Almost every attorney has experienced a seemingly long wait between a trial court hearing, when arguments or witnesses present the case to a judge, and the actual written order reflecting the judge’s decision. Frequently, this is just a function of impatience and client anxiety dragging out the days. However, there are some circumstances when a truly unreasonable period of time passes waiting for an order. In these unusual circumstances, the passage of time may fade memories of exactly what transpired at the hearing, and the delay may cause unintended consequences for the parties sitting in limbo. In these situations, Florida law provides some backstop and relief to excessive delay. This article discusses below. If you have questions about excessive delay in receiving orders, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

Under well-established Florida law, an excessive delay between a hearing and its order requires reversal, where that delay appears to have created something amiss on the merits or findings. Fla. R. Jud. Admin. 2.215(f) (Duty to Rule within a Reasonable Time); City of Miami v. Tarafa Constr., Inc., 696 So. 2d 1275, 1278 (Fla. 3d DCA 1997) (holding length of time for trial to proceed, combined with long delay between trial and judgment, and confusing provisions of judgment, required reversal for retrial); Polizzi v. Polizzi, 600 So. 2d 490, 491 (Fla. 5th DCA 1992) (3½-month delay required reversal); Carnicella v. Carnicella, 140 So. 3d 697, 699 (Fla. 5th DCA 2014) (six-month delay required reversal, as inconsistencies showed judge forgot or confused issues); Walker v. Walker, 719 So. 2d 977, 978 (Fla. 5th DCA 1998) (9½-month delay required reversal).^[1]

This rule against excessive delay expands upon Florida Rule of Judicial Administration 2.215(f) (formerly 1.050(f) (Duty to Rule Within a Reasonable Time) as a necessary backstop to judicial inactivity and the disorder it causes. Walker at 979. Where a hearing and its order are separated by a long period of time, the order tends to: (i) differ from the hearing’s testimony, arguments, and pronouncements, and (ii) lack a sufficiently articulated or accurate factual basis. Id.

The rule against excessive delay ensures the trial court recalls the arguments, testimony, and demeanor of witnesses and counsels, as well as the dynamics of the hearing, in properly rendering an ultimate order. Id. Thus, excessively delayed orders must be reversed as a violation of due process, and remanded for rehearing and re-presentation of evidence. Tarafa at 1278; Polizzi at 491; Johnson at 185; Carnicella at 699; Walker at 978; Stanfield at 1286; Henin at 1285; Baker at 610; Porter at 89; McKenzie at 49; Falabella at 256; Tunnage at 501.

Additionally, Florida appellate courts have criticized and urged for the abandonment of the practice to have each counsel prepare a proposed judgment before trial and submit it to the court at trial. Polizzi v. Polizzi, 600 So. 2d 490, 491 (Fla. 5th DCA 1992) (reversing). As the Polizzi court stated:

[W]e are moved to criticize and suggest the abandonment of what counsel says is a practice of some judges to have each counsel prepare a proposed judgment before trial and submit it to the court at trial. This practice could create an appearance to lawyers and litigants that they are not being heard fairly at trial. Additionally, experience shows that rarely does evidence come out as planned and that issues are resolved or expanded quite often during trial.

Polizzi at 491. In citing Polizzi to reverse a judgment for excessive delay, the Stanfield court also noted that “the adoption of a proposed order verbatim [is] concerning” and provides “reason to reverse . . . based upon the lengthy delay.” Stanfield v. Marquis, 201 So. 3d 1283, 1286 (Fla. 5th DCA 2016) (reversing for excessive delay); see also Henin at 1285 (discussing that signing of proposed judgment verbatim heightens concerns about the judgment).

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^[1] See also Johnson v. Johnson, 268 So. 3d 183, 185 (Fla. 2d DCA 2018) (excessive delay between hearing and judgment was unreasonable and unacceptable, requiring reversal); Henin v. Henin, 767 So. 2d 1284, 1285 (Fla. 5th DCA 2000) (discussing that signing of proposed judgment verbatim heightens concerns about the judgment); Baker v. Vidoli, 751 So. 2d 608, 610 (Fla. 2d DCA 1999) (delay required reversal); Porter v. Estate of Spates, 693 So. 2d 88, 89 (Fla. 1st DCA 1997) (same); McKenzie v. McKenzie, 672 So. 2d 48, 49 (Fla. 1st DCA 1996) (same); Falabella v. Wilkins, 656 So. 2d 256, 256 (Fla. 5th DCA 1995) (same); Tunnage v. Bostic, 641 So. 2d 499, 501 (Fla. 4th DCA 1994) (same).

If you still have questions about excessive delay in receiving orders, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.