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Appealing a denial of summary judgment in Florida

I can't appeal a non-final order of this kind, but I suppose dakotalaw02/21/18
If your state is like any other state I’ve practiced in, d jorgedeclaro02/22/18
In my jx, an order denying an msj is not appealable. We jeffm02/22/18
I looked up Florida and he is correct. Florida has very stri jorgedeclaro02/22/18
There is a discretionary appeal of sorts, I could file a wri dakotalaw02/22/18
Yeah, I think you are right on that count. Mandamus won't g jeffm02/22/18
Assuming mandamus is what it means here and at the federal l jorgedeclaro02/22/18
dakotalaw (Feb 21, 2018 - 11:31 pm)

I can't appeal a non-final order of this kind, but I suppose I could set it for a sham half day trial and then appeal the decision at trial and at the SJM.

Opposing counsel filed one affidavit before SJ hearing, didn't bring forth admissible evidence to create a genuine issue of material fact, all hearsay, no personal knowledge, etc. Actually, half of my counts weren't even mentioned in the affidavit, so they should have been granted as a matter of law. It was a simple breach of contract case on multiple contracts, no issue was made of our affidavits or procedure. Opposing counsel was just the judges age and looked at the judge and promised him there was a material issue. Judge is notorious for not following law. Had a court reporter and the record is black and white, judge just ignored law.

Anyone ever done anything like this? I'm pretty sure I will have to appeal an issue at trial along with the prior SJ issue. Maybe I will win a few counts at trial who knows, I really just want to teach this judge a lesson. He has screwed me twice now. Told my client I would do the appeal for costs only.

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jorgedeclaro (Feb 22, 2018 - 2:28 am)

If your state is like any other state I’ve practiced in, do not do this. Appeals courts will not review a denial of summary judgment after a trial on the merit. The summary judgment outcome is mooted by the trial before the finder of fact.

I’d be shocked if you can’t appeal a denial for summary judgment interlocutory. I’m not surprised it’s not an appeal as a matter of right, but I would expect that the court can grant discretionary review.

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jeffm (Feb 22, 2018 - 9:39 am)

In my jx, an order denying an msj is not appealable.

We have to go to trial. At trial, you preserve error re: evidentiary rulings throughout trial. You can (but need not, I think) move for a directed verdict at close of evidence if a jury trial. After verdict, you may file motion for JNOV. Also you must file motion for new trial if complaint is J is against great weight of evidence and it was bench trial. There are other rules for preservation of error for appeal, too.

If the law prevents J in opponent's favor, you just appeal it after trial. You don't have to "preserve" that kind of error.

OP, you better whip out your state's treatise on appeals and preservation of error. You tread dangerous ground if you don't know these inside and out. How would you like to get an appellate opinion stating you failed to preserve error? That's a malpractice nightmare.

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jorgedeclaro (Feb 22, 2018 - 11:07 am)

I looked up Florida and he is correct. Florida has very strict limitations on interlocutory appeals. I agree with what you said.

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dakotalaw (Feb 22, 2018 - 1:23 pm)

There is a discretionary appeal of sorts, I could file a writ of mandamus, but I have an adequate remedy here so they probably won’t hear it. My remedy is of course an actual trial.

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jeffm (Feb 22, 2018 - 2:59 pm)

Yeah, I think you are right on that count. Mandamus won't get you there, I'm afraid.

We have discretionary appeal, too. It might work, but if it's like us, it's permissive. Some judges are probably more liberal with it than others. The way you describe your judge as not caring to follow the law, I have my doubts.

Good luck! Think of trial as a billing opportunity!

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jorgedeclaro (Feb 22, 2018 - 10:23 pm)

Assuming mandamus is what it means here and at the federal level, you’re more likely to get sanctioned than relief. It’s got to be a non-discretionary function.

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