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Appealing Post-Judgment Orders: The Path to Appellate Review Under the New Rule 9.130(a)(4)

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A trial court’s final order is not always the court’s last order; it is often the case that post-judgment motion practice will lead to later-issued orders.1 Since 1977, the majority of these post-judgment orders — also called post-decretal orders2; have been appealed under Fla. R. App. P. 9.130(a)(4).3 Specifically, litigants have appealed post-decretal orders under Rule 9.130(a)(4)’s second sentence, which provided that “non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.”4

No longer. The Florida Supreme Court, in its 2014 amendments to the Florida Rules of Appellate Procedure, deleted this sentence without comment.5 At first blush, this deletion appears to be a major change, and one that will greatly curtail the number of post-decretal appeals. After all, for the last 38 years, litigants and courts have considered this now-deleted sentence as the only way to appeal a wide range of post-decretal orders. For example, Rule 9.130(a)(4) has been the jurisdictional basis for appealing post-decretal orders that hold a party in contempt,6 deny a petition for modification of a final judgment of dissolution,7 modify visitation rights,8 set or cancel or postpone a foreclosure sale,9 grant or deny a motion for proceedings supplementary,10 deny an impleader motion in proceedings supplementary,11 grant or deny a discovery motion,12 grant or deny a motion to intervene,13 grant or deny a motion for contempt in a family law case,14 enforce a settlement agreement,15 deny a motion to amend a complaint,16 and grant or deny a motion to enforce a judgment.17 Thus, it is easy to jump to the conclusion that the foregoing types of orders — while traditionally appealable under Rule 9.130(a)(4) — now lack a noncertiorari path to appellate review.

Not so, say Rule 9.130(a)(4)’s accompanying Committee Notes.18 The deletion of Rule 9.130(a)(4)’s second sentence, explains the committee, was meant only to clarify that post-decretal orders “are no more or less reviewable than the same type of order would be if issued before a final order…. Essentially, this amendment will delay some courts’ review of some nonfinal orders entered after a final order until rendition of another, subsequent final order.”19 Put differently, the committee believes that post-decretal orders traditionally appealable under Rule 9.130(a)(4) are appealable — and always have been appealable — as final orders: Meaning that only the form and timing of these appeals will change.

Now, an important question: Is the committee right?20 The answer, although not immediately clear (at least to this author), is yes. A post-decretal order is appealable as a final order so long as it does not contemplate future judicial labor. This conclusion, though, cannot be reached without some knowledge of the history of, and purpose behind, Rule 9.130(a)(4)’s second sentence. With this knowledge, and with an understanding of why this language was deleted from Rule 9.130(a)(4), we can see what post-decretal appeals should look like in a post-amendment world.

Appealing Post-Decretal Orders Pre-Amendment: Three Different Approaches
The meaning of pre-amendment Rule 9.130(a)(4) has always been somewhat of a mystery, and appellate lawyers and courts have spilled a great deal of ink in interpreting the rule’s directive that “non-final orders entered after final order on authorized motions are reviewable” as a Rule 9.130 appeal. Further underscoring the rule’s ambiguousness, Florida’s district courts of appeal arrived on three different interpretations of what this language means.

The Fifth DCA advanced the first and most literal interpretation of Rule 9.130(a)(4): That all post-decretal orders are immediately reviewable regardless of whether the orders would be reviewable on appeal from a later post-judgment order.21 For an illustration of this interpretation in practice, consider a post-decretal order that impleads a third party to proceedings supplementary. This type of order does not represent a point of finality in the post-judgment proceedings. To the contrary, an order allowing impleader “merely tells [a third party] that the judgment creditor has his eye on property in their hands…and that they should now state defenses to the creditor’s claim.”22 Nevertheless, the Fifth DCA (pre-amendment) would grant immediate review of this order under Rule 9.130(a)(4).23

In truth, this interpretation was the most faithful to the text of Rule 9.130(a)(4), which did not restrict immediate appellate review to a specific type of post-decretal order. Instead, the rule’s only requirement for immediate review was that an order be entered after a final order. The downside to this literal approach, however, was that it ran contrary to Rule 9.130’s underlying goals: Discouraging piecemeal appellate review and reducing the number of nonfinal appeals.24

For this reason, the First and Fourth DCAs arrived on an alternative interpretation: Rule 9.130(a)(4) was inapplicable to orders that could be reviewed on appeal from a later post-decretal order.25 In the example given above — when an order impleads a third party to proceedings supplementary — there would be no right to immediate appellate review because the order is only the first step in more comprehensive proceedings.26 Thus, the First and Fourth DCAs would dismiss appeals of post-decretal orders “that contemplated further judicial labor.”27

The Second and Third DCAs’ reading of Rule 9.130(a)(4) fell somewhere in between these first two interpretations. As a general matter, these DCAs declined review under Rule 9.130(a)(4) over “merely a preliminary order in a proceeding that will eventually culminate in a subsequent final order.”28 But, the DCAs still granted review of post-judgment discovery orders that, if entered pre-judgment, would not have been immediately appealable.29 The First and Fourth DCAs, conversely, found that post-judgment discovery orders, like pre-judgment discovery orders, were interlocutory and not subject to immediate appellate review.30 And, as already covered, the Fifth DCA considered everything post-judgment was appealable.

Thus, prior to the 2014 amendment of Rule 9.130(a)(4), whether a post-decretal order was immediately reviewable depended on which DCA you were appealing. Even then, the answer was not always clear.31 Understandably, the committee thought it was time for a change.32

Explaining the 2014 Amendment to Rule 9.130(a)(4)
The committee, though, did not suggest amending the rule to conform to one of the DCAs’ competing interpretations; instead, the committee did away with Rule 9.130(a)(4)’s second sentence altogether — effectively deeming it unnecessary. At first, this conclusion seems counterintuitive: How can the sentence that gave rise to the majority of post-decretal appeals over the last 38 years be unnecessary to post-decretal appeals? The answer, and the reasoning behind the 2014 amendment, becomes apparent only after an examination of why the drafters of Rule 9.130(a)(4) included the second sentence in the first place.

For context, start with Rule 9.130(a)(3), which lists various pre-judgment interlocutory orders that are immediately appealable.33 Rule 9.130(a)(3) was created to allow the expedited review of certain classes of orders that are not otherwise final and appealable under Rule 9.110.34 Now turn to (pre-amendment) Rule 9.130(a)(4), which was designed with the same goal in mind: To allow the review of a type of nonfinal order — post-decretal orders — that would not otherwise be appealable under Rule 9.110.35 Here is where the drafters of Rule 9.130(a)(4) went astray: They assumed that all post-decretal orders, like interlocutory orders under Rule 9.130(a)(3), are nonfinal.

The potential for varying degrees of post-decretal finality are what gave rise to the interpretation, adopted by some DCAs (as discussed above), that orders “contemplat[ing] further judicial labor” are not appealable. Similarly, the Florida Supreme Court has recognized that some post-decretal orders, while nominally interlocutory, actually serve to “complete[] the judicial labor” on a post-judgment cause and should, thus, be treated as final for purposes of tolling motions.36 The 2014 amendment to Rule 9.130(a)(4) simply takes these cases’ holdings and builds upon them. If some post-decretal orders look like final orders, and can be tolled like final orders, then maybe they are final orders. Final orders, unlike true interlocutory orders, do not need Rule 9.130 to create a path to appellate review; final orders are always appealable to a district court of appeal under Rule 9.110.37

This is not, in fact, a groundbreaking notion as some post-decretal orders have always been appealed this way. For example, orders adjudicating costs, attorneys’ fees, or prejudgment interest have all been deemed sufficiently final to support their own appeal under Rule 9.110 — not Rule 9.130(a)(4) — so long as the trial court has completed its judicial labor in making the rulings.38 Now, as a result of Rule 9.130(a)(4)’s amendment, all other post-decretal orders should be appealed in the same way — under Rule 9.110 as a final order.

This makes sense, and it resolves an issue that has bothered appellate courts and commentators for years: Why should when an order is issued affect whether that order is final?39 The 2014 amendment resolves the matter.40 A final order, even if entered after another final order, is appealable under Rule 9.110.41 Likewise, a nonfinal order, even if entered after a final order, is not appealable unless it falls under one of the categories of orders set out in Rule 9.130(a)(3). This should make the appeal of post-decretal orders a more straightforward process.

The New Post-Decretal Appeal: A Blueprint
The First DCA has, since this article topic was chosen, confirmed the analysis set forth in the previous section (much to my relief). In W.W. v. Guardian Ad Litem Program, 159 So. 3d 999, 1000 (Fla. 1st DCA 2015), an appellant challenged a post-decretal order denying a motion to reinstate supervised visitation. The First DCA explained that this type of order had traditionally been appealed under Rule 9.130(a)(4), but that the 2014 amendment had deleted the rule’s post-decretal-specific language.42

Thus, the First DCA was forced “to revisit the question of our jurisdiction to review such orders.”43 The ultimate result remained the same as before — the order at issue was appealable — but the mechanism for reviewing the order changed. The First DCA concluded that the post-dependency order was, in reality, a final order because it “fully resolves the issues raised by the motion [to reinstate visitation].”44 As a result, the First DCA stated that this type of order would now be considered final and appealable under Rule 9.110.45

The First DCA’s analysis serves as a valuable blueprint going forward. Using it, we can predict which post-decretal orders — historically appealable under Rule 9.130(a)(4) — will still be subject to immediate review. Imagine, by way of example, that a trial court enters an order denying a motion to modify a final judgment of dissolution. Because the motion to modify marks the start of new proceedings,46 the court’s order denying that motion acts fully to resolve the merits of those proceedings. The order is, therefore, final and appealable.

Now imagine that a trial court denies a motion for protective order in proceedings supplementary. Pre-amendment, some DCAs would grant immediate review of this order.47 But post-amendment, this order is no longer appealable because it will be reviewable through a later final order entered in the proceedings supplementary, and because the denial of a motion for protective order is not a type of order covered by Rule 9.130(a)(3). The only way to seek immediate appellate review of this order is through a petition for writ of certiorari.

So, when a post-decretal order is issued in the future, follow the First DCA’s blueprint and ask yourself this question: Does the order fully resolve all issues so that no further judicial labor is necessary? If the answer to this question is yes, then the post-decretal order is appealable under Rule 9.110, just like any final order would be. If the answer is no, look to whether the order fits under one of the categories in Rule 9.130(a)(3). If it does, you may file a Rule 9.130 appeal; if it does not, you have a nonfinal order — wait until it merges with a later-issued final order and then appeal (or file a petition for writ of certiorari).

The 2014 amendment to Rule 9.130(a)(4), while perhaps not the seismic shift that it first seems, will still have a considerable effect on post-decretal appeals. This effect, though, should be a positive one, clearing up the uncertainty that has historically surrounded this type of appeal. So far things are headed in the right direction: The First DCA has provided a blueprint for seeking review under Rule 9.130(a)(4) that accords with the intended purpose of the 2014 amendment. Hopefully litigants will follow it.

1 See notes 6-17.

2 Clearwater Federal Savings & Loan Assoc. v. Sampson, 336 So. 2d 78, 79 (Fla. 1976).

3 See notes 6-17.

4 Fla. R. App. P. 9.130(a)(4) (2014) (“Non-final orders entered after final order on motions that suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in [R]ule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.”)

5 See In re Amendments to Florida Rules of Appellate Procedure, 2014 WL 5714099 at *7-8 (Fla. Nov. 6, 2014).

6 Dehler v. Dehler 639 So. 2d 1128 (Fla. 4th DCA 1994).

7 Power v. Power, 864 So. 2d 523, 524 (Fla. 5th DCA 2004).

8 Drago v. Drago, 895 So. 2d 529, 529 (Fla. 4th DCA 2005).

9 Jade Winds Ass’n, Inc. v. Citibank, N.A., 63 So. 3d 819, 820, n.3 (Fla. 3d DCA 2011) (canceling foreclosure sale); LR5A-JV v. Little House, LLC, 50 So. 3d 691, 693, n.2 (Fla. 5th DCA 2010) (setting foreclosure sale); Hamilton v. MidLantic National Bank, 598 So. 2d 245, 246 (Fla. 2d DCA 1992) (setting foreclosure sale); Commonwealth Mortg. Corp. of Am., L.P. v. Frankhouse, 551 So. 2d 599 (Fla. 4th DCA 1989) (postponing foreclosure sale).

10 See Exceletech, Inc. v. Williams, 579 So. 2d 850 (Fla. 5th DCA 1991); Sverdahl, 582 So. 2d at 740; Maryland Cas. Co., 656 So. 2d at 611-12; Moffatt & Nichol, Inc. v. B.E.A. Intern. Corp., Inc., 48 So. 3d 896, 897 (Fla. 3d DCA 2010).

11 B & I Contractors, Inc. v. Mel Re Constr. Mgt., 66 So. 3d 1035, 1036, n.1 (Fla. 2d DCA 2011).

12 See notes 29, 30.

13 Fischer v. Fischer, 544 So. 2d 1079, 1079-80 (Fla. 2d DCA 1989).

14 Driggers v. Driggers, 127 So. 3d 762 (Fla. 2d DCA 2013); Erickson v. Erickson, 998 So. 2d 1182, 1183 (Fla. 1st DCA 2008); Berman v. Berman, 591 So. 2d 1142, 1142-43, n.1 (Fla. 4th DCA 1992).

15 Judd-Johnson v. Johnson, 892 So. 2d 521, 522 (Fla. 1st DCA 2004); Avery Dev. Corp. v. Bast, 582 So. 2d 150, 151 (Fla. 4th DCA 1991).

16 Mackin v. Applestein, 404 So. 2d 789, 790, n.1 (Fla. 3d DCA 1981).

17 Santiago v. Sunset Cove Invs., Inc., 988 So. 2d 10, 12, n.2 (Fla. 2d DCA 2008); Poropat v. Poropat, 54 So. 3d 507, 508 (Fla. 5th DCA 2010).

18 F la. R. App. P. 9.130 (Committee Notes, 2014 Amendment).

19 Id.

20 Cf. Tome v. United States, 513 U.S. 150, 160 (1995) (Scalia, J., concurring in part and concurring in judgment) (“Like a judicial opinion and like a statute, the promulgated [r]ule says what it says, regardless of the intent of its drafters.”).

21 See, e.g., Zureikat v. Al Shaibani, 944 So. 2d 1019, 1022 (Fla. 5th DCA 2006); Jackson v. York Hannover Nursing Centers, Inc. 853 So. 2d 598, 600 (Fla. 5th DCA 2003); Exceletech, Inc. v. Williams, 579 So. 2d 850, 850 (Fla. 5th DCA 1991); Mogul v. Fodiman, 406 So. 2d 1225, 1226 (Fla. 5th DCA 1981).

22 See Sverdahl v. Farmers & Merchants Savings Bank, 582 So. 2d 738, 740 (Fla. 4th DCA 1991).

23 See Exceletech, 579 So. 2d at 850.

24 See Cotton States Mut. Ins. v. D’Alto, 879 So. 2d 67, 69 (Fla. 1st DCA 2004) (citations omitted) (noting that Rule 9.130 is intended “to discourage piecemeal review”); see also Praet v. Martinez, 367 So. 2d 657, 658 (Fla. 3d DCA 1979) (explaining that Rule 9.130 is meant “severely to limit the number and type of appealable non-final orders”).

25 See, e.g., Neiman v. Naseer, 47 So. 3d 954 (Fla. 4th DCA 2010); Maryland Cas. Co. v. Century Constr. Corp., 656 So. 2d 611, 612 (Fla. 1st DCA 1995), Gaché v. First Union National Bank, 625 So. 2d 86, 87 (Fla. 4th DCA 1993).

26 See, e.g., Sverdahl, 582 So. 2d at 740; Maryland Cas. Co., 656 So. 2d at 611-12.

27 Bowen v. Bowen, 38 So. 3d 220 (Fla. 1st DCA 2010) (citations omitted); see also Maryland Cas. Co., 656 So. 2d at 611-12.

28 Buckley v. Commonwealth Mortgage Assurance Co., 725 So. 2d 1146, 1147, n.1 (Fla. 2d DCA 1998) (citing
Philip J. Padovano, Florida Appellate Practice §22.15, 429 (2d ed. 1997)); see also HCA Health Services Of Florida, Inc. v. Hillman, 870 So. 2d 104, 106, n.1 (Fla. 2d DCA 2003); Philip Morris Inc. v. Jett, 802 So. 2d 353, 355 (Fla. 3d DCA 2001); Little Arch Creek Properties, Inc. v. Medical Facilities Dev., Inc., 698 So. 2d 926, 927 (Fla. 3d DCA 1997); Grafman v. Grafman, 488 So. 2d 115, 117 (Fla. 3d DCA 1986).

29 Regions Bank v. MDG Frank Helmerich, LLC, 118 So. 3d 968 (Fla. 2d DCA 2013) (reviewing a post-judgment order compelling discovery); DeLeo v. Wachovia Bank, N.A., 946 So. 2d 626, 627, n.1 (Fla. 2d DCA 2007) (same); Fox v. Kelner, 574 So. 2d 311, 312 (Fla. 3d DCA 1991) (same); Fox v. Kahn, 575 So. 2d 1349 (Fla. 3d DCA 1991) (same); Largo Hospital Owners, Ltd. v. Gorman, 408 So. 2d 597 (Fla. 2d DCA 1981) (reviewing order requiring defendant to produce out-of-state resident for deposition in aid of execution).

30 See, e.g., Forman v. Great American Resorts of Florida, 929 So. 2d 1089 (Fla. 4th DCA 2006) (dismissing a post-judgment protective order for lack of jurisdiction); Gaché v. First Union National Bank, 625 So. 2d 86, 87 (Fla. 4th DCA 1993) (“[I]t makes no sense to allow an appeal from a discovery order entered post-judgment, when the same discovery order entered prior to judgment would not be appealable.”); see also Maryland Cas. Co., 656 So. 2d at 612 (approving of the reasoning in Gaché ).

31 See Hillman, 870 So. 2d at 106, n.1.

32 See Fla. R. App. P. 9.130(a)(4) (Committee Notes, 2014 Amendment) (citing Tubero v. Ellis, 469 So. 2d 206 (Fla. 4th DCA 1985) (Hurley, J., dissenting) (“This amendment resolves conflict over the language being stricken and the different approaches to review during post-decretal proceedings that have resulted.”).

33 Fla. R. App. P. 9.130(a)(3).

34 Fla. R. App. P. 9.130(a)(3) (Committee Notes, 1977 Amendment).

35 See Philip J. Padovano, Florida Appellate Practice §24:15, 541 (2015) (“Rule 9.130(a)(4) was designed to provide a method of review for those postjudgment orders that are not otherwise appealable.”).

36 Clearwater Fed. Sav. & Loan Ass’n v. Sampson, 336 So. 2d 78, 79 (Fla. 1976).

37 Fla. R. App. P. 9.110(a)(1).

38 See, e.g., Reliable Reprographics Blueprint & Supply, Inc. v. Florida Mango Office Park, Inc., 645 So. 2d 1040, 1042 (Fla. 4th DCA 1994) (award of fees and costs a final appealable order); E. Ave., LLC v. Insignia Bank, 136 So. 3d 659, 662 (Fla. 2d DCA 2014) (award of prejudgment interest a final appealable order).

39 See, e.g., Philip J. Padovano, Florida Appellate Practice §24:15, 543 (2015) (noting, in the context of the appeal of post-decretal discovery orders, that “there is no apparent reason to allow an appeal from a post-judgment discovery order while denying an appeal from a pre-judgment discovery order”).

40 See Fla. R. App. P. 9.130(a)(4) (Committee Notes, 2014 Amendment) (“[N]on-final orders entered after a final order are no more or less reviewable than the same type of order would be if issued before a final order.”).

41 Id.

42 Guardian Ad Litem Program, 159 So. 3d at 1000.

43 Id.

44 Id.

45 Id. at 1000-01.

46 See Grafman, 488 So. 2d at 117.

47 See note 29.

Thomas J. Seider is an appellate associate with Brannock & Humphries in Tampa. He received his J.D. from the University of Virginia School of Law.

This column is submitted on behalf of the Appellate Practice Section, Christopher Vincent Carlyle, chair, and Brandon Christian, editor.

Appellate Practice