ProMotinG ConsistenCy anD aVoiDinG ConfliCt
Appellate Practice Section
Chairs:JoeEagleton–Brannock&HumphriesandChanceLyman–BuchananIngersoll&Rooney
Judge Maker noted
“Martin and Whitmire —
like dysfunctional family
I
n 1976, Floridians adopted
a constitutional amendment
altering the appellate
structure of the state and
strengthening the district courts of
appeal. 1 The Florida Conference
of District Court of Appeal Judges
petitioned the Supreme Court to
address issues that arose from the
amendment. Justice Overton wrote
to address these issues: “[T]he
suggestion that each three-judge
panel may rule indiscriminately
without regard to previous decisions
of the same court is totally
inconsistent with the philosophy of
a strong district court of appeal …
[I]n most instances, a three-judge
panel confronted with precedent
with which it disagrees will
suggest an en banc hearing. As an
alternative, the district court panel
could, of course, certify the issue
to this Court for resolution.” 2
Remarkably, forty years later,
whether one three-judge panel
can expressly overrule or recede
from a prior decision of another
three-judge panel remains a point
of contention. Recently, the First
District Court of Appeal appears
to have done just that in a series
of cases that conflict with prior
precedent. In R.J. Reynolds Tobacco
Co. v. Martin, 53 So. 3d 1060
(Fla. 1st DCA 2010), R.J. Reynolds
argued that “[Plaintiff] failed to
members — appear to be
hopelessly in conflict.”
prove the reliance element of her
fraudulent concealment claim
because she put on no direct
evidence showing [decedent] relied
on information put out by the
tobacco companies omitting
scientific findings on the harmful
effects of smoking.” Id. at 1069.
The court disagreed because, “the
record contain[ed] abundant
evidence from which the jury could
infer [decedent’s] reliance” on such
information. Id.
Yet in both R.J. Reynolds
Tobacco Co. v. Whitmire, 260 So.
3d 536 (Fla. 1st DCA 2018) and
R.J. Reynolds Tobacco Co. v.
Prentice, 44 Fla. L. Weekly d2603
(Fla. 1st DCA Oct. 24, 2019),
divided First District panels appear
to have expressly overruled or
receded from Martin, each with a
dissent by Judge Makar. As Judge
Makar explains, the First District
now requires, “proof that a
plaintiff-smoker detrimentally
relied on a specific false statement
to prevail on a fraudulent
concealment theory versus proof of
detrimental reliance on inaccurate
representations that withheld or
concealed material information.”
Prentice, 44 Fla. L. Weekly d2603.
Judge Maker noted, “Martin and
Whitmire — like dysfunctional
family members — appear to be
hopelessly in conflict.” Id.
Because “[c]onsistency of law
within a district is essential to avoid
unnecessary and costly litigation,”
Rule 9.331, 416 So. 2d at 1128, the
intra-district conflict created by
decisions following Martin could
have, and should have, been avoided.
As the wisdom of Justice Overton
advises, the Whitmire and Prentice
panels should have suggested an en
banc hearing or certified the issue
to the Supreme Court for resolution.
Practitioners, who rely on consistency
in the law, should seek to aid the
courts in carrying out this
responsibility by requesting an en
banc hearing or certification when
faced with unfavorable precedent,
rather than simply urging the Court
to recede from prior opinions in this
unhealthy manner. n
1
Am. C.S. for S.J.R.’s 49, 81, 1976;
adopted 1976.
2 In re Rule
9.331, 416 So.
2d 1127, 1128
Fla. 1982).
Author:
Kurt J. Rosales -
Vaka Law Group
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