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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 28, 2019.

Do the New Rules Change the Due Date?

So is the deadline the 22nd or the 28th? 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.

Eleventh Circuit Rule Amendments Effective April 2, 2018

The Eleventh Circuit has made a handful of changes to its rules affecting tax practitioners, appellate mediation, and the ability of counsel coming in after an appeal has been initiated to file a replacement brief. Specifically, the rule amendments:

  • Now require the Tax Court to prepare exhibits in the same way any District Court would, by deleting a sentence in Eleventh Circuit Rule 11-3.
  • Remove the local setting out a procedure for late-filed counsel to file a replacement brief before the Court, former Rule 31-6, and all references to it.
  • Delete the requirement that parties serve “an original and one copy” of the Civil Appeal Statement, and remove the requirement of filing copies of portions of the record with the statement, since electronic filing and access to dockets makes serving extra copies or record documents moot.
  • Without a specific rule governing replacement briefs, does this mean the Eleventh Circuit will no longer allow replacement brief practice? The answer is unclear, but I would counsel clients not to count on it.

    The new rules became effective April 2, 2018.

    Eleventh Circuit Amends Rules on Extensions, Disclosures, and Admissions

    Eleventh Circuit Court of Appeals, Atlanta

    Eleventh Circuit Court of Appeals, Atlanta

    The 11th Circuit will now allow a first request for extension of time of up to 14 days (instead of 7) – without having to certify pursuant to 11th Circuit Rule 26-1 that the requestor conferred with opposing counsel about the extension – which can be granted by the Clerk on a telephonic request, so long as the Court hasn’t established a written briefing schedule. 11th Cir. R. 31.2. Any request for an extension greater than 14 days still requires consultation with opposing counsel and a written motion, and the first request must still be made at least 7 days in advance.

    The Court also amended the rules for filing a Certificate of Interested Persons and Corporate Disclosure Statement (CIP) to not only require the appellant or petitioner to file a CIP within 14 days of docketing of the appeal and to complete the web-based CIP form the same day, but to require all other parties to file a response to the CIP within 14 days either indicating the CIP is correct or adding additional interested persons or entities. 11th Cir. R. 26-1(a). The rule now clearly states that failure to complete the separate web form will subject a party to delay of the case and possible sanctions. 11th Cir. R. 26-1(b); 26.1-5. The rule change also clarifies the parties that need to be identified in various kinds of cases, speaking specifically to including the identity of the victims in criminal appeals, and the debtor, creditor’s committee members, and any entity which may be affected by the decision in bankruptcy appeals. 11th Cir. R. 26.1-2. Any amendments to the CIP must be brought to the Court’s attention, both in briefs and through the web-based CIP. 11th Cir. R. 26.1-4.

    Finally, the attorney admission rules now impose a continuing obligation to notify the Court if an attorney’s status with any other bar lapses, and makes clear that attorneys applying for admission to the bar or to appear pro hac vice must be in good standing elsewhere. 11th Cir. R. 46-1, 46-4; 46-7. Renewal fees may now be paid online.

    Download a copy of the new rules here. The Court’s summary table of the rule changes is available here.