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  In an unpublished opinion, in Securities & Exchange Commission vs. North American Clearing, Inc., the Eleventh Circuit Court of Appeals affirmed the U.S. District Court for the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Noteworthy in the unpublished opinion was the Court’s determination of the standard of review for a challenge to the denial of a Barton motion—a matter of first impression in the Eleventh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

Breaking 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”

Today, 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.

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 5^th 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. 

Late-Filed Civil Appeals a Nonstarter

What should a civil litigant do when he or she is made aware of the entry of a final judgment after the expiration of the appeal period?  The First District Court of Appeal reminds us in an opinion issued in Sharpe v. Stanley, Case No. 1D14-1190, 39 Fla. L. Weekly D928a (Fla. 1st DCA May 1, 2014) that the appellate court has no authority to grant relief from an untimely-filed appeal in a civil proceeding.  That does not mean, however, that all appellate avenues are foreclosed.  As the court reminds us, relief “may be sought in the trial court by motion under Fla. R. Civ. P. 1.540(b) to set aside the order where no notice of its entry was given to the parties, coupled with a requst that a new order be entered so that the right of appeal is preserved.” 

What Does an Appellate Lawyer Do?

Most people understand the primary function of an appellate attorney:  to research and write appellate briefs and present oral arguments to the appellate panel.  However, many people, including lawyers, are not aware of the many other ways an appellate attorney can “add value” to a litigation team.  An appellate attorney can be an invaluable trial team member from the outset of a case.  An experienced appellate practitioner often has significant litigation experience at the trial level, and is well equipped to assist in sophisticated legal analysis, strategy, and issue identification.  Appellate attorneys are also proficient writers and can assist in drafting bench briefs for the trial court.  

Because trials can be hectic and unpredictible, trial lawyers are primarily focused on presenting their case themes for the judge or jury.  In a complex trial, it is advisable to have an dedicated appellate practitioner on the trial team observing the proceedings objectively, and ensuring that all potential points of error have been properly preserved in the event an appeal is taken.  Additionally, having an appellate attorney involved from the commencement of the trial can signficantly reduce the costs of preparing an appeal. 

If you need assistance in any of the following areas, please contact jennifer.dixon@lowndes-law.com or (407) 843-4600:

• Commercial litigation appeals
• Family law appeals
• Eminent domain/condemnation appeals
• Administrative appeals
• Original proceedings
• Amicus briefs
• Trial support
• Appellate mediation

 

Delayed Discovery Doctrine Held Not to Apply to Negligence Actions Involving Child Sexual Abuse

In an opinion filed on September 4, 2013, the Third District Court of Appeal held that the delayed discovery doctrine does not apply to extend the statute of limitations in a negligence action arising out of allegations of child sexual abuse.  The delayed discovery doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.  The date a cause of action accrues is important because it is from the date of accrual that the statute of limitations is calculated.

The delayed discovery doctrine was first applied in a childhood sexual abuse case by the Florida Supreme Court in Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000), which held that the delayed discovery doctrine applied to the accrual of an intentional tort action brought by a sexual abuse victim against the perpetrator.  The victim had alleged traumatic amnesia made her unable to recall the events for more than a decade.  In Hearndon, the Florida Supreme Court acknowledged that, in 1992, the Florida legislature had effectively adopted the delayed discovery doctrine with respect to intentional tort actions concerning child sexual abuse.  However, the Heardon case pre-dated the enactment of that legislation.  In adopting the delayed discovery doctrine in that case, the court effectively found a way to apply the new legislation to the older case.

Fast forward 13 years to the case of Cisko v. Diocese of Steubenville, Case No. 09-35639, 38 Fla. L. Weekly D1902a (September 4, 2013), in which Appellants/Plaintiffs had sued the Diocese for negligence relating to physical and sexual abuse alleged to have been suffered between 1966 and 1967 at the hands of two priest under the Diocese’s supervision.  The Plaintiffs claimed traumatic amnesia had rendered them unable to recall the events of abuse until May 2005.  The Diocese prevailed at summary judgment based upon the expiration of the four-year statute of limitations on negligence actions.  Citing Hearndon v. Graham, Appellants contended that the delayed discovery doctrine deferred the accrual of the cause of action.  The Third District found, however, that the Hearndon holding is limited, not only to cases of traumatic amnesia, but to intentional tort causes of action.

While the Third District’s holding is consistent with the current § 95.11(7), Florida Statutes, which extends the statute of limitations for intentional tort cases based on abuse, and cases which have refused to expand the statute’s application to negligence cases, it does raise an interesting policy consideration.  If the State of Florida is committed to redressing child sexual abuse regardless of when it may be discovered, should it matter whether the defendant is the perpetrator or someone who enabled the perpetrator, or what the specific cause of action against the defendant may be?

The High Cost of Inexperience

This week, the Fifth District Court of Appeal issued an order imposing sanctions against an Orlando law firm for what the court determined were “negligent violations of rules of procedure” with respect to the law firm’s prosecution of an appeal.  Hagood v. Wells Fargo N.A., Case No. 5D12-2015 (Fla. 5th DCA June 28, 2013).  According to the Court, the attorneys demonstrated  “a lack of understanding of substantive law and rules of procedure” and “multiple acts of professional negligence that began in the trial court and continued through the oral argument.”  

The negligent acts included the filing of a frivolous “initial brief [that] was based entirely on a false assertion of fact,” and appeared to have stemmed from the fact that an inexperienced “part-time” lawyer for the firm was tasked with drafting the appellate brief despite having no access to the record.  Relying only upon the trial attorney’s notes to draft the initial brief, and without even reviewing the underlying motions, the brief was drafted and filed without revision by the supervising attorney.  The court admonished that “each attorney of record is responsible for the content of the entire document when his or her name appears on the document.”  

Ultimately, the sanction assessed was a $1,000.00 fine, but the costs to the appellant and attorneys’ reputations can’t be measured.   Professional negligence aside, this case demonstrates the reality of trial practice and the challenges that many trial lawyers face when they endeavor to handle their own appeals, rather than outsourcing to an experienced appellate attorney.  Because of the often frenetic pace of trail practice, trial lawyers may not have the time, man power, or inclination to focus on the complexities of appellate practice.  In lieu of delegating the task to an inexperienced junior lawyer with the goal of keeping the work “in house,” trial attorneys should reflect on the Hargood order, and give due consideration to consulting an experienced appellate practitioner.

Preservation of Error: Prejudicial or Argumenative Closing Arguments

The Second District Court of Appeal, last week, issued an opinion that reversed a trial court’s order granting new trial, Carnival Corporation v. Jimenez, 38 Fla. L. Weekly D455a, Case No. 2D11-5482 (2d DCA February 27, 2013).  The order was predicated on the trial judge’s finding that “comments made [by defense] counsel during closing arguments are perceived to have been prejudicial and highly inflammatory in nature because of their cumulative effect and their accusatory undertones.”  Id.

Jimenez was a personal injury case in which a large part of the defense strategy was to discredit the plaintiff’s expert/treating physician, because he had treated the plaintiff under a letter of protection.  According to the order on appeal, defense counsel “argued in closing . . . that plaintiff’s counsel . . . had collaborated or conspired with [the doctor] to conjure a non-injury into this lawsuit.”  While the trial court recognized that it had allowed evidence of the letter of protection, the introduction of such evidence “is to enable defense counsel to suggest that the doctor may have a financial bias, or stake in the outcome of the case.  Not for the impermissible purpose of allowing Defendant’s attorney to suggest a ‘neighborly’ conspiracy between the doctor and Plaintiff’s attorney.”  In sum, the trial court determined that the defense went so far in putting forth the conspiracy theory that the jury could not fairly assess the issues of causation and damages.

While the general rule is that improper comments made during closing argument may provide a basis for granting a new trial (see Mercury Ins. Co. of Fla. v. Moreta, 957 So. 2d 1242, 1250 (Fla. 2d DCA 2007)), the issue must be properly preserved by contemporaneous objection and a motion for mistrial.  Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1271 (Fla. 2006).  If the error has not been properly preserved, a new trial is only warranted when the improper behavior amounts to fundamental error.  Companioni v. City of Tampa, 51 So. 3d 452, 456 (Fla. 2010).

The Jimenez court, noted that the plaintiff’s counsel only made two objections relative to the defense counsel’s references to the letter of protection.  Both were sustained, but there was no motion for mistrial.  The court, relying upon the 4-part test articulated in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1027-31 (Fla. 2000) determined that while the plaintiff established the first prong of Murphy–that the challenged conduct was improper–she did not establish the remaining three prongs:  that the challenged conduct was harmful, that the challenged conduct was incurable, and that public interest in our system of justice requires a new trial.

Because the application of the Murphy factors did not show that the challenged conduct was so highly prejudicial that it denied the plaintiff her right to a fair trial, the order granting new trial was reversed, and the final judgment was ordered to be reinstated.

Practice tip:  when objecting to prejudicial or argumentative closing arguments: 1) object contemporaneously, 2) request a curative instruction (if appropriate), and 3) move for a mistrial, or be bound by the heightened standard for new trials articulated in Murphy.