Florida Appellate Practice and Advocacy Seventh Edition – Updates

(December 1, 2017)

  • 3.3 Cite update: Special v. West Boca Medical Center, 160 So. 3d 1251 (Fla. 2014).
  • 3.9 Houk v. Pennymac Corp., 210 So. 3d 726 (Fla. 2d DCA 2017), cites and agrees with several cases that transcripts are ordinarily not necessary for appellate review of a summary judgment.
  • 3.13 Add after Middelveen: See also Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015)
  • 3.16 Cite update: Coba v. Tricam Industries, Inc., 164 So. 3d 637 (Fla. 2015).
  • 3.17 If the plaintiff prevails on two or more theories of liability, if one of the theories is not affected by harmful error, then an error that would be harmful as to another theory is rendered harmless. See Kopel v Kopel, 42 Fla. L. Weekly S26 (Fla. January 26, 2017).
Cases have required motions for rehearing to address alleged errors that first appear on the face of the judgment.  See New Hampshire Indem. Co. v. Gray, 177 So. 3d 59 (Fla. 1st DCA 2015).

  • 4.5 Add: The rules on preservation would apply.
  • 4.10 Cite update: AmMed Surgical Equipment, LLC v. Professional Medical Billing Specialists, LL, 162 So. 3d 209 (Fla. 2d DCA 2015).
The Second District held the only notice of appeal the bankrupt debtor had filed was void because he had already filed for bankruptcy, and it dismissed his appeal in Hewett v. Wells Fargo Bank, 197 So. 3d 1105 (Fla. 2d DCA 2016).

  • 4.11 In Negron v. Hessing, 186 So. 3d 1139 (Fla. 4th DCA 2016), the party’s oral motion for a new trial was denied orally by the court. The party then filed a written motion for new trial.  The court did not address that motion, but entered a final judgment.  The Fourth District held once the trial court orally denied the oral new trial motion, both the trial judge and a successor judge were without authority to reconsider the matter.  It also held the written motion was deemed denied by the entry of final judgment.
  • 4.12 Note that Negron v. Hessing (§4.11), says the entry of final judgment is treated as a denial of the motion (so that the 30 days to appeal would run from final judgment (not the later order denying the motion). The 1981 supreme court case it cited for this ruling had addressed the effect of that court’s rulings on motions related to Public Service Commission orders and had not been cited for this point until Negron.
  • 4.16 Leichester Trust v. Federal Nat. Mort. Assoc., 184 So. 3d 1187 (Fla. 2d DCA 2015), reversed the denial of a 1.540 motion seeking to set aside the denial of a rehearing appellant’s counsel had not received.
  • 4.16 Florida Patients Compensation Fund v. Scherer, 558 So. 2d 411 (Fla. 1990), holds the trial court has no jurisdiction regarding the final judgment after the notice of appeal is filed. While not delineated in the opinion, the court was referring to “case” jurisdiction. See Tobkin v. State, 777 So. 2d 1160 (Fla. 4th DCA 2001).  Looking back at the case the supreme court cited, and to the underlying cases, makes clear the reference is to whether a relinquishment of jurisdiction was necessary (as the circuit court had jurisdiction over the subject matter of the underlying case).
  • 4.22 Florida Farm Bureau Gen. Ins. Co. v. Peacocks Excavating Service, Inc., 186 So. 3d 6 (Fla. 2d DCA 2015), holds a partial final declaratory judgment determining the insurer had a duty to defend is not appealable.
  • 4.39 The 2014 committee note under revised Rule 9.130(a)(5) says it preserves review of an order setting aside a default judgment, as discussed in Howard v. McAuley, 436 So. 2d 392, n.1 (Fla. 2d DCA 1983).
  • 4.46 Gelboim v. Bank of Am. Corp., U.S. , 135 S. Ct. 897, 190 L.Ed. 2d 789 (2015), holds a dismissal of certain plaintiffs’ only claims is an appealable order, even though other plaintiffs in the multi-district litigation have surviving claims.
  • 5.1 Effective January 5, 2016, the Florida Supreme Court amended Rule 9.200 on the clerk’s submission of “electronic” records as a PDF file. There are no longer record “volumes.”
  • 5.5 Jackson v. Jackson, 201 So. 3d 677 (Fla. 3d DCA 2016), held the appellant was entitled to a new trial when the deceased court reporter’s recordings could not be located and the parties had unsuccessfully attempted to reconstruct the record.
  • 6.7 The ability of an amicus to advance new theories is likely now limited to when the amicus appears on behalf of an appellee, in light of the preservation standards discussed above.
  • 7.13 As of October 2017, all district courts of appeal have a procedure in place where counsel could file an agreed notice to extend the time for briefs in final appeals. Check the respective websites for details.
  •  8.10 Allstate Fire and Cas. Ins. Co. v. Hallandale Open MRI, LLC, 42 Fla. L. Weekly D2503 (Fla. 3d DCA November 29, 2017), certifies to the Florida Supreme Court the question of whether a DCA has jurisdiction for second-tier appellate review where there is an intra-district conflict between two circuit court appellate opinions and the DCA has not addressed the issue in a controlling opinion.
  • 8.13 Courts have considered certiorari to review orders denying summary judgment (or a motion to dismiss) based on an alleged failure to exhaust pre-suit administrative remedies. E.g. Bradshaw v. Bott, 205 So. 3d 815 (Fla. 4th DCA 2016)
The court granted certiorari when the trial court had denied the personal representative’s motion to consolidate two wrongful death cases against different defendants that were based on successive injuries alleged to have caused the death.  The district court held the risk of inconsistent verdicts met the standards for certiorari.  Tracey v. Swanholm Central, LLC, 223 So. 3d 448 (Fla. 2d DCA 2017).

  • 8.14 Wiggins v. Florida Department of Highway Safety and Motor Vehicles, 209 So. 3d 1165 (Fla. 2017), holds the circuit court did not engage in an impermissible re-weighing of evidence when on first tier certiorari review it concluded an officer’s testimony on driving under the influence was not sufficient in the face of a conflicting video.
  • 10.9 Effective 2016, there are no longer record “volumes,” so references to the record should contain only a page number.
  • 10.27 Effective December 2016, FRAP 26(c) provides that a paper that is served electronically is treated as delivered on the date of service stated in the proof of service. In other words, there is no longer an additional 3 days added for electronic service.  The word count limits also changed.  Consult the current Federal and Eleventh Circuit rules.
  • 12.1 Allen v. State Farm Fla. Ins. Co., 209 So. 3d 11 (Fla. 2d DCA 2016), holds an insured is entitled to recover fees under §627.428(1), Fla. Stat., if the insured prevails against the insurer in an appeal or a petition for certiorari.
  • 12.5 Appellate courts have awarded unconditional fees to an insured who obtained the reversal of an adverse final judgment, even though the insured still had to prevail below, where the reversal meant the insurer’s motion for fees on appeal was defeated. See Beverly v. State Farm Fla. Ins. Co., 50 So. 3d 628 (Fla. 2d DCA 2011), October 27, 2011 fee order in Case No. 2D09-2317 (docket at http://www.2dca.org/ ); Hamilton v. State Farm Fla. Ins. Co., 151 So. 3d 1 (Fla. 5th DCA 2014),  April 4, 2014 fee order in Case No. 5D12-3733 (docket at http://www.5dca.org/ ).  In this situation, the insured has obtained a judgment or decree that precludes the insurer from ever recovering fees for that appeal.  See §627.428(1), Fla. Stat.