The uncertain future of rule 9.130(a)(3)(C)(iv).

For the present at least, jury verdicts finding liability in bifurcated trials are immediately appealable as "nonfinal orders" under Fla. R. App. P. 9.130(a)(3)(C)(iv). Although the Rules of Civil Procedure do not appear to permit post-trial motions to be directed to such verdicts and the Rules of Appellate Procedure do not provide that rendition of such verdicts can be tolled by such motions, the Supreme Court of Florida recently concluded that post-trial motions can be directed to such verdicts and that the motions will toll their rendition. Meyers v. Metropolitan Dade County, 24 Fla. L. Weekly S135 (Fla. March 18, 1999). The court also asked the Appellate Court Rules Committee to recommend revisions to the appellate rules to incorporate these conclusions.

I have long been a proponent of repealing rule 9.130(a)(3)(C)(iv) altogether. I, therefore, proposed to the committee that it respond to the Supreme Court's request by recommending repeal of the rule in its entirety. And I argued for repeal of the rule in a submission to the committee, which I titled "Justification for Repeal of Rule 9.130(a)(3)(C)(iv)." The text of the submission follows:

Prior to 1977, Rule 4.2 permitted appeals from "orders granting partial summary judgment on liability in civil actions." In 1977, this provision was reworded to permit interlocutory appeals from nonfinal orders that determine "the issue of liability in favor of a party seeking affirmative relief." Rule 9.130 (a)(3)(C)(iv). The reason for the change in wording is not set forth in the 1977 committee notes. All that the committee notes reveal is that, generally, rule 9.130 "substantially alters current practice" and that it was designed to limit interlocutory appeals to "the most urgent interlocutory orders." It is probable that the rule was reworded to exclude summary judgment orders disposing of collateral liability issues, like orders disposing of affirmative defenses or less than all counts of a plaintiffs complaint. It is improbable that it was designed to expand the number of reviewable interlocutory orders.

In an early construction of rule 9.130(a)(3)(C)(iv), the Supreme Court read the rule very narrowly, with the following explanation: "The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment." Travelers Insurance Co. v. Bruns, 443 So. 2d 959, 961 (Fla. 1984) (holding that a summary judgment order determining that a defendant/ insurer's policy provided coverage for a co-defendant/insured was not appealable under the rule).

Even narrowly read, the rule is somewhat of an anomaly. It has no counterpart in the federal system and few, if any, counterparts in the remaining states. As a general rule, interlocutory rulings relating to resolution of the merits of the controversy are reviewable only after final judgment, when all the bits and pieces of the merits of the controversy have been resolved. Rule 9.130 is generally consistent with this philosophy. All but one of the orders listed in rule 9.130 deal with threshold defenses and interlocutory matters unrelated to resolution of the merits of the controversy; rule 9.130(a)(3)(C)(iv) is the sole exception.

The apparent justification for the exception is that an adjudication of liability on a motion for summary judgment, without a trial of the facts, is one of those "most urgent interlocutory orders" deserving of immediate review. While this proposition is debatable, summary judgments in favor of parties seeking affirmative relief are infrequent, and permitting appeals from them, therefore, does not overburden the appellate courts. And if the rule had been limited in that fashion, as its predecessor was, it would not have been particularly burdensome or problematical. Unfortunately, litigants began to use the rule for other purposes.

The issue came to a head in Dauer v. Freed, 444 So. 2d 1012 (Fla. 3d DCA 1984). In that case, the trial court bifurcated the case and tried the liability issues to a jury, which returned a verdict against the defendants. The transcript of the trial was 18,000 pages in length. The defendants invoked the rule and appealed the verdict. The district court concluded that the rule--which required that the record consist of a mere appendix and that briefs be filed within 15 days after filing the notice of appeal--neither contemplated nor permitted such an appeal. See also Peters v. Menendez, 491 So. 2d 1300 (Fla. 3d DCA 1986).

In 1990, the committee considered a proposal to codify these decisions and limit the rule to orders that determine "the issue of liability in favor of a party seeking affirmative relief, if entered prior to the commencement of trial.... "This proposal failed. Instead, primarily because of the urging of several district court judges on the committee, the committee voted to repeal the rule altogether. Before this recommendation was considered, however, the Supreme Court overruled Dauer v. Freed. In Metropolitan Dade County v. Green, 596 So. 2d 458,459 (Fla. 1992), the court concluded that jury verdicts in bifurcated trials were immediately appealable under "the plain language of the rule." Turning the reasoning of the Bruns decision on its head, the court observed that judicial resources would be wasted if interlocutory appeals of such verdicts were not allowed. Subsequently, and without explanation, the court rejected the committee's recommendation that the rule be repealed. See In re Amendments to the Florida Rules of Appellate Procedure, 609 So. 2d 516, 517 (Fla. 1992).

In Green, the court left unanswered the knotty problems of whether post--trial motions could be filed after a verdict finding liability in a bifurcated trial, whether such motions would toll rendition of the verdict, what aspects of the proceedings were reviewable in an appeal from the verdict, and the like. In 1997, at the request of several district court judges on the committee, the committee explored ways in which to reduce the workload of the appellate courts. Once again, finding no substantial justification for the anomalous rule, and in an effort to reduce the number of interlocutory appeals, the committee voted to repeal the rule. That recommendation is scheduled for submission to the Supreme Court at the end of the current cycle, in June 2000.

Recently, in Meyers v. Metropoli tan Dade County, 24 Fla. L. Weekly S135 (Fla. March 18, 1999), and apparently unaware of the committee's pending recommendation, the Supreme Court concluded that post-trial motions could be directed to jury verdicts in bifurcated proceedings, and that such motions will toll rendition of the verdict. Although this conclusion was contrary to the plain language of rule 9.020(h) (and a score of decisions holding that rendition of interlocutory orders cannot be tolled by motions directed to them), the court concluded that "the current appellate rules do not specifically address the unique issues presented by this case," and it directed the committee to "recommend appropriate revisions to the rules." The question that remains is whether the committee should adhere to its recommendation to repeal the rule altogether, which will moot the problem entirely, or whether it should undertake the drastic revisions contemplated by Meyers.

If the rule had been narrowly read and limited to summary judgment orders determining liability, it probably would have been palatable. Even in that circumstance, however, the rule is frequently used for little purpose other than to derail and delay the proceedings in the trial court, often adding up to a year to resolution of the controversy. And because such orders are cautiously granted in the first place, reversals are rare in any event. But the real difficulty with the rule is that it has not been read narrowly, and the expansive reading it has been given has rendered it highly problematical in application, confusing and difficult to square with other rules in operation, and unduly burdensome on the appellate courts.

For example, in its short existence, the rule has required the Supreme Court to resolve conflicts in and questions concerning its interpretation on at least six occasions. In addition to Bruns, Green, and Meyers, see Doctor's Hospital of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla. 1992); Sunny South Aircraft Service, Inc. v. Inversiones, 1120 C.A., 417 So. 2d 676 (Fla. 1982); Canal Insurance Co. v. Reed, 666 So. 2d 888 (Fla. 1996). And the district courts have spent an inordinate amount of time writing opinions resolving motions to dismiss directed to appeals taken from the rule, often with inconsistent results. See the numerous decisions collected in Padovano, Florida Appellate Practice, 22.9 [sections] (2d ed. 1997).

The most difficult problems created by the expansive reading of the rule arise in the context of orders determining liability during the course of a trial of the merits. For example, if a trial court were to direct a verdict on liability in favor of a plaintiff at the close of the evidence, the present construction of the rule would appear to permit an immediate interlocutory appeal of that order. If such an appeal were taken, then a motion to stay further proceedings would lie in the trial court under rule 9.130(f), and the trial court's ruling would be reviewable in the district court under rule 9.310(f)--all notwithstanding that the case is ready for submission to the jury for a determination of damages. And even if the motion to stay were denied, the trial court would still be prohibited from entering a final judgment on the subsequent jury verdict by rule 9.130(f), until the interlocutory appeal was decided with finality. What usually follows in this circumstance is a motion to relinquish jurisdiction to permit the trial court to enter a final judgment on the jury verdict, which moots the interlocutory appeal and requires a second, plenary appeal of the final judgment, and the entire exercise amounts to a vast shuffling of papers with little purpose but delay, confusion, and the waste of time and resources.

A similar scenario is presented when a trial court bifurcates the liability issues from the damage issues, but intends to try the damage issues to the same jury if the plaintiff receives a favorable verdict on liability (as all trial courts now must do in every case in which punitive damages are in issue). Upon return of a verdict favoring the plaintiff on liability, the defendant may immediately appeal, leading to the same rounds of motion practice and shuffling of papers which arise in the prior example.

And even in the situation in which interlocutory appeals are authorized by Green--a verdict on liability in a bifurcated trial where the damages are to be tried to a separate finder-of-fact in the future--the problems are enormous. At present (with the exception of Meyers), the case law uniformly holds that motions directed to interlocutory orders do not toll their rendition, and rule 9.020(h) is rather explicit on this point. The Rules of Civil Procedure are also somewhat ambiguous as to whether post-trial motions can be filed in such a circumstance, or whether they must await resolution of the entire controversy. Post-trial motions directed to the verdict must be filed in order to preserve certain issues for appeal, of course, so the appeals recognized in Green will require a drastic rewrite of both the appellate rules and the Rules of Civil Procedure (which must logically require that post-order motions directed to any order determining liability in favor of a party seeking affirmative relief, like a summary judgment order to that effect, toll rendition of such orders as well). In addition, permitting an appeal of a verdict in this circumstance inevitably stops the case in its tracks, because it is the rare circuit court judge who will try the damage issues while an interlocutory appeal of the liability verdict is pending and entry of a final judgment is prohibited. The result is typically a delay of a year or more in resolution of the merits of the controversy.

Moreover, in all three of the circumstances sketched above, a complete record and a transcript of the trial will be required, and rule 9.130--which limits the record to a mere appendix and requires service of the appellant's brief within 15 days of filing the notice of appeal--is obviously not designed for such an appeal. The inevitable result is a motion to treat the appeal as a plenary appeal under rule 9.110, which is usually granted, and the purpose of rule 9.130's form of expedited review is entirely defeated. If such appeals are to be treated as plenary appeals in any event, as they ordinarily are, it would make far more sense to allow the trial court to complete its labors and then review the entire case in a plenary appeal from the final judgment.

It should also be observed that permitting appeals from jury verdicts in bifurcated trials finds no support in the apparent justification for the rule. As noted previously, the apparent justification for the rule is that an adjudication of liability on a motion for summary judgment, without a trial of the facts, is one of those "most urgent interlocutory orders" deserving of immediate review. But once the liability issues have been tried to resolution by a jury in a bifurcated trial, that justification no longer exists. The only other arguable justification for permitting such appeals is to save the parties and the trial court the additional time and expense of a trial of the damage issues if the verdict is ultimately overturned on appeal. Courts have routinely rejected this as a justification for permitting interlocutory review by way of certiorari, however, so it would appear to be a poor justification for the interlocutory review authorized by Green. See, e. g., Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097,1100 (Fla. 1987).

The foregoing conundrums are not the only conundrums created by an expansive reading of the rule. After New Deal Cab Co. v. Stubbs, 90 So. 2d 614 (Fla. 1956), and Davis v. Sobik's Sandwich Shops, Inc., 351 So. 2d 17 (Fla. 1977), trial courts are permitted to enter summary judgments and grant directed verdicts in favor of a plaintiff but against no particular defendant, leaving it to a jury to determine which of the several defendants is ultimately to be found liable to the plaintiff. District courts have reviewed such orders under rule 9.130(a)(3)(C)(iv). See, e. g., Jartran, Inc. v. Abel, 500 So. 2d 638 (Fla. 3d DCA 1986). Review of such orders is entirely anomalous, however, because it permits interlocutory appeals by defendants who may never be found liable to the plaintiff at all.

And what of the circumstance of the multi-count action in which a plaintiff receives a summary judgment, a directed verdict, or a jury verdict in a bifurcated trial on the issue of liability on one count of the action but not on the others? According to the dissenting judge in Miami Columbus, Inc. v. Ramlawi, 687 So. 2d 1378 (Fla. 3d DCA), review denied, 697 So. 2d 511 (Fla. 1997), the plain language of the rule and the expansive reading given to it by Green authorizes an appeal of such an order. According to the majority, however, the rule "applies only to orders which determine `the' rather than `an' issue of liability" (687 So. 2d at 1379), and it, therefore, does not authorize an interlocutory appeal of such an order. See also Yelner v. Ryder Truck Rental, 683 So. 2d 655 (Fla. 4th DCA 1996), and Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994), which reach similar conclusions in analogous circumstances. A rule which is subject to such hair-splitting has little to recommend it, and creates an inordinate burden on the appellate courts that is plainly undesirable--and the result in Ramlawi (and similar cases) was most likely motivated in any event by a desire to rigorously restrict the reach of the rule rather than expand it further, which is recommendation enough for repeal of the rule altogether.

And what of the circumstance in which a defendant counterclaims against a plaintiff and the liability issues on both claims are bifurcated and tried, the plaintiff wins on its claim, the counter-plaintiff loses on its claim, and an appeal is taken from the verdict finding in favor of the plaintiff?. Is such an appeal to be dismissed under the reasoning of Ramlawi, or is it to be entertained under the "plain language of the rule" and the expansive reading given to it by Green? And if the appeal is entertained, what is the scope of review in the interlocutory appeal? Can the district court review errors affecting both claims in the single trial, or is it limited to reviewing errors affecting only the plaintiff's claim and must review errors affecting the defendant's counterclaim in a separate plenary appeal from the final judgment entered on the counterclaim? At present, there is no answer to this conundrum in the decisional law. And additional conundrums are certain to appear in the future as the limits of the rule are probed and tested for various tactical and strategic purposes by ever-inventive counsel.

As the majority noted in Ramlawi, it is the "general principle that piecemeal appeals in pending litigation are undesirable" (687 So. 2d at 1379).Yet that is precisely what rule 9.130(a)(3)(C)(iv) now permits, in numerous circumstances, at a level of complexity that has consistently taxed the acumen of the appellate courts and taken up an inordinate amount of their time. All of the orders that are now appealable under rule 9.130(a)(3)(C)(iv) can be reviewed in a plenary appeal from a final judgment under rule 9.110, which is the rule they typically end up being reviewed under in any event--and which is where they are reviewed in nearly every other jurisdiction in the nation.

To permit review of such orders in the courts of this state causes substantial delays in resolution of the merits of controversies, and, on balance, wastes a considerable amount of time and judicial resources. It also reflects a level of cynicism in the trial courts of this state that is entirely unwarranted. At minimum, the rule should be limited, as its predecessor was, to summary judgments finding liability prior to the commencement of trial, but there is really very little reason to justify even this limited type of piecemeal review. And because the workload of the appellate courts deserves to be pared wherever it can reasonably be reduced without substantial prejudice to litigants, the rule should be repealed in its entirety.

At its June 1999 meeting, the committee voted (with near unanimity) to stick to its previous recommendation that rule 9.130 (a)(3)(C)(iv) be repealed in its entirety. It also voted to recommend as an alternative that the rule at least be limited to its apparent initial intent--to review of nonfinal orders determining the issue of liability in favor of a party seeking affirmative relief, "if entered prior to trial." The recommendation is scheduled for submission to the Supreme Court at the end of the current rules cycle, in June 2000. It remains to be seen whether the recommendation will be accepted. All that can be said at the moment is that the future of rule 9.130 (a)(3)(C)(iv) is uncertain, and that it may not survive the turn of the century. In the meantime, don't forget to send your $250 check with your notice of appeal.

Joel D. Eaton is a partner at Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin in Miami. A former chair of the Appellate Court Rules Committee, Mr. Eaton specializes in civil appeals. Mr. Eaton received his undergraduate degree in 1965 from Yale University and his J.D. degree in 1975 from Harvard Law School.