MOTION PRACTICE By Debra Sutton, Esq., Bartow, FL And Jorge Cestero, Esq.

, West Palm Beach, FL Updated by Jane Kreusler-Walsh and Stephanie L. Serafin of Kreusler-Walsh, Compiani & Vargas, P.A. I. AUTHORIZATION FOR MOTIONS.

Motion practice is the method of communicating to the appellate court matters which require resolution, but which will not necessarily be addressed in the appellate briefs. Motions can be a method of concluding a case without having to brief the case on the merits. For example, a motion regarding jurisdictional matters, if granted, could terminate the appeal at an early stage. Florida Rule of Appellate Procedure 9.300 generally governs motion practice before the appellate courts. Florida Rule of Appellate Procedure 9.300(a), provides: Unless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor. The motion shall state the grounds on which it is based, the relief sought, argument in support thereof, and appropriate citations of authority. A motion for an extension of time shall, and other motions if appropriate may, contain a certificate that the movants counsel has consulted opposing counsel and that the movants counsel is authorized to represent that opposing counsel either has no objection or will promptly file an objection. A motion may be accompanied by an appendix, which may include affidavits and other appropriate supporting documents not contained in the record. With the exception of motions filed pursuant to rule 9.410(b), a party may serve 1 response to a motion within 10 days of service of
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the motion. The court may shorten or extend the time for response to a motion. Florida Rule of Appellate Procedure 9.300(b), provides: Except as prescribed by subdivision (d) of this [section outlining motions which do not toll time], service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion. An order granting an extension of time for any act shall automatically extend the time for all other acts that bear a time relation to it. An order granting an extension of time for preparation of the record, or the index to the record, or for filing of the transcript of proceedings, shall extend automatically, for a like period, the time for service of appellants initial brief. A conformed copy of an order extending time shall be transmitted forthwith to the clerk of the lower tribunal until the record has been transmitted to the court. Family Law Matters. Several appellate rules apply specifically to family law matters. Florida Rules of Appellate Procedure 9.020(d) defines Family Law Matter as a matter governed by the Florida Family Law Rules of Procedure. II. a. TYPES OF MOTIONS AND EXAMPLES: Procedural. 1. Motion for extension of time. 2. Motion to supplement the record. Substantive. 1. Motion to stay. 2. Motion for bond pending appeal. Dispositional. 1. Motion to dismiss, e.g. for lack of jurisdiction

b.

c.

III.

CONTENT OF MOTIONS- GENERALLY

Generally speaking, briefs are not submitted with motions unless requested by the court and thus, should be self-contained. a. Mechanical elements: 1. 2. 3. 4. 5. 6. 7. Style of the case and appeal number. Descriptive title. Body containing factual basis and argument. Request for relief. Signature of attorney. Certificate of service (identifying which party is represented by each attorney listed in the certificate). Appendix, if desired.

PRACTICE TIP: If motion is not objected to, title the motion accordingly, such as Unopposed Motion for Extension of Time to File Initial Brief. b. Pursuant to rule 9.300(a), a motion must include: 1. An application for relief. 2. A statement of the grounds on which the motion is based. 3. Argument with appropriate citations of authority (NOTE: briefs on motions are not permitted unless invited by the court). In addition, it is suggested that you include: 1. Whether you have contacted opposing counsel regarding the relief sought. 2. The opposing attorneys position regarding the relief sought (NOTE: this is a requirement with motions for extension of time). PRACTICE TIPS: Remember, the motion will serve as the advocacy for your clients position; oral argument is rarely granted. In addition, the moving party is generally not permitted to file a reply. If you are filing an opposed motion, you should anticipate and address your opponents arguments in the motion. Further, you should file motions

timely. A delay in filing the motion could serve as the basis for its denial. c. Appendix:

Rule 9.300(a) provides that: A motion may be accompanied by an appendix, which may include affidavits and other appropriate supporting documents not contained in the record. The appendix should be supplied to the court and counsel along with the motion, and should be organized and identified as required in rule 9.220. PRACTICE TIP: Where is the record? If it has yet to be transferred to the appellate court, include pleadings, orders and other documents referred to in the motion for reference by the appellate court. d. Response

The opposing party may serve a response to a motion filed within ten days of service of the motion. Fla. R. App. P. 9.300(a). (NOTE: See rule 9.410(b) for specific rules about motions for sanctions and responses). The response contains the same mechanical elements as the motion. The responding party may provide an appendix as well. e. Specific motions; Requirements of each: 1. Motions for attorneys fees and costs

The motion for attorneys fees should identify a specific source of entitlement to fees. See Fla. R. App. P. 9.400(b); Welch v. Welch, 22 So. 3d 153, 156 (Fla. 5th DCA 2009). It is insufficient to simply refer to rule 9.400. Id. If the fees are recoverable by statute, the motion should refer to the applicable statute. Lehigh Corp. v. Byrd, 397 So.2d 1202, 1205 (Fla. 1st DCA 1981). In proceedings for dissolution of marriage, section 61.16, Florida Statutes, is the statutory basis for an award of appellate attorneys fees. Welch, 22 So. 3d at 156. PRACTICE TIP: State whether the trial court awarded attorneys fees. Remember, if applicable, to attach documentation to the motion in support of or in opposition to the motion.
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Temporary attorneys fees and costs can be awarded in domestic relations matters. See 61.16(1), Fla. Stat. (2010). Trial courts have continuing jurisdiction during an appeal to award temporary appellate attorneys fees and costs. See Fla. R. App. P. 9.600(c)(1). The motion must be filed in the trial and not the appellate court. Swartz v. Swartz, 691 So.2d 2, 3 (Fla. 3d DCA 1996); Vella v. Vella, 691 So.2d 612, 612 (Fla. 4th DCA 1997) (clarifying that motions to tax costs should be served within 30 days after issuance of the mandate). PRACTICE TIP: It is standard practice for appellate courts to determine entitlement to fees and remand for the trial court to take evidence and determine the amount. The appellate court can determine a reasonable fee or remand the matter to the trial court for this determination. Where the appellate court is to determine the fee, it must receive expert evidence. See Sierra v. Sierra, 505 So.2d 432, 433 (Fla. 1987) (Third District assessment of $10,000 attorney fee award against husband without any evidentiary basis reversed). However, it is highly unlikely that an appellate court will determine the amount of fees. The Supreme Court does so for issues of jurisdiction.

Provisional grant of attorneys fees for representation on appeal is granted where it appears an award of fees is appropriate and assuming the relative financial needs and abilities of the parties are essentially the same. See Dresser v. Dresser, 350 So.2d 1152, 1154 (Fla. 1st DCA 1977). With a provisional grant of attorneys fees, trial courts are customarily directed to determine the amount of the award. See Thurman v. Thurman, 637 So.2d 64, 65 (Fla. 1st DCA 1994); Mahan v. Mahan, 415 So.2d 146, 147 (Fla. 2d DCA 1982). An appellate court might also provisionally grant attorneys fees and direct the trial court to consider entitlement pursuant to the factors in section 61.16 and Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). See Rados v. Rados, 791 So. 2d 1130 (Fla. 2d DCA 2001); Tremblay v. Tremblay, 687 So.2d 313 (Fla. 4th DCA 1997).

Where the trial court awards costs or fees under order of the appellate court, review of that award is by motion to the appellate court within 30 days of rendition of the order. Fla. R. App. P. 9.400(c). There is a very limited exception to the 30 day time period where review of an appellate costs or fees order is combined with other unrelated points on appeal. Starcher v. Starcher, 430 So. 2d 991, 993 (Fla. 4th DCA 1983). Conditional awards may also be granted, for example, conditioning the award on the party also prevailing before the trial court. See, e.g., Mainlands Constr. Co., v. Wen-Dic Constr. Co., 482 So.2d 1369, 1371 (Fla. 1986) (reversal of dismissal of mechanics lien did not entitle contractor to fees unless he also prevailed before the trial court upon remand). 2. Motions for Extension of Time

The rule requires some actual contact with opposing counsel to ascertain opposing counsels position on the motion. See Fla. R. App. P. 9.300(a). Failure to comply with the rule can warrant imposition of sanctions. See, e.g., Merritt v. Promo Graphics, Inc., 679 So.2d 1277, 1278-79 (Fla. 5th DCA 1996); Publix Supermarkets, Inc. v. Arnold, 707 So.2d 1161, 1161 (Fla. 5th DCA 1998) (counsel fined $250 for falsely stating that opposing counsel had no objection to requested extension; rule contemplates that counsel, not assistant, contact opposing party); Mills v. Heenan, 382 So.2d 1317, 1318 (Fla. 5th DCA 1980)(motions for extension of time will continue to be denied when moving party fails to contact opposing counsel and state whether counsel agrees or objects to the extension). If it is not possible to have direct contact with opposing counsel before filing the motion, state that an attempt to contact was made, but failed after due diligence. Merritt, 679 So. 2d at 1279. 3. Motions to Withdraw as Counsel

The court may permit the withdrawal of counsel by order. The motion must state the reasons for the request to withdraw and the clients address. The motion must be served on the client and adverse parties. Fla. R. App. P. 9.440(b).
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4.

Motions to Dismiss- Failure to comply with trial court order

Where the appellant is in contempt of trial court order, the appellate court may dismiss the appeal after providing a grace period for compliance. Davidson v. Dist. Court of Appeal, Fourth Dist., 501 So.2d 603 (Fla. 1987); Gazil v. Gazil, 343 So.2d 595 (Fla. 1977). 5. Mediation Rules 9.700-9.740, which became effective July 1, 2010, provide rules for mediation in all appellate courts, circuit courts sitting in their appellate capacities, and the Supreme Court. At any time, a court may, upon its own motion or the motion of a party, refer a case to mediation. Fla. R. App. P. 9.700(b). A motion for referral to mediation made by a party must contain a certificate that the movant has consulted opposing counsel or unrepresented party and that the movant is authorized to represent that opposing counsel or unrepresented party: (1) has no objection; (2) objects and cites the specific reasons for objection; or (3) will promptly file an objection. Id. Unless otherwise ordered, the referral of a case to mediation tolls all times under the appellate rules for processing of the case for the period of time from referral until mediation ends pursuant to section 44.404, Florida Statutes. Fla. R. App. P. 9.700(d). In the alternative, the parties may agree to postpone mediation until after the expiration of time for filing the appellate briefs. Id. A motion for mediation filed by a party within 30 days of the notice of appeal shall toll all deadlines under these rules until the motion is ruled upon by the court. Id.
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Under rule 9.700(e), a party may move to dispense with mediation. This motion must be served not later than 10 days after the discovery of facts which constitute grounds for the motion, which are (1) that the order violates rule 9.710; or (2) other good cause. NOTE: Rule 9.710 lists six categories of actions which may never be referred to mediation under any circumstances: a. Criminal and post-conviction cases. b. Habeas corpus and extraordinary writs. c. Civil or criminal contempt. d. Involuntary civil commitments of sexually violent predators. e. Collateral criminal cases. f. Other matters as may be specified by administrative order. A party may move for sanctions if another party fails to appear at a duly noticed mediation conference without good cause. Fla. R. App. P. 9.720(b).

IV.

TIME LIMITS AND TOLLING a. Motions for rehearing

Trial Court - The motion shall be served not later than 10 days after return of the verdict in a jury action or the date of filing of the judgment in a non-jury action. Fla. R. Civ. P. 1.530(b). Appellate Court - 15 days from issuance of order or such other time set by the court. Fla. R. App. P. 9.330(a). Rehearing En Banc - 15 days from issuance of order or such other time set by the court. Fla. R. App. P. 9.331(d) & 9.330(a). The motion is solely on the grounds that the case is of exceptional importance or that such consideration is necessary to maintain uniformity in that courts decisions. A motion on any other grounds shall be stricken. (Note: Rule 9.331(d)(2) requires a statement of counsel along with the filing of the motion.)
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b.

Motions to tax costs

File in trial court within 30 days of issuance of mandate. Fla. R. App. P. 9.400(a). The mandate issues on the date on its face, not when received by the lower court. Frisard v. Frisard, 495 So.2d 766 (Fla. 4th DCA 1986). Filing of a motion for appellate costs within the time required by the rule is mandatory to invoke the trial courts jurisdiction to determine appellate costs. See Vella v. Vella, 691 So.2d 612 (Fla. 4th DCA 1997); Abraham v. S.N.W. Corp., 549 So.2d 776 (Fla 4th DCA 1989); Executive Motors., Inc. v. Strack, 527 So.2d 286 (lst DCA 1988); Thornburg v. Pursell, 476 So.2d 323 (Fla. 2d DCA 1985). The subject time requirements are jurisdictional and, thus, cannot be corrected and compliance with the rule cannot be waived. Mulato v. Mulato, 734 So.2d 477 (Fla. 4th DCA 1999). PRACTICE TIP: Be sure to distinguish subsection (a) of Rule 9.400 from subsection (b) of Rule 9.400 regarding the time within which to make application for attorneys fees. c. Motions for attorneys fees

File not later than time for service of the reply brief. Fla. R. App. P. 9.400(b). Failure to timely file the motion could be grounds for denial of the relief sought. E.g., N. Chamber Dev. Co. v. Weaver, 508 So.2d 390 (Fla. 4th DCA 1987). PRACTICE TIP: To oppose award of fees, file a response to the motion within 10 days pursuant to Rule 9.300(a). Failure to timely respond may constitute a waiver of arguments in opposition to fees. See Homestead Ins. Co. v. Poole. Masters & Goldstein, 604 So.2d 825 (4th DCA 1991); but see Mercury Cas. Co. v. Rural Metro Ambulance, Inc., 909 So. 2d 408, 410 (Fla. 5th DCA 2005) (holding that a partys failure to file a response to a motion for attorneys fees does not create an independent basis for a fee award). d. Request/Motions for oral argument.

File not later than the date on which a party would be entitled to file his or her last brief. Fla. R App. P. 9.320. Most courts require a party requesting oral argument to state the grounds necessitating oral argument.
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e.

Motions for extension of time to file brief

Motions for extension can only be granted by the appellate court. Fla. R. App. P. 9.600(a). As a practical matter, the motion should be filed before expiration of the time within which the brief is due. Note the requirements of Rule 9.300(a) for contents. If filed after the time period has expired, the motion should contain a statement as to why the motion was not filed prior to the expiration of the time. See, e.g., Kobel v. Schlosser, 601 So.2d 601 (Fla. 4th DCA 1992). The filing of this motion tolls the time for service of the brief until disposition of the motion. Kuznjk v. State, 604 So.2d 37 (Fla. 2d DCA 1992). 1. INITIAL BRIEF. The time for service of the initial brief is measured from the date of filing of the notice of appeal. See Fla. R. App. P. 9.110 (review of final order and orders granting new trial), 9.120 (discretionary proceedings to review DCA decisions), 9.130 (review of non-final orders), 9.140 (criminal appeals), and 9.210(f) (requirements of briefs; time for service). 2. ANSWER BRIEF. Unless otherwise required, the answer brief shall be served within 20 days after service of the initial brief. Fla. R. App. P. 9.210(f). 3. REPLY BRIEF (not required). Unless otherwise required, the reply brief shall be served within 20 days after service of the answer brief. Fla. R. App. P. 9.210(f). PRACTICE TIP: Most of the districts have policies regarding motions for extension of time. The number of days requested on such requests should adhere to the policy of the court or state why an exception is warranted. For each courts specific policy, refer to its internal operating procedures.

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f.

Motions for extension of time to file the record.

In the event a motion for extension of time is served to file the record, the date for filing the brief is likewise extended. See Fla. R. App. P. 9.300(b). These motions are typically filed by the clerk preparing the record. It is the appellants burden to monitor the clerk and to ensure that the record is prepared and transmitted to the appellate court. Fla. R. App. P. 9.200(e). g. Motions for consolidation

Cases may be consolidated for all purposes, or for use of a common record only, or to some other limited extent to be established by an order effecting consolidation. In districts without a requirement to file docketing statements, counsel should file a notice of related case. h. Motions to supplement the record

The parties, by stipulation, or the appellate court may supplement or correct the record on appeal if there is an error or omission. Fla. R. App. P. 9.200(f)(1). The trial court may also supplement or correct the record before it is transmitted to the appellate court. Id. If the appellate court finds that the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined, because of an incomplete record, until an opportunity to supplement the record has been given. Fla. R. App. P. 9.200(f)(2). i. Supplemental Authority.

The notice may be filed with the court before a decision is rendered to call attention to decisions, rules, statutes, or other authorities that are significant to the issues raised and that have been discovered after the last brief served in the cause. The notice may identify briefly the points argued to which the supplemental authorities are pertinent, but may not contain argument. The supplemental authority must be attached to the notice.

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j.

Service by mail; Computation of time.

If a party, court reporter, or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, 5 days shall be added to the prescribed period. Rule 9.420(e). This rule does NOT extend the 30-day period for filing a notice of appeal or a petition for writ of certiorari. Radioshack Stores, Inc. v. Dolan, 980 So. 2d 1184 (Fla. 1st DCA 2008); Allen v. Live Oak Ford Mercury, 647 So.2d 1060 (Fla. 1st DCA 1994). PRACTICE TIP: The 5 days for mail only applies to documents served by mail, and not to action that is to be filed. Review the applicable rule or any applicable order of the court carefully. If the matter to which you are responding was required to be filed within a specific time period, you do not have 5 days for mail, even if the preceding document was served by mail. In addition, the 5 days for mail does not apply if the document is hand-delivered or served by facsimile. k. Tolling time.

Most authorized motions operate to toll the time schedule otherwise imposed by the rules. Rule 9.300(b) provides that service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion. An order granting an extension of time for any act shall automatically extend the time for all other acts that bear a time relation to it. Rule 9.300(d), identifies the motions which DO NOT toll the time periods prescribed. These motions include: 1. 2. 3. 4. 5. 6.

Motions for post-trial release Motions for stay pending appeal Motions relating to oral argument Motions relating to joinder and substitution of parties Motions relating to amicus curiae Motions relating to attorneys fees on appeal
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7. 8. 9. 10.

Motions relating to service Motions relating to admission or withdrawal of attorneys Motions relating to expediting the appeal All motions filed in the Supreme Court, unless accompanied by a separate request to toll time. Responses to motions.

l.

Responses to motions are authorized if filed within ten days from service of the motion. Fla. R. App. P. 9.300(a). If the motion was served by mail, the time for filing a response is fifteen (15) days. See Fla. R. App. P. 9.420(e). Florida Rule of Appellate Procedure 9.300(a) authorizes the appellate court to "shorten or extend" the time period for filing a response. If additional time is required, file a motion for extension of time. The certificate of service of a motion should indicate the method of service, for example whether it was by mail, hand delivery, or other method. Fla. R. App. P. 9.420(d).

V.

CONCURRENT JURISDICTION OF TRIAL COURT & MOTIONS BEFORE THE TRIAL COURT.

Prior to transmittal of the record, the trial court and appellate court have concurrent jurisdiction to enter orders regarding procedural matters. There are two general exceptions: (1) requests for extension of time, which are reserved to the appellate court; and (2) motions to enforce orders awarding separate maintenance, child support, alimony, or other awards necessary to protect the welfare and rights of a party pending appeal, including costs and attorneys fees, which are reserved to the trial court. Fla. R. App. P. 9.600(a) & (c). a. Motions required to be first filed with the trial court: 1. Motions for stay pending appeal. Fla. R. App. P. 9.310. 2. Sentencing errors in criminal cases. Fla. R. App. P. 9.140(e).
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3. 4.

Motion by indigent for payment of fees. Fla. R. App. P. 9.430. Motion to tax costs on after issuance of mandate. Fla. R. App. P. 9.400(a)

NOTE: Any trial court order rendered with regard to these motions is subject to appellate review by motion. There are time limitations within which to seek review of certain trial court orders. For example, orders taxing costs [30 days; Fla. R. App. P. 9.400(c)]; orders awarding attorney's fees and costs in a family law matter [30 days; Fla. R. App. P. 9.600(c)]. b. Family law matters.

Rule 9.600(c) provides that during an appeal the lower court has continuing jurisdiction to enter and enforce: 1. Orders awarding separate maintenance, child support, alimony or attorneys fees and costs for services rendered in the lower tribunal, temporary attorneys fees and costs reasonably necessary to prosecute or defend an appeal, and 2. Other awards necessary to protect the welfare and rights of any party pending appeal. Review of these orders is by motion filed within 30 days of rendition. Fla. R. App. P. 9.600(c). Receipt or payment of alimony shall not prejudice the rights of appeal of any party. Ru1e 9.600(c). c. Motion to Relinquish Jurisdiction.

The motion shou1d indicate to the appellate court why jurisdiction should be relinquished and state the time period for which relinquishment is sought. Rule 9.600(b). PRACTICE TIP: Before filing a motion to relinquish with appellate court, check the availability of the trial court and opposing counsel and request sufficient time in the initial motion to appellate court. Be sure to include some additional time for submission and entry of the trial court's order. It is helpful to state the opposing sides position in your motion.

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d.

Proceedings by Indigents.

File a motion with trial court, with a supporting affidavit, as to the party's inability to pay costs, or where applicable fees, or to give security for it. Rule 9.430 permits a party to seek review without payment of the costs. If the motion is denied, the order shall state the reasons for denial. Martin v. State, 530 So.2d 1075 (Fla. 1st DCA 1988). Review is by motion in the appellate court. NOTE: If application is made to trial court for an order determining that the movant is indigent, advise the District Court in writing of status of that order. Keene v. Nudera, 661 So.2d 40 (2d DCA 1995). There is not a requirement that the county which would be compelled to pay costs if the motion is granted, be given notice of the pending motion. Hunter v. Chysler Corp., 565 So.2d 391 (Fla. 5th DCA 1990). e. Motion to stay proceedings.

Execution on a money judgment is stayed during the ten-day period for serving post-trial motions and until determination of such motions. Fla. R. Civ. P. 1.550(a). Thereafter, a party may secure an automatic stay of a judgment solely for the payment of money by posting bond in the amount of the judgment, plus twice the yearly statutory interest rate on the amount on which the party has an obligation to pay interest. Fla. R. App. P. 9.310(b)(1) & 9.310(c)(1); see also Fla. R. App. P. 9.900(i) (form). The trial court does not have discretion to order a stay of a money judgment without a bond, or upon a bond in a greater or lesser amount. Palm Beach Heights Dev. & Sales Corp. v. Decillis, 385 So. 2d 1170 (Fla. 3d DCA 1980). Example One: Money judgment for $15,936.00, of which all accrues interest. Statutory interest is 10 percent. Bond to be posted would be computed as follows: Principal of judgment Interest (10 percent x judgment amt x 2 yrs) (.10 x 15,936.00 x 2 = $3,187.20) Total bond to be posted: $15,936.00 3,187.20 $19,123.20

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Example Two: Money judgment for $15,936.00, of which only $10,000.00 accrues interest. Statutory interest is 10 percent. Bond to be posted would be computed as follows: Principal of judgment without interest Principal of judgment with interest Interest (10 percent x judgment amt x 2 yrs) (.10 x 10,000.00 x 2 = $2,000.00) Total bond to be posted: $ 5,936.00 10,000.00 2.000.00 $17,936.00

A party is not required to post bond in order to appeal a money judgment. See Palm Beach Heights Dev. & Sales Corp., 385 So.2d at 1174; Fitzgerald v. Addison, 287 So.2d 151 (Fla. 2d DCA 1973)(party may appeal a money judgment without posting bond; BUT judgment holder may then seek execution of judgment). Where the judgment appealed provides for relief other than, or in addition to, money damages, a request for stay must first be filed with the trial court. See Fla. R. App. P. 9.310(a). The trial court will have continuing jurisdiction to grant, modify or deny the relief requested, within its discretion. In family law cases, support judgments and other such judgments that are enforceable by contempt are not judgments solely for the payment of money. See, e.g., Pabian v. Pabian, 469 So. 2d 189, 190 (Fla. 4th DCA 1985) (order holding husband in contempt and requiring him to make certain payments or face incarceration, was not a judgment solely for the payment of money); Garcia v. Garcia, 743 So. 2d 1225, 1227 (Fla. 4th DCA 1999) (an order to pay attorneys fees and costs in a family law case is not a judgment solely for the payment of money because it is enforceable by contempt); Grabel v. Grabel, 425 So. 2d 1220, 1220 (Fla. 3d DCA 1983) (order requiring husband to pay accrued increases in child support not a judgment solely for the payment of money).

A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both. Fla. R. App. P. 9.310(a). If denied, review is by motion in the appellate court. Rule 9.310(f).

NOTE: Randolph v. Randolph, 618 So.2d 770 (Fla. 5th DCA 1993)(in absence of stay or supersedeas bond, trial court retains jurisdiction
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to enforce attorney fee award even though the issue is on appeal); compare Starkey v. Linn, 727 So.2d 386 (Fla. 5th DCA 1999)(court cannot condition its not enforcing final judgment on posting of supersedeas bond).

f.

Motions to Stay Dependency Proceedings.

Rule 9.146(c) permits the filing of a motion for stay with the trial court, which has continuing jurisdiction, to grant, modify, or deny relief after considering the best interest of the child. EXCEPTION: Termination of Parental Rights Cases- taking the appeal does not operate as a stay unless pursuant to order of court, except that the order with placement of the child with a licensed child-placing agency or the Department of Children and Family Services for subsequent adoption shall be suspended while the appeal is pending. Rule 9.146(c)(2). NOTE: Only initials of the parties and children are to be used in briefs and other papers. Fla. R. App. P. 9.146(e). g. Motions to Stay -Bankruptcy Proceedings.

Section 362(a)(1), operates as an automatic stay of judicial proceedings against the debtor upon the filing of the petition under the Bankruptcy Code. The stay applies on appeal whether the debtor is the appellant or the appellee, as long as the proceedings below were against the debtor. See, e.g., Taylor v. Barnett Bank of N. Cent. Fla., N.A., 737 So. 2d 1105 (Fla. 1st DCA 1998); Crowe Group, Inc. v. Garner, 691 So. 2d 1089 (Fla. 2d DCA 1993); Fla. E. Dev. Co. of Hollywood v. Len-Hal Realty, Inc., 636 So. 2d 756 (Fla. 4th DCA 1994); Titus Bros. Roofing Co. v. Blank, 542 So. 2d 439 (Fla. 5th DCA 1989); Home Am., Inc. v. T & J Paving, Inc., 544 So. 2d 1076 (Fla. 2d DCA 1989). The exception is in the Third District Court of Appeal, where the stay applies only if the debtor is the appellee. See Cruise Holdings, Ltd. v. Mathieson, 804 So. 2d 334 (Fla. 3d DCA 2001). The more difficult case is where counterclaims exist. In that circumstance, it could be that some aspects of the appeal are stayed while others are not. See Thomas v. Blue Cross & Blue Shield Assn, 333 F. Apps 414, 420-21 (4th Cir. 2009).
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Section 362(b)(2)(B) provides that its provisions do not operate as a stay...of the collection of a domestic support obligation from property that is not property of the estate. Also excepted from the automatic stay under section 362(a) are the commencement or continuation of actions for the establishment of paternity, for the establishment or modification of an order for domestic support obligations, concerning child custody or visitation, for the dissolution of marriage (except to the extent that it involves the division of property of the estate), and regarding domestic violence. 11 U.S.C. 362(b)(2)(A) (2010). NOTE: State courts have concurrent jurisdiction with bankruptcy courts to determine applicability of the automatic stay. In re Cummings, 201 B.R. 586 (Bankr. S.D. Fla. 1996).

VI.

POST-OPINION MOTIONS a. Motions for Rehearing; Clarification; Certification.

The motion must be filed within 15 days of an order or within such other time as set by the court. Rule 9.330(a). The motion for rehearing or clarification shall state with particularity the points of law or fact the court overlooked, misapprehended, or that require clarification. Fla. R. App. P. 9.330(a); see Goter v. Brown, 682 So. 2d 155 (4th DCA 1996). A motion for rehearing should not present issues not previously raised. Fla. R. App. P. 9.330(a). Where the court has issued a PCA, and a party believes a written opinion would provide a legitimate basis for supreme court review, the party may include a request that the court issue a written opinion. If made by an attorney, such a request must include the statement in rule 9.330(a). A response may be served within 10 days of service of the motion. Rule 9.330(a). Counsel should carefully and seriously consider the necessity or desirability of asking the court to rehear a case. Motions for rehearing
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should be filed under very limited circumstances and are the exception, rather than the rule. See Lawyers Title Ins. Corp. v. Reitzes, 631 So.2d 1100 (Fla 4th DCA 1993). NOTE: Rule 9.330(b) provides that a party may not file more than one motion for rehearing or for clarification and one motion for certification with respect to a particular decision. EXCEPTION: Where the appellate court is prompted to enter a new opinion based on the first motion, the resulting opinion can permit a new motion for rehearing. PRACTICE TIP: Filing a second motion for rehearing or clarification where the opinion does not materially change the initial order will not toll rendition. See 3222 N. Fed. Highway. Inc. v. Bd. of County Commrs, 646 So. 2d 215 (4th DCA 1994). Under rule 9.330(d), the Florida Supreme Court does not accept motions for rehearing or clarification of three types of orders: 1. The dismissal of an appeal that attempts to invoke the Courts mandatory jurisdiction under rule 9.030(a)(1)(A)(ii) when the appeal seeks review of a district court decision without an opinion; 2. The grant or denial of a request for the Court to exercise its discretion to review a decision under rule 9.030(a)(2)(A); and 3. The dismissal of a petition for an extraordinary writ filed under rule 9.030(a)(3) when the writ is used to seek review of a district court decision without an opinion.

VII. UNAUTHORIZED MOTIONS AND SANCTIONS Unlike trial court matters, an appeal can often be decided without the necessity of the filing of any motions. The merits of the case are decided on the briefs, not the motions, except in limited circumstances such as motions to dismiss. Counsel are wise to utilize restraint in the filing of motions at the appellate level. See Dubowitz v. Century Village E., Inc., 381 So.2d 252 (Fla. 4th DCA 1979)(51 motions and responses filed; more than 30 ranged
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from unnecessary to ludicrous; announced intention to start imposing sanctions on those who file frivolous motions). We ask the Bar to take note that fair warning has now been given and ask further that this order be not itself misused to provide inspiration for frivolous motions seeking sanctions against other allegedly frivolous motions. We wish to make that determination ourselves. Id. at 254. PRACTICE TIP: Each of the district courts has implemented procedures, in varying degrees of detail, regarding requirements for filing motions. Make certain you are familiar with the most recent procedural rules of the court before which your client's case will be presented. For example, the Fourth District cautions counsel that excessive motion pratice is strongly discouraged.

Motion for Sanctions Rule 9.410(b) applies to motions for attorneys fees as a sanction against another party or its counsel pursuant to general law. This provision was added to make rule 9.410 consistent with section 57.105, Florida Statutes (2009). A copy of the motion should first be served only on the party against whom sanctions are sought. It must contain: 1. A certificate of service pursuant to rule 9.420(d); and 2. A certificate of filing pursuant to rule 9.410(b)(4). **This certificate should remain undated and unsigned when the motion is initially served on the party against whom sanctions are sought. Timing: The copy of the motion for sanctions must be served on the party against whom sanctions are sought no later than the time for serving any permitted response to a challenged paper or, if no response is permitted as of right, within 15 days after a challenged paper is served or a challenged claim, defense, contention, allegation, or denial is made at oral argument. Fla. R. App. P. 9.410(b)(3). A certificate of service that complies with rule 9.420(d) is prima facie proof of the date of service.

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The party against whom sanctions are sought has 21 days from service of the motion to withdraw or appropriately correct the challenged paper, claim, defense, contention, allegation, or denial. If no action is taken, the movant may file the motion with the court (a) no later than the time for service of the reply brief, if applicable, or (b) no later than 30 days after service of the motion. Fla. R. App. P. 9.410(b)(4). The movant must serve upon all parties a copy of the motion filed with the court containing a signed and dated certificate of filing, as set forth in rule 9.410(b)(4). One response to the sanctions motion may be filed within 10 days of the final service of the motion. This time may be shortened or extended by order of the court. NOTE: The court may impose sanctions on its own motion after 10 days notice. See Fla. R. App. P. 9.410(a).

VIII.

PROCEDURES OF APPELLATE COURTS

Supreme Court of Florida. a. The Chief Justice and the administrative justice have authority to dispose of routine procedural motions, for example motions seeking an extension of time, permission to file enlarged briefs, consolidation of cases, etc. b. The Chief Justice and the Chief Justices designee also have authority to grant requests for stay during pendency of proceeding and a 30 day stay of mandate pending review by the United States Supreme Court in order to allow counsel the opportunity to obtain a stay from that Court. c. Motions filed after a case has been assigned to a justice are ruled on by that justice. d. Motions for rehearing are, ordinarily, considered by the justice who originally considered the case. Unauthorized motions for rehearing are returned to counsel by the clerk.
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e. See the Supreme Courts website for a list of frequently filed pleadings and the required number of copies. First District Court of Appeal a. Docketing statement is required.

b. Motions - Attorneys are now required to electronically file all pleadings, including docketing statements. Attorneys may no longer file paper pleadings. If a paper document is filed by a non-attorney, file only the original. The notice of appeal may be filed electronically with the First District in addition to filing it in the lower tribunal. Second District Court of Appeal a. Notice of related cases in lieu of a docketing statement.

b. Motions - file original and one copy. Movant to supply stamped, addressed envelopes for all persons entitled to notice of the court's action. Motions for Rehearing En Banc - file original and one copy. Third District Court of Appeal a. Docketing statement not required.

b. Motions - file original. Movant to supply stamped, preaddressed envelopes for all persons entitled to notice of the court's action. Motions for Rehearing En Banc - file original. When filing a motion for extension to serve a brief, the moving party must also provide copies of the motion for all parties involved in the appeal. Fourth District Court of Appeal a. Docketing statement is required.

b. Motions - file original. Any record material supporting the motion must be contained in an appendix to the motion. Movant to supply stamped, addressed envelopes for all persons entitled to notice
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of the court's action, including movant and all persons in certificate of service of motion. All motions for rehearing or relief under rules 9.330 and 9.331 must be filed in paper form and electronically. Other motions should be filed in paper form, only. NOTE: Excessive motion practice strongly is discouraged. Motions that pertain to preparation of the record or briefs, extensions of time, or to reschedule oral argument shall contain a certificate that opposing counsel has been consulted and state whether there is an objection to the motion. Attempts to contact opposing counsel are not sufficient. c. Motions for Rehearing En Banc - file original and 9 copies, each with a copy of the opinion attached. Fifth District Court of Appeal a. Docketing statement required in all civil cases.

b. Motions - file original. Movant to supply stamped, preaddressed envelopes for all persons entitled to notice of the court's action. (Omit date of issue on machine postage). All motions for rehearing or relief under rules 9.330 and 9.331 must be filed electronically in addition to filing the paper original. c. Motions for Rehearing En Banc - file original.

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