Florida Supreme Court Amends Florida Rules of Appellate Procedure 9.020 and 9.400

On December 21, 2023, the Florida Supreme Court made a few changes to the Florida Rules of Appellate Procedure. The amendments will become effectively January 1, 2024 (at 12:02 a.m., the court specified). Read to the end to figure out what crafty little trick is no longer available to appellate attorneys in Florida.

First, Rule 9.020, containing definitions, is amended to include an additional motion under subsection (h)(1), the list of tolling motions that pause rendition (true finalization) of a final order. The list now includes motions to vacate orders issued by general magistrates in family law proceedings.

Second, Rule 9.020(i) is amended to specify that appellate orders and opinions are governed by the rule regarding rendition (i.e. true finalization). And the rule is also amended to clarify that an order or opinion is rendered when it is docketed—rather than, for example, when it is signed or served.

Third, Rule 9.400, regarding appellate fees and costs, is amended to create a new subdivision, subsection (b)(4), providing that when an appeal is dismissed before a motion for appellate fees is due, the motion for fees can be filed no later than 7 days after rendition of the order of dismissal.

So what’s the little trick foreclosed on here? Before this amendment, appellants who decided to dismiss their appeals before or during briefing could (if they were lucky) reduce the chance of the opposing side getting appellate attorney’s fees (assuming fees were available).

How was this accomplished? Let’s say an appellate attorney and his or her client decided to dismiss an appeal before filing an initial brief, because the client changed his or her mind about wanting to appeal. Let’s also say there had been serious motions practice during the pre-briefing stage—motions to dismiss, strike, etc. If the appellate attorney simply filed a notice of dismissal at 4:30 in the afternoon on a Tuesday, the motion likely would not be processed until the next day at earliest, giving the opposing side time to file a motion for appellate fees as the prevailing party. And the appellate fees could be substantial based on the motions practice.

But if the appellate attorney filed the notice of dismissal at 12:30 p.m., when the court clerks might be returning from lunch, but while opposing counsel would still be out, and perhaps would be wading through emails until 1:30 p.m. before seeing the filing, then the court sometimes processed the notice of dismissal before the motion for fees could be filed. Once the case was dismissed, the courts (in my experience) would deny the motions for fees as untimely.

Although this little trick has gone up in smoke for good, a few others are still available to the appellate practitioner with a keen eye and an attention to detail. If you need an appellate consultation, don’t hesitate to contact us through the website or call us at (689) 259-5010.