Arbitration is an Appealable Non-Final Order

Posted by David Adelstein on October 14, 2017
Standard of Review, Trial Perspectives / Comments Off on Arbitration is an Appealable Non-Final Order

Arbitration is a creature of contract. If a contract requires arbitration that means the parties are required to arbitrate their disputes as opposed to litigate their disputes. Instead of their being a judge or jury, there will be an arbitrator.

There are three considerations when determining whether a dispute is subject to arbitration:

1) Is there a valid written agreement to arbitrate (such as an arbitration provision in a contract)?

2) Is there an arbitrable issue? And

3) Has the right to arbitrate the issue or dispute been waived?

Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017) quoting Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla. 2013).

Entitlement to arbitration, and the granting or denying a party’s motion to compel arbitration, is a non-final order that is appealable. Fla. R. App. P. 9.130(a) (3)(C)(iv).  Typically, when a party moves to compel arbitration and that motion is granted or denied, there is an appeal of this non-final order.

An order granting or denying a motion to compel arbitration is reviewed on appeal with a de novo standard of review. Chaikin, supra, quoting Roth v. Cohen, 941 So.2d 496, 499 (Fla. 3d DCA 2006). Whether a party has waived the right to arbitrate “‘is a question of fact, reviewed on appeal for competent, substantial evidence to support the lower court’s findings.’” Chaikin, supra, quoting Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 686 (Fla. 2d DCA 2009).

For example, in Chaikin (the facts discussed in more detail here), the appellate court reversed the trial court and held that a party waived its right to compel arbitration of a counterclaim by virtue of the party initiating the lawsuit to begin with. By the party filing the lawsuit, they voluntarily relinquished the right to compel the counterclaim – based on the same facts as the complaint — to arbitration.  As the appellate court held, what is sauce for the goose is sauce for the gander — a party cannot compel a counterclaim to arbitration when the same party filed a lawsuit.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Strictly Complying with Procedural Requirements when Moving to Amend to Add Punitive Damages

Posted by David Adelstein on October 01, 2017
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Punitive damages can be an important component of a plaintiff’s damages. No doubt about it. No defendant wants the jury to be able to determine whether to award these damages or the quantum of punitive damages associated with its/his/her gross negligence or intentional misconduct.  Punitive damages can be a game changer.

The objective behind punitive damages is to punish the wrongdoer-defendant and deter the wrongful conduct, rather than to compensate the plaintiff. Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 640 (Fla. 5th DCA 2005). “Because the amount of an award [of punitive damages] may be a pittance to a rich man and ruination to a poor one, the goal of punishment must of necessity take into account the financial worth of the wrongdoer.” Id. at 641. For this reason, once the court grants a motion to allow punitive damages, this allows the plaintiff to seek financial worth discovery on the wrongdoer-defendant. Id.

If you are interested in preserving your rights to assert punitive damages, you must comply with both Florida Statute s. 768.72 [Pleading in civil actions; claim for punitive damages] and Florida Rule of Civil Procedure 1.190(f) [Claims for Punitive Damages].

Florida Statute s. 768.72 provides in relevant part:

(1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.

Florida Rule of Civil Procedure 1.190(f) provides:

A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

Both Florida Statute s. 768.72 and Florida Rule of Civil Procedure 1.190(f) MUST be considered in detail when moving to amend to add punitive damages. When a court grants a plaintiff’s motion to amend to add punitive damages, this gives the defendant the right to file an appeal for certiorari relief to argue that the plaintiff failed to comply with the procedural requirements of Section 768.72 and Rule 1.190(f).   See Fetlar, LLC v. Suarez, 2017 WL 3879968 (Fla. 3d DCA 2017) (reversing motion to amend authorizing punitive damages because the plaintiff failed to comply with the procedural requirements of Section 768.72 and Rule 1.190).  This appellate right makes it all the more important to ensure that the procedural requirements are being strictly complied with when moving to amend to add punitive damages. 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore…

Posted by David Adelstein on September 23, 2017
Appeal / Comments Off on Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore…

 

In an earlier posting, I discussed the difference between a motion for rehearing and motion for reconsideration.  

From that posting, you know that a motion for rehearing is a post-trial motion and, in particular, a motion that applies post-judgment. A properly filed motion for rehearing will toll the time to file an appeal. 

There are times where a party after a judgment is entered will file a motion for rehearing. Then, before that motion is ruled on, will file a notice of appeal. Why? The party is not appealing the order on the motion for rehearing because such an order has not been issued. Thus, the party is filing a notice of appeal of the judgment – yes, the same judgment that prompted the motion for rehearing.

Previously, the law stated that the party abandoned its post-trial motion for rehearing. “[B]y filing a notice of appeal prior to obtaining a ruling on the motion for rehearing, Appellant abandoned its motion.” Dep’t of Revenue v. Vanamburg, 174 So.3d 640, 642 (Fla. 1st DCA 2015) (“Florida Rule of Appellate Procedure 9.020(i)(3) provided that if a motion for hearing or a motion to alter or amend, among other post-judgment motions, is filed ‘and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal.’”). See also Kee v. Bailey, 634 So.2d 654 (Fla. 3d DCA 1994) (“The Florida Supreme Court has clearly stated that a party abandons previously filed post-judgment motions when he files a notice of appeal of that judgment.”).

In 2015, Florida Rule of Appellate Procedure 9.020(i)(3) was amended to eliminate the abandonment of such post-judgment motions.  Now, the  Rule states that if the Notice of Appeal is filed before the trial court issues an order on the post-judgment motions, the appeal is held in abeyance:

If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, the appeal shall be held in abeyance until the filing of a signed, written order disposing of the last such motion.

And, what if the party filed a motion for rehearing, but then withdrew the motion for rehearing and filed a notice of appeal? In this scenario, “the rendition of the final judgment in this circumstance occurs at the time the notice of appeal is filed, not at the earlier time when the final judgment is entered.” Rice v. 1989 Ford Bronco, 609 So.2d 639, 640 (Fla. 2d DCA 1992).   In other words, when a party abandons its timely filed post-trial motion, the abandonment occurs when the notice of appeal is filed. And, thus, the time to file the notice of appeal is not initiated when the final judgment is entered, but when the post-trial motion is abandoned such as through the filing of the notice of appeal. See Rice, supra, (denying motion to dismiss appeal as untimely due to post-trial motion being abandoned by party filing notice of appeal).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Referral Sources can be a Protected Legitimate Business Interest

Posted by David Adelstein on September 16, 2017
Trial Perspectives / Comments Off on Referral Sources can be a Protected Legitimate Business Interest

In a big case for employers that rely on referrals for the viability of their business, the Florida Supreme Court held that referral sources may be a protected legitimate business interest under Florida Statute s. 542.335 based on the context and proof.  Hence, referral sources can be protected under a non-compete / non-solicitation agreement that prohibits the employee, upon leaving, from soliciting referrals for a period of time.   White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017) (holding that referral sources for a home health care company may be a protected legitimate business interest depending on the context and proof).

This is a big win for employers that have employees sign non-compete and non-solicitation agreements as a condition of employment to safeguard referral lists and sources.   Notably, the term “referral sources” is not specifically called out in Florida Statute s. 542.335, which is a statute that deals with valid restraints on trade (or restrictive covenants in employment agreements such as non-compete or non-solicitation-type agreements). However, the Florida Supreme Court confirmed that the specific legitimate business interests called out in the statute are non-exhaustive meaning other interests, such as referral sources, can constitute a legitimate business interest of an employer.   The context and proof is important, however, with respect to any business interest to establish it is actually a legitimate business interest that should be protected in a restrictive covenant (such as a non-compete or non-solicitation-type agreement).

In language that I find to be extremely germane, the Florida Supreme Court stated:

However, the statute ameliorates any concern regarding overly restrictive covenants. Section 542.335 commands courts to modify, or blue pencil, a non-competition agreement that is “overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest,” instructing courts to “grant only the relief reasonably necessary to protect such interest.” Thus, section 542.335’s phrasing of the business interests that may be protected in broad terms and its restricting courts from applying certain rules of contract construction, the statute grants trial courts fairly wide discretion to fashion the appropriate context-dependent remedy

White, supra, (internal citations omitted).

This language is germane because it reaffirms a trial court’s wide discretion to modify or blue-pencil (red-line) a non-compete or non-solicitation agreement that may be overly broad to protect only those business interests the court deems legitimate. Thus, the trial court does not have to deem the agreement unenforceable, but can modify the terms of the restrictive covenant language and fashion the appropriate remedy to protect the true, legitimate business interests of an employer.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Motion for Rehearing or Reconsideration: What is the Difference?

Posted by David Adelstein on September 03, 2017
Appeal / Comments Off on Motion for Rehearing or Reconsideration: What is the Difference?

Motions titled rehearing and reconsideration are routinely used interchangeably, as if there is no difference between the name “rehearing” and the name “reconsideration. There is a difference though. A motion for a rehearing is distinct from a motion for reconsideration and this distinction is key. Not understanding the difference between a motion for rehearing and motion for reconsideration can result in an untimely appeal.

Motions for rehearing apply to final judgments. They are filed pursuant to Florida Rule of Civil Procedure 1.530 because they “only apply to final judgments and ‘those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.’” Seigler v. Bell, 148 So.3d 473, 478 (Fla. 5th DCA 2014) quoting Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1290, n.6 (Fla. 3d DCA 1986).

Motions for reconsideration, on the other hand, apply to non-final, interlocutory orders prior to final judgment. Helmich v. Wells Fargo Bank, N.A., 136 So.3d 763, 765 (Fla. 1st DCA 2014). These motions are based on the trial court’s “‘inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action.’” Seigler, 148 So.3d at 478 quoting Silverstrone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998).

Although a motion for rehearing and motion for reconsideration are oftentimes mistitled, a court will treat a mistitled motion for reconsideration as a motion for rehearing and vice-versa. Seigler, 148 So.3d at 479. Mistitling or not understanding the distinction between the two motions can be problematic since “[a] motion for reconsideration does not toll the time to file an appeal from a non-final order.Agere Systems, Inc. v. All American Crating, Inc., 931 So.2d 244 (Fla. 5th DCA 2006). Conversely, a properly filed motion for rehearing will toll the time to file an appeal. Remington v. Remington, 705 So.2d 920, 922 (Fla. 4th DCA 1997); But see E-Z Marine Supply, Inc. v. Wachovia Commercial Mortgage, Inc., 875 So.2d 279 (Fla. 4th DCA 2004 (improperly filed motion for rehearing will not toll time to file appeal).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Collateral Source Rule – Prohibiting an Injured Plaintiff from having Its Cake and Eating It too

Posted by David Adelstein on August 27, 2017
Trial Perspectives / Comments Off on Collateral Source Rule – Prohibiting an Injured Plaintiff from having Its Cake and Eating It too

The collateral source rule is the source of unnecessary confusion. This rule is aimed at preventing an injured-plaintiff from having its cake and eating it too – from receiving a windfall from the defendant-tortfeasor based on compensation the plaintiff received from collateral sources.

The collateral source rule allows an injured plaintiff to present all of its damages to the trier of fact (jury) irrespective of payment the injured party received from a collateral source (e.g., insurance, social security, etc.).  Evidence of payments the injured plaintiff received from a collateral source is inadmissible at trial due to the confusion that could result from the introduction of such evidence. However, the court must later reduce the amount of awarded damages by the amount the injured plaintiff received from collateral sources. The point is to prevent the injured-plaintiff from receiving a windfall.

The collateral source rule is embodied in Florida Statute s. 768.76.  Check out this link for this statute in detail, a relevant portion which is identified below.  “This section abrogated the common law rule prohibiting reduction of damages from collateral source payments in an effort to ‘reduce insurance costs and prevent plaintiffs from receiving windfalls.’” Rasinski v. McCoy, 42 Fla.L.Weekly D1711a (Fla. 5th DCA 2017) citing Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247, 1249 (Fla. 2015).

 

Florida Statute s. 768.76

(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.

(2) For purposes of this section:

(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:

1. The United States Social Security Act,except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.

3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.

4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Caveat Emptor = Buyer Beware = Watch Out!

Posted by David Adelstein on August 18, 2017
Trial Perspectives / Comments Off on Caveat Emptor = Buyer Beware = Watch Out!

Caveat Emptor.  Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the property.

In Transcapital Bank v. Shadowbrook at Vero, LLC, 42 Fla.L.Weekly D1657b (Fla. 4th DCA 2017), a bulk buyer purchased 123 out of 164 condominium units for approximately $11 Million.   The buyer, thereafter, sued the seller / lender for fraud, among other counts, claiming it was misled about the value of the property and, particularly, each of the condominium units.

Post-trial, the seller / lender appealed claiming the trial court erred in denying its motion for directed verdict at trial. The appellate court agreed that the trial court erred. Why?

The doctrine of caveat emptor applied to this commercial transaction where the buyer purchased 123 condominium units. “This doctrine places the duty to examine and judge the value and condition of the [commercial] property solely on the buyer and protects the seller from liability for any defects.” Transcapital Bank, supra, quoting Turnberry Court Corp. v. Bellini, 962 So.2d 1006, 1007 (Fla. 3d DCA 2007).

There are three exceptions to the applicability of caveat emptor: 1) where the buyer has been prevented from making an independent inquiry regarding the property due to a trick from the buyer; 2) where the buyer does not have equal opportunity to become apprised of a material fact; and 3) where the seller discloses some facts but not the whole truth regarding those facts. Transcapital Bank, supra citing Turnberry Court Corp. v. Bellini, 962 So.2d 1006, 1007 (Fla. 3d DCA 2007).   None of the exceptions, however, applied to this transaction. “Even if any of the defendants [seller / lender] had misrepresented the property’s appraised value, such a misrepresentation would not be actionable under the doctrine of caveat emptor in the absence of evidence that the defendants resorted ‘to some fraudulent means in preventing a prospective purchaser from making an examination of the property under consideration.’Transcapital Bank, supra, citing Farnham v. Blount, 11 So.2d 785, 790 (Fla. 1942).

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Writ of Certiorari to Remedy Pre-Trial Discovery Order

Posted by David Adelstein on August 12, 2017
Discovery, Standard of Review / Comments Off on Writ of Certiorari to Remedy Pre-Trial Discovery Order

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm.   In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal:

A party seeking review of a pretrial discovery order must show that the trial court’s order departed from the essential requirements of law and caused material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.  Generally, certiorari is not available to review orders denying discovery because in most cases the harm can be corrected on appeal. But certiorari relief may be appropriate when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim.  The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.

Westerbeke Corp. v. Atherton, 42 Fla.L.Weekly D1741c (Fla. 2d DCA 2017) (internal quotations and citations omitted).

In this recent opinion (discussed in more detail here), the trial court in a product liability case denied a defendant’s right to perform destructive testing of a boat’s gas generator that caused an explosion. The defendant claimed the destructive testing was necessary to determine the cause of the explosion and prepare a defense. In other words, the harm imposed on the defendant could not be corrected on a final appeal since the harm prevented it from generating a sufficient defense. Here, the Second District granted the writ of certiorari because the trial court applied the wrong legal standard in denying the defendant’s request to perform destructive testing. The take-away is the Second District’s explanation as to when certiorari relief is appropriate to remedy a pre-trial discovery order.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Florida Statutory Cause of Action for Misleading Advertisement

Posted by David Adelstein on August 06, 2017
Trial Perspectives / Comments Off on Florida Statutory Cause of Action for Misleading Advertisement

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential claim for punitive damages.  This is probably a less known statutory cause of action, but it is a particularized statutory fraud claim that is available.

Additionally, the statute maintains that, “There shall be a rebuttable presumption that the person named in or obtaining the benefits of any misleading advertisement or any such sale [i.e, party making misleading advertisement] is responsible for such misleading advertisement or unlawful sale.”  Florida Statute s. 817.41(4).  This is favorable language for a party asserting a claim.

Florida Statute s. 817.40(5) defines misleading advertising as follows:

(5) The phrase “misleading advertising” includes any statements made, or disseminated, in oral, written, electronic, or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services.

Importantly, the misleading advertising MUST be made “with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services.” Fla.Stat. s. 817.40(5); Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 496 (Fla. 5th DCA 2001). Since a civil cause of action for misleading advertising is a specialized type of fraud claim, the person asserting the claim MUST allege and support other elements of fraudulent inducement. See Third Party Verification, Inc. v. Signaturelink, Inc., 492 F.Supp.2d 1314, 1322 (M.D.Fla. 2007) (explaining that party asserting misleading advertising claim must also allege: “(a) the representor made a misrepresentation of a material fact; (b) the representor knew or should have known of the falsity of the statement; (c) the representor intended that the representation would induce another to rely and act on it; and (d) the plaintiff suffered injury in justifiable reliance on the representation.”).  

Conversely, if the misleading advertising claim is made by a competitor, then reliance element–that the party asserting the claim relied on the misrepresentation–does not have to be alleged and proven. See id.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Not All Non-Final Orders are Immediately Appealable

Posted by David Adelstein on July 30, 2017
Appeal / Comments Off on Not All Non-Final Orders are Immediately Appealable

Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you receive a non-final order that you believe impacts rights and decisions moving forward, make sure to review Florida Rule of Appellate Procedure 9.130 regarding those immediately appealable non-final orders.

 

In a recent insurance coverage dispute (discussed here), the trial court declared that the insurer had a duty to defend its insured in a personal injury lawsuit.   This declaration was issued in response to a motion for summary judgment. But, the order granting the summary judgment was a non-final order. The trial court did not enter a judgment against the insurer and did not declare the insurer was obligated to indemnify its insurer. Instead, the trial court simply declared that the insurer had an obligation to defend its insured in the lawsuit based on the underlying allegations in the lawsuit. The insurer did not like this declaration from the trial court and appealed.

 

The Third District dismissed the appeal holding that the trial court’s order was not an appealable non-final order.   Just because the trial court issued an order granting an insured’s summary judgment does not in of itself make that an appealable final order. If there are no words of finality concluding the dispute, the order granting summary judgment is simply a non-final order.   In this case, all the trial court declared was that the insurer had a duty to defend – but there was no declaration regarding the duty to indemnify or regarding potential damages.  Hence, the appellate court did not have jurisdiction to entertain the immediate appeal of the non-final order.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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