Archive : News

So you’ve just lost your case and you make a beeline for the appellate court in order to rectify the situation.  If you’re not careful, however, you can make things worse for yourself.   Not only might you lose the appeal, but you might be subject to sanctions too.   In an opinion issued just a few short days before Christmas, the 4th DCA effectively upheld the foreclosure of a homeowner’s property, then admonished her counsel for pursuing the appeal.   See http://www.4dca.org/opinions/Dec%202011/12-21-11/4D11-457.op.pdf.   The Court reminded counsel of “their ethical obligation to know the legal precedent of this Court and to base their legal arguments on that precedent,” and then reaffirmed its judicial authority to impose sanctions on a party who pursues an appeal that is “devoid of merit both on the facts and the law….”   The message:  Tread carefully.

Pursuing an appeal can be a tricky matter even when an appellate issue may appear to be a “slam dunk” winner.   Case in point:  The Fourth District was recently asked to review a trial court order denying the appellant’s motion for summary judgment.  Relying on out-of-state decisions, the Court ruled that the issue was moot and thus not subject to appellate review.  According to the Court, once a trial is held and judgment is entered, it is “too late” to review a pre-trial order denying a motion for summary judgment.  The full text of the opinion can be found at http://www.4dca.org/opinions/Nov%202011/11-16-11/4D10-3086.op.pdf.

Appeals require planning.  Indeed, it’s not too early to start thinking about an appeal from day one of litigation. Thinking ahead is crucial because all issues that are raised on appeal must have been contemporaneously argued and preserved as they arose in the trial court.  Otherwise, such issues will go nowhere on appeal.   Case in point … The Fourth DCA issued an opinion this morning affirming a trial court order which had thrown out the plaintiff’s action to enforce the public records law.  The stated reason was that the plaintiff had failed to preserve “what may have been a valid procedural argument.”   The full text of the Court’s opinion can be read at http://www.4dca.org/opinions/Oct%202011/10-12-11/4D10-3433.op.pdf.

So you’re discouraged by a ruling that is just plain wrong, and you make a beeline for the appellate court.   The case law is all in your favor, your appellate brief hits it out of the park, and even the appellate court agrees that the trial court blew it.   But then … relief is denied.   How could this be?   The answer often lies in principles of appellate jurisdiction and/or the applicable standard of review.   A reminder of this came this morning when the 3rd DCA issued a ruling that refused to overturn a trial court order which allowed the plaintiff to plead punitive damages against the defendant cruise line.   Even though the 3rd DCA agreed with the cruise line that the proffered evidence was “legally insufficient to support a punitive damage claim,”  relief was nevertheless denied on the basis that an appellate court lacks jurisdiction to review the merits of such an order until the case is completely over.  The full text of the opinion can be read at http://www.3dca.flcourts.org/Opinions/3D11-1726.pdf.

Although many missteps in legal practice can be cured, when it comes to appellate jurisdiction don’t be so sure.  The dismissal of an appeal is not an uncommon event.  Many years ago, the warning bell rang when the 4th DCA dismissed an appeal because the notice of appeal had been filed in the court’s “night box” on day 30, rather than being filed in court that day.  (774 So. 2d 825)  Yesterday, the 4th DCA  dismissed an appeal where the notice of appeal referred to two non-final orders, but not the final judgment.  The appellant attempted to cure the problem by obtaining a revised final judgment and amending the notice of appeal, but that did not work.  The court’s opinion identifies and discusses a variety of appellate trap doors to watch out for, and it is good primer for anyone filing an appeal.  The full text of yesterday’s opinion can be found at http://www.4dca.org/opinions/Aug%202011/08-31-11/4D09-174.op.pdf.

August 1, 2011…Hargrove Pierson & Brown P.A. is pleased to announce that one of its partners, Cristina M. Pierson, has become board certified in business litigation.   As recognized by the Florida Bar, “Board Certified lawyers are legal experts dedicated to professional excellence.”  As a specialist in business litigation, Ms. Pierson focuses her practice in commercial litigation, business torts, media law, and construction disputes in both state and federal courts throughout the State of Florida.  For more information on board certification, log onto www.floridabar.org/certification.

July 17, 2011…Hargrove Pierson & Brown, P.A. announce the resolution of another case involving the sale of multiple annuities to a senior citizen.  Mary I. Mullen, 96 years of age, filed suit in Fort Lauderdale through her court appointed guardian against New York Life and its agents, Jeffrey R. Knight, John D. Palmateer and John D. Palmateer II, alleging undue influence upon the elderly, negligence, breach of fiduciary duty and exploitation of a vulnerable adult under Florida Statutes.  A confidential settlement was reached and approved by the circuit court.

June 17, 2011…Senior firm member John R. Hargrove was named to the 2011 list of Florida Super Lawyers in that publication’s annual list out today.  As noted by the publisher, the mission of Super Lawyers “is to bring visibility to attorneys who exhibit excellence in practice.”   This year’s online profile can be accessed at  <http://www.superlawyers.com/redir?r=http://www.superlawyers.com/florida/lawyer/John-R-Hargrove/59988223-8948-4c6c-8457-3f2749910dcc.html&c

March 6, 2011…The Florida Fourth District Court of Appeals has ruled that JP Morgan breached its fiduciary duties to trust beneficiaries represented by Hargrove Pierson & Brown by making unauthorized distributions and expenditures.  The details of the case can be found in Siegel v. JP Morgan Chase Bank, Case Number 4D09-699, accessible through the following link. http://www.4dca.org/opinions/Feb%202011/02-16-11/4D09-699.op.pdf

February 4, 2011…The Florida Fourth District Court of Appeal ruled Wednesday (February 2nd) that a payday lender cannot bar customers with grievances from participating in class action lawsuits by placing a waiver in an arbitration agreement.  Speaking for a unanimous court in McKenzie v. Betts, Case Nos. 4D08-493 and 4D08-494, Chief Judge Robert Gross wrote that the contract provision in issue defeats Florida’s public policy by preventing the consumer from hiring competent counsel.  The court distinguished other cases where provisions waiving class actions had been upheld primarily on factual grounds.  In McKenzie, three attorneys provided expert testimony that absent the class action mechanism, customers wanting to challenge the payday advance busines practices would not be able to obtain competent legal representation.  A second factor supporting the court’s reasoning was that the waiver provision precluded a customer from participating as a member of any class seeking redress against McKenzie.  In other suits the class action ban did not preclude the customer from participating in enforcing authority actions caused by violations of statutory enactments, such as Florida’s Deceptive and Unfair Trade Practices Act.  Noting the frequency of such cases involving Florida’s remedial statutes, the court has certified to the Florida Supreme Court the question of whether contractual waivers of claims asserted under such statutes violate public policy when an evidentiary basis is shown to preclude the customers from obtaining competent counsel.  The question is whether there will be a proliferation of evidentiary hearings in the future to determine the availability of counsel issue in order to skirt the class action preclusion.  The full opinion may be accessed at www.floridacourts.com under the District Courts, Fourth District’s “opinions” heading.