Navigating the Differences in Circuit Court Appellate Jurisdiction for Nonfinal Orders
Most attorneys are familiar with the rules and jurisdiction of the district courts of appeal and the Florida Supreme Court; however, many may be unaware of the differences that exist when appellate jurisdiction shifts to the circuit courts of our state. Jurisdiction in those courts emanates from general law, and creates some demonstrable differences for those seeking review from the decisions of the county courts of this state. This article addresses one of those distinctions, review of non-final orders issued by county courts.
Appellate Review in the District Courts of Appeal and Circuit Courts
• The District Courts of Appeal — The district courts of appeal have both original and appellate jurisdiction to review decisions of the circuit courts.1 While district courts of appeal have jurisdiction to hear appeals as of right from final judgments or orders of the trial courts, including those not directly appealable to a circuit court, jurisdiction to review non-final orders is conveyed to the district courts of appeal by the Supreme Court.2 A district court of appeal may also issue writs of mandamus, certiorari, prohibition, quo warranto, and “other writs necessary to the complete exercise of its jurisdiction.”3 And, “[t]o the extent necessary to dispose of all issues in a cause properly before it, a district court of appeal may exercise any of the appellate jurisdiction of the circuit courts.”4
• The Circuit Courts —Unlike the district courts of appeals’ jurisdiction, Fla. Const. art. V, 5, gives the legislature the “exclusive authority to provide for the manner of appeals from the county court to the circuit court.”5 Article V, 5(b), provides that the “circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law.”6 The same section also provides that circuit courts shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition, habeas corpus, and “all writs necessary or proper to complete exercise of their jurisdiction.”7
The legislature conveyed general appellate jurisdiction to the circuit courts in F.S. 26.012. That statute provides:
“Circuit courts shall have jurisdiction of appeals from county courts except appeals of county court orders or judgments declaring invalid a state statute or a provision of the State Constitution and except orders or judgments of a county court which are certified by the county court to the district court of appeal to be of great public importance and which are accepted by the district court of appeal for review.”8
Thus, a plain reading of the statute reflects that circuit courts have appellate jurisdiction of appeals from county court, other than two specifically enumerated exceptions.
Jurisdiction to Consider Non-Final Orders
Non-final orders are reviewable on appeal in the district courts of appeal under Fla. R. App. P. 9.130.9 Review of non-final orders not enumerated in Rule 9.130 is available via Rule 9.100.10 If a particular type of order is not enumerated in Rule 9.130, then a party must seek certiorari review via the appellate court’s original jurisdiction.11 Rule 9.130 also applies to “appeals to the circuit court of non-final orders when provided by general law.”12 Appeals of non-final orders in criminal cases is prescribed by Rule 9.140.13
Section 26.012 does not make the same distinction Rule 9.130 makes, the statute does not specifically enumerate non-final orders subject to appellate review and require review via extraordinary writs for other non-final orders not enumerated in the rule.14 Instead, the statute and the related constitutional provision convey general appellate jurisdiction upon the circuit courts for county court orders.15 As the Second District Court of Appeal observed in State v. Bjorkland, 924 So. 2d 971, 974 (Fla. 2d DCA 2006), the “constitution makes no distinction between appeals from final and interlocutory orders when it comes to appeals from county court to circuit court.”
In Bjorkland, the Second District reviewed the impact of the state’s decision to seek certiorari review of a matter that was a proper subject of appellate review in the circuit court under F.S. 924.07(1)(h).16 The court explained that while 924.07 was an unconstitutional infringement on the rulemaking authority of the Supreme Court as it related to the jurisdiction of the district courts of appeal to review criminal non-final orders, it remained a viable means to convey jurisdiction to the circuit court.17
While the Florida Supreme Court had found that circuit courts had jurisdiction to hear appeals under 924.07(1)(h), district courts of appeal did not enjoy the same authority because that jurisdiction had not been conveyed via the Supreme Court’s rulemaking authority.18 The court found that the “supreme court cannot independently authorize circuit court review of nonfinal orders by its rulemaking authority,” only the legislature can do that.19
As such, in Bjorkland,the court found the state improperly sought certiorari review when appellate review was available because the underlying jurisdiction was based on the circuit court’s ability to review a non-final order on appeal instead of the district court of appeals general jurisdiction to hear such an appeal.20
Given the broad language of 26.012, and the court’s reasoning in Bjorkland, the assumption might be that parties seeking appellate review from county to circuit court would be able to invoke the circuit court’s appellate jurisdiction regardless of whether the order sought to be reviewed was final or non-final; however, that assumption would be incorrect. The question of whether appellate review is available for a non-final order issued in county court is not answered in a consistent manner. The limits of the circuit court’s appellate jurisdiction are driven in large part by whether the court in question reads 26.012 narrowly or broadly when determining whether a non-final order is subject to interlocutory review. Because the statute only offers an all-or-nothing proposition based on its general language, most of the courts that have considered this issue have either found circuit court jurisdiction all-inclusive of non-final orders or exclusive of non-final orders. There is no middle ground, and no authority to track the jurisdiction conveyed to the district courts of appeal by the Supreme Court in Rule 9.130.
In Shell v. Foulkes, 19 So. 3d 438, 440 (Fla. 4th DCA 2009), the Fourth District Court of Appeal read 26.012 narrowly and found that nothing permitted the circuit court to exercise appellate jurisdiction to review non-final orders “merely entering a default.” The court found that circuit courts “do not have any general jurisdiction under the appellate rules to review non-final orders.”21 The court’s holding, while technically only applicable to “mere” defaults, adopted a narrow reading of 26.012 that would impact all non-final orders subject to review. Similarly, in Zalloum v. River Oaks Community Services Association, 2015 Fla. Cir. LEXIS 55847, at *2 (Fla. 7th Cir. App. Nov. 4, 2015), and Spottswood Cos., Inc. d/b/a The Holiday Inn Key Wester v. Mario and Alina Valencia, 18 Fla. L. Weekly Supp. 792a (Fla. 11th Cir. App. June 6, 2011), the circuit courts sitting in their appellate capacity found that they did not have appellate jurisdiction over non-final orders.
But in American Federated Title Corp v. A & M Florida Properties, LLC, 17 Fla. L. Weekly Supp. 84b (Fla. 11th Cir. App. Dec. 9, 2009), the circuit court found it had authority according to 26.012 to review a temporary injunction via interlocutory appeal. The court focused on the string of concepts in 26.012, and found that because the statute did not exclude interlocutory appeals from the circuit court’s appellate review as it did with the two other enumerated exceptions, the circuit court had appellate jurisdiction over non-final orders.22 If an order was enumerated in the statute, it was excluded, if it was not enumerated, then the order in question would fall within the circuit court’s appellate jurisdiction.
In Broomfield v. American General Financial Services, Inc., 20 Fla. L. Weekly Supp. 556a (Fla. 20th Cir. App. Apr. 1, 2013), the 20th Circuit held that it had jurisdiction to review non-final county court orders compelling arbitration pursuant to 26.102. The court held that 26.012 “plainly states that circuit courts have jurisdiction over appeals from county courts except for two exceptions that are inapplicable to the case at bar.”23 The court found that the “statute does not state that circuit courts only have jurisdiction over final orders, rather it gives broad jurisdiction” and the enumeration of two exceptions, without any mention of non-final orders, “demonstrates that the plain meaning of the statute does not exclude from circuit court appellate review interlocutory orders from a county court.”24 This is in keeping with the Second District’s observation in Bjorkland that the constitution did not make distinctions between appellate review of final and non-final orders in circuit courts and the lack of a distinction in the statute.25
In other circuit court appellate cases, the court’s appellate jurisdiction was arguably invoked, but it is less than clear that the reviewing court considered the question of whether appellate jurisdiction was appropriate. Instead, these courts simply applied the standard of review for non-final orders in the district courts of appeal.26
None of this is to say that review of a non-final order is foreclosed if review of a non-final order issued in county court is sought in circuit court. A circuit court may review non-final orders that are not otherwise appealable where there has been a “departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal.”27
The problem is that the standard of review can be vastly different on a petition for certiorari than it is for an interlocutory appeal of a non-final order. For example, in an appeal of an order compelling arbitration or appraisal to the district court of appeal, factual findings made in ruling on a motion to compel appraisal are reviewed for competent, substantial evidence.28Application of the law to the facts is reviewed de novo.29 Where the trial court makes no factual findings, the appellate court applies the relevant law to the facts in the record de novo.30
However, if a party is required to seek certiorari review of a county court order compelling appraisal, that party is required to demonstrate that the ruling departs from the essential requirements of law and causes irreparable harm.31 A petitioner must demonstrate “(1) a departure from the essential requirements of the law, (2) resulting in a material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.”32
The result of a narrower reading of 26.012 is that it creates two distinct standards of review for two classes of litigants with respect to the same relief based solely on where the suit originates. Where the statute is read broadly, the litigants enjoy the same rights but then a different problem arises in that every non-final order from county court is subject to appellate review, which gives litigants access to relief in circuit court that is not available in the district courts of appeal. As the court’s discussion in Bjorkland suggests, these differences may simply be a reality of a system where the legislature conveys jurisdiction to one set of courts, and the Florida Supreme Court conveys non-final jurisdiction to the other.
But the heart of the problem is reflected in the disconnect between Rule 9.130 and the statute as read by many of the courts. The reality is that the enumerated non-final orders in Rule 9.130 can be reviewed by interlocutory appeal but those same orders are foreclosed from the same review when the original order is rendered in county court. The impact of this limitation, and the necessity of seeking certiorari review, is palpable for parties who commence suit in small claims or county court. Particularly with orders compelling arbitration or appraisal, requiring parties who litigate in small claims and county court to demonstrate a departure from the essential requirements of law may foreclose meaningful review of these issues early on. Given that the Florida Supreme Court found these types of orders sufficiently important to include them in Rule 9.130, along with other preliminary non-final orders, there is a good argument for allowing circuit courts to hear these matters via interlocutory appeal as well. The problem is that it is the legislature, and not the Florida Supreme Court, that must fix the disconnect that has evolved with a narrower reading of 26.012.
While the balance of cases appear to adopt a narrow reading of 26.012 as a limitation on interlocutory appeals in circuit courts, some courts still permit review of non-final orders via interlocutory appeal. However, the more conservative course is to assume that review of a non-final order issued by a county court will only be available, if at all, via certiorari review or other original proceedings in the circuit court.
1 Fla. Const. art. V, 4 (b)(1).
2 Id.; State v. Gaines, 770 So. 2d 1221, 1224 (Fla. 2000). Article V, 4(b)(1) provides that: District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.
3 Fla. Const. art. V, 4(b)(3).
5 Blore v. Fierro, 636 So. 2d 1329, 1332 (Fla. 1994).
6 Article 5, 5(b) provides that “[t]he circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of their jurisdiction. Jurisdiction of the circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by general law.”
8 Fla. Stat. 26.012.
9 Fla. R. App. P. 9.130 provides, in pertinent part: “(a) Applicability. (1) This rule applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law. Review of other non-final orders in such courts and non-final administrative action shall be by the method prescribed by rule 9.100. (2) Appeals of non-final orders in criminal cases shall be as prescribed by rule 9.140. (3) Appeals to the district courts of appeal of non-final orders are limited to those that (A) concern venue; (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions; (C) determine (i) the jurisdiction of the person; (ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment; (iii) in family law matters: a. the right to immediate monetary relief; b. the rights or obligations of a party regarding child custody or time-sharing under a parenting plan; or c. that a marital agreement is invalid in its entirety; (iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy; (v) that, as a matter of law, a party is not entitled to workers’ compensation immunity; (vi) whether to certify a class; (vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law; (viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes; (ix) the issue of forum non conveniens; (x) that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes; or (xi) that, as a matter of law, a party is not entitled to sovereign immunity. (D) grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership.”
10 Fla. R. App. P. 9.130. Rule 9.100 provides, in pertinent part: “(a) Applicability. — This rule applies to those proceedings that invoke the jurisdiction of the courts described in rules 9.030(a)(3), (b)(2), (b)(3), (c)(2), and (c)(3) for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction; and for review of non-final administrative action.”
12 Fla. R. App. P. 9.130(a)(1).
13 Fla. R. App. P. 9.130(a)(2).
14 Compare Fla. Stat. 26.012 with Fla. R. App. P. 9.130.
15 Fla. Stat. 26.012; Fla. Const. art. V, 5.
17 Bjorkland, 924 So. 2d at 974.
20 Id.; see State v. Ratner, 948 So. 2d 700, 704-05 (Fla. 2007) (explaining the interaction between the rules of appellate procedure and the statute, focusing on the manner in which jurisdiction is conveyed via statute to the circuit courts, and sometimes extending to the district courts of appeal).
21 Id. at 440.
22 Id. The court applied the concept of “noscitur a sociis” — a word is known by the company it keeps.
24 Broomfield, 20 Fla. L. Weekly Supp. 556a.
25 Bjorkland, 924 So. 2d at 974.
26 See Santander Consumer USA, Inc., a/k/a Santander Auto Finance v. Richard Muszynski, 21 Fla. L. Weekly Supp. 635a (Fla. 15th Cir. App. Apr. 29, 2014) (appeal of trial court’s non-final order denying motion to compel arbitration and dismiss the action); Litchford & Christopher, P.A. v. Daniel J. Deutsch and Jacqueline L. Deutsch, 16 Fla. L. Weekly Supp. 804a (Fla. 9th Cir. App. June 17, 2009) (appeal from an order compelling arbitration).
27 Fla. R. App. P. 9.030(c)(2); Fla. R. App. P. 9.100(a); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla. 1995); see Graham’s Carpet Cleaning & Restoration a/a/o Alice Gewertz v. State Farm Fla. Ins. Co., 23 Fla. L. Weekly Supp. 318c (Fla. 15th Cir. App. Apr. 20, 2015).
28 Fla. Ins. Guar. Ass’n v. Waters, 157 So. 3d 437, 439-40 (Fla. 2d DCA 2015); Green Tree Servicing, LLC v. McLeod, 15 So. 3d 682, 687 (Fla. 2d DCA 2009).
29 Waters, 157 So. 3dat 440.
30 Fla. Ins. Guar. Ass’n v. Lustre, 163 So. 3d 624, 627-28 (Fla. 2d DCA 2015).
31 Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721-22 (Fla. 2012); Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987).
32 Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011); Bd. of Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002).
HEATHER M. KOLINSKY is an attorney in Orlando. Most recently, she practiced appellate law. She is a member of the Executive Council of The Florida Bar’s Appellate Practice Section and a board member of the Central Florida Association for Women Lawyers.
This column is submitted on behalf of the Appellate Practice Section, Sarah Lahlou-Amine, chair, and Thomas Seider, editor.