Florida Appellate Practice and Advocacy Eight Edition

Updates (November 7, 2024) * Effective January 1, 2021 new Rule 9.045 specifies the two acceptable fonts (see below) and amended Rule 9.210 specifies the new word count limits for briefs (13,000 for initial and answer briefs; 4,000 for reply briefs. For some criminal appeals there are different page and word limits). §1.3 In January 2023 the Sixth District Court of Appeals opened, headquartered in Lakeland. §2.2 In Furst v. DeFrances, 332 So. 3d 951 (Fla. 2021) the court accepted jurisdiction on the basis the district court opinion expressly affected property appraisers, a class of constitutional officers. Mitchell v. Race, 49 Fla. L. Weekly S (November 7, 2024), dismissed a case after briefing and argument where the court concluded it was “presented with a certified but fictional conflict.” Pinellas Cnty. v. Joiner, 389 So. 3d 1267, n.3 (Fla. 2024), declined to consider an issue the district court did not pass on. §2.3 Kartsonis v. State, 319 So. 3d 622 (Fla. 2021) reiterated that express and direct conflict requires either the announcement of a conflicting rule of law or the application of a rule of law that results in a conflicting outcome despite “substantially the same controlling facts.” The facts in the second situation “are of the upmost importance” and there can be no conflict when the cases are easily distinguishable. The opinion rejected accepting the case based on asserted “apparent conflict.” Askew v. Fla. Dept. Children & Families, 385 So. 3d 1034 (Fla. 2024), holds an alleged misapplication of a decision is not a basis for Florida Supreme Court jurisdiction. The petitioner must satisfy one of the Kartsonis standards. Simply because a case may present “federal issues,” that does not provide a basis for Florida Supreme Court review. Mallet v. State, 280 So. 3d 1091 (Fla. 2019). §2.4 & §2.5 Effective January 1, 2021, Section 26.012, Florida Statutes is amended so that most county court appeals go to the district court of appeal, rather than the circuit court. But, for example, circuit courts review county code enforcement orders. See, e.g., Monroe County v. Jabour, 389 So. 3d 594 (Fla. 3d DCA 2023). §3.1 When a final order addresses substantive issues or reaches legal conclusions that have not been previously raised or challenged, a party must file a motion for rehearing to preserve those alleged errors for appellate review. Citizens of State v. Clark, 373 So. 3d 1128 (Fla. 2023). The supreme court held that where a party had not asked the trial court to address a setoff issue, the DCA should not have addressed the issue, and the supreme court would not. Ellison v. Willoughby, 373 So. 3d 1117, 1120 (Fla. 2023). §3.6 The supreme court resolved a conflict, holding the harmful error analysis applies to jury selection errors in Seadler v. Marina Bay Resort Condo. Assoc., Inc., 376 So. 3d 659 (Fla. 2023). State v. Johnson, 295 So. 3d 710 (Fla. 2020), reiterates that the party opposing the strike must make a specific objection to the proffered race-neutral reason to preserve the claim the trial court erred in concluding the proffered reason was genuine. Lafayette v. Moody, 316 So. 2d708 (Fla. 4th DCA 2021), reiterates that if the trial court finds the party has stated a race-neutral reason for striking a juror, the strike may not be denied solely because it leaves no member of a minority group on the panel. §3.15 Royal Caribbean Cruises, Ltd. v. Spearman, 320 So. 3d 276 (Fla. 3d DCA 2021), held an expert’s testimony, which should have been excluded under Daubert, was not preserved for review when a general verdict form was used and another theory of liability that did not depend on the testimony supported the verdict. Dupree v. Younger, U. S. , 143 S. Ct. 1382, 215 L. Ed. 2d 636 (2023), holds a post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment. §3.15 Amended Rule 1.530(a) and Rule 12.530(a) require that to preserve for appeal a failure of the trial court to make required findings of fact in a final judgment a party must raise that issue in a motion for rehearing. See also Citizens of State v. , 373 So. 3d 1128 (Fla. 2023). §4.4 Rule 9.110(d) now requires the notice of appeal indicate the pendency of any motion postponing rendition under Rule 9.020(h). It also requires that within ten days of either withdrawal of such a motion or rendition of the order being appealed, the appellant shall file a notice indicating the withdrawal or a conformed copy of the signed, written order disposing of the motion. The intent is to discourage filing notices of appeal before rendition of the order being appealed. Rules 9.440(b),(c) address counsel entering a limited appearance in a appeal. Rule 9.900(n) has a form. §4.5 Beware that the Third District has taken a narrower view that an earlier order must be listed in the notice or sufficiently related to the order named. See Saka v. Saka, 831 So. 2d 709 (Fla. 3d DCA 2002). §4.6 Burns v. Burns, 278 So. 3d 56 (Fla. 4th DCA 2019), holds the clerk must accept a notice of appeal even though the filing fee was not paid through the portal when the notice was filed. §4.11 Rule 9.020(h)(1)(A) now reads: “motion for new trial, remittitur, or additur.” Additional amendments have added motions tolling rendition in juvenile and family matters. Rule 9.020(I) now adds: An appellate order or opinion is rendered when docketed by the clerk of the court. §4.12 Note that Rules 1.530 and 1.480 use “serve” and not file, so counsel may want to email the motions to counsel in addition to serving through the e-filing portal. See Sills v. Motor Car Concepts II, Inc., 49 Fla. L. Weekly D2153 (Fla. 6th DCA October 25, 2024). The full cite is Meus v. Eagle Family Discount Stores, Inc., 499 So. 2d 840 (Fla. 3d DCA 1986). Rule 1.535 governs the procedure for seeking a remittitur or additur. §4.13 Cite update: Fla. Organic Aquaculture, LLC v. Advent Environmental Systems, LLC, 268 So. 3d 910 (Fla. 5th DCA 2019). §4.26 Effective January 2024 Rule 9.148 applies to Mental Health Act (Baker Act) appeals. §4.27; 4.32; 8.13 Amended Rule 9.130 eliminates the requirement that the denial of sovereign immunity (or immunity for a civil rights claim) be as a matter of law, thereby broadening the nonfinal review of such orders. §4.27 Rule 9.130(a)(3)(C)(ix) now permits review of orders that determine, as a matter of law, that a settlement agreement is unenforceable, is set aside, or never existed. Rule 9.130(a)G) permits review of orders that grant or deny a motion for leave to amend to assert a claim for punitive damages. Rule 9.130(a)(H) permits review of orders that deny a motion to dismiss on the basis the qualifications of a corroborating expert witness under sections 766.102(5)-(9) and (12), Florida Statutes. Effective July 1, 2024, Rule 9.130(a)(I) permits review of orders that determine the entitlement of a party to arbitration, confirm or deny confirmation of an arbitration award or partial arbitration award, or modify, correct, or vacate an arbitration award. §4.32 The Supreme Court agreed with the district court in Florida Highway Patrol that the rule as worded did not permit review. As discussed above, the Court revised the rule. §4.35 Effective January 2024 the initial brief in a nonfinal appeal must be served within 20 days after filing the notice. §4.45 Delete Pridgen v. Andreson paragraph and replace with: Metlife Life & Annuity Co. v. Akpele, 886 F.3d 998 (11th Cir. 2018), holds a party could not appeal an order determining liability for attorney’s fees if the amount had not been set. §4.47 Milligan v. CCC Info. Servs., 920 F.3d 146 (2d Cir. 2019), held the appraisal process under an insurance policy constituted arbitration for purposes of the FAA. §6.2 Rule 9.143 addresses “crime victims” under Florida’s Marsy’s Law constitutional amendment. §7.3 Cite update: Waves of Hialeah, Inc. v. Machado, 300 So. 3d 688 (Fla. 3d DCA 2018). §7.4 Capital Development Group, LLC v. Buena Vista Terminal, LLC, 306 So. 3d 342 (Fla. 3d DCA 2020), sets forth factors a court should consider in setting the amount of a bond in a case involving real property (and not a monetary judgment). §7.8 Correction: the Main Street case should be in §6.3 because the appellant accepted the payment. §7.10 The Third District en banc receded from earlier decisions and held the automatic bankruptcy stay does apply when the debtor has filed the appeal in National Medical Imaging LLC v. Lyon Financial Services, Inc., 349 So. 3d 895 (Fla. 3d DCA 2021). §7.13 Rule 9.300(d) provides that motions filed in the Florida Supreme Court have the same tolling affect of motions in other Florida appellate courts. §8.2 Extraordinary writs do not have a specified filing time limit, but may be denied if the court concludes there was an unreasonable delay. Warren v. DeSantis, 365 So. 3d 1137 (Fla. 2023). §8.7 Rule 9.045 specifies the font requirements and Rule 9.100 specifies the word count limit. §8.10 As noted, effective January 2021 because county court final appeals now go to the district courts of appeal, there would not be second-tier certiorari review of circuit court appellate decisions involving county court judgments. Hicks v. Keebler, 312 So. 3d 1000 (Fla. 2d DCA 2021), found the circuit court had departed from the essential requirements of law when it affirmed a county court decision. The Second District then reviewed the merits of the county court decision because the circuit court no longer had jurisdiction to review the county court order after the change in jurisdiction. §8.11 Rule 9.130(a)(G) permits review of orders that grant or deny a motion for leave to amend to assert a claim for punitive damages. §8.12 Hepco Data, LLC v. Hepco Medical, LLC, 301 So. 3d 406 (Fla. 2d DCA 2020), granted certiorari and quashed an order denying taking depositions of 18 witnesses where the trial court had not addressed the materiality of any of the deponents or found good cause to preclude deposing them. Fagen v. Merrill, 293 So. 3d 1116 (Fla. 2d DCA 2020), granted certiorari and quashed an order requiring disclosure of the former husband’s financial information for the purpose of determining the former wife’s entitlement to attorney’s fees where the wife had yet to pursue her pending 1.540(b) motion that, if she prevailed, might have provided the basis to seek fees. §8.13 Grozdanovic v. Alliance Re Holdings, LLC, 388 So. 3d 171 (Fla. 3d DCA 2023) granted certiorari to review a partial summary judgment order titled “Final Judgment” that only resolved part of a civil suit by requiring a party to make an interim payment while leaving intertwined factual matters unresolved. §8.21 W. Flagler Assoc., Ltd. v. Desantis, 382 So. 3d 1284 (Fla. 2024), holds quo warranto is not available to obtain a declaration as to the substantive constitutionality of an enacted law. §9.6 The supreme court discussed standards of review for issues that have both factual and legal aspects in Alahad v. State, 362 So. 3d 190 (Fla. 2023)(Appellate courts review de novo mixed questions that require legal clarification. However, appellate courts typically review with deference mixed questions that amount to factual findings—a task for trial courts). §10.4 Effective January 1, 2021, in cases not involving criminal or collateral criminal proceedings, a party that files a petition, brief, motion or other document that draws into question the constitutionality of a state statute or state constitutional provision must file a notice of constitutional question. The notice must state the question, identify the document raising it, and be served on the attorney general. Rule 9.425. Rule 9.900(m) has a form. §10.7 Computer generated documents shall be filed in either Arial 14-point font or Bookman Old Style 14-point font. Computer generated documents subject to word count limits (briefs and petitions) must contain a certificate of compliance. Rule 9.045. 10.13 The Second District declined to reach alternative arguments raised by the appellee below where the trial court did not reach them in Century-National Ins. Co. v. Frantz, 369 So. 3d 739, 746 (Fla. 2d DCA 2023). Similarly, the court refused to consider an alternative ground where the trial court had not made factual findings on the issue. Williams v. State Farm Fla. Ins. Co., 346 So. 3d 79, 83 (Fla. 2d DCA 2022). Himmel v. Avatar Prop. & Cas. Ins. Co., 257 So. 3d 488, 493, n1 (Fla. 4th DCA 2018), refused to consider as grounds for affirming three summary judgments the trial court had denied where the appellee had not cross-appealed the orders denying. §10.14 See Rule 9.210 for word count alternatives. §10.18 Rule 9.120(d) now requires jurisdictional briefs even where the district court has certified an important question. Rules 9.120(f) and 9.210(f) require the petitioner or respondent identify issues other than those on which jurisdiction is based in the statement of issues in the brief on jurisdiction. 11.6 Rule 9.320 imposes requirements for requests for oral argument in the Florida Supreme Court, including a brief statement of why oral argument would enhance the court’s consideration of the issues. 11.18 M. Neubauer, The Disappearing Oral Argument, 48 Litigation 40 (Winter 2022). §12.2 Effective January 2024, Rule 9.400(b) is amended to provide: (4) in proceedings in which the court renders an order of dismissal before the otherwise applicable deadline for filing a motion for attorney’s fees has expired, not later than 7 days after rendition of the order of dismissal. §12.5 An insured is also entitled to an order awarding fees when the insured prevails on some issues in the appeal against the insurer. E.g., Shazam Auto Glass, LLC v. State Farm Mut. Automobile Ins. Co., 300 So. 3d 302 (Fla. 2d DCA 2020); see also, Danis Indus. Corp. v. Ground Improv. Techniques, Inc., 645 So. 2d 420 (Fla. 1994)(the prevailing on significant issues test does not apply to §627.428 fees, and the court can consider on which issues the insured prevailed in setting the fee). For insurance policies issued or renewed after March 24, 2023, Ch 2023-15, §11, Laws of Fla. (HB 837) repeals §627.428, Florida Statutes. §12.8 The district court does not have discretion to decline to tax appellate costs that have been allocated by the circuit court under FRAP 39. City of San Antonio v. Hotels.com, L.P., U. S. , 141 S. Ct. 1628, 209 L. Ed. 2d 712 (2021). §13.2 The use of generative artificial intelligence came to the forefront in the 2023 New York federal case where the lawyers’ submission contained fictional case cites. Florida Bar Ethics Opinion 24-1, addresses multiple ethical issues that could arise from the use of GAI. The Florida Supreme Court adopted Rules of Professional Conduct comments on generative artificial intelligence, including for competence, confidentiality, and supervision. In re Amendments to Rules Regulating the Fla. Bar, 49 Fla. L. Weekly S218 (Fla. August 28, 2024). §13.9 Cite update: Bank of Am., N.A. v. Atkin, 271 So. 3d 245 (Fla. 3d DCA 2019) Yeyille v. Speigel, 373 So. 3d 1238 (Fla. 3d DCA 2023), referred a lawyer for disciplinary proceedings when he asserted the court was a criminal enterprise that was owned by large law firms. §14.5 Update: “Under the prior precedent rule, a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the United States Supreme Court or the United States Court of Appeals for the Eleventh Circuit sitting en banc. To conclude that a panel is not bound by a prior holding in light of a Supreme Court case, it must find that the case is clearly on point and that it actually abrogates or directly conflicts with, as opposed to merely weakens, the holding of the prior panel.” United States v. Dudley, 5 F.4th 1249 (11th Cir. 2021). Dicta is not binding precedent. Randall v. Scott, 610 F. 3d 701 (11th Cir. 2010). §14.7 Both the United States Supreme Court and Florida Supreme Court have expressed a greater willingness to depart from stare decisis when they consider the ruling erroneous. See, e.g., Loper Bright Enters. v. Raimondo, U.S. , 144 S. Ct. 2244, 219 L. Ed. 2d 832 (2024); State v. Penna, 385 So. 3d 595 (Fla. 2024). §14.10 The Florida Supreme Court revisted the retroactive application of case law in Fla. L. Crim. P. 3.850 postconviction proceedings in Dettle v. State, 49 Fla. L. Weekly S 263 (Fla. October 24, 2024). The court declined to apply a change in double jeopardy law to a conviction that was final before the change. The court declined to recede from its prior cases or chose between its prior decision and a U.S. Supreme Court case, finding the result was the same under both. §14.11 In a unanimous decision authored by Justice Ginsburg, the United States Supreme Court reiterated that the principle of party presentation limits courts asking for parties to brief and present issues the parties had not raised on their own. United States v. Sineneng-Smith, 590 U.S. 371, 140 S. Ct. 1575, 206 L. Ed. 2d 866 (2020). §14.20 Rule 9.120(d) now requires jurisdictional briefs even where the district court has certified an important question. §14.22 Rule 9.120(f) no longer provides for a notice of cross-review. Rules 9.120(f) and 9.210(f) require the petitioner or respondent identify issues other than those on which jurisdiction is based in the statement of issues in the brief on jurisdiction. 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