Appellate Rule Changes Headed Your Way in 2019

By Courtney Brewer

In October, the Florida Supreme Court released several opinions that will amend the Florida Rules of Appellate Procedure and the Rules of Judicial Administration effective January 1, 2019.  As Chair of the Appellate Court Rules Committee (ACRC), I had the pleasure of presenting on these changes at the Section’s monthly webinar in November.  Looking ahead, the ACRC is already hard at work on the next round of cycle amendments, which will be published next year for public comment before they are submitted to the Court in 2020.

Briefly, the biggest changes headed your way next year are major changes to how you calculate time periods for some briefs and motions, the time periods themselves (you will have more time, don’t worry!), and more authorized reasons for seeking a written opinion when you get the dreaded PCA.  Below is a bulleted list briefly explaining the three opinions the supreme court released in November and the notable changes in each.  If you have any questions, please email me.

  1. SC17-882 – The 5-Day Rule Is No More – The change that I suspect will have the biggest effect on your day-to-day practice is how you calculate the due date for answer and reply briefs as well as responses to motions. To read the full opinion, click here.
    • As of January 1 at 12:02 a.m., you will no longer add an extra 5 days to the end of your response time when service is by email, as is currently the case under Florida Rule of Judicial Administration 2.514.
    • But you also do not start counting your time period until the next business day. (The new rule 2.514(a)(1)(A) states you are to “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.”)  For example, if you were served with an answer brief on the Wednesday before Thanksgiving, then day 1 in your response time would fall on the next Monday.
    • And nearly every deadline in the appellate rules where time was based on service of a document by another party has been lengthened.
      • In some cases, that period was lengthened by 5 extra days and in some cases, by as much as 10. For example, answer briefs are now due 30 (instead of 20) days after service of the initial brief.
      • Amendments were made to time periods in the following rules: 9.100, 9.110, 9.120, 9.125, 9.130, 9.40, 9.141, 9.142, 9.146, 9.180, 9.200, 9.210, 9.300, 9.320, 9.330, 9.331, 9.350, 9.360, 9.410
  2. SC17-152 – Cycle Report Changes to the Rules of Appellate Procedure. For the full opinion, click here.
    • Prebriefing changes
      • 9.130 — Appealable nonfinal orders include two new categories: (1) Orders that determine, as a matter of law, that a settlement agreement is unenforceable, set aside, or never existed; and (2) Orders that grant or deny a motion to disqualify counsel.
      • 9.420 — Notices of appeal need not be served by U.S. mail (just email service is fine), original petitions still should be (in addition to email service).
      • 9.110 — “The scope of review of a partial final judgment may include any ruling or matter occurring before filing of the notice of appeal so long as such ruling or matter is directly related to an aspect of the partial final judgment under review.”
      • 9.146 — Reviews of motions staying dependency proceedings is by motion.
    • Briefing changes
      • 9.146 & 9.210 — Only one brief per party/attorney may be filed when responding to multiple briefs on the other side.
      • 9.120 — No more appendices requiredwith initial merits brief at Florida Supreme Court. [NOTE – it is still required with brief on jurisdiction.]
      • 9.380 — New rule that permits notices of related cases.
      • 9.400 — Amended the rule to explain when motions for attorneys’ fees are due in cases pending at the Florida Supreme Court:
        • File it when response brief on jurisdiction due.
        • File it when reply brief on merits due if jurisdiction accepted.
        • File it no later than 5 days after notice filed where no jurisdictional briefs permitted (certified question cases).
        • Or file it when reply brief on merits due if certified question accepted.
    • Postopinion changes
        • 9.330 — Motions for rehearing and written opinion.
            • Rule was cleaned up and reorganized
            • Only one motion now permitted to encompass all postopinion relief options (previously could do one for rehearing and clarification and one for certification).
            • Expanded the grounds for which a party may seek a written opinion:
              • Legitimate basis for supreme court review.
              • Deviation from prior precedent.
              • Guidance needed because
                1. Issue pending in other cases.
                2. Issue expected to recur.
                3. Conflict in lower tribunals.
                4. Issue of first impression.
                5. Court has exclusive subject matter jurisdiction over issue.
        • 9.370 — Leave of court required to file amicus in support of rehearing.
    • New rules for courts too:
      • 9.331 — Courts must promptly notify the parties when they decide to hear a case en banc.
      • 9.500 & 9.510 — Deadlines for when opinions in advisory opinion cases are due.
    • Additionally, there were stylistic and technical changes to a multitude of the rules. They are far too numerous for this article.  Here, however, are the rule numbers that were affected; I would encourage you to read through these rules carefully: 9.030, 9.040, 9.100, 9.110, 9.120, 9.125, 9.130, 9.140, 9.141, 9.142, 9.145, 9.146, 9.150, 9.160, 9.170 9.180, 9.190, 9.200, 9.210, 9.225, 9.310, 9.350, 9.360, 9.370, 9.410, 9.430, 9.500, 9.510, 9.700, 9.710, 9.720
  3. SC17-999 – Finally, several amendments were made in a separate opinion to the citation rule, 9.800. They are worth glancing over, although mainly the changes cleaned up the rule and indicated that citations to Westlaw and Lexis may be provided when citing to a slip opinion. Click here for the full opinion.