florida state and federal appellate rules

8/13/2019 Florida State and Federal Appellate Rules

1/6

Florida State and Federal Appellate Rules: Distinctions with aDifference by Thomas A. Burns

Page 74

While the Florida and federal appellate rules are in many respects similar, in other ways

they are quite different. This article briefly highlights some important distinctions betweenthe state appellate rules applicable to civil appeals of final orders in the Florida districtcourts of appeal, and the federal appellate rules applicable to civil appeals of final

udgments in the !!th "ircuit.!

Notice of Appeal

#t the outset, lawyers must understand that the deadline for filing a notice of appeal isurisdictional $ subect to a narrow e%ception in federal court only. &n both state and federal

court, unless the government is a party, the notice of appeal must befiled within '( days ofthe rendition or entry of a final order.)

*tate appellate courts strictly enforce this '(+day urisdictional deadline. #bsent facts

indicating a party-s ability to file a notice of appeal in a timely manner was stymied orhindered by action attributable to the trial court or the clerk, state appellate courts have no

discretion to grant any good cause or e%cusable neglect e%ceptions to e%tend the '(+daywindow.'

#lthough the federal rules provide an e%ception to the default rule that allows for the district

court either !/ to e%tend the '(+day deadline by motion,4or )/ to reopen the '(+daydeadline by motion,0prudent practitioners should not depend on these e%ceptions.

"ompliance with the '(+day window is strongly advised in all appeals.

&n state court, the notice of appeal is filed with the circuit court cler1, along with theappropriate filing fee, and with a copy of the final order attached.2&n federal court, the

notice is filed with the district court cler1, along with the appropriate filing fee, but it mustmerely designate rather than attach the udgment or order being appealed.7

Final Orders and Final Decisions3n a related note, it is also important that the lawyer understand when an order is final

for state appellate purposes,and what final decisions may be appealed in federal court.5

6nder Florida law, an order is final for purposes of appeal when it adudicates the meritsof the cause and disposes of the action . . . leaving no udicial labor to be done e%cept the

e%ecution of the udgment.!(#n order is not final and appealable, moreover, unless itincludes8 specific 9language of finality.-!!For instance, an order dismissing a complaint

with preudice that does not actually dismiss the action is not final for appellatepurposes.!):ut a written order that uses magic words $ such as plaintiff ta1e nothing by

the suit and go hence without day $ is final, because the additional language lends thenecessary unequivocal declaration of finality that will support an appeal.!'# written order

that does not contemplate any further udicial labor with regard to the rights of the parties

$ such as Final *ummary ;udgment is hereby entered $ need not employ such specialwords to be sufficiently final for appeal.!4

&n the !!th "ircuit, a decision is final and appealable so long as it effectively 9ends thelitigation on the merits and leaves nothing for the court to do but e%ecute the

udgment.-!0There is more fle%ibility in federal court, however, when it comes to thelanguage of the order. When, for e%ample, a federal district court enters a written order

granting summary udgment or dismissing a complaint $ but does not enter a udgmentbecause it retains urisdiction over some ministerial tas1 $ the order is still final and

1


2/6

appealable even though it might appear that the district court still has something left to dothat goes beyond e%ecuting the udgment.!2

The Appellate Record

With respect to records on appeal, the lawyer is tas1ed with different responsibilities in

assuring the record is prepared in the Florida district courts of appeal rather than his or hercounterpart in the !!th "ircuit.

&n the Florida appellate courts, within 0( days of filing the notice of appeal, the circuit courtcler1 will automatically prepare the record.!7The automatic record generally consists of

everything filed in the lower tribunal e%cept transcripts, discovery, and


3/6

filed, while appellee-s principal and response brief must be filed and served within '( daysafter the appellant-s principal brief is served. #ppellant-s response and reply brief must be

filed and served within '( days after the appellee-s principal and response brief is served,and appellee-s reply brief may be filed and served within !4 days after the appellant-s

response and reply brief is served.'2

&n federal court, these deadlines may be e%tended by three days as long as the brief is notserved by hand delivery.'7*ervice by mail or commercial carrier is complete on mailing or

delivery to the carrier, and service by electronic means is complete on transmission,unless the party ma1ing service is notified that the paper was not received by the party

served.'

!tensions of Time

The rules governing e%tensions of time for submitting appellate briefs are generally morefle%ible in the Florida district courts of appeal than in the !!th "ircuit. &n the !!th "ircuit,

such motions are primarily governed by Fed. A. of #pp. P. )7 and !!th "ircuit Aules )2+!,)7+!, and '!+). Bleventh "ircuit Aules )2+! and )7+! require litigants to include in such

motions a statement that movant-s counsel has consulted opposing counsel and that eitheropposing counsel has no obection to the relief sought, or will or will not promptly file an

obection.

#s an initial matter, e%tension requests must be made or filed prior to the e%piration of thedue date for filing the brief or record e%cerpts because the cler1 is without authority to

file belated e%tension motions.'5#nd, importantly, the fact that an e%tension or othermotion is pending does not postpone the time for serving and filing any brief.4(Therefore,

until the !!th "ircuit has granted an e%tension motion, prudent litigants should continue togovern themselves on the assumption that the due date will not be e%tended.

Coreover, the rules governing e%tension requests in federal court vary depending on the

timing of the motion, the length of the e%tension requested, how the briefing schedule wasset, and whether it is a first or subsequent request. First requests for e%tensions of seven or

fewer calendar days may be made by telephone or in writing and may be granted by the

cler1.4!

:ut first requests see1ing more than seven calendar days must be made bywritten motion setting forth with particularity the facts demonstrating good cause, and willonly be acted upon by the court.4)When a litigant files the motion !4 or more calendar

days before the due date, and it is denied seven or fewer calendar days before the duedate, the deadline generally will be e%tended an additional seven calendar days beyond the

initial due date or the date the court order is issued, whichever is later.4'B%tension motionsfiled less than seven calendar days in advance of the deadline will generally be denied,

unless the movant demonstrates that good cause for the e%tension did not e%ist earlier orwas not and with due diligence could not have been 1nown earlier.44

The standard for second e%tensions is much more difficult to meet. They are e%tremely

disfavored and are granted rarely.40&nstead of merely showing good cause, litigantssee1ing a second e%tension must now show e%traordinary circumstances that were not

foreseeable at the time the first request was made.42

&n contrast, state procedures for e%tension motions are much simpler, and the standard forgranting them is generally more lenient. *tate e%tension motions are governed by Fla. A. of

#pp. P. 5.'((. They shall contain a certificate that movant-s counsel has consultedopposing counsel and that the movant-s counsel is authoriDed to represent that opposing

counsel either has no obection or will promptly file an obection.476nli1e federal court, thefiling of an e%tension motion shall toll the time schedule of any proceeding in the court until

disposition of the motion, e%cept in proceedings before the Florida *upreme "ourt, where a

3


4/6

separate motion to toll must be filed.4Finally, counsel should consult the website of theapplicable district court of appeal, as some of the courts have issued administrative orders

regarding e%tension motions and other scheduling matters.

"onclusion

Eawyers who do not routinely handle appellate matters should consider consulting anappellate practitioner when handling an appeal in state or federal court, particularly since

the initial tas1 in an appeal $ timely filing the notice of appeal $ is urisdictional. The tableon this page is offered to assist practitioners in navigating the basic rules governing

appellate practice in state and federal court as they currently stand, with the importantcaveat that procedural rules may and do change frequently.45

!This article is limited to civil appeals of final orders and decisions. &t does not analyDe therules governing criminal appeals, the various e%traordinary writs that may be filed in state

and federal court, or other interlocutory appeals from nonfinal orders.

)Fla. A. #pp. P. 5.!!(?b/ ?rendition/@ Fed. A. #pp. P. 4?a/?!/ ?entry/.

'David M. Dresdner, M.D., P.A.v.Charter Oak Fire Ins. Co., 57) *o. )d )70, )( ?Fla. )d=.".#. )((/ ?emphasis added/.

4SeeFed. A. #pp. P. 4?a/?0/.

0See Fed. A. #pp. P.4?a/?2/.

2Fla. A. #pp. P. 5.!!(?d/.

7Fed. A. #pp. P. '?a/?!/, ?c/, ?e/.

SeeFla. A. #pp. P. 5.('(?b/?!/?#/.

5See) 6.*.". !)5!@ Fed. A. #pp. P. '.

!(McGurn v. Scott, 052 *o. )d !(4), !(4' ?Fla. !55)/.

!!Monticello Ins. Co. v.ho!"son, 74' *o. )d !)!0, !)!2 ?Fla. !st =.".#. !555/ ?citations

omitted/.

!)Dedge v.Crosby, 5!4 *o. )d !(00, !(02 ?Fla. !st =.".#. )((0/.

!'Allstate Ins. Co. v.Collier, 4(0 *o. )d '!!, '!) ?Fla. 4th =.".#. !5!/.

!4State Far! Mut. Auto. Ins. Co. v.O"en M#I o$ Orlando, Inc., 7( *o. )d ''5, '4(+'4!?Fla. 0th =.".#. )((!/ ?emphasis added/.

!0OFS Fitel, %%C v.&"stein, 'ecker ( Green, P.C., 045 F.'d !'44, !'2+25 ?!!th "ir. )((/

?quoting Catlinv.)nited States, ')4 6.*. ))5, )'' ?!540//.

!2S&Cv.Carillo, ')0 F.'d !)2, !)7) ?!!th "ir. )(('/ ?citing urner v.Orr, 705 F.)d !7,

)( ?!!th "ir. !50//.

4
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/76d28aa8f2ee03e185256aa9005d8d9a/7acb18c18045d9ca85257730005fadd2/$FILE/Chart.pdf


5/6

!7Fla. A. #pp. P. 5.!!(?e/.

!Fla. A. #pp. P. 5.)((?a/?!/.

!5Fla. A. #pp. P. 5.)((?a/?'/.

)(Fla. A. #pp. P. 5.)((?b/.

)!Fed. A. #pp. P. !(?b/?!/?#/+?:/.

))Fed. A. #pp. P. !(?b/?'/.

)'Fed. A. #pp. P. !(?a/?!/+?'/.

)4Fla. A. #pp. P. 5.!!(?f/.

)0Fla. A. #pp. P. 5.)!(?f/.

)2Id.

)7

Id.)Fla. A. #pp. P. 5.4)(?e/.

)5See id.@ Fla. A. #pp. P. 5.4)(?c/ ?service methods/.

'(Fla. A. #pp. P. 5.4)(?c/.

'!Fed. A. #pp. P. '!?a/?!/.

')!!th "ir. A. !)+!.

''Id.

'4!!th "ir. A. ')?a/?)/@ !!th "ir. A. ') &.3.P. ! ?covers of briefs operate for a busy courtli1e traffic signals/.

'0Fed. A. #pp. P. ).!?d/.

'2Fed. A. #pp. P. ).!?f/.

'7See Fed. A. #pp. P. )2?c/ ?adding three days unless the paper is delivered on the date ofservice stated in the proof of service, and stating a paper that is served electronically is

not treated as delivered on the date of service stated in the proof of service/.

'Fed. A. #pp. P. )0?c/?4/.

'5

!!th "ir. A. '!+)?e/.

4(!!th "ir. A. '!+!?c/.

4!Id.

4)Id.

4'!!th "ir. A. '!+)?b/.

5


6/6

44!!th "ir. A. '!+)?c/.

40!!th "ir. A. '!+)?d/.

42Id.

47Fla. A. #pp. P. 5.'((?a/.

4Fla. A. #pp. P. 5.'((?b/.

45The chart references the Federal Aules of #ppellate Procedure, but practitioners shouldalso consult the !!th "ircuit rules which correspond numerically to the applicable federal

appellate rules.

Thomas A. Burnsis a senior associate *ith +ill ard +enderson. 'e$ore -oining the $ir!,

'urns "racticed a""ellate litigation *ith Sidley Austin %%P and Gibson, Dunn ( Crutcher %%Pin ashington, D.C., and served as a la* clerk to th Circuit /udge Susan +. 'lack.

his colu!n is sub!itted on behal$ o$ the A""ellate Practice Section, Dorothy F. &asley,

chair, and racy #. Gunn, +eather M. %a!!ers, and 0ristin A. 1orse, editors.

#ournal $O%

2#evised3 456465457

G )(!4 The Florida :ar H=isclaimerHTop of pageH

6
http://www.floridabar.org/divcom/jn/jnjournal01.nsfhttp://www.floridabar.org/tfb/flabarwe.nsf/f6301f4d554d40a385256a4f006e6566/5c0c64dd205b28e685256b2f006c53b2?OpenDocumenthttp://www.floridabar.org/tfb/flabarwe.nsf/f6301f4d554d40a385256a4f006e6566/5c0c64dd205b28e685256b2f006c53b2?OpenDocumenthttp://www.floridabar.org/tfb/flabarwe.nsf/f6301f4d554d40a385256a4f006e6566/5c0c64dd205b28e685256b2f006c53b2?OpenDocumenthttp://www.floridabar.org/divcom/jn/jnjournal01.nsf/Articles/7ACB18C18045D9CA85257730005FADD2#topofpagehttp://www.floridabar.org/divcom/jn/jnjournal01.nsf/Articles/7ACB18C18045D9CA85257730005FADD2#topofpagehttp://www.floridabar.org/divcom/jn/jnjournal01.nsf/Articles/7ACB18C18045D9CA85257730005FADD2#topofpagehttp://www.adobe.com/products/acrobat/readstep2.htmlhttp://www.adobe.com/products/acrobat/readstep2.htmlhttp://www.floridabar.org/tfb/flabarwe.nsf/f6301f4d554d40a385256a4f006e6566/5c0c64dd205b28e685256b2f006c53b2?OpenDocumenthttp://www.floridabar.org/divcom/jn/jnjournal01.nsf/Articles/7ACB18C18045D9CA85257730005FADD2#topofpagehttp://www.floridabar.org/divcom/jn/jnjournal01.nsf

florida state and federal appellate rules

Documents