Florida Civil Procedure, Mashburn, Spring 2016
Judicial Control over Procedure
Procedure v. Substance
Article V, §2 of the Florida Constitution specifies that the Court shall adopt procedural (not substantive) rules.
The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts
Provisions creating branches of government (Article II, §3)
Adams v. Wright
Facts: Remittur and additur statute (LEGISLATIVE) provision regarding motor vehicle accident cases allowed a party to move after jury verdict to increase or decrease award. If granted, other party can accept or ask for a new trial.
Issue: is this substantive or procedural?
D argues procedural and therefore unconstitional because the legislature intruded on the realm of the judiciary. The judiciary creates rules of procedure.
P argues this is a substantive rule and therefore the legislature acted appropriately by creating the statute.
Does the statute deal with the means (manner and mode) of enforcing a SUBSTANTIVE right?
Difference between substantive and procedural rule or statute
Practice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.
“Practice and procedure” may be described as the machinery of the judicial process as opposed to the product thereof.
Held: This is a substantive because able to argue for less or more regarding award.
Not enforcing the jury award (redress for invasion), actually changing it.Not just enforcing what the judicial process held to be correct amount.
Held as remedial statute.
A remedial statute is “designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good.” It is also defined as “(a) statute giving a party a mode of remedy for a wrong, where he had none, or a different one, before.”
Rule: Remedial statutes are substantive. Therefore, this is a constitutional creation of a remedial statute by the legislature that does not impermissibly impede upon the judiciary’s procedural powers under Article V, §2.
Dissent argues this is a procedural rule because it involves the granting of a new trial which is under the procedural powers of the court.
Watson v. Leasing
Facts: Statute requires notice of action in probate by claimant. Rule of procedure requires notice by a representative or guardian. Claimant failed to file notice and trial refused to allow extension.
Supreme Court held statute unconstitutional, but held that statute became a rule of procedure when it was adopted by the court.
In 1984 court adopted statues relating to probate as temporary rules because they realized that there were discrepancies between statutes and court procedural rules.
Here one statute requires notice by claimant while rule requires by representative BUT those can both be met here and don’t negate one another.
that notice requirement didn’t bar claimant and trial court was wrong in refusing to grant extension.
Even though claimant didn’t meet statute’s requirement of notice, did meet requirement of filing within 30 days.
Filing v. Notice
Court reasons that FILING is a jurisdictional question and more important here. Therefore allows claimant to go forward even though didn’t meet both statute prongs.
NOTICE is not jurisdictional and if the claimant can prove that there was no harm suffered to other party, should allow claim to move forward.
Rule: Filing deadline requirements are procedural — relates to filing a claim, enforcing a substantive right (test from Adams). Notice requirements are less important and if the party can show no harm (EQUITY), can be overcome (while not meeting filing deadline can end in dismissal of action).
Dissent: Let procedure carry the day and bar the claim. Don’t use equity to cure.
General Rules
Procedural statutes are unconstitutional (and therefore unenforceable, therefore party can avoid the rule).
Argue the statute is unconstitutional if you don’t meet the requirement so that your claim can not be punished (because the state will be found unenforceable and unconstitutional)
Procedure = form, manner, mode, method, order, steps, means by which a party enforces rights.The machinery of process—governing counsel, parties during court proceedings.
Filing requirements procedural
Substance = principles which fix and declare the primary rights of individuals w/respect to their person or property
Remedial statutes are substantive
Notice was more substantive
Mashburn’s Examples – Substantive or Procedural?
A statute requiring that “all papers filed with any court in the State of Florida be on two-sided, 8” x 11” paper.”
Procedural, therefore unconstitutional because statute.
Would it change your classification if the provision were included in an “environmental and sustainability” reform of state government statutory package?
Now looking more at package of laws that legislature has decided to implement as environmental reform. Could argue more substantive now and therefore constitutional.
A rule of appellate procedure requiring that all appellant’s briefs be filed with a red cover sheet.
Procedural, constitutional because rule of procedure.
Would it change your classification if the rule also stated that “failure to comply with these rules will empower the Clerk to refuse to accept the brief for filing”?
Now rule has ability to rob appellate court of reviewing, could change a substantive right through enforcement (machinery of the court) therefore jurisdictional and procedural.
Like SOL (also jurisdictional and procedural).
Statute allows court to sanction attorney and client through fees if bring unsupported claim
Substantive: Creates an entitlement to fees (declares a right). Remedial in nature, which court has held to be procedural (Adams). American rule is that you pay your own fees, so this changes things and creates a right.
Procedural: Argue that statute doesn’t allow person to change the penalty, they’re just enforcing the amount therefore it’s that machinery of the judiciary and giving the claimant a manner/mode of enforcing right to fees.
Knealing v. Puleo (’96)
Statute created timing rules regarding offer of judgment, enlarged time to serve offer when court ordered mediation takes place. Active Legislature.
Statute doesn’t provide for an award of fees, just alters the time limits for making an accepting offers beyond 30 days.
Held: Unconstitutional statute but can be severed.
Timing requirements are procedural and therefore this statute is unconstitutional.
Court uses precedent (have always held timing is procedur
l Court — Appellate Court — Maybe Supreme Court
Get one plenary appeal “as of right” = FIRST bite at apple
Reviewing a Final Order
What is the difference between a final and non-final order?
Final orders dispose of the case such that there is “no work left to be done.” Non-final orders are everything else.
IF FINAL – have a plenary right to appeal
IF NON-FINAL – must use certiorari (no right)
Review of final order originating in CIRCUIT COURT
Circuit court (as trial court) – DCA (plenary appeal as of right, first bite) – SC (discretionary 2nd level appeal, second bite)
Originating in COUNTY COURT
County Court (trial) – Circuit Court (plenary appeal, first bite) – DCA (discretionary 2nd level appeal, second bite)
Custer v. United Auto Insurance Co.
PIP claim originating in county court. Insurance company denied claim because claimant failed to show for a medical exam prior to trial.
Trial court directed verdict for D. P appeals to circuit court, reversed and remanded for trial. D appeals for certiorari review in 3rd DCA which quashed the circuit court’s judgment.
Now seeking S.C. review of the DCA’s holding (which used certiorari to review).
Granting Cert v. Deciding Merits of the Case
Technically, courts with cert power should first see if that power has been triggered before looking at merits of the case.
It WASN’T triggered here
Why is this 2nd Tier Certiorari review?
Because there’s already been a cert. review by DCA and if SC gave cert. that’d be two cert reviews
as the case travels up the ladder, review should get narrower and narrower. Allowing more review elongates the uncertainty of the judgment/status of the law, creating a destabilizing effect and an asymmetry problem.
Asymmetry problem: Litigants appealing from courts of limited jurisdiction (county courts) will have more opportunities for appellate review than those appealing from courts of general jurisdiction (circuit courts)
Destabilizing effect: uncertainty of judgment
Why allow 2nd Certiorari at all?
The “you can’t get there from here” problem.
Precedent binds lower courts combined with inability to get case before a “law declaring” court with precedential power
Because DCA precedent binds the circuit court. SO if the DCA did certiorari review and got the case WRONG, then there’d be no way to fix the issue.
Therefore, for very special errors we allow this type of 2nd tier certiorari review.
Must be more than a “garden variety legal error” to invoke certiorari review.
Here, the 3d DCA was engaged in de novo review of a situation where it perceived the Circuit Court (sitting as an appellate court) to have made a mistake. NOT ENOUGH to invoke 2nd tier review.
