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Almost Every Florida Appellate Rule Changes on New Years’ Day 2019

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Get your pencils ready–your filings and your calendar will need some adjustment!

The Florida Supreme Court has substantially amended the Florida Rules of Appellate Procedure, changing language in nearly every rule in the book along with related rules from the Florida Rules of Judicial Administration.  It accomplished this through issuing three separate opinions: SC17-152 [.pdf]; SC17-882[.pdf], and SC17-999 [.pdf].  The amendments change, well, almost everything!

The amendments become effective on January 1, 2019.

All the amendments become effective on January 1, 2019, but at two different times: SC17-152 and SC17-999 go into effect at 12:01 a.m., while SC17-882 goes into effect as of 12:02 a.m.

The biggest trap for everyone?  The time periods and mailing issues.

We’ll talk about this again in-depth in the near future, but the elimination of mailing days for every electronically-served document in Florida courts, and then the lengthening of many appellate deadlines to compensate, will require everyone’s calendaring procedures to change significantly. Spoiler alert — in most instances you will actually have more time under the new rules than you did under the old rules.

This post, Part I of a multi-part series, provides a brief summary of every substantive amendment organized by rule.  Following posts will investigate and elaborate on different aspects of the numerous changes.

Summary of appellate-related rule changes (with links)

Before we dive into the analysis though, let’s just get the big picture. Here’s our summary of the changes, with links for your review.
*All links to Supreme Court opinions are to the .pdfs of those opinions.

Rule

Change

Source

Fla. R. Jud. Admin 2.514 [.pdf, entire rule set]
  • When a period is stated in days or a longer unit of time, “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.”
  • 5 days added for only traditional mailing.  No more days for
    electronic service.

SC17-882, p. 9

Fla. R. Jud. Admin 2.516 [.pdf, entire rule set]
  • E-Mail service no longer treated as mail service for computation of time.

SC17-882, p. 10

Fla. R. App. P. 9.010
  • Added applicability of Fla. R. Jud. Admin (formerly in 9.020(h)).

SC17-152, p. 22

Fla. R. App. P. 9.020
  • Removes section regarding Fla. R. Jud. Admin.
  • Reorganizes subsection on motions tolling rendition (without substantive change).
  • Defines “conformed copy.”
  • Other format changes, renumbering of subsections.

SC17-152, pp. 22-24

Fla. R. App. P. 9.030
  • Non-substantive changes only.

SC17-152, pp. 25-27

Fla. R. App. P. 9.040
  • Non-substantive changes only.

SC17-152, pp. 27-28

Fla. R. App. P. 9.100
  • Non-substantive changes only.
  • A reply is due within 30 days of the response.

SC17-152 pp. 29-30

SC17-882, p. 16

Fla. R. App. P. 9.110
  • Clarifies that scope of review in partial final judgments limited to any matter or ruling prior to filing of notice that is directly related to the aspect of the
    judgment under review.
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 30-32

SC17-882, pp. 16-17

Fla. R. App. P. 9.120
  • Omits requirement of appendix for initial brief on the merits in discretionary review over district court decisions.
  • Respondent’s brief on jurisdiction must be served within 30 days of service of petitioner’s brief.

SC17-152, pp. 32-33

SC17-882, p. 17

Fla. R. App. P. 9.125
  • Omits specific format for signature block on certification in form for pass-through appeals to supreme court.

SC17-152, pp. 33-34

Fla. R. App. P. 9.130
  • Adds two new categories to the list of nonfinal appealable orders: “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed;” and “grant or deny a motion to disqualify counsel.”
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 35-36

SC17-882, p. 18

Fla. R. App. P. 9.140
  • Attorney of record for appellant must serve designations to be served on the court reporter, and service must occur before attorney of record will be allowed to withdraw from representation on appeal.
  • Modifies the return of the record rule to require return of only non-electronically filed parts of the record after final disposition of the appeal.
  • When a 3.800(b)(2) motion is filed, the clerk must supplement the appellate record with the motion, any response, any resulting order, and any motion for rehearing, response, and order on the motion. The supplement must be filed within 20 days after filing of the order disposing of the motion.  If no order is filed within 60 days, the 20 days runs from the end of the 60-day period and requires a statement in the supplement that no order was timely filed.  If a motion for rehearing is filed, the clerk must transmit the supplement within 5 days of the order disposing of the rehearing. If no order issues within 40 days, the 5-day period runs from the end of the 40-day period, and the supplement must include a statement that no order was timely filed.
  • “A defendant may cross-appeal by serving a notice within 15 days of service of the state’s notice or service of an order on a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).”
  • “[I]n an appeal by the state under rule 9.140(c)(1)(K), the state’s notice of cross-appeal shall be filed within 15 days of service of defendant’s notice or service
    of an order on a motion pursuant to Florida Rule of Criminal Procedure
    3.800(b)(2).”

SC17-152, pp. 38-39

SC17-882, p. 19

Fla. R. App. P. 9.141
  • Requires the clerk to index, paginate, and send to parties the record on collateral and postconviction cases.
  • Allows for directions to clerk within 10 days of notice of appeal.
  • A reply may be served within 30 days after service of the response.

SC17-152, pp. 42-43

SC17-882, p. 20

Fla. R. App. P. 9.142
  • Non-substantive changes.
  • The briefing schedule allows that the state has 50 days from the date the defendant’s brief is served, and the defendant has 40 days from the date the state’s brief is served.
  • In petitions seeking review of nonfinal orders in death penalty postconviction proceedings, the petitioner may serve a reply within 30 days of the State’s response.

SC17-152, pp. 44-46

SC17-882, pp. 20-21

Fla. R. App. P. 9.145
  • Non-substantive changes
    only.

SC17-152, pp. 47-48

Fla. R. App. P. 9.146
  • In juvenile dependency, TPR, and cases involving families and children in need of services, mandates that review of trial court orders on motions seeking a stay pending appeal shall be by motion.
  • Adds detail for briefing schedule in cases in which more than 1 initial or answer brief is authorized.
  • When an order issues allowing counsel to withdraw, counsel must within 5 days certify that counsel has forwarded the record and transcripts to the parent or is
    unable to do so after making diligent efforts to find the parent.
  • In Dependency and TPR appeals, the initial brief shall be served within 30 days of service of the record or index.  The answer brief shall be served within 30 days of the initial brief. The reply brief shall be served within 15 days of the answer brief.

SC17-152, pp. 48-50

SC17-882, p. 22

Fla. R. App. P. 9.150
  • Non-substantive changes only.

SC17-152, p. 50

Fla. R. App. P. 9.160
  • Non-substantive changes only.

SC17-152, pp. 50-51

Fla. R. App. P. 9.170
  • A party choosing the “alternative appendix” method must serve a copy of the direction to the appellate court as well as the lower tribunal.
  • If another party directs the preparation of record, that direction must be served on the appellate court when served on the lower tribunal.

SC17-152, pp. 51-52

Fla. R. App. P. 9.180
  • Requires a judge of compensation claims to select an approved court reporter and transcriptionist.
  • Deposit of estimated costs due within 20 days of service of notice of estimated costs.
  • Written objections to selected court reporter or transcript due within 20 days of service of notice of selection.
  • Verified petition to be relieved of costs must be filed within 20 days after service of the notice of estimated costs.
  • Lower tribunal may enter an order on the merits of a petition to be relieved of costs without an objection filed after 30 days following the service of the petition.

SC17-152, pp. 53-57

SC17-882, pp. 23-24

Fla. R. App. P. 9.190
  • Removes reference to section 120.56 (rule challenges) in procedures for proceedings involving disputed issue of fact.
  • Creates new subsection for procedures for appeal from rule challenge proceedings under section 120.56.

SC17-152, pp. 57-61

Fla. R. App. P. 9.200
  • Requires service of designations to court reporter upon the court reporter or
    transcriptionist.
  • Reorganizes requirements of court reporter upon receipt of designation, moves to different subsection.
  • Moves requirements for organization of transcripts in the record to its own subsection.
  • Objections or amendments to proposed statement of evidence or proceedings must be served within 15 days of service of the proposed statement.
  • The cross-appellee has 15 days to direct the clerk to include additional documents, exhibits, or transcripts from the service of the cross-directions.

SC17-152, pp. 61-63

SC17-882, p. 25

Fla. R. App. P. 9.210
  • Clarifies that briefs filed in electronic version need not be also filed in paper.
  • Cover sheet of brief now requires email address of attorney filing the brief.
  • Formalizes the “one attorney, one brief” rule.
  • If more than one initial or answer brief is filed, the responsive brief is due to be served within 20 days after the last prior brief.  If the last brief is never served, the time runs from the date on which it was due to be served.
  • “Unless otherwise required shall be served within 30 days after service of the initial brief; the reply brief, if any shall be served within 30 days after service of the answer brief; and the cross-reply brief, if any, shall be served within 30 days thereafter.”

SC17-152, pp. 64-65

SC17-882, pp. 25-26

Fla. R. App. P. 9.225
  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.310
  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.320
  • Request for oral argument due 15 days after the last brief (or the reply in a petition proceeding) is due to be served.

SC17-882, pp. 26-27

Fla. R. App. P. 9.330
  • Adds “written opinion” to the title of the rehearing and clarification rule.
  • Details requirements for a motion for certification.
  • Details and outlines requirements for a motion for written opinion.
  • Eliminates the requirement for a certification for a motion for a written opinion.
  • “All motions filed under this rule with respect to a particular order or decision must be combined in a single document.”
  • Clarifies that rule only applies to orders that resolve appeals, original proceedings, or motions for appellate proceedings.  Does not limit inherent authority to reconsider nonfinal appellate orders.
  • “A response may be served within 15 days of service of the motion.”
  • In bond validation proceedings, a “reply may be served within 10 days of service of the motion.”

SC17-152, pp. 66-69

SC17-882, p. 27

Fla. R. App. P. 9.331
  • Court will now notify parties once it decides to determine a proceeding en
    banc.
  • Signature block under required statement for rehearing en banc omitted.
  • “A response may be served within 15 days of service of the motion.”

SC17-152, pp. 69-70

SC17-882, p. 28

Fla. R. App. P. 9.350
  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 10 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b)
  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 15 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b).

SC17-152, pp. 71-72

SC17-882, p. 28

Fla. R. App. P. 9.360
  • Clarifies that joinder is only realignment of existing parties to appeal; it does not allow addition of new parties parties.  Rephrases procedures for joinder as seeking realignment from appellee or respondent to appellant or petitioner.
  • The body of the notice shall reflect a new proposed caption.  Clerk will change the caption upon receipt of notice and payment of fee.

SC17-152, pp. 72-73

Fla. R. App. P. 9.370
  • Leave of court is required to serve an amicus brief in regards to rehearing, rehearing en banc, or certification to the supreme court.
  • Notice of joinder must be served within 15 days of the notice of appeal or petition.

SC17-152, pp. 72-73

SC17-882, p. 290

Fla. R. App. P. 9.380
  • NEW RULE – Notices of related case or issue are now required to be filed.  No argument allowed.

SC17-152, p. 74

Fla. R. App. P. 9.400
  • Adds time limits for filing a motion for fees in discretionary proceedings under rules 9.030(a)(2)(A) and 9.030(a)(2)(A)(v).
    • 9.030(a)(2)(A) – no later than time for serving the respondent’s brief on jurisdiction, or if jurisdiction is accepted, the time for serving the reply brief.
    • 9.030(a)(2)(A)(v) – no later than 5 days after filing of the notice, or if jurisdiction is accepted, the time for serving the reply brief.

SC17-152, pp. 74-75

Fla. R. App. P. 9.410
  • Omits signature requirement following the certification of service.
  • Initial service of the motion must be no later than the time for serving a permitted response to the challenged document or, if no response is permitted, within 20 days after the service of the challenged document or the presentation of argument at oral argument.
  • Respondent has 15 days from final service of a motion to serve response.

SC17-152, pp. 74-76

SC17-882, p. 30

Fla. R. App. P. 9.420
  • Clarifies that service of petitions invoking original jurisdiction shall be by both e-mail and paper format.

SC17-152, pp. 77-78

Fla. R. App. P. 9.430
  • Non-substantive changes only.

SC17-152, pp. 78-79

Fla. R. App. P. 9.500
  • Clarifies governing provision of Florida Constitution, requires court to allow interested persons to be heard once request is determined to be within the purview of the applicable provision.
  • The justices must file their opinions not less than 10 days from date of request unless delay would cause public injury.
  • The governor shall be advised in writing.

SC17-152, pp. 79-80

Fla. R. App. P. 9.510
  • Procedures for advisory opinions to attorney general modified.
  • Requires justices to render their opinions no later than April 1 of the year in which an initiative is to be submitted to the voters pursuant to article XI, section 5 of the Florida Constitution.

SC17-152, pp. 80-81

Fla. R. App. P. 9.700
  • Non-substantive changes only.

SC17-152, p. 81

Fla. R. App. P. 9.710
  • Non-substantive changes only.

SC17-152, pp. 81-82

Fla. R. App. P. 9.720
  • Non-substantive changes only.

SC17-152, pp. 82-83

Fla. R. App. P. 9.800
  • Numerous amendments to the citation rule.

SC17-999

These rule changes follow on the heels of last year’s amendments to the appendix rules and some other substantive amendments.  At this point, almost every appellate rule has been changed in the last year, so best practice would require looking up every rule and not relying on memory.

Stay tuned for more analysis.

We’ll go further in-depth into the time changes, the newly-appealable non-final orders, and other facets of these rule changes in future blog posts.  Enter your e-mail address in the box to the right to get up-to-date news and analysis on these topics and other news and events as they relate to appellate practice in Florida.

 

 

30 Days Means 30 Days When It Comes To Proposals For Settlement

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(1917) Going-Going-Gone!. United States, 1917. [Photograph] Retrieved from the Library of Congress, https://www.loc.gov/item/2002695576/.

Since 2016, the Second and Fifth Districts have been in conflict as to whether a motion for extension of time to respond to a proposal for settlement (PFS) under section 768.79, Florida Statutes, and Florida Rules of Civil Procedure 1.090  and 1.442 [.pdf] will toll the time to respond while the motion remains pending.  The Supreme Court in  Koppel v. Ochoa [.pdf] has now settled the conflict, holding that no motion will toll time for responding to a PFS.

The Conflict between the Second and Fifth Districts.

In 1997, the Fifth District in Goldy v. Corbett Crane Services held that a motion to enlarge time to respond to a proposal for settlement tolled the responsive period until the motion could be heard.  The court noted that there was no prejudice by applying this rule, because the offerror “always has the power to withdraw the offer at any time before acceptance if the [offeror’s] position changes.”

In 2016’s Ochoa v. Koppel [.pdf], the Second District considered a situation where a party accepted a proposal for settlement after 30 days had lapsed, but where a motion for extension of time had been filed before the 30-day mark and had not yet been heard.  The trial court enforced the settlement.  On appeal, the Second District reversed.  The court held that while a party may seek and obtain an extension of time to respond to a proposal for settlement under rule 1.090, that the motion itself did not create any tolling effect.  The Second District certified conflict with Goldy.

The Supreme Court agrees with the Second, disapproves the Fifth.

The Supreme Court took review of the conflict between Ochoa and Goldy to consider “whether the filing of a motion under Florida Rule of Civil Procedure 1.090 to enlarge the time to accept a proposal for settlement automatically tolls the 30-day deadline for accepting the proposal until the motion is decided.”  Koppel v. Ochoa.  It conducted a strict analysis of section 768.79; Rule 1.442 and Rule 1.090, refusing to consider or apply other rules because, it held, neither rule 1.090; nor 1.442; were ambiguous so the rules of construction were inapplicable.

Ultimately, the court recognized that both sides had valid concerns about abuse of the process that might support the logic of a tolling rule, but that the rules simply did not allow tolling.  It approved the Second District’s decision.

This decision impacts anyone with a PFS in a pending case in any Florida court, as well as anyone filing any extension of time in the trial court.

The Supreme Court took special care to rule that its decision would apply both prospectively and retroactively.  Thus, anyone with a pending PFS issue in the Fifth DCA that has relied on Goldy should take special note–you may have already lost your right to accept a proposal for settlement if more than 30 days has passed without a court order granting an extension.

The Supreme Court’s main ruling was also rather broad, and likely intentionally so.  It expressly stated Rules 1.090 and 1.442 do not, and did not, provide for tolling of the time periods by the filing of a motion for extension and are applicable to this and all other cases.”  Thus, no motion for extension of time will ever toll time in the trial court, whether it involves a PFS or a completely different proceeding (unless the rule specific to your proceeding provides for it).

These are dangerous traps for the unwary, both trial attorneys who are accustomed to trial judges allowing tolling as a matter of course, and for appellate practitioners in trial courts because they are accustomed to working with the Florida Rules of Appellate Procedure (which do provide for tolling on most motions on appeal, see rule 9.300.  Don’t get caught by this new trap!  If you have any concerns about how this new decision may impact your trial court case, give us a call and we can help.

Full disclosure: Jared Krukar was involved in the litigation of this case at the Second District Court of Appeal level.

Have You Seen the Second DCA’s New Procedures on Oral Argument?

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Jared and Judges of Second D C A at Practicing Before the Second D C A C L E.

Jared Krukar introduces the judges of the court at the 2017 Practicing Before the Second DCA CLE presented by the Florida Bar Appellate Practice Section. Photo by Kristin Norse.

The Second District Court of Appeal has long been known for its liberality in granting oral argument, but also had a discrete list of types of cases in which it would almost never do so.  However, the Court recently updated its Internal Operating Procedures[.pdf] (“IOPs”) to reduce the list of exceptions and leave the judges with more express discretion.

The prior Internal Operating Procedures expressly listed six types of cases where oral argument was “not generally permitted.”

The IOPs were last amended on October 15, 2015.  In that version, the Court stated it would generally not permit oral argument in appeals in which a pro se party is incarcerated, reemployment assistance appeals, original proceedings, postconviction appeals, 9.130 final and nonfinal appeals, and motions.

The Court always had discretion to grant oral argument in any of these cases, but rarely deviated from the list.

The new Internal Operating Procedures reduce the exceptions, but expand apparent discretion.

The revised IOPs, effective as of April 12, 2018, no longer expressly exclude from oral argument original proceedings, final and nonfinal 9.130 appeals, nonsummary postconviction appeals where the parties are represented, reemployment assistance appeals, or motions.

However, the IOPs added new language that elucidates the Court will likely apply discretion on a case-by-case basis more than it has in the past:

Requests for oral argument in expedited proceedings, including termination of parental rights and dependency cases, are presented first to the merits panel.  Upon the panel’s decision to grant oral argument, the clerk will set the case on an expedited basis.

Other than expedited proceedings, cases are set for oral argument prior to the assigned panel’s review.  As such, the cases are provisionally set for oral argument.  Should the panel of assigned judges decide unanimously that the court will not benefit from oral argument, the clerk will be directed to notify the attorneys or parties by order that the argument is cancelled.  An order cancelling argument for this reason will generally issue no later than two weeks before the date of the scheduled argument.

While the current IOPs still say that “the court permits oral argument as a matter of course in most proceedings,” this new language makes clear that the Court is aware of its discretion and will inevitably use it to reject oral argument when it deems fit to do so.

Does this mean more or less oral arguments in the Second District?

Well, according to the IOPs, it now appears that one can seek oral argument in nonfinal appeals, original proceedings, and certain other cases whereas before extraordinary measures would need to be taken.

But don’t jump the gun just yet.  The Second District’s “Notice to Attorneys and Parties[.pdf]” still contains a list of types of cases excluded from oral argument, and it still matches what the old IOPs said.  Presumably the Second District will be updating the notice to match the new IOPs, but for now, it governs what parties can file.  Also, check out our post on the Second District’s Practice Preferences as well to be sure you’re complying with all current requirements.

If you have a case on appeal and aren’t sure whether oral argument is available, or whether it is the best option for you, contact us and ask.  There are pros and cons to every decision like this, and we can help you make the right choice for you and your case.