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Summer 2012
IN THIS ISSUE
d&G Lawyer News

  • Frequently Asked Questions
  • Q. A Florida state court just entered an important non-final order against my client. Should I file a motion for reconsideration before I seek appellate review of the non-final order?

    A. Florida state court judges generally have authority to reconsider their own non-final orders at any time. So, if you believe that your judge might be willing to change his or her ruling, a motion for reconsideration might be worthwhile. However, if you file a motion for reconsideration, keep in mind that such motions generally will not toll the 30-day jurisdictional deadline to appeal or seek certiorari review of a non-final order. If you fail to timely file a notice of appeal or a petition for writ of certiorari within that 30-day period, you will lose the opportunity to seek immediate review of the non-final order.

    Q. Is it improper to cite a per curiam affirmed ("PCA") decision without opinion as legal authority in an appellate brief?

    A. An appellate court's per curiam affirming decision without opinion may establish the "law of case" in the case it was issued, but it has no precedential value in other cases. Citation to a PCA issued by one appellate court has no relevance to and is properly excluded from an appellate brief filed in a different appellate court. However, citing a PCA to the same court that issued it, is appropriate to persuade that court to adopt the same position in a subsequent similar appeal in that same court. See, Dept. of Legal Affairs v. Dist. Ct. of Appeal, Fifth Dist., 434 So.2d 310 (Fla.1983).

    Q. While my appeal of a non-final order was pending in a Florida district court of appeal, the trial court entered a final judgment. What should I do?

    A. When an appeal of a non-final order is pending in a Florida district court of appeal, the trial judge generally lacks jurisdiction to enter a final judgment disposing of the case, and such a judgment would be considered void. If you are the appellant and the final judgment is adverse to your client, you should consider filing a motion to vacate the final judgment, pending the outcome of your appeal. If you are the appellant and the final judgment is in favor of your client, you should consider filing a motion asking the appellate court to relinquish jurisdiction to allow the trial court to reissue the favorable final judgment. After the trial court reissues the favorable judgment, you should voluntarily dismiss your appeal of the non-final order if that judgment has rendered your appeal moot.

    Q. My opponent filed an untimely notice of appeal in Florida state court. I filed a motion to dismiss the appeal, but the appellate court denied my motion. What should I do?

    A. If the appellate court lacks jurisdiction to hear the untimely appeal, you should consider filing a petition for writ of prohibition to prevent the appeal from going forward. If the untimely appeal is pending in a circuit court acting in its appellate capacity, the petition for writ of prohibition should be filed in the district court of appeal. If the untimely appeal is pending in a district court of appeal, the petition for writ of prohibition should be filed in the Florida Supreme Court.

    Q. I filed my notice of appeal in the wrong court, but did not discover the problem until after the 30-day jurisdictional time period to appeal expired. My opponent has filed a motion to dismiss my appeal. What should I do?

    A. Florida Rule of Appellate Procedure 9.040(b)(1) states, "If a proceeding is commenced in an inappropriate court, that court shall transfer the cause to an appropriate court." Therefore, as long as your notice of appeal was timely filed, you should request the current court to transfer your appeal to the proper court.

    Q. I filed a notice of appeal concerning a non-final order that is not listed in Florida Rule of Appellate Procedure 9.130, and my opponent has filed a motion to dismiss my appeal. What should I do?

    A. Florida Rule of Appellate Procedure 9.040(c) states, "If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy." Also, Rule 9.040(d) states, "At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits." So, just because your non-final order is not one of the types of orders listed in Rule 9.130, that does not necessarily mean your case must be automatically dismissed. Many non-final orders are subject to certiorari review. Consequently, if your non-final order is reviewable by certiorari and your notice of appeal was timely filed within the 30-day jurisdictional time period of Rule 9.100(c)(1), you can ask the appellate court to consider your timely notice of appeal combined with your initial brief to constitute the equivalent of a petition for writ of certiorari. If your initial brief has already been filed, you should also move for leave to amend it to make sure that it includes the necessary elements for obtaining certiorari review.

    Q. I need an appellate lawyer. Who can I contact?

    A. David Caldevilla is a Board Certified Appellate Lawyer, is AV-rated by Martindale-Hubbell, and has been listed as a “Super Lawyer” in appellate practice by Florida Super Lawyers magazine and as one of Florida Trend magazine's "Legal Elite" in appellate practice. He routinely handles appeals and extraordinary writs, and frequently provides trial support in complex cases requiring appellate foresight. He can be reached at (813) 229-2775 or dcaldevilla@dgfirm.com.

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