4th DCA: An order simply "granting" a summary judgment motion isn't worth the paper it's written on
Rust v. Brown, --- So.3d ----, 2009 WL 2031288 (Fla. 4th DCA Jul 15, 2009)
It's not unusual for courts to enter orders simply "granting" a summary judgment motion. Which may be gratifying to the winning side, but technically speaking, the order is meaningless. Why? Because it hasn't actually entered judgment for or against a party. Which means it's a non-final, non-appealable order. Here's how the 4th DCA explained the rule in Shroff v. Winn Dixie Stores, Inc., 570 So.2d 1135 (Fla. 4th DCA 1990):
With great reluctance, this appeal is dismissed on the authority of White Palms of Palm Beach v. Fox, 525 So.2d 518 (Fla. 4th DCA 1988), and Russell v. Russell, 507 So.2d 661 (Fla. 4th DCA 1987). Once again we caution trial judges and attorneys alike that this court lacks jurisdiction over an order granting a motion for summary judgment, when that order does not contain the requisite words of finality indicating that the complaint is dismissed.
Unfortunately, the parties (and the judge) in the linked-to probate case overlooked this bit of sage advice. Here again the 4th DCA was presented with an order that simply "granted" a summary judgment motion, and again the 4th DCA sent everyone packing with instructions to try to get it right the second time around:
The decedent died in a motor vehicle accident, which gave rise to a wrongful death claim. The personal representative of the estate is one of the decedent's three adult sons, and a residuary beneficiary of the estate. The surviving spouse is a non-citizen.
The trust beneficiaries executed a Distribution Agreement. The agreement's purpose was to convert a revocable trust into a qualified domestic trust (QDT) to preserve the marital deductions that are inapplicable to non-citizens and to save the estate money. See 26 U.S.C. § 2056A. The agreement specifically allocated the QDT administration expenses to be paid by the three sons. It did not address the proceeds of the wrongful death claim, despite everyone being aware of it prior to entering into the agreement.
Subsequently, the wrongful death claim settled for two million dollars, leaving $1.298 million for the estate. A dispute then arose over the responsibility for the administration expenses related to the QDT.
The surviving spouse filed a motion to compel the personal representative to sign the settlement checks. In response, the personal representative prepared an apportionment plan for the settlement proceeds. The second amended apportionment plan allocated $962,366 to the estate for reimbursement of the QDT's administration expenses and $335,634 to the surviving spouse.
The surviving spouse filed an objection to the plan and moved for summary judgment, attaching the Distribution Agreement, a letter written by her attorney, an estate inventory which included the value of the wrongful death claim, and an economist's report.
The personal representative filed a response, indicating that, “[p]rior to the settlement of the wrongful death action, the Parties entered into an oral agreement. As part of the Oral Agreement, [the surviving spouse] agreed to pay the expenses of the Estate out of the proceeds of the wrongful death action.” He attached his affidavit, attesting to the oral agreement. The court entered an order granting the surviving spouse's motion for summary judgment, giving rise to this appeal.
Rule 9.110(a)(2) of the Florida Rules of Appellate Procedure provides for “review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” “Significantly, the committee note explains that the 1996 amendment to the rule ‘does not abrogate prior case law holding that a party's right of appeal arises when there is a termination of judicial labor on the issue involved as to that party.’ “ Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So.2d 436, 437 (Fla. 4th DCA 2008) (quoting Walters v. Edwards, 700 So.2d 434, 435 n. 1 (Fla. 4th DCA 1997)).
An order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party. White Palms of Palm Beach, Inc. v. Fox, 525 So.2d 518, 519 (Fla. 4th DCA 1988), abrogated on other grounds by Dobrick v. Discovery Cruises, Inc., 581 So.2d 645 (Fla. 4th DCA 1991).
The court is correct in its analysis. I like to present the judge with the "Summary Judgment" or Judgment that recites entry via Rule 56 at the hearing. This prevents the inevitable tussling over what the judge said, what he meant, etc.