Motion practice is different in an appeal than in a proceeding in a trial court or lower tribunal. For one thing, there are far fewer motions filed in an appeal. Most of the motions in an appeal relate to how the appeal moves through the court. Some of the more common types of motions a party may file in an appeal include: motions to dismiss an appeal; motions for extensions of time to file appellate briefs and/or comply with court orders; motions to strike another party’s brief for failure to comply with the appellate rules; motions to stay execution of a final judgment, or to stay proceedings in the lower tribunal during an appeal from a non-final order; motions to consolidate appeals in the same or related cases; and motions for rehearing, to name a few.
Rule 9.300 of the Florida Rules of Appellate Procedure contains the requirements for appellate motions. A motion filed in an appeal should:
- explain what the party is asking the appellate court to do (the “relief sought”);
- explain why the appellate court should grant the relief sought (the “argument”); and
- include citations to any statutes, rules, or cases that support the party’s argument (the “authorities”).
If a party believes the appellate court should consider any documents from the case file in the lower tribunal (“the record”), the party should attach a copy of those documents to that party’s motion as “exhibits.” The party should attach a copy of the documents because the appellate court may not have yet received the record from the lower tribunal.
The party filing the motion in the appellate court is also required to send, or “serve,” a copy of the motion on the other parties to the case (along with any attachments/exhibits). The party filing the motion is also required to include a “certificate of service” at the end of the motion, which states (certifies) that: the party served a true and correct copy of the motion on the other parties; the date the document was served (sent); and the method of service (such as by U.S. mail, or e-mail if e-service is permitted). The party must sign the motion and the certificate of service.
The other parties to the appeal generally have 10 days to respond to a motion filed in an appeal. (A reply to the response is usually not permitted). Most often, an appellate court will then decide the motion based only on the motion and the response (if any). The court generally will not hold a hearing or oral argument on a motion.
Most motions “toll,” or extend, the time for the next steps in the appeal until the court rules on the motion. But some appellate motions do not toll time. Motions that do not toll time include but are not limited to: motions for post-trial release in a criminal case; motions for stay pending appeal; motions relating to oral argument; motions relating to attorney’s fees on appeal; motions relating to expediting the appeal. Also note that motions of any type filed in the Florida Supreme Court do not toll time, unless a separate request to toll time is filed with the motion (and granted). If a party has any questions or concerns about the schedule of the appeal or the tolling effect of a motion, a party should call the court clerk’s office and/or retain an appellate lawyer.
One of the most common types of motions in an appeal, which does “toll” time until the court rules on it, is a motion for an extension of time to file an appellate brief. A party requesting an extension of time to file a brief generally must do so before the deadline. In addition, a party moving for an extension is usually required to certify in the motion that he or she has contacted the opposing party’s attorney, and state whether or not the opposing party objects to the requested extension. If the other party agrees to the motion, the court may rule on it faster than if the court has to wait for the other party to respond. A motion for an extension of time to file a brief may ask for an extension of a certain number of days (typically 30 to 60 days), or it may include the specific date that a party would like to serve and file the brief. But, for example, asking for an extension “until February 1, 2016,” to serve and file the brief may be less confusing to a pro se litigant than just asking for a 30-day extension of time.
One common type of motion which does not toll time is a motion to “stay,” or stop, the lower tribunal’s order or decision until the appeal is decided. For instance, a party may want to file a motion to stay (meaning stop) the other party’s attempt to collect on a judgment. Rule 9.310 of the Florida Rules of Appellate Procedure contains the rules regarding “stays.” A motion for stay is usually filed first in the lower tribunal, not the appellate court. A party to an appeal can then file a motion in the appellate court asking the appellate court to review the lower tribunal’s ruling on the stay motion. In an emergency situation, a party could file a motion to stay directly with the appellate court first, but the appellate court may deny the motion or require the party to file a motion with the lower tribunal first. See Florida Rule of Appellate Procedure 9.310.
If the judgment being appealed requires only the payment of money, an automatic stay (without filing a motion) may apply if a bond is posted in an amount provided for under Rule 9.310 of the Florida Rules of Appellate Procedure. The amount of the bond must generally be equal to the amount of the judgment, plus twice the statutory rate of interest on judgments. (If the interest rate is not stated in the judgment, the clerk’s office of the lower tribunal should be able to provide it). In most other situations, a party must both file a motion to stay and get a ruling on it in order to stay the lower tribunal’s order or judgment until the appeal is decided. Stays during an appeal are addressed in more detail in Chapter 11 of this Handbook.
Unless electronic filing of documents with the court is permitted, a party must mail or deliver the motion to the appellate court or file it in person at the courthouse. Similarly, unless service by e-mail is available, a party must mail or deliver a copy of the motion to the opposing parties. A party filing an appellate motion by mail or delivery should include plain, unaddressed, postage-paid envelopes for all parties in the case, which the court will use to send a copy of its order on the motion to the parties in the case. Postage-paid envelops probably are not needed if the party files and serves the motion electronically and if the other parties in the case have designated an e-mail address for service by e-mail. Currently, service by e-mail is available for pro se parties if certain procedures and requirements are followed. See Florida Rules of Judicial Administration 2.514 and 2.516. In addition, most courts now allow (but do not require) electronic filing by pro se parties. See Florida Rule of Judicial Administration 2.525(c)-(d). The requirements for electronic filing, even when it is available, often vary in different courts. Accordingly, pro se parties interested in electronic filing should consult the website or clerk’s office of the particular court to find out if electronic filing by pro se litigants is allowed, and, if so, the requirements for electronic filing and service by e-mail. See also Florida Rules of Judicial Administration 2.516 and 2.525(c)-(d). Chapter 22 of this Handbook contains additional contact information the appellate courts in Florida.