PROCEDURAL PITFALLS TO AVOID !
Marital & Family Law Section ������������������������������������
Here are four procedural pitfalls you can easily avoid to keep yourself out of hot water with the court and your clients .
First , when you appear as new counsel in a case , you should file your notice of appearance before or at the same time you file your first pleading ( or paper ), or wait until the order granting substitution of counsel has been entered by the court before filing any pleading ( or paper ). Pre-appearance filings by new counsel are nullities , and any orders entered on preappearance filings are void . Pasco Cnty . v . Quail Hollow Props ., Inc ., 693 So . 2d 82 , 84 ( Fla . 2d DCA 1997 ) (“ We thus construe Florida Rule of Judicial Administration 2.060 ( j ) [ a predecessor to Rule 2.505 ] as requiring a notice of appearance to be filed before or contemporaneously with the initial pleading that the additional attorney files .”); Thomas v . State , 884 So . 2d 309 , 311 ( Fla . 2d DCA 2004 ) ( holding that “ trial court correctly declared the two motions to withdraw plea to be nullities because they were not filed by an attorney of record ” and explaining that Florida Rule of Judicial Administration 2.060 ( h ) “ sets forth the requirements for attorneys who
wish to appear in all legal proceedings ”). If you have an emergency situation and cannot wait for an order granting substitution of counsel , file a notice of appearance so that any motion or pleading is an authorized filing and any order based on that filing is valid .
Second , if you discover new evidence after the final judgment but before the time to move for rehearing expires , you must file a timely motion for rehearing under Rule 1.530 / 12.530 to preserve the trial court ’ s jurisdiction to review that newly discovered evidence ; moving to set aside the final judgment under Rule 1.540 / 12.540 based on this newly evidence is improper . Belk v . McKaveney , 903 So . 2d 337 , 338 ( Fla . 2d DCA 2005 ).
Third , filing a notice of cross-notice is not jurisdictional ; however , if you file your notice of cross-appeal ten days after the notice of appeal or thirty days after the rendition of the order on appeal , you should file a motion with the appellate court to accept the cross-appeal as timely or you risk having your cross-appeal dismissed . Wilkinson v . Wilkinson ,
Pre-appearance filings by new counsel are nullities , and any orders entered on pre-appearance filings are void .
203 So . 3d 186 ( Fla . 5th DCA 2016 ) ( dismissing sua sponte crossappeal filed a few days after the filing deadline because cross-appellant failed to seek leave of appellate court to accept crossappeal as timely ).
Fourth , if you are going to have a marital settlement agreement read into the record at the final hearing , make sure the parties are in attendance so that the judge can ( 1 ) obtain clear and unequivocal assent to the MSA from each party under oath on the record , and ( 2 ) confirm that the parties have discussed the MSA with their attorney and fully understand its terms . Having counsel read a MSA on the record with opposing counsel agreeing the terms read properly reflect the agreed-upon MSA terms is inadequate to form an enforceable MSA . Richardson v . Knight , 197 So . 3d 143 , 144-45 ( Fla . 4th DCA 2016 ).
Author : Allison M . Perry - Florida Appeals & Mediations , P . A .
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