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Trial Lawyers, Don’t Lose Your Appeal

September 6, 2022

Every appellate attorney’s dream is a well-developed record on appeal without any unpreserved errors. But that is not always possible. The recent amendment to Florida Rule of Civil Procedure 1.530(a), issued sua sponte by the Florida Supreme Court, is one example why sometimes errors are unpreserved. In re Amendments to Florida Rule of Civil Procedure 1.530 & Florida Family Law Rule of Procedure 12.530, SC22-756, 2022 WL 3650789 (Fla. Aug. 25, 2022). The amendment became effective on August 25, 2022, the same day the court’s opinion was issued, which means if your motion for rehearing pursuant to rule 1.530 was due that day and you were not aware of the amendment, you could have potentially forfeited an essential issue for appellate review. The amended rule requires a party to challenge the sufficiency of a trial court’s findings in a final judgment by a motion for rehearing filed pursuant to rule 1.530(a). Failure to do so results in waiver. The amendment added the following specific language:

[t]o preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.

Id. at *1.

As this change was made without prior opportunity for comment, interested persons must file with the court any comments to the amended rule no later than November 8, 2022. 2022 WL 3650789, at *1, n.1. Oral argument requests must be made separately. Id. Thus, if you missed the opportunity to file a motion for rehearing from a final judgment that contained insufficient findings, because you were not aware of the amendment, then you might want to consider filing a comment with the court. Keep in mind, however, that ignorance of the law is not a good enough excuse for failure to comply with the law, so you might want to supplement your comment with other factors that might have prevented compliance with the rule on the date the rule became effective. Even if the court does not change the effective date of the rule, it might take into account such comments for future amendments.

On the same day, the Florida Supreme Court also adopted amendments proposed by the Florida Bar’s Civil Procedure Rules Committee to Florida Rules of Civil Procedure 1.530 and 1.535. In re Amendments to Florida Rules of Civil Procedure 1.530 & 1.535, SC22-115, 2022 WL 3650772 (Fla. Aug. 25, 2022). The amended version of rule 1.530 incorporates rule 1.535 governing motions for remittitur and additur as subsection (h) of rule 1.530. Id. at *2. The amendment also clarifies that the 15-day deadline for motions brought pursuant to the rule is based upon “the date of filing” of any ruling or judgment rather than the date of entry of an order or judgment. Id. at *2. Throughout the amended rule, the more ambiguous and permissive word “shall” is replaced by the mandatory “must.” Id. at *1-*2. The new addition of subsection (h) concerning motions for remittitur or additur is also subject to the 15-day deadline after the return of a jury verdict or after the filing of the judgment in a non-jury action. Id. The amendments to rule 1.530 and the deletion of rule 1.535 will take effect on October 1, 2022.

The importance of this amendment cannot be understated for purposes of the timeliness of a notice of appeal. Recently, Florida Rule of Appellate Procedure 9.020(h)(1)(A), was amended to include motions for remittitur and addittur among the list of motions tolling renditions, provided they are authorized and timely filed. Thus, ensuring that motions brought pursuant to rule 1.530 are authorized and timely filed is paramount to properly invoking the jurisdiction of the appellate court.