find that a final judgment is one that adjudicates the merits of the cause and disposes of the action” and “puts an end to the suit,” and that “so long as the action is pending in the lower court, [the appellate court] cannot touch the case.”^[28] By concluding as such, the supreme court necessarily rejected the proposition that the adjudication of a separate and distinct cause of action constitutes a final judgment. The court reasoned that there was “but one proceeding, one ‘case,’ one ‘cause,’ one ‘suit,’ before the lower court” and that the trial court’s dismissal order “did not break this one ‘suit’ or ‘case’ or ‘cause’ into two.”^[29]

Plunkett

About two decades later in 1951, the Florida Supreme Court reached a different result in Hillsboro Plantation v. Plunkett, 55 So. 2d 534 (Fla. 1951). In that case, the plaintiff sued Florida Power & Light (FPL) and Hillsboro Plantation, jointly and severally, for negligence.^[30] After a jury verdict in the defendants’ favor, the trial court granted a new trial as to Hillsboro but denied a new trial as to FPL because its liability “was exclusively under the Workmen’s Compensation Act.”^[31] Hillsboro appealed the order granting a new trial against it, and the plaintiff cross-appealed the judgment in FPL’s favor.^[32] FPL moved to dismiss the plaintiff’s cross-appeal, contending the judgment in its favor was “interlocutory” and would “not become a final and appealable judgment until the case against Hillsboro [was] finally disposed.”^[33]

The Florida Supreme Court denied FPL’s motion to dismiss.^[34] Though it cited Crill for the definition of a final judgment, the court concluded that “under that definition the judgment in favor of [FPL] is a ‘final’ judgment.”^[35] The court observed that the final judgment in FPL’s favor was based on “an issue which has nothing whatever to do with the question of [FPL]’s negligence — whether operating independent, or concurrently with that of Hillsboro” and “[n]othing that transpires in a subsequent trial, if any, of Plunkett’s claim against Hillsboro could have any effect on the judgment in favor of [FPL].”^[36]

The court also reasoned that the “convenience of the court and the parties will be best served by allowing the cross-appeal to stand so that it may be decided at the same time as that of Hillsboro.”^[37] Conversely, it noted the “inconvenience and injustice which would result from postponing a decision on the cross-appeal until the final determination of the cause as to Hillsboro,” reasoning that a delayed disposition of the cross-appeal could result in a third trial if the judgment in FPL’s favor was later determined to be erroneous.^[38]

Mendez

A couple of decades later in 1974, the Florida Supreme Court issued two additional opinions concerning partial final judgments. First, in Mendez v. W. Flagler Family Ass’n, 303 So. 2d 1 (Fla. 1974), the supreme court was presented with an “appeal from a summary final judgment of a trial court in favor of defendants dismissing a distinct and independent claim of fraud and illegality in the issuance of a policy of hospital insurance.”^[39] Two other counts remained pending at the trial court level for breach of contract.^[40] The appellees moved to dismiss the appeal, contending that “review may not be had of a partial summary judgment as to partial liability prior to final judgment.”^[41]

The court concluded that the partial summary judgment was appealable as a final judgment. The court expressed agreement with a prior decision from the Second District, which provided, “The general rule is that a judgment, order or de[c]ree to be appealable as final must dispose of all issues or causes in the case; But the rule is relaxed where the judgment, order or decree adjudicates a distinct and severable cause of action.”^[42] The supreme court expressed that it “adhere[d] to the rule that piecemeal appeals should not be permitted where claims are legally interrelated” but that the dismissal “with finality” of a “separate and distinct cause of action” that “is not interdependent with other pleaded claims...should be appealable.”^[43] Because the court concluded that the partial summary judgment disposed of a tort claim that “had nothing to do” with the pending breach of contract claims, it concluded that the partial summary judgment was appealable.^[44] The court explained, “From the administrative standpoint,” delaying the appeal on the tort claim would be “more technical than substantial” and serve no “good purpose.”^[45]

S.L.T. Warehouse

Just a few weeks after Mendez, the Florida Supreme Court issued its opinion in S.L.T. Warehouse v. Webb, 304 So. 2d 97 (Fla. 1974). In that case, S.L.T. was sued in a third-party complaint for breach of fiduciary duty and negligence arising out of its obligations to administer and manage collateral security for a loan that the third-party plaintiffs obtained from a bank.^[46] S.L.T. counterclaimed against the third-party plaintiffs, alleging that the terms of their contract required the third-party plaintiffs to defend and hold S.L.T. harmless.^[47] The trial court dismissed S.L.T.’s counterclaim on the basis that the contract did not “contract away” S.L.T.’s liability “for [its] own actions of negligence.”^[48] After S.L.T. appealed that order, the Fourth District dismissed the appeal because the “main suit and the third party complaint remain[ed] pending in the lower court.”^[49]

Although the Florida Supreme Court agreed that the trial court’s order was not appealable, it reiterated the “relaxed” rule of finality:

[G]enerally, to be appealable as final, an order or decree must dispose of all the issues or causes in the case, but this general rule is relaxed where the judgment, order or decree adjudicates a distinct and severable cause of action, not interrelated with remaining claims pending in the trial court.^[50]

Based on “the peculiar facts” of the case, the supreme court reasoned that trial court’s order was not final because the claims in the third-party complaint were “clearly interrelated and in substance do involve the same transaction.”^[51] The court reiterated what it had said in Mendez: “[W]hen 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.”^[52]

Rule 9.110(k)

Following these decisions, the Florida Supreme Court exercised its rule-making authority to adopt Rule 9.110(k) in 1984.^[53] The purpose of the rule was to “remed[y] the problem of determining when to appeal a partial final judgment” and “to implement the criteria set forth...in Mendez.”^[54] The rule currently reads as follows:

Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition. The scope of review of a partial final judgment may include any ruling or matter occurring before filing of the notice of appeal so long as such ruling or matter is directly related to an aspect of the partial final judgment under review.^[55]

Discussion

The Florida Supreme Court’s rationale in cases like Mendez, S.L.T. Warehouse, and Plunkett is questionable. These opinions do not analyze the text of Florida’s constitution (or, in the case of Plunkett, the applicable statute), which gives appellate jurisdiction to review final judgments.^[56] The word “final” is not qualified in any respect. Based on the ordinary meaning of the adjective “final,” a final judgment contemplates an end to the entire action — not just a part of it. Both Mendez and S.L.T. Warehouse even acknowledge the general rule: “to be appealable as final,” a judgment “must dispose of all issues or causes in the case.”^[57]

The court’s rationale for permitting appeals from partial final judgments was that in the context of partial final judgments, “the rule is relaxed.”^[58] The fact that the rule had to be “relaxed” for partial final judgments to constitute final, appealable judgments demonstrates that partial final judgments do not fall within the scope of the rule in the first instance. In fact, both S.L.T. and Mendez focused on whether partial final judgments should be appealable,^[59] which is different than deciding whether the relevant legal text provides that they are appealable. Because the text of the Florida Constitution does not relax or otherwise qualify the word “final,” one could reasonably argue that the supreme court’s premise for allowing appellate review of partial final judgment rests on a distortion of the ordinary meaning of the word “final.”

Indeed, the term “partial final judgment” is a misnomer.^[60] Partial final judgments are manifestly not final judgments. Otherwise, there would be no need to include the qualifier, “partial.” Anytime a trial court enters a partial final judgment, it still needs to resolve the case with respect to additional parties or additional causes of action. Either way, there is always more judicial labor to be done. In other words, the fact that a trial court’s judgment against one of several parties — or against one of several causes of action — is analytically distinct from the remainder of the case does not alter the fact that further judicial labor remains. The constitution only differentiates between appellate jurisdiction to review orders that are final and those that are “interlocutory,” that is, nonfinal. There is no in-between. Even the language of Rule 9.110(k) differentiates between “the partial final judgment” and “the final judgment in the entire case,” indicating that they are not one in the same. Thus, the supreme court’s characterization of a partial final judgment as constituting a final judgment for purposes of appeal is inconsistent with the language of the constitution and logically unsound.

Other states have taken a more definitive position on the matter that adheres to the ordinary meaning of “final.” For example, Michigan appellate courts, like Florida appellate courts, generally have jurisdiction to hear appeals from a “final judgment or final order of the circuit court.”^[61] But Michigan law defines by court rule precisely what constitutes a “final judgment or final order,” including “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties” in a civil case.^[62] Based on that definition, a “partial final judgment” would not qualify for appeal as a “final judgment.”

To be clear, however, appellate review of a partial final judgment is, by and large, a good thing. There are valid prudential reasons to provide for the immediate appealability of partial final judgments — particularly those that dispose of a case as to one of several parties. For example, if a plaintiff obtains a summary judgment against one of two defendants, the defendant against whom summary judgment was entered can appeal that adverse ruling immediately even though the trial court still must resolve the case against the other defendant. Forcing the first defendant to delay his or her appeal until the trial court resolves the rest of the case is inefficient and prejudicial to the first defendant.

But no matter how valid those prudential considerations may be, such considerations cannot justify bending or relaxing the language of the Florida Constitution to provide for something that the text cannot bear — especially when it comes to jurisdiction. “[D]istrict courts are courts of limited jurisdiction and may only exercise the jurisdiction conferred upon them by the Florida Constitution.”^[63] Here, the constitution limits jurisdiction to those judgments or orders that are final. If the text of our constitution does not provide district courts with jurisdiction to review appeals from partial final judgments, the constitution must be lawfully amended and ratified by the voters. The supreme court does not have the authority to amend the Florida Constitution.^[64]

The Florida Supreme Court should reexamine this issue and, should it desire to maintain appellate review of partial final judgments, consider other ways to justify the constitutionality of the practice. Instead of distorting or relaxing the ordinary meaning of the word “final,” perhaps it is necessary to reexamine what a final judgment adjudicates. The supreme court’s historical recitations of the definition of a “final judgment” have generally referred to the adjudication of the cause or the action. Perhaps the supreme court in Crill construed too narrowly what a “cause” or an “action” is, reasoning as it did that there was only one cause pending before the trial court. Even though a plaintiff initiates one lawsuit, perhaps in certain circumstances a single lawsuit could comprise multiple causes or actions. For example, maybe a plaintiff who sues two defendants has initiated one lawsuit containing two causes — one cause against each defendant. Under that rationale, the trial court’s adjudication of each cause on the merits would result in a separate final judgment, each of which would be appealable as such because they finally adjudicate the cause between those respective parties.^[65]

Another potential solution is to recognize partial final judgments as being nonfinal orders and, therefore, amend Fla. R. App. P. 9.130 to provide for the appealability of partial final judgments as nonfinal orders. After all, the constitution gives appellate jurisdiction to district courts of appeal to review “interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.”^[66] Were the supreme court to adopt such a rule, appellate review of partial final judgments would unquestionably be constitutionally firm.

But even that potential solution could be subject to criticism. During the pendency of a nonfinal appeal, Rule 9.130(f) divests the trial court of jurisdiction to “render a final order disposing of the cause absent leave of the court.”^[67] To understand the implications of that rule, consider the rule as applied to the fact scenario in Plunkett. While an amendment to Rule 9.130 in the manner described would benefit a plaintiff with an immediate right of appeal to challenge the judgment in FPL’s favor, subdivision (f) would prejudice Hillsboro by precluding the trial court from finally adjudicating the claim asserted against it while the nonfinal appeal remains pending. Subdivision (f) does contemplate circumstances in which litigants may obtain leave of court to allow the trial court to dispose of the remainder of the case despite the pendency of the nonfinal appeal,^[68] which may be appropriate in the event partial final judgments were deemed appealable, nonfinal orders. But the point remains that it would be helpful to consider any potential procedural implications if the supreme court concluded that parties may only appeal partial final judgments under Rule 9.130.

Conclusion

The Florida Supreme Court has been clear in recent opinions concerning constitutional interpretation that “[t]he words of a governing text are of paramount concern.”^[69] This article champions that philosophy. The Florida Supreme Court’s rationale to justify appeals of partial final judgments is questionable and does not give the words of the governing text — Florida’s constitution — “paramount concern.” But there may be better ways to constitutionally justify appellate review of partial final judgments. In deference to the language used in the constitution, it is important to consider them.