[Advertisement for Hoyt's German Cologne and Rubifoam for the Teeth, both manufactured by E.W. Hoyt & Co., Lowell, Mass., illustrated with girl and Ladies Calendar for 1889]

Almost Every Florida Appellate Rule Changes on New Years’ Day 2019

[Advertisement for Hoyt's German Cologne and Rubifoam for the Teeth, both manufactured by E.W. Hoyt & Co., Lowell, Mass., illustrated with girl and Ladies Calendar for 1889] . Sourced from the Library of Congress at https://lccn.loc.gov/98505236

Get your pencils ready–your filings and your calendar will need some adjustment!

The Florida Supreme Court has substantially amended the Florida Rules of Appellate Procedure, changing language in nearly every rule in the book along with related rules from the Florida Rules of Judicial Administration.  It accomplished this through issuing three separate opinions: SC17-152 [.pdf]; SC17-882 [.pdf], and SC17-999 [.pdf].  The amendments change, well, almost everything!

The amendments become effective on January 1, 2019.

All the amendments become effective on January 1, 2019, but at two different times: SC17-152 and SC17-999 go into effect at 12:01 a.m., while SC17-882 goes into effect as of 12:02 a.m.

The biggest trap for everyone?  The time periods and mailing issues.

We’ll talk about this again in-depth in the near future, but the elimination of mailing days for every electronically-served document in Florida courts, and then the lengthening of many appellate deadlines to compensate, will require everyone’s calendaring procedures to change significantly. Spoiler alert — in most instances you will actually have more time under the new rules than you did under the old rules.

This post, Part I of a multi-part series, provides a brief summary of every substantive amendment organized by rule.  Following posts will investigate and elaborate on different aspects of the numerous changes.

Summary of appellate-related rule changes (with links)

Before we dive into the analysis though, let’s just get the big picture. Here’s our summary of the changes, with links for your review.
*All links to Supreme Court opinions are to the .pdfs of those opinions.

Rule

Change

Source

Fla. R. Jud. Admin 2.514 [.pdf, entire rule set]

  • When a period is stated in days or a longer unit of time, “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.”
  • 5 days added for only traditional mailing.  No more days for
    electronic service.

SC17-882, p. 9

Fla. R. Jud. Admin 2.516 [.pdf, entire rule set]

  • E-Mail service no longer treated as mail service for computation of time.

SC17-882, p. 10

Fla. R. App. P. 9.010

  • Added applicability of Fla. R. Jud. Admin (formerly in 9.020(h)).

SC17-152, p. 22

Fla. R. App. P. 9.020

  • Removes section regarding Fla. R. Jud. Admin.
  • Reorganizes subsection on motions tolling rendition (without substantive change).
  • Defines “conformed copy.”
  • Other format changes, renumbering of subsections.

SC17-152, pp. 22-24

Fla. R. App. P. 9.030

  • Non-substantive changes only.

SC17-152, pp. 25-27

Fla. R. App. P. 9.040

  • Non-substantive changes only.

SC17-152, pp. 27-28

Fla. R. App. P. 9.100

  • Non-substantive changes only.
  • A reply is due within 30 days of the response.

SC17-152 pp. 29-30

SC17-882, p. 16

Fla. R. App. P. 9.110

  • Clarifies that scope of review in partial final judgments limited to any matter or ruling prior to filing of notice that is directly related to the aspect of the
    judgment under review.
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 30-32

SC17-882, pp. 16-17

Fla. R. App. P. 9.120

  • Omits requirement of appendix for initial brief on the merits in discretionary review over district court decisions.
  • Respondent’s brief on jurisdiction must be served within 30 days of service of petitioner’s brief.

SC17-152, pp. 32-33

SC17-882, p. 17

Fla. R. App. P. 9.125

  • Omits specific format for signature block on certification in form for pass-through appeals to supreme court.

SC17-152, pp. 33-34

Fla. R. App. P. 9.130

  • Adds two new categories to the list of nonfinal appealable orders: “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed;” and “grant or deny a motion to disqualify counsel.”
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 35-36

SC17-882, p. 18

Fla. R. App. P. 9.140

  • Attorney of record for appellant must serve designations to be served on the court reporter, and service must occur before attorney of record will be allowed to withdraw from representation on appeal.
  • Modifies the return of the record rule to require return of only non-electronically filed parts of the record after final disposition of the appeal.
  • When a 3.800(b)(2) motion is filed, the clerk must supplement the appellate record with the motion, any response, any resulting order, and any motion for rehearing, response, and order on the motion. The supplement must be filed within 20 days after filing of the order disposing of the motion.  If no order is filed within 60 days, the 20 days runs from the end of the 60-day period and requires a statement in the supplement that no order was timely filed.  If a motion for rehearing is filed, the clerk must transmit the supplement within 5 days of the order disposing of the rehearing. If no order issues within 40 days, the 5-day period runs from the end of the 40-day period, and the supplement must include a statement that no order was timely filed.
  • “A defendant may cross-appeal by serving a notice within 15 days of service of the state’s notice or service of an order on a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).”
  • “[I]n an appeal by the state under rule 9.140(c)(1)(K), the state’s notice of cross-appeal shall be filed within 15 days of service of defendant’s notice or service
    of an order on a motion pursuant to Florida Rule of Criminal Procedure
    3.800(b)(2).”

SC17-152, pp. 38-39

SC17-882, p. 19

Fla. R. App. P. 9.141

  • Requires the clerk to index, paginate, and send to parties the record on collateral and postconviction cases.
  • Allows for directions to clerk within 10 days of notice of appeal.
  • A reply may be served within 30 days after service of the response.

SC17-152, pp. 42-43

SC17-882, p. 20

Fla. R. App. P. 9.142

  • Non-substantive changes.
  • The briefing schedule allows that the state has 50 days from the date the defendant’s brief is served, and the defendant has 40 days from the date the state’s brief is served.
  • In petitions seeking review of nonfinal orders in death penalty postconviction proceedings, the petitioner may serve a reply within 30 days of the State’s response.

SC17-152, pp. 44-46

SC17-882, pp. 20-21

Fla. R. App. P. 9.145

  • Non-substantive changes
    only.

SC17-152, pp. 47-48

Fla. R. App. P. 9.146

  • In juvenile dependency, TPR, and cases involving families and children in need of services, mandates that review of trial court orders on motions seeking a stay pending appeal shall be by motion.
  • Adds detail for briefing schedule in cases in which more than 1 initial or answer brief is authorized.
  • When an order issues allowing counsel to withdraw, counsel must within 5 days certify that counsel has forwarded the record and transcripts to the parent or is
    unable to do so after making diligent efforts to find the parent.
  • The initial brief shall be served within 30 days of service of the record or index.  The answer brief shall be served within 30 days of the initial brief. The reply brief shall be served within 15 days of the answer brief.

SC17-152, pp. 48-50

SC17-882, p. 22

Fla. R. App. P. 9.150

  • Non-substantive changes only.

SC17-152, p. 50

Fla. R. App. P. 9.160

  • Non-substantive changes only.

SC17-152, pp. 50-51

Fla. R. App. P. 9.170

  • A party choosing the “alternative appendix” method must serve a copy of the direction to the appellate court as well as the lower tribunal.
  • If another party directs the preparation of record, that direction must be served on the appellate court when served on the lower tribunal.

SC17-152, pp. 51-52

Fla. R. App. P. 9.180

  • Requires a judge of compensation claims to select an approved court reporter and transcriptionist.
  • Deposit of estimated costs due within 20 days of service of notice of estimated costs.
  • Written objections to selected court reporter or transcript due within 20 days of service of notice of selection.
  • Verified petition to be relieved of costs must be filed within 20 days after service of the notice of estimated costs.
  • Lower tribunal may enter an order on the merits of a petition to be relieved of costs without an objection filed after 30 days following the service of the petition.

SC17-152, pp. 53-57

SC17-882, pp. 23-24

Fla. R. App. P. 9.190

  • Removes reference to section 120.56 (rule challenges) in procedures for proceedings involving disputed issue of fact.
  • Creates new subsection for procedures for appeal from rule challenge proceedings under section 120.56.

SC17-152, pp. 57-61

Fla. R. App. P. 9.200

  • Requires service of designations to court reporter upon the court reporter or
    transcriptionist.
  • Reorganizes requirements of court reporter upon receipt of designation, moves to different subsection.
  • Moves requirements for organization of transcripts in the record to its own subsection.
  • Objections or amendments to proposed statement of evidence or proceedings must be served within 15 days of service of the proposed statement.
  • The cross-appellee has 15 days to direct the clerk to include additional documents, exhibits, or transcripts from the service of the cross-directions.

SC17-152, pp. 61-63

SC17-882, p. 25

Fla. R. App. P. 9.210

  • Clarifies that briefs filed in electronic version need not be also filed in paper.
  • Cover sheet of brief now requires email address of attorney filing the brief.
  • Formalizes the “one attorney, one brief” rule.
  • If more than one initial or answer brief is filed, the responsive brief is due to be served within 20 days after the last prior brief.  If the last brief is never served, the time runs from the date on which it was due to be served.
  • “Unless otherwise required shall be served within 30 days after service of the initial brief; the reply brief, if any shall be served within 30 days after service of the answer brief; and the cross-reply brief, if any, shall be served within 30 days thereafter.”

SC17-152, pp. 64-65

SC17-882, pp. 25-26

Fla. R. App. P. 9.225

  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.310

  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.320

  • Request for oral argument due 15 days after the last brief (or the reply in a petition proceeding) is due to be served.

SC17-882, pp. 26-27

Fla. R. App. P. 9.330

  • Adds “written opinion” to the title of the rehearing and clarification rule.
  • Details requirements for a motion for certification.
  • Details and outlines requirements for a motion for written opinion.
  • Eliminates the requirement for a certification for a motion for a written opinion.
  • “All motions filed under this rule with respect to a particular order or decision must be combined in a single document.”
  • Clarifies that rule only applies to orders that resolve appeals, original proceedings, or motions for appellate proceedings.  Does not limit inherent authority to reconsider nonfinal appellate orders.
  • “A response may be served within 15 days of service of the motion.”
  • In bond validation proceedings, a “reply may be served within 10 days of service of the motion.”

SC17-152, pp. 66-69

SC17-882, p. 27

Fla. R. App. P. 9.331

  • Court will now notify parties once it decides to determine a proceeding en
    banc.
  • Signature block under required statement for rehearing en banc omitted.
  • “A response may be served within 15 days of service of the motion.”

SC17-152, pp. 69-70

SC17-882, p. 28

Fla. R. App. P. 9.350

  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 10 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b)
  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 15 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b).

SC17-152, pp. 71-72

SC17-882, p. 28

Fla. R. App. P. 9.360

  • Clarifies that joinder is only realignment of existing parties to appeal; it does not allow addition of new parties parties.  Rephrases procedures for joinder as seeking realignment from appellee or respondent to appellant or petitioner.
  • The body of the notice shall reflect a new proposed caption.  Clerk will change the caption upon receipt of notice and payment of fee.

SC17-152, pp. 72-73

Fla. R. App. P. 9.370

  • Leave of court is required to serve an amicus brief in regards to rehearing, rehearing en banc, or certification to the supreme court.
  • Notice of joinder must be served within 15 days of the notice of appeal or petition.

SC17-152, pp. 72-73

SC17-882, p. 290

Fla. R. App. P. 9.380

  • NEW RULE – Notices of related case or issue are now required to be filed.  No argument allowed.

SC17-152, p. 74

Fla. R. App. P. 9.400

  • Adds time limits for filing a motion for fees in discretionary proceedings under rules 9.030(a)(2)(A) and 9.030(a)(2)(A)(v).
    • 9.030(a)(2)(A) – no later than time for serving the respondent’s brief on jurisdiction, or if jurisdiction is accepted, the time for serving the reply brief.
    • 9.030(a)(2)(A)(v) – no later than 5 days after filing of the notice, or if jurisdiction is accepted, the time for serving the reply brief.

SC17-152, pp. 74-75

Fla. R. App. P. 9.410

  • Omits signature requirement following the certification of service.
  • Initial service of the motion must be no later than the time for serving a permitted response to the challenged document or, if no response is permitted, within 20 days after the service of the challenged document or the presentation of argument at oral argument.
  • Respondent has 15 days from final service of a motion to serve response.

SC17-152, pp. 74-76

SC17-882, p. 30

Fla. R. App. P. 9.420

  • Clarifies that service of petitions invoking original jurisdiction shall be by both e-mail and paper format.

SC17-152, pp. 77-78

Fla. R. App. P. 9.430

  • Non-substantive changes only.

SC17-152, pp. 78-79

Fla. R. App. P. 9.500

  • Clarifies governing provision of Florida Constitution, requires court to allow interested persons to be heard once request is determined to be within the purview of the applicable provision.
  • The justices must file their opinions not less than 10 days from date of request unless delay would cause public injury.
  • The governor shall be advised in writing.

SC17-152, pp. 79-80

Fla. R. App. P. 9.510

  • Procedures for advisory opinions to attorney general modified.
  • Requires justices to render their opinions no later than April 1 of the year in which an initiative is to be submitted to the voters pursuant to article XI, section 5 of the Florida Constitution.

SC17-152, pp. 80-81

Fla. R. App. P. 9.700

  • Non-substantive changes only.

SC17-152, p. 81

Fla. R. App. P. 9.710

  • Non-substantive changes only.

SC17-152, pp. 81-82

Fla. R. App. P. 9.720

  • Non-substantive changes only.

SC17-152, pp. 82-83

Fla. R. App. P. 9.800

  • Numerous amendments to the citation rule.

SC17-999

These rule changes follow on the heels of last year’s amendments to the appendix rules and some other substantive amendments.  At this point, almost every appellate rule has been changed in the last year, so best practice would require looking up every rule and not relying on memory.

Stay tuned for more analysis.

We’ll go further in-depth into the time changes, the newly-appealable non-final orders, and other facets of these rule changes in future blog posts.  Enter your e-mail address in the box to the right to get up-to-date news and analysis on these topics and other news and events as they relate to appellate practice in Florida.

 

 

Appeals 101: Why Rendition Matters

Rendition is a critical concept in Florida appeals, but not everyone understands its importance. The Fourth District this week in Guy v. Plaza Home Mortgage, Inc., No. 4D17-3335 (April 25, 2018) [.pdf] chided the Broward County Clerk’s foreclosure department for backdating final judgments when entering them on the Court docket. The decision offers a good reminder of the importance of rendition in appellate practice, and the reasons it matters.

Rendered Before Entered?

The case came to the court in an unusual procedural posture — a pro se appellant moved the court to correct the record because while the summary judgment hearing was held at 1:30 pm, the judgement’s electronic stamp “indicates that it was filed with the Broward County Clerk…at 8:35 a.m., nearly five hours hours earlier.”

The Broward Clerk explained that when the clerk’s office received the order from chambers, often a day or more after it was signed, its practice was to scan the item — which added a time and date stamp — then change the date but not the time to the date the order was signed by the Court. The result in this case is an order that appears to be rendered prior to being signed. And the result in general is that the real time docket on the date of signature does not show the order, and may not for several days. Then the order will all of a sudden “appear” that the item was added to the docket on the date the order was signed, whether or not the clerk’s office processed it on that day.

Why Rendition Matters

Let’s start with the definition of rendition: “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(i). Rendition can sometimes be tolled, such as when “there has been filed in the lower tribunal an authorized and timely motion for new trial, for rehearing” and a few other specific types of motions. When such a motion has been filed, the order is not considered rendered “until the filing of a signed, written order disposing of the last of such motions.” Id.

The problem, as the Fourth District explained, is that “[t]he time for appeal runs from the date of rendition, not the date the judgment is signed.” See Fla. R. App. P. 9.110(b). “By backdating the electronic filing stamp, the clerk changes the rendition date, possibly to the prejudice of an appellant.”

The Court pointed out that in this case, “appellant’s appellate rights were not affected,” and so the Court denied the motion to correct the record. The Court concluded “We nevertheless disapprove of the this practice as it is inconsistent with the appellate rules.”

How Backdating Rendition Affects Appellate Rights

Kudos to the Fourth District for calling out this potentially prejudicial practice. The time for appeal starts running from the date of rendition, and a backdated docket entry can unexpectedly shorten the time for appeal. We’ve seen a clerk wait 25 days to enter a final order on the docket, and then send the backdated rendered order by mail, leaving the attorney with no time to even discuss appeal with the client. The clerk’s docket is supposed even the playing field and allow all to know when an order is rendered and therefore appealable. Backdating leaves a party without notice and potentially deprives the party of the right to appeal.

The Takeaway on Rendition

When you’re not sure if an order has been rendered, it’s never a bad move to calendar your deadlines based on the date of signature, and regularly check the docket until you are sure of a rendition date. While a premature appeal can be subject to dismissal, if the order is rendered before the appellate court catches that an appeal was prematurely filed, “the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order.” See Fla. R. App. P. 9.110(l).

About Appeals 101

This post is part of our continuing Appeals 101 series. Click the link to find all of our posts on the basics of litigating an appeal.

4th District Shortens Allowable Extensions for Reply Briefs and Criminal Appeals

The Fourth District Court of Appeal has shortened the allowable time period for agreed extensions of time: Effective May 1, 2018, parties will only be allowed to agree to 90 days for an initial or answer brief, and 15 days for a reply brief. The Court has also shortened the agreed extension period for criminal appeals significantly, once again applying the same standards to criminal and state appeals.

The new order, AO 2018-1 [.pdf], keeps the amount of time of an agreed extension for the initial brief at 90 days (which in 2016 came down from the original 120 days), but shortens the reply brief stipulation time from 30 days to 15. See AO 2016-1 [.pdf]. When the Fourth District first allowed agreed enlargements in 2011, the time periods were much larger: 120 days for initial or answer, and 60 days for reply. In 2016, the Court changed the rules to keep the 120/60 for criminal, but shorten it to 90/30 for civil. The new Order applies to both civil and criminal cases, and once again aligns the timing for both. Now, however, the time for a reply brief is even shorter, and the rule is 90/15 for all.

Be on the lookout, as we will soon be offering our readers a handy download to keep all of the different rules straight! The download is ready! Click here to sign up for our email newsletter and receive a link to download our guide.