RUTH N. MOGUL, APPELLANT,
v.
AARON FODIMAN, ETC., ET AL., AND MAX A. MOGUL, ETC. ET AL., APPELLEES
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In supplementary proceedings following a judgment, the court held that an order denying a motion for protective order in response to a deposition and document request is appealable under Florida Rule of Appellate Procedure 9.130(a)(4) as a non-final order entered after final judgment on an authorized motion.
The order denying the motion for protective order is appealable under Rule 9.130(a)(4) as a non-final order entered after final order on an authorized motion. The rule's language is sufficiently broad to encompass such orders without requiring a distinction based on whether the order affects the validity of the final judgment.
[1] An order denying a motion for a protective order in supplementary proceedings following entry of a final judgment is appealable under Florida Rule of Appellate Procedure…
[2] Florida Rule of Appellate Procedure 9.130(a)(4) permits review of non-final orders entered after a final order on authorized motions.
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Join FLexlaw to unlock all legal intelligence“This is clearly a "non-final order entered after final order on [an] authorized [motion]."”
Establishes that the protective order denial qualifies as an appealable non-final order under Rule 9.130(a)(4)
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Join FLexlaw to unlock all legal intelligenceFollowing entry of a final judgment, the judgment creditor sought to take the deposition of appellant Ruth Mogul, the judgment debtor's wife, and requ…
The full statement of facts, procedural history, and disposition for this case are member content.
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ORFINGER, Judge.
The issue presented by the motion to dismiss is whether, in supplementary proceedings1 following entry of a final judgment, an order denying a motion for protective order is appealable under Florida Rule of Appellate Procedure 9.130(a)(4) (1977).
In the supplementary proceedings, the judgment creditor sought to take the deposition of appellant, the judgment debtor’s wife, and requested production of numerous documents by means of a subpoena duces tecum. The appellant filed a motion for protective order which was denied after hearing, and this appeal followed.
Appellee says that the order in question is not among those non-final orders reviewable by appeal under Florida Rule of Appellate Procedure 9.130(a)(3). In proceedings prior to entry of final judgment, that position is correct. See Briggs v. Salcines, 392 So. 2d 263 (Fla.2d DCA 1980). However, appellant points to subsection (a)(4) of the rule2 which she contends makes this order appealable as an order or an authorized motion entered after final order. Rule 9.130(a)(4) appears broad enough to permit an appeal from the order in question. This is clearly a “non-final order entered after final order on [an] authorized [motion].”
By analogy, an order setting aside a default before judgment was entered has been held not appealable under this rule,3 but an order vacating a default and the final judgment based on it has been appeal-able under the section in question.4 Appel-lee says that the distinction should be made between orders which affect the validity of the final judgment and those which do not, and while that would be a logical distinction, the clear language of the rule does not appear to be that restrictive.
The motion to dismiss the appeal is denied.
MOTION DENIED.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur. . § 56.29, Fla.Stat. (1979).
. Fla.R.App.P. 9.130(a)(4):
Non-final orders entered after final order on motions which suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in Rule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule, (emphasis added).
. Yates v. Roller Skating Rinks, Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980).
. Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla.3d DCA 1981).
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Citator
Cited By (11 total)
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Md. Cas. Co. & N. Ins. Co. of N.Y. v. Century Constr. Corp., 656 So. 2d 611 (Fla. 1st DCA 1995)…ent, all of those cases, save one, either contain no discussion suggesting that the jurisdictional basis for the appeal was in dispute or involve orders which would not otherwise be appealable at a later date. The sole exception is Mogul v. Fodiman, 406 So. 2d 1225 (Fla. 5th DCA 1981). In Mogul, the court, with little discussion, concluded that rule 9.130(a)(4) “appear[ed] broad enough to permit an appeal from” an order denying a motion seeking a protective order to prevent certain discovery in a supplementary…1 / 2
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Exceletech, Inc. v. S.W. Williams, 579 So. 2d 850 (Fla. 5th DCA 1991)…as a party to proceedings supplementary and that the trial court erred in denying its motion to quash service of process upon it. We have jurisdiction of this appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). See Mogul v. Fodiman, 406 So. 2d 1225 (Fla. 5th DCA 1981). In its brief the appellant contends: As a matter of law, prior to implead-ing any party, the trial court should conduct an examination of the judgment creditor or appoint a Master to do this for it. Section 56.29(2), Florida S…
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GACHÉ v. First Union Nat'l Bank OF Fla., 625 So. 2d 86 (Fla. 4th DCA 1993)…otions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule. In Mogul v. Fodiman, 406 So. 2d 1225 (Fla. 5th DCA 1981), the fifth district concluded that the last sentence of the above provision allowed an appeal to be taken from a discovery order in a supplementary proceeding because it was an order entered after final judgment. See also, Largo…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Briggs v. Salcines, 392 So. 2d 263 (Fla. 2d DCA 1980)
- Yates v. Roller Skating Rinks Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980)
- Bache v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981)