Appealing post-judgment orders: the path to appellate review under the new rule 9.130(a) (4).

• Author: Seider, Thomas J.
• Position: Florida Rules of Appellate Procedure

Atrial 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 orders (2)--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...