Alert: Florida Fifth District Court of Appeal Unwritten Requirement for Dismissal

Most appellate attorneys are aware that there are many potential ways to get tripped up on an appeal. Those attorneys know that most of the hurdles occur in the beginning: making sure the record on appeal is delivered, getting proper clerk’s certifications, paying filing fees, filing briefs on time, and so forth. But there are also a host of administrative orders that our Florida appellate courts follow.

Administrative Orders Set Mandatory Requirements

Conveniently, the Florida Fifth District Court of Appeal publishes its administrative orders online. Yet, even the most experienced attorneys handling appeals sometimes neglect to follow AO5D18-02, which requires that any attorney requesting an extension of time to file a pleading:

shall provide a copy of the motion for extension of time to his/her client(s) and shall certify, by a statement included in the signed certificate of service on the motion filed with this Court, that counsel has that day provided a copy of the motion to his/her client(s).

A motion for extension of time is automatically denied if an attorney fails to follow this rule.

But that is not the interesting part.

Sometimes, Court Rules Are Unwritten

The interesting part is that in a recent case, James v. James, Case No. 5D19-1365, the appellant filed a notice for voluntary dismissal. The notice was stricken by the Court for failing to indicate that it had been served on the appellant herself. There is no rule of appellate procedure, administrative order, or other published guidance that could have put the attorney on notice of that requirement.

Eventually, the attorney amended the notice of dismissal to reflect that the appellant had been served, and the Fifth DCA issued an order ratifying the dismissal.

This situation is just another procedural hurdle for experienced appellate attorneys to be mindful of when they litigate appeals in Florida. Knowledge of court rules is just one reason why being represented by an attorney familiar with local court practices is critical.

At Waugh Grant, you do not have to worry about our attorneys knowing about the local rules — written or unwritten.

Florida attorney Christian Waugh is the founder of Waugh Grant. His practice includes litigation services for probate, commercial, real estate, and other types of cases in state and federal courts.

Categories: Appeals

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Christian’s practice includes litigation, appeals, real estate, government and municipal law, and a full range of business law matters. He is Board Certified in Real Estate Law.
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Gerrard’s practice includes corporate and business law, tax and tax controversies, wills, trust, and estates, and outside general counsel services. He is Board Certified in Tax Law.
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Morgan is an associate attorney who focuses her practice primarily on litigation, estate planning, probate, real estate, and municipal law.
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