IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE — 2017 REGULAR-CYCLE REPORT. Supreme Court of Florida. Case No. SC17-152. October 25, 2018. Original Proceeding — Florida Rules of Appellate Procedure. Counsel: Courtney Rebecca Brewer, Chair, Appellate Court Rules Committee, Tallahassee, Kristin A. Norse, Past Chair, Appellate Court Rules Committee, Tampa, Honorable Robert Joshua Luck, Member, Appellate Court Rules Committee, Miami; and Joshua E. Doyle, Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, for Petitioner. Honorable Mark H. Jones, Chief Judge, Sixteenth Judicial Circuit, Key West; Honorable Jonathan Eric Sjostrom, Chief Judge, Second Judicial Circuit, Tallahassee; and Ellie Bertwell of Aderant, Culver City, California, Responding with Comments.

(PER CURIAM.) The Florida Bar’s Appellate Court Rules Committee (Committee) has filed its regular-cycle report proposing amendments to the Florida Rules of Appellate Procedure (Rules). See Fla. R. Jud. Admin. 2.140(b). We have jurisdiction. See art. V, § 2(a), Fla. Const.

After the Committee’s report was filed with the Court, the Court published the amendments for comment. We received comments from the chief judges of the Sixteenth Judicial Circuit and the Second Judicial Circuit, and from attorney Ellie Bertwell, the rules attorney for Aderant CompuLaw. The Committee filed a response to the comments; in some instances, the response included revised rule proposals. The Court held oral argument on the proposed amendments.

After fully considering the Committee’s proposals, the comments, the Committee’s response, and the issues discussed at oral argument, we adopt the majority of the Committee’s proposed amendments, with some revisions, as discussed in this opinion. However, as addressed below, we decline to adopt, at this time, the Committee’s proposal to amend rule 9.030(c) (Jurisdiction of Courts; Jurisdiction of Circuit Courts) to add new subdivision (c)(4) (Panels), requiring that matters within the circuit court’s jurisdiction under rule 9.030 be considered by a panel of three judges, and we direct that a special workgroup be established to further study this important issue. We discuss the new rule and the more significant rule amendments below.

The Committee proposes several amendments to rule 9.030 (Jurisdiction of Courts). The most significant of these is proposed new subdivision (c)(4) (Jurisdiction of Circuit Courts; Panels), which would require that matters within the circuit court’s jurisdiction under the rule be considered by a panel of three judges, with the concurrence of two judges necessary to a decision. In proposing this change, the Committee indicates in the report that it conducted substantial research as to appellate practices in most of the circuit courts in Florida. The results of such research indicated that appeals to the circuit court are handled differently across the state — some circuits, for example the Sixth and Eleventh Circuits, require that most or all appeals be heard by a panel of circuit judges, while a number of other circuits do not utilize such panels. The Committee maintains that an appellate rule requiring panels of three judges to decide appeals in the circuit court, similar to the way appeals are heard in the district courts of appeal, would serve as an important safeguard to the rights of litigants; it suggests that such review promotes better decision making, reduces mistakes, eliminates extremes and bias, and promotes stability and fairness.

The Court received comments opposed to the Committee’s proposal from the chief judges of the Sixteenth and Second Circuits. The chief judges express concern that a rule requiring three-judge panels to hear all appeals in every circuit will result in an increased workload for judges, judicial assistants, and court staff, and would ultimately make the timely disposition of appeals more challenging. They also emphasize that the Committee’s proposal here would be particularly burdensome on the smaller or less populous circuits with fewer judges. Significantly, we note that the comment from the Chief Judge of the Second Circuit represents that the chief judges from every circuit urge this Court to allow the circuit courts to retain discretion to determine whether or when to utilize appellate panels.

We do find merit in the Committee’s argument that appeals to the circuit court should be handled in a more uniform manner across the state. Nonetheless, because we believe this important issue requires further study in order to better accommodate the smaller Florida circuits, we decline the Committee’s recommendation to adopt proposed rule 9.030(c)(4) at this time. The Chief Justice shall appoint a special workgroup to study whether the circuit courts should be uniformly required to hear appeals in panels, and to propose appropriate amendments to the Rules of Judicial Administration or the Rules of Appellate Procedure if the workgroup determines that such amendments are necessary. The workgroup shall also consider whether other changes to the process for appellate review of county court decisions would improve the administration of justice and may propose any revisions in the law necessary to implement recommended changes. The workgroup should include members from each judicial conference, the Rules of Judicial Administration Committee, and the Appellate Court Rules Committee.

Next, in rule 9.110 (Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases), we amend subdivision (k) (Review of Partial Final Judgments), as proposed by the Committee, to address the appropriate scope of review of a partial final judgment. Such review may include any ruling or matter that occurred before the notice of appeal was filed, so long as the ruling or matter is directly related to an aspect of the partial final judgment on review.

We amend rule 9.130 (Proceedings to Review Non-Final Orders and Specified Final Orders) to authorize two new categories of nonfinal orders that may be appealed to the district courts of appeal. New subdivision (a)(3)(C)(xii) permits appeals of nonfinal orders that determine, as a matter of law, that a settlement agreement is unenforceable, is set aside, or never existed. Additionally, new subdivision (a)(3)(E) permits appeals of nonfinal orders that grant or deny a motion to disqualify counsel.

In rule 9.140 (Appeal Proceedings in Criminal Cases), we amend several subdivisions, as proposed by the Committee, to make clear that attorneys or parties designating portions of the trial proceedings for transcription must serve those designations on the approved court reporter or transcriptionist. We also amend subdivision (f)(5) (Record; Return of Record) to provide for the return to the lower tribunal of any portions of the appellate record that were not electronically filed. And we amend subdivision (f)(6) (Record; Supplemental Record for Motion to Correct Sentencing Error Pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)), as proposed by the Committee, to incorporate motions for rehearing in the provisions addressing transmission of a supplemental record for postconviction proceedings pursuant to Rule of Criminal Procedure 3.800(b)(2). However, we decline to adopt the Committee’s proposed amendments to subdivisions (c)(3) (Appeals by the State; Commencement) and (d)(1) (Withdrawal of Defense Counsel after Judgment and Sentence or after Appeal by State). The Committee indicates it proposes amendments to these subdivisions to avoid conflict with amendments to Rule of Judicial Administration 2.505 (Attorneys) proposed in a separate case, In re Amendments to the Florida Rules of Judicial Administration, Florida Rule of Criminal Procedure 3.010, and Florida Rule of Appellate Procedure 9.440, 225 So. 3d 220 (Fla. 2017). In that case we declined to adopt amendments to various court rules that would have allowed for the designation of lead counsel, additional counsel, or limited representation counsel. Accordingly, we also decline to adopt the Committee’s proposals here to amend subdivisions (c)(3) and (d)(1) of rule 9.140.

In rule 9.146 (Appeal Proceedings in Juvenile Dependency and Termination of Parental Rights Cases and Cases Involving Families and Children in Need of Services), we adopt new subdivision (c)(3) (Stay of Proceedings; Review), as proposed by the Committee, to address review of orders entered by the lower tribunal granting or denying a stay pending appellate review. We also amend subdivision (g)(3)(B) (Special Procedures and Time Limitations Applicable to Appeals of Final Orders in Dependency or Termination of Parental Rights Proceedings; Briefs; Times for Service) to add language addressing the time for serving responsive briefs when one or more initial or answer briefs are filed in a case. We have revised the Committee’s proposal in this subdivision to make clear that in any appeal or cross-appeal, if more than one initial or answer brief is authorized, the responsive brief shall be served within twenty days after the last initial brief or within ten days after the last answer brief was served; if the last authorized initial or answer brief is not served, the responsive brief shall be served within twenty days after the last authorized initial brief or within ten days after the last authorized answer brief could have been timely served.² Also in rule 9.146, we amend subdivision (g)(4)(B) (Special Procedures and Time Limitations Applicable to Appeals of Final Orders in Dependency or Termination of Parental Rights Proceedings; Motions; Motions to Withdraw as Counsel), as proposed by the Committee, to require attorneys, following an order granting a motion to withdraw as counsel for an indigent parent, to file a notice with the court certifying that counsel has forwarded a copy of the record and transcripts to the indigent parent or that counsel is not able to locate the parent after making a diligent effort to do so.

We next amend rule 9.210 (Briefs) to add a new subdivision (a)(6) (Generally) requiring that, when an attorney is representing more than one party in an appeal, the attorney may only file one initial or answer brief and one reply brief, if a reply brief is authorized, that includes arguments as to all of the parties the attorney represents in the appeal. A single party responding to multiple briefs, or a single party represented by multiple attorneys, is similarly limited to one initial or answer brief and one reply brief. We also amend subdivision (f) (Times for Service of Briefs), as proposed by the Committee in its response to comments, to provide that in any appeal or cross-appeal where more than one initial or answer brief is authorized, the responsive brief shall be served within twenty days after the last initial or answer brief was served; if the last authorized initial or answer brief is not served within the time allowed, the responsive brief shall be served within twenty days after the last initial or answer brief could have timely been served.

In rule 9.330 (Rehearing; Clarification; Certification), we have substantially reorganized subdivision (a) (Time for Filing; Contents; Response) in order to more clearly outline the requirements for motions for rehearing, clarification, certification, or a written opinion. The existing language in this subdivision is incorporated into three new subdivisions: subdivision (a)(1) (Time for Filing), subdivision (a)(2) (Contents), and subdivision (a)(3) (Response). New subdivision (a)(2) includes four subdivisions describing the requirements for each type of motion authorized in this rule. In subdivision (a)(2)(C) (Motion for Certification), we add new language requiring that a motion for certification set forth the cases that the filer asserts expressly and directly conflict with the court’s order or decision or set forth the issue or question to be certified as one of great public importance. Additionally, in subdivision (a)(2)(D) (Motion for Written Opinion), we add language authorizing motions seeking a written opinion on the grounds that an opinion would provide either a legitimate basis for review by this Court; an explanation for an apparent deviation from precedent; or guidance to the parties or a lower tribunal when the same issue is also present in other cases pending before the court or another district court of appeal, when the issue is expected to recur in future cases, when there are conflicting decisions from lower tribunals, when the issue is one of first impression, or when the issue arises in a case where the court has exclusive subject matter jurisdiction.

Also, in rule 9.330, we amend subdivision (b) (Limitation), as proposed by the Committee, to require that parties file just one document incorporating any and all motions under this rule that may be appropriate in the case, rather than separate documents for each motion. We also add a new subdivision (e) (Application). This subdivision provides that the provisions of rule 9.330 apply only to appellate orders or decisions that adjudicate, resolve, or otherwise dispose of an appeal, original proceeding, or motion for appellate attorneys’ fees; the rule does not limit a court’s inherent authority to reconsider nonfinal appellate orders and decisions.

In rule 9.360 (Parties), we amend subdivision (a) (Joinder) and add a corresponding committee note to recharacterize the term “joinder” as “joinder for realignment as appellant or petitioner.” Subdivision (a) is now titled “Joinder for Realignment as Appellant or Petitioner.” We also adopt the other amendments to rule 9.360 as proposed.

We adopt a new rule 9.380 (Notice of Related Case or Issue), which provides that a party is permitted to file a notice of related case or related issue, informing the court of a pending, related case arising out of the same proceeding in the lower tribunal or involving a similar issue of law. The notice shall include only information identifying the related case and shall not contain argument. It must be in the format prescribed in proposed new form 9.900(k) (Notice of Related Case).

In rule 9.400 (Costs and Attorneys’ Fees), we amend subdivision (b) (Attorneys’ Fees) to address the time for filing a motion for attorneys’ fees in discretionary review proceedings in this Court. New subdivision (b)(3) provides that in discretionary review proceedings under rule 9.030(a)(2)(A) in which jurisdictional briefs are permitted, a motion for attorneys’ fees shall be served not later than the time for serving the respondent’s brief on jurisdiction, or if jurisdiction is accepted, the time for serving the reply brief. New subdivision (b)(4) provides that in discretionary review proceedings in which jurisdiction is invoked under rule 9.030(a)(2)(A)(v), the motion for attorneys’ fees shall be served not later than five days after the filing of the notice, or if jurisdiction is accepted, the time for serving the reply brief.

Finally, we amend rule 9.420 (Filing; Service of Copies; Computation of Time) in subdivision (c) (Method of Service) to authorize parties to serve the initial document in an appeal electronically in conformity with the requirements of Florida Rule of Judicial Administration 2.516(b).³ Petitions invoking a court’s original jurisdiction under rules 9.030(a)(3), (b)(3), or (c)(3) shall be served both by e-mail, pursuant to Rule of Judicial Administration 2.516(b)(1), and in paper format, pursuant to Rule of Judicial Administration 2.516(b)(2).

It is so ordered. (CANADY, C.J., and QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur. PARIENTE, J., concurs in part and dissents in part with an opinion. LEWIS, J., concurs in part and dissents in part with an opinion.)

[Editor’s note: The Appendix is not included in this report. It may be viewed in its entirety in our Rule Revisions section of our website at www.FloridaLawWeekly.com at no charge. Subscribers may call our office at 800-351-0917 to request a copy.]

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(PARIENTE, J., concurring in part and dissenting in part.) I concur with all the proposed amendments being adopted, but I dissent from the Court’s decision to not adopt the Appellate Court Rules Committee’s (“the Committee”) unanimously proposed amendment to Florida Rule of Appellate Procedure Rule 9.030, which would “requir[e] that matters within the circuit court’s jurisdiction under rule 9.030 be considered by a panel of three judges.” Per curiam op. at 2.

Practitioners, judges, and this Court have known for almost two decades of the lack of uniformity across the State in how circuits handle their appellate jurisdiction. We clearly have the authority to finally address this issue, which, in my view, should be dealt with now by adopting the Committee’s proposed amendment to protect litigants’ best interests rather than appointing a special workgroup to again study this issue. However, because the Court does not adopt the amendment to rule 9.030, I urge the workgroup to study only the logistics of concerns raised by the smaller circuits and not the merits or wisdom of uniformly employing three-judge appellate panels in the circuit courts across the State.

Without question, requiring three-judge appellate panels at the circuit court level is essential to protecting litigants’ due process rights, including the right to meaningful appellate review. This is particularly clear when considering the limited scope of the second-tier review of those decisions by the district courts of appeal. As the Committee explains, this amendment “would not only make the appellate process consistent in the circuit and district courts” but would also “alleviate concerns that a review by a single circuit judge could be perceived as simply substituting one judge’s opinion for another.” Regular-Cycle Report of the App. Ct. Rules Comm. (Report) at 4; see Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

The concern caused by allowing appellate review by one circuit judge is clear when viewed in light of the district courts’ review of circuit court appellate decisions, which is “limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law.” Heggs, 658 So. 2d at 530; see Educ. Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106, 108 (Fla. 1989); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982); Martin Cty. v. City of Stuart, 736 So. 2d 1264, 1266 (Fla. 4th DCA 1999). Citing the American Bar Association’s Standards Relating to Court Organization (1990), the Committee explains that “[t]he value of three-judge panel review is a recognized tenet of appellate procedure,” which facilitates “collective, consensus-based review of a lower-tribunal’s ruling,” in turn “promot[ing] better decision making, reduc[ing] mistakes, eliminat[ing] extremes and bias, and promot[ing] stability and fairness.” App. Ct. Rules Comm.’s Resp. to Comments (Resp.) at 3.

The problems created by lack of uniformity across the circuits regarding their appellate jurisdiction has been clear for almost two decades.⁴ Indeed, in 2000, this Court referred the issue “to the Rules of Judicial Administration Committee of The Florida Bar for study.” Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1094 (Fla. 2000). After studying the issue, that committee rejected the uniform adoption of three-judge panels not because it was jurisprudentially unsound but “due to fiscal concerns of smaller counties and circuits.” Report at 4. Since then, the Committee has undertaken the task of studying this issue, and, consequently, its proposal in this case is based on “substantial research.” Per curiam op. at 4; accord Report at 4.

As I expressed in 2001, requiring three-judge appellate panels at the circuit court level would eliminate the lack of uniformity between the circuits, help to ensure well-reasoned opinions, and facilitate “more limited second-tier review” by the district courts of appeal “as well as this Court’s review of the” district courts’ decisions. Dusseau v. Metro. Dade Cty., 794 So. 2d 1270, 1277 (Fla. 2001) (Pariente, J., concurring, joined by Anstead and Lewis, JJ.). Similarly, Justice Lewis, writing for the majority in Ivey v. Allstate Insurance Co., 774 So. 2d 679 (Fla. 2000), explained how a written opinion by a three-judge appellate panel of circuit court judges aids the district courts of appeal in their more limited second-tier review mandated by our current jurisprudence:

Allstate specifically asserted to this Court that “as a practical matter, the appellate courts need to be able to review the circuit courts sitting in their appellate capacity because [the circuit courts] are not really equipped to decide appellate cases, to decide issues of law.” In this case, a three-judge panel of the circuit court issued a well-reasoned, written opinion thoroughly supported by appropriate reference to Florida decisions. The circuit court performed exactly as one would expect from an appellate court.

If a problem is occurring in our current appellate system because a large number of circuit court decisions are unreported, then perhaps that issue should be addressed and resolved. The solution is not, however, a second level of appellate review when a district court simply disagrees with the decision of a circuit court sitting in its appellate capacity. The concept of certiorari review should have a recognized uniformity of application. Thus, we conclude that the district court below inappropriately exercised certiorari review.

Id. at 683 (alteration in original) (emphasis added).

While disparity is of concern in all cases, it is especially prevalent in zoning and other administrative decisions. As I explained in Dusseau:

I would further point out that the circuit court sat in a three-judge panel that produced a reasoned and detailed majority and dissent. This in turn facilitated the more limited second-tier review of the Third District as well as this Court’s review of the Third District’s decision. We previously have noted the disparity of the practices among circuits and referred this matter to the Rules of Judicial Administration Committee for study. See Florida Power & Light, 761 So. 2d at 1094. In light of the far-reaching impact of zoning decisions, we should not continue to sanction a statewide system that allows a single circuit judge to have the identical appellate reviewing authority as a three-judge panel and that also requires the district court of appeal to accord the identical deference to the circuit court’s decision regardless of whether the decision was made by a one-judge or three-judge court.

Id. at 1278 (Pariente, J., concurring). Likewise, as the majority in Dusseau explained in remanding the case to the circuit court:

We reiterate that the “competent substantial evidence” standard cannot be used by a reviewing court as a mechanism for exerting covert control over the policy determinations and factual findings of the local agency. Rather, this standard requires the reviewing court to defer to the agency’s superior technical expertise and special vantage point in such matters. The issue before the court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience — and is inherently unsuited — to sit as a roving “super agency” with plenary oversight in such matters.

Id. at 1275-76 (majority).

While the Court today recognizes that this is an “important issue” and finds “merit in the Committee’s argument that appeals to the circuit court should be handled in a more uniform manner across the state,” the Court nevertheless chooses to send this amendment back for study yet again. Per curiam op. at 5. Specifically, the Court instructs that a workgroup consider “whether the circuit courts should be uniformly required to hear appeals in panels” and “whether other changes to the process for appellate review of county court decisions would improve the administration of justice.” Per curiam op. at 5. But the Committee has already considered this issue and unanimously recommended that the Court do so.

Indeed, as the Court acknowledges, the Committee has determined that requiring three-judge panels would “serve as an important safeguard to the rights of litigants” and would “promote[ ] better decision making, reduce[ ] mistakes, eliminate[ ] extremes and bias, and promote[ ] stability and fairness.” Per curiam op. at 4. However, the Court again defers taking action by declining to adopt the Committee’s unanimous recommendation “at this time.” Per curiam op. at 5.

While I am not unsympathetic to the concerns of smaller Florida circuits, I am skeptical as to whether the disparity between the circuits is caused by lack of capacity or is simply the byproduct of local tradition. For example, in the Sixteenth Circuit, any party can request a three-judge panel, which will be assigned “at the court’s discretion.” In the Seventh Circuit, if the litigant is from Flagler, Putnam, or St. Johns, the appeals are assigned to a single judge. But, in the same circuit, if the litigant is in Volusia County, appeals are assigned to a two-judge panel. There does not appear to be any particular reason — indeed, none was provided — for the differences presented among these two circuits.

The comments from the chief judges of the Sixteenth and Second Circuits opposing the Committee’s proposal express geographical concerns as well as concerns that requiring three-judge panels would “result in an increased workload” and “would ultimately make the timely disposition of appeals more challenging.” Per curiam op. at 4. As to the geographic concerns, in this day and age with videoconferencing and other technology, I do not believe the concern is insurmountable. Further, as in the district courts, not all cases have to be heard by oral argument. While it is simpler and perhaps more efficient for one circuit judge to hear an appeal from one county court judge, due process concerns must prevail. Due process and justice demand uniformity of appellate decisions.

Notwithstanding, because the majority does not adopt this amendment today, in the interim, until this matter is studied by the special committee convened by the Court, I would urge the circuits to consider the following: (a) requiring three-judge panels when requested by a litigant; (b) requiring three-judge panels in petitions for certiorari from zoning decisions; (c) making the decision to grant or deny oral argument within the discretion of the appellate panel; and (d) requiring oral argument if requested by the parties when a single judge hears an appeal from the county court and requiring a written decision in those instances.

Accordingly, while I concur with the Court’s adoption of the other proposed rules, I dissent as to this Court’s decision to again defer the adoption of three-judge panels for circuit courts sitting in their appellate capacity.

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¹The report also proposed substantial amendments to rule 9.800 (Uniform Citation System). On May 31, 2017, the Court issued an order severing those proposals from the instant case; they have been considered in In re Amendments to Florida Rule of Appellate Procedure 9.800, No. SC17-999 (Fla. Oct. 25, 2018) [43 Fla. L. Weekly S512a].

²Rule 9.146(g) (Special Procedures and Time Limitations Applicable to Appeals of Final Orders in Dependency or Termination of Parental Rights Proceedings) outlines special time frames that apply to appeals from final orders in dependency and termination of parental rights cases. Subdivision (g)(3)(B) directs that the initial brief be served within twenty days after service of the record on appeal or the index to the record on appeal, the answer brief within twenty days of service of the initial brief, and the reply brief within ten days after service of the answer brief. The Committee’s first proposal to amend subdivision (g)(3)(B) incorporated similar time frames. The Committee later submitted a revised proposal in response to comments. While we generally approve the Committee’s revisions, the revised proposal would have allowed twenty days, rather than ten, to serve a reply brief. In order to maintain consistency with other provisions in rule 9.146(g)(3)(B), we have revised the Committee’s proposal such that parties are allowed twenty days to respond after the last initial brief, and ten days to respond after the last answer brief.

³We have revised the Committee’s proposal to refer specifically to requirements for electronic service in Rule of Judicial Administration 2.516(b).

⁴See Coastal Dev. of N. Fla., Inc. v. City of Jacksonville Beach, 788 So. 2d 204, 205 n.3 (Fla. 2001); Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1094 (Fla. 2000) (“No statewide criterion exists at this time.”); see also Broward Cty. v. G.B.V. Intern., Ltd., 787 So. 2d 838, 849-53 (Fla. 2001) (Pariente, J., dissenting, joined by Anstead, J.).

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(LEWIS, J., concurring in part and dissenting in part.) I dissent because there is no need to amend the rule with regard to joinder on appeal. This amendment is likely to generate more confusion than clarity. I concur with the remainder of the amendments.