Caselaw Corner
When is Rehearing Required Under Rules 1.530 and 12.530?
The Supreme Court of Florida reminded us that a motion for rehearing is not required to preserve whether competent, substantial evidence supports a final judgment. Citizens of State v. Clark, 48 Fla. L. Weekly S217 (Fla. Nov. 9, 2023), No. SC22–0094, 2023 WL 7400723, at *2, n.7. A motion is required, however, “when a final order addresses...
The Video Speaks for Itself
The 11th Circuit dissects summary judgment review in Brooks v. Miller. The published opinion was on August 22, 2023. Brooks sued Miller (a police officer) for false arrest, excessive force, and deliberate indifference. The incident was recorded—part audio/video and part just audio because the video went black (Brooks claimed the video was...
4th DCA: Father Forfeited his Right to Court-Appointed Counsel in TPR case
The case is K.R. v. Department of Children & Families. Duringtermination of parental rights proceedings, K.R.(the Father) was appointed five different lawyers, each of whom moved to withdraw. Three cited irreconcilable differences. One moved to withdraw because the Father inadvertently sent a caustic email, which was addressed to the lawyer,...
Word for Word: The Problem with Verbatim Orders
It is common for courts to ask the parties for proposed orders. And it is not unusual for a court to adopt parts (and sometimes large portions) of a proposed order. The trouble starts when a court adopts a proposed order verbatim. Such orders are not per se reversible, but they do raise concerns for appellate courts. The Fourth District Court of...
Intra-District Conflict
There is a difference in opinion when it comes to intra-district precedent in Florida. Most lawyers believe — and some judicial opinions hold — that a district court’s three-judge panel is bound by a prior panel opinion until the district court sitting en banc or the Florida Supreme Court overrules it. Surprisingly, some district court opinions...
For Whom the Bell Tolls
The 5th DCA recently reminded litigators of a well-established, but often forgotten, principle of law: a motion for reconsideration of a non-final order does not toll the time for filing a notice of appeal or a petition for certiorari. Here is what happened in Williams v. Lomeli. The trial court granted Lomeli's motion to intervene on October 25,...
Ch-ch-ch-ch-changes: U.S. Supreme Court ushers in change to preservation requirement in 11th Circuit
On May 25, 2023, the U.S. Supreme Court issued its opinion in Dupree v. Younger. The case arose out of a claim of excessive force brought under section 1983. The question presented was whether a party must reassert in a post-trial motion a purely legal issue rejected at summary judgment to preserve the issue for appellate review. The Court said...
Summary Judgment Ambush
Design Neuroscience Centers, P.L., v. Preston J. Fields, P.A. This opinion from the Third District Court of Appeal highlights the importance of writing a comprehensive summary judgment motion and filing it as prescribed by the rules. Fields sued Design for breaching its lease. Fields moved for summary judgment, and Design responded. The hearing...
Sixth DCA Says No to “Judicially Created” Burden in Child Support Matter
Mannella v. Mannella: Michael and Leah Mannella divorced in April 2018. The final judgment incorporated their marital settlement agreement and required Mr. Mannella pay $2,000 per month in durational alimony and $250 per month in child support. In September 2020, Mr. Mannella sought a reduction in child support, claiming Mrs. Mannella’s income...
Notice is Notice for Purposes of Attorneys’ Fees in Family Law Cases
In McArdle v. McArdle, the Fourth DCA clarified what is required to put an opposing party on notice that attorneys’ fees are being sought. The husband moved to compel an inventory of the marital home under a provision of the marriage settlement agreement (MSA). The MSA also contained a provision requiring any party who defaults under the MSA to...