appeal of non-final order

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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The Burden to Establish Petitions for Writs of Certiorari (“Cert”)

Posted by David Adelstein on December 25, 2014
Appeal, Standard of Review / Comments Off on The Burden to Establish Petitions for Writs of Certiorari (“Cert”)

Petitions for Writs of Certiorari

What is a petition for a writ of certiorari (or “cert,” for short)? A petition for a writ of cert is when a petitioner wants to appeal a non-final order (e.g., an interlocutory order that does not finally dispose of the dispute such as a final adverse judgment against the petitioner) issued by the trial court when there is no direct right to appeal that non-final order.

In order for an appellate court to entertain a petition for a writ of cert, the petitioner MUST establish that (a) the trial court departed from the essential requirements of the law and (b) this departure caused irreparable injury to the petitioner that cannot be remedied by a later appeal from a final judgment against the petitioner.   See Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000). This is a challenging burden or appellate standard of review for a petitioner to overcome which is why many petitions for writs of cert are denied by appellate courts. Indeed, the Florida Supreme Court explained:

“[C]ertiorari is an extraordinary remedy that should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders. For an appellate court to review a nonfinal order by petition for certiorari, the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.”

Belair, So.2d at 1166 (internal quotations and citations omitted).

For example, let’s say you were sued by another party (referred to as the plaintiff). Instead of answering the lawsuit (referred to as a complaint), you elect to move to dismiss a portion of the complaint or the entire complaint. The trial court denies the motion to dismiss meaning the plaintiff can still pursue these claims against you. This order denying the motion to dismiss is considered a non-final or interlocutory order without a direct or immediate right to appeal. Thus, in order to appeal, your basis (as a petitioner) is through a petition for a writ of cert where you need to establish that (a) the trial court departed from essential requirements of the law in denying the motion to dismiss and (it is a BIG and) that you are caused irreparable injury that cannot be remedied by a later appeal of a final judgment against you. See, e.g., Florida Fish and Wildlife Comm’n v. Pringle, 770 So.2d 696 (Fla. 1st DCA 2000) (denying petition for writ of cert of order denying motion to dismiss); Saddlebrook Resorts, Inc. v. Seminole Electric Supply Co., 426 So.2d 1310 (Fla. 2d DCA 1983) (denying petition for writ of cert of order denying motion to dismiss portion of complaint).

 

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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