Jurisdiction and Extraordinary Writs

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Sometimes, you can win the battle and lose the war. So it can be with jurisdiction. Even if you are correct that there is no jurisdiction over an appeal in the Florida intermediate appellate courts, the Court still has the discretion to treat an appeal as a request for an extraordinary writ.

And that’s exactly what the Second District Court of Appeal did to late last month. (Full disclosure, I was attorney of record for the Appellee on this case). On the eve of a hearing on the Defendants’ summary judgment motion, the Plaintiff filed a notice of voluntary dismissal. The Defendant asked the trial court to strike the notice of voluntary dismissal, arguing that it had attained rights in the case precluding voluntary dismissal and fraud on the court. The trial court did so, and the plaintiff appealed.

The problem, however, was that the order they were attempting to appeal was neither a final appealable order nor an order available for interlocutory appeal. And I elloquently told the court so.

The Second DCA knew I was right:

We briefly address this court’s jurisdiction to consider this appeal. Service Experts’ notice of appeal was filed pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). The Northside defendants have argued that this court does not have jurisdiction under rule 9.130(a)(5) because that rule applies to orders entered on motions for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540. They state that their motion to strike the notice of voluntary dismissal was not made pursuant to rule 1.540 because that rule applies to final judgments, decrees, orders, or proceedings, and the voluntary dismissal they sought to set aside was not a final judgment, decree, or order. We agree with their procedural assessment.

However, the Court dug deep and created a remedy for the Plaintiff by converting the appeal to a writ of prohibition, pursuant to Rule 9.040(c):

Based on the facts of this case, appellate jurisdiction does not neatly fall within the confines of rule 9.130(a)(5). Nevertheless, Florida Rule of Appellate Procedure 9.040(c) provides that when a party seeks an improper remedy, “the cause shall be treated as if the proper remedy had been sought.” Here, a writ of prohibition is appropriate “to forestall an impending injury where no other appropriate and adequate legal remedy exists and only when damage is likely to follow.” City of Ocala v. Gard, 988 So.2d 1281, 1283 (Fla. 5th DCA 2008). It is “the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction” where there is no right to remedy the wrong at issue by direct appeal. Id. at 1283. Because we conclude that the trial court’s order was in excess of its jurisdiction, we have appellate jurisdiction to “forestall an impending injury”-forced litigation after the plaintiff’s notice of voluntary dismissal was filed. As there is no other adequate remedy, we convert this appeal to a writ of prohibition.

Now, the rules geek in me does, in fact, feel vindicated that I was right about the jurisdiction issue. But that’s not much comfort to the client, who had a favorable ruling overturned.

A request for clarification is pending on the appeal. The case is Service Experts, LLC v. Northside Air Conditioning & Elec. Service, Inc., No. 2D09-5416, ___ So.3d ____ (September 22, 2010) [.pdf].

Dismissal Sanction Too Extreme

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Is a single violation of the Rules of Appellate Procedure severe enough to justify dismissal of the appeal as a sanction?

The Second DCA answered the question in the negative in Altman v. State, __ So.3d ___, No. 2D09-3871 (Aug. 6, 2010)[.pdf]. The opinion makes clear that the record is not exactly a model of clarity, due in large part to the fact that the appellant filed an inadequate Appendix. I’ve said it before: a proper Appendix is critical to effective appellate review.

Still, the Court still went out of its way to review, on certiorari, a lower courts’ dismissal of the appeal for failure file a timely brief. The case appears to be a criminal appeal where the circuit court acted in an appellate capacity, and the DCA’s patience may have been bolstered somewhat by the trial court conflating the rules for when a criminal appeal is due with the rules for when a civil appeal is due.

In any event, the circuit court sitting in its appellate capacity thought the brief was late, and relying on Florida Rule of Appellate Procedure 9.410 issued an order to show cause why the appeal shouldn’t be dismissed for failure to file a timely brief. The Appellant indirectly responded by moving for an enlargement of time to file a brief, explaining that the record was not yet completely transcribed. The Appellant was granted that enlargement, which gave her until July 23rd to file her initial brief.

Inexplicably, the court dismissed her appeal sua sponte on July 21st, vacating the enlargement of time that had been entered as “improvidently granted.” On review to the Second DCA, the Court held that this action failed to comply with procedural due process and the notice requirements of Rule 9.410. The Court concluded that “Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules. Without more, however, the failure to file a brief on time is not a serious enough violation to warrant dismissal of an appeal.” (emphasis in original).

Transcription Costs Battle Leads to Mandamus Against Manatee Clerk

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In yet another sign that the clerks of court are feeling pinched by budget cuts and rising case loads, the Manatee County Clerk tried to cut costs by sending the parties to certain criminal appeals only electronic copies of trial transcripts, and not traditional paper copies. But both the State and the public defenders missed their paper copies, and they sought a writ of mandamus against the Clerk to force him to provide them with paper copies. In State, Office of Atty Gen’l v. Hon. R.B. “Chips” Shore, Clerk, Manatee County, 2D10-1932 (July 28, 2010) [.pdf] the Second DCA concluded that the litigants were correct, and the Florida Rules of Appellate Procedure require the Clerk, not the criminal appellant or court reporter, to bear the costs of making additional copies of the transcript.

Florida Rule of Appellate Procedure 9.140(f) provides for an exceptional procedure in certain publicly-funded cases whereby the court reporter files only the transcripts with the clerk, who must then make copies for distribution to the parties: “The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the approved court reporter or approved transcriptionist to prepare the necessary copies of the original transcripts.” Fla. R. App. P. 9.140(f)(2)(F). The Court analyzed the phrase “copies of the original transcripts” with reference to portions of the Florida Rules of Judicial Administration that define what constitutes the record, and concluded that Rule 2.535 defines transcripts as being bound and printed documents.

What fascinates me about this decision, though, is the underlying policy battles at play. The Clerk claimed he had to go paperless, pursuant to a Supreme Court administrative order. He relied, too, on a state court administrative order. The public defender claimed it did not have the resources to print its own transcripts. In the end, the one provision of the rules in isolation supported the clerk’s take, but the rules as a whole supported the litigants’ view.