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Saturday, February 28, 2004
 
Inconsistent Verdict?
The Miami Herald today has this interesting story about a recent jury verdict that found a man guilty of petty theft and felony murder. The problem is that to be guilty of felony murder, you must have committed a felony, and petty theft is not a felony. This led the judge in the case to overrule the jury's finding on the felony murder charge. The state attorney's office thinks the judge is wrong, and an appeal is being planned. Great story.

 
Outpatient Orders
A proposal to amend the Baker Act -- Florida's mental health law -- would permit judges to order outpatient treatment for certain mentally ill persons. Read about it here in today's St. Pete Times.

 
Ignoring Abuse?
Today's Times-Union has this story on how Florida's Department of Children and Families may have regularly ignored claims of abuse.

 
A Tip For Prospective Jurors
The next time you find yourself sitting in a jury box, listening to lawyers ask you and those around you all sorts of peculiar questions, resist the urge to get up during a break and just not come back. Similar advice might have been a good idea for the man in this story from today's Sun-Sentinel. He nearly found himself serving a five-day jail sentence.



Friday, February 27, 2004
 
Friday Florida Law Trivia Answer
The answer is no, according to this decision from the Florida Supreme Court. The precise issue before the court was whether terminating an employee based on the employee's spouse's conduct constituted marital status discrimination under the Florida Civil Rights Act. In a 5-2 decision, the court held that "marital status" as used in that act is limited to one's status as being single, married, separated, divorced, or widowed.

 
More On Court Records
Florida's lower courts are finally coming into compliance with the Florida Supreme Court-ordered moratorium on the electronic release of court records, according to this story in today's Sarasota Herald-Tribune. For more on the moratorium, see my earlier Abstract Appeal posts here, here, and here.

 
Friday Florida Law Trivia!
Hunter's preparing for a trial that starts Monday, so this week's trivia question falls to me. Here goes:

In Florida, is it unlawful discrimination to fire someone because of something the person's spouse has done?

I'll post the answer at approximately 4:45 EST today.

 
"A Battle Royal"
There is a storm brewing in the Legislature, "a battle royal" as Senate President Jim King puts it, over the breadth of the language to be used in the Legislature's proposed "parental rights" constitutional amendment. Read about it in this story from the Associated Press.

 
$63 Million Verdict
Yesterday, a jury returned Palm Beach County's largest medical malpractice award ever -- $63 million, according to this story in today's Palm Beach Post. The case involves the birth of a severely brain-damaged child, and the jury apparently placed responsibility for the injuries on the doctor and the hospital due to the "risky forceps delivery" performed by the doctor.

 
Fourth District: Time, Time, Time
Let's say you're a plaintiff's attorney and you prevail in a case in which you are entitled to attorney's fees. Are the defense attorney's time records relevant to your claim? Yes, said the Fourth District in this case.

 
Fourth District: Attempts Count Too
Just because the minor you attempt to seduce in the online chatroom is really an adult undercover cop does not mean you have not committed the crime of attempting to seduce someone you believe to be a minor. Yep, that's the crime. Read about it in this case from the Fourth District.

 
Fourth District: Inaccuracies Versus Lies
A prosecutor cannot ask a witness whether another witness is a liar, but the prosecutor can ask whether another witness's account is accurate. Check out this case from the Fourth District.

 
Fourth District: Witness Tampering
Just a reminder from the Fourth District: a prosecutor's violation of the rule of sequestration may result in dismissal of the charges against the defendant. It's a spoliation-like application of classic principles of due process.

 
Fourth District: Timing of Remittitur Motions
Quick, is a motion for remittitur of a verdict more like a motion for new trial, governed by the 10-days-from-the-verdict service requirement of Rule 1.530(b), or more like a motion to alter or amend the judgment, governed by the 10-days-from-the-judgment service requirement of Rule 1.530(g)? The Fourth District held in this case that a motion for remittitur is essentially a type of motion for new trial and therefore must be filed within 10 days of the verdict's return. The court relied upon and followed a 2002 First District case that reached the same conclusion.

Isn't this one of those areas that you would think would have been settled long ago?

 
Fourth District: Independent Claims for Spoliation
Those of you cataloguing the development of Florida's law on spoliation may wish to check out this decision from the Fourth District. The court once again held that an independent action for spoliation does not lie in litigation between the alleged spoliator and the person allegedly harmed by the spoliation. Rather, in such a case, the remedy for the alleged spoliation should lie in some form of sanction, or potential sanction available to the trier of fact, on the claims supposedly affected.



Thursday, February 26, 2004
 
Fourth District: Aren't Lawyers Special?
Some legal doctrines are more difficult to explain than others, and not because they're complicated. Take, for instance, the notion that attorney's fees paid to an adversary's counsel are generally not recoverable from the attorney even if the underlying order or judgment is reversed. It's the subject of this decision last week from the Fourth District.

 
Third District: Protestations of Innocence
The next time you're watching a legal drama on tv and the judge throws the book at a criminal defendant for protesting his innocence, think of this decision from the Third District, which says the judge can't do that.

 
Questions, questions
Do notices and orders pertaining to the withdrawal or retention of counsel satisfy the "record activity" requirement of Rule 1.420(e)? Well, the Second District said no last week in this case, following the conclusions reached by the other districts to consider the question. Back in December, though, in this case, the Second District noted some uncertainty in the law over when orders constitute record activity, and the court certified a question in that regard. This new decision likewise certified the following to the Supreme Court of Florida as a question of great public importance:

AFTER THE DECISION IN METROPOLITAN DADE COUNTY v. HALL, 784 SO. 2D 1087 (FLA. 2001), ARE TRIAL COURT ORDERS THAT ARE ENTERED AND FILED TO RESOLVE MOTIONS THAT HAVE BEEN PROPERLY FILED IN GOOD FAITH UNDER THE RULES OF PROCEDURE AUTOMATICALLY TREATED AS ACTIVITY, OR MUST THE TRIAL COURT CONTINUE TO ASSESS ITS OWN ORDERS TO DETERMINE WHETHER THEY ARE PASSIVE ENTRIES IN THE COURT RECORD?
By the way, the name of this case is Moransais v. Jordan. Attorneys out there might recall that, in 1999, an earlier installment of this litigation produced a rather significant decision involving Florida's economic loss rule. Who would have thought that case would later involve a failure to prosecute?

 
Whew!
Many thanks to those wished me well with the peculiar electrical situation that found Debbie and me leaving the old home a bit earlier than planned. I've learned to fear this pair of words: aluminum wiring. Fortunately, other than time and trouble, our net loss appears to have been four surge protectors, one cordless telephone, and one answering machine. That was lucky.

We're in the new place now, a wonderful condo in downtown St. Pete, and I've put out the (more metaphorical) fires that had me humming at work so far this week. As a result, it's back to posting later this a.m. -- a bit later than I'd hoped, but here at last. I have a lot of catching up to do for this past week's events, so please bear with me. It'll probably take through the weekend to be fully up to date.



Monday, February 23, 2004
 
Abstract Pause
Still pausing… Actually, I'm still moving out of the old place and into the new. With a rough week of work on tap, it's looking like Wednesday when I'll be able to return to substantive posts. Thanks for stopping by this little corner of the blogosphere during the delay. Hopefully I'll see you Wednesday.



Friday, February 20, 2004
 
Friday Florida Law Trivia Answer
Justice William Glenn Terrell served from 1923 to 1964, but he was not the court's longest serving employee (assuming justices don't mind being considered employees). Sara Gainey worked in the supreme court clerk's office from 1956 until May 2003. She served under 36 justices, including Justice Terrell.

 
Schiavo News
Left without Internet access this morning (see the post below), my morning news survey was limited to a very brief look at the local paper, the St. Pete Times. Sure enough, though, the Times had this bloggable column from Mary Jo Melone on the Terri Schiavo saga.

 
Me, and More Pausing
Hunter, I think "escaping from" the old home is a better way of putting it. There I was this morning, finishing reading the last two days' cases and ready to blog them at record speed when, poof, everything blinked and several things popped. The air took on a burnt smell, several lights went out, and every surge protector I own breathed its last protected breath. The heat went on and would not turn off. Pops and crackles abounded. Debbie and I got the dog to our pet-sitters and got out of there.

The beauty of renting the old home is that these problems will soon not be mine. Still, we're in the middle of moving, and our "do a little each day" pace is about to be significantly accelerated. As a result, I'm going to take the next two days off from Abstract Appeal. I'll post Hunter's answers tonight (after I figure out what they are), and in just a minute I'll post a link to Mary Jo Melone's Schaivo-related column from today. By Sunday evening, I should have settled in well enough to return to the blog. I hope everyone has a great weekend.

 
Friday Florida Law Trivia!
Who was the longest serving Justice of the Supreme Court of Florida, and for how long did she or he serve?

Also, who was the longest serving employee of the Supreme Court of Florida? (Joe, you are not permitted to answer this question.)

As I will be on a plane later this evening, the answers will be posted by Matt today around 4:45. Have a wonderful weekend!

 
Matt Unplugged
Matt tells me that he's been unplugged, so to speak. Something about the wiring in his old home. Of course, Matt has this beautiful new home but he is still living out of the old home. Inexplicable. Anyway, we should hear from him later this morning.



Thursday, February 19, 2004
 
Abstract Pause
The forces of work and moving are colliding today in a way that prevents me from blogging at the moment. I may be able to catch up on yesterday's cases and today's events late today or in the wee hours of the morning. I hope everyone has a great day, and thanks very much for stopping by Abstract Appeal.



Wednesday, February 18, 2004
 
Rush News
Yesterday, Rush Limbaugh filed with the Fourth District his petition for a writ of certiorari to stop the Palm Beach County State Attorney's Office from using his medical records, obtained through a search warrant, to investigate his use of painkillers. You may recall that Rush's attorneys had treated the case as an appeal, but it turns out that on January 30, 2004, the Fourth District ordered the proceeding to go forward as one seeking the extraordinary writ of certiorari. That seems to represent the Fourth District's determination that the trial court's disclosure order was neither a final order nor an appealable non-final order, so, at this point, Rush is left to argue that he will be irreparably harmed if the trial court's order is not immediately reversed.

Today's Palm Beach Post has this report on Rush's petition and the amicus brief filed in his support by (strange bedfellow) the ACLU.

Thanks to Rush's attorney Roy Black and his firm's web site, you can read the Fourth District's order declaring the case to be a certiorari proceeding here, you can read Rush's cert petition here, and you can read the ACLU's amicus brief here.

 
Jury Award
Today's Sarasota Herald-Tribune has this story on a Charlotte jury's $1.3 million medical malpractice verdict last Friday.

 
Parental Rights Amendment
For the latest update on the proposed parental rights constitutional amendment, check out this story in today's St. Pete Times. The short of it all is that the bill to propose the amendment has made it out of committee and will go before the full House when it convenes.

As the story indicates, the proposal is in response to the Florida Supreme Court's decision last year that Florida's parental notification statute, which required that parents be given advance notification of a minor child's intent to obtain an abortion unless a judge excused the notification, was unconstitutional under the Florida Constitution's right to privacy because it violated the minor's privacy rights. You can read that decision here.

One aspect of the proposal that the story does not explain is that Florida is one of a minority of states whose constitution contains an express right to privacy provision, and the Florida Supreme Court's decision in the parental notification case was based solely on that Florida-specific right of minors. Indeed, the decision could not have been based on the federal constitution's privacy guarantees because the United States Supreme Court has upheld other parental notification statutes from challenges under the federal privacy right. So, the proposed amendment is intended to negate the Florida-specific decision that minors' privacy rights trumps their parents' ability to be informed of a pending abortion procedure. Interestingly, though, the proposal does not mention abortion -- it focuses on parents' rights in general.

You can read the language of the proposed constitutional amendment here.



Tuesday, February 17, 2004
 
Parental Rights Amendment
House speaker Johnnie Byrd is promoting a proposed constitutional revision that would provide Florida's parents with strong rights vis-a-vis their children. Read about it here in today's Tallahassee Democrat and here in this House press release.

 
Great, But Not Perfect
Florida's legal system is, on the whole, amazingly sound. It has its flaws, though, and my hat's off to the St. Pete Times for running this excellent story about how difficult it is under Florida law to remove someone whom you've permitted to become a resident in your home. A "must-read" story for Floridians not aware of the no-longer-welcome guest issue.

 
Code Violations
The Miami Herald today has this interesting story about how window bars that cannot be opened quickly in an emergency violate the state's building codes regarding residential properties.

 
It's No Fun
Today's Times-Union has this story about how an illegal alien's personal injury lawsuit may shake up Florida's construction industry.

 
Mining Suit
If you drink the water in South Florida, you may be interested in this story from today's Sun-Sentinel. The story concerns a lawsuit by environmentalists to stop limestone mining outside the Everglades. According to the plaintiffs, the mining threatens the integrity of the water supply.

 
Supreme Court: Electronic Records
The Florida Supreme Court has issued this amended order imposing a moratorium on the transfer of electronic records from the judicial system. The court released its original order, available here, in late November. The moratorium is intended to prevent inadvertent electronic disclosures of confidential information found in judicial documents while a blue-ribbon committee studies how the judiciary should handle sensitive information in our new electronic age.

The substantive difference between the original and amended orders appears to be a clarification that court clerks may email a document to a person where the person has specifically and solely requested that document and the clerk's office has inspected the document and confirmed that no confidential or exempt information will be released.

 
Second District: Nationwide Writs of Bodily Attachment
Can a circuit court issue a nationwide writ of bodily attachment? No, said the Second District in this case.

 
Second District: Woulda, Coulda Sentences
Returning back to the Second District's last noteworthy cases from Friday, we first find this case about criminal sentencing. The court certified conflict between it and a line of First District cases over how harmless error should be examined when a sentencing scoresheet error is shown. The Second District follows a standard that presumes harmful error unless the state can show that the defendant would have received the same sentence without the error, while the First District's standard finds no harmful error if the defendant could have received the same sentence without the error. Judge Altenbernd concurred to offer a third alternative: an approach that examines the error in the sentencing range's midpoint and (rebuttably) presumes harmfulness if the midpoint is reduced by ten or more percent and (again, rebuttably) otherwise presumes harmlessness.



Monday, February 16, 2004
 
For The Birds
FindLaw has this amusing story about a Brooksville man's unsuccessful suit against his bird-feeding neighbor. Apparently, the birds are well fed, and the man is fed up.

 
Schiavo News
The AP has this update on the current legislative effort to address end-of-life issues like the situation in Terri's case.

 
Out, Out, Darn Ref
A bill is wending its way through the Legislature that would specifically address the problem of violence against sports officials. Read about it here in today's Sun-Sentinel.

 
Another Child Tragedy, Another Call for Legislation?
Possibly pertinent to the Cotterell column mentioned below… this story, coming soon to a headline near you.

 
Overreaction?
Yesterday's Tallahassee Democrat had this interesting Bill Cotterell column on legislative overreaction to high profile tragedies involving children.

 
Fifth District: Claim of Right
I will try to talk Hunter into using the "claim of right" defense in a future Friday Florida law trivia question. The principle is discussed in this decision released Friday by the Fifth District. In essence, it holds that a defendant can negate the intent element of a property theft charge by showing that he believed, albeit wrongly, that the property belonged to him or to another who had given him permission to take it -- the "I thought it was mine" defense.

 
Fifth District: Religious Mandates
If you read a description of the writ of mandamus, you will ordinarily see something describing how the writ is used to compel an official to perform a purely ministerial duty required by law, where the petitioner has a clearly established right to the duty's performance. Much of the case law concerning mandamus focuses on the first part of that description, so it was refreshing to read this decision released Friday by the Fifth District. The case involved a prison inmate's efforts to force prison officials to permit her to practice her Wiccan rituals outside during each full moon. The circuit court denied the mandamus petition, and the appellate court affirmed the denial. The inmate lacks a clearly established right to practice that aspect of her religion while in the confines of prison. That's not to say she could not establish that right through a proper judicial action, but mandamus will not lie where a right is not already established.

 
Back In Blog
I'm back at the blog today, having spent the weekend getting our new place ready for Debbie and me to move in. If you had told me on Friday that staining a bannister would take the entire weekend, I might not have believed you. Now I'm ready to swear to it under oath. I'm also ready to blog some non-Schiavo case law from Friday and some news. I'll mention some Fifth District cases this morning, and I'll leave a couple of interesting Second District cases to discuss later today.



Friday, February 13, 2004
 
Friday Florida Trivia Answer
There are a total of five ways to amend Florida's constitution: (1) joint resolution by the Legislature; (2) constitution revision commission; (3) citizen's initiative; (4) constitutional convention; and (5) the taxation and budget reform commission. Have a safe weekend!

 
And More Schiavo News
The Associated Press has thus far released two stories on this morning's decisions in the Schiavo case. They are available here and here. Both stories contain the following line:

The 2nd District Court of Appeal ruled that Bush's attorneys will be allowed to question witnesses in the court battle over a law that gave the governor authority to reinsert Terri Schiavo's feeding tube after her husband had it removed in October.
With all due respect to the AP, I do not agree. As I discussed in the post below, the Second District held that Judge Baird failed to address two issues that are fundamental to determining whether Governor Bush may properly be precluded from deposing the witnesses he wishes to depose: namely, whether any facts are material to the constitutional challenges before the court and whether Governor Bush is precluded from litigating any particular issues because they were resolved in the earlier litigation between Michael Schiavo and the Schindlers.

With regard to what I will loosely call the "relitigation" issue, the Second District's opinion today specifically explained that a protective order may be appropriate if Michael Schiavo's position is correct and may be inappropriate if the Governor's position is correct. The court explained:

If one accepted the argument of Mr. Schiavo's counsel that those facts were not properly the subject of discovery in the declaratory judgment action because they had already been finally adjudicated in the guardianship proceeding, it is arguable that taking depositions to inquire into such matters could be unduly burdensome, annoying, or oppressive. On the other hand, if one accepted the position of the Governor's counsel that the Governor is not bound by the adjudicated facts in the guardianship proceeding, it is arguable that the Governor could be denied his right to pursue discovery he believes is necessary for him to support his defense of the constitutionality of the statute.
So whether the Governor will be able to conduct the discovery he wishes to conduct will turn on decisions that Judge Baird has not yet made. Once they are made, it seems fairly likely that the matter will be appealed again by whoever disagrees with the judge's decision. So this part of the case seems a long way from being over.

 
More Schiavo News
The Second District today also reversed Judge Baird's order denying the Schindlers' motion to intervene in the suit between Michael Schiavo and Governor Bush. The suit is over the constitutionality of the law that permitted the Governor to order Terri's feeding tube restored. Recall that Michael has not sued Terri's parents in that case. When the Schindlers moved to intervene in the matter, Judge Baird denied the Schindlers' motion, instead allowing them to participate as amici curiae ("friends of the court"). The significance of that ruling was that the Schindlers would not be parties and could not control the litigation as parties could, though they would be permitted to offer arguments to the court on how the case's issues should be resolved.

In today's decision, available here, the Second District held that it could not tell from Judge Baird's order whether he applied the proper legal test to resolve a motion to intervene. Thus, without suggesting how the intervention motion should ultimately be decided, the appellate court reversed Judge Baird's decision and remanded for further consideration of the issue.

The bottom line here appears to be that Judge Baird will again have to rule on the Schindlers' motion to intervene -- this time in more detail.

 
Schiavo News
Today, the Second District entered an order quashing the protective order Judge Baird previously issued in the Schiavo case. The protective order prohibited Governor Bush from taking seven deposition, including the deposition of Michael Schiavo. The Second District's decision, available here, determined that Judge Baird could not prohibit the Governor from taking the depositions unless the trial court first resolved two issues: first, whether there are fact-based aspects to Michael Schiavo's constitutional challenges that may require discovery, and, second, whether the Governor is or is not precluded from relitigating facts and issues that were resolved in the earlier cases between Michael and the Schindlers. The Second District found it unclear that the trial court had resolved either issue.

What this appears to mean is that the issues surrounding discovery in the case and any possible protective order limiting discovery will need to be addressed again, and in greater detail, by Judge Baird. Anticipating that a new protective order might be entered and appealed, the Second District concluded its opinion by requiring Judge Baird to include in any such order all findings of fact and conclusions of law that support the decision.

 
Friday Florida Law Trivia!
There is significant and on-going discussion in Tallahassee about whether to "amend" the citizen's initiative process, a process that allows Floridians to amend the state constitution without the Legislature's involvement. Recent amendments added to Florida's constitution as a result of the initiative process include those that (1) reduce public school class size; (2) extend protections to pregnant pigs; and (3) mandate that a bullet train be built. This leads us into today's trivia question.

How many ways, other than the initiative process, may Florida's constitution be amended?

The answer will be posted today about 4:45 p.m.

 
Gay Student Suit
Remember the case about the student who was expelled from Jupiter Christian School after admitting that he is gay? The case is being brought on a breach of contract theory. What contract? Well, that's not clear, at least from the perspective of someone simply reading news reports. Things seem even more murky after, this week, the trial judge in the case denied the school's motion to send the case to arbitration because the written agreement containing the arbitration provision was not signed by the parties. Read about it all here in today's Bradenton Herald.

 
LoJack for People?
Today's Tallahassee Democrat has this interesting story on a legislative proposal to use GPS monitoring for criminal defendants released on bond.

 
Kick Tires, Sniff Floorboards?
Law enforcement authorities in Miramar have started what may be the nation's first used car drug detection program, allowing recent purchasers of used vehicles to ensure that their cars' former owners left behind no unlawful drugs. Today's Sun-Sentinel has the story here.

 
Scooter Regulation
They seem like motorized skateboards, and regulation may be on its way. Read about it here in today's Boca Raton News.

 
Supreme Court: Citrus Canker Law
Florida's Citrus Canker Law, which requires destruction of all citrus trees with 1900 feet of a tree infected with citrus canker, does not violate the constitutional principles of due process or just compensation. The Supreme Court of Florida's decision from yesterday is available here.

Interestingly, Justice Wells and Justice Bell concurred but did not join the court's otherwise unanimous opinion. They would have simply adopted Judge Warner's decision for the Fourth District. It's been a while since the court regularly adopted opinions that it affirms, rather than writing its own opinions. Perhaps we'll see a return to that one day.

 
Supreme Court: Medical Malpractice Act
Yesterday, the Supreme Court of Florida held that, prior to the 2003 medical malpractice reforms, "net economic damages" available through voluntary arbitration under Florida's Medical Malpractice Act were not the same as the "net accumulations" available as damages under Florida's Wrongful Death Act. You can read the opinion here.



Thursday, February 12, 2004
 
Printer-Free For Now
A Palm Beach County suit to require Florida's electronic voting machines to provide printed receipts has been dismissed, according to this story in today's Sun-Sentinel.

 
No Pets
Just because your homeowner's association does not enforce its no-pets rule does not mean enforcement might not be around the corner, so to speak, as described in this tale of tails in today's Sun-Sentinel.

 
Calling For Deliberate Deliberations
With political cries favoring tougher laws for probation violators in the wake of the Carlie Brucia tragedy, the Twelfth Circuit of Florida's chief judge is welcoming studies but asking that any reform be thoroughly thought out. Read about it here in today's Bradenton Herald.

 
Plea Collapse
When a Bonita Springs trial judge refused to accept a plea agreement in a case charging a doctor with sexual battery on his patients, the deal was not the only thing that collapsed. The doctor did, too, according to this story from the Associated Press.

 
Third District: A Seal Between Friends
The husband and wife in Friend v. Friend agreed that the judicial record in their divorce would be sealed. However, as the Third District reminds us, litigants seeking marital dissolutions are not entitled to private proceedings. The court held that the seal ordered in the case was properly removed when an unfriendly third party wanted access to the records.

 
Questions, questions
News about polygraph tests often involves someone flunking them. But what if a criminal defendant passes a polygraph exam and wants to use the results as evidence at trial? Yesterday, in this case involving that situation, the Third District certified the following to the Supreme Court of Florida as a question of great public importance:

ARE THE RESULTS OF POLYGRAPH TESTS INADMISSIBLE IN EVIDENCE AS A MATTER OF LAW OR ARE POLYGRAPH TESTS SUBJECT TO THE FRYE TEST?

 
Fourth District: Collateral Source Setoffs
If you've thought you had to introduce evidence of PIP payments at trial in order to be able to set them off from a plaintiff's damage award, check out this decision from the Fourth District, which interprets the governing statutes broadly to permit post-trial deductions of collateral source payments regardless of whether evidence of them is admitted at trial.

 
Third District: Forum Non Conveniens
Rule 1.061(g) of the civil procedure rules permits a defendant 60 days from the time of service to move for dismissal under the doctrine forum non conveniens. In this decision released yesterday, the Third District held that the 60-day limitation does not apply when the trial judge raises the forum non conveniens issue sua sponte. I wonder if we'll see motions filed after the 60-day period expires that ask the trial court to consider, sua sponte, the convenience of the forum…

 
Fourth District: Consortium Claims for the Unborn
Can a child bring a loss of consortium claim for a loss experienced when the child was as yet unborn? Yes, said the Fourth District yesterday in this decision.

 
Third District: Fine, We'll Do It Ourselves
Looking to peruse an amusing decision with your morning coffee? Check out this opinion released yesterday by the Third District. It involves a former husband earning $10,500 a month who was ordered to pay his former wife $6,000 a month in permanent alimony, plus a fixed amount of any bonus he received. The appellate court reversed the award as excessive, so, on remand, the trial court inexplicably set the award at $7,610 per month plus a fixed bonus amount. The frustrated appellate court again reversed the award as excessive, and this time the trial court set the award at $5,200 per month plus a bonus amount. The latest appeal followed, and this time a bewildered Third District simply selected the correct figures to be awarded the former wife, with some stern language for the trial court.

 
Third District: Appellate Tip
This case can serve as a reminder from the Third District that constitutional challenges to municipal ordinances cannot be raised when municipal decisions are appealed to the circuit court. An original certiorari proceeding in the circuit court, not a certiorari review proceeding, is the correct means to challenge the constitutionality of a municipal ordinance.

 
Fourth District: Is It or Isn't It?
Last year, the Legislature amended section 90.104(1)(b) of the statutory rules of evidence to provide, in essence, that objections to definitive rulings on the admissibility of evidence at trial need not be renewed to preserve the point for appeal. In this decision released yesterday by the Fourth District, the court noted that if this new provision is procedural, then it is unconstitutional as an encroachment on the judiciary's authority. The court left that question open, however, and simply applied the statute, since no party in the case challenged the statute's validity. The court did suggest that, if the provision is procedural, then the Supreme Court of Florida should adopt it as a rule.

 
Eleventh Circuit: Prosecutorial Immunity
Those interested in the breadth of prosecutorial immunity should check out this decision released yesterday by the Eleventh Circuit. It's a tale of three men named Francisco Rivera and includes a Learned Hand reference.



Wednesday, February 11, 2004
 
Way Up Yonder On The Chattahoochee…
The latest round in the massive three-state battle over use of the Chattahoochee River's water goes to Georgia. Yesterday, a federal judge in Atlanta ruled against Florida and Alabama and in favor of metro Atlanta's ability to draw more from that muddy waterway. Read about it in this story from the Associated Press.

 
First District: Releases
With respect to contractual provisions releasing a releasee from its own negligence, federal maritime law disfavors such provisions but will enforce them where they are clearly stated, even if they do not use magic words such as "negligence" or "negligent acts." As a result, the First District upheld the use of the release in this boating accident case. What makes this case noteworthy, though, is that it points out how Florida's district courts of appeal seem to disagree on whether Florida law strictly requires such magic words to release a releasee's negligence. Check out footnote 3 of the opinion.



Tuesday, February 10, 2004
 
Schiavo News
Senate President Jim King regrets bowing to pressure and helping pass what has come to be known as "Terri's Law." Read about it here in today's St. Pete Times.

 
South Florida Signs
It's not a good sign when you are on an election ballot and the night before the big day you find yourself in jail. For elections law violations. And you're the incumbent. That's the scoop from South Miami, according to this story in today's Miami Herald.

 
Carlie Brucia News
The AP reports here that Governor Bush is suggesting Florida's probation laws should be tightened to prevent folks like Joseph Smith (accused killer of Carlie Brucia) from remaining free after they violate the terms of their probation. Separately, the AP reports here that Smith's public defender is seeking a gag order in the case to preserve his client's right to a fair trial.

 
Eleventh Circuit: Voter Standing
When do you not have standing to bring a Voting Rights Act challenge that malapportioned voting districts violate the one person, one vote guarantee? As explained in this decision released yesterday by the Eleventh Circuit, you lack standing to bring such a claim if you live in a district that is over-represented, rather than under-represented, and thus are not actually harmed by the apportionment.



Monday, February 09, 2004
 
Let Them Receive Coupons…
An Overlawyered.com tale about puny class action returns has made its way into this story in today's St. Pete Times.

 
One Florida Loses One
Judge Mickle, of the Northern District of Florida, has ruled unconstitutional a portion of Governor Bush's One Florida plan concerning state contracts. Read about the ruling here in today's St. Pete Times.

 
A Call For Accreditation
Guess who's sounding the call for legislation to require the accreditation of private schools that receive public voucher money? The answer's here in today's Palm Beach Post.

 
Religious Services
Governor Bush continues to encourage religious organizations to provide public services. Read about it in this story in today's Sun-Sentinel.

 
Eleventh Circuit: The Aisenberg Case
On Friday, the Eleventh Circuit issued this decision involving the high profile case of Steven and Marlene Aisenberg. That case has been big news in Florida for several years: first, when the United States prosecuted the Aisenbergs in connection with their daughter's disappearance, and later when the couple successfully sued the federal government for its bad faith prosecution.

In the appeal, the court determined that the limitations found in 28 U.S.C. § 2412(d) apply to bad faith prosecution awards made pursuant to the Hyde Amendment, and thus the court reduced the fee award against the United States from $2,680,602.22 to $1,298,980. (You can find the Hyde Amendment near the end of the notes following 18 U.S.C. § 3006A -- look here.) The court also reversed a district court decision ordering the public disclosure of the records from the grand jury proceedings in the prosecution, finding no sufficient legal basis to disclose such traditionally secret items.

 
Eleventh Circuit: Foreign Law Lessons
One could draw a couple of lessons on foreign law from this decision issued Friday by the Eleventh Circuit. First, when asserting that a foreign jurisdiction's law governs a dispute, be sure to explain to the court the substance of the assertedly relevant foreign law. Second, if you contract with a foreign insurer, be prepared in case the insurer wishes to litigate disputes in the foreign nation. One of the insurers in this case was an Isle of Man company that attempted to litigate the matter in that small island nation.

 
Fifth District: Litigating an Insurer's Unfair Settlement Practices
This decision released Friday by the Fifth District holds that, as with claims for bad faith, claims against insurers for unfair settlement practices cannot proceed under Florida law until the threshold issue of coverage has been resolved.

 
Fifth District: First Amendment
Does the First Amendment give you a right to approach a business's customers, telling them the owner abuses animals, or to picket as well as videotape persons driving in and out of the business's owner's residential community, stopping them and telling them that one resident engages in animal cruelty? The Fifth District on Friday relied in part on the First Amendment when it reversed an injunction preventing these sorts of activities in this case. Chief Judge Sawaya offered a detailed and vigorous partial dissent. The majority and dissenting opinions are highly recommended to any First Amendment enthusiast.

 
Fifth District: International Child Abduction
If you did not know that the United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, then check out this decision released Friday by the Fifth District. The case involved a mother's unsuccessful attempt to invalidate a Florida court's custodial decision in favor of her children's father based on a German court's decision that the children should remain with her. The only challenge the mother raised, however, was jurisdictional.

 
Second District: Arbitration
If you are interested in efforts to defeat a contract's arbitration provision under Florida law, then this decision from the Second District will be a worthwhile read for you. The case concerned a homeowner's various (and ultimately unsuccesful) attempts to avoid the arbitration provision found in his termite inspection and treatment contract with Orkin.



Friday, February 06, 2004
 
Triple Play
My it's been a bad day. First, my home computer's hard drive suffered an irrecoverable operating system failure. Not fun in the slightest. Then, I learned that the decision the Eleventh Circuit decided this week to rehear en banc was in fact published and is available on the court's site, though I could not find it on the site earlier this week. Finally, I did not know the answer to Hunter's trivia question this week -- at least, not until I pulled out my copy of the state constitution and checked the specific language regarding income taxes. I had no idea the constitution left any room for personal income taxes.

Tomorrow's got to be a better day…

 
Florida Friday Law Trivia Answer
Did you really think that I would give such a softball question? I said "seemingly straightforward" because this was a trick question, and I can attest it tricked many folks, including Matt! While the practical answer is that, no, there can be no Florida income tax on Florida's citizens (other than corporations), the legal answer is yes, there can be a Florida income tax on Florida citizens.

Contrary to popular belief, the Florida Constitution does not prohibit the State of Florida from imposing a personal income tax on Florida citizens. The Florida Constitution in this provision, however, does limit the amount Florida may levy on a citizen's income. The maximum levy Florida may impose on the income of a citizen is the amount the federal government would permit that individual to deduct or receive credit for on his or her federal income taxes for having to pay state income taxes. In other words, if the federal government permitted a taxpayer to receive a $500 credit on his or her federal income tax for paying state income tax, then Florida could levy up to a $500 state income tax on that taxpayer's income.

 
Friday Florida Law Trivia!
I'm back, and I apologize for missing last Friday's post, but duty called. It occurs to me that my last few weekly questions have focused on obscure points of Florida trivia. So I thought that this time I'd ask a seemingly straightforward question. You decide if I succeeded. Here goes.

Currently, the State of Florida pursuant to Florida law imposes an income tax on the profits of Florida corporations. Setting aside all corporate entities, though, under Florida law can the State of Florida impose a personal income tax on the income of its citizens?

The answer will be posted this afternoon at approximately 4:45 p.m.

 
Flag Disputes
Another homeowners' association, another flag dispute. This one, though, involves a Hindu flag. Read about it here in today's Sun-Sentinel.

 
Protesting the Anti-Protest Laws
A federal district judge in Miami has stated that he sees serious constitutional problems with the City of Miami's new anti-protest ordinance, according to this story in today's Sun-Sentinel.

 
Get Thee A Noise Meter…
… and maybe you'll avoid the $7500 in fines that one man received in the last few months for being a tad too loud. Read about it here in today's Palm Beach Post.

 
No Means No
You know that Florida has its own "Do Not Call" list, right? Violating it can cost a few pennies. An unlicensed investment broker, for example, has received fines of $109,500 for calling persons on the state's list. Read about it here in today's Sarasota Herald-Tribune.

By the way, you can learn more about Florida's Do-Not-Call list by looking here.

 
Third District: Rough Deadlines
When have you asked for too many extensions of time to file your appellate brief? Well, according to the Third District's en banc decision in this case, you should continue to receive extensions until the court tells you there will be no further extensions. The case specifically concerned dismissals by Florida circuit courts sitting in their appellate capacity.

 
Eleventh Circuit: Scope of Interlocutory Review
Here's a quick reminder regarding the Eleventh Circuit's jurisdiction when a district court certifies a question for interlocutory review under 28 U.S.C. § 1292: as the court explains in the first footnote in this opinion, the court's review is not limited to the precise question certified but rather regards the entire underlying district court order.

 
Eleventh Circuit: Equality in Miami-Dade County
If you live in Miami-Dade County, you can rest assured that the voting structure regarding the county's incorporated and unincorporated areas is within the bounds of equal protection. Just read this decision from the Eleventh Circuit.



Thursday, February 05, 2004
 
A Perfect Storm
Today's Sun-Sentinel has this interesting summary of the "Perfect Storm" oral argument held yesterday before the Florida Supreme Court. The families of Billy Tyne and others who sailed the real Andrea Gail into a fatal storm are seeking damages from The Perfect Storm's filmmakers for their allegedly false accounts of the ship's now famous voyage.

The case is before the state supreme court based on a question certified to it by the Eleventh Circuit asking, in essence, whether Florida's statute on authorized publication of names or likenesses, section 540.08, applies to this case. The Eleventh Circuit has already rejected the families' other claims, but the court was unsure about how Florida's courts interpret this particular Florida statute. The federal appellate court's decision, available here, is a very interesting opinion.

 
Sexual Predator Warnings
Today's Bradenton Herald has this thought-provoking story about a case that is currently pending before the Second District. Two neighbors are squabbling, as neighbors will, but one of them is a registered sexual predator based on no contest pleas he entered to lewd and lascivious conduct charges in 1989 and 1994. So what happens? Flyers start appearing all over the neighborhood to spotlight the man's criminal past. There is more to the story, but the short of it appears to be that the neighbors wound up in court, with the circuit court ruling against the man who claims the flyers are harassment. The case is now on appeal.

If you are interested in checking Florida's sexual predator database, which will let you search by name, city, or even zip code, just click here.

 
Third District: Attorney's Fees Motions
Rule 1.525 of the Florida Rules of Civil Procedure requires motions for attorney's fees to be filed within 30 days of a judgment's entry. Does that require the moving party to file at the same time the voluminous materials needed to support the motion, such as affidavits regarding the amount of time expended and the fees incurred? No, says this decision released yesterday by the Third District.

 
Questions, questions
In this decision released yesterday, the Third District certified the following to the Supreme Court of Florida as a question of great public importance:

WHETHER A CRUISE LINE IS VICARIOUSLY LIABLE FOR THE MEDICAL MALPRACTICE OF THE SHIPBOARD DOCTOR, COMMITTED ON A SHIP'S PASSENGER?
This certification relates to an earlier opinion in the same case that the court released back in August 2003. Unfortunately, when the Third District posted this certification opinion to its web site, the court overwrote its original decision on the web server. So, at the moment, the original decision is no longer available online. Nevertheless, you can read about it here in an earlier Abstract Appeal post.

 
Third District: Vehicle Impoundment Ordinance Preempted
The City of Miami's extremely harsh (and costly) impoundment ordinance is invalid because it is preempted by the Florida Contraband Forfeiture Act. So says this decision released yesterday by the Third District.



Wednesday, February 04, 2004
 
Schiavo News
A bill prompted by the Terri Schiavo saga has hit a bump in the legislative road. The St. Pete Times reports here that this bill, which would establish a presumption that an incapacitated person does not want a feeding tube removed absent specific directions to the contrary, involves too many unanswered questions for some at this point.

 
Fat Food, Fat Food, Whatcha Gonna Do?
You're gonna not sue. Or so it seems. The Florida Legislature is moving forward on a proposed law that would prohibit Florida law claims against fast food restaurants for selling fattening foods. Today's St. Pete Times has the full story here. Note that the Academy of Florida Trial Lawyers has successfully pushed for language in the bill that creates an exception for cases of improper labeling or misleading information.

 
Just Swear It
The Florida Legislature is on its way to passing a law that would require all people speaking before the Legislature to do so under oath. Read about it here in today's Tallahassee Democrat.

 
"Murky" Prayer Issues
Today's Bradenton Herald has this very interesting story about the prayer lawsuit against the Manatee County School Board. The story does a nice job of introducing some of the legal precedents in this area in a way that most everyone should understand.

 
Making a List, Checking It Twice
Check out this story from the Boca Raton News on U.S. Representative Robert Wexler's suit against various state and county officials to require electronic voting machines to provide printed receipts of a voter's selections. When I first read this, I was a bit shocked to think that the suit is to permit voters to carry home their individual selections in the form of a receipt. But after looking at Wexler's web site, and in particular this earlier press release, I think what Wexler has in mind is that voters would visually review and verify the accuracy of a printed receipt before leaving the voting booth. I am breathing a sigh of relief. A small one.

Perhaps clearing things up a bit more, today's Sun-Sentinel has this story explaining that, in fact, the printers are for voters to confirm their selections. Also, the Sun-Sentinel reports that Palm Beach County yesterday decided to purchase the voting booth printers Wexler wants, though they will likely not be approved and in place before the November 2004 elections. Indeed, the story indicates that the printers are still being designed.

 
First District: Timely Workers' Comp Appeals
Since you only have 30 days to file a notice of appeal from the time a final workers' compensation determination is mailed, what happens if the certificate of service accompanying the final order is incorrectly dated later than the mailing date and you wait until what you think is Day 30 to file your notice? Check out this decision from the First District for the answer.

 
First District: Prevailing Party Costs
A party who prevails on appeal and is awarded costs remains entitled to them even if the paying party ultimately prevails in the litigation. That is the holding the First District reached yesterday in this case. An earlier appeal in the matter had resulted in a nearly $40,000 costs award against the party that, in later proceedings, ultimately prevailed in the case. The trial court assessed the earlier costs figure as a cost to be paid to the prevailing party, but the First District reversed.



Tuesday, February 03, 2004
 
Lenity At Its Finest
Today's St. Pete Times has this story about how the principal of a Tarpon Springs school has decided to reduce a senior's suspension from 10 days to three. The young lady's offense? Circulating a petition to fellow students without first getting school approval. (The petition called for a ban on student dispays of the Confederate flag.)

 
School Board Prayer
A Manatee County couple is suing the local school board for the invocations it uses to begin its meetings. The school board apparently stopped using the Lord's Prayer to open meetings last year, but it seems some officials continue to mention Jesus as the proceedings begin. Read about it here in today's Sarasota Herald-Tribune.

 
Liability's Everywhere
A University of Miami freshman and fraternity hopeful drowned in an on-campus lake when he and two fraternity brothers made a late-night swim. The young man had been drinking, and, intending to cross the lake, he apparently ran out of steam over the lake's center. His estate is now suing the two frat brothers, and the Miami Herald has a story on the coming trial here. The story includes a few interesting legal tidbits, like how one of the estate's theories is that one frat brother should be liable for the death because he did not reenter the water to help the drowning youth after hearing his screams. Also, if the frat brothers are found liable, their parents' homeowners' policies may provide coverage. How many parents of college age, away-from-home children think about whether their policies cover such events, or the impact such events could have on future premiums?

 
The Suits Go On
Coronet Industries is closing a phosphate processing plant, but apparently that will not stop lawsuits aimed at the company over contamination issues. Read about it all here in today's Tampa Tribune.

 
Containing the Winds of Change
Today's Tallahassee Democrat has this latest story on the push to make it more difficult for citizen's petitions to be approved as amendments to the state constitution.

 
Eleventh Circuit: District Court's Deadline Discretion
This decision released yesterday by the Eleventh Circuit tells the sad tale of a small law firm that needed one too many extensions to respond to a summary judgment motion. The district court found that there had been neglect, but not excusable neglect, on counsel's part. The appellate court affirmed the grant of summary judgment and the district court's refusal to consider the untimely response.



Sunday, February 01, 2004
 
Eleventh Circuit: Arbitration Act Limitations
In this interesting case, the Eleventh Circuit determined that, where state law treats arbitration provisions in insurance contracts as invalid, the McCarran-Ferguson Act creates an insurance exception to the Federal Arbitration Act's general rule that arbitration provisions will be enforced in contracts involving commerce. Neat.

 
Eleventh Circuit: Notice of Securities Fraud
Those interested in securities law, and in particular the issue of when a plaintiff is on notice of securities fraud for purposes of a motion to dismiss, should check out this latest decision from the Eleventh Circuit.

 
Fifth District: Nursing Home Care Standards
Last week, the nursing home industry likely frowned when the Fifth District released a decision, discussed in this Abstract Appeal post, that permits personal representatives to pursue claims for "residents' rights" violations not causing death. This week was, well, a new week, and it brought this new Fifth District decision that should make the nursing home industry smile a bit. The court rejected the Agency for Health Care Administration's position that section 400.23(7) requires perfect compliance with a resident's health care plan. Substantial compliance is instead the standard.

 
Second District: Family Law Change
In this case, the Second District reminds us that the presumption from the Mize v. Mize line of cases -- that a divorced parent's request to relocate with a child should be favored when the request is made in good faith -- is no longer the law of Florida. Now, section 61.13(2)(d) provides the analytical framework for such requests.





 
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