PBCBA BAR BULLETINS pbcba_bulletin_April 2019 | Page 7

APPELLATE P r a c t i c e C o r n e r
Amendments to the Florida Rules of Appellate
Procedure Bring Clarification and Expansion
JOHN TERWILLEGER
Effective January 1, 2019, the Florida
Supreme Court amended the Florida Rules
of Appellate Procedure in several ways that
are significant for litigators to understand
moving forward. Two of the amendments
expanded and clarified the orders may
be appealed prior to final judgment, as
well as allowing the appeal of additional,
related orders. Two of the amendments
streamlined the briefing process and
motion practice before an appellate court.
The Florida Supreme Court expanded and
clarified the orders that are appealable
prior to final judgment by amending Rules
9.110(k) and 9.130(a)(3).

Rule 9.110(k) was amended to expand and
clarify the scope of review of a partial
final judgment. The amendments expand
the scope of review to include “any ruling
or matter occurring before filing of the
notice of appeal so long as such ruling or
matter is directly related to an aspect of
the partial final judgment under review.”
The amendments do not change the
requirement that the partial final judgment
must not be interdependent with other
pleaded claims. See Fla. R. App. P. 9.110(k);
Polito v. Keybank Nat’l Ass’n , 237 So. 3d
361, 364 (Fla. 4th DCA 2017) (explaining
that appeals of partial final judgments
are permitted only when the partial final
judgment involves a separate and distinct
cause of action that is not interdependent
with other pleaded claims). However,
the amendment permits appeal of orders
related to a partial final judgment that are
otherwise appealable, which most likely
includes orders awarding attorneys’ fees
or costs and other post-judgment awards.
Rule 9.130(a)(3) was also amended to
expand the right to appeal nonfinal orders
by adding two new categories of nonfinal
orders that may be appealed as of right.
Newly added subsection 9.130(a)(3)(C)
(xii) authorizes appeal of nonfinal orders
determining “that, as a matter of law, a
settlement agreement is unenforceable, is
set aside, or never existed.” Newly added
subsection 9.130(a)(3)(E) authorizes the
appeal of nonfinal orders that “grant or
deny a motion to disqualify counsel.” Prior
to this amendment, orders on a motion
to disqualify counsel were appealable
through certiorari review. Manning v.
Cooper, 981 So. 2d 668, 670 (Fla. 4th DCA
2008).
The Florida Supreme Court streamlined the
briefing process and motion practice by
amending Rule 9.210(a)(6), and Rule 9.330,
and added a new motion that may be filed
after the appellate court issues its nonfinal
opinion.
Rule 9.210(a)(6) was amended to limit
the number of briefs that may be filed
in an appeal involving multiple parties
represented by a single attorney, or multiple
attorneys representing a single party, as well
as when a party responds to multiple briefs.
Under the amended rule, when a single
attorney represents more than one party,
the attorney may only file a single initial
brief, answer brief, or reply. Similarly, when
a single party is represented by multiple
attorneys, that party may also only file a
single initial brief, answer brief or reply.
Finally, when a single party is responding
to multiple briefs filed by multiples parties,
that party is only permitted to file a single
answer brief or reply.
Opinion can be on the grounds that a
written opinion would provide a legitimate
basis for Florida Supreme Court review,
or an explanation for deviation from prior
precedent. Fla. R. App. P. 9.330(a)(2)(d).
Additionally, the motion can seek a written
opinion to provide guidance to lower
tribunals when: (a) the issue is present
in other pending appeals, (b) the issue is
expected to recur, (c) there are conflicting
decisions from lower courts, (d) the issue is
one of first impression, or (e) the court has
exclusive subject matter jurisdiction of the
issue on appeal. Fla. R. App. P. 9.330(a)(2)
(d)(iii).
In summary, the amendments to the Rule
of Appellate Procedure include substantial
changes to appellate practice, in addition
to clarifying the rules and streamlining the
briefing process. More nonfinal orders are
appealable as of right, additional orders
related to appealable nonfinal orders may be
included in the appeal, and after the appeal
is completed, a new Motion for Written
Rule 9.330 was amended in several ways Opinion is available to seek an explanation
to clarify when and how a motion for of the appellate court’s holding.
rehearing, clarification or certification may
be filed, and providing for a new “Motion
for Written Opinion.” Subdivision (a) was
substantially amended in non-substantive
ways “in order to more clearly outline the
requirements for motions for rehearing,
clarification, certification, or a written
The Community Law Association CLE
opinion.” In re Amendments to Fla. Rules
Committee of the
of Appellate Procedure-2017 Regular-Cycle
Palm Beach Bar Association
Report, 256 So. 3d 1218, 1222 (Fla. 2018).
The amendments require that a Motion for
Presents
Certification, now covered by subdivision (a)
(2)(C), must include the cases that expressly
30th Annual Community
and directly conflict with the court’s order,
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or must set out the issue or question that is
of great public importance. Subdivision (b)
Friday, June 7, 2019
was also amended to clarify that all motions
for rehearing, clarification, certification or
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written opinion must be combined into a
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single motion.
A significant change to Rule 9.330 is the
addition of the new Motion for Written
Opinion. The new motion provides an
opportunity for a party to try to avoid the
dreaded (for the losing party) per curium
affirmed ruling. The Motion for Written
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