Dead End by Dineen Pashoukos Wasylik All Rights Reserved

Is it Appealable? July 2018 edition

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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!

Have You Seen the Second DCA’s New Procedures on Oral Argument?

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Jared and Judges of Second D C A at Practicing Before the Second D C A C L E.

Jared Krukar introduces the judges of the court at the 2017 Practicing Before the Second DCA CLE presented by the Florida Bar Appellate Practice Section. Photo by Kristin Norse.

The Second District Court of Appeal has long been known for its liberality in granting oral argument, but also had a discrete list of types of cases in which it would almost never do so.  However, the Court recently updated its Internal Operating Procedures[.pdf] (“IOPs”) to reduce the list of exceptions and leave the judges with more express discretion.

The prior Internal Operating Procedures expressly listed six types of cases where oral argument was “not generally permitted.”

The IOPs were last amended on October 15, 2015.  In that version, the Court stated it would generally not permit oral argument in appeals in which a pro se party is incarcerated, reemployment assistance appeals, original proceedings, postconviction appeals, 9.130 final and nonfinal appeals, and motions.

The Court always had discretion to grant oral argument in any of these cases, but rarely deviated from the list.

The new Internal Operating Procedures reduce the exceptions, but expand apparent discretion.

The revised IOPs, effective as of April 12, 2018, no longer expressly exclude from oral argument original proceedings, final and nonfinal 9.130 appeals, nonsummary postconviction appeals where the parties are represented, reemployment assistance appeals, or motions.

However, the IOPs added new language that elucidates the Court will likely apply discretion on a case-by-case basis more than it has in the past:

Requests for oral argument in expedited proceedings, including termination of parental rights and dependency cases, are presented first to the merits panel.  Upon the panel’s decision to grant oral argument, the clerk will set the case on an expedited basis.

Other than expedited proceedings, cases are set for oral argument prior to the assigned panel’s review.  As such, the cases are provisionally set for oral argument.  Should the panel of assigned judges decide unanimously that the court will not benefit from oral argument, the clerk will be directed to notify the attorneys or parties by order that the argument is cancelled.  An order cancelling argument for this reason will generally issue no later than two weeks before the date of the scheduled argument.

While the current IOPs still say that “the court permits oral argument as a matter of course in most proceedings,” this new language makes clear that the Court is aware of its discretion and will inevitably use it to reject oral argument when it deems fit to do so.

Does this mean more or less oral arguments in the Second District?

Well, according to the IOPs, it now appears that one can seek oral argument in nonfinal appeals, original proceedings, and certain other cases whereas before extraordinary measures would need to be taken.

But don’t jump the gun just yet.  The Second District’s “Notice to Attorneys and Parties[.pdf]” still contains a list of types of cases excluded from oral argument, and it still matches what the old IOPs said.  Presumably the Second District will be updating the notice to match the new IOPs, but for now, it governs what parties can file.  Also, check out our post on the Second District’s Practice Preferences as well to be sure you’re complying with all current requirements.

If you have a case on appeal and aren’t sure whether oral argument is available, or whether it is the best option for you, contact us and ask.  There are pros and cons to every decision like this, and we can help you make the right choice for you and your case.

Man with a cart full of money to pay for the family law appeal

Appeals 101: How do I Pay my Family Law Appeal Attorney’s Fees?

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Family law cases are oftentimes stressful, lengthy, and expensive ordeals that can extend through trial court into the appellate courts.  But the legislature recognizes that such cases are unique, and thus it provides an avenue for seeking some relief from the cost of attorney’s fees for these cases. As part of our continuing Appeals 101 series, here’s the scoop on getting your ex to pay for your family law appeal attorney’s fees — whether you are appealing an equitable distribution, a child custody order, or any other issue related to your marriage dissolution or custody dispute.

Man with a cart full of money to pay for the family law appeal

It can feel like you need a cart full of money to pay for your family law appeal. You may be able to get your ex to cover those costs.

The basis for attorney’s fees in family law appeals

Section 61.16, Florida Statutes, allows a party to ask a court to force the other side to “pay a reasonable amount for attorney’s fees” in some family law cases.  The purpose of the statute “is to ensure that both parties will have a similar ability to obtain competent legal counsel.”  Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997).  “[I]t is not necessary that one spouse be completely unable to pay attorney’s fees for the trial court to require the other spouse to pay those fees.”  Id.

Section 61.16 also applies on appeal.  The statute states “In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous.”  However, the court may also consider what are known as the Rosen factors (for the case from whence they came):  “the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.”  Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997).

Can I seek attorney’s fees before the appeal is over, or do I have to wait?

Another way family law fees are different is that, rather than having no choice but to wait until the end of the appeal to seek fees, there is a limited avenue for a party to seek fee assistance during the appeal.  Florida Rule of Appellate Procedure 9.600(c)(1) says the trial court has continuing jurisdiction while an appeal is ongoing to enter orders awarding “temporary attorneys’ fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal.”  This means that a party can ask the trial court for assistance from the other side to pay for fees as they are being incurred for the appeal.  In practice this procedure can sometimes be problematic, especially when the trial court does not have sufficient time to rule on such a request while the appeal is pending.  See Kasm v. Lynnel, 975 So. 2d 560 (Fla. 2d DCA 2008).

No matter the family law case, or whether a party has sought temporary fees with the trial court, the party that seeks an award of fees for the appeal should timely file a motion for fees with the appellate court under Florida Rule of Appellate Procedure 9.400(b).  Failure to do so may result in waiver of any ability to claim those fees later.  See Rados v. Rados, 791 So. 2d 1130, 1131-32 (Fla. 2d DCA 2001) (“A trial court cannot award appellate attorney’s fees unless the appellate court has authorized such an award.”).  A motion under rule 9.400(b) must be filed no later than the time for service of the reply brief.

How long will I have to wait for an award of attorney’s fees?

Don’t be surprised if the appellate court decides not to ultimately decide your entitlement to fees, instead sending your motion to the trial court.  Unlike trial courts, appellate courts are simply do not have the capability to take evidence.  Evidence may be necessary to determine the parties’ relative financial positions and the other factors discussed above.  Consequently, the appellate court often relies on the trial court to take such evidence and make those determinations for it.  Rados v. Rados, 791 So. 2d 1130 (Fla. 2d DCA 2001) (identifying the many ways that one appellate court handles such motions).

Most importantly, once an appeal is over, the trial court can only consider appellate fees with permission from the appellate court, usually based on a ruling on a timely-filed 9.400(b) motion.  Even if you would otherwise deserve your fees on appeal under the statute or the Rosen factors, the trial court does not have the power to award them for your appellate efforts if the appellate court does not order it to do so. If you are in, or suspect you will be, in a family law appeal, contact us and we can help ensure that any rights you have to fees are properly raised and preserved.