BE SMART – HAVE AN APPELLATE ATTORNEY ASSIST WITH THE JURISDICTIONAL COMPLEXITIES OF AN APPEAL

Determining whether you can appeal an order is a very confusing and complex process.  An experienced appellate attorney can assist you with such.     

As an appellate attorney with over 14 years of experience, I have had the opportunity to deal with many appeals and I am constantly asked by clients and trial attorneys whether the order is appealable.  I have filed many motions to dismiss appeals and won because the other side has failed to properly determine the appellate court’s jurisdiction.  I have also defeated motions to dismiss appeals because of my vast understanding of this complex issue.  

I have seen trial attorneys make fatal mistakes with regards to appellate jurisdiction.  Here is an example of one of those mistakes.   The trial court has entered a non-final order.  This non-final order is one of the non-final orders that are appealable under Fla. R. App. P. 9.130.  The trial attorney files a motion for reconsideration of the non-final order.  The trial attorney does not file an appeal of the non-final order within 30 days, but rather waits for the motion for reconsideration to be ruled on.  The lower tribunal then denies the motion for reconsideration and the trial attorney then files an appeal of the non-final order under Fla. R. App. P. 9.130.

But now the appeal is untimely.  Unlike a motion for rehearing of a final order, “[a] motion for reconsideration does not toll the time for filing an appeal from a non-final order reviewable pursuant to Fla. R. App. P. 9.130.” Avael Law Firm, PLLC v. Sechrist,347 So. 3d 424 (Fla. 3rd DCA 2022); Lopez v. Lopez, 190 So. 3d 117 (Fla. 4th DCA 2015).  Since more than 30 days has passed since the non-final order was filed, the appellate court no longer has jurisdiction to review the non-final order on appeal under Fla. R. App. P. 9.130. The attorney has lost the client’s right to appeal the non-final order under Fla. R. App. P. 9.130.  Rather the client will now have to wait for a final order to be rendered in this case, whenever that may be, and then seek to appeal it before any issues as to this order can be reviewed on appeal.  Don’t make this mistake.

Bring in an experienced appellate attorney to help you navigate the complexities of appellate jurisdiction.   Even before filing the appeal, it is important to have an appellate attorney involved.

A Motion for Rehearing in a Family Law Matter May be Vital to Preserve Your Argument for Appeal

An effective appeal begins in the lower court.  In Florida, the general rule is that an issue must first be presented to the trial court before it can be raised on appeal.  An appellate court is not going to cut your client a break because the stakes are high. As a result, it is important to know when and how to preserve errors on appeal.    

Recently, the Florida Supreme Court amended Florida Family Law Rule 12.530(a) to provide: “[t]o preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise the issue in a motion for rehearing under this rule.”  This rule is not retroactive.  See McGill v. McGill,2023 Fla. App. Lexis 922 (Fla. 2d DCA 2023). It only applies to judgments entered after the amendment became effective. Id. The Fourth District Court of Appeal has begun to apply this new rule. 

The Fourth District Court of Appeal has recognized that no longer may a party raise for the first time on appeal the failure to attach a child support guideline scoresheet to the final judgment. Hiatt v. Mathieu, 350 So. 3d 387, 388 (Fla. 4th DCA 2022).  Rather, in light of Fla. Fam. L. R. Proc.12.530(a), such error must be raised in a motion for rehearing first. Hiatt v. Mathieu, 350 So. 3d 387, 388 (Fla. 4th DCA 2022).

More importantly, up until this new rule, the Fourth District Court of Appeal had advised that it was not going to require in family law cases a motion for rehearing to preserve the issue of the trial court’s failure to make statutorily required findings of fact regarding alimony, equitable distribution and child support unless a rule was put in place.  Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018).  Now that this rule has been put in place, Fox v. Fox, may no longer be good law. 

Moreover, the Fourth District Court of Appeal recently recognized based on this rule [or the identical civil rule] that a court’s failure to make findings of fact in a final judgment, cannot be raised on appeal unless preserved by a motion for rehearing challenging the trial court’s lack of findings of fact.  See Hiatt v. Mathieu, 350 So. 3d 387, 388 (Fla. 4th DCA 2022)(“Based on the amended rule, when a trial court fails to make findings of fact or attach a child support guidelines scoresheet to the final judgment, the parties must bring this deficiency to the attention of the trial court through a motion for rehearing where it can be easily corrected before an appeal.”); Jackson v. City of S. Bay, Fla., 358 So. 3d 18 n.1 (Fla. 4th DCA 2023)(Noted based on Fla. R. Civ. P. 1.530(a) that the issue was “not preserved because it was not addressed in the final judgment and Jackson did not move for rehearing challenging the trial court’s lack of findings concerning the handwritten notes.”).  As a result, when reviewing the final judgment, if the court has failed to make required findings of fact or failed to attach a child support guideline scoresheet then you should file a motion for rehearing to preserve the issue for appeal.  Otherwise, the appellate court may not address the merits of the issue on appeal. 

The Florida Supreme Court Clarifies the Importance of a Motion for Rehearing When Challenging a Trial Court’s Findings

In the end of August 2022, the Florida Supreme Court, acting on its own motion, has amended Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530. See In re Amendments to Fla. Rule of Civil Proc. 1.530, 47 Fla. L. Weekly S204 (Fla. August 25, 2022).  These amendments add a sentence to Fla. R. Civ. P. 1.530(a) and Fla. Fam. L. R. Proc 12.530(a), which states: “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise the issue in a motion for rehearing under this rule.” In re Amendments to Fla. Rule of Civil Proc. 1.530, 47 Fla. L. Weekly S204 (Fla. August 25, 2022).     

Accordingly, these amendments make it clear “that filing a motion for rehearing is required to preserve an objection to insufficient trial court findings in a final judgment order.” In re Amendments to Fla. Rule of Civil Proc. 1.530, 47 Fla. L. Weekly S204 (Fla. August 25, 2022).   These amendments do not change any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review. In re Amendments to Fla. Rule of Civil Proc. 1.530, 47 Fla. L. Weekly S204 (Fla. August 25, 2022).

These amendments took effect immediately, however, due to these revisions not being published for comment previously, interested persons have been given 75 days, until November 8, 2022 to file comments with the Court.

Beware of the Recent Change to Fla. R. Civ. P. 1.530(g)

It used to be that even if the time to serve a motion for rehearing had expired, your right to serve a motion to alter or amend a judgment may still be pending.  This is because the time to serve a motion to alter or amend a judgment was based on the entry of the judgment, while the time to serve a motion for rehearing was based on the date of filing of the judgment.  This was important because the entry of the judgment meant when the final judgment was recorded in the public records not when the final judgment was filed with the clerk of court.

However, the Florida Supreme Court recently amended Fla. R. Civ. P. 1.530(g) and replaced “15 days after entry of the judgment” with “15 days after the date of filing of the judgment.”  In re Amendments to Fla. Rules of Civil Proc. 1.530 & 1.535, 47 Fla. L. Weekly S203 (Fla. August 25, 2022).  Thus, the time to serve the motion to alter or amend a judgment is now the same as the time to serve the motion for rehearing. Don’t overlook this amendment.

Moreover, this amendment now closes an appellate loophole.  As the February 28, 2022 posting entitled “Beware of the Unrecorded Final Judgment” previously detailed, one use to be able to take great advantage of a parties failure to record the final judgment in the public records.  Now since the time to serve the motion to alter or amend is no longer based on the recording of the final judgment, this back door to an appeal has closed.   

DON’T ASSUME THE FINAL JUDGMENT IS ENFORCEABLE

A final judgment has been entered.  A timely and authorized motion for rehearing was filed by the opposing party pursuant to Fla. R. Civ. P. 1.530 or Fla. Fam. L. R. P. 12.530 and it is currently pending.   The opposing party is not complying with the final judgment and your client wants you to move to enforce the final judgment.

Don’t assume the final judgment is enforceable. When a motion for rehearing, which is timely and authorized, is pending, it has been recognized by Florida Courts that the enforcement of the final judgment is suspended until the motion is disposed of. See Francois v. Library Square Ass’n, 250 So. 3d 728 (Fla. 4th DCA 2018); 944 CWELT-2007 LLC v. Bank of Am., N.A., 194 So. 3d 470 (Fla. 3rd DCA 2016); Rohret v. Zucco, 2022 Fla. App. Lexis 843 (Fla. 2nd DCA 2022); Diaz v. U.S. Bank, N.A., 239 So. 3d 151 (Fla. 3rd DCA 2018). Moreover, it has been considered error for a trial court to enforce a final judgment during this period. See 944 CWELT-2007 LLC v. Bank of Am., N.A., 194 So. 3d 470 (Fla. 3rd DCA 2016).

Additionally, at least one court has attempted to try to get around this restriction by entering an order denying a motion for rehearing “nunc pro tunc” to a date preceding the enforcement of the judgment.  The Second District Court of Appeals did not agree with this tactic and rather held that it does not rectify the defect.  See Rohret v. Zucco, 2022 Fla. App. Lexis 843 (Fla. 2nd DCA 2022).  Thus, it is probably best to wait until the motion for rehearing is disposed of before you move to enforce the final judgment.

BEWARE OF THE UNRECORDED FINAL JUDGMENT

You won your case. The court entered a final judgment in your client’s favor.  Thirty days has passed since the final judgment was filed with the clerk of court.  The opposing party did not file a motion for rehearing or motion to alter or amend the judgment or any motion that would toll the time to file an appeal.  The opposing party did not file a notice of appeal. Your client is very happy with you.       

But you did not make sure that the final judgment was recorded in the official records.  Why does this matter?  By failing to ensure the final judgment is recorded, you have left open the opposing parties right to file a motion to alter or amend the judgment, which is a motion that tolls the time for an appeal.

Fla. R. Civ. P. 1.530(g) provides that a motion to alter or amend a final judgment be served not later than fifteen days after entry of the judgment.  Entry of the judgment refers to the date on which the judgment is recorded in the court’s official records.  See Fisher v. Fisher, 787 So. 2d 926 (Fla. 2d DCA 2001)(“Entry of judgment” in Fla. R. Civ. P. 1.530(g) is “the date on which the judgment is recorded in the court’s official records.”); Casto v. Casto, 404 So. 2d 1046 (Fla 1981)(“It is well settled that “entry of judgment”…means the recording of the judgment-the spreading of the judgment upon the court’s official records”). A motion to alter or amend the judgment is timely when it precedes the entry of judgment.  Fla. R. Civ. P. 1.530(g); S. Atl. Constr. Corp. v. First Corp., 419 So. 2d 729 (Fla. 4th DCA 1982)(Timely filed because served within 10 days from when the judgment was recorded, which was within 10 days from entry of judgment.); Hauss v. Waxman, 866 So. 2d 758 (Fla. 4th DCA 2004)(if treated as a motion to alter or amend the final judgment under rule 1.530(g), then the motion was timely filed because it preceded the entry of a final judgment).   Thus, if the final judgment is not recorded, the opposing party has an open ended right to pursue a motion to alter or amend the final judgment.

Oh no.  This is a motion that opens the door to an appeal.   Generally, a party has 30 days from rendition of the final judgment to file an appeal.  Fla. R. App. P. 9.110(b).  Rendition generally means from when the final judgment “is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(h).  However, the meaning of rendition changes when a motion to alter or amend is filed. See Fla. R. App. P. 9.020(h).  If an authorized and timely motion to alter or amend has been filed in the lower tribunal directed to a final judgment then the final judgment “shall not be deemed rendered as to any existing party until all of the motions are …resolved by the rendition of an order disposing of the last of such motions.”  Fla. R. App. P. 9.020(h). In other words, when a timely and authorized motion to alter or amend is filed, the opposing party’s time to file an appeal of the final judgment is different.  It is generally now 30 days from when the order disposing of said motion is filed with the clerk of court.  Thus, the door to an appeal of a final judgment, which was filed with the clerk of court more than 30 days prior, is no longer fully closed. Don’t make this mistake.  As soon as the court rules in your client’s favor make sure it is recorded in the official records. Don’t leave this loophole for your opposition.

DON’T OVERLOOK THE DELAY OF ENTRY OF THE FINAL JUDGMENT AS A BASIS FOR REVERSAL

A final hearing on your dissolution of marriage is held.  The court at the end of the hearing enters an oral pronouncement and directs the attorneys to prepare the judgment.  It is not the attorney’s responsibility to ensure the final judgment is entered within a reasonable time.  Rather, the Fourth District Court of Appeal and other Florida Courts recognizes it is the duty of the trial court.  Donn v. Donn, 733 So. 2d 581 (Fla. 4th DCA 1999); Locke v. Locke,832 So. 2d 971 (Fla. 2d DCA 2002)(Even though delay was in large part due to attorneys failure to agree on an order, it was nevertheless the trial judge’s responsibility to ensure that the judgment was entered in a timely fashion.).    

After months of waiting, the court finally enters a final judgment.  “An excessive delay in the entry of judgment combined with other factors can require reversal” for a new final hearing. See McKay v. McElhiney, 205 So. 3d 845 (Fla. 2d DCA 2016); Donn v. Donn, 733 So. 2d 581 (Fla. 4th DCA 1999)(Reversed because 10 month delay was excessive, there were numerous inconsistencies between the final judgment and the facts as presented in the final hearing and court failed to include specific findings regarding the alimony award.).

Whether or not the delay is excessive is evaluated on a case-by-case basis and there is no bright line test.  See Carnicella v. Carnicella, 140 So. 3d 697 (Fla. 5th DCA 2014). However, Florida courts tend to recognize a delay as excessive or may require reversal when combined with other factors when the delay is six months or more. See Donn v. Donn, 733 So. 2d 581 (Fla. 4th DCA 1999)(Reversed because 10 month delay was excessive, there were numerous inconsistencies between the final judgment and the facts as presented in the final hearing and court failed to include specific findings regarding the alimony award);  Caswell v. Caswell,  674 So. 2d 861 (Fla. 2d DCA 1996) (New final hearing required due to a sixteen-month delay and inconsistencies between the oral ruling and the final judgment); McKay v. McElhiney,205 So. 3d 845 (Fla. 2nd DCA 2016)(Reversed and remanded for new final hearing due to over 6 month delay, lack of findings and trial court’s failure to address most of the matters before it); Carnicella v. Carnicella, 140 So. 3d 697 (Fla. 5th DCA 2014)(Reversed and remanded for new trial when there was six month delay “plus an indication that something” was “seriously amiss on the merits.”);  McGoldrick v. McGoldrick,940 So. 2d 1275 (Fla. 2d DCA 2006)(Reversed and remanded for new trial due to 8 month delay and the final judgment contained inconsistent, confusing and contradictory provisions including findings unsupported by the evidence.); Locke v. Locke,832 So. 2d 971 (Fla. 2d DCA 2002)(Reversed and remanded for rehearing when delay was one year after the dissolution hearing and there were discrepancies between what the court ordered at the final hearing, and what was actually reflected in the final judgment); Walker v. Walker, 719 so. 2d 977 (Fla. 5th DCA 1998)(A 9.5 months delay, which resulted in the judgment being replete with inconsistencies and deficiencies was remanded for a new trial as a result.).  

A delay or an excessive delay, standing alone, most likely does not justify reversal for a new final hearing.  See Stanfield v. Marquis, 201 So. 3d 1283 (Fla. 5th DCCA 2016); Knipe v. Knipe, 731 So. 2d 161 (Fla. 4th DCA 1999); Florida Air Academy, Inc. v. McKinley, 688 So. 2d 359 (Fla. 5th DCA 1997).  Rather an excessive delay, plus other factors may justify reversal for a new final hearing. See McKay v. McElhiney, 205 So. 3d 845 (Fla. 2d DCA 2016); Donn v. Donn, 733 So. 2d 581 (Fla. 4th DCA 1999).  The other factors to consider include: 1) whether there is any conflict or inconsistency or discrepancy between the judge’s statements or findings at the time of the final hearing and the judgment entered later, 2) whether required findings are included, and 3) if there is a factual finding in the final judgment unsupported by the trial evidence.” Donn v. Donn, 733 So. 2d 581 (Fla. 4th DCA 1999); Caswell v. Caswell,  674 So. 2d 861 (Fla. 2d DCA 1996) McKay v. McElhiney,205 So. 3d 845 (Fla. 2nd DCA 2016); McGoldrick v. McGoldrick,940 So. 2d 1275 (Fla. 2d DCA 2006); Locke v. Locke,832 So. 2d 971 (Fla. 2d DCA 2002); Knipe v. Knipe,731 So. 2d 161 (Fla. 4th DCA 1999); Walker v.Walker, 719 so. 2d 977 (Fla. 5th DCA 1998).

However, the courts may refuse “to reverse a final judgment on grounds of delay where the court’s factual findings are supported by the record or where there is no conflict or inconsistency” between oral pronouncements at the final hearing and the written final judgment. See Knipe v. Knipe, 731 So. 2d 161 (Fla. 4th DCA 1999); Florida Air Academy, Inc. v. McKinley, 688 So. 2d 359 (Fla. 5th DCA 1997)(Refused to reverse after 15 month delay when there was no conflicts or inconsistencies.). Regardless, if there is a delay don’t overlook the possibility of reversal.

DON’T OVERLOOK THE OPTION OF A MOTION FOR REHEARING

A final judgment has been filed with the clerk of the lower court in your dissolution of marriage proceeding.  Do not overlook the option of a motion for rehearing.    You have 15 days from the date of the filing of the final judgment to serve a motion for rehearing. See Fla. Fam. Law. R. Proc. 12.530(b).

A motion for rehearing provides you with the opportunity to have the court 1) consider matters that it overlooked or failed to consider, 2) correct any error it has committed if the court determines that it has erred and/or 3) possibly even “open the judgment if one has been entered, take additional testimony and enter a new judgment.”  Fla. Fam. Law. R. Proc. 12.530; Gaffney v. Gaffney, 965 So. 2d 1217 (Fla. 4th DCA 2007); Brander v. Stoddard, 78 So. 3d 101 (Fla. 4th DCA 2012).  A motion for rehearing may also be necessary to preserve issues for appeal.     

Additionally, a timely and authorized motion for rehearing tolls the time for the filing of an appeal. See Fla. R. App. P. 9.020.  

Know the Rules of Appellate Procedure before you file your brief.

The rules of appellate procedure changed on January 1, 2021.  Many practitioners appear to be unaware of these changes.  Failing to comply with these rules may result in your brief being stricken.   For instance, computer-generated briefs are no longer permitted to be in Times New Roman.  It must be in either Arial or Bookman Old Style. Fla. R. App. P. 9.045.  For example, all computer-generated briefs are subject to a word count limit, not a page limit.  See Fla. R. App. P. 9.210.  Make sure to read the rules of appellate procedure before filing your brief and confirm your brief complies.     

Beware of the Changes to Deadlines for Civil and Criminal Appeals

As of January 1, 2019, there are major changes to how one may calculate deadlines in civil and criminal appeals. First, the 5 day rule has become extinct. You no longer may add an extra 5 days to the end of your response time when service is by e-mail. Second, you do not start counting your time period until the next business day. Third, answer briefs are now due 30 days (instead of 20 days) after service of the initial brief. Fourth, reply briefs are now due 30 days (instead of 20 days) after service of the answer brief. Fifth, oral argument may be requested no later then 15 days (instead of 10 days) after the last brief is filed.