Monday, May 25, 2009

Another Decision Based Upon Lack of Finality of Order Under Review

In City of Marco Island v. Dumas (2D09-532), the Second DCA reviewed a decision of the county court, which was first reviewed by the circuit court.

The county court entered an order that the city correctly did not believe final (even though the county court judge believed it to be final). Therefore, the City moved and the county court judge entered a second order. The City timely appealed the second order. The appellee moved to dismiss the appeal and argued the first order was the appealable order. The circuit court agreed and dismissed the appeal. The circuit court believed it was a final order that "left no judicial labor to be done "except the execution of the judgment."

It relied on McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992), and Rollins Fruit Co., Inc. v. Wilson, 923 So. 2d 516 (Fla. 2d DCA 2005). In McGurn, the trial court entered an order entitled "final judgment" that reserved the right to award prejudgment interest. As the court stated: "Therefore, the issue before this Court is whether a trial court may issue a final appealable order while reserving jurisdiction to award prejudgment interest." 596 So. 2d at 1043. The court then explained: "It is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment." Id. Obviously, what the circuit court overlooked in this case is the fact that the October order did not expressly adjudicate the merits of the enforcement proceeding or dispose of the action; it merely entered a legal ruling as to an issue in the case. It is comparable to the order granting a motion to dismiss that this court held to be nonfinal in Rollins Fruit, 923 So. 2d 516, which is the other case that the circuit court cited in support of its order of dismissal. It is also comparable to an order granting summary judgment, which is not appealable. See Cardiothoracic & Vascular Surgery, P.A. v. W. Fla. Reg'l, 993 So. 2d 1060 (Fla. 1st DCA 2008). The order entered in October was a nonfinal, nonappealable order. The City properly requested the county court to enter a final appealable order based on the reasoning of that order and it has filed a timely appeal from that order. Petition for writ of mandamus granted with instructions to reinstate appeal from county court.


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