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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: Economic Loss Doctrine and Section 552

Posted on June 25, 2008
Here we have a case involving the economic loss doctrine -- perhaps my favorite intersection along the law's many crossroads. The plaintiff entered a contract with a company for environmental assessment work. The resulting assessment led the plaintiff not to purchase and develop a particular stretch of land, and the plaintiff later came to believe the company erroneously performed the assessment

Fifth District: Certiorari and Discovery

Posted on June 25, 2008
Once again, a district court's certiorari jurisdiction has been successfully invoked to limit an overbroad discovery order. Check out the Fifth District's decision in this case for more.

Fifth District: Secured Transactions

Posted on June 25, 2008
Fans of the Uniform Commercial Code's Article 9 should be interested in this decision. The Fifth District reversed a summary judgment for further proceedings on whether the sale of repossessed vehicles was commercially reasonable.

Fifth District: Drug Court

Posted on June 25, 2008
The trial court in this case determined that Florida law allows any person who has a substance abuse problem to enter a pretrial drug court program, as long as he or she is not involved with drug dealing and has not previously rejected a pretrial substance abuse program...

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Fifth District: Tax Deed Sales

Posted on June 25, 2008
Is publishing notice of a tax deed sale in a newspaper a sufficient "additional step" to satisfy the requirements of due process after notice of the sale to the property owner is returned as unclaimed mail? It was not in this case decided by the Fifth District.

Fifth District: Statutory Interpretation

Posted on June 24, 2008
A provision of Florida's statutory law states, "The failure to provide and use a child passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence...

Fifth District: Closing Argument

Posted on June 24, 2008
In this case, the Fifth District admonished a prosecutor whose closing arguments included the following: If Josh Montanye is lying, Sean is guilty. Josh Montanye is lying. Josh Montanye is lying, and he is doing it to get you all to buy it. The closing also included the line, "I was expecting them to say that the sun was in their eyes and the dog ate their homework...

Fifth District: Apple Records

Posted on June 24, 2008
Can a trial court dismiss a proceeding sua sponte based on res judicata? This decision shows the answer is yes. The Fifth District not only affirmed the dismissal but explained: Every litigant is entitled to one bite at the apple. Two bites is unfair...

Questions, questions: NICA

Posted on June 24, 2008
En banc decisions are rare. En banc decisions certifying questions of great public importance to the Florida Supreme Court, like this one, are rarer still. The Fifth District certified the following: WHEN A NICA PROVIDER FAILS TO PROVIDE THE STATUTORY NOTICE TO AN OBSTETRICAL PATIENT WITHIN A REASONABLE TIME AFTER THE COMMENCEMENT OF THE PROVIDER-OBSTETRICAL PATIENT RELATIONSHIP, IS THE

Fifth District: Deceptive and Unfair Trade Practices

Posted on June 24, 2008
Can an unfair trade practices claim be brought not only against a business but also the person who acted for the business? Yes, said the Fifth District in this decision.

Questions, questions: Lesser Includeds

Posted on June 24, 2008
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance: Is a defendant charged with robbery entitled to have the jury instructed on more than one of the lesser included offenses where his theory of defense is that he committed both lesser offenses but not the greater charged offense? Previously, in this decision, the court

Fifth District: Specific Performance

Posted on June 24, 2008
Being ready, willing, and able to close on a piece of real property does not mean that someone has merely told you he or she will give you the purchase money. The Fifth District applied this principle in this case.

Fifth District: Oaths

Posted on June 23, 2008
What happens when someone wishing to testify refuses to swear or affirm to tell the truth? A litigant in this case apparently had religious convictions contrary to such things. So he did not swear, and he did not affirm, which led the Fifth District to affirm the trial court's refusal to allow him to testify.

Certified Conflict: Confessions

Posted on June 23, 2008
Under the common law, a confession alone is not sufficient evidence to convict someone of a crime. The underlying notion is that one should not be convicted based only on one's own statement of past wrongdoing. Otherwise, you might find yourself imprisoned for telling a tale...

Fifth District: This Happened Once Before...

Posted on June 23, 2008
Not quite a year ago, the Fourth District released this decision, which held a motor sports facility's negligence waiver invalid because it attempted to limit the facility's prospective liability to a minor. His father signed the waiver, and after an accident resulted in the minor's death, his mother sued the facility...

Overheard...

Posted on June 19, 2008
... today at the bar meetings in Boca Raton: "You know, there are four other districts...." Considering the speaker's status, that is part compliment, part not so much.

Fifth District: Marathon Man

Posted on June 19, 2008
As you can hopefully tell, I am wending my way towards catching up with the Fifth District. There is one person at the Fifth that I will not catch. Last week, I mentioned my marathoning adventures of the past six months. There is someone at the Fifth who shares that passion, and he is a lot faster...

Fifth District: Preservation of Error

Posted on June 18, 2008
You just knew this decision was going to be interesting when the Fifth District began it this way: This is a disturbing case. It is disturbing because the trial lawyers who were involved know better, or at least should have known better. Although we have concluded that we should affirm the final judgment because the errors complained of were not preserved and were not fundamental in nature, we

Fifth District: Declaratory Judgments, Insurance

Posted on June 18, 2008
Can a trial court abate an insurer's declaratory judgment claim pending the outcome of an underlying tort suit? A trial court did in this case, but the Fifth District granted a petition for writ of certiorari and quashed the abatement order.

Fifth District: Pharmacists' Warranties

Posted on June 18, 2008
Products liability fans, especially those involved with pharmaceuticals, should be interested in this decision. The Fifth District reversed the dismissal of a breach of warranty claim against a pharmacist.

Fifth District: Employment

Posted on June 18, 2008
Employment law fans likely took interest in this decision, where the Fifth District confirmed the essential element of causation in a disability suit.

Fifth District: Arbitration

Posted on June 18, 2008
A person who signed an agreement that expressly provided the parties joined a separate agreement was bound by an arbitration provision in that separate agreement, the Fifth District held in this case.

Certified Conflict: Sentencing

Posted on June 18, 2008
If a defendant serves a portion of concurrent terms but then is resentenced to consecutive terms, should the defendant receive credit for time served on each of the consecutive terms? A Fifth District panel consisting of three former trial judges said yes in this decision...

Fifth District: French Kiss

Posted on June 18, 2008
Not the movie with Meg Ryan and Kevin Kline. The case.

Fifth District: Lesser Includeds

Posted on June 18, 2008
The defendant in this criminal case argued to the jury that he did not commit robbery -- he committed petit theft and resisting a merchant. Both were lesser included offenses for his robbery charge and both were included on the jury's verdict form, but the jury was not allowed to find him guilty of both...

Fifth District: Presuit Investigation

Posted on June 18, 2008
Does the affidavit supporting a medical malpractice claimant's presuit investigation have to name the defendant who is later sued? No, said the Fifth District in this case.

Fifth District: Stipulations

Posted on June 17, 2008
Need a client be present in court for his or her counsel to make a binding stipulation during a civil trial? The Fifth District quickly said no in this case.

Fifth District: Duty

Posted on June 17, 2008
Those who have frequented this corner of the blogosphere probably recall that one of my favorite legal topics is the matter of duty, as in the extent to which one person owes another a duty of care. So of course this duty decision caught my eye. Sheriff's deputies visited an elderly woman's home when she failed to respond to telephone calls...

Fifth District: Challenging Service of Process

Posted on June 17, 2008
If someone moves to dismiss a complaint but the motion does not challenge service of process, is any such challenge irrevocably waived? This decision from the Fifth District holds that if the motion has not yet been heard, it may be amended to include such a ground, avoiding any waiver.

Fifth District: Good Samaritan Act and Statutory Standards of Liability

Posted on June 17, 2008
In this case, a medical expert discussed the legal meaning of the proof required to overcome the immunity given certain health care providers by the 1998 version of Florida's Good Samaritan Act. The Fifth District characterized that testimony as "irrelevant and outside the expertise of a medical expert...

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