Monthly Archives: April 2015

Notable Changes to the Florida Rules of Appellate Procedure – Effective 2015

Anyone handling an appeal or original proceeding before the Florida appellate courts should always keep up to date on the changes to the Florida Rules of Appellate Procedure.  Accordingly, many changes were made to the Florida Rules of Appellate Procedure, which became effective this year.   Highlighted below are a few of those key changes.

Under Florida Rules of Appellate Procedure 9.020(i), the filing of a notice appeal no longer causes one’s timely and authorized post-judgment motions to be deemed abandoned. See In re Amendments to Florida Rules of Appellate Procedure, 39 Fla. L. Weekly S665 (Fla. Nov. 6, 2014).  The amended rule rather allows the appeal to be held in abeyance until said motion is disposed of.  See Id.; Fla. R. App. P. 9.020(i).   Florida Rules of Appellate Procedure 9.110(l), which dismisses premature appeals, was amended in light of the amendment to Rule 9.020(i).  As a result, the amendment adds language to ensure that the exception provided in rule 9.020(i) is recognized.  See Fla. R. App. P. 9.110(l).

Moreover, Florida Rules of Appellate Procedure 9.320, which covers oral arguments was amended.  In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014).  First of all, it extended the time to request an oral argument in an appeal by 10 days. See Id; Fla. R. App. P. 9.310(a).  A request must be served “not later than 10 days after the last brief is due to be served.” Fla. R. App. P. 9.320(a).

Second of all, it clarified the timeline for requesting an oral argument in original proceedings.  The prior rule only specified the timeline to request such when the proceeding involved briefs. See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014).  Since briefs are not filed in original proceedings, it was unclear when such was due. The amendment now makes it clear that such a request must be made “not later than 10 days after the reply is due to be served.” Fla. R. App. P. 9.320(b).

Furthermore, Florida Rules of Appellate Procedure 9.350 was amended to clarify that the filing of a stipulation or notice of dismissal does not itself dismiss the cause.  See re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov 6, 2014).  Rather the matter is automatically stayed until the court determines whether to recognize the dismissal or not. See Fla. R. App. P. 9.350(d).

In addition, Florida Rules of Appellate Procedure 9.400 amendment with regards to attorney fees in original proceedings clarifies when such is due.  The prior rule only specified the timeline to file such when the proceeding involved reply briefs.  Since original proceedings did not include reply briefs, it was unclear whether rule 9.400 governed such or if it did not then when such motions for attorney fees were due.

In May 2014, the Florida Supreme Court in Advanced Chiropractic and Rehabilitation Center, Corp. v. United Automobile Ins. Co., 140 So. 3d 529 (Fla. 2014) held that rule 9.300 and not rule 9.400 governs requests for attorney fees in original proceedings.  The Florida Supreme Court stated that requests for attorney fees must be timely to provide the relief sought, but did not specify the exact time period such should be filed or served. See Id.  The Florida Supreme Court by amending this rule, now specifies the time period and clarifies that this rule governs such.  See Fla. R. App. P. 9.400(b)(2).  It clearly states that a motion for attorney fees in original proceedings shall be served no later than “the time for service of petitioner’s reply to the response to the petition.” Fla. R. App. P. 9.400(b)(2).

In addition, it is important to recognize that the timeline to serve a motion for costs under Florida Rules of Appellate Procedure 9.400 has changed.   See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov 6, 2014).  Generally,  it is no longer dependent on when the mandate was issued. See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014); Fla. R. App. P. 9.400(a).  It now depends on when the appellate court’s order was rendered. Id.  A party no longer has within 30 days after issuance of the mandate, but rather has no later than 45 days after rendition of the appellate court’s order to serve the motion for costs. See Id.

 

Am I Entitled To A Belated Appeal In A Civil Matter?

Your time to file your notice of appeal has run out.  Are you entitled to a belated appeal? Generally, in a civil proceeding, the appellate court lacks jurisdiction to grant you a belated appeal.  See Sharpe v. Stanley, 136 So. 3d 788 (Fla. 1st DCA 2014); Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d 1286 (Fla. 4th DCA 2004).

But you had no timely notice of the entry of the order.  Does that matter? The fact that a party did not have timely notice of the entry of the order may not extend the jurisdictional time limit for appeal.  See Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983); Sharpe v. Stanley, 136 So. 3d 788 (Fla. 1st DCA 2014).  In other words, the appellate court may be precluded from granting you a belated appeal.

However, there may be another way.  You may be able to file a Florida Rules of Civil Procedure Rule 1.540(b) motion in the lower court arguing that the order should be set aside due to lack of notice and request that a new order be entered so that the right of appeal is preserved.  See Diamond Drywall Systems, Inc. v. Mashan Contractors, Inc., 943 So. 2d 267 (Fla. 3d DCA 2006); Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971).

But what if you had timely notice, however, your attorney failed to timely file the notice of appeal.  Does that matter?  If this is a termination of parental rights matter, then yes it does.  In Interest of E.H., the Florida Supreme Court held that in a case involving termination of parental rights, parents are entitled to belated appeals based on ineffective assistance of counsel when their attorneys fail to timely file the notices of appeal. See In Interest of E.H., 609 So. 2d 1289 (Fla. 1992). The Florida Supreme Court further found that the proper procedural vehicle for seeking the appeal in such a case was by filing the petition for writ of habeas corpus with the trial court. Id.

I Have Filed the Notice of Appeal – What Is The Next Step?

You have filed your notice of appeal of the final order in this civil proceeding with the clerk of the court.  What should you do next?

Directions to Clerk

You have 10 days from the date of filing the notice of appeal to file directions to the clerk.  Should you file such?  It depends.  The clerk will automatically prepare a record on appeal that includes all the documents listed in Florida Rules of Appellate Procedure Rule 9.200(a)(1).   Fla. R. App. P. 9.200(a)(1) provides:

Except as otherwise designated by the parties, the record shall consist of the original documents, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal, except summonses, praecipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, and other discovery. In criminal cases, when any exhibit, including physical evidence, is to be included in the record, the clerk of the lower tribunal shall not, unless ordered by the court, transmit the original and, if capable of reproduction, shall transmit a copy, including but not limited to copies of any tapes, CDs, DVDs, or similar electronically recorded evidence. The record shall also include a progress docket.

You will not need to file directions to get such documents included in the record.

However, if you want to include something in the record that is not automatically included under Fla. R. App. P. 9.200(a)(1) then you should file such directions.  This does not mean you can include whatever you want.  Rather it means you can include those items that are automatically omitted.  For instance, notices of hearings, depositions, other discovery, etc. are not included in the record. See Fla. R. App. P. 9.200(a)(1).  As a result, if you want them included in the record then you have to file directions to the clerk.   You should also file such directions if you want to exclude items from the record.  In addition, these directions should be substantially in the form prescribed by Florida Rules of Appellate Procedure Rule 9.900(g).

You should also remember that the clerk of court is generally not preparing the record for free.  You will generally be billed for this service.  Thus, if you chose not to exclude items or fail to do such then you will probably have to pay more to the clerk of court then if you had excluded the unnecessary documents.  Although, sometimes you are not sure what is necessary or not until your brief is complete and thus, it may be wise not to exclude.  The choice is yours.

Statement of Judicial Acts

Also, if you exclude items from the record then you will be required to file with the lower court clerk a statement of judicial acts to be reviewed. See Fla. R. App. P. 9.200(a)(3).   The purpose of this statement is to inform the opposing party of the issues in order to allow that party the opportunity to decide whether additional portions of the record will be needed.  See Central Florida Wetlands Soc. v. Firstate Financial, 604 So. 2d 557 (Fla. 5th DCA 1992).

Designation to Court Reporter

In addition, if you want to include transcripts in the record that have not yet been transcribed then you need to file a designation to court reporter.  You have 10 days from the date of filing the notice of appeal to file such a designation to the court reporter.  See Fla. R. App. P. 9. 200(b)(1).  This is where you designate which portions of the proceedings not on file that you want transcribed and included in the record.   This designation should be substantially in the form prescribed by Florida Rules of Appellate Procedure Rule 9.900(h).