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It’s not over ‘til it’s over: The Appeal By Zakarij N. Laux

Posted on June 15, 2017 in

For many litigators, it’s all about the final judgment. Setting aside the joys of post-judgment collection, the entry of final judgment is the litigator’s swan song.  But just when you and your client are relishing in a win (or picking up the pieces from a loss), enter the notice of appeal or the decision to file one or not.

Many litigators are so invested in the case—having lived with it for months or years—that they decide to stick with the case at the appellate level.  For those who do, or in those pivotal days before selecting appellate counsel, here is some key information litigators may not have known, or forgotten, when it comes to appeals:

  • The 30-day time limit to file an appeal is jurisdictional.  There is no such thing as an order enlarging this deadline, and, if you happen to get a trial court to enter one, it is a nullity. Rule. 1.090(b), Fla. R. Civ. P.  The 30 days begins from the date of the clerk’s date stamp, not the date the judge signs the order or the date you get a copy.
  • Nothing tolls the 30-day time limit to file a motion for attorneys’ fees after entry of a final judgment. Even though a notice of appeal has been filed, the trial court can still award attorneys’ fees and deal with other collateral matters that do not affect the jurisdiction of the appellate court or the merits of the issue on appeal.
  • Orders that seem final but state they become final upon the occurrence of a specified event are not appealable final orders, even after the event takes place. For example: an order dismissing a complaint but granting the plaintiff 10 days to file an amendment will never be a final appealable order, even after the 10 days runs. A plaintiff’s attempt to appeal this order at any point should be met with dismissal.
  • The Florida Rules of Appellate Procedure were changed in 2015 – the filing of a notice of appeal no longer results in the abandonment of a pending motion for rehearing. The appeal is now held in abeyance until the filing of a signed written order disposing of the rehearing motion. Rule 9.020(i)(3), Fla. R. App. P.

Because “it’s not over ‘til it’s over,” litigators should keep these preliminary appellate issues in mind to protect their clients’ rights and prevent potential malpractice.  And when the appellate issues are cleared, get ready for the bankruptcy filing!