East Avenue, LLC v. Insignia Bank
136 So. 3d 659
Fla. Dist. Ct. App.2014Background
- East Avenue, LLC, Sarasota Land.com, Inc., and Mark Pierce (East Avenue) were subject to an amended summary final judgment for damages on three counts while related counts against them remained pending in circuit court.
- Under S.L.T. Warehouse v. Webb, such a judgment that leaves interrelated claims pending is not a final, appealable judgment.
- The challenged judgment nonetheless included language authorizing execution, exposing East Avenue to collection before any final appeal or ability to post a supersedeas bond.
- Florida appellate courts are split on how to treat orders that look final and permit execution while related claims remain: (1) treat as premature and dismiss (First DCA); (2) deem final because final in form (Third DCA); (3) reverse form and remand to enter interlocutory order (Third DCA practice); district courts thus disagree.
- Florida Supreme Court decisions (McGurn v. Scott and Westgate) addressed similar prejudgment-interest situations, declaring that an order that appears final and authorizes execution may be treated as final for appeal to avoid leaving a party unable to obtain a supersedeas.
- This court treated the appeal as a certiorari proceeding, found irreparable harm and a departure from essential requirements of law in permitting execution before final judgment, granted certiorari, and quashed the order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judgment that resolves some counts but leaves interrelated counts pending is final and appealable when it authorizes execution | East Avenue: order should be treated as final/appealable because it authorizes execution and denies ability to obtain supersedeas | Trial court/judgment creditor: judgment is not final under S.L.T. Warehouse; appeal is premature | Court: not final under S.L.T., but certiorari available because execution causes irreparable harm; order permitting execution departed from essential requirements of law; quashed |
| Whether certiorari is a proper remedy to review such an order | East Avenue: certiorari necessary to prevent irreparable harm (loss of ability to supersede) | Opposing view: certiorari should not substitute for rule-based expansion of interlocutory appeal; policy alone insufficient | Court: certiorari may review the form (execution clause) when there is irreparable harm and a legal departure; granted certiorari limited to form/execution issue |
| Whether McGurn and Westgate compel treating such orders as final for appeal | East Avenue: McGurn/Westgate support treating executable-but-nonfinal orders as appealable to avoid procedural quandary | Opposing view: McGurn limited to prejudgment-interest context; Westgate did not expand all contexts | Court: Westgate preserved McGurn’s narrow relief for orders authorizing execution; those precedents support relief here via certiorari |
| Proper corrective action when a court adjudicates less than entire cause but permits execution | East Avenue: require ability to appeal/post supersedeas or require interlocutory order instead of final form | Judgment creditor: entry of final-form damages verdict is permissible even if other claims remain | Court: trial courts should enter interlocutory orders (or otherwise avoid executable final-form judgments) per McGurn and rule 1.510(d); execution before final judgment is improper |
Key Cases Cited
- S.L.T. Warehouse v. Webb, 304 So.2d 97 (Fla. 1974) (traditional finality test: entire controversy must be disposed to be final)
- McGurn v. Scott, 596 So.2d 1042 (Fla. 1992) (order appearing final and authorizing execution may be treated as final to avoid procedural quandary)
- Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So.3d 567 (Fla. 2010) (allowed reservation of prejudgment interest but preserved McGurn’s protection against executable nonfinal orders)
- Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315 (Fla. 3d DCA 1987) (orders final in form but not in substance are improper; cannot render ordinary final money judgment while leaving related issues)
- Raymond James & Assocs., Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003) (dismissed appeal as premature where judgment authorized execution but related claims remained)
- Lombardo v. Haige, 971 So.2d 1037 (Fla. 2d DCA 2008) (suggested certiorari may review executable nonfinal orders; compelled reinstatement for review)
- Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1999) (certiorari requires material irreparable injury that cannot be corrected on appeal)