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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: 1.2/day

Last Entry: August 12, 2011 at 14:41:28

Health Care Litigation: The Eleventh Circuit Agrees The Mandate Is Unconstitutional

Posted on August 12, 2011
This decision will attract a great deal of attention. It should. Today, the Eleventh Circuit held that the individual insurance mandate contained in the massive 2010 health care legislation violates the federal constitution because Congress acted beyond its authority under the Commerce Clause...

People Say I?m Lazy?

Posted on July 08, 2011
Dreaming my life away. Well they give me all kinds of advice… You know the rest. Lennon had been spending time raising a family in New York. My story is a little different. When I abruptly stopped posting in late February, I expected the break to last about 10 days...

Hey Legislature: That MedMal Immunity Is Illusory

Posted on February 21, 2011
This decision from the Fourth District examined section 768.135, the title of which references immunity for volunteer sports team physicians. There is a problem. As the court pointed out, the statute’s immunity applies only where the volunteer physician acts “as a reasonably prudent person similarly licensed to practice medicine would have acted under the same [...

Fourth District: No Jurisdiction, But Directions

Posted on February 21, 2011
The plaintiff in this case attempted to appeal a circuit court’s order refusing to reopen a file. The Fourth District determined that the order was not appealable as a final or non-final order and dismissed the appeal. Interestingly, despite the lack of jurisdiction, the appellate court observed that the rules of civil procedure do not [...

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Fourth District: Treating Treaters As Experts, Or Not

Posted on February 21, 2011
This decision from the Fourth District considered whether a treating physician was an expert whose opinions were required to be disclosed prior to trial under rule 1.280(b)(4). The court held that disclosure was required for a treating physician only for opinions acquired or developed in anticipation of litigation or for trial, and because the opinions [...

Second District: Fake Prescriptions, Privacy

Posted on February 21, 2011
For search and seizure purposes, can a defendant have an expectation of privacy in a fake prescription? No, said the Second District in this case.

Fourth District: Uninsured Motorist Coverage

Posted on February 21, 2011
Suppose a man signs a document rejecting uninsured motorist coverage under an auto insurance policy. Can the man then sue his insurance agent for negligently failing to procure uninsured motorist coverage? No, said the Fourth District in this case, even if the man claims he did not read the document.

Fourth District: Face-To-Face Informants

Posted on February 21, 2011
Criminal law fans may wish to check out this intriguing decision. The Fourth District reversed a conviction because the vehicle stop that led to the appellant’s arrest was not based on a reasonable suspicion. The case turned on the usefulness of an anonymous but face-to-face informant.

Third District: You Can?t Do That That, Either

Posted on February 18, 2011
May a Florida appellate court issue a decision that reverses a lower court’s decision without explaining why — the so-called per curiam reversal? No. Does that prohibition extend to certiorari orders that quash lower tribunal decisions without explanation? Yes, as the Third District held in this decision.

Second District: You Can?t Do That

Posted on February 18, 2011
A defendant in a criminal case requests an instruction on a lesser-included offense, is convicted of the lesser-included offense, and then contends that the evidence was insufficient to support that conviction. Can you do that? It was tried in this case, where the Second District explained that, under such circumstances, the conviction for the lesser-included [...

First District: Nursing Home Battery?

Posted on February 18, 2011
I have no idea whether this case drew any attention in the Tallahassee area, or what the story behind the story could be, but it does seem peculiar that a man who took his 94-year-old mother from a nursing home to a hospital emergency room was charged with, and convicted of, battery...

Third District: Open and Obvious Dangers

Posted on February 18, 2011
Is the oil in a deep fryer in a bakery’s kitchen an open and obvious danger to employees of an independent contractor hired to clean the exhaust hood over the fryer? The Third District divided over such a question in this case. The majority essentially determined that questions of fact exist, based largely on evidence [...

Second District: Negligence During Arrest

Posted on February 18, 2011
This decision involved the differences between intentional and negligent acts. The case stemmed from an off-duty police offer’s arrest of a man at a flea market. The market’s operator employed the officer to provide security, and the man sued the flea market operator for personal injuries, claiming negligence in connection with the officer’s alleged use [...

Third District: Surveillance Videos

Posted on February 18, 2011
In this case, the Third District granted a certiorari petition and quashed an order requiring production of a surveillance video because the order did not first afford the surveilling party an opportunity to depose the subjects of the video.

First District: Settlement Proposals

Posted on February 18, 2011
In this case, the First District reversed an order finding that an insurer’s nominal offer of judgment was not made in good faith. The trial court considered only objective factors, such as the amount of the proposal and the amount at issue in the litigation...

First District: Attorney?s Fees Findings

Posted on February 18, 2011
Just a quick reminder here from the First District: fee-shifting awards must include findings on the reasonable number of hours worked, the reasonable hourly rate, and the appropriateness of any reduction or enhancement.

Eleventh Circuit: Florida Robbery, A Crime Of Violence

Posted on February 16, 2011
Florida’s robbery statute is a generic robbery statute. So said the Eleventh Circuit on its way to holding that an attempted robbery conviction under Florida law constitutes a crime of violence for federal sentencing purposes. The decision is available here.

Eleventh Circuit: Forum Selection Clauses

Posted on February 16, 2011
This decision from the

Eleventh Circuit: The Power of Two, And Of A Picture

Posted on February 16, 2011
This decision by the Eleventh Circuit caught my eye for three reasons. First, the panel ultimately consisted of only two judges because a third judge originally assigned to the case retired months ago. The quorum agreed on the case’s disposition and resolved the case...

New Appointment ? Judge Conner

Posted on February 16, 2011
Congratulations to Judge Burton Conner, whom Governor Scott has appointed to the Fourth District Court of Appeal. Since 1997, Judge Conner served as circuit judge in the Nineteenth Circuit. The Governor’s announcement is available here.

Repeal Zeal

Posted on February 15, 2011
This story in the St. Pete Times discusses a legislator’s efforts to clean Florida’s statute books and repeal laws like this one, which makes it a crime to live in open adultery, and the portion of this law that makes it illegal for a man and woman not married to each other to “lewdly and [...

Fifth District: 57.105 Appellate Fees

Posted on February 14, 2011
Can you obtain an appellate attorney’s fees award under section 57.105 based on a lack of merit with regard to the trial court proceedings? No, explained the Fifth District in this decision. An appellate court’s fee award for lack of merit should be with reference to the appeal, not the trial court proceedings...

First District: Justifiable Reliance

Posted on February 14, 2011
Those who follow fraudulent and negligent misrepresentation cases should be interested in this decision from the First District. The court held that, because justifiable reliance is not the equivalent of due diligence, “a misrepresenter is precluded from arguing that the recipient of information did not justifiably rely because he or she failed to conduct an [...

First District: Waiving Workers? Compensation Appeals

Posted on February 14, 2011
This decision serves as a simple reminder that, under rule 9.180(b)(2), a claimant in a workers’ compensation case waives the right to appeal from an abbreviated final order unless a request for findings of fact and conclusions of law is timely filed.

First District: UAC Findings

Posted on February 14, 2011
Unemployment law fans may be interested in this decision, where the First District urged the Unemployment Appeals Commission to demand accurate, specific fact-finding from its referees. For lack of such findings, the district court reversed a decision and remanded for further proceedings.

Judge Altenbernd: Nelson Assistance Needed

Posted on February 14, 2011
In his concurrence in this case, Judge Altenbernd echoed the calls of opinions past in asking the circuit court conference to create a bench book to assist trial judges with Nelson hearings.

Fifth District: Dangers To The Public

Posted on February 14, 2011
Can a habitual thief, “willing to steal anything and everything” but with no history of violence, be found to pose a danger to the public? Yes, said the Fifth District in this case.

Fifth District: Damages

Posted on February 14, 2011
Those interested in personal injury cases may wish to note this decision, where the Fifth District reversed a judgment that awarded a plaintiff future economic damages but no future noneconomic damages. The appellate court determined that some future noneconomic damages should have been awarded and remanded for a new trial on damages.

Second District: Appellate Costs

Posted on February 14, 2011
Just a simple reminder at the end of this decision from the Second District: motions for appellate costs are not properly filed in the appellate court. The district court struck such a motion.

Fourth District: Appellate Rules In Disguise

Posted on February 11, 2011
Can you think of a rule of civil procedure that acts like a rule of appellate procedure by expressly directing how an appellate court should act in a particular situation? How about rule 1.530(f)? It provides that if a new trial ruling fails to state specific grounds, the appellate court shall relinquish jurisdiction to the [...

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