November 23, 2012

Possession Determinations Give Power To Bring Non-Final Appeals

“Possession Determinations Give Power To Bring Non-Final Appeals”: Fourth DCA Clarifies That Order Must Direct Immediate Possession To Qualify As Appealable Non-Final Order

Florida Atlantic Stock Transfer, Inc., v. Smith, 4D11-2955

Florida Atlantic Stock Transfer (“FAST”), a stock transfer agent, appealed from an order in an interpleader action it filed in a dispute over the transfer of stocks. The trial court’s order granted summary judgment against FAST. Specifically, the order determined that Smith was entitled to have certain stock certificated in her individual name with the restrictions on the stock lifted. FAST sought appellate review under Florida Rule of Appellate Procedure 9.130(a)(3)(ii), that allows for review of non-final orders that “determine the right to immediate possession of property.”

On appeal, the Fourth DCA first noted that the order was non-final in nature because although styled as an order granting “Summary Final Judgment,” the substance of the order granted summary judgment in favor of Smith but did not contain any language indicating that it was actually entering final judgment. The court stated that it is the substance of the order, and not the order’s label, that controls for purposes of determining whether it may be appealed. The court pointed out that the order could not be considered final because it did not end all of the litigation between the parties.

The court then began its determination of whether it had jurisdiction of the appeal under rule 9.130(a)(3)(ii) by noting that orders ruling on motions for summary judgment are interlocutory in nature and generally do not determine the right to “immediate possession” even if they resolve legal issues. The court also noted that an interlocutory order determining a party’s ownership of stocks is not an appealable non-final order unless it actually orders disbursement or other immediate possession of property. Higgins v. Ryan, 81 So. 3d 588 (Fla. 3d DCA 2012). The court held that the summary judgment order at issue merely resolved the legal issues in the interpleader action but failed to determine “the right to immediate possession of property.” The court pointed out that FAST obviously had no immediate interest in the property to lose, which was clear from the nature of the case as an interpleader action. The court also found it important that the order did not order FAST to actually issue the restriction-free shares to Smith.

The court dismissed the appeal for lack of jurisdiction based on its determination that the case was not an appealable non-final order.