The Florida Bar

Florida Bar Journal

  1. Home
  2. News & Events
  3. Florida Bar Journal
The Florida Bar Journal
July/August, 2007 Volume 81, No. 7
Tipping the Ole Tipsy Coachman Over in His Grave - an Inequity of Appellate Review

by H. Michael Muñiz

Page 33

‘To name a thing is to make it real.”1 Well, the colorfully monikered tipsy coachman doctrine,2 a legal maxim of appellate review,3 became real in Florida when it first provided that if a trial court reaches the right result, albeit for the wrong reasons, the trial court’s decision will be affirmed if there is any basis in the record to support the trial court’s judgment.4 This venerable doctrine is attributed to, then soon-to-be chief justice, Logan Edwin Bleckley, who was “regarded by Georgia lawyers of his vintage … to be the greatest judge who ever adorned the Georgia Supreme Court.”5
It may be that we would draw very different inferences, and these differences might go to uphold the judgment; for many steps in the reasoning of the court below might be defective, and still its ultimate conclusion be correct. It not infrequently happens that a judgment is affirmed upon a theory of the case which did not occur to the court that rendered it, or which did occur and was expressly repudiated. The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it.6
“The pupil of impulse, it forc’d him along,
His conduct still right, with his argument wrong;
Still aiming at honor, yet fearing to roam,
The coachman was tipsy, the chariot drove home.”7
Justice Bleckley reached out to Oliver Goldsmith’s poem, Retaliation: A Poem,8 to conclude the Georgia Supreme Court’s decision in Lee v. Porter, 63 Ga. 345 (Ga. 1879). While we may never know what prompted Justice Bleckley, we do know that the appellant failed to provide a sufficient record on appeal to enable the appellate court to find error by the trial court.9 That holding left us with the unanswered question: Why did the great Justice Bleckley invoke or enliven, in obiter dictum, Goldsmith’s tipsy coachman, when it was not necessary?
Obiter dictum notwithstanding, close to a century later, the Supreme Court of Florida, reminded of Justice Bleckley’s quote from Goldsmith’s Retaliation,10 expressly adopted Georgia’s common law tipsy coachman doctrine.11
Many steps in the reasoning of the trial judge may be defective and still his conclusion be correct, and the judgment may be affirmed upon a theory of the case which did not occur to the court that rendered it. Justice Bleckley of [the Supreme Court of] Georgia was the first to see the analogy of this legal concept to some lines written by Oliver Goldsmith (1728-1774) in a poem entitled Retaliation [1774], lines 45-48.12
While a couple of Florida courts have recognized Justice Bleckley’s quote from Goldsmith’s poem,13 no Florida court has recognized his selective quote was merely obiter dictum nor considered the actual poem, beyond some few “coachman” lines from where this legal concept arose, or the true origin of the doctrine. Oliver Goldsmith’s Retaliation was a poem written during the 18th century, ironically, in the year of his death in which Goldsmith responded to a challenge by David Garrick, the actor, that they compare their skill at epigrams by writing each other’s epitaph.14 Goldsmith then wrote Garrick’s epitaph along with those of 10 others he imagined gathered about a table, including himself.15 Thus, the underlying origins of the tipsy coachman seem to be about 11, imagined dead men including its author.16 Stated otherwise, the tipsy coachman, essentially, rose from the dead.17
The tipsy coachman or “dead man’s” doctrine is a firmly established appellate doctrine in Florida18 although, when adopted from Georgia, the doctrine was already a settled rule of Florida jurisprudence, but just not named the “tipsy coachman.”19 Thus, finally named, the doctrine became real.20 Nevertheless, as is evident, the tipsy coachman had nothing to do with the law or with rules of appellate review, but rather was created by analogy, based upon a poem.
While the tipsy coachman was first dead, only later to represent life,21 Florida’s doctrine has lived on, breathing new life into the tipsy coachman, even expanding well beyond its foundational roots. As Star Trekkies might say, the Supreme Court may have launched the tipsy coachman beyond the final frontier, where no other jurisdiction or coachman has gone before.22 Thus, risen from the dead and incorporated into a poem; quoted a century later in obiter dictum by “The Supremes” of Georgia; adopted by Florida nearly two centuries after its creation; and the coachman may have since been cast upon parts unknown. Tipsy coachman, you’ve come a long way, baby.23
Florida Supreme Court Materially Expands Tipsy Coachman Doctrine
Based on the tipsy coachman doctrine, the Florida Supreme Court has since determined that significantly distinct and materially lessened standards only apply to the appellee insofar as the permissible arguments that may be presented on appeal.24 Unfortunately for the appealing party, the Florida Supreme Court has unfairly, inequitably, under the apparent guise of reason and logic, stacked the proverbial deck against the appellant.25 Moreover, the expanded doctrine further raised the appellant’s bar given the “hoariest principle of appellate review … that every presumption is in favor of the ruling of the trial court.”26 Notably, even then former Chief Justice Pariente, in dissent, viewed the court’s majority as “giving the tipsy coachmen free rein” and concluded, “I find no authority for using the [tipsy coachman] rule to quash or reverse a lower court decision on a theory not argued by the party challenging the ruling in the reviewing court.”27 Astonishingly, the majority applied a reverse, or extremely impaired, tipsy coachman. A year later, the Supreme Court looked back to its seminal decision rendered during the final year of the last century:
In Radio Station WQBA,28 this [c]ourt held that the tipsy coachman rule does not limit an appellee to only those arguments that were raised in the lower court. In that decision, we stated: If an appellate court, in considering whether to uphold or overturn a lower court’s judgment, is not limited to consideration of the reasons given by the trial court but rather must affirm the judgment if it is legally correct regardless of those reasons, it follows that an appellee, in arguing for affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court below. It stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court …. An appellee need not raise and preserve alternative grounds for the lower court’s judgment in order to assert them in defense when the appellant attacks the judgment on appeal.29
However, the Supreme Court’s reasoning is fundamentally flawed.30 Simply because an appellate court may affirm a trial court’s judgment, if legally correct, should not or ever excuse or relieve the appellee from the responsibility to present all its arguments in the trial court. There simply does not appear to be any sound, self-sustaining rationale why the appellee should have been unjustly rewarded, essentially, for failing to raise all its arguments in the trial court, while the appellant is restricted to its arguments raised below.31 Furthermore, the Supreme Court’s expanded doctrine has not served but failed to protect basic, fundamental constitutional rights.32
The lack of due process protection, the fundamental unfairness, and the seemingly obvious inequity of the Supreme Court’s reasoning is exemplified in a case where the appellee did not argue that a written instrument was ambiguous before the trial court, notwithstanding multiple opportunities to do so.33 Nevertheless, the trial court, over timely objection, admitted parol evidence concerning the provisions of the instrument. Even though the record demonstrates that the instrument is, indeed, ambiguous, the appellee who failed to argue that the instrument at issue was ambiguous in the trial court, inconceivably, would be permitted to argue ambiguity for the first time on appeal.34
Under these or fairly similar circumstances, the appellee should never be permitted to further argue on appeal, inter alia, that the parol evidence was properly admitted in seeking affirmance.35 However, the Florida Supreme Court’s materially expanded tipsy coachman doctrine would permit these newly-raised arguments on appeal under Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999), as well as Malu v. Security Nat’l Ins. Co., 898 So. 2d 69 (Fla. 2005). Furthermore, in this case, the appellee would not even be charged with improperly asserting inconsistent positions between the trial and appellate courts.36 The expanded doctrine would further permit the appellate court to affirm based upon its de novo determination37 that the instrument at issue was ambiguous utilizing, a fortiori, the parol evidence to construe it. Contrary to constitutional due process principles, the Florida appellate court could also affirm the trial court’s judgment even if neither party raised the issue below or on appeal.38
That an appellate court will affirm the trial court’s judgment, if it is right regardless of the reasons,39 is a far cry from allowing the appellee to have a tactical, unfair, and material advantage by combing the record for arguments that the appellee failed to and should have made in the trial court.40 Accordingly, it is the intended purpose of this article to inform Florida practitioners, particularly appellate practitioners, of this materially expanded appellate doctrine. Additionally, and with all due respect to the court, the Supreme Court of Florida should recede, at its earliest opportunity, from Radio Station WQBA and Malu as well as all other decisions that may have expanded the tipsy coachman doctrine beyond its foundational roots. As aptly provided by the Fifth District Court of Appeal:
neither precedent (nor law of the case) should be used to institutionalize or justify error. We are no more perfect as judges than we are as individuals. We make mistakes. Neither the public nor the Bar expect us to always be right; they do expect us, however, to always be forthcoming. If it appears that we made a mistake, we should not hesitate to correct it and, if it is still within our power to do so, we should mitigate any damage we caused. Neither this court nor the law is served by adhering to a previous position which we now believe to be wrong.41
The “maxim for a Supreme Court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but fiat justitia. Let this decision be right, whether other decisions were right or not.”42
The Lawful Rationale for Receding from Radio Station WQBA and Malu
“The court is an instrument of society for the administration of justice”43 and its primary purpose is to administer justice.44 Fundamentally, administering justice includes the recognition that the basic due process guarantee of the Florida Constitution provides that no person shall be deprived of life, liberty, or property without due process of law.45
Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights.46 Courts, including the Supreme Court of Florida, have reiterated that the fundamental principle of due process of law demands fair notice and an opportunity to be heard.47 Denial of these rights is fundamental error.48 Furthermore, denying a party an opportunity to be heard also violates the access to the courts provision of the Florida Constitution and the due process clauses of both the Florida and U.S. constitutions.49
Indeed, because it is a violation of the due process guarantees under both the Florida and U.S. constitutions to fail to provide a party fair notice as well as to fail to give a party an opportunity to be heard, application of the Florida tipsy coachman doctrine simply should never be permitted to overcome these fundamental, constitutionally-imbedded rights.50 However, fundamentally erroneous application of the tipsy coachman doctrine by Florida’s courts, essentially, of last resort,51 has already resulted in all five district courts of appeal reaching decisions violative of parties’ due process rights; virtually all, since the Supreme Court expanded the doctrine.52 Even the Florida Supreme Court has succumbed to reaching a decision violative of a litigant’s procedural due process rights in the wake of the tipsy coachman.53
Judge Browning of the First District Court of Appeal may have said it best when, in his well-reasoned dissent concerning application of the tipsy coachman doctrine, he concluded, “when a case is decided on an issue unnoticed to the parties, serious due process considerations are raised.”54 Furthermore, an order that adjudicates issues neither presented by the pleadings nor litigated by the parties denies fundamental due process.55 Likewise, Judge Peterson of the Fifth District Court of Appeal also, in dissent, concluded:
Valuable input by both sides of this controversy has been foreclosed because of the majority’s decision that will be a complete surprise to both parties. I believe that basic fairness requires that the parties be given an opportunity to cite portions of the record and submit such legal arguments as are appropriate before the majority arrives at a conclusion based upon their version of what was intended by a contract, instead of concentrating on an analysis of what was included in the contract.56
Judge Browning further observed that, in those cases where application of the tipsy coachman doctrine determines a case’s outcome, the opposing party always has advanced the alternative basis for affirmance.57 In such instances, the appellant at least would have been given notice, albeit unfair notice58 in appellee’s brief, and an opportunity to be heard on the appellee’s newly-raised arguments. However, that does not, and certainly should not, excuse or relieve the appellee, just like the appellant, from the responsibility — if not duty — to first present all its arguments in the trial court.59
Here, the parties will, for the first time, become acquainted with the argument which forms the basis and rationale of this court’s decision upon receipt of the majority’s opinion. Because the basis for affirmance was not an alternate theory presented by the former husband, I believe the majority misapplied the “tipsy coachman rule.” Moreover, in my judgment, when an appellate court affirms a trial court’s erroneous ruling by searching for a basis for affirmance not argued by the parties, as the majority does here, an unintended by-product is the impression that the court is a part of the adversarial process rather than a neutral judicial arbitrator. I realize that an appellate court must act sua sponte on issues involving jurisdiction, public policy, and illegality. However, this case involves parties’ private agreement that does not touch upon these exceptions. Furthermore, when a case is decided on an issue unnoticed to the parties, serious due process considerations are raised. Thus, I cannot align with the majority.60
Similarly, the Third District observed and concluded,
DCF invoked a frequently used doctrine of last resort, the “right for the wrong reason” or Tipsy Coachman doctrine, in an effort to excuse its legal meanderings.61 Here, however, DCF’s primary ground for affirmance was not known either to us or opposing counsel until articulated during oral argument. We are unwilling to allow DCF to invoke the doctrine under these circumstances.62
Such an ambush was properly denied.63 Likewise, the Second District properly refused to apply the tipsy coachman doctrine where the state did not present the alternative argument for admissibility of evidence to the trial court, which did have an opportunity to rule on its admissibility and the defense never had an opportunity to be heard on the alternative theory.64 Moreover, the highest court in the land65 long ago held
[i]t is essential … that litigants … not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.66 Rules of practice and procedure are devised to promote the ends of justice, not to defeat them . . . . Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.67 It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.68
Thus, application of the tipsy coachman doctrine constitutes a dereliction of duty by an appellate court if, in the process, a party’s due process rights are violated. Nevertheless, the spiritually, forceful wake of Florida’s fortified tipsy coachman may have caused the Florida appellate courts69 to stray from constitutional due process principles and generally applicable U.S. Supreme Court precedents.
Virtually every Florida appellate court has described the tipsy coachman doctrine as a doctrine of appellate efficiency70 and also reasoned that the tipsy coachman doctrine “arises from the presumption of correctness with which the judgment of the trial court is clothed.”71 At least one Florida court has described the rule as “the pragmatic Tipsy Coachman Rule.”72 If it were, indeed, one is compelled to wonder when appellate efficiency or pragmatism came to exceed or overcome the search for truth, justice, and fundamental constitutional rights. Furthermore, the presumption of correctness was not grounded in the rule itself, when first adopted.73 Also, this proposition is without logical support since the tipsy coachman doctrine would not even be applied, but for the fact that the trial court’s reasoning was erroneous, but somehow the trial court reached the right result. The correct presumption is that when a court is urged to apply the tipsy coachman rule, it is because something was wrong in the trial court’s judgment.
Many other jurisdictions that have adopted some form of the tipsy coachman doctrine, having named it “right for the wrong reason”74 are instructive, highly persuasive, and apparently have recognized that the common law or judge-made or other “rules can never . . . alter a litigant’s substantive rights.”75
In Oregon, for example, the courts hold that,
we may affirm a trial court ruling, even though the court’s legal reasoning for the ruling was erroneous, if (1) the facts in the record are sufficient to support a proffered alternative basis; (2) the trial court’s ruling is consistent with the view of the evidence under the alternative basis; and (3) the record is materially the same as would have been developed had the prevailing party raised the alternative basis for affirmance below.76
“The predicates for application of the right for the wrong reason rule that the record has been adequately developed and no prejudice can be shown,” must be evident.77 Similarly, New Mexico provides that “an appellate court may affirm a district court ruling on a ground not relied upon by the district court, but will not do so if reliance on the new ground would be unfair to appellant.”78 Thus, New Mexico has expressly recognized fairness as an integral part of this appellate doctrine.
The commonwealth of Virginia, like Oregon, provides that
the rule does not always apply. It may not be used if the correct reason for affirming the trial court was not raised in any manner at trial. In addition, the proper application of this rule does not include those cases where, because the trial court has rejected the right reason or confined its decision to a specific ground, further factual resolution is needed before the right reason may be assigned to support the trial court’s decision.79
Similarly, the commonwealth of Kentucky provides that “a party in whose favor a right decision was made for the wrong reason cannot on appeal rely on the right reason for that right decision unless that party informed the trial judge of the right reason at the time the judge made the right decision for the wrong reason.”80 In other words, the appellee is not permitted to have a tactical and material advantage on appeal by raising an argument never raised before the trial court. Fundamental fairness would dictate such a just conclusion in the jurisdictions of Oregon, New Mexico, Virginia, and Kentucky.
Those jurisdictions essentially require the appellee to have presented its arguments in the trial court before being permitted to raise them on appeal. Significantly, these other jurisdictions provide, as should Florida, basic protections to preclude an appellate court from exceeding the bounds of fundamental fairness and/or violating a party’s constitutional rights when applying the tipsy coachman doctrine.
Conclusion
The dictates of constitutional due process, fundamental fairness — the very root of our judicial system81 — and the apparent inequity which has resulted due to the expanded “tipsy coachman” doctrine, necessitate that this common law doctrine be revisited and significantly curtailed. The tipsy coachman simply should not have been given free rein.82 Furthermore, it seems this appellate doctrine should also be definitively clarified by the Supreme Court such that the appellate courts of Florida may properly apply the doctrine within constitutionally-sanctioned limits in light of fundamental fairness to all parties on appeal. Just as appellate rules ensure fairness by providing litigants with a level playing field,83 so should Florida’s common law tipsy coachman doctrine.84
On the common law, Florida’s Supreme Court has expressly recognized that
[c]ommon law is judge-made law. Florida common law thus is largely the creation of this [c]ourt, subject to fundamental law and the checks and balances imposed by the Constitution; and in the past, this [c]ourt has not hesitated to participate in the ongoing evolution of common law principles whenever public necessity has demanded it.85
Public necessity demands, in the ongoing evolution of common law principles, that the tipsy coachman doctrine be restrained from its free rein.86 Unfortunately, Florida’s materially expanded tipsy coachman doctrine has exceeded fundamental law as well as the checks and balances imposed by the Constitution.87
At a bare minimum, Florida appellate courts should not, sua sponte, without prior notice to the parties on appeal, be permitted to apply the tipsy coachman doctrine because the appellate court is not part of the adversarial process, but rather is expected by law to be a neutral judicial arbiter.88 Moreover, because an adjudication of issues neither presented by the pleadings nor litigated by the parties denies fundamental due process, such application of the doctrine should not be permitted.
Additionally, if an appellee intends to invoke the doctrine on appeal, ample notice should be given to the appellant that the appellee intends to invoke it.89 An appellate court also should cautiously proceed if it considers applying the tipsy coachman doctrine, because if an appellee in the trial court had raised the appellate alternative argument below, the appellant could have presented other evidence or made other submissions to counter that newly-raised argument in the trial court.
Furthermore, while an appellate court may recognize, sua sponte, that grounds for affirmance may exist notwithstanding the arguments raised below or on appeal, the court should rightfully confine itself to the arguments actually presented, only unless doing so would result in manifest injustice.90 Moreover, the Florida Supreme Court should not have “unleveled” the appellate playing field by allowing the party seeking affirmance, the appellee, to gain an unfair tactical and material advantage by having the sole opportunity to comb through the record for arguments that the appellee should have made but did not raise before the trial court, and then raise them on appeal.91 Accordingly, the Supreme Court of Florida should recede, at its earliest opportunity, from Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999), and Malu v. Security Nat’l Ins. Co., 898 So. 2d 69 (Fla. 2005), as well as all other decisions that have expanded Florida’s tipsy coachman common law doctrine beyond its foundational roots, fundamental law, and both the Florida and U.S. constitutions.


1 Matt Kramer, Say the Secret Word, 32 1 Wine Spectator 46 (No. 1, 2007).
2 Williams v. Freightliner, LLC, 100 P.3d 1117, 1121 (Or. Ct. App. 2004), (citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999)); Lee v. Porter, 63 Ga. 345 (Ga. 1879).
3 Rancho Santa Fe, Inc. v. Miami-Dade County, 709 So. 2d 1388, 1388 n.1 (Fla. 3d D.C.A. 1998) (per curiam); Taylor v. Orlando Clinic, 555 So. 2d 876, 879 n.3 (Fla. 5th D.C.A. 1989) (citing Holland v. Holland, 458 So. 2d 81, 85 n.3 (Fla. 5th D.C.A. 1984) (Cowart. J., dissenting)); Emmel v. Emmel, 671 So. 2d 282, 286 n.2 (Fla. 5th D.C.A. 1996).
4 E.K. v. Dept. of Children & Family Serv., No. 3D05-599, LEXIS 183, at *5 (Fla. 3d D.C.A. Jan. 10, 2007); Walker v. Cash Register Auto Ins. of Leon County, Inc., No. 1D05-4321, LEXIS 21473, at *12 (Fla. 1st D.C.A. Dec. 22, 2006) (citing Robertson v. State, 829 So. 2d 901 (Fla. 2002)); Manning v. Tunnell, 943 So. 2d 1018, 1020 (Fla. 1st D.C.A. 2006) (per curiam) (same); Salfi v. Columbia/JFK Medical Center Ltd Part’p, 942 So. 2d 417, 419-20 (Fla. 4th D.C.A. 2006) (citing Robertson; Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999)); Pure H20 Biotechnologies, Inc. v. Mazziotti, 937 So. 2d 242, 245-46 (Fla. 4th D.C.A. 2006) (citing Farrey’s Wholesale Hardware Co. v. Hobesound Indus. Park, 719 So. 2d 374, 375 n.1 (Fla. 3d D.C.A. 1998)); Planas v. Planas, 937 So. 2d 745, 745-46 (Fla. 3d D.C.A. 2006) (per curiam) (citing Carraway v. Armour & Co., 156 So. 2d 494 (Fla. 1963)); State v. Pitts, 936 So. 2d 1111, 1133 (Fla. 2d D.C.A. 2006) (citing Robertson; Radio Station WQBA; Jaworksi v. State, 804 So. 2d 415, 419 (Fla. 4th D.C.A. 2001)); Cuecha v. State, 934 So. 2d 538, 539-40 (Fla. 3d D.C.A. 2006) (citing Radio Station WQBA; State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 365 (Fla. 2002); Medina v. State, 920 So. 2d 136 (Fla. 3d D.C.A. 2006)); Ingram v. State, 928 So. 2d 423, 425 (Fla. 1st D.C.A. 2006); Walters v. Ocean Gate Phase I Condo., 925 So. 2d 440, 442-443 (Fla. 5th D.C.A. 2006); Caldwell v. Caldwell, 921 So. 2d 759, 760 (Fla. 1st D.C.A. 2006) (per curiam) (citing First Union Nat’l Bank v. Turney, 839 So. 2d 774, 777 (Fla. 1st D.C.A. 2003)); Childers v. State, 936 So. 2d 585, 592-93 (Fla. 1st D.C.A. 2006) (en banc) (per curiam) (citations omitted); Medina v. State, 920 So. 2d 136, 138 (Fla. 3d D.C.A. 2006) (citations omitted); Hicks v. State, 929 So. 2d 13, 16 n.2 (Fla. 2d D.C.A. 2006); Crain v. State, 914 So. 2d 1015, 1029 (Fla. 5th D.C.A. 2005) (Torpy, J. concurring in result only); Sullivan v. State, 913 So. 2d 762, 763 (Fla. 5th D.C.A. 2005) (citing Robertson); Cooper v. Jensen, 903 So. 2d 273 (Fla. 3d D.C.A. 2005) (per curiam) (citing Radio Station WQBA); Kennard v. State, 903 So. 2d 244, 245-46 (Fla. 1st D.C.A. 2005) (citing Robertson; Lowery v. State, 766 So. 2d 417 (Fla. 4th D.C.A. 2000)); Ament v. One Las Olas, Ltd., 898 So. 2d 147, 149 n.2 (Fla. 4th D.C.A. 2005); Henderson v. Crosby, 883 So. 2d 847, 854 (Fla. 1st D.C.A. 2004) (citing Brookridge Cmty. Prop. Owners, Inc. v. Brookridge, Inc., 573 So. 2d 972, 975 (Fla. 5th D.C.A. 1991)); Sybert v. Combs, 555 So. 2d 1313, 1314 (Fla. 5th D.C.A. 1990) (Sharp, J., dissenting) (citing In re Yohn’s Estate, 238 So. 2d 290 (Fla. 1970); MacNeil v. O’Neal, 238 So. 2d 614 (Fla. 1970); Cohen v. Mohawk, Inc., 137 So. 2d 222 (Fla. 1962); Greenbriar Condo. Apts. II Assoc., Inc. v. Koch, 480 So. 2d 131, 133 (Fla. 2d D.C.A. 1985), rev. denied, 491 So. 2d 279 (Fla. 1986); Citizens Federal S&L of St. Lucie County v. Loeb Rhoades Hornblower & Co., 473 So. 2d 679, 683 (Fla. 4th D.C.A. 1984); Alls v. 7-Eleven Food Stores, Inc., 366 So. 2d 484 (Fla. 3d D.C.A. 1979); Stone v. Rosen, 348 So. 2d 387 (Fla. 3d D.C.A. 1977)); State v. Stephens, 586 So. 2d 1073, 1075 (Fla. 5th D.C.A. 1991) (citing numerous decisions); Berges v. Infinity Ins. Co., 896 So. 2d 665, 676 (Fla. 2004) (citing Robertson); Leon County v. Dobson, No. 1D05-4326, LEXIS 956, at *1 - *2 (Fla. 1st D.C.A. Jan. 26, 2007) (per curiam); Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (citing In re Yohn’s Estate, 238 So. 2d 290 (Fla. 1970); Goodman v. Goodman, 204 So. 2d 21 (Fla. 4th D.C.A. 1967); Escarra v. Winn Dixie Stores, Inc., 131 So. 2d 483 (Fla. 1961)); Muina v. Canning, 717 So. 2d 550, 553 n.3 (Fla. 1st D.C.A. 1998); Pan Am. Stone Co. v. Landry, 526 So. 2d 197, 198 (Fla. 4th D.C.A. 1988); Combs v. State, 436 So. 2d 93, 96 (Fla. 1983); Arthur v. Milstein, 949 So. 2d 1163, 1166 (Fla. 4th D.C.A. 2007) (per curiam) (citations omitted) (deciding who was to determine disposition of Anna Nicole Smith’s remains).
5 Atlantic Coast Line RR Co. v. King, 135 So. 2d 201, 203 (Fla. 1961).
6 Emphasis by the court.
7 Lee v. Porter, 63 Ga. 345 (Ga. 1879); Holland v. Holland, 458 So. 2d 81, 85 n.3 (Fla. 5th D.C.A. 1984) (Cowart, J., dissenting). Infra note 8.
8 Oliver Goldsmith, Retaliation: A Poem, www.poeticbyway.com/xgoldsmi.htm.
9 Supra note 7; Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (citations omitted); Fla. Power & Light Co. v. Robinson, 68 So. 2d 406, 415 (Fla. 1953); First Atlantic Nat’l Bank of Daytona Beach v. Cobbett, 82 So. 2d 870, 871 (Fla. 1955); Bolick v. Sperry, 82 So. 2d 374, 376 (Fla. 1955); City of Miami v. Hollis, 77 So. 2d 834, 836 (Fla. 1955); Busbee v. Quarrier, 172 So. 2d 17, 19 (Fla. 1st D.C.A. 1965); Citrus Eng’g, Inc. v. Sims Crane Serv., Inc., 231 So. 2d 265 (Fla. 2d D.C.A. 1970) (per curiam); Mitchell v. Morse Operations, Inc., 276 So. 2d 248, 249 (Fla. 3d D.C.A. 1973) (per curiam); Bd. of Adjustment of the City of Fort Lauderdale v. Zealy, 316 So. 2d 593 (Fla. 4th D.C.A. 1975); Southern Nat’l Bank of Fort Walton Beach v. Young, 142 So. 2d 788, 789 (Fla. 1st D.C.A. 1962); Muina v. Canning, 717 So. 2d 550, 553 n.3 (Fla. 1st D.C.A. 1998); O’Connor v. Marston, 717 So. 2d 82 (Fla. 5th D.C.A. 1998); Klette v. Klette, 785 So. 2d 562, 563 (Fla. 1st D.C.A. 2001).
10 Infra note 7, 8, 13.
11 Supra note 7; Carraway v. Armour & Co., 156 So. 2d 494, 497 (Fla. 1963) (quoting, Lee v. Porter, 63 Ga. 345 (Ga. 1879); Home Depot U.S.A. Co. v. Taylor, 676 So. 2d 479, 480 (Fla. 5th D.C.A. 1996) (providing “the tipsy coachman rule … comes to us from Georgia, Lee v. Porter, 63 Ga. 345 (Ga. 1879), by way of our Supreme Court in Carraway v. Armour & Co., 156 So. 2d 494, 497 (Fla. 1963)”); Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999) (citing Taylor); Robertson v. State, 829 So. 2d 901, 906 n.2 (Fla. 2002) (citing Taylor).
12 Infra note 8; Holland v. Holland, 458 So. 2d 81, 85 n.3 (Fla. 5th D.C.A. 1984) (Cowart, J., dissenting) (citing Lee v. Porter, 63 Ga. 345 (Ga. 1879)).
13 Carraway v. Armour & Co., 156 So. 2d 494, 497 (Fla. 1963) (concluding “Mr. Justice Bleckley … appropriately quoted the above” or “Goldsmith’s Retaliation”). However, Goldsmith’s tipsy coachman was unnecessary to the court’s holding. Infra note 7.
14 Supra note 8.
15 Id.; infra note 16.
16 Id.; Scarron, Dean, Edmund, William, Richard, Cumberland, Douglas, David (Garrick), Hickey, Reynolds, and Oliver Goldsmith.
17 See The American Bible, 1 Corinthians 15 (Jesus Christ’s Resurrection).
18 Infra note 3, 4, 24, 29.
19 Escarra v. Winn Dixie Stores, Inc., 131 So. 2d 483, 485 (Fla. 1961) (citing cases whereby the doctrine was already a settled rule of Florida jurisprudence, but not named “tipsy coachman”).
20 Infra note 1, 11, 19.
21 See Mary Shelley, Frankenstein (1831); en.wikipedia.org/wiki/Frankenstein#Plot_summary.
22 See Star Trek, Beyond the Final Frontier, www.startrek.com/startrek/view/news/article/36837.html; Hughs Aircraft, Inc. v. United States, 29 Fed. Cl. 197, 229-30 (Fed. Cl. 1993) (discussing outer space law).
23 See Virginia Slims, tobaccodocuments.org/ads_pm/2058500255.html.
24 Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999).
25 The appellant may only raise fundamental error if it did not raise below. LeRetilley v. Harris, 354 So. 2d 1213, 1215 (Fla. 4th D.C.A. 1978); Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970); Stevens v. Allegro Leasing, Inc., 562 So. 2d 380, 381-82 (Fla. 4th D.C.A. 1990); O’Brien v. Florida Birth-related Neurological Injury Compensation Assoc., 710 So. 2d 51, 52 (Fla. 4th D.C.A. 1998); City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989); Watson v. State, 633 So. 2d 525 (Fla. 2d D.C.A. 1994); Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1024 (Fla. 2000); id. at 1032-33 (Pariente, J., concurring); Cordoba v. Rodriguez, 939 So. 2d 319 (Fla. 4th D.C.A. 2006). See infra note 9.
26 Smith Barney, Inc. v. Potter, 725 So. 2d 1223, 1224 (Fla. 4th D.C.A. 1999) (citing Lott v. City of Orlando, 196 So. 313 (Fla. 1939); Bilgore v. Gunn, 9 So. 2d 184 (Fla. 1942); Odom v. Barrett, 67 So. 2d 200 (Fla. 1953)). See supra note 9.
27 State v. Baez, 894 So. 2d 115, 121 (Fla. 2004) (Pariente, C. J., dissenting) (citing Jenkins v. State, 747 So. 2d 997, 999 (Fla. 5th D.C.A. 1999) (“declining to reverse trial court on issue not raised on appeal”).
28 Infra note 24 (citing MacNeill v. O’Neal, 238 So. 2d 614, 615 (Fla. 1970)).
29 Malu v. Security Nat’l Ins. Co., 898 So. 2d 69, 73 (Fla. 2005) (per curiam) (citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999)).
30 See Martinez v. State, 933 So. 2d 1155, 1158-67 (Fla. 3d D.C.A. 2006) (discussing fundamental error essentially amounts to a denial of due process).
31 Bill Seidle Aircraft Sales & Servs., Inc. v. Bellomy, 782 So. 2d 449 (Fla. 3d D.C.A. 2001) (per curiam) (citing Radio Station WQBA; Wildwood Properties, Inc. v. Archer of Vero Beach, Inc., 621 So. 2d 691, 692 (Fla. 4th D.C.A. 1993)).
32 Infra notes 44-49.
33 Anderson v. Wagner, No. 5D05-3220, LEXIS 13796 at *10 (Fla. 5th D.C.A. Aug. 18, 2006); Sunset Harbour Condo Assoc. v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (per curiam) (citations omitted). Infra note 34, 35.
34 Infra note 34, 62, 64; Meltzer v. Simon, No. 4D06-3193 (Fla. 4th D.C.A. 2007) (pending rendition at the time of publication).
35 Love v. Garcia, 611 So. 2d 1270, 1280 (Fla. 4th D.C.A. 1992) (rehearing en banc) (Warner, J., dissenting) quashed on other grounds, 634 So. 2d 158 (Fla. 1994); Alliance for Conserv. of Natural Resources in Pinellas County v. Foren, 122 So. 2d 51, 65 (Fla. 2d D.C.A. 1960).
36 Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061, 1066 (Fla. 2001); Sochor v. State, 883 So. 2d 766, 799 (Fla. 2004). Infra note 34, Meltzer v. Simon.
37 Muniz v. Crystal Lake Project, LLC, 947 So. 2d 464, 469 (Fla. 3d D.C.A. 2006).
38 Delissio v. Delissio, 821 So. 2d 350 (Fla. 1st D.C.A. 2002); State v. Baez, 894 So. 2d 115 (Fla. 2004) (per curiam). See infra note 40, 51, 52.
39 Supra note 18.
40 Infra note 34, 35, 61, 62, 64, 79, 80.
41 VLX Properties, Inc. v. Southern States Utilities, Inc., 792 So. 2d 504, 509 (Fla. 5th D.C.A. 2001).
42 Blackwell v. State, 86 So. 224, 237-38 (Fla. 1920) (Browne, J., dissenting) (quoting Chief Justice Bleckley of the Georgia Supreme Court).
43 Progressive Express Ins. Co. v. Schultz, No. 5D06-444, WL 542702 at *3 (Fla. 5th D.C.A. Feb. 23, 2007) (provided at headnote [8]).
44 Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1994).
45 Dept. of Law Enforcement v. Real Property, 588 So. 2d 957, 960 (Fla. 1991) (citing Fla. Const. art. I, §9,); Burch v. City of Lakeland, 891 So. 2d 654, 656 (Fla. 2d D.C.A. 2005) (citing Real Property).
46 Dept. of Law Enforcement v. Real Property, 588 So. 2d at 960; Burch v. City of Lakeland, 891 So. 2d at 656; Kwiecinski v. Renke, 916 So. 2d 966, 968 (Fla. 2d D.C.A. 2005) (citing Borden v. Guardianship of Borden-Moore, 818 So. 2d 604, 607 (Fla. 5th D.C.A. 2002) (citing Real Property)).
47 Western Union Tel. Co. v. C.E. Suit, 15 So. 2d 33, 36 (Fla. 1943); Cavalier v. Ignas, 290 So. 2d 20, 21 (Fla. 1974); DSA Marine Sales & Serv., Inc. v. County of Manatee, 661 So. 2d 907, 909 (Fla. 2d D.C.A. 1995); Miller v. Miller, 691 So. 2d 528, 529 (Fla. 4th D.C.A. 1997) (per curiam); Pope v. Pope, 901 So. 2d 352, 353-54 (Fla. 1st D.C.A. 2005).
48 Pope v. Pope, 901 So. 2d 352, 353 (Fla. 1st D.C.A. 2005). Infra note 30.
49 State v. Stanjeski, 562 So. 2d 673, 679 (Fla. 1990).
50 Fitzsimmons v. State, 935 So. 2d 125, 128 (Fla. 2d D.C.A. 2006); E.K. v. Dept. of Children & Family Serv., No. 3D05-599, LEXIS 183 at *5 (Fla. 3d D.C.A. Jan. 10, 2007); Aberdeen Golf & Country Club v. Bliss Constr., Inc., 932 So. 2d 235, 241 (Fla. 4th D.C.A. 2005).
51 Whipple v. State, 431 So. 2d 1011, 1014 (Fla. 2d D.C.A. 1983); University of Miami v. Wilson, No. 3D04-2939, WL 1687685 at *13 (Fla. 3d D.C.A. Feb. 28, 2007) (per curiam).
52 Delissio v. Delissio, 821 So. 2d 350, 351-54 (Fla. 1st D.C.A. 2002) (per curiam); Adams v. Shiver, 890 So. 2d 1199, 1200-01 (Fla. 1st D.C.A. 2005); Chrysler Realty Corp. v. Davis, 877 So. 2d 903, 908 n.2 (Fla. 4th D.C.A. 2004) (citing State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 365 (Fla. 2002)); State v. Stephens, 586 So. 2d 1073, 1074-75 (Fla. 5th D.C.A. 1991); Childers v. State, 936 So. 2d 619, 633-37 (Fla. 1st D.C.A. 2006) (en banc) (per curiam) (Wolf, J., concurring in part and dissenting in part); Childers v. State, 936 So. 2d 585, 592-93 (Fla. 1st D.C.A. 2006) (en banc) (per curiam); Robertson v. State, 780 So. 2d 106, 113-19 (Fla. 3d D.C.A. 2001) (Sorondo, J., dissenting); Manning v. Tunnell, 943 So. 2d 1018, 1020 (Fla. 1st D.C.A. 2006); Planas v. Planas, 937 So. 2d 745, 745-46 (Fla. 3d D.C.A. 2006) (per curiam); Caldwell v. Caldwell, 921 So. 2d 759, 760 (Fla. 1st D.C.A. 2006) (per curiam); Alario v. Miller, 354 So. 2d 925, 927 (Fla. 2d D.C.A. 1978); Ash v. State, 882 So. 2d 427, 428 (Fla. 4th D.C.A. 2004) (per curiam); Cooper v. Jensen, 903 So. 2d 273 (Fla. 3d D.C.A. 2005) (per curiam); Aberdeen Golf & Country Club v. Bliss Constr., Inc., 932 So. 2d 235, 239 n.6 (Fla. 4th D.C.A. 2005). Fort v. Fort, 951 So. 2d 1020, 1021-22 (Fla. 1st D.C.A. 2007) Supra note 41.
53 State v. Baez, 894 So. 2d 115 (Fla. 2004) (per curiam).
54 Delissio v. Delissio, 821 So. 2d 350, 355 (Fla. 1st D.C.A. 2002) (Browning, J., dissenting) (citing Winddancer v. Stein, 765 So. 2d 747 (Fla. 1st D.C.A. 2000); Hancock v. Tipton, 732 So. 2d 369 (Fla. 2d D.C.A. 1999)); Adams v. Shiver, 890 So. 2d 1199, 1202 (Fla. 1st D.C.A. 2005) (Browning, J., dissenting); State v. Stephens, 586 So. 2d 1073, 1074-75 (Fla. 5th D.C.A. 1991); id. at 1075-80 (Sharp, J., dissenting).
55 Hancock v. Tipton, 732 So. 2d 369, 372 (Fla. 2d D.C.A. 1999); Winddancer v. Stein, 765 So. 2d 747, 748 (Fla. 1st D.C.A. 2000); Sabine v. Sabine, 834 So. 2d 959 (Fla. 2d D.C.A. 2003); Randall v. Randall, 948 So. 2d 71, 74 (Fla. 3d D.C.A. 2007) (citing Sabine).
56 VLX Properties, Inc., 792 So. 2d at 512 (Peterson, J., dissenting).
57 Delissio v. Delissio, 821 So. 2d 350, 355 (Fla. 1st D.C.A. 2002) (Browning, J., dissenting) (citing City of Coral Gables v. Baljet, 263 So. 2d 273 (Fla. 3d D.C.A. 1972); State v. Stedman, 238 So. 2d 615 (Fla. 1970); C. W. Chase, Jr. v. Cowart, 102 So. 2d 147 (Fla. 1958); Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999); Green v. First Am. Bank & Trust, 511 So. 2d 569 (Fla. 4th D.C.A. 1987); E. A. Law & Co. v. Provende, Inc., 471 So. 2d 107 (Fla. 3d D.C.A. 1985)).
58 See infra note 66.
59 Infra note 34, 35, 66.
60 Supra note 57.
61 E.K. v. Dept. of Children & Family Serv., No. 3D05-599, LEXIS 183 at *5 (Fla. 3d D.C.A. Jan. 10, 2007).
62 Id. at *7 (citing Adams v. Shiver, 890 So. 2d 1199, 1202 (Fla. 1st D.C.A. 2005) (Browning, J., dissenting)).
63 See Swift Independent Packing Co. v. Basic Food Int’l, Inc., 461 So. 2d 1017, 1018 (Fla. 4th D.C.A. 1984) (refusing to recognize belatedly filed affidavits on summary judgment motion); Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1128 (Fla. 1985) (concluding Tamiami was impermissibly “sandbagged”); Juliano v. Juliano, 687 So. 2d 910, 911 (Fla. 3d D.C.A. 1997) (same as Tamiami).
64 Fitzsimmons v. State, 935 So. 2d 125, 128 (Fla. 2d D.C.A. 2006) (citing Robertson v. State, 829 So. 2d 901, 906-09 (Fla. 2002)).
65 U.S. Const. art. III, §1.
66 Singleton v. Wulff, 428 U.S. 106, 120 (1976) (citing Hormel v. Helvering, 312 U.S. 552, 556 (1941)).
67 Hormel v. Helvering, 312 U.S. at 557.
68 Mapp v. Ohio, 367 U.S. 643, 647 (1961) (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)). Cone v. West Va. Pulp & Paper Co., 330 U.S. 212, 217-218 (1947); Globe Liquor Co. v. Roman, 332 U.S. 571, 573-574 (1948) (citing Cone).
69 Infra note 38, 41, 52, 53.
70 State v. Robinson, 873 So. 2d 1205, 1219 (Fla. 2004) (Wells, J., dissenting); Smith v. State, 866 So. 2d 51, 68 (Fla. 2004) (Pariente, C. J., concurring in part and dissenting in part); Robertson v. State, 829 So. 2d 901, 906-07 (Fla. 2002); Bush v. Holmes, 886 So. 2d 340, 369 (Fla. 1st D.C.A. 2004) (Benton, J., concurring); Brunson v. McKay, 905 So. 2d 1058, 1062 n.6 (Fla. 2d D.C.A. 2005); Porter v. Porter, 913 So. 2d 691, 694 (Fla. 3d D.C.A. 2005); State v. Gerry, 855 So. 2d 157, 163 (Fla. 5th D.C.A. 2003).
71 First Union Nat’l Bank v. Turney, 839 So. 2d 774, 777 (Fla. 1st D.C.A. 2003) (citing Cohen v. Mohawk, Inc., 137 So. 2d 222, 225 (Fla. 1962); Taylor v. Orlando Clinic, 555 So. 2d 876, 879 n.3 (Fla. 5th D.C.A. 1989); Allied Fidelity Ins. Co. v. Scott, 516 So. 2d 315, 316 (Fla. 2d D.C.A. 1987) (citing Cohen v. Mohawk, Inc., 137 So. 2d 222 (Fla. 1962)); Klein v. Hendry County Hosp. Auth., 596 So. 2d 1253 (Fla. 4th D.C.A. 1992); Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So. 2d 1231 (Fla. 1st D.C.A. 1995).
72 Houssami v. Nofal, 578 So. 2d 495, 497 (Fla. 5th D.C.A. 1991).
73 Supra note 11, 13.
74 See, e.g., Calderon-Palomino v. Nichols, 36 P.3d 767, 769 (Ariz. Ct. App. 2001); In re Marriage of Klug, 31 Cal. Rptr. 327, 329 (Cal. Ct. App. 2005); Drake v. Kansas Dept. of Rev., 32 P.3d 705 (Kan. 2001); Commonwealth v. Va Meng Joe, 682 N.E.2d 586 (Mass. 1997); State v. PR Inv., 132 S.W.3d 55, 68 (Tex. Ct. App. 2004); State v. Pattioay, 896 P.2d 911, 925 (Haw. 1995); State v. Holt, 382 N.W.2d 679, 687 (Wis. Ct. App. 1985); Meiboom v. Watson, 994 P.2d 1154, 1159 (N.M. 2000); Ohio Bar Liab. Ins. Co. v. Hunt, 787 N.E.2d 82, 90 (Ohio Ct. App. 2003); Harris v. Virginia, 576 S.E.2d 228, 231 (Va. Ct. App. 2003); Mercy Medical Center, Inc. v. United Healthcare of the Mid-Atlantic, Inc., 815 A.2d 886, 908 (Md. Ct. Spec. App. 2003); Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987); Grinnell Select Ins. Co. v. Cont’l Western Ins. Co., 639 N.W.2d 31, 37-38 (Iowa 2002); Phillips v. Beene, 16 Ala. 720 (Ala. 1849); Marcoin, Inc. v. Edwin K. Williams & Co., 605 F.2d 1325, 1328 (4th Cir. 1979); Fraternal Relief Ass’n v. Edwards, 70 S.E. 265, 268 (Ga. Ct. App. 1911) (citing Lee v. Porter); Jernigan v. Collier, 213 S.E.2d 495, 496 (Ga. Ct. App. 1975) (citing Lee); White Repair & Contracting Co. v. Georgia Roofing & Metal Co., 262 S.E.2d 164, 165 (Ga. Ct. App. 1979) (citing Lee); Outdoor Media Dimensions Inc. v. State, 20 P.3d 180, 195-96 (Or. 2001); State v. McHenry, 134 P.3d 1016, 1019 (Or. Ct. App. 2006) (citing Outdoor Media); Fisherman Against the Destruction of the Environment, Inc. v. Closter Farms, Inc., 300 F.3d 1294, 1296-1297 (11th Cir. 2002) (citing Parks v. City of Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995).
75 Wood v. Fla. Rock Indus. & Crawford & Co., 929 So. 2d 542, 544 (Fla. 1st D.C.A. 2006).
76 State v. Rodriguez-Castillo, 210 Or. App. 279, 489-90 (Or. Ct. App. 2007).
77 State v. Stephens, 56 P.3d 950, 955 (Or. Ct. App. 2002).
78 Meiboom v. Watson, 994 P.2d 1154, 1159 (N.M. 2000).
79 Harris v. Virginia, 576 S.E.2d 228, 231 (Va. Ct. App. 2003).
80 Morgan v. Kentucky, No. 2000-SC-0689, 2003 WL 1193083 at *11 (Ky. Jan. 23, 2003) (Cooper, J., concurring, in part, and dissenting, in part).
81 Morgan v. State, 341 So. 2d 201, 202 (Fla. 2d D.C.A. 1976).
82 Infra note 27.
83 Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82 F.3d 11, 14 (1st Cir. 1996).
84 Infra note 78.
85 Coastal Petroleum Co. v. Mobil Oil Corp., 583 So. 2d 1022, 1025 (Fla. 1991).
86 Supra note 27.
87 Supra note 29, 85.
88 Supra note 57; Hicks v. State, 929 So. 2d 13, 16 n.2 (Fla. 2d D.C.A. 2006) (citing Radio Station WQBA; Aberdeen Golf & Country Club, 932 So. 2d at 239 n.6).
89 Assoc. Indus. Ins. Co. v. State, 923 So. 2d 1252, 1253 (Fla. 1st D.C.A. 2006); City of Clearwater v. Sch. Bd. of Pinellas County, 905 So. 2d 1051, 1057 (Fla. 2d D.C.A. 2005); E.K. v. Dept. of Children & Family Serv., No. 3D05-599, LEXIS 183 at *5 (Fla. 3d D.C.A. Jan. 10, 2007); Robertson v. State, 780 So. 2d 106, 118 (Fla. 3d D.C.A. 2001) (Sorondo, J., dissenting).
90 Engle v. Liggett Group, Inc., 845 So. 2d 1246, 1266 (Fla. 2006) (per curiam).
91 Supra note 24, 29.

H. Michael Muñiz is a senior litigation and appellate practice associate at Buckingham, Doolittle & Burroughs, L.L.P., in Boca Raton, where he focuses his practice in commercial, construction, intellectual property, and contract litigation with a major concentration on appeals in both state and federal courts. He currently serves as chair of the firm’s appellate practice group. He received his B.S. degree from SUNY at Buffalo, obtained his Florida C.P.A. license, and obtained his J.D. from the Shepard Broad Law School at Nova Southeastern University.

[Revised: 02-10-2012]