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.

Attorney-client privilege is the right of clients to refuse to disclose confidential communications with their lawyers to third parties. This privilege is fundamental to preserve the right to effective legal counsel. Lawyers cannot function effectively on behalf of their clients without the ability to communicate with them in confidence.

With that said, as an appellate attorney, I was successful in overturning a trial court’s decision denying a protective order—preventing the disclosure of attorney client communication.[1] In a case, where a son was suing his mother, we filed a Writ of Certiorari on a discovery issue—a litigation process during which each party requests relevant information and documents from the other side in an attempt to “discover” pertinent facts. The information the son was seeking from the mother, I believed to be attorney-client privilege.

By filing for a Writ of Certiorari, often referred to as a Writ of Cert, I swiftly completed a petition explaining to the appellate court the reasoning that the trial court’s interlocutory order needed to be reversed. After evaluating the petition the appellate court decides whether or not to grant a show cause order to the opposing party. If the court issues a show cause order the opposing party answers the petition. In this particular case the court issued a show cause order and the reply was submitted by the opposing parties’ council.

In less than two months the appellate agreed with our position and the Writ of Cert I filed was granted; and the trial courts decision denying the protective order was overturned. Had we not petitioned the appellate court with the Writ of Cert, the opposing party would have access to privileged information. Thus, I was able to prevent letting the proverbial cat out of the bag.

Robin Bresky, Law Offices of Robin Bresky

[1] A large part of my practice is drafting pre-trial litigation as well as appellate briefs. Please note, in the case stated above, I was hired as a ghostwriter for another attorney who sought my services, because of my extensive knowledge on appellate law. In addition to my own clients, I offer litigation support to other attorneys that seek my expertise.