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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: Defendants Opposing Defendants? Summary Judgments

Posted on February 11, 2011
If a defendant moves for summary judgment on a plaintiff’s claims, can a co-defendant oppose that motion and move to continue the hearing while discovery is completed? Certainly, explained the Fourth District in this decision. The decision also shows that the co-defendant can appeal if the trial court’s rulings are adverse.

Fourth District: Lack of Prosecution

Posted on February 11, 2011
Before a case can be dismissed for lack of prosecution, how important is service of the notice referenced in rule 1.420(e)? Very. In this case, the Fourth District reversed a dismissal because no notice was served.

Farewell To Counsel

Posted on February 10, 2011
This decision notes the recent passing of Kathy Ramers, an appellate practitioner who specialized in family law appeals and frequently appeared in the Second District. She will be missed.

Third District: John Doe Pleading

Posted on February 10, 2011
This decision from the Third District reminds us that filing a complaint against “John Doe” is insufficient to commence an action in Florida against a real person in interest, and this deficiency cannot be corrected by serving the person.

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Third District: Service Time

Posted on February 10, 2011
How much discretion does a trial court have when deciding whether to extend the time for service of process on an expired claim? Not too much, if good cause or excusable neglect is shown, as the Third District explained in this decision. The district court reversed a trial court’s order dismissing an action with prejudice [...

Second District: Contempt

Posted on February 10, 2011
Trial courts may want to check out this decision from the Second District. The district court reversed a direct contempt judgment because the trial court did not determine whether the appellant was indigent and entitled to counsel. The appellant was a member of the public who attended a proceeding and apparently lashed out at the [...

Third District: Warranty Deeds and Homestead

Posted on February 10, 2011
Real property fans may be interested in this decision, where the Third District considered the validity of a 30-year-old warranty deed transferring homestead property from a tenancy by the entireties to just one of the spouses. The appellants unsuccessfully argued that the warranty deed was an insufficient waiver of the constitutional homestead right.

Third District: Insurance Appraisals

Posted on February 10, 2011
Insurance fans may wish to check out the Third District’s decision in this first party case, which held that until a policy’s post-loss conditions were met, a trial court could not order an appraisal on the amount of loss.

Second District: Certiorari, Presuit

Posted on February 10, 2011
Medical malpractice fans may be interested in this decision. The Second District held that claims against pharmacists and a hospital did not require presuit notice because the pharmacists were not health care providers under the presuit notice statutory scheme and the hospital was not sued for medical malpractice.

Second District: Certiorari, Abatement

Posted on February 10, 2011
This decision from the Second District explained that orders abating proceedings can be reviewed by certiorari. The decision also held that abatement can be based on a second proceeding only where a “strict identity of parties” exists and “the plaintiffs and the defendants in the actions are the same...

Health Care Litigation Fallout

Posted on February 09, 2011
Today’s Palm Beach Post has this story about Florida’s position on the 2010 federal health care legislation after a federal district court entered a judgment for Florida declaring the law unconstitutional.

Florida Supreme Court: One Case, Multiple Losers, And A Discovery Question

Posted on February 09, 2011
In this attorney discipline decision, the Florida Supreme Court disbarred the respondent because he practiced law during a previously imposed three-year suspension from practice. The case struck me as noteworthy for two reasons. First, this was a disciplinary proceeding brought by the bar, and three justices joined a concurrence that heavily criticized the bar’s counsel [...

Florida Supreme Court: Bankruptcy, Personal Property Exemption

Posted on February 09, 2011
In this decision, the Florida Supreme Court considered a question certified by the Eleventh Circuit regarding whether a bankruptcy debtor can claim this statute’s $4,000 personal property exemption if that person owns homestead property but elects not to claim the constitutional homestead exemption...

Florida Supreme Court: Help On Jimmy Ryce

Posted on February 09, 2011
In December, I published this post about a Second District pass-through order that sent a Jimmy Ryce Act dilemma straight to the Florida Supreme Court. As the post explained in some detail, the case involves a man who has been detained for eight years under Florida’s Jimmy Ryce Act without receiving a trial or treatment...

Red Bull Defense?

Posted on February 08, 2011
Today’s St. Pete Times has this story about how prosecutors in St. Petersburg are evaluating a murder suspect’s apparent claim that he was insane at the time of the crime due to a combination of sleep deprivation and Red Bull.

First District: Family Law, Delayed Rulings

Posted on February 08, 2011
This decision shows that a reversal can be built upon a lengthy delay in issuing a decision and an indication that something is “seriously amiss on the merits.” The First District reversed a dissolution judgment entered more than a year after the trial court held an evidentiary hearing on the matter...

First District: Administrative Hearings

Posted on February 08, 2011
Administrative law fans should also be interested in this decision, where the First District took a division of the Department of Business and Professional Regulation to task for determining that a permit applicant lacked standing to challenge the denial of its permit application...

First District: Administrative Finality

Posted on February 08, 2011
Administrative law fans will appreciate this decision, which held that the appellate court lacks jurisdiction to review a hearing officer’s “final order” under section 409.1541(5)(b), Florida’s Road-To-Independence scholarship program for former foster children...

First District: Impact Rule

Posted on February 08, 2011
This decision should be interesting to those who follow Florida’s impact rule, a rule that somewhere along the way morphed from being rooted in duty limitations to one framed as a matter of necessary damages. The First District reversed a negligent infliction of emotional distress award involving a family member who dismembered his mother’s body [...

First District: Class Actions

Posted on February 08, 2011
Class action fans should be interested in this decision. The First District affirmed orders certifying classes while indicating that the propriety of certification would turn on a legal issue not yet decided.

Welcome Back, Robert

Posted on February 07, 2011
It is good to see Robert Lincoln back at his Florida law blog, Florida Land Use Law. He and I were two of the earliest Florida law bloggers. We both did it for years, took some time off, and — it would seem — are both enjoying getting back in stride.

Judge Kahn To The Federal Bench?

Posted on February 07, 2011
The Buzz reports here that Judge Kahn has been “nominated” for a federal magistrate position in the Northern District of Florida. The report suggests that the district court judges have selected Judge Kahn for the Pensacola position and he is currently undergoing a background check...

Certified Question: Ineffective Assistance, Now or Then?

Posted on February 07, 2011
Should a court declare your attorney ineffective, constitutionally speaking, if raising a point during your representation would have entitled you to relief but the law on which that relief would have been based has now been rejected as incorrect? In this decision, the Second District said no, but it certified the following to the state [...

Fifth District: Abating Bad Faith Claims

Posted on February 07, 2011
This certiorari decision from the Fifth District reminds us that a bad faith claim’s abatement should continue, even though an underlying breach of contract has been found, if the breach of contract decision is on appeal.

Certified Question: Manslaughter By Act Instruction

Posted on February 07, 2011
The flawed manslaughter by act standard instruction continues to work mischief. It did so again in this case, where the Second District certified the following to the state supreme court as a question of great public importance: IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN A CASE WHERE THE [...

Fifth District: NICA

Posted on February 07, 2011
Those who follow NICA case law should be interested in this decision. The Fifth District explained that NICA immunity applies only to claims that fall within the act, and since the only attending obstetrician during the delivery at issue was not a participating physician under NICA, then neither NICA nor its immunity applies — even [...

Certified Question: Class Action Waivers

Posted on February 04, 2011
This decision arguably invites more questions than it answers, but the Fourth District does give one very clear answer: in a case involving various consumer protection statutes, the court held that a class action waiver contained in a check cashing company’s arbitration agreement violated Florida’s public policy and resulted in the denial of the company’s [...

Certified Question: Vacating Voluntary Dismissals For Fraud

Posted on February 04, 2011
Sitting en banc in this case, the Fourth District considered whether a former defendant in a case the plaintiff voluntarily dismissed could set aside the dismissal to raise fraud on the court issues even if the plaintiff received no affirmative relief prior to the dismissal...

Appellate Discretion

Posted on February 03, 2011
Two decisions released yesterday show that the appellate courts are taking a serious interest in not revealing the names of nonparties involved with, or accused of, questionable or perhaps just highly personal activities. In this decision, the Third District did not give the names of a juror asserted to be intoxicated during trial or another [...

Second District: Certiorari, Obtaining Settlement Documents

Posted on February 03, 2011
Extraordinary writ fans are surely noticing the district courts’ increasing use of certiorari to quash orders denying discovery. I am the author of an extensive chapter on pre-trial writs in this bar publication, and I like to write on the subject, so I have a particular interest in the area...

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