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The RecordThe RecordJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O NJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O NJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O NJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O NJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O N

Volume XIII, No. 3 THE FLORIDA BAR Winter 2005

www.flabarappellate.org

See “Message from the Chair,” page 2

See “Judge Wells,” page 2

INSIDE:Recent Appellate Decisions on the Legal

Sufficiency of Petitions for AdministrativeHearing: “The Rules Have Changed” ............ 3

Ethical and Strategic Dilemmas Posed by FederalAppellate Bars to Plain Error Consideration ofNewly-Available Claims: The Rule 52(b)Response to a “Catch-22” .............................. 4

Deadlines for Serving Briefs: What Florida’s AppellateCourts Should Consider in Phrasing OrdersGranting Enlargements of Time ......................... 6

State Civil Case Update ..................................... 8Are Remand Orders by District Courts to

Bankruptcy Courts in the Eleventh Circuit“Final” Orders for Purposes of Appeal? ....... 11

Setting the Standard: A Fresh Look at Findingthe Right Standard of Review ...................... 13

Editor’s Column: Bryan Garner CounselsAppellate Lawyers and Judges on EffectiveLegal Writing ................................................ 20

Membership Survey of the Appellate PracticeSection of The Florida Bar ........................... 23

JudgeLinda Ann Wells

Judge Linda Ann Wells of the Third DistrictCourt of Appealby Rima Y. Mullins1

“This is mydream job,” JudgeLinda Ann Wellssays about her ap-pointment to theThird DistrictCourt of Appeal.Since taking thebench in January2003, she has thor-oughly enjoyed hernew role deciding

appeals, rather than arguing them.An (almost) native of South

Florida, Judge Wells moved to Hi-aleah as a toddler. Growing up, shenever considered law as a possiblecareer path. “In those days,” JudgeWells explains, “women didn’t be-come lawyers.”

Judge Wells attended the Univer-sity of Florida, majoring in MedicalTechnology and graduating with highhonors in 1969. After college came a

stint as an Army wife. “My husband,Robert, graduated from West Pointand served for five years in theArmy,” says Judge Wells. “It was awonderful experience. He was sta-tioned in Europe and we were ableto travel and see the world.”

By the time they were ready to re-turn to the United States in the early1970’s, attitudes towards women en-tering professional school had begun

Message from the Chairby John G. Crabtree

As some ofyou already know,the Section has be-gun work on a se-ries of articles fortrial lawyers underthe banner “YourAppellate Lawyer:A User’s Guide.”From this core, wewill have special-

ized pieces directed to the differentspecies of trial lawyers that referwork to us. We will have, for example,“Your Appellate Lawyer: A User’sGuide for Family Lawyers,” “YourAppellate Lawyer: A User’s Guide forPersonal Injury Lawyers,” and “YourAppellate Lawyer: A User’s Guide forCriminal Defense Lawyers.”

I am excited about the series and

think it will do much to improve ap-pellate practice in Florida. But itstrikes me that, before embarking ontelling trial lawyers how they shouldwork with us, we should consider howwe work with them, particularly howwe work with them at the trial levelwhen we are brought on board incomplex cases.

By our nature, appellate lawyerstend—with some notable excep-tions—to be the wallflowers of thelitigation ball. While trial lawyersexude confidence and charm, we ex-ude something else: intellectual hon-esty if we are lucky; intellectual su-periority if not. (I was once helping afriend with an arbitration in Califor-nia. When the arbitrator learned thatmy day job kept me in the appellatecourts, he gratuitously remarked

that I was “very nice, especially foran appellate lawyer.”).

2

MESSAGE FROM THE CHAIRfrom page 1

JUDGE WELLSfrom page 1

to change, and Judge Wells decidedto apply to law school. She graduatedfrom Florida State University withher J.D. in 1976 and joined the Mi-ami firm of Fine, Jacobson, Schwartz,Nash & Block in 1977, where shepracticed for seventeen years.

“Fine, Jacobson was like a familyto me,” Judge Wells recalls; “Theyreally took me under their wing andtrained me.” Although she was oneof the first women attorneys at thefirm, and often the only woman incourt, she never felt that her argu-ments were discounted because shewas a woman. At Fine, Jacobson,Judge Wells started her practiceworking on divorce cases, but earlyon in her career she realized thatappellate work was her true calling.Fortunately, the firm made an effortto accommodate her interest, andshe was able to develop an active ap-pellate practice. Later in her ten-ure at Fine, Jacobson, Judge Wellshad the opportunity to handle ap-peals with former Florida SupremeCourt Justice, Arthur England, anexperience she describes as “incred-ible.”

In 1994, Judge Wells joined Hol-land & Knight LLP as a partner inthe appellate practice area, whereshe worked with another former ju-

a direct and meaningful effect onpeople’s lives. As difficult as it was,if faced with the decision today, Iwould do it again.”

After three years at DCF, JudgeWells was appointed to the Third Dis-trict Court of Appeal, her “dreamjob.” “I love to research and write, sothis position is tailor made for me,”Judge Wells explains. “Many days Ibecome so engrossed in the briefs andarguments that we are consideringthat I do not even notice the time.The wonderful thing about my job isthat it is never dull. There is alwaysa new legal issue or a novel factualscenario to consider.” Although shehas law clerks at her disposal, JudgeWells does legal research, followingup on arguments made in briefs.“But I think my favorite part of be-ing an appellate judge,” Judge Wellssays, “is writing opinions.”

Judge Wells is an avid reader inher off-hours as well. She also enjoysgardening and home improvementprojects. She proudly displays on thesofa in her office, three beautiful,handmade tapestry pillows.

Since joining the Third DistrictCourt Appeal, Judge Wells has beenvery impressed by the preparationlevel of the judges. “The judges onthis bench take their jobs very seri-ously. They have read the briefs andmost likely reviewed the record andtranscript,” Judge Wells states. Inaddition to their professionalism,

rist, former Third District Court ofAppeal Judge Daniel Pearson. Seek-ing a change from big firm practice,in 1996, she joined Elizabeth Russoto create the law firm of Russo, Wells& Associates, a boutique firm special-izing in appellate work. That sameyear, Judge Wells became a board cer-tified appellate attorney. “I havebeen fortunate throughout my ca-reer,” she reflects, “to have practicedwith, and against, some of the finestattorneys in South Florida.”

As a young attorney at Fine,Jacobson, Judge Wells learned theimportance of public service and rec-ognized that attorneys, who have somuch, have an obligation to give backto the community. In 1999, she wasgiven a unique opportunity to putthose beliefs to the test. Judge Wellswas asked by the Florida Depart-ment of Children and Family Ser-vices to serve as its Chief DistrictLegal Counsel in Miami-Dade andMonroe counties. Although takingthe position meant leaving her estab-lished practice to join an embattledagency, she did not hesitate. “I al-ways believed that one should be in-volved in the community. The work Idid at DCF, providing legal advice onthe wide range of issues faced by thatagency, was very different from myprevious practice. It was the mostchallenging job I have held in my le-gal career, but it was also incrediblyrewarding to know that I was having

We are not seen as one of them. Weare something else. Some trial law-yers, in fact, look at us as somethingto be kept away, preferably in a glasscage that is broken “only in a case ofemergency.” That’s a shame.

While our job is often to clean uptrain wrecks, we can usually do a bet-ter job if trial counsel consults us be-fore things go completely off the rails.So, how do we work more effectivelywith trial counsel? For one thing, wemust be careful to define the bound-aries of our duties so that everyonedoes what he or she does best, andnothing falls through the cracks.

An appellate colleague just shareda too-common horror story about atrial lawyer who asked for help with

just “the dispositive legal issues” atthe trial level in a personal injurycase. They agreed that, since her trial-level work was to be very limited, herpercentage of any recovery for thatwork would be small. As the case pro-gressed, trial counsel piled more andmore work on her. Her share of thefees, however, did not change.

Eventually, she confronted the law-yer, explained that they apparentlyhad a different understanding of what“dispositive legal issues” meant, andthat she did not think handling depo-sitions fell into that category. The law-yer was not upset. He did not screamor shout. He simply asked what shethought would be fair.

At this point, the appellate lawyerdid something that every specialistwithout a serious grounding in trialpractice should do: She said that shedid appellate work, not discovery. She

explained that she would be happy towork on the otherwise attractive case,but that she would prefer to stick towhat she knew and receive the fee shenegotiated, rather than seek a greaterpercentage for work she was not quali-fied to handle. She resisted tempta-tion.

Not all trial lawyers are so reason-able, of course. Some will exploit thefact that our legal duties in litigationare inherently more fluid than the per-centages we agree to for the accep-tance of those duties.

But most simply want the best rep-resentation for their client. That’s whythey hire appellate lawyers, to givetheir clients the best representationpossible. When they do—regardless ofwhether the case is civil, criminal oradministrative—we can help more ifwe get on board earlier, and if we de-fine our role as clearly as possible.

3

THE APPELLATE PRACTICE SECTION OF THE FLORIDA BAR PREPARES ANDPUBLISHES THIS JOURNAL

John G. Crabtree, Miami .............................................................................................ChairThomas D. Hall, Tallahassee ............................................................................. Chair-electSusan Fox, Tampa ............................................................................................... Vice-ChairSteven L. Brannock, Tampa ................................................................................. SecretarySiobhan Helene Shea, Palm Beach ..................................................................... TreasurerDorothy F. Easley, Hollywood ................................................ Editor in Chief, The RecordPaul A. Avron, Miami ................................................................................ Assistant EditorBetsy Gallagher, Tampa ............................................................................ Assistant EditorShelly J. Stirrat, Stuart ............................................................................ Assistant EditorMark S. Sussman, Miami Beach .............................................................. Assistant EditorAustin Newberry, Tallahassee ...................................................... Program AdministratorDanella Montenieri, Tallahassee ............................................................................. Layout

Unless expressly stated otherwise, the Journal’s articles reflect only theopinions and ideas of the Journal’s authors.

continued page 15

Judge Wells has been struck by thecollegiality between the judges. “Al-though we don’t necessarily agreewith each other on all issues, all ofthe judges get along very well.” Shehas also been impressed by the levelof practice before the Court. “For themost part,” Judge Wells says, “thebriefings to the Court are excellentand very helpful.”

Having appeared now on bothsides of the bench, Judge Wells rec-ommends that attorneys always avail

themselves of the right to oral argu-ment. Judges appreciate oral argu-ment because it gives them thechance to confirm what they believea party’s position to be, or to clarifyquestions raised by the briefings.The general policy of the Third Dis-trict Court of Appeal is to grant oralargument to any party who requestsit. “Oral argument gives you onemore chance to present your positionto the panel and get as much infor-mation before them so they may

make the proper ruling. Litigantsshould not pass up this opportunity,”Judge Wells states.

One final word of advice. Althoughshe acknowledges that as a practitio-ner she routinely hit page limits,Judge Wells advises, “When filingbriefs, shorter is better.”

1. Rima Y. Mullins is counsel in the Miamioffice of White & Case LLP, where she prac-tices in the areas of commercial litigation andappeals.

Recent Appellate Decisions on the LegalSufficiency of Petitions for AdministrativeHearing: “The Rules Have Changed”by Gregory J. Philo1

A. IntroductionBefore 1998, a petitioner’s general

assertion disputing all of an adminis-trative agency’s material factual alle-gations was legally sufficient to obtainan administrative hearing on finalagency action.2 But in that year, thecontrolling statutes and rule wereamended to impose much stricter re-quirements in this regard. Disputesover these new, stricter requirementstook a few years to make their way upto the appellate level. Just last year,the Third District Court of Appeal con-firmed beyond question that, indeed,“[t]he rules have changed.”3 Andchanged dramatically, at that.

B. The 1998 AmendmentsSpecifically, the legislature in 1998

amended § 120.54(5)(b), Fla. Stat.(1997) (“Uniform Rules”), to add thefollowing subsection regarding whatthe uniform rules of procedure shallinclude:

4. Uniform rules of procedure forthe filing of petitions for adminis-trative hearings pursuant to s.120.569 or s. 120.57. Such rulesshall include:

a. The identification of the peti-tioner.b. A statement of when and howthe petitioner received notice ofthe agency’s action or proposedaction.c. An explanation of how thepetitioner’s substantial interestsare or will be affected by the ac-tion or proposed action.

d. A statement of all materialfacts disputed by the petitioneror a statement that there are nodisputed facts.e. A statement of the ultimatefacts alleged, including a state-ment of the specific facts the pe-titioner contends warrant rever-sal or modification of theagency’s proposed action.f. A statement of the specificrules or statutes the petitionercontends require reversal ormodification of the agency’s pro-posed action.g. A statement of the reliefsought by the petitioner, statingprecisely the action petitionerwishes the agency to take withrespect to the proposed action.4

In the very next section of the same

act, the legislature relatedly amendedsection 120.569(2), Fla. Stat. (1997)(“Decisions which affect substantialinterests”), to add the following sub-sections:

(c) Unless otherwise providedby law, a petition or request forhearing shall include thoseitems required by the uniformrules adopted pursuant to s.120.54(5)(b)4. Upon the receiptof a petition or request for hear-ing, the agency shall carefullyreview the petition to determineif it contains all of the requiredinformation. A petition shall bedismissed if it is not in substan-tial compliance with these re-quirements or it has been un-timely filed. Dismissal of a

4

Ethical and Strategic Dilemmas Posed byFederal Appellate Bars to Plain ErrorConsideration of Newly-Available Claims:The Rule 52(b) Response to a “Catch-22”by Richard C. Klugh, Jr.1

A. IntroductionLike the fairy tale kiss of a prin-

cess turning a frog into a prince, wa-tershed changes in decisional law oc-casionally convert non-issues intoclear winners while an appeal ispending. Where trial counsel hasforeseen the possibility of such super-vening changes and appellate coun-sel follows through by pursuing theissue in the initial brief, applicationof the intervening decision, if it oc-curs before the appeal is final, is as-sured. If such issues were not pre-served in the trial court (and usuallythey are not), then even appellatecounsel who thereafter anticipates achange in the law and raises the is-sue must confront the plain errorrule,2 the burdens of which cannotlogically be satisfied until a super-vening decision is actually rendered.

But the ethical bar on frivolous ar-guments impedes making contrary-to-reality plain error claims on ap-peal–such as arguing that an issuepresently foreclosed by precedentsomehow constitutes a plain and ob-vious error. And apart from directethical concerns, even where trialcounsel had the foresight to antici-pate a sea-change decision and pre-served the issue for review, the stra-tegic limitations of appellate briefingand effective argument frequently donot allow for inclusion of these hoped-for legal developments. Both strat-egy and ethics thus seem to squeezeout from appellate briefing funda-mental components of law in themaking. How then does one ethicallyand effectively raise such anticipatedissues on appeal? And if the changesare unanticipated or unpreserved inbriefing, how can counsel protect theappellant or appellee from abandon-ment of the right to consideration ofthe supervening change in the law?

One answer, supported by criminalpractitioners in the wake of the re-cent federal sentencing law decision,

Blakely v. Washington, 124 S. Ct.2531 (2004),3 is that plain error re-view is an independent obligation ofboth trial and appellate courts. Thus,when a fundamental case law shiftsuch as Blakely occurs, the court maysua sponte notice the error–even ifnever previously raised–or may, atthe least, notice the error upon filingof supplemental authority or asupplemental brief. But this ap-proach has recently been rejected ina series of decisions by the U.S. Courtof Appeals for the Eleventh Circuit,leaving appellate attorneys scratch-ing their heads as to what to do. Thisarticle briefly traces the developmentof Eleventh Circuit law on this ques-tion, and suggests that the ethicaland practical concerns arising froma narrow reading of the plain errorrule warrant reconsideration of thatposition and adoption of the consen-sus view that the plain error ruleapplies equally to all courts, at boththe trial and appellate levels.

B. The Development of the Elev-enth Circuit’s Approach to Con-sideration of Supplemental Is-sues Not Raised in the InitialBrief.

Before the year 2000, precedent ofthe Eleventh Circuit and the formerFifth Circuit frowned upon, but didnot bar, the consideration of supple-mental issues not presented in appel-late briefing. For example, inMcGinnis v. Ingram Equipment Co.,918 F.2d 1491, 1496 (11th Cir. 1990),the Eleventh Circuit recognized thata waiver rule “normally” applies toissues not raised in the initial briefon appeal, but that the court of ap-peals has the authority to acceptsupplemental briefing on a newly-raised issue not included in the ini-tial or reply briefs in order to correcta manifest injustice.4 This flexibleapproach, while not expressly refer-ring to the plain error rule applicable

to criminal cases, reflects civil proce-dure congruence with the conceptsunderling criminal law plain erroranalysis.5

This pragmatic approach, akin tothe precepts of the plain error rule,began to fall by the wayside only af-ter June 26, 2000, when the SupremeCourt issued its momentous criminallaw decision in Apprendi v. New Jer-sey, 530 U.S. 466 (2000), holding thatthe jury verdict sets the limit of thestatutory maximum sentence avail-able upon a criminal conviction. Pre-viously, federal courts (and manystate courts) had treated certainmaximum sentence-gradation provi-sions in the criminal code–particu-larly those relating to drug quantity–as “sentencing factors” to beconstitutionally distinguished fromordinary offense elements that mustbe submitted to the jury. But inApprendi, the Supreme Court ex-plained that if the statutory maxi-mum rises as a result of fact finding,the defendant has the right to jurydetermination of the relevant facts.Because many federal criminal sen-tences are longer than 20 years ofimprisonment–the default statutorymaximum for most drug crimes6–federal appellate courts were quicklyconfronted with numerous claims ofsentence illegality under Apprendi.But because both trial and appellatecriminal practitioners failed to antici-pate Apprendi, the claims were oftenraised in supplemental briefs. Whilethe Eleventh Circuit heard most ofthese supplemental claims on a plainerror basis, in some cases the courtblocked even plain error review,deeming the issue forfeited.

In United States v. Nealy, 232 F.3d825, 830 (11th Cir. 2000), the Elev-enth Circuit began to redefine theCircuit’s approach to untimely-raisedarguments, holding that such supple-mental issues would not be consid-ered on appeal where appellant’s

5

continued page 18

counsel had proceeded, without leaveof court, to add supplementalApprendi issues on appeal, providingno opportunity for appellee’s counselto respond. In Nealy, the appellanthad raised the Sixth Amendmentcomponent of the Apprendi issue andwas granted leave to file a supple-mental brief as to that claim; hissupplemental brief sought to broadenthe issue to include Fifth Amend-ment arguments arising out of post-Apprendi case law. The Nealy deci-sion did not purport to bar allsupplemental briefs on interveningissues, nor was Nealy nominallymore than a discretionary applica-tion of then-existing local EleventhCircuit rules concerning supplemen-tal authority and related briefs.7

Thus, while the Court concludedthat “parties cannot properly raisenew issues at supplemental briefing,even if the issues arise based on theintervening decisions or new devel-opments cited in the supplementalauthority,” the Court merely declinedto consider the supplemental briefgiven the procedural history in thatcase.8 And the Nealy response to theApprendi “emergency”–the threat ofwindfall sentences of less thantwenty years for federal drug offend-ers–was not immediately interpretedto prohibit supplemental briefing onsupervening issues not previouslybriefed, but rather to authorize andencourage the striking of such briefs.

Notwithstanding Nealy, Apprendiissues raised solely in supplementalappellate briefs were heard by theEleventh Circuit in numerous pub-lished and unpublished cases.9 Simi-larly, the other circuits all permittedsupplemental briefing based uponApprendi.10

The Nealy issue took a new turnwhen the Eleventh Circuit examinedan appellant’s failure to raise anApprendi issue at any time before fil-ing a petition for writ of certiorari tothe United States Supreme Court. InUnited States v. Ardley, 242 F.3d 989(11th Cir. 2001), the panel held thateven though the Supreme Court hadremanded for consideration of anApprendi claim raised on certiorariby the illegally-sentenced defendant,the rationale of Nealy allowed thecourt, even on remand, to fail to no-tice plain error in the sentence im-posed.11 The Ardley panel decisionprovoked en banc rehearing requests,

but the majority of the court voted tolet the decision stand without rehear-ing.12 Judge Tjoflat dissented fromthe denial of rehearing in Ardley andtook exception to the view that appel-late courts can avoid applying super-vening changes in constitutional lawto correct an error. Id. at 999 n.6(Tjoflat, J., dissenting from the denialof rehearing en banc) (“[A]pplying aplain error analysis, even though itis a more narrow review, allows thecourt, in at least some instances, toimplement the new constitutionalrule.”). In an opinion concurring inthe denial of rehearing en banc, fourjudges reiterated the reliance onNealy as foreclosing appellate consid-eration of newly-raised issues insupplemental briefs, for to do sowould vitiate the time deadlines forbriefing under the federal and localEleventh Circuit rules. Id. at 992(Carnes, J., concurring in the denialof rehearing en banc) (“If thedissent’s position were adopted, noprocedural bar could ever be enforcedbecause doing so would undermine orfrustrate whatever values or doc-trines underlie the constitutional orstatutory provisions being belatedlyasserted.”)

Following the denial of rehearingen banc in Ardley, no further clarifi-cation of the Nealy interpretation ofsupplemental briefing rules was pro-vided until the new emergency cre-ated by the Blakely decision. UnlikeApprendi, the principal effects ofwhich were ultimately found to belimited to a small range of drug cases,Blakely’s impact on federal sentenc-ing is virtually limitless, because thefederal sentencing guidelines (andmany states’ guideline systems), un-like sentence maxima in the criminalcode, are only tenuously tied to theoffense of conviction and depend in-stead on a range of uncharged “rel-evant conduct.” The Blakely emer-gency was even greater than theApprendi emergency, with a flood ofsupplemental Blakely claims in ap-pellate courts–both state and fed-eral–around the country.

In the immediate wake of Blakely,a few Eleventh Circuit judges ini-tially proposed to allow “re-briefing”in which the initial briefs were to bestricken and new briefs filed so thatBlakely claims could be fully ad-dressed. But those single-judge de-cisions proved short-lived when, ad-

dressing the flood of supplementalBlakely claims, the Eleventh Circuit–unlike other circuits–took a step be-yond the holding in Nealy and heldthat no panel of the court had thediscretion to permit supplementalbriefing on an issue not raised in theinitial briefing. In United States v.Levy, 379 F.3d 1241 (11th Cir. 2004),the court characterized the issueabandonment rule as preclusive ofany opportunity to file a supplemen-tal brief raising a new issue based ona supervening change in the law.

To allow a new issue to be raisedin a petition for rehearing, or asupplemental brief, or a reply briefcircumvents Federal Rule of Ap-pellate Procedure 28(a) (5), whichrequires that an appellant’s initialbrief must contain “a statement ofthe issues presented for review.” . .. [A]n appellant’s supplementalauthority must relate to an issuepreviously raised in a proper fash-ion, and . . . an appellant cannotraise a wholly new issue in asupplemental authority letter orbrief. Levy does cite a few deci-sions where this Court apparently

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6

Deadlines for Serving Briefs: What Florida’sAppellate Courts Should Consider in PhrasingOrders Granting Enlargements of Timeby Roy D. Wasson1

A. IntroductionI write my article in my role as an

unsolicited Friend of the Courtspeaking to a routine (but significant)administrative matter applicable tomany cases, and as a self-appointedrepresentative of appellate practition-ers statewide, who frequently lamentthat the change proposed here shouldbe instituted. I respectfully suggestthat Florida’s appellate judges andcourt clerks review their phrasing oforders granting extensions of timefor principal briefs, and (where nec-essary) modify the standard phrase-ology of such orders to reflect that theact to be performed on the extendeddate is the “service” of the brief,rather than its “filing.”

Some districts2 often (or usually)issue orders granting motions for en-largement of time that require briefsto be “filed” on the same date thatthey are due to be “served.”3 Such apractice needlessly accelerates thedeadline for submission of originalbriefs for filing with the court clerk,making briefs untimely unless re-ceived by the clerks several days be-fore the dates on which they wouldbe due to be filed under the FloridaRules of Appellate Procedure, as theRules have been applied by control-ling case law.

As will be shown, the practice ofsetting a deadline for the clerk’s re-ceipt of principal briefs earlier thanthe Rules of Appellate Procedure re-quire does not advance appeals oncourts’ dockets, because the deadlinefor opposing counsel to complete thebrief which follows runs from thedate on the certificate of service ofthe earlier brief, not from the date ofits filing. It does not speed the appel-late court’s decision of a case to havethe initial brief arrive in the clerk’soffice before it is due under the Ap-pellate Rules, because the courts donot review initial briefs until the an-swer brief has been submitted. Thepractice of setting a filing deadlinedoes not place a brief in the hands ofopposing counsel any faster than it

otherwise would be. In short, there isnothing to be gained by setting a firmdate for briefs to be filed. Worse yet,orders that establish such filingdeadlines likely increase courts’workloads.

B. The Appellate Rules Do NotContain Filing Deadlines forBriefs

There is no appellate rule settinga due date for the “filing” of appel-late briefs, because the various rulessetting the times for completion ofbriefs speak only in terms of whenbriefs “shall be served.”4 Those dead-lines for service of briefs do not im-pose any due date for receipt of briefsby the court clerk for filing. “Serviceby mail shall be complete upon mail-ing,” not upon delivery to the court,or upon postmarking, or on any otherevent; so briefs deposited into a cor-ner mailbox anytime before midnighton the date prescribed for service aretimely served. See Fla. R. App. P.9.420(c)(i).

The only rule that mentions anytime frame for “filing” of briefs andother papers–Fla. R. App. P. 9.420(b)–does not set a firm deadline for receiptof the items by the clerk. Rule 9.420(b)is a flexible rule that uses languagethe courts have interpreted to permitdocuments to be filed several days af-ter they are served, even where thedate for service is jurisdictional.

Rule 9.420(b) requires that “[a]lloriginal papers shall be filed eitherbefore service or immediatelythereafter.” (Emphasis added). Thatlanguage is the same as it appears inFla. R. Civ. P. 1.080(d). Analysis of thecases involving the question of thetimeliness of trial court pleadingsfiled days after their “service” dead-lines compels the conclusion thatbriefs received by the clerk for filinga few business days after their cer-tificate of service date are timely, ashaving been filed “immediatelythereafter.” There is nothing in theappellate rules (nor in the Rules ofCivil Procedure) that expressly or im-

pliedly requires filing on the sameday of service, or even on the nextday.

The controlling case on this sub-ject is forty years old, but still goodlaw. In Miami Transit Co. v. Ford, 155So. 2d 360 (Fla. 1963), the unsuccess-ful litigant in a trial court proceed-ing timely served its motion for newtrial nine days after the verdict, butdid not file that motion until six daysafter it was served, or fifteen daysafter the verdict. The Third Districtheld that the motion for new trial wasnot timely, but the Florida SupremeCourt reversed. In that thoughtfuldecision, which analyzes the differ-ence between service and filing, thesupreme court concludes that thereis no deadline for filing the motionother than “reasonable promptness.”5

It should be emphasized that themotion for new trial in the Ford casewas subject to a jurisdictional dead-line, not a discretionary deadline likethat applicable to service of an appel-late brief. Inasmuch as the FordCourt held that the filing of a motionfor new trial can lag behind the datesuch a motion is served by severaldays, the date that the clerk receivesan appellate brief for filing must beat least equally flexible.

A more recent Fifth District caseapplies the same rule of law to deter-mine the timeliness of a motion sub-ject to a jurisdictional deadline for“service,” and not filing:

Under the provisions of Rule9.110(b), Florida Rules of Appel-late Procedure, notices of appealseeking review of final orders oflower tribunals must be filedwithin 30 days of rendition of theorder to be reviewed unless rendi-tion is suspended by ‘an autho-rized and timely’ motion for newtrial or rehearing as provided byFlorida Rule of Appellate Proce-dure 9.020(g). In order to be ‘au-thorized and timely’ under Rule1.530(b), Florida Rules of CivilProcedure, a motion for new trialor rehearing must be served no

7

later than ten days after the dateof verdict or date of the filing of thejudgment. . . . Several cases havearisen involving service within tendays but filing beyond ten days. Itis clear that filing beyond tendays is of no consequence aslong as service is timely. Behmv. Division of Administration, 288So. 2d 476, 479-80 (Fla. 1974). Al-though it may be counter-intuitivefor civil lawyers to view service asan event of jurisdictional dimen-sion, in the case of this particularrule, timely filing is of no moment,timely service is everything.6

There is no provision in theFlorida Rules of Appellate Procedurerequiring a brief be filed on any givendate, much less on the same day it isdue to be served. An enlargement ofthe due date for a brief should notresult in a court-imposed deadline forfiling of that brief with the court clerkon the same day it is due to be served,especially when counsel is hundredsof miles from the court and is usingU.S. Mail for service.

C. “Filing” Deadlines ShortenAvailable Briefing Times bySeveral Days

When courts impose deadlines forreceipt by the clerk of a brief (“filing”),as opposed to setting a deadline forserving the brief, the appellate attor-ney writing the brief must completeit days before it is due to ensure thatthe brief reaches the court file in time.That conclusion is supported by thepractical example that a brief servedon counsel by mail late at night (mail-ing at 11:59 p.m. is timely service) andsimultaneously delivered to the Fed-eral Express drop box (or that of an-other overnight delivery service) fordispatch to the court, will not departthe originating city until the day fol-lowing “service,” and cannot be deliv-ered to the court for filing until atleast the second day after service.

One situation that arises is wherethe time for a brief to be served is ex-tended by court order until the Tues-day (the first work day) after a three-day weekend. If the court’s order alsoprovides that the brief must be filedon the date of service, then the briefwill have to go out by expedited de-livery7 on the Friday before thatTuesday. For those of us used toworking weekends and nights, thatorder setting the Tuesday deadline

for filing has reduced the availabletime to work on the brief by four fulldays. That is a hardship on the attor-ney, and potentially prejudicial to theclient.

D.Adding a Deadline for “Fil-ing” of Briefs to Orders Grant-ing Extensions for “Service”Does Not Hasten the Resolutionof Appeals

Based on the understanding of thisauthor, there would seem to be no rea-son to require filing of an initial briefbefore the date it would reach thecourt file through the normal mailingprocess, because appellate judges inFlorida do not customarily review aninitial brief until the answer brief isreceived by the court. Likewise, someappellate courts wait until the replybrief is filed to deem the appeal per-fected.8 The fact that the answer briefreaches the court file on the same dayit is served by mail to other counseldoes not hasten the court’s consider-ation of the appeal.

Because initial briefs are not likelyto be reviewed as soon as they arefiled, then it would seem to make nodifference that an initial brief is fileda few days after it is served, in theoverall scheme of things. The appealis not going to be decided any faster;the court is going to await the answerbrief (and in some courts the replybrief) before addressing the merits ofthe appeal.

Similarly, a requirement of filingan initial brief on the same day it isserved is not going to put the initialbrief copy in the hands of appellee’scounsel any faster than it would beotherwise, because the appellee’scopy still will be delivered by regularmail, regardless of when the originaland court’s copies of the brief arefiled.9 The time for the appellee’sbrief will not be any different if theinitial brief is filed on the date of ser-vice, or even several days later.

E. Filing Deadlines Add to “Mo-tion Sickness”

One very practical reason the ap-pellate courts should cease imposingfiling deadlines is that they arebound to result in increased incidentsof the three strains of “acute motionsickness.”10 One variety of that ail-ment is caused by the motions seek-ing the additional three or four dayspreviously consumed by the court’s

imposition of the filing deadline it-self. A second strain of motion sick-ness will result from the inevitablemotions to dismiss (or to strike an-swer briefs) in those appeals in whichbriefs are timely served, but do notreach the court file by the unneces-sary deadline for filing. Third will bethe motions—other than motions forextensions of time—seeking somerelief not really needed, filed only toautomatically toll the prematurely-imposed filing deadline under Fla. R.App. P. 9.300(b).11

ConclusionA day or two (or three or four) dif-

ference in the date of filing the briefhas little, if any, effect on when theopposing brief is completed, nor onwhen the appeal is perfected and de-cided. But those few extra days canmean the difference of nights with-out rest to a solo practitioner work-ing into the wee hours (decades afterlosing the stamina once used for all-night college exam cramming). It canmean the difference between thor-oughly and adequately representingthe interests of one’s client, and rush-ing to catch the courier at the lastminute with a product less than fullyhelpful to the court. Therefore, thisauthor respectfully submits that ap-pellate court extension orders shouldrecite that the extended time dead-line is for service of a brief, not adeadline for filing.

Endnotes1. Roy D. Wasson is a Florida Bar board cer-tified appellate practitioner, a former Chair-man of the Appellate Court Rules Committee,former Chairman of the Appellate PracticeSection of the Florida Bar, and shareholderin Wasson & Associates, Chartered in Miami.2. Judge Winifred Sharp of the Fifth DistrictCourt of Appeal, in a conversation with theauthor at the Florida Bar Annual Meeting onJune 23, 2004, informed the author that hercourt had voted to adopt the suggestion madein this article in response to a memo from theauthor, which was in essence a draft of thisarticle.3. Of course, many lawyers handling the oc-casional appeal will unthinkingly file motionsseeking an enlargement of time in which to“file” a brief, so orders which set filing dead-lines in response are only giving those partieswhat their attorneys asked for. This articleaddresses only the situation in which skilledappellate lawyers move to extend the time to“serve” their briefs, and are met with an orderpurportedly granting their motion, but theneffectively shortening the agreed-upon duedate by setting a date the brief must be “filed.”4. See Fla. R. App. P. 9.110(f) (“initial briefshall be served within 70 days of filing the

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notice” in final civil and probate appeals); Fla.R. App. P. 9.130(e) (“initial brief . . . shall beserved within 15 days of filing the notice” innon-final appeals); Fla. R. App. P. 9.210(f)(“answer brief shall be served within 20 daysafter service of the initial brief ”); Fla. R. App.P. 9.140(g) (“Initial briefs shall be servedwithin 30 days after service of the record” incriminal appeals); Fla. R. App. P. 9.150(d)(“brief of the . . . moving party shall be servedwithin 20 days after filing of the certificate”in questions certified by federal courts) (em-phasis added).5. 155 So. 2d at 363; see also, e.g., Poulsen v.Lenzi, 869 So. 2d 658 (Fla. 4th DCA 2004).6. Pennington v. Waldheim, 695 So. 2d 1269,1270-71 (Fla. 5th DCA 1997) (emphasisadded).

7. This example assumes the situation wherethe appellate attorney’s office is too far fromthe appellate court to hand-deliver the brieffor filing on the same date as it is served, com-mon indeed when a relative handful of appel-late practitioners handle a large percentageof the appeals throughout the state.8. In the Third District Court of Appeal, theappeal is deemed ripe for assignment to amerits panel and setting of oral argumentwhen the answer brief is filed. Other districtswait to receive the reply brief, rendering im-material (for calculating perfection dates) thedate that the preceding brief was filed.9. Opposing appellate counsel have no rea-son to care what date a brief reaches the courtfile. The appellate Bar of Florida widely (if notuniversally) share puzzlement why—whenthe lawyers on both sides have explicitlyagreed that the deadline for service of one oftheir briefs should be extended by “x” days,and “service” (not filing) is the act describedin the agreed motion to be extended until the

new deadline—some courts’ orders overlookthe agreement and impose a useless deadlinefor filing instead. Setting a filing deadline isnot in any way protecting the opposing partyfrom any risk of harm.10. See generally Dubowitz v. Century VillageEast, Inc., 381 So. 2d 252, 253 (Fla. 4th DCA1979)(“This Court is being deluged nowadayswith a plethora of pleadings which have noplace in any appellate court and which arecausing a distressing waste of time. We arein truth suffering from acute motion sick-ness.”).11. Counsel caught short by an overlookeddeadline to file a brief which he or she thoughtonly had to be served on a given date may bedisposed to inventing a request for relief otherthan a motion for the additional few dayswhich are needed, out of fear that the court’ssua sponte shortening of the requested ser-vice deadline was a conscious expression ofdisapproval of the parties’ agreed-upon duedate for service of the brief.

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State Civil Case Updateby Keith Hope1

I used to write this column back inthe old days after the Section wasformed. It’s “‘deja vu all over again.’”John Fogarty (quoting Yogi Berra).Here are some cases involving appel-late practice that came down over thelast six months.

Express mail is a usefultool, but mistakes happen

and “filing” is not thesame as “mailing” for

jurisdictional purposesalthough, perhaps, in somecases it should be. Harrell

v. Harrell, 879 So. 2d 87(Fla. 4th DCA 2004).

In a visitation and child custodycase, Appellant, a pro se party in WestVirginia, mailed her notice of appealby express (overnight) mail on thetwenty-ninth day after entry of theorder. The post office’s label indicated“second day delivery” and the noticewas received and file-stamped by theclerk (in West Palm Beach) on thethirty-second day. Timely mailing,the court noted, does not confer ju-risdiction on a state appellate court;rather, “filing” of a notice of appealmeans delivery to and receipt by aproper official. Thus, since the notice

was stamped filed on the thirty-sec-ond day, her appeal was dismissed asuntimely.

In dissent, Judge Farmer detailedthe facts from appellant’s response tothe court’s order to show cause. Sheknew her notice had to reach the trialcourt in Florida by May 5th and shemailed it at the post office by express(overnight) mail on May 4th. Thepostal clerk mistakenly marked thelabel for “second day” delivery insteadof overnight. Nonetheless, appellantcalled the post office tracking numberand learned that the notice was in-deed delivered at 12:47pm on May 5thto a satellite office of the circuit courtclerk’s office in Del Ray Beach.

The dissent surmised that whatmight have happened was that theclerk at the satellite office sent the

notice (unstamped) to the main officewhere it was eventually file-stampedon May 7th. He noted that appellatecourts are not generally fact-finders,but that a remand to the trial courtfor an evidentiary hearing on whenthe notice was actually delivered toand received by the clerk was a pos-sible solution.

Moreover, the dissent noted thatthe rigid rule on the filing of a noticeof appeal has been made subject to ajudge-made mailbox exception in-volving primarily the filing of post-conviction relief motions by prisonersin criminal cases. While the rationalefor the exception—constitutional ac-cess to courts—originated in casesinvolving habeas corpus and illegalconfinement, the dissent noted thatthe mailbox exception has not beenconfined solely to such cases but hasalso been applied to (1) a prisoner’scommon law replevin action; (2) anonpayment of child support case;and (3) a prisoner’s civil right’s ac-tion—all civil matters and none ofwhich involved claims of illegal con-finement. The dissent noted that theholdings in these latter cases suggestthat the mailbox exception is asstrongly based on the constitutionalright of access to the courts by civillitigants as it is on the right to ha-beas corpus by prisoners. The dissentis well written and makes a strongcase.2

DEADLINESfrom previous page

9

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Inadequate findings offact in dissolution casesmust be brought to the

trial court’s attention viaa motion for rehearing to

preserve such error forappeal. Mathieu v.

Mathieu, 877 So. 2d 740(Fla. 5th DCA 2004).

After a final judgment in a disso-lution of marriage case, the husbandfiled a detailed motion for rehearingraising five issues of law and, in ad-dition, asserted that several of thecourt’s findings of fact on the singleissue of attorney’s fees were not sup-ported by the record. In a case of firstimpression, the court followed aThird District case and held that aparty cannot complain about inad-equate findings of fact in a dissolu-tion case unless such defect wasbrought to the trial court’s attentionin a motion for rehearing. Since theissue of “findings of fact” was onlyraised as to attorney’s fees, the issuewas not preserved for appeal as to theother issues raised. The court notedthat its holding was subject to thecaveat that since the main reason foradequate findings is to allow formeaningful appellate review, if thecourt determines in a particular casethat its review is hampered by lackof adequate findings, it may in its dis-cretion remand to the trial court forsuch findings.

Don’t let the magicwords “without prejudice”fool you: they do not neces-sarily make a final ordernon-final for purposes of

appeal. Delgado v. J.Byrons, Inc., 877 So. 2d 822

(Fla. 4th DCA 2004).

This case involves a recurring is-sue that is a trap for the unwary ap-pellate practitioner. In a negligencecase, the trial court entered an orderon February 13, 2003, grantingdefendant’s motion to strike

plaintiff ’s pleadings and for sanc-tions based on discovery violations.The order stated in part: “Plaintiff ’spleadings are stricken and cause dis-missed w/o prejudice.” Thereafter,defendant sought attorney’s feesbased on a proposal for settlementand entry of final judgment.

The trial court awarded such feesand entered final judgment on Sep-tember 9, 2003. Plaintiff then filed anotice of appeal from both the Feb-ruary and September orders. Thecourt noted that while the phrase“without prejudice” normally indi-cates an order is not final, nonethe-less, if the effect of the order is to dis-miss the case, such language does notaffect the finality of the order. Inother words, dismissal without preju-dice is final where its effect is to“bring an end to judicial labor.” Thefirst order ended the judicial labor onthe merits of the case and requiredplaintiff to file a new action to re-ini-tiate it. But since the four-year stat-ute of limitations had run, she couldnot do so. Therefore, the “withoutprejudice” language did not preventthe first order from being a final, ap-pealable order. Since the first orderwas not timely appealed, the appealwas dismissed as to the propriety ofthe dismissal.

Although unstated, it helps to un-derstand the result to know that theissue of attorneys’ fees is consideredin Florida to be a collateral issue, i.e,even though there was still “judiciallabor” to be done on that issue, as wellas the entry of the final judgment,actual judicial labor on the meritsended when the trial court enteredits order in February dismissing thecase.

Authorized motions forrehearing of final orderssuspend rendition of such

orders during such mo-tions’ pendency—motionsfor rehearing of interlocu-tory, non-final orders arenot “authorized” and do

not suspend rendition. E-ZMarine Supply, Inc. v.Wachovia Commercial

Mortg., Inc., 875 So. 2d 729(Fla. 4th DCA 2004) (OnMotion for Rehearing).

I remember writing about this is-sue constantly in this column yearsago, and it’s still with us, butshouldn’t be. In a mortgage foreclo-sure case the trial court issued a non-final order entered on November 21,2003, compelling a commercial mort-gagor to make payments and obtaininsurance on certain property pend-ing foreclosure. Within ten days ofsuch order, appellants filed a motionfor rehearing, and almost fourmonths later, on March 3, 2004, ap-pellants filed a notice of appeal, pre-sumably after an order denying theirmotion was filed. Florida Rule of CivilProcedure 1.530(b) permits the filingof a motion for rehearing within tendays after the “filing of the judgmentin a non-jury action.” The court notedthat this Rule has been consistentlyconstrued to authorize rehearingsonly of final orders and judgments.Since the order in this case was notfinal in nature, the motion for rehear-ing was unauthorized, it did not tollthe time for filing the notice of ap-peal, and the notice was thus un-timely.

Perhaps it would help if lawyersthought of and styled motions di-rected to non-final orders as “motionsfor reconsideration” and not as mo-tions for “rehearing,” and remem-

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bered that regardless of when thecourt rules on the motion for “recon-sideration,” no tolling occurs and theyonly have thirty days to appeal fromthe non-final order.

When is getting a mo-tion for extension to file a

brief granted a pyrrhicvictory? Paul Revere Life

Ins. Co. v. Kahn, 873 So. 2d595 (Fla. 3d DCA 2004).

Besides winning and getting paid,nothing is more important to appel-late practitioners than having mo-tions for extensions to file briefsgranted. In this case, the circuit courtappellate division granted such amotion but only up to the day thetrial transcript was to be completed.Noting that it is fundamentally un-fair to require a party to prepare a

brief without the benefit of a tran-script, and that Florida’s long-stand-ing policy is in favor of deciding caseson the merits, the Third District heldthat the appellate division’s miserlygrant of the extension only until thetranscript was prepared departedfrom the essential requirements oflaw. The court granted the unopposedpetition for certiorari, and quashedthe order with instructions to givethe party an additional eighteen dayextension to file the brief.

In calculating the thirty-day time for filing the

notice of appeal, be wary ofmultiple file-stamped

dates! And again, don’t gettoo hung up on the pres-

ence or absence of thephrase “without preju-dice.” Pompi v. City of

Jacksonville, 872 So. 2d931 (Fla. 1st DCA 2004).

Appellants were landowners in aneminent domain case in which thetrial court rendered a final judgmenton a jury verdict. The judgment con-tained two clerk stamps. One titled“Filed” ran along the right edge of thepage, was legible upon close exami-nation, but not easy to read, andstated that the judgment was filed onJanuary 24, 2003. The other stamp onthe judgment titled “Filed & Re-corded,” ran horizontally, was printedin a recognizable typeface, was easierto read and revealed that the judg-ment was filed and recorded on Janu-ary 30, 2003.

A secretary for appellants’ counselcalled the clerk and was informedthat the judgment had been renderedon January 30, 2003, and the secre-tary made a memorandum of suchconversation. Appellants’ counsel cal-endared the appeal time from Janu-ary 30th and filed the notice of ap-peal on February 28, 2003.

The appellee filed a motion to dis-miss the appeal as untimely and thecourt issued an order to show cause.In response, appellants requestedthat the time for appeal be recalcu-lated from January 30th or in the al-ternative, that the court dismisswithout prejudice to their right to filea rule 1.540(b) motion in the trialcourt. The court issued a PCA thatsimply stated “Dismissed.”

The landowners then filed the rule1.540(b) motion in the trial court con-tending that the judgment should bevacated on the ground of excusableneglect. The trial court denied themotion ruling that the earlier datedfile stamp governed over the later onebut also ruled that relief was barredby the law of the case doctrine. Thetrial court reasoned that further liti-gation on the issue was precluded be-cause the appellate court had declinedto dismiss the appeal “without preju-dice.” The landowners then filed atimely notice of appeal from the orderdenying their rule 1.540 motion.

First, the appellate court notedthat the law of the case doctrine isbased on the appellate court’s deci-sion, not its opinion. For this reason,courts have held that such a decisionwith only the word “Affirmed” is thelaw of the case because an affir-mance, even if unaccompanied by anopinion, is a decision on the merits.The same does not hold, however, foran unexplained dismissal because, by

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continued page 30

11

Are Remand Orders by District Courts toBankruptcy Courts in the Eleventh Circuit“Final” Orders for Purposes of Appeal?by Paul A. Avron1

A. IntroductionA U.S. Bankruptcy Court is consid-

ered a “unit” of the U.S. District Court.28 U.S.C. § 151. However, in bank-ruptcy appeals, the District Courtfunctions as an appellate court.2

Meaning, under 28 U.S.C. § 158(a),“[t]he district courts of the UnitedStates shall have jurisdiction to hearappeals (1) from final judgments, or-ders, and decrees; (2) from interlocu-tory orders and decrees issues undersection 1121(d) of title 11 [the Bank-ruptcy Code] increasing or reducingthe time periods referred to in section1121 of such title [regarding the filingof a chapter 11 plan of reorganization];and (3) with leave of the court, fromother interlocutory orders and decrees;of bankruptcy judges entered in casesand proceedings referred to the bank-ruptcy judges under section 157 of thistitle. An appeal under this subsectionshall be taken only to the district courtfor the judicial district in which thebankruptcy judge is serving.” Thismeans that a court of appeals func-tions as the second reviewing court.3

“Although a district court, in itsdiscretion, may review interlocutoryjudgments and orders of a bank-ruptcy court, see 28 U.S.C. § 158(a), acourt of appeals has jurisdiction overonly final judgments and orders en-tered by a district court or a bank-ruptcy appellate panel sitting in re-view of a bankruptcy court, see §158(d).”4 This is so, unless some ex-ception, such as the Cohen collateralorder doctrine, to the final judgmentrule applies.5

This article addresses the issue ofwhether an order by a U.S. DistrictCourt remanding a matter to a Bank-ruptcy Court within the EleventhCircuit is a “final” order for purposesof appeal. In the Eleventh Circuit,the answer depends on the scope ofthe duties that the Bankruptcy Courtis to exercise on remand.

B. “Finality” in Federal CourtAccording to the Supreme Court,

a “final” order “is one which ends the

litigation on the merits and leavesnothing for the court to do but ex-ecute the judgment.”6 The EleventhCircuit has followed this formulationin both bankruptcy and non-bank-ruptcy appeals.7

C. The Eleventh Circuit’s Posi-tion on “Finality” in Bank-ruptcy Proceedings

However, like other circuits,8 theEleventh Circuit has recognized thatthe concept of finality in bankruptcyproceedings is somewhat more flex-ible.9 “‘In bankruptcy proceedings, itis generally the particular adversaryproceeding or controversy that mustbe fully resolved rather than the en-tire bankruptcy litigation.’”10 “Courts‘consistently consider[] finality in amore pragmatic and less technicalway in bankruptcy cases than inother situations.’”11

The Eleventh Circuit addressedthe issue of whether orders by Dis-trict Courts remanding matters toBankruptcy Courts are “final” ordersfor purposes of appeal in Jove Eng’g,stating that remand orders in bank-ruptcy proceedings could be final, solong as the remaining duties wereministerial:

A district court’s order is not de-prived of its finality merely be-cause it remands to the bank-ruptcy court. This court hasconsistently recognized that a dis-trict court order that remands tothe bankruptcy court may be a fi-nal decision if all that remains tobe done by the bankruptcy courtregarding the order is a ministe-rial duty that does not require sig-nificant judicial activity involvingconsiderable discretion.12

Several bankruptcy-related deci-sions from the Eleventh Circuit illus-trate this rule of practicality.13 InDelta Resources, Inc., 54 F.3d at 727,the Eleventh Circuit held that a Dis-trict Court order that determinedthat a creditor was entitled to post-petition interest as part of adequateprotection and calculated that inter-

est and remanded the matter to theBankruptcy Court with direction forthe debtor to make that monthly pay-ment to the creditor was final forpurposes of appeal, where the Bank-ruptcy Court was not required to de-termine anything on remand, factu-ally or legally. Likewise, in T & BScottdale Contractors, Inc. v. UnitedStates, 866 F.2d 1372, 1375 (11thCir.), cert. denied, 493 U.S. 846 (1989),the Eleventh Circuit held that a Dis-trict Court order that found that cer-tain funds constituted property of thedebtor’s bankruptcy estate and re-manding to the Bankruptcy Court foradministration was final, because theBankruptcy Court could not exerciseany discretion in implementing theDistrict Court’s order.

But in Barclays-American/Busi-ness Credit, Inc. v. Radio WBHP, Inc.(In re Dixie Broadcasting, Inc.), 871F.2d 1023, 1029 (11th Cir.), cert. de-nied, 493 U.S. 853 (1989), the EleventhCircuit dismissed an appeal of thatpart of a District Court order that in-cluded remand to the BankruptcyCourt for a determination of whetherfiling of a chapter 11 bankruptcy casewas done in bad faith, which requiredan “evaluative process” that involvedmore than ministerial duties. And inIn re Ben Hyman & Co., Inc., 577 F.2d966 (5th Cir. 1978),14 the former FifthCircuit concluded that a DistrictCourt order that remanded for a de-termination of whether a bank wasentitled to exercise the right of setoffwas not final for purposes of appeal.15

ConclusionThese decisions show that, in the

Eleventh Circuit, to the extent a Dis-trict Court order remands a matterto the Bankruptcy Court that re-quires “significant judicial activity,”that is, the exercise of discretion orthe making of further findings of factor conclusions of law, it will be foundto be an order that is not final forpurposes of appeal. If, however, theorder leaves only ministerial acts,then it will be deemed final for pur-

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12

poses of appellate review. Practitio-ners, therefore, must be careful whenreviewing remand orders in bank-ruptcy for finality purposes, to payclose attention to whether there issignificant judicial activity that re-mains on remand.

Endnotes1. Paul A. Avron practices bankruptcy andappellate law at Berger Singerman, P.A. inMiami, Florida. He is a member of The FloridaBar Appellate Practice Section, and an Assis-tant Editor of The Record.2. United States Trustee v. Fishback (In reGlados, Inc.), 83 F.3d 1360, 1362 (11th Cir.1996).3. Fishback, 83 F.3d at 1362 (“Because thedistrict court functions as an appellate courtin reviewing bankruptcy court decisions, thiscourt is the second appellate court to reviewbankruptcy court cases.”); 28 U.S.C. § 158(d)(“The courts of appeals shall have jurisdictionof appeals from all final decisions, judgments,

orders, and decrees entered under subsection(a) [regarding appeals from District Courts]and (b) [regarding appeals from BankruptcyAppellate Panels (“BAP”)] of this section.” Sec-tion (b) is inapplicable in the Eleventh Circuitwhich does not use a BAP; thus appeals fromBankruptcy Courts proceed first to the DistrictCourt and then to the Eleventh Circuit.).4. Lockwood v. Snookies, Inc. (In re F.D.R.Hickory House, Inc.), 60 F.3d 724, 725 (11th Cir.1995).5. Delta Resources, Inc. ORIX Credit Alliance,Inc. (In re Delta Resources, Inc.), 54 F.3d 722,726 (11th Cir.) (for circuit court to have appel-late jurisdiction over district court order inbankruptcy, district court’s order must be fi-nal or some exception to final judgment rule,i.e., the collateral order doctrine, see Cohen v.Beneficial Indus. Loan Corp., 337 U.S. 541, 546(1949), must apply), cert. denied, 516 U.S. 980(1995).6. Catlin v. United States, 324 U.S. 229, 233(1945).7. See, e.g., Commodore Holdings, Inc. v. ExxonMobil Corp., 331 F. 3d 1257, 1259 (11th Cir.2003) (bankruptcy); Delaney’s, Inc. v. IllinoisUnion Ins. Co., 894 F.2d 1300, 1304 (11th Cir.1990) (non-bankruptcy).8. See, e.g., Lindsey v. O’Brien, Tanski, Tanzer& Young Health Care Providers of Connecticut(In re Dow Corning), 86 F.3d 482, 488 (6th Cir.

1996); In re Amatex Corp., 755 F. 2d 1034, 1039(3d Cir. 1985).9. Commodore Holdings, Inc., 331 F.3d at1259.10. Id. (quoting In re Charter Co., 778 F. 2d 617,621 (11th Cir. 1985)).11. Jove Eng’g v. Internal Revenue Service, 92F.3d 1539, 1547 (11th Cir. 1996) (quoting Inre Amatex Corp., 755 F. 2d 1034, 1039 (3d Cir.1985)); see also Dzikowski v. Boomer’s Sports& Recreation Center, Inc. (In re Boca Arena,Inc.), 184 F. 3d 1285, 1286 (11th Cir. 1999) (tobe final for purposes of appeal BankruptcyCourt order “need not be the last order con-cluding the bankruptcy proceeding as awhole,” but it must “finally resolve an adver-sary proceeding, controversy, or entire bank-ruptcy proceeding on the merits and leavenothing for the court to do but execute itsjudgment.”).12. Jove Eng’g, 92 F.3d at 1548 (citing cases,including Howard Johnson Co., Inc. v.Khimani, 892 F. 2d 1512, 1516 (11th Cir.1990), for the proposition that a similar ruleapplies in non-bankruptcy matters); see alsoGulf Refining Co. v. United States, 269 U.S.125, 136 (1925) (act of rendering judgment forsums set forth in stipulations was ministerialduty); Turner v. Orr, 759 F.2d 817, 820 (11thCir. 1985) (act of calculating back-pay and se-niority of Air Force civilian employee wasministerial duty), cert. denied, 478 U.S. 1020(1986).13. See, e.g., Jove Eng’g, 92 F.3d at 1548 (courtheld that remand order was final for purposesof appeal where on remand Bankruptcy Courtwas only going to “perform the ministerialduty of offsetting up to $50 against any claimof [the] IRS without exercising any discretionor making any further factual or legal find-ings.”).14. This case constitutes binding EleventhCircuit authority pursuant to Bonner v. Cityof Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).15. See also Miscott Corp. v. Zaremba WaldenCo. (In re Miscott Corp.), 848 F.2d 1190, 1192-93 (11th Cir. 1988) (district court order whichincluded remand to Bankruptcy Court for de-termination of whether a bona fide settlementoffer was made and rejected thereby entitlingofferor to award of attorneys’ fees requiredevidentiary hearing, consideration of fact is-sues, entry of findings of fact which “raise[d]the responsibility of the bankruptcy court outof the realm of ministerial duties.”);Briglevich v. Rees (In re Briglevich), 847 F.2d759, 761 (11th Cir. 1988) (court dismissedappeal of district court order that includedremand directing Bankruptcy Court to recal-culate damages arising from a constructioncontract which contemplated judicial actionbeyond “merely mechanical or ministerialfindings”); TCL Investors v. Brookside Savings& Loan Ass’n (In re TLC Investors), 775 F.2d1516, 1519 (11th Cir. 1985) (court dismissedappeal of District Court order remanding toBankruptcy Court matter requiring hearingat which it would have to determine whetherthe debtor would be required to sell certainreal property); Growth Realty Companies v.Regency Woods Apts. (In re Regency WoodsApts.), 686 F.2d 899, 901 (11th Cir. 1982) (Dis-trict Court order finding that creditors werenot adequately protected and remanding toBankruptcy Court to establish adequate pro-tection was not final for purposes of appeal).

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REMAND ORDERSfrom previous page

13

Setting the Standard: A Fresh Look atFinding the Right Standard of Reviewby Betsy Ellwanger Gallagher1

A. IntroductionThe concept of standard of review

has been closely scrutinized.2 An ad-ditional short article surely seemsunwarranted, since it may be impos-sible to come up with an originalthought on the concept.3 However, itis a subject that historically has beenmuch too overlooked4 by many, sincethe Florida Rules of Appellate Proce-dure did not require briefs to includethe applicable standard of reviewuntil 2000.5 More than a passingthought should be given to the appli-cable standard, as your chances forsuccess depend heavily on the stan-dard applied.6 The time and effortput into the preparation of an appel-late brief could be for naught if theappropriate standard of review is notapplied by the court.

B. Setting the Proper Standard The application of the proper stan-

dard of review should occur at twosteps of the appellate process: (1) atthe outset, when you are evaluatingyour client’s chances for success in anappeal; and (2) when you are present-ing your case to the appellate court.7Evaluation of the prospects for suc-cess of an appeal is very often depen-dent on the applicable standard of re-view for each issue in your case.

The de novo, abuse of discretion,and clearly erroneous standards ofreview are most often applied, and onecommentator has documented overthirty variations of these standards.8

Statistically, a party to an appeal doesbetter when the appellate court is ad-dressing a pure question of law (denovo review) than when the court has

to “overturn a judge’s decision or ajury’s verdict based on factual argu-ments.”9 When an appellate court isfree to reject the trial court’s applica-tion of the law, as is the case with denovo review, it is more likely to over-turn a trial court’s decision. Therefore,it makes sense to be completely surethat, for example, the abuse of discre-tion standard applies before conced-ing the issue.

A potential party to an appeal, how-ever, should not automatically evalu-ate her prospects for a reversal as“zilch”, just because the abuse of dis-cretion standard applies. Althoughthe standard is quite amorphous,Chief Judge Alan Schwartz of theThird District Court of Appeal recom-mended the “gut reaction” test for de-termining whether or not the abuseof discretion standard applies in hisdissenting opinion in MontgomeryWard & Co. v. Pope, 532 So. 2d 722, 723(Fla. 3d DCA 1988). In applying thattest in that case, Judge Schwartzstated: “Having duly considered, then,both the record and the state of myinternal organs, I conclude ... [that thejury’s verdict on damages] fell wellwithin the jury’s province... .” TheSchwartz “gut reaction” test has beenapproved and since applied by severalFlorida courts.10

For example, in Miller v. FirstAmerican Bank and Trust, 607 So. 2d483 (Fla. 4th DCA 1992), the FourthDistrict rejected the appellees’ argu-ment that the application of the abuseof discretion standard required affir-mance in a case involving the issue ofwhether an attorney’s fee award of$242,550.15 was excessive. In writing

for the court, Associate Judge Alan R.Schwartz, perhaps dusting off an oldfavorite,11 pointed out: “On the face ofit, the order embodies an unaccept-able, even incredible result. No courtis obliged to approve a judgmentwhich so obviously offends even themost hardened appellate conscienceand which is so obviously contrary tothe manifest justice of the case.”12

C. Abandoning TraditionalStandards

It is also important to give morethan a passing thought to the ques-tion of whether it really makes senseto use a standard of review that hasbeen applied routinely by courts. Re-cently, Chief Judge Gary Farmer, ofthe Fourth District Court of Appealadvocated the application of differentstandards, rather than the blanketapplication of the abuse of discretionstandard, to the review of evidentiaryrulings in his dissenting opinion inEliakim v. State.13 While JudgeFarmer obviously did not win over hispeers, the opinion merits attentionand underscores the point that moreattention should be given to the ap-plicable standard of review. JudgeFarmer points out that, although“there are any number of supremecourt holdings”, that abuse of discre-tion is the standard to be applied inreviewing evidence rulings:

I have come to believe that thestandard of review for rulings onevidence ought to be primarily denovo or, under certain circum-stances, a mixture of de novo andabuse of discretion. This conclu-

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sion emerges from a considerationof the unique role of evidence. . . .

It is time to retreat from the no-tion of broad discretion in trialjudges and to adopt a standardrecognizing that most evidencedecisions express a system-wideapplication as to what is permis-sible evidence in our courtrooms.In doing so, the [Florida SupremeC]ourt should also consider why itbelieves that it is better for mostevidence applications to be devel-oped by trial judges without mean-ingful resort to the additional re-sources and differing perspectivesthat appellate judges bring.Judge Farmer asserts that indi-

vidual decisions on evidence are pref-erable to the “the system of broadappellate deference”–”If there aregood reasons for admitting or exclud-ing a piece of evidence, the reasonsshould be equally good in most, evenif not all, cases having the same ofsimilar circumstances.” The ChiefJudge went on to quote from a Cali-fornia decision14 that discusses whycollective appellate court decisions“as a general rule” are preferable tothe “product of any single panelmember. . . .” That dissenting opinion

underscores the necessity of continu-ing to scrutinize, with a fresh eye, theapplicable standard of review in eachappellate case.

Conclusion Do not assume, without careful con-

sideration, that a certain standard ofreview applies. Putting time into find-ing the best possible standard of reviewfor your client’s position can make thedifference between winning or losingan appeal. Since appellate briefs arenow required to include the applicablestandard of review, it is imperative thatappellate practitioners devote time tofinding the right standard of review. Insome instances, the portion of the briefaddressing standard of review could bethe most important part of the entirebrief. If you can convince the court toapply a less stringent standard of re-view, your odds of prevailing could im-prove. This important exercise shouldnot be overlooked. Sometimes carefulthought (and perhaps a little courage)may be the catalyst for an innovativeand successful challenge to the appli-cation of an otherwise tougher stan-dard of review.15

Endnotes1 Betsy Gallagher practices appellate law atCole, Scott & Kissane, P.A., in Tampa, Florida.She is a Member of The Florida Bar AppellateCourt Rules Committee, 1979-1981, and againsince 2004, of The Florida Bar Grievance Com-mittee, of The Florida Bar Appellate Practiceand Advocacy Section since 1993, Member ofThe Florida Bar Appellate Practice SectionExecutive Council since 2004, and Member ofThe Florida Bar Legal Needs of Children Com-mittee since 2003. She is also an AssistantEditor of The Record.2 Here’s a sampling: Nancy Ryan, ContainingCanakaris: Tailoring Florida’s One-Size-FitsMost Standard of Review, 78 FLA. B.J. 40 (Apr.2004); Paul A. Avron, Federal Standards ofReview for Appeals in the Eleventh Circuit,THE RECORD, J. APP. PRAC. SECTION (Spring2003); Paul R. Verkuil, An Outcomes Analysisof Scope of Review Standards, 44 WM & MARY

L. REV. 679 (Dec. 2002), Lisa Litwiller, Re-ex-amining Gasperini: Damages Assessmentsand Standards of Review, 28 OHIO N.U. L. Rev.381 (2002); Richard H.W. Maloy, ‘Standardsof Review’ – Just a Tip of the Icicle, 77 U. DET.MERCY L. REV. 603 (2000); Harvey J. Sepler,Appellate Standards of Review, 73 FLA. B.J.48 (DEC. 1999); Michael R. Bosse, Standardsof Review: The Meaning of Words, 49 ME. L.REV. 367 (1997); Raymond T. Elliget, Jr. &John M Scheb, Appellate Standards of Review- How Important Are They?, 70 FLA. B.J. 33(1996); Kelly Kunsch, Standard of Review(State and Federal): A Primer, 18 SEATTLE U.L.REV. 11 (1994); Ronald R. Hofer, Standards ofReview–Looking Beyond the Labels, 74 MARQ.

L. REV. 231 (1991); Steven Alan Childress,Standards of Review in Eleventh Circuit CivilAppeals, 9 NOVA L.J. 257 257 (1985); MauriceRosenberg, Judicial Discretion of the TrialCourt, Viewed from Above, 22 SYRACUSE L. REV.635 (1971); Calvert Magruder, The Trials andTribulations of an Intermediate AppellateCourt, 44 CORNELL L.Q. 1 (1958).3 This brings to mind the quote of ThomasCarlyle: “The man is most original who canadapt from the greatest number of sources.”4 The irony is that this was probably not aproblem for anyone taking the time to readthis.5 Amendments to Florida Rules of AppellateProcedure, 780 So. 2d 834, 838 (Fla. 2000);FLA. R. APP. P. 9.210(b)(5). The Federal Rulesof Appellate Procedure also require that theargument section of every appellant’s briefcontain “for each issue, a concise statementof the applicable standard of review... .”Fed.R. App. P. 28(a)(9). Some of the United StatesCircuit Courts of Appeals have local ruleswith the same requirement.6 Although there have always been those whobelieve opinions are driven by result and/orthat the concept is just fiction–see Metropoli-tan Dade County v. Fuller, 515 So. 2d 1312,1314 n.4 (Fla. 3d DCA 1987)—most agree that“understanding and applying the proper stan-dard of review will lead to the result that youwant.” Morris Silberman, A View from theBench, March 2003 PARACLETE 4 (St. Peters-burg Bar Ass’n).7 As Chief Judge Chris W. Altenbernd of theSecond District Court of Appeal points out,the first step to writing an effective brief is toestablish “the proper frame of mind. ... Re-member: ... Appellate courts are lawfully con-strained by: ... the proper scope of review.” Thestandard of review should be the cornerstonefor the statement of the facts and argument.Chris W. Altenbernd, Brief Writing: True Con-fessions of a Legal Grease Monkey, THE

RECORD, J. FLA. BAR APP. PRAC. SECTION (Sum-mer, 2002).8 Maloy, ‘Standards of Review’ – Just a Tip ofthe Icicle, 77 U. DET. MERCY L. REV. at 610-11.9 Raymond T. Elligett, Jr. and John M. Scheb,FLORIDA APPELLATE PRACTICE AND ADVOCACY 288(1998).10 See, e.g., ITT Hartford Ins. Co. of the South-east v. Owens, 816 So. 2d 572, 575 (Fla. 2002);Poole v. Veterans Auto Sales and Leasing Co.,Inc., 668 So. 2d 189, 191 (Fla. 1996); FloridaPower Corp. v. Coppola, 765 So. 2d 858, 859(Fla. 5th DCA 2000); Veterans Auto Sales andLeasing Co. v. Poole, 683 So. 2d 567, 568 (Fla.5th DCA 1996); Rety v. Green, 646 So. 2d 410,419 (Fla. 3d DCA 1989).11 Chief Judge Schwartz of the Third DistrictCourt of Appeal sat as an Associate Judge forthe Fourth District on the case.12 See also PICI v. First Union National Bankof Florida, 705 So. 2d 50 (Fla. 2d DCA 1997)(wherein court reversed an attorney’s feesaward without any discussion of standard ofreview finding that the award exceeded “anydefinition of reasonableness... .”).13 884 So. 2d 57 (Fla. 4th DCA 2004).14 Hurtado v. Statewide Home Loan Co., 167Cal.App.3d 1019, 1024, 213 Cal.Rptr. 712(Cal.App. 1985).15 If you chose this route you may wish to in-vest in knee pads or a prayer rug.

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petition shall, at least once, bewithout prejudice to petitioner’sfiling a timely amended petitioncuring the defect, unless it con-clusively appears from the faceof the petition that the defectcannot be cured. The agencyshall promptly give written no-tice to all parties of the actiontaken on the petition, shall statewith particularity its reasons ifthe petition is not granted, andshall state the deadline for filingan amended petition if appli-cable.(d) The agency may refer a pe-tition to the division for the as-signment of an administrativelaw judge only if the petition isin substantial compliance withthe requirements of paragraph(c).5

The Uniform Rules of Procedureessentially combined these twoamendments; and they were, them-selves, amended to provide for morespecific, stringent requirements:

(1) Unless otherwise provided bystatute, initiation of proceedingsshall be made by written petitionto the agency responsible for ren-dering final agency action. Theterm “petition” includes any docu-ment that requests an evidentiaryproceeding and asserts the exist-ence of a disputed issue of materialfact. Each petition shall be legibleand on 8 1/2 by 11 inch white pa-per. Unless printed, the impressionshall be on one side of the paperonly and lines shall be double-spaced.(2) All petitions filed under theserules shall contain:

(a) The name and address ofeach agency affected and eachagency’s file or identificationnumber, if known;(b) The name, address, and tele-phone number of the petitioner;the name, address, and tele-phone number of the petitioner’srepresentative, if any, whichshall be the address for servicepurposes during the course ofthe proceeding; and an explana-tion of how the petitioner’s sub-stantial interests will be affected

by the agency determination;(c) A statement of when and howthe petitioner received notice ofthe agency decision;(d) A statement of all disputed is-sues of material fact. If there arenone, the petition must so indi-cate;(e) A concise statement of the ul-timate facts alleged, includingthe specific facts the petitionercontends warrant reversal ormodification of the agency’s pro-posed action;(f) A statement of the specificrules or statutes the petitionercontends require reversal ormodification of the agency’s pro-posed action; and(g) A statement of the reliefsought by the petitioner, statingprecisely the action petitionerwishes the agency to take withrespect to the agency’s proposedaction.

(3) Upon receipt of a petition in-volving disputed issues of materialfact, the agency shall grant or denythe petition, and if granted shall,unless otherwise provided by law,refer the matter to the Division ofAdministrative Hearings with arequest that an administrative lawjudge be assigned to conduct thehearing. The request shall be ac-companied by a copy of the petitionand a copy of the notice of agencyaction.(4) A petition shall be dismissed ifit is not in substantial compliancewith subsection (2) of this rule or ithas been untimely filed. Dismissalof a petition shall, at least once, bewithout prejudice to petitioner’s fil-ing a timely amended petition cur-ing the defect, unless it conclusivelyappears from the face of the peti-tion that the defect cannot becured.(5) The agency shall promptly givewritten notice to all parties of theaction taken on the petition, shallstate with particularity its reasonsif the petition is not granted, andshall state the deadline for filing anamended petition if applicable.6

C. The Third District’sBrookwood Decision

In 2003, Brookwood Extended CareCenter of Homestead, LLP v. Agencyfor Health Care Administration, 870So. 2d 834 (Fla. 3d DCA 2003),7 was

the case that brought these newstricter administrative hearing peti-tion requirements to a focused head.In Brookwood, a nursing home facil-ity (“the facility”) filed an administra-tive hearing petition in which it gen-erally denied “each and every factualallegation set forth in the. . . Adminis-trative Complaint” and related docu-ments issued against the facility bythe Agency for Health Care Adminis-tration (“the Agency”); attached thereferenced administrative complaintand related documents; and alleged“that the ultimate facts will show thatat all times pertinent to the licensuresurvey [the facility] was in compliancewith all aplicable [sic] laws and regu-lations.”8 The Agency responded in ashow cause order that the facility’spetition “failed to satisfy the require-ments of Rule 28-106.201(2) of theFlorida Administrative Code, whichrequires that formal hearing requestscontain ‘a statement of all disputedissues of material fact’ and a ‘concisestatement of the ultimate facts. . . in-cluding the specific facts the peti-tioner contends warrant reversal ormodification of the agency’s proposedaction. ‘“9

Instead of amending its adminis-trative hearing petition to satisfy therequirements of Rule 28-106.201, thefacility sent the Agency a letter tak-ing issue with the Agency’s de-mands.10 In response, the Agency is-sued an amended show cause orderagain advising the facility that “ithad to comply with the requirementsof Rule 28-106.201(2) or its petitionwould be dismissed.”11 The facility re-plied by filing an administrativehearing petition virtually identical toits first “bare-bones” petition, prefac-ing it with the assertion that, amongother things, the Agency was simply“attempting to deny [the facility’s]right to a hearing based on legalpleading technicalities.”12 TheAgency denied the petition, and thefacility appealed to the Third DistrictCourt of Appeal (“Third DCA”).13

On appeal, the facility claimedthat its denial of all the facts allegedin the administrative complaint andrelated documents and its statementthat all of the facts detailed in thosedocuments were “untrue and war-ranted reversal,” combined with itsattachment and incorporation ofthose documents to its administra-tive hearing petition, constituted

ADMINSTRATIVE HEARINGSfrom page 3

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ADMINISTRATIVE HEARINGSfrom previous page

“substantial compliance with the re-quirements of subparagraph120.54(5)(b)4 of the Florida Statutesand Rule 28-106.101(2) of the FloridaAdministrative Code.”14 “They donot,” held the Third DCA.

The Third DCA went on to blockquote the statutes and rules at issueand elaborate on them at length:

[The Agency] relies on the abovestated rules and statutory provi-sions as supporting its decision.[The facility’s] counsel answerswith a recalcitrant insistence thatin previous years the unrefineddenials such as the one he assertedbelow sufficed to secure hearingson agency actions. The simple an-swer to this is that the rules havechanged. In 1998, the Florida Leg-islature amended section 120.54 toadd subparagraph (5)(b)4. See ch.98-200, § 3, at 1830-31, Laws ofFla. Section 120.569, was likewiseamended at that time to reflect themandatory nature of section120.54. The agency thereafteramended its rules. The amendedstatute and rules are crystal clear.In a proceeding governed by Rule28-106.201, the burden is now onthe person or entity petitioning foran administrative hearing to statethe ultimate facts, to identify thefacts that are in dispute, and to al-lege the facts that warrant, in thepetitioner’s opinion, reversal. Gen-eral denials and non-specific alle-gations of compliance will nolonger suffice.15

The Third DCA likewise consid-ered as “behind the times” thefacility’s suggestion that, rather thandismissing its administrative hear-ing petition, the Agency should havepassed it on to the Division of Admin-istrative Hearings (“DOAH”) to per-mit DOAH to rule on the sufficiencyof the petition.16 Specifically, theThird DCA recognized that,“[a]lthough more latitude previouslyhad been given, 1998 revisions to the[Administrative Procedure Act] nowrequire agencies to review petitionsfor compliance with these require-ments before forwarding them toDOAH” and that “[b]efore the 1998revisions, agencies commonly wouldrefer deficient petitions to DOAH and

address defects through motions tothe administrative law judge,” butthat “[t]his procedure is no longer al-lowed.”17 The Third DCA, thus, heldthat the Agency “properly refused topass [the facility’s] deficient petitionon to DOAH.”18

The facility’s “final salvo” was that“the discovery necessary to draft apetition for a hearing with the speci-ficity required in the uniform rulesand Rule 28-106.201(2), has not yetoccurred at the early stage of the pro-ceedings . . . when the petition is re-quired” (i.e., within 21 days of receiptof written notice of the Agency’s de-cision) “thus making the task impos-sible and illogical.”19 The Third DCAexplained that the response to thispoint is two fold: “First, a time exten-sion is generally available to permitthe investigation necessary to drafta petition . . . [a]nd statements madeat this point of entry into the pro-ceedings generally will not bar sub-sequent amendment of the peti-tion.”20

“Second,” the Third DCA contin-ued, “there will in most instances beat least some factual determinationsundisputed by the petitioner seekinga hearing.”21 “Just as the agency is ob-ligated to give citizenry ‘fair notice’of the charges being faced, it is fairto narrow the factual matters in dis-pute and alert the agency to the un-disputed aspects of the charges at is-sue.”22 Thus, the Third DCAreasoned, “[c]onsidering the costs as-sociated with any agency action, aneffort to tailor those expenses whilestill providing a full and fair oppor-tunity to be heard, cannot befaulted.”23 The Third DCA accord-ingly found “application of the ruleboth logical and entirely capable ofbeing accomplished.”24 “In sum,” theCourt concluded,

[the Agency] properly found [thefacility’s] hearing request to be le-gally insufficient. [The facility’s]initial hearing request amountedto no more than a conclusory state-ment disputing every fact and le-gal conclusion no matter how per-functory. Its amended request didlittle more than reiterate its ear-lier response. While a petitioner’sefforts to comply with the abovestated statutory requirementsshould be viewed for substantialcompliance so as to allow the op-portunity for a hearing and reso-

lution of the matter on its merits,the agency in this case was facedwith no more than a Petitioner’sinsistent refusal to follow theabove stated statutory provi-sions.25

Despite the facility’s noncompli-ance, the Third DCA further con-cluded that the facility should be ac-corded the opportunity to conform itspetition to the uniform rules.26 “Sec-tion 120.569 authorizes such action,as it instructs ‘[d]ismissal of a peti-tion shall, at least once, be withoutprejudice to petitioner’s filing atimely amended petition curing thedefect, unless it conclusively appearsfrom the face of the petition that thedefect cannot be cured.”27 The ThirdDCA continued:

Here, the action was dismissedonly once, that being after issu-ance of the second (the amended)order to show cause and theamended response. [The facility]is, therefore, still entitled to onemore chance to comply with therules. Taking [the facility’s] coun-sel at his word, the petition’s insuf-ficiencies were the result ofcounsel’s past experience as to theshowing necessary to secure ahearing, rather than any effort tothwart, violate, or evade the law.28

The Third DCA thus reversed andremanded for the facility “to file a pe-tition for hearing in compliance withsubparagraph 120.54(5)(b)4, Rule 28-106.201, and the statements madeherein.”29

D.Other District Courts FollowSuit

In a bundle of five similar cases,the First District Court of Appeal(“First DCA”) earlier this year citedthe Brookwood decision, and likewise“[r]eversed and remanded for peti-tioner to file an amended petition forhearing in compliance with section120.54(5)(b)4., Florida Statutes, andRule 28-106.201, Florida Administra-tive Code.”30 Also citing theBrookwood decision, the Fourth Dis-trict Court of Appeal (“Fourth DCA”)this year followed suit in Blackwoodv. Agency for Health Care Adminis-tration, 869 So. 2d 656 (Fla. 4th DCA2004).

In the Fourth DCA’s Blackwooddecision, the Agency sent to the op-erator of an assisted living facility(“the petitioner”) notice that her li-

17

cense renewal application was de-nied, specifying that, pursuant to anapplicable statute, “you do not meetthe level 2 background screening re-quirements under section435.04(4)(a), F.S., as evidenced byyour being listed as a confirmed per-petrator of abuse, neglect or exploi-tation in Department of Children andFamily Services, Final Order CaseNo. 98-3320C . . . dated August 20,1999.”31 The Agency stated in its no-tice that the petitioner’s request foran administrative hearing “must con-form to the requirements in [rule] 28-106.201 . . ., and must state the ma-terial facts [she] dispute[s].”32

The petitioner requested a formaladministrative hearing, and laterfiled an amended request in responseto a show cause order issued by theAgency.33 The petitioner’s amendedrequest failed to provide a “concisestatement of the ultimate facts al-leged, including the specific facts thepetitioner contends warrant reversalor modification of the agency’s pro-posed action.”34 “In neither her origi-nal request for hearing, nor heramended request, did [the petitioner]address the specific statement in thenotice of intent to deny, which statedthat she was a confirmed perpetra-tor of abuse, neglect, or exploita-tion.”35

The Agency entered a final orderdenying the petitioner’s request forhearing, stating in pertinent partthat her response to the Agency’sshow cause order did not cure thenoted defects.36 The petitioner ap-pealed to the Fourth DCA, which af-firmed.37 The Fourth DCA held thatthe Agency “was required to deny ahearing because the request was le-gally insufficient”, and thus that theAgency “properly denied [thepetitioner’s] request for a hearing”under the authorities discussedabove.38

ConclusionIn short, “the rules have

changed.”39 If there was ever anydoubt on the matter, it has now beenheld that “[t]he amended statute andrules are crystal clear.”40 Increasedspecificity is required in administra-tive hearing petitions in proceedingsgoverned by Rule 28-106.201. Agen-cies must dismiss deficient petitionswithout prejudice at least once. Afterthat, they may then dismiss those pe-titions with prejudice if the defi-

ciency is not cured. Petitioners, theirattorneys, and agencies alike need totake heed of these requirements toensure that only legally sufficient ad-ministrative hearing petitions prop-erly make their way to DOAH.

Endnotes1 Gregory J. Philo presently serves as ChiefAppellate Counsel for the Agency for HealthCare Administration, and is a member of theAppellate Practice Section of the Florida Barand the Appellate Court Rules Committee. Hepreviously clerked for the Honorable Anne C.Booth at the First District Court of Appeal fortwo years, and served as a Central Staff At-torney at the Florida Supreme Court for fiveyears. Mr. Philo received his law degree fromFlorida State University College of Law in1993, and lives in Tallahassee with his wifeand step-daughter. The views expressed bythe author are not necessarily those of hispresent employer, the Agency for Health CareAdministration.2 See, e.g., Iazzo v. Dep’t of Prof’l Regulation,638 So. 2d 583, 585 (Fla. 1st DCA 1994) (re-versing denial of hearing request as legallyinsufficient for lack of specificity where“[n]othing in [the statutes and rule in effectin 1987-88] imposes a requirement that aparty must specifically identify and sepa-rately dispute each factual allegation for it to

be considered a disputed factual issue enti-tling that party to a formal hearing”).3 Brookwood Extended Care Ctr. of Home-stead, LLP v. Agency for Health Care Admin.,870 So. 2d 834, 839 (Fla. 3d DCA 2003).4 Ch. 98-200, § 3, at 1830-31, Laws of Fla. (un-derscoring and strike-through type omitted).In 2003, the legislature further amended §120.54(5)(b)4.f. to even more specifically pro-vide that the Uniform Rules “shall require thepetition to include . . . [a] statement of thespecific rules or statutes that the petitionercontends require reversal or modification ofthe agency’s proposed action, including anexplanation of how the alleged facts relate tothe specific rules or statutes.” Ch. 2003-94, §2, at 673-74, Laws of Fla. (underscoring origi-nal).5 Ch. 98-200, § 4, at 1830, Laws of Fla. (un-derscoring and strike-through type omitted).6 Fla. Admin. Code R. 28-106.201 (“Initiationof Proceedings”).7 See also Cann v. Dep’t of Children and Fam-ily Servs., 813 So. 2d 237 (Fla. 2d DCA 2002)(addressing affect of the 1998 amendments atissue on timeliness of administrative hearingpetitions), and its progeny.8 Brookwood, 870 So. 2d at 836-37.9 Id. at 837.10 See id. (pertinent text of facility’s letter re-produced).11 Id. at 838.12 Id.

continued page 30

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FEDERAL RULE 52(b)from page 5

considered a new issue raised in asupplemental brief. . . . However,these decisions do not mention,much less discuss . . . any of thebinding, prior panel precedents,which preclude the raising of newissues in rehearing petitions andin supplemental and reply briefs.13

Following Levy, Eleventh Circuitjudges who had authorized re-brief-ing to include newly-raised Blakelyissues vacated their orders, and ap-pellate cases even partially briefedbefore June 24, 2004 were walled offfrom Blakely.14 Other circuits–boththose finding Blakely applicable tothe federal sentencing guidelines andthose finding Blakely inapplicable–have permitted appellants to raiseand argue Blakely sentencing chal-lenges in supplemental briefs.15

There is, moreover, an indication ofan intra-circuit conflict on the issuein the Eleventh Circuit. See Thomasv. Crosby, 371 F.3d 782, 784 (11th Cir.2004) (even if this Court erred by suasponte asking the parties to proceedon a different issue than that raisedin the briefs, “any such error was notjurisdictional”); id. at 793 (Tjoflat, J.,specially concurring) (drawing paral-lel between appellate court’s power,when justice requires, to raise newissues, and power to notice “plain er-ror”; “scope of a petitioner’s rights hasno bearing on this court’s power”)(emphasis in original).

C. Another Look at the PlainError Rule

The bright-line nature of the hold-ings and analysis in Levy and itsprogeny has brought to the forefrontsignificant questions regarding theadequacy of criminal defense repre-sentation,16 and has brought into fo-cus appellate limitations on plain er-ror review in all federal appeals, bothcriminal and civil. Given the aban-donment theory’s cut-off date forseeking application on appeal of theplain error rule to supervening legaldevelopments, appellate counselcould never obtain even plain errorreview of newly-arising claims–whether the issues were preservedbelow or not–unless the issues werealready prematurely included in thebriefs.

For criminal cases, the impact of abroad prohibition on supplementalbriefing is linked to a heightenedenforcement of waiver and defaultprinciples used to bar not only appel-late relief, but collateral relief underhabeas corpus doctrines. For if anissue is deemed waived on appeal,usually only ineffective assistance ofcounsel will excuse the default onhabeas review, absent a showing ofactual innocence–a rare occurrencein federal court.17

But the plain error rule was notmeant–as habeas default rules are–toshut courthouse doors. Rather, it wasintended to insure that manifest in-justice not go unnoticed, even if notbrought to the attention of the court.18

As Judge Tjoflat’s concurring opin-ion in Thomas explains, the plain er-ror doctrine is inconsistent with a barto consideration of claims not raisedby the parties in initial briefing.19

Federal Rule of Criminal Procedure52(b) (emphasis added) states: “Aplain error that affects substantialrights may be considered eventhough it was not brought to thecourt’s attention.” The “court” refer-enced in the rule can be an appellatecourt, not just a trial court.20 Further,Johnson v. United States, 520 U.S.461, 468 (1997), held that an error isconsidered “plain” if it is plain at thetime of appeal.21

Rule 52(b) delegates to courts thediscretion to notice “plain error.”While discretionary, Rule 52(b) re-sponsibility is left to all courts hear-ing criminal cases–trials or appeals–without regard to the adequacy ofbriefing.22

ConclusionThe merits of the plain error ap-

proach and rejection of the strictabandonment theory include: consis-tency from court to court in the in-terpretation of the plain error ruleand adherence to the plain meaningof the rule; avoidance of ethical di-lemmas for counsel who do not wishto waste a court’s time by presentingcontrary-to-present-reality, lottery-type claims; and enhancing the per-ception of judicial institutions as be-ing the repositories of justice. If theonly function of the contrary inter-pretation–that issue waiver invali-dates the plain error rule–is to avoidcorrecting manifest injustice, thatinterpretation comes at too high a

price for both the perception and re-ality of justice.

Endnotes1. Richard C. Klugh, Jr. is Deputy Chief ofAppeals, Federal Public Defender’s Office,Southern District of Florida, where he hasworked since 1986. A graduate of HarvardLaw School, Mr. Klugh was a law clerk to thelate Hon. Eugene P. Spellman, U.S. DistrictJudge, Southern District of Florida.2. For federal criminal cases, Fed. R. Crim. P.52(b) provides: “A plain error that affects sub-stantial rights may be considered even thoughit was not brought to the court’s attention.” Infederal civil cases, the plain error rule is nottextual, but is nevertheless applied. See SECv. Diversified Corporate Consulting Group, 378F.3d 1219, 1227 n.14 (11th Cir. 2004) (“In anexceptional civil case, we might entertain theobjection by noticing plain error. ‘Although theCivil Rules, unlike the Criminal Rules, do notcontain a formal provision allowing the appel-late courts to notice plain error, the appellatecourts have held in a few cases that despitethe absence of an objection they may consideran error so fundamental that it may have re-sulted in a miscarriage of justice.’”) (quoting9A Charles Alan Wright & Arthur R. Miller,Federal Practice and Procedure § 2472 (2ded.1995) (internal alteration omitted)).3. In Blakely, decided on June 24, 2004, theSupreme Court held that the term “statutorymaximum,” i.e., the maximum sentence towhich a defendant is exposed by virtue of aconviction of any given criminal offense, refersnot merely to traditional statutory offense defi-nitions and sentence limits, but also to sen-tencing guidelines, if the sentencing court isconstrained by law from imposing a sentencebeyond the guideline maximum unless addi-tional facts–not within the four corners of thecrime of conviction–must be determined by thejudge rather than proven beyond a reasonabledoubt to a jury. 124 S. Ct. at 2537 (“In otherwords, the relevant ‘statutory maximum’ is notthe maximum sentence a judge may imposeafter finding additional facts, but the maxi-mum he may impose without any additionalfindings.”) (emphasis in original). Such atransfer of fact-finding authority from a juryto a judge, without the consent of the defen-dant, violates the Sixth Amendment jury trialguarantee. Id. at 2538. And in the federalsystem, precedent indicates, if not compels,that such sentence-maximum increasing factsmust also be pled in the indictment. SeeUnited States v. Cotton, 535 U.S. 625, 632(2002) (accepting government’s concession thatsentencing beyond statutory maximum basedon unindicted element of offense plainly vio-lates Fifth Amendment’s Grand Jury Clause;holding plain error review applicable whereissue not previously raised); In re Winship, 397U.S. 358 (1970) (constitutional right to trial byjury and proof beyond a reasonable doubt ap-plies to all elements of the offense).

Blakely likely renders the United StatesSentencing Guidelines, as presently adminis-tered, unconstitutional. The issue of whetherBlakely applies to the federal guidelines iscurrently pending before the Supreme Court,which heard oral argument on October 4, 2004,in two consolidated cases in which lower courtsinvalidated sentencing enhancements. SeeUnited States v. Booker, 375 F.3d 508 (7th Cir.

19

Appellate Practice WorkshopJuly 20-22, 2005

At the new Stetson University campus.

Watch for more details and registrationinformation in the Spring issue of The Record.

2004), cert. granted, 125 S. Ct. 11 (U.S. 2004);Fanfan v. United States, No. 03-47, 2004 WL1723114 (D. Me. June 28, 2004), cert. granted,No. 04-105 (U.S. Aug. 2, 2004). Media accounts,and independent review of a transcript, of theoral argument reflect that a majority of theCourt views Blakely as applicable to the fed-eral sentencing guidelines. See Linda Green-house, Justices Show Inclination to Scrap Sen-tencing Rules, N.Y. Times, Oct. 5, 2004, at A13(available at www.nytimes.com/2004/10/05/politics/05scotus.html) (“Most of the justices onMonday appeared prepared to apply that de-cision [Blakely v. Washington] to the federalguidelines, despite the vigorous effort of PaulD. Clement, the acting solicitor general, to per-suade the court otherwise.”); Charles Lane,Sentencing Rules Get Hearing, WashingtonPost, Oct. 5, 2004 at A03 (available atwww.washingtonpost.com/ac2/wp-dyn/A7004/2004Oct4) (“The Supreme Court gave a coolreception to the Bush administration’s plea tosave the rules that federal judges use in sen-tencing offenders yesterday, with a slim butfirm majority of the court casting doubt on theguidelines’ constitutionality during a specialtwo-hour oral argument”).4. See McGinnis, 918 F.2d at 1496 (decidingnot to allow supplemental briefing where“there would be no manifest injustice if wedecline to address” such new arguments); seealso FSLIC v. Haralson, 813 F.2d 370, 373(11th Cir.1987) (“[W]e decline to apply thewaiver rule. . . on the specific facts of this casebecause we find that the purposes of that rulewould not be served.”).5. See SEC v. Diversified Corporate Consult-ing Group, 378 F.3d at 1227 n.14.6. The default statutory maximum applieswhere no additional factual findings are made,apart from occurrence of the drug offense it-self.7. The language of 11th Cir. R. 28-1, IOP 6,on which the Nealy court principally relied forits interpretation of supplemental briefingrules as extending only to issues previouslybriefed and not applicable to newly-raised is-sues, is no longer in the present version of therule, and the inferences drawn from that lan-guage are therefore subject to question, par-ticularly where the Federal Rules of AppellateProcedure do not restrict supplemental brief-ing to issues available to appellants at the timeof initial briefing. See Fed. R. App. P. 28(c).Similarly, Federal Rule of Appellate ProcedureP. 28(j) now authorizes parties to “promptly”advise the appellate court of “pertinent andsignificant authorities” which come to the par-ties’ attention after the brief has been filed,without limitation as to whether new issuesmay arise from such decisions. Cf. Thomas v.Arn, 474 U.S. 140 (1985) (a circuit court rule isvalid if it complies with the Constitution).8. 232 F.3d at 830-31 n.6.9. See, e.g., United States v. Gerrow, 232 F.3d831 (11th Cir. 2000) (addressing Apprendi is-sue raised by way of supplemental brief under“plain error” standard); United States v. Tho-mas, 242 F.3d 1028 (11th Cir. 2001) (address-ing the merits of an Apprendi issue raised forfirst time in supplemental brief (located at2000 WL 33977923); initial brief (located at2000 WL 33989638) had simply challengedevidentiary ruling at trial, and denial of accep-tance of responsibility)); United States v. Diaz,248 F.3d 1065, 1104 (11th Cir. 2001) (address-ing Apprendi issue raised by way of supple-

mental brief, but finding it moot in light ofdecision on separate ground to vacate sen-tences and remand for resentencing); UnitedStates v. Audain, 254 F.3d 1286, 1288 (11th Cir.2001) (government conceded Apprendi viola-tion and need for resentencing based on argu-ment raised for first time in supplementalbrief); cf. United States v. Gray, 260 F.3d 1267,1282-84 (11th Cir. 2001) (court may itself suasponte raise and address issues the partiesthemselves neglected to raise during the ini-tial full round of briefing).10. See, e.g., United States v. White, 238 F.3d537, 541 (4th Cir. 2001) (reviewing an Apprendiclaim for plain error where the defendant firstraised the claim in a supplemental brief);United States v. Delgado, 256 F.3d 264 (5th Cir.2001) (same); United States v. Mietus, 237 F.3d866, 875 (7th Cir. 2001) (reviewing adefendant’s Apprendi claims for plain errorafter the defendant “waived” the claims belowby failing to object at trial; the defendantraised Apprendi-type claims for the first timein supplemental briefs five days before oralargument); United States v. Poulack, 236 F.3d932, 935-37 (8th Cir. 2001) (reviewing anApprendi claim for plain error where the de-fendant first raised the claim in a “supplemen-tal brief”); United States v. Cernobyl, 255 F.3d1215 (10th Cir. 2001) (same).11. Ardley, 242 F.3d. at 990 (“In the absenceof any requirement to the contrary in eitherApprendi or in the order remanding this caseto us, we apply our well-established rule thatissues and contentions not timely raised inthe briefs are deemed abandoned.”).12. United States v. Ardley, 273 F.3d 991 (11thCir. 2001) (en banc).13. Levy 379 F.3d. at 1244 (emphasis added).The Eleventh Circuit has recently issued a de-cision in Levy considering and denying enbanc relief. United States v. Levy, No. 01-17133, 2004 WL 2755633 (11th Cir. Dec. 3,2004) (denying suggestion of rehearing enbanc). Lengthy and scholarly dissents by Cir-cuit Judges Tjoflat (joined by Judge Wilson)and Barkett expound on a number of thesame themes involving plain error review andthe efficient use of judicial resources as thosediscussed in this article.14. See United States v. Curtis, 380 F.3d 1308,1310 (11th Cir. 2004) (relying on Levy as fore-closing supplemental briefs on new issues;Levy explained the “long-standing rule in this

circuit, as well as in the federal rules them-selves, that issues not raised by a defendantin his initial brief on appeal are deemedwaived”; denying permission to file supplemen-tal brief raising Blakely claim); United Statesv. Reese, 382 F.3d 1308, 1309 n.1 (11th Cir.2004) (following Curtis; holding that appellantcould not file supplemental brief challengingsentencing enhancement as violation ofBlakely, when it was not raised in initial brief);United States v. Hembree, 381 F.3d 1109 (11thCir. 2004) (motion to file supplemental briefon Blakely grounds deemed impermissible);United States v. Duncan, 381 F.3d 1070 (11thCir. 2004) (order denying motion to permitsupplemental brief raising Blakely issue;Blakely challenge has been abandoned).15. See Burrell v. United States, 384 F.3d 22 (2dCir. 2004) (merits analysis of pro se supplemen-tal brief newly raising Blakely claim in 28U.S.C. § 2255 appeal from denial of motion notaccepted because Second Circuit determinedthat Apprendi was not retroactive, and thisappeal was from collateral proceedings); UnitedStates v. Hammoud, 381 F.3d 316 (4th Cir. 2004)(en banc) (appellant permitted to file supple-mental brief on Blakely grounds); United Statesv. Giddings, 107 Fed. Appx. 420 (5th Cir. 2004)(supplemental briefs claiming sentences unlaw-ful under Blakely accepted and issue consideredon merits); United States v. Schafer, 384 F.3d326 (7th Cir. 2004) (allowing supplemental briefarguing Blakley; remanded for resentencing);United States v. Castro, 382 F.3d 927 (9th Cir.2004) (“we have the authority to identify andconsider such sentencing issues sua sponte[and] it would be appropriate for parties withpending cases to inform this court by letter atany time . . . when a potential Blakely . . . issueexists”); United States v. Cortes, 107 Fed. Appx.760 (9th Cir. 2004) (considering Blakely supple-mental brief).16. A defendant has a constitutional right un-der Griffith v. Kentucky, 479 U.S. 314 (1987),to application of a favorable constitutional ruleof procedure established by the Supreme Courtwhile his or her case is pending on direct ap-peal. Griffith reiterated the fundamental prin-ciple of “constitutional adjudication” that anappellate court may not “disregard current law,when it adjudicates a case pending before iton direct review.” 479 U.S. at 322, 326; see alsoGriffith, 107 S. Ct. at 713 (“failure to apply a

continued next page

20

newly declared constitutional rule to casespending on direct review violates basic normsof constitutional adjudication”). According toGriffith, “a new rule for the conduct of crimi-nal prosecutions is to be applied retroactivelyto all cases, state or federal, pending on directreview or not yet final”–even where the newrule “constitutes a ‘clear break’ with the past.”479 U.S. at 326-28.17. In recent years, the Eleventh Circuit’s ap-plication of court-imposed limitations on theexercise of appellate jurisdiction have been thesubject of considerable litigation. See, e.g.,Gonzalez v. Dep’t of Corrections, 366 F.3d 1253(11th Cir.) (en banc) (finding that certificate ofappealability requirement applies to review ofdistrict court order on motion for relief fromjudgment under Fed. R. Civ. P. 60(b) in habeascases), pet. for cert. filed (July 22, 2004) (No. 04-6432); United States v. Brown, 299 F.3d 1252(11th Cir. 2002) (holding that appellate courtlacks jurisdiction to review magistrate rulingwhere no objection filed in district court), va-

cated, Brown v. United States, 538 U.S. 1010(2003) (remanding to court of appeals based onconcession of error by Solicitor General), rein-stated on remand, United States v. Brown, 342F.3d 1245 (11th Cir. 2003) (opinion reinstatedin light of pending criminal rule change ad-dressing issue); Ortega-Rodriguez v. UnitedStates, 507 U.S. 234 (1993) (reversing EleventhCircuit rule of automatic dismissal of appealsunder former-fugitive disentitlement doctrine).18. The Supreme Court’s decision in Anders v.California, 386 U.S. 738 (1967), provides ananalogy in criminal law. Anders holds that whendefense counsel finds no non-frivolous issue toraise on appeal, the appellate court must reviewthe entire record of the trial court proceedingsto determine whether counsel is correct in find-ing no colorable issue. The irony of the Nealy/Levy/Curtis approach is that a defendantwhose counsel failed to find any issue on ap-peal would receive the benefit of independentcourt review for plain error in light of a super-vening decision after counsel’s motion to with-

draw is filed, but the defendant whose counselproceeds to raise an issue on appeal loses theright to plain error review.19. Thomas, 371 F3d at 793 (Tjoflat, J., concur-ring).20. See Bhd. of Carpenters & Joiners of Am. v.United States, 330 U.S. 395, 412 (1947) (“Wehave the power to notice a ‘plain error’ thoughit is not assigned or specified.”); see also Fed. R.Crim. P. 52(b), Advisory Committee’s Note.21. See also United States v. Kramer, 73 F.3d1067, 1074 n.16 (11th Cir. 1996) (“We concludethat error is ‘plain’ under [United States v.]Olano, [507 U.S. 725 (1993),] where the ‘plain-ness’ of error becomes apparent on direct re-view.”).22. See, e.g., Macer v. United States, 538 U.S.500, 508 (2003) (recognizing appellate court’sauthority to raise sua sponte issues not briefedby counsel, including issue of counsel’s ineffec-tiveness; “There may be instances, too, whenobvious deficiencies in representation will beaddressed by an appellate court sua sponte.”).

Editor’s Column: Bryan Garner CounselsAppellate Lawyers and Judges on EffectiveLegal Writingby Dorothy F. Easley1

“Appeals are won orlost in the briefs.The rules providethe framework, thestandard of reviewcontrols the methodof decision, and therecord provides thefertile grounds forrelief. You need toknow them all. Butwriting the brief of

the appellant is the most importanttask in pursuing an appeal. You getthe job done in the brief–or you losethe appeal.”2

As appellate practitioners, we haveall experienced first-hand the agony ofa disastrous oral argument because wefailed to heed this advice. We all recog-nize that it is critical that we use ourappellate briefs to set forth our mostpersuasive and comprehensive state-ment of our position, the law, the factsand, ultimately, the arguments in sup-port of those. The usual ten or fifteenminutes we are allotted for productiveappellate oral arguments are mereraces to clarity, where questions andanswers are directed to the appeal’sdetails about finer points of law andfact, which a poorly written brief canprevent the courts from ever reaching.Yet, despite its importance, appellate

brief-writing has been largely self-taught, until now.

Bryan Garner is the president ofLawProse, Inc., in Dallas, Texas. He hasdeveloped his vision of helping the ap-pellate community rethink our tradi-tional approaches to brief-writingthrough decades of hard work and care-ful study. He was gracious enough toshare with me his work and views onappellate brief-writing.

Reviewing all of Mr. Garner’s creden-tials would consume this entire column,but we can safely describe him as oneof the “high-ranking gurus” of appellatebrief-writing. After earning his jurisdoctor from the University of Texas atAustin, Mr. Garner clerked for FifthCircuit Judge Thomas M. Reavley from1984 to 1985, worked in private prac-tice at Dallas’ Carrington Coleman firmfrom 1985 to 1988, and worked as visit-ing professor of law at the University ofTexas from 1988 to 1990. Since 1990, hehas been an adjunct professor of law atSouthern Methodist University Schoolof Law, and has given CLE workshopson legal writing and editing, legal draft-ing, and judicial writing to thousands oflawyers and judges across the countryevery year.

Mr. Garner has written more than adozen highly respected books on legalwriting, all of which are available

through major bookstores, from thepublishers directly, or online fromAmazon.com and Barnes&Noble.com.3

He has also served as a drafting con-sultant to rules committees, most re-cently the Supreme Court of Texas onthe Texas Rules of Appellate Procedure,the Judicial Conference of the UnitedStates on restyling amendments to thefederal rules, and the Supreme Court ofDelaware on restyling that state’s civiland criminal jury charges.

Q: We all know your credentials asa fine lawyer. So what prompted youto shift to making legal writing yourprimary career?A: Writing and language have been myall-consuming passions from the time Iwas fifteen or sixteen. As a teenager, Iidealistically thought that law would bethe perfect profession for someone com-mitted to excellence in the written andspoken word, so I planned to become alawyer. Then, as an undergraduate,when I began writing scholarly articleson Shakespearean linguistics, my men-tors in the English department at theUniversity of Texas were urging me topursue a Ph.D. in English. I thoughthard about it but stuck to my originalplan and entered law school at Texasright after getting my B.A. (The Deanof Liberal Arts at the time said that I

21

had sold out.)During my first week of law school, I

began writing A Dictionary of ModernLegal Usage, and I worked on it steadilyas a law student. When Oxford decidedto publish it a few years later, all sortsof doors opened for me.

Meanwhile, I was on the regular law-firm track that so many other lawgraduates take, and my goal as a prac-ticing lawyer was to make partner at myfirm. But when the books began to blos-som, I realized that I might be able todo something very different and, for me,much more meaningful.

Q: Have you always been a strongwriter?A: Relative to my peers, yes. But therehave certainly been times, in high schooland as an undergraduate, when I over-estimated my writing skills. It tooksome English professors to mark up mypapers thoroughly to show that I wasn’tbeing as clear and cogent as I thoughtI’d been. Meanwhile, though, in myspare time I’d pretty much memorizedH.W. Fowler’s Modern English Usage,Wilson Follett’s Modern American Us-age, and Bergen Evans and CorneliaEvans’s Dictionary of ContemporaryAmerican Usage.4 So, in terms of gram-matical knowledge, I was unusually ad-vanced as an undergraduate. Two of myEnglish professors openly said I shouldbe teaching their classes.

Q: Do you still practice law?A: Yes, I practice, but it’s an unusualsort of law practice. For the past decade,I’ve been hired by courts to help rewritetheir rules and jury instructions. At thefederal level, this resulted in the publi-cation of my booklet, Guidelines forDrafting and Editing Court Rules(1995). I also work on two or three ma-jor briefs each year.

Q: Today, do you consider yourselfan appellate lawyer or a writer, orboth?A: In about equal measure, I’m a law-yer, a lexicographer, an author, a gram-marian, and a teacher. Last week whenI came back from England, I filled in theimmigration form by putting “teacher/writer.”

Q: Do you think the IRAC method ofargument is the most effectivemethod in an appellate brief?A: It never has been, except for fillingup bluebooks in law-school exams. Ac-tually, the way I teach issue-framing,

the issue consists of rule-application-conclusion followed by a question mark.Part of the problem with “IRAC” is thatit postulates a highly superficial issuestatement.

One of my more original contribu-tions to the field of written advocacy isto advocate the use of the multisentenceissue statement of no more than sev-enty-five words, written in the form of asyllogism with a concrete minor premiseand ending with a question mark. I callit the “deep issue,” and the advantageis that anyone can pick it up, read it, andunderstand it. Even nonlawyers.

The deep issue promotes clear think-ing. We really must get away from thisIRAC nonsense.

Q: Do great lawyers still outlinetheir appellate briefs?A: Yes, and always before they beginwriting in earnest.

Q: What are the critical methods togood appellate brief writing?A: Take time to think hard about whatyou want to say and why. Plan your be-ginning, middle, and end. Write swiftly,without stopping to edit. Revise, andenlist as many good editors as you can.

Q: Is it practical in appellate briefsto put case citations in footnotes, asyou advocate, rather than in thebody of the brief?A: It’s a lightning-rod issue, of course.The answer is that of course it’s practi-cal, and many lawyers that I considerreally good writers do it routinely. Thekey is to say in the text what the au-thority is, and to discuss the cases con-textually so that no one ever has toglance down at the bottom of the pageto know what case you’re talking aboutor what court decided it. I’m stronglyagainst anything but reference notes. Idon’t want people looking down at foot-notes to get context. I want the author-ity up, but the volume numbers andpage numbers down.

Q: Do most appellate courts favor it?A: Well, judges around the country havebegun doing it in their judicial opinions;for example, look at the reports for de-cisions in Alaska, Delaware, Ohio, andTexas. Every time I take a vote, havingexplained my position fully, most judgesin judicial-writing seminars vote to be-gin doing it.

Q: Why is the change necessary?A: It allows you to remedy the non-para-

graphs that are endemic in our profes-sion (string citations followed byparentheticals); shorten your averagesentence length; vary your sentencepatterns; write good, meaty paragraphs;at the same time, write shorter para-graphs; avoid the unsightliness of let-ting volume numbers and page num-bers pockmark the text; check yourcitations for accuracy more readily; andmaintain a cleaner narrative line in theprose. In other words, this change inconvention can allow you to start writ-ing better.

One last note of caution: don’t sayanything substantive in a footnote ex-cept in a life-threatening circumstance.

Q: What tips do you have for mini-mizing harmful facts in appellatebriefs?A: Don’t let your opponent bring themup for the first time. You get them outon the table in the middle of your argu-ment (not at the beginning or end) andshow why they shouldn’t affect the re-sult.

Q: What tips do you have for orga-nizing briefs into their most read-able form?A: Organize around deep issues. Theseare the points of decision for the courtexpressed in a way that your nonlaw-yer relatives would understand. Figureout how many of those points there areand what they are, then order them logi-cally from strongest to weakest. Narrowthem down to three or four points if pos-sible. Jettison the truly weak points.Then write good point headings corre-sponding to the issues you’re going toinclude. That gives you a good outlineand a working table of contents.

Q: What is the average number ofrevisions you’d expect an appellatebrief to go through?A: I can’t imagine filing a brief withoutat least three; I’ve done as many assixty-five. But it all depends on howwe’re counting. If each little change thatyou save on the computer counts as an-other “version” of the document, then itcould go into hundreds. For major revi-sions in which several team membersare involved, I imagine three could beadequate.

Q: I’ve heard of Justice ThurgoodMarshall’s famous ten-page briefs,before he became a Supreme CourtJustice. Can a 10- or 15-page briefin 14-point font sufficiently cover

22

EDITOR’S COLUMNfrom preceding page

one complex legal issue?A: In the hands of a skillful thinker whoalso knows how to write, I think it typi-cally can. But advocates often mistak-enly want to fill all the available space.

Q: What jurists do you think are out-standing writers today?A: Judge Frank Easterbrook has ex-traordinary flair with the written word.So does Judge Alex Kozinski. AlthoughI admire Justice Antonin Scalia’s rhe-torical deftness, no one on the SupremeCourt today is as masterly as JusticeRobert H. Jackson was in the mid-20thcentury.

Q: Have you seen work of certain ap-pellate lawyers that you think wasespecially outstanding?A: Yes. Anyone who’s looked at my bookswill see that I favorably quote from thework of Beverly Ray Burlingame of Dal-las (clean, tightly reasoned arguments);Steven Hirsch of San Francisco (greatintroductions); Steven Shapiro of Chi-cago (great introductions); and, ofcourse, Theodore Olson of Washington,D.C. (terrific overall). There are cer-tainly others whose work I admire:Terence G. Conner of Miami; MikeHatchell of Tyler, Texas; Evan Tager ofWashington, D.C.; and Steven Wallachof New York City. I’m fortunate to seethe work each year of some superb ad-vocates.

Q: Are law schools today doing a bet-ter job of producing lawyers whocan write?A: Yes, but . . . oh, there’s so much to sayhere, and it would overwhelm the restof the piece. The law schools are betterthan they used to be. But we must re-member that almost all highly effectivewriters are to a great degree self-taught.So it’s not as if your schooling marks anend with this type of skill.

Q: How far have we come in legalwriting in the last ten years?A: I see improvements, but they’re gla-cial, in that they are very slow-moving.

Q: What more is needed to improvewriting in law?A: In law schools, hiring for legal-writ-ing positions needs to be on a par with

hiring for torts or contracts professors;there need to be chairs and professor-ships in the subject to attract the bestminds. In practice, lawyers as a wholeneed to view themselves as professionalworkers in words. They need to studythe literature on effective writing andspeaking–the old-fashioned arts ofrhetoric–to hone their skills.

They also need to be less self-satis-fied, and to realize that no matter howadept they think they already are,they’ve barely scratched the surface.There’s an enormous body of knowledgethat they need to master, and few havecome close. It’s partly a matter of notletting your previous schooling get inthe way of your ongoing education.

Q: What do you recommend lawyersread in their free time to improvetheir writing?A: Start with reading John Trimble’sbook, then Sheridan Baker’s, then per-haps my Elements book. Round out thefirst year of reading with WilliamZinsser’s work.5 Seriously, I recommendthat lawyers read at least one book eachquarter on language and writing.

Q: What projects are you spendingmost of your professional time onthese days?A: I’ve just finished the big new eighthedition of the unabridged Black’s LawDictionary,6 as well as The Rules of Golfin Plain English.7 Now that I have four-teen or so books in print, my workdaysare often a matter of trying to keepthese books up to date. So at any giventime I’m working on improvements tofuture editions of one book or another.And then of course I’m teaching semi-nars for lawyers and judges week afterweek.

Q: What are some of your upcomingprojects?A: I’ll soon be starting a new slate ofseminars, mostly on the West Coast. Iwill be returning to Florida in Februaryor March of 2005. You can find out thelocations by checking lawprose.org.8

ConclusionA California state appellate court

underscored the vital nature of high-quality appellate brief-writing this way:

The appellate practitioner who takestrial level points and authorities and,without reconsideration or addi-tional research, merely shovels theminto an appellate brief, is producing

a substandard product. Rather thanbeing a rehash of trial level pointsand authorities, the appellate briefoffers counsel probably their best op-portunity to craft work of original,professional, and, on occasion, liter-ary value.9

Anyone familiar with the works ofBryan Garner knows that he is revolu-tionizing appellate brief-writing to helpthe appellate community do just that.

Endnotes1. Dorothy F. Easley is a Florida Bar board cer-tified appellate practitioner and partner withSteven M. Ziegler, P.A., specializing in healthand managed care law, employment law andstate and federal appeals. She is currently amember of the Executive Council of the Ap-pellate Practice Section and its various com-mittees, and member of The Florida Bar Ap-pellate Court Rules Committee.2. Dennis Owens, Appellate Brief Writing inthe Eighth Circuit, Mo. Bar. J. (Mar./Apr.2001). Dennis Owens of Kansas City, a Fel-low of the American Academy of AppellateLawyers, has been editor-in-chief of theAmerican Bar Association’s Appellate Prac-tice Journal since 1988.3. Bryan Garner’s books include: Black’s LawDictionary (West, most recently the 8th ed.2004); Garner’s Modern American Usage (Ox-ford Univ. Press, 2003); The Elements of Le-gal Style (Oxford Univ. Press, 2002); A Dictio-nary of Modern Legal Usage (2d ed., OxfordUniv. Press, 1995); The Winning Brief (OxfordUniv. Press, 1999); A Handbook of Basic LawTerms (West, 1999); A Handbook of BusinessLaw Terms (West, 1999); Securities Disclosurein Plain English (CCH, 1999); The Oxford Dic-tionary of American Usage and Style (OxfordUniv. Press, 2000); A Handbook of CriminalLaw Terms (West, 2000); A Handbook of Fam-ily Law Terms (West Group, 2000); Legal Writ-ing in Plain English (Univ. Chicago Press,2001); The Redbook: A Manual on Legal Style(West, 2002); Guidelines for Drafting andEditing Court Rules (Admin. Office U.S.Courts, 1996); Chapter 5, The Chicago Manualof Style (Univ. Chicago Press, 2003); The Ele-ments of Legal Drafting (Oxford Univ. Press,in progress).4. H.W. Fowler, Modern English Usage (2d ed.1965); Wilson Follett, Modern American Us-age (1966); Bergen Evans and Cornelia Evans,Dictionary of Contemporary American Usage(1957).5 The published works are: John Trimble,Writing with Style (2d ed. 2000); SheridanBaker, The Practical Stylist (8th ed. 1998);Bryan Garner, The Elements of Legal Style (2ded. 2002); William Zinsser, On Writing Well(6th ed. 1998).6 Black’s Law Dictionary (West, July 2004).7 The Rules of Golf in Plain English (Univ.Chicago Press, May 2004)8 Anyone wanting more information can reachBryan Garner through LawProse, Inc., athttp://lawprose.org.9. In re Marriage of Shaban, 105 Cal. Rptr. 2d863 (Ct. App. 4th Dist. 2001).

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Membership Survey of the Appellate Practice Sectionof The Florida Bar

This is a confidential survey. It is being conducted by the Appellate Practice Section of The Florida Bar. The Section isconducting this survey to learn more about its membership so that the Section can better serve the needs and interests ofits members. For those of you having email and being able to complete the Survey online, if you have not yet received thatonline Survey via email, please go to the Appellate Practice Section Website Homepage at http://flabarappellate.org/ andclick on the Survey Link in the left column and follow all instructions to provide your email address. After you provide youremail address, an online Survey will be emailed to you in February, 2005. For those of you who do not have access toemail, please complete the Survey below and mail your completed Survey to Austin Newberry, Professional Development,The Florida Bar, 651 East Jefferson Street, Tallahassee, FL 32399-2300 or fax to 850-561-5825. Thank you in advancefor your feedback.

1. How many lawyers are in your law firm?

" 1 " 41-60" 2-5 " 61-80" 6-20 " 81-100" 21-40 " More than 100

2. How many appellate lawyers in your firm?

" 1" 2-5" 6-10" 11-20" More than 20

3. What percentage of your practice is:

Appellate _____Trial Level Support as Appellate Co-counsel _____Trial _____Transactional (or non litigational) _____

4. Do you handle any appeals on a contingency fee basis?

" YES" NO

5. Do you handle any appeals on a fixed or flat fee basis?

" YES" NO

6. Do you handle any appleas on an hourly basis?

" YES" NO

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7. What is your standard hourly rate for appellate work?

______________

8. What percentage of your appeals are:

Contingency Fee _____ Hourly _____Fixed or Flat Fee _____ Combination of Above _____

9. What percentage of your appeals are:

Civil _____Criminal _____Family _____Administrative _____Worker’s Compensation _____Bankruptcy _____Other _____

10. What percentage of your appeals are:

Federal _____ State _____

11. On average, how many appeals do you handle each year?

_____________

12. On average, how many oral arguments do you make each year?

_____________

13. On average, how many principal briefs (not counting reply briefs) and original petitions do you file each year.

_____________

14. On average, how many extraordinary writs do you file each year?

_____________

15. Please check all of the courts in which you have appeared by brief or oral argument.

" Supreme Court of Florida" First District Court of Appeal" Second District Court of AppealCircuit" Third District Court of Appeal" Fourth District Court of Appeal"Fifth District Court of Appeal"Supreme Court of the United States"United States Court of Appeals for the Eleventh" Other, Please Specify __________________________________

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16. Have you ever filed an amicus curiae brief on behalf of a person, entity, or orgaization?

" YES" NO

17. Are you board certified by The Florida Bar in appellate practice?

" YES" NO

18. Are you board certified by The Florida Bar in any other practice area? If yes, please state which one.

" YES _____________________________________________________________

________________________________________________________________" NO

19. Would you consider yourself an active member of the Section?

" YES" NO

20. Have you participated on one of the Section’s committees? If not, why not?

" YES

" NO ______________________________________________________________

________________________________________________________________

21. If not, would you like information about involvement in our committees?

" YES" NO

22. What other topics would you suggest we form a committee to address?________________________________________________________________

________________________________________________________________

23. Have you ever accessed the Section’s website, www.flabarappellate.org?" YES" NO

24. If not, why not? (If so, skip this question and answer the next one.)_________________________________________________________________

________________________________________________________________

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25. If so, did you find the website:

" Very Useful" Somewhat Useful" Not Useful

26. Do you read The Record?

" YES" NO

27. If not, why not? (If so, skip this question and answer the next one.)________________________________________________________________

________________________________________________________________

28. If so, do you find The Record:

" Extremely Informative" Informative" Neither Informative Nor Not Informative" Not Informative" Extremely Not Informative

29. What topics would you like to see addressed more frequently in The Record?

________________________________________________________________

________________________________________________________________

30. What topics would you like to see addressed less frequently in The Record?

________________________________________________________________

________________________________________________________________

31. Do you use the Florida Appellate Practice Guide created and updated by the Appellate Section?

" YES" NO

32. If not, why not? (If so, please skip this question and answer the next one.)

________________________________________________________________

________________________________________________________________

33. If so, do you find the Florida Appellate Practice Guide to be:

" Very Useful" Somewhat Useful" Not Useful

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34. How would you like to receive updates to the Florida Appellate Practice Guide?

" By U.S. Mail" By email in a .pdf format" By email in a Word format" By email in a Word Perfect format" Other, Please Specify _______________________________________________

35. Overall, how satisfied are you with the Appellate Practice Section?

" Extremely Satisfied" Satisfied" Neither Satisfied Nor Dissatisfied" Dissatisfied" Extremely Dissatisfied

36. Which of the following events have you attended in the past year?

" Section Committee Meetings" Executive Council Meetings" Section Reception" Dessert Reception" Section Luncheon" CLE Program Sponsored or Co-Sponsored by the Section" Discussion With The Supreme Court" Other, Please Specify _______________________________________________

37. Did you attend the last Section Retreat?

" YES" NO

38. If not, why not? (If so, skip this question and answer the next one.)

________________________________________________________________

________________________________________________________________

39. If so, did you find the Section Retreat to be:

" Very Worthwhile" Somewhat Worthwhile" Not Worthwhile

40. Was there any event that you learned about after the fact that you would have attended had you know about it? If so, which one?

" YES _____________________________________________________________

" NO

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41. Are you interested in attending a Section Retreat?" YES" NO

42. If so, please indicate your preference as to the duration of the retreat.

" One night" Two nights" More than two nights" Other, Please Specify _______________________________________________

43. Would you prefer the Section Retreat to be held on

" Weekend Days Only" Week Days Only" A Combination of Week Days and Weekend Days

44. Where would you like the Section Retreat to be held? (Please check as many as apply.)

" Amelia Island, Florida " Key West, Florida" Bahamas " Naples, Florida" Charleston, South Carolina " New Orleans, Louisiana" Colorado " Savannah, Georgia" St. Augustine, Florida " Other, Please Specify _________________

45. What time of year would you prefer to attend a Section Retreat?

" Spring " Summer" Winter " Fall

46. How far in advance do you prefer to receive information about an upcoming event?

________________________________________________________________

47. How far in advance of an event do you usually make a decision to attend?

________________________________________________________________

48. What is your preferred location for Section events?

" Tampa Area " Orlando Area" Miami Area " Jacksonville Area" Ft. Lauderdale Area " Other, Please Specify ____________________

49. What is the highest level of education you have attained.

" J.D." L.L.M." Other, Please Specify _______________________________________________

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50. Where is your office located?

" Northwest Florida " Southwest Florida" Northeast Florida " Southeast Florida" Central Florida " Other, Please Specify ____________________

51. Where in Florida do you concentrate your practice? (Please check all that apply.)" Northwest Florida " Southwest Florida" Northeast Florida " Southeast Florida" Central Florida " Other, Please Specify ____________________

52. Do you have any suggestions that would make our Section better?________________________________________________________________

________________________________________________________________

53. What is your gender?

" Male" Female

54. What is your race?

" African American" Asian American" Caucasian" Hispanic or Latin American" Other, Please Specify _______________________________________________

55. What is your age?

_______________

56. How many years have you been in practice?

" 0-5" 6-10" 11-15" 16-20" 21-25" 26-30" More than 30

Again, thank you for taking your valuable time to complete this survey that the AppellateSection of The Florida Bar created and sponsored. We believe your participation will help us to

better serve you, our membership.

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its nature, a dismissal of an appealsignifies that the merits were notreached. Thus, in this case, the court’sorder dismissing the appeal resolvedonly the preliminary question ofwhether the court had judicial powerto review the judgment and did notaddress or adjudicate the merits ofthe controversy. Moreover, the orderhad no impact on the landowners’right to seek another remedy in thetrial court. Responding to an argu-ment of the City, the court noted thatappellate courts do, sometimes, dis-miss appeals “without prejudice,” butthat the phrase is unnecessary and

adds nothing to the inherent natureof the order itself: “The dismissal ofan appeal for lack of appellate juris-diction is necessarily a decision madewithout prejudice to an appellant’sright to pursue whatever remediesmay still exist.”

The appellate court also disagreedwith the City’s argument on whetherexcusable neglect had been shown.The court ruled that the stampmarked “Filed” governed over the onemarked “Filed & Recorded,” but notedthat the fact that the clerk made thesame mistake as did appellate coun-sel in choosing the latter stamp as thedate for calculating the thirty day pe-riod to file the notice was some indi-cation that counsel’s error was justifi-able. The court reversed the order

denying the rule 1.540 motion withinstructions to the trial court to vacatethe final judgment and render a newone from which the landowners couldfile a timely appeal.

Endnotes1. Keith Hope, of the Hope Law Firm, P.A.,practices in Holmes Beach, Florida, focuses oncivil litigation and appeals. Mr. Hope has beena frequent contributor to The Record.2. For anyone who faces this problem in thefuture, another avenue to pursue is whetherclerks have discretion and power to not filestamp papers accepted by them and particu-larly when important rights such as the rightto appeal are involved. In a recent federal ap-peal I argued successfully that a clerk’s refusalto file stamp a motion for rehearing until daysafter it was accepted was not proper and thatsuch motion tolled the time for filing the no-tice until the motion was ruled upon.

STATE CIVIL CASE UPDATEfrom page 10

13 Id.14 Id. (emphasis in original).15 Id. at 838-40 (footnote and citation omit-ted).16 Id. at 840.17 Id. at 840 (quoting The Fla. Bar, Fla. Admin.Practice § 4.7, at 4-11 (6th ed. 2001)) (cita-tions omitted).18 Id.19 Id.20 Id. (citations omitted).21 Id.22 Id. (citation omitted).23 Id. at 840-41.24 Id. at 841.25 Id. (footnote omitted); cf., e.g., Accardi v.

Dep’t of Envtl. Protection, 824 So. 2d 992, 996(Fla. 4th DCA 2002) (finding that the subjectpetitioners substantially complied with therequirement in rule 28-106.201(2)(f) that thepetition specify the rules or statutory provi-sions requiring reversal or modification of theagency’s proposed action where they specifiedthe substance of the administrative code rulesallegedly violated); McIntyre v. SeminoleCounty Sch. Bd., 779 So. 2d 639, 643 (Fla. 5thDCA 2001) (where only item employee failedto include in hearing request was how he be-came aware of School Board’s action, the de-ficiency would not be deemed dispositive, andemployee’s letter was sufficient to meet theminimum requirements listed in section120.54(5)(b)4 for a hearing request).26 See Brookwood, 870 So. 2d at 841.27 Id. Accord Fla. Admin. Code R. 28-106.201(similarly providing that dismissal of a peti-tion for non-compliance with the rule shall,

ADMINISTRATIVE HEARINGSfrom page 17

“at least once, be without prejudice topetitioner’s filing a timely amended petitioncuring the defect”).28 Brookwood, 870 So. 2d at 841.29 Id.; see also id. at 841-44 (Shevin, J., con-curring) (concurring judge separately writingat length “to address the responsibilities ofagencies in considering requests for a formalhearing, and to suggest that the Legislatureneeds to amend the statute”).30 A.D.M.E. Inv. Partners., Ltd. V. Agency forHealth Care Admin., 866 So. 2d 773 (Fla. 1stDCA 2004); Brookwood-Extended Care Ctr. ofHialeah Gardens, LLP v. Agency for HealthCare Admin., 866 So. 2d 189 (Fla. 1st DCA2004); Grier v. Agency for Health Care Admin.,866 So. 2d 159 (Fla. 1st DCA 2004); LargoACLF, Ltd. v. Agency for Health Care Admin.,866 So. 2d 156 (Fla. 1st DCA 2004);Brookwood-Extended Care Ctr. of HialeahGardens, LLP v. Agency for Health CareAdmin., 866 So. 2d 155 (Fla. 1st DCA 2004);see also Unisource Pharm. Group, Inc. v.Agency for Health Care Admin., 799 So. 2d333 (Fla. 1st DCA 2001) (in earlier case, FirstDCA citing statutes and rules at issue in af-firming agency’s dismissal of petitions seek-ing a § 120.57(1) hearing because the peti-tions “fail to allege disputed issues of materialfact, and instead appear to raise issues re-garding [the agency’s] interpretation” of a cer-tain statute).31 Blackwood v. Agency for Health CareAdmin., 869 So. 2d 656, 656-67 (Fla. 4th DCA2004).32 Id. at 657.33 See id.34 Id. (quoting Fla. Admin. Code R. 28-106.201(2)(e) and citing Brookwood).35 Id.36 See id.37 Id. Note that, unlike the First and ThirdDCAs, the Fourth DCA affirmed, rather thanreversing and remanding for the petitioner tofile an amended petition.38 Id. Note that, unlike the 1st and 3d DCAs,the 4th DCA affirmed as opposed to revers-ing and remanding for the petitioner to filean amended petition.39 Brookwood, 870 So. 2d at 839.40 Id. at 840.

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February 4, 2005Ft. Lauderdale Marriott North

You DON’T want to miss this!

To register, please do so online throughwww.flabar.org or please call 850-561-5831

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The application filing period is July 1 -August 31 of each year. Applicationsmay be requested year-round, butonly filed during this two month period.

All requirements must be met by theAugust 31st filing deadline of the yearin which you apply.

Your application must be approvedbefore you become eligible to sit forthe examination, usually given inMarch.

Certification can help you by giving you a way to makeknown your experience to the public and other lawyers.Certification also improves competence by requiringcontinuing legal education in a specialty field.

Certification StatisticsThere are currently 155 attorneys Board Certified inAppellate Practice. The area was started in 1993. Certifiedattorneys make up approximately 6% of The Florida Bar’stotal membership.

If you would like to becomeBoard Certified in AppellatePractice or would like morecomplete information, pleasecontact the area’s staff liaisonbelow:

Carol VaughtLegal Specialization

& EducationThe Florida Bar

651 East Jefferson StreetTallahassee, FL 32399-2300800/342-8060, ext. 5738 or

850/561-5738

cvaught@flabar.org

Certification is granted for fiveyears. To be recertified,

requirements similar to thosefor initial certification

must be met.

What are therequirements?

☞ Have been engaged in thepractice of law for at least fiveyears prior to the date of theapplication.

☞ Demonstrate substantial in-volvement in the practice ofappellate practice during thethree years immediately pre-ceding the date of application.(Substantial involvement isdefined as devoting not lessthan 30% in direct participationand sole or primary responsi-bility for 25 appellate actionsincluding 5 oral arguments.)

☞ Complete at least 45 hours ofcontinuing legal education(CLE) in appellate practiceactivities within the three yearperiod immediately precedingthe date of application.

☞ Submit the names of fourattorneys and two judges whocan attest to your reputation forknowledge, skills, proficiencyand substantial involvement aswell as your character, ethicsand reputation for profession-alism in the field of appellatepractice.

☞ Pass a written examinationdemonstrating special knowl-edge, skills and proficiency inappellate practice.

There are many benefits to becomingBoard Certified in Appellate Practicesuch as:

★ Malpractice carriers discounts.

★ Advances the importance andsignificance of certification to largemalpractice carriers.

★ Good source of referrals from bothattorneys and the general public.

★ Ability to advertise yourself as a“certified specialist” in your chosenarea of practice.

★ Young lawyers are seekingcertification as a means of expeditingtheir professional advancement.

★ Name is listed in the Directory issueof The Florida Bar Journal in theCertified Lawyers’ section.

Thinking About Becoming BoardCertified in Appellate Practice?Thinking About Becoming BoardCertified in Appellate Practice?

For more information,visit our website at

www. FLABAR.orgClick “member services,”

then “certification.”

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The Florida Bar651 East Jefferson StreetTallahassee, FL 32399-2300

PRESORTEDFIRST CLASS

U.S. POSTAGE

PAIDTALLAHASSEE, FL

Permit No. 43