Florida Appellate Practice and Advocacy Eight Edition

Updates (November 3, 2020)

§2.3 Simply because a case may present “federal issues,” that does not provide a basis for Florida Supreme Court review. Mallet v. State, 280 So. 3d 1091 (Fla. 2019).

§2.4 & §2.5 Effective January 1, 2021, Section 26.012, Florida Statutes is amended so that most county court appeals go to the district court of appeal, rather than the circuit court.

§3.6 State v. Johnson, 295 So. 3d 710 (Fla. May 2020), reiterates that the party opposing the strike must make a specific objection to the proffered race-neutral reason to preserve the claim the trial court erred in concluding the proffered reason was genuine.

§4.4 Effective January 1, 2021, Rule 9.110(d) is amended to require the notice of appeal indicate the pendency of any motion postponing rendition under Rule 9.020(h). It also requires that within ten days of either withdrawal of such a motion or rendition of the order being appealed, the appellant shall file a notice indicating the withdrawal or a conformed copy of the signed, written order disposing of the motion. The intent is to discourage filing notices of appeal before rendition of the order being appealed.

Also effective in 2021, Rules 9.440(b),(c) address counsel entering a limited appearance in a appeal. Rule 9.900(n) has a form.

§4.6 Burns v. Burns, 278 So. 3d 56 (Fla. 4th DCA 2019), holds the clerk must accept a notice of appeal even though the filing fee was not paid through the portal when the notice was filed.

§4.12 The full cite is Meus v. Eagle Family Discount Stores, Inc., 499 So. 2d 840 (Fla. 3d DCA 1986).

Effective January 1, 2020, the Florida Supreme Court adopted Rule 1.535 to govern the procedure for seeking a remittitur or additur.

§4.13 Cite update: Fla. Organic Aquaculture, LLC v. Advent Environmental Systems, LLC, 268 So. 3d 910 (Fla. 5th DCA 2019).

§4.27; 4.32; 8.13 Effective January 23, 2020, the Florida Supreme Court amended Rule 9.130 to eliminate the requirement that the denial of sovereign immunity (or immunity for a civil rights claim) be as a matter of law, thereby broadening the nonfinal review of such orders.

§7.4 Capital Development Group, LLC v. Buena Vista Terminal, LLC, 45 Fla. L. Weekly D1572 (Fla. 3d DCA July 1, 2020), sets for factors a court should consider in setting the amount of a bond in a case involving real property (and not a monetary judgment).

§7.13 Effective January 1. 2021, Rule 9.300(d) is amended so that motions filed in the Florida Supreme Court have the same tolling affect of motions in other Florida appellate courts.

§8.12 Hepco Data, LLC v. Hepco Medical, LLC, 45 Fla. L. Weekly D843 (Fla. 2d DCA April 15, 2020), granted certiorari and quashed an order denying taking depositions of 18 witnesses where the trial court had not addressed the materiality of any of the deponents or found good cause to preclude deposing them. Fagen v. Merrill, 293 So. 3d 1116 (Fla. 2d DCA 2020), granted certiorari and quashed an order requiring disclosure of the former husband’s financial information for the purpose of determining the former wife’s entitlement to attorney’s fees where the wife had yet to pursue her pending 1.540(b) motion that, if she prevailed, might have provided the basis to seek fees.

§10.4 Effective January 1, 2021, in cases not involving criminal or collateral criminal proceedings, a party that files a petition, brief, motion or other document that draws into question the constitutionality of a state statute or state constitutional provision must file a notice of constitutional question. The notice must state the question, identify the document raising it, and be served on the attorney general. Rule 9.425. Rule 9.900(m) has a form.

§11.6 Effective January 1, 2021, Rule 9.320 imposes requirements for requests for oral argument in the Florida Supreme Court, including a brief statement of why oral argument would enhance the court’s consideration of the issues.

§12.5 An insured is also entitled to an order awarding fees when the insured prevails on some issues in the appeal against the insurer. E.g., Shazam Auto Glass, LLC v. State Farm Mut. Automobile Ins. Co., 300 So. 3d 302 (Fla. 2d DCA 2020); see also, Danis Indus. Corp. v. Ground Improv. Techniques, Inc., 645 So. 2d 420 (Fla. 1994)(the prevailing on significant issues test does not apply to §627.428 fees, and the court can consider on which issues the insured prevailed in setting the fee).

§13.9 Cite update: Bank of Am., N.A. v. Atkin, 271 So. 3d 245 (Fla. 3d DCA 2019)

§14.22 Effective March 31, 2020, new Rule 9.120(f) authorizes a notice of cross-review. Rules 9.120(d) and 9.210 address briefing in the event of a notice of cross-review.

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