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Florida Supreme Court Amends Rules of Appellate Procedure

The Florida Supreme Court recently issued three orders updating the Florida Rules of Appellate Procedure with amendments that took effect on January 1, 2015.

The first order amended Rule 9.142(a)(1)(B) (“Procedures for Review in Death Penalty Cases; Procedure in Death Penalty Appeals; Record”) to require the clerk of the trial court to retain a copy of the complete record when it transmits the record to the Florida Supreme Court on appeal.

The second order is 53 pages in length. This summary is just a preview of a few of the revisions:

Rule 9.100 governs original proceedings (petitions for writs) filed in the appellate court. The rule previously said that the court may issue an order to show cause if the petition appears to demonstrate a proper basis for relief. If the court issued an order to show cause in a prohibition case, the proceedings in the lower court were automatically stayed. But some appellate courts were requesting a response to the petition, rather than specifically ordering the respondent to show cause as to why the petition should not be granted. There was concern that this procedure was circumventing the automatic stay in prohibition cases. The Florida Supreme Court decided that the appellate courts should maintain their discretion to simply request a response. The amendment now clarifies that appellate courts have the discretion to choose either to (1) issue an order to show cause and stay the proceedings below (in prohibition cases) or (2) request a response that does not stay the proceedings below.

Rule 9.110(k) was amended to distinguish certain partial final judgments that are immediately appealable from those that are not. Previously the rule stated that generally “partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case.” The rule now clarifies: “A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.”

Rules 9.110(l) and 9.020(i) were amended to clarify the relationship between the rule on premature appeals and the rule on rendition of orders and judgments. Previously, a post-judgment motion such as a motion for rehearing was deemed abandoned if the party filed a notice of appeal while the motion was pending. The amendment to Rule 9.020(i) eliminated the language providing that a party abandons its post-judgment motions upon the filing of a notice of appeal. The amended rule allows the post-judgment motion to remain pending and be disposed of while the appeal can be held in abeyance until such disposition.

Under Rule 9.110(l), premature appeals are still subject to dismissal. However, the amendment recognizes the exception under Rule 9.020(i) and clarifies that it is neither necessary nor appropriate to request a relinquishment of jurisdiction from the appellate court to enable the lower tribunal to render a final order, because the lower tribunal automatically retains jurisdiction to render a final order. If a final order is rendered before dismissal of the premature appeal, the premature notice of appeal is effective to vest jurisdiction in the appellate court to review the final order. A party may request the appellate court to allow the parties time to obtain a final order, but the court has no obligation to do so.

Rule 9.400(b) was amended to clarify at what point in time a motion for attorney’s fees must be filed in original proceedings that commence with the filing of a petition in the appellate court. That issue had previously been unclear due to some conflicting judicial opinions. Now the rule specifies that the motion for attorney’s fees must be served no later than the time for the petitioner’s reply to the response to the petition.

Rule 9.130(a)(3)(C)(iii) previously allowed for an appeal of two specific categories of non-final orders in family law matters: “the right to immediate monetary relief or child custody.” The amendment specifically included child “time-sharing” along with custody. It also added a new category: a non-final order determining “that a marital agreement is invalid in its entirety.”

Rule 9.130(a)(4) formerly precluded appellate review of some “non-final orders entered after final order on motions that suspend rendition,” such as a motion for rehearing. The amended version states: “Orders disposing of motions that suspend rendition are not reviewable separately from a review of the final order; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule 9.110.” The revision allows “an order disposing of a motion that suspends rendition” to be reviewed on appeal, but only in conjunction with, and as a part of, the review of the final order.

Additionally, the following sentence has been deleted from Rule 9.130(a)(4): “Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.” The committee notes explain that its deletion clarifies that “non-final orders entered after a final order are no more or less reviewable than the same type of order would be if issued before a final order. Non-final orders entered after a final order remain reviewable as part of a subsequent final order or as otherwise provided by statute or court rule.” The committee note also explains that “this amendment will delay some courts’ review of some non-final orders entered after a final order until rendition of another, subsequent final order. But the amendment is not intended to alter the Court’s ultimate authority to review any order.”

The amendment to Rule 9.130 added a new division (g) to expressly provide for cross-appeals of non-final orders: “An appellee may cross-appeal the order or orders designated by the appellant, to review any ruling described in subdivisions (a)(3)–(a)(5), by serving a notice within 10 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later. A notice of cross-appeal, accompanied by any filing fees prescribed by law, shall be filed either before service or immediately thereafter in the same manner as the notice of appeal.”

The Supreme Court’s third order also amended Rule 9.130 by adding two new kinds of appealable non-final orders. Under paragraph (a)(3)(C), it adds “(x) [an order] that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes;” or “(xi) [on order] that, as a matter of law, a party is not entitled to sovereign immunity.” The cited statute generally shields officers, employees, and agents of the state and its subdivisions from personal liability “in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function.” The amendments to Rule 9.130 allowed for interlocutory review where an individual defendant (government officer, employee, or agent) who claims immunity under section 768.28(9)(a) is denied that immunity and the issue turns on a matter of law. The amendment also allowed interlocutory review of the denial of any claim of sovereign immunity by a government entity where the question presented is solely a question of law.

As noted earlier, this is just a summary of a few of the amendments to the Florida Rules of Appellate Procedure that took effect on January 1, 2015. It is advisable to read the three orders in their entirety. The first order is published at 148 So. 3d 1171, amending only Rule 9.142. The second order is found at 39 Fla. L. Weekly S 665 and amended numerous rules of appellate procedure. The third order is found at 39 Fla. L. Weekly S 675 and amended only Rule 9.130(a)(3)(C).

Those three orders are of particular interest to us, as The Law Offices of Robin Bresky focuses on appellate practice and Robin Bresky is a member of The Florida Bar’s Appellate Court Rules Committee. The Law Offices of Robin Bresky is available to discuss these matters.

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