Supreme Court of Florida

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No. SC22-1785

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IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE 

PROCEDURE.

March 16, 2023

PER CURIAM.

This matter is before the Court for consideration of proposed 

amendments to the Florida Rules of Appellate Procedure. See Fla. 

R. Gen. Prac. & Jud. Admin. 2.140(b)(1). We have jurisdiction. See

art. V, § 2(a), Fla. Const.

The Florida Bar’s Appellate Court Rules Committee 

(Committee) filed a report proposing amendments to Florida Rules 

of Appellate Procedure 9.190 (Judicial Review of Administrative 

Action), 9.400 (Costs and Attorneys’ Fees), and 9.440 (Attorneys). 

The Committee and the Board of Governors of The Florida Bar 

unanimously approved the proposed amendments. The Committee 

published the proposed amendments for comment prior to filing 

them with the Court, and no comments were received.
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Having considered the proposed amendments, the Court 

hereby amends rules 9.190, 9.400, and 9.440 as proposed by the 

Committee. The more significant amendments are discussed below.

First, rule 9.190(d) (Attorneys’ Fees) is amended by deleting 

stated requirements for the filing of motions for attorneys’ fees in 

administrative appeals and seeking review of orders on such 

motions and replacing those requirements with a reference to the 

requirements articulated in rule 9.400. This change will streamline 

the ruleset and eliminate potential confusion.

Next, rule 9.400(b) (Attorneys’ Fees) is amended to tie the 

deadline to file a motion for attorneys’ fees in a discretionary review 

proceeding to the filing of the parties’ jurisdictional briefs. As 

currently worded, rule 9.400(b) describes different filing deadlines 

depending on whether jurisdictional briefs were filed—a procedure 

rendered obsolete by recent changes to rule 9.120(d) (Briefs on 

Jurisdiction), which now states that jurisdictional briefs must be 

filed in all proceedings seeking discretionary review of a district 

court decision. See In re Amends. to Fla. R. App. P. 9.120 & 9.210, 

307 So. 3d 626, 627 (Fla. 2020).
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Finally, rule 9.440 is amended by revising subdivision (c) 

(Scope of Representation) to state that the form in rule 9.900(n) 

(Notice of Termination of Limited Appearance) is to be used for a 

notice of termination of limited appearance. This change will add 

clarity and remove an internal inconsistency, as the previous 

reference was to a notice of limited appearance. In addition, 

subdivision (d) (Withdrawal of Attorneys) is revised to conform with 

recent amendments to Florida Rule of General Practice and Judicial 

Administration 2.505 (Attorneys) that allow an attorney to withdraw 

without a court order if the substitution is by another attorney in 

the same firm or agency. See In re Amends. to Fla. R. Jud. Admin.—

2020 Regular-Cycle Report, 310 So. 3d 374, 377 (Fla. 2021).

Accordingly, we amend the Florida Rules of Appellate 

Procedure as reflected in the appendix to this opinion. New 

language is indicated by underscoring; deletions are indicated by 

struck-through type. The amendments to the rule shall become 

effective July 1, 2023, at 12:01 a.m.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, COURIEL, 

GROSSHANS, and FRANCIS, JJ., concur.
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THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER 

THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Appellate Procedure

Hon. Andrew D. Manko, Chair, Appellate Court Rules Committee, 

Tallahassee, Florida, Joshua E. Doyle, Executive Director, The 

Florida Bar, Tallahassee, Florida, and Heather Savage Telfer, Bar 

Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner
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Appendix

RULE 9.190. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

(a) Applicability. Judicial review of administrative action 

shallwill be as in civil cases except as specifically modified by this 

rule. 

(b) Commencement. 

(1) An appeal from final agency action as defined in the 

Administrative Procedure Act, chapter 120, Florida Statutes, 

including immediate final orders entered pursuant tounder section 

120.569(2)(n), Florida Statutes, or other administrative action for 

which judicial review is provided by general law shallmust be 

commenced in accordance with rule 9.110(c). 

(2) Review of nonfinal agency action under the 

Administrative Procedure Act, including nonfinal action by an 

administrative law judge, and agency orders entered pursuant 

tounder section 120.60(6), Florida Statutes, shallmust be 

commenced by filing a petition for review in accordance with rules 

9.100(b) and (c). 

(3) Review of quasi-judicial decisions of any 

administrative body, agency, board, or commission not subject to 

the Administrative Procedure Act shallmust be commenced by filing 

a petition for certiorari in accordance with rules 9.100(b) and (c), 

unless judicial review by appeal is provided by general law. 

(c) The Record. 

(1) Generally. As further described in this rule, the 

record shallmust include only materials furnished to and reviewed 

by the lower tribunal in advance of the administrative action to be 

reviewed by the court. 

(2) Review of Final Action Pursuant toUnder the 

Administrative Procedure Act. 
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(A) Proceedings Involving Disputed Issues of 

Material Fact. In an appeal from any proceeding conducted 

pursuant tounder sections 120.569 and 120.57(1), Florida Statutes, 

the record shallwill consist of all notices, pleadings, motions, and 

intermediate rulings; evidence admitted; those matters officially 

recognized; proffers of proof and objections and rulings thereon; 

proposed findings and exceptions; any decision, opinion, order, or 

report by the presiding officer; all staff memoranda or data 

submitted to the presiding officer during the hearing or prior 

tobefore its disposition, after notice of submission to all parties, 

except communications by advisory staff as permitted under section 

120.66(1), Florida Statutes, if such communications are public 

records; all matters placed on the record after an ex parte 

communication; and the official transcript. 

(B) Proceedings Not Involving Disputed Issues of 

Material Fact. In an appeal from any proceeding pursuant tounder

sections 120.569 and 120.57(2), Florida Statutes, the record 

shallwill consist of the notice and summary of grounds; evidence 

received; all written statements submitted; any decisions overruling 

objections; all matters placed on the record after an ex parte 

communication; the official transcript; and any decision, opinion, 

order, or report by the presiding officer. 

(C) Declaratory Statements. In an appeal from any 

proceeding pursuant tounder section 120.565, Florida Statutes, the 

record shallwill consist of the petition seeking a declaratory 

statement and any pleadings filed with the agency; all notices 

relating to the petition published in the Florida Administrative 

Register; the declaratory statement issued by the agency or the 

agency’s denial of the petition; and all matters listed in subdivision 

(c)(2)(A) or (c)(2)(B) of this rule, whichever is appropriate, if a 

hearing is held on the declaratory statement petition. 

(D) Summary Hearings. In an appeal from any 

proceeding pursuant tounder section 120.574, Florida Statutes, the 

record shallwill consist of all notices, pleadings, motions, and 

intermediate rulings; evidence received; a statement of matters 

officially recognized; proffers of proof and objections and rulings 
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thereon; matters placed on the record after an ex parte 

communication; the written decision of the administrative law judge 

presiding at the final hearing; and the official transcript of the final 

hearing. 

(E) Challenges to Rules. 

(i) In an appeal from any proceeding 

conducted pursuant tounder section 120.56, Florida Statutes, the 

record shallwill consist of all notices, pleadings, motions, and 

intermediate rulings; evidence admitted; those matters officially 

recognized; proffers of proof and objections and rulings thereon; 

proposed findings and exceptions; any decision, opinion, order, or 

report by the presiding officer; all staff memoranda or data 

submitted to the presiding officer during the hearing or prior 

tobefore its disposition, after notice of submission to all parties, 

except communications by advisory staff as permitted under section 

120.66(1), Florida Statutes, if such communications are public 

records; all matters placed on the record after an ex parte 

communication; and the official transcript. 

(ii) In an appeal from a rule adoption 

pursuant tounder sections 120.54 or 120.68(9), Florida Statutes, in 

which the sole issue presented by the petition is the 

constitutionality of a rule and there are no disputed issues of fact, 

the record shallwill consist only of those documents from the 

rulemaking record compiled by the agency that materially address 

the constitutional issue. The agency’s rulemaking record consists of 

all notices given for the proposed rule; any statement of estimated 

regulatory costs for the rule; a written summary of hearings on the 

proposed rule; the written comments and responses to written 

comments as required by sections 120.54 and 120.541, Florida 

Statutes; all notices and findings made pursuant tounder section 

120.54(4), Florida Statutes; all materials filed by the agency with 

the Administrative Procedures Committee pursuant tounder section 

120.54(3), Florida Statutes; all materials filed with the Department 

of State pursuant tounder section 120.54(3), Florida Statutes; and 

all written inquiries from standing committees of the legislature 

concerning the rule. 
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(F) Immediate Final Orders. In an appeal from an 

immediate final order entered pursuant tounder section 

120.569(2)(n), Florida Statutes, the record shallmust be compiled in 

an appendix pursuant to rule 9.220 and served with the briefs. 

(3) [NO CHANGE]

(4) Review of Administrative Action Not Subject to the 

Administrative Procedure Act. In proceedings seeking review of 

administrative action not governed by the Administrative Procedure 

Act, the clerk of the lower tribunal shallis not be required to prepare 

a record or record index. The petitioner or the appellant shallmust

submit an appendix in accordance with rule 9.220. Supplemental 

appendices may be submitted by any party. Appendices maymust

not contain any matter not made part of the record in the lower 

tribunal. 

(5) Videotaped Testimony. In any circumstance in 

which hearing testimony is preserved through the use of videotape 

rather than through an official transcript, the testimony from the 

videotape shallmust be transcribed and the transcript shallmust be 

made a part of the record before the record is transmitted to the 

court. 

(6) [NO CHANGE]

(d) Attorneys’ Fees.

(1) Attorneys’ Fees. A motion for attorneys’ fees may be 

served not later than the time for service of the reply brief and shall 

state the grounds on which the recovery is sought, citing all 

pertinent statutesmust be served under rule 9.400(b).

(2) [NO CHANGE]

(3) Review. Review of orders entered by the lower 

tribunal or the administrative law judge under this rule shall be by 

motion filed in the court within 30 days of rendition of the orderwill 

be conducted under rule 9.400(c). Objections to reports of special 
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magistrates shallmust be filed with the court within 30 days after 

the special magistrate’s report is filed with the court.

(e) Stays Pending Review. 

(1) Effect of Initiating Review. The filing of a notice of 

administrative appeal or a petition seeking review of administrative 

action shallwill not operate as a stay, except that such filing 

shallwill give rise to an automatic stay as provided inunder rule 

9.310(b)(2) or chapter 120, Florida Statutes, or when timely review 

is sought of an award by an administrative law judge on a claim for 

birth-related neurological injuries. 

(2) Application for Stay Under the Administrative 

Procedure Act. 

(A) A party seeking to stay administrative action 

may file a motion either with the lower tribunal or, for good cause 

shown, with the court in which the notice or petition has been filed. 

The filing of the motion shallwill not operate as a stay. The lower 

tribunal or court may grant a stay upon appropriate terms. Review 

of orders entered by lower tribunals shallwill be by the court on 

motion. 

(B) [NO CHANGE]

(C) When an agency has suspended or revoked a 

license other than on an emergency basis, a licensee may file with 

the court a motion for stay on an expedited basis. The agency may 

file a response within 10 days of the filing of the motion, or within a 

shorter time period set by the court. Unless the agency files a timely 

response demonstrating that a stay would constitute a probable 

danger to the health, safety, or welfare of the state, the court 

shallmust grant the motion and issue a stay. 

(D) When an order suspending or revoking a 

license has been stayed pursuant tounder subdivision (e)(2)(C), an 

agency may apply to the court for dissolution or modification of the 

stay on grounds that subsequently acquired information 

demonstrates that failure to dissolve or modify the stay would 
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constitute a probable danger to the public health, safety, or welfare 

of the state. 

(3) Application for Stay or Supersedeas of Other 

Administrative Action. A party seeking to stay administrative action, 

not governed by the Administrative Procedure Act, shallmust file a 

motion in the lower tribunal, which shall havehas continuing 

jurisdiction, in its discretion, to grant, modify, or deny such relief. A 

stay pending review may be conditioned on the posting of a good 

and sufficient bond, other conditions, or both. Review of orders 

entered by lower tribunals shallwill be by the court on motion. 

(4) Duration. A stay entered by a lower tribunal or a 

court shallwill remain in effect during the pendency of all review 

proceedings in Florida courts until a mandate issues, unless 

otherwise modified or vacated.

Committee Notes

[NO CHANGE]

RULE 9.400. COSTS AND ATTORNEYS’ FEES

(a) Costs. Costs shallwill be taxed in favor of the prevailing 

party unless the court orders otherwise. Taxable costs shall

include:

(1) – (4) [NO CHANGE]

Costs shallwill be taxed by the lower tribunal on a motion served no 

later than 45 days after rendition of the court’s order. If an order is 

entered either staying the issuance of or recalling a mandate, the 

lower tribunal is prohibited from taking any further action on costs 

pending the issuance of a mandate or further order of the court.

(b) Attorneys’ Fees. With the exception of motions filed 

pursuant tounder rule 9.410(b), a motion for attorneys’ fees 

shallmust state the grounds on which recovery is sought and 

shallmust be served not later than:
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(1) [NO CHANGE]

(2) in original proceedings, the time for service of the 

petitioner’s reply to the response to the petition; or

(3) in discretionary review proceedings commenced 

under rule 9.030(a)(2)(A) in which jurisdictional briefs are 

permitted, the time for serving the respondent’s brief on 

jurisdiction, or if jurisdiction is accepted, the time for serving the 

reply brief; or

(4) in discretionary review proceedings in which 

jurisdiction is invoked under rule 9.030(a)(2)(A)(v), not later than 5 

days after the filing of the notice, or if jurisdiction is accepted, the 

time for serving the reply brief.

The assessment of attorneys’ fees may be remanded to the lower 

tribunal. If attorneys’ fees are assessed by the court, the lower 

tribunal may enforce payment.

(c) Review. Review of orders rendered by the lower tribunal 

under this rule shallwill be by motion filed in the court within 30 

days of rendition.

Committee Notes

[NO CHANGE]

RULE 9.440 ATTORNEYS

(a) Foreign Attorneys. An attorney who is an active member 

in good standing of the bar of another state may be permitted to 

appear in a proceeding uponin compliance with Florida Rule of 

General Practice and Judicial Administration 2.510.

(b) Limiting Appearance. An attorney of record for a party 

in an appeal or original proceeding governed by these rules shallwill

be the attorney of record throughout the same appeal or original 

proceeding unless at the time of appearance the attorney files a 

notice specifically limiting the attorney’s appearance only to a 
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particular matter or portion of the proceeding in which the attorney 

appears.

(c) Scope of Representation. If an attorney appears for a 

particular limited matter or portion of a proceeding, as provided by 

this rule, that attorney shallwill be deemed “of record” for only that 

particular matter or portion of the proceeding. The notice of limited 

appearance shall be substantially in the form prescribed by rule 

9.900(n). If the party designates e-mail address(es) for service on 

and by that party, the party’s e-mail address(es) shallmust also be 

included. At the conclusion of such matter or that portion of the 

proceeding, the attorney’s role terminates without the necessity of 

leave of court upon the attorney filing a notice of completion of 

limited appearance. The notice, which shall be titled “Termination of 

Limited Appearance,” shall of termination of limited appearance 

must be substantially in the form prescribed by rule 9.900(n) and 

must include the names and last known addresses of the person(s) 

represented by the withdrawing attorney.

(d) Withdrawal of Attorneys; Substitution of Attorneys.

(1) UnlessIf an attorney complies with subdivisions (b) 

and (c) of this rule, the attorney may withdraw without leave of 

court. 

(2) If an attorney from the same firm, company, or 

governmental agency has already appeared on behalf of the client or 

is the proposed substitute counsel, withdrawal and substitution 

may be completed by filing a notice under the Florida Rules of 

General Practice and Judicial Administration. A copy of the notice 

must be served on the client and adverse parties.

(3) All other attorneys must first seek leave of court an 

attorney shall not be permitted to withdraw unless the withdrawal 

is approved by the court. The attorney shallmust file a motion for 

that purpose stating the reasons for withdrawal and the client’s 

address. A copy of the motion shallmust be served on the client and 

adverse parties.

Committee Notes
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[NO CHANGE]