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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: Work Product

Posted on April 27, 2009
The Fourth District recently released an important decision concerning work product, and you can read it here. In the case, a health maintenance organization petitioned for a writ of certiorari. The HMO sought to block the compelled production of documents created in response to a regulatory agency's inquiries about how the petitioner set certain rates...

Unconstitutional Ordinance

Posted on April 24, 2009
This story from the Palm Beach Post caught my attention. It explains that a circuit judge has declared unconstitutional a Riviera Beach ordinance prohibiting the baggy pants-look seen today. Apparently the ordinance prohibits persons from publicly wearing pants below the waist and thereby exposing skin or undergarments...

Fourth District: Appellate Jurisdiction and Interlocutory Appeals

Posted on April 22, 2009
In this decision, the Fourth District reminds us that, in a non-final appeal, the appellate court's jurisdiction is limited and does not extend to all orders entered in the case below. This particular appeal involved an injunction, and in reviewing the appealed order the court declined to review a prior order sustaining the appellee's objections to a discovery request...

Fourth District: Rule 1.442 and Proposals for Settlement

Posted on April 22, 2009
Can the parties agree to extend the deadline for responding to a proposal for settlement? In this case, the Fourth District answered that question by holding that an offer made and accepted after an agreed-upon extension of time constitutes a binding settlement.

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Fourth District: Computer Software and Taxes

Posted on April 22, 2009
Does computer software constitute tangible personal property subject to taxation by a county? No, held the Fourth District in this interesting tax case. To constitute tangible personal property for Florida tax purposes, the chief value of the property must be intrinsic to the article itself...

Fourth District: Prejudgment Interest

Posted on April 22, 2009
Those who litigate commercial cases may be interested in this prejudgment interest decision by the Fourth District. The plaintiff successfully sued the defendant under the Lanham Act and Florida's false advertising statutes. The trial court awarded the plaintiff $93,306 in lost profits, as well as prejudgment interest on that amount...

Fourth District: Premises Liability

Posted on April 22, 2009
Premises liability fans will be interested in this decision, where the Fourth District answered the question of whether an unsecured mat with a pattern and color different from the underlying carpet can constitute an open and obvious condition so as to defeat a failure to warn claim...

Fourth District: Trade Secrets and Injunctions

Posted on April 22, 2009
Intellectual property fans will no doubt agree that trade secrets decisions are not common in Florida. This decision is thus a rarity. The Fourth District did not plow any new legal ground, but it did detail the successful trade secrets claim at issue in the case and discuss important legal concepts such as how the lack of a confidentiality agreement between a business and its employees does not

Fifth District: Anders

Posted on April 22, 2009
If you are incarcerated, convicted, questioning your sentence, and faced with an Anders brief by your appellate counsel, you might be interested in this decision by the en banc Fifth District. In a pithy few lines of text, the court receded from its former view and agreed with two of its sister courts that a criminal defendant may file a pro se rule 3...

Fourth District: Material Concerns

Posted on April 20, 2009
Contract fans might be interested in this decision from the Fourth District. Condo fans, too. The case concerned a common scene in the current condominium real estate market: a buyer seeking to avoid a contract to purchase a condominium unit. As required by this statute, the contract at issue provided the buyer with an option to cancel the agreement if the developer materially altered or

Third District: Appellate Jurisdiction, Part II

Posted on April 17, 2009
Arbitration fans may wonder: Is a nonfinal order confirming an arbitration award appealable? If you read this portion of the Florida Arbitration Act, you might think the answer is yes. But if you read this decision by the Third District, you will be reminded that the answer is no...

Second District: Appellate Jurisdiction, Part I

Posted on April 17, 2009
Those involved with termination of parental rights and dependency cases may be interested in this decision from the Second District. The case involved an appeal from a placement order entered after the court found a child dependent but before the court concluded the proceeding...

Questions, question: Government Duties

Posted on April 16, 2009
If you know what a large fan I am of duty cases in the negligence context, then you will appreciate my interest in this decision issued yesterday by the Second District. The case involves a substance abuse counselor formerly licensed by the Department of Children and Families and two children the counselor abused...

Eleventh Circuit: Insurance

Posted on April 16, 2009
In the context of commercial motor vehicle insurance coverage and registration, this decision from the Eleventh Circuit points out the distinction between a policy's cancellation and its expiration. The former requires 30 days' written notice; the latter does not.

Real Problems With Virtual Authorities

Posted on April 14, 2009
In the last several years, Florida's appellate courts have begun to utilize online resources as authorities, most often online dictionaries and encyclopedias such as Wikipedia. I recall the first time any Florida or Eleventh Circuit opinion cited Wikipedia -- it was an Eleventh Circuit opinion authored by Judge Tjoflat and discussed in this October 2004 Abstract Appeal post...

Fifth District: Verdicts and Damages

Posted on April 14, 2009
Where a jury finds for a plaintiff but awards no damages, and no objection is made to the verdict, the trial court should enter judgment in the defendant's favor. So said the Fifth District in this decision. Judge Monaco authored an interesting special concurrence that explained how a more fair result in this particular case would have been a new trial, but the matter was not properly preserved.

Fifth District: Incest

Posted on April 14, 2009
Is it always lawful for two competent, consenting adults to know each other -- in the Biblical sense? No. This Florida statute prohibits incest, which is defined as marriage or sexual intercourse between persons related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece...

Fifth District: Negligent Brawlers

Posted on April 14, 2009
Could the scope of the intentional tortfeasor exception to the apportionment of fault be shrinking? Perhaps so. In this case involving a plaintiff who sued a restaurant over its security practices after he brawled with two others in the restaurant's parking lot, the Fifth District affirmed a trial court's decision to allow on the verdict form not only the restaurant but, as Fabre defendants,

Fifth District: Duty to Control

Posted on April 14, 2009
Duty fans will be interested in this decision, where the Fifth District considered what duty of care, if any, the Special Olympics owed to control volunteers who arrived early for bowling activities. The court determined that a special relationship under Restatement (Second) of Torts � 315 could exist between the Special Olympics volunteers and bowlers who arrived early to socialize.

Fifth District: First-Party Bad Faith

Posted on April 14, 2009
The Fifth District held in this decision that the attorney-client privilege still exists after an insured first files a first-party statutory bad faith case.

Fifth District: Limits on Appellate Review

Posted on April 14, 2009
This decision from the Fifth District demonstrates the limits inherent in an appellate court's jurisdiction. A circuit court sitting in its appellate capacity not only reversed the order on appeal but affirmatively enjoined a party to cease certain actions and took other unusual steps beyond a straightforward reversal...

Fifth District: Class Actions

Posted on April 14, 2009
As class action fans know, class certification decisions are relatively rare in Florida's appellate jurisprudence, which makes this decision affirming the denial of a certification motion a rarity. The Fifth District affirmed the denial based on the putative representative's inadequacy...

Questions, questions: Takings

Posted on April 14, 2009
In this order, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance: WHERE A LANDOWNER CONCEDES THAT PERMIT DENIAL DID NOT DEPRIVE HIM OF ALL OR SUBSTANTIALLY ALL ECONOMICALLY VIABLE USE OF THE PROPERTY, DOES ARTICLE X, SECTION 6(a) OF THE FLORIDA CONSTITUTION RECOGNIZE AN EXACTION TAKING UNDER THE HOLDINGS OF NOLLAN AND DOLAN WHERE,

Questions, questions: Termination of Parental Rights

Posted on April 14, 2009
Continuing a pattern of questions in the termination of parental rights context, the Fifth District in this case certified the following to the Florida Supreme Court as a question of great public importance: MAY A PARENT WHOSE PARENTAL RIGHTS HAVE BEEN TERMINATED CHALLENGE THE JUDGMENT OF TERMINATION BY PETITION FOR HABEAS CORPUS ON THE BASIS THAT THE PARENT WAS DENIED EFFECTIVE ASSISTANCE OF

Fifth District: Hey, Legislature!

Posted on April 14, 2009
The Fifth District would like the Legislature to take another look at section 443.151(4)(3), which provides that UAC orders are to be reviewed by the "district court of appeal in the appellate district in which the issues involved were decided by an appeals referee...

Certified Conflict: Presuit Notice

Posted on April 14, 2009
If a person files a workers' compensation claim and is fired as a result, is the person's claim for retaliatory discharge under section 440.205 a claim that first requires presuit notice be given under section 768.28? The Fifth District said no in this decision...

Fifth District: Loss of Consortium

Posted on April 14, 2009
This decision caught my attention because it ordered a new trial on a spouse's loss of consortium claim. The jury had awarded damages to the principal plaintiff but nothing for the spouse's consortium loss. The Fifth District held that at least nominal damages were necessary...

Fifth District: Attorney's Fees

Posted on April 14, 2009
This decision from the Fifth District reminds us that a district court cannot award attorney's fees in connection with supreme court work.

Fifth District: Claims Files

Posted on April 14, 2009
In this case, the Fifth District reminds us that an insurer's claims file is privileged work product until the insurer's obligation to provide coverage is established.

Fifth District: The Life and Death of Pre-Nups

Posted on April 13, 2009
Assume two persons enter a prenuptial agreement prior to being married. Now assume they divorce and, without a new agreement, later remarry. Does the prenuptial agreement entered before the first marriage apply to the second marriage? The Fifth District addressed that issue and more in this case...

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