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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

Fourth District: Loss of Consortium

Posted on July 17, 2008
Can a loss of consortium claim be proved solely through evidence the married couple fought as a result of the tort against the spouse? Yes, said the Fourth District in this decision.

Fourth District: Relinquishment Practice Pointer

Posted on July 17, 2008
Attention, those filing motions in the Fourth District to relinquish jurisdiction and allow the trial court to resolve a rule 1.540 motion. This order explains that the court will ordinarily not grant such motions unless the appellate court is furnished with a copy of the rule 1...

Fourth District: Bailiffs and Jury Questions

Posted on July 17, 2008
If deliberating jurors ask the trial judge a substantive question and the judge directs a bailiff to communicate the answer ex parte, does that constitute reversible error? Yes, and per se reversible error at that. But does it constitute fundamental error, if no one objects? No, said the Fourth District in this case...

Fourth District: False Light

Posted on July 17, 2008
In Florida, the false light tort is the legal equivalent of a work in progress. The last few years have seen the district courts of appeal release a few false light decisions that, by their rather extraordinary facts, have allowed the tort to take shape...

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Fourth District: Spoliation

Posted on July 17, 2008
The notion that a spoliation claim cannot be brought simultaneously with the underlying action (the one allegedly compromised by the spoliation) applies to a statutory spoliation claim under the workers' compensation statutes, the Fourth District explained in this decision...

Fourth District: Sovereign Immunity

Posted on July 17, 2008
Does the $100,000 sovereign immunity cap on claims against the state include attorney's fees? Yes, said the Fourth District in this decision.

Fourth District: Crime-Fraud Exception

Posted on July 17, 2008
Finding the attorney-client privilege waived under the crime-fraud exception without first conducting an evidentiary hearing was grounds for certiorari relief in this decision from the Fourth District.

Fourth District: Insurance Declaratory Judgments

Posted on July 17, 2008
Noninsureds who seek declaratory judgments against insurers without first obtaining a judgment against the insurer's insured may find their claims dismissed, as the Fourth District explained in this case.

Fourth District: Wrongful Conduct, and An Advocacy Tip

Posted on July 14, 2008
This decision is notable in two respects. First, the Fourth District applied the oft-unused and not well developed wrongful conduct rule to hold that the estate of a person who allegedly died from ingesting illegally obtained prescription drugs could not sue a pharmacy that was allegedly negligent in allowing them to be stolen...

Questions, questions: Risk-Utility Test

Posted on July 14, 2008
Products liability fans are surely much interested in this decision from the Fourth District. Addressing a negligence claim against a cigarette manufacturer, the court reached some significant holdings. The court held that there can be no tort claim against a cigarette manufacturer for continuing to manufacture cigarettes after learning of the dangers they present...

Fourth District: Initiatives, Mandamus, and Laches

Posted on July 14, 2008
This decision by the en banc Fourth District is rather interesting. When a group of West Palm Beach citizens disagreed with the city's efforts to relocate some key public buildings, they followed the initiative procedure to propose ordinances to block the relocation...

Fourth District: Ineffective Assistance

Posted on July 14, 2008
In the post-conviction context, whether a trial strategy was reasonable is a matter of law, not a question of fact, as the Fourth District explained in this decision.

Fourth District: Class Certification

Posted on July 14, 2008
Class action fans may wish to check out this decision from the Fourth District, which discussed the procedural requirements applicable to certification orders.

Judge Scriven

Posted on July 11, 2008
Congratulations are in order for U.S. Magistrate Judge Mary Scriven, whom the President nominated yesterday for an Article III district court judgeship for the Middle District of Florida. You can read more about the nomination in this story from the St...

Fourth District: Insurance Settlements

Posted on July 11, 2008
Insurance fans will be interested in this decision, where a divided Fourth District held that the good faith/best interests standard for settlements contained in section 627.4147(1) does not require insurers to consider an insured's best interests with respect to "collateral" consequences of settlement...

Fourth District: Future Pain and Suffering

Posted on July 11, 2008
For an example of where a jury inadequately awarded no future pain and suffering damages although liability and future pain and suffering were undisputed, check out this decision from the Fourth District. After an interesting discussion of the law in this area, the court directed that a new trial be held on the issue of future non-economic damages.

Fourth District: Cassisi Inference

Posted on July 11, 2008
Products liability fans should be very interested in this decision from the Fourth District. Over a dissent, the court rejected the application of a Cassisi inference where a plaintiff wished to use expert testimony to establish not only that a ladder from which the plaintiff fell was defective but that the fall was caused by a malfunction...

Fourth District: Notice of Trial

Posted on July 11, 2008
Even a defaulted party is entitled to notice that an action is to proceed to trial. Is the notice requirement satisfied if a trial court order setting a case for trial is not sent to a defaulted defendant but the plaintiff then forwards the defendant a copy of the order? Yes, said a divided Fourth District in this decision.

Fourth District: Fiduciary Duties

Posted on July 11, 2008
This decision from the Fourth District followed a line of Florida decisions and held that the delayed discovery doctrine did not apply to a breach of fiduciary duty claim.

Fourth District: Paternity

Posted on July 10, 2008
This decision, which reflects a change on rehearing from the Fourth District's earlier decision in the same case, exemplifies the difficulties faced by the judiciary when it tries to apply to modern persons, who are capable of arming themselves with the scientific certainty of DNA testing, a common law system rooted in rigid rules to compensate for a lack of such science...

Fourth District: School Duties

Posted on July 10, 2008
The Fourth District's decision in this case includes a very interesting discussion explaining why a school board did not have a legal duty to a student to prevent her from skipping classes during the day, leaving the campus, and ultimately getting in a fatal car wreck.

Fourth District: Retroactivity

Posted on July 10, 2008
Is the twenty-one day safe harbor provision added to section 57.105 in 2002 retroactive? No, said the Fourth District in this case, agreeing with a similar decision from another district. The court's decision included a discussion of how statutes that contain procedural aspects may have substantive components, requiring such statutes to be given only prospective effect absent clear legislative

Fourth District: Trusts, Conflict of Interest

Posted on July 10, 2008
Trusts fans may be interested in this decision, in which the Fourth District affirmed an order finding a trustee had a conflict of interest that should have precluded it from paying its attorneys from trust assets without court approval. The conflict arose based on interrogatory responses in litigation, and the principal issue was whether such responses should have placed the trustee on notice of

Fourth District: FDUTPA Attorney's Fees

Posted on July 10, 2008
This decision from the Fourth District involved an in-depth look at how attorney's fees are shifted following a successful claim under the Florida Deceptive and Unfair Trade Practices Act. Most notable may be the court's discussion of how out-of-town counsel are generally not to be reimbursed for travel expenses that local counsel would not incur.

Fourth District: Sham v. Mistake

Posted on July 10, 2008
In this case, the Fourth District explored the difference between a sham pleading and a mistaken pleading. Finding the complaint at issue to be of the latter sort, the court reversed a lower court's order striking the appellant's complaint.

Fourth District: Tax Deed Sales

Posted on July 10, 2008
Those interested in tax deed sales, and the efforts the government must make to notify property owners of such sales, may wish to check out the Fourth District's decision in this case. The court held that a county's notice efforts were constitutionally insufficient.

Supreme Court Review, Tougher

Posted on July 07, 2008
This past Thursday, the Florida Supreme Court released three orders discharging jurisdiction in cases where the court had previously accepted jurisdiction. In one of those orders -- this one, which involved a decision that construed a provision of the federal constitution -- the court discharged jurisdiction as improvidently granted...

Catching Up

Posted on July 07, 2008
Catching up is going to be a long process, but I will get there. Soon I will be up to date with our friends at the Fourth District.

Fourth District: Racing

Posted on July 07, 2008
In this decision, the Fourth District held that Florida's law against racing on highways is unconstitutionally vague because it defines "racing" in a way that encompasses a multitude of routinely employed driving activities. However, because the law does not impair a fundamental right, the court declined to find the law overbroad.

Fourth District: Arbitration

Posted on July 07, 2008
Where an arbitration agreement required that the arbitration filing fee be advanced by the party seeking relief, the Fourth District held it was reversible error to require the defendant to pay the fee as a condition of granting the defendant's motion to compel arbitration...

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