HCBA Lawyer Magazine Vol. 30, No. 3 | Page 28

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 Get InVOlVeD! sIGn up On YOur MeMber prOFIle At hIllsbAr.COM. 26 JAN - FEB 2020 | HCBA LAWYER