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Motion practice in the district courts of appeal.

Motion practice is a function of both trial and appellate litigation. In the trial court, the primary method of moving a case forward and preparing it for trial occurs through the use of pretrial motions. Pretrial motions can be critical in shaping a case and resolving issues on their merits prior to trial.

In appellate courts, however, the focus of the judicial process rests primarily on the written briefs. Although motions and oral arguments have their role in this process, the merits of an appeal are almost always decided based upon the arguments presented in the briefs. Because the briefs form the cornerstone for an appellate decision, appellate court procedures likewise center on the briefs. In this context, motion practice in the appellate courts, in some respects, departs from the normal procedure; it asks the court to address an isolated issue in the appeal, perhaps even before the appellate record is complete, without the knowledge that a thorough review of the record and the briefs might provide.

In addition, trial counsel often gains a certain level of confidence in the predictability and uniformity of a trial court's resolution of motions. Such confidence is not as easily attained by appellate counsel. Trial motions are filed with and decided by an individual judge assigned to the case. They are generally resolved only after counsel has had the opportunity to argue the motion to that judge and to address any concerns the judge may have regarding the motion or the relief requested. By contrast, the infrequent motions filed in appellate courts are dispersed among a number of judges with whom counsel may have had no contact before the motion is decided. While appellate opinions are published and provide guidance to counsel (and perhaps other judges) in future appeals, appellate orders entered on motions are usually unpublished and known only to those parties and their counsel who receive them.

These unique characteristics of appellate motion practice provide challenges for the appellate practitioner. The type of motion practice that is successful before the trial court may be unsuccessful, or even a liability, on appeal. A familiarity with the motion process on appeal and the most common motions filed in appellate courts is essential to increase the efficacy of such motions.

The most common motion filed in an appeal is a motion for an extension of time. Pursuant to Florida Rule of Appellate Procedure 9.300(a), a motion to extend time "shall" contain a certificate that the moving party's counsel has consulted with opposing counsel and is authorized to represent that opposing counsel has no objection or will otherwise promptly file an objection. At least one district court has indicated that it routinely denies motions that lack this certificate. (1) It may be advisable to specifically title the motion "unopposed motion for extension of time" when opposing counsel has acquiesced to the extension to provide the reviewing judge or staff an immediate understanding that the motion is not contested.

The antithesis of the motion to extend time is the motion to expedite an appeal. Although these motions are not often granted, perhaps this is because they are often unwisely filed. Generally, no individual appeal should take precedence over others filed by equally anxious litigants. However, some isolated cases merit an expedited review, most notably those involving the placement and best interests of children (dependency or termination of parental rights cases or cases that have resulted in a change of custody). Even in a case in which expedited relief may be appropriate, however, it is imprudent to file numerous motions to extend time for the filing of a brief and then, once the brief is filed, to the court and opposing counsel to expedite the case. Instead, counsel should file a prompt motion to expedite at the commencement of the case with a proposed schedule for the filing of briefs--a schedule with which counsel intends to comply.

Another common procedural motion is a motion to strike all or a portion of the opposing party's brief. These motions are filed when the brief violates some procedural rule; for example, by including extra-record facts or failing to include any record citations in the statement of the facts. In general, these motions should be used sparingly, and only after a strategic assessment as to whether the motion will be helpful. A motion directed at minor rule violations will have little or no substantive effect on the case and may be perceived by the court as an unnecessary delay or expense tactic. In some cases, the movant may be calling more attention to a fact rather than convincing the court to ignore it. Because the focus of the appellate court rests on the briefs, it may be more effective to point out any serious procedural errors in the brief. (2) However, if the foibles contained in the brief are such that they will negatively affect a party's ability to respond effectively to the arguments raised or the court's ability to comprehend or review the case, a motion may be advisable.

A relatively rare, but sometimes vital, motion is a motion to relinquish jurisdiction to the circuit court. In direct appeals of final orders, once the notice of appeal is filed, jurisdiction vests in the district court and the circuit court is precluded from revisiting the final judgment. (3) In some cases, however, a simple clarification by the circuit court might assist the appellate court in its review and contribute to judicial efficiency. For example, in some cases the trial court has entered an order that is intended to be final but lacks the "magic language" to make it so. In such a case, relinquishing jurisdiction to permit the trial court to correct the error is more efficient than dismissing the appeal and requiring the appellant to refile the notice of appeal in the future. A motion to relinquish jurisdiction may also be worthwhile when the trial court has not properly explained the reasoning for its decision and some explanation is either required by law or would assist the appellate court's review.

The one dispositive motion a party may file is a motion to dismiss the appeal. This motion is used most often to question the appellate court's jurisdiction, including the timeliness of the appeal. (4) This type of dispositive motion should be filed as soon as practicable to forestall unnecessary action by the appellate court on the merits of the appeal. (5) If the motion is filed before the appellate record has been prepared, the motion should include an appendix that provides the court with any document necessary to decide the motion. Regarding voluntary dismissals, it is important to note that the filing of a notice of voluntary dismissal does not always result in the dismissal of the appeal; a district court has the discretion to reject the appellant's request, retain jurisdiction, and proceed with the appeal. (6)

Probably the most common substantive motion filed in appeals is the motion for appellate attorneys' fees. In almost all cases, a party cannot recover appellate attorneys' fees unless that party files a motion with the appellate court and obtains a ruling that the party is entitled to his or her appellate attorneys' fees. (7) A motion for appellate attorneys' fees must be served "not later than the time for service of the reply brief." (8) The motion must specify the basis upon which fees are requested, whether under the provisions of a designated contract or by reference to a specific statute. It is important to note that costs, unlike attorneys' fees, are taxed by the lower tribunal based upon a motion that must be filed with that tribunal within 30 days after the appellate court issues its mandate. (9) Thus, no motion for costs should be filed in the district court.

Parties often give short shrift to motions for appellate attorneys' fees, even though in many cases the amount of attorneys' fees is substantial and may even exceed the amount of the underlying judgment. With so much at stake, the attorney filing such a motion should submit a detailed motion, supported with appropriate legal research and argument. The attorney should also specify the type of order that is requested. In some cases, an award of attorneys' fees might be contingent upon the outcome of further proceedings. In others, there may be more than one basis for attorneys' fees and the differing bases may result in dissimilar awards. The more accurately and completely the motion addresses these issues, the greater the likelihood that the resulting order will provide appropriate and detailed relief.

Once an opinion has issued, the parties may file motions for rehearing, motions for rehearing en banc, motions for clarification, motions for certification of a question or conflict to the Florida Supreme Court, or some combination of these motions. The motions must be timely and the contents must comply with the requirements of Rules 9.330 and 9.331(d). Note that these rules contain very specific requirements for motions seeking a written opinion when a per curiam affirmance has issued (10) and for motions seeking a rehearing en banc. (11)

It is important to note that Rule 9.330(a) permits motions for rehearing and clarification regarding "an order." As a result, a party may seek rehearing of orders as well as opinions. This may be critical for addressing an oversight in an order on appellate attorneys' fees, such as the failure to specify on what grounds the fees were granted or the failure to make the granting of attorneys' fees conditional on the result of further proceedings.

No discussion of appellate motions would be complete without addressing the filing of responses to motions. Rule 9.300(a) provides, "A party may serve one response to a motion within 10 days of service of the motion." The Fifth District has held that the use of the word "may" in this rule means that no response is required and, therefore, the failure to file a response should not act as a waiver of any objection to the entry of an inappropriate order. (12) As noted in Mercury Casualty Co. v. Rural Metro Ambulance, Inc., 909 So. 2d 408, 410 (Fla. 5th DCA 2005), however, other courts have denied motions for rehearing directed to orders awarding appellate attorneys' fees when the movant did not initially respond and object to the motion for fees. (13) A practitioner is better safe than sorry; it is advisable to respond to each appellate motion to which the practitioner has any objection.

Appellate motion practice may appear to be shrouded in secrecy. Motions are filed and orders issued without any interaction between the litigants and the courts. Appellate practitioners can obtain a clear view, however, by taking steps to familiarize themselves with the appellate courts' procedures for handling motions. While motions may not be the norm in an appellate proceeding, their effective use may prove crucial in some cases.

(1) See Merritt v. Promo Graphics, Inc., 679 So. 2d 1277, 1277 (Fla. 5th D.C.A. 1996); see also Publix Supermarkets, Inc. v. Arnold, 707 So. 2d 1161 (Fla. 5th D.C.A. 1998) (imposing sanctions of $250 against counsel who misrepresented in certificate that he had contacted opposing counsel when instead he had delegated the task to his secretary or assistant).

(2) In this respect, it is important to note that the judges assigned to hear a motion in the district court of appeal are often not the judges assigned to hear the merits of the appeal. In the Second District, motions filed before the case is perfected are randomly assigned to "motions panels" as they arrive, and that panel may or may not include judges from the panel of judges thereafter assigned to decide the merits of the case. In the Fourth and Fifth districts, a case is assigned a "motion(s) panel" when it is filed, which is a separate and distinct panel from the panel of judges that will ultimately decide the merits. Under these circumstances, a motion intended to strategically inform a judge who will decide the case about the merits of the appeal will fall flat. More importantly, a judge deciding the motion will not have the familiarity with the record, nor the need to become familiar with it in the future, that may be required to appropriately analyze the issues raised in the motion. An appellate practitioner may want to inquire as to how the relevant district court of appeal assigns and determines motions before filing motions with the court. This information may be readily available through a call to the clerk's office or a perusal of the court's official Web site.

(3) Fla. R. App. p. 9.600; cf. Fla. R. App. p. 9.130(f) (addressing jurisdiction of the lower court in nonfinal appeals).

(4) There are also motions to dismiss that argue the appellant's acceptance of the benefits of a judgment estops the appellant from pursuing reversal on appeal. See, e.g., Grant v. Wester, 679 So. 2d 1301 (Fla. 1st D.C.A. 1996). These motions are rare, however, and even more rarely granted.

(5) As a corollary to this principle, some appellants file a "motion to determine jurisdiction" if, to protect themselves, they have filed a notice of appeal regarding an order for which the appellate court's jurisdiction is debatable. This permits the court to address jurisdiction before briefing and other work is expended on the appeal.

(6) See Hammerl v. State, 779 So. 2d 410, 411 n.1 (Fla. 2d D.C.A. 2000).

(7) But see Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678, 679 (Fla. 2d D.C.A. 1991) (involving appellate attorneys' fees in probate actions).

(8) FLA. R. APP. p. 9.400(b).

(9) FLA. R. APP. p. 9.400(a).

(10) See FLA. R. APP. P. 9.330(a).

(11) See FLA. R. APP. P. 9.331(d)(2).

(12) See Mercury Casualty Co. v. Rural Metro Ambulance, Inc., 909 So. 2d 408 (Fla. 5th D.C.A. 2005).

(13) See Green Cos., Inc. v. Kendall Racquetball Invs., Ltd., 658 So. 2d 1119 (Fla. 3d D.C.A. 1995).

Kristin A. Norse is a career attorney at the Second District Court of Appeal with Judge Chris W. Altenbernd. Before joining the court in 1999, she worked in private practice, primarily in the areas of civil litigation, family law, and appellate practice. She received her J.D. from Boston University.
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Title Annotation:Florida
Author:Norse, Kristin A.
Publication:Florida Bar Journal
Date:Apr 1, 2007
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