notiCe of a DCa’s DeCision to ProCeeD en BanC
Appellate Practice Section
Chairs:JoeEagleton–Brannock&HumphriesandChanceLyman–BuchananIngersoll&Rooney
the amendment
to rule 9.331(a)
now makes
notice mandatory.
A
recent amendment
to Florida Rule of
Appellate Procedure
9.331(a) requires
Florida’s District Courts of
Appeal (DCAs) to notify the
parties promptly if a majority of
participating judges order that a
proceeding will be determined en
banc. 1 For many years, the DCAs
occasionally notified the parties
that a case would be considered en
banc, but did not give such notice
consistently; instead, notice was
provided on a case-by-case basis. 2
The amendment to rule 9.331(a)
now makes such notice mandatory.
In the first year under the
new rule, the clerks of the Third,
Fourth, and Fifth DCAs report
that they have not yet had occasion
to issue a notice to parties about
the commencement of en banc
proceedings. The First DCA
has issued two notices of the
commencement of en banc
proceedings. The parties did not
move for an opportunity to submit
supplemental briefs in either of
those cases, but the court issued
an order for en banc oral argument
in one of them. The Second DCA
has issued three notices of the
commencement of en banc
proceedings, but the parties in
the affected cases did not file any
motions for supplemental briefing.
The clerk of the Second DCA,
Mary Beth Kuenzel, says that
it is her practice to inquire of
the judges if they wish to order
supplemental briefing before issuing
a notice of the commencement of
en banc proceedings.
In the absence of prior notice
of the decision to proceed en banc,
the parties and their counsel could
understandably feel blindsided
upon receipt of an en banc opinion.
Prior notice of a DCA’s decision
to determine a case en banc is
important to counsel because
it provides an opportunity for
effective advocacy. The impetus
for the amendment to rule 9.331(a)
was to require prompt notice of
a DCA’s vote to proceed en banc,
so that counsel could make an
informed decision about whether
to seek appropriate relief. 3 Such
relief would most likely take the
form of supplemental briefing,
oral argument before the full court,
or both. 4 n
1
In re Amends. to the Fla. R. App.
Proc.—2017 Regular Cycle Report, 256
So. 3d 1218, 1223, 1274-75 (Fla. 2018).
2 See, e.g., Doe v. Dep’t of Health &
Rehab. Servs. (In the Interest of D.J.S.
and J.S.G., children), 563 So. 2d. 655,
661, 684 (Fla. 3d DCA 1990).
3 See Regular-Cycle Report of the
Appellate Court Rules Committee,
App’x E at 116-20, App’x G at 27-30,
filed Jan. 30, 2017, in In re: 2017
Regular-Cycle Report for Amends. to the
Fla. R. App. Proc. (Fla. Sup. Ct. Case
No. SC17-152).
4 See, e.g., Poleyeff v. Seville Beach
Hotel Corp., 782 So. 2d 422, 424 (Fla.
3d DCA 2001) (case decided on en banc
hearing after supplemental briefing and
oral argument before the full court).
Note, however, that the Second DCA
does not conduct oral argument in
en banc proceedings. Second District
Court of Appeal,
Internal Operating
Procedures
§ 6.9(C) (Apr.
12, 2018).
Author: Douglas
A. Wallace -
Brannock &
Humphries
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