Little Arch Creek Properties, Inc. v. Medical Facilities Development, Inc., 97-1985

• Decision Date: 10 September 1997
• Docket Number: No. 97-1985,97-1985
• Citation: 698 So.2d 926
• Parties: 22 Fla. L. Weekly D2147 LITTLE ARCH CREEK PROPERTIES, INC., Appellant, v. MEDICAL FACILITIES DEVELOPMENT, INC., Appellee.
• Court: Florida District Court of Appeals

Page 926

698 So.2d 926

22 Fla. L. Weekly D2147

LITTLE ARCH CREEK PROPERTIES, INC., Appellant, v. MEDICAL FACILITIES DEVELOPMENT, INC., Appellee.

No. 97-1985.

District Court of Appeal of Florida Third District.

Sept. 10, 1997.

Hornsby, Sacher, Zelman, Stanton, Paul & Beiley and Stanley A. Beiley, Miami, for appellant.

Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer, Fort Lauderdale, for appellee.

Before COPE, GODERICH and SHEVIN, JJ.

On Motion to Dismiss

COPE, Judge.

We grant the motion to dismiss this appeal brought in postjudgment proceedings.

In the underlying action, plaintiff-appellee Medical Facilities Development, Inc., filed a specific performance suit against defendant-appellant Little Arch Creek Properties, Inc. Plaintiff filed a lis pendens and posted a substantial bond. Ultimately, judgment was entered in defendant's favor.

After judgment, defendant filed a motion for damages against the surety on the lis pendens bond. See Fla. R. Civ. P. 1.625. Defendant sought several distinct items of damages, including attorney's fees incurred in the underlying proceeding. The trial court entered a partial summary judgment denying the attorney's fees portion of the damages claim. The trial court has not yet ruled on defendant's other claims against the surety bond.

Defendant has appealed the adverse partial summary judgment. Plaintiff has moved to dismiss the appeal.

Defendant argues that this appeal is authorized by the second sentence of Florida Rule of Appellate Procedure 9.130(a)(4), which (with exceptions not applicable here) states that "[o]ther non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule." ¹ At first blush, the appeal appears to fit within the language of the rule, because defendant filed an authorized post-judgment motion under Florida Rule of Civil Procedure 1.625, and the order which is being appealed is non-final.

However, this court has rejected the proposition that all post-judgment orders are appealable under Rule 9.130(a)(4). In Grafman v. Grafman, 488 So.2d 115 (Fla. 3d DCA 1986), the court explained that where a post-judgment motion in effect initiates a new proceeding which will culminate in a new final order, the non-final orders entered in the new proceeding "must be considered non-final orders entered prior to final order, not after final order, and accordingly are not appealable as 'non-final orders entered after final order' under Fla. R.App. P. 9.130(a)(4)." 488 So.2d at 118.

In Grafman, there had been a final judgment of dissolution of marriage. Later one of the parties filed a motion for modification. During the modification proceeding, the court rescinded an order referring the matter to the general master, and the former wife appealed. In dismissing the appeal, this court noted that the motion for modification in effect initiated another trial-type proceeding which will culminate in a final order, appealable as such. See 488 So.2d at 117. To construe Rule 9.130(a)(4) to allow an immediate appeal of all post-judgment rulings "would mean all such orders entered in these original proceedings to modify final judgment of marriage dissolution would be appealable under this rule--a thoroughly irrational result plainly not contemplated by the said rule." 488 So.2d at 118. Adopting the same analysis of Rule 9.130(a)(4) are Maryland Casualty Co. v. Century Construction Corp., 656 So.2d 611, 611-12 (Fla. 1st DCA 1995), and Gache v. First Union National Bank, 625 So.2d 86, 87 (Fla. 4th DCA 1993); see also Machado v. Foreign Trade,...