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!

Appeals 101:  When Can you Seek Rehearing in a State Court Appeal?

Needle in a Haystack

Determining whether there is an issue that warrants rehearing when you aren’t the lawyer who wrote the appeal briefs is like looking for a needle in a haystack.

We often get calls from litigants who have just found out they’ve lost their appeal and want to seek rehearing from the appellate court. Either they handled their appeal on their own, pro se (which we never recommend, but if you plan to do so, the Florida Bar Appellate Section has some great resources here), or else they utilized counsel but now that they’ve lost, they would like a second opinion.

And our answer is the same:  without even looking at your case, I can tell you that the chance of a motion for rehearing being granted is very low, and the likely result of my analysis of your case will be that you do not have a basis for rehearing.  How can I say that without even looking at your case, you ask? Well, it comes down to the rules.  Florida Rule of Appellate Procedure 9.330 governs appellate rehearing, and sets very strict rules about when you can even bring a rehearing motion. The rules even require any lawyer filing such a motion to swear on their bar license that the motion is justified.  So while we are happy to take on a “peace of mind” review of your case to determine whether rehearing is even available, you have to understand that it rarely is.

You have to act quickly

. A motion for rehearing may be filed within 15 days of the District Court’s decision.  Fla. R. App. P. 9.330(a).  Fifteen days is not a lot of time to analyze the entire case file (opinion, all three briefs, and record) and determine whether there are grounds for rehearing, so if your goal is to hire a new lawyer to take a look at the issues, you have to move quickly.  I recommend hiring someone certainly within a week of the decision, if not sooner, so that person has the chance.  Anyone who says they can do a motion for rehearing without thoroughly analyzing all of the prior briefing does not understand motions for rehearing.

You have to meet a high standard

  There are two flavors of Rule 9.330 motion:  Rehearing and Clarification.  As the rule states, a motion for rehearing “shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.”  So basically, you have to walk a tightrope:  You can’t raise a new issue, but you also can’t just reargue what you said before.  Instead, you have to really find a place where the appellate court in its review truly overlooked or misunderstood something.  If you do just re-argue what you said before, you can be sanctioned.  As one court has explained, a motion for rehearing is not “a last resort to persuade th[e] court to change its mind, or to express …displeasure with th[e] court’s conclusion.”  Lawyers Title Ins Group v. Reitzes, 631 So.2d 1100, 1101 (Fla. 4th DCA 1993) (issuing order to show cause why lawyer should not be sanctioned for merely re-arguing the same things in a motion for rehearing).  Such motions should very rarely be filed.

Similarly, a motion for clarification “shall state with particularity the points of law or fact in the court’s decision that, in the opinion of the movant, are in need of clarification”. Fla. R. App. P. 9.330.  But clarification is only useful if something is unclear or confusing in the written opinion, which is rare.  I’ve filed exactly one motion for clarification in my career, and it was, in fact, granted.  I have never been more proud to have 2 words deleted from an opinion that I still lost.  But that just goes to show how rarely these motions should be filed and how even rarer it is to grant them.

In my entire career, I’ve filed only a handful of rehearing motions, and only a few of those were granted. That I’ve had any granted is a great track record, but all it shows is that I don’t file motions for rehearing that break the rule and re-argue what was said before or raise entirely new issues.

Should you bother with a Motion for Rehearing?

  Rehearing is rarely appropriate to request, and even more rarely granted.  It is perfectly reasonable to get an unfavorable decision from the District Court of Appeal, and decide there is nothing more to be done, without further analysis: the odds are stacked against you.  When we represent a client throughout the appeal, we include in our services an analysis of rehearing issues, and make a recommendation as to whether rehearing is appropriate (spoiler alert: the answer is usually no).  When we were not the appellate counsel all along, it’s much harder: to decide whether rehearing is appropriate, one has to read not just the opinion, but the briefs showing what was argued, the cases cited in the briefs, and even the record to understand what happened in the trial court.  That takes time!  We are always happy to analyze a file and look for the tiny nugget of gold that would allow us to file a supported motion for rehearing—for us it’s a fun challenge.  But we charge a fee to do so, because to do it right generally takes several hours of time. And we want to be very upfront that the process is like looking for a needle in a haystack, and the answer will more likely than not be “sorry, we don’t advise seeking rehearing.”

Still not deterred?  If you have gotten a decision from the appellate court and want to hire us to determine whether rehearing is appropriate, feel free to schedule an intake consult.  Be sure to give us your case number and full contact information so we can run a conflicts check.

Photo courtesy of Flickr User Michael Gil Used under a CC 2.0 license

Motions Postponing Rendition

Now that we no longer have to worry about abandoning an authorized motion for rehearing by filing a notice of appeal, the appellate courts understandably want to know if there is such a motion pending. The Fifth District recently issued a notice [.pdf] expressly asking parties to inform the court if an appeal should be held in abeyance. Specifically, the court asks that, along with the notice of appeal, the parties “immediately” inform the court of pending motions by filing a notice with the Court. Similarly, parties are requested to file a notice with the court again when the trial court rules on the pending motion, and include a copy of the lower tribunal’s signed, written order disposing of the motion.

To further facilitate this, the Court this week amended Administrative Order AO5D12-2 [.pdf] to require the clerk of the lower tribunal to indicate on its transmittal that a motion postponing rendition is pending.

This just makes sense, and would be good practice in all of the DCAs, even in the absence if a formal request from the Clerk. The easier parties make it for the Court to get to the merits, the better the system works for everyone. The full text of the notice reads:

Informing the Appellate Court of Pending Motions Postponing Rendition at time of Filing the Notice of Appeal

April 10, 2015

Effective January 1, 2015, Florida Rule of Appellate Procedure 9.020(i)(3) has been amended to eliminate the abandonment of motions authorized pursuant to rule 9.020(l) by the filing of a notice of appeal. Rendition of a final order will be delayed by the filing or service of a timely and authorized motion and the filing of a notice of appeal will not result in the abandonment of such a motion but rather the appeal shall be held in abeyance until the filing of a signed, written order disposing of the motion.

Attorneys and parties filing a notice of appeal should immediately inform the court by the filing of a proper notice if a motion postponing rendition is pending so that the case may properly be held in abeyance. Likewise, the attorneys or parties in the case should inform the court by notice upon the lower tribunal disposition of such motions by filing a copy of the lower tribunal’s signed, written order disposing of the motion.

Lower court clerks, lower tribunal clerks, and agency clerks are now required to complete a new section of the electronic transmittal form submitted when efiling notices of appeal to this court which must indicate whether or not a motion postponing rendition is pending in the case below. Clerks must mark this section of the form or the notice of appeal may be rejected until such time as the transmittal form is properly completed.

/s/
____________________________
Joanne P. Simmons, Clerk of Court