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.

Can Judges and Lawyers Be Facebook “Friends”? It Depends Where You Are.

An attorney can be friends with a judge IRL (in real life). Now they can be Facebook friends too–at least in the Third District.

The Third District Court of Appeal, recognizing the evolving influence and role of social media in our society, has held that a judge should not be disqualified from a case for merely being Facebook “friends” with counsel for a party.

In Law Offices of Herssein and Herssein, P.A., v. United Services Automobile Association, 3D17-1421 (Fla. 3d DCA Aug. 23, 2017), the petitioners filed a writ of prohibition, seeking to disqualify the trial court judge because a potential witness and a potential defendant was listed on the judge’s personal Facebook page as a “friend.”

This issue has nearly a decade of history in Florida law.  In 2009, a Judicial Ethics Advisory Committee Opinion said that a judge may not add lawyers who may appear before him as “friends” on social networking sites, and vice versa.  In 2012, the Fourth District relied on the JEAC Opinion and granted a writ of prohibition, disqualifying a judge because he was Facebook “friends” with the prosecutor, Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Then, in 2014, the Fifth District granted a writ of prohibition because the trial judge “reached out” to a party in a dissolution case while litigation was pending and tried to “friend” her on Facebook.”  Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014).  While clearly what the trial court did was wrong, and factually different than the issue in Domville, the Chace court went on to express “serious reservations about the court’s rationale in Domville.”  The Fifth District said that “there is no difference between a Facebook ‘friend’ and any other friendship a judge might have,” and that “Domville’s logic would require disqualification in cases involving an acquaintance of a judge.”  The Fifth District also noted that “A Facebook friendship does not necessarily signify the existence of a close relationship.”

This is the legal landscape in which the Third District decided Herssein.  Preliminarily, the court recognized that merely being “friends” in the conventional sense has been historically insufficient to warrant disqualification of a judge.  It then latched onto the Fifth District’s statement regarding the closeness of Facebook “friends,” applying this rationale for three reasons:

  • “Some people have thousands of Facebook ‘friends,'”
  • “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,'” and
  • “many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions.”

The Fifth District noted that Domville had been decided many years prior, in a quickly-evolving technological landscape–stated simply, times have changed.  It certified conflict with Domville, and denied the petition, holding that merely being Facebook “friends” with someone no longer demonstrates closeness of a relationship.

So where does that leave us practicing attorneys?

  • In the Third District, whether you are Facebook “friends” with a judge is irrelevant to whether your actual relationship is sufficiently close to warrant disqualification.  See Herssein.
  • In the Fourth District, being Facebook “friends” with a judge is sufficient on its own to warrant a disqualification.  See Domville.
  • The Fifth District’s dicta suggests it would side with the Third District, but it has issued nothing precedential upon which to rely.  See Chace.
  • Neither the First nor Second Districts have spoken on the issue.