By Samantha Wuschke*
As we begin 2024, appellate practitioners should be aware of the 2023 changes to the Florida Rules of Appellate Procedure that may affect their work in this new year. Generally, the revisions over the course of 2023 show that practitioners and the Florida Supreme Court are interested in clarifying the language of the rules while eliminating inconsistencies that created confusion in practice. All 2023 amendments to the rules are available on the Florida Supreme Court’s website.
- March 2023
On March 16, 2023, the Court amendedrule 9.190, titled “Judicial Review of Administrative Action,” rule 9.400, titled “Costs and Attorneys’ Fees,” and rule 9.440, titled “Attorneys.”
The rule 9.190(d) amendments delete requirements for the filing of motions for attorneys’ fees in administrative appeals and seeking review of orders on those motions. In other words, practitioners seeking attorneys’ fees for appeals of administrative orders are clearly required to comply with motions for fees under rule 9.400. Rule 9.190(d) now expressly requires compliance with rule 9.400—the goal, the Florida Supreme Court states, is to streamline the ruleset and eliminate confusion.
Relatedly, the Court also accepted a change the Appellate Court Rules Committee proposed for rule 9.400. Specifically, the Court amended rule 9.400(b)(3) to tie the deadline for motions for attorneys’ fees in discretionary review proceedings before the Florida Supreme Court to the filing of the parties’ jurisdictional briefs. The amendment equalizes the timing for discretionary review proceedings commenced under rule 9.030(a)(2)(A) and rule 9.030(a)(2)(A)(v)—now, under either provision, a motion for fees must be served no later than the time for serving the respondent’s brief on jurisdiction, or the time for serving the reply brief if jurisdiction is accepted. The change to rule 9.120(d) prompted the amendment because jurisdictional briefs must now be filed in all proceedings seeking discretionary review of a district court decision.
Finally, the Court amended rule 9.440. Those revisions included specifying in rule 9.440(c) that practitioners should use the Notice of Termination of Limited Appearance Form in rule 9.900(n) for terminating a limited appearance. The previous rule confusingly referred to notice of limited appearance. In addition, the Court revised rule 9.440(d) regarding the withdrawal of attorneys to conform with recent amendments to Florida Rule of General Practice and Judicial Administration 2.505 that allow an attorney to withdraw without a court order if the same firm or agency substitutes another attorney.
- July 2023
On July 6, 2023, the Florida Supreme Court sua sponte amended rule 9.130, governing interlocutory appellate review of nonfinal orders. The Court added new rule 9.130(a)(3)(H) to provide for interlocutory review of nonfinal orders that deny a motion to dismiss on the basis of the qualifications of a corroborating witness under subsections 766.102(5)–(9), Florida Statutes. The Court amended the rule to provide for interlocutory review only when these particular motions to dismiss are denied, because an order granting such a motion to dismiss would as a general matter result in the plaintiff’s case being dismissed without prejudice.
On December 14, 2023, after receiving comment, the Court further amended rule 9.130(a)(3)(H) to reference subsection (12) of section 766.102, Florida Statutes, because subsection (12) also articulates the qualifications of a corroborating witness.
- August 2023
On August 31, 2023, the Florida Supreme Court amended another set of appellate rules. The Court stated that, generally, it simplified the language of the amended rules, except where the proposed simplification would result in words different from those used in the Florida Constitution to establish appellate jurisdiction of Florida courts. The Court expressed its opinion that the text of a procedural rule should match the constitutional text.
The Court explained that it amended rule 9.030(b)(4), titled “Jurisdiction of Courts,” to conform with section 34.017(1), Florida Statutes, regarding certification of questions to district courts of appeal, to clarify when district courts of appeal may review appeals from final county court orders that are otherwise appealable to the circuit court. Before the amendment, the rule only required the county court to certify that the question is of great public importance. The amended language adds that the county courts must certify that the final order involves a question that (1) may have statewide application and (2) either is of great public importance or will affect the uniform administration of justice. The Court made comparable additions to rule 9.160, regarding discretionary review of county court decisions.
The Court also considered rule 9.130, titled “Proceedings to Review Nonfinal Orders and Specified Final Orders.” The Court corrected subdivision (e) to eliminate overlap between the filing deadlines for serving the initial brief in a nonfinal appeal and a notice of intent to cross-appeal. Rule 9.130(e) now provides that the initial brief appealing a nonfinal order must be served within twenty days of filing the notice of appeal, instead of fifteen days. Subdivision (g) still provides that an appellee may cross-appeal a nonfinal order by serving a notice within fifteen days of a timely notice of appeal. Now, subdivision (e) provides a five-day buffer between the deadline for filing a notice of cross-appeal and service of the initial brief after the original notice of appeal is filed.
Finally, the Court amended rule 9.360(a) to clarify that a notice of joinder for realignment must be filed in the appellate court, eliminating a party’s need to cross-reference other rules to determine where to file the notice of joinder.
- September 2023
On September 21, 2023, the Florida Supreme Court adopted rule 9.148 and amended rule 9.210.
First, the Court explained new rule 9.148(a), titled “Appeal Proceedings to Review Orders Under Florida Mental Health/Baker Act.” This new rule identifies a procedure for appellate review of orders entered in Baker Act cases. The rule provides that appeal proceedings under The Baker Act, sections 394.451–394.47892, Florida Statutes, will be the same as those in civil cases, unless the new rule provides otherwise. The Court explained that the rule eliminated confusion related to the determination of what appellate rules govern review of Bake Act orders, which generally stem from either civil or administrative proceedings. New rule 9.148 also addresses the need for an expedited review process in Baker Act appeals by limiting the time for an answer brief to twenty days from service of the initial brief and permitting extensions of time only for extraordinary circumstances, and by expressly providing that a court will give priority to appeals under rule 9.148. Additionally, the new rule addresses the confidential nature of records in these proceedings by providing that filings under the rule will not be open to inspection by anyone other than the parties, their counsel, guardian, or anyone else otherwise ordered.
The Court also amended rule 9.210, titled “Briefs,” to address matters of form and to correct inconsistent wording within the rule itself, in addition to replacing the word “shall” with “must” or “will,” a recurring theme throughout the 2023 amendments. The rule clarifies the required word counts for answer/cross-initial briefs, reply/cross-answer briefs in both civil and criminal contexts. Specifically, the rule eliminates the requirement that reply/cross-answer briefs devote no more than 4,000 words to argument replying to the answer portion of the appellee or respondent’s answer/cross-initial brief. Additionally, the amended rule includes a reference to new rule 9.148’s times for serving jurisdiction and initial briefs in Baker Act appeals. The Court clarified that the rule requires either a specific word count limit or page limit under rule 9.210(a)(2), which was amended to read “the word count or page limits for briefs . . . .”
- October 2023
On October 12, 2023, the Florida Supreme Court amended rules 9.020, 9.147, 9.180, 9.320, 9.800, and 9.420. The Court characterized the changes to these rules as procedural and technical in nature and highlighted a few amendments of special importance.
Specifically, the Court noted that rule 9.020 creates a new subdivision, rule 9.020(h)(1)(M), to include motions to withdraw a plea after disposition under the Florida Rule of Juvenile Procedure 8.075(f) as those that toll rendition of an order.
The Court also amended rule 9.147, titled “Appeal Proceedings to Review Final Orders Dismissing Petitions for Judicial Waiver of Parental Notice and Consent or Consent only to Termination of Pregnancy,” to provide that lower tribunal clerks are to transmit notices of appeal and records within two days of the filing of a notice of appeal and that the appellate court must dispose of such appeals within seven days of the filing of the notice of appeal.
The Court amended rule 9.180 to align with the Workers’ Compensation statute, section 440.25(5)(b), Florida Statutes (2023), to provide that petitions to be relieved of costs must be filed within fifteen days of service of a notice of estimated costs and that objections must be filed twenty days thereafter. Further, the rule explains that costs must be deposited within fifteen days after service of a notice and objection to a court reporter or transcriber must be filed within fifteen days after service of the notice of selection. The amendment also eliminated the word “approved” from before “court reporter or transcriptionist” and to eliminate reference to rule 9.200(d), titled “The Record.” Additionally, the Court amended rule 9.180(b)(3) to make clear that failure to submit a mandatory filing fee is not a jurisdictional defect.
Additionally, the Court amended rule 9.320, with respect to discretionary review proceedings, to tie requests for oral argument to the service of jurisdictional briefs.
The Court also explained that it removed a hyperlink from rule 9.800 and replaced it with a general reference to the Florida Style Manual.
In addition, the Court explained that it amended a reference to rule 9.200(b)(4) in rule 9.900(h), which describes deadlines for requesting extensions of time to designate court reporter forms.
Finally, the Court amended rule 9.420 to remove language stating that petitions invoking the Court’s original jurisdiction under rule 9.030(a)(3), (b)(3), or (c)(3) must be served by e-mail under rule 2.516(b)(1) and in paper format under rule 2.516(b)(2). Because Florida Rule of General Practice and Judicial Administration 2.516(b), titled “Service of Pleadings and Documents; Service; How Made,” contains guidance for paper service when required, rule 9.420(c), titled “Method of Service,” was amended to state that all documents must be served in conformity with rule 2.516(b).
- December 2023
On December 21, 2023, the Court further amended rule 9.020, titled “Definitions,” and rule 9.400, titled “Costs and Attorneys’ Fees.”
The Court amended rule 9.020 by adding a new subdivision to (h)(1) to include motions to vacate orders issued by general magistrates under Florida Family Law Rule of Procedure 12.490 (General Magistrates) to the list of motions that toll rendition of an order. The Court also retitled and amended subdivision (i) of the rule reflect that it applies to both appellate opinions and orders and to specify that an appellate order or opinion is deemed rendered when docketed.
The Court also added new subdivision (b)(4) to rule 9.400 to provide a uniform practice and procedure before the appellate courts in cases where the court issues an order of dismissal under rule 9.350, titled “Dismissal of Causes.” New rule 9.400(b)(4) establishes a seven-day period after an order of dismissal is rendered to serve a motion for appellate attorneys’ fees, if the otherwise applicable deadline for serving the motion has not yet expired.
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Over the course of 2023, the Appellate Court Rules Committee and the Florida Supreme Court were very active regarding appellate rule changes. Overall, the clarifying language used throughout the 2023 amendments to the Florida Rules of Appellate Procedure should assist practitioners and eliminate confusion.
*Samantha Wuschke is an associate attorney practicing civil defense in Tallahassee, Florida, and is the 2023-2024 Fellow for the Appellate Practice Section.
