How Are Deadlines Affected When the Courts Close Due to Weather?

Matthew DPW Legal Appeals Court Deadlines

Hurricane Matthew is looking pretty creepy in this NASA Earth Sciences image.
Don’t let Matthew ruin your appeal!

Three Florida Appellate Courts have announced closures so far due to Hurricane Matthew. The Third and Fourth Fourth District Courts of Appeal will be closed from 1 pm today through Friday October 7th, while the Fifth District will be closed Thursday and Friday. The Florida Supreme Court aggregates announcements about emergency closures for the entire state court system on its emergency page.

What is the effect of a court closure on deadlines and argument? Certainly, argument is cancelled and will have to be rescheduled. But what about regular deadlines? It appears an emergency closure does not count as a “Court Holiday” under Florida Rules of Judicial Administration Rule 2.514(4)(B) — the Courts are not calling it a “holiday,” and doing so probably has personnel implications that Court administration doesn’t want to deal with. However, the Florida Supreme Court generally issues administrative orders extending deadlines in the affected counties, and likely will do so in the wake of Hurricane Matthew. The orders generally state that the Supreme Court is intending to “equitably relieve parties in all pending cases by extending legal time limits that they otherwise would have been unable to meet due to the emergency.” See, e.g., AOSC16-23, In re EMERGENCY REQUEST TO EXTEND TIME PERIODS UNDER ALL FLORIDA RULES OF PROCEDURE FOR HILLSBOROUGH COUNTY IN THE THIRTEENTH JUDICIAL CIRCUIT [.pdf]. And if the emergency further impedes the attorney or client, then the trial court is directed to resolve the claim “case-by-case basis when a party demonstrates that the lack of compliance with requisite time periods was directly attributable to this
emergency and that equitable remedy is required.” Id. I wouldn’t worry about a deadline for filing a brief — the extension will either be automatically granted by an administrative order, or the Court will be receptive to a motion for leave to accept a late-filed brief.

But what about deadlines that are not normally allowed to be extended? Rule 1.090 states that, even for good cause, a Court:

may not extend the time for making a motion for new trial, for rehearing, or
to alter or amend a judgment; making a motion for relief from a judgment under
rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a
motion for a directed verdict.

There is some authority on this issue, but it is sparse and not directly on point. The Third District has held that the statute of limitations is not tolled by an administrative order closing the courts for weather-related issues. Ramirez v. McCravy, 4 So.3d 692 (Fla. 3d DCA 2009) [.pdf]. The Fourth District has held that hurricane-related closures and the resulting administrative order did toll a deadline, but it was a deadline to file for review of arbitration, which is not one of the types of deadlines excluded from enlargement by Rule 1.090. Rasabi v. Salomon, 51 So.3d 1284 (Fla. 4th DCA 2011) [.pdf]. And certainly, a court may by administrative order declare a date a Holiday, thus eliminating that day from being counted as the last day in any time calculation under Rule 2.514. See, e.g., R.J. Reynolds Tobacco Co. v. Kenyon, 826 So.2d 370 (Fla. 2d DCA 2002)[.pdf] (applying prior time calculation rule). Maybe since the Florida Supreme Court promulgated Rule 1.090, it’s administrative orders can supersede this issue. But I wouldn’t count on it, and I certainly wouldn’t want to be the guinea pig having to argue it to the Court in order to preserve my client’s right to appeal.

Here’s what I recommend: When it comes to a notice of appeal or a motion for rehearing, best not to mess around. Get it filed by the deadline, or early, rather than rely on a yet-to-be issued AO. Jurisdictional and hard deadlines are not to be messed with. And if your issue is the timeliness of a Rule 1.530 motion for rehearing or new trial, don’t wait for the timeliness issue to play out: file your notice of appeal no later than the 30th day after the original order was filed with the clerk, rather than counting on tolling. Since the 2015 rules change eliminated the trap caused by the old rules, and filing a notice of appeal no longer abandons a properly filed motion for rehearing, there’s no reason not to just get the notice of appeal on file, even if the fight over the timing of the 1.530 motion is still pending. See Fla. R. App. P. 9.020(i)(3)(stating that appeal shall be held in abeyance while tolling motion is decided).

What happens if you do get in a pinch? If you have to make the Hail Mary throw, perhaps a Rule 1.540(b) motion asking for the judgement to be re-issued due to excusable neglect could work. The appellate courts have very rarely ordered trial courts to grant such motions where the court found excusable neglect in determining the date final judgment was rendered, in order to allow for a timely appeal. See, e.g., Pompi v. City of Jacksonville, 872 So.2d 931 (Fla. 1st DCA 2004)[.pdf] (reversing denial of Rule 1.540(b) motion and ordering re-issuance of judgment). Those cases were all in the context of the date of rendition being unclear due to multiple filing stamps on the final judgment, not in the context of missed deadline due to weather. Loss of power might be considered excusable neglect, for example. But best not to go there. Get it filed! Even a one page, incomplete, or in-the-wrong-court Notice of Appeal will preserve the rights, even if you later have to amend it. See, e.g., Kaweblum v. Thornhill Estates Homeowners Association, Inc., 755 So.2d 85 (Fla. 2000) (notice of appeal filed in wrong court preserved right to appeal).

To my fellow Florida attorneys, and anyone else in Hurricane Matthew’s path, be safe.

Evidence Required When Seeking Defensive Summary Judgment

I love it when I get to report on my own victories. Today the Fifth District reversed a trial court’s grant of summary judgment in a personal injury case, on two important grounds. From a procedural nerd standpoint, the Court correctly held that the defendants could not get summary judgment by simply quoting the plaintiff’s deposition and arguing “he doesn’t have evidence.” The Court reiterated that “[t]he lack of convincing evidence in favor of a party opposing summary judgment is not the same as conclusive evidence in favor of the party seeking summary judgment.” A defendant seeking summary judgment “cannot simply allege that the plaintiff’s evidence may not be sufficient, but must in fact present evidence “establishing a lack of liability on their part.” The Court therefore reversed the grant of summary judgment to the parties that simply argued “he doesn’t have any evidence.”

But just as important is the Court’s interpretation of the release signed by the Plaintiff. The injury arose when Plaintiff Owen Peterson attended a paintball competition and surrounding expo at Disney World. He was hit in the head at the expo, and went to the hospital for his injuries. He was cleared for paintball, and so came back and the next day signed a release so he could participate in the paintball competition, which he did. Once he got home, he realized his head injury was worse than he initially realized, and eventually sued Disney and the vendor whose item hit him in the head. Disney sought summary judgment based on the release, which stated that it applied to injuries sustained “before, during and after” participation in the Event. The court ruled:

Our analysis of this post-claim release must evaluate whether both parties knowingly gave clear and valid consideration in the Waiver. The Waiver specifically stated, “In consideration of my and/or my child or ward’s participation in the Sport Type(s) and Event referenced above and any related activities (collectively, the ‘Event’),
wherever the Event may occur, I agree to assume all risks incidental to such participation.” The Waiver further notified the “Participant” that by signing the Waiver he declared himself “physically fit” and possessing “the skill level required to participate in the Event and/or any such activities.” This language clearly focused the signatory on the paintball competition, not the vendor area. The parties further admitted that Disney did not require people accessing only the vendor area to sign the Waiver.

We reject Disney’s argument that the Waiver’s reference to injuries suffered “before, during or after such participation” included the November 8 incident. The Waiver failed to clarify that it included any incident that occurred before its signing, and thus failed to notify Peterson of a post-claim release.

The case is Peterson v. Flare Fittings, Inc., Case No. 5D13-2235 (5th DCA Oct. 9, 2015)[.pdf]. This was one of the first cases I took on when I opened the doors to DPW Legal back in 2013. As the opinion notes, Peterson opposed the case pro se, after his prior attorney withdrew on the eve of trial soon after the Defendants filed their motions for summary judgment. To turn a pro se loss into an appellate win is just sweet as can be. So pleased to have gotten such a great result for my client.

Magistrates, Reconsideration, and Writs, Oh My!

Every once in a while a case comes along that is just a treasure trove of procedural goodness. It’s even nicer when you happen to know the prevailing party, and know the rules as applied helped the good guys. The case is Seigler v. Bell, Case No. 5D14-642 (Fla. 5th DCA Sept. 19, 2014)[.pdf]. The underlying dispute is a complicated child custody battle between a Mother and Grandmother. While there is no need to go into the nitty gritty of the underlying facts of the dispute, the decision today provides great insight into several issues of broad application: (a) The role of magistrates in proceedings before a trial court, (b) the important differences between rehearing and reconsideration at the trial court level, and (c) jurisdiction over writs of certiorari and mandamus. Let’s unpack each in turn.

Magistrates and Finality

The opinion lays out in detail the legal and procedural effect of an issue being heard by a magistrate. Most importantly:

While a magistrate’s report is more than a mere recommendation, it is not a final judgment, as magistrates lack the authority to enter final judgments….Even when no exceptions are filed, the trial court is “duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether[,] under the law and facts[,] the court is justified in entering the judgment recommended” by the magistrate…. Merely “approving” the magistrate’s report is not sufficient to effect an appealable final judgment.

Slip. Op. at 7-8, citations omitted. In this case, both parties did file exceptions, and the trial court ruled on them, but the effect of that ruling was not a final judgment. The trial court rejected one party’s exceptions and accepted some of the other party’s exceptions, but the resulting order on the recommendation merely stated “the Report … is hereby modified….” Because the trial court “modified” the magistrate’s report but did not enter judgment, the order modifying the report (“the Modification Order”) was not a final order.

Rehearing v. Reconsideration

Whether the Modification Order was a final order is important in this case, because it is determinative of the next issue the appellate court decided — whether the Grandmother’s “Motion for Rehearing or Reconsideration” (the “Reconsideration Motion”) was timely and authorized. The Mother’s Petition sought review of the trial court’s order granting the Motion for Rehearing or Reconsideration. The Reconsideration Motion was filed 12 days after the trial court entered its order modifying the magistrate’s report and recommendation. If the Modification Order had been a final judgment, then it would be subject to a Rule 1.530 motion for rehearing. But then the Reconsideration Order would have been untimely, because at the time Rule 1.530 required that a motion for rehearing be served no later than 10 days after entry of judgment. (The rule was since amended to allow 15 days for service of a motion for rehearing).

The Court held that since the Modification Order was not a final order, the trial court had the inherent power to reconsider its interlocutory order at any time. Op. at 9. The court explained:

Motions for rehearing and motions for reconsideration are two distinct motions and, though they are often confused, they do not overlap. Motions for “rehearing” pursuant to Florida Rule of Civil Procedure 1.530 apply only to final judgments and “those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.” Motions for “reconsideration” apply to nonfinal, interlocutory orders, and are based on a trial court’s “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action . . . .” … Nomenclature does not control, and motions for either “rehearing” or “reconsideration” aimed at final judgments shall be treated as rule 1.530 motions for rehearing, while motions aimed at nonfinal orders shall
be treated as motions for reconsideration.

Op. at 9-10, citations omitted. The Court also emphasized that the trial court had the power to sua sponte reconsider its own interlocutory orders. Op. at 10.

Certiorari, Mandamus, and Appealable Non-Final Orders

Because the Court had the power to reconsider its interlocutory order, the next question it considered was whether the order granting reconsideration in the Grandmother’s favor (“the Reconsideration Order”) was an appealable order. The Court didn’t even look at whether the Reconsideration Order was a final order, because it left open further proceedings and still did not take on the tenor of a judgment of the Court.

The Court considered but rejected the argument that the Reconsideration Order could be classified as an appealable nonfinal order under Rule 9.130(a)(3)(C)(iii), which allows for immediate appeal of orders determining the right to child custody in family law matters. It is not clear whether the Mother made this argument, but the Court did the right thing in considering it in any event, because Rule 9.040(c) allows that “if a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Fla. R. App. P. 9.040(c). However, the Court concluded that the order does not determine the right to custody, but “merely indicates that more evidence will be considered before the trial court determines Mother’s motion to revoke the prior temporary custody order.” Op. at 10. It’s a decision to take more evidence, not a determination of custody, and therefore not an appealable interlocutory order.

The court also considered whether the Mother’s Petition entitled her to the relief requested, certiorari or mandamus relief. Both certioari and mandamus are extraordinary appellate remedies, because they allow the appellate court to step in and rule on the propriety of an interlocutory order. The Court dismissed the Petition for Writ of Certiorari for lack of jurisdiction and denied the Petition for Writ of Mandamus.

The Mother argued in favor of certiorari review because, based on her view that the Rehearing Motion was untimely, the trial court was without jurisdiction to entertain it. The Court set out the standard test for certiorari relief:

“To obtain relief by way of a writ of certiorari, a petitioner must establish: 1) a departure from the essential requirements of the law, 2) a resulting material injury for the remainder of the trial, and 3) the lack of an adequate remedy on appeal.”… The second and third prongs of this three-part standard of review are often combined into the concept of “irreparable harm,” and they are jurisdictional.

Applying this test — and its prior procedural analysis that the trial court had the power to reconsider the Modification Order and enter the Reconsideration Order — the Court found that the Reconsideration Order neither departed from the essential requirements of law or caused irreparable harm. The Court therefore held that it lacked jurisdiction to grant the requested certiorari relief.

The request for mandamus relief likely asked the Court to order the trial court to enter final judgment on the Modification Order. As the Court explained:

“Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” … “To state a cause of action for mandamus, a party must allege a clear legal right to performance of the act requested, an indisputable legal duty, and the lack of an adequate remedy at law.”

Op. at 11 (citations omitted). In this case, because the trial court had the power to reconsider its own interlocutory order, the Mother could not prove she was entitled to compel the trial court to enforce an established legal right to entry of judgment in her favor. The Court therefore denied the petition for writ of mandamus.

Kudos

Congratulations again to my friend Vicki Levin Eskin of Levy & Associates, P.A. for her appellate win! Vicki represents the Grandmother in this case pro bono, to boot (that means free, folks).

Full Disclosure: I assisted Vicki pro bono in responding to the appellate motion for rehearing or rehearing en banc filed by the other side. I am pleased to report that the court denied rehearing today, so the decision is now final.