Abstract Appeal -- by Matt Conigliaro

Wednesday, October 31, 2007

Property Tax Proposal: Consideration Underway

If you are interested in the property tax reforms that the legislature approved Monday and on which Florida's voters are scheduled to vote in January, then the next few months should have your attention. Whether you think the legislature's proposal is good or bad for Florida, no one can reasonably deny that it is important and will directly affect most Floridians.

Today's coverage is certainly noteworthy. My local paper, the St. Pete Times, ran an editorial lambasting the legislature's work and a front-page story suggesting the proposal might violate the federal constitution on equal protection and dormant commerce clause grounds. You can read the editorial here and the article here.

In contrast, the Orlando Sentinel ran this story focusing on Governor Crist's support for the proposed reforms. Similar stories can be found in today's Palm Beach Post, Times-Union, Sun-Sentinel, and Miami Herald.

Do the suggested constitutional challenges have any merit? I have no desire to make news by weighing in here, but I will keep an eye on such topics, and if it seems appropriate to discuss the applicable law here at some point, then I will.

...posted by ⊥ 9:51 AM ⊥ #

First District: Blood Banks

Where a plaintiff alleges that a blood bank negligently screened blood donors, resulting in the death of a recipient of donated blood, is that claim subject to the presuit notice requirements of chapter 766?

Yes, said the First District in this decision. The court explained that under the 2003 amendments to chapter 766, blood banks are considered health care providers and the negligent screening of blood amounts to medical negligence. The court also observed that case law from around the country supports the notion that blood banks provide medical services.

...posted by ⊥ 9:49 AM ⊥ #

First District: Authority

Appellate attorneys may wish to keep this decision around as an example of how a precedentially insignificant decision by the state supreme court not to review a certified question of great public importance can be seen as, well, somewhat precedential.

...posted by ⊥ 9:48 AM ⊥ #

First District: Punitive Damages and Summary Judgments

This decision caught my attention. An injured plaintiff sued the defendant for negligence in failing to maintain a handrail. The plaintiff sought leave to add a request for punitive damages, and the trial court permitted that amendment and, later, denied the defendant's motion for summary judgment on the punitive damages issue. The case then proceeded to trial, which resulted in a judgment for the plaintiff, including a punitive damages award.

On appeal, the defendant argued that the trial court erred in not granting summary judgment against the plaintiff on the punitive damages issue. The First District agreed. The court held that, at the summary judgment stage, the record showed only that the defendant had notice of a badly deteriorated handrail, which notice was sufficient to establish breach of a duty of care but insufficient to establish the sort of willful and wanton conduct that would support a criminal conviction for manslaughter. The court therefore reversed the final judgment to the extent it awarded punitive damages.

Punitive damages fans will surely find the court's discussion on that issue to be of interest. I was also intrigued, though, by the court's decision to review the punitive damages issue at the summary judgment stage, rather than as a matter of the evidence presented to the jury at trial. Perhaps this decision runs counter to the notion that certain pretrial events relating to the sufficiency of allegations or proofs, including rulings on motions to dismiss and for summary judgment, merge or are subsumed into the trial where the case proceeds to trial.

...posted by ⊥ 9:45 AM ⊥ #

First District: Contracts

This decision from the First District may stand for the broad proposition that where a contract supplies a mechanism to address some deficiency in one party's performance, such a deficiency is not automatically deemed a breach of the agreement.

...posted by ⊥ 9:42 AM ⊥ #

First District: Forum Selection Clauses

The First District's decision in this case shows that forum selection clauses that require litigation to be brought in states other than Florida can be unenforceable under certain circumstances.

...posted by ⊥ 9:40 AM ⊥ #

First District: Cross-Appeals

Yes, appellate courts can dismiss cross-appeals, as this decision from the First District shows.

...posted by ⊥ 9:37 AM ⊥ #

First District: Land Use and Second-Tier Certiorari

Some second-tier certiorari cases apply the applicable review standards in a way that makes them seem almost insurmountable, as if the district court's second look is so limited that all but the most patent legal errors may escape being quashed. Other cases seem to offer hope that second-tier review permits a broad look at the legal side of a case.

This decision would seem to fall in the second category. The First District quashed a circuit court's certiorari review decision and directed the circuit court to quash an ordinance enacted by the City of Jacksonville for being inconsistent with the city's comprehensive plan.

...posted by ⊥ 9:35 AM ⊥ #

First District: Family Law Attorney's Fees

Just a reminder here from the First District that, at least in some ways, parties to a marital settlement agreement can waive the fee-shifting that might otherwise occur under chapter 61.

...posted by ⊥ 9:33 AM ⊥ #

First District: Circuit Court Appeals

In this decision, the First District reminds us, and state prisoners in particular, that where review of quasi-judicial action is sought in a circuit court (such as a Department of Corrections decision awarding gain-time), that court is governed by the Florida Rules of Appellate Procedure.

...posted by ⊥ 9:31 AM ⊥ #

Conflict: Habeas Corpus

Is a writ of habeas corpus appropriate where a trial court sets bail at a rather high amount, allegedly tantamount to no bail, but the hearing below focused on mental issues and no competent evidence was presented regarding the defendant's ability to pay or ties to the community?

In this case, the First District acknowledged that a sister court has granted a habeas corpus petition under these circumstances, but the First District held that such use was inappropriate and denied the petition before the court.

...posted by ⊥ 9:30 AM ⊥ #

Tuesday, October 30, 2007

Property Taxes: Proposal for the Ballot

Wow. What a change. Several weeks ago, Florida voters were facing a proposed constitutional amendment on the January 29, 2008 ballot that would, in time, eliminate the Save Our Homes protection for homestead property. Then a judge declared the ballot summary accompanying that proposal to be misleading and ordered it off the ballot, prompting the legislature to reconsider the property tax situation in a special session. Yesterday, that special session produced a new proposed constitutional amendment, and this one not only keeps Save Our Homes but expands it, making up to $500,000 of its benefits portable, and adds both a cap for assessments on nonhomestead property and multiple exemptions to reduce the taxable value of various forms of property.

Some are upset the proposed changes do not go far enough, offering little to reduce current taxes. Some are upset the system that ties assessment increase caps to property ownership, and results in inequities over time, remains in place. Some are happy that Save Our Homes will remain effective and one of its drawbacks, the inability to move residences without losing long-accrued Save Our Homes benefits, would be largely eliminated.

Read about it all in today's Tallahassee Democrat, Herald-Tribune, Orlando Sentinel, Sun-Sentinel, and St. Pete Times, and in today's Miami Herald, whose story carries the headline, "Lawmakers failed to make substantial change."

...posted by ⊥ 9:54 AM ⊥ #

First District: Procedural Statutes

Is a statute governing whether the prosecution or the defense gets the last closing argument in a criminal trial procedural or substantive? The First District has the rather obvious answer here.

The decision also showed why the legislature's enactment of this statute was unnecessary -- and ineffective -- beyond simply repealing former rule 3.250.

...posted by ⊥ 9:50 AM ⊥ #

First District: Agency Law

This decision points out that the deference courts typically pay to agencies' interpretations of statutes within their jurisdiction does not extend to attorney's fees statutes. The First District explained, "Whether a party is entitled to an award of attorney fees is a question that arises in many different kinds of cases, regardless of the subject matter, and it is one that the courts are best equipped to answer."

The decision also includes an interesting analysis of how actual malice need not be demonstrated for a public official to recover attorney's fees from a person who falsely accuses the official of an ethics violation.

...posted by ⊥ 9:45 AM ⊥ #

First District: Conspiracy

Those interested in criminal law, and drug offenses in particular, may wish to check out the First District's decision in this case. The court demonstrated how, under Florida law, repeated sales of resale quantities of a drug can support a conviction for conspiracy to purchase or possess with intent to purchase.

...posted by ⊥ 9:40 AM ⊥ #

First District: Diligence

In this case, the First District explained that inexplicably failing to move to set aside a default for 10 weeks does not constitute acting with due diligence, apparently as a matter of law.

...posted by ⊥ 9:37 AM ⊥ #

First District: Legal Malpractice

Does the limitations period on a legal malpractice claim begin to run when a judgment adverse to the plaintiff is entered by a trial court or when the appeal from that judgment is adversely resolved?

In this context, appeals count, as the First District reminds us in this case.

...posted by ⊥ 9:35 AM ⊥ #

First District: Medical Malpractice

This decision from the First District shows that a plaintiff can allege a medical malpractice claim where the alleged malpractice itself extends the repose period applicable to the claim.

...posted by ⊥ 9:33 AM ⊥ #

First District: Smell Test

Here is a case that shows why having a relatively dull sense of smell can be a source of empowerment. The First District explained that a human's dull sense of smell reduces the risk it will falsely detect the presence of burnt marijuana, giving an officer who smells burnt marijuana in a vehicle after pulling it over probable cause for a search.

...posted by ⊥ 9:32 AM ⊥ #

First District: Dismissals

Appellate folks may wish to keep this decision around for the next time a case settles. The court holds simply that settlement of a case on appeal calls for dismissal of the appeal.

...posted by ⊥ 9:31 AM ⊥ #

Monday, October 29, 2007

Property Tax -- Crunch Time

According to this story in today's St. Pete Times, the Florida Senate placed a property tax proposal on the legislative table yesterday. If approved by Florida voters, the proposal would significantly amend the state constitution as it relates to property taxes.

With the current special session on the verge of ending, and with a deadline of Tuesday night for passing anything intended for the January 2008 election ballot, this latest proposal will stand or fall soon.

According to the story, the proposal includes increasing the homestead exemption, capping taxable value increases for nonhomestead property, and making Save Our Homes benefits portable.

On that last item, can you picture the potential effects such a provision could have on the current home sales market?

...posted by ⊥ 7:24 AM ⊥ #

Justice Boyd Passes

On Friday, former Chief Justice Joseph Boyd passed away. He was 90. His body is expected to lie in state today at the Florida Supreme Court.

This story from the Tallahassee Democrat offers some details on the former justice's life.

This AP story adds some -- but, no doubt out of respect, not many -- details about Justice Boyd's involvement in one of the events that compromised our high court's integrity in the 1970s. For more on that unfortunate affair, which hopefully offers today's bench and bar lessons about the legal profession and insight into one of the events that later prompted significant constitutional changes regarding the Florida judiciary, look here.

...posted by ⊥ 7:15 AM ⊥ #

Friday, October 26, 2007

50 Years To Lead From Lakeland

Last night, the Second District celebrated its fiftieth anniversary. Its equally aged sister courts, the First and Third Districts, held similar galas earlier this year. I was unable to attend the earlier events, but I was able to attend the Second District's function yesterday.

It was well done. Numerous speakers, featuring former Justice Stephen Grimes, who served on the Second District from 1973 to 1987, spoke about the district court and its evolution over the last five decades. Many showed their affinity for the court, its members, its staff, and the Lakeland location.

It also caught my attention that, over the past 50 years, the court's 46 judges have worked with 307 law clerks. I can think of two current judges who formerly served as law clerks at the court, putting them in both categories, and I learned last night that one current judge once turned down a clerkship with then-Judge Grimes.

...posted by ⊥ 11:05 AM ⊥ #

Thursday, October 25, 2007

Property Tax Update

If I was slightly correct in calling PIP the product of politics, I am more so in characterizing the current property tax imbroglio a political creature.

Let's take a few moments to assess.

For the better part of the last two decades, Florida's constitution has afforded all owners of homestead property the famous (or, to some, infamous) "Save Our Homes" protection, which recognizes that property taxes in this state are based on property values and accordingly caps the amount by which the taxable value of homestead property can increase each year.

Property that qualifies for Save Our Homes ends up with two assessed values each year: an actual assessed value and a taxable value, with the latter being an artificially deflated figure that is initially based on the assessed value but can increase each year only up to the capped amount. Because the protection was intended simply to keep rising property values from producing taxes that homeowners cannot afford, the protection only lasts so long as the homeowner owns the property. If homestead property is sold, the deflated taxable value is wiped away, and the new owner will be taxed at the full assessed value, even if the new owner can declare the property as homestead and utilize Save Our Homes going forward.

In the last few years, some rather high profile voices have decried Save Our Homes because it produces inequities within neighborhoods. If you bought a home 10 years ago and have qualified for Save Our Homes, your property taxes will inevitably be much lower than the taxes on an identical home next door that was purchased just this year and which will be taxed at its full assessed value. Let there be no doubt: the system does produce inequities -- the question is whether those inequities are acceptable, given the alternatives.

One view says they are not -- two people living next door to each other in identically valued properties should not have such disparate tax bills. Another view says such differences are acceptable, since once you own a piece of property you have no control over its rising value, and Save Our Homes can keep you from being taxed into selling the place, while a person who purchases the home next door at its current value should know almost exactly what taxes it will carry and can decide whether to purchase that home or not.

In the last year, it seems the state legislature accepted the inequity argument and, as part of a plan to reduce taxes, proposed replacing the Save Our Homes system with an exemption-based one that would likely lower taxable values in the short term but would not cap taxable values in the long term. Such a change would have to be approved by voters, and the Mayor of Weston challenged the ballot summary the legislature drafted to accompany the proposal as misleading. He won that challenge in a Leon County circuit court, with the court ruling that the ballot summary implies Save Our Homes would be kept in place, when it fact it would be phased out. You can read that decision here.

The state appealed that decision to the First District, which immediately passed the appeal through to the Florida Supreme Court. The supreme court has set oral arguments in the appeal for December 3.

After the circuit court ruled the ballot summary is misleading and cannot be placed on the January 29, 2008 ballot, the public became more aware that the current legislative proposal, which may or may not wind up on the ballot, would eliminate Save Our Homes. As a whole, the public apparently does not approve. That has led the legislature into a special session that is still going on. It seems scrapping Save Our Homes is off the table and expanding the protection is the goal of the day. According to this story from today's St. Pete Times, the House and Senate are at odds over issues such as whether a Save Our Homes-like protection should cover all Florida properties.

The story notes that the legislature faces a deadline of this coming Tuesday to pass a proposed amendment if the proposal is to be placed on the January 29, 2008 ballot. The story also notes that it is possible the January ballot could have two competing property tax proposals -- the original legislative proposal if the state wins the current appeal and a new proposal passed in the coming days. Practically speaking, that will not happen. If the legislature passes a new proposal in the next week, it seems inevitable the state will drop its appeal and the order keeping the original proposal off the ballot will be allowed to stand.

So, for now, things are uncertain. We will know more by next Tuesday.

...posted by ⊥ 8:40 AM ⊥ #

Monday, October 22, 2007

Stay, Stay, Stay: Stuck In The Middle

Perhaps you recall this earlier post on how the Florida Supreme Court has considered amending rule 9.310 to harmonize it with this new law on stays and supersedeas bonds.

On Friday the court released this order, which explained the court has unanimously decided "no revision is to be made at this time."

That decision leaves in place a judicial rule that without question conflicts with a legislative statute, though the constitutionality of that statute has very much been questioned. Indirectly, that decision also leaves in place the interdistrict conflict discussed in this 2004 Abstract Appeal post.

I suppose you could say the court's ruling also helps appellate lawyers stay, too -- busy, that is.

...posted by ⊥ 10:07 AM ⊥ #

PIP: Great Expectations

PIP. Personal Injury Protection. It is a form of automobile-related insurance coverage that was rarely mentioned in the popular media until recently, as we approached the October 1, 2007 sunset of the law requiring Florida drivers to carry this coverage. Then PIP suddenly became a hot topic. Most if not all of Florida's large automobile insurers did not want the requirement reinstated. Many medical establishments badly wanted it kept in place.

I watched with some interest as the various sides -- including Florida's big media -- made their pitches for renewing or scrapping the PIP system. I never wrote about it here, though. Sure, PIP is a legal matter, but there was hardly anything legal being discussed in the PIP debates. It was purely a political animal, and it was nearly all about money.

I am oversimplifying, but generally the PIP system offers health care providers a remarkably reliable source of up to $10,000 for care given to each person in an automobile accident regardless of who was at fault, assuming someone had the required PIP coverage. The reliability of those payments is even further enhanced by legal provisions that penalize insurers if they do not immediately make PIP payments, including provisions requiring insurers to pay the attorney's fees of those who successfully establish the insurers violated the time-sensitive PIP laws.

The near-certainty of those payments, however, led to some significant dishonest practices among some medical professionals. The system also led to a legal niche for attorneys who sue insurers for delayed or missed PIP payments and, in the process, may end up recovering fees that are many times higher than the total PIP payments at issue.

PIP coverage was created to allow the insurance industry to pay low sums of medical injury and property damage costs following an automobile accident without the need for someone to admit fault or the injured or damaged person to prevail in a lawsuit against the person at fault. As you might imagine, investigations and lawsuits can be difficult, time-consuming, and of course expensive. At least with respect to low amounts of damages, then, the PIP system is predicated on the idea that determining fault is a transaction cost that can be avoided, lowering the costs that result from each accident while providing swift payments.

It makes a lot of sense. But as I mentioned, the system does have problems.

In its prior sessions, the Legislature chose not to renew PIP, and the law expired on October 1 of this year. But as the law lapsed, the media derided that decision and insisted the public would suffer without PIP. Fortuitously, the legislature held a special session this past month to address state spending, and the session was expanded to cover PIP as well. You can read the Governor's declaration expanding the session here. On October 11, the Legislature passed a bill, which the Governor quickly signed, recreating the PIP system as of January 1, 2008. You can read the new law here.

The new system is much like the old one, although a number of tweaks have been made to address various fraudulent practices.

There is a legal wrinkle in all of this that is worth a mention. A fundamental part of what makes the PIP system efficient is the elimination of low-dollar value suits stemming from automobile accidents. In fact, the PIP laws prohibit such suits from being filed and, as a result, any claim you may have against another for up to $10,000 in medical or property damages is not recognized by Florida law. Well, with PIP being absent from the legal landscape between October 1 and December 31, 2007, that prohibition temporarily does not exist, and suits for under $10,000 can now be brought for accidents happening through the end of 2007. Will they be brought? I suppose we will have to wait and see.

...posted by ⊥ 7:55 AM ⊥ #

Thursday, October 18, 2007

Wow...

I feel like a kid in a candy store. I spent a good amount of time yesterday just planning to write on several subjects -- PIP, the property taxes situation, the fast-tracked appeal in the tax case discussed below, the Democratic electors lawsuit, and some recent notable state decisions -- but wound up taking too much time absorbing it all and not enough publishing my thoughts.

So I am going to start today.

But wait, no sooner am I trying to string together some meaningful comments on these big issues of the day than the state supreme court, obviously energized after its summer break, dropped this tort-lover's delight onto the legal landscape. The so-called "impact rule" lives, but the impact it requires is apparently far less than the rule's name might suggest. The principal decision is rather short, but it is tailed by a series of concurrences and dissents that implicitly explain why the case took almost two and a half years after the oral argument to decide.

I have many observations to make about the decision. Energized from my own recent break, I may even be a mite critical.

Stay tuned.

And to the many who dropped by this blog recently looking for my return to posting, thanks for stopping by.

...posted by ⊥ 12:43 PM ⊥ #

Tuesday, October 16, 2007

Back In Blog

Tomorrow.

...posted by ⊥ 11:09 AM ⊥ #

Friday, September 28, 2007

Property Tax Reform: Amendment Off Ballot

I have been out of town the last several days, leaving me until now unable to discuss this week's big story: the ruling by a Leon County Circuit Judge that the ballot summary for the proposed constitutional amendment to overhaul the property tax system is sufficiently misleading and confusing to invalidate the proposal.

The court ordered the Secretary of State to take the measure off the January 2008 special election ballot.

This development is of extraordinary importance to those who own and live in Florida homes. The so-called "Save-Our-Homes cap" has been in place in Florida for over a decade, and it protects those whose property qualifies as homestead from annual increases in taxable value over three percent. It is not exactly a cap -- the mechanics are slightly more complex -- but it effectively functions as a cap on how much the taxable value of a particular home can increase each year. The bottom line is that, under the existing Save-Our-Homes protections, tax bills on a particular homestead property do not increase exponentially each year, even if the market value of the property does.

As part of a package of property tax reforms, the Legislature this year passed this proposal to amend the state constitution and revamp the property tax system. The proposal is complex, to be sure. It leaves the Save-Our-Homes protection in place for those who currently receive its benefits, but it eliminates that protection for newly acquired properties and for anyone who elects to abandon that protection in favor of the new tax system. The new system, sometimes referred to as including a "Super Homestead Exemption," involves a series of exemptions and deductions for homestead property owners but no Save-Our-Homes-like limit on increases in a property's taxable value. It appears the new system should, at least at first, lead to lower property taxes than homeowners would enjoy under the Save-Our-Homes protection.

The Mayor of Weston, presumably unhappy that the new property tax scheme (which is larger than the homestead issue) will lower municipal property tax revenues, filed a suit against the Secretary of State. Among other things, the suit claimed that the ballot summary the Legislature drafted for voters to read when voting on the proposed constitutional amendment is unlawfully misleading. Here is what the Legislature's proposed ballot summary, which voters would see on the ballot, says:

CONSTITUTIONAL AMENDMENT
ARTICLE VII, SECTIONS 3, 4, 6, AND 9;
ARTICLE XII, SECTION 27

AD VALOREM PROPERTY TAXATION: ASSESSMENTS, EXEMPTIONS, LIMITATIONS, AND HOMESTEADS.--Proposing amendments to the State Constitution to increase the homestead exemption from $25,000 to 75 percent of the just value of the property up to $200,000 and 15 percent of the just value of the property above $200,000 up to $500,000, to subject the $500,000 threshold to annual adjustments based on the percentage change in per capita personal income, to authorize an increase in the $500,000 threshold amount by a two-thirds vote of the Legislature, and to specify minimum homestead exemption amounts of $50,000 for everyone except low-income seniors and $100,000 for low-income seniors; to provide for transitional assessments of homestead property under the increased homestead exemption that include preserving application of Save-Our-Homes provisions until an irrevocable election is made; to revise Save-Our-Homes provisions to conform to provisions providing for the increased homestead exemption and transitional assessments of homestead property; to require the Legislature to limit the authority of counties, municipalities, and special districts to increase ad valorem taxes; to authorize an exemption from ad valorem taxes of no less than $25,000 of assessed value of tangible personal property; to provide for assessing rent-restricted affordable housing property and waterfront property used for commercial fishing, commercial water-dependent activities, and public access at less than just value; and to schedule the amendments to take effect upon approval by the voters and operate retroactively to January 1, 2008, if approved in a special election held on January 29, 2008, or shall take effect January 1, 2009, if approved in the general election held in November of 2008.

The Mayor argued that this summary is fatally confusing and misleading, and should not be presented to voters, because it does not explain that the Save-Our-Homes protection is being eliminated in favor of a new system and instead suggests Save-Our-Homes is being kept in place. The circuit court agreed.

Specifically, the circuit court concluded that while the ballot summary mentions preserving and revising Save-Our-Homes, under the new system, "the constitutional protections currently provided will not be preserved for anyone who is not entitled to the homestead tax exemption on the effective date of the amendments. They also will not be available to anyone who sells or transfers their homestead after the effective date of the amendments. They will only be preserved for those who currently enjoy them and who do not choose to surrender those protections by making the 'irrevocable election'. Furthermore, for those who do not make the 'irrevocable election,' the protections currently being provided are not revised, but remain absolutely the same."

You can read the full order here. (You might note that the Mayor lost on a second issue raised in the case -- whether the Legislature had the power to adopt a series of limits on municipalities' authority to collect certain taxes.)

On Wednesday, the state appealed the circuit court's decision to the First District.

Also, yesterday, the Tallahassee Democrat explained in this story that the Legislature is considering revising the proposed ballot summary at a special session next week.

This story is far from over...

...posted by ⊥ 7:20 AM ⊥ #

Monday, September 24, 2007

Pardon Power

Once in a while, a decision seems to reach the wrong result, not in the sense the court misapplied the law, but in the sense the law sometimes does not produce a just result in a particular circumstance.

Many saw things that way when the Second District released this decision, including perhaps the court itself. But the court's job is to interpret and apply the law, and the law at issue in the case was Florida's relatively inflexible statutory sentencing scheme.

The case involved a wheelchair-confined man convicted of seven counts of drug trafficking and sentenced to 25 years in prison. His offenses were predicated on forged prescriptions used to obtain drugs to treat his own pain. In its divided decision, the Second District affirmed the convictions and sentence.

I blogged at some length about the case in this prior post.

The case has now made headlines again because, last week, Governor Crist pardoned the man. Read about it in this story from the St. Pete Times.

One of the Governor's most spectacular powers is the power to pardon persons for criminal offenses. This case surely seems to qualify as spectacular.

...posted by ⊥ 8:15 AM ⊥ #

Wednesday, September 19, 2007

Battle of the Chairs

Peeking at the Florida Supreme Court's oral argument calendar, an interesting argument is slated for tomorrow. It is not a litigation case. It is a rules amendment matter. And, yes, a rules proceeding can be interesting -- at least to an appellate lawyer.

You may recall that, in 2006, the Legislature adopted this statute, which addresses stays of final judgments in civil cases. The new law caps at $50 million the amount necessary to post a supersedeas bond and further allows trial judges discretion in certain instances to reduce the supersedeas bond amount in the interests of justice and upon a showing of good cause.

Supersedeas bonds have long been governed by the appellate procedure rules, most recently Florida Rule of Appellate Procedure 9.310. The rule in essence provides that, for money judgments, a supersedeas stay can be obtained by posting a bond in the amount of the judgment plus two years' interest. The new statute in effect allows that amount to be relaxed in particular cases.

Historically, when the Legislature changes Florida law in a manner that conflicts with Florida's procedural rules, the appropriate rules committee and the state supreme court will consider amending the procedural rules to eliminate the conflict. In that way, the Appellate Court Rules Committee might have drafted and submitted to the supreme court proposed amendments to rule 9.310, to make the rule conform to the new statute.

That did not happen. The state-wide plaintiffs' lawyers advocacy group, which recently changed its name to the Florida Justice Association, took a strong position that the new statute is unconstitutional. The FJA sees its members and clients as harmed by stays predicated on bonds below the traditional full amount plus two years' interest, and it views the new statute as infringing on the supreme court's procedural rulemaking authority, thereby violating the constitutional separation of powers.

Whether that view is correct is an interesting legal issue. It is also an issue that would be moot if the state supreme court were to amend the procedural rules to conform to the statute. After all, if the court's procedural rules mimic the legislature's statutory scheme, then it is an unnecessary academic exercise to decide whether the legislature had authority to adopt the statute. Many will note that this same rationale explains why the evidentiary statutes in chapter 90 have long been adopted, verbatim, by the Florida Supreme Court. The high court typically makes such adoptions "to the extent" the evidence statutes are procedural, without opining on the extent to which the evidence code is substantive or procedural.

When the issue of proposing an amendment to rule 9.310 came before the Appellate Court Rules Committee, many on the committee doubted the statute's validity or otherwise took the view that the constitutional issue raised by the FJA should not be mooted by the adoption of a procedural rule. The committee considered a proposed amendment to the rule but voted 45-7 against presenting any amendment to the supreme court. The minority favored the proposal the committee considered.

The committee sent this report to the high court, informing it of the vote and the amendment the committee otherwise considered. The supreme court then entered an order inviting public comments on the matter and directing both the majority and minority from the committee to respond to the comments and participate in oral argument.

The FJA's comments, opposing the amendment, are available here.

One attorney filed comments in support of the proposed amendment, with an additional change. Those comments are available here.

The committee's majority and minority then responded. The majority's response is available here, and the minority's response is available here.

The argument relating to whether or how to amend rule 9.310 will be held tomorrow at the state supreme court. According to this document, the person who chaired the committee last year (when the events described above took place) will argue the minority position, and the current chair of the committee will argue the majority position.

A battle of the chairs.

The above account simplifies things just a bit, including the passion some bring to these matters and the nuances of the competing views, but hopefully I have provided an overview of the goings-on in this particular area.

I expect to see a lively argument tomorrow.

...posted by ⊥ 12:30 PM ⊥ #

Second District: Resourceful

Add Wiktionary to the list of Internet-based authorities Florida courts have relied upon in their decisions. The Second District cited the ever-evolving online dictionary in this decision. A Florida first.

...posted by ⊥ 8:56 AM ⊥ #

Second District: Attorney-Client Privilege

If an insurance policy's terms require an insured to submit to an examination under oath, can the transcript of the examination be protected by the attorney-client privilege? What if the insured refuses to answer some questions to avoid self-incrimination and the proceeding is somewhat adversarial? Privileged, said the Second District in this interesting decision that advances Florida law where privilege and insurance meet.

...posted by ⊥ 8:53 AM ⊥ #

Second District: A Bit Bothered

The footnote on page two of this opinion gently criticizes a party for failing to file an answer brief.

The appellee actually initiated the appellate proceeding but failed to file an initial brief. That prompted the Second District to dismiss the appeal and convert the case's cross-appeal into the only appeal. The initial appellant, now appellee, then decided not to file an answer brief. That's failing to file two briefs in the same appellate proceeding.

The footnote was kind.

...posted by ⊥ 8:47 AM ⊥ #

Second District: Rules Suggestions

Members of the Criminal Procedure Rules Committee may wish to take note of the Second District's suggestion in this case that the committee consider whether the rules should be amended to address the requirements of the Interstate Agreement on Detainers Act.

...posted by ⊥ 8:45 AM ⊥ #

Monday, September 17, 2007

Certified Conflict: Impact Rule

Florida follows the so-called "impact rule" with respect to negligence claims. An exception to that rule set forth by the state supreme court can be triggered where a "close personal relationship" exists between a physically injured person and a plaintiff who wishes to recover for emotional injuries associated with the other person's physical injuries.

But what is a close personal relationship? Is it a formal legal relationship? Do step-parents and step-children count? The First District addressed these questions in this case and reversed a summary judgment in favor of the defendant. The court certified conflict with decisions from two other district courts of appeal that apparently required formal legal relationships to meet this exception to the impact rule.

By the way, I seem to recall that the state supreme court has been working for some time on at least one case that would seem to call for a soup-to-nuts examination of the impact rule and its vitality under Florida law. Whatever the court decides, I hope it begins its analysis with the duties Florida law places on all persons with respect to all other persons and when an act that does not physically injure another is a breach of such duties. In my view, many cases have inartfully focused the discussion on the damage element of negligence claims, rather than the duty and breach elements, leading to much confusion and a general difficulty applying reported decisions to new sets of facts.

...posted by ⊥ 8:40 AM ⊥ #

First District: Preservation of Error

In this decision, the First District rejected as unpreserved an argument that a dissolution judgment lacked sufficient findings to permit meaningful appellate review.

That decision speaks to an issue that arises from time to time in appellate practice: where a final judgment reflects an error that could be addressed for the first time only in a motion for rehearing, must an adversely affected party seek rehearing to preserve the error for appeal? Appellate fans, pay attention.

...posted by ⊥ 8:35 AM ⊥ #

First District: Final Judgments

Do you have a "final judgment of conviction" when the trial court has concluded an adjudication of your guilt or only when you have exhausted your appellate rights? Well, if you have been found guilty of murdering someone whose life insurance benefited you, then for purposes of the statute prohibiting you from collecting those benefits, a final trial court judgment qualifies as a "final judgment of conviction." The First District reached that conclusion in this case.

The decision seems to suggest that if the life insurance proceeds are distributed to someone else and the defendant is later acquitted, then the defendant can only try to obtain the money from whoever received it.

...posted by ⊥ 8:30 AM ⊥ #

First District: Equal Protection

Under Florida's workers' compensation statutes, an unrepresented claimant who reaches a washout settlement is entitled to a 20 percent additional payment if the negotiated payment is not paid within seven days of its due date. A represented claimant receives no such automatic increase.

In this case, the appellant (well represented, naturally) argued that scheme violates the constitutional right to equal protection. The First District disagreed. I found of interest the court's discussion of the standards applicable where an equal protection challenge is brought against a statute that impacts neither a suspect class nor a fundamental right:

Under this minimal level of scrutiny, the appellant bears the burden of demonstrating that the statutory distinction at issue in this case has no rational relationship to a legitimate state purpose. The appellees have no obligation to prove that the legislature’s assumptions about the benefits of the statutory distinction at issue would be realized, nor does such evidence have to be present in the record for the legislation to survive the challenge. Indeed, even if it appears that the legislature has made an improvident, ill-advised, or unnecessary decision, the law must be upheld if there is any state of facts that may reasonably be conceived to justify it. A determination of whether a rational basis exists is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.

In other words, the court can reject the challenge even if the opponent has presented no meaningful defense of the legislature's classifications.

...posted by ⊥ 8:25 AM ⊥ #

First District: Workers' Compensation

Workers' compensation fans and those interested in toxic torts may wish to check out the First District's decision in this case. The court reversed a judge of compensation claims's decision not to award benefits to a claimant who had suffered beryllium dust exposure but had not yet developed chronic beryllium disease. The claimant asserted a prolonged exposure theory, and the court determined that his immunological response to beryllium exposure -- the development of leukocytes that respond to beryllium -- and his resulting need for periodic monitoring give rise to an injury for purposes of a prolonged exposure claim.

...posted by ⊥ 8:22 AM ⊥ #

Second District: Outrageous Conduct

Those interested in the tort of intentional infliction of emotional distress may wish to check out the Second District's decision in this case. The court held the plaintiff met the rather high standards for stating an IIED cause of action.

...posted by ⊥ 8:20 AM ⊥ #

Second District: Mandamus

This decision from the Second District reminds us that court-appointed attorneys are public officials for purposes of the writ of mandamus.

...posted by ⊥ 8:18 AM ⊥ #

Back in Blog

I was out of town last week and, Monday aside, found myself unable to access the Internet with my laptop, leaving me unable to blog. With a very late arrival last night into what is now sunny St. Pete, I'm back.

...posted by ⊥ 8:14 AM ⊥ #

Monday, September 10, 2007

Chief Judge Browning: Minor Miranda Problem

Chief Judge Browning would like to see a change in how the law allows minors, by themselves, to waive their Miranda rights. As he explained in a concurrence in this case:

I think the law should be changed to provide that a minor may not waive Miranda rights unless the minor’s attorney, a parent, or a legal guardian consents to the waiver. The law should not sanction a situation, such as here, where a minor is questioned in the presence of his parent and denies committing the crime he was convicted of, but is later removed from the public school system, without either of his parents' knowledge, and is taken to the police station, where he purportedly waives his Miranda rights under questioning without the minor's parent's, attorney's, or legal guardian's consent and confesses to the crime. The law should not sanction such a waiver, for all of the reasons society limits a minor's right to contract, drive, drink, serve in the military, etc.

The court affirmed the judgment below without a written opinion, prompting the chief judge to conclude his concurrence by saying, "I concur with the majority opinion as a distasteful duty."

...posted by ⊥ 9:59 AM ⊥ #

Fourth District: Custody and Mental Health Records

If one of two divorcing parents is a recovering alcoholic, and their litigation fight includes a custody battle, can the other spouse obtain the recovering alcoholic's mental health records, on the theory the decision to pursue custody places mental health in issue?

No, said the Fourth District in this decision.

...posted by ⊥ 9:52 AM ⊥ #

Fourth District: Judicial Disqualification

Should a trial judge grant a motion a recuse that alleges opposing counsel represents the trial judge's girlfriend in another matter?

The Fourth District has the answer here.

...posted by ⊥ 9:50 AM ⊥ #

First District: Conversion

A funny thing about intentional torts: you can be found liable for them as a matter of law. It happened in this decision, where the First District held no competent substantial evidence supported a finding the defendant did not commit a conversion of the plaintiff's property.

...posted by ⊥ 9:48 AM ⊥ #

First District: Final Administrative Orders

When is an administrative order final? Generally, it is when the order is filed with the agency's clerk, as occurred in this decision from the First District.

...posted by ⊥ 9:44 AM ⊥ #

First District: Temporary Injunctions

Temporary injunctions require some detail. In this case, the First District reversed a temporary injunction, holding such an order "must contain more than conclusory legal aphorisms if it is to be subject to meaningful appellate review."

...posted by ⊥ 9:40 AM ⊥ #

First District: 40 To Life

Florida's habitual felony offender statute allows trial courts to deviate upward, but not downward, when selecting a sentence. The HFO who received 40 years in this case from the First District, when an HFO sentence for him could only have been life, had his sentence reversed and the HFO adjudication stricken.

...posted by ⊥ 9:38 AM ⊥ #

Fourth District: Child Support

In this case, the Fourth District addressed a trial court's review of recommended orders by child support enforcement hearing officers. The appellant asserted that the trial court must listen to the electronic recording of the entire proceeding before the hearing officer. The district court disagreed, holding the person seeking review should provide a transcript in accordance with rule 12.491.

...posted by ⊥ 9:35 AM ⊥ #

Tuesday, September 04, 2007

Columnist: Anti-PCA Pressure

I have seen answer briefs signal to a district court of appeal that a PCA -- a per curiam affirmance without a written opinion -- is in order.

I do not, however, recall seeing a newspaper columnist lobby a district court against a PCA.

Until today.

Today's St. Pete Times contains this column by Howard Troxler on a recent case from Pinellas County that argues Florida's property tax system violates the federal constitution. The trial court dismissed the complaint and the plaintiff has now appealed to the Second District.

Troxler does not seem to expect a reversal, but he finds the whole subject so entertaining he hopes the court does not issue a PCA. If it does, he says, it is a court of, well, you can read it yourself.

...posted by ⊥ 9:17 AM ⊥ #

Fifth District: Preemption Conflict

Preemption fans may be interested in this decision from the Fifth District. The court held that chapter 791 of the Florida Statutes does not wholly preempt the field of fireworks and preclude local regulation.

The court also determined that certain Brevard County fireworks ordinances conflicted with state law were thus invalid, including a provision that required those selling fireworks to maintain certain minimal levels of insurance. The court acknowledged that another district recently held a similar Pinellas County ordinance constitutional, and the Fifth District expressly disagreed with that other court's reasoning. No conflict was certified.

...posted by ⊥ 8:57 AM ⊥ #

Fifth District: Injunctions

In this case, the Fifth District clarified how it reviews preliminary injunction orders. The court acknowledged that its prior case law could be read to say that in the absence of a motion to dissolve a preliminary injunction, the appellate court would not address its underlying factual sufficiency. The court explained that approach applies only in the context of ex parte injunctions, not injunctions entered after notice and a hearing.

The decision, authored by Judge Sawaya, included the following footnote:

As the author of Yardley, I confess the error, which is mine alone. My error, which resulted from not taking the time to more carefully analyze the pertinent case law, is reminiscent of the mistake made by the wayward traveler that caused him to fall off the cliff while trying to make his way to the bottom of the ravine—although he landed on the very spot of his intended destination, he lamented the fact that he did not more closely read the detour sign that would have directed him to safer passage. Because the result and legal analysis in Yardley are correct, it has been suggested that my error is analogous to instances where the tipsy coachman rule is applied. However, I would prefer to avoid any comparison to a buggy that arrived at its intended destination because it was pulled by a horse that had more sense than the drunken coachman. Although some may consider the analogy quite apt, I would prefer the former over the latter for the obvious reasons.

Certainly noteworthy.

...posted by ⊥ 8:53 AM ⊥ #

Fifth District: Workers' Compensation

Is an employer that raises a pre-existing medical condition defense to a worker's compensation claim estopped from asserting worker's compensation immunity in a subsequent tort action? The answer was no in this decision from the Fifth District, where the claimant dismissed the workers' compensation claim after an initial denial of benefits but before the claim was finally adjudicated. The court explained that employees should not be permitted to "jump the gun" and file suit in circuit court when an employer raises a pre-existing condition defense.

...posted by ⊥ 8:47 AM ⊥ #

Fifth District: Fraud on the Court

The standard for dismissing a case based on fraud in the course of litigation is a high one, as this decision from the Fifth District shows.

Reversing a dismissal order, the district court recognized an inconsistency between the plaintiff's discovery responses and the later-documented actual facts. Nonetheless, the court held that the responses did not clearly rise to the level of fraud on the court and that the inconsistencies could be raised during trial.

The district court concluded, "This is a case where allegations of inconsistency, non-disclosure, even falseness, can be brought to the jury's attention through cross-examination or impeachment."

...posted by ⊥ 8:43 AM ⊥ #

Fifth District: Alimony

Family law fans may be interested in this decision from the