In Re: Amendments to the Florida Rules of Appellate Procedure ( 2023 )

Supreme Court of Florida
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No. SC22-1785
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IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE
PROCEDURE.
March 16, 2023
PER CURIAM.
This matter is before the Court for consideration of proposed
amendments to the Florida Rules of Appellate Procedure. See Fla.
R. Gen. Prac. & Jud. Admin. 2.140(b)(1). We have jurisdiction. See
art. V, § 2(a), Fla. Const.
The Florida Bar’s Appellate Court Rules Committee
(Committee) filed a report proposing amendments to Florida Rules
of Appellate Procedure 9.190 (Judicial Review of Administrative
Action), 9.400 (Costs and Attorneys’ Fees), and 9.440 (Attorneys).
The Committee and the Board of Governors of The Florida Bar
unanimously approved the proposed amendments. The Committee
published the proposed amendments for comment prior to filing
them with the Court, and no comments were received.
Having considered the proposed amendments, the Court
hereby amends rules 9.190, 9.400, and 9.440 as proposed by the
Committee. The more significant amendments are discussed below.
First, rule 9.190(d) (Attorneys’ Fees) is amended by deleting
stated requirements for the filing of motions for attorneys’ fees in
administrative appeals and seeking review of orders on such
motions and replacing those requirements with a reference to the
requirements articulated in rule 9.400. This change will streamline
the ruleset and eliminate potential confusion.
Next, rule 9.400(b) (Attorneys’ Fees) is amended to tie the
deadline to file a motion for attorneys’ fees in a discretionary review
proceeding to the filing of the parties’ jurisdictional briefs. As
currently worded, rule 9.400(b) describes different filing deadlines
depending on whether jurisdictional briefs were filed—a procedure
rendered obsolete by recent changes to rule 9.120(d) (Briefs on
Jurisdiction), which now states that jurisdictional briefs must be
filed in all proceedings seeking discretionary review of a district
court decision. See In re Amends. to Fla. R. App. P. 9.120 & 9.210,
307 So. 3d 626, 627 (Fla. 2020).
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Finally, rule 9.440 is amended by revising subdivision (c)
(Scope of Representation) to state that the form in rule 9.900(n)
(Notice of Termination of Limited Appearance) is to be used for a
notice of termination of limited appearance. This change will add
clarity and remove an internal inconsistency, as the previous
reference was to a notice of limited appearance. In addition,
subdivision (d) (Withdrawal of Attorneys) is revised to conform with
recent amendments to Florida Rule of General Practice and Judicial
Administration 2.505 (Attorneys) that allow an attorney to withdraw
without a court order if the substitution is by another attorney in
the same firm or agency. See In re Amends. to Fla. R. Jud. Admin.—
2020 Regular-Cycle Report, 310 So. 3d 374, 377 (Fla. 2021).
Accordingly, we amend the Florida Rules of Appellate
Procedure as reflected in the appendix to this opinion. New
language is indicated by underscoring; deletions are indicated by
struck-through type. The amendments to the rule shall become
effective July 1, 2023, at 12:01 a.m.
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, COURIEL,
GROSSHANS, and FRANCIS, JJ., concur.
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THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules of Appellate Procedure
Hon. Andrew D. Manko, Chair, Appellate Court Rules Committee,
Tallahassee, Florida, Joshua E. Doyle, Executive Director, The
Florida Bar, Tallahassee, Florida, and Heather Savage Telfer, Bar
Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
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Appendix
RULE 9.190. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
(a) Applicability. Judicial review of administrative action
shallwill be as in civil cases except as specifically modified by this
rule.
(b) Commencement.
(1) An appeal from final agency action as defined in the
Administrative Procedure Act, chapter 120, Florida Statutes,
including immediate final orders entered pursuant tounder section
120.569(2)(n), Florida Statutes, or other administrative action for
which judicial review is provided by general law shallmust be
commenced in accordance with rule 9.110(c).
(2) Review of nonfinal agency action under the
Administrative Procedure Act, including nonfinal action by an
administrative law judge, and agency orders entered pursuant
tounder section 120.60(6), Florida Statutes, shallmust be
commenced by filing a petition for review in accordance with rules
9.100(b) and (c).
(3) Review of quasi-judicial decisions of any
administrative body, agency, board, or commission not subject to
the Administrative Procedure Act shallmust be commenced by filing
a petition for certiorari in accordance with rules 9.100(b) and (c),
unless judicial review by appeal is provided by general law.
(c) The Record.
(1) Generally. As further described in this rule, the
record shallmust include only materials furnished to and reviewed
by the lower tribunal in advance of the administrative action to be
reviewed by the court.
(2) Review of Final Action Pursuant toUnder the
Administrative Procedure Act.
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(A) Proceedings Involving Disputed Issues of
Material Fact. In an appeal from any proceeding conducted
pursuant tounder sections 120.569 and 120.57(1), Florida Statutes,
the record shallwill consist of all notices, pleadings, motions, and
intermediate rulings; evidence admitted; those matters officially
recognized; proffers of proof and objections and rulings thereon;
proposed findings and exceptions; any decision, opinion, order, or
report by the presiding officer; all staff memoranda or data
submitted to the presiding officer during the hearing or prior
tobefore its disposition, after notice of submission to all parties,
except communications by advisory staff as permitted under section
120.66(1), Florida Statutes, if such communications are public
records; all matters placed on the record after an ex parte
communication; and the official transcript.
(B) Proceedings Not Involving Disputed Issues of
Material Fact. In an appeal from any proceeding pursuant tounder
sections 120.569 and 120.57(2), Florida Statutes, the record
shallwill consist of the notice and summary of grounds; evidence
received; all written statements submitted; any decisions overruling
objections; all matters placed on the record after an ex parte
communication; the official transcript; and any decision, opinion,
order, or report by the presiding officer.
(C) Declaratory Statements. In an appeal from any
proceeding pursuant tounder section 120.565, Florida Statutes, the
record shallwill consist of the petition seeking a declaratory
statement and any pleadings filed with the agency; all notices
relating to the petition published in the Florida Administrative
Register; the declaratory statement issued by the agency or the
agency’s denial of the petition; and all matters listed in subdivision
(c)(2)(A) or (c)(2)(B) of this rule, whichever is appropriate, if a
hearing is held on the declaratory statement petition.
(D) Summary Hearings. In an appeal from any
proceeding pursuant tounder section 120.574, Florida Statutes, the
record shallwill consist of all notices, pleadings, motions, and
intermediate rulings; evidence received; a statement of matters
officially recognized; proffers of proof and objections and rulings
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thereon; matters placed on the record after an ex parte
communication; the written decision of the administrative law judge
presiding at the final hearing; and the official transcript of the final
hearing.
(E) Challenges to Rules.
(i) In an appeal from any proceeding
conducted pursuant tounder section 120.56, Florida Statutes, the
record shallwill consist of all notices, pleadings, motions, and
intermediate rulings; evidence admitted; those matters officially
recognized; proffers of proof and objections and rulings thereon;
proposed findings and exceptions; any decision, opinion, order, or
report by the presiding officer; all staff memoranda or data
submitted to the presiding officer during the hearing or prior
tobefore its disposition, after notice of submission to all parties,
except communications by advisory staff as permitted under section
120.66(1), Florida Statutes, if such communications are public
records; all matters placed on the record after an ex parte
communication; and the official transcript.
(ii) In an appeal from a rule adoption
pursuant tounder sections 120.54 or 120.68(9), Florida Statutes, in
which the sole issue presented by the petition is the
constitutionality of a rule and there are no disputed issues of fact,
the record shallwill consist only of those documents from the
rulemaking record compiled by the agency that materially address
the constitutional issue. The agency’s rulemaking record consists of
all notices given for the proposed rule; any statement of estimated
regulatory costs for the rule; a written summary of hearings on the
proposed rule; the written comments and responses to written
comments as required by sections 120.54 and 120.541, Florida
Statutes; all notices and findings made pursuant tounder section
120.54(4), Florida Statutes; all materials filed by the agency with
the Administrative Procedures Committee pursuant tounder section
120.54(3), Florida Statutes; all materials filed with the Department
of State pursuant tounder section 120.54(3), Florida Statutes; and
all written inquiries from standing committees of the legislature
concerning the rule.
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(F) Immediate Final Orders. In an appeal from an
immediate final order entered pursuant tounder section
120.569(2)(n), Florida Statutes, the record shallmust be compiled in
an appendix pursuant to rule 9.220 and served with the briefs.
(3) [NO CHANGE]
(4) Review of Administrative Action Not Subject to the
Administrative Procedure Act. In proceedings seeking review of
administrative action not governed by the Administrative Procedure
Act, the clerk of the lower tribunal shallis not be required to prepare
a record or record index. The petitioner or the appellant shallmust
submit an appendix in accordance with rule 9.220. Supplemental
appendices may be submitted by any party. Appendices maymust
not contain any matter not made part of the record in the lower
tribunal.
(5) Videotaped Testimony. In any circumstance in
which hearing testimony is preserved through the use of videotape
rather than through an official transcript, the testimony from the
videotape shallmust be transcribed and the transcript shallmust be
made a part of the record before the record is transmitted to the
court.
(6) [NO CHANGE]
(d) Attorneys’ Fees.
(1) Attorneys’ Fees. A motion for attorneys’ fees may be
served not later than the time for service of the reply brief and shall
state the grounds on which the recovery is sought, citing all
pertinent statutesmust be served under rule 9.400(b).
(2) [NO CHANGE]
(3) Review. Review of orders entered by the lower
tribunal or the administrative law judge under this rule shall be by
motion filed in the court within 30 days of rendition of the orderwill
be conducted under rule 9.400(c). Objections to reports of special
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magistrates shallmust be filed with the court within 30 days after
the special magistrate’s report is filed with the court.
(e) Stays Pending Review.
(1) Effect of Initiating Review. The filing of a notice of
administrative appeal or a petition seeking review of administrative
action shallwill not operate as a stay, except that such filing
shallwill give rise to an automatic stay as provided inunder rule
9.310(b)(2) or chapter 120, Florida Statutes, or when timely review
is sought of an award by an administrative law judge on a claim for
birth-related neurological injuries.
(2) Application for Stay Under the Administrative
Procedure Act.
(A) A party seeking to stay administrative action
may file a motion either with the lower tribunal or, for good cause
shown, with the court in which the notice or petition has been filed.
The filing of the motion shallwill not operate as a stay. The lower
tribunal or court may grant a stay upon appropriate terms. Review
of orders entered by lower tribunals shallwill be by the court on
motion.
(B) [NO CHANGE]
(C) When an agency has suspended or revoked a
license other than on an emergency basis, a licensee may file with
the court a motion for stay on an expedited basis. The agency may
file a response within 10 days of the filing of the motion, or within a
shorter time period set by the court. Unless the agency files a timely
response demonstrating that a stay would constitute a probable
danger to the health, safety, or welfare of the state, the court
shallmust grant the motion and issue a stay.
(D) When an order suspending or revoking a
license has been stayed pursuant tounder subdivision (e)(2)(C), an
agency may apply to the court for dissolution or modification of the
stay on grounds that subsequently acquired information
demonstrates that failure to dissolve or modify the stay would
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constitute a probable danger to the public health, safety, or welfare
of the state.
(3) Application for Stay or Supersedeas of Other
Administrative Action. A party seeking to stay administrative action,
not governed by the Administrative Procedure Act, shallmust file a
motion in the lower tribunal, which shall havehas continuing
jurisdiction, in its discretion, to grant, modify, or deny such relief. A
stay pending review may be conditioned on the posting of a good
and sufficient bond, other conditions, or both. Review of orders
entered by lower tribunals shallwill be by the court on motion.
(4) Duration. A stay entered by a lower tribunal or a
court shallwill remain in effect during the pendency of all review
proceedings in Florida courts until a mandate issues, unless
otherwise modified or vacated.
Committee Notes
[NO CHANGE]
RULE 9.400. COSTS AND ATTORNEYS’ FEES
(a) Costs. Costs shallwill be taxed in favor of the prevailing
party unless the court orders otherwise. Taxable costs shall
include:
(1) – (4) [NO CHANGE]
Costs shallwill be taxed by the lower tribunal on a motion served no
later than 45 days after rendition of the court’s order. If an order is
entered either staying the issuance of or recalling a mandate, the
lower tribunal is prohibited from taking any further action on costs
pending the issuance of a mandate or further order of the court.
(b) Attorneys’ Fees. With the exception of motions filed
pursuant tounder rule 9.410(b), a motion for attorneys’ fees
shallmust state the grounds on which recovery is sought and
shallmust be served not later than:
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(1) [NO CHANGE]
(2) in original proceedings, the time for service of the
petitioner’s reply to the response to the petition; or
(3) in discretionary review proceedings commenced
under rule 9.030(a)(2)(A) in which jurisdictional briefs are
permitted, the time for serving the respondent’s brief on
jurisdiction, or if jurisdiction is accepted, the time for serving the
reply brief; or
(4) in discretionary review proceedings in which
jurisdiction is invoked under rule 9.030(a)(2)(A)(v), not later than 5
days after the filing of the notice, or if jurisdiction is accepted, the
time for serving the reply brief.
The assessment of attorneys’ fees may be remanded to the lower
tribunal. If attorneys’ fees are assessed by the court, the lower
tribunal may enforce payment.
(c) Review. Review of orders rendered by the lower tribunal
under this rule shallwill be by motion filed in the court within 30
days of rendition.
Committee Notes
[NO CHANGE]
RULE 9.440 ATTORNEYS
(a) Foreign Attorneys. An attorney who is an active member
in good standing of the bar of another state may be permitted to
appear in a proceeding uponin compliance with Florida Rule of
General Practice and Judicial Administration 2.510.
(b) Limiting Appearance. An attorney of record for a party
in an appeal or original proceeding governed by these rules shallwill
be the attorney of record throughout the same appeal or original
proceeding unless at the time of appearance the attorney files a
notice specifically limiting the attorney’s appearance only to a
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particular matter or portion of the proceeding in which the attorney
appears.
(c) Scope of Representation. If an attorney appears for a
particular limited matter or portion of a proceeding, as provided by
this rule, that attorney shallwill be deemed “of record” for only that
particular matter or portion of the proceeding. The notice of limited
appearance shall be substantially in the form prescribed by rule
9.900(n). If the party designates e-mail address(es) for service on
and by that party, the party’s e-mail address(es) shallmust also be
included. At the conclusion of such matter or that portion of the
proceeding, the attorney’s role terminates without the necessity of
leave of court upon the attorney filing a notice of completion of
limited appearance. The notice, which shall be titled “Termination of
Limited Appearance,” shall of termination of limited appearance
must be substantially in the form prescribed by rule 9.900(n) and
must include the names and last known addresses of the person(s)
represented by the withdrawing attorney.
(d) Withdrawal of Attorneys; Substitution of Attorneys.
(1) UnlessIf an attorney complies with subdivisions (b)
and (c) of this rule, the attorney may withdraw without leave of
court.
(2) If an attorney from the same firm, company, or
governmental agency has already appeared on behalf of the client or
is the proposed substitute counsel, withdrawal and substitution
may be completed by filing a notice under the Florida Rules of
General Practice and Judicial Administration. A copy of the notice
must be served on the client and adverse parties.
(3) All other attorneys must first seek leave of court an
attorney shall not be permitted to withdraw unless the withdrawal
is approved by the court. The attorney shallmust file a motion for
that purpose stating the reasons for withdrawal and the client’s
address. A copy of the motion shallmust be served on the client and
adverse parties.
Committee Notes
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[NO CHANGE]
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