On Wednesday, the Fourth District Court of Appeal affirmed the punitive damage award described in detail in the February 11, 2010 posting below.  Briefly, the case was brought by a 79 year old senior citizen on claims that an annuity agent had financially exploited her by convincing her to cash in existing annuities and purchase new ones.  These transactions had adverse consequences for her, yet benefited this salesman through a sizeable commission.  A Palm Beach County jury sent a strong message by awarding punitive damages against him, and the appellate court has now affirmed.

May 29, 2012…(Tallahassee, FL)  The Florida Supreme Court issued its mandate today in the case of Delta Property Management v. Profile Investments, Inc, 2012 WL 739193 (decided March 8, 2012), ending twelve years of litigation over a tax deed sale in Duval County.  Delta, the legal titleholder, inadvertently failed to pay its 1997 ad valorem taxes on commercial property located in Neptune Beach, Florida.  In a unanimous ruling, the Court held that Delta, represented by Hargrove Pierson & Brown of Boca Raton, was denied due process of law when the Duval County clerk had reason to know that the notice of sale intended for Delta was sent to the wrong address and made no attempt to correct the error.  The holdings in Court’s prior decision in Vosilla v. Rosado, 944 So. 2d 289 (Fla. 2009) and the United States Supreme Court’s decision in Jones v. Flowers, 547 U.S. 220 (2006) served as the basis for the ruling in the current litigation.

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