Motions Postponing Rendition

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Now that we no longer have to worry about abandoning an authorized motion for rehearing by filing a notice of appeal, the appellate courts understandably want to know if there is such a motion pending. The Fifth District recently issued a notice [.pdf] expressly asking parties to inform the court if an appeal should be held in abeyance. Specifically, the court asks that, along with the notice of appeal, the parties “immediately” inform the court of pending motions by filing a notice with the Court. Similarly, parties are requested to file a notice with the court again when the trial court rules on the pending motion, and include a copy of the lower tribunal’s signed, written order disposing of the motion.

To further facilitate this, the Court this week amended Administrative Order AO5D12-2 [.pdf] to require the clerk of the lower tribunal to indicate on its transmittal that a motion postponing rendition is pending.

This just makes sense, and would be good practice in all of the DCAs, even in the absence if a formal request from the Clerk. The easier parties make it for the Court to get to the merits, the better the system works for everyone. The full text of the notice reads:

Informing the Appellate Court of Pending Motions Postponing Rendition at time of Filing the Notice of Appeal

April 10, 2015

Effective January 1, 2015, Florida Rule of Appellate Procedure 9.020(i)(3) has been amended to eliminate the abandonment of motions authorized pursuant to rule 9.020(l) by the filing of a notice of appeal. Rendition of a final order will be delayed by the filing or service of a timely and authorized motion and the filing of a notice of appeal will not result in the abandonment of such a motion but rather the appeal shall be held in abeyance until the filing of a signed, written order disposing of the motion.

Attorneys and parties filing a notice of appeal should immediately inform the court by the filing of a proper notice if a motion postponing rendition is pending so that the case may properly be held in abeyance. Likewise, the attorneys or parties in the case should inform the court by notice upon the lower tribunal disposition of such motions by filing a copy of the lower tribunal’s signed, written order disposing of the motion.

Lower court clerks, lower tribunal clerks, and agency clerks are now required to complete a new section of the electronic transmittal form submitted when efiling notices of appeal to this court which must indicate whether or not a motion postponing rendition is pending in the case below. Clerks must mark this section of the form or the notice of appeal may be rejected until such time as the transmittal form is properly completed.

/s/
____________________________
Joanne P. Simmons, Clerk of Court

Judge Rosenbaum Confirmed for Eleventh Circuit

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The Honorable Robin Rosenbaum has been confirmed as the newest member of the United States Court of Appeals for the Eleventh Circuit. Appointed to fill the vacancy left by the retirement of the Honorable Rosemary Barkett, Judge Rosenbaum flew through the Senate (in part because she so recently flew through the Senate as an appointment to the District Court Bench). There are more details on her appointment and confirmation hearing here.

I know the Court will welcome having another full time judge to handle the workload. Congratulations Judge Rosenbaum!

The Proof is in the Record, not the Pudding

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The Fourth District Court of Appeal today gives us a humorous reminder of the importance of making a proper record before the trial court, and ensuring that record is before the appellate court. In this mortgage foreclosure action, the trial court granted involuntary dismissal because the Bank moved a copy of the Original Note, rather than the note itself, into evidence. On appeal, the Bank argued that the trial court erred because the original note was eventually surrendered, but the Court of Appeal correctly dismissed this argument, because it relied on evidence outside of the record:

Appellant maintains that it surrendered the note in a “package” to the clerk following the trial and requests this court to make the “logical and equitable” presumption that the original note was in the “package” surrendered to the court. However, this court does not make “logical and equitable” leaps of faith, as it cannot (and should not) make any such determination unsupported by the record before it. Appellant further contends that the trial court’s decision should be reversed because “the proof was in the pudding.” This may be true as, for all we know, the original promissory note was in that pudding. Nonetheless, it was not admitted into evidence at trial (although a copy of the note was moved into the record) and there is no indication that the original note has been previously filed with the court or the court clerk.

If you are ever tempted to make arguments based on items outside the record, don’t do it. I will henceforth call this the “pudding rule.”

The case is Deutsche Bank v. Huber, No. 4D12-3696 (April 23, 2014) [.pdf].