On this episode, I am joined by appellate attorneys Kimberly Kanoff Berman of Marshall Dennehey and Adam Richardson of Burlington Rockenbach to discuss a pesky problem pertaining to precedent. These are the cases we discuss:
OLDER IS BETTER (the prior panel opinion controls):
- Wood v. Fraser, 677 So. 2d 15 (Fla. 2d DCA 1996).
- Zarba v. State, 993 So. 2d 1000 (Fla. 2d DCA 2007).
- Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018) (en banc).
- Schofield v. Judd, 268 So. 3d 890 (Fla. 2d DCA 2019).
- Wanless v. State, 271 So. 3d 1219 (Fla. 1st DCA 2019).
- Nat’l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979 (Fla. 3d DCA Sept. 2, 2020).
- Earven v. State, 324 So. 3d 22 (Fla. 1st DCA 2021) (Bilbrey, J., concurring).
- M.M. v. State, 2d DCA (April 2022) (Labrit, J., concurring).
LATER IS GREATER (the later panel opinion controls):
- Little v. State, 206 So. 2d 9 (Fla. 1968).
- State v. Walker, 593 So. 2d 1049 (Mem) (Fla. 1992).
- Collins v. State, 893 So. 2d 592 (Fla. 2d DCA 2004) (footnote 3).
- Daniel v. State, 271 So. 3d 1214 (Fla. 1st DCA 2019) (footnote 3).
- R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590 (Fla. 2017).
- 100 Emerald Bch. Way v. Thornton, et al., 4th DCA (Forst, J., concurring).
Nota bene: The 1st and 2d DCAs have come out on both sides of the issue.
For a discussion about how DCAs should resolve intradistrict conflicts in the wake of Fla. R. App. P. 9.331 see, e.g., In re Rule 9.331, Determination of Causes by a Dist. Ct. of Appeal En Banc, Fla. Rules of App. Proc., 416 So. 2d 1127 (Fla. 1982).
Judge Ross Bilbery’s attempt at reconciling older is better and later is greater: Rogers v. State, 296 So. 3d 500 (Fla. 1st DCA 2020) (Bilbery, J., concurring).
Federal land (prior panel opinion controls): see, e.g., Caplan v. All American Auto Collision, 11th Cir. (June 2022).
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