Chapter 18-4 Types of Appeals Used in Foreclosure

• Jurisdiction: United States

18-4 Types of Appeals Used in Foreclosure

18-4:1 Final Appeal

For an order to be considered "final" for purposes of appellate review, it must conclude the judicial labor in a case.¹⁶ A final judgment of foreclosure, a judgment in favor of a defendant, or an order dismissing a foreclosure action without leave to amend are all examples of final, appealable orders as long as they contain language of finality sufficient to conclude the case.¹⁷ Examples of final, appealable orders which occur infrequently but are possible in foreclosures are orders which adjudicate only one of several causes of action and orders which end the case for one (or more, but less than all) of the parties.¹⁸ An appellate court which is reviewing a final order may also review any underlying non-final orders (called interlocutory orders) which were necessary in reaching the final order.¹⁹

An order which simply grants summary judgment or dismisses an action but does so without prejudice to amend (and the claim is amendable) does not constitute a final, appealable order.²⁰ In these instances, the appellate court may elect to relinquish jurisdiction to the trial court, so that the appellant may secure entry of a final, appealable order.²¹

Appeal of a final order must be taken no more than thirty days after rendition of the final order.²² Rendition does not occur until the clerk of the trial court stamps and files the order, so when calendaring a deadline for appeal, it is critical to note the date of rendition as reflected on the trial court's docket.²³ For example, rendition of a final judgment frequently does not occur on the same date that the judgment is executed because of the sheer volume the circuit court clerks must process, so while a trial court judge has signed the order, it may still be awaiting rendition. Failure to timely invoke the appellate court's jurisdiction will forfeit the right to appeal.²⁴

A timely and authorized motion for rehearing filed within 15 days of rendition of the order a party intends to appeal will suspend rendition of the order until the motion for rehearing is adjudicated.²⁵ It is critical to note, however, that motions for rehearing must only be sought when actually authorized, because a motion for rehearing that is not authorized will not suspend rendition of the order, and the thirty day clock may start running.²⁶ For further discussion about motions for rehearing, see Section 18-9.

18-4:1.1 The Record on Final Appeal

In considering the appeal, the appellate court's review is limited to the "record," which is comprised of any evidence which was presented to the trial court, transcripts of proceedings, depositions, and any documents which were made part of the lower court's file (discovery, pleadings, affidavits, etc.).²⁷ It follows that documents which are simply filed with the trial court but are never called to the attention of the trial court judge are not properly made part of the record, because the trial court never had an opportunity to rule on any requested relief.²⁸ The clerk of the court which entered the appealed order is to prepare the record on appeal within fifty days and serve an index to the record upon the parties.²⁹

Within ten days of filing the notice of appeal, the appellant may direct the clerk to include or exclude certain documents in the record.³⁰ This assists the clerk in ensuring that relevant documents are included without unnecessarily including everything in the trial court's file. Following the appellant's directions to the clerk, the appellee may direct the clerk to include additional documents or evidence within twenty days of the filing of the notice of appeal.³¹

In rare circumstances where the parties may not record a transcript of the proceedings, a record may be created through preparation of a statement of the evidence.³² The appellant first prepares a written statement that reflects the proceedings as accurately as possible, then serves the drafted statement on all parties (but does not file it with the court). Opposing parties then have fifteen days during which to object or propose amendments. The lower court judge will review the statement and will approve it only where the proceedings are fresh enough that the judge can confirm its accuracy. The district court will not consider statements of evidence that are not approved by the lower court.³³

18-4:1.2 Supplementation of Record

After the record is prepared, the parties may identify documents or transcripts which were not included in the clerk's initial transmission, but will be necessary for the appellate court to review the matter. In this instance, the record may be supplemented by agreement of the parties or by the court.³⁴ If the parties do not take this initiative, but the court determines that the record is incomplete, it will direct a party to submit the omitted parts of the record.³⁵

18-4:1.3 Timing of Briefs

In a final appeal, the appellant's initial brief must be filed within 70 days of the filing of the notice of appeal.³⁶ The appellee may then file an answer brief within thirty days of the initial brief, and finally, the appellant has the last word and may file a reply brief within thirty days following the answer brief.³⁷

18-4:2 Non-Final Appeals

The Florida Rules of Appellate Procedure also provide for the filing of non-final appeals, which are appeals that do not, by their own effect, end the judicial labor in a case. Non-final appeals must be specifically authorized by Florida Rule of Appellate Procedure 9.130. The most...