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Avoiding Appellate Mistakes: A Primer for the General Practitioner

Appellate Practice

The average general practitioner in Florida does not have more than a handful of appeals in the course of a career. A busy litigator who is not an appellate specialist is unlikely to have more than one case on appeal each year, and often less. As a result, even an experienced general practitioner, who can recite the Florida Rules of Civil Procedure or the Florida Evidence Code from memory, may not be intimately familiar with the intricacies of appellate practice when undertaking an appeal from an adverse ruling. The appellate process has its own set of perils for the unwary practitioner, some of which merely telegraph inexperience with the process, and some of which can be fatal to an appeal. The following is a partial list of common mistakes in Florida appellate practice, which are intended to assist the general practitioner handling an appeal.

Failure to Identify a Final Order
One of the most confusing and potentially dangerous areas of appellate procedure is the determination of when an order is final and, therefore, ripe for appeal. Unless a particular order fits within one of the narrow classes of nonfinal orders that are immediately reviewable on interlocutory appeal,1 an order must be “final” to seek appellate review. An order or judgment is final when there is “an end to the judicial labor in the trial court,” and the trial court is not required to take any further action to resolve the controversy.2 A common mistake is to file a notice of appeal prematurely, before finality actually occurs, such as appealing an order of dismissal with prejudice or an order granting summary judgment before the entry of an actual final judgment.3 Fortunately, the appellate rules specifically state that a premature notice of appeal is sufficient to vest jurisdiction in the appellate court.4 A practitioner is unlikely to cause any prejudice to the client with a premature notice of appeal.

In contrast, however, the late filing of a notice of appeal directed to a final order is disastrous. If a timely notice is not filed, the appellate court has no jurisdiction to hear the appeal, and this jurisdictional defect cannot be remedied by either the trial court or the appellate court.5 Any doubt as to the finality of an order should be resolved in favor of filing a timely notice of appeal, even if potentially premature.

The rendition of a final order can be easily overlooked when partial judgments are entered as to less than all the claims in an action, or as to less than all the parties to an action. As a general rule, an order that fully disposes of all claims in the case as to a party is final as to that party.6 That order must be appealed within 30 days of rendition or the right to appeal is lost. As an example, if a court enters summary judgment in favor of one defendant in a multi-defendant case, the judgment as to the single defendant must be appealed within 30 days. If counsel for that party waits until the conclusion of the case, the appeal will be dismissed as untimely. It is important to note that this differs from federal procedure, which does not require an immediate appeal from a judgment as to less than all of the claims or less than all of the parties.7

Generally an order that disposes of less than all of the claims between the parties in a case is not final and not appealable, with a possible exception if the dismissed claim is factually and legally distinct from the remainder of the case.8 However, judgments that reserve jurisdiction for an award of attorneys’ fees or costs are considered final and appealable when rendered, even though the collateral cost or attorneys’ fees issues remain pending.9 Practitioners must carefully scrutinize orders to determine their finality because of the grave risks associated with the late filing of a notice of appeal.

Failure to Focus on Preparation of the Record
When appealing a final order, the parties have a short period (10 days for the appellant, or 20 days for the appellee) in which to submit directions to the clerk of the circuit court for preparation of the record on appeal and to designate transcripts to be prepared and included in the record.10 If no instructions are received, the clerk will prepare a standard record in accordance with the appellate rules.11

The practitioner should consider the desired composition of the record within the established time periods and make the appropriate designations of transcripts and instructions to the clerk. While the appellate courts will generally permit later amendment of the record if necessary, the compilation of the record is far more efficient when done in accordance with the procedure set forth in the rules. An easy way to avoid issues with designating portions of the transcript to be prepared is simply to have them transcribed and filed in the trial court prior to the compilation of the record.

The practitioner should also review the index to the record on appeal as soon as it is received and deal with any inaccuracies or omissions. The evening before the brief is due is not an ideal time to discover the record is incomplete. Proper attention to the record early in the proceeding will ensure smooth, timely, and efficient preparation of the briefs.

Inattention to the Standard of Review
The standard of review may be the most important aspect of an appellate brief, but many practitioners overlook or otherwise fail to address this critical aspect of the argument. The applicable standard of review forms the lens through which the appellate court views a case. Cases are often won or lost on which standard of review is applied.12 A de novo standard gives the appellant the best opportunity for a reversal, while an abuse of discretion standard is very difficult for an appellant to overcome.

If the standard of review is clear, it should be plainly stated in the brief with references to appropriate authority. If the standard of review is in dispute, as it often is, the practitioner should fully develop this argument in the briefs. The Florida appellate rules expressly require argument directed to the applicable standard of review.13 Regardless of any requirements imposed by the rules, the dictates of advocacy certainly require significant attention to the standard of review. The entire argument should be built around the applicable standard of review, presented in a fashion most favorable to the client’s position on appeal. All too often appellate briefs read like a simple rewrite of memoranda previously filed with the trial court, and do not specifically address, or properly relate to, the applicable appellate standards. A skilled practitioner will focus on the applicable standard of review as if the outcome of the case depends upon it — because it often does. Furthermore, any error in applying the correct standard has the potential to seriously undermine the arguments on appeal.

Poorly Drafted Statement of Facts
Preparation of an effective statement of facts is an art form. A statement of facts that is too objective is probably not serving the best interests of the client in an adversarial process. Alternatively, a statement of facts that is overly argumentative or conclusive is damaging to a party’s credibility with the court. Practitioners should strive for a statement of facts that is accurate, supported by the record, and presented in a fashion that is both favorable to the client and fits well with the arguments made in the briefs. And while the appellee is not required to prepare a statement of facts if satisfied with the appellant’s statement, the appellee has the ability to include a statement of facts, if desired.14 When undertaken by an appellee, a statement of facts should highlight the inaccuracy or incomplete nature of the appellant’s statement of facts, which can be very effective advocacy.

The rules specifically require references to the record on appeal in the statement of facts.15 Briefs without proper record citations are subject to being stricken, and are certainly not beneficial to the client’s cause. A good rule of thumb is to have a record cite for every sentence in the statement of facts. If a sentence in the statement of facts cannot be cited to the record, chances are the fact is outside the record or is impermissible argument.

The statement of facts sets a tone for the brief. The practitioner’s opportunity for advocacy is far more subtle in the statement of facts, but just as important. Crafting an accurate and persuasive statement of facts with proper attribution to the record is a crucial aspect of brief writing that should not be underestimated.

Untimely Requests for Oral Argument and Motions for Attorneys’ Fees and Costs
In addition to the deadlines for serving briefs, there are separate timeframes for serving requests for oral argument and motions for attorneys’ fees. A request for oral argument must be made, in a document separate from the party’s briefs, no later than the time for service of the party’s last brief.16 A motion for attorneys’ fees must be made, by separate motion, no later than the time for service of the reply brief.17 Motions to recover costs, however, must be filed in the lower tribunal after the conclusion of the appeal, but no later than 30 days after the issuance of the mandate.18 Proper calendaring and attention to these deadlines will ensure that these requests are not inadvertently forgotten in the rush that often accompanies the filing of the principal briefs.

Over-use of Motions for Rehearing or Clarification
Lawyers, as advocates for their clients, tend to want to pursue every available avenue for relief. The rules specifically permit a party who is unsuccessful on appeal to move for rehearing or clarification if the party genuinely believes that the appellate court has overlooked or misapprehended a point in reaching its opinion, or that some specified portion of the decision needs clarification.19 However, motions for rehearing or clarification should only be filed in very limited circumstances and are expected to be the exception, not the norm. Rearguing the merits of the case is not permitted. Misuse of the rehearing procedure is unprofessional, wasteful of scarce judicial resources, and puts both the client and offending counsel at risk of sanctions.20 Counsel should use extreme discretion, and perhaps seek a disinterested opinion, before presenting motions for rehearing or clarification, which are clearly not favored by the appellate courts.

Florida appellate procedure contains a variety of rules and nuances that must be carefully considered by the general practitioner in prosecuting or defending appeals. Careful attention to the rules and the principles of sound appellate advocacy are essential to effective representation in Florida’s appellate courts. Practitioners who are uncomfortable with the appellate process may wish to consider associating with an appellate specialist for the purposes of the appeal. It is the author’s hope that this article will help Florida practitioners who only occasionally find themselves in the appellate courts to avoid some of the most common mistakes in their next journey through the appellate process.

1 Fla. R. App. P. 9.130. Some nonfinal orders may be reviewable by certiorari if they depart from the essential requirements of the law, causing a material injury throughout the remainder of the proceedings and effectively leaving no adequate remedy upon appeal of the final judgment. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla.1995). That topic, however, is beyond the scope of this article.

2 Miami-Dade Water & Sewer Auth. v. Metro. Dade County, 469 So. 2d 813, 814 (Fla. 3d D.C.A. 1985).

3 See, e.g., Better Gov’t Ass’n of Sarasota County, Inc. v. State, 802 So. 2d 414 (Fla. 2d D.C.A. 2001).

4 Fla. R. App. P. 9.110(l).

5 Miami-Dade County v. Peart, 843 So. 2d 363, 364 (Fla. 3d D.C.A. 2003); Fla. R. Civ. P. 1.090(b). See also David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So. 2d 275 (Fla. 2d D.C.A. 2008).

6 Phillips v. Ostrer, 442 So. 2d 1084, 1084 (Fla. 3d D.C.A. 1983).

7 Fed. R. Civ. P. 54(b).

8 Mendez v. W. Flagler Family Ass’n, 303 So. 2d 1, 5 (Fla. 1974). Although a partial final judgment on a factually and legally distinct claim is considered a final, appealable order, Fla. R. App. P. 9.110(k) now permits review of these judgments either on appeal of the partial final judgment or appeal of the final judgment in the entire case. Jimenez v. Cmty. Asphalt Corp., 947 So. 2d 532, 532-33 (Fla. 4th D.C.A. 2006). Therefore, the failure to file a notice of appeal of such a partial final judgment should not be fatal, so long as it does not dispose of the entire case as to any party.

9 Travelers Indem. Co. v. Hutchins, 489 So. 2d 208, 209-10 (Fla. 2d D.C.A. 1986).

10 Fla. R. App. P. 9.200(a), (b).

11 Fla. R. App. P. 9.200(a)(1), (2).

12 See, e.g., In re McLinn, 739 F.2d 1395, 1397 (9th Cir. 1984) (holding that the standard of review was determinant of the outcome of the appeal).

13 Fla. R. App. P. 9.210(b)(5). The Federal Rules of Appellate Procedure also require a “concise statement of the applicable standard of review.” Fed. R. App. P. 28(a)(6).

14 Fla. R. App. P. 9.210(c).

15 Fla. R. App. P. 9.210(b)(3).

16 Fla. R. App. P. 9.320.

17 Fla. R. App. P. 9.400(b); Fla. Dep’t of Commerce, Div. of Risk Mgmt. v. Davies, 379 So. 2d 1313, 1313 (Fla. 1st D.C.A. 1990).

18 Fla. R. App. P. 9.400(a).

19 Fla. R. App. P. 9.330(a).

20 Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1101, 1102 (Fla. 4 D.C.A. 1994); Banderas v. Advance Petroleum, Inc., 716 So. 2d 876, 877 (Fla. 3d D.C.A. 1998); Fla. R. App. P. 9.410.

Duane A. Daiker is a board certified appellate specialist and a partner at Shumaker, Loop & Kendrick, LLP, in Tampa. Mr. Daiker is AV-rated by Martindale-Hubbell and handles a variety of appeals in state and federal courts in Florida. He graduated from the University of Florida College of Law with high honors, where he served as editor-in-chief of the Florida Law Review, and was inducted into the Order of the Coif.

This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.

Appellate Practice