Mandatory Appellate e-Filing Delayed

To allow more time for the deployment of technology to handle it, the Florida Supreme Court has delayed implementation of mandatory e-filing in the Florida appellate courts. The order [.pdf] sets the new deadlines as follows:

  • February 27, 2013, for the Supreme Court.
  • July 22, 2013, for the Second DCA.
  • September 27, 2013, for the Third DCA.
  • October 31, 2013, for the Fourth DCA.
  • November 27, 2013, for the Fifth DCA.
  • December 27, 2013, for the First DCA.

I find it interesting, but not surprising, that the First and Fifth — both of which have already implemented the eDCA filing system — are the last to be brought into the new eFiling system.  They already have an eFiling system that works for them, and I don’t blame them for having difficulties in changing it.

Rehearing: A Comparison of 9.330 and 1.530

The First District Court of Appeal recently explained the different standards for rehearing at the appellate level versus the trial level under the Florida rules, and it’s an important distinction for both trial and appellate practitioners to keep in mind. The take home lesson: Your last chance at issue preservation is a motion for rehearing, particularly for cases decided at early stages.

The case is Fitchner v. Lifesouth Community Blood Centers, Inc., ___ So.3d ___, No. 1D10–2019 (Fla. 1st DCA April 13, 2012) [.pdf]. Against the background of a complicated procedural history, the Court sets out a terrific discussion of the rehearing standards. The Fitchners sought to amend their complaint after an appellate remand dismissing their complaint, and the trial court denied their motion. With new counsel, they moved the trial court for rehearing, making a new and (as the trial court admitted) “meritorious” argument as to why the amended complaint should be allowed. The trial court nonetheless denied the motion because the argument was being raised for the first time, and had not been “overlooked” or “misapprehended.”

The First DCA ruled the Fitchners had not waived their argument. The Court started its analysis, as we all should, with the text of the rules, in this case a comparison of the text of the appellate rehearing rule, Rule 9.330(a), with the trial-level rule, Rule 1.530(a). The Appellate Rule requires that the movant:

“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 .”

The Civil Procedure rule, by contrast, states:

“[o]n a motion for rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.”

Reading these rules side-by-side, the Court concluded:

“It is clear from a comparison of the text of these two rules that the standard to be applied in trial courts is much broader than the one that applies on appeal. Rule 1.530 is not limited to a mistake the court has made. To the contrary, rehearing may be granted in an appropriate case to prevent an injustice that would be caused by an error or omission by one of the lawyers.”

Trial practitioners should beware, however: Just because the trial court has the power to consider a newly raised issue on a motion for rehearing made pursuant to Rule 1.530, does not mean it is required to do so. It is still best to raise every issue in your original motion. But the trial court did have the power to consider the new argument raised, and as a result the new issue was preserved for appellate review. The Court went on to reverse the dismissal based upon the legal argument raised and rejected in the Fitchners’ motion for rehearing.

As an aside, the decision also contains helpful analysis of the law of the case doctrine. More on law of the case in a future post.

Final Agency Action

Got your Road to Independence scholarship terminated? The First DCA says that’s not a final agency action subject to review. In Wade v Florida Department of Children and Families, ___ So.3d ___, No. 1D10-2502 (FEb. 7, 2011), the Court sua sponte determined that it had no jurisdiction over the appeal.

Interestingly, the Agency thought it was a final appealable order, and told the appellant so. The appellant first received a letter terminating her scholarship, and the letter stated that she had the right to request a “fair hearing.” The appellant participated in an evidentiary hearing before a hearing officer, who affirmed the denial of the scholarship. The affirmance was denominated a “final order” and included “notice of right to appeal” language directing the apellant to file a notice of appeal with the DCA if she wished to challenge the “final order.”

After seeking additional briefing in the jurisdictional issue from the parties, the Court concluded that the “final order” was not, in fact, a final order, due to the restrictions of the statute that created the scholarship program. Relying on section 409.1451(5)(e)2., Fla. Stat., the Court explained that the scholarship program is required to provide for “an appeal to the Secretary of Children and Family Services,” and the implimenting regulations do not transform the hearing process employed here into the required appeal to the Secretary.