Florida Appellate Rules Flashcards
1
Q
Which rule allows appellate court to overlook procedural error of appeal to reach merits?
A
Fla. R. App. P. 9.040(d)
2
Q
What is considered “administrative action” under Fla. R. App. P.?
A
(1) final agency action as defined in APA, Ch. 120, Fla. Stat.
(2) nonfinal action by an agency or ALJ reviewable under the APA
(3) quasi-judicial decisions by any administrative body, agency, board or commission not subject to the APA
(4) admin. action for which judicial review is provided under general law
3
Q
What is all writs jurisdiction/power?
A
Used to protect the jurisdiction of the court.
4
Q
What is the most common application of all writs jurisdiction?
A
Enforce a stay of the lower court proceedings to keep the status quo.
5
Q
Fla. R. App. P. 9.020 contains what?
A
Definitions.
6
Q
How does Fla. R. App. P. 9.020 define “rendition”?
A
“An order is entered when a signed, written order is filed with the clerk.”
7
Q
Are a lower tribunal’s minutes considered an order? What rule?
A
No. Fla. R. App. P. 9.020(f) defines Orders.
8
Q
Which rule contains the list of tolling motions?
A
Fla. R. App. P. 9.020(h).
9
Q
What are the tolling motions?
A
(A) motion for new trial; (B) motion for rehearing; (C) motion for certification; (D) motion to alter or amend; (E) motion for judgment in accordance with prior motion for directed verdict; (F) motion for arrest of judgment; (G) motion to challenge the verdict;
10
Q
What happens when a notice of appeal is filed before an order is entered disposing of a timely filed tolling motion?
A
The appeal shall be held in abeyance until the motions are either withdrawn or resolved by the rendition of an order disposing of the last such motion.
11
Q
What’s the requirement for an amendment to a final order to restart the appeal clock?
A
A material change to the order.
“Disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly settled with finality.” St. Mortiz Hotel v. Daughtery (Fla. 1971).
12
Q
Does rehearing of an order granting a new trial toll?
A
It does not toll because the order is technically nonfinal (even though it’s appealable).
13
Q
What do you do if the trial judge refuses to enter a written order?
A
Rule 9.020 requires a written order to appeal. If the trial court refuses, file a petition for a writ of mandamus.
14
Q
Which rule has the font requirements?
A
Fla. R. App. P. 9.045 = Form of Documents
b) Font –> Bookman Old Style / Arial (14 pt
(e) Certificate of Compliance
15
Q
What’s the Florida Supreme Court’s original/mandatory jurisdiction? And what’s the Rule?
A
Rule 9.030(a).
(i) Final orders imposing death sentence.
(ii) Decisions of DCAs declaring statute or constitution invalid.
(iii) Final orders entered in proceedings for the validation of bonds or certificates of indebtedness.
(iv) Action of statewide agencies relating to rates or
service of utilities providing electric, gas, or telephone service.
16
Q
What’s the Florida Supreme Court’s discretionary jurisdiction? And what’s the Rule?
A
(A) decisions of district courts of appeal that:
(i) expressly declare valid a state statute;
(ii) expressly construe a provision of the state or federal constitution;
(iii) expressly affect a class of constitutional or state
officers;
(iv) expressly and directly conflict with a decision of
another district court of appeal or of the supreme court on the same question of law;
(v) pass upon a question certified to be of great public importance; or
(vi) are certified to be in direct conflict with decisions of other district courts of appeal;
(B) orders and judgments of trial courts certified by the district court of appeal in which the appeal is pending to require immediate resolution by the supreme court, and:
(i) to be of great public importance; or
(ii) to have a great effect on the proper administration of justice; or
(C) questions of law certified by the Supreme Court of the United States or a United States court of appeals that are determinative of the cause of action
and for which there is no controlling precedent of the Supreme Court of Florida.
17
Q
If a public service commission determination is not appealed to the Florida Supreme Court… to which DCA does it go? And, also, worker’s compensation?
A
1st DCA.
18
Q
When do you appeal a criminal judgment? What about cross-appeal? And what’s the Rule?
A
Fla. R. App. P. 9.140(b).
File notice any time between rendition of a final judgment & 30 days following written order imposing a sentence.
Cross-appeal… 15 days after State’s notice.
19
Q
Which constitutional provisions govern the different courts of appeal?
A
Fla. Supreme Court = Article V, Section 3
DCAs = Article V, Section 4
20
Q
When can an appellate court review a moot order?
A
(i) issue of great public importance; (ii) issue likely to recur; or (iii) collateral consequences to the order.
Godwin v. State (Fla. 1992)
21
Q
Which statute requires the Fl. SC to conduct a full record review in death sentence cases?
A
Section 921.141(4), Fla. Stat.
22
Q
What are the rules for preparation of a record in criminal cases? And what’s the actual Rule?
A
Rule 9.140(f)(1).
Record must be prepared within 50 days. If transcript isn’t ready … 20 days after it is.
23
Q
What rule compels an appellate court to transfer a case where the NoA is filed in the wrong court?
A
Rule 9.040(b)(1).
24
Q
Where does one file an appeal for administrative action?
A
HQ of agency or where the party resides (unless otherwise provided by statute).
25
How many days does the State have to file a criminal appeal?
15 days. (Also 15 days for cross-appeal ... 9.140(c)(1)(k). )
26
When can a defendant raise a sentencing error?
Only if the error was raised below (i) at the time of sentencing or (ii) by motion under Florida Rule of Crim. P. 3.800(b).
27
When can a criminal defendant's counsel withdraw?
Rule 9.140(d).
Either the appeal window has closed or an appeal has been filed, statement of acts to be reviewed, directions to the clerk, designation to the court reporter.
28
What can the State appeal in a criminal case?
Rule 9.140(c).
Everything that basically ends a case, but must avoid double jeopardy if appeal successful.
Orders dismissing indictment/info/violation, orders suppressing confessions, new trial, arresting judgment, granting acquittal.
29
What's the timing for a civil cross-appeal?
Rule 9.130.
15 days after initial notice or within the 30 days after the order to be appealed, whichever is later.
30
What's the timing for briefing and procedures for a non-final appeal?
IB is due in 15 days with an appendix.
31
Is there an automatic stay for non-final appeals?
No. The only rule is that the trial court can't enter an order that disposes of the case.
32
Can you move for rehearing on an order denying vacatur?
No (not authorized). Rule 9.130.
Motion for rehearing won't toll so you have to appeal within 30 days.
33
Are orders disposing of motions for rehearing separately reviewable?
No. Rule 9.130.
34
What are the nonfinal orders that are immediately appealable? What Rule?
Rule 9.130(a)(3).
Venue.
Injunctions.
Determine (jurisdiction/immediate possession/family law stuff).
Entitlement to arbitration or appraisal.
No entitlement to worker's comp immunity.
Certify class.
Issue of forum non conveniens.
Settlement agreement is unenforceable (as a matter of law).
Permanent guardianship for child.
Grant/Deny motion to DQ counsel.
Deny a motion that: (immunity in a civil rights claim, sovereign immunity)
35
What orders can be appealed by criminal defendant?
Rule 9.140. (b)(1).
(a) final judgment of guilt;
(b) withholding adjudication but finding guilty;
(c) order granting probation;
(d) anything after final judgment;
(e) unlawful sentence;
(f) a sentence.
36
What pleas can be appealed by a criminal defendant?
Rule 9.140.
A defendant may not appeal from a guilty plea or nolo contendere plea except...
(i) where they've made a reservation of the right to appeal.
(ii) a. lack of subject matter jurisdiction; b. violation of plea agreement, if motion filed; c. involuntary plea, if motion filed; d. a sentencing error.
37
What does your notice of appeal have to contain?
Rule 9.110.
Include date of rendition, nature of order, attach order.
If it's tolling due to a motion, say it, and provide copy of order disposing motion within 10 days.
38
How much time does a clerk have to get the index/record going?
Rule 9.110.
50 days to send the index to the parties, 60 days to send the record.
39
Timing of briefs in a final appeal?
Rule 9.110.
70 days for IB, 30 days for AB/RB.
40
What's the Rule for partial final judgments?
Rule 9.110(k).
41
What's the original/direct jurisdiction of the DCAs?
Rule 9.030(b)(1).
(A) Final orders of trial courts.
(B) Nonfinal orders listed in Rule 9.130.
(C) Admin. Action provided by general law.
42
What's certiorari jurisdiction of the DCAs?
Rule 9.030(b)(2).
(A) Nonfinal orders not listed in Rule 9.130.
(B) Final orders of circuit courts acting in review capacity.
43
What rule governs belated appeals in criminal proceedings?
Rule 9.141
44
How long does a Defendant have to belatedly petition for an appeal of a judgment/order? And on what grounds?
Two years after expiration of the time for filing a Notice of Appeal, unless specific facts demonstrate that the Defendant could not have known within those two years.
Never more than four years.
45
What must a Defendant allege in a petition for a belated appeal or belated discretionary review?
- Should be in the form of a petition in Rule 9.100 and filed in the same court.
- Must include specific facts that demonstrate why belated filing is taking place, including either (i) ineffective assistance of counsel or (ii) actions beyond petitioner's control that prevented timely filing
- Can contain supporting documents
46
How does review of a final order dismissing petition for judicial waiver of parental notice to terminate pregnancy work?
Rule 9.147.
No briefs necessary unless requested by appellant or the court.
Court must issue opinion 7 days after the record is filed (record must be prepared within 2 days after NoA).
47
What is the timing of filing briefs in dependency cases, including extensions?
IB = 30, AB = 30, RB = 15.
Extensions of time are only given to preserve the constitutional right of a party or to serve the child's best interests.
48
What rule governs dependency cases?
When must the state appeal? Child's name?
Rule 9.145.
State must file NoA within 15 days of rendition of the order AND before commencement of the adjudicating hearing.
Child's name must be in initials.
49
Probate appeals. What's the rule chump?
Rules on the record and briefs?
Rule 9.170.
Parties have option to direct clerk to prepare a record or just use appendices.
IB due in 70 days.
Scope of appeal: any order related to order on appeal but not if it could be separately appealed.
50
Discretionary review of county court orders by DCA. What's the rule and how does it work?
Rule 9.160. (Pass-through).
Certification by county court that issue is of great public importance.
924.08 Courts of appeal.—Appeals from final judgments in misdemeanor cases tried by county courts shall be to the circuit court.
51
Discretionary proceedings to review certified questions from federal court.
Rule 9.150
Only if the answer is determinative of the
cause and there is no controlling precedent of the Supreme Court of Florida.
Fla. Sc. Ct. has discretion to order record and briefs.
52
Worker's compensation appeals. (Dear god). What's the rule and what should you include in a NoA?
Bonus fact: when are benefits paid?
Rule 9.180.
NoA must include certification of the type of benefit at issue and the dates of employment it pertains to.
Benefits are to be paid 30 days after mandate issues with interest.
53
What's the basis for appealing a probate order?
Rule 9.170(b)
Long list of appealable orders. "Orders that finally determine a right or obligation of an interested person" as defined by the Probate Code.
54
What court should you file a petition for a writ of prohibition in to prevent agency action?
Same court that you would appeal a final decision to.
55
What's the full citation for Boca Burger?
Boca Burger, Inc. v. Forum (Fla. 2005)
56
When are briefs due in criminal cases.
Rule 9.140(g)(1).
Initial Briefs are due 30 days after transmittal of record or appointment of counsel (whichever is later).
57
What's an Anders Brief?
Rule 9.140(g)(2).
Brief stating that appeal is frivolous. Court reviews the record on its own to determine the accuracy of that representation.
If it finds unpreserved sentencing error, it can strike brief and allow for a Rule 3.800(b)(2) motion.
(2) Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party's first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6).
(A) The motion shall be served on the trial court and on all trial and appellate counsel of record. Unless the motion expressly states that appellate counsel will represent the movant in the trial court, trial counsel will represent the movant on the motion under Florida Rule of Appellate Procedure 9.140(d). If the state is the movant, trial counsel will represent the defendant unless appellate counsel for the defendant notifies trial counsel and the trial court that he or she will represent the defendant on the state's motion.
(B) The trial court shall resolve this motion in accordance with the procedures in subdivision (b)(1)(B), except that if the trial court does not file an order ruling on the motion within 60 days, the motion shall be deemed denied. Similarly, if the trial court does not file an order ruling on a timely motion for rehearing within 40 days from the date of the order of which rehearing is sought, the motion for rehearing shall be deemed denied.
(C) In accordance with Florida Rule of Appellate Procedure 9.140(f)(6), the clerk of circuit court shall supplement the appellate record with the motion, the order, any amended sentence, and, if designated, a transcript of any additional portion of the proceedings.
58
How to preserve error on the face of a judgment?
Must raise it in a post-final motion before being able to raise it on appeal.
e.g., lack of findings were made in order.
59
What are the procedures for preserving error in jury instructions?
Rule of Civil Procedure 1.470.
Must (i) objection at the charge conference and (ii) provide a specifically requested instruction in writing no later than the close of evidence.
60
Case citation for proposition of law that issue not raised in the trial court is waived on appeal?
Sunset Harbour Condo. Ass'n v. Robbins (Fla. 2005)
61
Case citation for proposition of law regarding invited error?
Goodwin v. State (Fla. 1999)
62
Procedure for objecting to inconsistent verdict? Inadequate verdict?
Must object to inconsistent verdict before the jury is discharged.
Can object to inadequate verdict in a post-trial motion (additur/remittitur).
63
What's the standard for evaluating improper closing argument that was not contemporaneously objected to. Case cite?
Murphy v. Int'l Robotic Systems (Fla. 2000)
Argument must be made in:
(i) a motion for new trial, and argue that comments were (2) improper, (3) harmful, (4) incurable, and (5) such that they damaged the fairness of the trial that the public's interest in our system of justice requires a new trial.
64
How do you preserve an issue of jury selection? Case cite?
You must object initially to the jury issue and then renew that objection before the jury is sworn in.
Melbourne v. State (Fla. 1996)
65
What are the three (3) essential features to an effective objection in the trial court?
(1) must be timely ("contemporaneous objection rule") enough to allow the trial court to remedy the error;
(2) must be based on a specific legal ground;
(3) supporting argument must be the same as the one made on appeal.
Aills v. Boemi (Fla. 2010)
66
How do you preserve orders on motions in limine?
- Must receive a definitive ruling by the trial court. Even with a definitive ruling, you have to object/ask for curative/move for mistrial if the other side violates the ruling.
- If no definitive ruling, must object throughout trial.
67
Which Florida Rule fixes issues with venue and improper remdy?
Fla. R. App. P. 9.040.
A court won't fix the remedy if it deprives the court of jurisdiction. For instance, if you file a petition for a writ of prohibition on day 32 but it should have been certiorari, the remedy can't be fixed because the jurisdictional deadline was blown.
68
What happens when a petition for indigent status is denied?
A clerk, not a judge, must give reasons for denying an application for determination of indigent status. Then, the judge reviews the clerk's reasons.
A motion for review can be filed in the appellate court; not a separate appeal.
Rule 9.430.
69
Procedure for invoking jurisdiction of the Florida Supreme Court?
You must file your notice invoking jurisdiction within 30 days of the opinion/order you want to appeal.
Unless, you're going up on pass-through jurisdiction. Then, once the DCA certifies the appeal, that certification is self-executing.
70
Where do you file your notice of appeal in administrative appeals?
With the agency AND the appellate court.
71
How are attorney's fees in administrative law proceedings handled by the appellate court?
The appellate court can remand the matter to the lower tribunal, or to an administrative law judge, or to a special master, to fix the amount.
72
Reconstruction of the record. How does that work?
Rule 9.200(a) and Rule 9.200(b)(5) allow for stipulated statements of the record and stipulated statements for transcripts, respectively.
Under (b)(5), other parties may object or offer amendments within 15 days. Then, the statement is filed with the lower tribunal for settlement and approval.
73
How does the record work in administrative appeals?
Rule 9.190.
Immediate final orders require full record to be included in appendix.
Nonfinal, non-APA appeals use appendices.
74
Review proceedings in collateral or postconviction criminal cases where the order is denied without an evidentiary hearing.
The record includes the motion+responses+rehearings.
Initial Brief is optional, but it is due in 30 days if party elects to file. Answer Brief also optional, unless directed by the court.
Record must "conclusively show" no entitlement to relief.
75
What rule says: "No proceeding shall be determined because of an incomplete record until an opportunity to supplement the record is given"?
Rule 9.200(f)(2)
76
Which are the petitions that have jurisdictional time limits for filing?
(1) petition for writ of certiorari
(2) petition to review quasi-judicial action of agencies/commissions/etc.
(3) nonfinal actions under the APA
(4) challenging an order of the Department of Corrections in prisoner disciplinary proceedings.
77
Which is the "Record" rule that defines what a record is?
Rule 9.200(a)(1): "all documents filed in lower tribunal"
78
When are record designations due?
Rule 9.200(a)(2).
Appellant's record designations are due 10 days after the NoA. Appellee's cross-designations are due 20 days after NoA.
79
Stays under Rule 9.190 when license is suspended.
- Stays can be brought directly to appellate court
- Expedited review of stays when license is revoked. Response must be made within 10 days.
- Response to stay must show "probable danger to the health, safety, and welfare of the State" in order to lift stay.
80
What are the reviewable nonfinal orders in worker's compensation appeals?
Rule 9.180.
(a) jurisdiction;
(b) venue;
(c) compensability.
81
What are the word counts for all the briefs, including jurisdictional briefing in Fla. SC?
Initial Brief = 13,000 words
Answer Brief = 13,000 words
Reply Brief = 4,000 words
Cross-Answer/Cross-Initial = 22,000 words
Jurisdictional Brief = 2,500 words
Post-conviction successive appeals = 75/75/25 pages
82
What's the Rule for Briefs?
Fla. R. App. P. 9.210
83
Contents of an Initial Brief?
Rule 9.210(b):
(1) table of contents;
(2) table of citations;
(3) statement of the case and facts;
(4) summary of argument (not a mere repetition of the headings under the argument);
(5) argument with regard to each issue, with citation to authorities, and applicable standard of review;
(6) short conclusion with relief sought;
(7) certificate of service; and
(8) CERTIFICATE OF COMPLIANCE for computer-generated briefs (certify the word count and font).
84
Contents of a Reply Brief?
Rule 9.210(d):
The reply brief shall contain argument in
response and rebuttal to argument presented in the answer brief. Should not raise new issues in the reply brief.
85
Contents of Jurisdictional Brief?
Rule 9.210(f):
(1) statement of the issues;
(In the statement of the issues, petitioner shall identify any issues independent of those on which jurisdiction is invoked that petitioner intends to raise if the court grants review)
(2) a statement of the case and facts;
(3) the argument;
(4) the conclusion;
(5) table of contents;
(6) a table of citations;
(7) a certificate of service;
(8) certificate of compliance.
86
What's the Rule for the Appendix?
Fla. R. App. P. 9.220
87
What's the Rule for Notices of Supplemental Authority?
Can they contain argument?
Fla. R. App. P. 9.225
The notice shall not contain argument, but may identify
briefly the issues argued on appeal to which the supplemental authorities are pertinent if the notice is substantially in the form prescribed by rule 9.900(j).
Copies of the supplemental authorities shall be attached to the notice.
88
Time for responding to a motion filed in the appellate court?
Rule 9.300. MOTIONS.
15 days.
(Replies are not permitted unless ordered by court).
89
Effect on tolling on appeal (briefs, etc.) when a motion is filed? Exceptions?
Rule 9.300. MOTIONS.
Service of a motion shall automatically toll the time schedule for briefs/deadlines.
An order granting a clerk's request for extension to prepare the record will automatically extend the briefing deadline by the same number of days.
Motions that do not toll the time:
(d) (2) Motions for stay pending appeal;
(3) Motions related to oral argument;
(5) Motions relating to amicus curiae;
(6) Motions related to attorney's fees;
(8) Motions relating to admission or withdrawal of attorneys;
(9) Motions relating to sanctions;
(10) motions related to expediting appeals;
(12) Motions for mediation filed more than 30 days after NoA.
90
Describe the stay pending review process.
Party must first seek stay of final/nonfinal order in the lower tribunal.
Money judgment are automatically stayed with the posting of a bond (principal amount plus twice the statutory rate of interest).
When the state, any public officer, board, commission, or other public body are party to a case under the APA, you get an automatic stay.
Stays last until mandate issues.
91
Summary disposition of an appeal.
Rule 9.315(c) Motions Not Permitted. This rule may be invoked only on the court’s own motion. A party may not request summary disposition.
Can be affirmed AFTER initial brief is filed, or reversed AFTER answer brief is filed.
92
What's the rule for oral argument? And when do you request it?
Fla. R. App. P. 9.320.
Not later than 15 days after the last brief (or reply) is due to be served.
(c) Motion. On its own motion or that of a party, the court may require, limit, expand, or dispense with oral argument.
20 minutes per side unless otherwise ordered by the court.
93
Oral argument in the Fla. SC? How does it work.
Rule 9.320:
In proceedings governed by rule 9.120, not later than the date the
party’s brief on jurisdiction is due to be served
(d) Requests to the Supreme Court of Florida. A request for oral argument to the supreme court shall include a brief statement regarding why oral argument would enhance the supreme court’s consideration of the issues to be raised. A party may file a response to the request within 5 days of the filing of the request. No reply shall be permitted.
94
Basis and timing for moving for rehearing?
Fla. R. App. P. 9.330.
Motion for rehearing/clarification/certification/issuance of written opinion all governed by rule and must be filed within 15 days. (10 days for bond validation proceedings).
Must state "the points of law or fact" that the "court has overlooked or misapprehended in its order or decision."
95
Basis and timing for moving for certification?
Fla. R. App. P. 9.330.
Motion for rehearing/clarification/certification/issuance of written opinion all governed by rule and must be filed within 15 days.
Must set forth cases that expressly and directly conflict with the order or decision, or set forth the issue to be certified as one of great public importance.
96
Basis and timing for moving for written opinion?
Fla. R. App. P. 9.330.
Motion for rehearing/clarification/certification/issuance of written opinion all governed by rule and must be filed within 15 days.
Must state: (i) legitimate basis for SC review; (ii) explanation for an apparent deviation from prior precedent; or (iii) guidance to the parties or lower tribunal when:
(a) the issue decided is also present in other cases pending before the court or another DCA;
(b) the issue decided is expected to recur in future cases;
(c) there are conflicting decisions on the issue from lower tribunals;
(d) the issue decided is one of first impression;
(e) the issue arises in a case in which the court has exclusive subject matter jurisdiction.
97
En banc proceedings in the DCA.
Within the time prescribed by rule
9.330, a party may move for an en banc rehearing solely on the grounds that the case
or issue is of exceptional importance or that such consideration is necessary to maintain
uniformity in the court’s decisions. **Attorney must certify that one of the basis are presented**
Response to be filed in 15 days.
Can't request OA for en banc proceeding, only the Court will set hearings.
98
What is the rule for the Mandate?
Rule 9.340.
99
When does the Mandate issue? Can you take an extension?
15 days from the date of a decision or order, or 15 days from rendition of order disposing of post-decision motions.
100
When are amicus briefs permitted?
Rule 9.370.
An amicus curiae may file a brief only by leave of court.
A motion for leave to file must state the movant’s interest, the particular issue to be addressed, how the movant can assist the court in the disposition of the case, and whether all parties consent to the filing of the amicus brief.
101
How many words can an amicus brief be?
May not exceed 5,000 words.
An amicus brief must include a concise statement of the identity of the amicus curiae and its interest in the case.
102
What is the timing for the filing of an amicus brief?
10 days after the brief/petition/response that is being supported.
103
Notice of related case or issue? How do those work.
RULE 9.380. NOTICE OF RELATED CASE OR ISSUE.
A party is permitted to file a notice of related case or issue informing the court of a pending, related case arising out of the same proceeding in the lower tribunal or involving a similar issue of law. The notice shall only include information identifying the related case. (Don't include argument).
104
What are typical taxable costs to the prevailing party?
Rule 9.400. Costs.
(1) fees for filing and service of process;
(2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;
(3) bond premiums; and
(4) other costs permitted by law.
105
What is the timing for filing a motion for costs in the trial court?
45 days after rendition of the DCA's order.
106
What is the time period for filing a motion for appellate attorney's fees in the appellate court?
No later than the time for service of the reply brief or reply to response.
107
Can an appellate court enter sanctions on its own motion? And how many days notice must it provide to the litigant?
After 10 days' notice and on its own motion. Could be for violation of any rule or for frivolous or bad faith document.
108
Sanctions on appeal. When can a party move for sanctions against another party?
Must serve the motion for sanctions first, just like in section 57.015, wait 21 days, then file it with the Court.
You have until the time for responding to a document (brief/motion) to serve the sanctions, and if no response time exists then 20 days.
Must include a certificate of compliance with the serve-first-file-later requirement.
109
Rules for constitutional challenge to state statute or constitutional provision.
A party that files a petition, brief, written motion, or other document drawing into question the constitutionality of a state statute or state constitutional provision, at the time the document is filed in the case, shall:
(a) file a notice of constitutional question stating the question and identifying the document that raises it; and
(b) serve the notice and a copy of the petition, brief, written motion, or other document, in compliance with rule 9.420, on the attorney general.
110
Does the appellate court allow for limited appearances?
Yes, under Rule 9.440. Attorney's role terminates without necessity of leave of court upon completion of appearance. But, attorney must file a "Termination of Limited Appearance" and include name/address of clients.
Otherwise, a party needs leave of court to withdraw.
111
What does the original jurisdiction (via issuance of writs) of the Florida Supreme Court entail?
- Writs of prohibition to courts (but not to non-judicial tribunals)
- Writs of mandamus and quo warranto to state officers and agencies (but not to private parties or local government offices/agencies)
- Writs of habeas corpus
- All Writs necessary to complete exercise of its jurisdiction
112
What's the rule for allowing relinquishment of jurisdiction back to the trial court?
Fla. R. App. P. 9.600(b).
113
What's the one exception to the rule that an order must be final and written to be appealable?
Rule 9.100(d)(1) allows a party to seek review
| of an oral order excluding the press or public.
114
What are typical collateral matters that can be considered by a trial court while an appeal is pending from a final order?
Attorneys' fees, prejudgment interest, family law matters.
115
Can you appeal orders that are entered after a final judgment? Effectively, post-final orders?
Prior to January 1, 2015, Rule 9.130(a)(4) also allowed for the review of “non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.”
In 2014, the Florida Supreme Court deleted this
sentence without comment.
But, as long as the post-final order "sufficiently" resolves the issues raised, then it should still be appealable as a post-final final.
116
Review of quasi-judicial action from an agency.
Certiorari proceedings as a matter of right. The circuit court is required to determine:
(i) whether the admin. body accorded procedural due process; (ii) whether the court observed the essential requirements of the law; (iii) whether the other is supported by competent, substantial evidence.
117
Second-tier certiorari standard.
Whether the circuit court (i) afforded procedural due process and (ii) applied the correct law.
118
Standard of review of an order dismissing a complaint for declaratory judgment?
Abuse of discretion standard.
119
Standard of review for orders on the admissibility of expert scientific testimony?
Used to be de novo under the Frye standard, but under Daubert it's abuse of discretion.
120
When must a motion for joinder be filed?
Rule 9.360(a).
Motion must be filed either 15 days after NoA is filed or within the original 30 days for the filing of the NoA.
(Joinder party must pay fee to join appellant side).
121
Key feature about the automatic stay provision for public officials on appeal?
The stay must be to enforce a public right in an official capacity. Cannot be for the official's personal right/gain.
eg. If official is appealing the determination the he/she is not qualified to run for reelection, that's a personal right, not a public one.
Stay only works for final appeal, not petitions for writs.
122
How do stays on appeal work in administrative appeals?
Only if there is a provision in Ch. 120 that grants an automatic stay on appeal.
123
Describe the tension in the caselaw over whether a DCA can stay a money judgment by requiring a bond at less than the judgment amount.
1st and 2nd DCAs have held that trial court's have discretion to require less than the judgment amount based upon Rule 9.310(a)'s language: "a stay pending review may be conditioned on the posting of a good
and sufficient bond, other conditions, or both."
3rd and 4th DCAs have held that there's no discretion.
124
What are the requirements for a motion to stay the issuance of the mandate?
Must be filed within the 15 days after opinion or order resolving post-opinion motions (jurisdictional deadline).
Standard to apply:
(i) only when stay is essential;
(ii) likelihood that jurisdiction will be accepted by SC;
(iii) likelihood of ultimate success on the merits;
(iv) likelihood of harm if no stay is granted;
(v) remediable quality of any such harm.
125
What are the 3 most common ways to waive your right to appeal (even with timely motion)?
(1) consenting to a judgment that is harmful
(2) accepting the benefits of a judgment
(3) voluntarily complying with the judgment
126
Describe the procedure for requesting and administering mediation?
Any party can move for mediation at any time prior to issuance of opinion. (Faster you move for it the more likely it will be granted). Must state opponent's position to mediating.
Timing: first mediation conference must be held within 45 days of the date of the court's order. Then, mediation must be completed within 30 days of the first conference.
127
What must every motion for leave to file amicus brief state?
(i) movant's interest in the litigation; (ii) identify the issue to be addressed; (iii) explain how participant can assist in the court in determining appeal; (iv) whether all parties consent to the amicus filing.
128
When is an amicus brief due?
10 days after the filing of the principal brief from the party that amicus is there to support.
129
When can amicus petition the Fla. SC. to appear?
Amicus may file advance notice of intent to appear even during jurisdictional briefing, prior to the Court's acceptance of the case.
Rule 9.370(d).
130
Who must transcript designations be served on?
The court reporter (immediately) and all parties (within 5 days).
131
What's the only motion that requires conferral under the Rules?
Motions for extensions of time. But, should confer for all nondispositive motions.
132
In administrative appeals, where you do you file your notice of appeal?
In both the agency and the appellate court.
133
Does a timely and authorized post-trial motion toll rendition to the party that filed it or to all parties?
Recent change: all parties.
134
Can you move for rehearing of an administrative ruling for the purposes of tolling rendition of the ruling?
Generally, no. Unless, the agency may have a specific rule permitting rehearing or reconsideration.
135
Motion for new trial is only timely if filed 15 days after what?
The verdict, not the judgment (rule 1.530).
136
How many days after filing the notice to invoke jurisdiction of the Fla. SC. do you have to file your jurisdictional brief? What about the response?
10 days.
Respondent then has 30 days.
No reply permitted.
137
If the Fla. SC. accepts jurisdiction in your case, how many days do you have to file the merits brief?
20 days.
138
First DCA requires what along with the filing of your notice of appeal?
Docketing statement.
139
What do you argue when petitioning for a stay pending review?
(i) client will suffer harm if the stay is not granted (and any harm to the other side is less than whatever harm your client would suffer);
(ii) stay will preserve status quo;
(iii) a lack of stay will render the appeal moot.
140
What's the maximum amount a bond can be?
$50 mill.
141
What's the time period for recalling a mandate?
120 days.
142
Do you have to file an appendix with your jurisdictional brief to the Fla. SC? And, if so, what should it contain?
Yes, it must contain a copy of the decision of the DCA.
143
How do you count deadlines that are in days or longer?
When a deadline is counted in days or longer units, begin counting from the next day that is not a Saturday, Sunday, or legal holiday. Prior to this change, deadlines started from the next day, regardless whether it was a weekend or holiday.
144
What the contents of a petition for a writ?
(i) basis for invoking jurisdiction;
(ii) the facts of the case;
(iii) nature of the relief sought (similar to a conclusion);
(iv) argument in support (jurisdictional plus merits argument);
(v) appendix.
145
What's the rule for sanctions on appeal?
Rule 9.410.
146
How are damages awarded by a jury reviewed on appeal?
They will not be disturbed unless they are so manifestly excessive as to shock the judicial conscience or so indicative of prejudice, passion or corruption on the part of the jury.
147
A trial court's decision on how a jury should reconsider an inconsistent verdict is subject to what type of review?
De novo. (Typically, jury issues would be discretionary).
148
An order granting a new trial must state what? And, how is it reviewed?
A trial judge must support its findings that verdict is either against the manifest weight of the evidence or influenced by matters outside the record with specific reasons.
Appellate review is limited to the reasons specified in the order (no tipsy coachman).
If no reasons were provided, appellate court will RELINQUISH jurisdiction back to the trial court for entry of a new order.
149
What are the three different types of fundamental errors?
(i) unconstitutional statutes;
(ii) error at trial (the classic test);
(iii) questions involving the court's jurisdiction.
150
What must you show to preserve the issue of a judge refusing to excuse a juror for cause?
All peremptory challenges must be exhausted and a request must have been made for additional challenges.
Then, identify specific juror whom the party would have struck, and renew objection before jury is sworn in.
151
What must you show/do to preserve the issue of a discriminatory peremptory challenge?
First, you must ask the trial court to conduct the "Neil inquiry" (State v. Neil, 1984), which amounts a timely objection that the challenge is being made in a discriminatory manner.
Then, the burden shifts to the party exercising the challenge to provide a race-neutral reason (or class-neutral reason).
If the court declines to conduct the inquiry, your objection is preserved. But, if the court conducts it and rules against you, you must renew your objection before the jury is sworn.
152
To preserve a motion for directed verdict, what must you do?
Move for a directed verdict at the close of the plaintiff's case and then, at the end of trial, move for judgment in accordance with motion for directed verdict.
153
Fla. SC will not accept jurisdiction over original writ if what?
1) the writ raises a substantial issue of fact;
2) the writ does not present issue that S.C. must resolve; or
3) the writ does not require SC's specific or immediate attention.
154
Petition for writ of certiorari must establish what jurisdictional prong first, then what on the merits, to be successful?
Jurisdiction: the existence of a material injury that cannot be corrected on plenary appeal.
Merits: departure from the essential elements of the law.
155
Is the denial of discovery typically reviewable and remedied by way of certiorari?
No, unless the "information critical to the case would not be known or available to the appellate court for review without an order compelling discovery."
The denial must "eviscerate" a claim. (Doesn't work in criminal cases).
156
Who can file a petition for a writ of habeas corpus?
Can be brought by subject person, friend, relative, etc.
157
Where do you file petition for a writ of habeas corpus?
If the petition is attacking the the incarceration itself, then file the petition within the territorial jurisdiction where the individual is being held.
But if the petition is attacking the underlying judgment, then it should be filed where the judgment was entered. (And if it's doing that, it really should be a motion for postconviction relief under Rules 3.800 or 3.850).
158
What is the standard for relief for a petition for a writ of mandamus?
(i) clear and established right to the relief (can come from a variety of existing legal sources);
(ii) an indisputable legal duty; and
(iii) a lack of adequate remedy at law.
159
What type of act can a petition for a writ of mandamus compel?
A ministerial act, not a discretionary act.
(Can't direct court how to rule but rather just to rule).
160
Petition for a writ of mandamus was used to strike what in the Gawker Media v. Bollea (Fla. 2d DCA 2015) case?
A noncompliant notice for trial.
161
How is a stay of the lower court proceedings procured when a petition for a writ of prohibition is filed?
Under Rule 9.100(h), the reviewing court's issuance of an order to show cause in response to a petition automatically stays the proceedings.
But, if the court only orders a response and not a show cause, there is no stay.
162
Who has the authority to file a petition for a writ of Quo Warranto?
The Attorney General has the authority and discretion to apply for a writ of quo warranto on behalf of the State. Private individuals claiming title to an office exercised by another may properly petition for the writ only after asking the Attorney General to do so and the Attorney General declines to do so.
163
Which petitions do you name the judge in the body of the petitions but not the caption?
Mandamus and prohibition.
164
Which petition do you have to serve on the person who issued the order?
All of them.
165
Standard of review of an order dismissing a complaint for declaratory judgment?
Abuse of discretion standard.
166
Under Rule 1.530(f), what does a trial court have to do when entering an order granting a new trial?
The court must state "specific grounds" for the entry of a new trial. Must explain why the verdict is contrary to the manifest weight of the evidence.
167
What's the standard of review of an evidentiary ruling? But what if it turns on whether the evidence is hearsay or not?
Abuse of discretion. Hearsay is an issue of law, reviewed de novo.
168
Orders determining venue are generally reviewed under what type of standard of review? And what type of venue order changes that calculus?
Transfer or dismissal for improper venue is generally an issue of law reviewed de novo.
Unless, the trial court made the decision based on forum non conveniens, then it's an abuse of discretion standard.
169
How is a factual conclusion derived from undisputed evidence reviewed on appeal?
Reviewed for the less restrictive "clearly erroneous" standard.
170
What's the standard for disturbing a jury's award of damages?
Will not be disturbed unless it is manifestly so excessive as to shock the judicial conscience or so as to be indicative of prejudice, passion, or corruption on the part of the jury.
171
Is an error applying the law to the facts of the case a "departure from the essential elements of the law"?
No.
172
How is an order granting leave to add a claim of punitives reviewed on certiorari?
Reviewed only for compliance with the statutory procedure.
173
Certiorari may be used to review a pretrial order in the medical malpractice context for what specific purpose?
To review a pretrial order that has the effect of denying a party the right to have a claim for medical negligence evaluated by the medical malpractice presuit screening process.
174
Does an appellate court apply new law even if the trial court didn't have the benefit of it at the time of its ruling?
Yes, unless it would impair a vested right.
175
How does the doctrine of the law of the case mesh with issues that were not expressly decided by prior appellate court decision?
Applies to issues that were necessarily decided by appellate court ruling (raised but not necessarily addressed by opinion/decision).
176
Which type of motion for rehearing requires a certification by counsel and what does that certification have to say?
En banc motion.
"I express a belief, based on a reasoned and studied professional judgment, that ... [either]
the case or issue is of exceptional importance.
[or]
the panel decision is contrary to the following decisions of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court."
177
What items are taxable as costs?
(i) fees for filing and service of process;
(ii) the charges for preparing the record including all charges for preparation of the transcript;
(iii) bond premiums;
(iv) other costs provided by law.
178
Which is the statute that allows for attorney fee provisions in contract/statute to construed as including payment of attorney fees on appeal?
Section 59.46, Fla. Stat.
179
What is the basis for determining an appeal is frivolous?
(a) completely without merit in law and cannot be supported by a reasonable argument for an extension modification or reversal of existing law;
(b) contradicted by overwhelming evidence;
(c) made primarily to delay or prolong resolution of the case or to harass or maliciously injury another;
(d) based on factual assertions that are false.
180
What's special about requesting attorney fees on appeal in family law cases?
An allegation is required regarding the needs and ability of the parties is necessary in family law cases because appellate attorney fees in such cases are not always based on the outcome of the case.
181
When can an order granting a mistrial be appealed?
When it is entered after the jury is discharged (and thus acts like an order granting a new trial).
182
Describe the tension and consideration of moving to dissolve an injunction prior to appealing?
When an injunction is entered without notice, the defendant can appeal directly but is limited to making arguments regarding the sufficiency of the evidence provided by the plaintiff in the first instance.
The defendant could, instead, file a motion to dissolve an injunction, and provide counter-evidence, effectively building a record to support the dissolution of the injunction.
183
What are the two most common types of nonfinal orders that are appealed having to do with determining jurisdiction over the person?
(i) orders on motions to quash service of process; and
| (ii) orders on motions to dismiss for lack of jurisdiction under the long arm statute.
184
Where do you appeal an order determining the existence of worker's compensation immunity?
To the district court having jurisdiction over the trial court in which the order was entered.
185
Is an order denying a motion to decertify a class appealable under 9.130?
No.
186
What are the two statutes that were recently repealed affecting county court appellate jurisdiction?
Law Ch. 2020-61 changed:
Section 26.012 (changing circuit court civil jurisdiction)
and repealed
Section 924.08 (eliminating circuit court jurisdiction for misdemeanor cases).
187
Where do you file a petition for a writ from county court following the new jurisdictional changes?
Unless otherwise required by a statute that governs the subject matter of the cause, file it in the court that would have jurisdiction over the final order in the case.
188
How do you preserve a motion for continuance of trial?
Move for a continuance pretrial. Then, at the start of trial, renew the motion and state/indicate that you are not ready for trial.
If the motion is based on late-disclosed evidence, must object as evidence is coming in.
189
Is rehearing of the Florida Supreme Court's jurisdictional ruling allowed?
No.
190
Which petition do you file to challenge a trial court's order to grant DQ (of himself)?
Mandamus.
191
Where does jurisdiction for an extraordinary writ lie?
Follows appellate jurisdiction. (Extraordinary writ in county court cases).
192
What's a good/only reason to challenge an order by certiorari that denies discovery?
Appellate court would not know what the information was that was excluded and as a consequence, how it would have affected the case. Vitiates the case for the party.
193
Does appellate court have power to order action under certiorari?
No, just quash order under review.
194
Standard of review of petition challenging order excluding the press?
Same as certiorari.
195
Petition quirks:
Name ALL parties as respondents (excluding petitioner), serve trial judge or official.
