What should a civil litigant do when he or she is made aware of the entry of a final judgment after the expiration of the appeal period? The First District Court of Appeal reminds us in an opinion issued in Sharpe v. Stanley, Case No. 1D14-1190, 39 Fla. L. Weekly D928a (Fla. 1st DCA May 1, 2014) that the appellate court has no authority to grant relief from an untimely-filed appeal in a civil proceeding. That does not mean, however, that all appellate avenues are foreclosed. As the court reminds us, relief “may be sought in the trial court by motion under Fla. R. Civ. P. 1.540(b) to set aside the order where no notice of its entry was given to the parties, coupled with a requst that a new order be entered so that the right of appeal is preserved.”
This week, the Fifth District Court of Appeal issued an order imposing sanctions against an Orlando law firm for what the court determined were “negligent violations of rules of procedure” with respect to the law firm’s prosecution of an appeal. Hagood v. Wells Fargo N.A., Case No. 5D12-2015 (Fla. 5th DCA June 28, 2013). According to the Court, the attorneys demonstrated “a lack of understanding of substantive law and rules of procedure” and “multiple acts of professional negligence that began in the trial court and continued through the oral argument.”
The negligent acts included the filing of a frivolous “initial brief [that] was based entirely on a false assertion of fact,” and appeared to have stemmed from the fact that an inexperienced “part-time” lawyer for the firm was tasked with drafting the appellate brief despite having no access to the record. Relying only upon the trial attorney’s notes to draft the initial brief, and without even reviewing the underlying motions, the brief was drafted and filed without revision by the supervising attorney. The court admonished that “each attorney of record is responsible for the content of the entire document when his or her name appears on the document.”
Ultimately, the sanction assessed was a $1,000.00 fine, but the costs to the appellant and attorneys’ reputations can’t be measured. Professional negligence aside, this case demonstrates the reality of trial practice and the challenges that many trial lawyers face when they endeavor to handle their own appeals, rather than outsourcing to an experienced appellate attorney. Because of the often frenetic pace of trail practice, trial lawyers may not have the time, man power, or inclination to focus on the complexities of appellate practice. In lieu of delegating the task to an inexperienced junior lawyer with the goal of keeping the work “in house,” trial attorneys should reflect on the Hargood order, and give due consideration to consulting an experienced appellate practitioner.
Beginning March 1, 2013, a party seeking an extension of time to file an intial, answer, or reply brief and who has obtained the agreement of opposing counsel may file a “notice of extension of time” in lieu of a motion requesting an extension. Such a notice will be accepted for up to 90 days for an intial or answer brief and 60 days for a reply brief. Only the party seeking the extension need sign the notice, and no order will issue upon the Court’s receipt. Any extension beyond 90 days for initial or answer briefs or 60 days for reply briefs must be by motion. For additional details, including the approved form of the notice, see the Court’s administrative order at http://5dca.org/Clerk/Administrative%20Orders/AO5D13-02_RE_Agree_Ext_of_Time_for_Filing_Briefs.pdf
While it may seem fundamental to the tenets of justice, the Fourth District Court of Appeal issued a written opinion last month holding that an appellate court’s failure to consider the appellee’s answer brief deprives the appellee of procedural due process. In Oakland Park MRI, Inc. v. USAA Casualty Insurance Co., Case No 4D11-3521, 37 Fla. L. Weekly D1277a (Fla. 4th DCA May 30, 2012), the Circuit Court of Broward County was asked to review, in its appellate capacity, a county court judgment. The circuit court’s opinion reversed the judgment indicating that the court reviewed a singular brief in the absence of an answer brief.
Interestingly, the Fourth District did not disclose why the circuit court disregarded the answer brief in the first place. Was it untimely filed? Was it improperly indexed? Or did the circuit court simply ignore it? The opinion arguably leads the reader to conclude the latter. However, a review of the circuit court docket reveals that the notice of appeal was filed on March 29, 2010. After several motions for extension, USAA filed its initial brief on October 18, 2010. On February 8, 2011, the circuit court entered an order to show cause within 10 days why the court should not decide the appeal without an answer brief. No response to the order to show cause was filed. The circuit court waited another five months before rendering an opinion on July 11, 2011. Four days later, on July 15, 2011, Oakland Park finally filed its answer brief along with an emergency motion to vacate opinion and to permit filing of an answer brief. The Fourth District quashed the opinion without discussing the merits of the emergency motion to vacate.
Interestingly, Oakland Park, the party that effectively prevailed in the Fourth District, has filed a Motion for Reconsideration, which is pending. Perhaps because the court refused to consider Oakland Park’s argument that the circuit court departed from the essential requirements of law in reversing the county court judgment.
Stay tuned for updates on this curious case to see whether an appellate court really must consider unfiled or untimely-filed briefs before it can render an opinion.
Update: Oakland Park’s Motion for Reconsideration was denied, and the court has issued its mandate.