MERCY HOSPITAL, INC., APPELLANT,
v.
ALFREDO MARTI, M.D., APPELLEE
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Mercy Hospital sought contribution from Dr. Marti in a third-party complaint after Marti won summary judgment. The appellate court dismissed the appeal, holding that a defendant may only appeal an exonerating judgment of a co-defendant after judgment has been entered against the defendant itself, and since Mercy's own liability had not yet been established, no present controversy existed for appellate review.
A defendant's right to appeal from a judgment exonerating a co-defendant can be exercised only by a defendant against whom judgment has been entered. Since Mercy's liability to the plaintiffs had not yet been established, its asserted right of contribution against Marti was premature and there was no present justiciable controversy for appellate review.
[1] A defendant may not appeal a summary judgment entered in favor of a co-defendant unless a judgment has been entered against the appealing defendant.
[2] The right to appeal a judgment exonerating a co-defendant applies regardless of whether the co-defendant was brought into the action by the plaintiff or by another defend…
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Join FLexlaw to unlock all legal intelligence“the right of a defendant to appeal from a judgment exonerating a co-defendant...can be exercised only by a defendant against whom judgment has been entered”
Establishes the strict requirement that the defendant appealing must itself have been adjudged liable before it can appeal an exonerating judgment of a co-defendant.
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Join FLexlaw to unlock all legal intelligenceMercy Hospital was named as a defendant in a wrongful death action. Mercy filed a third-party complaint against Dr. Alfredo Marti seeking both contrib…
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DANIEL S. PEARSON, Judge.
Mercy Hospital, Inc., a defendant in a wrongful death action, filed a third-party complaint against Dr. Alfredo Marti seeking contribution.1 Marti moved for summary judgment asserting, inter alia, that he never agreed to undertake, nor undertook, the care and treatment of the plaintiffs’ decedent and therefore could not be a joint tortfeasor. The trial court entered summary judgment in favor of Marti, and Mercy appealed.
We determine, sua sponte, that the judgment under review is non-appeala-ble, and we dismiss Mercy’s appeal. We recently held in Belcher v. First National Bank of Miami, 405 So. 2d 754 (Fla.3d DCA 1981), that the right of a defendant to appeal from a judgment exonerating a co-defendant, first accorded by Christiani v. Popovich, 363 So. 2d 2 (Fla. 1st DCA 1978), aff’d sub nom. Pensacola Interstate Fair, Inc. v. Popovich, 389 So. 2d 1179 (Fla.1980), can be exercised only by a defendant against whom judgment has been entered. This rule applies whether, as in Belcher, the exonerated co-defendant was brought into the action by the plaintiff, or, as here, brought into the action by another defendant. Mercy’s liability to the plaintiffs has not yet been established, and since it may never be, its asserted right of contribution against Marti can only be academic at this stage. That being the ease, there is no present controversy for us to resolve.2
Appeal dismissed.
. Mercy also sought indemnity from Marti. The trial court, in a separate unappealed order, granted summary judgment in favor of Marti on the indemnity claim.
. Nor does the summary judgment in Marti’s favor determine an issue of liability in favor of the party seeking affirmative relief (Mercy) so as to make it an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). See Aetna Casualty & Surety Co. v. Meyer, 385 So. 2d 10 (Fla.3d DCA 1980).
BASKIN, Judge
(concurring).
I join in the majority opinion only because in Belcher v. First National Bank of Miami, 405 So. 2d 754 (Fla.3d DCA 1981) footnote 4, the court read Christiani v. Popovich, 363 So. 2d 2 (Fla. 1st DCA 1978), aff’d sub nom. Pensacola Interstate Fair, Inc. v. Popovich, 389 So. 2d 1179 (Fla.1980), to permit appeal at a later time.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Nadio & Livio Christiani & Reserve Ins. Co. v. Popovich, 363 So. 2d 2 (Fla. 1st DCA 1978)
- Pensacola Interstate Fair, Inc. v. Popovich, 389 So. 2d 1179 (Fla. 1980)
- AETNA Cas. & Sur. Co. & Morton Ins. Agency, Inc. v. Meyer, 385 So. 2d 10 (Fla. 3d DCA 1980)
- Belcher v. First Nat'l Bank OF Miami, 405 So. 2d 754 (Fla. 3d DCA 1981)