JONATHAN T. GREENE, APPELLANT,
v.
CALIFORNIA FEDERAL BANK, A FEDERAL SAVINGS BANK, APPELLEE
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A Florida appellate court addresses the proper procedure for reviewing a trial court's denial of a motion to stay foreclosure proceedings. The court clarifies that orders denying stays are not appealable as non-final orders under Rule 9.130 and dismisses the appeal.
An order denying a motion to stay is not appealable as a non-final order under Rule 9.130. The court held that stays are not enumerated as appealable orders and should not be equated with injunctions, which are appealable. If the order constituted a departure from essential requirements of law with no adequate remedy by appeal from final judgment, it could be reviewed by certiorari, but such was not the case here.
[1] Orders denying a motion to stay proceedings are not appealable as a non-final appeal under Rule 9.130, Florida Rules of Appellate Procedure.
[2] Appellate review of orders denying a motion to stay a case pending disposition of another case may be available by writ of certiorari if the order constitutes a departure…
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Join FLexlaw to unlock all legal intelligence“The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of non-final judgments serves to waste court resources and needlessly delays final judgment.”
Establishes the foundational policy rationale for limiting non-final appeals
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Join FLexlaw to unlock all legal intelligenceJonathan Greene, a defendant in a mortgage foreclosure action brought by California Federal Bank, moved the trial court to stay the proceedings, alleg…
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KLEIN, Judge.
Defendant in this mortgage foreclosure moved the trial court to stay proceedings alleging that the plaintiff had not complied with 12 U.S.C. section 1701x prior to instituting the foreclosure, and requested that the action be stayed to “permit plaintiff to comply with said statute.” The trial court denied defendant’s motion to stay, defendant filed a notice of non-final appeal, and the appellee moved to dismiss the appeal on the ground that it is not an order subject to review under Rule 9.130, Florida Rules of Appellate Procedure.
Defendant responds to the motion to dismiss by citing Klein v. Royale Group Ltd., 524 So. 2d 1061 (Fla. 3d DCA 1988), in which an action had been stayed as to certain defendants who had asserted the fifth amendment. Nine months later the trial court denied a motion to dissolve the stay, and the moving party filed a non-final appeal. The third district reversed; however, it is not entirely clear whether the court was treating the proceeding as an appeal, or as certiorari under rule 9.040(c) (if party seeks improper appellate remedy, cause shall be treated as if proper remedy had been sought). The court cited authority for review of the order by certiorari, but also suggested review by non-final appeal under the same principles as temporary injunctions. Klein, 524 So. 2d at 1063 n. 1.
In REWJB Gas Investments v. Land O’Sun Realty, Ltd., 643 So. 2d 1107 (Fla. 4th DCA 1994), this court concluded that it had certiorari jurisdiction to review “orders determining motions to stay a case pending the disposition of another ease,” citing Robinson v. Royal Bank of Canada, 462 So. 2d 101 (Fla. 4th DCA 1985). We noted, although we did not adopt, the Klein decision as authority for review as a non-final appeal.
In order to dispel any confusion as to the proper procedure in this district, we hold that review of the type of order involved in this case is not available by non-final appeal. We do not equate a stay, which is not enumerated as an order which is appealable under rule 9.130, with an injunction, which is appealable.
As our supreme court stated in Travelers Ins. Co. v. Bruns, 443 So. 2d 959, 961 (Fla.1984), “[t]he thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of non-final judgments serves to waste court resources and needlessly delays final judgment.” If this order constituted a departure from the essential requirements of law for which there was no adequate remedy by appeal from final judgment, we would treat this appeal as a petition for certiorari. It does not, however, and we therefore dismiss the appeal.
WARNER and PARIENTE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Ophelia Brown v. McKINNON, 964 So. 2d 173 (Fla. 3d DCA 2007)…from a non-final order); Harris v. Lewis State Bank, 482 So. 2d 1378, 1380-81 [*174] (Fla. 1st DCA 1986)(treating an appeal from a non-final order dismissing an action with leave to amend as a petition for cer-tiorari). Cf. Greene v. Cal. Fed. Bank, 658 So. 2d 1027, 1028 (Fla. 4th DCA 1995)(“If this order constituted a departure from the essential requirements of law for which there was no adequate remedy by appeal from final judgment, we would treat this appeal as a petition for certiorari. It does not, howev…
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Urquiza v. Kendall Healthcare Grp., Ltd., 994 So. 2d 476 (Fla. 3d DCA 2008)…ating a clear departure from the essential requirements of law resulting in irreparable harm. See Reeves v. Fleetwood Homes, Inc., 889 So. 2d 812 (Fla.2004); Learn v. Shackelford, 903 So. 2d 335 (Fla. 2d DCA 2005); see also Greene v. Cal. Fed. Bank, 658 So. 2d 1027 (Fla. 4th DCA 1995); Fresh Del Monte Produce, N.V. v. Chiquita Int’l, Ltd., 664 So. 2d 263 (Fla. 3d DCA 1996) (Cope, J., concurring in part and dissenting in part). Kendall Healthcare Group, LTD. filed the present complaint against the Gator defen…
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Learn v. Shackelford, 903 So. 2d 335 (Fla. 2d DCA 2005)…ley v. Cocoa Masonry, Inc., 354 So. 2d 945, 946 (Fla. 2d DCA 1978) (“The stay order may not be reviewed by interlocutory appeal. But we choose to treat the appeal as a petition for certiorari.”) (citation omitted); see also Greene v. Cal. Fed. Bank, 658 So. 2d 1027 (Fla. 4th DCA 1995). Common law writ of certiorari “provides a remedy only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm.” Reeves v. Flee…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Travelers Ins. Co. v. Bruns, 443 So. 2d 959 (Fla. 1984)
- Rewjb GAS Invs. v. Land O' SUN Realty, Ltd., 643 So. 2d 1107 (Fla. 4th DCA 1994)
- Gottlieb v. State, 462 So. 2d 101 (Fla. 4th DCA 1985)
- Zola Klein v. The Royale Grp., Ltd., 524 So. 2d 1061 (Fla. 3d DCA 1988)