Abstract Appeal -- by Matt Conigliaro

Thursday, August 06, 2009

Fifth District Appointment

Congratulations to Indialantic's Judge Bruce Jacobus. Yesterday, Governor Crist appointed Judge Jacobus to the Fifth District.

Judge Jacobus spent the last 14 years as a judge with the 18th Judicial Circuit. He takes the seat vacated when Judge Pleus retired.

You can read the Governor's press release announcing the appointment here.

...posted by ⊥ 8:45 AM ⊥ #

Fifth District: Grandparental Custody

Can grandparents obtain primary residential responsibility over their grandchildren, better known as custody, without adopting them?

Yes, explained the Fifth District in this decision, which involved a mother who consented to the placement and a father whose identity was allegedly unknown.

...posted by ⊥ 8:40 AM ⊥ #

Fifth District: Great Way To Lose, Treating Physician Discovery

I recently posted on a Fifth District decision that seemed a bad way to win. Well, here we have a decision from the same court that seems like a great way to lose.

The case involved a certiorari petition seeking relief from a trial court's order denying discovery. The order refused to permit the petitioner to obtain bias discovery regarding the respondent's treating physicians' involvement with respondents' counsel in other cases.

The district court denied the petition, but in doing so it described the order as curious and held an adequate remedy would be available on appeal. Any time an appellate court denies certiorari relief on grounds a full remedy will be available on appeal while suggesting there might be a problem with the underlying order, you have a pretty good loss on your hands. The trial court just might reconsider the order before the case ends and proceeds to a full appeal.

Judge Torpy went a step further. In a special concurrence, he explained his view that obtaining this sort of bias discovery from treating physicians should be controlled just as trial courts control the pursuit of similar discovery from other experts. Judge Torpy wrote:

Under most circumstances, it would seem that the correct balance is the same balance contained in the rule for all other experts because there is no logical distinction between treating physicians and retained experts for purposes of uncovering this type of information. The information is similarly relevant, and the burdens of producing the information are the same for all of these professionals.

...posted by ⊥ 8:35 AM ⊥ #

Fifth District: Entrapment

If you are interested in entrapment, take a look at this decision from the Fifth District. It is rather short but gives a good overview of the distinction between the objective entrapment test, which focuses on how the government official's conduct would affect a reasonable person, and the subjective entrapment test, which focuses on how the government official's conduct actually affected the particular person claiming he or she was entrapped.

Florida's statutory law generally requires that entrapment be proved by the subjective test, but as the court explained, the objective test applies where the defendant invokes the constitutional guarantees of due process and claims the government engaged in egregious conduct.

...posted by ⊥ 8:32 AM ⊥ #

Back In Blog

Whew. A couple of hard weeks of work just flew by. Thanks to the many who sent me comments on that last post. They were both entertaining and insightful.

...posted by ⊥ 8:28 AM ⊥ #

Wednesday, July 22, 2009

St. Pete Times: HERE'S THE INFORMATION YOU ARE NOT SUPPOSED TO LEARN

My local paper, the St. Petersburg Times, has a notable story today on the front page of the local section. Using bullet points, it describes what a jury will not be told in a local trial that started yesterday.

The story, which you can read online here, concerns a murder trial. More specifically, it concerns a murder retrial. The story points out that the jury will not be told of an earlier guilty verdict, which was reversed on appeal with a new trial ordered, or of the defendant's prior rape conviction, or of how the defendant was investigated for crimes with which he was not charged.

The story never states why the jury will not learn of such things. I know nothing of the case beyond what the article contains, but I suspect the trial court ruled these facts are not relevant, and such rulings may have been prompted by the appellate decision reversing the earlier trial. Whenever a new trial is ordered, it is to correct an injustice, and it would be the antithesis of fairness to inform the new jury of how an earlier trial marred by injustice concluded. As for the prior conviction, it most likely has no relevance unless the defendant chooses to testify and the state wishes to impeach his credibility. As for the prior investigations, the mere fact a defendant has been investigated for something does not help show the defendant committed a different crime. These seem like uncontroversial rulings.

The story states the trial will continue today, so the jurors may learn from the story, directly or indirectly, what the court ruled they should not be told.

These circumstances raise an interesting question of journalistic ethics. As a longtime subscriber to and reader of this paper, I can attest to its longstanding desire that public officials do not just what they must but what they should. It is intriguing to see this story, with this presentation of information, published at this time.

This subject deserves a great deal of further discussion.

...posted by ⊥ 9:50 AM ⊥ #

Fourth District: Insurance

Insurance fans may be very interested in this decision. The Fourth District reversed an order enforcing a settlement, holding that an insurer's response to a settlement demand constituted a counteroffer, not an acceptance, because the response contained a release that included objectionable, not "usual," terms.

The court initially paraphrased the not "usual" terms as (1) a release of other potential defendants, (2) a requirement that the plaintiff warrant that all hospital bills had been paid, and (3) a non-disclosure provision.

The second item may catch someone's eye. Later in the opinion, the court stated that the insurer "required all liens to be satisfied prior to disbursement of the proceeds" and then still later stated that the insurer required a warranty that all hospital bills had been satisfied and none were outstanding.

Was the insurer looking for a warranty that all bills were paid? Or was the insurer looking for a warranty that, before the settlement proceeds were distributed to the plaintiff, all hospital liens had been satisfied?

The two are not the same, and some laws (designed to protect medical establishment) prohibit insurers from disbursing policy proceeds to claimants when medical liens have not yet been satisfied. If an insurer attempts to comply with such a requirement by requiring assurances that liens will be satisfied before the individual plaintiff receives proceeds, is that term an unusual one?

...posted by ⊥ 9:19 AM ⊥ #

Fourth District: Hearsay

Under this decision from the Fourth District, you can add certificates of non-licensure from the Construction Industry Licensing Board to the list of non-testimonial hearsay items that can be admitted against a criminal defendant consistent with Crawford v. Washington.

...posted by ⊥ 9:13 AM ⊥ #

Fourth District: PSIs

To impose a habitual offender sentence, Florida law requires a pre-sentence investigation. That requirement is said to amount to a right to a PSI before being sentenced as a habitual offender. Can counsel waive that right, or is it the sort of right only the individual should be able to waive?

In this decision, the Fourth District explained that counsel can waive the right to a PSI. In a footnote, the court stated that the better practice would be for trial judges to confirm the waiver with the defendant as well. Judge Hazouri agreed so strongly he wrote a concurrence echoing that view.

...posted by ⊥ 9:10 AM ⊥ #

Friday, July 17, 2009

Ineffective Assistance -- Winning In The Worst Way?

Appellate friends, is there such a thing as a bad win? If there is, then this decision released earlier today by the Fifth District might be an example.

A criminal defendant appealed his convictions for tampering with physical evidence and resisting arrest without violence. The district court never reached the issues raised on appeal because the court determined the police illegally obtained the critical evidence, requiring its exclusion and the convictions' reversal.

In reaching its decision, the court acknowledged that the defendant had not challenged the search's legality on appeal. The court explained, however, that ineffective assistance of appellate counsel can be addressed on direct appeal where the ineffectiveness is apparent from the record.

...posted by ⊥ 11:31 AM ⊥ #

Fifth District: Forum Selection Clauses

A contract includes this language: "The parties consent to the exclusive jurisdiction of the courts located in New York City, USA."

Is that forum selection provision permissive or mandatory?

Mandatory, as Fifth District explained in this decision.

...posted by ⊥ 11:28 AM ⊥ #

Fifth District: Final Contractor's Affidavit

Construction fans should be interested in this decision. The Fifth District explained that while providing a final payment affidavit is a condition precedent to a statutory lien foreclosure claim, that condition can be waived where the defendant does not raise its failure with particularity in the answer.

...posted by ⊥ 11:23 AM ⊥ #

Fifth District: Legal Duties and Ultimate Facts

Does a police officer executing a search warrant for a home owe a duty of care to an occupant of the residence?

Considering that a police officer's actions create a duty of care where the officer's conduct creates a foreseeable zone of risk to an individual or group, the question could be put in these terms: does a police officer create a foreseeable zone of risk to the occupants of a home by executing a search warrant?

In this decision, the Fifth District said yes, the officer can. The court held that an officer executing a warrant to search a home owed a duty of care to an occupant. The officer shot the occupant during a gunfire exchange that began after the officer knocked and another occupant answered the door. The man who answered the door had an extensive criminal history, including firearm offenses, and was known to carry a firearm by at least one deputy executing the warrant.

The court did not clarify exactly what facts were critical to its determination that a duty of care existed.

Perhaps more interesting than the duty issue is how the court proceeded to address sovereign immunity. The wounded occupant sued the local sheriff, claiming negligence, and whether the sheriff was immune from the claim turned on whether the actions at issue involved the execution of planning or operational functions. The district court determined that it could not make that decision because the complaint failed to set forth sufficient ultimate facts to establish how the officer assertedly breached the duty of care. The court remanded to allow an additional opportunity to replead.

Published decisions holding dismissals appropriate for lack of ultimate facts are rather rare -- and potentially handy.

...posted by ⊥ 11:19 AM ⊥ #

Fifth District: Mandamus, Disqualification

This decision from the Fifth District shows that a petition for writ of mandamus can be used to compel the reassignment of trial judges where the 30-day period to rule on a disqualification motion has expired without a ruling.

...posted by ⊥ 11:17 AM ⊥ #

Fifth District: Fighting Words

Concerned that a lesser standard could cross lines drawn by the First Amendment's free speech clause, the Fifth District in this case reversed a juvenile's disorderly conduct conviction because the juvenile's loud, profane words did not incite others to breach the peace or present an imminent danger to others.

...posted by ⊥ 11:15 AM ⊥ #

Fifth District: Violence

When is exhibitionist behavior considered sexual violence? When applying Florida's Jimmy Ryce Act to keep sexually violent persons involuntarily committed, as the Fifth District explained in this decision.

...posted by ⊥ 11:10 AM ⊥ #

Fifth District: Family Law

Family law practitioners may be interested in this reminder from the Fifth District that rule 12.490(f) requires courts to hold hearings on timely filed exceptions to magistrate reports.

...posted by ⊥ 11:05 AM ⊥ #

Tuesday, July 14, 2009

Fifth District: Insurance and Attorney's Fees

This decision really caught my eye. The Fifth District denied an attorney's fees motion made by an insured in a certiorari proceeding.

The insured lost the proceeding on grounds any error would be remediable on plenary appeal. In that context, the denial of fees was not remarkable -- a few years ago, the state supreme court confirmed that insureds must prevail on appeal to recover appellate attorney's fees.

However, the Fifth District's decision ended with an interesting musing. The court questioned whether appellate courts can award even prevailing insureds attorney's fees in certiorari proceedings, since the only reference to appellate level proceedings in the governing fee-shifting statute references "appeals." As with all extraordinary writ proceedings, a certiorari proceeding is not an appeal. Very interesting....

...posted by ⊥ 8:55 AM ⊥ #

Fifth District: Default Judgments

Part of me constantly fears overlooked deadlines. That same part is always relieved to see decisions setting aside default judgments. This decision from the Fifth District does so, and it points out that reasonable misunderstandings originating from clerical errors can establish excusable neglect.

The decision suggests that the appellee used some sharp tactics to obtain a default judgment and avoid litigating the merits.

...posted by ⊥ 8:50 AM ⊥ #

Fifth District: Visitation

Family law practitioners may be interested in this opinion. The Fifth District determined that the trial court improperly delegated its decisionmaking authority regarding visitation to one party's expert. The appellate court seemed more than a bit concerned that, without findings to support the decision, the final judgment forbid the former husband's current wife from being in the children's presence during visitation.

...posted by ⊥ 8:39 AM ⊥ #

Tuesday, July 07, 2009

Florida Supreme Court: Appointment Time (continued)

Before delving into other recent decisions, I would like to return to last Thursday's mandamus decision by the Florida Supreme Court. The court faced a petition for a writ of mandamus filed by retired Judge Robert Pleus, formerly of the Fifth District. The petition asked the court to order Governor Crist to appoint Judge Pleus's successor from a list of nominees first certified to the Governor in November 2008.

Article V, section 11(c) of the Florida Constitution provides that the governor "shall" make appointments for vacant judicial positions within 60 days after nominations are certified to the governor. In this case, Governor Crist rejected the original nomination list in the interest of diversity. He pointed out that 3 of the 26 applicants for the vacant position were African-American and asked the nominating commission to reconsider the nomination list. The nominating commission resubmitted the original list. Months passed without an appointment, and Judge Pleus filed his mandamus petition, asking the court to order the governor to act.

In what could be perceived as a separation of powers struggle between the executive and judicial branches, the court granted the petition and directed the Governor to perform the constitutional duty of appointing a new Fifth District judge from the list of nominees. You can read the decision here.

The case is very interesting on multiple levels.

First, consider how the case appeared to the general public. To Governor Crist, the case centered on diversity and whether the judiciary can order the governor to perform duties that require substantial discretion. To Judge Pleus, the case was about the constitutional requirement that appointments be made within 60 days of a nominating list's certification. Does the constitution allow a well-motivated governor to reject a certified list of nominees in the interest of obtaining a more diverse list? The supreme court has now told us the answer is no.

Consider also how this case helps define the scope of the judiciary's mandamus power. A writ of mandamus compels a public official to perform a ministerial duty, even one that involves discretion, so long as the official is under a legal to take some action. The writ directs the official to perform the legal duty without telling the official what decision to make. Governor Crist's response to the mandamus petition argued that, as the state's chief executive, the judiciary could not direct him to act, particularly since the selection of judges involves significant discretion. The supreme court rejected that argument, though the court's decision never expressly discussed whether, as a public official, a governor might be uniquely able to avoid a writ of mandamus. The Governor also argued that his duty to make the appointment after the 60-day period expired was unclear and for that reason mandamus relief should be denied. The court also rejected that argument, which would have allowed a governor to avoid the duty to appoint simply by not acting within the required time frame.

Sticking with the features of mandamus writs, consider who petitioned for relief in this case. It was Judge Pleus, the person whose retirement from the Fifth District triggered the vacancy at issue. Judge Pleus asserted in his petition, which is available here, that the unfilled status of his former position created workload issues for the court's remaining judges. That certainly places Judge Pleus in the storyline that led to this proceeding, but was it necessary that the petitioner have such a role to have standing to petition for a writ of mandamus? The court's decision stated, "Petitioner, as a citizen and taxpayer, has a clear legal right to request that the Governor carry out [his] duty."

Finally, consider that the decision also helped define the authority a governor has upon receiving a certified list of nominees. The court explained that a governor must make appointments within 60 days and that the constitution does not authorize a governor to extend the 60-day period or reject the list. Will that stop the gubernatorial practice of asking nominating commissions to reconsider their lists, or stop nominating commissions from doing so? I suppose we will see.

It bears mention that the author of the court's opinion, Justice Labarga was appointed by Governor Crist after the Governor asked the supreme court judicial nominating commission to reconsider a list it certified. Justice Labarga's name was on the original list -- in fact, it was Governor Crist's appointment of Justice Labarga to the Fourth District that prompted the Governor to ask for the list's reconsideration. That district court appointment proved short-lived when Governor Crist then appointed Justice Labarga to the supreme court.

Speaking of Justice Labarga, he and the court should be credited for delivering a unanimous opinion in this case. Arguably, the need for the judiciary to speak with one voice is never stronger than when tensions arise between our government's branches. Also, this decision was Justice Labarga's first as a supreme court justice. For opinions without dissents, Justice Labarga is batting 1.000, with a streak of one.

...posted by ⊥ 7:01 AM ⊥ #

Thursday, July 02, 2009

Florida Supreme Court: Appointment Time

Today, the Florida Supreme Court issued this decision, which holds that Governor Crist must select district court of appeal judges within 60 days of receiving a list of nominees from the Judicial Nominating Commission. The court granted a petition by Senior Judge Robert Pleus to require the Governor to select a Fifth District judge from a list originally submitted to him on November 6, 2008.

The Governor sought another list from the JNC to obtain more diversity, and particularly racial diversity, in the group of nominees.

More on this from me later -- I'm back to blogging in the next couple of days...

...posted by ⊥ 11:11 AM ⊥ #

Thursday, June 04, 2009

Fifth District: Serious About Subject Matter Jurisdiction

Florida's appellate courts can and should raise the issue of subject matter jurisdiction when the parties ignore or overlook it. Recently, the Fifth District has issued two decisions that, sua sponte, delve into that area.

One is rather simple. The other is simply significant.

This decision shows that the inquiry can extend to where the jurisdictional flaw lies at the case's inception in the trial court. The district court reversed a summary judgment entered by a circuit court that lacked jurisdiction to hear what, based on the amount in controversy, should have been a county court case. Those paying careful attention might observe that the trial judge was a former judge from the Fifth District who still serves as a senior judge on that court.

This second decision concerns the authority of general magistrates to try cases and enter judgments. The parties brought the Fifth District an appeal from what they asserted was a defamation judgment. The appellate court originally issued an opinion reversing the decision below, but immediately thereafter the court withdrew that opinion, and just a few weeks later the court issued a new decision with no discussion of the merits. The new decision holds that the judgment on appeal is a nullity, and the appellate court lacks jurisdiction to hear the appeal, because the supposed judgment was purportedly entered by a magistrate who tried the case apparently with consent but nonetheless without authority.

The Fifth District explained that Florida's Ninth Judicial Circuit has had a practice of allowing magistrates to preside over civil jury trials. The district court held that no statute or procedural rule authorizes magistrates to conduct trials, even by consent.

With the appeal dismissed, the case returns to the trial court for further proceedings. One might wonder how many other cases have been tried by consent before general magistrates and supposedly resolved by magistrate-entered and consequently invalid judgments.

...posted by ⊥ 7:25 AM ⊥ #

Fourth District: Arbitration, Part II

In the second of two arbitration decisions that the Fourth District released last week, available here, a divided court affirmed a waiver determination.

The majority opinion is just over four pages long and includes three footnotes that were nearly as long as the opinion's text. The court ultimately affirmed the trial court's waiver decision based on a view combining the defendant's pre-suit and post-suit conduct, which included defaulting in the underlying litigation, avoiding service, and delaying assertion of the right to arbitrate, including delay during prolonged settlement negotiations.

Judge Farmer dissented. His lengthy opinion offers 21 footnotes of its own and is at times caustic, at times sarcastic, and at times light, as we see in this note:

A verbal nugget lies buried in the verbal harvest of this case: a lawyer named Kornfield argues on behalf of a party named Green Acres before a judge named Farmer. Maybe it's just fertilizer for the Farmer.

Such light comments should not overshadow the serious arguments Judge Farmer makes. He criticizes the majority for what he calls its "casual" approach to affirming a waiver ruling based on a series of events that, in his view, cannot demonstrate waiver individually or collectively. He bases his arguments on case law that the majority did not discuss, and he declares the majority opinion to conflict with other decisions from the Fourth District. Judge Farmer also includes an intriguing footnote regarding whether a party that files a lawsuit has breached, or merely waived a right contained in, a contract requiring alternative dispute resolution.

This decision remains one to watch.

...posted by ⊥ 7:10 AM ⊥ #

Fourth District: Arbitration, Part I

In the first of two arbitration decisions released last week by the Fourth District, the court held that a "mere attempt to settle a dispute outside the courtroom" does not establish a waiver of the right to arbitrate.

The decision is available here.

...posted by ⊥ 7:02 AM ⊥ #

Monday, June 01, 2009

Fifth District: Additur

When should a trial court order a new trial on liability -- not just damages -- after a party adversely affected by a potential additur objects to increasing the jury's verdict? In this decision, the Fifth District explains that the answer is when liability was "hotly contested."

Perhaps one might consider this recognized view to be rather peculiar. After all, additurs and remittiturs are governed by this statute, which provides that the remedy for inadequate or excessive verdicts where the parties cannot agree on an additur or remittitur is "a new trial on the issue of damages only."

Or perhaps not.

Perhaps the peculiarity lies in the notion that juries separately decide liability and damages, and the judiciary is making a questionable departure from a statute's text to address a perceived injustice.

...posted by ⊥ 7:30 AM ⊥ #

Fourth District: Hey, Criminal Rules Committee

Now that the supreme court has dealt with complex case management, the Fourth District would apparently like the high court and the criminal rules committee to turn their rulemaking attention to something that is supposed to be less complicated: post-conviction relief.

Rule 3.851 imposes a 75-page limitation on post-conviction motions in death penalty cases. This decision from the Fourth District laments that no similar limitation exists in non-capital cases. The defendant in the case filed a 105-page motion for post-conviction relief -- after entering a plea.

...posted by ⊥ 7:28 AM ⊥ #

Florida Supreme Court: It's Complicated

In this decision, the Florida Supreme Court accepted, with modifications, the recommendations of a complex litigation task force and adopted a new rule of civil procedure to address complex civil case management. The court did so over the unanimous objection of all members of the civil rules committee.

New rule 1.201 will provide structure for complex litigation cases other than family law cases. It is subject to further comments and is scheduled to take effect in 2010.

The court also made substantial revisions to the civil cover sheet filed at the start of a case. The new form looks more like some of its federal counterparts and provides the courts with better detail regarding judicial workloads. The new form also requires counsel to certify the accuracy of completed forms.

...posted by ⊥ 7:20 AM ⊥ #

Certified Conflict: Standing Your Ground

In 2005, Florida adopted this law, which codified and expanded the common law's castle doctrine to include homes and vehicles and eliminated the duty to retreat from places where a person has a right to be. Some may recall the claims, including those made by major media such as the Washington Post, that Florida was wrongly codifying the ways of the Wild West and making more work for morticians.

I cannot recall the law making serious news since its adoption, but it has led to a conflict in the district courts. In this decision, the First District construed the law to provide an immunity that must be resolved by a trial court at the outset of a prosecution when the defendant raises the issue by motion to dismiss. In two more recent cases, found here and here, the Fourth District disagreed with that procedure, holding that such a motion should be denied where issues of fact exist.

...posted by ⊥ 7:14 AM ⊥ #

Fourth District: Attorney-Client Privilege

This decision from the Fourth District shows that where a client testifies against the client's attorney at a deposition in a malpractice action, that testimony is not protected by the attorney-client privilege. The court denied a certiorari petition seeking to prevent discovery of such a deposition.

...posted by ⊥ 7:12 AM ⊥ #

Fifth District: Constitutional Constraints

In a provision with a lengthy history, the Orange County charter authorizes a local board to review citizen complaints against the county sheriff's deputies and employees.

In this thoughtful decision, the Fifth District examined that provision, its place in the county's charter-based government, and the conflicts between the charter's provisions and state statutes governing complaints regarding law enforcement officers. The district court concluded that the charter provisions unconstitutionally conflicted with the statutory provisions and could not, as written, survive on the authority given to charter counties.

...posted by ⊥ 7:10 AM ⊥ #

Fifth District: Communication Breakdown

The Fifth District would appreciate more communication between counties that have charges pending against a single defendant.

In this case, the court concluded a speedy trial violation occurred, requiring charges to be dismissed, after Indian River County would not transfer the defendant to Orange County for trial.

...posted by ⊥ 7:10 AM ⊥ #

Fourth District: Appealability

Just a reminder here from the Fourth District that a notice of appeal does not permit an appellate court to review acts committed by the lower court after the appellant filed the notice.

...posted by ⊥ 7:06 AM ⊥ #

Fifth District: Amendment 7

The saga of article X, section 25, continues. In this decision, the Fifth District held that the constitutional provision still known by its 2004 ballot number supersedes the work product privilege with respect to fact work product, though not opinion work product.

...posted by ⊥ 7:03 AM ⊥ #

Back In Blog

A few things kept me away from here over the past two weeks. I completed three briefs, worked on several more, had an oral argument in Miami, took a quick trip to Baltimore, spoke at this function in Orlando, and, by reading this book, waded into a tremendously interesting area that will probably occupy me for some time to come.

Of course, I read a good number of opinions, too. It is now time to talk about them. Before I do, though, a quick thanks to those who have recently given me some great feedback about this blog. Your words are very encouraging, and appreciated. And to Anthony in Pasco, I owe you and your colleagues special thanks for the kind words. To show my gratitude, I will soon catch up regarding our mutual friends at the Second District.

...posted by ⊥ 7:01 AM ⊥ #

Thursday, May 14, 2009

Second District: Certiorari and Discovery Denials

Civil practitioners, add this decision from the Second District to the growing pile of modern appellate cases that utilize certiorari to review and quash a trial court order denying discovery.

Certiorari in the discovery context has long centered on "cat out of the bag" orders that require discovery to be exchanged. Once out, the proverbial cat is simply not going back into the bag, and any harm would be irreparable and should be addressed before it occurs.

Historically, we have seen rather few decisions granting certiorari petitions where a trial court refused to compel the exchange of discovery. A discovery denial may be right or wrong on its merits, but it does not cause information to be exchanged that cannot be unexchanged, and so theoretically its harm is just as correctable post-trial as it is pre-trial. So the case law told us.

Recently, however, Florida's appellate courts seem more receptive than ever to the notion that certiorari may appropriately be used to quash an order denying discovery. The Second District's recent opinion states:

Certiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal.
* * * However, when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.

(citations and footnote omitted).

Has there really been a change of course here, and if so, have courts merely changed their minds on whether the harm of discovery denied can be irreparable?

I suggest the answer to the first question is yes and the second is no, and that what is really at work involves both efficiency and integrity. More on that at another time. Meanwhile, trial lawyers, keep your appellate kin close, because a certiorari petition may be just a discovery denial away.

...posted by ⊥ 7:12 AM ⊥ #

Second District: School Employees

Government employment can lead to some legal peculiarities, such as how employees may receive immunity from the use of statements made under threat of adverse employment action for the failure to answer questions, thus leading to an employee's obligation to answer without Fifth Amendment protection.

Such lofty notions were at issue in this decision, but the Second District avoided entangling itself in them and resolved the case by deciding whether competent evidence supported a school board's decision to terminate a teacher.

...posted by ⊥ 7:05 AM ⊥ #

Second District: Sentencing

Sentencing fans -- you're out there, I know -- can have much fun with this decision from the Second District.

The court spends some time on a subject it knows much about (whether a sentence is an illegal one under rule 3.800(a)), a subject it newly encounters (whether an illegal but fully served state sentence's effect on a federal sentence can be corrected by a state court habeas corpus proceeding), and a subject it candidly admits not knowing how to resolve (whether a mechanism exists in federal court to alter a federal sentence being presently served where that sentence may have been predicated on a prior, illegal state court sentence).

The court also suggested that the public defender's office need not have been appointed to bring the appeal in this post-conviction case.

...posted by ⊥ 7:01 AM ⊥ #

Friday, May 08, 2009

Supreme Path on Children's Behalf

This week proved to be a briefwriting bonanza for me, and the fun kept me away from here and discussing this week's big news out of Florida -- the U.S. Supreme Court's order granting review of the First District's decisions in Graham v. State and Sullivan v. State.

Of course, now that the nation and even the world are interested in these cases, we can stop referring to "State" and start referring to "Florida." The high court will consider Graham v. Florida and Sullivan v. Florida this next term.

The question presented in Graham is:

Whether the Eighth Amendment's ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide.

The questions presented in Sullivan are:

1. Does imposition of a life-without-parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?

2. Given the extreme rarity of a life imprisonment without parole sentence imposed on a 13-year-old child for a non-homicide and the unavailability of substantive review in any other federal court, should this Court grant review of a recently evolved Eighth Amendment claim where the state court has refused to do so?

In short, both cases confront whether minors may be sentenced to life in prison without parole for a crime other than homicide.

Notably, the Sullivan decision was a per curiam affirmance, though Graham preceded it by a few months and so presumably the First District considered the issue settled. The case stems from post-conviction proceedings and the district court did not grant oral argument.

Graham, on the other hand, was a unanimously decided twenty-plus-page decision, and the First District held an oral argument. You can watch that argument here.

Graham is represented in this case by Jacksonville's Bryan Gowdy and John Mills. Bryan argued the case in the First District.

Congratulations to Bryan and John for getting this case to the high court. Perhaps Florida's Solicitor General's office will appear on the state's behalf.

These will be exciting cases to watch in the coming term. Given the breadth of interests implicated -- children, the Eighth Amendment, life sentences, international law, and The Convention on the Rights of the Child -- we can expect a cast of characters to weigh in on the issues as these cases move forward.

...posted by ⊥ 8:45 AM ⊥ #

Friday, May 01, 2009

Law Day

Today is Law Day. To help promote it, I had the good fortune to speak last week to two history classes at a local high school. I always enjoy speaking with students about the law -- they pay attention and always have terrifically interesting questions about how the law can impact their lives. I do my best to answer, but sometimes the questions are awkward and make you wonder how youthful these youths really are.

For instance, one student last week essentially asked: "If you're from another country -- say, France -- and you commit a terrible crime there and then come to America, what will they do to you?" Another asked something like, "If there's a warrant to arrest someone in Florida but the person moves to Georgia and no one there arrests him, can you get the Georgia police in trouble?" I hope the students were making these situations up, but I doubt it.

Speaking of students, a few years ago I told a story here about a Law Day-related oral argument I once had. Long-time visitors to Abstract Appeal may recall it, but I will retell it anyway. Here goes:

I will not mention the year or the court, but this story involves one of Florida's district courts of appeal. Each year, the district courts hold oral arguments in each of their respective circuits. Typically, oral arguments away from a district's seat take place in county or circuit court buildings, and sometimes the district courts liven things up a bit by inviting local school children to attend the session. That is especially true around Law Day. By inviting local students to attend an "away" session, the district court can visit a circuit, bring the public into the courtroom, and promote Law Day. Everyone wins.

Well, not everyone. Picture me in early May in one of Florida's beautiful rural courthouses. The weather was perfect. The courthouse was majestic. I stood before a panel of district court judges to deliver an oral argument, flanked by a gaggle of school children no doubt eager to hear about my interesting case. Factually, it was an interesting case, which is why it was selected for the event, and I was asked in advance if I would not mind waiting around afterwards to answer any questions the students might ask.

The appellant's argument had been unremarkable. The panel was rather quiet, asking very few questions. When you represent the appellee in that situation, you hope the judges are being pensive or are tired -- and not that they are waiting to unleash a fury on you when it is your turn to argue. My turn came and I began to defend the trial court's eminently correct rulings. I was immediately hit with a hostile question. And another. And another. Most were from one judge who made clear that he did not agree with me or my client, notwithstanding the sincerity behind my arguments. A couple of times, the judge shook his head and just said he saw things differently than the trial court and I saw them. It was 20 minutes of back and forth. Given that he was the judge, his forth was a lot more powerful than my back.

At the end of the oral argument, the court asked the school children if they had any questions. They were probably in the third or fourth grade. A young man had a question. He stood up, looked right at the judge who had hammered me and said, "Do you always make up your mind before you get here?"

I tried to hold back a smile.

Tried.

Needless to say, I lost that appeal, but I still smile when I think about that question.

...posted by ⊥ 9:40 AM ⊥ #

Untimely

If you follow national legal news, you probably learned from items like this one about Mark Levy's apparent suicide yesterday morning. Mark headed up the appellate group at Kilpatrick Stockton in Washington D.C.

I did not know Mark well but I was part of the planning committee that created the first two installments of the Eleventh Circuit Appellate Practice Institute, and Mark joined us for the Atlanta program in both 2006 and 2008. He spoke on class action appeals as part of the civil program in 2006 and on briefwriting in 2008.

One night during the 2006 program, I hitched a ride with him to dinner at the Highland Tap. I was planning a D.C. trip at the time and he was filled with suggestions and tales of the town. He struck me as both gentleman and scholar. If you attended either program, perhaps you recall him.

...posted by ⊥ 9:06 AM ⊥ #

Thursday, April 30, 2009

Third District: Oral Summary Judgment Motions

Observing that it goes without saying that one cannot serve an oral motion for summary judgment, and of course saying it, the Third District quashed a circuit court's appellate decision affirming an order granting such a motion. You can read the second-tier certiorari decision here.

...posted by ⊥ 8:29 AM ⊥ #

Eleventh Circuit: The Reality of Virtual Contact

The federal sentencing guidelines include a sentence enhancement where a defendant's offense involves sexual contact. In this case, the offense involved a self-stimulating act conducted in front of an Internet camera being viewed by an undercover police officer whom the defendant believed to be a minor. Was that sexual contact?

Yes, explained the Eleventh Circuit, because that term is defined in the relevant statute as the intentional touching of certain body parts of "any person" with an intent to "abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." The court rejected arguments that the defendant's act of touching himself did not meet the statutory language.

...posted by ⊥ 8:25 AM ⊥ #

Tuesday, April 28, 2009

Third District: A Disturbed Affirmance, Names To Follow

Prosecutors, take note: "harmless" misconduct may still get you named in the Southern Reporter.

The Third District's opinion and Judge Ramirez's concurring opinion in this case reflect serious concerns with the prosecutor's closing arguments in the trial below.

The court affirmed the defendant's conviction based on harmless error, but the court quoted Judge Blue's wise words from a 1994 decision:

Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.

Judge Ramirez was even more disturbed. He intends to start publishing the names of prosecutors who abuse the law in pursuit of a conviction. He explained:

Over the years, it has been my unfortunate experience to see a long procession of assistant State attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel’s questions during oral argument. If nothing else, I will henceforth publish their names so that their questionable tactics appear in the permanent record of the Southern Reporter.

Fair warning.

...posted by ⊥ 8:05 AM ⊥ #

Third District: Sealing Records

The Third Distict would like to make a point about sealing records: if you wish to file something under seal, your motion should utilize the standards set forth in Barron v. Florida Freedom Newspapers, Inc.

The court made this point publicly by publishing this order, which denied without prejudice an appellant's motion for leave to file an appendix under seal. The court noted that it must determine whether good cause exists to seal records even where no party objects to the request.

...posted by ⊥ 8:03 AM ⊥ #

Third District: Class Actions

Class certification fans will surely be interested in this divided decision by the Third District. The court reversed a certification order involving overcharges made by a finance company. The majority opinion -- actually, both majority opinions -- concluded that the lack of uniform, knowing conduct by the defendant made the putative representative's claims insufficiently typical of the class's claims and, in the end, caused individual issues to predominate over common ones.

Judge Suarez authored the lead opinion and Judge Shepherd concurred in it. Judge Shepherd also wrote a concurrence with which Judge Suarez concurred. That makes two majority opinions.

...posted by ⊥ 8:00 AM ⊥ #

Fifth District: Contracts

Contracts fans may be interested in this decision from the Fifth District. The case involved an attempt to bind municipalities to an agreement that their governing boards never approved. Overruling a trial court that ordered the purported agreement enforced, the appellate court explained why the statute of frauds could not be overcome by promissory estoppel or partial performance.

...posted by ⊥ 7:58 AM ⊥ #

Monday, April 27, 2009

Fourth District: Appellate Traps, Pro Se Filings

Appellate practice can seem so simple, right? Draft a brief. Deliver an oral argument. Try to explain why a per curiam affirmance is an injustice....

The truth is that appellate practitioners tend to live in serious fear of procedural slip-ups. It can happen to anyone, and the only protection from a misstep (other than an understanding judiciary) is a healthy vigilance that somehow avoids becoming an unhealthy paranoia.

This decision helps illustrate the point, albeit in the context of a pro se filing. The petitioner was previously convicted of a crime, and the Fourth District upheld his judgment and sentence. Though he was represented by counsel in the appeal, he timely filed a pro se motion for rehearing. Between the time he placed the motion in prison officials' hands and the time the appellate court denied it, the court issued its mandate. Slightly more than two years after the mandate issued but slightly less than two years after the denial of the rehearing motion, the petitioner filed a petition alleging ineffective assistance of appellate counsel. The appellate court denied the petition based on a procedural default.

The court held the petition was untimely because it was filed more than two years after the mandate issued. The court explained that a timely filed motion for rehearing is generally cause to recall a mandate but that the earlier motion in this case was a legal nullity because it was filed pro se by a party represented by counsel.

Apparently the order denying rehearing was a nullity as well.

Either way, traps are everywhere.

...posted by ⊥ 9:00 AM ⊥ #

Judge Warner: Hey Rules Committees...

In a concurrence to this decision, Judge Warner recommends that the Criminal Procedure and Appellate Rules Committees amend rules 3.800(a) and 9.141 to set forth the record attachments requirement imposed by case law.

In a time of budgetary crisis, where workload efficiencies must be maximized, her words ring out:

Substantial time and expense are wasted in the courts because the rules of postconviction relief are incomplete and antiquated. Although the trial and appellate courts have called for postconviction relief reform for years, no changes have resulted. The postconviction relief process occupies substantial time of the judges and staff of both the trial and appellate courts. Changes to make the process more efficient must be made.

...posted by ⊥ 8:55 AM ⊥ #

Fourth District: Work Product

The Fourth District recently released an important decision concerning work product, and you can read it here.

In the case, a health maintenance organization petitioned for a writ of certiorari. The HMO sought to block the compelled production of documents created in response to a regulatory agency's inquiries about how the petitioner set certain rates. The court denied the writ with a lengthy explanation that, at times, was harshly critical of the petitioner's arguments. The court viewed those arguments as an improper attempt to expand work product protection to encompass the ordinary activities of a regulated business.

As the court explained:

There must be some specific matter reasonably indicating litigation beyond the general business prospects of eventually being sued.
* * * We must not forget that the work product doctrine was created as a litigation privilege. It was never meant to apply to ordinary, routine, business-as-usual communications. That obviously means that it was not intended to protect the general foreseeability of being sued in the course of business — something HMOs routinely face. Hence we think, at a minimum, a claim of work product protection requires that a specific litigation matter can be reasonably anticipated as a result of an occurrence or circumstance — such as an act giving rise to the accrual of a cause of action. It was never designed to protect the normal business activities of an industry against general regulatory oversight and enforcement — outside of specific disciplinary action by the agency.

It might be noted that the documents at issue were apparently generated in the preparation of a response to the regulator's inquiry, and that the court ultimately focused not on the regulatory nature of the inquiry but on the nature of the materials created in response to that inquiry.

...posted by ⊥ 8:50 AM ⊥ #

Friday, April 24, 2009

Unconstitutional Ordinance

This story from the Palm Beach Post caught my attention. It explains that a circuit judge has declared unconstitutional a Riviera Beach ordinance prohibiting the baggy pants-look seen today. Apparently the ordinance prohibits persons from publicly wearing pants below the waist and thereby exposing skin or undergarments.

From how I read the story, it appears the court considered the ordinance a deprivation of liberty without due process because the city lacks a legitimate interest in keeping people's pants in place. The story is not clear, though, and I do not have a copy of the order. If someone has it, please forward it to me. It sounds quite interesting.

...posted by ⊥ 8:35 AM ⊥ #

Wednesday, April 22, 2009

Fourth District: Appellate Jurisdiction and Interlocutory Appeals

In this decision, the Fourth District reminds us that, in a non-final appeal, the appellate court's jurisdiction is limited and does not extend to all orders entered in the case below.

This particular appeal involved an injunction, and in reviewing the appealed order the court declined to review a prior order sustaining the appellee's objections to a discovery request. The court explained that the discovery order was reviewable only by a final appeal or by a petition for writ of certiorari, and the court noted that no certiorari petition had been filed.

For what it is worth, I will add that it was only a couple of years ago that the Fourth District released this en banc decision receding from the court's former view that certiorari petitions may not be directed at orders refusing to compel discovery. In a sense, the court has come fully around.

...posted by ⊥ 7:52 AM ⊥ #

Fourth District: Rule 1.442 and Proposals for Settlement

Can the parties agree to extend the deadline for responding to a proposal for settlement? In this case, the Fourth District answered that question by holding that an offer made and accepted after an agreed-upon extension of time constitutes a binding settlement.

...posted by ⊥ 7:47 AM ⊥ #

Fourth District: Computer Software and Taxes

Does computer software constitute tangible personal property subject to taxation by a county? No, held the Fourth District in this interesting tax case.

To constitute tangible personal property for Florida tax purposes, the chief value of the property must be intrinsic to the article itself. The court explained that the chief value of a software program stored on a medium is not intrinsic to the medium itself.

...posted by ⊥ 7:45 AM ⊥ #

Fourth District: Prejudgment Interest

Those who litigate commercial cases may be interested in this prejudgment interest decision by the Fourth District. The plaintiff successfully sued the defendant under the Lanham Act and Florida's false advertising statutes. The trial court awarded the plaintiff $93,306 in lost profits, as well as prejudgment interest on that amount.

The defendant appealed the prejudgment interest award, and the Fourth District reversed.

The court explained that the plaintiff had sought $300,000 to $400,000 in lost profits and that Florida case law suggests prejudgment interest is not warranted on a lost profits claim because the amount of damages is generally unknown. The court also observed that, to date, cases recognizing a right to prejudgment interest have all involved the loss of a vested property right, and anticipated business profits are not a vested property right.

...posted by ⊥ 7:42 AM ⊥ #

Fourth District: Premises Liability

Premises liability fans will be interested in this decision, where the Fourth District answered the question of whether an unsecured mat with a pattern and color different from the underlying carpet can constitute an open and obvious condition so as to defeat a failure to warn claim.

The court held that it did.

Interestingly, the court further held that the plaintiff abandoned the trip and fall theory she both pled and verified at her deposition when she belatedly opposed the defendant's summary judgment motion with an unpled and apparently inconsistent version of the events leading to her fall.

...posted by ⊥ 7:38 AM ⊥ #

Fourth District: Trade Secrets and Injunctions

Intellectual property fans will no doubt agree that trade secrets decisions are not common in Florida. This decision is thus a rarity. The Fourth District did not plow any new legal ground, but it did detail the successful trade secrets claim at issue in the case and discuss important legal concepts such as how the lack of a confidentiality agreement between a business and its employees does not preclude the business's key information from constituting a trade secret.

The case is also noteworthy for its injunction discussion. The court reversed a permanent injunction and remanded for further findings because the order at issue did not specify the reasons for its entry.

...posted by ⊥ 7:35 AM ⊥ #

Fifth District: Anders

If you are incarcerated, convicted, questioning your sentence, and faced with an Anders brief by your appellate counsel, you might be interested in this decision by the en banc Fifth District.

In a pithy few lines of text, the court receded from its former view and agreed with two of its sister courts that a criminal defendant may file a pro se rule 3.800(b)(2) motion after counsel has filed an Anders brief. In Anders cases in which the appellant may file a pro se brief, that brief, and not counsel's Anders brief, is considered the "party's first brief" for purposes of rule 3.800(b)(2).

...posted by ⊥ 7:32 AM ⊥ #

Monday, April 20, 2009

Fourth District: Material Concerns

Contract fans might be interested in this decision from the Fourth District. Condo fans, too. The case concerned a common scene in the current condominium real estate market: a buyer seeking to avoid a contract to purchase a condominium unit.

As required by this statute, the contract at issue provided the buyer with an option to cancel the agreement if the developer materially altered or modified the offering in a manner adverse to the buyer. The developer planned a 62-unit residential complex with one commercial unit.

Prior to closing, the developer notified the buyer that nine private cabanas were being added to the pool area, to be sold for $225,000 each.

The buyer took the position that the addition of the private cabanas constituted a material change that permitted the buyer to cancel the purchase agreement. The developer disagreed. The buyer then filed a declaratory judgment action to resolve the matter.

A trial court heard the case at a bench trial and ruled in the developer's favor. According to the Fourth District, the trial court's final order stated that the addition of the cabanas was not a material, adverse change.

On appeal, the Fourth District reversed and ordered judgment entered in the buyer's favor. The court recited the standard of review as follows:

This issue involves a matter of statutory interpretation, namely whether the trial court correctly interpreted and applied section 718.503(1)(a)(1), Florida Statutes (2008). As such, the de novo standard of review is applied.

The court followed this statement with the principle that factual findings from disputed evidence are upheld if based on competent substantial evidence.

Notably, the court never identified any issue as a fact issue or stated that competent substantial evidence did not support any factual finding. Rather, after defining the terms "material" and "adverse," the court simply explained that the cabana change was both material and adverse and ordered judgment entered in the buyer's favor, canceling the contract.

Did the court treat the materiality and adversity issues as issues of law, subject to de novo review? Or did the court treat those issues as factual ones subject to the competent substantial evidence standard? The court never directly said as much, and persons wishing to read the opinion either way might have arguments to make.

The present economy has created turmoil in Florida's condominium industry, for buyers and developers alike. Interest in this opinion may run high.

...posted by ⊥ 8:52 AM ⊥ #

Friday, April 17, 2009

Third District: Appellate Jurisdiction, Part II

Arbitration fans may wonder: Is a nonfinal order confirming an arbitration award appealable?

If you read this portion of the Florida Arbitration Code, you might think the answer is yes.

But if you read this decision by the Third District, you will be reminded that the answer is no.

A statute cannot authorize a non-final appeal to a district court of appeal. Pursuant to Article V, section 4(b)(1), of the Florida Constitution, only the state supreme court can authorize district court appeals from non-final orders.

...posted by ⊥ 8:20 AM ⊥ #

Second District: Appellate Jurisdiction, Part I

Those involved with termination of parental rights and dependency cases may be interested in this decision from the Second District. The case involved an appeal from a placement order entered after the court found a child dependent but before the court concluded the proceeding. The district court dismissed the appeal, holding such orders are not appealable. The court noted that a proposed change to rule 9.146 would later permit review of the order, if the supreme court approves that proposed change.

...posted by ⊥ 8:14 AM ⊥ #

Thursday, April 16, 2009

Questions, questions: Government Duties

If you know what a large fan I am of duty cases in the negligence context, then you will appreciate my interest in this decision issued yesterday by the Second District.

The case involves a substance abuse counselor formerly licensed by the Department of Children and Families and two children the counselor abused. One of them committed suicide. The other suffered serious mental injuries. The children's families sued DCF for negligently licensing and continuing to license the counselor, including investigating complaints about him.

The families recovered substantial verdicts. DCF appealed. The Solicitor General's office appeared as an amicus curiae to support DCF.

Writing for the Second District, Judge Altenbernd focused on DCF's argument that no enforceable tort duty exists when the agency serves only a licensing role. DCF had no relationship with the children here and did not employ the counselor, but it did have (and continues to have) a statutory duty to license and regulate persons providing substance abuse services. The question is whether that statutory duty gave rise to a civil tort duty that ran to the persons the counselor treated and which could form the basis of a negligence claim against DCF. The court assumed DCF was negligent in the sense its actions unreasonably fell below a standard of care.

The court's opinion wends its way through the murk of Florida's sovereign immunity case law, which for better or worse has as much to do with duties as it does immunity. The opinion also places great weight on a law and economics analysis rarely seen in Florida case law, akin to what some might expect from the likes of Judge Posner of the Seventh Circuit. The court explains that the costs of imposing not only regulatory oversight but tort liability on an agency such as DCF are such that the legislature, not the judiciary, should determine tort liability's extent. Otherwise, the court explains, the economic efficiencies that tort law seeks to achieve may be lost, and the judiciary would risk dissuading the legislature from enacting beneficial regulatory statutes in the first place.

The court ultimately concludes that DCF owed no duty directly to the children, but the court acknowledged the uncertainty surrounding Florida's government liability case law and certified the following to the Florida Supreme Court as a question of great public importance:

AFTER THE LEGISLATURE CREATED A STATUTORY DUTY REQUIRING DCF TO LICENSE AND MONITOR THE ACTIVITIES OF SUBSTANCE ABUSE COUNSELORS, DOES A DUTY IN TORT ARISE, OWING BY DCF TO A COUNSELOR'S CLIENT:
(1) WHEN DCF NEGLIGENTLY LICENSES THE COUNSELOR,
(2) WHEN THE COUNSELOR HARMS A CLIENT, AND
(3) WHEN THE CLIENT HAS NO RELATIONSHIP WITH DCF GREATER THAN THAT OF ANY OTHER CITIZEN?

One dimension not discussed in the opinion, but worth musing over, is what effect recognizing a tort duty by DCF here would have on the state's other regulatory agencies. Florida licenses a wide variety of activities, from banking to driving to medicine to cosmetology. Whatever the answer ultimately is -- and we have essentially a new supreme court in Tallahassee to consider the matter -- hopefully the result and analysis will be helpful for future litigation.

...posted by ⊥ 8:38 AM ⊥ #

Eleventh Circuit: Insurance

In the context of commercial motor vehicle insurance coverage and registration, this decision from the Eleventh Circuit points out the distinction between a policy's cancellation and its expiration. The former requires 30 days' written notice; the latter does not.

...posted by ⊥ 8:33 AM ⊥ #

Tuesday, April 14, 2009

Real Problems With Virtual Authorities

In the last several years, Florida's appellate courts have begun to utilize online resources as authorities, most often online dictionaries and encyclopedias such as Wikipedia. I recall the first time any Florida or Eleventh Circuit opinion cited Wikipedia -- it was an Eleventh Circuit opinion authored by Judge Tjoflat and discussed in this October 2004 Abstract Appeal post.

Times have changed since that 2004 Eleventh Circuit decision. The Internet has become truly ubiquitous. I doubt anyone today is much impressed by seeing an online authority cited in an opinion, particularly when the point mostly adds context to the court's decision.

That said, I wonder if anyone notices the potential uncertainty that such citations present.

For instance, in the Eleventh Circuit decision, Judge Tjoflat addressed an argument that the Homeland Security Advisory System's threat level could help justify a city's practice of conducting mass metal detector screenings on certain protesters. Rejecting that argument, the court quoted Wikipedia to explain that while the threat level was at yellow at the relevant time, "[t]o date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has been raised to orange (high) six times." The better part of five years later, you might think that figure would stand at six or more. Not exactly. Today's Wikipedia entry for Department of Homeland Security Advisory System makes a distinction the 2004 entry apparently did not: to date, the threat level has been raised to orange five times on a nationwide level and three times on a "select or partial basis." None of the three involved the city at issue in the 2004 case.

What if an online resource simply disappears?

It can happen. Last month, the Fifth District issued this opinion concerning a paternity action. The opinion defined the word "reputed," as in the term "reputed father," by citing Microsoft's online Encarta reference center. That was so last month. Later this year, according to this Microsoft announcement, Encarta will disappear from the virtual landscape. Click. Gone.

What is a court to do? That is not easy to say. Printed dictionaries are permanent resources but they are becoming scarce. I keep a massive one on my desk at work, but I confess I have gone from using it a dozen times a day to perhaps a dozen times a year. I now use online dictionaries and even keep my search boxes in Firefox and Internet Explorer set on Dictionary.com, rather than a search engine.

I suspect that courts will continue to cite online resources. Every once in a while, though, their published opinions may prove to be the only remaining trace of what those resources once said.

...posted by ⊥ 9:01 AM ⊥ #

Fifth District: Verdicts and Damages

Where a jury finds for a plaintiff but awards no damages, and no objection is made to the verdict, the trial court should enter judgment in the defendant's favor.

So said the Fifth District in this decision.

Judge Monaco authored an interesting special concurrence that explained how a more fair result in this particular case would have been a new trial, but the matter was not properly preserved.

...posted by ⊥ 8:53 AM ⊥ #

Fifth District: Incest

Is it always lawful for two competent, consenting adults to know each other -- in the Biblical sense?

No. This Florida statute prohibits incest, which is defined as marriage or sexual intercourse between persons related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece.

Does the incest statute apply to an adoptive parent and child? Or to a niece and uncle-in-law? The Fifth District considered both situations in this case, and in both instances answered no.

...posted by ⊥ 8:50 AM ⊥ #

Fifth District: Negligent Brawlers

Could the scope of the intentional tortfeasor exception to the apportionment of fault be shrinking?

Perhaps so.

In this case involving a plaintiff who sued a restaurant over its security practices after he brawled with two others in the restaurant's parking lot, the Fifth District affirmed a trial court's decision to allow on the verdict form not only the restaurant but, as Fabre defendants, the two other brawlers.

...posted by ⊥ 8:50 AM ⊥ #

Fifth District: Duty to Control

Duty fans will be interested in this decision, where the Fifth District considered what duty of care, if any, the Special Olympics owed to control volunteers who arrived early for bowling activities. The court determined that a special relationship under Restatement (Second) of Torts § 315 could exist between the Special Olympics volunteers and bowlers who arrived early to socialize.

...posted by ⊥ 8:45 AM ⊥ #

Fifth District: First-Party Bad Faith

The Fifth District held in this decision that the attorney-client privilege still exists after an insured first files a first-party statutory bad faith case.

...posted by ⊥ 8:43 AM ⊥ #

Fifth District: Limits on Appellate Review

This decision from the Fifth District demonstrates the limits inherent in an appellate court's jurisdiction. A circuit court sitting in its appellate capacity not only reversed the order on appeal but affirmatively enjoined a party to cease certain actions and took other unusual steps beyond a straightforward reversal.

On second-tier review, the Fifth District granted a certiorari petition, quashing the circuit court decision and explaining the limits on appellate review.

...posted by ⊥ 8:42 AM ⊥ #

Fifth District: Class Actions

As class action fans know, class certification decisions are relatively rare in Florida's appellate jurisprudence, which makes this decision affirming the denial of a certification motion a rarity. The Fifth District affirmed the denial based on the putative representative's inadequacy. The putative representative's principal liability theory was potentially adverse to the interests of the putative class.

...posted by ⊥ 8:42 AM ⊥ #

Questions, questions: Takings

In this order, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:

WHERE A LANDOWNER CONCEDES THAT PERMIT DENIAL DID NOT DEPRIVE HIM OF ALL OR SUBSTANTIALLY ALL ECONOMICALLY VIABLE USE OF THE PROPERTY, DOES ARTICLE X, SECTION 6(a) OF THE FLORIDA CONSTITUTION RECOGNIZE AN EXACTION TAKING UNDER THE HOLDINGS OF NOLLAN AND DOLAN WHERE, INSTEAD OF A COMPELLED DEDICATION OF REAL PROPERTY TO PUBLIC USE, THE EXACTION IS A CONDITION FOR PERMIT APPROVAL THAT THE CIRCUIT COURT FINDS UNREASONABLE?

You can read the court's original opinion here.

...posted by ⊥ 8:41 AM ⊥ #

Questions, questions: Termination of Parental Rights

Continuing a pattern of questions in the termination of parental rights context, the Fifth District in this case certified the following to the Florida Supreme Court as a question of great public importance:

MAY A PARENT WHOSE PARENTAL RIGHTS HAVE BEEN TERMINATED CHALLENGE THE JUDGMENT OF TERMINATION BY PETITION FOR HABEAS CORPUS ON THE BASIS THAT THE PARENT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

...posted by ⊥ 8:38 AM ⊥ #

Fifth District: Hey, Legislature!

The Fifth District would like the Legislature to take another look at section 443.151(4)(3), which provides that UAC orders are to be reviewed by the "district court of appeal in the appellate district in which the issues involved were decided by an appeals referee." As the court points out, there are multiple ways to interpret this unclear provision, and the district courts of appeal are not in agreement.

...posted by ⊥ 8:36 AM ⊥ #

Certified Conflict: Presuit Notice

If a person files a workers' compensation claim and is fired as a result, is the person's claim for retaliatory discharge under section 440.205 a claim that first requires presuit notice be given under section 768.28?

The Fifth District said no in this decision. The court held that the presuit notice feature of section 768.28 is intended to apply only to common law-based torts for which the statute waived sovereign immunity. Because a claim under section 440.205 is based on a statutory claim not recognized at common law, the court held that presuit notice is not required.

The Fifth District certified conflict with decisions from two other districts.

Very, very interesting...

...posted by ⊥ 8:35 AM ⊥ #

Fifth District: Loss of Consortium

This decision caught my attention because it ordered a new trial on a spouse's loss of consortium claim. The jury had awarded damages to the principal plaintiff but nothing for the spouse's consortium loss. The Fifth District held that at least nominal damages were necessary.

That result begs a question: if nominal damages had been awarded -- say, $1 -- would the award have been legally sufficient? For purposes of a claim such as loss of consortium, it seems questionable that a jury would ever find any serious distinction between awarding $0 and awarding $1. Legally, however, the difference appears to be worlds apart.

I suppose this could impact what the parties, and defendants in particular, argue in closing arguments involving loss of consortium claims.

...posted by ⊥ 8:34 AM ⊥ #

Fifth District: Attorney's Fees

This decision from the Fifth District reminds us that a district court cannot award attorney's fees in connection with supreme court work.

...posted by ⊥ 8:32 AM ⊥ #

Fifth District: Claims Files

In this case, the Fifth District reminds us that an insurer's claims file is privileged work product until the insurer's obligation to provide coverage is established.

...posted by ⊥ 8:31 AM ⊥ #