An historic image from a calendar for the month of January

Calculating Deadlines Under the New Rules

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An historic image from a calendar for the month of January

Don’t let January’s rule changes cause you confusion!

There is always some confusion when new rules affecting the calculation of deadlines come into effect, as happened on the January 1, 2019. How do you calculate deadlines that straddle the gap? Someone reached out directly to us to ask the question, so here’s our answer for posterity.

The hypothetical is this: Appellant files an initial brief on Friday, December 28, 2018. When is the answer brief due? Under the version of the rules in effect on December 28, 2018, an Answer Brief the rule stated:

Unless otherwise required, the answer brief shall be served within 20 days after service of the initial brief.

See former Rule 9.210(f). In addition, former rule 2.514(b) allowed an additional five days added to any deadline calculated based on service by e-mail:

(b) Additional Time after Service by Mail or E-mail. When a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire under subdivision (a).

So under the old rules, the 20th day is Thursday, January 17, 2019. Add five additional days for service by e-mail, and the deadline is Tuesday, January 22, 2019.

New Rules, New Math

The new rules change the calculations. The new version of Rule 9.210(f) states:

Unless otherwise required, the answer brief shall be served within 2030 days after service of the initial brief…

And the new version of Rule 2.514(b) eliminates extra days for service by e-mail, now reading:

(b) Additional Time after Service by Mail. When a party may or must act within a specified time after service and service is made by mail, 5 days are added after the period that would otherwise expire under subdivision (a).

Finally, the new version of Rule 2.514 gives you a break on when to start counting if someone served you something on the eve of a weekend or holiday. Where before, you would “exclude the day of the event that triggers the period” and start counting on the next calendar date, the new rule states that you “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.” See New Rule 2.514(a)(1).

The net result is that instead of counting 20 days (which could be more, if the last day fell on a weekend) and then adding an additional 5 days for mailing (which could be more, if the last day fell on a weekend), you now count a straight 30 days, starting from the next business day. If the last day falls on a weekend or holiday, you then role to the next day that is not a Saturday, Sunday, or holiday. If the new rule applies to the brief filed December 28, 2018, you start counting from Monday December 31, 2018 (after confirming it is not a holiday; it is not). From there, the 30th day would be Tuesday, January 29, 2019.

Do the New Rules Change the Due Date?

So is the deadline the 22nd or the 29th? It’s great that the new rules tend to net attorneys more total time, but what happens this month? Good question.

There is voluminous case law about whether a newly-enacted statute should be applied retroactively.

In order for a law to apply retroactively, the court must determine (1) if there is evidence that the legislature clearly intended for the law to be applied retroactively, and (2) if so, whether the retrospective application of that law is constitutionally permissible. See Pondella Hall for Hire v. Lamar, 866 So.2d 719, 722 (Fla. 5th DCA 2004). In the absence of clear legislative intent that a law apply retroactively, the general rule is that procedural statutes apply retroactively and substantive statutes apply prospectively.

Envtl. Confederation of Sw. Florida, Inc. v. State, 886 So. 2d 1013, 1017 (Fla. 1st DCA 2004). But, this is not a statute enacted by the legislature, but rather, a rule of procedure promulgated by the Supreme Court.

Moreover even when the new law is stated by the Supreme Court, the analysis of retroactivity has constitutional dimensions:

the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.

Witt v. State, 387 So. 2d 922, 926 (Fla. 1980).

But this rule generally comes into play when the Florida Supreme Court makes a ruling that itself has constitutional dimensions. It does not speak to rule changes.

Here, we are dealing with changes to rules of procedure and not statutory pronouncements or decisional changes in the law. The answer therefore lies in a different line of cases. Since the 1800s, the Florida Supreme Court has held that its rules of court are prospective in nature:

Unless otherwise specifically provided, our court rules are prospective only in effect. Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649 (1896).

Tucker v. State, 357 So. 2d 719, 721 (Fla. 1978).

To avoid litigation in some criminal cases, the Supreme Court has sometimes expressed this rule of interpretation outright when making a rule change. For example, in amending the rules regarding post-conviction collateral relief, the court expressly stated the effective date and then stated, in the rule itself, “Motions pending on that date are governed by the version of this rule in effect immediately prior to that date.”
In re Amendments to Florida Rules of Judicial Admin.; Florida Rules of Criminal Procedure; and Florida Rules of Appellate Procedure–Capital Postconviction Rules, 148 So. 3d 1171, 1180 (Fla. 2014). However, precedent dictates that the rules apply prospectively only unless the Court expressly states otherwise. Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649 (1896); Tucker v. State, 357 So. 2d 719, 721 (Fla. 1978).

Apply the Rules in Effect on the Triggering Date

All of this is a long-winded analysis to come to a very logical conclusion: calculate deadlines based upon the rules in effect on the date of the event that triggers the calculation. So in our hypothetical, because the deadline for service of an answer brief is based on the date of service of the initial brief, and because the initial brief was served last year when the old rules were in effect, calculate the deadline using the old rules. The answer brief is due Thursday, January 17, 2019.

Don’t miss our other entries on the rule changes, including our overview, and our discussion of new types of appeals authorized by the new rules. Let us help you with your appeal! 813-778-5161.

Old cartoon of man with bike quarreling with another man over a stone in the roadway.

Now You Can Appeal Two More Types of Nonfinal Orders

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Old cartoon of man with bike quarreling with another man over a stone in the roadway.

Are these two gentlemen arguing over
whether they have a settlement?
Now they can let the appellate courts figure it out.

Today is the day that a myriad of changes to the Florida Rules of Appellate Procedure go into effect. We’ve previously outlined all of the changes, but in our first post of 2019 we’ll focus in on the changes to Rule 9.130, which governs what kind of nonfinal orders you can immediately appeal to Florida District Courts.

Orders that decline to enforce a settlement agreement.

Rule 9.130 contains the exclusive list of non-final orders that are reviewable by appeal in the district courts.  As of January 1, parties will be able to obtain an immediate appeal from an order that determines “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed.”

This change appears to have been inspired by a law review article I co-authored with Anthony Russo and Ezequiel Lugo in 2013.  In the midst of investigating a proposed “functional restatement” to certiorari review, we looked into review of orders denying a motion to enforce settlement (see pages 417-424 of the linked article).  No avenue for review existed at the time, but as we discussed the matter we reasoned that immediate review of such an order would further the interests in judicial economy and support the long-established public policy favoring settlements.  The Appellate Court Rules Committee considered our article and also thought that immediate review of such an order would be worthwhile.  They made the recommendation to the Florida Supreme Court, and in this recent wave of amendments, the supreme court adopted this provision into the rules.

This rule will be useful when one party thinks that a settlement has been reached, but the other party either denies the same or refuses to comply with the settlement.  The party seeking to enforce the settlement may file a “motion to enforce settlement” in the trial court, attempting to either confirm the settlement or force the other party to comply.  Should the trial court deny the motion for whatever reason, that order would now be immediately appealable.

Orders that grant or deny a motion to disqualify counsel.

Similarly, parties may now also receive immediate review of orders that “grant or deny a motion to disqualify counsel.”  This type of motion has always been reviewable by certiorari, but given that higher standard of review, was not likely to provide any immediate relief.  Now, parties may seek immediate review regarding disqualification, and avoid the likelihood that the trial would have to proceed all the way through conclusion and then ultimately be invalidated on appeal just to send the parties back to the beginning.

Another consideration–a stay.

An appeal of either of these orders will not automatically delay the trial court proceedings while the appellate court considers the appeal.  Consequently, either party may want to move the trial court to stay the proceedings pending the appellate court’s ruling on the matter.  Doing so would avoid the risk of wasted effort and resources should the appellate court ultimately determine that there was an enforceable settlement agreement, or that the trial court erred in either disqualifying or refusing to disqualify counsel.

Motions for stay are governed by rule 9.310 and initially filed in the trial court in most cases.  Review of an order granting or denying a stay is by motion in the appellate court.  Both involve an in-depth analysis of the likelihood of prevailing on appeal and the risk of irreparable harm should a stay not be granted.

Can you use these new rules to your advantage?  Call us!

Non-final review jurisdictional issues and stays pending appeal are sometimes simple, but in our experience will often become complex issues that can determine the course of all future litigation.  We often handle these situations on behalf of clients or in cooperation with trial attorneys as part of our regular practice.  Feel free to contact us if you have any questions involving these or any other issues regarding non-final appeals, certiorari review, or stays pending appeal.

1922 Photograph of five women in a room full of filing cabinets, filing documents

Second District Clerk Shares Details About Today’s Transition to the Portal

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1922 Photograph of five women in a room full of filing cabinets, filing documents

Happy Filing Everyone!

Today, December 14, is the day the Second District transitions to accepting filings through the statewide E-Filing Portal.  The Honorable Mary Beth Kuenzel, Clerk of the Second District, kindly shared some details about what that will mean for us practitioners as we change our procedures.  This information follows up on our prior blog post with information from press releases and the Florida Bar News.

The eDCA is still alive and well.

Filing will occur through the portal, but that does not mean the end of the eDCA.  Practitioners can still go to the eDCA to review dockets and case information, download filed documents, and obtain briefs from other cases.  In fact, practitioners can still go there to file documents–the difference is that upon clicking the link to file a document in the eDCA, the website will redirect you to the Portal filing page.

The eDCA can still be practitioners’ main entry point for everything, including filing, if they so choose.

E-Service is now accomplished upon filing!

One of the advantages of filing through the statewide portal is that filing there constitutes service upon all parties for whom e-service is permitted.  No longer will practitioners need to separately serve documents via email.

E-mail notifications from the court will change.

Previously, upon filing a document through the eDCA, the clerk would review the documents and the system would send out a “Casemail” e-mail notification upon the clerk entering the document on the docket.

With the Portal handling entry of documents on the docket, those “Casemail” notifications will be a thing of the past.  But Clerk Kuenzel informs us that the clerk’s office will still conduct its preliminary review of all filings for compliance with rules, proper categorization, etc.

The Portal will still handle filing fees for the Second District, and will soon handle them statewide.

The Second District (as the test court for the District Courts of Appeal for Portal filing) has always been able to accept filing fees through the Portal.  That will not change, so if you’ve been using the portal to pay your DCA fees, keep right on doing it.  To date, however, none of the other districts have access to the Portal for filing fees.  When the other four districts go live on the Portal in January, they too will be able to accept filing fees electronically.

This is a big step towards completing a long-time goal.

The Florida Supreme Court has had a long-stated goal of having a single portal in which to file in all courts in Florida.  While there have been setbacks, today’s transition for the Second DCA and the upcoming transition for the other DCAs is a major step towards finally achieving that goal.

Give yourself extra time to make your first few filings.

Our office had two filings in the Second District today, and discovered an additional tip to share with you: leave yourself extra time for the first Portal filing in an appellate case. The service emails are not yet set up in the Portal, so it will take some time to add each party to be served in the Portal. Once you’ve done it once, though, it should be set up for all future filings. Happy filing!