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Sunday, August 31, 2003
 
Catch Me If You Can. Today's St. Pete Times has an article that's fascinating on multiple levels. The story is about how several Florida universities are using Berkeley-based Turnitin.com to screen students' papers for possible plagierism. Personally, I think using modern tools to detect students' improper use of equally modern tools is not only appropriate but academically honest. But the story raises an interesting twist. Apparently, the company adds copies of papers submitted for review to its database. No doubt that practice improves the database's utility for detecting potential plagierism, but does it raise legitimate copyright or privacy concerns?

 
Nice To Meet You! Feddie, of Southern Appeal fame, has just taken off his virtual mask and revealed his identity as Stephen Louis A. Dillard. You can read his rather revealing post here.

 
Abstract Growth. Abstract Appeal is just over a month old, and the post content has reached the point where the site loads rather slow for those without very-high-speed connections. To correct the loading problem, the site is now displaying posts from only the past 15 days. All posts, however, are archived by month, and links to the monthly archive pages are now available near the top of the right column.

This seems to be a good time to say a sincere thanks to the many people who've started reading Abstract Appeal. Knowing you're out there makes this site incredibly worthwhile.

 
Seen Today. Heading down I-275 southbound earlier today, crossing the Howard-Frankland Bridge to St. Pete, I saw a car with a Florida marine turtle specialty tag and the plate id "DUI LAW." Try as I might, I can't think of a good plate for appellate law. Or Abstract Appeal. Ideas welcome.



Saturday, August 30, 2003
 
More News. The Florida Times-Union has this story about how the Missouri Attorney General is suing two Florida businesses that use fax-blasts to send unsolicited ads by fax across the country, including (apparently) Missouri. Note that the defendants in the suit are not the advertising companies sending the faxes but the businesses being promoted by them… Finally, this press release from Florida's Attorney General explains how the AG has asked the U.S. Department of Energy to investigate the recent hikes in the price of gasoline.

 
In the News. This story from this morning's Tallahassee Democrat discusses House Speaker Johnnie Byrd's "guiding principles" for his plan to ask Florida voters to modify the class-size constitutional amendment… The Orlando Sentinel has this story about the Florida Medical Association's internal discussions over whether to advance amendments to the Florida Consitution that would cap noneconomic damages for medical malpractice lawsuits and limit contingency fees for attorneys… And the Tampa Tribune has this story on efforts to roll back the blue laws in unincorporated Hillsborough County.



Friday, August 29, 2003
 
In the News. This morning's St. Pete Times has this story on how the Florida NAACP is calling on state officials to stop using the FCAT in graduation and retention decisions… The Orlando Sentinel has this story on House Speaker Johnnie Byrd's plan to ask Florida voters to modify the class-size constitutional amendment they approved last year… And the Miami Herald has this story on the state legislator who's advancing a proposed constitutional amendment that would allow law enforcement officers to pull over motorists for not wearing seat belts.

 
Thanks! The Williams Law Firm, out of Newport Beach, California, has started a web log entitled May It Please The Court, which adds a daily dose of perspective to noteworthy legal events. The site is very nice, and it features A Criminal Waste Of Space, the monthly column of California's Justice William T. Bedsworth. Justice Bedsworth is quite entertaining. And to top it all off, the blog's external links include Abstract Appeal.

 
Says Me. It's Christmas time. The town hall displays various holiday cards sent in by well-wishers. But one card is not like the other cards. It's a picture taken by one town resident of another's backyard. The photo is framed in a holiday frame and bears the caption: "Our View of the Hillbilly Hellhole - Merry Christmas - Happy Hannakah - Happy New Year - Welcome 1999." The photo remains on display for a couple of days before complaints by the neighboring backyard's owners prompt the mayor to remove the picture. Neighbors then sue the town, its clerk, and its mayor for defamation and invasion of privacy. Neighbors win -- $50,000. Then comes the appeal, and in this decision, the Fourth District reversed the award entirely. The court based its decision on the First Amendment and concluded, as a matter of law, that the photograph and its caption represented pure, and therefore wholly protected, opinion.



Thursday, August 28, 2003
 
Questions, questions. A parent and an eleven-year-old child are on safari when, one night, wild hyenas carry off and kill the child. The parent signed releases and arbitration agreements on behalf of herself and the child, but nonetheless the other parent sues the travel company for negligence on behalf of the child's estate. Considering the question of whether a parent can bind a child to an arbitration agreement, the Fourth District in this case held that, at least with respect to "commercial travel opportunities," the answer is no. The court also certified the following to the Supreme Court of Florida as a question of great public importance:

WHETHER A PARENT'S AGREEMENT IN A COMMERCIAL TRAVEL CONTRACT TO BINDING ARBITRATION ON BEHALF OF A MINOR CHILD WITH RESPECT TO PROSPECTIVE TORT CLAIMS ARISING IN THE COURSE OF SUCH TRAVEL IS ENFORCEABLE AS TO THE MINOR.

 
The Company You Keep. This one should be on a law school entrance exam. Why can't a court make one of the conditions of a defendant's probation that the defendant not associate with "persons who use illegal drugs"?

(a) It's not fair to defendants whose associates are illegal drug users
(b) It's not fair to illegal drug users
(c) It's too vague and can be unintentionally violated
(d) It's too difficult to catch the defendant and the illegal drug users at the same time

For the answer, see this case from the Second District.

 
Third District. Can you sue the cruise line for a ship's doctor's negligence? According to this decision from the Third District, you can. The case contains a very interesting policy discussion about the old maritime view that "a ship is not a floating hospital" and the more modern view that shipowners are as liable for a ship's doctor's ability to practice medicine as they are for a ship's captain's ability to sail the ship.

Now, maybe this is reading too much into things, but perhaps footnote 4 of the court's opinion provides a hint about something else that may have influenced the court's decision. It seems serving ships' doctors with lawsuits is a bit of a challenge -- the court called it "a game of personal jurisdiction and service of process roulette," and the court commented that the plaintiffs in the case had been unsuccessful in serving their allegedly negligent doc for over two years.



Wednesday, August 27, 2003
 
Thanks! Many thanks go out to a few blogs that have linked lately to Abstract Appeal. First, props to Fedlawyerguy, a blog targeting lawyers employed by the federal government, though the link is listed under my name and not Abstract Appeal. (That's okay, I'm told they're equally easy to remember…) Also, Jeremy Kissel has started a blog entitled Politics & Law. My guess is that Florida will be providing Jeremy with some good material in the next sixteen months. Wait -- it already has. Finally, lots of (belated) thanks to Mike O'Sullivan and his very interesting Corp Law Blog for the link.

 
Terry Schiavo News. Yesterday, Governor Bush sent a letter to the judge presiding over the Schiavo case, Judge Greer, asking the court to delay setting a date to remove Terry Schiavo's feeding tube, appoint a new guardian for her, and consider any new evidence of her wishes. In response, Judge Greer has commented that he believes he's operating under a mandate from the Second District -- specifically, this decision -- and that he's not likely to delay the tube's removal. You can read about the letter and Judge Greer's response in today's St. Pete Times, the Orlando Sentinel, the Miami Herald, the Sun-Sentinel, and the Tallahassee Democrat.



Tuesday, August 26, 2003
 
First District. Curious about awards of fees under s. 57.111 -- Florida's Equal Access to Justice Act? See this decision from the First District.

 
First District. This case may be of interest to appellate lawyers -- and perhaps also trial lawyers who wonder why it's a good idea to have an appellate lawyer around during a trial. The First District discussed the standard of review when reviewing orders granting new trials, preservation issues relating to jury selection, the standard for trial courts to apply when conducting post-trial reviews of evidentiary decisions, the standards for imposing sanctions for spoliation of evidence, and post-trial review of unobjected-to closing argument.

 
Abstract Pause. Whew. The practice of law is rather consuming on a day-to-day basis, and occasionally the stars of work align in a way that turns even the very-off-hour moments usually reserved for sleeping, reading, blogging, etc. into prime work time. The last few days have just proven to be such an occasion. Fortunately for Abstract Appeal, things have been a bit slow on the legal front, but there are a couple of items to post.



Saturday, August 23, 2003
 
Schiavo case. The Supreme Court of Florida has dismissed an appeal by Terry Schiavo's parents. This story today from the St. Pete Times explains that Schiavo has reportedly been in a "persistent vegetative state" for 13 years and that her parents have been fighting to prevent her husband from removing her feeding tube.

 
Say What? To end this case law wrap-up on a light note, from this decision by the Eleventh Circuit, here's another bizarre tale of a defendant's decision to serve the interests of law enforcement:

Officer Carter placed Chanthasouxat in the patrol car and informed him that he would receive a citation for failure to have an inside rear-view mirror. Officer Carter then asked Chanthasouxat if he was carrying drugs and if the police could search the van. The patrol car was equipped with a video recorder, and the tape demonstrates that Officer Carter did not display his weapon or use any force or threats when he asked Chanthasouxat if he could search the van. Chanthasouxat agreed to the search. Officer Carter then asked Xayasane to join Chanthasouxat in the patrol car and called for back-up. After additional officers arrived, the police searched the van and found approximately fifteen kilograms of cocaine. While Chanthasouxat and Xayasane were in the patrol car, the patrol car video camera recorded their discussion of how they would reconcile their stories. Their conversation also demonstrated that they knew they were carrying cocaine.

 
Eleventh Circuit. Those who can't get enough case law on the Eleventh Amendment may enjoy this decision yesterday from the Eleventh Circuit, which held that the federal courts have no jurisdiction to hear a number of claims against the University of South Florida.

 
Fax Facts. Does Florida law recognize a private right of action and allow citizens to sue where a person violates the unsolicited facsimile advertisement provisions of the federal Telephone Consumer Protection Act? Despite the lack of any enabling-type legislation in Florida, the Second District answered this question in the affirmative, placing Florida in the national majority on this sort of question. Chief Judge Altenbernd dissented.

 
Hey, Legislature! Judge Villanti of the Second District would like you to consider whether s. 627.727(1) overly constrains commercial insureds by requiring the purchase of undesirable uninsured motorist coverage. See his concurrence in this case.

 
Second District. If you are interested in the duties of electric utilities with respect to their power lines, or maybe you just live or play near a power line and wonder about the power company's responsibilities, check out this decision yesterday from the Second District, in which Judge Canady expounded upon an electric utility's common law duties.

 
Questions, questions. Yesterday, two district courts certified questions to the Supreme Court of Florida as questions of great public importance.

First, the Fifth District held in this case that the procedure set forth in Anders v. California (which governs appeals by indigent persons where appointed counsel finds the appeal meritless) applies to appeals from proceedings under Florida's Jimmy Ryce Act. The court also certified this question:

ARE THE ANDERS PROCEDURES APPLICABLE TO CRIMINAL CASES TO BE FOLLOWED IN CASES INVOLVING APPEALS FROM JIMMY RYCE ACT COMMITMENT ORDERS?
Second, in this case, the Second District certified this question:

DOES THE MARKETABLE RECORD TITLE TO REAL PROPERTY ACT, CHAPTER 712, FLORIDA STATUTES, OPERATE TO EXTINGUISH AN OTHERWISE VALID CLAIM OF A STATUTORY WAY OF NECESSITY WHEN SUCH CLAIM WAS NOT TIMELY ASSERTED UNDER THE PROVISIONS OF THAT ACT?
The district court's answer to this question was yes, based on what the court understood to be facially controlling but potentially distinguishable case law. Hence, the certification.

 
Fifth District. Speaking of a good debate, this decision from the Fifth District works through a host of choice-of-law, procedural, and equitable issues concerning the situation where a wife seeks a divorce in Florida and her husband successfully avoids alimony by persuading the court that the marriage was a nullity because the wife's divorce from her prior husband did not meet the requirements for divorce under Florida law. Judge Griffin wrote a lengthy dissent.

 
Fifth District. If your work involves criminal prosecutions, or you enjoy a good debate over the proper use of the writ of certiorari, you may be interested in this decision from the Fifth District, which granted a cert petition and quashed an order excluding a nurse's testimony in a sexual abuse case. Judge Torpy dissented.

 
Here's that Bevy of Opinions. In the weeks Abstract Appeal has been following Florida law and the Eleventh Circuit, noteworthy decisions have tended to trickle out. Yesterday stood in strong constrast, as the courts issued a number of interesting or significant decisions. They'll be described in the posts that follow.



Friday, August 22, 2003
 
Constitutional Cafeteria. Today's Orlando Sentinel has this story about a new proposed amendment to the Florida Constitution that would require Florida legislators to spend four days a year involved with Florida's schools -- one day in an elementary school, one day in a middle school, one day in a high school, and one day on school buses.

 
In the News. The Orlando Sentinel has this follow-up story on yesterday's oral argument in the fetal guardianship appeal pending before the Fifth District… The Florida Times-Union has this story about former Florida Supreme Court Justice Major Harding and the Jacksonville building that now bears his name… And today's Sun-Sentinel has this story about a push by Republican legislators for a state-wide vote to repeal the class-size constitutional amendment approved by Florida voters in November 2002.

 
Eleventh Circuit. Aviation attorneys should note this detailed decision yesterday from the Eleventh Circuit that an airline employee's claim under Florida's Whistleblower's Act was not preempted by the federal Airline Deregulation Act… Also, in this decision, the court held that while Georgia law made a non-compete agreement unenforceable in Georgia, an injunction against enforcement of the agreement should not be nationwide but limited to Georgia.



Thursday, August 21, 2003
 
Fifth District To Hear Guardianship Appeal. Oral argument will be held today at the Fifth District in an expedited appeal from an order denying Jennifer Wixtrom's request to become guardian for the fetus of a retarded woman who became pregnant after being raped at an Orlando-area group home, as reported in this story today from the Orlando Sentinel. I suspect the news outlets will devote much attention to the controversy over whether a guardian can be appointed for an unborn child, but I wonder how much attention will be paid to why Wixtrom should be the guardian and what gives her the ability to make her request.

 
A Bad Week. What's wrong with this picture? James Douglas Anderson is arrested by the Pinellas County Sheriff's Office, based on a warrant issued 33 years ago in what would have then been Dade County for a man named James Daniels Anderson, and spends six days in a maximum security jail before the local Public Defender's Office (which was not representing him) prompts authorities to check the man's fingerprints, which reveals the misidentification. That's the scoop in this story today from the St. Pete Times.



Wednesday, August 20, 2003
 
Say What? In this decision today from the Fourth District, we find another bizarre tale of a defendant's spontaneous confession:
Detective Sergeant John Leonard of the Coconut Creek Police Department lawfully arrested defendant, Robert Sills, for certain traffic offenses committed within the municipal limits of Coconut Creek. After being placed under arrest and advised as to his rights, Sills volunteered that although the vehicle contained no narcotics, he had some at his house and would be willing to accompany the officers to his house in the City of Lauderdale Lakes to recover them. Detective Leonard again advised Sills of his constitutional rights. Sills, after responding that he understood his rights and waived them, told Leonard that he had a large number of oxycodone pills at his house, that he intended selling them for a profit and that he had been on the way to retrieve the pills when he was stopped. Sills also indicated he was capable of obtaining large amounts of oxycodone and heroin from Miami and was interested in becoming a police informant.
Which begs the question: what were the traffic offenses?

 
Honor Thy Contracts. The AP reports tonight in this story that a jury has awarded the Church of Scientology $4,500 from an opposing counsel in another lawsuit who breached an agreement not to add parties. Note that the story states that the Church of Scientology's attorney "asked the jury to award heavy punitive damages" for the opposing counsel's conduct. Something seems odd there -- punitive damages aren't available in Florida for a mere breach of contract.

 
Third District. Is it me, or does the Third District seem to pay the most attention to, and give the most ardent rebukes for, attorney conduct problems? This case decided today fits this observation perfectly, as Chief Judge Schwartz leaves no doubt about the court's displeasure over how an assistant state attorney handled a criminal prosecution.

Update: The AP has picked up on one of the prosecutor's improprieties and is running this story entitled, "Court Overturns Miami Murder Conviction Based On Slur."

 
Success on Safari! After a few tries at rewriting portions of the xhtml code for this page, Ernie-the-Mac-Using-Attorney tells me that I've hit upon something that makes this blog display correctly on the Apple browser Safari. This turn of events can only go to show one thing -- this must not be all that hard, since I'm a lawyer, not a web guy. Many, many thanks to Ernie for his assistance. And to all the Safari surfers out there, welcome to Abstract Appeal!

 
In the News… Florida's Board of Education is now recommending that the class-size constitutional amendment be repealed, according to this story today from the Orlando Sentinel… The Sun-Sentinel reports in this story that a Broward County circuit court has certified a class action involving alleged burial plot improprieties… The Palm Beach Post is reporting here that Palm Beach County officials have approved a ban on tethering dogs outside between 10 a.m. and 5 p.m. year-round… And last, but by no means least, the Tampa Tribune reports here that after two years, zero arrests, and zero positive identifications, the Tampa Police Department is eliminating the controversial facial-recognition program used to examine images obtained from cameras on Ybor City's streets; the cameras stay, though.

 
Quiet… The past two days have brought no opinions from any of the Florida appellate courts and no notable decisions from the Eleventh Circuit. (I suspect that means we'll be getting a bevy of cases later today.) Last night I took advantage of the quiet and updated the right column a bit, shifting and adding a number of blogs and blawgs. I tried to troubleshoot whatever is making the page render funny in Safari, but Ernie-the-Mac-Using-Attorney tells me there's still a problem when using that browser. I'll keep trying to fix it, and I'll keep assuming it's my code, though this page seems to display fine in various versions of IE and Netscape. If you too can read this but are having problems, please send me an email. And thanks, Ernie, for your help.



Tuesday, August 19, 2003
 
They Said It First. The Tampa Tribune is running this story today off the AP wire entitled, "Court Tosses Suit Against Big Tobacco." The story refers to a decision I blogged here last week with the title "A Victory for 'Big Tobacco'." How Appealing readers may also recall that Howard Bashman had this post entitled "Eleventh Circuit affirms dismissal of RICO action brought by foreign nations against 'Big Tobacco' alleging schemes to avoid those sovereigns' tax laws." No doubt similarly titled stories have run across the country. Interestingly, the source of all of these "Big Tobacco" references is the court's decision itself -- the court used that term throughout its opinion as shorthand for the tobacco company defendants. I wonder if the court considered how its chosen abbreviation would affect reports of the decision.

 
Eleventh Circuit. I've almost let slip without mention here a very interesting decision issued Friday by the Eleventh Circuit. In another of a national series of decisions involving DuPont's Benlate fungicide and allegations of misconduct in earlier litigation over the product, the court in this case affirmed the dismissal of RICO and common law fraud claims brought by plaintiffs who asserted the company misled them to settle their products liability claims years earlier. The decision contains an interesting choice-of-law discussion with regard to releases and fascinating discussions regarding Florida's "litigation privilege" and the concept of reasonable reliance in adversarial litigation. The court held that, as a matter of law, the litigation privilege barred the fraud claim, the plaintiffs could not have reasonably relied upon their adversary's representations, and the requisite predicate acts for a RICO claim were not pled. Give it a read!



Monday, August 18, 2003
 
Merci, Ernie! Special thanks to hall-of-famer blogger Ernie the Attorney, who today in this post had some kind words about Abstract Appeal and my presumed knowledge of fine dining in NOLA. Ernie also mentions that this site doesn't render correctly with Safari. Sorry, Mac users. I had no idea. So the work in progress list grows a bit, Ernie and Larry: XML/RSS, Safari. I'll get there. I just need to hurry…

 
Really? According to this story from the AP, Ida Hemingway is claiming that after she and Gregory Hemingway divorced and after he had a sex change and came to be known as Gloria, Ida and Gloria married again. A Miami probate court has reportedly ordered briefing on the "'cutting-edge issue' of same-sex marriage."

 
This Just In: It's Draconian. The AP has this story today on Florida's much-hyped class size amendment. The story quotes the state's Education Commissioner as saying that the constitutional amendment's impact will be "draconian" and that the provision is "the hurricane that will swamp the boat." No surprise there. If Florida's voters knew anything when they approved that amendment last year, it was that the measure would cost a bundle. So why say this now? Apparently budget numbers are coming in: $1 billion in costs for the first two years.



Sunday, August 17, 2003
 
Nuptials! The ranks of Florida's appellate lawyers grew a bit more entwined yesterday, as a good friend and his best friend tied the knot with a beautiful ceremony in St. Pete. Congratulations, Joe and Annette!



Saturday, August 16, 2003
 
Investiture. Yesterday, I had the good fortune to attend the investiture of the Second District's newest judge, the Honorable Douglas A. Wallace. The court welcomed him in splendid fashion. You can read Judge Wallace's bio here.

 
Never Say Never. Do motions for rehearing ever work? I mean really work -- where the court changes its mind entirely? This decision yesterday from the Fifth District shows they can. (The original decision can be found here.)

 
Questions, questions. Another DCA also certified a question to the Supreme Court of Florida yesterday. This one concerns arbitration provisions found in contracts used by payday loan lenders. In this case, the Fifth District certified the following question:

Is an arbitration agreement enforceable when it is included as a requirement of a payment instrument sale executed pursuant to Florida Statute Chapter 560, Part II, and the arbitration is to be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16?
The district court held the agreement enforceable, agreeing with a decision issued last year by the Fourth District on the same point and which is currently under review by the Supreme Court.

 
Jimmy Ryce Act. This decision yesterday from the Second District addressed a series of issues relating to Florida's Jimmy Ryce Act, which governs the civil commitment of sexual predators. Among other things, the court approved the State's use at trial of numerous tests or tools designed to help predict future sexual dangerousness and held constitutional the statute permitting use of hearsay in sexual predator commitment proceedings. The court also certified the following to the Supreme Court of Florida as a question of great public importance:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?



Friday, August 15, 2003
 
A Victory For "Big Tobacco." It's not every day that a decision relies on multiple quotations by Judge Learned Hand, Lord Mansfield, and Justice Scalia. But yesterday was such a day, and this was such a decision. The case involved the claims of three nations -- Honduras, Ecuador, and Belize -- that numerous tobacco companies violated RICO by scheming to direct tobacco products into those countries while avoiding their tax laws. The Eleventh Circuit upheld the claims' dismissal based upon the revenue rule, a longstanding common law rule (who says there's no federal common law?) that prevents courts from one sovereign from ruling on tax claims relating to another sovereign. The court determined that the claims in the case were ultimately nothing more than efforts by these nations to collect taxes from the defendants, whom the court referred to as "Big Tobacco." The decision is a very interesting read, and it's highly recommended.

 
Eleventh Circuit. If you are interested in qualified immunity for public officials, or in the particular circumstances surrounding claims that a Jacksonville Fire Chief refused to create new positions because of the race of the persons who would have filled them, you might want to check out this decision yesterday from the Eleventh Circuit, which held that the fire chief was entitled to qualified immunity because the alleged discriminatory act was not clearly established as unconstitutional when it was committed… In this other decision, the court affirmed a summary judgment declaring that the City of Miami Beach's towing ordinances were sufficiently related to safety to avoid preemption under the Interstate Commerce Commission Termination Act.



Thursday, August 14, 2003
 
Judicial Appointment. Governor Bush has announced the appointment of Frank A. Shepherd to Florida's Third District Court of Appeal. Judge Shepherd will fill the vacancy on the court created by the death of Judge James Jorgenson. Read the Governor's press release here.

 
In the News. We have a new law governing medical malpractice. Read about it in pretty much any Florida paper, such as the Tampa Tribune, the St. Pete Times, the Orlando Sentinel, and the Tallahassee Democrat… Also in the news, the Tampa Tribune has this story on new disclosure requirements the State is imposing on schools participating in Florida's Corporate Tax Credit Scholarship Program, requirements prompted by the discovery that some of the program's money has gone to an Islamic school co-founded by a professor accused of supporting terrorism… Finally, the Orlando Sentinel has this story about the debate over who should pay to provide real-time court reporting to a deaf assistant public defender for Florida's Ninth Judicial Circuit.

 
Eleventh Circuit. If you're thinking of appealing a nonfinal order under the injunction analogy or collateral order doctrine, you may wish to check out this ex parte seizure of property case decided yesterday by the Eleventh Circuit. Over a dissent by Judge Barkett, the court dismissed the appeal after concluding that the challenged order would not be effectively unreviewable following final judgment.



Wednesday, August 13, 2003
 
Fourth District. If a school authorizes a field trip, and a student driving herself on the trip gets into an accident, can the school board be liable for the driver's negligence? The Fourth District said no today in this case.

 
Nice to See… a judge express some humility regarding views expressed at oral argument that ultimately proved legally incorrect. In this case, Chief Judge Schwartz offered the following special concurrence:

I entirely agree with affirmance, notwithstanding that my failure to adhere to the rule that cases should be decided on the basis they were litigated below and argued on appeal led to the vehement expression of views at oral argument which, it was soon revealed, were contrary to the law of Florida. No harm done except to my (heretofore monumental) legal ego.

 
Third District. In this case, the Third District confirmed that interest is not recoverable in a tort action for the period between the return of a jury's verdict and the entry of judgment, even if motions filed by the defendant cause that period to be extended.

 
Second District. Just when you thought it couldn't happen, this decision today from the Second District proves that even when a jury finds you 90% responsible for an accident, an appellate court may be willing to agree that you did nothing wrong and should have received a directed verdict. Of course, it probably doesn't hurt if you're the injured plaintiff, the defendant is an electric utility, and your supposed misfeasance concerns opening your outside circuit breaker box.

 
Where's Waldo? You know the answer to this if you're one of the 545 people a month who received tickets in this town (just north of Gainesville, population 7400) during 2002. The AP has this story on how AAA has put up a billboard outside Waldo, Florida, and another outside Lawtey, Florida, warning motorists that the town ahead is a speed trap. The story quotes one woman who says her mother got a ticket in Waldo for going too slow.

 
Eleventh Circuit. Attorneys bring case on behalf of accident victims who, it turns out, weren't accident victims at all. Trial court imposes sanctions and requires the attorneys to pay the other side's attorney's fees. Sounds simple, but there's more. The accident was an airplane crash that in fact took place in Ecuador, though the clients were not injured in the crash. The cases were sent to the Florida lawyers, and initially investigated, by licensed counsel in Ecuador. The clients spoke no English. The doctored medical records were for the most part in Spanish, the attorneys had only photocopies of the records, and the doctoring was not inescapably obvious on the copies.

On these facts, and others, the Eleventh Circuit yesterday in this case reversed a trial court's entry of sanctions under both 28 U.S.C. § 1927 and Florida Statutes § 57.105 (1997). The decision offers an interesting discussion of each statute.

Also of interest to appellate attorneys may be footnote 4, the court's note on supplementing the record on appeal with materials that were not before the trial court. The circuit court allowed the record to be supplemented in this case.

 
First District. The First District was the only District Court of Appeal to release opinions yesterday. Among the offerings were this criminal case, which may be of interest to those who wonder whether detailed curative instructions that explain why the jury should disregard something it just heard can cure the improper introduction of evidence…

In this case, the court found that a trial court erred in adding (by additur) nearly $21,000 to a jury verdict of about $5,000; the court also explained the standards for determining whether a jury reached an inconsistent verdict and that the review of a verdict's consistency is de novo…

And in this case, the appellants tried to appeal an order that was admittedly not a final judgment and did not meet the requirements for interlocutory appeal but did contain an award of money and the traditional language "for which sum let execution issue." The appellate court dismissed the appeal, holding the judgment was a nonfinal, nonappealable order. Though the court did not expressly say that execution could not issue, one might suspect the appellants are not unhappy with this result.



Tuesday, August 12, 2003
 
We Can't Recall. As California edges by Florida in the category of State Most Likely To Have Cameras At The Voting Booths, Bill Cotterell, of the Tallahassee Democrat, has this column today on Florida citizens' ability to recall elected officials. He explains that Florida voters have only a limited ability to recall city and charter county officials and no ability to recall state legislators or cabinet officials. Whew.

 
Eleventh Circuit. The AP has this story today on yesterday's Eleventh Circuit decision affirming the dismissal of a family's access to courts claim. The decision is blogged a few posts below this one, here.

 
In the News. Today's Bradenton Herald has this story on how no charges will be filed in connection with the June death of a Bradenton woman at a "Toughman" competition, as apparently no laws were violated. The story explains that the woman's family and others are trying to change the laws governing such events… The Sun-Sentinel has this story about counties paying mediators and, in particular, about three Palm Beach-area volunteer mediators who asked for a salary and got fired… The Miami Herald has this story on "deadwood" on the voter rolls in Broward and Miami-Dade counties… Finally, the St. Pete Times has this story of a Sarasota woman who became a human shield in Iraq and is now facing at least $10,000 in fines from the U.S. Government, and possibly prison time.

 
Google Me! Feddie over at Southern Appeal had this post the other day, where he observed that his blog turned up as hit #1 in a Google search for his blog's name. Naturally, Feddie's post left me inclined to try my luck with Abstract Appeal. You can guess the result, or you can just look here to see for sure.



Monday, August 11, 2003
 
Eleventh Circuit. Earlier today, the Eleventh Circuit issued two noteworthy decisions. Those who can't get enough case law examining whether statutes provide private rights of action will be captivated by the decision in this case, which determined that both § 7 of the Privacy Act and § 1971 of the Voting Rights Act provide private rights of action. Also, in this case, the court affirmed a trial court's decision that the relatives of a 1964 murder victim failed to state a claim that the former Duval County Sheriff's Office deprived them of the right of access to courts.

 
You've Got Deadwood. According to this story from today's Miami Herald, Florida is behind on implementing the federal Help America Vote Act, lots of Florida counties have "suspiciously high" voter rolls, and one Florida county can, uh, boast that 90 percent of its adults are registered to vote. The story concludes with some amusing stats from other parts of the country.

 
Password Blogs. Today's Tallahassee Democrat has this story about some bloggers who decided they prefer to lock their blogs with passwords, for privacy concerns. No such concerns with Abstract Appeal. The subjects blogged here are nothing if not entirely public.

 
Put Me In, Coach - I've Got An Injunction. This column by Mary Jo Melone in yesterday's St. Pete Times tells the story of a Tampa-area 12-year-old baseball player whose parents obtained an injunction to ensure the kid could play when other parents questioned his eligibility. Irreparable harm, indeed.

Follow-up: Today's Tampa Tribune has this detailed story on this subject.



Saturday, August 09, 2003
 
Free, Take One. The story of The Gay Guardian and the Vidalia (Georgia) Public Library's decision not to include the paper on the library lobby's "free for the public" table has reached the Eleventh Circuit, which heard oral arguments yesterday in the dispute between the paper and the library. Read about it here in today's Florida Times-Union.

On a sidenote, the story ends with the line, "The court has until the end of the year to issue a ruling." I wonder why -- the court's rules say nothing about time limits for decisions.

 
It's Down To A Formality. Yes, we have a compromise agreement among Governor Bush and leaders of Florida's House and Senate on medical malpractice reform. A special session to pass a law reflecting the agreement will begin Tuesday, and you can read about it everywhere, such as in the St. Pete Times, the Tampa Tribune, the Miami Herald, and the Sun-Sentinel.

Notice that the St. Pete Times story mentioned above contains this passage quoting a legislator opposed to the reform:
"This legislation delivers relief to the insurance industry without asking it to make sacrifices such as those being required of patients, attorneys and physicians," said Senate Democratic Leader Ron Klein, D-Boca Raton.
Yep. That's sacrifices required of attorneys.

 
Hey, Legislature! In this decision yesterday, the Second District revisited the common law requirement that a prenuptial agreement does not waive the right to alimony or support unless the waiver is unambiguously expressed in the agreement. In a separate concurrence, Chief Judge Altenbernd explored the need for legislation governing prenuptial agreements, and he offered some views on when use of those agreements might be appropriate.

 
Preservation Pitfalls. The lawyers among us know that an appellate court will generally not consider an argument on appeal unless that argument was properly preserved in the trial court. Appellate lawyers will tell you that the preservation process can be a bit tricky. Take this case from the Fifth District, where the court considered a criminal defendant's claim that the trial court erred in excluding a statement as hearsay. The appellate court agreed that the statement fit an exception to the hearsay exclusion rule and that the statement supported the defense's theory, but the court (well, a majority, over a dissent) found the issue was not preserved for appeal. Why? Because the defense attempted to introduce this statement during the prosecution's case, when the statement's relevance was not apparent to the trial court, and the defense did not attempt to introduce the statement during the defense's case.

 
Second District. Yesterday, the Second District issued this opinion, in which the court held that prejudice to the other side is not necessary for a party to waive a contractual right to arbitrate. The court noted that Florida's district courts of appeal and the federal circuit courts of appeals are split on this point. The court also made two notable statements. First, the court offered this thought on the policy that's really being advanced by case law that appears to favor arbitration:

The goal of Congress in enacting the Federal Arbitration Act was to place arbitration agreements " 'upon the same footing as other contracts, where [they] belong[ ].' " Thus, the policy embodied in the Federal Arbitration Act is one favoring enforcement of contracts, not one favoring arbitration over litigation. . . . Because the actual intended federal policy, as expressed by Congress, is enforcement of contracts, not enforcement of arbitration agreements, the cases requiring a finding of prejudice are focused on the wrong goal.
Second, observing that the Eleventh Circuit is on the other side of the split and requires a showing of prejudice to find a waiver of the right to arbitrate, the Second District reminded us:

[T]his court is not bound by decisions of the Eleventh Circuit on issues of federal law. Rather, this court is bound only by the United States Supreme Court on issues of the interpretation of a federal statute. Thus, the Eleventh Circuit's decisions do not constitute binding precedent on the issue of whether a showing of prejudice is required.
(citations in these quotes omitted).



Friday, August 08, 2003
 
Medical Malpractice Compromise? The AP has this report this morning on a potential compromise between Governor Bush and leaders of Florida's House and Senate on a law to cap some medmal damages claims -- a move that would add Florida to the list of nearly two dozen states that cap such awards in some fashion. An official announcement may come later today. Because the Legislature is not in session right now, it will take time for any agreement to result in a new law.

You can read the Orlando Sentinel's story on this matter here.
You can read the St. Pete Times's story on this matter here.
You can read the Palm Beach Post's story on this matter here.
You can read the Tallahassee Democrat's story on this matter here.

 
Eleventh Circuit. Employment lawyers may be interested in this decision yesterday from the Eleventh Circuit. The court affirmed a trial court's orders dismissing an Equal Economic Opportunity Commission suit and awarding fees against the commission because it failed to act in good faith and reserve judicial action as a last resort. The final footnote in the court's opinion suggests that the commission may have been looking to publicize a scandalous allegation.

 
Eleventh Circuit. Another class action decision yesterday from the Eleventh Circuit. That's two this week. In this case, the circuit court reversed a certification order because the court found the plaintiff's close ties to his lawyer, and the likelihood that his lawyer's fees would vastly exceed what any class member would recover, made the plaintiff an inadequate representative. In a footnote, the court also suggested that class treatment may not be a superior method of handling the matter because the plaintiff suffered no actual economic harm and the defendants' potential liability "would be enormous and completely out of proportion to any harm suffered by the plaintiff."



Thursday, August 07, 2003
 
First District. Looking for a refresher on when a party's witness can be turned into an expert for the other side? Try this decision yesterday from the First District.

 
Fourth District. For those paying close watch to the ongoing saga of what makes a proposal for settlement invalid, this decision from the Fourth District will be of interest. The court held that requiring a typical, general release, or including agents, employees, and similar third parties on the release does not invalidate a proposal.

 
Fourth District. Fourth Amendment fans will enjoy this. Man Number One is pulled over by police and gives Man Number Two's name, address, and date of birth. The officer takes Man Number One's thumbprint because he produces no driver's license. No one shows for the scheduled court appearance, and a warrant issues for Man Number Two's arrest. Later, Man Number Two fails to signal while making a turn and is pulled over for that reason. He is arrested after he identifies himself (remember the warrant), and police find an illegal firearm in his vehicle. A comparison of thumbprints confirms the distinction between Man Number One and Man Number Two. In this decision, the Fourth District held that the stop because of the failure to signal was illegal because the maneuver presented no safety concern, but the arrest was legal because Man Number Two had an outstanding warrant; however, because no reasonable cause existed for the original stop, the court held that the illegal firearm could not be used in Man Number Two's prosecution. Man Number Two's conviction based on the firearm reversed.



Wednesday, August 06, 2003
 
Got Problems? The AP has this story today on two University of Florida psychiatrists' proposed criteria for diagnosing "problematic Internet use." Apparently the research indicates that dysfunctional Internet use is often accompanied by additional issues: "Volunteers who called themselves problematic Internet users had, on average, five pre-existing psychiatric problems, such as bipolar disorder, depression or alcohol abuse . . . ." Something tells me the research sample didn't quite hit the blogging community.

 
Questions, questions. In a case that concerns whether an insurance company can be forced to provide coverage to its insured where a policy provides no coverage, based on the insurer's "negligent" pre-litigation investigation of the insured's claim under the policy, the Fourth District today certified the following to the Florida Supreme Court as a question of great public importance:

CAN THE ESTOPPEL THEORY APPROVED IN DOE V. ALLSTATE INSURANCE CO., 653 SO. 2D 371 (FLA. 1995), BE APPLIED TO CONDUCT ARISING OUT OF THE INSURER'S INVESTIGATION OF A CLAIM BEFORE THE CLAIMANT HAS FILED A LAWSUIT?
You can read today's decision certifying this question here. You can read the court's original opinion on this subject (holding a negligent pre-litigation investigation can require an insurer to cover a claim not covered under the policy) here.

 
40 Years Later… The AP has this story today on the commemoration of 40 years passing since a Bay County, Florida court convicted lawyerless Clarence Earl Gideon of theft. The U.S. Supreme Court overturned that conviction in Gideon v. Wainwright, and now we all know the lines: "You have the right to an attorney… If you cannot afford an attorney, one will be appointed for you…"

 
In the News. This story from today's Tallahassee Democrat describes a new law, effective immediately, that expands the legal limits for jackpots at Florida's card rooms; the story concludes with a run-down of the types of gambling that are legal in Florida.



Tuesday, August 05, 2003
 
A Lot Like a "Do Over". In this decision today, the Eleventh Circuit examined and attempted to harmonize its entire jurisprudence on the standard of review used to examine trial court decisions under the federal sentencing guidelines, a jurisprudence the court characterized as "muddled." The result is the circuit's new leading case on this subject.

 
Eleventh Circuit. Furthering a circuit split, the Eleventh Circuit today aligned itself with the First Circuit, and against the Fourth Circuit, on the issue of whether a federal prisoner's efforts to reopen his sentencing under 28 U.S.C. § 2255 based on a collateral attack of a prior state court conviction must begin within one year of a state court's decision to vacate an earlier conviction or one year of when the prisoner learns of the facts that support vacating the state conviction. A majority decided in favor of the latter time; Judge Roney, dissenting, would have decided in favor of the former. Read the decision here.

 
Eleventh Circuit. This first of three noteworthy cases decided today by the Eleventh Circuit may be significant to class action fans. In this case, the trial court entered summary judgment against a group of plaintiffs suing the defendant under federal employment laws and on behalf of a class of similarly situated persons. The trial court concluded that the defendant did not employ the plaintiffs. The circuit court affirmed that decision, but the court reversed the judgment because the trial court never addressed whether the case should be certified as a class action. The circuit court stated: "The law of this circuit is . . . [that] a plaintiff's capacity to act as representative of the class is not ipso facto terminated when he loses his case on the merits."

 
In the News. A good reminder of how lawsuits can backfire, the St. Pete Times has this story about a family, a neighborhood association, and an insurance company that wants no part of it all… The Miami Herald has this story today entitled "Voters Support Cap On Medical Lawsuit Awards"… Wondering what happened to the Manatee County School Board's concerns about opening meetings with a prayer? Look here for a follow-up story in today's Bradenton Herald.



Monday, August 04, 2003
 
Thanks are in order for Steve over at the Southwest Virginia Law Blog and to Bill at Blawg for adding links to Abstract Appeal.

 
Judge Tjoflat. Today, Howard Bashman, of the duplicitously named How Appealing blog, has posted his "20 Questions" interview with Judge Gerald B. Tjoflat of the Eleventh Circuit. Great work. Read the interview here.

 
Constitutional Cafeteria. When you think of voting next November, the topic of constitutional amendments probably does not leap to mind. It will, though, as the amendment-seekers start raising their profiles, trying to convince you that voting for an amendment is the right thing to do. For instance, today's Miami Herald has this story on one state legislator's efforts to place on next November's ballot a constitutional amendment that would permit police to stop a vehicle because the driver or a passenger is violating Florida's seat belt laws. Under this current Florida law, and with an exception where children are not properly restrained, officers can only enforce the seat belt requirements when a driver has been detained for another violation.



Sunday, August 03, 2003
 
Eleventh Circuit, Proposed Rule Changes. The Eleventh Circuit has just announced several proposed changes to its Circuit Rules and Internal Operating Procedures and to Addendum Three, which governs complaints of judicial misconduct or disability.

One proposed change may routinely affect court filings. In accordance with the E-Government Act of 2002, new proposed Circuit Rule 31-6 would require all pleadings and exhibits either to omit or display in redacted form:

•social security numbers,
•names of minor children,
•individuals' dates of birth, and
•financial account numbers,

except by leave of court. Where a party wishes to file a document containing the information listed above, the proposed rule includes a procedure to do so by motion and by filing both redacted and sealed, unredacted copies of the document.

The proposed rule would also direct parties to "exercise caution" when filing documents that contain:

•personal identifying numbers,
•medical records, treatment, and diagnosis,
•employment history,
•individual financial information, and
•proprietary or trade secret information.

Please check the following for specific information on all of the proposed changes: For a chart identifying the proposed changes to the Circuit Rules/IOPs, look here. For the current (183 page) FRCP/Circuit Rules/IOP red-lined with the proposed changes, look here. For a chart identifying the proposed changes to Addendum Three, look here. For the current Addendum Three red-lined with the proposed changes, look here.

Comments on the proposed changes may be submitted to the clerk's office by September 5, 2003.



Saturday, August 02, 2003
 
Preservation Tip. This decision yesterday from the Second District reminds appellate lawyers and trial lawyers that a trial court's refusal to allow a witness to answer a question will not constitute reversible error if trial counsel does not proffer the answer.

 
One for the Dogs. Officer stops car for traffic violation. Occupant refuses to consent to a search of the vehicle. While officer is writing ticket, another officer appears with a police dog trained to detect narcotics. The dog alerts on the vehicle, which is searched, and drugs and drug paraphernalia are found. Occupant moves to suppress the contraband, arguing the search was unconstitutional because the officer lacked probable cause. Why? Because the dog's training was insufficient and the officer did not know how likely the dog was to make a false alert. The Second District agreed in this decision. For dog lovers, the case is worth reading for its discussion on dogs' incredible ability to smell.

 
But You Can't Say That. Add this decision released yesterday by the Fifth District to the collection of cases telling appellate attorneys what they ought not say when challenging another court's decision. Client and trial lawyer are sanctioned pursuant to s. 57.105, and client and appellate lawyer appeal. They win a reversal on the sanction. The appellate attorney also wins a referral to the Florida Bar for the comments on the trial judge contained in the appellate briefs, comments the appellate court did not appreciate. Here are some excerpts from the opinion:

What makes this otherwise unremarkable case noteworthy are the vitriolic comments about the trial judge contained in the appellate brief . . . . Some of [the] more notable comments were:
There is also no question that plaintiffs pursued collection efforts against this defendant on a personal liability basis both before suit and continued to do so in the lawsuit for more than one year, from April 2, 2000 to June, 2001. Was this the pursuit of madness to a friendly court?

* * *

It's true that there was no record made or presented as to the proceedings of the December 14, 2001 court hearing. However, it is submitted that something far off and out of line had to be involved to block what should have been a clear and obvious decision.
(emphasis added). These comments, without any record support, appear to make unsubstantiated charges of collusion or impropriety against the trial judge. Such charges, if unsupported, are unprofessional.

* * *

[The appellate attorney] further wrote that the trial judge's ruling was "cockeyed and absurd" and demonstrated a "most startling absence of legal knowledge and irrational decision . . . ." (emphasis added). The Oath of Admission to the Florida Bar requires lawyers to "maintain the respect due to courts of justice and judicial officers" and to "abstain from all offensive personality." [These] comments fall far below that standard and are demeaning and patently unprofessional. Such statements, made without any supporting facts, embarrass and denigrate our profession. Therefore, pursuant to the mandate in 5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1997), we direct that the Clerk of this Court provide a copy of this opinion to the Florida Bar.

Sometimes a brief can receive too much attention.



Friday, August 01, 2003
 
Stink, And Ye Shall Receive. Noticed the new banner up top? Keith Dowdy noticed the old banner and decided it could use an upgrade. So he sent me one, and -- voilà -- after being online for eight days, I have an upgraded banner. I get the impression Keith didn't do what I originally did -- open MS Paint and start clicking on pixels. He seems to have a bit more talent. Thanks, Keith!

 
Medical Malpractice Reform. The Tampa Tribune reports here that Governor Bush has decided against calling the Legislature back to Tallahassee next week for a third special session on medmal reform. Apparently the House and the Senate remain too far apart to expect a compromise at this point.

 
Guardians for Unborn Children. The Fifth District announced yesterday that it will hear an immediate appeal from a circuit court judge's decision not to appoint a guardian for the unborn child of a developmentally disabled woman, according to this story from the Orlando Sentinel. Oral argument is scheduled for August 21, 2003.

 
Eleventh Circuit. With its second Eleventh Amendment case this week, the Eleventh Circuit yesterday held that the Port Everglades Port Authority lacks sovereign immunity in federal court from a shipowner's indemnification claim. Read the decision here.

 
First District. The First District released this decision yesterday that allows two public interest groups to appeal the constitutionality of a statute that limits their ability to challenge an environmental permit in an administrative proceeding, despite the fact the groups had the ability to participate as intervenors in other parties' administrative challenge to the same permit. An interesting discussion, with a dissent, on whether the groups were "adversely affected" by the inability to participate as full parties…





 
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