DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DAVID L. MALLORY and PAULINE MALLORY,

Appellants,

v.

ROBERT BRINCKERHOFF, individually, and

MORGAN STANLEY SMITH BARNEY LLC,

Appellees.

No. 4D21-405

[March 3, 2021]

Appeal of a nonfinal order from the County Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. 

Case Nos. 50-2019-CC-016917-XXXX-MB and 50-2020-AP-000068-

CAXX-MB.

Benjamin Hillard and Amy Cuykendall Jones of Hillard Cuykendall, 

P.A., Largo, for appellants.

Neil Baritz and Andrew Thomson of Baritz & Colman LLP, Boca Raton, 

for appellee Robert Brinckerhoff.

PER CURIAM.

ON MOTION TO DISMISS

This case reaches this Court in an unusual posture and presents a 

jurisdictional question that has arisen in other circuit court appellate 

cases recently transferred to this Court. We write to resolve the 

jurisdictional question and explain that this Court has nonfinal appeal 

jurisdiction over the order at issue under Florida Rule of Appellate 

Procedure 9.130.

Legal and Procedural Background

The parties were engaged in small claims litigation in county court. In 

June 2020, the county court entered an order granting defendant

Brinckerhoff’s Motion to Compel Arbitration and Stay Litigation. The court 
2

ordered the parties to complete arbitration and stayed the action until 

arbitration was completed.

In July 2020, plaintiffs filed a timely notice seeking to appeal the order 

to the circuit court.

In October 2020, defendant moved to dismiss the appeal, explaining 

that the order was nonfinal and arguing that the circuit court lacked 

jurisdiction to hear the appeal under Florida Rule of Appellate Procedure 

9.130. Plaintiffs responded and argued that the order was final because 

the trial court entered a separate order directing the clerk to close the file 

because “[t]here are currently no motions or issues requiring judicial 

action.”

The appellate jurisdiction of the circuit courts to review nonfinal orders 

is governed by general law as enacted by the Legislature—not by rule 

9.130. Blore v. Fierro, 636 So. 2d 1329, 1331 (Fla. 1994); see Art. V, § 

5(b), Fla. Const. (“The circuit courts shall have . . . jurisdiction of appeals 

when provided by general law”); see also Fla. R. App. P. 9.130(a)(1) (“This 

rule applies to appeals to the district courts of appeal of the nonfinal orders 

authorized herein and to appeals to the circuit court of nonfinal orders 

when provided by general law.”) (emphasis supplied).

This Court has held that “[t]he Circuit Courts do not have any general 

jurisdiction under the appellate rules to review non-final orders.” Shell v. 

Foulkes, 19 So. 3d 438, 440 (Fla. 4th DCA 2009); see also 911 Dry Sols., 

Inc. v. Fla. Family Ins. Co., 259 So. 3d 167, 169 (Fla. 3d DCA 2018) 

(concluding that the circuit court lacked jurisdiction to hear an appeal 

from a nonfinal order under rule 9.130).

Thus, when the order compelling arbitration was entered and the notice 

of appeal was filed, rule 9.130 could not provide the circuit court with 

jurisdiction to hear the appeal.

Effective January 1, 2021, the Legislature removed language in the 

statute that had generally provided circuit courts with appellate 

jurisdiction over county court orders. The language was changed as 

follows:

26.012 Jurisdiction of circuit court.—

(1) Circuit courts shall have jurisdiction of appeals from

county courts except:
3

(a) Appeals of county court orders or judgments where the 

amount in controversy is greater than $15,000. This 

paragraph is repealed on January 1, 2023.

(b) Appeals of county court orders or judgments declaring 

invalid a state statute or a provision of the State Constitution.

(c) Orders or judgments of a county court which are certified 

by the county court to the district court of appeal to be of great 

public importance and which are accepted by the district 

court of appeal for review. Circuit courts shall have 

jurisdiction of appeals from final administrative orders of local 

government code enforcement boards. and of reviews and 

appeals as otherwise expressly provided by law.

Ch. 20-61, § 3, Laws of Fla.1

On January 19, 2021, the circuit court transferred the appellate case 

at issue to this court following the directions of the Chief Justice of the 

Florida Supreme Court.2

1 Importantly, after the change, the circuit courts retain appellate jurisdiction 

over certain types of cases under statutes that were not amended. The Office of 

the State Courts Administrator has published an excellent summary of the 

change and a non-comprehensive chart listing some of the case types that will 

continue to be within the circuit court’s appellate jurisdiction. Office of the State 

Courts Administrator, Know Your Court: Changes to County Court Appeals 

(effective January 1, 2021), https://www.flcourts.org/Know-Your-Court (last 

visited February 18, 2021).

2 On October 2, 2020, the Chief Justice sent a memo to the chief judges of the 

circuit courts and the district courts of appeals. The memo explained that, 

because the chapter law above did not contain a “savings clause” to preserve 

circuit court jurisdiction to hear pending appellate cases, those appeals that 

remained pending after the January 1, 2021 effective date would be transferred 

to the appropriate district court of appeal. Footnote 2 of the Chief Justice’s memo 

provides:

See State ex rel. Arnold v. Revels, 109 So. 2d 1, 3 (Fla. 1959) (holding 

that “when the jurisdiction of a court depends upon a statute which 

is repealed or otherwise nullified, the jurisdiction falls even over 

pending causes, unless the repealing statute contains a saving 

clause.”); Fla. R. App. P. 9.040(b)(1) (stating “If a proceeding is 

commenced in an inappropriate court, that court shall transfer the 

cause to an appropriate court.”).
4

The motion to dismiss at issue remained pending when this Court 

received the transferred case.

Discussion

The order at issue is nonfinal. The test for whether an order is final is 

whether further judicial labor is required or contemplated. See GEICO Fin. 

Servs., Inc. v. Kramer, 575 So. 2d 1345, 1346 (Fla. 4th DCA 1991). 

Although the court file was administratively closed, the county court 

merely “stayed” the action and further judicial labor — such as 

confirmation of an arbitration award and entry of a final judgment — was 

contemplated.

The county court’s nonfinal order determines entitlement to arbitration 

and is now appealable to a district court of appeal under rule 

9.130(a)(3)(C)(iv). Art. V, § 4(b)(1), Fla. Const. (providing district courts of 

appeal with jurisdiction to “review interlocutory orders in such cases to 

the extent provided by rules adopted by the supreme court”).

We conclude that the statutory change, and transfer of this pending 

case, permit this Court to review the order under our existing authority to 

hear nonfinal appeals as provided in rule 9.130. In other words, rule 

9.130, which was in place when the change took effect, applies to pending 

circuit court appellate cases that were transferred to this Court.

This Court has jurisdiction to hear the appeal from the nonfinal order 

compelling arbitration in this case, and the motion to dismiss is denied.

Motion to dismiss appeal denied.

WARNER, DAMOORGIAN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.