The issue was whether a trial court’s order denying exceptions to a general magistrate’s report and affirming the report, with several exceptions, was appealable as a final order or an appealable non-final order.

We represented the Father of an infant child in a contentious custody dispute over timesharing and other issues. A general magistrate entered a report with recommendations regarding a time-sharing schedule, child support, and daycare for the child.  The general magistrate also found that the Father had been involuntarily absent from the child’s life due to the Mother’s actions and her failure to facilitate a relationship between the Father and child.  The trial court judge affirmed and implemented the magistrate’s report with several exceptions, and the Mother appealed to the Fourth District Court of Appeal.

We filed a motion to dismiss the appeal, arguing (1) that the trial court’s order was neither a final order nor an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), and (2) that the appeal should be dismissed based on the Mother’s failure to file an Initial Brief within the time frame required by Florida Rule of Appellate Procedure 9.130(e).  The court of appeals granted our motion, and we succeeded in obtaining dismissal of the Mother’s appeal for our client.

The issue as to whether or not an insurance company can deny coverage to an innocent co-insured based on the failure of a spouse to attend an examination under oath (EUO) was resolved in favor of our client, the innocent co-insured.

Our client’s home was burglarized by an unknown assailant. The client preformed all conditions precedent to coverage. The insurance company required that the husband, who lived at home at the time of the burglary and was the person who discovered the home burglarized, sit for an EUO. The problem was that by the time the EUO was scheduled, the husband was no longer living at home; and in fact a restraining order for domestic violence had been issued against him. Counsel for the client argued the innocent co-insured exception at the trial level, and we reasserted it at the appellate level.

The Circuit Court sitting in its appellate capacity overturned the trial courts summary judgment. Further, the reviewing court held that where an insurance policy does not expressly state whether the obligation to attend an EUO is joint or several, the ambiguity should be resolved as requiring the obligations and coverage to apply severally. The summary judgment finding that the failure of the husband to submit to an EUO was a material breach which barred the insured from recovering under the policy was reversed and remanded.  Our client was awarded appellate attorney fees pursuant to Florida Statute 627.428(1).

The law of the case doctrine states generally that questions of law that actually have been decided on appeal must govern the case in the same court and in the trial court through all subsequent states of the proceedings. State Dept. of Revenue v. Bridger, 935 So. 2d 536, 538 (Fla. 3d DCA 2006). We were recently successful affirming a trial court’s decision to deny a motion to compel arbitration.  In this case, a luxury automotive dealership in Kendal had originally filed a motion to compel arbitration under the arbitration provision of a contract that was signed by the consumer. The trial court entered a favorable order and the parties proceeded to arbitration. At arbitration, however, the car dealership argued that the contract was in fact not executed, and therefore that the consumer was not entitled to relief under a contract that was not executed.  In essence, the car dealership argued that there was no contract. The dealership was successful in obtaining an arbitration award in its favor.

On appeal, the consumer was successful in having the Third District Court of Appeal reverse the trial court’s order, which had confirmed the original arbitration award.  The Third District held that that if there is no contract, there can be no arbitration clause of a non-existent contract. Niven v. G.F.B. Enterprises, LLC, 849 So. 2d 1093, 1094 (Fla. 3d DCA 2003), citing, Henderson v. Coral Springs Nissan, Inc., 757 So. 2d 577 (Fla. 4th DCA 2000). Thus, the law of the case was established.

Nevertheless, the dealership, after subsequent litigation, again moved for a renewed motion to compel arbitration, citing that an exception to the law of the case doctrine existed. The trial court denied said motion, and the dealership appealed. We were successful in arguing to the Third District, however, that under the facts of this case, there were no grounds sufficient to support the application of any exception and that the law of the case had been established. The Court agreed with our position and affirmed.

While there are specific mandates under Florida law that require the Florida Supreme Court to grant review in certain instances, for most practitioners, getting your case heard by the Florida Supreme Court can seem as daunting as getting a front seat at the Kodak Theater during the Oscars.  Alas, Robin I. Bresky and Diana L. Martin have offered a practical guide for those practitioners seeking entry into the highest court in the state.  Robin Bresky co-authored Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, which was featured in the November 2009 issue of the Florida Bar Journal.  The article is intended to help practitioners navigate the Florida Supreme Court’s red carpet and assess the likelihood of gaining access behind its discretionary velvet ropes.

Florida Rule of Appellate Procedure 9.120 sets out the procedural mandates necessary to invoke the Florida Supreme Court’s jurisdiction.  The more challenging task, however, becomes convincing the Court to exercise its jurisdiction.  For example, Florida Supreme Court Clerk statistics indicate that of the cases submitted to the high court for consideration, only 7% of cases seeking discretionary review, which do not involve cases of certified questions or certified conflicts, are granted review.  On the other hand, the Court grants review in approximately 67% of cases that involve certified questions and approximately 83% of certified conflict cases.  See, Florida Appellate Practice § 3.21.  Therefore, in cases where the district court has not certified a question or certified a conflict, the true hurdle remains convincing the Court to accept discretionary jurisdiction.

In addition to outlining the relevant constitutional provisions and appellate rules, the article discusses eight categories of discretionary review and provides practical guidance, including outlining timeframes for attorneys considering an appeal to Florida’s Highest Court.  As highlighted above, the article cites useful statistics that illustrate the types of cases that make it through and those that do not fare as well.  It proves helpful not only to appellate practitioners, but more so to any attorney that has found himself in the position of advising a client on a decision to seek review in Florida’s Highest Court.  Afterall, it will take more than a “Best Dressed” nod from Joan Rivers to get you through these velvet ropes.  For more on Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, please visit www.breskyappellate.com for the complete article or refer to the November 2009 issue of the Florida Bar Journal.

Many of us are taught at a young age to trust the men and women of the cloth; cloth in this case consisting of a white poly-cotton blend lab coat.  In most cases, we trust our physicians with our lives and the lives of our loved ones.  As patients, we listen and do as directed by our doctors because afterall, they do know best.  In the context of medical malpractice, however, this doctor/patient relationship can become tenuous when the patient feels the doctor’s care has dropped below the acceptable standard and resulted in injury.   Trusting patients who feel they have been injured at the hands of a physician quickly turn into inquisitive clients in search of justice.  Our firm recently received a favorable Opinion from the Fourth District Court of Appeal in the context of a medical malpractice action.  Specifically, the decision hinged on the statute of limitations in the medical malpractice arena and when the time for said cause of action begins to accrue.

Florida Statue 95.11(4)(b) governs the limitations period for a medical malpractice action.  The section states that an action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . .”  In Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993), the Florida Supreme Court articulated the standard to be applied as follows:  “the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also that there is a reasonable possibility that the injury was cause by medical malpractice.”  Certainly there are injuries that clearly are caused by medical malpractice.  For example, going into surgery to have a cyst removed from your hand and waking to find yourare missing your left leg.  But what happens when you experience a less conspicuous injury and although your body is telling you one thing, the physician whose continuing care you are under is reassuring you that all is well and that in time, things will be better?  This is the precise issue involved in our case.  Essentially there was a factual dispute as to when the patient knew or should have been aware that her injuries may have been the result of medical malpractice.  And, instead of submitting that question to the jury for determination, the judge decided at summary judgment that the statute of limitations had run.  The Fourth District Court of Appeal reversed the judge’s decision in our favor and found that the judge had erred in taking that question from the jury.  The Court, recognizing the inherent trust placed upon a physician by a patient, stated “too great is the faith laypersons place in their physicians for the law to impute a duty on them to investigate malpractice in every change in diagnosis or treatment.”  (quoting from Cunningham v. Lowery, 724 So. 2d 176, 179 (Fla. 5th DCA 1999).  Thus, it appears the courts have tried to impose a balance between patient accountability and the importance of preserving a trusting doctor/patient relationship during and throughout treatment.  Most important, however, is that the question will often hinge upon a factual determination and will more often than not be left to the province of the jury to decide.

by Diana L. Martin and Robin I. Bresky

Florida Bar Journal – Page 55

Your client is on the losing end of an opinion issued by one of Florida’s five district courts of appeal and wants to know whether there is hope of having that opinion overturned by the state’s highest court. Given that the Florida Supreme Court’s jurisdiction to hear cases is limited and primarily discretionary, you will likely have to explain to your client that the Florida Supreme Court can review the lower court’s opinion only if it meets certain criteria and only if the court so chooses. Although divining in which cases the court will grant review is an impossible task, the following will aide in advising your client.

Under Fla. Const. art. V, §3(b), the Florida Supreme Court has five categories of jurisdiction: mandatory appellate jurisdiction, discretionary review jurisdiction, discretionary original jurisdiction, exclusive jurisdiction, and jurisdiction to issue certain advisory opinions.1 Since the constitutional amendment in 1980,2 the bulk of the Supreme Court’s jurisdiction is discretionary.3 This article focuses on cases that seek discretionary review (as opposed to petitions for the exercise of original jurisdiction, e.g., the issuance of writs).

Procedure for Invoking Discretionary Review
The procedure for invoking the Florida Supreme Court’s discretionary review is outlined in the Rules of Appellate Procedure.4 In most cases, the party seeking review must file a notice in the district court within 30 days of rendition of the order to be reviewed, followed by a jurisdictional brief in the Supreme Court within 10 days.5 Jurisdictional briefs are not required in cases involving a decision that certifies a question of great public importance, a trial court order or judgment that is certified by a district court as requiring immediate resolution by the Supreme Court, or a question certified by a federal appellate court.6

Prior to filing a notice of review, however, the petitioner must make sure the opinion is subject to the Supreme Court’s jurisdiction. The court will administratively dismiss notices to review per curiam affirmances that do not contain a written opinion or at least cite to a case that has been quashed or reversed by the court, statute, or a rule of procedure.7 A party seeking to review an opinion that falls into one of these categories would first need to obtain a written opinion from the district court.8

Method for Determining Whether to Grant Review
Being a court of limited review, the power of the Florida Supreme Court to exercise jurisdiction over a case is strictly construed and there is a heavy burden against the exercise of jurisdiction.9 In most cases, after the parties have filed their jurisdictional briefs, the clerk’s office assigns each case to a panel of five justices, one of whom oversees preparation of a memorandum analyzing whether there is a basis for the court’s exercise of discretionary jurisdiction.10 After reviewing the memorandum, the panel votes whether to accept discretionary review.11 If four justices agree on a jurisdictional disposition of the case (whether to grant review with or without oral argument or deny review), the parties are notified of the court’s decision and the case proceeds accordingly.12 In the event of a 3-2 split, the case is sent to the remaining two justices and the majority vote of the entire court determines whether the request for discretionary review is granted.13

Because no jurisdictional briefs are required if a party is seeking review in a case in which there is a question certified as being of great public importance, the notice and district court opinion are reviewed by a panel of five justices who vote whether to accept review in the same manner described above.14 In cases in which a district court certified a trial court order as requiring immediate resolution by the Supreme Court, the entire court, rather than an assigned panel, determines at its next conference whether to accept jurisdiction.15 And in cases involving a question certified by one of the federal appellate courts, the chief justice decides after the merits briefs have been filed whether the case should be placed on the oral argument calendar or assigned to a justice’s office for preparation of a memorandum that will be circulated to the other justices before they conference to consider the case.16

Types of Discretionary Review Jurisdiction
• Express Declaration of Statutory Validity — The Florida Supreme Court has the discretion to review district court decisions that expressly declare valid a state statute — as opposed to declarations that a statute is invalid, over which the court has mandatory jurisdiction.17 While the district court decision must directly discuss or make a finding of statutory validity,18 such a finding may be dicta.19 Nevertheless, the practice of the court demonstrates its selectivity in reviewing these types of cases.20

• Express Construction of State or Federal Constitution — District court decisions that expressly construe a provision of the state or federal constitution also fall under the discretionary review jurisdiction of the Supreme Court.21 It is not sufficient that a district court decision merely construe a provision of state or federal law; the decision must “‘explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision.’”22 Of the 20 cases seeking this type of review in 2008, the court exercised its discretion to grant review in only a single case.23

• Opinions Affecting Constitutional or State Officers — The Supreme Court has discretionary review jurisdiction over district court decisions that expressly affect a class of constitutional or state officers.24 The court has explained that a decision must directly affect the “duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers” to be subject to review.25 This means the decision must be “in a case in which the class, or some of its members, is directly involved as a party” or one that “generally affects the entire class in some way unrelated to the specific facts of that case.”26 A decision that inherently affects a class of officers, without expressing an intention to do so, is not subject to the court’s discretionary review.27 In any event, discretionary review on this ground is rare.28

• Express and Direct Conflict on Same Question of Law — The Supreme Court has discretion to review decisions of district courts of appeal that “expressly and directly conflict with a decision of another district court of appeal or of the Supreme Court on the same question of law.”29 This form of discretionary review, commonly referred to as “conflict jurisdiction,” is by far the type most requested.30 Of the 947 requests for discretionary review made in 2008, 832 of those requests were made under the court’s conflict jurisdiction.31

For the Supreme Court to have conflict jurisdiction, there must be a district court decision that is something more than a per curiam affirmance.32 The conflict should be demonstrated by a majority statement or majority citation to authority33 that is apparent on the face of the opinion,34 but it is not necessary that the district court explicitly note the conflict.35 Thus, it can be enough that an opinion merely cites to a case that has been overruled or receded from or that is already pending before the Supreme Court.36 The conflict, however, must be with a decision of the Supreme Court or another district court of appeal — not a conflict with a statute, rule, federal law, or a district court’s decision to recede from its own prior decisions/case law.37

There are at least four types of conflict. “Holding conflict”38 exists when the challenged decision announces “a rule of law that conflicts with a rule previously announced by [the Supreme Court] or another district court; or [applies] a rule of law to produce a different result in a case that involves substantially similar controlling facts as a prior case disposed of by [the Supreme Court] or another district court.”39 “Misapplication conflict”40 exists when a decision misapplies precedent,41 which occurs because of an erroneous reading of precedent, an erroneous extension of precedent, or an erroneous use of facts.42 An “apparent conflict” can exist when “a district court opinion only seems to be in conflict, even though there actually may be some reasonable way to reconcile it with the case law.”43 And “piggyback conflict” occurs when the challenged district court opinion “cite[s] as controlling precedent a decision of a district court that is pending for review in, or has been subsequently overruled by, the Florida Supreme Court; or [cites] as controlling precedent a decision of the Florida Supreme Court from which the [c]ourt has subsequently receded.”44

Although the Supreme Court’s conflict jurisdiction is the type most often requested, it is rarely obtained. Less than two percent of the requests for conflict review made in 2008 have been granted.45 Therefore, although the parties are directed to initially file only jurisdictional briefs when seeking this type of discretionary review,46 the party seeking review should attempt to persuade the justices that the case is so significant or important on the merits that review should be granted.47

• Certified Questions of Great Public Importance — The Supreme Court has discretion to review decisions of district courts of appeal that “pass upon a question certified to be of great public importance.”48 The district court decision being challenged must satisfy several criteria to warrant review under this category. The foremost is that the district court actually certify that an issue is of great public importance; the Supreme Court does not have jurisdiction over a case in which only the parties contend an issue of great public importance exists.49 If the district court does not certify a question in its opinion, a party has 15 days to move for certification in the district court.50 But the majority of certified questions the Supreme Court decides to consider were certified by the district court initially, without a party moving for certification.51

The district court must also pass upon the question it certifies52 by answering it in order to dispose of the case.53 Additionally, the majority must have reached a decision on the merits.54 And, finally, the actual question of great public importance must be certified by a majority decision, i.e., “a majority of those judges participating in the case [must] concur in the decision to certify.”55

Case law demonstrates ways in which the Supreme Court has decided to limit its discretion to review questions certified to be of great public importance. The court has denied review in cases in which it found the question presented dealt with only a narrow principle of law56 or a narrow issue with unique facts.57 Although the court does not always accept review of cases involving certified questions, it granted approximately 42 percent of the requests for review made in 2008.58

• Certified Conflict — Since the 1980 amendment, the Supreme Court has had discretion to review decisions of district courts of appeal that “are certified to be in direct conflict with decisions of other district courts of appeal.”59 For the Supreme Court to have discretionary jurisdiction to review a decision under this category, the challenged district court decision must be a majority decision60 and actually certify a conflict, not merely “acknowledge, discuss, cite, suggest, or in any other way recognize conflict.”61

In cases in which the district court has certified conflict, the Supreme Court has jurisdiction per se to exercise review.62 This means that, unlike cases in which the Supreme Court grants discretionary review on the basis of express and direct conflict, the court may hear cases of certified conflict even if it ultimately determines there is no conflict.63 Another advantage to having a case postured as a certified — rather than an express and direct — conflict case when presented to the Supreme Court for discretionary review is that, according to the 2008 numbers, the court grants review in approximately 37 percent of the cases.64 Counsel should, therefore, consider moving for conflict certification in the district court prior to seeking review in the higher court.65

• Pass-through Jurisdiction — The Supreme Court has discretion to review an order or judgment entered by a trial court that is on appeal and certified by the district court to be either of great public importance or to have a great effect on the proper administration of justice throughout the state, and is certified to require immediate resolution by the Supreme Court.66 This is commonly called “pass-through jurisdiction.”67 A district court may use this mechanism to bypass the necessity of a district court opinion and send a case directly to the Supreme Court sua sponte or upon the suggestion of a party filed within 10 days of the filing of the notice of appeal.68

The Supreme Court has cautioned district courts not to use pass-through jurisdiction as a means to avoid initially addressing difficult questions and to send up only those cases that require immediate resolution by the Supreme Court.69 Because pass-through jurisdiction bypasses the constitutional right of litigants to have districts review circuit court judgments,70 its use by the Supreme Court is understandably limited. But the court did grant review in three of the four cases of pass-through jurisdiction it was presented in 2008.71

• Questions Certified by Federal Appellate Courts — Questions of law certified by the U.S. Supreme Court or a U.S. Court of Appeals are subject to the Supreme Court’s discretionary review jurisdiction if the question is determinative of the cause and there is no controlling precedent out of the Florida Supreme Court.72 To request review, the federal court must issue a certificate setting forth “a statement of the facts showing the nature of the cause and the circumstances out of which the questions of law arise, and the questions of law to be answered.”73 The court’s internal operating procedures indicate review of these questions, which are infrequently made by the federal appellate courts,74 is always granted.75

Conclusion
While there are many different pathways that lead toward discretionary review in the Florida Supreme Court, most will dead end. Chances for obtaining review improve dramatically upon certification of a question of great public importance or conflict by the district court, but such certification is rare. Counsel should consider, therefore, advising clients at the beginning of the appellate process that Florida’s judicial system is structured so that the district courts are often the courts of last resort,76 and it is the exception that further review will be granted by Florida’s highest court.

One of the most prominent disputes amongst divorcing couples is the division or disposal of the marital home. And, due to the current economic conditions, homes have been almost impossible to sell and many have fallen into foreclosure. A status most would try to avoid; but may not always be the case when resentful behavior plays a factor, and when we act on emotion instead of sound judgment.

After a long term marriage and subsequent divorce, a trial court had awarded title, for purposes of selling a multimillion dollar home, to the former wife. The house had gone into foreclosure during the divorce proceeding, but the former wife had a buyer for the home. The ex-husband appealed the house being put in the wife’s name. He had a right to appeal as the order concerned entitlement to property. Although the former wife had a buyer for the marital home, the former husband was willing to loose the house to foreclosure rather than sell it and divide its worth. The ex- wife could not get a title company to give clear title, based on the pending appeal. Moreover, the buyer she had, pursuant to their contract, was able to walk away from the deal, if clear title was not obtained, after a certain date.

Typically, the appeals process can be lengthy, sometimes lasting even years. Transcripts of the proceeding below must be ordered and presented to the appellate court, all sides must prepare and submit briefs, once the briefing process is completed, and it’s reviewed by a three- judge panel. Understanding the importance of time, our firm successfully motioned the appellate court to expedite the appeal on behalf of the former wife. In a little less than two months a decision was rendered. We had won the appeal and received a per curium affirmance, which means the appellate court upheld the trial court’s order. The house will not be lost to foreclosure and the closing is now set to go forward.

My job as an appellate attorney is to be knowledgeable in black-letter law, the appeals process and in writing effective appellate briefs; and concisely explaining why the appellate court judges should or should not affirm the circuit court’s decision. Seeking my expertise, as an appellate attorney, allowed for the former wife to silence her ex-husband’s attempt to be spiteful and prevented foreclosure of the marital home.
Robin Bresky, Law Offices of Robin Bresky