The Trial Court rules against you at trial. You want to appeal, but first you want the Trial Court an opportunity to rethink the order. You file a motion to reconsider, rehear, vacate, set aside, or other post-order motion. The calendar is full and the 30-day deadline to give petition or notice of appeal arrives. Unsure of whether your motion tolls the deadline, you file your appeal. What happens to the post-judgment motion? For some time, Rule 9.020 specifically stated that most motions were abandoned on appeal, while others were abandoned under common law abandonment doctrine. Then, Rule 9.020 amended to hold the appeal in abeyance to resolve certain pending motions. Yet, what happens to post-order motions not listed in the amended Rule 9.020? What happens if the parties move forward with appellate briefing rather than awaiting the Trial Court’s motion ruling? This article seeks to clarify the abandonment doctrine after Rule 9.020 amendment. If you have questions about post-judgment motions, appeals, or Rule 9.020, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

The Abandonment Doctrine Under Florida Common Law

Under Florida law, a party waives and abandons a motion for reconsideration if the party thereafter files an appeal and moves forward with appellate briefing rather than waiting for the trial court’s ruling on that motion. In re Forfeiture of $104, 591 in U.S. Currency, 589 So. 2d 283, 284(Fla. 1991) (holding a party abandons previously filed post-judgment motions when that party files a notice of appeal to review that judgment); Rice v. 1989 Ford Bronco; Fla. Tag: HNM 33P; VIN: 1FMCU12T6KUC74759, 609 So. 2d 639, 639–40 (Fla. 2d DCA 1992) (“The abandonment doctrine was not overruled . . . appeal [] constitutes an abandonment of a postjudgment motion”); see also State ex rel. Faircloth v. District Court of Appeal, Third Dist., 187 So. 2d 890, 892 (Fla. 1966)(holding if a party files a motion for rehearing, but moves forward with appeal “instead of pressing for a ruling on the [motion],” this “we hold, amounted to an abandonment of the [motion].”).

This occurs under the abandonment doctrine, a common law doctrine that governs independently from the Florida Rules of Appellate Procedure. Id. The Florida Supreme Court confirmed that this abandonment doctrine “is a long and firmly established one.” In re Forfeiture at 284.

Anything but abandonment would cause chaos, as the Florida Supreme Court cautioned:

They are completely inconsistent remedies and to recognize any rule other than the filing of the notice of appeal amounted to an abandonment of the motion when both were filed by the same litigant would result in utter chaos in the appellate processes.

State ex rel. Faircloth v. District Court of Appeal, Third Dist., 187 So. 2d 890, 891–92 (Fla. 1966) (emphasis added).

The Supreme Court added:

Any other rule would result in complete confusion in the disposition of litigation. . . . Such a rule could result in many instances of needless appellate litigation.

State ex rel. Owens v. Pearson, 156 So. 2d 4, 7 (Fla. 1963) (emphasis added).

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Abandonment Doctrine Case Law

This abandonment doctrine has long been universally observed and enforced. Id.; Yost v. Fiallos ex rel. Tarazona, 64 So. 3d 699, 701 (Fla. 3d DCA 2011) (holding that filing notice of appeal abandoned motion for rehearing or reconsideration, even though appeal later dismissed); Preudhomme v. Bailey, 186 So. 3d 1083, 1083 (Fla. 4th DCA 2016) (same); King v. Blue Cross and Blue Shield of Fla., Inc., 132 So. 3d 1233, 1233 (Fla. 1st DCA 2014) (same); Lopez-Merced v. State, 949 So. 2d 362, 363 (Fla. 5th DCA 2007) (same); Perez v. City of Tampa, 181 So. 2d 571, 572 (Fla. 2d DCA 1966) (same).

For more case law, see also GEICO Gen. Ins. Co. v. Williams, 111 So. 3d 240, 244–46 (Fla. 4th DCA 2013) (same); Fowler v. State, 61 So. 3d 483, 484 (Fla. 5th DCA 2011) (same); Jonsson v. Dickinson, 46 So. 3d 1016, 1017 (Fla. 1st DCA 2010); Carter v. State, 929 So. 2d 1161, 1162 (Fla. 5th DCA 2006) (same); Moore v. State, 789 So. 2d 551, 552 (Fla. 5th DCA 2001) (same); Brumlik v. Catalyst Inc., 463 So. 2d 240, 241 (Fla. 5th DCA 1984) (same); Bianco v. Bianco, 383 So. 2d 1120, 1121–22 (Fla. 4th DCA 1980) (same).

The Abandonment Doctrine Can Still Apply After Rule 9.020 Amendment

Florida Rule of Appellate Procedure 9.020 previously stated that certain listed motions shall be deemed abandoned by filing a notice of appeal. The amended Rule 9.020 now states that a limited number of motions toll rendition of an order and that an appeal shall be held in abeyance until those motions are withdrawn or resolved by order on those motions. Fla. R. App. P. 9.020(h) (2015) cf. (2021). This seems clear, but what about (i) if the parties disregard Rule 9.020 and file appellate briefs instead of pursuing the motion with the Trial Court; (ii) the Appellate Court dismisses the appeal; or (iii) the motion is not specifically listed in Rule 9.020?

1. When Parties Disregard Rule 9.020 Abeyance

As to motions expressly listed in Rule 9.020(h), if a party were to disregard and waive abeyance of appeal and instead fully brief their appeal for appellate ruling, the abandonment doctrine, its rationale, and its policies may still apply. Faircloth at 892 (holding if a party files a motion for rehearing or reconsideration, but moves forward with appeal “instead of pressing for a ruling on the petition for rehearing,” this “we hold, amounted to an abandonment of the petition” to avoid “utter chaos”); Pearson at 7  (abandonment doctrine required to avoid “complete confusion” and “many instances of needless appellate litigation”); see also GEICO at 244–46 (order is not deemed rendered for appeal unless the trial court disposes of the motion first or the moving party abandons the motion by moving forward with appeal); Barner v. Barner, 673 So. 2d 886, 887 (Fla. 4th DCA 1996) (order is not rendered and disposed for appeal until a motion for rehearing is either abandoned by appeal or the trial court rules upon it); Brumlik at 241 (appeal “constitutes a ‘disposition’” required to invoke appellate jurisdiction, and thus “constitutes and abandonment of the motion”); Bianco at 1122 (independent of Rule 9.020(h), moving forward with appeal is withdrawal or abandonment of a motion for rehearing, to create “disposition” resulting in rendition of order for appeal).

2. When the Appellate Court Dismisses the Appeal

This abandonment doctrine applies even if the appeal is later dismissed. Yost at 701 (motion for reconsideration or rehearing abandoned and waived by filing appeal, even though appeal later dismissed).

3. When the Motion Is Not Listed in Rule 9.020

The abandonment doctrine applies to motions for reconsideration regardless of amendment of Florida Rule of Appellate Procedure 9.020(h), which does not address or apply to motions for reconsideration (not recognizing motion for reconsideration as a motion tolling appeal deadline). The Court should grant a petition for writ of certiorari when the trial court grants an abandoned motion for reconsideration after appeal, as such an order departs from the essential requirements of law and causes irreparable harm that cannot be remedied on later appeal. Yost at 700–01.

Other Doctrines Supporting Motion Abandonment Upon Appeal

Lastly, the doctrine against inconsistent positions, quasi-estoppel, and equitable estoppel prohibit a litigant from occupying inconsistent and contradictory positions in the course of litigation. Montero v. Compugraphic Corp., 531 So. 2d 1034, 1036 (Fla. 3d DCA 1988) (“A litigant cannot, in the course of litigation, occupy inconsistent and contradictory positions.”); Rigg v. Vernell, 428 So. 2d 668, 669 (Fla. 3d DCA 1982) (holding against inconsistent positions); Hodkin v. Perry, 88 So. 2d 139, 140 (Fla. 1956) (quasi-estoppel against inconsistent positions); Bailey v. State Farm Mut. Auto. Ins. Co., 789 So. 2d 1181, 1183 (Fla. 4th DCA 2001) (same).

Looking at these common law doctrines together, it appears that post-order motions may still be abandoned once an appeal is pursued. If you have questions about post-judgment motions, appeals, or Rule 9.020, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.