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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

Florida Supreme Court: Appointment Time (continued)

Posted on July 07, 2009
Before delving into other recent decisions, I would like to return to last Thursday's mandamus decision by the Florida Supreme Court. The court faced a petition for a writ of mandamus filed by retired Judge Robert Pleus, formerly of the Fifth District...

Back In Blog

Posted on July 06, 2009
... later today.

Florida Supreme Court: Appointment Time

Posted on July 02, 2009
Today, the Florida Supreme Court issued this decision, which holds that Governor Crist must select district court of appeal judges within 60 days of receiving a list of nominees from the Judicial Nominating Commission. The court granted a petition by Senior Judge Robert Pleus to require the Governor to select a Fifth District judge from a list originally submitted to him on November 6, 2008...

Fifth District: Serious About Subject Matter Jurisdiction

Posted on June 04, 2009
Florida's appellate courts can and should raise the issue of subject matter jurisdiction when the parties ignore or overlook it. Recently, the Fifth District has issued two decisions that, sua sponte, delve into that area. One is rather simple. The other is simply significant...

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Fourth District: Arbitration, Part II

Posted on June 04, 2009
In the second of two arbitration decisions that the Fourth District released last week, available here, a divided court affirmed a waiver determination. The majority opinion is just over four pages long and includes three footnotes that were nearly as long as the opinion's text...

Fourth District: Arbitration, Part I

Posted on June 04, 2009
In the first of two arbitration decisions released last week by the Fourth District, the court held that a "mere attempt to settle a dispute outside the courtroom" does not establish a waiver of the right to arbitrate. The decision is available here.

Fifth District: Additur

Posted on June 01, 2009
When should a trial court order a new trial on liability -- not just damages -- after a party adversely affected by a potential additur objects to increasing the jury's verdict? In this decision, the Fifth District explains that the answer is when liability was "hotly contested...

Fourth District: Hey, Criminal Rules Committee

Posted on June 01, 2009
Now that the supreme court has dealt with complex case management, the Fourth District would apparently like the high court and the criminal rules committee to turn their rulemaking attention to something that is supposed to be less complicated: post-conviction relief...

Florida Supreme Court: It's Complicated

Posted on June 01, 2009
In this decision, the Florida Supreme Court accepted, with modifications, the recommendations of a complex litigation task force and adopted a new rule of civil procedure to address complex civil case management. The court did so over the unanimous objection of all members of the civil rules committee...

Certified Conflict: Standing Your Ground

Posted on June 01, 2009
In 2005, Florida adopted this law, which codified and expanded the common law's castle doctrine to include homes and vehicles and eliminated the duty to retreat from places where a person has a right to be. Some may recall the claims, including those made by major media such as the Washington Post, that Florida was wrongly codifying the ways of the Wild West and making more work for morticians.

Fourth District: Attorney-Client Privilege

Posted on June 01, 2009
This decision from the Fourth District shows that where a client testifies against the client's attorney at a deposition in a malpractice action, that testimony is not protected by the attorney-client privilege. The court denied a certiorari petition seeking to prevent discovery of such a deposition.

Fifth District: Constitutional Constraints

Posted on June 01, 2009
In a provision with a lengthy history, the Orange County charter authorizes a local board to review citizen complaints against the county sheriff's deputies and employees. In this thoughtful decision, the Fifth District examined that provision, its place in the county's charter-based government, and the conflicts between the charter's provisions and state statutes governing complaints regarding

Fifth District: Communication Breakdown

Posted on June 01, 2009
The Fifth District would appreciate more communication between counties that have charges pending against a single defendant. In this case, the court concluded a speedy trial violation occurred, requiring charges to be dismissed, after Indian River County would not transfer the defendant to Orange County for trial.

Fourth District: Appealability

Posted on June 01, 2009
Just a reminder here from the Fourth District that a notice of appeal does not permit an appellate court to review acts committed by the lower court after the appellant filed the notice.

Fifth District: Amendment 7

Posted on June 01, 2009
The saga of article X, section 25, continues. In this decision, the Fifth District held that the constitutional provision still known by its 2004 ballot number supersedes the work product privilege with respect to fact work product, though not opinion work product.

Back In Blog

Posted on June 01, 2009
A few things kept me away from here over the past two weeks. I completed three briefs, worked on several more, had an oral argument in Miami, took a quick trip to Baltimore, spoke at this function in Orlando, and, by reading this book, waded into a tremendously interesting area that will probably occupy me for some time to come...

Second District: Certiorari and Discovery Denials

Posted on May 14, 2009
Civil practitioners, add this decision from the Second District to the increasing pile of modern appellate cases that utilize certiorari to review and quash a trial court order denying discovery. Certiorari in the discovery context has long centered on "cat out of the bag" discovery orders that require discovery to be exchanged...

Second District: School Employees

Posted on May 14, 2009
Government employment can lead to some legal peculiarities, such as how employees may receive immunity from the use of statements made under threat of adverse employment action for the failure to answer questions, thus leading to an employee's obligation to answer without Fifth Amendment protection...

Second District: Sentencing

Posted on May 14, 2009
Sentencing fans -- you're out there, I know -- can have much fun with this decision from the Second District. The court spends some time on a subject it knows much about (whether a sentence is an illegal one under rule 3.800(a)), a subject it newly encounters (whether an illegal but fully served state sentence's effect on a federal sentence can be corrected by a state court habeas corpus

Supreme Path on Children's Behalf

Posted on May 08, 2009
This week proved to be a briefwriting bonanza for me, and the fun kept me away from here and discussing this week's big news out of Florida -- the U.S. Supreme Court's order granting review of the First District's decisions in Graham v. State and Sullivan v...

Law Day

Posted on May 01, 2009
Today is Law Day. To help promote it, I had the good fortune to speak last week to two history classes at a local high school. I always enjoy speaking with students about the law -- they pay attention and always have terrifically interesting questions about how the law can impact their lives...

Untimely

Posted on May 01, 2009
If you follow national legal news, you probably learned from items like this one about Mark Levy's apparent suicide yesterday morning. Mark headed up the appellate group at Kilpatrick Stockton in Washington D.C. I did not know Mark well but I was part of the planning committee that created the first two installments of the Eleventh Circuit Appellate Practice Institute, and Mark joined us for the

Third District: Oral Summary Judgment Motions

Posted on April 30, 2009
Observing that it goes without saying that one cannot serve an oral motion for summary judgment, and of course saying it, the Third District quashed a circuit court's appellate decision affirming an order granting such a motion. You can read the second-tier certiorari decision here.

Eleventh Circuit: The Reality of Virtual Contact

Posted on April 30, 2009
The federal sentencing guidelines include a sentence enhancement where a defendant's offense involves sexual contact. In this case, the offense involved a self-stimulating act conducted in front of an Internet camera being viewed by an undercover police officer whom the defendant believed to be a minor...

Third District: A Disturbed Affirmance, Names To Follow

Posted on April 28, 2009
Prosecutors, take note: "harmless" misconduct may still get you named in the Southern Reporter. The Third District's opinion and Judge Ramirez's concurring opinion in this case reflect serious concerns with the prosecutor's closing arguments in the trial below...

Third District: Sealing Records

Posted on April 28, 2009
The Third Distict would like to make a point about sealing records: if you wish to file something under seal, your motion should utilize the standards set forth in Barron v. Florida Freedom Newspapers, Inc. The court made this point publicly by publishing this order, which denied without prejudice an appellant's motion for leave to file an appendix under seal...

Third District: Class Actions

Posted on April 28, 2009
Class certification fans will surely be interested in this divided decision by the Third District. The court reversed a certification order involving overcharges made by a finance company. The majority opinion -- actually, both majority opinions -- concluded that the lack of uniform, knowing conduct by the defendant made the putative representative's claims insufficiently typical of the class's

Fifth District: Contracts

Posted on April 28, 2009
Contracts fans may be interested in this decision from the Fifth District. The case involved an attempt to bind municipalities to an agreement that their governing boards never approved. Overruling a trial court that ordered the purported agreement enforced, the appellate court explained why the statute of frauds could not be overcome by promissory estoppel or partial performance.

Fourth District: Appellate Traps, Pro Se Filings

Posted on April 27, 2009
Appellate practice can seem so simple, right? Draft a brief. Deliver an oral argument. Try to explain why a per curiam affirmance is an injustice.... The truth is that appellate practitioners tend to live in serious fear of procedural slip-ups. It can happen to anyone, and the only protection from a misstep (other than an understanding judiciary) is a healthy vigilance that somehow avoids

Judge Warner: Hey Rules Committees...

Posted on April 27, 2009
In a concurrence to this decision, Judge Warner recommends that the Criminal Procedure and Appellate Rules Committees amend rules 3.800(a) and 9.141 to set forth the record attachments requirement imposed by case law. In a time of budgetary crisis, where workload efficiencies must be maximized, her words ring out: Substantial time and expense are wasted in the courts because the rules of

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