Plaintiff has failed to timely respond to the Request for Admissions. This does not always preclude the plaintiff from relief. It has been recognized that it is “reversible error to involuntarily dismiss an action or grant summary judgment based solely on the failure to timely respond to a request for admissions where the pleadings and/or the record evidence contradicts the technical admissions and no prejudice has been demonstrated.” See HSBC Bank USA, etc. v. Fulbio S. Parodi, 41 Fla. L. Weekly D1093a (Fla. 3d DCA May 4, 2016). For instance, in HSBC Bank USA, the Third District held that “the trial court erred by involuntarily dismissing HSBC’s foreclosure action based solely on its technical admissions because these technical admissions were contradicted by HSBC’s pleadings, discovery responses, and/or trial evidence; Parodi failed to argue or demonstrate prejudice; and the trial court failed to find prejudice.” As a result, the Third District reversed the final judgment involuntarily dismissing HSBC’s foreclosure action. Id.
Category Archives: Recent Developments
Child Support & Outdated Financial Information
When you are seeking an award of child support or a modification of child support make sure that the court is relying on updated financial information. This is because, if the court is relying on outdated financials to calculate child support, your award of child support may be reversed. For instance, recently In Santos v. Santos, the parties filed petitions to modify the child support plan. In modifying the child support, the trial court relied on financial affidavits from the original dissolution instead of the updated affidavits filed in connection with the modification petitions. See Santos v. Santos, 40 Fla. L. Weekly D1057a (Fla. 2d DCA, May 6, 2015). As a result, the trial court relied on outdated financial affidavits to calculate child support. Id. The Second District recognized that the use of this outdated financial information in calculating child support was reversible error and thus reversed the final judgment with respect to the child support modification. Id.
Notable Changes to the Florida Rules of Appellate Procedure – Effective 2015
Anyone handling an appeal or original proceeding before the Florida appellate courts should always keep up to date on the changes to the Florida Rules of Appellate Procedure. Accordingly, many changes were made to the Florida Rules of Appellate Procedure, which became effective this year. Highlighted below are a few of those key changes.
Under Florida Rules of Appellate Procedure 9.020(i), the filing of a notice appeal no longer causes one’s timely and authorized post-judgment motions to be deemed abandoned. See In re Amendments to Florida Rules of Appellate Procedure, 39 Fla. L. Weekly S665 (Fla. Nov. 6, 2014). The amended rule rather allows the appeal to be held in abeyance until said motion is disposed of. See Id.; Fla. R. App. P. 9.020(i). Florida Rules of Appellate Procedure 9.110(l), which dismisses premature appeals, was amended in light of the amendment to Rule 9.020(i). As a result, the amendment adds language to ensure that the exception provided in rule 9.020(i) is recognized. See Fla. R. App. P. 9.110(l).
Moreover, Florida Rules of Appellate Procedure 9.320, which covers oral arguments was amended. In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014). First of all, it extended the time to request an oral argument in an appeal by 10 days. See Id; Fla. R. App. P. 9.310(a). A request must be served “not later than 10 days after the last brief is due to be served.” Fla. R. App. P. 9.320(a).
Second of all, it clarified the timeline for requesting an oral argument in original proceedings. The prior rule only specified the timeline to request such when the proceeding involved briefs. See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014). Since briefs are not filed in original proceedings, it was unclear when such was due. The amendment now makes it clear that such a request must be made “not later than 10 days after the reply is due to be served.” Fla. R. App. P. 9.320(b).
Furthermore, Florida Rules of Appellate Procedure 9.350 was amended to clarify that the filing of a stipulation or notice of dismissal does not itself dismiss the cause. See re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov 6, 2014). Rather the matter is automatically stayed until the court determines whether to recognize the dismissal or not. See Fla. R. App. P. 9.350(d).
In addition, Florida Rules of Appellate Procedure 9.400 amendment with regards to attorney fees in original proceedings clarifies when such is due. The prior rule only specified the timeline to file such when the proceeding involved reply briefs. Since original proceedings did not include reply briefs, it was unclear whether rule 9.400 governed such or if it did not then when such motions for attorney fees were due.
In May 2014, the Florida Supreme Court in Advanced Chiropractic and Rehabilitation Center, Corp. v. United Automobile Ins. Co., 140 So. 3d 529 (Fla. 2014) held that rule 9.300 and not rule 9.400 governs requests for attorney fees in original proceedings. The Florida Supreme Court stated that requests for attorney fees must be timely to provide the relief sought, but did not specify the exact time period such should be filed or served. See Id. The Florida Supreme Court by amending this rule, now specifies the time period and clarifies that this rule governs such. See Fla. R. App. P. 9.400(b)(2). It clearly states that a motion for attorney fees in original proceedings shall be served no later than “the time for service of petitioner’s reply to the response to the petition.” Fla. R. App. P. 9.400(b)(2).
In addition, it is important to recognize that the timeline to serve a motion for costs under Florida Rules of Appellate Procedure 9.400 has changed. See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov 6, 2014). Generally, it is no longer dependent on when the mandate was issued. See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014); Fla. R. App. P. 9.400(a). It now depends on when the appellate court’s order was rendered. Id. A party no longer has within 30 days after issuance of the mandate, but rather has no later than 45 days after rendition of the appellate court’s order to serve the motion for costs. See Id.
New Amendments to Florida Rules of Appellate Procedure 9.210
It has been a longstanding practice of the Florida Supreme Court to allow appellate briefs filed in cases relating to imposition of death penalty to exceed the standard page limits. See In Re: Amendments to Florida Rules of Appellate Procedure 9.210, 40 Fla. L. Weekly S135a (Fla. March 12, 2015). This practice, however, has been implemented on a case by case basis. Id. The Florida Supreme Court today has amended Fla. R. App. P. 9.210 and reduced its practice to code. Id.
It is now set forth in the Florida Rules of Appellate Procedure that longer appellate briefs in cases relating to imposition of the death penalty are permitted. Id. The Florida Supreme Court new subdivision (a)(6) specifically states:
(6) In an appeal from a judgment of conviction imposing a sentence of death or in an appeal from an order ruling on, after an evidentiary hearing, an initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851, the initial and answer briefs shall not exceed 100 pages in length, provided that if a cross-appeal has been filed, the answer brief/initial brief on cross-appeal shall not exceed 150 pages. Reply briefs shall not exceed 35 pages in length, provided that if a cross-appeal has been filed, the reply brief shall not exceed 100 pages, not more than 35 of which shall be devoted to argument replying to the answer portion of the appellee/cross-appellant’s brief. Cross-reply briefs shall not exceed 35 pages. In an appeal from an order summarily denying an initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851, ruling on a successive postconviction motion filed under Florida Rule of Criminal Procedure 3.851, finding that a defendant is intellectually disabled as a bar to execution under Florida Rule of Criminal Procedure 3.203, or ruling on a motion for postconviction DNA testing filed under Florida Rule of Criminal Procedure 3.853, the initial and answer briefs shall not exceed 75 pages in length. Reply briefs shall not exceed 25 pages in length. The tables of contents and citations, the certificates of service and compliance, and the signature block for the brief’s author, shall be excluded from the computation. Longer briefs may be permitted by the court.
See In Re: Amendments to Florida Rules of Appellate Procedure 9.210, 40 Fla. L. Weekly S135a (Fla. March 12, 2015).
You Are Denied Your Motion to Intervene – When Should You Appeal?
According to the Third District Court of Appeal, a party who is not named in the action and whose motion to intervene is denied do not have the right to appeal the final judgment . See Quinones v. Southeastern Investment Group Corp., 39 Fla. L. Weekly D909a (Fla. 3d DCA 2014). Rather, the order denying the motion to intervene is considered the final determination of the proceedings with regards to that party. Id. As a result, that party has the right to appeal the order denying the motion to intervene within 30 days of rendition of that order. Id. Waiting until rendition of the final judgment in that case will result in your appeal being dismissed due to lack of standing. Id.