A Miami City Commissioner facing a $63.5 million verdict may have forfeited his best chance to overturn it due to a major procedural mistake.
William O. Fuller and Martin A. Pinilla, II v. Joe Carollo
This is an absolutely epic case, and it draws my attention for several reasons.
For one, it involves Miami. I visit Miami several times a year for work and absolutely love it. I work remotely from an outdoor coffeeshop on Brickell Avenue; everyone talks to me in Spanish, which is fun; and one of my favorite restaurants (El Rincon Asturiano) is in Little Havana, where the events of this case played out.
Additionally, one of the Plaintiff’s attorneys, Amanda Suarez, was co-counsel with Durst Kerridge in the Ally Sidloski case, one of our proudest appellate victories.
And of course, it supplies an important appellate lesson. Of all the appellate pitfalls we have written about – untimely notices of appeal, notices of appeal filed in the wrong court, and failing to file a brief, to name a few – this has to be the most painful.
Political Retaliation Leads to a $63.5 Million Jury Verdict
After a grueling trial that spanned more than 50 days of proceedings, a federal jury delivered the verdict on June 1, 2023.
The jury found that Miami City Commissioner Joe Carollo violated the First Amendment rights of two Little Havana businessmen, William Fuller and Martin Pinilla, II, by retaliating against them for supporting Carollo’s political opponent in the 2017 city commission race.
Fuller, who owns the popular Ball & Chain restaurant and club, and Pinilla, his business partner, alleged that after they supported Alfonso “Alfie” Leon in the 2017 election, Commissioner Carollo weaponized city government against them.
Evidence was presented that Carollo directed code enforcement officers, police, and other city staff to repeatedly and selectively target the businessmen’s properties and tenants. Carollo publicly called Fuller “a criminal Godfather” and once accused Fuller and Pinilla of being “money launderers connected to the communist regime.”
Former high-ranking city officials corroborated these allegations, including former City Manager Emilio Gonzalez and former Miami Police Chiefs Jorge Colina and Art Acevedo.
Dozens of other witnesses testified and vast amounts of evidence were presented, including videos of Carollo personally making late-night visits to the Little Havana properties.
The jury ultimately issued a substantial verdict:
- Fuller: $8.6 million in compensatory damages + $25.7 million in punitive damages = $34.3 million
- Pinilla: $7.3 million in compensatory damages + $21.9 million in punitive damages = $29.2 million
- Total: $63.5 million
The case involved multiple law firms, several high-profile attorneys, and caused the city to expend millions of dollars defending Carollo.
Three jurors dropped out during the lengthy proceedings, and in an “only in Miami” twist, the trial had to be relocated at one point from Broward County to Miami-Dade County due to record flooding.
Carollo Appeals
Following the verdict, Carollo appealed. This was Carollo’s second appeal, as he had previously appealed the denial of qualified immunity. Carollo advanced three main arguments on appeal:
- That “jury tampering” occurred, warranting a new trial. (Apparently, an awkward encounter occurred when a plaintiff witness and a juror found themselves on the same elevator in the courthouse parking garage, but the Judge conducted an in camera inquiry to address the matter and determined that no further action was necessary.)
- The district court should have granted judgment as a matter of law.
- The damages were excessive and warranted a new trial or remittitur.
The Critical Mistake
On June 28, 2023, after a final judgment had been issued, Carollo’s attorneys filed fairly routine post-trial motions under Federal Rules of Civil Procedure 50(b) (renewed motion for judgment as a matter of law) and Rule 59 (motion for new trial and for remittitur). In these motions, Carollo argued that:
- Plaintiffs failed to prove they engaged in protected activity
- Plaintiffs failed to prove causation between Carollo’s conduct and their alleged protected speech
- Plaintiffs failed to prove damages
- Various errors warranted a new trial
- The damages were excessive
The next day, June 29, 2023, before the Judge had ruled on the post-trial motions, Carollo filed a notice of appeal from the final judgment. This is typical – often, post-trial issues are not decided until after a notice of appeal is filed, and it is crucial to preserve the right to appeal.
On February 21, 2024, more than seven months later, the district court finally denied all of Carollo’s post-trial motions.
This is where the mistake occurred – Carollo failed to file a new or amended notice of appeal after the district court denied his post-trial motions. So Carollo preserved his right to appeal the final judgment, but not the right to appeal the denial of his post-trial motions.
Carollo’s attorneys mistakenly believed they had preserved the right to appeal the denial of the post-trial motions by including a footnote in the June 28, 2023 notice of appeal asking the appellate court to “permit adjudication of the pending post-trial proceedings and recognize this notice as effective to appeal the final judgment as of the last order resolving such pending post-trial motions.”
But that is not how the rules work.
The Eleventh Circuit’s Ruling
On July 17, 2024, the Eleventh Circuit issued its decision.
First, the Court affirmed the denial of the mistrial motion, finding no abuse of the district court’s “large discretion” in handling the alleged “jury tampering” matter.
Unfortunately for Carollo, however, the Court ruled that it lacked appellate jurisdiction to review the District Court’s denial of his post-trial motions—meaning the Court could not hear Carollo’s challenges to the sufficiency of the evidence (Rule 50(b)); whether a new trial was warranted (Rule 59); or whether the damages were excessive or should be reduced (remittitur).
The Court carefully walked through the relevant rules:
Federal Rule of Appellate Procedure 4(a)(4)(A) provides that when a party timely files certain post-trial motions (including motions under Rules 50(b) and 59), the time to appeal does not begin running until the court enters an order disposing of the last such motion.
Federal Rule of Appellate Procedure 4(a)(4)(B)(i) permits a party to file a notice of appeal before the district court rules on those post-trial motions, which notice “becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.”
So far, so good—this is exactly what Carollo did when he filed his notice of appeal on June 29, 2023, while his post-trial motions were pending.
But under Federal Rule of Appellate Procedure 4(a)(4)(B)(ii):
“A party intending to challenge an order disposing of [post-trial motions] must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.”
Federal Rule of Appellate Procedure 3(c)(1)(B), in turn, requires that the notice of appeal must “designate the judgment—or the appealable order—from which the appeal is taken.”
The Eleventh Circuit cited its precedent in Bogle v. Orange County Board of County Commissioners, 162 F.3d 653 (11th Cir. 1998):
[A] notice of appeal must designate an existent judgment or order, not one that is merely expected or that is, or should be, within the appellant’s contemplation when the notice of appeal is filed.
The court’s reasoning was straightforward: First, Carollo’s June 29, 2023 notice of appeal could not have designated the February 21, 2024 order denying his post-trial motions because that order did not exist yet. So under Rule 3(c), the notice failed to properly designate the not-yet-existent post-trial motion denial order for appeal.
Second, Carollo did not file a new or amended notice of appeal within 30 days after the District Court denied his post-trial motions on February 21, 2024. And by the time the Eleventh Circuit heard the case, that 30-day deadline had long expired.
The court concluded:
Because Carollo did not file any notice of appeal from the district court’s denial of his post-trial motions that complied with Rule 3(c), Carollo also failed to comply with Rule 4(a)(4)(B)(ii), which requires “compliance with Rule 3(c).” Fed. R. App. P. 4(a)(4)(B)(ii). Accordingly, we do not have jurisdiction over Carollo’s appeal from the district court’s denial of his post-trial motions.
The result: The court affirmed the denial of the mistrial motion and dismissed the remainder of Carollo’s appeal for lack of appellate jurisdiction.
This had to be a bitter pill to swallow. But it is not new law—the Eleventh Circuit followed well-established precedent.
Procedural Perfection Required in High-Stakes Ohio and Federal Appeals
The immediate lesson is that in federal appeals following a trial, you must be prepared to file two notices of appeal when post-trial motions are involved:
- The initial notice (which can be filed before the post-trial motions are decided)
- A new or amended notice within 30 days after the post-trial motions are decided
More broadly, I find that it is essential to review all of the basic procedural rules every time you file an appeal – the deadline to file a notice of appeal, which court it must be filed in, whether the trial court’s decision must be attached, etc.
And if there are outstanding issues like attorney fees or post-trial motions, still more review is necessary to avoid potential pitfalls. Appellate practice demands procedural perfection.
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