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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: Vexatious Litigants

Posted on July 07, 2008
This decision from the Fourth District upheld the constitutionality of portions of Florida's Vexatious Litigant Law. The case involved an inmate at a state prison who sued the prison's physician regarding a prescription. When the plaintiff failed to furnish $600 in security for the case, his claim was dismissed...

Gambling Loss

Posted on July 03, 2008
Big news today from the Florida Supreme Court, which released this decision holding that the Governor lacked authority to enter a November 2007 compact with the Seminole Indian Tribe of Florida. The compact expanded the forms of gambling permitted on tribal lands, including blackjack card tables...

New Law Day

Posted on July 01, 2008
July 1 is one of two dates when new Florida laws traditionally take effect. (The other is October 1.) Today's Sun-Sentinel has this Associated Press story on Florida's new laws. The Tallahassee Democrat has this story on the Ethics in Education Act that takes effect today and which may require education employees to be fired based on new background checks...

Chief Justice Quince

Posted on June 30, 2008
The news page at the Florida State Courts site recounts this past Friday's swearing-in ceremony for Florida's new Chief Justice: Peggy Quince. Congratulations to her not only as an individual but as the first African-American woman to serve as a justice, and now the chief justice, on our state's high court.

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Time to Cross-Appeal?

Posted on June 30, 2008
Feel like filing a notice of cross-appeal or joinder this week? How about intervening on appeal? Doing so today would save a few dollars. Tomorrow, this new law takes effect, and such formerly cost-free acts will carry a $295 charge.

Fifth District: Rehearing Tolerance, Exceeded

Posted on June 30, 2008
The following quote from this opinion demonstrates how rehearing motions can try, and overcome, an appellate court's patience: [W]e do not view the privilege to seek a rehearing pursuant to rule 9.330, Florida Rules of Appellate Procedure, as an open invitation for an unhappy litigant or attorney to reargue the same points previously presented, or to discuss the bottomless depth of the

Fifth District: The Trouble With Trebles

Posted on June 30, 2008
Florida's civil theft statute allows a plaintiff to recover treble damages. Does that mean total damages are three times the actual damages amount or that three times the amount of actual damages should be added to the actual damages amount? The Fifth District answered that question here...

Fifth District: Class Actions and Certiorari

Posted on June 30, 2008
Is an order permitting merits discovery in a putative class action the sort of order that can be successfully challenged by petition for writ of certiorari? Yes, as this decision from the Fifth District shows.

Fifth District: Law Enforcement Duties

Posted on June 30, 2008
Is a deputy working as a school resource officer engaged in the execution of his or her legal duties for purposes of charging a student with battery on a law enforcement officer? Yes, said the Fifth District in this case.

Fifth District: Custody, Out-Of-State Transfers, and Certiorari

Posted on June 30, 2008
Family law fans may wish to check out the Fifth District's certiorari decision in this case, which allowed a trial court's decision that a child be immediately returned to Florida to stand but quashed that decision to the extent it made a temporary custody determination seemingly based on punishment and without an evidentiary hearing.

Fifth District: Siting Plans

Posted on June 30, 2008
Decisions like this one, which involve the siting of electric power generating units, are rare. The Fifth District reversed an agency's rejection of a siting application.

Fifth District: Specific Performance

Posted on June 30, 2008
In this case, the Fifth District reversed an award of interest on lost profits related to a successful specific performance claim. The decision follows the notion that damages flowing from a grant of specific performance are limited to those that return the parties to status quo at the time of breach.

Fifth District: Perpetual Leases

Posted on June 30, 2008
Florida law's preference for construing leases not to be perpetual is well demonstrated by this decision from the Fifth District.

Fifth District: Tax Advice

Posted on June 30, 2008
If you are interested in whether a taxing authority can bring a declaratory judgment claim against a prospective taxpayer to establish the allegedly taxable nature of the defendant's conduct, rather than assess any tax believed to be owed and allow any challenges to go forward, you may wish to check out the Fifth District's decision in this case.

Judge Evander: On Risks

Posted on June 30, 2008
In this case, Judge Evander offered the following notable thought in a concurrence to a per curiam affirmance: I would simply observe that when an attorney refuses to present any evidence at a pretrial hearing because he disagrees with the trial court's determination as to which party has the burden of proof, he does so at considerable risk.

Fifth District: Preemption

Posted on June 27, 2008
This decision from the Fifth District contains an interesting federal preemption discussion. The court rejected the appellant's argument that the FCC's regulatory scheme precluded him from being convicted of stalking by ham radio. Seriously.

Fifth District: Show Me The Meaning...

Posted on June 27, 2008
... of being confidential. This decision from the Fifth District involved documents sealed in prior litigation between the Back Street Boys and Louis Pearlman. The decision makes for a good primer on what it now takes to seal, and unseal, court records under Florida law...

Fifth District: Attorneys

Posted on June 27, 2008
This decision from the Fifth District reminds us that an attorney has no implied authority to execute a contract on a client's behalf for the sale or purchase of real property.

Fifth District: Now We All See

Posted on June 27, 2008
Is the Orlando Utilities Commission a "municipality" for purposes of excusing the presuit notice requirement of section 768.28(6)? No, said the Fifth District in this decision. The court declined to determine precisely what OUC is, having determined it is not a municipality.

Fifth District: Fraud on the Court

Posted on June 27, 2008
Dismissing a plaintiff's case based on the plaintiff's litigation conduct requires "the most blatant showing of fraud, pretense, collusion, or other similar wrong doing." The Fifth District held that standard was not met in this case.

Questions, questions: Double Jeopardy

Posted on June 27, 2008
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance: ARE THE SEX ACTS PROSCRIBED BY SECTIONS 794.011 and 800.04(4), FLORIDA STATUTES, PROPERLY VIEWED AS "DISTINCT CRIMINAL ACTS" FOR DOUBLE JEOPARDY PURPOSES, SO THAT A DEFENDANT CAN BE SEPARATELY CONVICTED FOR EACH DISTINCT ACT COMMITTED DURING A SINGLE CRIMINAL EPISODE?

Fifth District: Discovery Rule

Posted on June 27, 2008
Those interested in how the discovery rule impacts statutes of limitations in the medical malpractice context may wish to check out the Fifth District's decision in this case. The court explained that, for limitations' purposes, knowledge could not be imputed between the mother and daughter in the case, and that where an injury causes mental incapacitation and a guardian is not appointed, the

Fifth District: Elections

Posted on June 27, 2008
Elections law fans should be interested in this decision, where the Fifth District held that the right against double jeopardy prevented a candidate from being conviction of multiple offenses for a single (but widespread) distribution of an unlawful electioneering communication.

Fifth District: Maybe They're Amazed

Posted on June 27, 2008
The judges on Florida's district courts of appeal are routinely confronted with strange situations, so it is noteworthy when a panel expresses amazement at the facts of a given case. That happened here. The Fifth District characterized the criminal defendant's actions as among the sort of conduct that is "so bizarre, it is virtually inexplicable...

Fifth District: And1

Posted on June 27, 2008
Perhaps the respondent in this case felt the court ruled 4-0 in the petitioner's favor. Among the authorities the Fifth District cited was Judge Sawaya's personal injury treatise.

Questions, questions: Breath Test

Posted on June 27, 2008
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance: CAN THE DHSMV SUSPEND A DRIVER'S LICENSE FOR REFUSAL TO SUBMIT TO A BREATH TEST, IF THE REFUSAL IS NOT INCIDENT TO A LAWFUL ARREST? IF NOT, IS A DHSMV HEARING OFFICER REQUIRED TO ADDRESS THE LAWFULNESS OF THE ARREST AS PART OF THE REVIEW PROCESS? The district court

Fifth District: Spoliation

Posted on June 27, 2008
Spoliation fans should be very interested in this decision. The Fifth District reversed the dismissal of a plaintiff's products liability case (including defective design and manufacture claims) after the plaintiff's counsel lost the product at issue...

Fifth District: Closing Time

Posted on June 27, 2008
In this case, the Fifth District considered whether the following closing argument deprived the appellant of a fair trial: [T]hey do an amazing job, they do an amazing job of trying to convince people of these injuries, but that's why they keep on hiring these doctors over and over; that's why Dr...

Fifth District: The Nonsense Defense

Posted on June 27, 2008
This case considered whether the following contractual language was enforceable as a fee-shifting provision: ATTORNEY?S FEES: In the event that either party incurs legal fees or costs in the enforcement of this Lease or any provision hereof, whether suit is filed or not, shall be entitled to recover and to receive payment of reasonable attorneys? and costs incurred by the other party...

Fifth District: Class Actions

Posted on June 25, 2008
When a class action is filed in a county court, must the relief requested by class members be aggregated for purposes of determining whether the county court's $5,000 jurisdiction limit is exceeded? Yes, said a divided Fifth District in this decision...

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