Florida State and Federal Appellate Rules: Distinctions with a Difference 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 between the state appellate rules applicable to civil appeals of final orders in the Florida district courts 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 is urisdictional $ sub ect 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 be filed within '( days of the 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 or hindered 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 '(+day window.' #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,4 or )/ to reopen the '(+day deadline by motion,0 prudent 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 the appropriate 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 must merely ,designate. rather than attach the udgment or order being appealed. 7 Final Orders and Final Decisions 3n a related note, it is also important that the lawyer understand when an order is ,final. for state appellate purposes,4 and what ,final decisions. may be appealed in federal court.5 6nder Florida law, an order is ,final. for purposes of appeal ,when it ad udicates the merits of 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 it ,include7s8 specific 9language of finality.-.!! For instance, an order dismissing a complaint ,with pre udice. that does not ,actually dismiss the action. is not final for appellate purposes.!) :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 the necessary 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 special words to be sufficiently final for appeal.!4 &n the !!th "ircuit, a decision is final and appealable so long as it effectively ,9ends the litigation on the merits and leaves nothing for the court to do but e%ecute the udgment.-.!0 There is more fle%ibility in federal court, however, when it comes to the language 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 udgment because it retains urisdiction over some ,ministerial. tas1 $ the order is still final and

appealable ,even though it might appear that the district court still has something left to do that 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 her counterpart in the !!th "ircuit. &n the Florida appellate courts, within 0( days of filing the notice of appeal, the circuit court cler1 will automatically prepare the record.!7 The ,automatic. record generally consists of everything filed in the lower tribunal e%cept transcripts, discovery, and<or physical evidence.!4 &f the lawyer wishes to include those additional items in the record, or limit the appellate record by e%cluding certain documents, the lawyer must file ,=irections to "ler1. within !( days of filing the notice of appeal, in the form indicated in the rules, directing the cler1 to include or e%clude those items in or from the record.!5 &f transcripts are needed, counsel for the appellant must also serve a designation on the court reporter requiring preparation of the transcript, which is then filed with the court and served on the parties by the court reporter.)( This practice is different in the !!th "ircuit. Within !4 days of filing the notice of appeal, appellants must either ,order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary,. or ,file a certificate stating that no transcript will be ordered..)!#dditionally, appellants may order a partial transcript as long as they file within !( days of the notice of appeal a ,statement of the issues. and serve copies of ,both the order or certificate and the statement..))3therwise, all documents filed in the district court are considered part of the appellate record without the need for directions to the cler1.)' The Briefs The preparation of appellate briefs in state and federal court presents another potential source of confusion> They require different types of cover sheets ?using different colors/ and have different deadlines, which are triggered by different acts ?e.g., filing the record versus filing the notice of appeal/. &n state court, appellants must serve the initial brief ,within 7( days of filing the notice. of appeal@)4 appellees must serve answer briefs ,within )( days after service of the initial brief.@)0 appellants may serve reply briefs ,within )( days after service of the answer brief.@)2 and cross+appellees may serve cross+reply briefs ,within )( days thereafter..)7 These deadlines may be e%tended by five days if the prior brief is served via 6.*. mail.)4 :riefs served by other permissible means ?which notably e%clude electronic or facsimile service/ do not entitle the recipient to additional time.)5 #ppellate briefs in state court do not have colored covers. *ervice by mail is complete on mailing. '( &n federal court, appellants must serve and file the principal brief ,within 4( days after the record is filed.@ appellees must file and serve the response brief ,within '( days after the appellant-s brief is served.@ and appellants may file and serve reply briefs ,within !4 days after service of the appellee-s brief..'! The date on which the record is ,deemed completed and filed. depends on whether a transcript is ordered.') &f a transcript is ordered, the record is deemed completed ,on the date the court reporter files the transcript with the district court.. &f a transcript is not ordered, it occurs ,on the date the appeal is doc1eted in the court of appeals..'' #ppellants- principal briefs must have blue covers@ appellees- response briefs must have red covers@ and reply briefs must have gray covers.'4 &n cross+appeals, appellant-s principal brief is blue@ appellee-s principal and response brief is red@ appellant-s response and reply brief is yellow@ and appellee-s reply brief is gray.'0 #ppellant-s principal brief must be filed and served ,within 4( days after the record is

filed,. while appellee-s principal and response brief must be filed and served ,within '( days after 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 not served 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..'4 !tensions of Time The rules governing e%tensions of time for submitting appellate briefs are generally more fle%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 either opposing counsel has no ob ection to the relief sought, or will or will not promptly file an ob ection.. #s an initial matter, e%tension requests ,must be made or filed prior to the e%piration of the due 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 other motion 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 to govern 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 was set, 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 by written motion setting forth with particularity the facts demonstrating good cause, and will only 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 due date, 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 motions filed 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 or was 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,. litigants see1ing 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 for granting 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 consulted opposing counsel and that the movant-s counsel is authoriDed to represent that opposing counsel either has no ob ection or will promptly file an ob ection.. 476nli1e federal court, the filing 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

separate motion to toll must be filed.44 Finally, counsel should consult the website of the applicable 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 an appellate 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 table on 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 important caveat 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 the rules governing criminal appeals, the various e%traordinary writs that may be filed in state and federal court, or other interlocutory appeals from nonfinal orders.
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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, )4( ?Fla. )d =.".#. )((4/ ?emphasis added/.
4

See Fed. A. #pp. P. 4?a/?0/. See Fed. A. #pp. P. 4?a/?2/. Fla. A. #pp. P. 5.!!(?d/. Fed. A. #pp. P. '?a/?!/, ?c/, ?e/. See Fla. A. #pp. P. 5.('(?b/?!/?#/. See )4 6.*.". F!)5!@ Fed. A. #pp. P. '. McGurn v. Scott, 052 *o. )d !(4), !(4' ?Fla. !55)/.

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Monticello Ins. Co. v. ho!"son, 74' *o. )d !)!0, !)!2 ?Fla. !st =.".#. !555/ ?citations omitted/.
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Dedge v. Crosby, 5!4 *o. )d !(00, !(02 ?Fla. !st =.".#. )((0/. Allstate Ins. Co. v. Collier, 4(0 *o. )d '!!, '!) ?Fla. 4th =.".#. !54!/.

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!4

State Far! Mut. Auto. Ins. Co. v. O"en M#I o$ Orlando, Inc., 74( *o. )d ''5, '4(+'4! ?Fla. 0th =.".#. )((!/ ?emphasis added/.
!0

OFS Fitel, %%C v. &"stein, 'ecker ( Green, P.C., 045 F.'d !'44, !'24+25 ?!!th "ir. )((4/ ?quoting Catlinv. )nited States, ')4 6.*. ))5, )'' ?!540//.
!2

S&C v. Carillo, ')0 F.'d !)24, !)7) ?!!th "ir. )(('/ ?citing 4)( ?!!th "ir. !540//.

urner v. Orr, 705 F.)d 4!7,

!7

Fla. A. #pp. P. 5.!!(?e/. Fla. A. #pp. P. 5.)((?a/?!/. Fla. 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/?!/+?'/. Fla. A. #pp. P. 5.!!(?f/. Fla. A. #pp. P. 5.)!(?f/. Id. Id. Fla. A. #pp. P. 5.4)(?e/. See 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.

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!!th "ir. A. ')?a/?)/@ !!th "ir. A. ') &.3.P. ! ?,covers of briefs operate for a busy court li1e traffic signals./.
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Fed. A. #pp. P. )4.!?d/. Fed. A. #pp. P. )4.!?f/.

'2

'7

See Fed. A. #pp. P. )2?c/ ?adding three days ,unless the paper is delivered on the date of service 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./.
'4

Fed. A. #pp. P. )0?c/?4/. !!th "ir. A. '!+)?e/. !!th "ir. A. '!+!?c/. Id. Id. !!th "ir. A. '!+)?b/.

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44

!!th "ir. A. '!+)?c/. !!th "ir. A. '!+)?d/. Id. Fla. A. #pp. P. 5.'((?a/. Fla. A. #pp. P. 5.'((?b/.

40

42

47

44

45

The chart references the Federal Aules of #ppellate Procedure, but practitioners should also consult the !!th "ircuit rules which correspond numerically to the applicable federal appellate rules. Thomas A. Burns is a senior associate *ith +ill ,ard +enderson. 'e$ore -oining the $ir!, 'urns "racticed a""ellate litigation *ith Sidley Austin %%P and Gibson, Dunn ( Crutcher %%P in ,ashington, D.C., and served as a la* clerk to ..th Circuit /udge Susan +. 'lack. his colu!n is sub!itted on behal$ o$ the A""ellate Practice Section, Dorothy F. &asley, chair, and racy #. Gunn, +eather M. %a!!ers, and 0ristin A. 1orse, editors.
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