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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

Another Supreme Selection: Judge Ricky Polston

Posted on October 01, 2008
I've come out of my briefwriting shell to note that Governor Crist has just announced his appointment of First District Court of Appeal Judge Ricky Polston to the Florida Supreme Court. This selection fills the vacancy created by the resignation of Justice Bell...

Supreme Selection: Judge Charles Canady

Posted on August 28, 2008
The Governor is currently holding two lists of nominees for the Florida Supreme Court. This morning, just minutes ago, he held a press conference and announced that he has appointed Judge Charles Canady, currently of the Second District Court of Appeal, to the at-large seat made vacant by Justice Cantero's resignation...

Supreme Landing

Posted on August 26, 2008
Today, White & Case announced that Justice Raoul Cantero will be joining the firm's Miami office upon his September resignation from the Florida Supreme Court. Congratulations are in order. You can read the firm's press release here.

Judicial Nominating Omissions?

Posted on August 15, 2008
Today's St. Pete Times includes a story about yesterday's state supreme court nominations. Its headline varies. The printed article carries the following top headline on the front page of the local and state section: "Court list frustrates Crist," with the subheading, "No women or blacks are nominated for the high court...

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Supreme Nominees

Posted on August 14, 2008
The Judicial Nominating Commission for the Florida Supreme Court has forwarded the following lists of names to the Governor. The Governor may appoint one person from each list to the supreme court: For Justice Cantero's (at large) seat: Judge Charles Canady Judge Kevin Emas Edward Guedes Judge Jorge Labarga Judge Vincent Torpy For Justice Bell's (First District) seat: Judge Ricky Polston

Fourth District: Time To Rule!

Posted on August 11, 2008
At what point has an appeal been pending too long without a decision? In this decision from the Fourth District, one year was too long. The district court granted a mandamus petition asking that a circuit court be directed to rule on a county-to-circuit court appeal that had been pending for one year...

Fourth District: Incorporation By Reference

Posted on August 11, 2008
Does referencing a document in a complaint allow a trial court to consider that document for purposes of a motion to dismiss if the document is not actually attached to the complaint as an exhibit? In federal court, the answer is usually yes. In this decision from the Fourth District, the answer was no...

Fourth District: Search and Seizure

Posted on August 11, 2008
Is a police officer who wishes to search a shared residence constitutionally required to secure consent from a physically absent, but nearby, tenant after that officer has already obtained a valid consent from a co-tenant who is on the premises? No, said the Fourth District in this case...

Fourth District: Appealing From Consolidated Cases

Posted on July 29, 2008
Is an order appealable as a final judgment if it completely disposes of one of two cases consolidated "for all matters" in the trial court? The Fourth District assumed so in this decision.

Fourth District: Slips and Falls, and Ethical Calls

Posted on July 29, 2008
This decision from the Fourth District demonstrates the usefulness to a plaintiff of the "mode of operation" negligence theory in a slip and fall case. In short, the theory asserts that a breach of duty lies in how a business chooses to run its operation, ultimately leading to a condition that injures the plaintiff...

Fourth District: Arbitration Stays

Posted on July 29, 2008
In this decision, the Fourth District explained that the Florida Arbitration Code mandates a stay while a motion to compel arbitration is pending but not while an order denying such a motion is on appeal. The appellate court denied the appellant's motion for review of a stay denial order.

Fourth District: Pure Bill of Discovery -- Rare, Not Dead

Posted on July 29, 2008
The chances of obtaining a pure bill of discovery -- that rarely used device that allows discovery of information without the filing of claims in a lawsuit -- seem to improve if the prospective plaintiff is impaired and cannot provide important details on the incident in question...

Fourth District: Disqualification?

Posted on July 29, 2008
Should you have a reasonable fear of impartiality, supporting a trial judge's disqualification, if you are a criminal defendant being represented by an attorney who is campaigning for a circuit judge position and you suspect, or even know, that the judge's spouse has contributed to your attorney's opponent? No, said the Fourth District in this case.

Eleventh Circuit: Pledging Allegiance, Or Not

Posted on July 23, 2008
Pound for pound -- or should I say, page for page -- this is one of the most interesting decisions I have read in a while. Today, in just over 13 pages (with one of them being all caption), the Eleventh Circuit tackled the facial constitutionality of Florida's statute on reciting the Pledge of Allegiance in public schools, kindergarten through 12th grade...

Questions, questions: Nursing Homes & Amendment 7

Posted on July 22, 2008
Does Article X, section 25 of the Florida Constitution, which provides for a right to review health care providers' adverse incident records, apply to nursing homes? In this decision, the Fourth District said no but certified the following to the Florida Supreme Court as a question of great public importance: WHETHER "NURSING HOMES" OR "SKILLED NURSING FACILITIES" FALL WITHIN THE DEFINITION OF "

Fourth District: Payment Bonds

Posted on July 22, 2008
Can a subcontractor on a public project state a claim against a payment bond when the materials at issue were neither delivered to the site nor incorporated into the project but were nevertheless "specially fabricated" for the job? In this decision, the Fourth District said yes.

Fourth District: Spoliation and Workers' Compensation

Posted on July 22, 2008
Spoliation fans may be interested in this case, where the Fourth District held that a special employer for workers' compensation purposes has a statutory duty to preserve evidence. Breach of that duty can support a spoliation claim.

Fourth District: More Arbitration

Posted on July 22, 2008
Can a person who signed an arbitration agreement solely in his capacity as a company's chief executive officer be forced to arbitrate under the agreement when he is sued in his personal capacity? No, said the Fourth District in this case. The court expressly held that while the CEO could enforce the arbitration agreement, arbitration could not be forced upon him.

Fourth District: Arbitration

Posted on July 22, 2008
This arbitration decision from the Fourth District demonstrates how a person can be bound to an unexecuted arbitration agreement. The decision also shows how difficult it is to show that the panel called for by an arbitration agreement will be unconscionably constituted...

First and Fourth Districts: State Sandwich Unconstitutional

Posted on July 22, 2008
In 2006, the legislature repealed Florida Rule of Civil Procedure 3.250, which provided criminal defendants whose only evidence is no more than their own testimony with the first and last closing arguments. The legislature also enacted a statute that provided the state with the first and last closing argument in criminal cases...

Fourth District: Arbitration

Posted on July 22, 2008
In this case, the Fourth District held that an employment contract calling for arbitration of "any controversy or claim arising out of or related to this Agreement, or any breach thereof" required the employee to arbitrate his statutory whistle-blower claim...

JQC Recommends Reprimand For Judge Allen

Posted on July 21, 2008
On Friday, the Judicial Qualifications Commission released its findings, conclusions, and recommendations regarding the ethics charges it previously brought against Judge Allen of the First District. The JQC found Judge Allen guilty of not maintaining high standards of conduct so as to preserve the integrity and independence of the judiciary, not acting in a manner that promotes public

Fourth District: Attorney's Fees, English Style

Posted on July 21, 2008
As this decision from the Fourth District shows, where an agreement provides it is governed by English law, the losing litigant had better be prepared to pay the other side's attorney's fees. Applying English law to a case includes applying the English rule on fees, which requires fee-shifting from the loser to the winner.

Fourth District: Voir Dire

Posted on July 21, 2008
This is an unusual decision, if only in the sense that few jury verdicts are reversed on grounds that a juror should have been stricken for cause during jury selection based on bias. The case involved a slip and fall and the juror at issue admitted to a predisposition toward thinking persons who trip are responsible for being aware of their surroundings and so carry a percentage of fault.

Fourth District: Rule 1.525, Ambiguous Proposals

Posted on July 21, 2008
This offer of judgment case is notable for two reasons. First, the Fourth District held a plaintiff's proposal for settlement to an insurance company invalid because in one portion of the proposal the plaintiff said it would resolve all claims and in another portion the plaintiff said the proposal would resolve all raised in the suit...

Fourth District: Absolute Immunity

Posted on July 21, 2008
The trial court in this case dismissed a defamation and tortious interference complaint against employees of The Florida Bar because their positions as bar employees gave them absolute immunity for statements made during disciplinary proceedings. The Fourth District affirmed.

Fourth District: Construction

Posted on July 21, 2008
Construction fans should be very interested in this brief decision from the Fourth District. The court held that chapter 558, which provides a dispute resolution mechanism for construction cases, does not apply where the claimant is both property owner and contractor.

Fourth District: Arbitration

Posted on July 21, 2008
Arbitration fans may wish to check out the Fourth District's decision in this case. The court explained the standard for determining when a contract containing an arbitration clause can be found incorporated into another contract.

Fourth District: Privileged Witnesses

Posted on July 21, 2008
A court does not abuse its discretion in excluding testimony when cross-examination on material issues raised on direct examination is curtailed because of a witness?s valid claim of privilege. So held the Fourth District in this case, which involved a defendant who claimed error after the trial court excluded the defendant's son...

Fourth District: Remittitur Reminder

Posted on July 17, 2008
This decision from the Fourth District helps show why Florida's appellate courts may never again have to consider the sufficiency, or insufficiency, of orders granting a remittitur or additur. Simply put, unless the parties agree to the amount of an additur or remittitur, a new trial on damages is to be ordered...

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