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Friends Matter: Amicus Makes The Difference

The benefit of amicus or friend of the court briefs on appeal is often debated. Do they present another opportunity for the parties to repackage their arguments or are they truly friend of the court briefs that give the appellate court broader insight into the practical effects of its decision? The latter is the aim of amici and the Fourth District's decision in Ober v. Town of Lauderdale-By-the-Sea, 218 So. 3d 952 (Fla. 4th DCA 2017) illustrates when and why they make a difference.

In Ober, the appellate court reconsidered its decision on the application of Florida's lis pendens statute after a motion for rehearing supported by eight amicus briefs. The amici included two cities, three sections of the Florida Bar and several trade groups. Their briefs were impactful.

The issue before the court regarding Florida's lis pendens statute: When does the window close for recording liens—within the statutory 30 days, with the final foreclosure judgment or at the foreclosure sale? The appellate court's initial decision held that liens placed between a final judgment of foreclosure and the judicial sale were enforceable, which meant investors could face new liability from creditors who sat out the foreclosure process but tacked on post-judgment claims. In support of reconsideration, the amici, including the Business Law Section of the Florida Bar, argued the court's decision was a departure from the common practice in the real estate industry.

On reconsideration, the Fourth District changed its initial decision, referencing arguments of amici, and held that Florida's lis pendens statute renders unenforceable all liens placed on a property after a final foreclosure judgment. Under the statute, a notice of lis pendens, which provides public notice of a pending claim, starts the clock for creditors with unrecorded claims to take action or risk having their interests wiped out.

In Florida, the impact of amici at the district court level should not be underestimated. The Florida Supreme Court is a court of limited jurisdiction. As such, Florida's district courts of appeal are often the final step in the appellate process, particularly in civil matters. This means that the majority of appellate decisions, particularly in civil matters, are made at the district court level.

Further, while parties on appeal primarily focus on the effect of the appellate court's decision in their particular case, the appellate court is also focused on the impact of its decision on others and on the broader state of the law. Amici are in a unique position to offer insight on how others, including particular industries, will be impacted by the court's decision. Friends matter, even on appeal.

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