Appeals 101: How do I initiate my Florida civil appeal?

The Second District Court of Appeals’ Clerk’s Office is in Lakeland, FL. But you don’t have to visit — you can file your filing fee by mail or online!

Timing of Your Notice of Appeal

In a standard civil case in Florida, one initiates an appeal by (1) filing a notice of appeal and (2) paying the filing fee.  This applies to appeals from both final (see Fla. R. App. P. 9.110) and non-final (see Fla. R. App. P. 9.130(b)) orders.  You have 30 days from the date your ordered is rendered to file your notice (stay tuned for an upcoming Appeals 101 post on what “rendered” means for appellate purposes).

Format of Your Notice of Appeal

The notice is a simple document — it does not contain argument, and it does not have to tell the court why you are appealing. Rather, it contains only basic contents — just enough to let the Court know what you are appealing and by what authority. Specifically, the notice must contain a caption, the name of the court to which the appeal is taken, the date of rendition, and the nature of the order to be reviewed. It is also critical to attach a copy of the order on appeal to the notice. The rules actually contain a sample notice to follow [.pdf].

Filing and Fees for Your Notice of Appeal

So how, and where, do you accomplish these filings?  You go to the court that issued the order you want to appeal (sometimes referred to as the “trial court” or the “lower tribunal”).  That is where you will file your notice of appeal.  As far as fees, you’ll have to pay a fee both to that court, and to the appellate court.  These days, both your notice of appeal and your filing fees to the courts can be paid online.

An example:  You are appealing to the district court of appeal a final order of the circuit court.  You must file your notice of appeal with the circuit court clerk, along with a $100 filing fee.  You may also have to pay other small handling fees, such as a $2 “certification” fee, or credit card fees.  Your notice of appeal will be sent to the district court of appeal.  Upon receipt of the notice, the district court will assign your case a new number, and will often issue an order or notice stating that its filing fee has not been paid.  You then must pay the district court an additional $300. Note that this procedure doesn’t really match up with the rules — before electronic filing, you were supposed to send your check to the circuit court clerk for both filing fees, but the rules haven’t caught up with technology, and the District Court does not take issue with you paying your filing fees after it assigns a case number, so long as you do it quickly. At that point, your appeal is fully initiated.

Filing a Notice of Appeal of a County Court Decision

The process is generally the same for appealing county court orders to the circuit courts, although the amounts of the fees vary slightly.

Filing a Notice of Cross-Appeal

And if someone else has filed a notice of appeal already and you want to file a cross-appeal, you’ll have to pay the appellate court $295.

For more information, look to the rules for final appeals and non-final appeals, and check out some of our other blog posts at flabarappellate.org.

What Happens if My Notice of Appeal is Late?

Be careful, because failing to file the notice of appeal on time will result in dismissal of your appeal for lack of jurisdiction.  A late notice of appeal is not something that can be fixed.  And while the courts are somewhat forgiving if you merely file in the wrong court or don’t pay the filing fee right away, they can still dismiss your appeal before you even get a chance to argue the merits if you don’t straighten out those defects fast.

Don’t Mess Around With Your Notice of Appeal

The rules of appellate procedure can be complicated and intimidating, but we’re here to help. Because the 30 day deadline comes fast, call our office for a consultation at 813-778-5161 if you are thinking of filing an appeal. Day 31 is too late. Count wrong, and it can be too late. Misunderstand rendition, and it can be too late. In fact, because understanding rendition can be tricky — and because your appeal can sometimes be stronger if you file a timely and authorized motion for rehearing, which has a shorter deadline — we recommend you contact appellate counsel within a day or two of learning of the order you want to appeal.

About Appeals 101

This post is part of our continuing Appeals 101 series. Click the link to find all of our posts on the basics of litigating an appeal.

Timing is Everything With Your Notice of Appeal

Yellow Cab Photo Courtesy Flickr.com/Wackystuff

Don’t miss your ride to the appellate court
by filing your notice of appeal late!


Seeking and receiving an amendment to your final judgment does not toll or alter the time to file a notice of appeal, the Third District recently confirmed.

In Yellow Cab Co. v. Ewing, 3D16-969, 2017 WL 2854407 (Fla. 3d DCA July 5, 2017) [.pdf], the trial court entered a final judgment for Ewing that “incorrectly referred to the defendant as Yellow Cab, Inc., rather than Yellow Cab Company.” Yellow Cab did not appeal this judgment, instead waiting until the trial court entered an amended judgment that merely changed the party name. More than 30 days elapsed from the entry of the first final order before Yellow Cab filed its notice of appeal.

Unfortunately for Yellow Cab, longstanding Florida law establishes that “An amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought.” Id., quoting St. Mortiz Hotel v. Daughtry, 249 So. 2d 27, 28 (Fla. 1971). And a simple change of party name is considered a clerical error—an “immaterial change.” Id. The Third District Court of Appeal was without jurisdiction to consider Yellow Cab’s late appeal, and so it dismissed the appeal as untimely.

The Court’s decision does not really break any new ground, but it appears the Third District intended this opinion as another cautionary tale for the unwary. . Once 30 days has run from the date of the entry of the appealable order without a notice of appeal filed, even where the trial court might later enter an amended judgment, the right to appeal could be lost forever.

Appeals 101:  When Can you Seek Rehearing in a State Court Appeal?

Needle in a Haystack

Determining whether there is an issue that warrants rehearing when you aren’t the lawyer who wrote the appeal briefs is like looking for a needle in a haystack.

We often get calls from litigants who have just found out they’ve lost their appeal and want to seek rehearing from the appellate court. Either they handled their appeal on their own, pro se (which we never recommend, but if you plan to do so, the Florida Bar Appellate Section has some great resources here), or else they utilized counsel but now that they’ve lost, they would like a second opinion.

And our answer is the same:  without even looking at your case, I can tell you that the chance of a motion for rehearing being granted is very low, and the likely result of my analysis of your case will be that you do not have a basis for rehearing.  How can I say that without even looking at your case, you ask? Well, it comes down to the rules.  Florida Rule of Appellate Procedure 9.330 governs appellate rehearing, and sets very strict rules about when you can even bring a rehearing motion. The rules even require any lawyer filing such a motion to swear on their bar license that the motion is justified.  So while we are happy to take on a “peace of mind” review of your case to determine whether rehearing is even available, you have to understand that it rarely is.

You have to act quickly

. A motion for rehearing may be filed within 15 days of the District Court’s decision.  Fla. R. App. P. 9.330(a).  Fifteen days is not a lot of time to analyze the entire case file (opinion, all three briefs, and record) and determine whether there are grounds for rehearing, so if your goal is to hire a new lawyer to take a look at the issues, you have to move quickly.  I recommend hiring someone certainly within a week of the decision, if not sooner, so that person has the chance.  Anyone who says they can do a motion for rehearing without thoroughly analyzing all of the prior briefing does not understand motions for rehearing.

You have to meet a high standard

  There are two flavors of Rule 9.330 motion:  Rehearing and Clarification.  As the rule states, a motion for rehearing “shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.”  So basically, you have to walk a tightrope:  You can’t raise a new issue, but you also can’t just reargue what you said before.  Instead, you have to really find a place where the appellate court in its review truly overlooked or misunderstood something.  If you do just re-argue what you said before, you can be sanctioned.  As one court has explained, a motion for rehearing is not “a last resort to persuade th[e] court to change its mind, or to express …displeasure with th[e] court’s conclusion.”  Lawyers Title Ins Group v. Reitzes, 631 So.2d 1100, 1101 (Fla. 4th DCA 1993) (issuing order to show cause why lawyer should not be sanctioned for merely re-arguing the same things in a motion for rehearing).  Such motions should very rarely be filed.

Similarly, a motion for clarification “shall state with particularity the points of law or fact in the court’s decision that, in the opinion of the movant, are in need of clarification”. Fla. R. App. P. 9.330.  But clarification is only useful if something is unclear or confusing in the written opinion, which is rare.  I’ve filed exactly one motion for clarification in my career, and it was, in fact, granted.  I have never been more proud to have 2 words deleted from an opinion that I still lost.  But that just goes to show how rarely these motions should be filed and how even rarer it is to grant them.

In my entire career, I’ve filed only a handful of rehearing motions, and only a few of those were granted. That I’ve had any granted is a great track record, but all it shows is that I don’t file motions for rehearing that break the rule and re-argue what was said before or raise entirely new issues.

Should you bother with a Motion for Rehearing?

  Rehearing is rarely appropriate to request, and even more rarely granted.  It is perfectly reasonable to get an unfavorable decision from the District Court of Appeal, and decide there is nothing more to be done, without further analysis: the odds are stacked against you.  When we represent a client throughout the appeal, we include in our services an analysis of rehearing issues, and make a recommendation as to whether rehearing is appropriate (spoiler alert: the answer is usually no).  When we were not the appellate counsel all along, it’s much harder: to decide whether rehearing is appropriate, one has to read not just the opinion, but the briefs showing what was argued, the cases cited in the briefs, and even the record to understand what happened in the trial court.  That takes time!  We are always happy to analyze a file and look for the tiny nugget of gold that would allow us to file a supported motion for rehearing—for us it’s a fun challenge.  But we charge a fee to do so, because to do it right generally takes several hours of time. And we want to be very upfront that the process is like looking for a needle in a haystack, and the answer will more likely than not be “sorry, we don’t advise seeking rehearing.”

Still not deterred?  If you have gotten a decision from the appellate court and want to hire us to determine whether rehearing is appropriate, feel free to schedule an intake consult.  Be sure to give us your case number and full contact information so we can run a conflicts check.

Photo courtesy of Flickr User Michael Gil Used under a CC 2.0 license