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Changes to the Florida Rules of Appellate Procedure.

On November 22, 1996, the Florida Supreme Court adopted the most extensive amendments to the Rules of Appellate Procedure since the rules were completely rewritten in 1977. These new rules went into effect on January 1, 1997. The new rules incorporate into the Rules of Appellate Procedure all appellate rules previously found in other rules of procedure, such as the workers' compensation rules and juvenile rules. The new Rules of Appellate Procedure are designed to establish one comprehensive set of rules governing appeals. An exhaustive review of the new rules, such as changes to the criminal, workers' compensation, administrative, and juvenile appellate rules, is beyond the scope of this article. The practitioner in these areas should read the revised rules. This article presents an overview of those rule changes practitioners are most likely to use.

Rule 9.010: Scope of the Rules

One of the most important changes to the rules is the provision in Rule. 9.010 that the Rules of Appellate Procedure supersede all conflicting statutes and, as provided in the Rules of Judicial Administration, all conflicting rules. The purpose of this rule is to clarify that, in appellate proceedings, the Rules of Appellate Procedure, and not some other rules--such as the civil rules or the probate rules--control.

Rule 9.100: Original Proceedings

The major change to this rule concerns petitions for writs of mandamus and prohibition directed to a judge or lower tribunal. The duty to respond to the appellate court's order to show cause is now placed expressly on the party opposing the relief requested, instead of on the judge or lower tribunal, who nevertheless is permitted--but not required--to respond.

Also, rule 9.100(f) now governs extraordinary review proceedings filed in circuit court, including certiorari proceedings to review quasi-judicial actions of local agencies and proceedings to review certain nonfinal orders of county courts, such as orders compelling discovery. This rule specifically supersedes Fla. R. Civ. P. 1.630 in appellate proceedings. When the original proceeding contemplates the taking of evidence, however, rule 1.630 applies. Appeals from final orders of county courts are still governed by rule 9.110.

The practitioner should note that under new rule 9.190(b)(3), appellate review of local administrative action--such as the orders of local zoning boards and city commissions--is now exclusively by certiorari as governed by rule 9. 100(f), except as provided by general law.[1] Rule 9.190(b)(3) is specifically intended to supersede all county and municipal ordinances and charter provisions to the contrary.[2]

Rule 9.110: Final Orders

The major change to rule 9.110 concerns the addition of new subdivision (n), which provides for appeal of some orders that determine insurance coverage. The rule reads: "Judgments that determine the existence or non-existence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be review either by the method prescribed in t rule or that in rule 9.130."[3]

The committee note to this amendment states: "Subdivision (n) was added by the committee in response to the opinion in Canal Ins. Co. v. Reed, 666 So. 2d 888 (Fla. 1996), suggesting that the Appellate Court Rules Committee consider an appropriate method for providing expedited review of these cases to avoid unnecessary delays in the final resolution of the underlying actions. Expedited review in the manner provided in rule 9.130 is available for such judgments in cases where a claim against the insured is pending and early resolution of the coverage issue is in the best interest of the parties. The notice of appeal should identify whether a party is seeking review pursuant to the procedure provided in this rule or in rule 9.130."[4]

Before the Supreme Court decided Canal Ins. Co. v. Reed, that court had held that if an alleged tortfeasor was sued, and filed a third-party action to determine whether his or her acts were covered under his or her insurance policy, a determination of that issue was not immediately appealable under rule 9.130(a)(3)(C)(iv) (providing for nonfinal review of orders that determine "the issue of liability in favor of a party seeking affirmative relief").[5] Therefore, the insurer had to wait until the end of the case to appeal that issue, or seek review by certiorari. District courts had also applied the same rule to first-party insurance coverage cases.[6] In Reed, the Supreme Court changed its mind. Holding that declaratory judgments have the force and effect of final judgments, whether or not they are final as to any particular litigation, the court held that declaratory judgments on the issue of insurance coverage can be immediately appealed, and suggested that the Appellate Court Rules Committee "consider an appropriate method for providing expedited review of these cases to avoid unnecessary delays in the final resolution of the underlying actions."[7] This new rule was the committee's answer.

Note that rule 9.110(n) expressly provides for review of "judgments," and only in those cases in which "a claim has been made against an insured and coverage thereof is disputed by the insurer."[8] The new rule seems designed primarily for duty-to-defend cases where an insured under a liability policy is sued and wants the insurer to provide a defense. A determination of whether the insurer is obligated to defend will substantially affect the proceedings in the liability case. The new rule gives parties the option of filing appeals under either rule 9.110 (final orders) or 9.130 (nonfinal orders). However, the new rule apparently does not apply to all insurance coverage cases. For example, it presumably would not apply to first-party cases seeking coverage for losses. An order determining coverage, but reserving the issue of damages, would not be appealable under this rule. It may, however, be appealable under rule 9.130(a)(3)(C)(iv) (providing for nonfinal review of orders that determine "the issue of liability in favor of a party seeking affirmative relief"). Courts disagree on this issue,[9] and the Supreme Court in Reed specifically declined to consider it.[10]

Also, practitioners should be aware that the Appellate Court Rules Committee recommended in 1997 that the Florida Supreme Court abolish rule 9.130(a)(3)(C)(iv) altogether. If the court adopts this recommendation, beginning with the next four-year cycle (2001) review of such orders by nonfinal appeal will no longer be available.

Rule 9.130: Nonfinal Orders

The major change in this rule was the addition of a new subdivision providing for nonfinal appeals of orders that determine "that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law."[11] This rule was also added at the request of the Florida Supreme Court.[12] The request and the rule are designed to make Florida law consistent with federal law in civil rights cases filed under Title 42 U.S. C. [sections] 1983. Jurisdiction in such cases is concurrent in the state and federal courts. In federal courts, government defendants have a right of immediate appeal from orders determining that they do not enjoy absolute or qualified immunity from suit.[13] These defendants now have an equal right of immediate review under state law.

Recently, the Appellate Court Rules Committee recommended that this new rule be abolished, based on the United States Supreme Court's recent decision holding that defendants in civil rights suits brought under [sections] 1983 in state court do not have a right under federal law to immediate appeal of orders denying qualified immunity.[14] The committee, however, is now reconsidering its recommendation. Moreover, even if it recommends abolishing the rule, the Florida Supreme Court may decide to retain the rule nevertheless, even if not federally mandated. The rule will probably remain in effect, anyway, at least through the next four-year cycle. Finally, even if the Supreme Court abolishes the rule, review of these issues may be available by certiorari.

Rule 9.210: Briefs

Three significant changes were made to rule 9.210. The first was a change in how briefs are to be bound, if at all. Rule 9.210(a)(3) previously required briefs to be "securely bound in book form and fastened along the left side."[15] The amendment requires that briefs now be bound "in a manner that will allow them to lie flat when opened."[16] The alternative method is to staple briefs in the upper left corner. This rule change would allow spiral binding of briefs, for example, but prohibit Velo binding.[17] The second change is that references to the record on appeal must now include not just the page number of the record cite, but the volume number as well.[18]

The third change in rule 9.210 concerns the statement of facts in answer briefs. Rule 9.210(c) previously provided that in the answer brief "the statement of the case and facts shall be omitted unless there are areas of disagreement, which should be clearly specified."[19] The new rule says simply that an appellee may omit a statement of facts.[20] An appellee, therefore, now has the option of whether to include a statement of facts in the answer brief, and may include a complete statement, not merely a line-by-line discussion of areas of disagreement.

Surprisingly, this was one of the most controversial changes the Appellate Court Rules Committee recommended. Appellate judges, in particular, were concerned that they would have to read two identical statements of the facts. This was also the only recommendation of the committee that the Board of Governors voted against adopting.[21] The Supreme Court adopted it anyway The court "recognize[d] that there are some instances in which it is difficult, if not impossible, for the appellee to intelligibly specify the areas of disagreement in the statement of the case and facts of the appellants."[22] The court also, however, "encourage[d] appellees not to rewrite the statement of the case and facts except where clearly necessary."[23] Lawyers should therefore present their own statement of facts in answer briefs only after weighing the relative costs and benefits of doing so.

New Subsections

In addition to the changes made within several subsections, and consistent with the goal of incorporating into the Florida Rules of Appellate Procedure all rules concerning appeals, entirely new subsections were established to deal with appeals in specific types of cases. These are:

Rule 9.145: Appeal proceedings in juvenile delinquency cases

Rule 9.146: Appeal proceedings in juvenile dependency and termination of parental rights cases and cases involving families and children in need of services

Rule 9.180: Appeal proceedings to review workers' compensation cases

Rule 9.190: Judicial review of administrative action

Citations

Finally, under revised rule 9.800(k) (citations to U.S. Supreme Court cases), one need not cite all three reporters (e.g., 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411). One may now cite only to the United States Reporter, if that citation is available (these books come out later than the Supreme Court Reporter), and if not, to the Supreme Court Reporter or the United States Law Weekly, in that order of preference.

Conclusion

The appellate rules have been extensively revised during the last four-year cycle. Practitioners should familiarize themselves with the revisions before filing briefs. In addition, those practicing in specialized areas, such as criminal, administrative, workers' compensation, or juvenile appeals, should read and understand the new sections added to the appellate rules. Failure to do so may result in, at best, the embarrassment of a nonconforming brief, and at worst, the humiliation of a dismissal.

[1] Review of final orders of code enforcement boards is one such exception.

[2] See FLA. R. App. P. 9.190(b)(3), Committee Note to 1996 amendment.

[3] FLA. R. App. P 9.110(n).

[4] FLA. R. App. P 9.110(n), Committee Note to 1996 amendment.

[5] See Travelers Ins. Co. v. Bruns, 443 So. 2d 959 (Fla. 1984).

[6] See Interamerican Car Rental, Inc. v. O'Brien, 618 So. 2d 760 (Fla. 3d D.C.A. 1993); Dixie Ins. Co. v. Beaudette, 474 So. 2d 1264 (Fla. 5th D.C.A. 1985).

[7] 666 So. 2d at 892.

[8] FLA. R. App. P 9.110(n).

[9] Compare Ins. Co. of North America u. Querns, 562 So. 2d 365 (Fla. 2d D.C.A. 1990) (allowing such an appeal), with Liberty Mut. Ins. Co. v. Lone Star Industries, 556 So. 2d 1122 (Fla. 3d D.C.A. 1989) (denying review). For a more extensive discussion of this issue, see Cantero, Non-Final Review of Insurance Coverage Issues: Wading through the Quagmire, 69 FLA. B.J. 9 (Oct. 1995).

[10] 666 So. 2d at 890 n.3.

[11] FLA. R. App. P. 9.130(a)(3)(C)(viii).

[12] See Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994).

[13] See Mitchell v. Forsyth, 472 U.S. 511 (1985).

[14] Johnson v. Fankell, 10 Fla. L. Weekly Fed. S537 (June 9, 1997). The case was not intended to overrule Mitchell v. Forsyth as to cases filed in federal court. It merely held that state courts are not required to provide a right to immediate appeal as federal courts do.

[15] See FLA. R. App. P 9.210(a)(3) (1993).

[16] FLA. R. App. P 9.210(a)(3) (1997).

[17] Velo binding is a method of binding with hard plastic strips along the front and back sides, essentially sealing the left side of the document. Such binding does not allow a brief to lie flat when opened.

[18] FLA. R. App. P. 9.210(b)(3) (1997). For example, "R. 263" will now be "R2: 263."

[19] FLA. R. App. P. 9.210(c) (1993).

[20] FLA. R. App. R 9.210(c) (1997).

[21] In re Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773, 776 (Fla. 1996).

[22] Id. at 776.

[23] Id.

RELATED ARTICLE: The Florida Bar Journal Article Guidelines

The primary purpose of articles and columns is to educate or inform the reader on issues of substantive law and practical concern to lawyers.

Articles submitted for possible publication should be typed on 8 & 1/2 by 11 inch paper, double-spaced with one-inch margins. Only completed articles will be considered (no outlines or abstracts).

Citations should be consistent with The Bluebook: A Uniform System of Citation. Footnotes must be concise and placed at the end of the article. Excessive footnotes are discouraged.

Lead articles may not be longer than 18 pages, including footnotes, and will be reviewed by members of The Florida Bar Journal Editorial Board. The board, which is composed of lawyers practicing various areas of law, has discretion over the acceptability of lead articles.

The board prefers not to review articles submitted simultaneously to other publications and requests notification from the author that the article or any version of it has ever been published or is pending publication in another periodical. Review is usually completed in six weeks.

Columns may be submitted directly to section column editors. Length of columns is 12 pages including footnotes.

Unsolicited manuscripts may be submitted to Editor, The Florida Bar Journal, 650 Apalachee Parkway, Tallahassee, Florida 32399-2300

Raoul G. Cantero III is a shareholder in Adorno & Zeder, P.A., a Miami-based law firm. He received his B.A., summa cum laude, from Florida State University in 1982 and his J.D., cum laude, from Harvard Law School in 1985. He is board-certified in appellate practice. He is a member of The Florida Bar's Appellate Court Rules Committee and the Executive Council of the Appellate Practice and Advocacy Section.

This column is submitted on behalf of the Appellate Practice and Advocacy Section, Christopher L. Kurzner, chair, and Jacqueline E. Shapiro, editor.
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Author:Cantero, Raoul G., III
Publication:Florida Bar Journal
Date:Dec 1, 1997
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