June 24, 2018

Appellate Court Grants Motion Filed By Bresky Law On Behalf Of Client To Recategorize Appeal Of Permanent Injunction As Appeal From Non-Final Order

While Florida Rule of Appellate Procedure 9.130(a)(3)(B) might seem to indicate that only temporary injunction orders may be appealed as non-final orders under that rule, Bresky Law recently filed a successful motion asking the Third District Court of Appeal to treat an appeal from a Final Judgment of Injunction for Protection Against Dating Violence as an appeal of a non-final order.

The judgment on appeal resulted from the client’s sworn petition for injunction for protection against dating violence filed in the trial court pursuant to section 784.046, Florida Statutes (2017). The trial court found, based on the evidence presented at the evidentiary hearing, that the petitioner was a victim of dating violence and/or he had reasonable cause to believe that he was in imminent danger of becoming a victim of an action of dating violence by the respondent, and that an immediate and present danger of dating violence existed. Therefore, the trial court granted the petition and issued a permanent injunction ordering the respondent to have no contact with the petitioner, among other things.

The respondent filed a pro senotice of appeal of the Final Judgment of Injunction for Protection Against Dating Violence. The Third District Court of Appeal categorized the case as an appeal from a final order, as evidenced by the notation “Final Family Other Notice” in the online court docket. The petitioner, as the Appellee on appeal, retained Bresky Law to defend the trial court’s issuance of the permanent injunction.

Bresky Law filed a motion to recategorize the case as an appeal from a non-final order because non-final appeals are processed more expeditiously than appeals from final orders. Our motion relied on Rule 9.130(a)(3), which enumerates several kinds of orders that are appealable to the district courts of appeal as non-final orders. In particular, Rule 9.130(a)(3)(B) states that appeals from non-final orders to the district courts include those that “grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions” (emphasis added). We concluded that the injunction, albeit permanent, should be treated as a non-final order for appellate purposes under Rule 9.130(a)(3)(B).

We also cited to Chizh v. Chizh, 199 So. 3d 1050, 1051 n.1 (Fla. 4th DCA 2016), where the Fourth District Court of Appeal explained that “a non-final order denying an injunction is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(B), and we recognize that an appeal is generally the appropriate remedy.”

Within a few days, the Third DCA granted our motion to recategorize the appeal as an appeal from a non-final order. The granting of our client’s motion illustrates that even a “final judgment” that seems to conclude the judicial labor may be treated by the district court as an appeal from a non-final order if it is an injunction under Rule 9.130(a)(3)(B). We were very pleased with this result, as recategorizing the case as an appeal from a non-final order is advantageous to our client who desires to have the appeal concluded as quickly as possible.