EMMANUEL O. DECIUS v. DENISE S. DECIUS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EMMANUEL O. DECIUS,
Appellant,
v.
DENISE S. DECIUS,
Appellee.
No. 4D22-3254
[April 12, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Ashley C. Zuckerman, Judge; L.T. Case No.
502021DR004195XXXMB.
Jessica L. Underwood, Robin Bresky, and Jonathan Mann, of Schwartz
Sladkus Reich Greenberg Atlas LLP, Boca Raton, for appellant.
Carlton Pierce of Carlton Pierce, P.A., Boynton Beach, for appellee.
EN BANC
SUA SPONTE REDESIGNATION OF APPEAL
TO A PETITION FOR WRIT OF CERTIORARI
FORST, J.
Appellant Emmanuel Decius appeals the trial court’s pre-judgment
order finding him in willful contempt for failing to provide property records
pursuant to the trial court’s previous order granting Appellee Denise
Decius’s motion for civil contempt, enforcement, and sanctions. We
consider this case en banc to recede from our prior line of cases treating
pre-judgment contempt orders as appealable nonfinal orders. We now
hold that pre-judgment contempt orders are appealable nonfinal orders
only if the ordered sanction falls within the subsections of Florida Rule of
Appellate Procedure 9.130(a)(3). Since Appellant seeks review of an order
solely finding him in contempt, and contempt alone is not an enumerated
category of Rule 9.130(a)(3), we sua sponte treat Appellant’s notice of
appeal as a petition for writ of certiorari, and order Appellant to file a
petition and appendix, as set forth below.
Background
This appeal arises from Appellant’s petition for dissolution of marriage
and relates to Appellant’s formerly or currently owned real property located
in Haiti. During the proceedings—which have not yet culminated in a final
judgment—the trial court found Appellant ignored multiple discovery
orders related to the Haiti property, by either failing to timely provide the
discovery or by failing to provide certain documents.
Due to these failures, the trial court granted Appellee’s motion for civil
contempt, enforcement, and sanctions, requiring Appellant to provide “3
years of Real Property Records.” Several months later, Appellee filed a
motion for civil contempt based on Appellant’s noncompliance with the
aforementioned trial court order.
At the hearing on Appellee’s civil contempt motion, the trial court found
that Appellant gave vague responses and was seemingly confused as to
what records were required by the trial court’s order. The trial court
permitted Appellee to file an amended contempt motion, placing Appellant
on notice that he had failed to comply with the request for real property
records. After this amended motion was filed, the trial court asked
Appellant whether he had provided the records. Appellant confirmed he
had not.
The trial court found that Appellant willfully had failed to comply with
the Court order requiring him to provide real property records. The court
had not seen any indication Appellant “ever complied, nor attempted to
comply with” its order in the eight months that had transpired since the
order was issued. Additionally, the court found that Appellant “gave
vague, misleading, and obfuscatory responses when questioned about
property he owns, leases, and/or controls.” The court noted that Appellant
“had the ability to previously comply and that he has the current ability to
comply and that he simply continues to ignore” the court’s order requiring
him to provide the real property records.
Consequentially, the trial court adjudicated Appellant to be in contempt
and remanded him to the Palm Beach County jail for a period of thirty
days. Per the order, Appellant could purge himself of this contempt by
filing the three years of real property records within thirty days, or by
providing a sworn and notarized affidavit listing all properties he has
owned within the last four years and any income he received from the
properties during that time frame. Additionally, the court directed that
“[l]aw enforcement shall take no action at this time pursuant to the ability
to purge.”
Appellant now appeals this pre-judgment contempt order.
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Analysis
We write to address the extent to which Florida Rule of Appellate
Procedure 9.130 authorizes review of pre-judgment contempt orders.
The method of reviewing a civil contempt order differs depending on
whether it is a post or pre-judgment contempt order. Post-judgment
contempt orders are reviewed as final appeals. See, e.g., Kozel v. Kozel,
260 So. 3d 337 (Fla. 2d DCA 2018) (reviewing a contempt order on post-
judgment issues as a final order pursuant to Rule 9.030). Here, however,
the trial court has yet to issue a final judgment, so the court’s contempt
order cannot be reviewed as a final order.
For pre-judgment contempt orders, two scenarios exist. In the first
scenario, if the party found in contempt is taken into custody, then the
proper method for seeking review is a petition for a writ of habeas corpus.
See Elliott v. Bradshaw, 59 So. 3d 1182, 1183 n.1 (Fla. 4th DCA 2011).
Here, the order states that “law enforcement shall take no action,” so a
petition for a writ of habeas corpus would be improper.
The second scenario, where the party found in contempt has not been
taken into custody, is before us. Rule 9.130(a)(3) provides an exhaustive
list of nonfinal orders that can be appealed to the district courts of appeal.
Contempt orders are not included on this list. Nevertheless, we have
treated requests for appellate review of civil contempt orders issued prior
to final judgments as permissible nonfinal appeals under Rule 9.130(a)(3).
In Langbert v. Langbert, 409 So. 2d 1066 (Fla. 4th DCA 1981), the
appellant sought review of an order “finding him in civil contempt and
fining him $2,000 per day until compliance for failure to obey prior court
orders in a dissolution proceeding.” Id. at 1067. The appellant, unsure of
the proper method for reviewing such order, filed a notice of appeal and a
petition for writ of certiorari with this court. Id. We accepted jurisdiction
under Rule 9.130(a)(3) on the basis that subsections (a)(3)(C)(ii) and (iii)
applied because the appealed order determined the right to immediate
possession of property or the right to immediate monetary relief in a
domestic relations matter. Id. at 1067 n.1. 1
1 Rule 9.130(a)(3) has changed little since Langbert. See In re Emergency Amends.
to Rules of Appellate Proc., 381 So. 2d 1370, 1386 (Fla. 1980). Compare Fla. R.
App. P. 9.130(a)(3)(C)(ii) (2023) (“the right to immediate possession of property,
including but not limited to orders that grant, modify, dissolve, or refuse to grant,
modify, or dissolve writs of replevin, garnishment, or attachment”), with Fla. R.
App. P. 9.130(a)(3)(C)(ii) (1981) (“right to immediate possession of property”);
compare Fla. R. App. P. 9.130(a)(3)(C)(iii) (2023) (“in family law matters: a. the
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Langbert was the basis for our later decisions to find that pre-judgment
contempt orders were reviewable under Rule 9.130(a)(3)(C). E.g., Parks v.
Wells Fargo Home Mortg., 185 So. 3d 541, 542 (Fla. 4th DCA 2016); Cont’l
Cas. Co. v. Morgan, 445 So. 2d 678, 680 (Fla. 4th DCA 1984). Yet, as time
passed, we began to express doubts as to the jurisdictional basis to review
these nonfinal orders under Rule 9.130(a)(3)(C). See Calicchio v. Calicchio,
693 So. 2d 1124, 1124 n.1 (Fla. 4th DCA 1997).
In Alves v. Barnett Mortgage Co., 688 So. 2d 459, 460 n.1 (Fla. 4th DCA
1997), the majority opinion acknowledged that our sister courts had
reviewed pre-judgment contempt appeals under certiorari jurisdiction, but
our opinion reiterated that we had reviewed pre-judgment contempt orders
under Rule 9.130(a)(3)(C). Judge Farmer’s concurring opinion argued that
nonfinal jurisdiction did not appear appropriate given that a contempt
order was not one of the appealable orders listed under Rule 9.130. Judge
Farmer suggested that Rule 9.130 should be amended to allow for the
interlocutory appeal of contempt orders. Id. at 461–62 (Farmer, J.,
concurring specially).
More recently, a panel of this Court explained that “[i]f we were writing
on a clean slate, we would not conclude that we have nonfinal review
authorized by rule 9.130(a)(3). However, constrained by our prior caselaw,
we have reviewed the instant contempt order as a nonfinal appeal.” 100
Emerald Beach Way LC v. Thornton, 341 So. 3d 346, 349 (Fla. 4th DCA
2022).
To initiate a “clean slate,” we recede from our prior opinions permitting
nonfinal appeals of all pre-judgment contempt orders. We join our sister
courts in finding Rule 9.130(a)(3) does not authorize appeals of pre-
judgment contempt orders unless the sanction in the contempt order falls
within one of Rule 9.130(a)(3)’s enumerated categories.
By its plain terms, Rule 9.130 restricts which nonfinal orders may be
reviewed by appeal. Travelers Ins. Co. v. Bruns, 443 So. 2d 959, 961 (Fla.
1984). Rule 9.130(a)(3) states that appeals to the district courts of appeal
of nonfinal orders are “limited” (emphasis added) to those listed in
subsections (A) to (G). By setting forth an exhaustive list, any category of
case not listed in (A) to (G) must be excluded. See Young v. Progressive Se.
Ins. Co., 753 So. 2d 80, 85 (Fla. 2000) (“[T]he mention of one thing implies
right to immediate monetary relief; b. the rights or obligations of a party regarding
child custody or time-sharing under a parenting plan; or c. that a marital
agreement is invalid in its entirety”), with Fla. R. App. P. 9.130(a)(3)(C)(iii) (1981)
(“right to immediate monetary relief or child custody in domestic relations
matters”).
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the exclusion of another.” (quoting Moonlit Waters Apartments, Inc. v.
Cauley, 666 So. 2d 898, 900 (Fla. 1996))). In contrast, Rule 9.030(b)(2)(A)
allows for certiorari jurisdiction as to nonfinal orders “other than as
prescribed by rule 9.130.” Thus, Rule 9.030(b)(2)(A) serves as a catch-all
for those nonfinal orders which do not fall under the provisions of Rule
9.130(a)(3).
As described above, our caselaw following Langbert adopted an
expansive view of Rule 9.130(a)(3) that we now find is in conflict with the
Rule’s plain language. By using the word “limited” to describe the breadth
of our jurisdiction, Rule 9.130(a)(3) must be read restrictively. But it is
not the text alone that compels this conclusion. We also find that a
restrictive reading of Rule 9.130(a)(3) promotes judicial economy because
“appellate review of nonfinal judgments serves to waste court resources
and needlessly delays final judgment.” Bruns, 443 So. 2d at 961 (Fla.
1984); see also Alves, 688 So. 2d at 462 (Farmer, J., concurring specially)
(“One could argue that common law certiorari would make some sense as
a form of review, because it is an extraordinary remedy and more speedy
than other forms of review.”).
Finally, as noted earlier, our sister courts have determined that the
proper avenue for pre-judgment contempt order review is through a writ
of certiorari. E.g., Thompson v. Melange, 311 So. 3d 898, 902 (Fla. 1st
DCA 2020); Menke v. Wendell, 188 So. 3d 869, 871 (Fla. 2d DCA 2015);
Carmenates v. Hernandez, 127 So. 3d 631, 633 (Fla. 3d DCA 2013);
Juravin v. DCS Real Est. Invs., LLC, 313 So. 3d 924, 924–25 (Fla. 5th DCA
2021). 2 A number of these courts’ opinions have explicitly noted that no
language in Rule 9.130 authorizes pre-judgment review of contempt
orders. See, e.g., Sears v. Sears, 617 So. 2d 807, 808 n.1 (Fla. 1st DCA
1993); Stewart v. Mussoline, 487 So. 2d 96, 97 (Fla. 3d DCA 1986).
Here, the trial court found Appellant in contempt for failing to comply
with a discovery order. That was all. There is no subsection of Rule
9.130(a)(3) that allows appeals of nonfinal orders finding contempt alone.
We therefore sua sponte treat this “appeal” as a petition for writ of
certiorari. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper
remedy, the cause shall be treated as if the proper remedy had been
sought; provided that it shall not be the responsibility of the court to seek
the proper remedy.”). We recede from our caselaw inconsistent with this
holding.
2 The new Sixth District Court of Appeal has not had an opportunity to address
this issue.
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Conclusion
Appellant was found in contempt for not complying with a discovery
violation. A finding of pre-judgment contempt, without more, is not one of
the enumerated bases for a Rule 9.130(a)(3) nonfinal appeal. We therefore
order that the Notice of Appeal filed with the clerk of the lower tribunal is
treated as a Petition for Writ of Certiorari. Petitioner shall file a petition
and appendix in compliance with Florida Rule of Appellate Procedure
9.100 within twenty (20) days from the date of this opinion.
Appeal redesignated as a petition for writ of certiorari.
KLINGENSMITH, C.J., WARNER, GROSS, MAY, DAMOORGIAN, CIKLIN, GERBER,
LEVINE, CONNER, KUNTZ and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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