Dead End by Dineen Pashoukos Wasylik All Rights Reserved

Is it Appealable? July 2018 edition

/0 Comments/in , , , , , , , , , , , , , , , , , , , , /by
A street sign that displaying "dead end"

Is it appealable, or a dead end? Several district court decisions from this month answer that question in different ways.

Appealable or not?  The courts decide…

The immediate reaction to an adverse ruling is often “I want to appeal that!” But not all orders are immediately appealable, as several cases this month have shown. And sometimes, an order is immediately appealable even if the case continues for other reasons, and you can waive your rights to appeal if you don’t act immediately. The district courts of appeal have issued a number of decisions this month regarding appellate jurisdiction to review a trial court’s order, which usually comes down to the question “Is this a final order?” Below we’ve summarized just a few of the cases discussing finality and appealability the courts issued in July, grouping them by type of order. As always, if you have any questions regarding the finality or appealability of an order, contact us and we’d be glad to talk about your situation with you!

Orders on fees.

FCCI Commercial Insurance Co. v. Empire Indemnity Insurance Co., 2D17-1749 (Fla. 2d DCA July 13, 2018)[.pdf]

FCCI intervened in a pending case against its insureds after the trial court disqualified the attorney FCCI had retained on its insureds’ behalf and awarded attorneys’ fees to Empire based on that attorney’s misconduct. When FCCI appeared, the trial court imposed the award of those fees upon FCCI based on its finding that FCCI had directed the disqualified attorneys’ actions.  FCCI appealed that order.

On appeal, Empire argued the appellate court did not have jurisdiction over the appeal, presumably because there were proceedings still pending in the trial court.  The court disagreed, holding “Not only is the order awarding Empire attorney’s fees an executable judgment against FCCI concluding a portion of the litigation ancillary to Empire’s ongoing litigation against [FCCI’s insureds and other defendants], . . . but FCCI’s limited intervention solely for the purpose of addressing fees demonstrates that the conclusion of the attorney fees proceeding ended judicial labor as to FCCI,” citing Florida Rule of Appellate Procedure 9.110(k)(review of partial final judgments) and a number of cases.

Yampol v. Turnberry Isle South Condominium Association, Inc., 3D17-2752 (Fla. 3d DCA July 5, 2018)[.pdf]

After dismissing a case in the trial court, both parties (Yampol and Turnberry) moved for attorney’s fees.  The trial court entered an order that denied Turnberry’s fees and granted Yampol entitlement to fees.  Upon a motion for reconsideration, the trial court changed its mind, granting Turnberry entitlement to fees and denying Yampol’s motion.  Yampol appealed.

Turnberry moved to dismiss the appeal, arguing that the order was not yet final because it found only entitlement, and not amount, as to its award of fees.  The appellate court determined “[t]he issue before us in this appeal is whether an order that grants one party’s entitlement to fees and denies the other party’s entitlement to fees ins an appealable final order.”

Ultimately, the court ruled the order was appealable because an “order denying a party’s claim for entitlement to attorney’s fees . . . is an appealable final order,” even if an order granting attorney’s fees as to entitlement but not to amount is not appealable.  The trial court ended all litigation as to Yampol’s fees in its second order so the order was final and appealable as to Yampol. This is a great example of how the same order can be final and appealable for one party but not another.

Orders to show cause.

Torres v. Lefler, 2D17-2741 (Fla. 2d DCA July 13, 2018)[.pdf]

The trial court ordered Mr. Torres to show cause within ten days why he should not be sanctioned for repeatedly filing frivolous lawsuits, failing which, sanctions would be imposed.  Mr. Torres filed a notice of appeal before the ten days was up.  The appellate court dismissed the appeal from that order, holding that the trial court merely reserved jurisdiction to impose sanctions and thus the order was not final or appealable.

Amended temporary orders while an appeal is pending.

Duryea v. Bono, 2D17-4314, 2D17-4422 (consolidated) (Fla. 2d DCA July 13, 2018)[.pdf]

In this family law appeal, the trial court rendered a Temporary Order for Timesharing on October 27, 2017.  Duryea filed a notice of appeal.  Then the trial court rendered an Amendment to the Temporary Order for Timesharing on November 2, 2017, substantively modifying the October 27, 2017, order.  Duryea filed another notice of appeal.

The appellate court affirmed the October 27, 2017, order.  However, it held that the November 2, 2017, order was a nullity because it was entered while the appeal from the prior order was pending and was substantive in nature.  Consequently, the court remanded with directions to vacate the November 2, 2017 order.

Orders granting partial summary judgment incorporating injunctive relief.

Woodfield Community Association, Inc. v. Ortiz, 2D18-341 (Fla. 2d DCA July 13, 2018)[.pdf]

The Ortizes sued their homeowner’s association.  In count 1, they sought a declaration that parking restrictions were void and unenforceable.  They moved for partial summary judgment, which the trial court granted.  The court declared prior fines void and enjoined the homeowner’s association from imposing further fines.  The association appealed.

The appellate court recognized that “Generally, orders that merely grant partial summary judgment, such as the one before us, are considered nonfinal, nonappealable orders.”  “However, Florida Rule of Appellate Procedure 9.130(a)(3)(B) provides us jurisdiction to review the portion of the order enjoining the association from enforcing the recorded declaration.”  The appellate court dismissed all other portions of the association’s appeal that did “not pertain to injunctive relief,” without prejudice to raising those issues in a later final appeal.

Timeliness of Notice of Appeal.

Elmouki v. Department of Transportation, 1D18-0715 (Fla. 1st DCA July 9, 2018)[.pdf]

The Commercial Motor Vehicle Review Board issued a letter rejecting Elmouki’s challenge to a citation he received while operating a commercial motor vehicle.  The letter was dated January 18, 2018, but included a timestamp showing it was filed with the clerk of the Department of Transportation on January 17, 2018.  Elmouki filed his notice of appeal on Monday, February 19.

The appellate court held that the 30-day time period for Elmouki to file his notice of appeal ran from the date the letter was rendered, which was the date it was filed with the Department.  Consequently, the time for Elmouki to file his notice of appeal expired on Friday, February 16, and Elmouki’s February 19 notice was untimely.

The appellate court dismissed the appeal without prejudice to Elmouki petitioning the Review Board to vacate and reissue the letter so that he could appeal.

In rem vs. personal jurisdiction.

Patel v. Wilmington Savings Bank, FSB, 5D17-1900 (Fla. 5th DCA July 6, 2018)[.pdf]

The trial court denied the Patels’ motion to quash constructive service of process, ruling that it had in rem jurisdiction.  The Patels appealed, presumably pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), which authorizes an appeal from a non-final order that determines the jurisdiction of the person.

However, the trial court did not determine the jurisdiction of the person, it only ruled on jurisdiction in rem, or over the property at issue.  Consequently, the appellate court held that rule 9.130(a)(3)(C)(i) did not provide a non-final appeal from the trial court’s order and thus dismissed the appeal.

Mootness.

Mitchell v. Brogden, 1D16-5849 (Fla. 1st DCA July 16, 2018)[.pdf]

Mitchell appealed a stalking injunction that expired by its own terms while the appeal was pending.  “Nonetheless, [the court held,] we cannot dismiss the appeal as moot because ‘collateral legal consequences flowing from such an injunction outlast the injunction itself.'” (citation omitted).

Preservation by motion for rehearing.

Mahoney v. Mahoney, 1D17-2071 (Fla. 1st DCA July 9, 2018)[.pdf]

Former Husband waived arguments for appeal regarding lack of written findings on trial support and some arguments regarding the cut-off date for the identification of a retirement plan as a marital asset by failing to include those arguments in a trial court motion for rehearing.

Looking for more?

Check out our past blog posts on rendition, timing of your notice of appeal, and post-judgment tolling motions, and check out our Florida Bar Journal article on how trial court motions for rehearing affect preservation on appeal.  Or scroll through the blog for more!

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

/0 Comments/in , , , , , , , , /by

(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.

5th District Court of Appeal

Fifth District to Allow Parties to Appear Remotely at Oral Argument

/0 Comments/in , , , /by

The Fifth District Court of Appeal has put in place a pilot program allowing attorneys and parties to appear at Oral Argument remotely.  The limited program is the first of its kind in Florida.

5th District Court of Appeal Oral Argument

You will be able to avoid a visit to Florida’s 5th District Court of Appeal under the pilot program launching June 5, 2018.

The details of the new program

Starting on June 5, 2018, the Fifth District will allow parties set for Oral Argument to appear either in person at its Daytona Beach courthouse, or remotely from the Marion County Courthouse in Ocala.  The details are set forth in Administrative Order No. AO5D18-01 [.pdf].  In brief,

  • Participation is completely voluntary, and either one or both sides may participate.
  • Any technological problem on the day of argument will result in switching to standard teleconference.
  • Remote oral arguments will be placed first on the daily docket.
  • Courtroom decorum rules apply at the remote location, so no flip flops!

How to sign up

To participate, a party must file a “Notice of Remote Argument,” copied to the opposing party, and send an email to the Fifth District’s clerk.  These must be filed and sent no later than seven days before the scheduled oral argument.  No order will issue – the remote argument is deemed granted upon the Marshal replying with a confirmation email.

Is this the future?

Probably, but it’s not all positive.

There are many benefits to the application of technology to the judiciary–see some of our past articles on e-filing, electronic access, and other technology changes for some examples.  Travel for oral argument is not an insignificant burden on parties and attorneys, both in time and money.  Removing that barrier will allow parties freedom and a more academic determination as to whether to pursue oral argument.

But there is certainly something to be said about appearing before the courts in person.  The parties only have a few precious minutes of face time with the court, and anyone who has used videoconferencing on their own knows that it is possible for something to be lost in translation.  The question will be whether remote appearances can adequately provide the same level of familiarity and experience.  Only time will tell, and the answer will probably not be determined until long after June 5.