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Hurricane Dorian approaching Florida

Florida Supreme Court Hurricane Dorian Orders

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Hurricane Dorian approaching Florida

National Oceanic and Atmospheric Administration (NOAA) image of Hurricane Dorian taken Sunday, Sept. 1, 2019, at 17:00 UTC.

Last week, we explained the deadline issues surrounding a hurricane such as Dorian, which bore down on Florida, and then swerved away and let us be. But the forecast certainly disrupted the courts, attorneys, and litigants, as most of the state got busy preparing for the worst (and hit Florida’s economy even though it didn’t actually hit the state).

On Wednesday, Thursday and Friday, as Dorian aimed away from Florida, the Florida Supreme Court issued several orders retroactively extending deadlines. For the whole list of trial court counties whose deadlines were affected, check out the Florida Supreme Court’s page linking to Emergency Request to Extend Time Periods Under All Florida Rules (including Hurricane Dorian orders). But here’s the summary for the appellate courts:

Second District: AOSC19-50 (Sept. 5, 2019)[.pdf] extends time limits “from the close of business on Friday, August 30, 2019 until the close of business on Wednesday September 4, 2019.”

Third District: AOSC19-44 (Sept. 4, 2019) [.pdf] also extends time limits “from the close of business on Friday, August 30, 2019 until the close of business on Wednesday September 4, 2019.”

Fourth District AOSC19-49 (Sept. 5, 2019) [.pdf] deadlines “extended from the close of business on Thursday, August 29, 2019, until the close of business on Thursday,September 5, 2019.”

Fifth District AOSC19-57 (Sept. 6, 2019)[.pdf] time limits ” extended from the close of business on Friday, August 30, 2019, until the close of business on Thursday, September 5, 2019.”

In all of the orders, the Court recognizes there may be additional need for enlargements, which “shall be resolved by the court in which jurisdiction is vested on a 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.”

Don’t expect orders regarding the First DCA or the Supreme Court, because those courts did not close for Dorian.

The lesson for practitioners: Consider adding a hurricane plan to your business practices. We’re in Florida. It happens. And it’s disruptive even when there is no landfall. We have two more months until hurricane season is over for 2019.

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

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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.

Fifth District Changes Procedures for Extensions of Time

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The Fifth District Court of Appeal has twice modified its rules regarding extensions of time in less than a month, reducing the availability of stipulated extensions and placing additional burdens on all attorneys seeking an extension for their clients.

Agreed Extensions of Time for Filing Briefs

Since 2013, the Fifth District has allowed parties to file a “notice” in lieu of a “motion” to obtain limited extensions of time for briefs in criminal and civil appeals, with certain exceptions.  The original administrative order authorized as much as 90 days for initial or answer briefs, and 60 days for reply briefs.

But in an amended order effective March 2, 2018, the amount of time available is now limited to 60 days for initial or answer briefs, and 30 days for reply briefs.

New Notice Requirements for Extensions

The Fifth District did not stop there.  In its March 27, 2018 Administrative Order A05D18-02, the Fifth District mandated that every extension request filed by an attorney must be accompanied by a certification that the attorney has provided a copy of the motion or notice to his/her clients.  This applies to all cases before the Court, and not just those that allow for the “notice” procedure discussed above.

The administrative order notes that it does not “require the client’s signature or consent,” nor does the certification have to include the client’s name, address, or signature.  According to the order, the attorney will comply with the order by certifying “by a statement included in the signed certificate of service on the motion or notice filed with this Court, that counsel has that day provided a copy of the motion or agreed notice to his/her client(s) via U.S. Mail, e-mail, or by hand delivery.”

The order does warn, however, that noncompliance with this requirement may result in the denial of any request for extension of time, whether by notice or motion.

What it Means to You

Given these added restrictions, we deduce that the Fifth District must perceive there has been some abuse of its extension procedures that require stricter regulation.  The new rules appear designed to increase attorney oversight by both the Court and clients.  Unfortunately, for those attorneys who do not abuse the process, these new rules will make seeking an extension slightly more difficult, and it will reduce the number of limited extensions available.  It remains to be seen whether other districts will adopt similar rules.

There is a strong likelihood that many who do not specialize in appellate practice will be caught off-guard by this new rule, and thus will have a motion or notice for extension denied or stricken.  We watch for rule changes like this because appeals are what we do.  Let us help you navigate the intricacies of the specific rules for each of the appellate courts in Florida to avoid getting caught in any procedural traps such as the ones created by these new rule changes in the Fifth District.

A final note — if you want a blast from the past, check out the article Jared wrote back in 2014 for the HCBA Lawyer on the issue of stipulated extensions of time when the concept was still brand new!

UPDATE: We’ve created a handy guide to help you keep the different courts’ rules straight. Click here to sign up for our newsletter and get a link to download the guide!