Whether an order is “final” for purposes of an appeal is a confusing area of appellate law, especially in civil cases. What is final is not always clear. If there is any doubt about whether the order is final, a party should usually make sure to appeal from it within 30 days, to reduce the risk of waiving an appeal if it turns out the order was final (meaning it had to be appealed within 30 days, if ever). The following questions may help a party determine if the order is final:
2. Has the order been filed with the clerk’s office?
3. Does the order end the case as a whole?
4. Other than the lower tribunal considering an attorney’s fees or costs motion, does the order leave nothing more for the lower tribunal to decide?
5. Does the order sound final? Does it state “for which let execution issue” or “go hence without a day” or “final judgment” or “dismissal of all claims with prejudice” or “case closed”?
| Examples of Usually Final Orders: | Examples of Usually Non-Final Orders: |
|---|---|
|
• Order dismissing the case with prejudice • Summary final judgment which enters judgment in favor of a party • Final judgment entered on a jury’s verdict after a trial • An order both awarding a party entitlement to attorney’s fees and determining the amount (or an order later setting the amount after entitlement was decided) • An order denying a motion for attorney’s fees after the final judgment • A final judgment awarding court costs and setting the amount |
• Order granting a motion to dismiss which does not actually dismiss the case • Order granting a motion to dismiss without prejudice to amend the complaint • Order granting a motion for summary judgment which does not actually enter judgment for one party or the other, or which does not end the case • Orders denying motions to dismiss or for summary judgment • Orders ruling on discovery matters and other pre-trial orders • Orders awarding entitlement to attorney’s fees but with amount to be decided later |
In sum, a final decision, also called a final judgment or final order, ends the case in the lower tribunal, usually by entering a judgment in favor of one party and against another. When in doubt, parties should retain an appellate attorney promptly after receiving the order to see whether the order is final and appealable. If the order is not final and appealable, or if a notice of appeal is not timely filed, the appellate court will not have jurisdiction over the appeal and the appeal will be dismissed.
