PBCBA BAR BULLETINS pbcba_bulletin_March 2019 | Page 7

APPELLATE PRACTICE C o r n e r
How Do I Know if My Order or Judgement is
Appealable
NICHOLE J. SEGAL
As an appellate attorney, I am often
asked by trial attorneys whether an order
or judgment is appealable. Having an
appealable order or judgment is obviously
the first step in the appellate process.
Knowing whether your order or judgment is
appealable is critical because if you do not
timely appeal an appealable final order, you,
and more importantly your client, are out of
luck. See § 23:8.Initiating an appeal, 2 Fla.
Prac., Appellate Practice § 23:8 (2018 ed.)
(noting that the failure to timely file a notice
of appeal is fatal); see also §59.081, Fla. Stat.
This article, while not exhaustive, provides
an overview of the types of orders that can
be appealed from the circuit courts to the
district courts of appeal.
The most common type of appeal is an
appeal of a final judgment or order. The
Florida Constitution guarantees the right
to appeal a final order. Art. V, § 4(b)(1), Fla.
Const. A final judgment or order is one that
disposes of the cause on its merits leaving
no question open for further judicial action
except for the matter of enforcement.
See Howard v. Ziegler, 40 So.2d 776, 777
(Fla. 1949). Generally, the test employed to
determine finality of a judgment or order is
“whether the order … 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.” S. L.
T. Warehouse Co. v. Webb, 304 So.2d 97, 99
(Fla. 1974).

The finality of an order or judgment is not
always clear. Finality is determined by the
effect of the order, not by its title or style.
Thus, “[p]articular words and phrases are
not essential to finality of an order. However,
the use of such phrases does signal a final
adjudication of the cause as between the
parties.” Hoffman v. Hall, 817 So.2d 1057,
1058 (Fla. 1st DCA 2002)(citations omitted).
Orders granting motions to dismiss and
motions for summary judgment are often
subjects of confusion. In both instances,
orders merely granting the motions are not
final, whereas orders dismissing the case or
entering summary judgment are final. See,
e.g., Bd. of County Com’rs of Madison County
v. Grice, 438 So. 2d 392, 394 (Fla. 1983). Thus,
you must pay particular attention to the
specific language used. While there are no
magic words required to establish finality,
look for words and phrases signaling a final
adjudication.

If you are not sure whether your order or
judgment is final, it is safest to appeal the
order to preserve your appellate rights. The
worst-case scenario is that your appeal is
dismissed and you have to refile once a final
order is entered.

If your order or judgment is not final, it
may still be appealable. While there is no
constitutional right to appeal a nonfinal
order, the Florida Constitution allows
district courts to hear appeals from nonfinal
orders “to the extent adopted by the
supreme court.” Art. V, § 4(b)(1), Fla. Const.;
see also Fla.R.App.P. 9.030(b)(1)(B). The
Florida Supreme Court has adopted Rule
9.130, Florida Rules of Appellate Procedure,
to provide for such appeals.

Rule 9.130 provides an exclusive list of
appealable nonfinal orders, including
orders: (1) concerning venue or determining
issues of forum non conveniens; (2) related
to injunctions; (3) that determine personal
jurisdiction; (4) that determine the right to
immediate possession of property; (5) that
determine the right to immediate monetary
relief or child custody in family law matters;
(6) that determine entitlement to arbitration;
(7) that determine that a party is not entitled
to workers’ compensation immunity; and
(8) that determine whether a class should
be certified. Rule 9.140(c)(1), Florida Rules
of Appellate Procedure, provides for review
of certain nonfinal orders by the state in
criminal cases.

It is not always clear whether an order
falls within one of the categories listed
above. For instance, the provision for orders
“concerning venue,” is rather vague. Be
sure to check the caselaw addressing any
relevant provision to see if your order can
be included within its parameters, keeping
in mind that the rule is strictly construed to
limit the pretrial orders subject to review.
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The failure to appeal an appealable
nonfinal order pursuant to Rule 9.130 will
not foreclose the right to seek review of
the order on final appeal. Fla.R.App.P.(h).
In other words, if you have an appealable
nonfinal order, you may choose whether to
appeal the order immediately before the
case has concluded or wait and raise the
issue on plenary appeal.

Finally, if your order or judgment is not an
appealable final or nonfinal order, you may
still be able to obtain immediate review
by writ. District courts of appeal have
jurisdiction to issue writs of habeas corpus,
certiorari, prohibition, quo warranto, and
“other writs necessary to complete exercise
of [their] jurisdiction.” Art. V, § 4(b)(3), Fla.
Const. Carefully review the requirements
for entitlement to each of these alternatives
if you desire immediate review.
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Nichole is an appellate attorney with
Burlington & Rockenbach, P.A. She
specializes in civil appeals and trial
support.