text:
    In re AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE (OUT OF CYCLE).
    No. SC06-159.
    Supreme Court of Florida.
    Oct. 26, 2006.
    Edward Maurice Mullins, Chair, Appellate Court Rules Committee, Astigarraga, Davis, Mullins and Grossman, P.A., Miami, Jack R. Reiter, Past Chair, Adorno and Ross, Miami, and Jack F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, for Petitioner.
    Ryan Thomas Truskoski, Orlando, Florida, Alan Abramowitz, Chair, Juvenile Court .Rules Committee, Orlando, John Walsh, Managing Attorney, Legal Aid Society, Foster Children’s Project, West Palm Beach, Dennis W. Moore, General Counsel and Thomas Wade Young, Appellate Counsel, Statewide Guardian ad Litem Office, Orlando, Responding with comments.
   PER CURIAM.

The Florida Bar’s Appellate Court Rules Committee (Committee) has filed an out-of-cycle report of proposed amendments in accordance with Florida Rule of Judicial Administration 2.140(e). We have jurisdiction. See art. Y, § 2(a), Fla. Const.

BACKGROUND

The Committee proposes amendments to rules 9.120 (Discretionary Proceedings to Review Decisions of District Courts of Appeal); 9.130 (Proceedings to Review Non-Final Orders and Specified Final Orders); 9.146 (Appeal Proceedings in Juvenile Dependency and Termination of Parental Rights Cases and Cases Involving Families and Children in Need of Services); 9.180 (Appeal Proceedings to Review Workers’ Compensation Cases); 9.200 (The Record); 9.210 (Briefs); 9.300 (Motions); and 9.370 (Amicus Curiae). As required by rule 2.140(b)(2), prior to submission to the Court, a summary of the proposed rule amendments was published in the November 1, 2005, edition of The Florida Bar News and on the internet web site of The Florida Bar. No comments were received. The Committee filed its report with the Court on February 1, 2006, and the Court republished a summary of the proposals for comment in the March 1, 2006, edition of The Florida Bar News, and several comments were filed.

The Committee later filed in this Court a supplemental report proposing amendments to rule 9.140 (Appeal Proceedings in Criminal Cases) to correct a typographical mistake, a scrivener’s error, and a stylistic change; this proposal was not published for comment. Having considered the Committee’s reports, we adopt the amendments proposed by the Committee with the exceptions and modifications discussed below.

AMENDMENTS

First, with respect to rule 9.120, which governs discretionary proceedings to review decisions of the district courts of appeal, the Committee proposes deleting language that bars the filing of jurisdictional briefs in certified question and direct conflict cases. The effect of the amendment would be to require jurisdictional briefs when a district court certifies a question of great public importance or certifies direct conflict under rules 9.030(a)(2)(A)(v) or 9.030(a)(2)(A)(vi). Currently, rule 9.120(d) does not allow parties to file jurisdictional briefs in such cases. In considering this amendment, the Court has concluded that whereas jurisdictional briefing in cases of certified direct conflict would be beneficial to the Court, jurisdictional briefing in cases involving certified questions of great public importance would not be beneficial at this point; the Court routinely screens the latter group of cases on submission to make a preliminary determination concerning jurisdiction. We note, however, that the parties in cases involving certified questions of great public importance should continue to discuss in their merits briefs why the certified question is of great public importance.

Accordingly, we adopt a modified version of the proposed amendment to rule 9.120(d) as follows:

(d) Briefs on Jurisdiction. Petitioner’s brief, limited solely to the issue of the supreme court’s jurisdiction and accompanied by an appendix containing only a conformed copy of the decisión of the district court of appeal, shall be served within 10 days of filing the notice. Respondent’s brief on jurisdiction shall be served within 20 days after service of petitioner’s brief. Formal requirements for both briefs are specified in rule 9.210. No reply brief shall be permitted. If jurisdiction is invoked under rules 9.030(a)(2)(A)(v) or (a)(2)(A)(vi) (certifications of questions of great public importance by the district courts to the supreme court), no briefs on jurisdiction shall be filed.

Next, the Committee proposes several changes to rule 9.130. First, the Committee proposes that subdivision (a)(3)(C)(ii) be amended to allow appeals from nonfinal orders granting, modifying, dissolving, or refusing to grant, modify, or dissolve writs of replevin, garnishment, or attachment. Second, the Committee proposes that subdivision (a)(3)(C)(iii) be amended to authorize appeals of nonfinal orders determining the right to child custody in juvenile dependency and termination of parental rights cases. And third, the Committee proposes that subdivision (a)(5) be amended to reference the right to immediate review of any authorized motions for relief from judgment rather than enumerating the various motions for relief from judgment contained in the rules. Upon considering all these proposed amendments to rule 9.130, the Court declines to adopt them at this time. This matter currently is the subject of an ongoing study by the Court, and the Court will consider any proposed .changes to this rule after that study has been completed.

The title to rule 9.146(b) is amended to read “Who May Appeal,” instead of “Appeals Permitted.” This is done to clarify who may take an appeal in matters covered by the rule and to confirm that the rule does not provide any independent right to appeal that exists outside rule 9.130 with respect to nonfinal orders.

Rule 9.200, which governs the record on appeal, is amended in two ways. First, subdivision (a)(2) is amended to provide that in dependency and termination of parental rights cases as well as in cases involving families and children in need of services, the original orders and judgments shall remain with the trial court, with copies being forwarded to the appellate court as part of the record. This is consistent with the treatment of similar orders in family law cases. And second, subdivision (b)(2) is amended to require court reporters to include an electronic version of the transcript with each hard copy designated for inclusion in the record on appeal. The Committee’s report shows that none of the court reporters contacted by the Committee expressed any objection to this procedure; certain courts already adhere to this practice, as do many attorneys; and the cost is nominal.

Rule 9.210(a)(5) is amended to address cross-appeals and to extend the page limitation for the answer brief/initial brief of appellee/cross-appellant from fifty pages to eighty-five pages. By letter to the Committee, Thomas Hall, Clerk of the Supreme Court, requested that the Committee inquire into this issue. After an exhaustive review of other jurisdictions, the Committee proposed the present amendment. This amendment facilitates a balanced presentation of argument by equalizing the number of pages available to both an appellant and a cross-appellant.

Rule 9.300(d), which addresses motions not tolling time, is amended to eliminate the requirement in subdivision (10) that a litigant seeking an extension of time in this Court must also file a separate request to toll time. Florida Supreme Court Clerk Tom Hall advised the Committee that the current requirement places an administrative burden on the Court by requiring a litigant to file duplicative documents. The amendment deletes subdivision (10) from the rule. Under the amended version of the rule, a motion for extension of time filed in this Court automatically tolls the applicable time periods, which is consistent with the effect of a motion for extension of time filed in a district court of appeal.

And finally, rule 9.370(c), which addresses the time for filing amicus curiae briefs, is amended to clarify that the time for submitting an amicus brief runs from the time of service of the initial brief, petition, or response, rather than from the time of filing. The proposal further clarifies that the service of an amicus brief does not alter or extend the briefing deadlines for the parties. The amendment changes the subdivision’s title to reflect that it is the time of service, not the time of filing, that triggers the amicus briefing timetable.

We hereby adopt the amendments to the Florida Rules of Appellate Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2007, at 12:01 a.m.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 9.120. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL

(a) [No change]

(b) [No Change]

(c) [No Change]

(d) Briefs on Jurisdiction. Petitioner’s brief, limited solely to the issue of the supreme court’s jurisdiction and accompanied by an appendix containing only a conformed copy of the decision of the district court of appeal, shall be served within 10 days of filing the notice. Respondent’s brief on jurisdiction shall be served within 20 days after service of petitioner’s brief. Formal requirements for both briefs are specified in rule 9.210. No reply brief shall be permitted. If jurisdiction is invoked under rules 9.030(a)(2)(A)(v) or great public importance by the district courts to the supreme court), no briefs on jurisdiction shall be filed.

(e) [No Change]

(f) [No Change]

Committee Notes

[No Change]

RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES

(a) [No Change]

(b) Appeals by Defendant.

(1) Appeals Permitted. A defendant may appeal

(A) a final judgment adjudicating guilt;

(B) a final order withholding adjudication after a finding of guilt;

(C) an order granting probation or community control, or both, whether or not guilt has been adjudicated;

(D) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850, or 3.853;

(E) an unlawful or illegal sentence;

(F) a sentence, if the appeal is required or permitted by general law; or

(G) as otherwise provided by general law.

(2) Guilty or Nolo Contendere Pleas.

(A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:

(i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo con-tendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.

(ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo con-tendere may otherwise directly appeal only

a. the lower tribunal’s lack of subject matter jurisdiction;

b. a violation of the plea agreement, if preserved by a motion to withdraw plea;

c. an involuntary plea, if preserved by a motion to withdraw plea;

d. a sentencing error, if preserved; or

e. as otherwise provided by law.

(B) Record.

(i) Except for appeals under subdivision (b)(2)(A)® of this rule, the record for appeals involving a plea of guilty or nolo contendere shall be limited to:

a. all indictments, informations, affidavits of violation of probation or community control, and other charging documents;

b. the plea and sentencing hearing transcripts;

c. any written plea agreements;

d. any judgments, sentences, score-sheets, motions, and orders to correct or modify sentences, orders imposing, modifying, or revoking probation or community control, orders assessing costs, fees, fines, or restitution against the defendant, and any other documents relating to sentencing;

e. any motion to withdraw plea and order thereon;

f. notice of appeal, statement of judicial acts to be reviewed, directions to the clerk, and designation to the court reporter.

(ii) Upon good cause shown, the court, or the lower tribunal before the record is transmitted, may expand the record.

(3) Commencement. The defendant shall file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal at any time between the rendition of a final judgment and 30 days following rendition of a written order imposing sentence. Copies shall be served on the state attorney and attorney general.

(4) Cross-Appeal. A defendant may cross-appeal by serving a notice within 10 days of service of the state’s notice or service of an order on a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Review of cross-appeals before trial is limited to related issues resolved in the same order being appealed.

(c) [No Change]

(d) Withdrawal of Defense Counsel after Judgment and Sentence or After after Appeal by State.

(1) The attorney of record for a defendant in a criminal proceeding shall not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until either the time has expired for filing an authorized notice of appeal and no such notice has been filed by the defendant or the state, or after the following have been completed:

(A) a notice of appeal or cross-appeal has been filed on behalf of the defendant or the state;

(B) a statement of judicial acts to be reviewed has been filed if a transcript will require the expenditure of public funds;

(C) the defendant’s directions to the clerk have been filed, if necessary;

(D) designations to the court reporter have been filed for transcripts of those portions of the proceedings necessary to support the issues on appeal or, if transcripts will require the expenditure of public funds for the defendant, of those portions of the proceedings necessary to support the statement of judicial acts to be reviewed; and

(E)in publicly funded defense and state appeals, the lower tribunal has appointed the public defender for the local circuit court, who shall initially remain counsel for the appeal until the record is transmitted to the appellate court. In publicly funded state appeals, defense counsel shall additionally file in the appellate court a copy of the order appointing the local public defender. In non-publicly funded defense and state appeals, retained appellate counsel shall file a notice of appearance in the appellate court, or defense counsel of record shall file a motion to withdraw in the appellate court, with service on the defendant, that states what the defendant’s legal representation on appeal, if any, is expected to be. Documents filed in the appellate court shall be served on the attorney general (or state attorney in appeals to the circuit court).

(2) Orders allowing withdrawal of counsel are conditional and counsel shall remain of record for the limited purpose of representing the defendant in the lower tribunal regarding any sentencing error the lower tribunal is authorized to address during the pendency of the direct appeal pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

(e) [No Change]

(f) [No Change]

(g) [No Change]

(h) [No Change]

(i) [No Change]

Committee Notes

[No Change]

RULE 9.146. APPEAL PROCEEDINGS IN JUVENILE DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS CASES AND CASES INVOLVING FAMILIES AND CHILDREN IN NEED OF SERVICES

(a) [No Change]

(b) Who May AppealAppeals Permitted. Any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding affected by an order of the lower tribunal, or the appropriate state agency as provided by law may appeal to the appropriate court within the time and in the manner prescribed by these rules.

(c) [No Change]

(d) [No Change]

(e) [No Change]

(f) [No Change]

(g) [No Change]

Committee Notes

1996 Adoption. The reference in subdivision (a) to cases involving families and children in need of services encompasses only those cases in which an order has been entered adjudicating a child or family in need of services under chapter 39, Florida Statutes.

Subdivision (c) requires the parties to use initials in all references to the child and parents in all briefs and other papers filed in the court in furtherance of the appeal. It does not require the deletion of the names of the child and parents from pleadings and other papers transmitted to the court from the lower tribunal.

2006 Amendment. The title to subdivision (b) was changed from “Appeals Permitted” to clarify that this rule addresses who may take an appeal in matters covered by this rule. The amendment is intended to approve the holding in D.K.B. v. Department of Children & Families, 890 So.2d 1288 (Fla. 2d DCA 2005), that non-final orders in these matters may be appealed only if listed in rule 9.130.

RULE 9.180. APPEAL PROCEEDINGS TO REVIEW WORKERS’ COMPENSATION CASES

(a) [No Change]

(b) [No Change]

(c) [No Change]

(d) [No Change]

(e) [No Change]

(f) Record Contents: Final Orders.

(1) Transcript, Order, and Other Documents. The record shall contain the claim(s) or petition(s) for benefits, notice(s) of denial, pretrial stipulation, pretrial order, depositions or exhibits admitted into evidence, transcripts of any hearings before the lower tribunal and the order appealed. The parties may designate other items for inclusion in or omission from the record in accordance with rule 9.200.

(2) Proffered Evidence. Evidence proffered but not introduced into evidence at the hearing shall not be considered unless its admissibility is an issue on appeal and the question is properly designated for inclusion in the record by a party.

(3) Certification and Transmittal. The lower tribunal shall certify and transmit the record to the court as prescribed by these rules.

(4) Stipulated Record. The parties may stipulate to the contents of the record. In such a case the record shall consist of the stipulated statement and the order appealed which the lower tribunal shall certify as the record on appeal.

(5) Costs.
(A) Notice of Estimated Costs. Within 5 days after the contents of the record have been determined under these rules, the lower tribunal shall notify the appellant of the estimated cost of preparing the record. The lower tribunal also shall notify the Division of Workers’ Compensation of the estimated record costs if the appellant files a verified petition to be relieved of costs and a sworn financial affidavit in substantially the same form as — form 4.9125 of the Rules of Worker-s^-Gompensation Proce-
(B) Deposit of Estimated Costs. Within 15 days after the notice of estimated costs is served, the appellant shall deposit a sum of money equal to the estimated costs with the lower tribunal.
(C) Failure to Deposit Costs. If the appellant fails to deposit the estimated costs within the time prescribed, the lower tribunal shall notify the court, which may dismiss the appeal.
(D) State Agencies: Waiver of Costs. Any self-insured state agency or branch of state government, including the 4Di-vision of Workers’ Compensation and the Special Disability Trust Fund, need not deposit the estimated costs.
(E) Costs. If additional costs are incurred in correcting, amending, or supplementing the record, the lower tribunal shall assess such costs against the appropriate party. If the ¿Division of Workers’ Compensation is obligated to pay the costs of the appeal due to appellant’s indigency, it must be given notice of any proceeding to assess additional costs. Within 15 days after the entry of the order assessing costs, the assessed party must deposit the sums so ordered with the lower tribunal. The lower tribunal shall promptly notify the court if costs are not deposited as required.
(6) Preparation of Record.
(A) Selection of Reporter by Lower Tribunal. The lower tribunal shall supervise the preparation of the record. The lower tribunal or chief judge of compensation claims shall select the reporter or transcriber to prepare the record. The judge who makes the selection shall give the parties notice of the selection.
(B) Objection to Reporter or Transcriber Selected. Any party may object to the reporter or transcriber selected by filing written objections with the judge who made the selection within 15 days after service of notice of the selection. Within 5 days after filing the objection, the judge shall hold a hearing on the issue. In such a case, the time limits mandated by these rules shall be appropriately extended.
(C) Certification of Record by Court Reporter or Transcriber. The reporter or transcriber designated by the lower tribunal or chief judge of compensation claims shall transcribe, certify, and deliver all necessary copies of the record to the lower tribunal as x-equired under these rules. The record shall be delivered in sufficient time for the lower tribunal to review the record and send it to the court. The reporter or transcriber shall promptly notify all parties in writing when the record is delivered to the lower tribunal.
(D) Certification and Transmittal by Lower Tribunal. The lower tribunal shall review the original record, certify that it was prepai'ed in accordance with these rules, and within 60 days of the notice of appeal being filed transmit the record to the court.
(E) Copies. The lower tribunal shall provide a copy of the record to all counsel of record and all unrepresented parties.

(7) Extensions. For good cause, the lower tribunal may extend by no more than 30 days the time for filing the record with the court. Any further extension of time may be granted by the court.

(8) Applicability of Rule 9.200. Rules 9.200(a)(3), (c), and (f) shall apply to preparation of the record in appeals under this rule.

(g) Relief From Filing Fee and Costs: Indigency.

(1) Indigency Defined. Indigency for the purpose of this rule is synonymous with insolvency as defined by section 440.02, Florida Statutes.

(2) Filing Fee.

(A) Authority. An appellant may be relieved of paying filing fees by filing a verified petition or motion of indigency under section 57.081(1), Florida Statutes, with the lower tribunal.

(B) Time. The verified petition or motion of indigency must be filed with the lower tribunal together with the notice of appeal.

(C) Verified Petition: Contents. The verified petition or motion shall contain a statement by the appellant to be relieved of paying filing fees due to indi-gency and appellant’s inability to pay the charges. The petition shall request that the lower tribunal enter an order or certificate of indigency. One of the following shall also be filed in support of the verified petition or motion:

(i) If the appellant is unrepresented by counsel, a financial affidavit; or
(ii) If the appellant is represented by counsel, counsel shall certify that counsel has investigated (a) the appellant’s financial condition and finds appellant indigent; and (b) the nature of appellant’s position and believes it to be meritorious as a matter of law. Counsel shall also certify that counsel has not been paid or promised payment of a fee or other remuneration for such legal services except for the amount, if any, ultimately approved by the lower tribunal to be paid by the employer/earrier if such entitlement is determined by the court.

(D) Service. Appellant shall serve a copy of the verified petition or motion of indigency, including appellant’s financial affidavit or counsel’s certificate, whichever is applicable, on all interested parties and-the clerk of the court.

(E) Order or Certificate of Indigen-cy. The lower tribunal shall review the verified petition or motion for indigency and supporting documents without a hearing, and if the lower tribunal finds compliance with section 57.081(1), Florida Statutes, may issue a certificate of indigency or enter an order granting said relief, at which time appellant may proceed without further application to the court and without payment of any filing fees. If the lower tribunal enters an order denying relief, appellant shall deposit the filing fee with the lower tribunal within 15 days from the date of the order unless timely review is sought by motion filed with the court.

(3)Costs of Preparation of Record.

(A) Authority. An appellant may be relieved in whole or in part from the costs of the preparation of the record on appeal by filing with the lower tribunal a verified petition to be relieved of costs and a copy of the designation of the record on appeal. The verified petition to be relieved of costs shall contain a sworn financial affidavit as described in subdivision (D) in-a-for-m substantially the same as -for-m 4.9125 of the .Rules — of Workers Compensation Proce-

(B) Time. The verified petition to be relieved of costs must be filed within 15 days after service of the notice of estimated costs. A verified petition filed prior to the date of service of the notice of estimated costs shall be deemed not timely.

CC) Verified Petition: Contents. The verified petition shall contain a request by appellant to be relieved of costs due to insolvency. The petition also shall include a statement by the appellant’s attorney or the appellant, if not represented by an attorney, that the appeal was filed in good faith and the court reasonably could find reversible error in the record and shall state with particularity the specific legal and factual grounds for that opinion.

(D) Sworn Financial Affidavit: Contents. With the verified petition to be relieved of costs, the appellant shall file a sworn financial affidavit listing income and assets, including marital income and assets, and expenses and liabilities. The sworn financial-affidavit shall be substantially the same as-form 4.9125.

(E) Verified Petition and Sworn Financial Affidavit: Service. The appellant shall serve a copy of the verified petition to be relieved of costs, including the sworn financial affidavit, on all interested parties, including the Division of Workers’ Compensation, the office of general counsel of the Department of Financial Services, and the clerk of the court.

(F) Hearing on Petition to Be Relieved of Costs. After giving 15 days’ notice to the Division of Workers’ Compensation and all parties, the lower tribunal shall promptly hold a hearing and rule on the merits of the petition to be relieved of costs. However, if no objection to the petition is filed by the division or a party within 20 days after the petition is served, the lower tribunal may enter an order on the merits of the petition without a hearing.

(G) Extension of Appeal Deadlines: Petition Granted. If the petition to be relieved of the entire cost of the preparation of the record on appeal is granted, the 60-day period allowed under these rules for the preparation of the record shall begin to run from the date of the order granting the petition.

(H) Extension of Appeal Deadlines: Petition Denied. If the petition to be relieved of the cost of the record is denied or only granted in part, the petitioner shall deposit the estimated costs with the lower tribunal within 15 days from the date the order denying the petition is entered. The 60-day period allowed under these rules for the preparation of the record shall begin from the date the estimated cost is deposited with the lower tribunal.

(I) Payment of Cost for Preparation of Record by Administration Trust Fund. If the petition to be relieved of costs is granted, the lower tribunal may order the Workers’ Compensation Administration Trust Fund to pay the cost of the preparation of the record on appeal pending the final disposition of the appeal. The lower tribunal shall provide a copy of such order to all interested parties, including the division, general counsel of the Department of Financial Services, and the clerk of the court.

(J) Reimbursement of Administration Trust Fund If Appeal Is Successful. If the Administration Trust Fund has paid the costs of the preparation of the record and the appellant prevails at the conclusion of the appeal, the appellee shall reimburse the fund the costs paid within 30 days of the mandate issued by the court or supreme court under these rules.

(h) [No Change]

(i) [No Change]

Committee Notes

[No Change]

RULE 9.200. THE RECORD

(a) Contents.

(1) Except as otherwise designated by the parties, the record shall consist of the original documents, exhibits, and transcript(s) of proceedings, if any, filed in the lower tribunal, except summonses, prae-cipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, other discovery, and physical evidence. The record shall also include a progress docket.

(2) In family law, juvenile dependency, and termination of parental rights cases, and cases involving families and children in need of services, the record shall include those items designated in subdivision (a)(1) except that the clerk of the lower tribunal shall retain the original orders, reports and recommendations of magistrates or hearing officers, and judgments within the file of the lower tribunal and shall include copies thereof within the record.

(3) Within 10 days of filing the notice of appeal, an appellant may direct the clerk to include or exclude other documénts or exhibits filed in the lower tribunal. The directions shall be substantially in the form prescribed by rule 9.900(f). If the clerk is directed to transmit less than the entire record or a transcript of trial with less than all of the testimony, the appellant shall serve with such direction a statement of the judicial acts to be reviewed. Within 20 days of filing the notice, an appellee may direct the clerk to include additional documents and exhibits.

(4) The parties may prepare a stipulated statement showing how the issues to be presented arose and were decided in the lower tribunal, attaching a copy of the order to be reviewed and as much of the record in the lower tribunal as is necessary to a determination of the issues to be presented. The parties shall advise the clerk of their intention to rely on a stipulated statement in lieu of the record as early in advance of filing as possible. The stipulated statement shall be filed by the parties and transmitted to the court by the clerk of the lower tribunal within the time prescribed for transmittal of the record.

(b) Transcript(s) of Proceedings.

(1) Within 10 days of filing the notice, the appellant shall designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. Within 20 days of filing the notice, an appellee may designate additional portions of the proceedings. Copies of designations shall be served on the court reporter. Costs of the original and all copies of the transcript(s) so designated shall be borne initially by the designating party, subject to appropriate taxation of costs as prescribed by rule 9.400. At the time of the designation, unless other satisfactory arrangements have been made, the designating party must make a deposit of 1/2 of the estimated transcript costs, and must pay the full balance of the fee on delivery of the completed transcript(s).

(2) Within 30 days of service of a designation, or within the additional time provided for under subdivision (b)(3) of this rule, the court reporter shall transcribe and deliver tofile with the clerk of the lower tribunal the designated proceedings and shall fimnshserve copies as requested in the designation. In addition to the paper copies, the court reporter shall file with the clerk of the lower tribunal and serve on the designated parties an electronic copy of the designated proceedings in a format approved by the supreme court. If a designating party directs the court reporter to furnish the transcript(s) to fewer than all parties, that designating party shall serve a copy of the designated transcript(s), in both electronic and paper form, on the parties within 5 days of receipt from the court reporter. The transcript of the trial shall be securely bound in consecutively numbered volumes not to exceed 200 pages each, and each page shall be numbered consecutively. Each volume shall be prefaced by an index containing the names of the witnesses, a list of all exhibits offered and introduced in evidence, and the pages where each may be found.

(3) On service of a designation, the reporter shall acknowledge at the foot of the designation the fact that it has been received and the date on which the reporter expects to have the transcript(s) completed and shall transmit the designation, so endorsed, to the parties and to the clerk of the appellate court within 5 days of service. If the transeript(s) cannot be completed within 30 days of service of the designation, the reporter shall request such additional time as is reasonably necessary and shall state the reasons therefor. If the reporter requests an extension of time, the court shall allow the parties 5 days in which to object or agree. The appellate court shall approve the request or take other appropriate action and shall notify the reporter and the parties of the due date of the transcript(s).

(4) If no report of the proceedings was made, or if the transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

(c) [No Change]

(d) [No Change]

(e) [No Change]

(f) [No Change]

(g) [No Change]

Committee Notes

1977 Amendment. This rule replaces former rule 3.6 and represents a complete revision of the matters pertaining to the record for an appellate proceeding. References in this rule to “appellant” and “appellee” should be treated as equivalent to “petitioner” and “respondent,” respectively. See Commentary, Fla. R.App. P. 9.020. This rule is based in part on Federal Rule of Appellate Procedure 10(b).

Subdivision (a)(1) establishes the content of the record unless an appellant within 10 days of filing the notice directs the clerk to exclude portions of the record or to include additional portions, or the appellee within 20 days of the notice being filed directs inclusion of additional portions. In lieu of a record, the parties may prepare a stipulated statement, attaching a copy of the order that is sought to be reviewed and essential portions of the record. If a stipulated statement is prepared, the parties must advise the clerk not to prepare the record. The stipulated statement is to be filed and transmitted within the time prescribed for transmittal of the record. If less than a full record is to be used, the initiating party must serve a statement of the judicial acts to be reviewed so that the opposing party may determine whether additional portions of the record are required. Such a statement is not intended to be the equivalent of assignments of error under former rule 3.5. Any inadequacy in the statement may be cured by motion to supplement the record under subdivision (f) of this rule.

Subdivision (a) interacts with subdivision (b) so that as soon as the notice is filed the clerk of the lower tribunal will prepare and transmit the complete record of the case as described by the rule. To include in the record any of the items automatically omitted, a party must designate the items desired. A transcript of the proceedings in the lower tribunal will not be prepared or transmitted unless already filed, or the parties designate the portions of the transcript desired to be transmitted. Subdivision (b)(2) imposes on the reporter an affirmative duty to prepare the transcript of the proceedings as soon as designated. It is intended that to complete the preparation of all official papers to be filed with the court, the appellant need only file the notice, designate omitted portions of the record that are desired, and designate the desired portions of the transcript. It therefore will be unnecessary to file directions with the clerk of the lower tribunal in most cases.

Subdivision (b)(1) replaces former rule 3.6(d)(2), and specifically requires service of the designation on the court reporter. This is intended to avoid delays that sometimes occur when a party files the designation, but fails to notify the court reporter that a transcript is needed. The rule also establishes the responsibility of the designating party to initially bear the cost of the transcript.

Subdivision (b)(2) replaces former rule 3.6(e). This rule provides for the form of the transcript, and imposes on the reporter the affirmative duty of delivering copies of the transcript to the ordering parties on request. Such a request may be included in the designation. Under subdivision (e), however, the responsibility for ensuring performance remains with the parties. The requirement that pages be consecutively numbered is new and is deemed necessary to assure continuity and ease of reference for the convenience of the court. This requirement applies even if 2 or more parties designate portions of the proceedings for transcription. It is intended that the transcript portions transmitted to the court constitute a single consecutively numbered document in 1 or more volumes not exceeding 200 pages each. If there is more than 1 court reporter, the clerk will renumber the pages of the transcript copies so that they are sequential. The requirement of a complete index at the beginning of each volume is new, and is necessary to standardize the format and to guide those preparing transcripts.

Subdivision (b)(3) provides the procedures to be followed if no transcript is available.

Subdivision (c) provides the procedures to be followed if there is a cross-appeal or cross-petition.

Subdivision (d) sets forth the manner in which the clerk of the lower tribunal is to prepare the record. The original record is to be transmitted unless the parties stipulate or the lower court orders the original be retained, except that under rule 9.140(d) (governing criminal cases), the original is to be retained unless the court orders otherwise.

Subdivision (e) places the burden of enforcement of this rule on the appellant or petitioner, but any party may move for an order requiring adherence to the rule.

Subdivision (f) replaces former rule 3.6(1). The new rule is intended to ensure that appellate proceedings will be decided on their merits and that no showing of good cause, negligence, or accident is required before the lower tribunal or the court orders the completion of the record. This rule is intended to ensure that any portion of the record in the lower tribunal that is material to a decision by the court will be available to the court. It is specifically intended to avoid those situations that have occurred in the past when an order has been affirmed because appellate counsel failed to bring up the portions of the record necessary to determine whether there was an error. See Pan American Metal Prods. Co. v. Healy, 138 So.2d 96 (Fla. 3d DCA 1962). The rule is not intended to cure inadequacies in the record that result from the failure of a party to make a proper record during the proceedings in the lower tribunal. The purpose of the rule is to give the parties an opportunity to have the appellate proceedings decided on the record developed in the lower tribunal. This rule does not impose on the lower tribunal or the court a duty to review on their own the adequacy of the preparation of the record. A failure to supplement the record after notice by the court may be held against the party at fault.

Subdivision (g) requires that the record in civil cases be returned to the lower tribunal after final disposition by the court regardless of whether the original record or a copy was used. The court may retain or return the record in criminal cases according to its internal administration policies.

1980 Amendment. Subdivisions (b)(1) and (b)(2) were amended to specify that the party designating portions of the transcript for inclusion in the record on appeal shall pay for the cost of transcription and shall pay for and furnish a copy of the portions designated for all opposing parties. See rule 9.420(b) and 1980 committee note thereto relating to limitations of number of copies.

1987 Amendment. Subdivision (b)(3) above is patterned after Federal Rule of Appellate Procedure 11(b).

1992 Amendment. Subdivisions (b)(2), (d)(1)(A), and (d)(1)(B) were amended to standardize the lower court clerk’s procedure with respect to the placement and pagination of the transcript in the record on appeal. This amendment places the duty of paginating the transcript on the court reporter and requires the clerk to include the transcript at the end of the record, without repagination.

1996 Amendment. Subdivision (a)(2) was added because family law cases frequently have continuing activity at the lower tribunal level during the pendency of appellate proceedings and that continued activity may be hampered by the absence of orders being enforced during the pen-dency of the appeal.

Subdivision (b)(2) was amended to change the wording in the third sentence from “transcript of proceedings” to “transcript of the trial” to be consistent with and to clarify the requirement in subdivision (d)(1)(B) that it is only the transcript of trial that is not to be renumbered by the clerk. Pursuant to subdivision (d)(1)(B), it remains the duty of the clerk to consecutively number transcripts other than the transcript of the trial. Subdivision (b)(2) retains the requirement that the court reporter is to number each page of the transcript of the trial consecutively, but it is the committee’s view that if the consecutive pagination requirement is impracticable or becomes a hardship for the court reporting entity, relief may be sought from the court.

2006 Amendment. Subdivision (a)(2) is amended to apply to .juvenile dependency and termination of parental rights cases and cases involving families and children in need of services. The justification for retaining the original orders, reports, and recommendations of magistrate or hearing officers, and judgments within the file of the lower tribunal in family law cases applies with equal force in .juvenile dependency and termination of parental rights cases, and cases involving families and children in need of services.

RULE 9.210. BRIEFS

(a) Generally. In addition to briefs on jurisdiction under rule 9.120(d), the only briefs permitted to be filed by the parties in any one proceeding are the initial brief, the answer brief, a reply brief, and a cross-reply brief. All briefs required by these rules shall be prepared as follows:

(1) Briefs shall be printed, typewritten, or duplicated on opaque, white, unglossed 8/é-by-ll inch paper.

(2) The lettering in briefs shall be black and in distinct type, double-spaced, with margins no less than 1 inch. Lettering in script or type made in imitation of handwriting shall not be permitted. Footnotes and quotations may be single spaced and shall be in the same size type, with the same spacing between characters, as the text. Computer-generated briefs shall be submitted in either Times New Roman 14-point font or Courier New 12-point font. All computer-generated briefs shall contain a certifícate of compliance signed by counsel, or the party if unrepresented, certifying that the brief complies with the font requirements of this rule. The certificate of compliance shall be contained in the brief immediately following the certificate of service.

(3) Briefs shall be securely bound in book form and fastened along the left side in a manner that will allow them to lie flat when opened or be securely stapled in the upper left corner. Headings and subheadings shall be at least as large as the brief text and may be single spaced.

(4) The cover sheet of each brief shall state the name of the court, the style of the cause, including the case number if assigned, the lower tribunal, the party on whose behalf the brief is filed, the type of brief, and the name and address of the attorney filing the brief.

(5) The initial and answer briefs shall not exceed 50 pages in lengthy provided that if a cross-appeal has been filed, the answer brief/initial brief on cross-appeal shall not exceed 85 pages. Reply briefs shall not exceed 15 pages in length; provided that if a cross-appeal has been filed, the reply brief shall not exceed 50 pages, not more than 15 of which shall be devoted to argument replying to the answer portion of the appellee/cross-appellant’s brief. Cross-reply briefs shall not exceed 15 pages. Briefs on jurisdiction shall not exceed 10 pages. The table of contents and the citation of authorities shall be excluded from the computation. Longer briefs may be permitted by the court.

(b) [No Change]

(c) [No Change]

(d) [No Change]

(e) [No Change]

(f) [No Change]

(g) [No Change]

(h) [No Change]

Committee Notes

[No Change]

Court Commentary

[No Change]

RULE 9.300. MOTIONS

(a) [No Change]

(b) [No Change]

(c) [No Change]

(d) Motions Not Tolling Time.

(1) Motions for post-trial release, rule 9.140(g).

(2) Motions for stay pending appeal, rule 9.310.

(3) Motions relating to oral argument, rule 9.320.

(4) Motions relating to joinder and substitution of parties, rule 9.360.

(5) Motions relating to amicus curiae, rule 9.370.

(6) Motions relating to attorneys’ fees on appeal, rale 9.400.

(7) Motions relating to service, rule 9.420.

(8) Motions relating to admission or withdrawal of attorneys, rule 9.440.

(9) Motions relating to expediting the appeal.

(10) All motions filed in the- supreme court, unless ■■ accompanied by-a-separats request-to toll time.

Committee Notes

[No Change]

RULE 9.370. AMICUS CURIAE

(a)[No Change]

(b) [No Change]

(c) Time for EilingService. An amicus curiae must serve its brief no later than 5 days after the first brief, petition, or response of the party being supported is served. An amicus curiae that does not support either party must serve its brief no later than 5 days after the initial brief or petition is Sedserved. A court may grant leave for later service, specifying the time within which an opposing party may respond. The service of an amicus curiae brief does not alter or extend the briefing deadlines for the parties. An amicus curiae may not file a reply brief.

Committee Notes

[No Change]

        . Although the report is titled "Two-Year-Cycle Report of the Appellate Court Rules Committee,” the report is in fact an out-of-cycle report; the Committee’s regular reporting date was recently changed to 2008. See Fla. R. Jud. Admin. 2.140(b)(1).

      . In addition to the amendments discussed above, there are also several editorial and housekeeping amendments as reflected in the appendix.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sean CHILDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5042.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2005.
   PER CURIAM.

Affirmed. See Nunez v. State, 912 So.2d 693 (Fla. 2d DCA 2005); Adams v. State, 774 So.2d 941 (Fla. 2d DCA 2001); Adlington v. State, 840 So.2d 354 (Fla. 4th DCA), review denied, 859 So.2d 513 (Fla.2003); State v. Waldron, 835 So.2d 1217 (Fla. 5th DCA 2003); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

NORTHCUTT, SALCINES, and STRINGER, JJ., Concur.


author: LaROSE, Judge.

text:
    Steven William TRAUGHBER, Appellant, v. Misty Fawn TRAUGHBER, Appellee.
    No. 2D05-1144.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2006.
    David M. Wall of David M. Wall, P.A., Clearwater, for Appellant.

      Kristin R.H. Kirkner of Bay Area Legal Services, Tampa, for Appellee.
   LaROSE, Judge.

Steven William Traughber appeals the trial court’s final domestic violence injunction entered against him. Mr. Traughber did not receive reasonable notice of the final hearing. Accordingly, we reverse.

Mr. Traughber’s wife, Misty Fawn Traughber, filed a petition for a domestic violence injunction on January 14, 2005. The trial court entered an ex parte temporary injunction that same day. The trial court also set a final injunction hearing for January 25, 2005, at 9:30 a.m. The temporary injunction was effective until the final hearing, and provided that “[i]f Petitioner and/or Respondent do not appear [at the final hearing], this temporary injunction may be continued in force, extended, or dismissed, and/or additional orders may be granted, including the imposition of court costs.”

Mr. Traughber, who lived in Pinellas County, was served with the notice of hearing at 9:05 p.m. the night before the final hearing. Mr. Traughber did not attend the hearing in Tampa. The trial court entered a final domestic violence injunction that stated, “Service was within the time required by Florida law, and Respondent was afforded an opportunity to be heard.”

Mr. Traughber argues that he “made every reasonable effort, under the circumstances,” to notify the court of his inability to speak with counsel or be present at the hearing due to insufficient notice. He called the trial judge’s chambers at 10:00 p.m. on the night before the final hearing and at 7:30 a.m. on the day of the final hearing. He left voice messages that he was unable to attend the hearing due to the late notice and would need a continuance. The trial judge’s judicial assistant returned Mr. Traughber’s calls at 8:25 a.m. on the morning of the hearing. He asked her to advise the trial court that he had only twelve hours’ notice of the hearing and could not attend.

Mrs. Traughber contends that we should affirm because Mr. Traughber failed to (1) appear at the hearing and ask for a continuance, (2) move for rehearing under Florida Rule of Civil Procedure 1.530, or (3) move to modify or dismiss the final injunction pursuant to section 741.30(6)(c), Florida Statutes (2004). Even though Mr. Traughber did not take any of those actions, he is still entitled to appeal the sufficiency of the notice he received. See Fla. R. Civ. P. 1.530(c).

The crux of Mrs. Traughber’s position is that the short notice was reasonable in light of the fact that service was delayed by court and law enforcement efforts to transfer the temporary injunction from Hillsborough County to Pinellas County. We cannot accept this argument. Mr. Traughber was entitled to reasonable notice of the final hearing. The record before us reflects that he was not afforded this essential right.

In Conner v. Conner, 800 So.2d 724, 725 (Fla. 2d DCA 2001), we held that the wife’s less-than-ten-day notice of a dissolution modification hearing was insufficient where the husband lived out of state. In Reynolds v. Reynolds, 187 So.2d 372, 373 (Fla. 2d DCA 1966), we held that twenty-four hours’ notice of a contempt hearing was insufficient where the trial court found the wife guilty and modified a final dissolution decree when the wife failed to appear. And, in J.B. v. Department of Children and Family Services, 768 So.2d 1060 (Fla.2000), a father received only twenty-four hours’ notice of an advisory hearing on termination of parental rights. We held that was insufficient notice as a matter of law where, as a result of the father’s failure to appear, the trial court entered consent to termination on his behalf. Id. at 1067 n. 4. Although the relevant statute in J.B. required a hearing “as soon as possible after all parties have been served,” there was no emergency or potential danger to the children justifying a hearing on one day’s notice. Id. at 1066. See also City of Boca Raton v. Boca Raton Airport Auth., 768 So.2d 1191, 1192-98 (Fla. 4th DCA 2000) (reversing injunction order where petitioner failed to demonstrate how short delay in hearing would have caused irreparable injury).

The record before us reveals no emergency or potential danger to the wife or minor children justifying a final hearing on only twelve hours’ notice to Mr. Traugh-ber. Importantly, a temporary domestic violence injunction was already in effect against Mr. Traughber. By its own terms, the temporary injunction could be continued in force or extended pending a final hearing. See also § 741.30(5)(c). Thus, an appropriate mechanism was in place to protect Mrs. Traughber and her children while accommodating Mr. Traughber’s entitlement to reasonable notice of a final hearing.

We reverse the final domestic violence injunction and remand for a new final hearing with reasonable notice to Mr. Traughber. Pending further action by the trial court, we reinstate and continue in force the temporary injunction against Mr. Traughber. See Cisneros v. Cisneros, 782 So.2d 547, 548 (Fla. 3d DCA 2001).

Reversed and remanded with instructions.

FULMER, C.J., and BAIRD, W. DOUGLAS, Associate Judge, Concur.


text:
    In re ESTATE OF Irving FASKOWITZ, a/k/a Irving Fisk. Moshe Faskowitz, Appellant, v. Department of Legal Affairs, and Mary L. Bengtson, f/k/a Mary L. Young, Personal Representative of the Estate Irving Faskowitz, a/k/a Irving Fisk, Appellees.
    No. 2D04-1311.
    District Court of Appeal of Florida, Second District.
    March 31, 2006.

      Holly R. Skolnick and Charles M. Aus-lander of Greenberg Traurig, P.A., Miami, and Bert J. Harris, III, of Swaine, Harris & Sheehan, Lake Placid, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, for Appellee State of Florida, Department of Legal Affairs.
    Clifford M. Abies, III, of Abies & Riten-our, P.A., Sebring, for Appellee Mary L. Bengtson f/k/a Mary L. Young, Personal Representative of the Estate of Irving Faskowitz a/k/a Irving Fisk.
   PER CURIAM.

Moshe Faskowitz appeals that portion of a probate order determining heirs and directing that one-half of the property of the Estate of Irving Faskowitz, a/k/a Irving Fisk, was to be deposited with the clerk of court. The order indicated that the ruling was pursuant to section 733.816, Florida Statutes (1999), which governs the disposition of unclaimed property held by personal representatives. We reverse the order in part and remand for further proceedings.

At the time of his death, Irving Faskow-itz had a will, devising all his property to his wife. Unfortunately, Irving’s wife predeceased him, and his will did not name an alternate beneficiary. The probate court appointed a personal representative for Irving’s estate. A petition for determination of heirs was filed by Moshe Faskowitz in which he asserted that he and his sisters, Miriam Greenfield, Brandy Tuchman,, and Michel Treister, were Irving’s intestate heirs entitled to receive his intestate property after the lapse of the devise to Irving’s wife.

The probate court entered a written order, which found that Irving left no lineal descendants. It determined that Moshe Faskowitz and his sisters were the paternal kindred of the deceased. The court found, however, that “[n]o evidence has been presented by the alleged paternal heirs that no maternal kindred of the Deceased exist.” The probate court directed that one-half of the property of the estate be distributed to Mr. Faskowitz and his sisters. The remaining one-half of the property was to be held by the clerk of court in accordance with section 733.816 for the unknown maternal kindred. Pursuant to the statute, this property eventually will escheat to the State if no maternal heirs are located. The personal representative was directed by the probate court to take all necessary steps to close the estate expeditiously.

Mr. Faskowitz contests only the portion of the order directing that one-half of the property of the estate be held by the clerk in accordance with section 733.816. Mr. Faskowitz argues that no property of the estate should escheat to the State when it has been established that there are surviving heirs of the deceased. Further, he asserts that evidence presented by the genealogist retained by the personal representative established that there were no surviving maternal heirs.

The administration of the estate commenced with the filing of the petition for administration on July 29,1999. However, it was not until January 2002 that the personal representative was authorized by the probate court to retain a genealogist to perform a diligent search for Irving’s kindred. The probate court entered an order on October 21, 2002, authorizing the personal representative to forward an additional retainer to the genealogist “with instructions to initiate research concerning the decedent’s maternal kindred.”

In a report dated May 21, 2003, the genealogist summarized her search for the maternal kindred. The report identifies no surviving maternal kindred. Although the genealogist had discovered the maiden name of Annie, Irving’s mother, she had been unable to complete her search. The genealogist required additional time to obtain records which she hoped would contain accurate and verifiable information about Annie and her family. The personal representative also supplied documentation to the court in October 2003, which demonstrated that she had sought records from the federal government concerning Annie which had not been forthcoming.

The trial was conducted on December 2, 2003, and the probate court entered its order determining heirs on January 14, 2004. In the order, the probate court stated that the genealogist supplied the court with reports of her diligent search and noted that she testified at the trial. However, the probate court did not make a finding in the order that the personal representative had completed a diligent search for Irving’s maternal heirs.

We agree with Mr. Faskowitz that the trial court erred in concluding that one-half of the estate is unclaimed property that may be subjected to escheat to the State. The trial court’s ruling on this point is inconsistent with the provisions of section 732.103, Florida Statutes (1999), concerning the descent of an intestate estate. Under section 732.103(4)(c), “[i]f there is no paternal kindred or if there is no maternal kindred, the estate shall go to such of the kindred as shall survive.” Pursuant to this provision, in the absence of any maternal kindred of Irving Faskowitz, his paternal kindred — namely, the appellant and his sisters — are entitled to inherit the whole estate. The State does not have a right to half of an intestate estate when there are lawful heirs under section 732.103. The two specific provisions of the Florida Probate Code governing the es-cheat of estate property — sections 732.107 and 733.816 — do not in any way displace the rule of descent set forth in section 732.103(4)(c).

Section 732.107(1) simply provides that “[w]hen a person leaving an estate dies without being survived by any person entitled to it, the property shall escheat to the state.” Here, the paternal kindred have established their status as lawful heirs under section 732.103(4)(e). Accordingly, the predicate for the operation of 732.107(1)— that “a person leaving an estate [has] die[d] without being survived by any person entitled to it” — does not exist in this case.

Similarly, the provisions of section 733.816 concerning the disposition of unclaimed property held by personal representatives do not defeat the rights the paternal kindred here have under section 732.103(4)(c). Section 733.816(1) addresses circumstances where “unclaimed property in the hands of a personal representative ... cannot be distributed or paid ... because of inability to find [the lawful owner] or because no lawful owner is known.” Neither of these circumstances have been established here. Unless it is shown that there are maternal kindred entitled to inherit from the estate, the paternal kindred are the “lawful ownerfs]” of the entire estate. Contrary to the trial court’s ruling, there is nothing in the statutory scheme suggesting that once claimants have established their status as lawful heirs the State is entitled to escheat of a portion of the estate simply because there is uncertainty concerning whether there may be other lawful heirs.

Nothing in the case law cited by the appellees undermines this straightforward interpretation of the relevant statutory provisions. The appellees rely primarily on two cases to support the trial court’s ruling. The appellees cite In re Estate of Tim, 180 So.2d 161 (Fla.1965), and In re Estate of Russell, 387 So.2d 487 (Fla. 2d DCA 1980), for the proposition that the paternal heirs had the burden of proving the nonexistence of maternal heirs in order to avoid the operation of the statutory provisions providing for escheat of unclaimed estate property. Neither Estate of Tim nor Estate of Russell supports the position advanced by the appellees.

In Estate of Tim, the issue was whether there were any lawful heirs of the intestate decedent. The court pointed out that “all claimants” to the estate “failed to carry their burden of showing that they, or any of them, are entitled to the decedent’s estate.” 180 So.2d at 163. Addressing “[t]he critical point” concerning “the proof required before the estate of a decedent may be escheated,” 180 So.2d at 162, the court observed:

“While there is a presumption that there is somewhere some one next of kin to every decedent, there is no presumption that any particular persons are his next of kin, or that his next of kin are ascertainable. The state’s burden is met when, in addition to proof of the actual death, nonmarriage, and intestacy of the propositus, it has been shown that after diligent search and inquiry the state has been unable to find that he left ascertainable heirs. Any other rule would render an escheat impossible by making the presumption that there are next of kin to every intent an irrefragable presumption. When the state has shown these things it has established prima facie the escheat of the property. The burden is then upon a particular claimant to prove by the ordinary rules and competent evidence that he is in fact the next of kin. This is not shifting the burden of proof, but is a mere progress of proof directed to an independent issue, the affirmative of which is in the nature of the case at all times upon the claimant of the property. He must prove his title.’ (Emphasis added.)

Id. at 163 (quoting In re Miller’s Estate, 87 Wash. 64, 151 P. 105 (1915)).

Under this reasoning, when property is subject to intestate succession, es-cheat is available only where it has been shown “that after diligent search and inquiry the State has been unable to find that [the decedent] left ascertainable heirs.” This places the burden on the State of establishing that there are no lawful heirs. Here, such a showing has not been made. On the contrary, the paternal heirs have established their undisputed status as lawful heirs. Estate of Tim thus provides no support for the ap-pellees’ contention — and the trial court’s ruling — that the paternal heirs had the burden of proving the nonexistence of maternal heirs. Indeed, Estate of Tim supports the appellant’s position.

Estate of Russell addressed the question of whether certain property was subject to the provision of section 732.101(1), Florida Statutes (1977), that “any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs” by intestate succession. The court held that “[a]n ineffective disposition” under the statute “is one which is legally ineffective rather than one where a specified beneficiary under the will cannot be found.” 387 So.2d at 489. The holding in Estate of Russell thus concerned a question of statutory interpretation that is not relevant to this case. Here, it is undisputed that the entire estate is subject to intestate succession because it was “not effectively disposed of by will.” The provision of section 732.101(1), Florida Statutes (1999), was applicable because Irving Faskowitz’s will left all his property to his wife, who predeceased him, and the will did not name an alternate beneficiary. See § 732.603(2). The principle articulated in Estate of Russell concerning property that is subject to escheat because it is not subject to intestate succession has no application to property that is unquestionably subject to intestate succession.

Since there is no basis for escheat of property where lawful heirs have established their status under section 732.103, we hold that the trial court erred in determining that one-half of the estate is subject to the provisions of section 733.816. We reverse the portion of the trial court’s order providing for disposition in accordance with section 733.816. We affirm the portion of the order directing that one-half of the estate be distributed to the paternal heirs.

Consistent with the personal representative’s duty to “distribute the estate of the decedent in accordance with ... [the Florida Probate Code],” our disposition of this case is without prejudice to further proceedings to determine whether maternal heirs exist. § 733.602(1). In the absence of maternal heirs, the remaining one-half of the estate must be distributed to the paternal heirs.

Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.

FULMER, C.J., and CANADY, J., Concur.

SALCINES, J., Concurs in result only.

      . Section 732.107(1) was amended by chapters 2001-36, § 32, and 2001-226, § 17, Laws of Florida. The amended version of section 732.107(1) provides: “When a person dies leaving an estate without being survived by any person entitled to a part of it, that part shall escheat to the state.” The resolution of this case depends on the statutory provisions effective when the decedent died. See May v. Illinois Nat’l Ins. Co., 771 So.2d 1143, 1150 n. 7 (Fla.2000); Estate of Sage v. Sage, 515 So.2d 1324, 1327 (Fla. 2d DCA 1987). We express no opinion concerning whether the amended version of the statute would require an analysis different from the one we have adopted.


text:
    Francisco CARNERO and Juana Carnero, individually and as Mother and Natural Guardian of Gisela Carnero and Clarita Carnero, Minors, Appellants, v. NATIONAL HOME MORTGAGE CORPORATION, and Ricardo Carnero, et al., Appellees.
    No. 3D05-2112.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    Jorge Rodriguez-Chomat & Associates, P.A., and Jorge Rodriguez-Chomat, Miami, for appellants.
    Eisinger, Brown, Lewis & Frankel, P.A., and Jed L. Frankel, Hollywood, for appel-lees.
    Before LEVY, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Juana Carnero, individually and on behalf of her daughters, appeals a final order dismissing her second amended declaratory complaint for lack of standing. The complaint had sought a declaration that the home in which she and her daughters currently reside legally still belongs to her incapacitated husband, Francisco Carnero, despite quit claim deeds which reflect that her stepson, Ricardo Carnero, is the owner of the property.

On a cross-appeal, Ricardo Carnero appeals the order vacating a prior summary judgment entered in his favor on the ownership issue. Ricardo Carnero asserts, and we agree, that the final summary judgment entered in his favor should not have been set aside pursuant to Florida Rule of Civil Procedure 1.540(b) where the motion seeking relief under this rule was unsworn as to the claim of excusable neglect and there was no sworn evidence of excusable negligence otherwise adduced at the hearing below. Because we conclude that the issue raised on the cross-appeal is completely dispositive and renders the main appeal moot, we do not address the main appeal.

The trial court had entered a final summary judgment in favor of Ricardo Carne-ro on the issue of the subject property’s ownership. Juana Carnero never appealed this final judgment. Rather, she filed an emergency unsworn motion for the court to set aside the final summary judgment pursuant to Rule 1.540(b) on the grounds that the “legal issue raised in this motion was inadvertently not raised in the Complaint and memorandums of law filed by plaintiffs previous attorney or it was not raised due to excusable error.” The motion also sought leave to amend her pleadings. Moreover, no sworn evidence was introduced at the hearing below in support of the motion. The trial court granted the motion to set aside the final summary judgment and granted Juana Carnero leave to amend her pleadings.

We agree with Ricardo Carnero’s argument on cross-appeal that the trial court abused its discretion when it set aside the final summary judgment in his favor. The motion was unsworn as it related to the excusable neglect claim and therefore was insufficient as a matter of law. See Eden Park Mgmt., Inc. v. Zagorski, 821 So.2d 1263 (Fla. 4th DCA 2002) (trial court abused its discretion in vacating dismissal where motion seeking relief was not sworn testimony offered to establish factual basis for alleged neglect).

We therefore reverse the trial court’s order setting aside the final summary judgment and remand with instruction that it be reinstated. Because the cross-appeal renders the appeal moot, we offer no opinion on the merits of Juana Carnero’s main appeal.

      . The defendants in the underlying case, and appellees here, are Ricardo Carnero, National Home Mortgage Corporation, Miriam Ruiz, Victor J. Camero, and Gloria C. Morales. These parties will be collectively referred to as "Ricardo Camero” or "appellees.”


text:
    MERIN HUNTER CODMAN, INC., Appellant, v. WACKENHUT CORRECTIONS CORPORATION, Appellee.
    No. 4D05-3337.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellant.
    Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A. and Sidney A. Stubbs and Roberto M. Vargas of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Merin Hunter Codman, Inc., a real estate broker, sued Wackenhut Corrections Corporation (WCC) for breach of contract and breach of implied covenant of good faith, seeking a commission pursuant to an exclusive sublease agreement to locate a tenant. The trial court entered final summary judgment in favor of WCC on both counts. We reverse because we find that based on the undisputed facts and the parties’ agreement, Merin Hunter is entitled to its commission.

Merin Hunter and WCC entered into a one-year Exclusive Right to Sublease Agreement (Sublease Agreement) whereby Merin Hunter was to obtain a sublessee for space WCC leased from WCC’s parent company, the Wackenhut Corporation. The term of the Sublease Agreement began October 31, 2002, and could be can-celled at any time beginning April 30, 2003, upon thirty-days written notice. The pertinent provisions of the Sublease Agreement provided that “[i]f at any time during the term of this agreement a surrender or cancellation (including a surrender or cancellation by virtue of landlord exercising any right to recapture or require a surrender or cancellation) of the Sublessor’s lease for the Premises, upon any terms shall be entered into by reason of any efforts during the term of this Agreement,” Merin Hunter would be entitled to “[o]ne full commission ... based upon the outstanding valuation of Sublessor’s remaining Leased obligation as of the date of surrender or cancellation.”

On April 80, 2003, WCC entered into a share purchase agreement with the Wack-enhut Corporation, providing that WCC’s lease would terminate when the share purchase agreement closed. Although the share purchase agreement did not specify a closing date, WCC’s general counsel testified the closing was initially scheduled to occur on July 9, 2003. On June 11, 2003, WCC informed Merin Hunter that the Sublease Agreement would terminate on July 11, 2003. Before the Sublease Agreement ended, WCC entered into an amended share purchase agreement that provided the closing would occur after July 11, 2003. The trial court found WCC did not breach the Sublease Agreement or the implied covenant of good faith by amending the share purchase agreement and refusing to pay a commission because the parties contemplated “such cancellation and avoidance of the commission.”

“ ‘The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.’ ” J.J. Gumberg Co. v. Janis Sews., Inc., 847 So.2d 1048, 1049 (Fla. 4th DCA 2003) (quoting Abbott Lab., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000)). When determining whether WCC breached the Sublease Agreement, we are not bound by the trial court’s interpretation of that document. See Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 631 (Fla. 4th DCA 2000) (“The interpretation of a contract is a question of law and an appellate court is not restricted in its review powers from reaching a construction contrary to that of the trial court.”). We previously held that “ ‘[t]he language used in a contract is the best evidence of the intent and meaning of the parties.’ ” Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. 4th DCA 2002) (quoting Boat Town U.S.A., Inc. v. Mercury Marine Div. of Brunswick Corp., 364 So.2d 15, 17 (Fla. 4th DCA 1978)). Thus, “[w]here words of a contract are clear and definite, they must be understood according to their ordinary meaning.” Institutional & Supermarket Equip., Inc. v. C & S Refrigeration, Inc., 609 So.2d 66, 68 (Fla. 4th DCA 1992).

In applying those established principles to the case before us, we find the Sublease Agreement clear and unambiguous. As such, we are required to construe that document as written. Pursuant to the Sublease Agreement, WCC was obligated to pay Merin Hunter a commission if WCC entered into an agreement during the term of the Sublease Agreement “upon any terms” to cancel its lease. The April 30, 2003 share purchase agreement between WCC and Wackenhut, which was undisputedly entered into during the term of the Sublease Agreement between WCC and Merin Hunter, specifically called for a cancellation of WCC’s lease of the subject property. Accordingly, Merin Hunter became entitled to a commission when WCC executed the share purchase agreement on April 30, 2003, because that is when WCC “upon any terms ... entered into” a cancellation of the lease.

Having found that WCC breached the contract, we next address the trial court’s determination that WCC did not breach the implied covenant of good faith. This court recognizes that “every contract includes an implied covenant that the parties will perform in good faith.” County of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049, 1050 (Fla.1997). “This covenant is intended to protect ‘the reasonable expectations of the contracting parties in light of their express agreement.’” Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So.2d 1232, 1234 (Fla. 4th DCA 2001) (quoting Barnes v. Burger King Corp., 932 F.Supp. 1420, 1438 (S.D.Fla.1996)). It is clear WCC amended the share purchase agreement to prevent the lease’s termination from becoming effective before the Sublease Agreement ended in order to subvert the commission clause. In light of the foregoing, we similarly hold that WCC breached the implied covenant of good faith. Accordingly, we reverse the final judgment and remand this matter for the trial court to consider the calculation of damages.

Reversed.

STEVENSON, C.J., SHAHOOD and MAY, JJ., concur.

      . Even were we to conclude that cancellation of the lease was only “entered into” on the date that WCC and Wackenhut agreed the share agreement was to close, we still would find WCC liable to pay the commission. The original share purchase agreement entered into between WCC and Wackenhut on April 30, 2003, did not specify a closing date, but WCC's general counsel testified at a deposition that the closing was initially scheduled to occur on July 9, 2003 — both dates falling within the term of the Sublease Agreement.


author: WELLS, J.

text:
    Meital ANCIKOVSKY a/k/a Meital Stavinsky, Appellant, v. Amit ANCIKOVSKY, Appellee.
    No. 3D05-2882.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Rehearing Denied Nov. 22, 2006.

      Meital Ancikovsky a/k/a Meital Stavin-sky, in proper person.
    Sandor F. Genet, North Miami Beach, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   WELLS, J.

Meital Ancikovsky appeals from two non-final orders, one granting her motion to travel to Israel with her infant daughter, the other requiring payment of temporary attorney’s fees and costs from an account held in her name. As to the first, Meital claims to have been denied due process when the trial court authorized a second weekly overnight visitation between her estranged husband, Amit, and their infant daughter when ruling on her motion for permission to take the minor child to Israel. As to the second, she claims that the trial court erred in ordering her to pay temporary attorney’s fees and costs from her assets without ascertaining their reasonableness. We find no merit in these arguments and affirm.

The motion for permission to travel to Israel with the minor child is the third such motion filed in this matter allegedly to accommodate the mother’s employment as an attorney at the Greenberg Traurig law firm. The second of these motions resulted in a stipulated order detailing the conditions under which the child could travel to Israel; spelling out make-up visitation with the father following the child’s return; and ordering an evaluation for the purpose of expanding the father’s overnight visitation.

After mother and child returned from Israel, the father moved to compel compliance with the stipulated order attaching copies of correspondence between the child’s guardian ad litem and the mother in which the guardian attempted, apparently in vain, to secure the agreed upon visitation and to obtain agreement on expanded overnight visitation. Shortly after this motion was filed, the mother filed her third motion for permission to take the minor child to Israel. The father responded, in part, claiming that although the mother had stipulated to make-up visitation and to consideration of expanded overnight visitation to obtain permission to travel to Israel the last time, she had steadfastly refused to cooperate with either. He also claimed that breastfeeding, the mother’s only excuse for limiting his overnight visitation, was no longer a valid justification as to this now one-year-old child:

To the Father’s knowledge, the Mother’s only excuse to the imposition of obstacles in the implementation of the overnights was that [the child] is still breastfeeding and this “extended” period of time-sharing with the Father would have an adverse effect on [the child’s] health. The Father has consulted, in person, in the presence of the Mother with Dr[.] V. Salmas ([the child’s] pediatrician)- Dr[.] Salinas also has given the Father in writing (in the presence of the Mother) the names of two formula based supplements (ISO-MIL and ENFANMIL) that could be used to feed [the child] at these overnights (since the Mother continues to refuse to pump breast-milk).... It should be noted that ... the Father assumed per the Mother’s numerous representations, to him, to the GAL and on various occasions — to the Court— that [the child] was being fed exclusively with breast-milk plus additional natural solids and liquids. However, the Father, learned that the Mother was supplementing her breast-milk with a formula named ISOMIL.... The Father has fed [the child] ENFAMIL on his overnight visits and intends to continue to do so.

This response necessarily put the mother on notice that the father intended to address additional overnight visitation, a subject consistently raised in conjunction with the mother’s travel requests, at the time her most recent travel request was considered by the lower court. Consideration of this issue, raised in the pleadings, therefore resulted in no due process violation. See Instituto Patriotico Y Docente San Carlos, Inc. v. Cuban Am. Nat'l Found., 667 So.2d 490, 492 (Fla. 3d DCA 1996) (noting that “a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand”).

We also find no error in the temporary fee order. The mother has not demonstrated either that the fund from which the fees are to be paid is her separate, as opposed to a marital, asset or that the amounts sought by the attorneys and the accountant were disputed. The record presented here also does not show that the trial court abused its discretion or otherwise erred in entering the temporary fee award.

Accordingly, both orders are affirmed.

      . The parties were married in Tel-Aviv, their parents live there, and the mother is fluent in Hebrew.


author: POLEN, J.

text:
    R.M. STARK & CO., INC., and Gary L. Stark, Appellants, v. Jeffrey NODDLE, Successor Trustee of the Richard Maling Trust U/A Dated 9/3/86, Appellee.
    No. 4D05-4107.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Rehearing Denied Dec. 1, 2006.

      William Zeena, Jr., and Alan M. Herman of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Miami, for appellants.
    Delmer C. Gowing III of Delmer C. Gowing III, P.A., Ocean Ridge, for appel-lee.
   POLEN, J.

Appellants, R.M. Stark and Gary Stark, appeal a final order in favor of Appellee, Jeffrey Noddle. The order confirmed an earlier arbitration decision, concluding that Appellants were not the prevailing party in the arbitration and awarding costs to Noddle. Noddle was the trustee for the Mal-ing Trust, which sued Appellants for violation of section 517.301, Florida Statutes, and breach of fiduciary duty. The arbitration resulted in a complete denial of the Maling Trust’s claims and in Appellants being found not liable. However, the arbitration panel did assess costs against Appellants.

Following the arbitration, Appellants filed a petition with the trial court to confirm the arbitration award and to tax attorney’s fees and- costs to the Maling Trust, asserting that they were the prevailing parties pursuant to section 517.211(6), Florida Statutes. However,, upon Noddle’s request, the arbitration panel issued a clarification letter stating that, despite its denial of all of the Maling Trust’s claims, Appellants were not the prevailing party in the arbitration, and denying Appellants’ attorney’s fees. The trial court determined that the clarification letter issued by the arbitration panel was part of the arbitration award and denied Appellants’ request for attorney’s fees. For the following reasons, we find that the trial court did not err in making this determination and affirm.

Appellants argue that the trial court erred in determining that the clarifying letter was part of the arbitration award. We find this argument without merit. “An arbitrator may modify, correct, or clarify an award on application made within twenty days after its delivery.” A-1 Duran Roofing v. Select Contracting, Inc., 865 So.2d 601, 605 (Fla. 4th DCA 2004).

Appellants further argue that because they did not submit the issue of attorney’s fees under Chapter 517 to the arbitration panel, the panel was without authority to deny such fees. Section 682.11, Florida Statutes (1997), provides: “Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award. This provision has been construed to vest jurisdiction for the award of attorney’s fees in the circuit court.” Moser v. Barron Chase Sec., Inc., 788 So.2d 231, 233 (Fla.2001). However, even if the parties do not submit the issue of attorney’s fees to the arbitration panel, in order for the trial court to later award prevailing party fees, the arbitration panel must determine which party was the prevailing party on the particular statutory claim on which the attorney’s fees claim is based. Id. at 234-36.

In this case, the trial court determined that the arbitration panel’s clarifying letter was part of the arbitration award. The trial court concluded, even absent the letter, it would be unable to find that Appellants were the prevailing party, given that costs had been assessed against them. We hold that the trial court was correct in determining that the letter was part of the arbitration award. Although Appellants are correct in arguing that the arbitration panel does not have the authority to award or determine entitlement to attorney’s fees, absent an express waiver from the parties, we find that the arbitration' panel acted within its authority in determining that Appellants were not the prevailing party below. Indeed, in order for the trial court to award attorney’s fees at all, the arbitration panel was required to determine the prevailing party below. See Moser, 783 So.2d at 232; see also A-1 Duran Roofing, Inc., 865 So.2d at 605 (where the arbitrator fails to state the basis for the award, or the record is insufficient to determine the basis upon which the party prevailed on the merits, the proper procedure for the trial court to follow is to remand the matter back to the arbitrator for an explanation of the basis for the recovery). Therefore, though the portion of the arbitration letter which purports to determine entitlement to attorney’s fees may exceed the arbitration panel’s authority, the fact that the panel determined that Appellants were not the prevailing party does not exceed such authority.

Appellants argue that the trial court erred in upholding the arbitration panel’s determination that they were not the prevailing party below, since the Mal-ing Trust’s claims had all been denied. In this case, while the panel denied all of the Maling Trust’s claims against Appellants, it assessed arbitration fees against Appellants, as well as all forum fees and assessments, for a total of $21,650.00. The panel also determined that “the Award of costs in favor of [the Maling Trust] and against [Appellants] was intended to grant relief to [the Maling Trust], as the Panel did believe that [Appellants] were guilty of some misconduct.” The trial court, in its final order, determined:

While it would appear that had this matter been heard by a trial court with findings identical to the arbitration award, sans the award of costs and declaration of the prevailing party, the [Appellants] might be entitled to attorney’s fees pursuant to [§ 517.211(6)]_ As noted in Pan American Bank of Sarasota v. A.D. Hancock and Amanda Jane Hancock, and Lee-Bradley Corp., 3[52] So.2d 912 (Fla.2d. DCA, 1997), costs are not generally awarded against a successful party. Since the arbitration panel awarded costs against the [Appellants] in the arbitration proceeding, following the Pan American Bank of Sarasota logic, costs would not have been assessed against the [Appellants] had the [Appellants] been a successful party.

Based on the fact that Appellants were assessed costs and fees, and on the arbitration panel’s conclusion that Appellants were guilty of some wrongdoing, we find that the trial court was correct in upholding the arbitration panel’s determination that Appellants were not the prevailing parties in the arbitration. See RDC Golf of Fla. I, Inc. v. Apostolicas, 925 So.2d 1082, 1091 (Fla. 5th DCA 2006) (“A high degree of conclusiveness attaches to an arbitration award.”). We affirm the trial court’s denial of Appellants’ motion for attorney’s fees.

STEVENSON, C.J., and STONE, J., concur.

      . Section 517.211(6), Florida Statutes, provides: "In any action brought under this section, including an appeal, the court shall award reasonable attorney's fees to the prevailing party unless the court finds that the award of such fees would be unjust.”