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Tips For Trial Lawyers: Why You Should Finalize Your Summary

Michael Winer, Esq.
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06/29/11

p> TIPS FOR TRIAL LAWYERS: WHY YOU SHOULD FINALIZE YOUR SUMMARY JUDGMENT : by Michael Winer, Esq.

In Florida, a judgment is final only where nothing remains to be done to fully effectuate termination of the cause between the parties directly effected, except enforcement by execution or otherwise. GEICO Financial Services v. Kramer, 575 So.2d 1345 (Fla. 4th DCA 1991). It may come as a surprise, but an order granting a motion for summary judgment that the movant thought would end the case may not be a true final order. Pompano Paint Co. v. Pompano Beach Bank and Trust Co., 525 So.2d 518 (Fla. 4th DCA 1988), Reynard v. Kirkeby Hotels, Inc., 99 So.2d 719 (Fla. 3d DCA 1958). Besides giving the movant a "warm and fuzzy" feeling for having prevailed on his or her motion, the order may well be essentially useless.

To be considered final, it is essential that the order contain "magic words demonstrating finality". Allstate Insurance Company v. Collier, 405 So.2d 311, 312 (Fla. 4th DCA 1981). What are these "magic words"? Well, Judge Letts, in Collier, id. at 405 So 2d. 312, held that the phrases "that the plaintiff take nothing by this suit and . . . go hence without day" would suffice. Other language that might also pass inspection depends upon the case and what your research discloses.

How could this difference between an order that merely grants a motion for summary judgment and one that truly terminates litigation between parties except for "enforcement by execution or otherwise" be important to you? There are at least four very significant reasons why.

(1) An order that merely grants a motion for summary judgment (that the movant intended to end the case) may not be appealed. Only a judgment that contains the "magic words of finality" can. Collier, id., Reynard, id. Furthermore, most probably an appellate court will deny review of the order lacking the essential words by certiorari proceedings. State Automobile Mutual Insurance Company v. Quarles, 560 So 2d 358 (Fla. 5th DCA). The reason for this is that a direct appeal is available when a final judgment is rendered. Quarles, id. at 359 So.2d 358

(2) In Let's Help Florida v. DHS Films, Inc., 392 So.2d 915 (Fla. 3d DCA 1980), the Court mandated that a party against whom a summary judgment has been entered must file a notice of appeal within 30 days of its rendition. Accordingly, in order for the movant to start the appellate time clock running, there must be a final summary judgment.

(3) If the law changes after you obtained an order granting a motion for summary judgment (but not a final summary judgment), the trial court can reconsider it via a motion for reconsideration. This would not be the case though, if you had obtained a final summary judgment and the law changed either after: (1) 30-days from the

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