3DCA Blog

Arguments Scheduled for Wednesday, November 12, 2014.
Panel: Shepherd, Lagoa, Scales.

Silva v. State, 3D13-334.

• Criminal Law: Waiver of Counsel; Verdict Forms; Jury Instructions.
•  Briefing
  • Initial Brief.
  • Answer Brief.
• Preview
  • Appellant argues, first, that the order must be reversed because the lower court allowed him to represent himself at a crucial stage in his murder trial without adequately inquiring into his competence to make that decision. He then argues, second, that the verdict form for count II was confusing because (a) it listed lesser included offenses of “attempted first degree murder” even though he had been acquitted of that offense, and (b) it listed no lesser included offenses to the pending charge of attempted second degree murder.
  • Regarding the first issue, Appellee argues that lower court’s inquiry was adequate because the record reflects that Appellant made an intelligent and knowing waiver of counsel. Regarding the second issue, Appellee argues that the issue was not preserved, and even if it were, the verdict forms and jury instructions were not confusing, and in any event the jury’s verdict was supported by competent, substantial evidence.

Sanles v. State, 3D13-2392.

• Criminal Law: Jury Instructions: Attempted Crimes.
•  Briefing
  • Initial Brief.
  • Answer Brief.
• Preview
  • Appellant argues that the trial court erred when, over objection, it instructed the jury on the crime of attempted strong-arm robbery. Appellant argues that the evidence showed only a completed offense.
  • Appellee argues, first, that Appellant abandoned his preserved argument by inviting the jury during closing argument to consider attempt. Second, it argues that the evidence was susceptible to an inference that the robbery was not completed. And third, it argues that Armstrong v. State is distinguishable because, here, it was not clear whether the defendant made no clear demand for money or property.

Jacobson v. Jeld-Wen, Inc., 3D13-1256.

• Summary Judgment.
• Briefing
  • Initial Brief.
  • Answer Brief.
• Preview
  • Manufacturer of windows (Appellee) installed (via subsidiary) replacement windows in doctor’s home. Windows went bad. Doctor sued, claiming manufacturer violated building code by failing to obtain a permit before installation. Manufacturer moved for partial summary judgment, arguing that the manufacturer of parts cannot violate building code as a matter of law, inter alia because manufacturers do not need to apply for permits for replacement windows. Court granted motion. Doctor appeals.
  • Doctor argues for reversal because principals are liable for acts of the agent. Doctor recognizes that the record does not contain a transcript of the hearing on the motion for partial summary judgment. [Huge mistake!]
  • Appellee argues that building code does not apply to warranty replacement work; that building code only applies to entity performing actual installation work; and that the statute of limitations expired.
  • This will be a tough argument for Appellant. The brief is hard to follow and the record is sparse. Expect an affirmance.

Bloomgarden v. Mandel, 3D14-556.

• Charging Liens.
• Briefing
  • Initial Brief.
  • Answer Brief.
  • Reply Brief.
• Preview
  • Appellants (parents and son) retained their former attorney to sue the son’s prior criminal-defense attorney for alleged malpractice in defending the son in two criminal matters (in New York and Texas). During that malpractice lawsuit, the son was also being prosecuted for a double murder in California. [With these facts, Appellants are already off to a great start—three criminal matters, including a double murder, and they sued both their criminal-defense attorney and the attorney prosecuting their malpractice suit.]
  • Appellants’ former attorney withdrew from their malpractice case. Appellants then moved the lower court to cancel, rescind, and discharge the charging lien.
  • Pro hac vice attorney for Appellants presents eight issues for review. [You now see where this is headed.] Appellant’s argument is convoluted; expect a large portion of the argument to be taken up by clarifying questions from the panel. In essence, Appellants argue that his former counsel (in the malpractice case) cannot continue to assert a charging lien in their case because the former counsel committed malpractice and impermissibly withdrew.
  • Appellees argue (presenting a single issue) that the trial court’s order is correct because Appellants had failed to present any admissible evidence to establish any defense to the lien based on malpractice; any limitations bar; or an impermissible withdrawal under Faro v. Romani, 641 So. 2d 69 (Fla. 1994). Appellees cut to the chase and slice up Appellants’ brief.
  • Expect the court to make quick work of this one, both at argument and in issuing the opinion.

Arguments Scheduled for Monday, November 10, 2014
Panel: Shepherd, Lagoa, Scales

Lascaibar v. Lascaibar, 3D13-1693.

• Family law: child-support arrearages; adoption of magistrate recommendations.
• Briefing
  • Initial Brief.
  • Answer Brief.
  • Reply Brief.
• Preview
  • Litigation dates from 1993. Expect some interesting commentary during OA.
  • Magistrate previously recommended, and circuit court previously held, that former wife was entitled to accrued interest on outstanding child-support payments and arrearage judgments.
  • At hearing on exceptions to magistrate’s findings and recommendations, circuit court (Soto, C.J.) did not give appellant prejudgment interest on child-support arrearages prior to March 12, 2010.
  • Appellant former wife argues that the trial court erred as a matter of law when it failed to calculate and award interest on all arrearages, citing Matteo v. Matteo, 667 So. 2d 1003 (Fla. 3d DCA 1996); Kranz v. Kranz, 661 So. 2d 876 (Fla. 3d DCA 1995); Lamar v. Lamar, 889 So. 2d 983 (Fla. 4th DCA 2004); and other cases.
  • Appellee former husband argues that the order should be affirmed because the standard of review is abuse of discretion, and because the magistrate’s recommendations were supported by competent, substantial evidence.
  • Appellant replies that the parties’ stipulation in March 2010, integrated into the April 2010 order, is law of the case.

Everlast Drywall Constr., Inc. v. Victoria Mgmt, LLC, 3D14-1805 & 3D14-1799.

• Arbitration.
• Briefing
  • Appellant’s Initial Brief.
  • Appellee’s Answer Brief and Initial Brief of Cross-Appellant.
  • Appellant’s Reply Brief and Answer Brief of Cross-Appellee.
  • Cross-Appellant’s Reply Brief.
• Preview
  • In this appeal from a nonfinal order, Everlast argues, first, that the trial court erred as a matter of law when it denied Everlast’s demand for arbitration on claims for common-law indemnity and equitable subrogation. In its view, those claims are based upon Everlast’s alleged breach of an assigned subcontract that contained an arbitration clause; therefore, arbitration is required. It then argues, second, that the lower court abused its discretion when it denied Everlast’s request to stay arbitration until resolution of the main claim, because (1) that resolution might moot the need for arbitration, and (2) contemporaneous proceedings in different fora risk conflicting results.
  • Safeco Insurance argues that the lower court erred in granting in part Everlast’s motion to compel arbitration on counts I and II because Everlast waived that right when it previously litigated claims arising out of the subcontract instead of arbitrating them. Safeco then argues that the lower court correctly denied arbitration on counts III and IV because no written agreement to arbitrate exists between Safeco Insurance and Everlast.