The Perils of De Novo Review

Florida’s Third District Court of Appeal issued an opinion today that highlights the perils of de novo review.  De novo review is the broadest standard of review for an appellate court, reserved for construing pure matters of law, and is often an appellant’s best opportunity for reversal.  In Deutsche Bank National Trust Company v. de Brito, Case No. 3D16-1466 (Fla. 3d DCA November 8, 2017), the court reversed a post-trial order of involuntary dismissal in a mortgage foreclosure action.  Why?  Because under the de novo standard of review, the court was allowed to review the facts and evidence anew, and determined that the trial court was wrong in concluding that the bank’s witness testimony concerning business records was hearsay.  The court also determined that the key defense prompting the dismissal–the failure of the bank to provide notice of a rate increase–was never actually plead by the defendants.   This opinion highlights the inherent risks of defending an appeal with de novo standard review–the most favorable standard of review for an appellant.  Read the full opinion here.

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Lowndes Attorneys Obtain Favorable Rulings for Court-Appointed Receiver

Orlando, FL–Lowndes, Drosdick, Doster, Kantor & Reed, P.A. is pleased to announce that shareholder, Richard Dellinger, and appellate attorney, Jennifer R. Dixon, prevailed in defending a client appointed to serve as a receiver in proceedings brought by the Securities & Exchange Commission (the “SEC”).  The SEC action involved allegations of fraud and violations of the Securities Exchange Act by a public company.  In an unpublished opinion, in Securities & Exchange Commission vs. North American Clearing, Inc., the Eleventh Circuit Court of Appeals affirmed the U.S. District Court for the Middle District of Florida, which twice denied the accused’s requests to sue the receiver and the court-appointed trustee, pursuant to Barton v. Barbour, 104 U.S. 126 (1881), for acts undertaken during the SEC proceeding.  The district court found, and the appellate court affirmed, that the alleged acts of the receiver were within the scope of the receiver’s authority, shielding the receiver from liability. Attorney Dellinger represented the receiver in proceedings before the district court.  Attorney Dixon defended the appeal.

Noteworthy in the unpublished opinion was the Court’s determination of the standard of review for a challenge to the denial of a Barton motion—a matter of first impression in the Eleventh Circuit. Citing the Second, Third, Sixth, Seventh and Ninth Circuit Courts of Appeal, the court determined that the standard of review for such motions is abuse of discretion.

Founded in Orlando, Florida in 1969, Lowndes, Drosdick, Doster, Kantor & Reed, P.A. is a multi-practice business law firm. Our attorneys represent corporate, entrepreneurial and individual clients across a myriad of industries locally, nationally and beyond our borders, from offices in Orlando, Mount Dora and Melbourne, and through Meritas, an established global alliance of independent law firms offering local insight, local rates and world-class client service. LOCAL ROOTS. BROAD REACH.SM www.lowndes-law.com

 

SCOTUS Voids Florida’s Death Penalty

usa_supreme_courtBreaking News:  In an 8-1 decision, the Supreme Court of the United States finds that Florida’s death penalty violates the U.S. Constitution in that it takes power that should belong to juries and vests it in trial judges.  Read the details here.

Read the Court’s full opinion here.

Florida’s Highest Court Refuses Webster’s Request for “Seat at the Table”

Fla RedisToday, the Supreme Court of Florida entered an order denying U.S. Senator, Daniel Webster’s request to intervene in the widely-reported Florida redistricting case, League of Women Voters of Florida, Inc., et al. v. Detzer, Case No.  SC14-1905. Webster filed a Motion to Intervene on October 22, 2015, recognizing that “generally intervention is not authorized at the appellate level,” but arguing that “this is an extraordinary case.”

The primary reason given for Webster’s motion to intervene:  “The Congressional District of a sitting United States Congressman is being transmuted into a majority minority district in which he stands no chance of re-election, and he has, to date, not been permitted ‘a seat at the table.'”  Effectively Webster argued that “the Proposed Remedial Plans for District 10 are unconstitutional because they fail to comply with Art. III, § 20’s tier-one requirements for having been drawn with the intent to disfavor a political party or incumbent . . . [and] do not adhere to Art. III, § 20’s tier-two requirements of compactness and utilization of political and geographic boundaries.”  According to Webster’s motion, the plans for District 10 would split Orlando into two districts–a practice that is disfavored under Florida’s Constitution.

The Court denied the Motion to Intervene without opinion.  In light of the “long shot” possibility of appellate intervention in Florida’s state courts, it is possible that Webster simply wanted to plant a seed with the court, as it seems none of the true parties to the case have raised any issue with the Proposed Remedial Plans for District 10.  We will have to stay tuned to learn whether the tactic was effective.

Economic Development in the Sunshine?

The Fifth District Court of Appeal heard oral argument today on the issue of whether the records of the Economic Development Commission of Brevard County are subject to public inspection.  The lower court ruled that such records are subject to public inspection.  The EDC has appealed, arguing that its records should be exempt from the public records law.  Read more about today’s oral arguments HERE.  Check back for further developments on this case.

SCOTUS Affirms Sanction of Florida Judicial Candidate

1stAmOn April 29, 2015, the Supreme Court of the United States affirmed a Florida Supreme Court decision upholding disciplinary sanctions against Lanell Williams-Yulee, a candidate for County Court Judge in Hillsborough County.  See Williams-Yulee v. Florida Bar, Case No. 13-1499 (2014); Florida Bar v. Williams-Yulee, 138 So.3d 379 (Fla. 2014).  Williams-Yulee was disciplined by the Florida Bar for violating a Florida Bar Rule that requires judicial candidates to comply with Canon 7C(1), Code of Judicial Conduct.  Canon 7C(1) prohibits judicial candidates from “personally solict[ing] campaign funds.”  Williams-Yulee was found to have violated the rule when she mailed and posted online a letter soliciting campaign contributions.  SCOTUS undertook review after Williams-Yulee asserted that the solicitation letters were protected by the First Amendment.  The 5-4 decision, which drew dissents from Justices Scalia, Thomas, Kennedy and Alito, held that Canon 7C(1) was narrowly tailored to serve a compelling State interest–preserving public confidence in the integrity of the judiciary.  The majority said, “[I]t is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other States to sever the direct link between jducial jandidates and campaign contributions.”  The dissenting opinions provide some interesting fodder for debate.  For example, Justices Scalia and Thomas called Canon 7C(1) a “wildly disproportionate restriction upon speech.”  In their opinion, “banning candidates from asking for money personally ‘favors some candidates over others–incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.”

The full opinion can be read here.

New Rules Bring New Requirements in the Fifth DCA

If you are a registered filer with e-DCA, you may have received this notice from the Fifth DCA last week.  Because of changes to the Florida Rules of Appellate Procedure, attorneys are now required to notify the appellate court when there is a pending motion in the trial court that delays rendition of a final order.  In the civil/family law contexts, such motions would include motions for new trial, for rehearing, for certification, to alter or amend the final judgment, for judgment in accordance with prior motion for directed verdict, for arrest of judgment, to challenge the verdict, or to vacate an order based upon recommendation of a hearing officer pursuant to Fla. Family Law Rule of Procedure 12.491.

Previously, the filing of a notice of appeal while a post-trial motion was pending resulted in abandonment of the motion.  On January 1, 2015, Rule 9.020(j) was amended such that, if a notice of appeal is timely filed before adjudication of a post-trial motion, the appeal is held in abeyance until the trial court has ruled on the motion.  To facilitate the administration of the new rule, the Fifth DCA has adopted the requirement that attorneys must notify the appellate court when such a motion is pending in the trial court, and when an order disposing of the motion has been entered.

At this point, only the 5th DCA has adopted this formal requirement, but other courts will likely follow suit.  In any event, it’s good practice to ensure the appeal is abated.