In re Amendments to the Fla. Rules of Appellate Procedure

• Decision Date: 06 November 2014
• Docket Number: No. SC14–227.,SC14–227.
• Parties: In re AMENDMENTS TO the FLORIDA RULES OF APPELLATE PROCEDURE.
• Court: Florida Supreme Court

183 So.3d 245 (Mem)

In re AMENDMENTS TO the FLORIDA RULES OF APPELLATE PROCEDURE.

No. SC14–227.

Supreme Court of Florida.

Nov. 6, 2014.

Wendy S. Loquasto, Chair, Appellate Court Rules Committee, Fox & Loquasto P.A., Tallahassee, FL, Eduardo I. Sanchez, Past Chair, Appellate Court Rules Committee, Miami, FL, John F. Harkness, Jr., Executive Director, and Heather Savage Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.

Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, FL, and Andrew McBride Stanton, Assistant Public Defender, Miami, FL, and Joshua Ryan Heller, Assistant Attorney General, Tallahassee, FL, Responding with comments.

PER CURIAM.

The Appellate Court Rules Committee (Committee) has filed its regular-cycle report proposing amendments to the Florida Rules of Appellate Procedure. The regular-cycle report is submitted pursuant to Florida Rule of Judicial Administration 2.140(b). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

Consistent with rule 2.140(b), the Committee published its initial proposals, received comments, and revised and republished some of the proposals before submitting them to the Court. As required by the rule, the proposed amendments were also submitted to the Board of Governors of The Florida Bar, which recommends adoption of the amendments. Following the filing of the Committee's report with this Court, the proposals were again published for comment, and several comments were received. The Committee has responded to the comments. The Court held oral argument on the proposed amendments.

The Committee proposes amendments to the following rules: 9.020 (Definitions); 9.100 (Original Proceedings); 9.110 (Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non–Jury Cases); 9.130 (Proceedings to Review Non–Final Orders and Specified Final Orders); 9.140 (Appeal Proceedings in Criminal Cases); 9.141 (Review Proceedings in Collateral or Post–Conviction Criminal Cases); 9.142 (Procedures for Review in Death Penalty Cases); 9.145 (Appeal Proceedings in Juvenile Delinquency Cases); 9.146 (Appeal Proceedings in Juvenile Dependency and Termination of Parental Rights Cases and Cases Involving Families and Children in Need of Services); 9.160 (Discretionary Proceedings to Review Decisions of County Courts); 9.180 (Appeal Proceedings to Review Workers' Compensation Cases); 9.190 (Judicial Review of Administrative Action); 9.200 (The Record); 9.210 (Briefs); 9.300 (Motions); 9.310 (Stay Pending Review); 9.320 (Oral Argument); 9.330 (Rehearing; Clarification; Certification); 9.331 (Determination of Causes in a District Court of Appeal En Banc); 9.340 (Mandate); 9.350 (Dismissal of Causes); 9.400 (Costs and Attorneys' Fees); 9.410 (Sanctions); 9.420 (Filing; Service of Copies; Computation of Time); 9.430 (Proceedings by Indigents); 9.600 (Jurisdiction of Lower Tribunal Pending Review); 9.720 (Mediation Procedures); 9.800 (Uniform Citation System); and 9.900 (Forms). The Committee also proposes the adoption of a new rule, rule 9.147 (Appeal Proceedings to Review Final Orders Dismissing Petitions for Judicial Waiver of Parental Notice of Termination of Pregnancy), the substance of which is not new but is being moved from rule 9.110(n) and adopted as a separate rule.

With respect to several of the rules, the Committee has submitted optional proposals as explained below. Having considered the Committee's report, the comments, and the Committee's responses to the comments, and having heard oral argument, we adopt the majority of the Committee's proposals and choose between its optional proposals as to one of the rules. With respect to one proposal, we decline to adopt the Committee's language but adopt a revised amendment instead. And finally, we decline to adopt one of the Committee's amendment proposals as explained below.

AMENDMENTS

Florida Rules of Appellate Procedure 9.020(i), Rendition, and 9.110(l ), Premature Appeals, are amended to clarify the relationship between the two rules. Rule 9.020(i) is amended to eliminate the language providing that postjudgment motions are abandoned upon the filing of a notice of appeal. The amended rule will allow an appeal to be held in abeyance until disposition of a postjudgment motion. Under rule 9.110(l ), premature appeals are subject to dismissal. The amendment adds language recognizing the exception provided in rule 9.020(i) and recognizing that the lower tribunal retains jurisdiction to render a final order. The amendment further provides that the court may allow the parties time to obtain a final order.

New rule 9.147 is not actually new. It is merely a readoption of existing rule 9.110, subdivision (n), as a separate rule. Subdivision (n) is accordingly deleted from rule 9.110.

Rule 9.100, Original Proceedings, governs the procedure applicable to original petitions. As it exists currently, subdivision (h) provides as follows:

(h) Order to Show Cause. If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal, or that review of final administrative action would not provide an adequate remedy, the court may issue an order directing the respondent to show cause within the time set by the court, why relief should not be granted. In prohibition proceedings such orders shall stay further proceedings in the lower tribunal.

The Committee proposes two optional amendments to this rule. The Committee's report states that its proposed changes are in response to a concern that "courts are avoiding the automatic stay [in prohibition cases] by requiring a response instead of issuing an order to show cause." Proposed option 1 would provide that the only way for a court to request a response to a writ petition is by issuing an order to show cause. The proposal would add the following sentence to subdivision (h): "The court shall request a response to a petition only through the issuance of an order to show cause." Thus the court's discretion to request a response in a prohibition case without staying the proceedings in the lower tribunal would be eliminated. Proposed option 2 would recognize the court's discretion to choose either path, i.e., either issue an order to show cause and stay the proceedings below (in prohibition cases) or request a response, which would not stay the proceedings. Option 2 would make explicit that which up to now has been the unwritten but well understood effect of the language of subdivision (h).

In order to continue to allow courts the discretion to request a response to a petition for writ of prohibition without bringing the proceedings in the lower tribunal to a halt, we adopt option 2 as reflected in the appendix.

Rule 9.110(k) governs review of partial final judgments and in pertinent part provides that "partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case." The Committee proposes adding the following language to subdivision (k): "A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a claim that is completely unrelated to the claims that remain pending." We decline to adopt this proposed language and instead look to the case of Mendez v. West Flagler Family Ass'n, 303 So.2d 1 (Fla.1974), as a guide to better distinguish those partial final judgments that are immediately appealable from those that are not. Under Mendez, a partial final judgment is appealable if it disposes of a "separate and distinct cause of action ... which is not interdependent with other pleaded claims." Id. at 5. We revise the proposed amendment and adopt it as shown in the appendix.

Rule 9.310, Stay Pending Review, provides in subdivision (a) that, except as specified, "a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief." The subdivision, as currently written, further provides: "A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both." Subdivision (b) of the rule provides in pertinent part:

If the order is a judgment solely for the payment of money, a party may obtain a stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest.

The Committee proposes two alternative amendments to subdivision (b). Proposed option 1 would provide that a party can only obtain a stay of a judgment that is "solely for the payment of money" by posting a "good and sufficient bond" in the amount of the principal plus twice the statutory rate of interest. Proposed option 2 would provide that if a party does not obtain an automatic stay of a money judgment, the court may, upon a showing of extraordinary circumstances, grant a stay which must be conditioned on posting bond, other conditions, or both. We decline to adopt either of the Committee's alternative proposed amendments and choose instead to leave rule 9.310 as it is.

We amend rule 9.420, Filing; Service of Copies; Computation of Time, as proposed. As currently written, rule 9.420(a)(2), Inmate Filing, provides that a document filed by "a pro se inmate confined in an institution" is presumed to have been filed on the date the inmate certifies that he or she placed the document in the hands of an institution official for mailing. As amended the rule provides that when the institution has a system designed for legal mail that records the date a document is placed in the hands of an institution official for mailing and the inmate uses that system,...