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Briefing Deadlines Fixed

A vintage image of a girl in a boat adorning a calendar from January 1920

The Appellate Rules Committee was not caught without a paddle and fixed a deadline glitch before January 1, 2019.

The Florida Supreme Court fixed briefing deadlines for cross-appeals and dependency and parental rights termination cases, effective January 1, 2019 at 12:03 am.

One of the biggest changes to the Appellate Rules this year is the counterbalancing of the deletion of 5 extra days for mailing with the lengthening of most appellate deadlines. Generally speaking, most deadlines that were formerly 5 days are now 10, for example, and the brief deadlines that used to be 20 days are now 30, and deadlines that used to be 10 days are now 15. You read that right — even though we’ve lost mailing days, we generally now have five or more additional days to serve most items. (Why or more? Because when the Court took away mailing days, it also gave a little extra boon of allowing you to start counting “on the next day that isn’t a “Saturday, Sunday, or Legal Holiday” rather than the next day, so you are no longer starting 3 days into your response time when you walk into your office on Monday morning to find something was filed after hours on Friday. We break down the new math in a prior blog post).

With all of those rule changes (three different orders!) something was bound to fall through the cracks. Under the October 25, 2018 orders, two appellate rules — Rules 9.146 and 9.210 — inadvertently kept the old, shorter deadlines. Luckly, the Appellate Rules Committee was on it, and moved the Florida Supreme Court for rehearing to fix the oversight. Rather than grant rehearing, the Court treated the motion as an “out of cycle report” from the committee, adopting the changes and making them in effect as 12:03am on January 1, 2019. See In re Amendments to Florida Rules of Appellate Procedure 9.146 & 9.210, No. SC18-1917, 43 Fla. L. Weekly S602 (Fla. Dec. 6, 2018)[.pdf]. Now cross appeal briefs have the same amount of time as initial and answer briefs, 30 days from service of the last brief. See Rule 9.210. And in dependency and termination of parental rights proceedings, practitioners also have the benefit of additional time (30 days for an answer and 15 days for a reply). See Rule 9.146.

The fully integrated .pdf rule set is now available on the Florida Bar’s website. Moreover, the fully integrated revised rules are also available at http://rules.floridaappellate.com.

New Rule 9.380 Allows Notification of Related Cases

A public domain image of sketches of various courtroom scenes

Are these cases related?
If they are, now you can tell the appellate court.
Source: The Miriam and Ira D. Wallach Division of Art, Prints and Photographs: Print Collection, The New York Public Library. Familiar scenes and faces in court. Retrieved from http://digitalcollections.nypl.org/items/9b51c6ed-b3d7-a26c-e040-e00a18061941


Among the many rule changes effective January 1, 2019, the Florida Supreme Court has created a new mechanism to notify an appellate court of related pending cases. New Rule 9.380 allows parties, without argument, to inform an appellate court of “related case or issue” that is either “arising out of the same proceeding in the lower tribunal,” or, helpfully, “involving a similar issue of law.”

How is this helpful to the appellate practitioner? If you are watching an issue develop and percolate in the trial courts or district courts, you can now notify the courts of other pending appeals or trial court decisions on the issue. Make note that this notice is not an opportunity to make additional argument: the rule expressly states that the notice “shall not contain argument.” Still, it’s a way to direct the courts to attempt uniformity in rulings.

Because there is no argument involved, the notice should follow the simple format of new Rule 9.900(k) [.pdf].

An historic image from a calendar for the month of January

Calculating Deadlines Under the New Rules

An historic image from a calendar for the month of January

Don’t let January’s rule changes cause you confusion!

There is always some confusion when new rules affecting the calculation of deadlines come into effect, as happened on the January 1, 2019. How do you calculate deadlines that straddle the gap? Someone reached out directly to us to ask the question, so here’s our answer for posterity.

The hypothetical is this: Appellant files an initial brief on Friday, December 28, 2018. When is the answer brief due? Under the version of the rules in effect on December 28, 2018, an Answer Brief the rule stated:

Unless otherwise required, the answer brief shall be served within 20 days after service of the initial brief.

See former Rule 9.210(f). In addition, former rule 2.514(b) allowed an additional five days added to any deadline calculated based on service by e-mail:

(b) Additional Time after Service by Mail or E-mail. When a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire under subdivision (a).

So under the old rules, the 20th day is Thursday, January 17, 2019. Add five additional days for service by e-mail, and the deadline is Tuesday, January 22, 2019.

New Rules, New Math

The new rules change the calculations. The new version of Rule 9.210(f) states:

Unless otherwise required, the answer brief shall be served within 2030 days after service of the initial brief…

And the new version of Rule 2.514(b) eliminates extra days for service by e-mail, now reading:

(b) Additional Time after Service by Mail. When a party may or must act within a specified time after service and service is made by mail, 5 days are added after the period that would otherwise expire under subdivision (a).

Finally, the new version of Rule 2.514 gives you a break on when to start counting if someone served you something on the eve of a weekend or holiday. Where before, you would “exclude the day of the event that triggers the period” and start counting on the next calendar date, the new rule states that you “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.” See New Rule 2.514(a)(1).

The net result is that instead of counting 20 days (which could be more, if the last day fell on a weekend) and then adding an additional 5 days for mailing (which could be more, if the last day fell on a weekend), you now count a straight 30 days, starting from the next business day. If the last day falls on a weekend or holiday, you then role to the next day that is not a Saturday, Sunday, or holiday. If the new rule applies to the brief filed December 28, 2018, you start counting from Monday December 31, 2018 (after confirming it is not a holiday; it is not). From there, the 30th day would be Tuesday, January 29, 2019.

Do the New Rules Change the Due Date?

So is the deadline the 22nd or the 29th? It’s great that the new rules tend to net attorneys more total time, but what happens this month? Good question.

There is voluminous case law about whether a newly-enacted statute should be applied retroactively.

In order for a law to apply retroactively, the court must determine (1) if there is evidence that the legislature clearly intended for the law to be applied retroactively, and (2) if so, whether the retrospective application of that law is constitutionally permissible. See Pondella Hall for Hire v. Lamar, 866 So.2d 719, 722 (Fla. 5th DCA 2004). In the absence of clear legislative intent that a law apply retroactively, the general rule is that procedural statutes apply retroactively and substantive statutes apply prospectively.

Envtl. Confederation of Sw. Florida, Inc. v. State, 886 So. 2d 1013, 1017 (Fla. 1st DCA 2004). But, this is not a statute enacted by the legislature, but rather, a rule of procedure promulgated by the Supreme Court.

Moreover even when the new law is stated by the Supreme Court, the analysis of retroactivity has constitutional dimensions:

the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.

Witt v. State, 387 So. 2d 922, 926 (Fla. 1980).

But this rule generally comes into play when the Florida Supreme Court makes a ruling that itself has constitutional dimensions. It does not speak to rule changes.

Here, we are dealing with changes to rules of procedure and not statutory pronouncements or decisional changes in the law. The answer therefore lies in a different line of cases. Since the 1800s, the Florida Supreme Court has held that its rules of court are prospective in nature:

Unless otherwise specifically provided, our court rules are prospective only in effect. Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649 (1896).

Tucker v. State, 357 So. 2d 719, 721 (Fla. 1978).

To avoid litigation in some criminal cases, the Supreme Court has sometimes expressed this rule of interpretation outright when making a rule change. For example, in amending the rules regarding post-conviction collateral relief, the court expressly stated the effective date and then stated, in the rule itself, “Motions pending on that date are governed by the version of this rule in effect immediately prior to that date.”
In re Amendments to Florida Rules of Judicial Admin.; Florida Rules of Criminal Procedure; and Florida Rules of Appellate Procedure–Capital Postconviction Rules, 148 So. 3d 1171, 1180 (Fla. 2014). However, precedent dictates that the rules apply prospectively only unless the Court expressly states otherwise. Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649 (1896); Tucker v. State, 357 So. 2d 719, 721 (Fla. 1978).

Apply the Rules in Effect on the Triggering Date

All of this is a long-winded analysis to come to a very logical conclusion: calculate deadlines based upon the rules in effect on the date of the event that triggers the calculation. So in our hypothetical, because the deadline for service of an answer brief is based on the date of service of the initial brief, and because the initial brief was served last year when the old rules were in effect, calculate the deadline using the old rules. The answer brief is due Thursday, January 17, 2019.

Don’t miss our other entries on the rule changes, including our overview, and our discussion of new types of appeals authorized by the new rules. Let us help you with your appeal! 813-778-5161.