The Appellate Brief

Kerry Evander has joined Alexander Appellate Law P.A. as Of Counsel, having retired from Florida's Fifth District Court of Appeal after sixteen years of service.

Kerry was Chief Judge of the Fifth District Court of Appeal from 2019 until 2021. He also served as a circuit court judge, as chief judge of the circuit court, and as a county court judge, for almost 34 years of service in Florida’s judicial branch. Before serving in the judiciary, Kerry practiced appellate, general civil, municipal, and construction litigation.

Another victory for a client. This week, in Allison v. Allison, 363 So. 3d 1129, 1130 (Fla. 2d DCA 2023), the Second District Court of Appeal ruled in our favor after we challenged a Tampa trial court’s imputation of income to our family law client in a post-dissolution modification proceeding.

This win has been a long time coming. In a published opinion, the U.S. Court of Appeals for the Eleventh Circuit just agreed with our arguments that there was a reasonable basis in the evidence for a federal jury to find that our Miami client, AM Grand, suffered $9.28 million in damages from Hurricane Irma, rejecting the insurance company’s argument that the verdict was speculative and excessive. AM Grand Court Lakes LLC v. Rockhill Ins. Co., 20-13954, 2023 WL 3813777, at *1 (11th Cir. June 5, 2023).

In Overture Realty, LLC v. City of Madeira Beach, 357 So. 3d 221 (Fla. 2d DCA 2023), uur client, Overture Realty, LLC, obtained a piece of property in the City of Madeira Beach. When the City of Madeira filed a foreclosure suit to collect on liens for an alleged failure to maintain the property, the City requested a summary foreclosure proceeding. But summary foreclosure is available only when a defendant refuses to defend against a suit. Here, Overture put on a strong defense. So summary foreclosure simply wasn’t available to the city.

Alexander Appellate Law P.A. shareholder Sam Alexander has been elected to the Executive Council of the Appellate Practice Section of the Florida Bar. The Appellate Practice Section is a 1500-member attorney organization “dedicated to promoting excellence in Florida’s state and federal appellate courts.” As a member of the Executive Council, Sam has been chosen by his appellate peers to supervise and control the affairs of the organization.

Alexander Appellate Law P.A. has won its clients another victory in the Fourth District Court of Appeal, in Comisar v. Heritage Prop. & Cas. Ins. Co., 344 So. 3d 46, 47 (Fla. 4th DCA 2022). After our Boca Raton clients’ insurance claim was denied by their insurance company, they sued requesting a “declaratory judgment,” which is a request that a trial court resolve a legal question at issue between two parties when it’s necessary to determine one party’s rights under a contract.

In the firm’s most recent victory, in Reese v. Mathis, 341 So. 3d 477 (Fla. 3d DCA 2022), the Third District Court of Appeal ruled in our favor, affirming a Miami trial court‘s denial of a defendant’s request for attorney’s fees under section 57.105, Florida Statutes, in a negligence action that the plaintiffs lost.

Another appellate victory for Alexander Appellate Law P.A.: Gesten v. Am. Strategic Ins. Corp., 339 So. 3d 1008, 1012 (Fla. 4th DCA 2022). After a tropical storm battered the insured’s home in Palm Beach County, they hired a public adjuster to help them handle their claim against their insurance company. But when the adjuster attempted to record the insurance company’s inspection of the home, the insurance company simply left.

Alexander Appellate Law P.A. has won another first-party insurance appeal, in Gooden v. People's Tr. Ins. Co., 47 Fla. L. Weekly D749 (Fla. 4th DCA Mar. 30, 2022). Our Fort Lauderdale client sued her home insurance provider for bad faith insurance practices, based on its refusal to negotiate with her during its repairs to her property. Among other things, she alleged that People’s Trust failed to communicate with her during the repair process, failed to discuss settlement options in good faith, and refused to consider her input on repairs to her own home.

When Shelia Powell sued her doctor for medical malpractice for a botched surgery in Miami, she requested the doctor’s medical records. To her surprise, her doctor claimed to have no operative report – the essential record from the time period during her surgery. To her further surprise, her doctor tried to dismiss her case in Miami-Dade circuit court based on the lack of an expert affidavit as to the likelihood of negligence, a requirement in medical malpractice cases, even though she couldn’t get an expert opinion without the operative report. Read the case here: Powell v. Sampson, 46 Fla. L. Weekly D2293 (Fla. 3d DCA Oct. 20, 2021).

After briefing by Alexander Appellate Law, the Fifth District Court of Appeal affirmed a trial court’s order in our Deltona client’s favor, ruling that when a foreign national agrees to litigate an issue in Florida and fails to raise any jurisdictional challenges in a first responsive pleading, those defenses are waived and Florida may exercise jurisdiction over the case. Read the case here: Edwards v. Codrington, 325 So. 3d 993, 996 (Fla. 5th DCA 2021)

It's been a long journey for Tasha Ford. In 2009, Boynton Beach police arrested her for wiretapping and obstruction because she refused to stop recording them with her phone as they arrested her minor son. She sued for false arrest, but after 10 years of litigation, the City won its motion for summary judgment.

You can read the opinion in our favor here: Ford v. City of Boynton Beach, 4D19-3664 (Fla. 4th DCA August 4, 2021)

It may be a small opinion, but it’s a big win for our Palm Beach County client (who has asked us to sing about her case “far and wide”).

The banks have been trying to foreclose on Cherane Pefley since 2008, after they agreed they miscalculated her monthly payment amount, agreed to correct her payment amount, then refused to accept that same payment amount. Then they foreclosed.

In 2018, Heather Silversmith’s home in Fort Lauderdale was damaged by a storm. Her homeowners insurer, State Farm, disagreed with her on the scope of damage, so her claim went to appraisal.

Last week, the Fifth District Court of Appeal, reviewing a case from the circuit court in Orlando, agreed with our argument that section 701.04(2), requiring satisfactions of fully paid mortgages, does not require a party to provide a partial satisfaction of mortgage – even when the promissory note held by that party is fully paid.

You can read the opinion here: Richeson v. South’s Custom Construction, Inc., 5D20-1496 (April 23, 2021)

Alexander Appellate Law just scored a big win for a client in Palm Beach County.

After winning her case against her landlord for unlawful eviction, the client timely moved for attorney’s fees – but the motion contained a clerical error and didn’t specify the statutory ground for fees. Over a year later, after a challenge to the motion, the trial court ended up denying the motion for failure to state its grounds with particularity.

You can read the opinion here: Nugent v. Michelis, 4D20-523 (Fla. 4th DCA March 10, 2021)

Alexander Appellate Law P.A. recently secured a victory for their clients in Miami. After briefing and oral argument, the Third District Court of Appeal agreed that an anti-assignment provision contained in a homeowners insurance policy application was unenforceable.

You can read the written opinion here: Extreme Emergency Fire and Water Restoration v. Certain Underwriter’s at Lloyd’s of London, 3D20-0005 (Dec. 16, 2020)