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Appellate Law

Abstract Appeal

Florida law and noteworthy decisions by the 11th U.S. Circuit Court of Appeals based in Atlanta and Florida's appellate courts.
By Matt Conigliaro, Esq.

Post Frequency: 2.9/day

Last Entry: February 21, 2011 at 09:41:37

Fifth District: Negligent Mode of Operation

Posted on April 13, 2009
In negligent personal injury cases, one of the more interesting general theories of liability is the negligent mode of operation theory. It is sometimes discussed as a theory of duty, though in my view it is really a theory of breach, not duty. The negligent mode of operation theory asks whether the defendant should have known that its way of doing business would likely injure the plaintiff...

Questions, questions: Ineffective Assistance in TPR Cases

Posted on April 13, 2009
In this decision, the Fifth District certified the following to the Florida Supreme Court as questions of great public importance: 1. DOES FLORIDA RECOGNIZE A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING FROM A LAWYER'S REPRESENTATION OF A PARENT(S) IN A PROCEEDING FOR THE TERMINATION OF PARENTAL RIGHTS? 2...

Fifth District: Charging Liens

Posted on April 13, 2009
Attorneys who work on a contingency basis should be interested in this decision. The Fifth District examined whether a trial court that had reserved jurisdiction regarding a party's entitlement to, and the amount of, attorney's fees had jurisdiction to address a charging lien filed after the entry of final judgment...

Fifth District: PIP Logs

Posted on April 13, 2009
An insured with PIP benefits assigns those benefits to a medical services provider, which (prior to suit) sends the insurer a demand that it produce a PIP payout sheet or log. A PIP log is a PIP provider's internal document that lists claims against the account, bills that have been paid, deductible amounts, and other information that would allow a medical provider to assess the chances of

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Fifth District: Miltary Garb

Posted on April 13, 2009
This Florida law prohibits non-military people from walking around in military garb or with clothing bearing military insignia. The law does not require the person to intend to mislead anyone into believing he or she is a military member, and the law covers situations where a person wears military insignia as a political statement...

Fifth District: Professional Services Exclusion

Posted on April 13, 2009
A woman visits a podiatrist's office where the podiatrist orders an x-ray of her foot. A technician at the facility is positioning the woman at the machine when she falls and is injured. The doctor has a business liability insurance policy that excludes coverage for personal injury due to rendering or failure to render any professional services or treatments, including x-ray services and

Fifth District: Juror Bias

Posted on April 13, 2009
It is sometimes thought that so long as a prospective juror ultimately agrees he or she can be fair to both sides and follow the law, then the juror can be properly seated over objection despite prior admissions showing bias. This decision from the Fifth District rejects that notion in the context of a prospective juror who first admitted favoring law enforcement but later succumbed to the

Fifth District: Guidance, Please...

Posted on April 13, 2009
The Fifth District continues to implore the state supreme court and the Juvenile and Appellate Rules committees to create a mechanism for addressing ineffective assistance of counsel claims in termination of parental rights cases. The court did so again in this decision.

Judge Pleus: Gadfly Gripe

Posted on April 13, 2009
The Fifth District's majority opinion in this case held that an environmental group had standing to challenge a development's approval as contrary to the local comprehensive land use plan. The decision is interesting for its expansive view of standing in the environmental challenge context...

Fifth District: Depositions

Posted on April 13, 2009
The most impressive aspect of this decision is that the court actually wrote it. The Fifth District denied a certiorari petition to quash an order requiring an out-of-state plaintiff to reappear in Florida for a second deposition and a compulsory medical examination...

Fifth District: The Bomb?

Posted on April 13, 2009
If the state wishes to convict someone for making a false bomb threat, the state must present evidence of the actual threat -- not just that some threat was made. So said the Fifth District in this case.

Fifth District: Settlement Authority

Posted on April 13, 2009
Does an attorney automatically have authority to agree to settle a client's dispute? No. Is there an exception that applies in the event of an "emergency"? Supposedly. Has any Florida appellate court found that exception to be applicable? No, including the Fifth District's decision in this case.

Fifth District: Confrontation Clause

Posted on April 13, 2009
Does the right of confrontation, as explained by the U.S. Supreme Court in Crawford v. Washington, apply in a restitution proceeding? The Fifth District examined that issue in this case and concluded that the answer is no. As a result, the state could rely simply on two affidavits to establish the restitution amount the defendant owed.

Fifth District: Quo Warranto

Posted on April 10, 2009
Long-term incarceration makes folks willing to try anything to obtain post-conviction relief, and when someone stumbles onto something that sounds a tad promising, it can quickly become popular in the prison population and the subject of countless filings...

Fifth District: Corpus Delicti

Posted on April 10, 2009
The Latin phrase corpus delicti, which is usually translated "body of the crime" or even "body of evidence of the crime," still carries a legal meaning in modern jurisprudence. It refers to the evidence necessary to prove a crime was committed, independent of any statement by the accused...

Fifth District: Missing Transcript

Posted on April 10, 2009
Can a new trial be ordered because, through no fault of the parties, the transcript is incomplete? That is what happened in this decision from the Fifth District. Note that the matter was a civil case but involved an injunction for protection.

Fifth District: Jurisdiction

Posted on April 10, 2009
Does the state's announcement of a nolle prosequi in a criminal case end the judiciary's subject matter jurisdiction over matters related to the charge? This decision from the Fifth District answers that question in the affirmative. Attempting to preempt a trial court's suppression order, the state made a nol pros announcement...

Fifth District: Insurance

Posted on April 10, 2009
This decision from the Fifth District shows how an insurer's efforts to avoid a policy based on a supposedly false answer to an application question can be derailed if the question was ambiguous. Courts will read the question in the insured's favor.

Fifth District: Prejudgment Interest

Posted on April 10, 2009
A first-party insurer pays its insured for a loss and becomes subrogated to the insured's breach of contract claim against a third party. Assuming the insurer successfully sues the third party and is entitled to prejudgment interest, should it run from the time the claim was first liquidated or the time the insurer paid its insured? The latter, said the Fifth District in this decision.

Fifth District: The Hazards of Tinted Windows

Posted on April 09, 2009
If your windows are so heavily tinted that the tint might be illegal, can you be pulled over, thereby allowing the police to check your identity and make other safety-based examinations? Yes, if an officer could reasonably suspect the tint is illegal...

Fifth District: Appellate Attorney's Fees

Posted on April 09, 2009
I have seen appellate attorney's fees battles from all angles, including where my own fees were at issue, where I had to contest the reasonableness of someone else's fee request, and where I served as an attorney's fees expert for someone else. What I have not seen is a meaningful body of case law that gives guidance on what appellate courts believe are reasonable appellate attorney's fees...

Fifth District: Public Policy

Posted on April 09, 2009
This decision from the Fifth District reminds us that contractual provisions cannot violate Florida public policy. In this personal injury case, a builder sought to utilize a release that extended to damages caused by intentional acts and building code violations...

Fifth District: Arbitration

Posted on April 09, 2009
If a defendant is sued and conducts merits discovery before moving to compel arbitration, has the defendant waived any right to arbitrate? Yes, said the Fifth District in this decision.

Fifth District: Tax Deed Sales

Posted on April 09, 2009
When the clerk of court sends notice of a tax deed sale to the address listed on the appropriate tax roll, and receipt of the notice is acknowledged in writing by someone at the property, is the clerk required to investigate whether the person signing was a representative of the owner? No, said the Fifth District in this decision.

Certified Conflict: Eminent Domain

Posted on April 09, 2009
Takings fans are most likely to appreciate the conflict certified by the Fifth District in this case. The court disagreed with another district's decision regarding how business damages are calculated where a business relocates following a taking or partial taking...

On Catching Up

Posted on April 09, 2009
Why blog old cases? That is a question many have whenever I return from an absence. Surely old cases are not newsworthy in the ordinary sense of that term. To me, however, this web log is more than a commentary on new and notable decisions -- it is a compilation of events relating to subject areas that, for whatever reason, catch my attention...

Eleventh Circuit: Class Certification

Posted on April 08, 2009
Class certification fans will likely be interested in this decision released yesterday by the Eleventh Circuit. The court reviewed a district court's order certifying a class of T-Mobile sales representatives with wage-related claims against the company...

Appellate Appointments

Posted on April 08, 2009
Governor Crist made numerous judicial appointments in the last several months. Let's start with the supreme picks. After a series of events that saw Fifteenth Circuit Judge Jorge Labarga appointed to the Fourth District and serve there for just one day, the Governor appointed him to the Florida Supreme Court...

Abstract Thanks

Posted on April 08, 2009
A quick word of thanks to the many who contacted me this past week to say welcome back. I appreciate the appreciation.

Equipoise: Back In Blog

Posted on March 31, 2009
Is anyone here? Likely not. There may have been some passers-by recently, but it would take only a glance to see there has been quite an absence around here. When I started this site, there was no one around. That changed, slowly, over time. One by one, folks who enjoyed its content found their way here, and many returned...

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