Florida Supreme Court Changes- Very Important for Appeals

This past month, Governor Desantis made three appointments to the Florida Supreme Court, Justices Lagoa, Luck, and Muñiz, to join Canady, Polston, Lawson and Labarga. For those of us who practice appellate law, particularly before the Florida Supreme Court, this is a huge change in composition of the court that should have a significant impact on the cases that are bought, and how cases are argued before the Court.

For the first time in my professional life (I have been a member of the Florida Bar since 1996) a majority of Justices on the Florida Supreme Court can be described as legally conservative. While many articles have been devoted to defining the parameters of the legal conservatism, a shorthand understanding of this would be, in the context of the federal constitution, whether a jurist perceives the constitution to have a meaning fixed at the time of its adoption, subject to change by amendment, or instead a living constitution, subject to the changing winds of society by decree and not amendment. A legal conservative also understands that Congress must be authorized to act by the the Federal Constitution, and conversely, state legislatures are fully authorized to act in the absence of a specific constitutional limitation.

Because the Florida Supreme Court has not had a conservative majority in the last Century, this provides an opportunity for good appellate advocates to preserve and raise valid arguments at the trial courts, that might in fact be contrary to existing precedent, so that the Supreme Court Court may consider overturning or receding from prior precedent that was not well founded. It also means that arguments appealing to ideology and emotion are less likely to prevail.

Over time this will be good for Florida and the Courts: there may be some initial instability created when bad precedents die, but more predictability and certainty is a hallmark of a legal system that is a rule of law and not of men. The days of advising a client that “based on the law you have a good case, but. . .” should be in the past.

Make sure your legal case is evaluated and litigated under the legal framework likely to pass Florida Supreme Court muster.


DCA is Often Only Chance to Win on Appeal.

Almost weekly I receive calls from potential clients who have lost a case at a District Court of Appeal, and want to take the case further. I had just such a call yesterday. They are often shocked and disappointed to learn that, for the vast majority of cases, the only appeal they are guaranteed is the appeal to the District Court of Appeal. The Supreme Court is a court of limited jurisdiction, and there is an even smaller subset of cases in which the Supreme Court must grant review. And, if you get a ruling at a District Court of Appeal that is a per curiam affirmed decision, or a PCA as known in the lingo, in most cases there is no possibility of appealing a PCA to the Florida Supreme Court.

There are limited circumstances under which a decision from a District Court of Appeal might be taken to the US Supreme Court by way of a petition for certiorari, but again these are very limited circumstances.

Consequently, if you have a good case, your best shot at winning an appeal will be at the District Court of Appeal level. And, this means that you need to consider obtaining experienced appellate counsel. Most attorneys do not handle appeals, and unfortunately, mistakes are often made when trial counsel handles an appeal, unless they routinely handle appeals. The same can be said if you are going to take a case on appeal pro se, it’s a risky proposition.

So, be aware that in most cases you have one shot at winning a case on appeal, and a loss at a DCA is usually going to mean a final loss. It is never fun to handle that call when someone has lost the case at the District Court of Appeal, and is hoping we can now save them on an appeal to the next level, but it turns out an appeal to the next level is not an option.

1st DCA Opinion on Short Term Residential Home Rentals

A home owners association in Bay County had brought a lawsuit arguing that the use of homes for short term vacation rentals, such as on VRBO or Airbnb, violated the covenants restricting the property use to residential only and prohibiting the use for business purposes. In a Florida VRBO Rental Case of first impression, the Court held that this uses did not violate the restrictive covenants

The specific issue in this appeal—whether short-term vacation rentals violate restrictive covenants requiring property to be used only for residential purposes and prohibiting its use for business purposes—appears to be a matter of first impression in Florida. . . .

However, courts in a number of other states have considered the issue and those courts have almost uniformly held that short-term vacation rentals do not violate restrictive covenants nearly identical to those at issue in this case. . . .

These decisions explain that in determining whether short-term vacation rentals are residential uses of the property, the critical issue is whether the renters are using the property for ordinary living purposes such as sleeping and eating, not the duration of the rental.

We agree with the analysis in these decisions.

This case is significant as a case of first impression in Florida, because it is the only appellate decision on this matter, it is binding on all Florida trial courts. and it is significant, because it is one of the growing number of case interpreting laws that are being applied to technologically disruptive business models such as Airbnb, UBER and VRBO.

1st DCA Ruling in ATT Bid Protest Case

Late last week the 1st DCA issued its ruling in the major major AT&T bid protest case that we had mention on the flbidprotest.com blog.

The case affirmed the award to a subsidiary of Harris Corporation, finding that the statement of work was not a responsiveness checklist, so a bid not meeting the statement of work could still be responsive. It also affirmed the agency ability to materially change the scope of the procurement during the ITN negotiations.

What is most interesting, however, is a clarification of when a protest has to be filed. It clarified that a challenge to how the agency changed the criteria during negotiations did not have to be filed as a spec challenge to the ability to negotiate, and also there is not need to protest at the notice of intent to negotiate stage, a protest will still be available at the notice of intent to award posting, and responsiveness can be raised at that time, no waiver has occurred.

On a final note, the court also stated

We affirm the Final Order regarding the Department’s ability to make changes to the Statement of Work during negotiations. It is worth noting that our affirmance rests on the record before us and our determination that AT&T was not harmed by the Department’s actions here. We do find compelling AT&T’s argument that such action has a potential chilling effect on third parties who choose
not to reply to an ITN upon the belief they cannot meet the ITN specifications as written. As those parties are not before us seeking relief, those concerns are left for another day.
This is a real and troubling issue. Sometimes a client has told me that they have not responded to an ITN, because, they could not meet the stated requirements, and then later it turns out that specific requirements were negotiated away, and they could have satisfied the actual contractual requirements. Now the question is what is the point of entry for that kind of a challenge? One often can’t tell until the final contract is revealed.
Appellate cases on bid protests are rare, so every case is closely studied, and this case is rich with possibilities.

Importance of Preserving Issues in Administrative Cases

The 1st DCA has issued an opinion again noting the importance of preserving arguments in administrative proceedings.

We affirm the Final Order of the Office of Financial Regulation in all respects. We highlight Appellant’s Points I and II only, to hold that Appellant did not preserve those issues for appellate review.
“It is well-established that for an issue to be preserved for appeal, it must be raised in the administrative proceeding of the alleged
error.”Dep’t of Bus. & Prof’l Regulation, Constr. Indus. Licensing Bd. v. Harden, 10 So. 3d 647, 649 (Fla. 1st DCA 2009)(citing
Yachting Arcade, Inc. v. Riverwalk Condo. Assoc., Inc. , 500 So. 2d 202, 204 (Fla. 1st DCA 1986)).

Issue not raised in Initial Brief is waived

In a case about whether the IG Staff could be required to sign confidentiality agreements at the Department of Corrections, the case appears to have been totally blown by counsel on appeal. Because the trial court found no standing for those who sued, but since that argument was not raised in the initial brief, the court could not reach the merits arguments even if the trial court had been wrong on standing.

The initial brief never addresses the trial court’s rulings regarding the lack of a justiciable controversy or standing,” . . . It is well-settled that an issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.

This case highlights once again the importance of both preserving and raising arguments for appeal. Full opinion here Issue Waived First Raised in Reply Brief

Source: Appeals Court sides with state in whistleblower case

First DCA Holds 284.30 notice must be given to collect 119 attorney fees

In a case decided today, full opinion here, DEO v. Consumer Rights LLC, the First District overturned a trial court award of about $150,000 in fees and costs for a plaintiff that prevailed in a public records, chapter 119 request against a state agency. The basis for reversal was that the plaintiffs had not complied with the notice requirements of 284.30 that required a copy of the complaint to be served on DFS, if attorney fees are sought against a state agency.

The Statute provides

A party to a suit in any court, to be entitled to have his or her attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Financial Services; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees.

Florida Credit Card Surcharge Statute Unconstitutional

Yesterday, the 11th Circuit struck down Florida’s criminal statute, Fla. Stat. § 501.0117, which allows businesses to give a discount for paying with cash, but not to charge a surcharge for paying with credit. The Court basically determined that since the economic effect of a cash discount or a credit surcharge was the same, Florida was not prohibiting economic conduct but speech – how the price difference was characterized – and that this speech prohibition did not survive the intermediate scrutiny and Central Hudson test applicable to commercial speech. Interesting case.

Attorney Fees under Florida Equal Access to Justice Act (57.111)

This is an interesting 5th DCA Case interpreting the Florida Equal Access to Justice Act. Under this act,

Unless otherwise provided by law, an award of attorney’s
fees [limited to 50,000] and costs shall be made to a prevailing small business
party in any adjudicatory proceeding or administrative
proceeding pursuant to chapter 120 initiated by a state
agency, unless the actions of the agency were substantially
justified or special circumstances exist which would make
the award unjust.

In this case, the Department of Financial Services brought an action against an insurance license, and on appeal the court had previously determined that the complaint was without merit. When he filed for fees under 57.111, an ALJ entered an order denying him fees, basically finding that the law at the time DFS brought the professional licensing complaint supported the complaint. The 5th DCA reversed, finding that what was important was the law at the time of the alleged violation, not the law when the enforcement action was brought.


Bar Journal Article on distinctions between Florida Federal and State Appeals

This article contains some good basic distinctions relevant for filing an appeal, such as how much time is available to file an initial brief.

While the Florida and federal appellate rules are in many respects similar, in other ways they are quite different. This article briefly highlights some important distinctions between the state appellate rules applicable to civil appeals of final orders in the Florida district courts of appeal, and the federal appellate rules applicable to civil appeals of final judgments in the 11th Circuit.1

Source: Bar Journal Article

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