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The Appellate Opinion Is Out — Now What Do I Do?

Appellate Practice

S ooner or later the opinion arrives. Of course, appellate lawyers immediately flip to the last page of the opinion for the bottom line: “affirmed” or “reversed,” among other options.1 From there, emotions can run from jubilance to misery or anger. Even Jane Kreusler-Walsh,2 a seasoned appellate lawyer, admits there are times when she wants to “throw up” after receiving an adverse opinion. However, she gives herself a day before making any major decisions. Appellate practitioner, Angela Flowers,3 t akes “a deep breath, re-read[s] the decision to determine how bad the result really is before delivering the news to the client.”

Whether your client has won or lost in the appellate court, there is often more work to be done with short deadlines as provided by the Florida Rules of Appellate Procedure. Meaningful thought from the right perspective is necessary before making the decision to file any post-opinion motions. Other steps, such as implementing the appellate court’s opinion or any of the court’s instructions, filing the motion to tax costs, and addressing orders on appellate attorneys’ fees, must be taken in accordance with the appellate rules. This article addresses many, but not all, issues that arise and the steps to take once the appellate opinion is “out” in state court civil cases.4

Caution: Motions for rehearing, clarification, certification, rehearing en banc, and/or for written opinions should be filed sparingly.

Under Florida Rules of Appellate Procedure 9.330 and 9.331, post-opinion motions, except in bond validation cases, must be filed within 15 days of an order or “within such other time set by the court.”5 S ince the rules allow appellate courts to extend the time for filing such motions, it is not a bad idea to request the court grant a short extension of time to file any motions under Rules 9.330 and/or 9.331, if the circumstances of your case allow, to permit a well thought out decision. Unless the appellate court extends the deadline for filing such motions, the court will deny as untimely the filing of a motion even one day late.6

Motions for Clarification
If, after reading the opinion several times, you do not understand the court’s marching orders — for example, what steps should be taken on remand to implement the court’s opinion — you might consider filing a motion for clarification. Under Rule 9.330(a), a motion for clarification “shall state with particularity the points of law or fact” in the decision that are “in need of clarification.” This request is not appropriate in per curiam affirmed (PCA) decisions without opinions. Only one motion for clarification may be filed. A motion for clarification and a motion for rehearing may be filed jointly or separately.7

Sometimes a call to the clerk of the court will suffice to correct minor clerical errors in the opinion. James R. Birkhold, clerk of the Second District Court of Appeal, accepts calls from attorneys on purely ministerial matters such as an incorrect name of the trial judge, an error in an address, or an error in a case citation. Mr. Birkhold stresses that any substantive change, even seemingly minor, should be addressed in a motion for rehearing.

Motions for Rehearing
Lawyers must resist any temptation, no matter how strong, to ignore their case or to act rashly after an adverse result. Reflecting back to his days as an appellate practitioner, Judge Gary M. Farmer of the Fourth District Court of Appeal advises “walking around the block for days if necessary or pinching yourself several times if you are swept away by a loss” before filing any post-opinion motions. Judge Farmer stresses that counsel must take the time needed to reflect and put the matter in a better perspective before filing any motion(s).

Rule 9.330(b) specifically provides that only one motion for rehearing may be filed.8Also no motions under Rule 9.330 may be filed in response to the dismissal of a petition for an extraordinary writ, addressed in Rule 9.110(a), when the writ is directed to a district court decision without opinion.9

The proper grounds for filing a motion for rehearing are limited. Under Rule 9.330(a), “A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.”10 Judge Richard B. Orfinger of the Fifth District Court of Appeal states that although the rule serves a useful purpose, motions for rehearing that improperly reargue the merits of the case are filed too frequently. Instead, the motion should address a real error in the opinion in a meaningful way. In this regard, Judge Farmer advises counsel to “get to the point immediately, without formality” by telling the court “in the first paragraph what was misunderstood or overlooked.” As with appellate briefs, post-opinion motions should be short, easy to read, and to the point; if there truly is a basis for a motion, it should not take much space to explain your position.

Statistically, the chances of changing the court’s mind in a way that impacts the result of the opinion are extremely small on motions for rehearing. Therefore, the motions should not be filed as a routine matter. Judge Robert M. Gross of the Fourth District Court of Appeal notes that of the 1,028 motions for rehearing received in the Fourth District during 2006, only 21 were granted. His analysis of the 21 successful motions revealed that they had three qualities in common: 1) they were short, usually limited to only three or four pages; 2) they had an appropriate tone and did not include attacks on the court; and 3) they were generally filed by attorneys who were known by the court not to abuse the rehearing process. Judge Gross’s analysis confirms that you can assume appellate judges will remember which appellate lawyers file “shotgun” motions as a matter of course and which ones are more restrained.

Since the filing of such motions is abused, counsel have been continuously urged to “carefully and seriously consider the necessity or desirability of asking the court to rehear a case.”11 Although a party may properly file a motion for rehearing even when the court has issued a decision without an opinion, this should be done sparingly.12 Florida courts have repeatedly expressed their displeasure over motions for rehearing that are without merit.13 Personal attacks on the court are not condoned.14 The court may, and has in the past, imposed sanctions under appellate Rule 9.410, for filing a motion for rehearing that is frivolous or in bad faith.15

Motions for Written Opinions and Motions for Certification
Rule 9.330(a) provides that when a party requests the court to issue a written opinion, the request must be followed by a statement that a written opinion will provide a legitimate basis for Supreme Court review and a statement explaining “why the Supreme Court would be likely to grant review if an opinion were written.”16 The wording required to be used in the statement may be found in the rule. The need for an opinion, however, is left to the discretion of the appellate panel.17

Rule 9.330(a) also provides for the filing of a motion for certification when an opinion is in conflict with a decision from a different district court of appeal or from the Florida Supreme Court or when the opinion addresses an issue of great public importance. Although there are no requirements for this motion, the movant should set forth the specific reason for such a certification and detail the specific conflict or issue the movant believes is of great public importance. Judge Gross defines a question of “great public importance” as one that will “affect many cases.” He notes that in 2006, the Fourth District certified only two questions of great public importance in civil cases and points out that often the appellate court can anticipate questions that should be certified before any motion for certification is needed. Additionally, Judge Gross comments that, like appellate lawyers on motions for rehearing, district courts carefully consider the merit of certifying a question of great public importance to the Supreme Court to maintain credibility with the higher court.

Motions for Rehearing En Banc
Very few cases are decided en banc by Florida’s appellate courts. Judge Orfinger states that far too many of these motions are filed without any realistic possibility of being granted; these motions can result in time consuming review of briefs, pertinent parts of the record, and relevant law in cases in which the judges did not originally participate.

Under Rule 9.331, a party may move for rehearing en banc within 15 days of the decision on the grounds that the case is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions. The rule provides that “[a] motion based on any other ground must be stricken.” The motion “shall” contain the required statement set forth in Rule 9.331(d)(2). Failure to include the statement can result in the denial of the motion.18

Under Rule 9.331 the court can also order a rehearing en banc without any prompting by a party. On the court’s own authority, the majority of its members can order that a proceeding pending before it be determined en banc. In his concurring opinion in TECA, Inc. v. WM-TAB, Inc., 726 So. 2d 828, 831 (Fla. 4th DCA 1999), Judge Larry A. Klein described the process wherein the court decided, sua sponte, that en banc consideration was needed to maintain uniformity in the court’s decisions.

Responses to Post-opinion Motions
A party may file a response to a motion for rehearing, motion for clarification or certification and motion for rehearing en banc within 10 days of service of the motion under Rules 9.330(a) and 9.331(d)(1). Both Senior Judge Alan R. Schwartz of the Third District Court of Appeal and Judge Farmer joke that they have to resist the temptation to read the response to a post-opinion motion before reading the motion in a case in which they authored the opinion, since the response invariably contains high praise for the writer. Of course, form responses to motions for rehearing, which do not address the merits of the motion for rehearing, do not fall into the favored category and are not appreciated by the appellate courts.19

Once any post-opinion motions are resolved, there are generally two courses of action: 1) further proceedings in the trial court to implement the opinion, recover appellate costs, and, when applicable, attorneys’ fees; or 2) possible further proceedings in the Florida Supreme Court. The latter course is not addressed in this article.

Caution: Review the opinion carefully and take the action required by the opinion after the mandate issues.

Judge Douglas A. Wallace of the Second District Court of Appeal recommends reading the opinion carefully to determine what, if any, action should occur on remand. If the appellate court remands the case to the trial court, attorneys must carry out the action required by the appellate decision. In Judge Wallace’s words, “These things don’t happen automatically, someone’s got to make it happen.”

Any required action must be taken after the mandate is issued. The mandate is the reviewing court’s “mode of communicating the judgment of the appellate court” to the lower tribunal and instructing the tribunal on the action to be taken or the disposition to be made on remand.20 The mandate transfers jurisdiction of the appellate court back to the trial court.21 The mandate automatically issues within 15 days from the date of the decision, but if a timely motion for rehearing, clarification, or certification is made, this time is extended until 15 days after the rendition of the order on the post-decision motion.22

Once the mandate issues, you should take any action required by the opinion. This may, for example, include preparing a judgment that conforms to the appellate court’s decision, or filing a motion to vacate a judgment reversed by the decision and scheduling a hearing on the motion.

As discussed in the next two sections, the prevailing party must also file the motion to tax appellate costs and take any action pursuant to an order on appellate attorneys’ fees.

Caution:Motions to tax appellate costs must be filed in the trial court within 30 days of the issuance of the mandate.

Motions to tax appellate costs are treated differently than motions for appellate attorneys’ fees and are governed by Rule 9.400(a). Under that rule, a motion to tax appellate costs is not filed in the appellate court; it is filed in the trial court and must be served within 30 days after issuance of the mandate. The trial court lacks jurisdiction to hear a motion to tax costs if it is served beyond the 30-day limit.23

Rule 9.400(a) also allows taxation of “1) fees for filing and service of process; 2) charges for preparation of the record; 3) bond premiums; and 4) other costs as permitted by law.” Attorneys should present evidence to the trial court in support of the appellate costs claim.

Caution:Motions for appellate attorneys’ fees must state the ground(s) for the award and be filed during the time allowed for briefing; responses must also be timely.

Unlike the motion to tax appellate costs, a separate motion for appellate attorneys’ fees must be filed in the appellate court under Rule 9.400(b).24 In the last few years, the Second District recently denied a litigant’s request for appellate fees when the fees were requested in her answer brief instead of in a separate motion.25

Under the same rule, a motion for attorneys’ fees must be served “not later than the time for service of the reply brief” or the response to a jurisdictional brief in the Florida Supreme Court.26 More than one appellate lawyer has handled a “pro bono” case by inadvertently failing to timely move for attorneys’ fees.27 The lower court has no jurisdiction to determine a party’s entitlement to appellate attorneys’ fees unless the appellate court remands the cause to the trial court for that determination.28

Rule 9.400(b) also requires the motion to state the legal grounds for the award of fees. A motion that lacks a stated basis for relief does not support a fee award.29 Attorneys’ fees may be awarded only where there is a contractual or statutory provision permitting such fees.30 F.S. §59.46 provides that any contract or statute that provides for prevailing party attorneys’ fees “shall be construed to include the payment of attorneys’ fees to the prevailing party on appeal.”31 If the award of fees is based on contract, a copy of the contract should be attached. Similarly, if the basis for the award of appellate fees is statutory, the motion should include reference to the statute, the appropriate section and subsection of the statute, and the applicable year.32 For example, if entitlement to appellate fees is based on a proposal for settlement under section F.S. §768.79 and Florida Rule of Civil Procedure 1.442, identification of the statute in the motion is necessary. Do not forget to confirm whether a proposal for settlement was served on behalf of your client in the trial court.

A response to a motion for fees must be filed within 10 days of service of the motion. Failure to do this may result in the waiver of a right to argue that the opposing party is not entitled to fees.33 Occasionally, entitlement to fees remains conditional after appellate victory where, for example, a new trial is ordered, the appeal is from a nonfinal order, or the trial court has not determined the validity of the proposal for settlement on which the motion for appellate attorneys’ fees was based. Under these circumstances, the appellate court may issue an order awarding fees contingent on further specified activity in the trial court. Opposing counsel should file a response to a motion for appellate attorneys’ fees and advise the appellate court of the contingent nature of the award of fees if the movant did not so advise the court in the motion for appellate fees.

After remand and an amount determination in the trial court, it is still the appellate court that reviews the amount awarded. This appellate review is occasionally overlooked. Review is initiated by filing a motion for review in the appellate court rather than by the filing of a notice of appeal.34 A motion for review should be filed in the appellate court within 30 days from the entry of the trial court order awarding a fees amount.

Caution:Do not forget to tidy up.

Once the appellate proceedings are over, including resolution of any costs or attorneys’ fees claims, make sure that everything is done for proper closure of the case. This may include the filing and recording of a satisfaction of judgment. Otherwise, you can expect a call down the road from an unhappy former client who is unable to sell property due to the “unsatisfied” lien.

In addition, if an appeal (supersedes) bond was filed, a joint stipulation of parties should be filed for an order discharging or canceling the bond. The order canceling the bond should be forwarded to the bond surety to stop additional premium from accruing.

A thorough understanding of the opinion and the appellate rules is critical to exercising good judgment in deciding whether to file post-opinion motions under Rules 9.330 or 9.331. All decisions should be made calmly after weighing all of the options, while keeping an eye on the critical deadlines. Also, all action required by the opinion, including a timely motion to tax appellate costs and any necessary appellate attorneys’ fees proceedings, should be taken after the mandate issues.

So, once you have the opinion in hand, read it carefully, take a walk around the block, and then — get back to work!

1 If you do not flip to the last page of the opinion immediately, this is a good sign that you might need to consult an appellate lawyer. For other such tip-offs, see Betsy E. Gallagher, Ten Signs That You Need an Appellate Lawyer, 78 Fla. B. J. 65 (May 2004).

2 Jane Kreusler-Walsh is the founding partner of Kreusler-Walsh, Compiani & Vargas, P.A., and is a board certified appellate lawyer. Ms. Walsh practices in West Palm Beach.

3 Angela Flowers practices in the Ocala office of Kubicki Draper, P.A. She is a shareholder and member of the firm’s appellate and insurance coverage division.

4 Except in limited circumstances, this article does not address the jurisdiction or proceedings of the Florida Supreme Court. For an extensive discussion of the Florida Supreme Court’s jurisdiction, see Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431 (2005).

5 Fla. R. App. P. 9.330(a). Under Rule 9.330(c), the deadline for post-opinion motions in bond validation cases is shortened to 10 days.

6 See Hoenstine v. State Farm Fire & Cas. Ins. Co., 742 So. 2d 853, 854 (Fla. 5th D.C.A. 1999).

7 Philip J. Padovano, Motion Practice in Florida Appellate Courts, 32 Stetson L. Rev. 309, 336 (2003).

8 Fla. R. App. P. 9.330(d); see Hoenstine v. State Farm Fire & Cas. Ins. Co., 742 So. 2d 853-54; 3299 N. Fed. Hwy, Inc. v. Bd. of County Commissioners of Broward County, 646 So. 2d 215, 228-29 (Fla. 4th D.C.A. 1994).

9 Vetrick v. Hollander, 464 So. 2d 552 (Fla. 1985) (no motion for rehearing or for clarification may be filed in Supreme Court to denial of petition for discretionary review).

10 See, e.g., Green Co. v. Kendall Racquetball Invest., Ltd., 658 So. 2d 1119, 1122 (Fla. 3d D.C.A. 1995); Eastern Airlines, Inc. v. King,561 So. 2d 1220, 1221 (Fla. 3d D.C.A. 1990), rev. denied, 576 So. 2d 288 (Fla. 1991), cert. denied, 500 U.S. 943 (1991).

11 Whipple v. State, 431 So. 2d 1011, 1013 (Fla. 2d D.C.A. 1983).

12 See TECA, Inc. v. WM-TAB, Inc., 726 So. 2d 828, 831 (Fla. 4th D.C.A. 1999) (Klein, J., concurring specially) (“[A]lthough we see far too many motions for rehearing,. . . they can be appropriate, even in cases which are initially affirmed without opinion.”) (citation omitted).

13 See Amador v. Walker, 862 So. 2d 729, 733 (Fla. 5th D.C.A. 2003), and cases cited therein. Appellate courts are increasingly likely to sanction lawyers for filing such motions. See Banderas v. Advance Petroleum, Inc., 718 So. 2d 376 (Fla. 3d D.C.A. 1998)(ordering appellant’s counsel to pay $2,500 as sanction for a motion for rehearing that the court found “both frivolous and insulting to this court”). See also Whipple, 431 So. 2d at 1013 (a motion for rehearing is not “a routine step in appellate practice”); Lowe Inv. Corp. v. Clemente, 685 So. 2d 84 (Fla. 2d D.C.A. 1996) (“Motions for rehearing directed to this court are overused, if not abused.”).

14 If your draft motion(s) contains any personal attacks on the court or opposing counsel, this is a clear sign that an appellate lawyer should be consulted.

15 See, e.g., Elliott v. Elliott, 648 So. 2d 135, 135-36 (Fla. 4th D.C.A. 1994).

16 See Steven Brannock & Sarah Weinzierl, Confronting a PCA: Finding a Path Around a Brick Wall, 32 Stetson L. Rev. 367 (2003).

17 See R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986, 989 (Fla. 2004).

18 See Havener v. Havener, 473 So. 2d 708 (Fla. 2d D.C.A. 1985).

19 See Bryant v. Buerman, 752 So. 2d 625, 625 (Fla. 4th D.C.A. 1999) (wherein court criticized counsel for appellee for filing a four-page form response which did not address the merits of the motion for rehearing).

20 Tierney v. Tierney, 290 So. 2d 136, 137 (Fla. 2d D.C.A. 1974). See Barbara Green, Cracking the Code: Interpreting and Enforcing the Appellate Court’s Decision and Mandate, 32 Stetson L. Rev. 393, 394 (2003).

21 Id.

22 If the losing party is pursuing further proceedings in the Florida Supreme Court, the party must file a motion to stay the mandate within the 15-day time allowed for filing a motion for rehearing, or while a timely motion for rehearing is pending. See Amer. Home Assurance Co. v. APAC-Florida, Inc., 841 So. 2d 556, 557 (Fla. 2d D.C.A. 2003).

23 See, e.g., Mulato v. Mulato, 734 So. 2d 477, 478 (Fla. 4th D.C.A. 1999).

24 See Tracy Raffles Gunn, Attorneys’ Fees on Appeal: Basic Rules and New Requirements, 76 Fla. B. J. 31 (Apr. 2002), for a comprehensive article on appellate attorneys’ fees.

25 See Bevan v. Cowart, 916 So. 2d 822, 822 (Fla. 2d D.C.A. 2005).

26 See Superior Prot., Inc. v. Martinez, 930 So. 2d 859, 860 (Fla. 2d D.C.A. 2006).

27 Of course, at least one appellate lawyer has handled more than one “pro bono” appeal as a result of failing to timely move for appellate attorneys’ fees. See Betsy E. Gallagher, Ten Signs That You Need an Appellate Lawyer, 78 Fla. B. J. 65 (May 2004).

28 See, e.g., Computer Task Group, Inc. v. Palm Beach County, 809 So. 2d 10, 11 (Fla. 4th D.C.A. 2002); Real Estate Apartments v. Bayshore Garden Apartments, Ltd., 530 So. 2d 977, 979 (Fla. 2d D.C.A. 1988).

29 See United Serv. Auto. Ass’n. v. Phillips,775 So. 2d 921, 922 (Fla. 2000).

30 See, e.g., Florida Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985), modified by Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990). Kovack Sec., Inc. v. Bailey, 933 So. 2d 1202, 1202 (Fla 4th D.C.A. 2006); Mercury Cas. Co. v. Rural Metro Ambulance Inc., 909 So. 2d 408, 409 (Fla. 2d D.C.A. 2005).

31 See Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788, 789 (Fla. 3d D.C.A. 2002).

32 See Lehigh Corp. v. Byrd, 397 So. 2d 1202, 1205 (Fla. 1st D.C.A. 1981).

33 See Homestead Ins. Co. v. Pool, Masters & Goldstein, 604 So. 2d 825, 827 (Fla. 4th D.C.A. 1991).

34 Fla. R. App. P. 9.400(c).

Betsy Ellwanger Gallagher is a shareholder at Kubicki Draper in Tampa. She received her undergraduate degree from Cornell University and Juris Doctor from the University of Florida (1976), with honors, where she was the executive editor for the University of Florida Law Review.

Amy Miles is an associate in Kubicki Draper’s appellate and insurance coverage division. Before joining Kubicki Draper’s Tampa office, Ms. Miles clerked at the Second District Court of Appeal for Judge Douglas A. Wallace.

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

Appellate Practice