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The Florida Appellate Blog

Covers the Florida state appellate courts and the United States Court of Appeals for the Eleventh Circuit.
By Lonn Weissblum

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Last Entry: February 11, 2009 at 15:05:45

Lawyers Are Professional Writers

Posted on February 11, 2009
As an appellate lawyer, I take writing very seriously. Success on appeal involves much more than being able to navigate the procedural aspects of handling the appeal. Since many appeals are decided exclusively on the briefs, the appellate lawyer’s writing ability is critical to success...

Adequacy of Faretta Inquiry

Posted on February 09, 2009
In Petty v. State, No. 1D07-4976 (Fla. 1st DCA Jan. 30, 2009), the defendant challenged his convictions and sentences for lewd and lascivious battery and unlawful sexual activity, arguing that the trial court failed to conduct an adequate inquiry under Faretta v...

Parol Evidence and Contradictory Will Provisions

Posted on February 06, 2009
In Garcia v. Celestron, No. 3D08-548 (Fla. 3d DCA Feb. 4, 2009), the appellant, who was the personal representative of her father’s estate and one of six beneficiaries of her father’s will, argued that the trial court improperly received parol evidence to determine her father’s intent...

Supreme Court: Governor Not Authorized to Sign Abramson?s Commission

Posted on February 04, 2009
Today, the Florida Supreme Court issued its advisory opinion on the issue of whether Governor Crist was authorized to sign the commission of Palm Beach County circuit judge-elect William Abramson. According to the Court, it was required to determine whether suspended lawyers are “member[s] of the bar of Florida” for the purpose of satisfying the [...

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Rappin? Pro Se Appellant Gets the Win

Posted on February 03, 2009
A pro se appellant in Wisconsin recently won his appeal after composing rap lyrics to include in the argument headings of his Reply Brief. Check out the Reply Brief by clicking here. Thanks to Louisiana appellate attorney Ray Ward for discussing the case on his blog.

Motions for Attorneys? Fees and Rule 1.525

Posted on January 30, 2009
In a 4-2 decision on Thursday (Justice Polston did not participate), the Florida Supreme Court held that Florida Rule of Civil Procedure 1.525 does not apply when a trial court: (1) already determined the entitlement to attorneys’ fees and costs in its final judgment; and (2) reserved jurisdiction only to determine the amount of attorneys’ [...

Discovery Violations and Attorney?s Fees

Posted on January 28, 2009
In Whitney v. Hill, No. 5D07-3825 (Fla. 5th DCA Jan. 23, 2009), the defendant below appealed from: (1) a final judgment entered after the trial court struck his pleadings and entered a default against him due to various discovery violations; and (2) the trial court’s order assessing attorney’s fees against him...

Migration to WordPress

Posted on January 27, 2009
Just wanted to advise my loyal readers that I officially migrated The Florida Appellate Blog to a self-hosted WordPress blog. Everything seems to have transferred smoothly to the new platform, and I plan to return to discussing the latest developments in the Florida appellate courts tomorrow...

Good Advice: The Top 30 Writing Blogs, Legal or Otherwise

Posted on January 26, 2009
Simply put, the power of the pen is an important key to an appellate attorney's success. Most appeals are decided solely on the written briefs submitted by the parties and without oral argument. Even if there is oral argument, the...

Supportive Relationship Under Section 61.14 Requires Reduction or Termination of Alimony

Posted on January 21, 2009
Today, in French v. French, No. 4D06-3860 (Fla. 4th DCA Jan. 21, 2009), the Fourth DCA agreed that the former wife was in a supportive relationship and remanded the case for the trial court to consider either a reduction or...

RSS Feed Address Change

Posted on January 19, 2009
For those of you who subscribe to The Florida Appellate Blog via RSS feed, there has been a slight change in the feed address. The new address is: http://feeds2.feedburner.com/TheFloridaAppellateBlog. Please change the address in your feed reader. For a short...

Real Estate Licenses and Suspensions

Posted on January 16, 2009
The downturn in the economy has resulted in an increase of appeals to the Florida District Courts of Appeal from license suspensions imposed by the Florida Department of Business and Professional Regulation ("DBPR"). In some cases, the suspension imposed by...

Fifth DCA JNC Showdown With Governor Crist Continues

Posted on January 14, 2009
The saga continues . . . After the 5th DCA Judicial Nominating Commission declined to revise its list of nominees for the vacancy on the 5th DCA, the governor has requested that the JNC reconvene and send him a new...

Exclusion of Tortfeasor From Verdict Form, Evidentiary Rulings, and Harmless Errors

Posted on January 12, 2009
In Petit-Dos v. School Board of Broward County, No. 4D07-2534 (Fla. 4th DCA Jan. 7, 2009), the plaintiff, who suffered serious injuries when a pick-up truck struck her as she attempted to cross the street after exiting a school bus,...

Plea Agreements and Revocation of Probation

Posted on January 08, 2009
In Gipson v. State, No. 4D06-4635 (Fla. 4th DCA Jan. 7, 2009), the defendant appealed from an order denying his motion for relief from an order revoking probation and sentencing him to 10 years in prison. The defendant initially pled...

Marital Settlement Agreements and Relief from Judgments

Posted on January 05, 2009
Family law and appellate attorneys in Florida should take note that there are limited circumstances in which a party can obtain relief from a judgment under Florida Rule of Civil Procedure 1.540(b) after the passage of the deadline to file...

Unemployment Appeals Commission: Misconduct or Not?

Posted on December 31, 2008
According to Section 443.101(1)(a), Florida Statutes (2008), an individual can be disqualified from receiving unemployment compensation benefits if she was discharged for misconduct connected with his or her work. "Misconduct" is defined as follows:"Misconduct" includes, but is not limited to,...

Dismissals With Prejudice and Appropriate Sanctions

Posted on December 29, 2008
In Shortall v. Walt Disney World Hospitality, No. 5D07-3235 (Fla. 5th DCA Dec. 24, 2008), the plaintiff below appealed from an order dismissing her case with prejudice based on a finding that she failed to respond to four discovery requests...

Judicial Appointment Controversy Heats Up

Posted on December 23, 2008
Over the last week, the controversy surrounding Governor Crist's requests that two JNCs provide him with more diverse lists of nominees to the Florida Supreme Court and the Fifth DCA has heated up. According to an article in today's Orlando...

An Issue of Great Public Importance or Not?

Posted on December 23, 2008
Under Florida Rule of Appellate Procedure 9.030(b)(4), the District Courts of Appeal have discretionary review powers of final and non-final orders of the County Court that are otherwise appealable to the Circuit Court when the County Court certifies an issue...

Orders Awarding Temporary Attorney's Fees in a Divorce

Posted on December 17, 2008
Orders awarding temporary attorney's fees in a divorce matter are required to contain certain findings. As the Second DCA explained in Heysek v. Heysek, No. 2D08-1758 (Fla. 2d DCA Dec. 17, 2008), such orders must contain factual findings regarding the...

Parents Do Not Have Authority to Execute a Pre-Injury Release

Posted on December 15, 2008
In Kirton v. Fields, Nos. 07-1739, 07-1741, 07-1742 (Fla. Dec. 11, 2008), the Florida Supreme Court held that a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves...

Good Advice From the Appellate Court: Cite to the Record

Posted on December 10, 2008
Florida Rule of Appellate Procedure 9.210(b)(3) requires the statement of case and facts section of an appellate brief to contain, among other things, references to the appropriate volume and pages of the record or transcript. Here is what Judge Warner...

The Graves Amendment and the Dangerous Instrumentality Rule

Posted on December 08, 2008
In Karling v. Budget Rent A Car System, Inc., No. 5D08-310 (Fla. 5th DCA Dec. 5, 2008), the plaintiff below appealed from an order granting summary judgment based upon the finding that the vicarious liability of short-term motor vehicle lessors...

5th DCA JNC to Governor: No Changes to Nominees

Posted on December 06, 2008
The battle between the 5th DCAJudicial Nominating Commission ("JNC") and Governor Crist is heating up. In response to the Governor's request that the JNC certify a new list of nominees for a vacancy on the 5th DCA, the JNC advised...

Non-Competes and Ex Parte Temporary Injunctions

Posted on December 03, 2008
Although Section 542.335, Florida Statutes, allows courts to enforce valid non-compete agreements by any appropriate remedy, including a temporary injunction, ex parte temporary injunctions must satisfy the requirements set forth in Florida Rule of Civil Procedure 1...

Governor Rejects List of 5th DCA Nominees

Posted on December 02, 2008
According to an article in The Florida Times-Union, Governor Crist rejected a list of six proposed nominees to the Fifth District Court of Appeal due to a lack of racial diversity.

Issue Framing for Appellate Lawyers in Florida and Beyond

Posted on December 01, 2008
Whether you're an appellate attorney in Florida or elsewhere, meaningful and effective framing of the issues in an appellate brief is an important skill. Over the weekend, Louisiana appellate attorney Ray Ward authored a very interesting post on the (new)...

Nonverbal Behavior and Peremptory Challenges

Posted on December 01, 2008
In Brown v. State, No. 3D07-2534 (Fla. 3d DCA Nov. 26, 2008), the defendant appealed from his convictions for armed robbery and armed carjacking, claiming that the trial court erroneously allowed a peremptory challenge by the State based on nonverbal...

Section 61.16 Attorney's Fees for Bankruptcy Services

Posted on November 26, 2008
In Hirschenson v. Hirschenson, No. 4D08-41 (Fla. 4th DCA Nov. 26, 2008), the former wife argued that the trial court erred in holding it had no authority under Section 61.16, Florida Statutes (2007), to award attorney's fees for services rendered...

Giving Thanks for Confessions of Error

Posted on November 26, 2008
In its pre-Thanksgiving release of opinions, the Fourth DCA issued an opinion in a civil case where the appellees confessed error. Confessions of error do not happen very often. When these situations do arise, however, appellate attorneys are wise to...

Child Custody Modification and Venue

Posted on November 24, 2008
In Vitale v. Vitale, No. 4D08-145 (Fla. 4th DCA Nov. 19, 2008), the mother appealed from an order transferring a child custody modification proceeding from Broward County to Collier County. The parties' marriage was dissolved in Broward County, and they...

Florida Retirement Commission Appeals: In-Line-Of-Duty Disability

Posted on November 20, 2008
Like appeals from other Florida state administrative bodies, appeals from the State of Florida, Division of Management Services, Division of Retirement are decided by the District Courts of Appeal. In Lawrence v. State of Florida, Division of Management Services, Division...

List of Names Sent to Governor for 4th DCA

Posted on November 17, 2008
Today, the 4th DCA Judicial Nominating Commission ("JNC") certified the nominees to the governor to fill the vacancies created by the upcoming departures of Judges Stone and Shahood. Here are the names: Judge Cory J. CiklinJudge Jonathan D. GerberJudge Alfred...

Justice Wells Resigns

Posted on November 17, 2008
Justice Charles T. Wells announced that he will resign from the Florida Supreme Court effective March 3, 2009. See the Florida Bar News online story by clicking here.

Unlicensed Real Estate Brokers and Commissions

Posted on November 17, 2008
In Schickedanz Bros.-Rivera Ltd. v. Harris, No. 4D07-2926 (Fla. 4th DCA Nov. 12, 2008), the Fourth DCA reversed a final judgment on a counterclaim involving real estate commissions. The appellee was an independent contractor paid on a commission basis by...

Temporary Injunctions Without Notice

Posted on November 14, 2008
In Beatty v. Aher, No. 5D08-2598 (Fla. 5th DCA Nov. 14, 2008), the appellants argued that the trial court improperly entered a preliminary injunction against them without notice. After the dispute between the parties arose, the appellee's counsel tried to...

Applicants for the Latest Supreme Court Vacancy

Posted on November 10, 2008
According to Friday's press release, eighteen individuals applied for the latest vacancy on the Florida Supreme Court. According to the press release, the interviews of the applicants will take place on December 8th and 9th in Tampa.

Severing Claims and the Words of Justice Douglas

Posted on November 10, 2008
In granting the defendants' Petition for Writ of Certiorari in Bethany Evangelical Covenant Church of Miami, Fla., Inc. v. Calandra, No. 3D08-1172 (Fla. 3d DCA Nov. 5, 2008), the Third DCA quoted Justice William Orville Douglas for the proposition that...

Contractor's Liens and Motions to Compel Arbitration

Posted on November 05, 2008
As the Fourth DCA ruled today, filing a motion to compel arbitration does not relieve a contractor from the requirements of Section 713.21(4), Florida Statutes. In Brookshire v. GP Construction of Palm Beach, Inc., No. 4D08-2643 (Fla. 4th DCA Nov....

Grand Theft and Value of Property

Posted on November 03, 2008
An essential element of a grand theft case is that the allegedly stolen property was worth at least $300, but less than $5,000 on the date of the theft. In White v. State, No. 1D07-4353 (Fla. 1st DCA Oct. 31,...

Public Records Requests and Prepayment

Posted on October 31, 2008
The Fourth DCA recently issued an interesting opinion on the issue of payment for copies made pursuant to a public records request. In Lozman v. City of Riviera Beach, No. 4D07-4511 (Fla. 4th DCA Oct. 29, 2008), the appellant made...

Administrative Orders and Exceptions

Posted on October 30, 2008
In Boundy v. School Board of Miami-Dade County, No. 3D07-2085 (Fla. 3d DCA Oct. 29, 2008), the Third DCA reversed a Final Order of the Miami-Dade County School Board which suspended the appellant for 30 days without pay. The School...

4th DCA Applicants Posted

Posted on October 28, 2008
Yesterday, the Fourth DCA Judicial Nominating Commission released the list of applicants who applied for the vacancies created by the resignations of Judge Shahood and Judge Stone. Click here to see the press release.

Workers' Compensation: Reasonable Attorney's Fees Allowed

Posted on October 23, 2008
Today, in a long-awaited decision, the Florida Supreme Court issued its opinion in Murray v. Mariner Health, No. SC07-244 (Fla. Oct. 23, 2008). In Murray, the Florida Supreme Court held that, based upon the plain language of Section 440.34, Florida...

Unemployment Appeals Commission: Good Cause Attributable to the Employer

Posted on October 22, 2008
Given the current state of the economy, individuals who are applying for unemployment compensation benefits in Florida may find the case of Mattice v. State of Florida, Unemployment Appeals Commission, No. 4D07-4842 (Fla. 4th DCA Oct. 22, 2008) to be...

Injunction for Protection Against Domestic Violence: Imminent Danger

Posted on October 20, 2008
In Ambrefe, Jr. v. Ambrefe, No. 2D08-433 (Fla. 2d DCA Oct. 15, 2008), the husband appealed from a final judgment of injunction for protection against domestic violence entered against him following a petition brought by his wife. At the hearing...

Waiver of Temporary Support in Prenuptial Agreement is Unenforceable

Posted on October 15, 2008
Today, in Aguilar v. Montero, No. 3D07-1068 (Fla. 3d DCA Oct. 15, 2008), the Third DCA held that a waiver of temporary support in a prenuptial agreement cannot be enforced. The parties entered into a prenuptial agreement which provided for...

Linstroth v. Dorgan Update

Posted on October 14, 2008
For those who may be interested, on September 26, 2008, a Brief on Jurisdiction was filed in the Florida Supreme Court in the Linstroth v. Dorgan case. The Linstroth case involves Section 61.14(1)(b), Florida Statutes, which is Florida's "supportive relationship"...

Probate Attorney's Fees: Services That Benefit The Estate

Posted on October 10, 2008
In Duncombe v. Adderly, No. 4D07-3193 (Fla. 4th DCA Oct. 8, 2008), the Fourth DCA reversed a probate court order denying the appellant's petition for attorney's fees for rendering services to an estate. The probate court's reasoning for denying the...

Right for the Wrong Reasons and Construction of Covenants Not to Compete

Posted on October 08, 2008
As the Third DCA indicated today, an appellate court may affirm a trial court's decision that reaches the correct result even if the appellate court does not agree with the trial court's reasoning. In Tri-County Concrete Products, Inc. v. Lower,...

Eighth Time is Not the Charm

Posted on October 06, 2008
The Third DCA recently released an opinion in which it precluded a defendant from filing further papers unless they are reviewed and signed by a member of the Florida Bar in good standing. In Lenoir v. State, No. 3D08-1631 (Fla....

Probate Litigation: Presumption of Intentional Revocation

Posted on October 02, 2008
Yesterday, the Fourth DCA issued an interesting opinion involving the presumption that a testator destroyed his or her will with the intention of revoking it where the will was in the testator's possession prior to death and could not be...

Police Captain Required to Resign to Run for Mayor

Posted on September 26, 2008
City of Tampa v. Lewis, No. 2D07-3282 (Fla. 2d DCA Sept. 26, 2008), concerns the issue of whether Florida's "resign-to-run" law in Section 99.012, Florida Statutes, required a police captain to resign from his position in order to run for...

Internet Printouts Do Not Support a Transfer of Venue

Posted on September 24, 2008
A printout from the internet is not sufficient to support a transfer of venue. In Padin v. Travis, No. 4D08-887 (Fla. 4th DCA Sept. 24, 2008), the plaintiffs brought an action in Broward County against two defendants who resided in...

School Board Improperly Rejected ALJ's Findings

Posted on September 23, 2008
In Fowler v. Escambia County School Board, No. 1D07-4826 (Fla. 1st DCA Sept. 22, 2008), the appellant sought to overturn an order of the Escambia County School Board which upheld her termination from employment. In upholding the termination of the...

The Aftermath of Glenn in the Eleventh Circuit: Doyle v. Liberty Life II

Posted on September 19, 2008
In June, I remarked that the Supreme Court's decision in Metropolitan Life Ins. Co. v. Glenn supported the comments made in January by a panel of the Eleventh Circuit in Doyle v. Liberty Life Assurance Co. of Boston ("Doyle I")....

Wills, Exploitation, Prior Bad Acts, and Harmless Error

Posted on September 18, 2008
In Johnson v. State, No. 4D06-2783 (Fla. 4th DCA Sept. 17, 2008), the defendant appealed from a conviction for exploitation of the elderly, arguing that the trial court erred in admitting evidence of the alleged victim's will under the Williams...

Appealable Partial Final Orders: Part II

Posted on September 16, 2008
Yesterday, the First DCA issued another opinion concerning the appealability of partial final orders. In Pohlman v. Aqua Condominium Developers, Ltd., No. 1D08-3454 (Fla. 1st DCA Sept. 15, 2008), the trial court dismissed two counts of a three count complaint...

Pregnancy Discrimination and the Florida Civil Rights Act

Posted on September 12, 2008
In Carsillo v. City of Lake Worth, No. 4D07-4236 (Fla. 4th DCA Sept. 10, 2008), the Fourth DCA held that the Florida Civil Rights Act ("FCRA") bars discrimination based on pregnancy. In Carsillo, a fire department employee requested light duty...

Successor Judges and Changes to Final Judgments

Posted on September 10, 2008
The Fourth DCA released a number of interesting opinions today, and I will discuss those opinions over my next few posts. Although Alcenat v. Alcenat, No. 4D07-998 (Fla. 4th DCA Sept. 10, 2008), is a family law case, the opinion...

Adieu to Amendments 7 and 9

Posted on September 08, 2008
Last week, in Ford v. Browning, No. SC08-1529, the Florida Supreme Court enjoined the Florida Secretary of State and all entities acting under his direction from placing Amendment 7 (Religious Freedom) and Amendment 9 (School Funding) on the November general...

Fraud in the Inducement, Copiers, and Manufacturer's Representations

Posted on September 05, 2008
In Output, Inc. v. Danka Business Systems, Inc., No. 4D07-2008 (Fla. 4th DCA Sept. 3, 2008), the Fourth DCA concluded that a plaintiff can state a cause of action for fraudulent misrepresentation when a defendant's alleged misrepresentation is included in...

Manifest Injustice and Credit for Time Served

Posted on September 03, 2008
In very isolated situations in the criminal context, the failure to appeal does not constitute the death knell with respect to certain forms of relief. In Allen v. State, No. 08-1562 (Fla. 4th DCA Sept. 3, 2008), the appellant sought...

Magistrate's Recommended Order and Leave to Amend Complaint

Posted on August 29, 2008
In Moore v. Liberty Mut. Ins. Co., No. 2D07-4376 (Fla. 2d DCA Aug. 29, 2008), the appellant/plaintiff appealed from an order entering judgment on the pleadings in favor of the appellee/defendant and from an order denying her motion to amend...

Tropical Storm Fay Tolling Orders

Posted on August 27, 2008
As a result of Tropical Storm Fay, the Florida Supreme Court issued several tolling orders relating to the District Courts of Appeal. Visit the Court's Administrative Orders page and scroll down to the "Emergency Request to Extend Time Periods Under....

Imputing Income in a Divorce Case: A Quick Primer

Posted on June 16, 2008
Today, the First DCA issued an opinion that is a good primer about what evidence and findings are necessary to impute income when considering an alimony award in a divorce case. In Griffin v. Griffin, the Husband testified that his...

?Supportive Relationship? Under Section 61.14(1)(b)

Posted on June 11, 2008
The Fourth DCA released a number of family law opinions today, one of which is Linstroth v. Dorgan. In Linstroth, the parties divorced in 1992 and the trial court awarded the former wife $2,775.00 per month in permanent periodic alimony....

11th Circuit Declines to Expand ERISA "Full and Fair Review"

Posted on June 11, 2008
After working on my fair share of ERISA cases over the past few years, which included some appeals in the United States Court of Appeals for the Eleventh Circuit, I try to keep an eye on the latest ERISA developments...

Florida Courts Budget Cut News

Posted on June 10, 2008
The June 15, 2008 issue of the Florida Bar News has the latest news on the effects of the budget cuts on Florida's court system. In addition to what I discussed regarding the 4th DCA last week, here is the...

4th DCA Change in Court Hours of Public Access

Posted on June 06, 2008
More budget cut news: the Fourth DCA recently posted a notice on its web site regarding a change in its hours of public access and the resulting effect on the acceptance of filings. The notice also indicates that the Court...

Municipality?s Immunity: Who Let the Dogs Out?

Posted on June 04, 2008
The Fourth DCA issued an opinion in City of Delray Beach v. St. Juste on the issue of whether a municipality's immunity is eliminated when two loose dogs injure a person and, despite being aware from several complaints that the...

1st DCA: Confess Error or Pay Section 57.105 Fees

Posted on June 02, 2008
The First DCA released an interesting opinion today which provides some very good advice to appellate attorneys: if you do not timely confess error, you face the prospect of an award of attorneys' fees under Section 57.105, Florida Statutes.

Florida Appellate Court Layoffs and Decertifications

Posted on May 30, 2008
The June 1, 2008 edition of the Florida Bar News contains an article about the upcoming layoffs in the state court system. With respect to the appellate courts, the article indicates that even with a proposal to reduce the lost...

Florida Supreme Court Grandparent Adoption Case

Posted on May 28, 2008
The Florida Supreme Court recently decided this case in which the 1st DCA certified the following question of great public importance: Does a trial court abuse its discretion granted by Chapter 63, Florida Statutes, when it denies an adoption petition...

Justice Bell Resigns

Posted on May 23, 2008
Florida Supreme Court Justice Kenneth B. Bell announced his resignation from the Court effective October 1, 2008. According to the press release, Justice Bell's reasons for leaving the Court are similar to those of Justice Cantero.