NEVILLE A. CHAN, HILDA CHAN, LOREN WILSON AND NADINE WILSON, APPELLANTS,
v.
BRUNSWICK CORPORATION, A DELAWARE CORPORATION, APPELLEE
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The court dismissed an appeal as untimely, holding that a summary judgment was final and appealable even without the phrase 'for which let execution issue,' and that a motion to amend filed 31 days after judgment did not toll the appeal deadline because it was filed outside the 10-day window required by the Florida Rules of Civil Procedure.
The court held that the summary judgment was final and appealable even without the execution phrase, as that phrase is not an essential ingredient of finality under Florida law. The motion to amend did not toll the appeal deadline because it was filed 31 days after judgment entry, outside the 10-day requirement for motions under Florida Rule 1.530.
[1] A summary judgment is final and appealable when all judicial labor required or permitted has been accomplished, and nothing further remains to be done except enforcement…
[2] The phrase "for which let execution issue" is not an essential ingredient for a judgment to be considered final and appealable.
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Join FLexlaw to unlock all legal intelligence“Where nothing further remains to be done to fully effectuate termination of the cause between the parties directly affected except enforcement by execution or otherwise, the judgment may be said to be final.”
Establishes the test for finality of a judgment, which does not require the execution phrase
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Join FLexlaw to unlock all legal intelligenceOn April 18, 1980, the trial court entered a summary judgment in favor of Brunswick Corporation against several defendants, including the Chans and Wi…
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HERSEY, Judge.
We have for consideration appellee’s motion to dismiss this appeal as untimely. At issue is whether a summary judgment was final and appealable. The reason for doubt becomes evident upon review of the sequence of events in the trial court.
On April 18,1980, the summary judgment was entered. The words “for which let execution issue” do not appear in that summary judgment.
On May 19, 1980, appellee moved for amendment to include that phrase.
On June 5, 1980, an amended summary judgment including the phrase “for which let execution issue” was entered nunc pro tunc.
Appellant’s notice of appeal was filed on June 17, 1980.
Making the amendment “nunc pro tunc” has no significant effect on the timeliness issue. Stupp v. Cone Brothers Contracting Company, 135 So. 2d 457 (Fla. 2d DCA 1961). However the appeal is timely only if the summary judgment was not final until the addition of the traditional authorization for execution or, assuming it was final, if the motion to amend tolled the time for taking an appeal.
The pronouncement of a court may be characterized as final and appealable if the judicial labor required or permitted to be done has been accomplished. Slatcoff v. Dezen, 72 So. 2d 800 (Fla.1954). Where nothing further remains to be done to fully effectuate termination of the cause between the parties directly affected except enforcement by execution or otherwise, the judgment may be said to be final. Hotel Roosevelt Co. v. City of Jacksonville, 192 So. 2d 334 (Fla. 1st DCA 1966); Hensley v. Palmer, 59 So. 2d 851 (Fla.1952). More specifically, where successive judgments are entered and the later judgment represents neither a material change of the earlier judgment nor a new exercise of discretion, the time for appeal is counted from the earlier judgment. Drummond v. Gerwe, 264 So. 2d 474 (Fla. 4th DCA 1972).
The summary judgment on appeal here provides in pertinent part:
1. There is no material issue of fact in dispute with respect to the Defendants, CONCORDE YACHTS, INC., DANIEL A. MURPHY, GERALDINE MURPHY, NEVILLE A. CHAN, HILDA CHAN, LOREN WILSON, NADINE WILSON or FRANCES BURGER and the Plaintiff is entitled to a Summary Judgment as a matter of law.
2. Plaintiff’s Motion for Summary Judgment is granted and a Summary Judgment be, and the same is hereby entered in favor of the Plaintiff and against the Defendants, CONCORDE YACHTS, INC., DANIEL A. MURPHY, GERALDINE MURPHY, NEVILLE A. CHAN, HILDA CHAN, LOREN WILSON, NADINE WILSON and FRANCES BURGER. 6. The Plaintiff shall have and recover from Defendants, CONCORDE YACHTS, INC., DANIEL A. MURPHY, GERALDINE MURPHY, NEVILLE A. CHAN, HILDA CHAN, LOREN WILSON, NADINE WILSON and FRANCES BURGER the sum of $397,254.23, jointly and severely [sic], together with costs of this action and a reasonable fee for the Plaintiff’s attorneys.
It meets the tests for finality unless the phrase “for which let execution issue” is an essential ingredient of finality. We hold that it is not. No case has been brought to our attention treating this issue. However, we find no requirement in the Florida Statutes that execution be specifically referred to in a final judgment. (Chapters 55 and 56, Florida Statutes 1979). Accordingly we decline to engraft such a requirement into the law of judgments and executions.
We next consider whether the motion to amend tolled the time for taking an appeal from the final judgment. Motions which do alter the time for taking an appeal are enumerated in Rule 9.020(g) of the Florida Rules of Appellate Procedure. A motion to alter or amend a judgment under Rule 1.530 of the Florida Rules of Civil Procedure is such a motion; however, it must be filed within ten days after entry of the judgment. The motion to amend here was filed thirty-one days after entry of the summary judgment and therefore was not “an authorized and timely motion,” under Rule 9.020(g), Florida Rules of Appellate Procedure.
For the foregoing reasons and because the notice of appeal was filed more than thirty days after rendition of the final judgment, appellee’s motion to dismiss is granted and this appeal shall stand dismissed.
GLICKSTEIN and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Caufield v. Gino Cantele, 837 So. 2d 371 (Fla. 2002)…final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary. See Joannou v. Corsini, 543 So. 2d 308 (Fla. 4th DCA 1989); Chan v. Brunswick Corp., 388 So. 2d 274 (Fla. 4th DCA 1980). Courts that have held that orders merely determining costs, especially when entered after a voluntary dismissal, are nonfinal and nonappealable have done so for three reasons. See Sholkoff, 693 So. 2d at 1115; Craft, 162 So. 2d…
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Pruitt v. Brock, 437 So. 2d 768 (Fla. 1st DCA 1983)…her remains to be done by the court to fully effectuate a termination of the cause as between the parties directly affected. [*774] Hotel Roosevelt Co. v. City of Jacksonville, 192 So. 2d 334, 338 (Fla. 1st DCA 1966). Accord Chan v. Brunswick Corp., 388 So. 2d 274, 275 (Fla. 4th DCA 1980) (order final when all judicial labor required or permitted is complete). The end of all required or permitted judicial labor at the trial level is obviously not reached until that court loses jurisdiction over the matter th…
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GEICO Fin. Servs., Inc. v. Kramer, 575 So. 2d 1345 (Fla. 4th DCA 1991)…rties directly affected except enforcement by execution or otherwise. Joannou v. Corsini, 543 So. 2d 308, 310 (Fla. 4th DCA 1989). The language “for which let execution issue” is not essential to the finality of a judgment. Chan v. Brunswick Corp., 388 So. 2d 274, 275 (Fla. 4th DCA 1980); City of Haines City v. Allen, 549 So. 2d 678 (Fla. 2d DCA 1989). A self-executing final judgment in an action wherein no further judicial labor is required or contemplated ends the litigation between the parties. It is trul…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Slatcoff v. Dezen, 72 So. 2d 800 (Fla. 1954)
- Hotel Roosevelt Co., Inc. v. City OF Jacksonville, 192 So. 2d 334 (Fla. 1st DCA 1966)
- Hensley v. Palmer, 59 So.2d 851 (Fla. 1952)
- Stupp v. Cone Bros. Contracting Co., 135 So. 2d 457 (Fla. 2d DCA 1961)
- Beryl Drummond & Nationwide Mut. Ins. Co. v. Gerwe, 264 So. 2d 474 (Fla. 4th DCA 1972)