Wednesday, August 26, 2015

3d DCA Watch -- The Other Side of Summer Edition!


From the foaming breakers of the poisonous surf
The other side of Summer
To the burning forests in the hills of Astroturf
The other side of Summer
Welcome to this very upbeat edition of 3d DCA Watch!

Get it:

Vargas v. Gutierrez:

New trial ordered --
We affirm the denial of Dr. Vargas’s motion for a directed verdict but reverse and remand for a new trial based on the plaintiffs’ violation of the “one expert per specialty” rule and for materially misrepresenting the evidence in closing arguments, both of which unfairly and materially prejudiced Dr. Vargas and denied him his right to a fair trial.
Congrats to Dinah Stein!

Come on people, let's get some basic appellate rules right: 
An order that merely grants a motion for summary judgment is not a final order. Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 149 (Fla. 3d DCA 2002) (“[T]he law is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review.”). For an order to be final, it must constitute an entry of a judgment: it is the final judgment that is appealable, not an order simply granting a motion. Id. (“An order granting only summary judgment merely establishes an entitlement to a judgment, but is not itself a judgment.”).

The order that Ball asks us to review merely grants a motion; it does not contain language that enters judgment. Accordingly, it is not a final order and the notice of appeal is premature.

Models for final judgments are contained in The Forms for Use with Rules of Civil Procedure, which the Florida Supreme Court has placed at the end of the Florida Rules of Civil Procedure. An appropriate order granting final summary judgment could be captioned “Final Summary Judgment,” although the title is not
controlling. See Boyd v. Goff, 828 So. 2d 468 (Fla. 5th DCA 2002).

For a plaintiff, a final summary judgment should have language that reads something like the following: “The motion for summary judgment is granted. Final judgment is entered as follows. The plaintiff [name and address] shall recover from defendant [name and address] the sum of $ . . . that shall bear interest at the rate of . .. % per year for which let execution issue. The court reserves jurisdiction to consider a timely motion to tax costs and attorney’s fees.”

For a defendant, a final summary judgment should have language that reads something like the following: “The motion for summary judgment is granted. Final judgment is entered for defendant [name] and against plaintiff [name]. The court reserves jurisdiction to consider a timely motion to tax costs and attorney’s fees.”
Particularly diligent judges and lawyers add the traditional language of finality for a defendant which includes the phrases “plaintiff shall take nothing by this action and defendant shall go hence without day.”
Seriously?

Shouldn't a lawyer know this kind of stuff before filing an appeal?

Somebody better hire Ms. Stein asap!

2 comments:

P. Guyotat said...

I actually like that opinion by Judge Logue! Gives a nice little roadmap to lawyers on appealing (or not) orders granting motions for summary judgment (many lawyers think such orders are appealable). And cool discussion on the origin of the phrase "go hence without day."

Anonymous said...

The Third slammed that low life Deehl trying to cheat his appellate and trial support lawyers who put in 3300 hours at his request. Serves him right.