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THE NUTS & BOLTSOF APPELLATE PRACTICE
Presented as part of
FLORIDA DISPUTE RESOLUTIONCENTERS
23rd ANNUAL CONFERENCETREASURING THE PAST & SPIRIT OF
CHANGEJuly 30 - August 1, 2015
JW Marriott Grande Lakes, Orlando, Florida
Presented by Wendy S. LoquastoFox & Loquasto, P.A.
1201 Hays Street, Suite 100Tallahassee, FL 32301
(850) [email protected]
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mailto:[email protected]
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TABLE OF CONTENTS
GOAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OUTLINE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. The Nature & General Principles of Appellate Review. . .
. . . . . . . . . . . . . . 1A. DCAs Generally Have Final Appellate
Jurisdiction. . . . . . . . . . . . . . 1B. Error-Correcting Nature
of Appellate Courts.. . . . . . . . . . . . . . . . . . . 2C.
Preservation of Error Required by Contemporaneous Objection. . . .
2D. Fundamental Error. . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . 3E. Trial Courts Decision is
Presumed Correct.. . . . . . . . . . . . . . . . . . . . 3
1. Presumption of Correctness as to Factual Determinations. . .
. 42. Exceptions to Presumption of Correctness. . . . . . . . . . .
. . . . . 43. Tipsy Coachman Rule. . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 5
F. Appellants Burden of Proof.. . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 5G. Harmful Error. . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6H. Three-Judge Panels. . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . 7
II. Mechanics & Time Lines for Appeals. . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 7A. Different Times Apply to
Different Types of Appeal. . . . . . . . . . . . . 7
1. Civil appeals from final orders.. . . . . . . . . . . . . . .
. . . . . . . . . . 72. Discretionary review in supreme court from
DCA opinions. . . 83. Nonfinal orders 9.130. . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 84. Criminal appeals 9.140. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 85. Death
penalty cases 9.142. . . . . . . . . . . . . . . . . . . . . . . .
. . . . 86. Juvenile delinquency 9.145. . . . . . . . . . . . . . .
. . . . . . . . . . . . 87. Termination of parental rights &
dependency 9.146. . . . . . . 88. County court decisions 9.160. . .
. . . . . . . . . . . . . . . . . . . . . . 89. Probate &
guardianship 9.170.. . . . . . . . . . . . . . . . . . . . . . . .
810. Workers compensation 9.180.. . . . . . . . . . . . . . . . . .
. . . . . . 811. Administrative cases 9.190. . . . . . . . . . . .
. . . . . . . . . . . . . . . 8
B. Check for Orders Expediting the Appeal. . . . . . . . . . . .
. . . . . . . . . . . 8C. Extensions of Time in the Absence of a
Stay for Mediation. . . . . . . . 8D. Oral Argument. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 9E. Time for Disposition of an Appeal. . . . . . . . . . . . . .
. . . . . . . . . . . . . 10F. Motions for Rehearing, etc.. . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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G. Mandate.. . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . 10
III. Extraordinary Writs Just a Few Words. . . . . . . . . . . .
. . . . . . . . . . . . . . 10
IV. Standards of Review. . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 10A. What is the
Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 10B. Review of Factual Decisions. . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . 11
1. Competent Substantial Evidence. . . . . . . . . . . . . . . .
. . . . . . . 112. CSE & Clear and Convincing Evidentiary
Burden .. . . . . . . . 133. Factual Findings Based on Undisputed
Facts. . . . . . . . . . . . . 144. Questions of Weight,
Credibility & Conflicts in Evidence. . . 145. What is CSE?. . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 15
C. De Novo Review of Legal Decisions. . . . . . . . . . . . . .
. . . . . . . . . . . 151. Statutory Interpretation.. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 162. Construction of
Contracts.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
163. Summary Judgment Orders. . . . . . . . . . . . . . . . . . . .
. . . . . . . 164. Other De Novo Review Rulings. . . . . . . . . .
. . . . . . . . . . . . . . 16
D. Review of Discretionary Decision is by Abuse of Discretion. .
. . . . 171. Family Law Decisions. . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . 172. Evidentiary Issues.. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . 173. Trial
Procedural Matters.. . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 184. Jury Instructions. . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . 185. Post-trial Motions. . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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V. Why Mediate Appellate Cases?. . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . 18A. Appellee Has Little
Incentive to Settle.. . . . . . . . . . . . . . . . . . . . . . .
18B. Educating the Parties Regarding the Appellate Process. . . . .
. . . . . 18C. Global Settlement. . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 19D. Costs. . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 19E. Attorneys Fees. . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 19F. Risk of
Losing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 20
VI. Mediation Programs in Florida. . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 20A. Fifth District Court of
Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20B. Eleventh Circuit Court of Appeals. . . . . . . . . . . . . . .
. . . . . . . . . . . . 21C. Other Appellate Mediation Programs.. .
. . . . . . . . . . . . . . . . . . . . . . 22D. Private Mediation.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 22
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VII. Florida Appellate Mediation Rules. . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . 22
IX. Other Included Materials. . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . 24A. The Appeal of
Appellate Mediation: Making the Case for an Attractive
Dispute Resolution Tool, by Jeanette Bellon & Sharon C.
Degnan, Fla.Bar Journal, Vol. 83, No. 3 (March 2009). . . . . . . .
. . . . . . . . . . . . . 24
B. Florida Rules of Appellate Procedure 9.700-9.740. . . . . . .
. . . . . . . 24C. Fifth District Court of Appeal Mediation Program
Materials. . . . . . 24
1. Mediation FAQ.. . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 242. Mediation Questionnaire. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . 243. Confidential
Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 244. Response to Referral Order. . . . . . . . . . . . . . . .
. . . . . . . . . . . 245. Motion to Waive Fees with Affidavit. . .
. . . . . . . . . . . . . . . . 246. Joint Motion to Relinquish
Jurisdiction.. . . . . . . . . . . . . . . . . 247. Joint
Stipulation for Dismissal. . . . . . . . . . . . . . . . . . . . .
. . . . 248. Mediation Report. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . 249. Joint Motion for Extension of
Time.. . . . . . . . . . . . . . . . . . . . 24
D. 11th Circuit Kinnard Mediation Center Materials. . . . . . .
. . . . . . . . 251. Mediation in the Eleventh Circuit Court of
Appeals. . . . . . . . 252. Circuit Mediation Process (flow chart).
. . . . . . . . . . . . . . . . . 253. Private Mediator Procedures
of Mediation of Appeals. . . . . . 254. 11th Circuit Rules 33-1. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 255. Civil
Appeal Statement.. . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 256. Confidential Mediation Statement. . . . . . . . . .
. . . . . . . . . . . . 257. Brief Extensions. . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . 258.
Post-Settlement Dismissal Procedures. . . . . . . . . . . . . . . .
. . . 25
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GOAL
The goal of this presentation is to provide an understanding of
the appellateprocess for mediators and tools to aid them in
empowering the parties to resolvethe issues.
OUTLINE
I. The Nature & General Principles of Appellate Review
A. DCAs Generally Have Final Appellate Jurisdiction: Floridas
DistrictCourts of Appeal are generally the courts of last resort
for appeal because the FloridaSupreme Court has limited powers to
review. This point was explained in Whipplev. State, 431 So. 2d
1011 (Fla. 2d DCA 1983), as follows:
With Floridas rapidly growing population and enormous
appellatecaseload, if every litigant had a right of review in the
supreme court, thecourt would be so overwhelmed that it could not
possibly focus on theimportant cases. In fact, this was one of the
principal reasons which ledto the creation of the district courts
of appeal in 1957. When thesupreme court caseload reached 1,225
cases in 1955, the JudicialCouncil of Florida proposed creation of
the district courts of appeal.Their objective was to restrict
access to the Supreme Court of Florida inorder to avoid double
appeals and to make appellate justice more readilyavailable to
litigants by hearing appeals near the source. The
legislatureagreed, and on November 6, 1956, the voters
overwhelmingly adoptedan amendment to Article V of the Florida
Constitution providing forcreation of the district courts of
appeal. It was originally intended thatthe district courts were to
have final appellate jurisdiction in most cases.However, this
finality eroded as the supreme court began looking to trialrecords,
rather than to district court holdings to establish
conflictjurisdiction. . . . As the finality of the district courts
continued to erode,the supreme court caseload, which had decreased
to 555 in 1959,became even more staggering with 2,676 cases filed
in that court infiscal year 1978-79. About half of those were
petitions for conflictcertiorari. As a result of considerable
study, an amendment to Article Vof the Florida Constitution was
proposed to revise the jurisdiction of the
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supreme court and district courts of appeal. The amendment
wasadopted by the voters on March 11, 1980. The amendment limits
thesupreme courts mandatory review of district court of appeal
decisionsto those declaring invalid a state statute or provision of
the stateconstitution. It provides for discretionary review of
district courtdecisions declaring valid state statutes or expressly
construing aprovision of the state or federal constitution or
affecting a class ofconstitutional or state officers. Discretionary
review is also given inthose cases which expressly and directly
conflict with the decision ofanother district court of appeal or
the supreme court on the samequestion of law. The supreme court may
no longer search into therecord proper to determine whether a
district court affirmance createsa necessary conflict. Thus, the
district courts of appeal now have finalappellate jurisdiction in
most cases, as was originally intended.
Whipple, 431 So. 2d at 1013-14 (footnotes omitted).
B. Error-Correcting Nature of Appellate Courts: Appellate courts
are errorcorrecting courts. Whipple, 431 So. 2d at 1014, also
explains this point as follows: Under our present constitutional
scheme, the district courts of appeal engageprimarily in the
so-called error-correcting function to insure that every
litigantreceives a fair trial. This frees the supreme court to
discharge its judicialpolicy-making function of clarifying the law
and promulgating new rules of law. Inother words, appellate courts
exist not to supervise trial courts but to review forjudicial error
occurring in the trial court. Gamble v. State, 449 So. 2d 319, 322
(Fla.5th DCA 1984) (Cowart, J., dissenting).
C. Preservation of Error Required by Contemporaneous Objection:
In orderto appeal an issue, it must have been preserved for appeal.
In other words, the allegederror must have been brought to the
trial courts attention by contemporaneousobjection so the trial
court has an opportunity to correct the error. See Gamble v.State,
449 So. 2d 319, 322-23 (Fla. 5th DCA 1984) (explaining that
thecontemporaneous objection rule gives proper appreciation to the
respective functionsof the two judicial levels by allowing the
trial court to correct readily recognizableand technical errors and
avoid unnecessary appeals).
The Florida Supreme Court summarized the principles of
preservation of error
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by contemporaneous objection in Aills v. Boemi, 29 So. 3d 1105
(Fla. 2010). Thecontemporaneous objection requires these three
components to preserve error:
First, the party must make a timely, contemporaneous objection
at thetime of the alleged error. Second, the party must state a
legal groundfor that objection. Third, [i]n order for an argument
to be cognizableon appeal, it must be the specific contention
asserted as legal ground forthe objection, exception, or motion
below. While no magic words arerequired to make a proper objection,
we reiterate here that the concernarticulated in the objection must
be sufficiently specific to inform thecourt of the perceived
error.
Id. at 1108-09 (citations omitted).
D. Fundamental Error: In the absence of a contemporaneous
objection, theappellate courts may only consider an alleged error
for the first time on appeal if itconstitutes fundamental error,
that is, error that goes to the foundation of the case. This point
was explained by the Florida Supreme Court in Daniels v. State, 121
So.3d 409 (Fla. 2013), as follows:
To justify not imposing the contemporaneous objectionrule, the
error must reach down into the validity of thetrial itself to the
extent that a verdict of guilty could nothave been obtained without
the assistance of the allegederror. In other words, fundamental
error occurs onlywhen the omission is pertinent or material to what
the jurymust consider in order to convict.
In defining the scope of the fundamental error doctrine, we
haveexplained that a fundamental error is one that goes to the
foundation ofthe case or goes to the merits of the cause of action.
Further, wereiterated that appellate courts should employ the
doctrine offundamental error very guardedly.
Daniels, 121 So. 3d at 417 (citations omitted).
E. Trial Courts Decision is Presumed Correct: In appellate
proceedings,
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the decision of the trial court has a presumption of
correctness. Applegate v. BarnettBank of Tallahassee, 377 So. 2d
1150, 1151 (Fla. 1979). Because the presumptionof correctness is a
principle of appellate procedure, it applies in all appeals to
alltypes of trial-level decisions. Philip J. Padovano, Florida
Appellate Practice 19:2,at 359 (2015 ed.).
1. Presumption of Correctness as to Factual Determinations:
Appellate courts are required to give the evidence a
constructionfavorable to the prevailing party on review and to draw
all reasonableinferences concerning the facts in favor of the
prevailing party. SeeChicken N Things v. Murray, 329 So. 2d 302,
305 (Fla. 1976) (statingthat the reviewing court will give the
evidence a construction favorableto the prevailing party); Fawaz v.
Fla. Polymers, 622 So. 2d 492, 495(Fla. 1st DCA 1993) (Indulging in
the presumption that the appellee,as the prevailing party, is
entitled to the benefit of all reasonableinferences that can be
drawn from the evidence in a light most favorableto it . . . .),
distinguished on other grounds, E. Airlines v. Griffon, 654So. 2d
1194 (Fla. 1st DCA 1995).
2. Exceptions to Presumption of Correctness: The presumption
ofcorrectness does not apply to an order declaring a state statute
faciallyinvalid, because this is an issue of law and there is a
strong presumptionin favor of the validity of all statutes. Philip
J. Padovano, FloridaAppellate Practice 19:2, at 359 (2015 ed.); and
see Ocala BreedersSales Co. v. Fla. Gaming Ctrs., Inc., 731 So. 2d
21, 24 (Fla. 1st DCA1999) (explaining that Florida appellate courts
have resolved the conflictbetween the presumption of correctness
afforded trial courts and thepresumption of constitutional validity
of statutes by deferring to thelegislature in the enactment of
law), decision affd, 793 So. 2d 899 (Fla.2001).
Additionally, the presumption of correctness is not as strong
whenthere are competing presumptions, such as in summary judgment
caseswhen the appellate court is required to draw every possible
inference infavor of the party against whom summary judgment was
entered. PhilipJ. Padovano, Florida Appellate Practice 19.2 (2015
ed.); and seeHorning-Keating v. Employers Ins. of Wausau, 969 So.
2d 412, 418
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(Fla. 5th DCA 2007) (The presumption of correctness
generallyapplicable to all orders subject to appellate review is
relatively weak inreview of a summary judgment because the
appellate court is in no lessof a position than the trial court in
reviewing documentary evidence.).
3. Tipsy Coachman Rule: When a trial court reaches the right
result,but for the wrong reason, the appellate court may
nevertheless affirmunder the Tipsy Coachman Rule. See, e.g.,
Carraway v. Armour & Co.,156 So. 2d 494, 497 (Fla. 1963).
The pupil of impulse, it forcd him along,His conduct still
right, with his argument wrong;Still aiming at honour, yet fearing
to roam,The coachman was tipsy, the chariot drove home; * * *
Id. (quoting Oliver Goldmans poem Retaliation).
F. Appellants Burden of Proof: Because there is a presumption
ofcorrectness that attaches to the trial courts decision, it is the
appellants burden inappellate proceedings to demonstrate reversible
error. As explained in Applegate v.Barnett Bank of Tallahassee, 377
So. 2d 1150, 1152 (Fla. 1979), the appellant mustpresent the
appellate court with an adequate record to demonstrate the error,
whichincludes a transcript of the proceedings below. When a
complete record is notpresented to the appellate court by
appellant, the case will be affirmed, as explainedbelow:
In appellate proceedings the decision of a trial court has
thepresumption of correctness and the burden is on the appellant
todemonstrate error. The Applegates correctly point to the lack of
a trialtranscript or a proper substitute as fatally flawing the
appellate courtsruling. The written final judgment by the trial
court could well be wrongin its reasoning, but the decision of the
trial court is primarily whatmatters, not the reasoning used.
Even when based on erroneous reasoning, a conclusion ordecision
of a trial court will generally be affirmed if the evidence or
analternative theory supports it. However, a misconception by the
trial
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judge of a controlling principle of law can constitute grounds
forreversal.
The trial courts imposition of a constructive trust could well
besupported by evidence adduced at trial but not stated in the
judges orderor otherwise apparent in the incomplete record on
appeal. The questionraised by Barnett Bank clearly involves
underlying issues of fact. Whenthere are issues of fact the
appellant necessarily asks the reviewing courtto draw conclusions
about the evidence. Without a record of the trialproceedings, the
appellate court can not properly resolve the underlyingfactual
issues so as to conclude that the trial courts judgment is
notsupported by the evidence or by an alternative theory. Without
knowingthe factual context, neither can an appellate court
reasonably concludethat the trial judge so misconceived the law as
to require reversal. Thetrial court should have been affirmed
because the record broughtforward by the appellant is inadequate to
demonstrate reversible error.
Applegate, 377 So. 2d at 1152 (citations omitted).
G. Harmful Error: Not just any error will result in reversal on
appeal. Theappellant is required to prove that the alleged error
was prejudicial not harmlesserror. Section 59.041, Florida Statutes
(2015), codifies this rule as follows:
No judgment shall be set aside or reversed, or new trial
grantedby any court of the state in any cause, civil or criminal,
on the ground ofmisdirection of the jury or the improper admission
or rejection ofevidence or for error as to any matter of pleading
or procedure, unlessin the opinion of the court to which
application is made, after anexamination of the entire case it
shall appear that the error complainedof has resulted in a
miscarriage of justice. This section shall be
liberallyconstrued.
See Young v. Becker & Poliakoff, P.A., 88 So. 3d 1002, 1013
(Fla. 4th DCA 2012)(Only when it appears that evidentiary errors
injuriously affected the substantialrights of the complaining party
will a judgment be reversed. Appellant has the dutyto demonstrate
not only error in evidentiary rulings, but prejudice from such
rulingsas well. (Citations omitted.)).
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H. Three-Judge Panels: Appellate decisions at the DCA level are
made bythree-judge panels and appellant must convinced at least two
of the three judges thatreversible error occurred to obtain
relief.
The majority opinion on an issue of law establishes the law of
the case, whichwill control the case on future legal proceedings on
remand. Greene v. Massey, 384So. 2d 24, 27 (Fla. 1980) (An opinion
joined in by a majority of the members of theCourt constitutes the
law of the case. A concurring opinion does not constitute thelaw of
the case nor the basis of the ultimate decision unless concurred in
by a majorityof the Court. ); and see Lendsay v. Cotton, 123 So. 2d
745, 746 (Fla. 3d DCA 1960)(A concurring opinion has no binding
effect as precedent; such an opinion representsonly the personal
view of the concurring judge and does not constitute the law of
thecase.).
Per curiam affirmances or PCAs have no precedential value. See
Dept ofLegal Affairs v. Dist. Ct. of Appeal, 434 So. 2d 310, 311
(Fla. 1983) (The issue iswhether a per curiam appellate court
decision with no written opinion has anyprecedential value. We hold
that it does not.); and see Acme Specialty Corp. v.Miami, 292 So.
2d 379, 380 (Fla. 3d DCA 1974) (As noted before, this was a
percuriam opinion with no reasons or authorities given and,
although this may besufficient to support a plea of res judicata as
between the original parties, such percuriam affirmance opinion
does not stand for any general pronouncement ofprinciples of law
that might have been urged by the parties in their pleadings
andbriefs.).
II. Mechanics & Time Lines for Appeals
A. Different Times Apply to Different Types of Appeal: Always be
sureto check the appellate rule applicable to the specific appeal
for timing elements,because they may vary. There are specific rules
for the various types of appeals:
1. Civil appeals from final orders Florida Rule of
AppellateProcedure 9.110,
2. Discretionary review in the supreme court from DCA
opinions
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rule 9.120,3. Nonfinal orders 9.130,4. Criminal appeals 9.140,
5. Death penalty cases 9.142, 6. Juvenile delinquency 9.145, 7.
Termination of parental rights & dependency 9.146, 8. County
court decisions 9.160, 9. Probate & guardianship 9.170, 10.
Workers compensation 9.180, and 11. Administrative cases 9.190.
The times for when the index (table of contents for the record)
and record aredue and when the initial brief is due varies under
the appellate rules depending uponthe type of appeal, so the
specific rule must always be consulted. For instance, incivil
appeals, the clerk of court is required to prepare the index within
50 days ofwhen the notice of appeal is filed and the initial brief
is due within 70 days. See Fla.R. App. P. 9.110(e) & (f). In
appeals from nonfinal orders, no index or record isprepared by the
clerk, rather the parties submit appendices, and the initial brief
is duewithin 15 days of the filing of the notice of appeal. See
Fla. R. App. P. 9.130(e) &(e). Therefore, the window for
mediation is very small in appeals from nonfinalorders. For
administrative appeals, the same 50- and 70-day time periods
applicableto civil appeals apply. See Fla. R. App. P. 9.190(a).
However, in workerscompensation appeals, the record is prepared
within 60 days of when the notice ofappeal is filed or when the
order determining insolvency is determined, and the initialbrief is
due 30 days thereafter. See Fla. R. App. P. 9.180 (f)(7) &
(h).
B. Check for Orders Expediting the Appeal: In some appeals,
particularlyfamily law cases involving children and workers
compensation, the DCAs mayprovide expedited treatment to the
appeal, prohibiting extensions of time for briefingexcept upon a
showing of good cause. Consequently, it is important to know if
therehave been any court orders entered in the appeal that control
the timing of the appealin the particular case.
C. Extensions of Time in the Absence of a Stay for Mediation:
The timingfor when the brief is due and the courts policies for
extensions of time for briefingare important, because there may or
may not be an automatic stay entered formediation. (There is a stay
in the 5th DCA, but not at the 11th Circuit.) If there is no
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stay of the appellate proceeding, then the appeal will continue
to progress under theapplicable timing requirements and the parties
will need to obtain extensions of thosetime limitations to
participate in mediation.
In most state appeals, once the initial brief is filed, appellee
then has 25 days(20 plus 5 days for mailing) to serve the answer
brief. See Fla. R. App. P. 9.110(f),9.210(f), 9.420(e); Fla. R.
Jud. Admin. 2.514(b). The reply brief is due within 25days. See
Fla. R. App. P. 9.110(f) & 9.210(f).
Important Note: The addition of the five days for service by
mail oremail is set out in Florida Rule of Appellate Procedure
9.420(e), by itsadoption of Florida Rule of Judicial Administration
2.514. The five-dayrule remains in effect despite the innovation of
electronic filing andservice. See Fla. R. Jud. Admin.
2.516(b)(1)(D)(iii) (stating that emailservice is treated as
service by mail for computation of time). Nevertheless, the Rules
of Judicial Administrative Committee (RJAC)passed an amendment to
rule 2.514 at its January 2015 meeting whichwill eliminate the
five-day rule:
(b) Additional Time after Service by Mail orE-mail. When a party
may or must act within a specifiedtime after service and service is
made by mail or e-mail, 5days are added after the period that would
otherwise expireunder subdivision (a).
As the immediate past chair of the Appellate Court Rules
Committee(ACRC), I can say that an amendment was passed by the ACRC
to rule9.420(f) that will continue the addition of five days for
service by email, but this is an issue all lawyers need to be aware
of because RJACschange will affect all areas of practice.
D. Oral Argument: Although oral argument may be requested in an
appealsunder Florida Rule of Appellate Procedure 9.320, it is
discretionary and the appellatecourts are selective in the cases in
which they grant oral argument. Consequently,there is no guarantee
that the parties will even have the opportunity to present
theircase to the appellate court by any other means than their
brief. Even if oral argumentis granted, it is usually limited to 15
minutes per side and the parties are not even
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permitted to sit at counsel table (unlike at the trial court
level). Indeed, mostappellate practitioners discourage their
clients from attending oral argument.
E. Time for Disposition of an Appeal: There is no time rule as
to when thecourt must dispose of a case, however, the DCAs have an
internal policy of disposingof cases within 180 days of oral
argument or conference.
F. Motions for Rehearing, etc.: Motions for rehearing,
clarification,certification, rehearing en banc, and for written
opinion are under Florida Rules ofAppellate Procedure 9.330 &
9.331 are rarely successful and most are summarilydenied.
G. Mandate: Mandate, which is the courts last official act
before closingits file, is issued after the expiration of 15 days
from the date of the order or decisiondisposing of the case. See
Fla. R. App. P. 9.340(a). The appellate court losesjurisdiction
over the case once mandate is entered.
III. Extraordinary Writs Just a Few Words
There are several extraordinary writs: Certiorari, Prohibition,
Mandamus,Habeas Corpus, Quo Warranto, and All Writs, the
preparation and timing for whichare controlled by Florida Rule of
Appellate Procedure 9.100. The time for filingthese petitions
varies (30 days for certiorari, which is the most common writ),
butother petitions have no timing requirement. Always consult the
rule. It is importantto note that the petition is essentially the
initial brief, so there is no delay between thefiling of the
petition and briefing in writ cases. Moreover, extraordinary writ
casesare usually given expedited review by the DCAs, since they
often involve stays of theproceedings in the lower court.
Consequently, the opportunity for appellatemediation in
extraordinary writ cases is extremely limited.
IV. Standards of Review
A. What is the Standard of Review: The term standard of review
is usedin appellate practice to describe the test the appellate
court applies in evaluating thelower tribunals decision. The
applicable standard depends upon the nature of theruling sought to
be reviewed. The standards of review take into account the
structureof the judicial system and the differing functions of the
trial and appellate courts. For
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instance, appellate courts do not defer to a lower tribunals
ruling on an issue of law,because the lower tribunal is not in a
better position than the appellate court to definethe law. On the
other hand, appellate courts do defer to lower tribunals on
questionsof fact, because the lower tribunal is the trier of and an
appeal is not an opportunityto relitigate facts. Philip J.
Padovano, Florida Appellate Practice 19.1 (2015 ed.)The parties are
required to state the standard of review under each issue presented
inthe briefs. See Fla. R. App. P. 9. 210(b)(5).
B. Review of Factual Decisions:
1. Competent Substantial Evidence: CSE is the touchstone
forappellate review of factual decisions so long as there is CSE in
therecord to support the factual findings in the order, it will be
affirmed. This point was explained by the Supreme Court of Florida
as follows inShaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976):
It is clear that the function of the trial court is to
evaluateand weigh the testimony and evidence based upon
itsobservation of the bearing, demeanor and credibility of
thewitnesses appearing in the cause. It is not the function ofthe
appellate court to substitute its judgment for that of thetrial
court through re-evaluation of the testimony andevidence from the
record on appeal before it. The test, aspointed out in Westerman
[v. Shells City, Inc.265 So. 2d43 (Fla. 1982], is whether the
judgment of the trial court issupported by competent evidence.
Subject to the appellatecourts right to reject inherently
incredible and improbabletestimony or evidence, it is not the
prerogative of anappellate court, upon a de novo consideration of
the record,to substitute its judgment for that of the trial
court.
Parties should not appeal cases that simply present CSE issues,
assuch appeals are frivolous. This point was explained by the First
DCAin Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA
1983),which remains one of the clearest statements of the CSE
standard ofreview:
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AFFIRMED. Ordinarily, that single word wouldreflect our
disposition of this appeal. Because we find thiscourt reviewing
more and more needless appealspresenting similar points for review,
however, it seemsappropriate to comment on a recurrent error by
appellateattorneys stemming from an apparent misconception of
thepurpose and limited scope of appellate review.
We begin our discussion by quoting the appellantspoint on
appeal:
The deputy commissioner erred infinding that the claimant was
not entitled topermanent total disability benefits orpermanent
partial disability benefits in excessof the 15% rating accepted by
theemployer/carrier as there is competent,substantial evidence in
the record to supporta showing of change of condition as requiredby
Florida law as a basis for a modification.(emphasis added).
Appellant then argues rather ably, we note thatthere is
competent, substantial evidence in the record tosupport her claim
for modification of workerscompensation benefits. That being so,
appellant asks us toreverse the deputy commissioners order
denyingmodification. The point on appeal, however, as stated
byappellant, is self-defeating under applicable standards
ofappellate review. We do not review whether there wascompetent,
substantial evidence to support the claimdisallowed by the deputy;
we only review whether therecord contains competent, substantial
evidence to supportthe deputys order.
We can readily concede, as argued by appellant, thatthe record
contains competent, substantial evidence to
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support her claim for modification. Unfortunately,however, the
record likewise contains competent,substantial evidence that
supports the deputys findingsand order denying her claim.
Factually, this case couldhave been decided either way, depending
on the testimonyand evidence accepted and believed by the deputy.
Theissues presented and decided by him were essentiallyfactual. We
do not retry the claim at the appellate level andsubstitute our
judgment for that of the deputy on factualissues supported by
competent, substantial evidence, andappeals asking us to do so are
frivolous. CatronBeverages, Inc. v. Maynard, 395 So.2d 261, 262
(Fla. 1stDCA 1981). See also, Redding v. Cobia Boat Co., 389So.2d
1003, 1004 (Fla.1980); Croft v. Pinkerton-HayesLumber Co., 386
So.2d 535, 536 (Fla.1980).
We suggest that a convenient and practical means foravoiding
this common error is to state, at the outset of eachpoint argued,
the legal standard for appellate review reliedupon for reversal,
i.e., lack of competent, substantialevidence to support the order
rendered, abuse of discretion,erroneous application of a rule of
law, etc. The argumentshould then demonstrate not only the
existence of the errorcomplained of, but why that error requires
reversal underthe applicable standard of appellate review. By
thuslimiting the points on appeal to arguments within theproper
scope of appellate review, counsel will avoidfrivolous appeals and
may well benefit from the moreconvincing form of argument directed
specifically at whythis appellate court can and should grant the
reliefrequested.
Swanigan, 442 So. 2d at 1027-28.
2. CSE Standard & Clear and Convincing Evidentiary Burden:
Evenwhen the evidentiary burden before the trial court is one
requiring proofby clear and convincing evidence, the appropriate
standard of review
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remains the CSE standard. This point was explained as follows
inMcKesson Drug Co. v. Williams, 706 So. 2d 352 (Fla. 1st DCA
1998):
In civil cases involving the burden of clear andconvincing
evidence, an appellate court may not overturna trial courts finding
regarding the sufficiency of theevidence unless the finding is
unsupported by recordevidence, or as a matter of law, no one could
reasonablyfind such evidence to be clear and
convincing.Accordingly, the appellate courts function is not
toconduct a de novo proceeding or reweigh the evidence
bydetermining independently whether the evidence as awhole
satisfies the clear and convincing standard, but todetermine
whether the record contains competentsubstantial evidence to meet
the clear and convincingevidence standard.
McKesson Drug Co. v. Williams, 706 So. 2d at 353-54
(citationsomitted).
3. Factual Findings Based on Undisputed Facts: It is important
todistinguish whether the trial courts factual findings are ones
thatresolve disputed facts, as opposed to ones made based on
undisputedfacts, because the latter is subject to the less
stringent clearly erroneousreview standard. See Philip J. Padovano,
19:6, at 378 (2015 ed.); andsee Holland v. Gross, 89 So. 2d 255
(Fla. 1956) (A finding which restson conclusions drawn from
undisputed evidence, rather than on conflictsin the testimony, does
not carry with it the same conclusiveness as afinding resting on
probative disputed facts, but is rather in the nature ofa legal
conclusion.).
4. Questions of Weight, Credibility & Conflicts in the
Evidence: The trier of fact, whether that is the jury or a judge in
a nonjury case, hasthe discretion to resolve conflicts in the
evidence, weigh the evidence,and make credibility determinations,
and so long as those determinationsare supported by CSE, they will
be affirmed. In explaining this point tomy clients, I use the
red-light, green-light analogy. It does not matter
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that five people said the light was red, if one person said the
light wasgreen, the trier of fact can choose to believe that one
person and findthat the light was green. The only thing the
factfinder cannot do is saythe light was yellow.
5. What is CSE? In order to be CSE, the evidence must accord
withreason and logic. This point was explained as follows in Paul
H.Cowart/Building Specialty v. Cowart, 481 So. 2d 83, 84-85 (Fla.
1stDCA 1986):
In order to be sufficient to support a conclusion,evidence must
be more than competent, it must besubstantial and must accord with
logic and reason as well.The fact that a witness may be competent
to testify abouta particular subject does not mean that any and all
evidencegiven by the witness concerning that subject may
beautomatically accepted and relied upon by the deputy.Although
given by a competent witness, evidence which isentirely incredible
and which fails to accord with logic andreason cannot constitute
competent substantial evidence onthe question at hand, no matter
how convincing thedemeanor of the witness nor how seemingly solid
andunshakeable his or her testimony. Indeed, Websters ThirdNew
International Dictionary (unabridged) includesamong its definitions
of the word substantial thestatement consisting of, relating to,
sharing the nature of,or constituting substance . . . material . .
. not seeming orimaginary. . . .
Id. at 84-85 (citations omitted) (emphasis supplied).
C. De Novo Review of Legal Decisions: Appellate courts are not
requiredto defer to lower tribunals on issues of law. In reviewing
issues of law, appellatecourts apply the de novo standard, which
simply means that the appellate court is freeto decide the question
of law anew without deference to the trial judge as if theappellate
court had been deciding the question in the first instance. Philip
J.Padovano, Florida Appellate Practice 19:4 (2015 ed.). The most
common issuessubject to de novo are:
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1. Statutory Interpretation: Issues of statutory interpretation
arereviewed under the de novo standard. Murray v. Mariner Health,
994So. 2d 1051, 1056 (Fla. 2008) (Statutory interpretation is a
question oflaw subject to de novo review.).
2. Construction of Contracts: Interpretation and construction
ofcontracts and settlement agreements are also reviewed under the
de novostandard. Ivester v. Parkway Regional, 996 So. 2d 909 (Fla.
1st DCA2008) (question pertaining to construction of settlement
agreement wasreview de novo); Munroe v. U.S. Food Service, 985 So.
2d 654, 655(Fla. 1st DCA 2008) (Interpretation of settlement
agreements isgoverned by contract law, and whether an agreement
constitutes a validcontract is a matter of law subject to de novo
review.).
3. Summary Judgment Orders: Summary judgment orders arereviewed
de novo under the same standard in Florida Rule of CivilProcedure
1.510(c) applied by the trial court: (1) The pleadings mustshow no
genuine issue of material fact, and (2) the moving party mustbe
entitled to a judgment as a matter of law. The appellate court
mustdetermine whether the trial court properly disposed of the case
bysummary judgment, i.e., that there were no disputed issues of
materialfact, and, if so, if the trial court was correct on the
merits. See Philip J.Padovano, Florida Appellate Practice 19:4, at
364-65 (2015 ed.).
4. Other De Novo Review Rulings: Judge Padovanos treatise
liststhese additional issues that are subject to de novo
review:
(a) Rulings on the sufficiency of a complaint;(b) Dismissal of a
complaint based on a legal right, suchas lack of jurisdiction;(c)
Judgment on the pleadings;(d) Directed verdict;(e) The right to
arbitration; and(f) Admission of expert scientific testimony.
Philip J. Padovano, Florida Appellate Practice 19:4, at 363-67
(2015ed.).
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D. Review of Discretionary Decision is by Abuse of Discretion:
Reviewof decisions that fall within the trial courts discretion are
reviewed under the abuseof discretion standard of review. The
leading case describing the abuse of discretionstandard is
Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), which adopted
thefollowing statement as the test for reviewing a judges
discretionary power:
Discretion, in this sense, is abused when the judicial action
isarbitrary, fanciful, or unreasonable, which is another way of
saying thatdiscretion is abused only where no reasonable man would
take the viewadopted by the trial court. If reasonable men could
differ as to thepropriety of the action taken by the trial court,
then it cannot be said thatthe trial court abused its
discretion.
Id. at 1203 (quoting Delno v. Market St. Ry. Co., 124 F.2d 965,
967 (9th Cir. 1942)).
In explaining this issue to my clients, I tell them that since I
would have toshow that no reasonable person would have come to the
same conclusion that the trialjudge did, I would essentially have
to show that the judge was crazy. A meredisagreement from an
appellate perspective with the reasoning or opinion of the
lowertribunal is not enough to justify the reversal of a
discretionary decision. Philip J.Padovano 19:5, at 368 (2015 ed.)
(footnote omitted).
Some of the typical issues that are subject to the
abuse-of-discretion standardare:
1. Family Law Decisions: Many of the issues raised in family
lawcases are discretionary, such as alimony, custody, and equitable
divisionof martial property. Nevertheless, it is important to
distinguish whetherthe judge is exercising discretion or applying a
legal principle to thefacts, because the latter will be subject to
the de novo standard. PhilipJ. Padovano, Florida Appellate Practice
19:5, at 370 (2015 ed.).
2. Evidentiary Issues: Generally, the admission or exclusion
ofevidence is reviewed for abuse of discretion. Russ v. State, 832
So. 2d901, 908 (Fla. 1st DCA 2002). But it is important to
distinguish whetherthe judges ruling is actually based on the
application of the EvidenceCode, since such decision will be
subject to the de novo standard. See
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Philip J. Padovano, Florida Appellate Practice 19:5, at 372
(2015 ed.)(explaining that most evidentiary decisions are based on
the judgesdetermination of relevancy, which is discretionary, but
other evidenceissues, such as privilege, are not
discretionary).
3. Trial Procedural Matters: Most pretrial procedural issues in
civilcases, such as rulings on motions to amend and continuances,
arediscretionary with the trial judge. Philip J. Padovano, Florida
AppellatePractice 19:5, at 370 (2015 ed.)
4. Jury Instructions: Some jury instructions are reviewed for
abuseof discretion; however, the refusal to give an instruction
that a party isentitled to as a matter of right would be reviewed
de novo. Philip J.Padovano, Florida Appellate Practice 19:5, at 373
(2015 ed.)
5. Post-trial Motions: Rulings on motions for rehearing or new
trial,additur or remittitur, to vacate a judgment under Florida
Rule of CivilProcedure 1.540, stay execution of a judgment,
attorneys fees, andtaxable costs are subject to the
abuse-of-discretion standard. Philip J.Padovano, Florida Appellate
Practice 19:5, at 373-5 (2015 ed.)
V. Why Mediate Appellate Cases?
A. Appellee Has Little Incentive to Settle: It may seem
counter-intuitiveto mediate on appeal since the trial court has
already determined who the winner andwho the loser is in the
litigation. And, indeed, an appellee is likely to have
littleincentive to settle on appeal.
B. Educating the Parties Regarding the Appellate Process: Still,
there aregood reasons for mediating on appeal, as pointed out in
the attached article entitledThe Appeal of Appellate Mediation:
Making the Case for an Attractive DisputeResolution Tool, 83 Fla.
Bar. J. No. 3 (March 2009), by Jeanette Bellon and SharonC. Degnan.
For instance, appellate mediation is an excellent opportunity to
educatethe parties about the appellate process, how the appellate
court is likely to view theappeal, and the realistic chances of
success. Oftentimes clients believe an appeal isa means of
obtaining a new trial and they want to present new evidence that
was notsubmitted below. This, of course, is incorrect. Appellate
courts do not retry the case
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on appeal and the record on appeal is limited to the evidence
and arguments that werepresented to the trial court. As is often
said, appeals are not an attempt to get asecond bite of the apple.
Moreover, clients are often unaware that winning on appealdoes not
necessarily mean they will automatically achieve the result they
want,because cases are often remanded back to the trial court for
additional proceedings. On remand, the case may be assigned to the
exact same judge who decided the caseoriginally and if a new trial
is required, all the expense associated with a new trialwill be
incurred.
C. Global Settlement: Another important incentive to mediate is
theopportunity for a global settlement of all issues. The issues on
appeal may be limitedin nature, for instance, to an evidentiary
issue. The remedy in such a situation maybe reversal and remand for
new trial. Thus, if appellant prevails on appeal, a newtrial,
complete with all its time and expense, will be necessary.
Mediation can resolvethe evidentiary issue, but it can also resolve
the entire case, thereby avoiding the timeand cost associated with
a new trial and allowing the parties to control their own
legaldestinies.
D. Costs: Costs are awarded to the prevailing party in all
appeals underFlorida Rule of Appellate Procedure 9.400. This will
include the cost of the record,including transcription costs, and
the filing fees. Although the filing fees of $300 or$400 are not
generally prohibitive, there are costs for preparation of the
trialtranscript and record, which can be hundreds of dollars. The
Statewide UniformGuidelines for Taxation of Costs in Civil Actions
includes other costs that should andmay be taxed, such as the cost
of an expert witness in attorney-fee issue hearing onremand. See In
re Amdmts. to Unif. Guidelines for Taxation of Costs, 915 So. 2d
612(Fla. 2005).
E. Attorneys Fees: Attorneys fees may also be recoverable on
appealprovided there is a contractual or statutory basis for an
award of fees. It should benoted that if there is a basis for fees
in the lower tribunal, that basis is extended toappellate
proceedings by section 59.46, Florida Statutes (2015). An appellant
casecan easily involve 80 to 120 hours of attorney time in the
preparation of the briefs andoral argument, and some cases involve
multiple attorneys and firms and can run intohundreds of hours. At
a minimal hourly rates of $250 or $300 an hour, one can seethat a
simple appeal can easily cost between $20,000 and $36,000. For
higher hourlyrates of $500 to $600 an hour, legal fees of $50,000
to $70,000, or even more, can
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easily be taxed against the nonprevailing party, in addition to
his or her ownattorneys fees. Thus, appeals can be very costly.
F. Risk of Losing: Like any legal proceeding, there is always
the risk oflosing, even when it appears that the law is on your
side. With the presumption ofcorrectness afforded to trial courts
and the necessity to preserve error and demonstrateprejudicial
error, many seemingly good appeals end with a per curiam
affirmance(PCA), and the client is left with no explanation as to
why he or she lost the appealand no avenue to seek further
review.
VI. Mediation Programs in Florida
A. Fifth District Court of Appeal: The 5th DCA began a pilot
appellatemediation program in 2001 for final civil and family law
appeals. The programproved to be a success and was made permanent
in 2004. To date, in excess of 30%of the cases set to mediation
have been resolved.
This mediation program is different from other mediation
programs in the stateand most other appellate court mediation
programs. Selection of cases appropriatefor mediation are made by
one of three screening judges on the court. In all eligiblecases
(final civil and family appeals with attorneys representing all
parties), theparties complete a mediation questionnaire setting
forth the issues involved in theappeal, their position, and their
opinion as to whether mediation would be helpful.
Once a case is selected, mediation is mandatory within a limited
span of time,so the delay will not affect the course of the
appeal.
Parties are free to select their own mediator from a list of
mediators who arecertified in appellate mediation. Mediators agree
to accept referrals from the courtfor parties who cannot agree on a
mediator at a $200 per hour rate and to accept upto two pro bono
cases per year, for a limited time span per case, for parties who
areunable to afford the mediation process. In most cases, the
parties mutually agree onthe mediator. The 5th DCA has a search
function for listed mediators on its website www.5dca.org.
Florida Rules of Appellate Procedure 9.700-9.740, which are
discussed belowand included in the materials, will control.
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http://www.5dca.org.)
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B. Eleventh Circuit Court of Appeals: The Eleventh Circuit Court
ofAppeals uses its Kinnard Mediation Center (KMC) to mediate civil
appeals underFederal Rule of Appellate Procedure 33 and Eleventh
Circuit Rule 33-1 to helpparties resolve their disputes with the
help of a neutral third-party. Each yearhundreds of appeals are
resolved through the mediation program. This service isconducted at
no charge to the parties. A copy of its website is included in
thesematerials.
In the 11th Circuits KMC program, full-time court employees who
haveextensive trial and appellate experience, as well as experience
in negotiation,mediation, and practice and procedure, are generally
the mediators, although there areprovisions for private mediators
to be used. The 11th Circuits mediators are locatedin Atlanta and
Miami.
All civil appeals are eligible for appellate mediation in the
11th Circuit. TheKMC mediators review each appeal they are assigned
before scheduling it formediation and the mediators, a senior
judge, or a hearing panel of judges may directthe parties to
participate in mediation, which is often done before briefing
hasoccurred. Counsel for the parties are required to submit a civil
appeal statement andconfidential mediation statement assessing the
prospects for the appeal. The selectionof the case for mediation
and the filing of confidential mediation statement does notstay the
appellate proceeding, however, so the parties will need to apply
forextensions of time for briefing and all time-sensitive aspects
of the appeal.
Mediations are usually conducted in person in Atlanta or Miami,
and themediator will discuss (a) the legal issues and appellate
courts decision-makingprocess regarding these issues; (b) any
efforts to settle the appeal; (c) the partiesunderlying interests,
preferences, and motivations; (d) future events based uponvarious
outcomes of the appeal; (e) how resolution of the appeal could
affect theunderlying problem; (f) cost-benefit and time
considerations; and (g) any proceduralalternatives possibly
applicable to the appeal, such as vacating an order or remand.
If an impasse is declared in the mediation, the KMC will grant
one extensionto file a brief that is due within 14 days of the
impasse for up to 21 days.
If the parties settle the case during mediation, then they file
a joint or agreedmotion to dismiss the appeal under Federal Rule of
Appellate Procedure 42(b) and
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Eleventh Circuit rule 42-1(a). Note that settlement likewise
does not stay any of theproceedings in the appeal, so extensions
will need to be sought.
All mediations in the 11th Circuit are confidential. The court
mediators notesand the parties confidential mediation statements do
not become part of the courtsfile and are never seen by the judges
who ultimately determine the case if themediation is
unsuccessful.
C. Other Appellate Mediation Programs: The First and Fourth
DistrictCourts of Appeal previously had mediation programs, but
both were eliminated dueto budget constraints. The Fourth DCA
recently considered reinstituting itsmediation program, but
declined to do so.
D. Private Mediation: Private mediation is always available to
the partiesin an appeal, but when they are pursued outside the
confines of a recognized program,such as the Fifth DCAs, the
parties will be required to obtain the necessaryextensions of time
for any time-sensitive proceedings in the appeal and notify
thecourt if a settlement is reached.
VII. Florida Appellate Mediation Rules
The Florida Rules of Appellate Procedure have adopted mediation
rules thatapply to mediations in all appellate courts, including
those pursued in circuit courtsacting in their appellate capacity.
These rules, 9.700-9.740, are included in thematerials.
The rules provide that the court, upon its own motion or upon
the motion of aparty, may refer a case to mediation at any time.
Fla. R. App. P. 9.700(b). If themotion is made by a party, then it
must include a certificate indicating that the movanthas consulted
with opposing counsel and stating their position on the motion.
Fla.R. App. P. 9.700(b)(1)-(3). The mediation conference shall be
held within 45 daysof the referral by the court, unless the parties
agree to postpone mediation until afterthe time for filing briefs
has expired, and the mediation must be completed within 30days of
the mediation conference. Fla. R. App. P. 9.700(c). Unless
otherwise orderedor agreed, the times for processing the appeal are
tolled during the period of thereferral to mediation. Fla. R. App.
P. 9.700(d). Any motion to dispense withmediation must be filed
within 10 days after discovery of the facts that constitute the
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grounds for the motion. Fla. R. App. P. 9.700(e).
All cases are eligible for mediation except the following: (1)
Criminal andpostconviction cases, (2) habeas corpus and
extraordinary writs, (3) civil or criminalcontempt, (4) involuntary
civil commitments of sexually violent predators, and (5)collateral
crimes cases. Fla. R. App. P. 9.710.
The mediation procedures require the parties to appear
personally or by theirattorney or representative, who must have
full authority to settle without consultation. Fla. R. App. P.
9.720(a). If a party fails to appear at a duly noticed
mediationconference without good cause, sanctions may be imposed.
Fla. R. App. P. 9.720(b). The mediator, after consulting with the
parties, sets the mediation conference date andcontrols the
procedures to be followed in the mediation. Fla. R. App. P.
9.720(c) &(d). A party representative appearing at the
mediation must have full authority tosettle and certificates of
authority must be filed with the court and served on theparties to
identify the party representative. Fla. R. App. P. 9.720(f) &
(g).
As to the appointment of the mediator, the parties may file a
stipulationdesignating a duly qualified mediator within 10 days of
the court order of referral tomediation, or the court will appoint
a certified appellate mediator. Fla. R. App. P.9.730(a) & (b).
Any party can move to disqualify a mediator for good cause. Fla.
R.App. P. 9.730(c). A substitute mediator may be agreed upon or
appointed. Fla. R.App. P. 9.730(d). If the court appoints the
mediator, he or she shall be compensatedat the rate set in the
referral order. Fla. R. App. P. 9.730(e). Unless otherwise
agreed,the cost of the mediator shall be prorated among the named
parties. Fla. R. App. P.9.730(e).
Upon completion of the mediation, if there is no agreement
reached, themediator shall report the lack of agreement without
comment or recommendation. Fla. R. App. P. 9.740(a). If an
agreement is reached, then it must be reduced towriting and signed
by the parties and their counsel, and the mediator must file a
reportwithin 10 days after the agreement is signed. Fla. R. App. P.
9.740(b).
VIII. Resources to Learn Appellate Practice
Philip J. Padovano, Florida Appellate Practice (2015 ed.)
23
The Nuts & Bolts of Appellate Practice Prepared by Wendy S.
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The Florida Bar, Florida Appellate Practice (9th ed.)
The Florida Bar Appellate Practice Section, which has a
website(http://www.flabarappellate.org) and publication, The
Record, old issues of which areon the website.
Websites of the DCAs and supreme court include the Notices to
the Parties andInternal Operating Procedures for the various
courts, which include helpfulinformation. In addition, those
websites include the courts administrative orders,such as those
pertaining to electronic filing and stipulated extensions.
First DCA: www.1dca.orgSecond DCA: www.2dca.orgThird DCA:
www.3dca.orgFourth DCA: www.4dca.orgFifth DCA: www.5dca.orgSupreme
Court: www.floridasupremecourt.org
IX. Other Included Materials
A. The Appeal of Appellate Mediation: Making the Case for an
AttractiveDispute Resolution Tool, by Jeanette Bellon & Sharon
C. Degnan, Fla. Bar Journal,Vol. 83, No. 3 (March 2009).
B. Florida Rules of Appellate Procedure 9.700-9.740.
C. Fifth District Court of Appeal Mediation Program
Materials:
1. Mediation FAQ2. Mediation Questionnaire3. Confidential
Statement4. Response to Referral Order5. Motion to Waive Fees with
Affidavit6. Joint Motion to Relinquish Jurisdiction7. Joint
Stipulation for Dismissal8. Mediation Report9. Joint Motion for
Extension of Time
24
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http://www.floridasupremecourt.org/http://www.5dca.orghttp://www.4dca.orghttp://www.3dca.orghttp://www.2dca.orghttp://www.1dca.org(http://www.flabarappellate.org
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D. 11th Circuit Kinnard Mediation Center Materials:
1. Mediation in the Eleventh Circuit Court of Appeals2. Circuit
Mediation Process (flow chart)3. Private Mediator Procedures of
Mediation of Appeals4. 11th Circuit Rules 33-15. Civil Appeal
Statement6. Confidential Mediation Statement7. Brief Extensions8.
Post-Settlement Dismissal Procedures
25
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March, 2009 Volume 83, No. 3
The Appeal of Appellate Mediation: Making the Case for an
Attractive DisputeResolution Toolby Jeanette Bellon and Sharon C.
Degnan
Page 32
One may wonder how and why appellate mediation could ever serve
as a practical resolution tool. Presumably, settlement negotiations
were not fruitfulbefore trial. One party has already received a
favorable ruling in the case. The answer, though sometimes
surprising, is fairly simple. A global caseresolution through
appellate mediation can save both the parties and the courts
considerable time and valuable resources and can promptly bring
toan end a dispute that could otherwise potentially drag on for
years to come. The goals of this article are to provide a brief
overview of the appellatemediation programs currently being
utilized in Floridas federal and state courts of appeal, to
dissipate any negative preconceptions regarding appellatemediation,
and to suggest that, in certain cases, appellate mediation can
serve as a valuable tool in settling a dispute.
The Benefits of Appellate MediationAppellate mediation can serve
various functions depending on the specific circumstances and
nuances of a particular case. In many cases, appellatemediation
brings the parties together in order to educate them on the
appellate process in general and to inform them of how appellate
courts are likelyto address the issues on appeal. An appellate
mediator is likely to bring to the parties attention the fact that
an appellate court will not re-try the caseor take additional
evidence, and will often point out to the parties that the
appellate courts jurisdiction is limited in scope to those narrow
issuesbrought before it under a specific legal standard of review.
This opportunity to discuss the ramifications of the applicable
standard of review, themerits of the case from an appellate point
of view, and the inherent risks of proceeding on appeal can be
invaluable in helping to remove a clientsunrealistic expectations.
In this way, it is similar to mediation at the trial level.
In addition, appellate mediation provides a forum to educate
each party of the fact that the appellate court is likely to place
a strong presumption ofcorrectness on a trial courts order or
judgment entered after a jurys verdict and to make clear that
whenever a party pursues a case on appeal, he orshe is facing an
uphill battle. Just like juries and trial courts, appellate courts
can be unpredictable. Even in cases that may appear to be
open-and-shut, the inherent risk in an appellate proceeding cannot
be disregarded and should not be ignored.
Another benefit of appellate mediation is that even though the
issues on appeal may be quite limited, there is nonetheless the
potential for exploring aglobal resolution of an entire dispute.
Often, the most effective appellate mediations focus on resolution
of a whole case and include any collateralissues or anticipated
future litigation between the parties, rather than strictly
focusing on the narrow issues presented in the appellate
proceeding. Inthis way, an appellate mediation offers a remedy that
cannot be crafted by the appellate courts, which are constrained to
decide only those limitedissues before it. A global resolution not
only saves the cost of the appeal, but also saves the additional
expenses associated with supplementallitigation. Appellate
mediation also often helps parties to recognize that if a case is
not resolved and the appellate process runs its course, there maybe
extensive litigation costs incurred. In some cases, through the
mediation process, a party may come to realize that he or she
cannot afford topursue an appeal and that the cost of victory may
be prohibitive, since success may mean a new trial and perhaps even
another appeal.
The Importance of Timing in Appellate Mediation
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The structure and timing of an appellate mediation can be
critical to the process. In some cases, the key to success is
beginning the process as earlyas possible even before the record on
appeal has been completed. This early approach to mediation can be
useful to both the parties and thecourt because it results in
significant savings to the litigants and precludes the appellate
court from having to engage in any work on those cases thatare
successfully resolved through the appellate mediation process.
Mediation conferences can be scheduled well in advance of the
deadline for thefiling of the initial brief. Moreover, in an early
mediation context, even where the entire dispute is not settled,
there is still the potential for substantialbenefits to the parties
through the narrowing or resolving of some of the appellate issues,
thereby significantly streamlining the appellate process.
However, in other cases, especially those where the party
defending the appeal feels very confident in his or her legal
position, it may make sense toschedule the mediation conference
after the initial brief has already been filed. If the initial
brief demonstrates the strength of the appellants legalarguments,
it may make the opposing party recognize that his or her status as
the prevailing party is not guaranteed. Without the benefit of
havingreviewed the initial brief, the appellee may not have enough
information to truly assess the risk of reversal. Once a party has
reviewed a strong briefand recognizes the possibility that a
favorable order or judgment is likely to be set aside, a newfound
willingness to compromise, which otherwise maynot be present, may
arise. The knowledge that the trial court may have been wrong in
its ruling may induce the appellee to try to mediate from
theposition as the apparent winner of the dispute.
Floridas Appellate Mediation Programs The 11th Circuit Court of
Appeals In 1992, the U.S. Court of Appeals for the 11th Circuit
initiated its appellate mediation program. Since theinception of
the program, hundreds of appeals are resolved each year through
mediation. In the 11th Circuit, certain categories of cases
areexcepted from mediation, such as cases where a party is
proceeding pro se or is incarcerated, as well as habeas corpus and
immigration appeals.Otherwise, virtually all civil cases are
eligible for mandatory appellate mediation.
Appellate mediation in the 11th Circuit is conducted, at no
charge to the parties, by the courts mediators, who are full-time
court employees, pursuantto Federal Rule of Appellate Procedure 33
and 11th Circuit Rule 33-1. Parties may substitute a private
mediator for the court mediator uponagreement of all parties,
though at their own expense. Mediation is scheduled after court of
appeals docketing and before the briefing processbegins. In
addition, the mediator has authority to adjust the briefing
schedule if the following conditions are met: All parties agree to
an extension oftime; the extension will facilitate settlement; the
deadline for submitting the brief has not passed; and counsel has
not previously filed a motion for anextension of time. Importantly,
however, practitioners must remember that mediation in the 11th
Circuit does not automatically stay the appellateproceeding, which
means that all appellate deadlines will remain in force unless
motions for extension are sought.
Before proceeding to mediation in the 11th Circuit, parties are
required to submit a civil appeal statement and a confidential
mediation statement, bothof which are prepared by counsel. Similar
to mediation at the trial level, the confidential mediation
statement and mediators notes never becomepart of the courts file
and remain confidential at all times. Prior to the mediation
conference, the mediator reviews the notice of appeal and
thedistrict court and court of appeal dockets, as well as the
relevant portions of the record, in order to become familiar with
the issues. At mediation,clients and all persons necessary to
resolve the appeal, with full negotiating and settlement authority,
must be present along with their counsel.
If a settlement is reached, a joint or agreed motion to dismiss
should be filed pursuant to Federal Rule of Appellate Procedure
42(b) and 11th CircuitRule 42-1(a). Practitioners must be warned,
however, that settlement does not automatically stay any actions
that are required to be undertaken bycounsel under the Federal
Rules of Appellate Procedure, such as the ordering of necessary
transcripts and the filing of briefs. Thus, if a brief is dueprior
to receiving an order on a motion to dismiss based upon a
settlement, an extension of time to comply with the deadline must
be requested fromthe court.
The Fifth District Court of Appeal Although at one point in
time, most of the Florida district courts of appeal had mediation
programs in place,currently only the Fifth District Court of Appeal
maintains such a program. In the Fifth District, appellate
mediation began as a pilot program in 2001for civil and family law
appeals from final orders where all of the parties were represented
by counsel. Due to its success, the program becamepermanent in
2004. To date, 30 percent of all appeals sent to mediation in the
Fifth District have been resolved through mediation.
Appellate mediation in the Fifth District differs significantly
from the 11th Circuit. A mediation questionnaire, which must be
completed by the partiesand filed with the court in all eligible
cases, requires the parties to set forth the issues on appeal and
to state their position on whether a mediation willbe worthwhile.
Selection of cases for mediation is then made by one of three
sitting judges on the court, each of whom has become a
FloridaSupreme Court certified mediator. The judge who reviews the
mediation questionnaire will not participate as a member of the
merits panel on thecase in the event that mediation is held, but is
unsuccessful. If a case is selected for appellate mediation,
participation is mandatory. If, on theother hand, the reviewing
judge agrees that mediation will not be beneficial, the parties are
advised of this fact by the court and the case proceedsthrough the
appellate process.
Parties first try to mutually agree to a mediator from a list of
over 200 mediators who are certified in civil, family, or
dependency mediation by TheFlorida Bar and who have attended the
Fifth Districts appellate mediation training. Although it rarely
happens, if the parties are unable to agree ona mediator, the court
will randomly select one.
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Unlike the federal 11th Circuit, parties will automatically
receive an extension of all appellate deadlines upon receipt of the
mediation questionnaire bythe court. Thereafter, if the case is
ordered to mediation, all appellate deadlines will be tolled for up
to 45 days until mediation is completed. Inaddition, parties that
are ordered to mediation bear the cost of mediation equally. If the
case is not accepted for mediation, all deadlines will begin torun
from the date of the letter informing the parties that the case has
not been accepted for mediation.
If mediation is successful, the court will dispose of the case
as is appropriate in light of the settlement. This could include
dismissing the appeal,remanding the case to the trial court for
approval of the settlement agreement, or entering a stipulated
order consistent with mediation settlement. If,on the other hand,
mediation is unsuccessful, the appeal will continue its normal
course through the appellate court.
ConclusionAlthough, at first blush, it may seem unproductive and
counterintuitive to mediate a case where a winner and loser have
already been decided, it mustbe remembered that so long as a case
is pending on appeal, a partys victory may be short lived. For this
reason, the benefits of mediating a case atthe appellate level
should not be ignored. A practitioner should recognize and give
serious consideration to the pros and cons of whether
appellatemediation might be a useful tool in his or her case when
proceeding on appeal. With a realistic appreciation of the inherent
risks involved in anyappellate proceeding, combined with effective
advocacy, it may be possible to transform an angry appellant or
appellee, who is facing the prospect ofnever-ending litigation,
into a satisfied client with a settled case.
In 2006, Floridas five district courts of appeal received
approximately 24,000 appeals. In addition, the Florida Supreme
Court received 2,500 cases
that year. See In re Report of the Committee on District Court
of Appeal Workload and Jurisdiction-Rule of Judicial
Administration, 921 So. 2d 615, 617(Fla. 2006).
Donna Riselli, Appellate Mediation, APP FL-CLE 26-1. 26.2
(2003).
Id.
Id.
Id.; In addition, statistics from the 11th Circuit Court of
Appeals reveal that only 17 percent of all civil cases are reversed
on appeal. See Mori Irvine,
Better Late Than Never: Settlement at the Federal Court of
Appeals, 1 J. App. Prac. & Process 341, 357 n.73 (1999).
Donna Riselli, Appellate Mediation, APP FL-CLE 26-1, 26.2
(2003).
Id.
Id.
Id.
Id. at 26.1 (2003).
Id.; Donna Riselli, Appellate Mediation at the First District
Court of Appeal: How and Why it Works, 75 Fla. B. J. 58, 60 (Jan.
2001).
Donna Riselli, Appellate Mediation, APP FL-CLE 26-1, 26.2
(2003).
See 11th Circuit Court of Appeals, Kinnard Mediation Center,
www.ca11.uscourts.gov/offices/mediation.php. In the 11th Circuit,
the KinnardMediation Center conducts mediation of civil appeals.
Circuit mediators are located in Atlanta, Tampa, and Miami.
The Kinnard Mediation Center mediated 843 appeals in 2002; 893
appeals in 2003; and 925 appeals in 2004. See Robert J. Miemic,
Mediation and
Conference Programs in the Federal Court of Appeals: A
Sourcebook for Judges and Lawyers, FJC-MISC-2006-2 (2006).
Kinnard Mediation Center, Mediation in the 11th Circuit Court of
Appeals 1 (2008), available at
www.ca11.uscourts.gov/documents/pdfs/KMC-MEDIATION-PROGRAMS.pdf.
Id.
Id.; Kinnard Mediation Center, Private Mediator Procedures for
Mediation of Appeals 1 (2008), available
atwww.ca11.uscourts.gov/documents/pdfs/privmediator.pdf.
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Kinnard Mediation Center, Mediation in the 11th Circuit Court of
Appeals 2 (2008), available at
www.ca11.uscourts.gov/documents/pdfs/KMC-MEDIATION-PROGRAMS.pdf.
Id. at 5.
Eleventh Circuit Rule 33-1(e).
Kinnard Mediation Center, Mediation in the 11th Circuit Court of
Appeals 2, 4 (2008), available at
www.ca11.uscourts.gov/documents/pdfs/KMC-MEDIATION-PROGRAMS.pdf.
Eleventh Circuit Rule 33-1(c)(3), 33-1(d).
Kinnard Mediation Center, Mediation in the 11th Circuit Court of
Appeals 2 (2008), available at
www.ca11.uscourts.gov/documents/pdfs/KMC-MEDIATION-PROGRAMS.pdf.
Id. at 3-4.
Id. at 5-6.
Id. at 6.
The First and Fourth district courts of appeal also had
appellate mediation programs, which were abolished due to budget
constraints. See Donna
Risselli, Appellate Mediation, APP FL-CLE 26-1, 26.1 (2003).
See Fifth District Court of Appeal, Mediation,
www.5dca.org/Mediation/mediation.shtml.
See Vitakis-Valchine v. Valchine, 793 So. 2d 1094, 1098 n.2
(Fla. 4th D.C.A. 2001).
See Fifth District Court of Appeal, Mediation,
www.5dca.org/Mediation/mediation.shtml.
Id.
Mediation forms including the questionnaire can be obtained at
www.5dca.org/Mediation/mediation_forms.shtml.
See Fifth District Court of Appeal, Introduction to Appellate
Mediation Program,
www.5dca.org/Mediation/Forms/Questions_Answers.shtml.
Id.
Id.
See Fifth District Court of Appeal, Mediation information
(cont.),
www.5dca.org/Mediation/mediation_information_cont.shtml.
Id.
See Fifth District Court of Appeal, Introduction to Appellate
Mediation Program,
www.5dca.org/Mediation/Forms/Questions_Answers.shtml.
Id.
Id.
Id.
Id.
Id.
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Id.
Jeanette Bellon is an appellate attorney and an associate in the
Miami office of Kubicki Draper.
Sharon C. Degnan is a board certified appellate attorney and
partner in the Ft. Lauderdale office of Kubicki Draper. Both Ms.
Degnan and Ms. Bellonpractice in the areas of litigation support,
appellate practice, and insurance coverage disputes.
This column is submitted on behalf of the Appellate Practice
Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A.
Norse, and Heather
M. Lammers, editors.
[Revised: 02-10-2012]
44
The Nuts & Bolts of Appellate Practice Prepared by Wendy S.
Loquasto, Esq. Page 34
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