§ 1.11 The Fourth DCA's mediation program ceased in September, 2001. The First DCA also discontinued its mediation program. Effective July, 2002, the Fifth DCA expanded its mediation program to the whole district and extended it through July 1, 2003.
§ 2.3 Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002), reviewed decisions since the 1980 amendments and clarified: "this Court does not have discretionary review jurisdiction or extraordinary writ jurisdiction to review per curiam denials of relief, issued without opinion or explanation, whether they be in opinion form or by way of unpublished order."
§ 2.8 R. Cantero, Certifying Questions to the Florida Supreme Court: What's So Important?, 76 Fla. B. J. 40 (May 2002).
§ 3.6 Peacher v. Cohn, 786 So. 2d 1282 (Fla. 5th DCA 2001), holds the trial court’s incorrect refusal to allow a peremptory challenge prior to swearing jury is error per se.
§ 3.7 Cite update: Ford Motor Company v. D’Amario, 732 So. 2d 1143 (Fla. 2d DCA 1999), quashed on other grounds, 806 So. 2d 424 (Fla. 2001).
Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002), holds that not all relevant juror information on prior litigation is necessarily material. It also holds counsel do not have to review the courthouse records during trial to meet the due diligence requirement, but the trial court should allow counsel to check the records where such a request is made and it could be done without unwarranted delay.
§ 3.10 Sheffield v. Superior Insurance Company, 800 So. 2d 197 (Fla. 2001), holds “once a trial court makes an unequivocal ruling admitting evidence over a movant’s motion in limine, the movant’s subsequent introduction of that evidence does not constitute a waiver of the error for appellate review.”
§ 3.12 Ricks v. Loyola, 822 So. 2d 502 (Fla. 2002), extends Ed Ricke temporally, holding the trial court did not abuse its discretion in granting a new trial when it had reserved ruling on a mistrial motion made during opening statements.
Telemundo Network, Inc. v. Spanish Television Services, Inc., 812 So. 2d 461 (Fla. 3d DCA 2002), certified the question of whether unobjected to closing argument comments appealing to the jury's racial, ethnic, religious, or xenophobic prejudices would justify a finding of fundamental error.
If a party's objection is sustained, the party needs to move for a mistrial to preserve the point. Hasegawa v. Anderson, 742 So. 2d 504 (Fla. 2d DCA 1999).
§ 4.2 Cite update: Palamara v. Chinnock Marine, Inc., 788 So. 2d 305 (Fla. 4th DCA 2001)
M.R. v. A.B.C., 739 So. 2d 118 (Fla. 3d DCA 1999) held a denial of a motion to substitute a defendant’s personal representative was a final order because it determined that the personal representative would not be a party, thereby terminating the judicial labor as to the personal representative.
Hayward & Associates v. Hoffman, 793 So. 2d 89 (Fla. 2d DCA 2001), notes an order does not have to state the dismissal is "with prejudice" to be a final order, but holds the order must dismiss the complaint, and not merely grant the motion to dismiss.
The Better Government Association of Sarasota County, Inc. v. State of Florida, 802 So. 2d 414 (Fla. 2d DCA 2001), reaffirms that order merely denying or granting a motion for summary judgment are not appealable. Noting that some district courts take a different view, the Second District relinquishes jurisdiction to the circuit court to enter a final summary judgment, where the court had granted the motion.
Delmas v. Harris, 806 So. 2d 578 (Fla. 4th DCA 2002), held a party could not seek review of an order determining there had been no settlement. The court distinguished Croteau on the grounds that there the parties had reached a settlement that one party refused to carry out, and the Croteau settlement was reached at a mediation.
Boyd v. Goff, 828 So. 2d 468 (Fla. 5th DCA 2002), held an order titled "Order Granting Final Summary Judgment" was a final appealable order when it entered final summary judgment in favor of the defendants and against the plaintiffs.
§ 4.8 Millar Elevator Service Company v. McGowan, 804 So. 2d 1271 (Fla. 2d DCA 2002), holds a notice of appeal naming one plaintiff in a case where a single order granted a new trial to three plaintiffs made all the plaintiffs appellees.
§ 4.11 Coats v. Climatic Products Corporation, 756 So. 2d 1104 (Fla. 1st DCA 2000) held where one defendant files a motion for rehearing it does not postpone rendition of the judgment as to the defendants not named in the motion for rehearing.
§ 4.13 McMahon v. Carter, 818 So. 2d 560 (Fla. 2d DCA 2002), holds a trial court loses jurisdiction to hear a resubmitted motion for new trial once it denies the first motion, even though the denial was "without prejudice."
Fire & Casualty Insurance Company of Connecticut v. Sealey, 810 So. 2d 988 (Fla. 1st DCA 2002), held a motion for remittitur is essentially a conditional motion for new trial and thus must be served within ten days of the verdict. The court rejected the argument the remittitur motion should be considered a motion to alter or amend the judgment, for which service would run from the entry of the judgment, rather than return of the verdict. The court held it is essential to maintain the distinction between post-trial motions that challenge the verdict and those that challenge the judgment.
§ 4.15 Howell v. Jackson, 810 So. 2d 1081 (Fla. 4th DCA 2002), holds that when other parties have motions pending that toll rendition, an appellant's filing a notice of appeal before the trial court rules on his motions does not automatically constitute an abandonment of his motions. The court relinquished jurisdiction for the trial court to rule on the motions.
§ 4.20 Cite update: BDO Seidman, LLP v. British Car Auctions, Inc., 789 So. 2d 1019 (Fla. 4th DCA 2001).
§ 4.29 Osceola County v. Best Diversified, Inc., 27 Fla. L. Weekly D2126 (Fla. 5th DCA September 27, 2002), holds interlocutory orders finding a taking of property in an inverse condemnation case are no longer appealable after the rule change that eliminated appeals of nonfinal orders that determine liability.
§ 4.30 Chapman v. Sheffield, 750 So. 2d 140 (Fla. 1st DCA 2000) holds an order on a motion to quash service of process determines personal jurisdiction and is appealable as a nonfinal order under Rule 9.130(a)(3)(C)(i).
§ 4.31 Tindel v. Kessler, 772 So. 2d 599 (Fla. 5th DCA 2000), held appellate jurisdiction did not exist from denial of a motion for summary judgment that asserted the defense of immunity in federal civil rights action, where the trial court did not determine as a matter of law, that the defendants were not entitled to immunity. See also, Gionis v. Headwest, Inc., 799 So. 2d 416 (Fla. 5th DCA 2001).
DCA decisions hold the review of a denial of immunity is limited to claims of individuals seeking absolute or qualified immunity, and not for entities asserting Eleventh Amendment immunity. E.g., State of Florida, Board of Education v. Azer, 27 Fla. L. Weekly D1932 (Fla. 1st DCA August 28, 2002).
§ 4.33 Florida Discount Properties, Inc. v. Windermere Condominium, Inc., 763 So. 2d 1084 (Fla. 4th DCA 1999) holds the trial court’s denial of lessor’s motion to require lessee to pay rent into registry of the court determined the right to immediate possession of the rent payments; hence it was appealable under Rule 9.130(a)(3)C)(ii).
§ 4.36 Mullins v. Mullins, 799 So. 2d 450 (Fla. 4th DCA 2001), dismissed an appeal from a temporary relief order in a family law case where the brief was not filed within the required fifteen days.
§ 4.39 The first sentence should read that an order denying a motion to set aside a default was appealable when Rule 9.130 permitted appeals from non-final orders determining liability. As noted in
§4.29 the 2001 amendment eliminated such non-final appeals.
Fascetti v. Fascetti, 795 So. 2d 1094 (Fla. 4th DCA 2001), holds an order denying a motion to vacate a clerk’s default is no longer appealable before the conclusion of the case.
§ 4.43 Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801, 149 L. Ed.2d 983 (2001), holds the failure to sign a notice of appeal is not jurisdictional and may be cured if corrected promptly after being called to the attention of the attorney or party.
§ 4.48 The Eleventh Circuit states that while it liberally allows appeals from orders not expressly designated in the notice of appeal, at least where the order that was not designated was entered contemporaneously with the order properly designated, it will not address claims that are beyond the scope of the issue certified for an interlocutory appeal. Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738 (11th Cir. 2002).
§ 5.1 A circuit court sitting in its appellate capacity departs from the essential requirements of law when it engages in fact finding and considers evidence beyond the record. Vichich v. Department of Highway Safety and Motor Vehicles, 799 So. 2d 1069 (Fla. 2d DCA 2001).
§ 5.10 Poteat v. Guardianship of Poteat, 771 So. 2d 569 (Fla. 4th DCA 2000), said a motion to supplement the record filed the day before oral argument with a complaint filed in the trial court five days earlier was a “flagrant violation” of rule 9.200(f).
§ 6.1 International Longshoremen's Association v. Fisher, 800 So. 2d 339 (Fla. 1st DCA 2001), discusses the general rule that a nonsettling defendant lacks standing to appeal an order granting a motion to certify a settlement class, and an exception it found inapplicable in that case.
Superior Insurance Co. v. Libert, 776 So. 2d 360 (Fla. 5th DCA 2001), holds a person (here an M.D.) named as an agent or attorney in fact to collect money and who is authorized to bring legal action to collect has standing to appeal.
§ 6.2 The reference to "Hunt" in the fourth paragraph should be to Dance v. Tatum.
§ 7.3 Section 768.733, Florida Statutes (2001), provides caps on the bond required for punitive damages in class actions.
§ 7.4 In the last line of the last paragraph, "with" should be "while."
§ 7.10 Cite update: Cruise Holdings, Ltd. v. Mathiesen, 804 So. 2d 334 (Fla. 3d DCA 2001)
§ 8.10 Cite update: Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270 (Fla. 2001).
Lifemark Hospitals of Florida, Inc. v. Hernandez, 748 So. 2d 378 (Fla. 3d DCA 2000) granted certiorari, quashing an order that prohibited the defendant from deposing the plaintiff’s expert in a medical malpractice action.
Vick v. Bailey, 777 So. 2d 1005 (Fla. 2d DCA 2000), holds an order disqualifying counsel is generally reviewable by certiorari.
§ 8.12 Preferred Pools and Spas of Naples, Inc. v. Beachtree Homes, Inc., 825 So. 2d 531 (Fla. 2d DCA 2002), suggests certiorari may be available to review an order terminating a recorded lien.
§ 8.15 Novartis Pharmaceuticals Corp. v. Carnoto, 798 So. 2d 22 (Fla. 4th DCA 2001), issued mandamus to compel the trial court to resolve issues the trial court had referred to a special master without consent of parties.
§ 9.12 We have enlarged and moved the discussion of standards of review from 15.11 through 15.15 to 9.12.
§ 9.12A An Overview of Standards of Review.
Before an appellate court undertakes review of an issue, it must first determine the standard it must apply. Different standards of review may apply to various points, and in some instances a single point may involve different standards. Correctly identifying the applicable standard may foretell the deference the court will give to a lower tribunal’s decision. The appellant must identify the applicable standard of review and persuade the court that an issue raised comports with that standard; the appellee seeks to demonstrate the appellant’s failure to establish the required standard. Thus, the standard of review of an issue may determine an advocate’s approach to arguing that issue.
The different standards aid appellate courts in review of lower tribunal decisions for legal correctness and in carrying out their function of announcing, clarifying, and harmonizing the rules of law.
Rule 28 of the Federal Rules of Appellate Procedure has long required that the appellant’s brief state the applicable standard of review for each point argued. An appellee that disagrees may restate the applicable standard. Florida appellate courts frequently urged that counsel state the standard of review relied upon for reversal at the outset of each issue. See, e.g., Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA 1983). But it was not until January 1, 2001, that Rule 9.210(b)(5) was amended to require counsel to include in the brief the standard of review applicable to each issue. Since then, Florida appellate courts have more frequently articulated the standard of review in their opinions.
Categories of Standards of Review
The three general categories of the standards for appellate review for trial court and agency litigation in Florida are:
- “abuse of discretion” (for discretionary rulings by the trial judge) See, e.g., Sims v. Brown, 574 So. 2d 131 (Fla. 1991).
- "competent substantial evidence" or "rational basis" (for reviewing a jury verdict) and “clearly erroneous” (for reviewing a trial judge's fact findings). See, e.g., Helman v. Seaboard Coast Line Railroad Company, 349 So. 2d 1187 (Fla. 1977)(jury verdict); Avery Development Corp. v. Village by the Sea Condominium Apartments, Inc., 567 So. 2d 447 (Fla. 4th DCA 1990)(clearly erroneous or totally without substantial evidentiary support standard for trial court's fact findings); see also Brand v. Florida Power Corporation, 633 So. 2d 504(Fla. 1st DCA 1994) (stating Florida uses competent evidence standard for a trial judge's fact findings, which the court characterized as permitting even more limited review than the federal clearly erroneous standard).
- “plenary” or “de novo” (for rulings on questions of law. See, e.g., Menendez v. Palms West Condominium Association, Inc., 736 So. 2d 58 (Fla. 1st DCA 1999).
Most courts and practitioners would consider the difficulty in obtaining a reversal as increasing as the standard moves from 3 to 1 above. However, at least one author argues the appellant stands a better chance of obtaining a reversal under an abuse of discretion standard than under the standards for obtaining a "factual" reversal under standard (2) above. G. Somerville, Standards of Appellate Review, 15 Litigation 23 (Spring 1989). Somerville also points out that there are different degrees of difficulty within each category.
Standards of Review in Criminal Appeals
The standards of review applicable to appeals of criminal convictions involve constitutional considerations of due process, double jeopardy, and the requirement that a criminal conviction rest on evidence legally sufficient to meet constitutional standards. Applicability of these and standards relating to discretionary rulings, factual determinations, and questions of law in criminal appeals are discussed in Chapter 11.
§ 9.12B Abuse of Discretion Standard.
Many judicial and administrative decisions are, of necessity, committed to the exercise of a judge’s discretion. In its seminal decision, Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), the Florida Supreme Court quoted approvingly from Delno v. Market Street Railway Company, 124 F.2d 965 (9th Cir. 1942), stating that “If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”
Administrative Rulings
During the course of litigation trial judges make a numerous rulings, some administrative, many substantive. Appellate courts accord broad discretion to trial courts in these matters. Examples of administrative decisions include scheduling of pretrial proceedings and trials, grant or denial of continuances, rulings on various motions, and matters of courtroom decorum. Of particular interest to counsel is the applicability of this standard to findings of misconduct on the part of counsel. See, e.g., Carnival Corporation v. Beverly, 744 So. 2d 489 (Fla. 1st DCA 2000)(sanctioning an attorney for trial misconduct). Few attorneys seek reversal of administrative rulings on the ground that the trial court abused its discretion; even fewer are successful in overturning such rulings. This probably accounts for the paucity of judicial opinions addressing such rulings.
Substantive Issues
More frequently appellate counsel challenge rulings on substantive issues on the ground of abuse of discretion. Questions concerning selection of jurors, admissibility of evidence, qualifications of expert witnesses, limits on cross-examination of witnesses, limitations on the time allowed for closing arguments, granting or denying temporary injunctions, and stays pending appeal are classic examples. Unlike the paucity of appellate opinions concerning rulings on administrative matters, numerous decisions address the applicability of the abuse of discretion standard on substantive issues.
Recent DCA decisions applying the abuse of discretion standard in pretrial matters include:
A trial court’s dismissal of a complaint for failure to prosecute. Kearney v. Ross, 743 So. 2d 578 (Fla. 4th DCA 1999).
An order establishing conditions necessary to obtain a stay. Mariner Health Care of Nashville v. Baker, 739 So. 2d 608 (Fla. 1st DCA 1999).
Orders granting or denying intervention. Fasig v. Florida Society of Pathologists, 769 So. 2d 1151 (Fla. 5th DCA 2000).
Denial of a motion to vacate a default judgment. George v. Radcliffe, 753 So. 2d 573 (Fla. 4th DCA 1999).
Rulings on temporary injunctions. First Miami Securities, Inc. v. Bell, 758 So. 2d 1229 (Fla. 4th DCA 2000.
Many trial and post-trial rulings are reviewed on an abuse of discretion standard. Recent DCA decisions are illustrative:
An order striking a witness’s testimony and granting a new trial. M.J. Stavola Farms, Inc. v. Dept. of Transportation, 742 So. 2d 391 (Fla. 5th DCA 1999).
A ruling concerning qualifications of expert witnesses and scope of their testimony. County of Volusia v. Kemp, 764 So. 2d 770 (Fla. 5th DCA 2000).
Trial court actions giving or withholding a jury instruction. Barton Protective Services, Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999).
Rulings on remittitur and additur. See, e.g., Arena Parking, Inc., v. Lon Worth Crow Insurance Agency, 768 So. 2d 1107 (Fla. 3rd DCA 2000)(additur).
Many recent DCA decisions involving instances where alimony, support, custody of children, and attorney’s fees are reviewed reiterate that dissolution of marriage cases are reviewed on an abuse of discretion standard. See, e.g., Vitalis v. Vitalis, 799 So. 2d 1127 (Fla. 5th DCA 2001).
New Trial Orders
The question for an appellate court on review of a jury verdict is not whether the evidence was contrary to the manifest weight of the evidence (a question directed to the trial court on motion for new trial) but rather, whether the trial court abused its discretion in denying a new trial. Dewitt v. Maruhachi Ceramics of America, Inc., 770 So. 2d 709 (Fla. 5th DCA 2000). This standard applies even where there is ample evidence to justify a contrary finding. See, e.g., Abreu v. Amaro, 534 So. 2d 771 (Fla. 3d DCA 1988)(where although a party presented ample evidence to support imposition of a resulting or constructive trust, yet evidence was equally sufficient to support the court’s finding that a gift was intended). In Town of Jupiter v. Alexander, 747 So. 2d 395 (Fla. 4th DCA 1998), the Fourth DCA detailed several DCA decisions to the effect that where a trial court rules based solely on a record and arguments by counsel and makes no finding of facts, the court’s decision comes to the appellate court with only a slight presumption of correctness.
Smith v. Brown, 525 So. 2d 868 (Fla. 1988) (see Chapter 3) discusses the abuse of discretion standard for reviewing a trial judge's new trial order. See also, Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). In Poole v. Veterans Auto Sales and Leasing Company, Inc., 668 So. 2d 189 (Fla. 1996), the Florida Supreme Court observed that the abuse of discretion standard for reviewing new trial orders may seem difficult to harmonize with the rule that a trial judge should not sit as a "seventh juror" and substitute his or her resolution of factual issues for that of the jury, but stated they "address separate standards of review made by different actors within the judicial system." In Castlewood International Corporation v. LaFleur, 322 So. 2d 520 (Fla. 1975), the Court restated the classic principle that a stronger showing is required to reverse an order granting a new trial than is required to reverse an order denying a new trial.
Tri-Pak Machinery, Inc. v. Hartshorn, 644 So. 2d 118 (Fla. 2d DCA 1994), cites a number of cases indicating a lower standard of deference to the trial judge who bases the new trial order on a "purely legal question." See also Heckford v. Florida Department of Corrections, 699 So. 2d 247 (Fla. 1st DCA 1997) where the court states: "When the issue under review is essentially legal, the ruling is not entitled to the broad deference generally afforded a trial court's decision to override a jury's verdict in cases where the court found the verdict contrary to the manifest weight of the evidence." Query: Should an appellate court grant any deference when the new trial order depends on a purely legal question? As Tri-Pak suggests, counsel must often do more than simply look at the nature of the ruling at issue, but also the basis urged for reversal. Federal decisions have discussed such differences in detail in the new trial context (see below).
§ 9.12C Competent Substantial Evidence or Rational Basis Standard (for reviewing a jury verdict); Clearly Erroneous Standard (for reviewing a trial judge's fact findings).
In Helman v. Seaboard Coast Line Railroad Company, 349 So. 2d 1187 (Fla. 1977), the Florida Supreme Court set forth the parameters a DCA should use to review a jury verdict:
We initiate this analysis by articulating three incontrovertible premises of law which are relevant to our disposition of this case. First, it is not the function of an appellate court to reevaluate the evidence and substitute its judgment for that of the jury. * * * Second, if there is any competent evidence to support a verdict, that verdict must be sustained regardless of the District Court's opinion as to its appropriateness. * * * Finally, the question of whether defendant's negligence was the proximate cause of the injury is generally one for the jury unless reasonable men could not differ in their determination of that question.
Some Florida appellate opinions state that a "trial court's findings of fact and conclusions of law are presumptively correct and will not be overturned unless they are clearly erroneous." E.g., Vita v. Interamerican Car Rental, Inc., 693 So. 2d 645 (Fla. 3d DCA 1997). While the "clearly erroneous" standard is traditionally applied to a judge's findings of fact, as other authorities herein hold, questions of law are typically reviewed de novo.
In McKesson Drug Co. v. Williams, 706 So. 2d 352 (Fla. 1st DCA 1998), the First DCA observed "In civil cases involving the burden of clear and convincing evidence, an appellate court may not overturn a trial court's finding regarding the sufficiency of the evidence unless the finding is unsupported by record evidence, or as a matter of law, no one could reasonably find such evidence to be clear and convincing." (See In re the Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), for definition of "clear and convincing.")
Town of Jupiter v. Alexander, 747 So. 2d 395 (Fla. 4th DCA 1998), holds where a trial court makes no findings of fact, the appellate court must determine whether, based on the record, the proper analysis would have produced the result reached by the trial court.
§ 9.12D Plenary or De Novo Review.
Appellate courts review questions of law on a plenary basis often referred to by the courts as a “de novo” standard. It makes sense because of the benefits of collegial decisions usually made in a more deliberate environment than available to a trial court. This is generally considered the broadest form of review because an appellate court does not grant any deference to the trial court in reviewing questions of law.
In Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998), pointed out that although the standard of review of a trial judge's factual findings is whether competent substantial evidence supports the judge's ruling, the standard for application of the law to factual findings is de novo.
Constitutional requisites can dictate the correct standard of review in some civil cases. For example, in action for libel or slander brought by a public official, an appellate court conducts an independent review of the evidence in order to meet the demands of the First Amendment. Zorc v. Jordan, 765 So. 2d 768 (Fla. 4th DCA 2000).
Recent appellate decisions that illustrate application of the de novo standard of review include:
Dismissal of a complaint for failure to allege facts that establish standing. Putnam Environmental Council, Inc., v. Board of County Commissioners of Putnam County, 757 So. 2d 590 (Fla. 5th DCA 2000), or for failure to state a cause of action. Warren ex rel Brassell v. K-Mart Corp., 765 So. 2d 235 (Fla. 1st DCA 2000).
Interpretation of a contract or covenant. Vollmer v. Key Financial Corp., 810 So. 2d 966 (Fla. 2d DCA 2002); Amerisure Ins. Co. v. Gold Coast Marine Dist. Inc., 771 So. 2d 579 (Fla. 4th DCA 2000)(interpretation of an insurance policy). Likewise, determination of whether a contract is unconscionable is subject to de novo review. Powertel, Inc. v. Bexley, 743 So. 2d 570 (Fla. 1st DCA 1999).
Review of Frye issues relating to admissibility of expert opinion testimony. Hadden v. State, 690 So. 2d 573 (Fla1997).
Interpreting a statute. Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376 (Fla. 5th DCA 1998).
In Sume v. State, 773 So. 2d 600 (Fla. 1st DCA 2000), the court pointed out that the issue of whether a motion to disqualify a judge is legally sufficient is a pure question of law. Therefore, the court held that de novo is the proper standard of review for an order denying a motion for disqualification.
In some instances an appellate court may deviate in the standard it applies to an issue that would ordinarily be reviewed on a de novo standard. As noted, a de novo standard is usually applied to review of an order dismissing a complaint with prejudice. However, considerable deference is accorded a trial court’s order of dismissal of a complaint seeking a declaratory judgment, and in such cases, the First DCA has held that the standard of review is whether the trial court abused its discretion. Florida Public Employees v. Dept. of Children and Families, 745 So. 2d 487 (Fla. 1st DCA 1999).
Review of Summary Judgments
Florida appellate courts frequently state they will reverse a summary judgment "if the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist." Gomes v. Stevens, 548 So. 2d 1163 (Fla. 2d DCA 1989). But when there are no disputed facts, or when the trial court has construed all facts and inferences in favor of the non-moving party and still granted summary judgment, the appellate court should use a plenary or de novo standard. At that point, the trial court has made a ruling as a matter of law. See Smith v. Perry, 635 So. 2d 1019 (Fla. 1st DCA 1994).
The federal standard is less strict and thus provides a greater likelihood of affirmance of a summary judgment. (See below).
§ 9.12E Applicability of Several Standards of Review.
Sometimes questions on appeal involve more than one standard of review. Instrumentation Services, Inc. v. Data Management Associates, Inc., 708 So. 2d 1018 (Fla. 4th DCA 1998), held abuse of discretion is the standard of review for a motion to transfer or dismiss for improper venue. Yet, it is not uncommon that such an issue involves mixed questions of law and fact. Pricewaterhousecoopers, LLP v. Cedar Resources, Inc., 761 So. 2d 1131 (Fla. 2d DCA 1999), is an example of such a decision where the Second DCA articulated three different standards that may be applicable to review of an issue of venue. The court stated that a trial court's decision to transfer venue for convenience of the parties is ordinarily reviewed on an abuse of discretion standard. But in contrast, a trial court’s factual decision to transfer venue based on the impropriety of the plaintiff’s venue selection is reviewed on a basis of whether the court’s factual decision is supported by competent, substantial evidence, and the court’s legal conclusion is reviewed de novo.
§ 9.12F Standards of Review for Administrative Appeals.
The standard of review for administrative orders based on factual findings is whether there is competent substantial evidence to support the fact-finder’s determination. See, e.g., Morrison v. Unemployment Appeals Commission, 701 So. 2d 907 (Fla. 4th DCA 1997), where the Fourth DCA reversed the Unemployment Appeals Commission’s modification of the referee’s factual findings that were supported by competent substantial evidence.
As in review of trial court proceedings, an administrative agency’s conclusions of law are reviewed on a plenary or de novo basis, and an agency’s interpretation of a statute that it is given the power and duty to administer will not be overturned on appeal unless its construction of the statute is clearly erroneous. See Republic Media, Inc. v. Department of Transportation, 714 So. 2d 1203 (Fla. 5th DCA 1998); Natelson v. Department of Insurance, 454 So. 2d 31 (Fla. 1st DCA 1984). Likewise, an appellate court may not reverse an administrative agency’s declaratory statement unless the agency’s interpretation of the law is clearly erroneous. See Chiles v. Department of State, Div. Of Elections, 711 So. 2d 151 (Fla. 1st DCA 1998).
Rulings of Local Administrative Agencies
The standard of certiorari review for final orders of local administrative agencies (for example, municipal and county governing bodies not made subject to the Administrative Procedure Act, Chapter 120, Florida Statutes), is set out in City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982), and is discussed in
§ 8.11 of this text. The circuit court considers (1) whether the agency action afforded the parties procedural due process; (2) whether the essential requirements of law were observed; and (3) whether the agency action is supported by competent substantial evidence. Any further review by the DCA is limited to determining whether the circuit court afforded procedural due process and applied the correct law.
For a discussion contrasting "legislative" actions that are reviewed under a "fairly debatable" standard with quasi-judicial acts reviewed under a competent substantial evidence standard, see Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).
§ 9.12G Federal Standards of Review.
Abuse of Discretion Standard
General Electric Company v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), directs appellate courts to use an abuse of discretion standard to review a trial court's evidentiary rulings, including those on admitting or excluding expert testimony under Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Hercaire International, Inc. v. Argentina, 821 F.2d 559 (11th Cir. 1987), states the decision denying a motion for new trial is reviewable only for an abuse of discretion.
Ard v. Southwest Forrest Industries, 849 F.2d 517 (11th Cir. 1988), holds that when the district court grants a motion for new trial based on the weight of the evidence, the application of the abuse of discretion standard is "stringent." The court stated the "stricter approach" is necessary because when the jury verdict is set aside, the usual deference to the trial judge conflicts with the deference to the jury on questions of fact. (Note the conflict with the Florida approach in Castlewood, above).
Recall from Chapter 4 that Deas v. Paccar, Inc., 775 F.2d 1498 (11th Cir. 1985), cert. denied, 475 U.S. 1129, 106 S.Ct. 1658, 90 L.Ed.2d 201 (1986), held a plaintiff could obtain review of an order granting the defendant's motion for new trial by stipulating to the entry of a judgment notwithstanding the verdict. The court went on to hold it would review the appeal under the less strict standard of review applied to new trial orders. Noting this standard is "generally said to be" whether the district court abused its discretion, the court discussed the different circumstances that could give rise to a new trial order and indicated its deference would vary with the ground (for example, less deference for an order on the ground the verdict was against the manifest weight of the evidence).
Some federal decisions give even greater deference to a jury's factual findings than to those of a district court judge. In Manchack v. S/S Overseas Progress, 524 F.2d 918 (5th Cir. 1975), the court rejected the appellant's request to reverse the jury verdict as clearly erroneous, noting that was not the correct standard: "where, as here, there is an evidentiary basis for the jury's verdict, this Court's function is exhausted, and Manchack is not free to relitigate the factual issue."
In discussing the standard of review for Federal Rule of Civil Procedure Rule 11 sanctions, the Supreme Court stated: “When an appellate court reviews a district court's factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous.” Cooter & Gell v. Hartmarx Corporation, 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (see Chapter 13). The Supreme Court concluded that appellate courts should use an abuse of discretion standard for reviewing all aspects of a Rule 11 sanction, including the trial court’s determination of whether a legal position was reasonable or plausible. The court noted: “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”
Clearly Erroneous Standard
Fed. R. Civ. P. 52(a) stipulates that findings of a trial judge many not be set aside on appeal unless they are clearly erroneous.
A federal appellate court must affirm under the "clearly erroneous standard" where the district court's account of the evidence is "plausible," even if the circuit court would have weighed the evidence differently. Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). This applies not only to credibility determinations, but decisions based on documentary evidence or inferences from other facts. Id. In fact, Rule 52(a) was amended in 1985 to so stipulate.
De Novo Standard
In Commercial Union Insurance Company v. Sepco Corporation, 878 F.2d 1395 (11th Cir. 1989), the court stated, "because the district court did not consider extrinsic evidence in interpreting the contract, we review the propriety of the district court's construction de novo."
Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), resolved a split in circuit court decisions and held circuit courts must review de novo district court determinations of state law. See also Dahl-Eimers, supra.
Alexander Proudfoot Company World Headquarters L.P. v. Thayer, 877 F.2d 912 (11th Cir. 1989), holds the circuit court reviews de novo the district court's decision on personal jurisdiction.
Review of Summary Judgments
The federal standard for review of summary judgments is less strict and thus provides a greater likelihood of affirmance. See Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Federal appellate courts review grants of summary judgment de novo. If the court determines there are no disputed issues of material fact, then it considers if the movant is entitled to summary judgment as a matter of law. See, e.g., Mayfield v. Patterson Pump Company, 101 F.3d 1371 (11th Cir. 1996).
Fabric v. Provident Life & Accident Insurance Company, 115 F.3d 908 (11th Cir. 1997), held the appellate court could enter a summary judgment for the appellee, even though the appellee had not moved for summary judgment in the district court.
Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)(Chapter 4) discusses appeals from denials of motions for summary judgment based on qualified immunity. The court states, "Every denial of summary judgment ultimately rests upon a determination that there are controverted issues of material fact, see Fed. Rule Civ. Proc. 56, and Johnson [v. Jones, 616 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 773 (1996)] surely does not mean that every denial of summary judgment is nonappealable."
Applicability of Several Standards of Review
The Eleventh Circuit addressed the standard of review in a preliminary injunction case: "The court reviews the district court's denial of a preliminary injunction to determine whether that court abused discretion. If the lower court has misapplied the law, its conclusions are subject to our broad review. Factual findings, however, will be reversed only if clearly erroneous." E. Remy Martin & Co. v. Shaw-Ross International Imports, Inc., 756 F.2d 1525 (11th Cir. 1985). See also Dahl-Eimers v. Mutual of Omaha Life Insurance Company, 986 F.2d 1379 (11th Cir. 1993), cert. denied, 510 U.S. 964, 114 S.Ct. 440, 126 L.Ed.2d 374 (1993)(portion of district court's denial of preliminary injunction based solely on legal construction of insurance contract is question of law).
The U.S. Supreme Court has held that appeals of district court decisions that confirm arbitration awards should be reviewed under the standards for other appeals: clearly erroneous for the judge's findings of fact and de novo for questions of law. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).
Review of Administrative Decisions
Appeals of government administrative orders and certain other determinations (for example, by a third-party administrator of an ERISA plan where so specified) invoke different standards, usually "(competent) substantial evidence" or the more deferential "arbitrary and capricious" standard. E.g., American Federation of Labor and Congress of Industrial Organizations v. Occupational Safety and Health Administration, 965 F.2d 962 (11th Cir. 1992).
First Options, supra, recognized all courts give "legal leeway" to administrative agency and arbitration decisions, but instructed that courts of appeal should not give "extra" leeway to district court decisions upholding arbitrators or agency decisions.
In contrast to the normal rule of affirming under a different theory, the Eleventh Circuit has held that even if the reviewing court thinks the agency would reach the same conclusion on another basis, it must still remand the case to the agency. Florida Department of Labor and Employment Security v. United States Department of Labor, 893 F.2d 1319 (11th Cir. 1990), cert. denied, 498 U.S. 812, 111 S.Ct. 49, 112 L.Ed.2d 25 (1990).
In Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court held that when a statute administered by an agency is either silent or ambiguous on an issue, an appellate court should defer to an agency’s reasonable interpretation if based on a permissible construction of the statute.
§ 9.12H Argument: Appellant's Main Brief
The Argument section allows the advocate to persuade the court that the lower tribunal erred by misapplying the law, abusing its discretion, or exceeding its authority. State arguments in clear, simple terms under specific issues. Demonstrate how the law as applied to the facts of the case requires the result you are seeking. Rule 9.210(a)(5) limits an appellant's main brief to fifty pages, but appellate judges appreciate short, well-organized briefs. Many of the finest briefs do not exceed thirty pages. An experienced appellate practitioner can often cover appeals on narrow issues or cases without complicated facts in twenty pages or less.
In discussing statutory and decisional law, it is often helpful to explain the societal and practical effects of the law, particularly when counsel is arguing for extension of some precedent. If you trace the history of the law, do so briefly. Remember, you are not writing a law review article.
§ 9.20 Judge Altenbernd's "True Confessions of a Legal Grease Monkey" is now found in X The Record 1 (Summer 2002).
§ 9.24 Effective December 1, 2002, the Florida Supreme Court requires parties submit all briefs and some other pleadings on a 3.5 inch computer diskette, in WordPerfect format, and scanned for viruses, absent certifying a hardship in meeting this requirement.
§ 11.3 State v. B.P., 810 So. 2d 918 (Fla. 2002), held the failure to offer a juvenile counsel at time of plea or disposition hearing and failure to obtain waiver of counsel as required by Fla. R. Juv. P. 8.165 constituted fundamental error.
Patterson v. State, 796 So. 2d 572 (Fla. 2d DCA 2001), holds the appellate court has no power to review on direct appeal a sentencing court’s discretionary decision to deny a downward departure.
§ 924.06(1) Florida Statutes. (Defendant’s offense committed after effective date of Criminal Punishment Code).
Delete the first paragraph and quote under Death Penalty Appeals and substitute the following:
Effective January 1, 2003, the supreme court adopted Rule 9.142, thus creating one appellate rule governing review procedures in death penalty cases. As adopted, Rule 9.142(a) continues existing procedures for direct appeals, merely transferring those procedures from Rule 9.140. It adds Rule 9.142(b), which contains new procedures for review of nonfinal orders in death penalty postconviction proceedings.
Rule 9.142(a)(1) stipulates: "When the notice of appeal is filed in the supreme court, the chief justice will direct the appropriate chief judge of the circuit court to monitor the preparation of the complete record for timely filing in the supreme court." Rule 9.142(a)(2) outlines procedures concerning briefing schedules and oral argument and requires that in addition to filing paper copies of transcripts, the court reporter must file with the clerk of the lower tribunal computer disks in a format approved by the supreme court to be included in the record on appeal. Rule 9.142(a)(3) provides for imposition of sanctions where briefs are delinquent; Rule 9.142(a)(4) provides that oral argument is scheduled after the filing of the defendant’s reply brief. Otherwise, the requirements for filing the record, briefs, and oral arguments follow those for appeals generally as discussed in Chapters 5, 9, and 10. Finally, Rule 9.142(a)(5) stipulates: “In death penalty cases, all petitions for extraordinary relief over which the supreme court has original jurisdiction, including petitions for writ of habeas corpus, shall be filed simultaneously with the initial brief in the appeal from the lower tribunal’s order on the defendant’s application for relief under Florida Rule of Criminal Procedure 3.851.”
Rule 9.142(b) contains the new procedures governing petitions for review of nonfinal orders in death penalty postconviction proceedings. Rule 9.142(b)(2) provides that review proceedings are treated as original proceedings and Rule 9.142(b)(3) requires that the petition for review be filed with the clerk of the supreme court within thirty days of rendition of the nonfinal order to be reviewed and allows either party to the death penalty postconviction proceedings to seek review under the rule. The rule also sets forth that the required contents of the petition shall be in the form prescribed by Rule 9.100 must also allege the facts on which the petitioner relies, with appropriate references, argument, and nature of the relief sought. Rule 9.142(b) also provides the petition must be accompanied by an appendix and that the court may issue an order to show cause “if the petition demonstrates a preliminary basis for relief or a departure from the essential requirements of law that may cause material injury for which there is no adequate remedy by appeal.” The new rule permits a response to the petition only when ordered by the court; provides that a stay of proceedings is not automatic, and allows the lower tribunal to proceed with all matters, except the entry of a final order, unless a stay is granted by the supreme court. Finally, the rule makes clear that parties are not to file any other miscellaneous motions or papers without leave of court and that seeking review under Rule 9.142(b) will not extend the time limitations under Rule of Criminal Procedure 3.851 or 3.852.
§ 11.4 Lopez v. State, 801 So. 2d 200 (Fla. 4th DCA 2001), holds a defendant’s claim that his plea of guilty was not voluntarily and intelligently entered is not subject to appeal where the defendant failed to move trial court to withdraw the plea. Vance v. State, 796 So. 2d 1286 (Fla. 5th DCA 2001), holds a defendant who moves to withdraw a plea under Rule 9.140(b)(2)(A)(ii)c is limited to raising points on appeal that have been preserved by arguments presented to the trial court at the hearing on the motion to withdraw the plea.
§ 11.6 Jackson v. Florida Dept. of Corrections, 790 So. 2d 398 (Fla. 2001), holds a court may impose sanctions to prevent a pro se defendant from filing frivolous petitions in court.
§ 11.7 Miller v. Jenne, 780 So. 2d 241 (Fla. 4th DCA 2001) holds an appellate court will grant a writ of habeas corpus and return the cause to the trial court where the evidence before the trial court at a bond reduction hearing is insufficient concerning the defendant’s financial resources.
§ 11.8 Simmons v. State, 779 So. 2d 298 (Fla. 2d DCA 1999), holds the denial of a motion to mitigate a sentence filed under Fla. R. Crim. P. 3.850(c) is non-appealable.
Ventura v. State, 794 So. 2d 553 (Fla. 2001), holds claims that should have been raised on direct appeal are procedurally barred in post conviction proceedings. Interjecting allegations of ineffective counsel is insufficient to overcome such a procedural bar.
§ 11.9 Brigham v. State, 769 So. 2d 1100 (Fla. 1st DCA 2000), held the proper remedy for a petitioner seeking a belated appeal of an order denying a motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850 is a petition the appellate court pursuant to rule 9.140.
§ 11.10 Section 924.07 is the only basis upon which the State may appeal and this section authorizes the State to appeal two types of sentences: (1) an illegal sentence, and (2) a sentence imposed below the lowest permissible sentence established by the Criminal Punishment Code under Chapter 921. State v. Jordan, 783 So. 2d 1179 (Fla. 3d DCA 2001).
§ 11.16 Walker v. City of Pompano Beach, 763 So. 2d 1146 (Fla. 4th DCA 2000) held a trial court’s determination of reasonable suspicion and probable cause are subject to de novo review.
Lindsey v. State, 793 So. 2d 1165 (Fla. 1st DCA 2001), holds appellate courts review denial of a motion for judgment of acquittal on a de novo standard.
Additional abuse of discretion standard rulings:
Whether a defendant is competent to stand trial.Ferguson v. State, 789 So. 2d 306 (Fla. 2001).
Generally, rulings on a motion for continuance, a motion for severance, on the grant or denial of a motion for mistrial, or on a ruling that no discovery violation has occurred. Overton v. State, 801 So. 2d 877 (Fla. 2001).
Jeffries v. State, 776 So. 2d 335 (Fla. 1st DCA 2001), holds although a severance may be constitutionally required where co-defendants are accused of perpetrating the same crime jointly, in absence of a constitutional question a denial of a motion to sever is reviewed on an abuse of discretion standard.
State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001), holds if a ruling consists of a mixed question of law and fact addressing certain constitutional issues (e.g., probable cause, reasonable suspicion, the “in custody” requirement under Miranda, or ineffectiveness of counsel), the ultimate ruling must be subjected to de novo review, but the court’s factual findings must be sustained if supported by competent substantial evidence.
Perry v. State, 808 So. 2d 268 (Fla. 1st DCA 2002), holds a confession of error is not binding on an appellate court.
Applicability of Several Standards of Review:
In some instances several standards of review may apply. A common example where more than one standard of review may apply is a motion to suppress evidence. The trial court’s findings of fact are reviewed based on competent, substantial evidence standard; however, the court’s application of the law to the facts is a legal question and is reviewed de novo. State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001). In the sentencing area more than one standard may also be applicable. For example, an appellate court must review a downward departure sentence on a two-step basis: (1) Whether imposition of a downward departure sentence is based on a valid ground with adequate factual basis; and (2) whether the departure is the best sentencing option for the defendant. The court employs the competent substantial evidence standard for (1) and the abuse of discretion standard for (2). Banks v. State, 732 So. 2d 1065 (Fla. 1999).
§ 11.18 In State v. Clarke, 810 So. 2d 882 (Fla. 2002), the State appealed (1) trial court’s suppression/sanction order and (2) discharge of defendant based on a speedy trial violation. DCA dismissed the appeal and the State sought a writ of mandamus from the supreme court. Because the State was unable to secure an extension of the speedy trial time, the DCA lost jurisdiction to consider State's appeal of the suppression/sanction order, however, DCA erred in dismissing the State’s appeal from the order discharging the defendant because it had jurisdiction to hear that issue.
§ 12.1 Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th DCA 2001), review granted, SC 01-1830 (March 22, 2002), applied the revised
§
57.105 to award fees against an appellee that had procured the dismissal with prejudice of the complaint.
Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414 (Fla. 1st DCA 2002), directed the trial court to determine the amount of
§
57.105 fees against the appellant for the appeal, and held they would be immediately collectable (namely, they would not depend on which party ultimately prevailed on the merits of the underlying case).
§ 12.2 Computer Task Group, Inc. v. Palm Beach County, 809 So. 2d 10 (Fla. 4th DCA 2002), holds there is no express time limit within which a party must serve its motion in the trial court to assess appellate attorney's fees. The opinion did not comment on Fla. R. Civ. P. 1.525, which requires a party serve a motion for trial court fees or costs within thirty days of the filing of the judgment.
§ 12.4 Cite update: Rados v. Rados, 791 So. 2d 1130 (Fla. 2d DCA 2001)
§ 12.7 The motion for costs needs to be served, not filed, within thirty days after issuance of the mandate. Kaelbel Wholesale, Inc. v. Soderstrom, 810 So. 2d 1065 (Fla. 4th DCA 2002).
§ 13.10 Cite update: The Florida Bar v. Fortunato, 788 So. 2d 201 (Fla. 2001)
§ 14.2 The Florida Supreme Court's manual of internal operating procedures is posted on the Court's website at: http://www.flcourts.org/sct/sctdocs/bin/ioprocedures.html .
§ 15.5 Neither the Florida Supreme Court's denial of a petition for review, nor its discharge of a case on the grounds that taking jurisdiction was improvident constitutes an opinion on the merits of the case. Any discussion of the merits in the order is dicta. Shaps v. Provident Life & Accident Insurance Company, 826 So. 2d 250 (Fla. 2002).
§ 15.7 Florida Department of Transportation v. Juliano, 801 So. 2d 101 (Fla. 2001), discusses the confusion in prior “law of the case” decisions and holds the law of the case applies only to issues actually considered and decided in a prior appeal (and thus, not to issues that could have been considered but were not). The Court notes “the doctrine may foreclose subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court’s decision.” The opinion cites the two referenced articles.
Puryear v. State, 810 So. 2d 901 (Fla. 2002), holds that when a court encounters an express holding from the Florida Supreme Court and subsequent contrary dicta on the same issue, the court is to apply the express holding until such time as the Supreme Court recedes from the express holding.
In the last sentence in the paragraph discussing Murphy v. Federal Deposit Insurance Corporation, 208 F.3d 959 (11th Cir. 2000), the words "transferor court" and "transferee court" are transposed.
§ 15.9 Simoes v. Simoes, 790 So. 2d 1221 (Fla. 3d DCA 2001), dismissed the appeal where the appellant had fled the jurisdiction and reflected contemptuous disregard for the trial court's orders. There was no suggestion the appellate court had provided a grace period to comply.
§ 15.16 Wolfe v. Nazaire, 758 So. 2d 730 (Fla. 4th DCA 2000) holds when an appellate court remands a case, the lower tribunal with general directions for further proceedings vests the trial court is vested with broad discretion in directing the course of the cause. Where, however, the remand instruction is specific, the trial court cannot exceed the bounds of the specific instructions.
§ 15.18 In Adams v. State, 802 So. 2d 449 (Fla 1st DCA 2001), the First District announced a new policy that when it issues an opinion citing a controlling decision pending review in the Florida Supreme Court, upon motion filed within ten days following rendition, and absent objection by the prevailing party filed within five days thereafter, it will issue an order extending the time for filing a motion for rehearing in the case until fifteen days after the decision of the supreme court in the controlling case becomes final.
§ 15.28 The United States Supreme Court’s “Guide For Counsel” is available at: http://a257.g.akamaitech.net/7/257/2422/24aug20010800/www.supremecourtus.gov/oral_arguments/guideforcounsel.pdf
15.29 Stern, Gressman, Shapiro & Geller, Supreme Court Practice is now available in an eighth edition.
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Stetson University College of Law