MARIA C. ROTHERMEL, APPELLANT,
v.
BXL ASSOCIATES, FREDERICK M. NERLINGER, DELORES R. NERLINGER AND BEXHILL, LTD., APPELLEES
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Maria C. Rothermel appealed partial summary judgments totaling over $4.2 million for misappropriation of funds. The appellees filed a motion for remand acknowledging error, and the court treated this as a confession of error, reversing the judgments and remanding to strike language that improperly made the interlocutory orders appear final.
The court reversed the partial summary judgments and remanded with directions to strike the phrase 'for which sum let execution issue forthwith,' rendering them interlocutory orders rather than final appealable orders. Merits arguments may be raised on future appeal when a final appealable order is entered.
[1] A partial summary judgment containing language of finality, such as 'for which sum let execution issue forthwith,' is appealable even if other counts remain pending in th…
[2] A motion for remand filed by a party seeking to remove language of finality from a partial summary judgment can be treated as a confession of error.
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The improper language of finality that was included in the partial summary judgments and made them appear final when they were not.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued defendants Rothermel and others for misappropriation of funds based on multiple contract and tort claims. The trial court entered two …
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*665 On Motion for Remand
This matter is before us on a motion for remand filed by plaintiffs-appellees BXL Associates, Frederick M. Nerlinger, Delores R. Nerlinger and Bexhill, Ltd. We treat the motion for remand as a confession of error.
Plaintiffs sued defendant-appellants Maria Cecilia Rothermel, and Rolf H. Rother-mel.1 The amended complaint asserted multiple counts in contract and tort which allege, in substance, misappropriation of funds. On May 29, 2008, the trial court entered a partial summary judgment against Maria C. Rothermel for $1,484,735, which represented a treble damage award for count 6, civil remedies for criminal practices.2 The partial summary judgment included the words of finality, “for which sum let execution issue forthwith.” On February 4, 2009, the trial court entered another treble damage partial summary judgment against Ms. Rothermel for $2,745,000. This partial summary judgment also contained the phrase, “for which sum let execution issue forthwith.” The trial court retained jurisdiction over the remaining counts against Ms. Rothermel, which are factually interwoven with count six.
Ms. Rothermel appealed both partial summary judgments and the appeals have been consolidated. The plaintiffs moved to dismiss the appeal, arguing that as a matter of law, a partial summary judgment is not appealable where, as here, the counts remaining in the trial court are interwoven with the count on which partial summary judgment was entered. This court denied the motion with respect to Maria C. Roth-ermel because the partial summary judgments contained the words of finality “for which sum let execution issue forthwith.” See McGurn v. Scott, 596 So.2d 1042, 1045 (Fla.1992); Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315, 319 (Fla. 3d DCA 1987).3
Plaintiffs’ counsel then filed a motion for remand, requesting that this court return this matter to the trial court so that the partial summary judgments could be “modified by the trial court to remove the unnecessary ‘for which sum let execution issue forthwith’ language.” The plaintiffs acknowledge that the partial summary judgments did not fully adjudicate any of the causes of action against Maria C. Roth-ermel.
We treat the motion for remand as a confession of error. The plaintiffs acknowledge that the phrase “for which sum let execution issue forthwith” should not have been included in the partial summary judgments.
We therefore reverse the partial summary judgments now before us and remand with directions to the trial court to strike the phrase “for which sum let execution issue forthwith.” With that modification, the partial summary judgments have the status of an interlocutory order granting summary judgments. We do not reach the merits of any of Ms. Rothermel’s arguments raised in this appeal. Those arguments may be raised on appeal at such *666time as an appealable order is entered in the future.
Reversed and remanded for further proceedings consistent herewith.
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Investacorp, Inc. v. Evans, 88 So. 3d 248 (Fla. 3d DCA 2011)
Authorities Cited
- McGURN v. Scott, 596 So. 2d 1042 (Fla. 1992)
- del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987)
- Northcutt v. Pathway Fin., 555 So. 2d 368 (Fla. 3d DCA 1989)