Jean Luc Picard Says Make it So to Effectuate the Mandate

Appeals 101: What is the Mandate?

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Jean Luc Picard Says Make it So and gives the mandate After an appellate Court decides a case, it is still not quite over:  the appeal is only formally concluded once the mandate has issued.  Florida Rule of Appellate Procedure 9.340 requires that the clerk issue the mandate as a ministerial act “after expiration of 15 days from the date of an order or decision.”  The mandate is not issued until after the order is final, and the court won’t enter a mandate while a timely motion for rehearing is pending. Fla. R. App. P. 9.340(b). But what is a mandate, and what should parties do when the mandate has issued?

The Mandate Defined

Florida’s Second District succinctly defined the mandate as “the official mode of communicating the judgment of the appellate court to the lower court, directing the action to be taken or the disposition to be made of the cause by the trial court.”
Tierney v. Tierney, 290 So. 2d 136, 137 (Fla. 2d DCA 1974).  It’s a simple one-page order that tells the trial court, in Star Trek speak, to “Make it so.”  It makes clear that the appellate court has completed its work on the case and now it is up to the trial court to put the appellate court’s ruling into action. And that is all the trial court may do, as the Second District more recently explained: “upon the issuance of our mandate, the trial court is without authority to take any action other than to compose an order carrying out the terms of the mandate. Florida Digestive Health Specialists, LLP v. Colina, 202 So. 3d 94, 96 (Fla. 2d DCA 2016).

What Action Needs to be Taken? It Depends.

Whether the parties need to take an action once the mandate issues depends upon what the appellate court has ruled.  If the appellate court has merely affirmed everything the trial court did — especially if it is a PCA –then there generally is not much more to do to effectuate the appellate court’s ruling on the merits. The judgment is truly final.

But if the Court orders “REVERSED AND REMANDED” then there is usually something the trial court needs to do to effectuate the mandate. It might be just the simple entry of a new judgment reflecting the ruling. It might be a new trial. The parties can’t expect the trial court to just act, though — the parties should seek an appropriate motion or other trial court action to effectuate the mandate. In rare instances, a party may even need to file a motion to enforce the mandate in the appellate court. See, e.g., Whited v. Florida Com’n on Offender Review, 153 So. 3d 324, 329 (Fla. 1st DCA 2014) (granting appellate motion to enforce the mandate and striking trial court’s order that did not effectuate the mandate); Florida Digestive Health Specialists, LLP v. Colina, 202 So. 3d 94, 96 (Fla. 2d DCA 2016) (same).

What Happens Post Judgement Even if Judgment is Affirmed?

The finality of the mandate also give the parties the green light to finalize any fee issues and collect on the judgment. If the appellate court ordered an express or conditional award of attorney’s fees, it will also often order the trial court to determine the amount, and sometimes entitlement, to such fees. If there was a stay pending review, then the parties may need to take steps to end that stay. And the party who attained judgment has the all-clear to enforce that judgment without facing the possibility of having to return the money collected if the judgment is reversed. These collection actions may include proceedings in the trial court to locate assets for payment of a money judgment. In a foreclosure case, if the Bank achieved a foreclosure and that was upheld by the appellate court, the Bank will now take steps to obtain full possession of the property, which may include scheduling a sale if one has not already occurred, or obtaining or enforcing a writ of possession.

Can I keep the judgment from being final by recalling the mandate?

Florida Rule of Appellate Procedure 9.340(a) allows that “The court may direct the clerk to recall the mandate, but not more than 120 days after its issuance.” Many people read this and think they may be able to stop the mandate from issuing and the decision becoming final. But the application of this rule is very narrow, and generally it is only invoked when the Florida Supreme Court or United States Supreme Court has accepted review of a case after a mandate has issued. A party may ask that the mandate be withdrawn pending Supreme Court review. The court can also, in its discretion, recall the mandate if the issue in a case is being considered by a higher court in another case. Mitchell v. State, 160 So. 3d 902, 904 (Fla. 2d DCA 2009).

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.

Appeals 101: Why Rendition Matters

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Rendition is a critical concept in Florida appeals, but not everyone understands its importance. The Fourth District this week in Guy v. Plaza Home Mortgage, Inc., No. 4D17-3335 (April 25, 2018) [.pdf] chided the Broward County Clerk’s foreclosure department for backdating final judgments when entering them on the Court docket. The decision offers a good reminder of the importance of rendition in appellate practice, and the reasons it matters.

Rendered Before Entered?

The case came to the court in an unusual procedural posture — a pro se appellant moved the court to correct the record because while the summary judgment hearing was held at 1:30 pm, the judgement’s electronic stamp “indicates that it was filed with the Broward County Clerk…at 8:35 a.m., nearly five hours hours earlier.”

The Broward Clerk explained that when the clerk’s office received the order from chambers, often a day or more after it was signed, its practice was to scan the item — which added a time and date stamp — then change the date but not the time to the date the order was signed by the Court. The result in this case is an order that appears to be rendered prior to being signed. And the result in general is that the real time docket on the date of signature does not show the order, and may not for several days. Then the order will all of a sudden “appear” that the item was added to the docket on the date the order was signed, whether or not the clerk’s office processed it on that day.

Why Rendition Matters

Let’s start with the definition of rendition: “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(i). Rendition can sometimes be tolled, such as when “there has been filed in the lower tribunal an authorized and timely motion for new trial, for rehearing” and a few other specific types of motions. When such a motion has been filed, the order is not considered rendered “until the filing of a signed, written order disposing of the last of such motions.” Id.

The problem, as the Fourth District explained, is that “[t]he time for appeal runs from the date of rendition, not the date the judgment is signed.” See Fla. R. App. P. 9.110(b). “By backdating the electronic filing stamp, the clerk changes the rendition date, possibly to the prejudice of an appellant.”

The Court pointed out that in this case, “appellant’s appellate rights were not affected,” and so the Court denied the motion to correct the record. The Court concluded “We nevertheless disapprove of the this practice as it is inconsistent with the appellate rules.”

How Backdating Rendition Affects Appellate Rights

Kudos to the Fourth District for calling out this potentially prejudicial practice. The time for appeal starts running from the date of rendition, and a backdated docket entry can unexpectedly shorten the time for appeal. We’ve seen a clerk wait 25 days to enter a final order on the docket, and then send the backdated rendered order by mail, leaving the attorney with no time to even discuss appeal with the client. The clerk’s docket is supposed even the playing field and allow all to know when an order is rendered and therefore appealable. Backdating leaves a party without notice and potentially deprives the party of the right to appeal.

The Takeaway on Rendition

When you’re not sure if an order has been rendered, it’s never a bad move to calendar your deadlines based on the date of signature, and regularly check the docket until you are sure of a rendition date. While a premature appeal can be subject to dismissal, if the order is rendered before the appellate court catches that an appeal was prematurely filed, “the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order.” See Fla. R. App. P. 9.110(l).

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.

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

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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.