Understanding Non-Final Orders and Appealing Before your Case is Over

What is a Non-Final Order in the Florida Appeals Process

To understand what a nonfinal order is, one must understand what makes an order final, as a nonfinal order is simply any order that is not a final order. For a discussion of what makes an order final, the reader is directed to read this article.

The terms “nonfinal order” and “interlocutory order” are used interchangeably in this article, and used interchangeably in legal pleadings, briefs, and opinions generally. Make no mistake, interlocutory order means nonfinal order, it does not mean appealable nonfinal order. As mentioned above, an interlocutory order is only appealable to the extent provided by Florida’s Supreme Court’s rules or to the extent it meets the standards for the issuance of an extraordinary writ. If an interlocutory order is not appealable under either of these two categories, then the order is not appealable until a final order is entered. 

Lastly, as a preliminary matter, when determining whether an order is subject to appellate review, one must always first ask whether the order has been “rendered”. Pursuant to the Florida Rules of Appellate Procedure, an order is rendered when it is both signed by the judge and filed with the clerk of the lower tribunal. If an order is signed by the judge, but not yet filed with the clerk, rendition has not yet occurred, and so an appeal of that order is not ripe. 

Florida Rule of Appellate Procedure 9.130

Effective July 1st, 2024, Florida Rule of Appellate Procedure 9.130 authorizes district courts of appeal to review twenty-two (22) different kinds of nonfinal orders. If an order is appealable under Rule 9.130, a party may immediately appeal the order or the party may wait until after a final order has been entered in the action and appeal the nonfinal order then. 

Moreover, while 9.130 authorizes appellate review of certain nonfinal “orders”, only those portions of the order covered under 9.130 are appealable. By way of example, if a nonfinal order is entered which both grants a temporary injunction and denies a motion to compel another party to produce a certain document, then part of the order granting the injunction is appealable (under Rule 9.130(a)(3)(B)), but the part of the order denying the motion to compel is not subject to review in that same appeal because orders denying motions to compel the production of documents do not fall under Rule 9.130 and are generally not appealable by any extraordinary writ. Put simply, when nonfinal orders include multiple rulings, at least one of which is not appealable, then the portion of the order not appealable will not be subject to appellate review merely because it is a part of the same order that appealable rulings are made in. 

Here is the list of the nonfinal orders appealable under Rule 9.130:

1. Orders determining whether venue is proper or should be transferred. Fla. R. App. P. 9.130(a)(3)(A);
2. Orders regarding temporary injunctive relief. Fla. R. App. P. 9.130(a)(3)(B)
3. Orders that determine the jurisdiction of the person. Fla. R. App. P. 9.130(a)(3)(C)(i);
4. Orders that determine the right to immediate possession of property. Fla. R. App. P. 9.130(a)(3)(C)(ii);
5. Orders in family law cases that determine the right to immediate monetary relief. Fla. R. App. P. 9.130(a)(3)(C)(iii);
6. Orders in family law cases that determine the rights or obligations of a party regarding child custody or time-sharing under a parenting plan. Fla. R. App. P. 9.130(a)(3)(C)(iii);
7. Orders in family law cases that determine that a marital agreement is invalid in its entirety. Fla. R. App. P. 9.130(a)(3)(C)(iii);
8. Orders granting or denying a party’s request for arbitration or to an appraisal under an insurance policy. Fla. R. App. P. 9.130(a)(3)(C)(iv);
9. Orders that determine that, as a matter of law, a party is not entitled to workers’ compensation immunity. Fla. R. App. P. 9.130(a)(3)(C)(v);
10. Orders determining whether to certify a class. Fla. R. App. P. 9.130(a)(3)(C)(vi);
11. Orders that determine that a governmental entity has taken action hat has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes. Fla. R. App. P. 9.130(a)(3)(C)(vii);
12. Orders that determine the issue of forum nonconveniens. Fla. R. App. P. 9.130(a)(3)(C)(viii);
13. Orders that determine that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed. Fla. R. App. P. 9.130(a)(3)(C)(ix);
14. Orders that determine that a permanent guardianship shall be established for a dependent child pursuant to section 39.6221, Florida Statutes. Fla. R. App. P. 9.130(a)(3)(C)(x);
15. Orders that grant or deny the appointment of a receiver, or terminate or refuse to terminate a receivership. Fla. R. App. P. 9.130(a)(3)(D);
16. Orders that grant or deny a motion to disqualify counsel. Fla. R. App. P. 9.130(a)(3)(E);
17. Orders that deny a motion that asserts entitlement to absolute or qualified immunity in a civil rights claim arising under federal law. Fla. R. App. P. 9.130(a)(3)(F)(i);
18. Orders that deny a motion that asserts entitlement to immunity under section 768.28(9), Florida Statutes/ Fla. R. App. P. 9.130(a)(3)(F)(ii);
19. Orders that deny a motion that asserts entitlement to sovereign immunity. Fla. R. App. P. 9.130(a)(3)(F)(iii); and
20. Orders that grant or deny a motion for leave to amend to assert a claim for punitive damages. Fla. R. App. P. 9.130(a)(3)(G);
21. Orders that deny a motion to dismiss on the basis of the qualifications of a corroborating expert witness under subsections 766.102(5)-(9), and (12), Florida Statutes. Fla. R. App. P. 9.130(a)(3)(H); and
22. Orders that determine the entitlement of a party to arbitration, confirm or deny confirmation of an arbitration award or partial arbitration award, or modify, correct, or vacate an arbitration award. Fla. R. App. P. 9.130(a)(3)(I). 

Choosing the Right Time to Appeal: Immediate Appeal or Final Judgement 

That is quite a long list of appealable interlocutory orders. And there are some who have raised concerns that the list is too long and that allowing interlocutory appeals in too many instances can cause delay in trial court proceedings, unnecessary appellate litigation, and an overwhelming burden (in terms of workload) upon the district courts of appeal. 

The litigant can save much time and expense by waiting until a final order or judgment is entered so that they may appeal the final order during the appeal process, along with all interlocutory orders, at once, rather than appealing the orders piecemeal. And for this reason, our appellate rules of procedure allow the litigant to choose between immediately appealing interlocutory appeals that fall under Rule 9.130 or waiting until a final order or judgment is entered. There may be instances where an immediate appeal under Rule 9.130 makes sense, and so it is best to seek guidance from a seasoned Florida appellate attorney whenever there is doubt about which option to choose. 

Writs By Common-Law Certiorari 

When a Florida district court of appeal reviews an interlocutory order under Rule 9.130, it exercises appellate jurisdiction. However, there are certain orders that an appellate court may review by exercising original jurisdiction. An extraordinary writ proceeding is a kind of original proceeding that the appellate court has discretion to preside over. There is no “absolute right” to the issuance of an extraordinary writ. Topps v. State, 865 So. 2d 1253, 1257 (Fla. 2004). Indeed, an appellate court will often decline to consider a petition for an extraordinary writ if the issue may be reviewed by a final or nonfinal appeal. 

Writs can be described as injunctions directed toward the lower tribunal – they generally either compel a lower tribunal to do a certain thing or prohibit the lower tribunal from doing a certain thing. Of the different types of extraordinary writs, writs of certiorari are the only writs that can be aptly described as a mechanism for review of a lower court order. In this article, we discuss only writs of certiorari. 

A nonfinal order that is not subject to review under Rule 9.130 may be reviewable by a petition for writ of certiorari where the party applying for the writ can show that the subject order constitutes: “‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.’” Board of Trustees of Internal Improvement Trust Fund v. American Educational Enterprises, LLC, 99 So. 3d 450, 454 (Fla. 2012), quoting Reeves v. Fleetwood Homes of Florida, Inc., 889 So. 2d 812, 822 (Fla. 2004). 

Navigating Uncertain Grounds for Certiorari Relief 

There is a wealth of case law applying this test to many different kinds of orders, and to comprehensively treat this subject in an article such as this one would be impossible. Suffice it to say that where the litigant or practitioner is considering filing a petition for writ of certiorari, he/she should consult the case law to see if appellate courts have applied this jurisdictional test to the same or to a similar kind of order. There are some kinds of orders that are generally accepted to be reviewable by petition for writ of certiorari. One example of such an order is a “cat-out-of-the-bag” discovery order, where a trial court orders a party to produce to another party certain privileged or confidential information, like attorney-client communications. The appellate courts generally exercise their original jurisdiction to review such orders because the production of “cat-out-of-the-bag” materials is likely to prejudice a party in a way that can never be corrected since, once the cat is out of the bag, the harm has already been done. 

If there is no clear-cut authority upon which the litigant or practitioner can rely when seeking to petition an appellate court for a writ of certiorari, one should tread carefully and be able to present sound, good-faith arguments to meet the standards for such review, lest much time and expense be wasted. 

Navigating Non-Final Appeals in the Florida Appeals Process

In civil matters, there are two broad categories of appealable nonfinal orders: Those that fall under Florida Rule of Appellate Procedure 9.130, and those that are reviewable by petition for an extraordinary writ. Today, Rule 9.130 sets forth twenty-two (22) different kinds of orders that are immediately appealable. However, the litigant has the option to either take the immediate appeal, or wait until a final order is entered and to appeal the nonfinal order then. Petitions for writ of certiorari can be used as a mechanism for appellate review, but only in certain limited circumstances, and the litigant and practitioner are warned not to proceed with a petition for writ of certiorari unless there is a good-faith basis for seeking this kind of relief. 

Entire chapters of Florida Bar appellate practice treatises are dedicated to the subject of what makes an order subject to appellate review. While this article is not intended to provide a full and complete treatment of appealable nonfinal orders, it is a useful starting point which addresses some of the more common questions that arise.

At Valero Law, we see to it that you – the practitioner or litigant – are able to speak with one of our specialised Florida appellate attorneys directly to discuss issues of appellate practice and procedure, and we do not charge for our initial consultations. Contact an experienced attorney today at Valero Law for a free initial consultation.