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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

Third District: Bad Settlement Binding, Despite Bad Market

Posted on February 03, 2011
A party in this case tried to avoid a settlement agreement because changes in the real estate market allegedly made performance impossible. The trial court agreed, but the Third District reversed. The appellate court explained: In this case, the decline in the real estate market shortly after the Former Husband signed the marital settlement agreement, [...

Second District: Speaking With Hospitals? Employed Physicians

Posted on February 03, 2011
This highly significant case involved parents who sued a hospital on their child’s behalf for medical malpractice. The hospital sought a protective order to block the parents’ attorneys from speaking with the child’s current treating physicians, who were hospital employees, without the hospital’s counsel present...

Fourth District: Contingency Fee Agreements

Posted on February 03, 2011
This decision centered on the arbitrability of a fee dispute between counsel and a former client. The case is interesting, however, not so much for its arbitration issues as it is for its discussion of when and how contingency fee agreements may be enforced, particularly following the adoption of rule 4-1...

Second District: Emotional Damages, Lost Wages from Discrimination

Posted on February 03, 2011
In this age discrimination case, the Second District held that the trial court abused its discretion in not granting a motion to remit the jury’s $3.5 million award for noneconomic damages. The district court relied on a decision holding that, in a typical age discrimination case without actual physical injuries, emotional distress awards should not [...

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Second District: Engagement Rings, Heirlooms

Posted on February 03, 2011
This dissolution decision recognized the general rule that a married woman’s engagement ring is her nonmarital property. The trial court in the case directed that such a ring, a family heirloom, be returned to the husband and given to the parties’ children as the husband saw fit...

Second District: Homestead Property

Posted on February 03, 2011
Real property fans may be interested in this decision. The Second District held that the constitutional proscription on devising homestead property where the owner is survived by a spouse or minor children does not apply when an owner with minor children simply acquires property held by a joint tenancy...

Certified Question: Lies at Plea Hearings

Posted on February 03, 2011
In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance: MAY PRISONERS IN POSTCONVICTION PROCEEDINGS PREVENT THE ANSWERS THEY GAVE UNDER OATH AT PLEA OR SENTENCING HEARINGS FROM CONCLUSIVELY REFUTING THEIR CLAIM BY ALLEGING THAT THEIR ATTORNEY INSTRUCTED THEM TO LIE ABOUT WHETHER THE [...

Second District: Loss of Consortium

Posted on February 03, 2011
In this case, a divided Second District held that a trial court erred in denying a spouse’s new trial motion after a jury awarded him nothing on his loss of consortium claim. The majority held that the spouse should have received at least nominal damages, while Judge Black dissented on grounds that issues of fact [...

Third District: Sanctioning Parties, Witnesses

Posted on February 03, 2011
After declaring a mistrial based on an expert witness’s gratuitous statements from the stand, the trial court in this case imposed over $20,000 in sanctions against State Farm, the party that presented the expert. The Third District reversed, holding that an expert’s misconduct cannot predicate an award of sanctions against a party or its counsel [...

Feed Change

Posted on September 09, 2010
If you are reading this post through an RSS Reader, I have good news and bad news. The good news is that Abstract Appeal is alive and running once again. The bad news is that recent changes have caused me to move the site’s feed. Please check the site’s left column for links to the [...

Fifth District Appointment

Posted on August 06, 2009
Congratulations to Indialantic's Judge Bruce Jacobus. Yesterday, Governor Crist appointed Judge Jacobus to the Fifth District. Judge Jacobus spent the last 14 years as a judge with the 18th Judicial Circuit. He takes the seat vacated when Judge Pleus retired...

Fifth District: Grandparental Custody

Posted on August 06, 2009
Can grandparents obtain primary residential responsibility over their grandchildren, better known as custody, without adopting them? Yes, explained the Fifth District in this decision, which involved a mother who consented to the placement and a father whose identity was allegedly unknown.

Fifth District: Great Way To Lose, Treating Physician Discovery

Posted on August 06, 2009
I recently posted on a Fifth District decision that seemed a bad way to win. Well, here we have a decision from the same court that seems like a great way to lose. The case involved a certiorari petition seeking relief from a trial court's order denying discovery...

Fifth District: Entrapment

Posted on August 06, 2009
If you are interested in entrapment, take a look at this decision from the Fifth District. It is rather short but gives a good overview of the distinction between the objective entrapment test, which focuses on how the government official's conduct would affect a reasonable person, and the subjective entrapment test, which focuses on how the government official's conduct actually affected the

Back In Blog

Posted on August 06, 2009
Whew. A couple of hard weeks of work just flew by. Thanks to the many who sent me comments on that last post. They were both entertaining and insightful.

St. Pete Times: HERE'S THE INFORMATION YOU ARE NOT SUPPOSED TO LEARN

Posted on July 22, 2009
My local paper, the St. Petersburg Times, has a notable story today on the front page of the local section. Using bullet points, it describes what a jury will not be told in a local trial that started yesterday. The story, which you can read online here, concerns a murder trial...

Fourth District: Insurance

Posted on July 22, 2009
Insurance fans may be very interested in this decision. The Fourth District reversed an order enforcing a settlement, holding that an insurer's response to a settlement demand constituted a counteroffer, not an acceptance, because the response contained a release that included objectionable, not "usual," terms...

Fourth District: Hearsay

Posted on July 22, 2009
Under this decision from the Fourth District, you can add certificates of non-licensure from the Construction Industry Licensing Board to the list of non-testimonial hearsay items that can be admitted against a criminal defendant consistent with Crawford v...

Fourth District: PSIs

Posted on July 22, 2009
To impose a habitual offender sentence, Florida law requires a pre-sentence investigation. That requirement is said to amount to a right to a PSI before being sentenced as a habitual offender. Can counsel waive that right, or is it the sort of right only the individual should be able to waive? In this decision, the Fourth District explained that counsel can waive the right to a PSI...

Ineffective Assistance -- Winning In The Worst Way?

Posted on July 17, 2009
Appellate friends, is there such a thing as a bad win? If there is, then this decision released earlier today by the Fifth District might be an example. A criminal defendant appealed his convictions for tampering with physical evidence and resisting arrest without violence...

Fifth District: Forum Selection Clauses

Posted on July 17, 2009
A contract includes this language: "The parties consent to the exclusive jurisdiction of the courts located in New York City, USA." Is that forum selection provision permissive or mandatory? Mandatory, as Fifth District explained in this decision.

Fifth District: Final Contractor's Affidavit

Posted on July 17, 2009
Construction fans should be interested in this decision. The Fifth District explained that while providing a final payment affidavit is a condition precedent to a statutory lien foreclosure claim, that condition can be waived where the defendant does not raise its failure with particularity in the answer.

Fifth District: Legal Duties and Ultimate Facts

Posted on July 17, 2009
Does a police officer executing a search warrant for a home owe a duty of care to an occupant of the residence? Considering that a police officer's actions create a duty of care where the officer's conduct creates a foreseeable zone of risk to an individual or group, the question could be put in these terms: does a police officer create a foreseeable zone of risk to the occupants of a home by

Fifth District: Mandamus, Disqualification

Posted on July 17, 2009
This decision from the Fifth District shows that a petition for writ of mandamus can be used to compel the reassignment of trial judges where the 30-day period to rule on a disqualification motion has expired without a ruling.

Fifth District: Fighting Words

Posted on July 17, 2009
Concerned that a lesser standard could cross lines drawn by the First Amendment's free speech clause, the Fifth District in this case reversed a juvenile's disorderly conduct conviction because the juvenile's loud, profane words did not incite others to breach the peace or present an imminent danger to others.

Fifth District: Violence

Posted on July 17, 2009
When is exhibitionist behavior considered sexual violence? When applying Florida's Jimmy Ryce Act to keep sexually violent persons involuntarily committed, as the Fifth District explained in this decision.

Fifth District: Family Law

Posted on July 17, 2009
Family law practitioners may be interested in this reminder from the Fifth District that rule 12.490(f) requires courts to hold hearings on timely filed exceptions to magistrate reports.

Fifth District: Insurance and Attorney's Fees

Posted on July 14, 2009
This decision really caught my eye. The Fifth District denied an attorney's fees motion made by an insured in a certiorari proceeding. The insured lost the proceeding on grounds any error would be remediable on plenary appeal. In that context, the denial of fees was not remarkable -- a few years ago, the state supreme court confirmed that insureds must prevail on appeal to recover appellate

Fifth District: Default Judgments

Posted on July 14, 2009
Part of me constantly fears overlooked deadlines. That same part is always relieved to see decisions setting aside default judgments. This decision from the Fifth District does so, and it points out that reasonable misunderstandings originating from clerical errors can establish excusable neglect...

Fifth District: Visitation

Posted on July 14, 2009
Family law practitioners may be interested in this opinion. The Fifth District determined that the trial court improperly delegated its decisionmaking authority regarding visitation to one party's expert. The appellate court seemed more than a bit concerned that, without findings to support the decision, the final judgment forbid the former husband's current wife from being in the children's

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