DONALD GACHÉ AND D.G. ENTERPRISES, INC., A FLORIDA CORPORATION, PETITIONERS,
v.
FIRST UNION NATIONAL BANK OF FLORIDA, RESPONDENT
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The court held that a post-judgment order initiating a charging order proceeding is not reviewable by certiorari or as a non-final order under Fla.R.App.P. 9.130(a)(4).
[1] Certiorari is not available to review post-judgment orders compelling the production of financial information in aid of collection, as such orders do not typically cause…
[2] Orders entered in proceedings to aid collection of a judgment are not reviewable as non-final orders under Fla.R.App.P. …
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Join FLexlaw to unlock all legal intelligencePetitioners sought review of a post-judgment order in a collection proceeding. The order subjected a partnership interest to a charging order and requ…
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KLEIN, Judge.
Petitioners seek certiorari review of a post-judgment order entered in proceedings to aid collection of the judgment. We conclude the order is not reviewable by certiorari nor as an order entered after final judgment under Fla.R.App.P. 9.130(a)(4).
Petitioner Gaché signed a promissory note to respondent First Union. Petitioner D.G. Enterprises, Inc. pledged its shares of profits and proceeds from its 50% partnership interest in Via Rosa Partners, as security for the note. First Union obtained a summary judgment against Gaché and D.G. Enterprises, Inc., which provided for a money judgment against Gaché and further provided that First Union was entitled, by virtue of the assignment and pledge, to all proceeds and distributions payable to D.G. Enterprises as a result of its partnership interest in Via Rosa Partners.
First Union then filed an application for a charging order pursuant to section 620.-695(1), Florida Statutes (1991), which provides a process for a judgment creditor to pursue an interest in a partnership owned by the judgment debtor. The order entered on the application provides that the interest of D.G. Enterprises, as a partner in Via Rosa Partners, is subject to a charging order in favor of First Union; requires D.G. Enterprises to file a sworn answer reporting amounts distributable to D.G. Enterprises; requires Gaché and D.G. Enterprises to show cause at a hearing why an order should not be entered requiring Via Rosa to pay any such amounts due D.G. Enterprises to First Union; and requires production of financial information by D.G. Enterprises as to its interest in Via Rosa Partners.
Gaché and D.G. Enterprises seek certiorari arguing that this financial information should not be produced because First Union is not entitled to a charging order under section 620.695, Florida Statutes. Since 'wrongfully having to produce financial information is not the type of irreparable harm to justify granting certiorari, Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987), we deny the petition. We also consider, however, whether the order is reviewable as a non-final order under rule 9.130(a)(4), which provides for review of:
Non-final orders entered after final order on motions that 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.
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 Hospital Owners, Ltd. v. Gorman, 408 So. 2d 597 (Fla. 2d DCA 1981).
The most comprehensive discussion of this issue is found in the dissenting opinion of Judge Hurley in Tubero v. David L. Ellis, 469 So. 2d 206 (Fla. 4th DCA 1985) (affirming without opinion). He concluded that non-final orders for discovery in supplementary proceedings should not be appealable merely because they are entered after a final judgment, notwithstanding the apparent broad language of the rule. As Judge Hurley pointed out, it makes no sense to allow an appeal from a discovery order entered post-judgment, when the same discovery order entered prior to judgment would not be appealable. He cited Peterson v. Peterson, 429 So. 2d 83 (Fla. 4th DCA 1983), in which a wife moved under Fla.R.Civ.P. 1.540(b) to set aside a final judgment of dissolution because of fraud. The trial court denied the husband’s motion to dismiss and the husband appealed pursuant to rule 9.130(a)(4). This court dismissed the appeal, holding that the rule did not authorize that type of non-final appeal. It is clear from Peterson that this court does not read rule 9.130(a)(4) as automatically permitting the appeal of all orders entered after final judgment.
Consistent with Peterson are Sverdahl v. Farmers and Merchants Savings Bank, 582 So. 2d 738 (Fla. 4th DCA 1991) (appeal from order impleading third party in supplementary proceedings dismissed for lack of jurisdiction), and Barnett Bank of Broward County v. Tabatchnick, 401 So. 2d 1166 (Fla. 4th DCA 1981) (appeal from order denying motion in post-judgment garnishment proceeding dismissed for lack of jurisdiction).
The order entered here, pursuant to section 620.695(1), is not final. It merely initiates “a flexible court-supervised substitute for the more disruptive process of execution by the sheriff.” Krauth v. First Continental Dev-Con, Inc., 351 So. 2d 1106 (Fla. 4th DCA 1977). In the event Gaché and D.G. Enterprises do not show cause why the interest in the partnership should not inure to the benefit of First Union, the court will enter an order providing for a recovery by First Union. That order will be appealable as a final judgment, and the petitioners will then have the opportunity to argue the correctness of the order which they ask us to review now.
We deny certiorari, conclude that this order is not appealable, and certify conflict with Mogul v. Fodiman, 406 So. 2d 1225 (Fla. 5th DCA 1981).
Certiorari denied.
POLEN and FARMER, JJ., concur.
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Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994)…of those orders entered after final judgment to those entered “on authorized motions” we conclude that an order determining entitlement to attorney’s fees was not contemplated by that rule. As we recently held in Gache’ v. First Union National Bank, 625 So. 2d 86 (Fla. 4th DCA 1993), not all orders entered after final judgment are individually appealable under 9.130(a)(4). See also, Sverdahl v. Farmers and Merchants Savings Bank, 582 So. 2d 738 (Fla. 4th DCA 1991); Peterson v. Peterson, 429 So. 2d 83 (Fla. 4…
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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)…broad enough to permit an appeal from” an order denying a motion seeking a protective order to prevent certain discovery in a supplementary proceeding. Id. at 1226. We find more persuasive the recent decision in Gaché v. First Union National Bank, 625 So. 2d 86 (Fla. 4th DCA 1993). In Gaché, the appellants, who were judgment debtors, sought review of an order directing one of them to produce certain financial information in a post-judgment proceeding in aid of collection. The court concluded that, notwiths…
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Zureikat v. Alwad Al Shaibani, 944 So. 2d 1019 (Fla. 5th DCA 2006)…an, 406 So. 2d 1225 (Fla. 5th DCA 1981); but see Maryland Cas. Co. v. Century Constr. Corp., 656 So. 2d 611, 612 (Fla. 1st DCA 1995) (holding that review must await entry of a final order in the third-party action); Gache’ v. First Union Nat’l Bank, 625 So. 2d 86, 87 (Fla. 4th DCA 1993) (denying review of order to disclose financial information in post-judgment proceedings). Zureikat argues that the imposition of the equitable lien on his real property in a proceeding supplementary was barred by the statute…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Sverdahl v. Farmers & Merchs. Sav. Bank, 582 So. 2d 738 (Fla. 4th DCA 1991)
- Krauth v. First Cont'l Dev-Con, Inc., 351 So. 2d 1106 (Fla. 4th DCA 1977)
- Largo Hosp. Owners, Ltd. v. David Gorman in Bankr. for Int'l Glass & Mfg. Co., Inc., 408 So. 2d 597 (Fla. 2d DCA 1981)
- Hughes v. Sec. Eng'g, Inc., 406 So. 2d 1225 (Fla. 4th DCA 1981)
- Mogul v. Fodiman, 406 So. 2d 1225 (Fla. 5th DCA 1981)
- Barnett Bank OF Broward Cnty. v. Tabatchnick, 401 So. 2d 1166 (Fla. 4th DCA 1981)
- Peterson v. Peterson, 429 So. 2d 83 (Fla. 4th DCA 1983)
- Moshe Tubero v. Ellis, 469 So. 2d 206 (Fla. 4th DCA 1985)