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Review of Nonfinal Orders — An Exception to the Requirement of Finality

Appellate Practice

Under Florida law, an order typically must be final before a party can seek appellate review. This maintains continuity and streamlines litigation, preserves the trial court’s role as the initial arbiter of conflicts, and avoids piecemeal appeals.1 Immediate review over nonfinal orders is only permissible when expressly authorized by Florida rules or when a departure from the essential requirements of law warrants original jurisdiction.2 To determine when review of a specific order is authorized, it is important to distinguish between final and nonfinal orders. If an order is nonfinal, one must determine if it is appealable in accordance with Florida Rule of Appellate Procedure 9.130, or whether another avenue of review, such as an original writ proceeding, must be pursued.

Classifying Orders as Final or Nonfinal
A nonfinal order contemplates continuing judicial labor and typically evades review until the conclusion of a case, when it merges into the final judgment and may be reviewed on plenary appeal.3

[T]he test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.4

This deceptively simple definition is elusive, however, and substance rather than form dictates the analysis. For example, an order granting a motion for summary judgment, without entering final judgment, is typically nonfinal and not appealable because it requires continuing judicial labor.5 Similarly, an order designated as final may not actually be so if it resolves only one element of a claim arising out of the same transaction, condition, or occurrence as remaining claims.6

On the other hand, an order dismissing a complaint without prejudice may be final depending upon the order’s impact and the right to amend.7 A dismissal order is final when a claim can only be pursued by filing a new lawsuit,8 where there was a failure to exhaust administrative remedies and a clear indication that the proceeding must be brought in a different forum,9 where the statute of limitations has expired,10 or where dismissal is based upon a legal defect that cannot be remedied.11 Litigants must be wary of orders characterized as nonfinal that end judicial labor because the failure to appeal within 30 days will eliminate the ability to obtain review. As one court warned after dismissing an untimely appeal where the litigant failed to appeal from an order not labeled as final, “This case is a good example of why it is important to understand what a court order does and not focus only on how the order is labeled.”12

Partial Final Judgments and Multiple Parties or Causes of Action
A partial final judgment may constitute a final order if it completely disposes of one of multiple causes of action that is severable from the remaining counts.13 If claims are interrelated, however, the disposition of one does not necessarily yield a final, appealable order.14 Also, if an order resolves a compulsory counterclaim or if a related cross-claim remains pending involving the same parties, an order disposing of the counterclaim or cross-claim will not be appealable until the court disposes of the primary claim.15 But an order that completely disposes of a lawsuit as to one of multiple parties is final as to that party and must be immediately appealed, even if claims remain pending as to other parties.16 The failure to appeal such an order will preclude review.17

Existence of Insurance Coverage
An order that determines the existence or nonexistence of insurance coverage in a case in which a claim has been made against an insured and coverage is disputed by the insurer may be reviewed as either a final or nonfinal order.18 The Fourth District has held that to be immediately appealable, the order must determine an insurer’s coverage liability and not merely a duty to defend.19 But recently the Second District reiterated that the rule does not expand jurisdiction, but merely identifies the method for reviewing an otherwise final order.20

Motions for Rehearing
A motion for rehearing will not toll rendition of a nonfinal order.21 This can have serious consequences if an immediate appeal is desired — or required. For example, an order denying a motion to vacate judgment under Fla. R. Civ. P. 1.540 is reviewed as a nonfinal order, but is necessarily post-judgment and cannot “merge” into a final judgment. Furthermore, a motion for rehearing directed toward such an order will not toll rendition, so the appeal must be initiated within 30 days from the order denying the motion to vacate or the ability to appeal will be lost.22

Categories of Appealable Nonfinal Orders
If an order is nonfinal, it is only immediately appealable if it falls within one of the categories identified in Rule 9.130. Multiple nonfinal orders may be appealed together as long as each order is independently appealable, but appealing a nonfinal order does not create “tag-along” jurisdiction relating to other nonfinal orders that are not independently appealable.23

Orders determining venue are immediately appealable.24 When appealing a transfer order, the district court overseeing the transferor court addresses the ruling.25 If other appealable orders are entered contemporaneously with the transfer order, they will also be appealed to the transferor court’s district. If an independently appealable nonfinal order is entered after entry of the order transferring venue, however, review is taken to the district court overseeing the transferee court.26

Injunction Orders
Injunction orders are immediately appealable whether they grant, dissolve, or modify an injunction.27 An order need not be characterized as an injunction order if it actually enjoins or mandates action.28 Regardless of its title, an order may be immediately reviewable if it 1) has the practical effect of granting or denying an injunction; 2) has serious, possibly irreparable consequences; and 3) can only be effectively challenged by immediate appeal.29

Personal Jurisdiction
Orders determining personal jurisdiction are immediately reviewable30 and typically arise in connection with “service of process or the applicability of the long arm statute to nonresidents.”31 An order quashing service of process is immediately reviewable; however, an order denying a motion to dismiss for untimely service is not appealable because it does not actually resolve the jurisdictional issue.32

Right to Immediate Possession of Property
The next category of appealable nonfinal orders are those that determine the right to immediate possession of property.33 The order does not have to actually transfer possession, but need only determine the right thereto, such as an order vacating a certificate of title or an eminent domain order.34

Appealable nonfinal orders under this category have involved attachment and replevin, but there has been confusion regarding garnishment orders.35 In 5361 N. Dixie Highway, Inc. v. Capital Bank, 658 So. 2d 1037, 1037-38 (Fla. 4th DCA 1995), the court found an order denying a motion to dissolve a writ of garnishment to be immediately appealable, but acknowledged possible conflict with Ramseyer v. Williamson, 639 So. 2d 205 (Fla. 5th DCA 1994), which rejected the immediate appealability of such an order.36

Another example of inconsistent treatment arises in connection with civil contempt orders. A contempt order does not fall within Rule 9.130; yet, certain courts have authorized immediate appeals under Rule 9.130(a)(3)(C)(ii), while others have relegated such review to original writ proceedings.37

Right to Immediate Monetary Relief or Child Custody in Family Law Matters
An order determining the right to immediate monetary relief or child custody in a family law matter is immediately appealable. However, the rule only applies to family law matters and not to dependency proceedings.38

Entitlement to Arbitration, Worker’s Comp Immunity, and Qualified Immunity in a Civil Rights Claim
Nonfinal orders relating to entitlement to arbitration and certain forms of qualified immunity are immediately appealable because each concerns the right to be free from litigating in a judicial forum.39 Arbitration is historically favored, and a litigant’s agreement to arbitrate a dispute enhances judicial economy. 40 The Florida Supreme Court relatively recently held that an appraisal provision in an insurance policy is not an agreement to arbitrate and not immediately appealable, overruling prior inconsistent precedent.41

Orders determining that a party is not entitled to workers’ compensation or qualified immunity in a civil rights lawsuit are immediately appealable, but only if the decision is based on law, rather than unresolved factual issues. A decision based upon disputed or undeveloped facts will not be immediately appealable.42

Class Certification and Appointment or Termination of a Receivership
Orders that grant or deny class certification are immediately appealable, as are orders that grant or terminate appointment of a receivership.43

Inordinate Burden of Real Property
An order determining that a governmental entity has inordinately burdened private property in an action under the Bert J. Harris, Jr., Private Property Rights Protection Act is immediately appealable.44

Nonfinal Orders Entered After Final Order
Orders entered after a final order on authorized motions are immediately reviewable.45 Nonfinal orders entered on motions that suspend rendition, however, are not independently reviewable, but toll rendition of the final order.46 Thus, when a trial court enters a final order, an authorized and timely-served motion for rehearing tolls rendition until disposition of the motion. Once the trial court rules upon the tolling motion, it renders the prior order for purposes of appeal.

One notable exception is an order granting a motion for new trial, which is a hybrid that is nonfinal in form yet appealable as final under Fla. R. App. P. 9.110; however, a motion for rehearing of such an order will not toll the time for seeking review.47 Conversely, a stand-alone order denying a motion for new trial is neither considered a final order nor an appealable nonfinal order.48 Instead, review must be sought from the ultimate final judgment that will be rendered once the trial court denies the new trial motion.

Orders on Motions for Relief from Judgment
Orders denying motions to vacate a judgment entered pursuant to Fla. R. Civ. P. 1.540 or its small claims and family law equivalents are reviewable in the nature of nonfinal orders.49 On the other hand, an order granting a motion to vacate default is not immediately appealable.50

Nonfinal orders are only reviewable under narrow circumstances. While some nonfinal orders fall directly within Rule 9.130, others are more difficult to characterize. As an overriding principle, appellate courts will construe matters to limit immediate appealability. This maintains the necessary equilibrium between trial and appellate jurisdiction while recognizing that certain orders warrant immediate review as a matter of right.

1 Travelers Ins. Co. v. Bruns, 443 So. 2d 959, 961 (Fla.1984).
2 This article addresses only civil nonfinal orders and does not discuss original proceedings.
3 Fla. R. App. P. 9.130(g).
4 S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974).
5 McQuaig v. Wal-Mart Stores, Inc., 789 So. 2d 1215 (Fla. 1st D.C.A. 2001).
6 Santana v. Florida Int’l Univ., 922 So. 2d 242, 243 (Fla. 3d D.C.A. 2006); One Thousand Oaks, Inc. v. Dade Sav. & Loan Ass’n, 417 So. 2d 1135, 1136 (Fla. 5th D.C.A. 1982); see also Couch v. Tropical Breeze Resort Ass’n, 867 So. 2d 1219 (Fla. 1st D.C.A. 2004).
7 Compare Augustin v. Blount, Inc., 573 So. 2d 104, 105 (Fla. 1st D.C.A. 1991) (holding dismissal without prejudice to amend complaint in same action is not final), with Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451, 452 (Fla. 1st D.C.A. 1993) (holding dismissal without prejudice to raise issues in a separate future action is final).
8 Carlton, 621 So. 2d at 452.
9 Hollingsworth v. Brown, 788 So. 2d 1078, 1079 n.1 (Fla. 1st D.C.A. 2001); see Hinote v. Ford Motor Co., 958 So. 2d 1009 (Fla. 1st D.C.A. 2007) (dismissing appeal when it was clear from the context of the order that the court intended to allow litigant to cure pleading defect and was, therefore, not final).
10 Walden v. Adekola, 773 So. 2d 1218, 1219 (Fla. 3d D.C.A. 2000).
11 Peterson Homes, Inc. v. Johnson, 691 So. 2d 563, 546 (Fla. 5th D.C.A. 1997).
12 Boyd v. Goff, 828 So. 2d 468, 469 (Fla. 5th D.C.A. 2002).
13 Fla. R. App. P. 9.110(k).
14 SC. Read, Inc. v. Seminole County Sch. Bd., 932 So. 2d 1255, 1256 (Fla. 5th D.C.A. 2006) (dismissing appeal when order was not final because it did not dispose of all factually related counts as to two parties); Shephard v. Ouellete, 854 So. 2d 251, 252 (Fla. 5th D.C.A. 2003) (holding that order labeled as a “partial final judgment” was not appealable because it neither disposed of a case as to a party or completely resolved an issue that was totally independent of matters left to be resolved).
15 Key Credit, Inc. v. Espirito Santo Bank of Fla., 610 So. 2d 568, 569 (Fla. 3d D.C.A. 1992) (involving counterclaim); Morris v. Painewebber, Inc., 852 So. 2d 352 (Fla. 1st D.C.A. 2003) (involving cross-claim); but see Elkind v. Knox, 933 So. 2d 1264 (Fla. 4th D.C.A. 2006) (order appealable as final order when it disposed of claim as to appellant and pending cross-claim did not affect appellant).
16 Fla. R. App. P. 9.110(k).
17 Ammons v. Okeechobee County, 710 So. 2d 641, 643 (Fla. 4th D.C.A. 1998).
18 Fla. R. App. P. 9.110(m); Canal Ins. Co. v. Reed, 666 So. 2d 888 (Fla. 1996).
19 Nationwide Mut. Ins. Co. v. Harrick, 763 So. 2d 1133, 1134 (Fla. 4th D.C.A. 1999).
20 Centennial Ins. Co. v. Life Bank, 953 So. 2d 1, 3-4 (Fla. 2d D.C.A. 2006).
21 Manna Provisions Co. v. Blume, 417 So. 2d 832 (Fla. 1st D.C.A. 1982); Nationwide Ins. Co. v. Forrest, 682 So. 2d 672 (Fla. 4th D.C.A. 1996).
22 Talley v. Canal Indem. Co., 558 So. 2d 1088 (Fla. 4th D.C.A. 1990).
23 Consultants & Designers v. Brown, 677 So. 2d 915, 917 (Fla. 1st D.C.A. 1996); RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002, 1003 (Fla. 3d D.C.A. 1993).
24 Fla. R. App. P. 9.130(a)(3)(A). There has been some disagreement over whether an order dismissing a case for improper venue can be treated as either final or nonfinal. Cf. Grice v. Bd. of County Comm’rs of Madison County, 400 So. 2d 801 (Fla. 1st D.C.A. 1981) (concluding that dismissal order for improper venue was final and tolled by a motion for rehearing), with Colin v. State, Dep’t of Transp., 423 So. 2d 1020 (Fla. 4th D.C.A. 1982) (concluding that dismissal order for improper venue was not final and, therefore, not tolled by motion for rehearing).
25 Fla. R. App. P. 9.040(b)(2)(A).
26 Fla. R. App. P. 9.040(b)(2)(B).
27 Fla. R. App. P. 9.130(a)(3)(B).
28 Array v. Alberigi, 832 So. 2d 873, 874 (Fla. 5th D.C.A. 2002).
29 Miami Heat Ltd. P’ship v. Leahy, 682 So. 2d 198, 201 (Fla. 3d D.C.A. 1996); see also CMR Dist., Inc. v. Resolution Trust Corp., 593 So. 2d 593, 594 (Fla. 3d D.C.A. 1992) (order requiring deposit of rents into account is immediately appealable in the nature if an injunction order); but see Judicial Watch, Inc. v. Carroll, 776 So. 2d 300, 302 (Fla. 4th D.C.A. 2000) (applying the three-part test in Miami Heat to reject reviewability of an order that merely required notice to be given before allowing an inspection in connection with an election contest).
30 Fla. R. App. P. 9.130(a)(3)(c)(i).
31 Fisher v. Int’l Longshoremen’s Ass’n, 827 So. 2d 1096, 1097 (Fla. 1st D.C.A. 2002).
32 Compare Chapman v. Sheffield, 750 So. 2d 140, 142 (Fla. 1st D.C.A. 2000), with Thomas v. Silvers, 748 So. 2d 263, 265 (Fla. 1999), and Jennings v. Montenegro, 792 So. 2d 1258, 1261 (Fla. 4th D.C.A. 2001).
33 Fla. R. App. P. 9.130(a)(3)(C)(ii).
34 Household Fin. & Mortgage Co. v. Osta, 862 So. 2d 885, 886 (Fla. 5th D.C.A. 2003) (involving order vacating a certificate of title); Sec. Mgmt. Corp. v. State, Dep’t of Trans., 718 So. 2d 339, 340 (Fla. 4th D.C.A. 1998) (involving order of taking in action for eminent domain); see also First Hanover v. Vazquez, 848 So. 2d 1188, 1189 (Fla. 3d D.C.A. 2003) (involving order denying landlord’s motion for default and writ of possession); Fed. Home Loan Mortgage Corp. v. Molko, 584 So. 2d 76, 77 (Fla. 3d D.C.A. 1991) (concerning immediate possession of rents under a mortgage).
35 See Cerna v. Swiss Bank Corp. (Overseas) S.A., 503 So. 2d 1297 (Fla. 3d D.C.A. 1987) (concerning attachment order); Midway Mfg. Co. v. Family Fun Corp., 668 So. 2d 327 (Fla. 4th D.C.A. 1996) (concerning replevin order).
36 The Florida Bar’s Appellate Court Rules Committee recently recommended adoption of a rule expressly authorizing appeals from an order denying a motion to dissolve a writ of garnishment, but the Florida Supreme Court declined to adopt the rule at that time. In re: Amendments to The Florida Rules of Appellate Procedure (Out of Cycle), 941 So. 2d 352, 353 (Fla. 2006).
37 In Knorr v. Knorr, 751 So. 2d 64, 65 (Fla. 2d D.C.A. 1999), the Second District noted that contempt orders receive inconsistent treatment among certain districts, but did not certify a conflict. In Alves v. Barnett Mortgage Co., 688 So. 2d 459 (Fla. 4th D.C.A. 1997), the Fourth District exercised jurisdiction over a challenge to a prejudgment contempt order as a nonfinal appeal under Rule 9.130(a)(3)(C), albeit without designating the subcategory. Id. at 460 n.1.
38 Fla. R. App. P. 9.130(a)(3)(C)(iii); see, e.g., Dep’t of Health & Rehabilitative Servs. v. Honeycutt, 609 So. 2d 596 (Fla. 1992); B.A.G. v. Dep’t of Children & Families, 860 So. 2d 498, 500 (Fla. 1st D.C.A. 2003); Nicholson v. Nicholson, 671 So. 2d 821 (Fla. 1st D.C.A. 1996). The Florida Bar Appellate Court Rules Committee recently attempted to amend Rule 9.130 to include dependency proceedings, but the Florida Supreme Court declined to adopt the recommendation. See In Re: Amendments to the Florida Rules of Appellate Procedure, 941 So. 2d at 353.
39 Fla. R. App. P. 9.130(a)(3)(iv), (v), (vii).
40 Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999) (noting that courts favor agreements to arbitrate).
41 Allstate Ins. Co. v. Suarez, 833 So. 2d 762, 765-66 (Fla. 2002).
42 Tucker v. Resha, 610 So. 2d 460 (Fla. 1st D.C.A. 1992); Footstar Corp. v. Doe, 932 So. 2d 1272, 1274 (Fla. 2d D.C.A. 2006); Bd. of Regents of State v. Snyder, 826 So. 2d 382, 386 (Fla. 2d D.C.A. 2002).
43 Fla. R. App. P. 9.130(a)(3)(C)(vi), (a)(6) and 9.130(a)(3)(D).
44 Fla. R. App. P. 9.130(a)(3)(C)(viii). This amendment made the rule consistent with Fla. Stat. §70.001, which includes an appellate component. In re: Amendments to the Florida Rules of Appellate Procedure, 894 So. 2d 202, 203 (Fla. 2005) (noting that prior to amendment, statute purporting to grant a right to immediate appellate review was a nullity).
45 Fla. R. App. P. 9.130(a)(4); Fla. R. App. P. 9.020(h) (defining rendition and identifying authorized tolling motions).
46 See Skaf v. Skaf, 491 So. 2d 1265, 1266 (Fla. 4th D.C.A. 1986) (noting that appellate courts do not have the authority to review an order denying a motion for rehearing which is a nonfinal, tolling motion); but see Marsh & McLennan, Inc. v. Aerolineas Nacionales del Ecuador, 530 So. 2d 971, 973 n.3 (Fla. 3d D.C.A. 1988) (suggesting that the court should have considered an order denying a motion that suspends rendition as a final order).
47 Fla. R. App. P. 9.130(a)(4); Fla. R. App. P. 9.020(h); Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987); Tedder v. Visually Impaired Persons of S.W. Fla., 819 So. 2d 274, 275 (Fla. 2d D.C.A. 2002) (noting that “absent fraud or clerical error, a new trial order is not subject to a motion for rehearing or reconsideration”); Polk County v. Sofka, 730 So. 2d 389, 393 (Fla. 2d D.C.A. 1999).
48 Maxwell v. Nugget Oil, Inc., 744 So. 2d 1203 (Fla. 1st D.C.A. 1999).
49 Fla. R. App. P. 9.130(a)(5).
50 Graham Elecs., Inc. v. Keeser, 433 So. 2d 34, 35 (Fla. 5th D.C.A. 1983).

Jack R. Reiter is board certified in appellate practice and chairs the appellate department at Adorno & Yoss LLP. He served as chair of the Appellate Court Rules Committee in 2005-2006 and vice chair of the Appellate Section of the Dade County Bar Association in 2007-2008. He is currently the editor of the Appellate Practice Section’s journal, The Record, and a member of the Appellate Certification Committee. He graduated from the University of Florida College of Law with high honors and is a member of the Order of the Coif.

This column is submitted on behalf of the Appellate Practice Section, Steven Brannock, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.

Appellate Practice