Avoiding appellate mistakes: a primer for the general practitioner.

• Jurisdiction: United States
• Date: 01 July 2008
• Author: Daiker, Duane A.
• Published date: 01 July 2008
• Author: Daiker, Duane A.

The average general practitioner in Florida does not have more than a handful of appeals in the course of a career. A busy litigator who is not an appellate specialist is unlikely to have more than one case on appeal each year, and often less. As a result, even an experienced general practitioner, who can recite the Florida Rules of Civil Procedure or the Florida Evidence Code from memory, may not be intimately familiar with the intricacies of appellate practice when undertaking an appeal from an adverse ruling. The appellate process has its own set of perils for the unwary practitioner, some of which merely telegraph inexperience with the process, and some of which can be fatal to an appeal. The following is a partial list of common mistakes in Florida appellate practice, which are intended to assist the general practitioner handling an appeal.

Failure to Identify a Final Order

One of the most confusing and potentially dangerous areas of appellate procedure is the determination of when an order is final and, therefore, ripe for appeal. Unless a particular order fits within one of the narrow classes of nonfinal orders that are immediately reviewable on interlocutory appeal, (1) an order must be "final" to seek appellate review. An order or judgment is final when there is "an end to the judicial labor in the trial court," and the trial court is not required to take any further action to resolve the controversy. (2) A common mistake is to file a notice of appeal prematurely, before finality actually occurs, such as appealing an order of dismissal with prejudice or an order granting summary judgment before the entry of an actual final judgment. (3) Fortunately, the appellate rules specifically state that a premature notice of appeal is sufficient to vest jurisdiction in the appellate court. (4) A practitioner is unlikely to cause any prejudice to the client with a premature notice of appeal.

In contrast, however, the late filing of a notice of appeal directed to a final order is disastrous. If a timely notice is not filed, the appellate court has no jurisdiction to hear the appeal, and this jurisdictional defect cannot be remedied by either the trial court or the appellate court. (5) Any doubt as to the finality of an order should be resolved in favor of filing a timely notice of appeal, even if potentially premature.

The rendition of a final order can be easily overlooked when partial judgments are entered as to less than all the claims in an action, or as to less than all the parties to an action. As a general rule, an order that fully disposes of all claims in the case as to a party is final as to that party. (6) That order must be appealed within 30 days of rendition or the right to appeal is lost. As an example, if a court enters summary judgment in favor of one defendant in a multi-defendant case, the judgment as to the single defendant must be appealed within 30 days. If counsel for that party waits until the conclusion of the case, the appeal will be dismissed as untimely. It is important to note that this differs from federal procedure, which does not require an immediate appeal from a judgment as to less than all of the claims or less than all of the parties. (7)

Generally an order that disposes of less than all of the claims between the parties in a case is not final and not appealable, with a possible exception if the dismissed claim is factually and legally distinct from the remainder of the case. (8) However, judgments that reserve jurisdiction for an award of attorneys' fees or costs are considered final and appealable when rendered, even though the collateral cost or attorneys' fees issues remain pending. (9) Practitioners must carefully scrutinize orders to determine their finality because of the grave risks associated with the late filing of a notice of appeal.

Failure to Focus on Preparation of the Record

When appealing a final order, the parties have a short period (10 days for the appellant, or 20 days for the appellee) in which to submit directions to the clerk of the circuit court for preparation of the record on appeal...