An appellant dreads nothing more than the receipt of a thin envelope from the district court of appeal containing an adverse per curiam affirmance (not so affectionately known to appellate lawyers as a “PCA”). After months, and perhaps years, of effort in the trial and appellate courts, the appellant is rewarded with the equivalent of “you lose” without a word of explanation. Worse yet, in most circumstances, a PCA is the end of the line for an appeal. In Florida, with one possible exception, a PCA cannot be reviewed by the Florida Supreme Court.
In 1799, French troops in Egypt discovered a granite slab inscribed with a decree praising an Egyptian king. The decree appeared in hieroglyphic, demotic, and Greek. This slab, the Rosetta Stone, enabled scholars to compare the Greek writings to the other two languages. The stone “was the key to the deciphering of Egyptian hieroglyphics.” Sometimes, trial judges and lawyers need to look for a Rosetta Stone to decipher the meaning of decisions handed down by the appellate courts. In law school, students are trained to read appellate decisions and apply them to other cases. However, students are taught little about how to interpret and enforce appellate court decisions. Certain kinds of decisions, or certain language used in decisions, may have different meanings in different contexts, or in different courts. It is not always enough to read the court’s decision in the particular case. It sometimes is necessary to read other decisions to understand what the appellate court wants the trial court to do. Often, it is necessary to seek further guidance from the appellate court.
This Article will discuss some issues that arise after an appeal is concluded, and, as further proceedings are held in the trial court below, the need for clear directions from the appellate court to the trial court and to the parties and appropriate remedies when the trial court fails to understand or to comply with the appellate mandate.
Appeals focus on legal errors. They are not a place to attempt to retry the facts. But that does not dictate that counsel ignore the importance of the facts in their briefs. Our common law legal system is fact driven. A difference in the facts may empower the advocate to distinguish the client’s case from what appears to be a determinative adverse precedent.
The facts should neither be something counsel rushes through to write the argument section of the brief, nor an afterthought. The brief’s statement of the facts stands as an integral — and often crucial — part of the appellate process. Just as well written facts may make the case, poorly written or misleading factual statements may condemn the brief to defeat and discredit its author. This Article offers suggestions on effectively conveying the facts in an appellate brief. The same principles should apply in a trial court brief.
Although the parties and their lawyers had no direct contact in the months that had passed since trial, the flames of bitterness burned brightly on appeal. The amount in controversy was large.
Feelings were hard. Appellate briefs and motions asserted charges and countercharges of straying outside the record and misrepresenting the facts. Counsel accused each other of advancing “specious,” “outrageous,” and “disingenuous” arguments, founded on “wholesale misrepresentations” if not outright “lies.” An extreme scenario? Yes. Typical of appellate practice? No. But such counterproductive diversions occur with disturbing frequency, even in cases involving experienced and skilled appellate lawyers—lawyers who should know better.
There is no shortage of well-written and informative articles identifying such unprofessional, if not unethical, conduct. The focus of this Article is to suggest specific responses when opposing appellate counsel approaches or crosses the line.
Dogs have enjoyed a place of privilege and affection in the hearts and minds of most Americans. The greyhound breed specifically has enjoyed a rich and noble history, which often has been intertwined with the life of aristocracy. Nonetheless, the breed has been forced into a dangerous and cruel activity that is fueled by the suffering and death of thousands of nonhuman animals. The number of states that still allow this type of “entertainment” is dwindling, and many groups, as well as individuals, are fighting to bring an end to the industry. This Comment focuses on the abuse and mistreatment inflicted on greyhounds and posits that anti-cruelty statutes are ineffective protection for greyhounds because they are interpreted within a framework that considers nonhuman animals property and that excludes nonhuman animals from moral consideration. Because of this, the most, and likely only, effective way to protect the greyhounds is to abolish greyhound racing.
Almost thirty years ago, the Florida Legislature exercised its exclusive power to waive sovereign immunity when it adopted Florida Statutes Section 768.28. The statute, modeled on the Federal Tort Claims Act (FTCA), which has been analyzed in federal court opinions, is straightforward in its language. However, several decades of Florida Supreme Court decisions construing Florida’s waiver statute have generated a body of case law so incoherent and confusing that there are no defined legal boundaries of governmental tort liability and there is no clear framework with which to analyze immunity. The Court has effectively transformed the waiver statute to fit the current majority’s ideology.
This Article examines the enigmatic body of government tort law that the Florida Supreme Court has created since the Florida Legislature enacted the waiver statute and explores some of the anomalies, inconsistencies, ironies, and paradoxes surrounding this controversial and volatile area of law. Even before the Florida Legislature enacted the first statutory waiver of sovereign immunity, the extent of government insulation from tort liability was the subject of much debate and criticism, but the Florida Supreme Court has compounded the confusion enormously with conflicting and sometimes irreconcilable decisions. The confusion is the product of a number of factors, including the Court’s initial failure to consider the language of the waiver statute and its federal counterpart, its failure to construe strictly the scope of the waiver statute, its gratuitous adoption of a nebulous and unwieldy implied immunity for discretionary governmental functions, its unnecessary rejection and revival of the public-duty doctrine, and its ever-changing ideology and views concerning the principle of stare decisis.
In Volume 25 of the Stetson Law Review, Spring 1996, I wrote my first article about annexation in Florida, A Practical Perspective about Annexation in Florida.
That article has been cited widely because it summarized annexation law at that time and discussed annexation from a city’s, county’s, and landowner’s perspective. That article also discussed handling and avoiding annexation challenges, with a substantial emphasis on joint-planning-area agreements (agreements between cities and counties that set forth future annexation areas).
The purposes of this Article are to update the 1996 article, discuss Chapter 164, the Florida Governmental Conflict Resolution Act (which now expressly applies to annexation), and suggest changes to Chapter 171, the Municipal Annexation or Contraction Act. It is anticipated that the Florida Legislature will revise Chapter 171 in 2003 substantially; therefore, the reader should consult that statute to determine the current status of Florida annexation law.
The laws and legal processes of many Latin American countries are old and formalistic. The norms and principles at play in the continental-law system of Latin America can be traced directly back to the laws of the Roman republic, predating by many centuries the foundations upon which the Anglo-American or common-law system is based. This is particularly true in matters of commercial contracts and agency, in the complex relationships delineated in family law, the legitimacy of state authority, and the primacy of natural law. Add to this tradition the weight of ecclesiastical law and the bureaucratic and complex societal legacies of Iberian colonialism, and what emerges is a complex tapestry of code law, entrenched norms, and traditions of practice that resist change and defy easy explanation or understanding.
A local estate-planning/probate attorney referred a new client to you after learning about your reputation as a problem solver in international cases. The client’s father (“Dad”) died in Orlando, leaving a substantial tract of beach-front real estate in St. Martin to his wife (“Mom”), who owned a share already as a tenant-incommon with the decedent and also, incidentally, the client. The client, the decedent’s daughter, negotiated a sale of the realestate to a Brazilian national who intends to erect a resort on the picturesque parcel. Time is of the essence, yet the transaction hits a snag when it is discovered that the land records in St. Martin do not reflect Dad’s intestate death and the resulting vested interest in Mom.
When parties decide to develop certain business enterprises, they often form a corporation or other type of legal entity. The parties conduct business and create their relationships in the name of the new entity and within the framework of the bylaws to which they have agreed. Some form of incorporation is, in principle, necessary or advisable when engaging in business enterprises that have long-term objectives that are formed to develop an activity of a permanent nature, or that may require the participation of a number of shareholders who have contributed significant financial resources.
For other types of business enterprises, however, the parties may prefer to establish and define the relationships that arise from working together without creating a new legal entity. The parties maintain their individual legal status and each one continues to perform independently the activities that constitute the enterprise’s main purpose. In addition, the parties agree to jointly start a specific venture that, in most cases, lasts a specific period of time or that requires the performance of an endeavor with a limited goal. This is the area of economic activity in which the various forms of joint ventures are used most widely. For example, construction projects and mining explorations are widely conducted in Peru through what generally are called joint ventures. A joint venture allows two or more companies or persons to join to accomplish their objectives within the specific targeted activity, while maintaining their own legal individualities.