Appeal

Is the “Bad” Appellate Case Binding or Persuasive?

Posted by David Adelstein on November 14, 2017
Appeal, Trial Perspectives / Comments Off on Is the “Bad” Appellate Case Binding or Persuasive?

There are times I hear that because the “bad” appellate case is in another appellate district compared to the appellate district where my case is located, that “bad” case is not binding. This sentiment is not necessarily true, particularly if there are no interdistrict conflicting opinions relating to the “bad” appellate case (and, more appropriately, the legal issue that “bad” case deals with).   This was explained by the Florida Supreme Court in Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992):

This Court has stated that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this [Florida Supreme] Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980). Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts. Weiman v. McHaffie, 470 So.2d 682, 684 (Fla.1985). The purpose of this rule was explained by the Fourth District in State v. Hayes:

The District Courts of Appeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts—District Courts of Appeal. The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between District Courts of Appeal, a sister district’s opinion is merely persuasive.

333 So.2d 51, 53 (Fla. 4th DCA 1976).

In other words, and further noted by the Florida Supreme Court, “Absent an opinion from this Court, all trial courts in this State would be bound by the opinion of the First District [or any appellate district] until there is a contrary decision from the appellate court in their own district.Charles v. Southern Baptist Hospital of Florida, Inc., 209 So.3d 1199, n.2 (Fla. 2017).

Also, federal district and circuit court cases (absent the United States Supreme Court) are not binding precedent on trial courts. Rather, they are persuasive authority. See State Farm Mut. Auto. Ins. Co. v. Edge Family Chiropractic, P.A., 41 So.3d 293, 297 (Fla. 1st DCA 2010) (“First, the [federal] cases are not binding precedent; they are, at most, persuasive authority.”); Roland v. Fla. East Coast Ry., LLC, 873 So.2d 1271, n.5 (Fla. 3d DCA 2004) (“This court is bound by decisions of the United States Supreme Court and the Florida Supreme Court. Decisions of the federal courts of appeals are persuasive but not binding.”) (internal citation omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein on November 04, 2017
Appeal, Burden of Proof, Standard of Review, Trial Perspectives / Comments Off on Striking / Excusing a Prospective Juror for Bias during Voir Dire

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions). Having the opportunity to speak to them and ask them questions cannot be overlooked! Parties need a reasonable opportunity to ask prospective jurors questions during voir dire.

An important part of voir dire is to figure out biases of potential jurors. Obviously, if a juror cannot truly be impartial or fair based on their preconceived biases, then an attorney will want them stricken for cause. But in order to truly determine whether a juror has a bias that should render them stricken for cause, both sides need the reasonable opportunity to question the venire. Otherwise, the determination of a juror’s prejudicial bias will be one-sided based on one side’s questioning without any context from the questions the opposing side will ask.

In recent case, Irmi v. Estate of Dale Moyer, 42 Fla. L. Weekly, D2156b (Fla. 4th DCA 2017), dealing with wrongful death associated with cigarette smoking, the plaintiff’s counsel asked the venire whether they felt that if someone has been smoking essentially all of their life whether their family should not be allowed to file suit against the tobacco companies. Numerous jurors felt that the family should not be allowed to sue in this scenario. Such jurors were then asked whether this belief was strongly held and if they had a reasonable doubt whether they could set this feeling aside (establishing the bias of the jurors). The defense counsel wanted the opportunity to question such jurors in private to see if any of them could be rehabilitated (so they are not stricken for cause) but the court would not allow this. The defense counsel then wanted the opportunity to speak with the entire venire panel before the court struck jurors for cause based on their bias regarding long term cigarette smoking. The court denied this, over the defense counsel’s objection, and allowed approximately 30 jurors to leave without the defense ever questioning them.

After a jury verdict was entered for the plaintiff, the defendant moved for a new trial arguing that the court erroneously dismissed jurors for cause after the plaintiff’s questioning during voir dire without ever allowing the defense to question these jurors. The trial court recognized this error and granted a new trial because the court prevented the defense from its reasonable opportunity to question jurors about biases based on the plaintiff’s voir dire questioning. The plaintiff appealed the trial court’s granting of a new trial.

When an appellate court reviews a trial court’s order granting a new trial, it is done under a limited abuse of discretion standard of review. “A trial court’s discretion to grant a new trial is of such firmness that it would not be disturbed except on a clear showing of abuse.” Irmi, supra, quoting Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008).

Here, the trial court granted a new trial because it realized it excused jurors for cause based on bias without allowing the defense the opportunity to ever question these jurors. When a trial court is deciding whether to excuse a juror for bias, the test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions.” Irmi, supra (internal quotation and citation omitted). This means that each side – both the plaintiff and defense – must be given an opportunity to orally question jurors so that the entire context of the juror’s answers can be considered. “A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial. To determine whether such reasonable doubt exists, the trial court should consider the context and entirety of the juror’s responses.” Irmi, supra (internal quotation and citation omitted).

In this situation: “The trial court had the unique perspective to reflect upon its own decision to eliminate thirty-one people from the venire without allowing the defense to ask a single question. We provide great deference to trial courts in making such decisions. We agree with the trial court in correcting its initial error and granting a new trial.” Irmi, supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore…

Posted by David Adelstein on September 23, 2017
Appeal / Comments Off on Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore…

 

In an earlier posting, I discussed the difference between a motion for rehearing and motion for reconsideration.  

From that posting, you know that a motion for rehearing is a post-trial motion and, in particular, a motion that applies post-judgment. A properly filed motion for rehearing will toll the time to file an appeal. 

There are times where a party after a judgment is entered will file a motion for rehearing. Then, before that motion is ruled on, will file a notice of appeal. Why? The party is not appealing the order on the motion for rehearing because such an order has not been issued. Thus, the party is filing a notice of appeal of the judgment – yes, the same judgment that prompted the motion for rehearing.

Previously, the law stated that the party abandoned its post-trial motion for rehearing. “[B]y filing a notice of appeal prior to obtaining a ruling on the motion for rehearing, Appellant abandoned its motion.” Dep’t of Revenue v. Vanamburg, 174 So.3d 640, 642 (Fla. 1st DCA 2015) (“Florida Rule of Appellate Procedure 9.020(i)(3) provided that if a motion for hearing or a motion to alter or amend, among other post-judgment motions, is filed ‘and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal.’”). See also Kee v. Bailey, 634 So.2d 654 (Fla. 3d DCA 1994) (“The Florida Supreme Court has clearly stated that a party abandons previously filed post-judgment motions when he files a notice of appeal of that judgment.”).

In 2015, Florida Rule of Appellate Procedure 9.020(i)(3) was amended to eliminate the abandonment of such post-judgment motions.  Now, the  Rule states that if the Notice of Appeal is filed before the trial court issues an order on the post-judgment motions, the appeal is held in abeyance:

If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, the appeal shall be held in abeyance until the filing of a signed, written order disposing of the last such motion.

And, what if the party filed a motion for rehearing, but then withdrew the motion for rehearing and filed a notice of appeal? In this scenario, “the rendition of the final judgment in this circumstance occurs at the time the notice of appeal is filed, not at the earlier time when the final judgment is entered.” Rice v. 1989 Ford Bronco, 609 So.2d 639, 640 (Fla. 2d DCA 1992).   In other words, when a party abandons its timely filed post-trial motion, the abandonment occurs when the notice of appeal is filed. And, thus, the time to file the notice of appeal is not initiated when the final judgment is entered, but when the post-trial motion is abandoned such as through the filing of the notice of appeal. See Rice, supra, (denying motion to dismiss appeal as untimely due to post-trial motion being abandoned by party filing notice of appeal).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Motion for Rehearing or Reconsideration: What is the Difference?

Posted by David Adelstein on September 03, 2017
Appeal / Comments Off on Motion for Rehearing or Reconsideration: What is the Difference?

Motions titled rehearing and reconsideration are routinely used interchangeably, as if there is no difference between the name “rehearing” and the name “reconsideration. There is a difference though. A motion for a rehearing is distinct from a motion for reconsideration and this distinction is key. Not understanding the difference between a motion for rehearing and motion for reconsideration can result in an untimely appeal.

Motions for rehearing apply to final judgments. They are filed pursuant to Florida Rule of Civil Procedure 1.530 because they “only apply to final judgments and ‘those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.’” Seigler v. Bell, 148 So.3d 473, 478 (Fla. 5th DCA 2014) quoting Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1290, n.6 (Fla. 3d DCA 1986).

Motions for reconsideration, on the other hand, apply to non-final, interlocutory orders prior to final judgment. Helmich v. Wells Fargo Bank, N.A., 136 So.3d 763, 765 (Fla. 1st DCA 2014). These motions are based on the trial court’s “‘inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action.’” Seigler, 148 So.3d at 478 quoting Silverstrone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998).

Although a motion for rehearing and motion for reconsideration are oftentimes mistitled, a court will treat a mistitled motion for reconsideration as a motion for rehearing and vice-versa. Seigler, 148 So.3d at 479. Mistitling or not understanding the distinction between the two motions can be problematic since “[a] motion for reconsideration does not toll the time to file an appeal from a non-final order.Agere Systems, Inc. v. All American Crating, Inc., 931 So.2d 244 (Fla. 5th DCA 2006). Conversely, a properly filed motion for rehearing will toll the time to file an appeal. Remington v. Remington, 705 So.2d 920, 922 (Fla. 4th DCA 1997); But see E-Z Marine Supply, Inc. v. Wachovia Commercial Mortgage, Inc., 875 So.2d 279 (Fla. 4th DCA 2004 (improperly filed motion for rehearing will not toll time to file appeal).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Not All Non-Final Orders are Immediately Appealable

Posted by David Adelstein on July 30, 2017
Appeal / Comments Off on Not All Non-Final Orders are Immediately Appealable

Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you receive a non-final order that you believe impacts rights and decisions moving forward, make sure to review Florida Rule of Appellate Procedure 9.130 regarding those immediately appealable non-final orders.

 

In a recent insurance coverage dispute (discussed here), the trial court declared that the insurer had a duty to defend its insured in a personal injury lawsuit.   This declaration was issued in response to a motion for summary judgment. But, the order granting the summary judgment was a non-final order. The trial court did not enter a judgment against the insurer and did not declare the insurer was obligated to indemnify its insurer. Instead, the trial court simply declared that the insurer had an obligation to defend its insured in the lawsuit based on the underlying allegations in the lawsuit. The insurer did not like this declaration from the trial court and appealed.

 

The Third District dismissed the appeal holding that the trial court’s order was not an appealable non-final order.   Just because the trial court issued an order granting an insured’s summary judgment does not in of itself make that an appealable final order. If there are no words of finality concluding the dispute, the order granting summary judgment is simply a non-final order.   In this case, all the trial court declared was that the insurer had a duty to defend – but there was no declaration regarding the duty to indemnify or regarding potential damages.  Hence, the appellate court did not have jurisdiction to entertain the immediate appeal of the non-final order.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Insurance Policy Construction is a Question of Law

Posted by David Adelstein on July 15, 2017
Appeal, Standard of Review / Comments Off on Insurance Policy Construction is a Question of Law

I am sure you have an insurance policy…some type of policy. An automobile liability policy. A commercial general liability policy. A professional liability policy. A property insurance policy.   A directors and officers liability policy. A workers compensation insurance policy. There are many types of insurance policies. I am sure you have some insurance policy to protect you or your business’s needs or risks.   You may have even been involved in an insurance coverage dispute or have had issues dealing with insurance coverage.

If you read any one of your insurance policies, you will probably be left with more questions than answers. You will be asking yourself “what does this mean?” or “what does this say?” and will often be left bemoaning “huh!?!” with every other sentence you read.  This is the exact reason why there are insurance coverage disputes.

When it comes to insurance coverage disputes and the interpretation of the language in an insurance policy, the Florida Supreme Court importantly explained:

Insurance policy construction is a question of law subject to de novo review.  Courts construe insurance contracts according to their plain language.  However, “any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.”  A provision is ambiguous if it is “susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage.”  The ambiguity must be genuine, and the lack of a definition for an operative term “does not, by itself, create an ambiguity “When a term in an insurance policy is undefined, it should be given its plain and ordinary meaning, and courts may look to legal and non-legal dictionary definitions to determine such a meaning.” 

Government Employees Insurance Co. v. Macedo, 42 Fla. L. Weekly S731a (Fla. 2017) (internal citations omitted).

Obviously, if you have an insurance coverage dispute, you want to make sure you are represented by an attorney that understands the complexities of insurance coverage.  Nonetheless, it is imperative that you understand that insurance policy construction is a question of law for the Court with a de novo standard of appellate review.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Posted by David Adelstein on June 25, 2017
Appeal / Comments Off on Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion!  Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis.

Florida Rule of Appellate Procedure 9.400 governs appellate costs and fees.   This Rule provides:

(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include

(1) fees for filing and service of process;

(2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;

(3) bond premiums; and

(4) other costs permitted by law.

Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order. If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court.

(b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not later than:

(1) in appeals, the time for service of the reply brief; or

(2) in original proceedings, the time for service of the petitioner’s reply to the response to the petition.

The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce payment.

(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.

The entitlement to attorney’s fees must be supported by a statutory or contractual basis. State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007).   It is incumbent on a party to timely file a motion for appellate attorney’s fees if they want to recover attorney’s fees relating to the appeal.  An appellate court has jurisdiction to award appellate attorney’s fees. Bartow HMA, LLC v. Kirkland, 146 So.3d 1213, 1215 (Fla. 2d DCA 2014).   “Once the appellate court determines that an award of appellate attorney’s fees is appropriate, a mandate is issued to the trial court to impose the fees after conducting a hearing. Absent a mandate, the trial court has no jurisdiction to award appellate attorney’s fees.” Respiratory Care Services, Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Stay Money Judgment Pending Appeal

Posted by David Adelstein on February 24, 2017
Appeal / Comments Off on Stay Money Judgment Pending Appeal

A money judgment is entered against you, but you are going to appeal. Can the collection of the money judgment be stayed pending appellate review? Yes.

Florida Rule of Appellate Procedure 9.310 provides in material portion:

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.

(b) Exceptions.

(1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria.

A recent opinion out of the First District Court of Appeals shed some light on these provisions (even though there is conflicting opinions in other appellate jurisdictions). See Silver Beach Towers Property Owners Association, Inc. v. Silver Beach Investments of Destin, LC, 42 Fla. L. Weekly D442c (Fla. 1st DCA 2017).

The Court explained that the money judgment exception above in Rule 9.310(b)(1) “allows a party in an appeal of a money judgment to obtain a stay from the lower tribunal without following the procedure outlined in rule 9.310(a), which requires the filing of a motion to stay with the lower tribunal.Silver Beach Towers, supra.   In other words, if a party wants an automatic stay, the party can follow the procedure in the money judgment exception and the trial court has no authority to modify the bond amount. Indeed, the party does not need to file a motion.

However, if a party does not want to follow this automatic stay procedure, the party can still file a motion with the trial court under 9.310(a) where the trial court can condition the stay on the posting of a bond amount in the court’s discretion. Thus, 9.310(a) gives the party an alternative option to utilize by filing a motion with the trial court and letting the trial court determine the conditions warranting an appellate stay.  For parties appealing a monetary judgment, this case gives them authority to argue under to stay the money judgment for a bond amount that is perhaps less than the automatic stay bond amount found in Rule 9.310(b)(1).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Quick Note: So You Want to Appeal an Injunction Entered Against You…

Posted by David Adelstein on January 17, 2017
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So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context – check out this article as an example.) “If the injunction rests on factual findings, then a trial court’s order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review if the injunction is based on factual findings by the trial court. But, assuming the facts are not in dispute and the injunction is based on a matter of law, there is a de novo standard of appellate review.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein on January 08, 2017
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After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues relating to entitlement to attorney’s fees appealable? Yes.

 

“‘A party’s entitlement to an award of attorney’s fees under a statute or procedural rule is a legal question subject to de novo review.’” Newman v. Guerra, 2017 WL 33702 (Fla. 4th DCA 2017) quoting Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4th DCA 2015).

 

For instance, in a recent case, an owner established that a contractor’s lien was fraudulent. The contractor, however, prevailed in its breach of contract claim. The owner moved for his entitlement to statutory attorney’s fees since he prevailed in the contractor’s lien action. The trial court denied the owner’s motion for attorney’s fees because after considering all of the claims asserted in the case found that the contractor prevailed on the significant issues in the case. The owner appealed the trial court’s denial and this issue was subject to a de novo standard of appellate review.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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