Calendar Carefully: Excusable Neglect

Repeat after the Eleventh Circuit:

“The timely filing of a notice of appeal is a mandatory prerequisite to the exercise of appellate jurisdiction.”

(citation omitted).

Sure, there’s an out in Federal Court. You can ask the trial court for an enlargement of time to file the notice of appeal — if you can demonstrate excusable neglect or good cause. But in a recent unpublished opinion, the Eleventh Circuit upheld the trial court’s denial of such a motion, noting that:

miscalendaring a deadline was within the reasonable control of the Plaintiff, and that the “cumulative effect” of the Plaintiff’s missed deadlines exhibited an absence of good faith

The moral of the story: Don’t ever rely on a Rule 4(a)(5)(A)(ii) motion to extend the time to file a notice of appeal. The bar for establishing “excusable neglect or good cause” is a moving target, and review of the trial court’s decision on such a motion is on an abuse of discretion standard. So don’t mess around with your calendaring!

The case is Global Horizons Inc. v. Del Monte Fresh Produce N.A., Inc., No. 09-16508 (11th Cir. Aug. 17, 2010) [.pdf].

Trial Court’s Mandamus Reviewable

If a trial court’s stay order maintains the status quo, can the order be reviewed under Florida Rule of Appellate Procedure 9.130? Or, in plain English, is an injunction by any other name still a reviewable injunction? The Third DCA says yes.

In City of Sunny Isles Beach v. Temple B’Nai Zion, Inc., No. 3D10-1137 (Sept. 8, 2010) [.pdf], the city and the Temple are wrangling over whether the Temple can demolish its existing building to make way for a new one, or whether the city can prevent demolition by naming the Temple a historic site. The trial court issued a “writ of mandamus” that ordered the city not to designate the property as an historic site while the case proceeded. The City appealed, and the Court answered the threshhold question — whether the “writ” was an appealable non-final order — in the affirmative.

Florida Rule of Appellate Procedure 9.130(a)(3)(B) allows district courts of appeal to review “the non-final orders authorized herein”, including those that:

(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;

So is a “mandamus” an injunction? It is when its purpose serves the same purpose as an injunction:

However, “[t]he very purpose of a temporary injunction is to preserve the status quo in order to prevent irreparable harm from occurring before a dispute is resolved. The Order in this case, by preserving the status quo … clearly constituted a temporary injunction.”

(citation omitted). Once framed as an injunction for review purposes, the court went on to explain that the order should also be reviewed as an injunction, and thus must comply with Florida Rule of Civil Procedure 1.610. It didn’t, and the Court therefore held the order to be an abuse of discretion.

Dismissal Sanction Too Extreme

Is a single violation of the Rules of Appellate Procedure severe enough to justify dismissal of the appeal as a sanction?

The Second DCA answered the question in the negative in Altman v. State, __ So.3d ___, No. 2D09-3871 (Aug. 6, 2010)[.pdf]. The opinion makes clear that the record is not exactly a model of clarity, due in large part to the fact that the appellant filed an inadequate Appendix. I’ve said it before: a proper Appendix is critical to effective appellate review.

Still, the Court still went out of its way to review, on certiorari, a lower courts’ dismissal of the appeal for failure file a timely brief. The case appears to be a criminal appeal where the circuit court acted in an appellate capacity, and the DCA’s patience may have been bolstered somewhat by the trial court conflating the rules for when a criminal appeal is due with the rules for when a civil appeal is due.

In any event, the circuit court sitting in its appellate capacity thought the brief was late, and relying on Florida Rule of Appellate Procedure 9.410 issued an order to show cause why the appeal shouldn’t be dismissed for failure to file a timely brief. The Appellant indirectly responded by moving for an enlargement of time to file a brief, explaining that the record was not yet completely transcribed. The Appellant was granted that enlargement, which gave her until July 23rd to file her initial brief.

Inexplicably, the court dismissed her appeal sua sponte on July 21st, vacating the enlargement of time that had been entered as “improvidently granted.” On review to the Second DCA, the Court held that this action failed to comply with procedural due process and the notice requirements of Rule 9.410. The Court concluded that “Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules. Without more, however, the failure to file a brief on time is not a serious enough violation to warrant dismissal of an appeal.” (emphasis in original).