Although it may be common knowledge to practitioners, many forget that interlocutory orders—those orders, decrees, or judgments entered at an intermediate stage of the litigation—are merged in, and disposed of, when the Court enters a final judgment. After the Court enters a final judgment, earlier nonfinal judgments in a proceeding merge into the final judgment.
This can be problematic and a trap for the unwary. Throughout a proceeding a litigant may obtain a series of orders in their favor, and through a silent final judgment it may be that the interlocutory orders were not worth the paper they were printed on.
Interlocutory Orders Are Merged In, And Disposed Of, Upon Entry of A Final Judgment
In Duss v. Duss, the Florida Supreme Court stated that the effect a final judgment has upon a previous interlocutory order is as follows:
The general rule of procedure is that all provisional or interlocutory proceedings in a cause are merged in, and disposed of, by the final decree therein. Interlocutory or temporary injunctions cease upon a decree dismissing the cause.
111 So. 382 (Fla. 1926); see also Skinner v. Skinner, 579 So. 2d 358, 359-60 (Fla. 4th DCA 1991).
More recently the Fourth District Court of Appeal echoed its earlier holding in Skinner that:
[A]n interlocutory order directing former husband’s payment of former wife’s medical bill did not survive final judgment into which all interlocutory matters merged; the trial court could have reduced the arrearage to judgment in the final judgment, but since the final judgment was silent as to the arrearage, the wife was not entitled to recover it. See Hecht Consulting Corp. v. Manors of Inverrary Xi Ass’n, 125 So. 3d 267, 268-69 (Fla. 4th DCA 2013).
In Hecht Consulting Corp., the Fourth District Court of Appeal was asked to review a motion for final summary judgment entered on breach of contract and unjust enrichment grounds. The Court affirmed the grant of summary judgment. The parties disputed whether an interlocutory order of summary judgment in the proceeding requiring the plaintiff below to refund a fee to defendants survived the final judgment. The final judgment was silent as to the interlocutory order granting summary judgment on the refund award. Because the interlocutory order was inconsistent with the final judgment, and not mentioned at all within the final judgment, that interlocutory order did not survive the final judgment.
This final judgment problem, shall we call it, raises its head in domestic relations matters. A Court may order temporary alimony to one of the spouses during the pendency of the dissolution of marriage proceedings. That order of temporary alimony, unless expressly stated in the final judgment, is merged and disposed of when the final judgment is entered dissolving the marriage.
While this proposition may be straightforward in a civil matter, it is uncertain what effect this doctrine of final judgments would have in a probate matters.
Does The Final Judgment Rule Apply In Probate?
In contested probate, the Court may issue a series of interlocutory orders, “final” partial judgments, “nonfinal” judgments and other pronouncements of varying effects, and at the conclusion of the administration of an estate the Court will simply order a discharge.
Therein lies the conundrum in probate regarding final judgments. When an estate is closed, the Court will enter a discharge. That discharge is always silent as to the interlocutory orders entered throughout the administration. For example, during the pendency of a probate administration, the Court may (i) admit a will to probate; (ii) appoint a personal representative; (iii) order the sale of personal property; (iv) permit the sale of real property, (v) declare property to be homestead property, or (vi) direct the payment of attorney fees.
Each of these interlocutory orders are directly appealable under Fla. Prob. R. 5.100. It is rarely the case that the Court’s discharge at the end of an estate administration encompasses all of these interlocutory orders entered during the proceeding.
It cannot be that an order admitting a will to probate that is not mentioned in the order of discharge failed to survive it, could it? Probate likely would not follow the rule enunciated above, that final judgments merge and dispose of interlocutory orders when the final judgment is silent regarding same. Until an appellate court rules that probate is a unique animal, shielded from the application of this final judgment rule, you would be hard-pressed to find an attorney to wager against it.