Seeking Appellate Review – How to Perfect Your Appeal
The unfortunate order has just come in the mail. Your client just lost, but you are convinced that the trial court has committed reversible error. You tell yourself (and your client), “If only we can get to the appellate court, all will be well.” Knowing the goal, the questions start. Can I appeal this order? If so, to what court? What is my deadline for appealing? Do I have to take the appeal right now or can I wait and appeal the order later in the case? What are the mechanics for filing the appeal? How much does it cost to file an appeal? Read on and your questions will be answered.
Avenues of Appellate Review
Every lawyer knows that there is a right to take an appeal from a final order. But in theory, some procedural mechanism exists to seek appellate review of virtually every order entered by a lower tribunal, even before the case is over. We begin by identifying the avenues of appellate review and when they are available to your client.
There are three basic avenues of appellate review: Review of final orders, review of interlocutory orders permitted by Rule 9.130, and review by extraordinary writ. To determine whether an order can be appealed and the appropriate avenue of review, look at the character of the order. First, consider whether the order is a final order completely disposing of the case. If so, you have an absolute right to an appeal.1
• Final Orders —The procedure for review is set forth in Rule 9.110 and is discussed below. An order is considered final when the trial court’s judicial labors are at an end. The surest sign that an order is final is when it enters judgment for or against a party to the case, completely disposing of all issues relating to that party. Simply put, a final order is reached as to a particular party when there is nothing left for the court to do to resolve the substantive controversy as to that party.2
If you are appealing from a final order, the notice of appeal must be filed within 30 days of the rendition of the final order.3 If the appeal is not filed within this time period, the right to appeal is forever lost.4 The appeal from a final order brings before the appellate court all decisions made by the trial court during the course of the case.5 Thus, any issue raised during the case (and properly preserved for review) is a proper subject of the final appeal, including the trial court’s rulings on the motions to dismiss, summary judgment, discovery orders, evidentiary rulings, procedural rulings, jury instructions, the verdict form, and decisions whether to grant a new trial or to enter judgment as a matter of law.
• Determining Whether an Order Is Final — As noted above, the general rule is that the trial court’s judicial labors must be at an end as to a particular party for the order to be final.6 For an order to be final, it must also be written and filed in the court file.7 An oral ruling is never final. Moreover, the order must have the requisite words of finality; that is, a clear signal that a case is over. For example, an order merely granting a motion for summary judgment or a motion to dismiss is not a final order.8 How is the appellate court to know that the granting of this motion resolves the case completely? A properly worded final order would leave no doubt: “Defendant’s motion for summary judgment is granted and judgment is hereby entered in favor of defendant on all counts in plaintiffs’ complaint,” or “Judgment is hereby entered in favor of the plaintiff for $50,000 for which let execution issue.” It is the entry of judgment rather than the mere granting of a motion that signals that the court’s judicial labors are at an end and the order is final.9
Generally speaking, the order must dispose of all counts of the complaint as well as any counterclaim before the order is final. Thus, if plaintiff sues in tort and contract and the court enters judgment on the contract claim, there will be no final order in the case until the tort claim is resolved as well.10 The same holds true for a counterclaim. Entry of judgment on the defendant’s counterclaim is not a final order until the main claim is disposed of as well.11 However, any order that completely disposes all counts in a complaint as to any party is final as to that party. Thus, if plaintiff sues defendants A and B and the court enters judgment in favor of B, the judgment as to B is final even though the case continues as to A. Plaintiff must appeal the judgment within 30 days or the right of appeal will be forever lost as to B.12
A judgment may be final even though the court reserves jurisdiction to handle a collateral matter, such as the award of attorneys’ fees. For example, an order that enters judgment in favor of the only defendant in the case but reserves jurisdiction to award fees is considered final even though the trial court’s labors are not yet at an end.13 Attorneys’ fees awards are collateral to the main claim and can proceed in the trial court even though the matter is on appeal. Thus, if you wait until after the court awards fees, you could appeal the fee award, but it will be too late to review the merits of the case if the 30-day appellate period has passed as to the original order on the merits.14
•Nonfinal Orders —If you have determined that the order is not final, the next step is to determine whether your client has a right of interlocutory review under Rule 9.130. Orders immediately appealable pursuant to Rule 9.130 are generally those orders which should be reviewed sooner rather than later in the case. Authority to review nonfinal orders is strictly limited by Rule 9.130, which is generally construed narrowly.15 Appealable matters include orders concerning venue,16 orders involving injunctions,17 orders on personal jurisdiction,18 orders that determine the right to immediate possession of property,19 arbitration orders,20 orders on class certification,21 orders on certain immunity issues,22 the right to child custody or immediate monetary relief in family law matters,23 and orders appointing receivers.24
There are two important distinctions between final appeals and nonfinal appeals. First, a nonfinal appeal can be taken within 30 days of the order sought to be reviewed or it can be reviewed at the end of the case.25 In other words, the nonfinal appeal is not mandatory. If you choose not to take the interlocutory appeal, you can still appeal that order at the end of the case. Second, in a nonfinal appeal, only the issue giving rise to the right to appeal under Rule 9.130 can be reviewed. Other issues must await the end of the case.26 In appeals from multiple nonfinal orders, every order sought to be reviewed in an appeal under Rule 9.130 must fit within the rule.27
• Review of Other Nonfinal Orders —If the order you wish to review is not a final order and is not found within the list of reviewable interlocutory orders in Rule 9.130, then your only recourse for seeking appellate review is an extraordinary writ. In theory, virtually any issue can be reviewed by writ, but in practice, the right of review is far more restricted. These common law writs are original proceedings; that is, an application for a writ is in the nature of a new and independent proceeding. The purpose of the writ is to ask a superior court to use its supervisory powers to compel some action in a lower tribunal. You should take the word “extraordinary” seriously. The granting of these writs is entirely discretionary and this discretion is sparingly exercised. The elements necessary to invoke each writ are very specific, and before you seek review utilizing an extraordinary writ, you should be certain that the writ application satisfies these elements. Although this is not always the case, in general, to obtain relief by writ, you must show that your client will suffer from irreparable harm if the court does not review the order now. The fact that your client may have to go through a needless and wasteful trial, however, is not considered to be irreparable harm.28 The only way to determine whether a particular order is commonly reviewed by an extraordinary writ is by reviewing the case law in the area.29
To Which Court May I Appeal?
Critical to your analysis of where you can appeal is understanding the appellate jurisdiction of the various courts in Florida. You can find a detailed discussion of the appellate jurisdiction of every court in Florida in Fla. Const. art. V, §§3, 4, and 5 and Rule 9.030. A detailed discussion of the jurisdiction of each court is beyond the scope of this article. Generally speaking, however, an appeal is taken to the next higher court. Thus, nonfinal and final county court decisions are appealed to the circuit court,30 nonfinal and final circuit court decisions are appealed to the appropriate district court of appeal,31 and DCA decisions are reviewed (when permitted) by the Florida Supreme Court.32 Final agency action under Ch. 120 is reviewed by the DCA.33 Decisions of local governments (such as an action by a zoning board) are generally reviewed by writ of certiorari in the circuit court.34
There are exceptions to the general rule that review is in the next higher court. Decisions of circuit courts may be certified by the DCA for immediate appeal to the Florida Supreme Court.35 Similarly, the DCA has the discretion to review certain county court decisions certified to be of great public importance.36 The Florida Supreme Court also reviews directly trial court decisions in death penalty cases and bond validation proceedings and decisions of the Florida Public Service Commission.37
What Is the Deadline for Taking an Appeal?
Most appellate deadlines run from the “rendition” of the order in the lower tribunal.38 An order is considered to be “rendered” when a signed written order is filed with the clerk of the lower tribunal.39 Thus, if the applicable rule states that a notice of appeal must be filed within 30 days of the rendition of the order, the notice must be filed within 30 days of the date the signed written order is filed with the clerk.
Unfortunately, calculating the deadline is more complicated than just counting to 30. The filing of certain post-trial motions postpones rendition. According to Rule 9.020(h), the filing of an authorized and timely motion for new trial or rehearing, clarification, or certification; to alter or amend; for judgment notwithstanding verdict or in accordance with prior motion for directed verdict, or in arrest of judgment; or a challenge to the verdict postpones rendition of the order until the order is resolved. In other words, the 30-day deadline does not begin to run until the court disposes of these timely filed motions.
Read Rule 9.020(h) carefully as you calculate your deadlines. First, to postpone rendition, the motion must be listed in Rule 9.020(h). If the motion is not listed, do not assume that it will have any effect on postponing the 30-day deadline. Second, the motion must be filed by your client. A motion filed by a co-defendant will not postpone your client’s appellate deadline.40 Third, the motion must be authorized; that is, the motion must be authorized by the civil rules. For example, there is no such thing as an “authorized” motion for rehearing from a nonfinal order.41 Thus, although a trial judge may consider your motion for rehearing from his or her ruling denying your motion for preliminary injunction, the motion for rehearing is not considered authorized and does not postpone the running of the 30-day deadline. Fourth, the motion must be timelyor it does not postpone the deadline. You must look to the rules of civil procedure to determine whether the motion was filed on time.42 If the motion is not timely under the civil rules, the 30-day deadline runs from the original entry of the final order!
The Mechanics for Filing an Appeal
• Final Appeals —The appeal of a final order is commenced by filing an original and one copy of a notice of appeal (attaching order being appealed) with the lower tribunal accompanied by the appropriate filing fee, which can vary from circuit to circuit.43 The lower tribunal then forwards the notice to the reviewing court. The court’s review will be based upon the record of the trial court proceedings which is called the “record on appeal.” The lower tribunal will prepare automatically a record for forwarding to the trial court consisting of all the original documents, pleadings, exhibits, and transcripts of proceedings already on file in the trial court, with the exception of discovery and routine documents such as notices of hearing.44 The appellant has 10 days from the filing of the notice to direct the lower court clerk to include any additional documents in the record or to designate any trial court proceedings that should be transcribed and included in the record on appeal.45 The appellee has 20 days from the filing of the notice to cross-designate any additional transcripts or documents for inclusion in the record.46 It is the appellant’s responsibility to ensure that the record is complete, and the appeal may be lost if the record is not adequate to support reversal.47 Once the record is complete, the case proceeds to briefing (with the first brief coming 70 days after the notice of appeal), oral argument, and decision.
• Cross-appeal —The winning party may also file a notice of appeal if that party did not obtain all the relief sought. The most common example would be a plaintiff that prevailed but did not recover all the damages to which he or she was entitled. If the other side has already filed an appeal, the other party may file a cross-appeal which is due within 10 days of service of the appellant’s notice or within 30 days of the rendition of the final order, whichever is later. No filing fee is necessary.48
• Nonfinal Appeals —Appeals from nonfinal orders commence just as appeals from final orders with the filing of two copies of a notice of appeal in the lower tribunal within 30 days of the rendition of the order from which review is sought.49 There are two major differences between appeals from nonfinal orders and appeals from final orders. First, in appeals from nonfinal orders, the briefing schedule is accelerated. The appellant’s initial brief is due 15 rather than 70 days from the filing of the notice.50 Second, unlike final appeals, in appeals from nonfinal orders, the lower tribunal does not prepare a record for the appellate court’s review. Instead, the parties are responsible to provide relevant documents, exhibits, and transcripts from the lower court proceedings by way of an appendix filed along with the initial brief.51 The appendix should include any pleadings, documents, transcripts, or exhibits presented to the trial court that are relevant to the arguments being made in the brief.52 The parties then proceed to briefing and decision. Florida district courts of appeal rarely grant oral argument in nonfinal cases.
Once the appeal has been filed and the record is perfected, you are on your way. Now all you need to do is convince the court in your briefs and at oral argument that reversible error has been committed and that your client is entitled to victory. Good luck!
1 Fla. R. App. P. 9.030(b)(1)(A); Fla. R. App. P. 9.030(c)(1)(A).
2 E.g., Miami-Dade Water and Sewer Authority v. Metropolitan Dade County, 469 So. 2d 813 (Fla. 3d D.C.A. 1985), rev. denied, 482 So. 2d 349 (Fla. 1986).
3 Fla. R. App. P. 9.110(b). How to determine when the 30-day deadline runs is discussed below.
4 See, e.g., Hawks v. Walker, 409 So. 2d 524 (Fla. 5th D.C.A. 1982) (court has no jurisdiction over untimely appeal).
5 Fla. R. App. P. 9.110(h).
6 See, e.g., Miami-Dade Water and Sewer Authority v. Metropolitan Dade County, 469 So. 2d 813 (Fla. 3d D.C.A. 1985).
7 Fla. R. App. P. 9.110(h).
8 Gries Inv. Co. v. Chelton, 388 So. 2d 1057 (Fla. 3d D.C.A. 1980).
10 Cannady v. Franz, 859 So. 2d 1206 (Fla. 1st D.C.A. 2003). There is an exception. If the count being disposed of is sufficiently separate and distinct from the remaining counts in the case, it may qualify as a partial final judgment under Fla. R. App. P. 9.110(k). A partial final judgment can be appealed now or at the end of the case. If you have any questions as to whether a particular judgment qualifies as a partial final judgment, contact an appellate specialist.
11 S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla. 1974). The same exception applies as to orders that dispose of less than all counts in a case. Judgment on a counterclaim that is sufficiently separate and distinct from the main claim may be a partial final judgment under Fla. R. App. P. 9.110(k). Chinos Villas, Inc. v. Bermudez, 448 So. 2d 1179 (Fla. 3d D.C.A. 1984).
12 Phillips v. Ostrer, 442 So. 2d 1084 (Fla. 3d D.C.A. 1983).
13 Travelers Indem. Co. v. Hutchins, 489 So. 2d 208 (Fla. 2d D.C.A. 1986).
14 Id. An order reserving jurisdiction to award prejudgment interest is not considered collateral because it is bound up in the amount of the judgment. Thus, an order reserving jurisdiction to award prejudgment interest may not yet be final. McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992). But exercise caution here. If the judgment has the appearance of finality, it may be final even if judicial labor remains. See id. Once again, if you have any questions about the finality of the judgment, contact an appellate specialist.
15 Travelers Ins. Co. v. Bruns, 443 So. 2d 959, 961 (Fla. 1984); Marina Bay Hotel & Club v. McCallum, 733 So. 2d 1133 (Fla. 4th D.C.A. 1999).
16 Fla. R. App. P. 9.130(a)(3)(A).
17 Fla. R. App. P. 9.130(a)(3)(B). An excellent description of what orders will be construed as appealable under this provision appears in Judicial Watch, Inc. v. Carroll, 776 So. 2d 300 (Fla. 4th D.C.A. 2000).
18 Fla. R. App. P. 9.130(a)(3)(C)(i). See Fisher v. International Longshoremen’s Assoc., 827 So. 2d 1096 (Fla. 1st D.C.A. 2002) (explaining the types of orders that qualify for review under this subsection).
19 Fla. R. App. P. 9.130(a)(3)(C)(ii).
20 Fla. R. App. P. 9.130(a)(3)(C)(iv).
21 Fla. R. App. P. 9.130(a)(3)(C)(vi); 9.130(a)(6).
22 Fla. R. App. P. 9.130(a)(3)(C)(v) and (vii).
23 Fla. R. App. P. 9.130(a)(3)(C)(iii).
24 Fla. R. App. P. 9.130(a)(3)(D).
25 Fla. R. App. P. 9.130(g).
26 Faulk v. Air Products and Chemicals, Inc., 798 So. 2d 820 (Fla. 1st D.C.A. 2001).
28 Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1988). A good example of irreparable harm is “cat out of the bag” discovery. If a trial court were to order your client to produce a confidential or privileged document, it will be too late to appeal this error later. Thus, the common law writ of certiorari may be used to review such an order immediately. See, e.g., Fla. East Coast Railway v. Jones, 847 So. 2d 1118 (Fla. 1st D.C.A. 2003).
29 The procedures for filing an extraordinary writ are contained in Fla. R. App. P. 9.100.
30 Fla. R. App. P. 9.030(c)(1).
31 Fla. R. App. P. 9.030(b)(1).
32 Fla. R. App. P. 9.030(a)(2).
33 Fla. R. App. P. 9.030(b)(1)(B); Fla. Stat. §120.68. Appellate review of administrative action such as decisions by state agencies or local governments is a complicated subject and is beyond the scope of this article. Generally speaking, one must look to the statute governing the particular administrative proceeding to determine the appropriate path of appellate review.
34 Fla. R. App. P. 9.030(c)(2); Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982).
35 Fla. R. App. P. 9.125.
36 Fla. R. App. P. 9.160.
37 Fla. Const. art. V, §3(b)(1).
38 See, e.g., Fla. R. App. P. 9.110 (jurisdiction must be invoked “within 30 days of rendition of the order to be reviewed.”).
39 Fla. R. App. P. 9.020(h).
40 Fla. R. App. P. 9.020(h)(1).
41 Williams v. Department of Health & Rehab. Services, 468 So. 2d 504 (Fla. 5th D.C.A. 1985).
42 For example, a motion for new trial must be served no later than 10 days after the return of the verdict. Fla. R. Civ. P. 1.530(b). Thus, a motion served 11 days after the return of the verdict does not postpone the running of the 30-day deadline. Scott v. Dep’t of Children & Families, 804 So. 2d 486 (Fla. 1st D.C.A. 2001) (untimely motion has no tolling effect).
43 Fla. R. App. P. 9.110(b). There is a $300 fee for every appeal, but the circuit court then adds its own fee for processing the record on appeal. Your best bet is to call the circuit court clerk and ask for the fee for filing a notice of appeal in that court. A form for the notice of appeal is listed in Rule 9.900(a).
44 Fla. R. App. P. 9.200(a)(1).
45 Fla. R. App. P. 9.200(a)(3). Forms for directing the clerk to include additional items in the record or to order transcripts for the appeal are found in Fla. R. App. P. 9.900(f) and (g).
46 Fla. R. App. P. 9.200(a)(3).
47 See, e.g., Sibley v. Sibley, 816 So. 2d 136 (Fla. 3d D.C.A. 2002).
48 Fla. R. App. P. 9.110(g).
49 Fla. R. App. P. 9.130(b). The form for the notice is set forth in Rule 9.900(c).
50 Fla. R. App. P. 9.130(e).
51 Fla. R. App. P. 9.130(e).
52 Fla. R. App. P. 9.220.