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What Do I Do if the Other Side Files a Writ of Certiorari, Prohibition, or Mandamus in Florida Cases?

Writs of Certiorari, Writs of Mandamus, and Writs of Prohibition are three different ways a party in Florida state court litigation can seek appellate court intervention even though the judge has not made a final decision. If the other side seeks one of these writs from the appellate court, what do you need to do to protect yourself?

No Response Required — at First

The party who files a petition for a writ is referred to in the appellate court as the Petitioner, and the party who won the trial court victory is referred to in the appellate court is called the Respondent. But in most cases, a Respondent is neither required nor allowed to respond to the Petition. A response is only allowed if ordered by the appellate court. The appellate court will first review the petition and decide whether it needs or wants a response. Florida Rule of Appellate Procedure Rule 9.100(h) states that if the Court believes the petition “demonstrates a preliminary basis for relief,” the Court will issue an “order to show cause” asking the Respondent to explain why relief should not be granted. The Court could also instead direct the Respondent to file a response. Either order will state a deadline for the Respondent to respond.

Do I Need Appellate Counsel?

It is a good idea to consult with appellate counsel if the other side files a writ. Appellate counsel can help in several ways. First, appellate counsel can provide an initial assessment of how likely the appellate court is to request a response. Second, appellate counsel can be at the ready in case the appellate court does order a response. The Court will set a deadline, and depending on how urgent the issues in the petition are, the deadline might be quite fast. Bringing appellate counsel on board as soon as the writ is filed can help ensure that you are ready to respond quickly if ordered. Third, if a response is ordered, appellate counsel is generally much more familiar with the procedural and jurisdictional quirks of these rare writs, and will often be in a better position to show the appellate court why the writ should not be granted based on appellate counsel’s wider experience in appellate standards of review. And finally, separate appellate counsel can allow your trial counsel to stay focused on the main litigation, which is most likely moving forward even though the writ is pending.

If you are on the receiving end of an extraordinary writ — whether it is a writ of certiorari, a writ of mandamus, or a writ of prohibition, consider engaging appellate counsel for a substantive consultation and/or to appear on your behalf in the appellate court. If we can help, feel free to contact us at 813-778-5161 or fill out our intake form here to initiate scheduling a consultation.

What Are Costs on Appeal in Federal Court?

It costs money to print paper copies of briefs. Are those costs recoverable in a Federal Appeal?

When the Eleventh Circuit Court of Appeal decides an appeal, the case is not quite over. In addition to making the determination of whether to seek rehearing or rehearing en banc, the winning party should also be ready to deal with filing a bill of costs, in addition to considering whether the party is entitled to an award of attorney’s fees (which we’ll cover in another blog post). What are those costs and when are they owed?

When is a Party Entitled to an Award of Appellate Costs?

Under Federal Rule of Appellate Procedure 39, costs are automatically taxed against the losing party if the judgment is affirmed or reversed in full and the Court does not rule otherwise. If there is a partial victory, costs are only taxed as the Court orders. So in most cases, one party is going to end up paying the other party’s costs.

When Must the Party Entitled to Costs File the Bill of Costs?

A bill of costs is due to the appellate Court no later than the later of 14 days from the Court’s opinion issuing, or 14 days from the date the Court rules on a timely post-opinion motion for rehearing or rehearing en banc. Fed. R. App. P. 39(d). The bill of costs be itemized, verified, and include receipts if copies were made by an outside vendor.

What Types of Costs Are Appellate Taxable Costs?

While a party may have paid other kinds of costs to their counsel or vendors on appeal, only the costs specifically set out in the rules are taxable on appeal. There are two categories of costs: Those awarded by the appellate court, and those awarded by the trial court.

Which Costs Are Awarded by the Appellate Court?

As to the appellate court, the party against whom costs have been taxed must both pay the court’s docketing fee, and the costs the other side incurred making paper copies of documents that are required to be submitted to the Court.

Specifically, the rules provide that the appellate court shall award costs of “producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f).” FRAP 39(c). How many copies that is depends on which Court you are in. The default rule under the Federal Rules of Appellate Procedure require service of 10 copies of the Appendix on the Court, along with one copy to each separately represented party, Fed. R. App. P. 30(3), in addition to providing the court with 25 paper copies of each brief and serving two paper copies on each separately represented party. Fed. R> App. P. 31(b). But appellate courts are expressly invited to set their own rules on the number of copies, and the Eleventh Circuit has thankfully reduced the number of trees that become recoverable costs.

In the Eleventh Circuit, a represented party likely filed 2 copies of the appendix, see 11th Cir. Rule 30-1(d). If the case was set for oral argument, the party probably filed three additional copies of the appendix, so the count goes up to 5. Id. It also includes “[o]ne originally signed brief and six copies (total of seven)” copies filed with the Court, along with a paper copy to each party separately represented. 11th Cir. R. 31-3. Count the number of

How Do You Calculate the Costs Awarded by the Appellate Court?

The appellate docketing fee is authorized by statute, 28 U.S.C. § 1913, and is set by the administrative office of the U.S. Courts. Effective December 1, 2020, that docketing fee was set at a flat $500 fee.

The cost of the copies is calculated by multiplying the number of pages required to be filed by a per-page fee that is the greater of the actual costs incurred, or the maximum per-page cost set by each Court of Appeals, which shall reflect local costs and “should encourage economical methods of copying.” Fed. R. App. P. 39(c). In the Eleventh Circuit, that per page figure is currently set at 15 cents per in-house copy, and a max of 25 cents per commercial reproduction, when also supported by receipts showing your actual expenditure. The Eleventh Circuit also has a specific fillable form it expects parties to use as the bill of costs [.pdf]. These costs are generally included in the mandate by the Clerk of Court.

What Costs Are Awardable in the Trial Court?

There are a few other costs specifically taxable by filing an appropriate motion with the trial court, but they usually only apply if the Appellant (the party that lost before the trial court) wins on appeal. Those costs are:
(1) the preparation and transmission of the record;
(2) the reporter’s transcript, if needed to determine the appeal;
(3) premiums paid for a bond or other security to preserve rights pending appeal; and
(4) the fee for filing the notice of appeal.

Generally, the appellate court affirms the trial court’s judgment, there is no basis to request these fees, because they weren’t paid by the Appellee. Still, if you win as an appellant, don’t forget to keep an eye on these fees, which can add up! You will be required to provide supporting documentation (such as receipts) so be sure to keep those as you make the payments.

How Do You Collect Costs Awarded?

In the Eleventh Circuit, parties are required to mail the costs awarded to the other side directly, without further action by the Court.

What is a Writ of Certiorari in Florida State Courts?

The term writ of certiorari is used in many different contexts, depending on the courts involved. The Latin word certiorari (often abbreviated as “Cert.”) means “to be made certain,” and in Old English courts such writs actually began with the Latin words “Certiorari volumus…” (“We wish to be made certain…”). In Florida state courts, the writ of certiorari most often refers to a proceeding in which a party asks an intermediate appellate court, here known as a District Court of Appeal, to review a decision of a trial court. But importantly, it can’t be just any trial court decision, because otherwise litigants would file a writ every time they disagreed with the trial court. For the District Court of Appeal to have jurisdiction to hear a Writ of Certiorari, the order must be otherwise unappealable, and the party seeking certiorari relief must demonstrate that harm caused by the order is irreparable and cannot be remedied on plenary appeal, and that the ruling was “a departure from the essential requirements of law.” Let’s drill down on what each of these requirements mean.

Not an Otherwise Appealable Nonfinal Order

There are some kinds of nonfinal orders that Florida has decided are automatically appealable — essentially, Florida has made a policy decision that certain kinds of cases do not need to make the showing that is normally required by certioari, because there is clearly a lack of remedy by the time the case is over. Before you consider filing a writ of certiorari, be sure to check out the list of directly appealable nonfinal orders found in Rule 9.140. But if the order you want reviewed is not on the list of appealable non final orders, you should determine if a writ of certiorari is available to you.

Harm Not Remedied by Plenary Appeal

Assuming the ruling is not covered by Rule 9.140, the threshold issue the appellate court will consider is whether the harm caused by the order is of a character that it needs to be resolved now, rather than at the end of the case. The term “plenary appeal” refers to an appeal of a final order, which comes at the end of the case. Most rulings, no matter how wrong, can be fixed at the end of the case, or more importantly, don’t need to be fixed — usually because it did not affect the ultimate outcome of the case. This prong of the test is also sometimes referred to as “irreparable harm.” And not all types of harm are considered irreparable. For example, a ruling costing a party a lot of money is not sufficient to cause irreparable harm. W. Florida Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676, 682 (Fla. 1st DCA 2009), approved, 79 So. 3d 1 (Fla. 2012). Even disclosure of information in which the party has a “valid privacy interest in avoiding unnecessary disclosure of matters of a personal nature” does not generally meet this standard. Id.

What does constitute irreparable harm? The most common example is described as “’cat out of the bag’ material that could be used to injure another person or party outside the context of the litigation, and material protected by privilege, trade secrets, work product, or involving a confidential informant may cause such injury if disclosed.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). A litigant must carefully consider, by reviewing existing cases, whether the harm of the order would be considered irreparable by the appellate court.

Departure From the Essential Requirements of Law

Once you prove the harm is irreparable, you still cannot get relief on a writ of certiorari unless you also demonstrate to the court that the trial court’s ruling is a “departure from the essential requirements of law.’ This phrase means, for example, that the law is very clear, and the violation of that clearly established principle of law results in a miscarriage of justice. It has to be more than just the appellate judges simply disagreed with the circuit court’s determination and interpretation of the applicable law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1094 (Fla. 2010).

Successful Writs of Certioari Are and Should Be Rare

The Florida Supreme Court does not want litigants to run to the appellate courts for every little disagreement with the trial judge. That is why it says that “common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 349 (Fla. 2012) (citation omitted).

There Are Other Writ of Certiorari Standards In Florida

This post talks about the most common type of writ of certiorari, but there may be other times the term writ of certiorari is used in Florida Courts to apply to different situations. Those other situations also have different standards of review. If you have a question about whether you should file a writ of certiorari, or if the other side of your litigation has filed a writ of certiorari and you need help, feel free to contact us at 813-778-5161 or fill out our intake form here to initiate scheduling a consultation.