HCBA Lawyer Magazine Vol. 30, No. 4 | Page 20

notiCeofaDCa’sDeCisiontoProCeeDenBanC Appellate Practice Section Chairs:­Joe­Eagleton­–­Brannock­&­Humphries­and­Chance­Lyman­–­Buchanan­Ingersoll­&­Rooney theamendment torule9.331(a) nowmakes noticemandatory. 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 Are YOU reCeIVInG HCBA’S eMAILS? HCBA regularly communicates with members via email. Stay in the know by making sure your email is up-to-date in your member profile at hillsbar.com. 18 MAR - APR 2020 | HCBA LAWYER