BRAVO ELECTRIC CO., INC., APPELLANT,
v.
CARTER ELECTRIC CO., ETC., ET AL., APPELLEES

Fla. 5th DCA | 1988-03-17
No. 87-667
COBB and COWART, JJ., concur., ORFINGER, J., dissents with opinion.
522 So. 2d 480 Florida District Court of Appeal, Fifth District (1988) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Bravo Electric appealed an order granting Carter Electric's motion for partial summary judgment on liability. The court held that a mere order granting a motion for partial summary judgment is an interlocutory, nonappealable order that does not adjudicate the issue of liability, and remanded for entry of a proper appealable judgment.


Holding

The order granting the motion for partial summary judgment is a nonfinal, nonappealable interlocutory order because it neither adjudicates the issue of liability within the meaning of Rule 9.130(a)(3)(C)(iv) nor settles questions conclusively. A trial judge may change any interlocutory ruling before entering final judgment, so the order is not sufficiently final to support appellate review.


Headnotes

[1] An order merely granting a motion for partial summary judgment on liability is not a final, appealable order.

[2] Trial courts retain the authority to change interlocutory rulings at any time before entering a final judgment.

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Key Quotes

“an interlocutory trial court order merely granting or denying a motion neither adjudicates or judicially settles questions or issues of fact or law. Certainly it determines nothing conclusively or authoritatively. At best, it indicates which way the trial judge is thinking and, unless he changes his mind, which way he will rule when the subject matter of the motion is judicially determined.”

Establishes the fundamental principle that an order granting a motion is not a final adjudication and is therefore interlocutory and nonappealable.

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Facts & Procedural History

Carter Electric filed a motion for partial summary judgment on the issue of liability only, which the trial court granted. Bravo Electric then appeale…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Bravo Electric Company, Inc., seeks review of an order which states:

[T]he MOTION OF CARTER ELECTRIC FOR PARTIAL SUMMARY JUDGMENT, filed by the plaintiff as to liability only is hereby granted.

Sua sponte, this court, citing Danford v. City of Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980), ordered the appellant to show cause why this appeal should not be dismissed because it appeared that the order appealed from was a nonfinal, nonap-pealable order. In Servotech, Inc. v. Atlantic Central Corporation, 497 So. 2d 1341 (Fla. 5th DCA 1986), the trial judge granted the plaintiffs motion for partial summary judgment on the issue of liability. On appeal this court noted that no partial summary judgment was ever entered, and that the order merely granting the plaintiffs motion was itself not subject to appeal. This court also stated:

Our affirmance does not preclude defendant from obtaining review of a partial summary judgment on the issue of liability in favor of the plaintiff (Fla.R. App.P. 9.130(a)(3)(C)(iv)) (as distinguished from a mere order granting a motion for a partial summary judgment, as was entered in this case) or from a final judgment in the cause (Fla.R.App.P. 9.030(b)(1)(A)).

Id. at 1343, n. 2.

As a particular legal matter, an interlocutory trial court order merely granting or denying a motion neither adjudicates or judicially settles questions or issues of fact or law. Certainly it determines nothing conclusively or authoritatively. At best, it indicates which way the trial judge is thinking and, unless he changes his mind, which way he will rule when the subject matter of the motion is judicially determined. Traditionally it has been held that trial judges have the right and authority, at any time before entering a final judgment, to change their minds and to change any prior interlocutory ruling.1

The appealed order in this case is nonfi-nal and does not adjudicate the issue of liability within the meaning of Rule 9.130(a)(3)(C)(iv);2 therefore, this cause is remanded to the trial court for 30 days for entry of an appealable order. See Lawler v. Harris, 418 So. 2d 1239 (Fla. 5th DCA 1982).

REMANDED.

COBB and COWART, JJ., concur. ORFINGER, J., dissents with opinion.

. Alabama Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924); Holman v. Ford Motor Co., 239 So. 2d 40 (Fla. 1st DCA 1970).

. The dissent's contention that the 1977 revision of the appellate rules in regard to Rule 9.130(a)(3)(C)(iv), formerly Rule 4.2, would be meaningless unless construed to eliminate the need for a judgment to support an interlocutory appeal is unpersuasive. The purpose of the revision was to eliminate summary defense judgments from the category of interlocutory appeals, since they would be subject to plenary appeal as final judgments. The revision was intended to restrict, not expand, the appealability of "nonfinal judgments." Travelers Insurance Company v. Bruns, 443 So. 2d 959, 961 (Fla.1984) (emphasis added).

Dissent
ORFINGER, Judge,

ORFINGER, Judge,

dissenting.

If the order appealed from were a non-appealable order, I would agree with a remand for the entry of an appealable order per Lawler v. Harris, 418 So. 2d 1239 (Fla. 5th DCA 1982), even though to do so elevates form over substance and causes a complete waste of judicial labor. However, in my opinion the order involved here is appealable, so I see no need for a remand.

The action here is one for indemnity. Appellant was the defendant below. The plaintiff moved the court “to enter partial summary judgment ... on the issue of the legal liability of defendant ...” The order appealed from says:

* * * * *

... it is ORDERED AND ADJUDGED that the MOTION OF CARTER ELECTRIC FOR PARTIAL SUMMARY JUDGMENT, filed by the plaintiff as to liability only is hereby granted.

At first blush, it appears that the order suffers from the same infirmity as that found in Danford v. City of Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980) because it lacks finality, but closer study indicates that such is not the case. Danford did not involve the same procedural problem we find here. In Danford, the plaintiff appealed from an order granting the defendants’ motion for summary judgment, no final summary judgment having been entered. This court remanded the case to the trial court for entry of a final appealable judgment. We could not consider the order under Florida Rule of Appellate Procedure 9.130 because it did not fit any of the categories of non-final orders which are appealable under that rule.

This case, however, is different. The order in question here is admittedly non-final, and is being appealed under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), which permits the review of non-final orders which “determine ... the issue of liability in favor of a party seeking affirmative relief.” Thus, Dan-ford does not apply here. Neither, in my opinion, is Servotech, Inc. v. Atlantic Central Corporation, 497 So. 2d 1341 (Fla. 5th DCA 1986) apposite here. In Servotech, it was held that Florida Rule of Civil Procedure 1.540 did not apply to non-final orders.

Thus, even had there been a partial summary judgment in that case (as opposed to an order granting the partial summary judgment) the result would have been the same. What we said in that case about the non-ap-pealability of an order granting a motion for summary judgment was pure dictum, and I am now convinced that the dictum was incorrect.

The reference to Danford in our order to show cause suggests the thought that a summary judgment must actually be entered to support the appeal of this non-final order, but there is nothing in the rule to suggest that result. Prior to 1977, the appellate rules provided that interlocutory appeals could be taken “from orders granting partial summary judgment on liability in civil actions ...” Rule 4.2, Fla.App. Rules. In the 1977 revision of the rules, that provision was changed to provide for review of non-final orders which “determine ... the issue of liability in favor of a party seeking affirmative relief.” Fla.R. App.P. 9.130(a)(3)(C)(iv).

Unless it can be said that the supreme court performed a meaningless act when it amended the rules, it would appear that the entry of a partial summary judgment is no longer required.1 There can be no doubt that the order appealed from here intended to rule in favor of plaintiff on the issue of liability, as requested. The issue of liability was no longer open after the entry of this order unless or until the trial court entered a contrary order. Adding words like “and partial summary judgment on liability is hereby entered in favor of plaintiff” would have added nothing to the import of the ruling. Even with the addition of these “magic words” the order would still be non-final, and would be subject to a change of mind of the trial court as is any other non-final or interlocutory order. See Holman v. Ford Motor Company, 239 So. 2d 40 (Fla. 1st DCA 1970).

The order in question here “determines ... the issue of liability ...” in favor of the plaintiff. Liability is determined here just as surely as it is when the court enters an order denying a motion to set aside a default. Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla.1982).

In Doctor’8 Hospital, the supreme court held that the word “determine” means “to fix conclusively or authoritatively,” “to settle a question or controversy about,” and to “decide by judicial sentence.” Id. at 191.

An order granting the plaintiffs motion for entry of a summary judgment on the issue of liability decides that the defendant is liable, thus settling the question of liability in that case as conclusively as can be done by any non-final order. I would discharge the rule to show cause and retain jurisdiction of the appeal.

. The comment by the majority in footnote 2 is equally unpersuasive. Had the supreme court intended to continue to require the entry of partial judgments when it restricted the appeala-bility of these orders it could just as easily have amended the earlier rule to provide that interlocutory appeals could be taken "from orders granting partial summary judgment on liability in favor of a party seeking affirmative relief.” That the court chose not to include the word "judgment" in the revision, clearly indicates to me that it did not intend to require one as a condition to seeking appellate review.


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Citator

Cited By

  • Mills v. Martinez, 909 So. 2d 340 (Fla. 5th DCA 2005)
    …ion does not resolve the issue conclusively. It has long been established that a trial judge has the right and authority, at any time before entering final judgment, to change prior interlocutory rulings. Bravo Elec. Co., Inc., v. Carter Elec., Co., 522 So. 2d 480, 480-81 (Fla. 5th DCA 1988). We are not dissuaded from this view by the fact that the order determining Mills’s entitlement to attorney’s fees was included in the final judgment on damages. At least in regard to attorney’s fees, the order was non-fi…
  • State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991)
    …ent might be drafted in such form as to determine the issue of liability in favor of a party seeking affirmative relief and be appealable as a non-final order under Rule 9.130(a)(3)(C)(iv), see, e.g., Bravo Electric Co., Inc. v. Carter Electric Co., 522 So. 2d 480 (Fla. 5th DCA 1988). . Note carefully that while a final order requires the completion of the judicial labor in the cause, which is not accomplished by the mere dismissal of a complaint in a civil action, Rule 9.140(c)(1)(A) allows the State to app…
  • Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 556 So. 2d 1122 (Fla. 3d DCA 1989)
    …wer tribunals” (emphasis added) which otherwise meet the criteria specified in the rule, the order is reviewable whether or not it takes the form of a “judgment.” In that respect I agree with the dissent in Bravo Electric Co. v. Carter Electric Co., 522 So. 2d 480, 481 (Fla. 5th DCA 1988), see generally H. Trawick, Trawick’s Florida Practice & Procedure § 25-8, at 358 (1988), and would adopt that analysis. The decisions in Logozzo v. Kent Insurance Co., 464 So. 2d 605 (Fla. 3d DCA 1985), and Kessler v. Gumeni…

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