SCOTUS’s DOMA Decision Illustrates Complexities of Appellate Practice

Image This post was contributed by Hallie Fisher, a third-year law student Duke University School of Law and Summer Associate at LDDK&R.

Last month the Supreme Court issued what can only be deemed a landmark ruling, United States v. Windsor, No. 12-307, 2003 WL 3196928 (U.S., June 26, 2013), which held that Section 3 of the Defense of Marriage Act, commonly referred to as “DOMA,” was unconstitutional.  DOMA was enacted in 1996 to ensure, among other things, that states which restricted marriage to opposite-sex couples would not be required to recognize same-sex marriages lawfully performed in other states.  While much of DOMA remains in effect, the Windsor case resulted in the striking of DOMA’s Section 3, which purported to define marriage only as the union between one man and one woman, and prohibited the federal government from recognizing same-sex marriage for purposes of federal law, as unconstitutional.

The definition of marriage adopted by Section 3 was significant because the federal government confers thousands of benefits upon married couples, including: special treatment under the Tax Code, employment and pension benefits, and even support relating to medical privacy and hospital visitation, to name a few.  DOMA effectively denied lawfully-married same-sex couples these benefits.

As with many pivotal cases on civil and social issues (i.e., Roe v. Wade, Loving v. Virginia, and their progeny), what many articles gloss over is just how these cases get before the U.S. Supreme Court.  The Windsor decision started with one person: Edie Windsor, a widow who had legally married her wife, Thea Spyer, in Canada in 2007. Windsor’s and Spyer’s marriage had been recognized as valid under the principle of comity by the state of New York, where the couple was domiciled.  After Spyer passed away in 2009, Windsor was required to pay over $300,000 in estate tax on her late wife’s estate. A widow from an opposite-sex marriage would not have been required to pay this estate tax because under federal law “any interest in property which passes or has passed from the decedent to his surviving spouse” is excluded from taxation.   26 U.S.C. § 2056(a).

Windsor filed suit against the United States in the U.S. District Court for the Southern District of New York. Windsor prevailed on the merits in the District Court, and the IRS was ordered to refund the tax paid with interest. The decision was appealed to the Second Circuit United States Court of Appeals, which affirmed the District Court’s ruling, holding that Section 3 of DOMA violated the equal protection rights granted by the Fifth Amendment.  Before the appeal was heard by the Second Circuit, the Solicitor General of the United States petitioned the Supreme Court for certiorari, which was ultimately granted, and both parties delivered oral arguments in late March of 2013.

The progression of the Windsor case depicts many of the standard aspects of appellate procedure.  However, one unique aspect of the Windsor case is that the federal government did not defend DOMA’s constitutionality. Generally the Department of Justice is tasked with representing the federal government in matters relating to statutes enacted by Congress, such as DOMA.  Here, though, the Department of Justice, at the insistence of President Obama, refused to defend the Act’s constitutionality.  At the same time, the Internal Revenue Service, an executive agency, was enforcing the provisions of DOMA.  As a result of the government’s refusal to defend DOMA, the Bipartisan Legal Advisory Group (BLAG), subsidized by fundraising efforts of the Republicans of the House of Representatives adopted the defense of DOMA, hired counsel to defend DOMA’s constitutionality, and was granted leave to intervene in the case.

BLAG’s defense of DOMA highlights one of the more challenging aspects of appellate practice.  In cases argued before the Supreme Court, and in appeals at all levels, there are often complex or technical legal questions at issue that may ultimately influence whether the case is affirmed or reversed. For instance, although the main issue in Windsor was DOMA’s constitutionality, another significant issue was whether BLAG even had standing to file an appeal.   It is often the job of appellate counsel to help their clients understand that appeals are not always centered around the main issue at trial, and there can be complex issues raised in an appellate proceeding that may subvert a jury verdict or judge’s ruling even though common sense may dictate another result.

Having an attorney who will be able to understand and argue the facts and complexities of a case competently may not be the only concern, though. During the appellate stages of high stakes cases, especially those involving constitutional and social issues, it is common to have interest groups weighing in on both sides of the issue. In Windsor, literally hundreds of amicus briefs were filed on both sides of the issue, with companies like Google, Starbucks, and Aetna supporting Windsor’s case, and many religious organizations supporting BLAG and the constitutionality of DOMA.  In such high stakes cases, it is important to have appellate counsel who will be able to reconcile the client’s individual needs with the public policy considerations of the outcome of the case.  One should never lose sight of the fact that bringing a case before the Supreme Court, which has the potential to change laws that affect individuals throughout the nation, primarily affects the individual parties to the case.

While Windsor was celebrated as a victory, the victory is small in that the decision left open many important issues, such as adoption rights for gay couples, employer treatment of gay couples under federal laws like ERISA, and even protections in the criminal arena. If individuals are affected by the questions Windsor left open, it is important they contact competent counsel positioned to take on such issues. This is especially important since such cases will not only affect the individual petitioners, but could have important precedential value for others who are similarly situated.

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.

Florida Supreme Court Delimits Economic Loss Rule

In a surprising opinion issued today, the Florida Supreme Court has held that the economic loss rule, which for decades has barred tort claims for damages arising out of a contractual relationship, applies only in the products liability context.  Justice Canady’s dissent called this decision a “dramatic unsettling of Florida law.”  However, business litigation practitioners who have struggled with the application of this doctrine when attempting to assert or defend breach of fiduciary and negligence claims against a party in contractual privity will likely welcome the Court’s rescission from the long line of cases that made the doctrine almost as easy to evade as to apply and the certainty that this decision brings.  The Court’s opinion can be viewed at:

Preservation of Error: Prejudicial or Argumenative Closing Arguments

ImageThe 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.

Fifth District Changes Procedure for Obtaining Extension of Time

CalendarBeginning March 1, 2013, a party seeking an extension of time to file an intial, answer, or reply brief and who has obtained the agreement of opposing counsel may file a “notice of extension of time” in lieu of a motion requesting an extension. Such a notice will be accepted for up to 90 days for an intial or answer brief and 60 days for a reply brief. Only the party seeking the extension need sign the notice, and no order will issue upon the Court’s receipt. Any extension beyond 90 days for initial or answer briefs or 60 days for reply briefs must be by motion.  For additional details, including the approved form of the notice, see the Court’s administrative order at

Starbucks’ Tip Pooling Practices Found to Violate Massachusetts Law

ImageWhile this blog is largely devoted to Florida appellate cases, as an unabashed coffee junkie, I found the recent decision of the First District Court of Appeal to be particularly compelling, and ripe for mention in this blog.  On November 9, 2012, the United States First Circuit Court of Appeals affirmed the Massachusetts district court’s summary judgment granting the plaintiffs, comprised of a number of former Starbucks baristas, class status and found that Starbucks’ policy of pooling and sharing tips among shift supervisors and baristas violated Massachusetts’ Tips Act, Mass Gen. Laws ch. 149, s. 152A.  After discovery was conducted on damages, the district court entered judgment in favor of the plaintiff class in the aggregate amount of $14.1 million.

At the crux of the appeal was whether Starbucks’ shift supervisors are “wait staff employees” under the Act since the Act states that wait staff employees are not required to share tips with anyone who is not a wait staff employee.  The Tips Act defines “wait staff employee” as persons who serve beverages or prepared food to patrons, or who clear patrons’ tables, and who work in a place where prepared food or beverages are served.  The definition also contains the requirement that the employee have “no managerial responsibility.”

The plaintiffs contended that the baristas were wait staff employees, but that shift supervisors were not, and therefore, shift supervisors should not have shared in tips with the baristas. Because the first two prongs of the statutory definition unquestionably applied to both classes of employees, the question for the court became whether the shift supervisors had “managerial responsibility,” as contemplated by the Tips Act.

Starbucks contended that the shift supervisors, who report to store managers and assistant managers, had supervisory duties over the baristas, but no managerial responsibility.  The plaintiffs asserted that the job descriptions of shirt supervisors included managerial tasks, and that, under the Tips Act, any level of managerial responsibility, no matter how slight, was sufficient to exclude the shift supervisors from the definition of “wait staff employee.”  It didn’t help Starbucks that, in 2004, upon the adoption of the current version of the Tips Act, the Massachusetts Attorney General issued an advisory opinion conspicuously stating that “shift supervisors . . . do not qualify as wait staff employees.”  Advisory 2004/3, An Advisory from the Attorney General’s Fair Labor and Business Practices Division on an Act Protecting the Wages and Tips of Certain Employees.

Starbucks endeavored to raise numerous creative arguments, which the First Circuit rejected “out of hand.” Ultimately, the First Circuit agreed with the plaintiffs’ construction, and affirmed the district court’s judgment against Starbucks.

While Starbucks is the loser of this fight to the tune of $14 million, at the end of the day, the ultimate losers will likely be the very same hourly service employees who brought this suit in the first place.  This case is likely to signal the demise of the “community tip jar,” which customers undoubtedly understand will be shared by those behind the counter regardless of their level of supervisory responsibility.  Whether the Tips Act intentionally or unintentionally impacts the community tip scheme, because of this suit, a significant income supplement for these hourly workers will likely dry up as lawyers for establishments throughout Massachusetts (including Dunkin’ Donuts, which outnumbers Starbucks 10 to 1 in Massachusetts) advise their clients that the risk of the community tip jar is not worth the reward.  Certainly, the workers behind the counter serving their coffee would disagree.

Homestead Tax Exemption Applies to Non-Citizen’s Residence Maintained for Dependents

On October 4, 2012, the Florida Supreme Court issued an opinion holding that non-citizens, lawfully residing in the United States, are entitled to a homestead tax exemption on a residence they occupy with their dependent minor children who are U.S. citizens.  Garcia vs. Andonie, Case No. SC11-554, 37 Fla. L. Weekly S613 (Fla. Oct. 4, 2012). Florida’s homestead tax exemption is provided for in article VII, section 6(a) of the Florida Constitution.  Section 196.031, Florida Statutes, purports to implement the constitutional provision.  However, the Third District held, and the Supreme Court affirmed, that the implementing statute impermissibly narrowed the class of persons who could claim the exemption by requiring that the owner of the property “reside thereon” and make the residence his/her permanent residence or the permanent resident of a dependent.  As the Supreme Court pointed out, the Florida Constitution does not include the “reside thereon” requirement, and states only that the property be maintained as the permanent residence of the owner or a dependent of the owner. 

The Court noted that, while the Legislature is permitted to enact laws regulating the manner of establishing the right to the constitutional homestead tax exception, “it cannot substantively alter or materially limit the class of individuals entitled to the exemption under the plain language of the constitution.”  Id. (citing Sparkman v. State, 58 So. 2d 431 (Fla. 1952)).

The Court concluded that the legal elements required to demonstrate entitlement to the constitutional homestead exemption require a property owner to demonstrate that the owner is maintaining on Florida real property either (1) the permanent residence of the owner or (2) the permanent residence of another legally or naturally dependent on the owner.  The requirement of section 196.031(1) that required property owners to demonstrate that they reside on the property was declared invalid an unenforceable. 

Next, the Court discussed what constitutes a “permanent residence” and cited section 196.012, Florida Statutes, which defines the term for ad valorem taxation purposes.  “‘Permanent residence’ means that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she ahs the intention of returning. . . .”  Id.  The Court noted that the statutory definition was consistent with the constitutional context from which it emerged. 

With respect to non-citizens, the Court has long held that those who do not posses the legal right to permanently reside in Florida cannot, as a matter of law, establish their permanent residence on Florida real property.  Id.  (citing Juarrero v. McNayr, 157 So. 2d 79 (Fla. 1963)).  In the instant case, the appellees were Florida property owners who were citizens of Honduras residing in the U.S. on a temporary visa.  They had three minor children, all of whom were U.S. citizens and Florida residents.  Under the authority of article VII, section 6(a) of the Florida Constitution, the Court held that the appellees were entitled to the exemption.  Where non-citizens are residing with dependent children, who are U.S. citizens, in a home they intent to be the permanent residence of those dependent, then the homestead exemption applies.

The Virtuosity of Courts in Adjudicating “Desperation Litigation”

Every once in a while, an opinion comes along that reminds us that our courts routinely deal, not only with seasoned appellate practitioners, but also with inexperienced lawyers and pro se parties, whose conduct must truly tax the patience of the judiciary.  A profound demonstration of an appellate court’s tolerance can be found in a recent opinion of the Second District Court of Appeals.  In Nogales v. Countrywide Home Loans, Inc., No. 2D12-2916, 27 Fla. L. Weekly D2296b (Fla. 2d DCA Sept. 28, 2012), the court put aside what must have been frustration, if not sheer annoyance, with pro se appellant, Susann E. Nogales, and issued a disproportionately-thorough Order on Motion for Reconsideration of Order of Dismissal, affirming the dismissal of Ms. Noglaes’ appeal for failure to timely file a Notice of Appeal.

Florida courts are routinely sympathetic to pro se parties, who may not have the means to afford counsel to represent their interests.  As Judge Gary Farmer on the Fourth District Court of Appeals once said, “I am prepared (from time to time) to excuse noncompliance with technical, procedural rules, and sometimes disregard overly zealous litigation stratagems by pro se parties . . . .”  McAliley v. McAliley, 704 So.2d 611, 613 (Fla. 4th DCA 1997)(Farmer, J. concurring).  However, that sympathy is not boundless and can be exploited.  See id.  With the foreclosure crisis, the courts have seen more and more pro se parties with a lot to lose. The phrase “desperation litigation” comes to mind.

The Nogales case was just such a case involving a foreclosure of a residential property in Lee County.  The lender obtained a final judgment of foreclosure on September 22, 2010.  Several months later, Ms. Nogales filed a motion to vacate the final judgment and request to stay foreclosure sale–both of which were denied by the trial court.  On January 25, 2012, the trial court issued an order directing issuance of a writ of possession.  Ms. Nogales followed that with a “verified motion to vacate the unlawful order issued in chambers on December 8, 2011” and, after that, a “motion of demand for decision on verified motion to vacate the unlawful order issued in chambers on December 8, 2011.”  The latter motion was denied by the trial court on April 2, 2012.

On May 11, 2012, Ms. Nogales filed a notice of appeal attempting to appeal all of the aforementioned orders dating back to September 2010.  To excuse her untimeliness in filing, Ms. Nogales apparently stumbled across the case of Rinas v. Rinas, 847 Sp. 2d 555 (Fla. 5th DCA 2003), which contains, as dicta, the statement that “Therefore, when a final judgment is void from the outset, the requirement to file an appeal within 30 days of rendition of the final judgment does not apply.”  The Rinas case dealt with an appeal of a final judgment that the trial court never had jurisdiction to enter (i.e. the trial court improperly determined issues of custody and child support for a non-party child in connection with a domestic violence injunction against father for the protection of another child).

Notwithstanding the lack of any proof or argument that the trial court lacked jurisdiction to enter the final judgment of foreclosure and the subsequent orders denying relief therefrom, Ms. Nogales made the creative, but unsupported argument that the trial court’s orders were void.  The ever-patient court stated, “If there is some defect in jurisdiction . . . that might conceivably render an order ‘void’ or at least ‘voidable,’ that defect has not been disclosed to us.”  Nevertheless, the court went on to state that, even if it were to assume one or more of the appealed orders was “void,” the time to file an appeal would not be extended.

In granting the appellant’s Motion for Reconsideration, the Second District demonstrated the profound patience the courts continue to show to pro se parties, even those whose conduct arguably arises to the level of vexatious or abusive.

Alleged Fraudulent Inducement + Unambiguous Contract = Defense Summary Judgment

A recent opinion by the Third District Court of Appeals adds another arrow to the quiver of those practitioners seeking support for a defense summary judgment in a contract action founded on fraud.  In B & G Aventura, LLC vs. G-Site Limited Partnership, Case No. 3D-11-1562, 37 Fla. L. Weekly D2197a (Fla. 3d DCA Sept. 12, 2012), the plaintiff, a condo purchaser, initially asserted claims seeking return of its deposit and rescission of the contract.  At the crux of the complaint was the developer’s alleged pre-construction/pre-contract statements that the completed condominium would have an unobstructed view of a neighboring marina.  Upon completion of the condominium, the view of the marina was obstructed by an awning.

In opposition to the developer’s motion for summary judgment, the plaintiff advanced legal theories based upon fraudulent indcument and mutual mistake.  Relying upon express contract language that disclaimed oral representations, confined its terms those set forth in the contract, condo documents and brochures, and disclaimed any “guarentee of view,” except as set forth in the contract or condo prospectus, the Court affirmed summary judgment in favor of the developer.  “The purchaser’s claim of fraudulent inducement fails as a matter of law becasue the alleged oral representations ‘are adequately covered or experssly contradicted in a later written contract.”  Id. (citing Hillcrest Pac. Corp. v. Yamamura, 727 So. 2d 1053, 1056 (Fla. 4th DCa 1999)).  The plaintiff’s claim of mutual mistake failed because the plaintiff’s own allegations negated that any such mistake was mutual.

Florida’s Fifth District Court of Appeals Adopts E-Filing

The Fifth District Court of Appeals is in the process of transitioning to the eDCA electronic filing system currently in use by the First District.

Beginning on September 1, the Fifth District will begin offering email service of all acknowledgment letters, orders, opinions, and mandates through its eDCA system.  Registered users will receive electronic notice of these filings, and will be able to retrieve the documents online.  Until October 1, the court will issue both electronic and paper documents.  After that, service of court documents will be exclusively through eDCA.

On September 1, the Court will also begin accepting electronic filings via the eDCA system.  Documents currently required by Administrative Order 5DAO08-0 to be e-mailed to the court may be filed electronically through eDCA, in lieu of e-mailing. An electronically filed document should not be filed on paper. However, if a document is filed on paper, compliance with the existing email requirement is required. After October 1, electronic filing of such documents will be mandatory, and paper filings will no longer be accepted.

Until further notice, the only documents subject to the court’s electronic filing order are:

  • Briefs filed under Rules 9.110, 9.130, 9.140, 9.145, 9.146 and 9.160;
  • Petitions and responses under Rule 9.100.
  • Responses to Orders of the Court.
  • Motions for rehearing or relief under Rules 9.330 and 9.331.
  • Transcripts
  • Appendices

To receive and file documents electronically, you must be registered with the court and must have received a confirmation email that the registration has been accepted.  To register, visit  A eDCA primer is available on the Court’s website at