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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: Criminal Conflicts

Posted on June 17, 2008
This interesting decision from the Fifth District awarded a new trial to a criminal defendant whose trial counsel had a financial conflict of interest. In doing so, the court explored and corrected some inconsistencies in its own case law and considered some undeveloped aspects of our state supreme court's decisions...

Fifth District: Flood Limits

Posted on June 17, 2008
This decision from the Fifth District examined how the statute of limitations applies where improvements to real property cause repeated flooding to neighboring property. Judge Lawson filed an interesting special concurrence. He acknowledged the controlling authority on this issue but lamented how that authority permits the flooded neighbor to sit on his or her rights for years and ultimately

Supreme Victory

Posted on June 16, 2008
Congratulations to Florida's Solicitor General Scott Makar, who prevailed in this decision released this morning by the United States Supreme Court. The high court reversed an Eleventh Circuit decision that allowed a Chapter 11 bankruptcy tax-stamp exemption to apply to preconfirmation transfers...

Fifth District: Circuit Court Appeals

Posted on June 16, 2008
It is good to see the Fifth District join its sister courts in rebuking the dismissal of circuit court appeals merely for the inadvertent but untimely filing of an initial brief. This decision quashes such a dismissal.

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Fifth District: Arguments at Hearings

Posted on June 16, 2008
This decision from the Fifth District involved an affidavit submitted on the day of a summary judgment hearing. The trial court disregarded the affidavit as untimely, but the affidavit contained only legal argument, not facts. The appellate court reversed the entry of summary judgment, holding that the trial court should have considered the affidavit's legal challenge.

Fifth District: More Certiorari

Posted on June 16, 2008
A petition for writ of certiorari can be filed no later than 30 days after rendition of the order at issue. What if you receive the order on the 24th day, leaving only six days to draft and file a petition? According to this case from the Fifth District, the proper course is to file a timely but "bare bones" petition along with a motion to amend, setting forth the circumstances.

Fifth District: Certiorari

Posted on June 16, 2008
Is excluding a witness or striking a defense the sort of ruling that can qualify for certiorari review? No, said the Fifth District in this case.

Fifth District: Arbitration

Posted on June 16, 2008
Construing a 20-day limitation on seeking arbitration as a condition precedent to arbitration that can be addressed by the courts, and finding the condition not satisfied, a divided Fifth District in this case reversed a trial court's decision to compel arbitration.

Fifth District: First Amendment

Posted on June 16, 2008
First Amendment fans no doubt cheered the Fifth District's decision in this case. The court reversed an order that, on privacy grounds, enjoined a television station from publishing documents in its possession.

Certified Conflict: Rule 1.525

Posted on June 16, 2008
In this case, the Fifth District held that, under rule 1.525, a motion for fees and costs cannot be served more than 30 days after the entry of judgment. The court certified conflict with this decision from the Third District, which held that if the final judgment establishes a party's entitlement to fees, the timing of the party's motion to set the amount is not governed by rule 1...

Fifth District: Forum Selection Clauses

Posted on June 16, 2008
The Fifth District's opinion in this case suggests how heavily the parties litigated whether the following forum selection language was permissive or mandatory: "The parties hereby submit to jurisdiction for any enforcement of this agreement in Minnesota...

Fifth District: Child Play

Posted on June 16, 2008
The trial court in this case denied a grandparent's petition to adopt an adult grandchild after determining that the petition's true aim was to enable the pair to obtain otherwise unavailable federal benefits. The Fifth District reversed and held the adoption should go forward...

Questions, questions: Fundamental Error, Again

Posted on June 16, 2008
In this decision from the Fifth District, the court certified the following to the Florida Supreme Court as a question of great public importance: DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME? A divided court answered the question in the affirmative...

Fifth District: Hearsay

Posted on June 16, 2008
Criminal law fans may be interested in this decision from the Fifth District. The court examined whether a pawn shop transactional record constitutes inadmissible testimonial hearsay under Crawford v. Washington. The court held the document at issue was not prohibited hearsay.

Fifth District: Competency

Posted on June 16, 2008
The end of this decision from the Fifth District points out that a motion to discharge one's counsel is invalid if the movant is incompetent.

Fifth District: Lis Pendens and Specific Performance

Posted on June 16, 2008
In the context of a lis pendens dispute, this decision from the Fifth District explained that a document containing only an address, the names of the parties, and a sliding scale for a purchase price is insufficient to support a claim for specific performance of real property...

Third District: Downward Departure

Posted on June 13, 2008
In the immediately preceding post, I mentioned this law, which increases numerous court-related fees across the litigation spectrum. Section 12 of that law also does something interesting with respect to the Third District: shrinks the court from 11 judges to 10...

Climbing Costs: Counterclaims and Cross-Appeals

Posted on June 13, 2008
Florida litigants, take note. Costs are climbing at a court near you. Filing a suit? The filing fee just went up. Filing a counterclaim? There is now a fee for that, too. Filing a cross-appeal, or just joining someone else as an appellant or petitioner? You guessed it: there are now fees for taking such steps...

Closing Time

Posted on June 13, 2008
The Judicial Qualifications Commission's ethics trial involving Judge Allen wrapped up Wednesday, ending what was surely a surreal experience for many. The Tallahassee Democrat and St. Pete Times both covered the event and described the apparently impassioned closing arguments...

Supreme Fun

Posted on June 13, 2008
I had the privilege of speaking on a panel at the Practicing Before The Florida Supreme Court seminar held yesterday in Tallahassee. It was great fun, and the company was excellent. I saw old friends, and a few friends who are not so old -- which of course is happening more and more and makes me feel older every minute...

More Trying Times

Posted on June 11, 2008
Those interested in the Judicial Qualifications Commission's ethics trial involving Judge Allen may wish to check out today's St. Pete Times and Tallahassee Democrat.

Blogger Outer

Posted on June 11, 2008
One of the many good things about never having blogged anonymously is that no one ever considered it newsworthy to discover who I am. That is not so for the attorney blogger discussed in this story.

Appellate Moves

Posted on June 11, 2008
In terms of internal movement, Florida's appellate courts are more glacier than river. But as with many a glacier, the often imperceptible movement at times becomes a bit extraordinary. The last several months saw the Governor appoint Judge Dorian Damoorgian to the Fourth District, Judge Jay Cohen to the Fifth District, and Judge Nelly Khouzam to the Second District...

Abstract Wonder

Posted on June 11, 2008
When I started this blog, it received about 20 hits a day, and I assumed they were from either me or my mother. I have never marketed it, never tried to turn it into a promotional piece for my personal practice. And yet folks somehow came across it and started reading it...

Trying Times

Posted on June 10, 2008
Those interested in the Judicial Qualifications Commission's ethics trial involving Judge Allen may wish to check out the press reports on the event, which as I understand started yesterday and is supposed to end Wednesday. You can read about it in today's St...

Fifth District: Mediation Matters

Posted on June 10, 2008
When I read about someone being sanctioned, or being considered for sanctions, I tend to view the situation in one of two lights: either, wow, on a bad day maybe that could have been me, or, well, I hope I never get so deep in the mud I do something like that...

Long Road, Still Winding

Posted on June 09, 2008
As I get back into full blogging gear this week, I thought I would say a few words about why I stopped for so long. The chief reason is a pro bono project that I took on last year that, as it turned out, required substantial involvement. I had been working on it for some time when it became clear I needed to find large blocks of time to devote to it...

Whoa, Judge

Posted on June 04, 2008
As this press release shows, Governor Crist has announced the appointment of Florida Sixth Judicial Circuit Judge Nelly Khouzam to the Second District Court of Appeal. Congratulations to Judge Khouzam. To my knowledge, this appointment marks the first time two spouses have served together on a district court of appeal...

Temporary Post -- Appellate CLE

Posted on May 20, 2008
Abstract Appeal has been silent for many months now while I've tended to numerous other things. Yes, it's coming back -- probably within the next week. In the meantime, I'm hosting a CLE today at which this document might come in handy. Feel free to open it and save it locally.

Property Tax Proposal: Consideration Underway

Posted on October 31, 2007

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