Twenty years ago the Florida Supreme Court decided Boca Burger, Inc. v. Forum, and a law student named Jessica Slatten wrote the note explaining it. She went on to spend a decade inside the Court.
Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005), is one of those decisions Florida litigators cite without always remembering how much it settled. The Court resolved a conflict among the district courts and held that a plaintiff has an absolute right to amend a complaint once before a responsive pleading is served — and that a motion to dismiss is not a responsive pleading, so a trial court has no discretion to refuse the amendment. It confirmed that a defendant may raise an affirmative defense, including federal preemption, in a motion to dismiss. And it held that an appellate court may, in appropriate circumstances, sanction an appellee or its lawyer for frivolously defending a patently erroneous trial-court order — a power the Court was careful to tie to clear misconduct rather than to a mere disagreement about the odds of reversal.
Jessica Slatten, then an editor of the Florida State University Law Review, contributed the Review’s Recent Development note on the case. In six pages it walks through the procedural history, the three holdings, and what the decision meant for practitioners — including the heightened candor it asks of appellate counsel who are tempted to defend a ruling they know cannot stand.
There is a fitting coda. After several years in private practice, Jessica spent more than a decade as a career staff attorney at the Florida Supreme Court, clerking for Justices Ricky Polston and Alan Lawson and making hundreds of jurisdictional and merits recommendations in the very court whose decision she had summarized as a student. She now leads appeals and provides appellate support to trial teams from the firm’s Tallahassee office. The note remains freely available in the Law Review’s digital archive, and it still reads as a clean, reliable account of a case that every Florida trial and appellate lawyer should know.
Read the note: Recent Developments — Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005) — 33 Fla. St. U. L. Rev. 546 (2005), Jessica Slatten contributing (PDF)
About Jessica Slatten
Jessica Slatten is a shareholder in the firm’s Tallahassee office, where she focuses on civil and administrative appeals and on appellate support during trial and pretrial proceedings. Before joining the firm she spent more than a decade as a career staff attorney at the Florida Supreme Court, clerking for Justices Ricky Polston and Alan Lawson. She graduated summa cum laude from Florida State University College of Law, where she served as an Articles Editor and Recent Developments Editor of the Law Review.
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