Timing is Everything With Your Notice of Appeal

Yellow Cab Photo Courtesy Flickr.com/Wackystuff

Don’t miss your ride to the appellate court
by filing your notice of appeal late!


Seeking and receiving an amendment to your final judgment does not toll or alter the time to file a notice of appeal, the Third District recently confirmed.

In Yellow Cab Co. v. Ewing, 3D16-969, 2017 WL 2854407 (Fla. 3d DCA July 5, 2017) [.pdf], the trial court entered a final judgment for Ewing that “incorrectly referred to the defendant as Yellow Cab, Inc., rather than Yellow Cab Company.” Yellow Cab did not appeal this judgment, instead waiting until the trial court entered an amended judgment that merely changed the party name. More than 30 days elapsed from the entry of the first final order before Yellow Cab filed its notice of appeal.

Unfortunately for Yellow Cab, longstanding Florida law establishes that “An amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought.” Id., quoting St. Mortiz Hotel v. Daughtry, 249 So. 2d 27, 28 (Fla. 1971). And a simple change of party name is considered a clerical error—an “immaterial change.” Id. The Third District Court of Appeal was without jurisdiction to consider Yellow Cab’s late appeal, and so it dismissed the appeal as untimely.

The Court’s decision does not really break any new ground, but it appears the Third District intended this opinion as another cautionary tale for the unwary. . Once 30 days has run from the date of the entry of the appealable order without a notice of appeal filed, even where the trial court might later enter an amended judgment, the right to appeal could be lost forever.

How Are Deadlines Affected When the Courts Close Due to Weather?

Matthew DPW Legal Appeals Court Deadlines

Hurricane Matthew is looking pretty creepy in this NASA Earth Sciences image.
Don’t let Matthew ruin your appeal!

Three Florida Appellate Courts have announced closures so far due to Hurricane Matthew. The Third and Fourth Fourth District Courts of Appeal will be closed from 1 pm today through Friday October 7th, while the Fifth District will be closed Thursday and Friday. The Florida Supreme Court aggregates announcements about emergency closures for the entire state court system on its emergency page.

What is the effect of a court closure on deadlines and argument? Certainly, argument is cancelled and will have to be rescheduled. But what about regular deadlines? It appears an emergency closure does not count as a “Court Holiday” under Florida Rules of Judicial Administration Rule 2.514(4)(B) — the Courts are not calling it a “holiday,” and doing so probably has personnel implications that Court administration doesn’t want to deal with. However, the Florida Supreme Court generally issues administrative orders extending deadlines in the affected counties, and likely will do so in the wake of Hurricane Matthew. The orders generally state that the Supreme Court is intending to “equitably relieve parties in all pending cases by extending legal time limits that they otherwise would have been unable to meet due to the emergency.” See, e.g., AOSC16-23, In re EMERGENCY REQUEST TO EXTEND TIME PERIODS UNDER ALL FLORIDA RULES OF PROCEDURE FOR HILLSBOROUGH COUNTY IN THE THIRTEENTH JUDICIAL CIRCUIT [.pdf]. And if the emergency further impedes the attorney or client, then the trial court is directed to resolve the claim “case-by-case basis when a party demonstrates that the lack of compliance with requisite time periods was directly attributable to this
emergency and that equitable remedy is required.” Id. I wouldn’t worry about a deadline for filing a brief — the extension will either be automatically granted by an administrative order, or the Court will be receptive to a motion for leave to accept a late-filed brief.

But what about deadlines that are not normally allowed to be extended? Rule 1.090 states that, even for good cause, a Court:

may not extend the time for making a motion for new trial, for rehearing, or
to alter or amend a judgment; making a motion for relief from a judgment under
rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a
motion for a directed verdict.

There is some authority on this issue, but it is sparse and not directly on point. The Third District has held that the statute of limitations is not tolled by an administrative order closing the courts for weather-related issues. Ramirez v. McCravy, 4 So.3d 692 (Fla. 3d DCA 2009) [.pdf]. The Fourth District has held that hurricane-related closures and the resulting administrative order did toll a deadline, but it was a deadline to file for review of arbitration, which is not one of the types of deadlines excluded from enlargement by Rule 1.090. Rasabi v. Salomon, 51 So.3d 1284 (Fla. 4th DCA 2011) [.pdf]. And certainly, a court may by administrative order declare a date a Holiday, thus eliminating that day from being counted as the last day in any time calculation under Rule 2.514. See, e.g., R.J. Reynolds Tobacco Co. v. Kenyon, 826 So.2d 370 (Fla. 2d DCA 2002)[.pdf] (applying prior time calculation rule). Maybe since the Florida Supreme Court promulgated Rule 1.090, it’s administrative orders can supersede this issue. But I wouldn’t count on it, and I certainly wouldn’t want to be the guinea pig having to argue it to the Court in order to preserve my client’s right to appeal.

Here’s what I recommend: When it comes to a notice of appeal or a motion for rehearing, best not to mess around. Get it filed by the deadline, or early, rather than rely on a yet-to-be issued AO. Jurisdictional and hard deadlines are not to be messed with. And if your issue is the timeliness of a Rule 1.530 motion for rehearing or new trial, don’t wait for the timeliness issue to play out: file your notice of appeal no later than the 30th day after the original order was filed with the clerk, rather than counting on tolling. Since the 2015 rules change eliminated the trap caused by the old rules, and filing a notice of appeal no longer abandons a properly filed motion for rehearing, there’s no reason not to just get the notice of appeal on file, even if the fight over the timing of the 1.530 motion is still pending. See Fla. R. App. P. 9.020(i)(3)(stating that appeal shall be held in abeyance while tolling motion is decided).

What happens if you do get in a pinch? If you have to make the Hail Mary throw, perhaps a Rule 1.540(b) motion asking for the judgement to be re-issued due to excusable neglect could work. The appellate courts have very rarely ordered trial courts to grant such motions where the court found excusable neglect in determining the date final judgment was rendered, in order to allow for a timely appeal. See, e.g., Pompi v. City of Jacksonville, 872 So.2d 931 (Fla. 1st DCA 2004)[.pdf] (reversing denial of Rule 1.540(b) motion and ordering re-issuance of judgment). Those cases were all in the context of the date of rendition being unclear due to multiple filing stamps on the final judgment, not in the context of missed deadline due to weather. Loss of power might be considered excusable neglect, for example. But best not to go there. Get it filed! Even a one page, incomplete, or in-the-wrong-court Notice of Appeal will preserve the rights, even if you later have to amend it. See, e.g., Kaweblum v. Thornhill Estates Homeowners Association, Inc., 755 So.2d 85 (Fla. 2000) (notice of appeal filed in wrong court preserved right to appeal).

To my fellow Florida attorneys, and anyone else in Hurricane Matthew’s path, be safe.

New Court Filing Convenience Fees

The Florida state court e-filing portal is increasing the convenience fees associated with filing documents through the portal, effective tomorrow, and with very little notice. The Portal is not really fully functional when it comes to initiating appeals — they haven’t quite figured out how to accept the portion of the filing fee that goes to the District Courts of Appeal, and only some Circuits accept the portion of the fee that goes to the Circuit Court Clerk. But clients and attorneys alike should be aware of these new charges, in addition to the statutory fee amounts.

The announcement sent out Tuesday states:

Today, the Florida Courts E-Filing Authority voted to increase the convenience fee associated with filings. Effective July 1, 2016, the rates will increase to $5.00 per filing when paying with echeck and 3.5% when paying with a credit card. The increased fees were deemed necessary to cover expenses associated with the operational costs of payments and transactions. To implement this change, the portal will be unavailable on 6/30/2016 from 9PM until midnight eastern time zone.
For further information, please visit https://www.myflcourtaccess.com/ to review documents and other meeting information.