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Monday, January 31, 2005
Trivial Update
Well, if you saw the answer to last Friday's Florida Law Trivia question, you know I asked if anyone could think of an old English statute that had not been superceded by Florida or federal law.

Someone has suggested The Bull of Pope Adrian IV for the notion it might authorize our governor to invade Ireland.

I couldn't make this stuff up.

Fourth District: Duty To Warn About Co-Employees' Conduct Outside Work
Duty is one of the law's most basic, and most fascinating, concepts -- at least it is to me. If you agree, then you will definitely be interested in this decision from the Fourth District.

The court considered whether Publix could be negligent, and thus liable, for not telling an employee about another employee's prior conviction for attempted sexual battery on a minor, where a store manager knew that the second employee was babysitting the first employee's child. After a thorough review of how the law views the imposition of affirmative duties to protect others, the district court affirmed the dismissal of the complaint against Publix.

Third District: Preservation of Error
Just a simple reminder here from the Third District that the failure to object to a jury instruction on a particular ground will waive any error regarding that ground for purposes of appeal.

Fourth District: Frye Hearings
If you intend to rely on scientific evidence that must be proven reliable through a Frye hearing, you may be interested in this decision. The Fourth District explained who not to use as witnesses supporting the science's general acceptance: persons who earn a living by using it and thus have a stake in its acceptance.

Fourth District: Eminent Domain
Land use folks may be interested in this decision from the Fourth District, which rejected a condemning authority's argument that it should have been permitted to show mitigated business damages through use of an off-site cure.

Fourth District: Threatening Deportation
Immigration and criminal law fans may be interested in this decision, where the Fourth District considered whether prejudice had been shown from a trial court's failure to advise a defendant of his plea's immigration consequences.

Judge Cortiñas moves fast. He was appointed to the Third District just before the Christmas holiday, and he's already on this decision.

Saturday, January 29, 2005
Friday Florida Law Trivia Answer
Many thanks to those who wrote in with answers to this week's question.

Two of the answers I received were not what I had in mind, and I would say they're not entirely correct, but they're close enough to deserve a sort of honorable mention.

Honorable Mention #1: The 1819 Treaty With Spain and the Spanish law it incorporated. When the United States and Spain arranged the transfer of East Florida and West Florida to the United States, they did so by treaty, and Article VIII of that treaty provided that certain land grants valid under Spanish law remained valid after the transfer. While this meant that sorting out Florida property rights issues in the early Nineteenth Century could require an examination of Spanish law, I don't really see this as making the law of Spain the statewide law of Florida. At least not today. It's close, though, and worth mention.

Honorable Mention #2: The Statute of Anne. Many folks know that section 2.01 of the Florida Statutes adopts the English common law and statutes in effect as of July 4, 1776, to the extent they are not inconsistent with the laws of the United States or the laws of Florida. That would make old English statutes Florida law today. The trouble is finding any old English statute that is not inconsistent with some subsequent state or federal law. The suggested Statute of Anne, for instance, was essentially the first statute giving copy rights to authors of books. It may not be inconsistent with anything under Florida law, but it is sure inconsistent with our federal constitution, Article I, Section 8 of which empowers Congress to create the modern copyright system. If anyone can think of an old English statute that's not been superceded by a Florida law or federal law, please share.

The Answer: The answer I had in mind is the Constitution of 1885, which contains Florida's hidden statutes. Under Article XII, section 10 of the present constitution, which was adopted in 1968 and since been amended, many portions of the 1885 Constitution are deemed to be statutes of this state unless they are modified or repealed. That makes them Florida law that nobody thinks about.

In Williams v. Ergle, 698 So. 2d 1294, 1298 n.5 (Fla. 5th DCA 1997), a district court considering who should pay pretrial detainees' medical costs referenced a provision of the 1885 Constitution and wondered why earlier cases had not picked up on its potential significance. Less recently, in Flack v. Graham, 453 So. 2d 819 (Fla. 1984), the state's high court sure picked up on the hidden "statute" found in Article XVI, section 3 of the 1885 Constitution -- but then that provision referenced judges' salaries. You can be sure no stone was left unturned when that issue was researched...

Have a great weekend, folks.

Friday, January 28, 2005
Answer Coming...
I'm impressed with and surprised by the number of responses to this week's question. I'll post the answer in the morning.

Friday Florida Law Trivia!
Hunter's taking a trivial break today, so I've decided to fill in for him with the Friday Florida Law Trivia question.

Reaching deep into my personal stock of trivial knowledge, here's one to play "stump the judge" with next time you're at a judicial function:

Name a document that sets forth the statewide law of Florida that is not (1) our Constitution, as amended by voters since 1968, (2) the Florida Statutes, enacted of course by the Legislature, (3) the Laws of Florida, to the extent they contain anything not codified in the statutes, (4) a regulation, rule, or order by any branch or agency of state government, or (5) a decision by any court.

Yep, there's something else. If you think you know the answer, email me.

I intend to post the answer late this afternoon, but if no one gets it, I may leave the question up a bit longer in hopes someone will.

Schiavo News
Today's Bradenton Herald has this update.

Fifth District: Recused
Every once in a while, a district's full court is recused from a case. That's what happened in this appeal, where the Chief Justice appointed three judges from the Second District to hear the matter on the Fifth District's behalf. The basis for the recusal is not clear from the opinion.

I was involved in a similar situation once. It was an appeal in the Fifth District, and the other side successfully moved to disqualify the entire court. The Chief Justice appointed three Second District judges to sit as associate judges of the Fifth. The judges held the oral argument in Tampa, which made my drive that morning thankfully shorter. We were in the Second DCA's courtroom, with Second DCA judges, and the Second DCA marshall.

Apparently it felt too much like the Second District. After my client won the appeal, the other side -- who had sought the Fifth's mass recusal in the first place -- filed a motion for rehearing. With the Second District. Oops. Meanwhile, the Fifth District issued its mandate, believing no motion for rehearing had been filed. The other side then had to move the Fifth to recall its mandate and accept the motion for rehearing as being inadvertently filed in the wrong court. Being professionals, we did not oppose that motion. We did oppose the motion for rehearing on its merits, and it was denied. (Rightly so, I might add.)

Fourth District: Attorney's Fees, Preservation of Error
We know that when attorney's fees are sought in a hearing, counsel who performed the work should testify. In this decision, the Fourth District held that the failure of counsel to testify in support of a fee request cannot be raised for the first time on appeal, at least not where the trial judge could rely on an affidavit from counsel and an expert's testimony.

Fourth District: Expert Testimony
An expert cannot simply opine that something happened when the evidence does not support that view. You might think of this principle as the "why and wherefore" test for expert opinions, and you can see a good example of its application in this decision from the Fourth District. The court reversed a judgment in favor of a plaintiff who claimed she was injured by an escalator malfunction. The only evidence of a malfunction was the improperly admitted, and unfounded, conclusion of the plaintiff's expert.

Thursday, January 27, 2005
Third District: Extensions of Time
As further proof the Appellate Practice Group at Carlton Fields is everywhere, one of our members -- Cristina Alonso -- attended a breakfast yesterday at which newly installed Chief Judge Levy from the Third District made an announcement regarding a modification to the court's extensions of time policy.

In the past, the court has allowed the clerk's office to grant up to 100 days in extensions where there is no objection. The new policy will permit the clerk to grant up to 180 days where no objection is made.

I need more work in Miami...

Certificate Silliness
If you practice family law, consider keeping handy a copy of this story from today's St. Pete Times as you consider appropriate alimony obligations.

Second District: Bar Rules Not Whistle-Blower Material
In this case, a former law firm associate attempted to bring a claim under Florida's Private Sector Whistle-Blower Act, asserting the firm fired her for reporting a superior's supposed misuse of funds. Affirming the trial court's dismissal, the Second District held that the Rules Regulating the Florida Bar do not qualify as a "law, rule, or regulation" within the meaning of the Act.

First District: Nursing Homes, Punitive Damages, and Appellate Counsel
This decision from the First District packs a wallop. It's a nursing home case that could be of interest to numerous folks:

1. Nursing Home Litigation Fans -- those on both sides of the aisle will be interested in the court's analysis of the interplay between the nursing home resident's rights statute and the wrongful death statute

2. Punitive Damages Fans -- if you like punitive damages issues, you'll love footnote 6 of the opinion, which explains that a trial court's decision denying leave to amend to state a claim for punitive damages is reviewed for an abuse of discretion where the decision is based on evidence presented at trial. That appears to conflict with the Fourth District's recent decision in this Ford/Firestone tire case, which conducted a de novo review.

3. Anyone Who Tries Cases -- the decision presents multiple discussions on preservation issues, sometimes concluding issues were not preserved, which leads me to remind folks of the importance of having appellate counsel around for trial support. While trial lawyers focus on winning the trial, appellate lawyers (like me) lurk in the background, helping with legal issues and focusing on winning the appeal, should there need to be one.

4. A Certain High Court's Clerks -- see the second sentence of #2, above

Second District: Rule 9.146 Appeals?
Rule 9.146 speaks of parents appealing orders that materially affect them. Does that create a right of interlocutory review? No, said the Second District in this case.

Wednesday, January 26, 2005
Killer's Sentencing Taped
Audio tape? No. Video tape? Uh, no. Duct tape? Yup.

Gay Marriage Suits Dropped
Figuring the current U.S. Supreme Court may be inclined to rule against them, three couples challenging the federal Defense of Marriage Act to force Florida to recognize gay marriages entered elsewhere have abandoned their fights -- so says this article in today's Miami Herald.

Supreme Court: Arbitration and Eleventh Circuit Conflict
Those interested in arbitration or a little state/federal conflict will be blown away by the fun issues raised by this decision. The Florida Supreme Court considered whether an arbitration provision in a potentially usurious contract (here, a check-cashing contract) should be enforced for purposes of allowing an arbitrator to decide the usury issue. There was apparently no dispute that the Federal Arbitration Act covers the check-cashing contract in this case or that if the contract is usurious, then it is void and unenforceable. The question was simply who gets to resolve the usury issue.

Years ago, in the well known Prima Paint case, the United States Supreme Court held that arbitration agreements contained within larger agreements are severable from the main agreement and may be enforced even where the main agreement's validity is challenged, unless the alleged invalidity infects the arbitration provision as well.

In this most recent case, the Florida Supreme Court determined that Prima Paint involved an agreement that was allegedly voidable, not void, and that Prima Paint's rationale does not apply where the main agreement is void. So, according to the Florida Supreme Court, the usury issue is to be determined by a court, not an arbitrator.

Interestingly, the Eleventh Circuit has taken the opposite view, holding that under Prima Paint, the usury issue is to be decided by the arbitrator. The rationale here is that the asserted deficiency in the main agreement (usury) does not implicate the (severable) arbitration agreement, and so off to arbitration the case goes.

The Florida Supreme Court acknowledged the Eleventh Circuit's decision, but the Florida court stated that its decision was being made as a matter of Florida law, not federal law. The court did not explain how that could be so if the Federal Arbitration Act governed the case.

Justice Bell concurred in the result but stated that, in his view, his court was disagreeing with the Eleventh Circuit's interpretation of federal law, not stating Florida law. Justice Bell further explained that the federal court decisions permitting arbitration of a usury claim have improperly elevated arbitration provisions to a favored status.

Justice Cantero dissented. He criticized the majority as failing to understand that federal law, not Florida law, governs here and for getting that law wrong. He agreed with the reasoning of three federal circuit courts (the Fourth, Sixth, and Eleventh) which have recently held that the usury issue must be arbitrated because such a deficiency, if it exists, does not affect the arbitration provision itself.

So, in the end, a federal court in Florida is now going to refer a usury issue to arbitration, while a state court is going to decide the issue itself. Practitioners – if you are on top of these issues, you know there are ways you can move preemptively or in quick response to a claim to make sure you in the forum, state or federal, whose view best suits your client's needs. But only if you're paying attention here…

Supreme Court: Trial Court Jurisdiction
We all know that a trial court lacks jurisdiction to hear a defendant's Rule 3.800 or 3.850 motion while a direct appeal is pending, but is the same true if what's pending is an appeal from a prior motion for post-conviction relief? And does a lack of jurisdiction in these contexts mean an inability even to enter a dismissal order? For the answers, and the announcement of a new procedure for handling successive post-conviction motions in death penalty cases, check out this decision from the Florida Supreme Court.

Tuesday, January 25, 2005
Schiavo News
Well, "cert denied" pretty much sums it up, but those looking for more details on the most recent event in the Terri Schaivo saga may wish to check out the stories in today's St. Pete Times, Tampa Tribune, and Palm Beach Post.

New Law Blog
Florida's blogging community -- er, blawging community -- continues to grow. The latest addition is the Florida ERISA Blog, by Clearwater attorney Marcus Castillo.

Best of luck to you, Marcus. Enjoy it. This blogging thing's a hoot.

Back In Blog
Well, I survived. Barely. I even got a decent night's sleep in. The two briefs I mentioned yesterday were amicus briefs in two rather high-profile intellectual property cases. One is the Grokster case in the U.S. Supreme Court, which is going to be a landmark case that will probably define what kind of technology (devices, programs, etc.) our society will be permitted to distribute in the coming decades to the extent it can play, display, record, or copy copyrighted items such as music, movies, software, etc. Fascinating stuff.

The other brief was an amicus brief filed in the Eighth Circuit, and it concerned another giant copyright issue: the enforceability of shrink-wrap or click-wrap licenses to the extent they require software users to waive their federal fair use rights. More fascinating stuff.

I don't think I'm going to post the briefs here, but if anyone's interested in seeing them, let me know. Nerdy stuff, but then if you're reading this post from a computer screen, nerdy stuff is the way of your world.

Monday, January 24, 2005
Schiavo News
Today, the United States Supreme Court denied Governor Bush's petition for a writ of certiorari in the Terri Schiavo saga.

The petition was the Governor's request to have the nation's high court review the Florida Supreme Court's decision declaring "Terri's Law" unconstitutional.

Happy Day
All of my work over the last several days is about to pay off. I have two briefs going out today in rather neat intellectual property cases, and I have a summary judgment hearing in court this morning. Assuming I survive it all, I'll be back to posting later today.

Friday, January 21, 2005
Friday Florida Law Trivia Answer
Under this statute, when the State of Florida takes your property under its eminent domain power, you are entitled to a twelve-person jury to determine the amount of compensation you are due.

Have a great -- and warm -- weekend.

Friday Florida Law Trivia!
I am sorry about missing the trivia question last week. Actually, I was not in jail, as Matt said, but rather I was in prison. Thankfully, I was a visitor there (for purposes of a case) and not a resident! Besides, I don't think I could get my homestead exemption if I claimed a cell as my residence. (Actually, that could be the makings of a good trivia question in the future...)

Anyway, today's question is inspired by last week's visit. A defendant accused of a capital crime is entitled to a twelve person jury in Florida. What is the other type of case in state court where a person is entitled to a twelve person jury?

The answer will be posted later today.

Abstract Pause
Work calls. And calls... Be back to blogging soon.

Thursday, January 20, 2005
Fourth District: Rule 1.442 and General Releases
If you are following the case law regarding offers of judgment that require a general release, you may be interested in this decision released yesterday by the Fourth District. The court rejected an argument that an offer was invalid because it failed to attach the general release. The court explained that the offer's summary of the release's substance was sufficient.

Recall that last year, in this case, the Fourth District held that an offer requiring a confidentiality agreement or a release is invalid (as insufficiently particular) unless the offeror sets forth the terms of the agreement or attaches the actual document.

Wednesday, January 19, 2005
Second District: Fireworks
Did you know that chapter 791 generally prohibits the sale of fireworks in Florida? There are a few exceptions, such as when fireworks will be used for "frightening birds from agricultural works and fish hatcheries."

In this decision by the Second District, Chief Judge Altenbernd made the following observation about the apparent disconnect between Florida law governing fireworks and the annual proliferation of roadside fireworks vendors in Florida around certain holidays:

[A]nyone who has ever lived in Florida in the weeks surrounding the Fourth of July or New Year's Day has observed that countless tents selling standard fireworks pop up along roads near residential neighborhoods just before the upcoming holiday and disappear as soon as the holiday is over.

A stranger to our state would be forced to conclude that these nomadic purveyors of fireworks ply their wares to a large population of fish-farmers and other agriculturalists who are plagued by avian infestations. The stranger would assume that the pesky birds became intolerable shortly after dark on July Fourth and immediately following midnight on January First. Unfortunately, after the birds are frightened away and the tents have moved on, the stranger would realize that adults and children with serious injuries were left behind.
The case concerned a fireworks seller's argument that a Pinellas County fireworks ordinance is invalid because it is preempted by state-level fireworks regulation. The court ultimately ruled in favor of the county in all respects except one, which concerned punishment under the county regulation. Those interested in this area might check out footnote 6, which considers how chapter 791 might be enforced.

The case is also noteworthy for its brief discussion regarding stipulated judgments.

Monday, January 17, 2005
Voucher Case
Those following Bush v. Holmes will be interested in this story in today's Bradenton Herald.

Sunday, January 16, 2005
Fifth District: Pro Se Appeals
If a trial court orders a person not to file any additional materials pro se, and the person then files a pro se notice of appeal, can the trial court strike the notice as unauthorized? In a word, no.

Fifth District: Minute Entries Not Rendered Orders
In this decision, the Fifth District reminds appellate-minded folks that minute entry orders, even if labeled "court minutes/order," are not reviewable rendered orders for purposes of a petition for writ of certiorari.

Fifth District: Counseling
Family law practitioners may be interested in the Fifth District's discussion in this case about when a trial court may order a party to receive counseling when that relief was not specifically requested by any party. The counseling at issue in this particular case was for anger management.

Second District: Dropping Parties
If you'd like to be reminded which rule of civil procedure to utilize when dropping one of multiple parties to a case and which rule to utilize when dropping the entire case, the Second District has your reminder here.

Oklahoma attorney James Dee Graves has now joined the blogging (and blawging) ranks with OK Blawg. His first substantive post concerned a federal age discrimination suit filed by Oklahoma Supreme Court Justice Marian Opala against his colleagues for passing him up for the chief justice slot. Wow. You can read that very interesting post here.

Saturday, January 15, 2005
Friday Florida Law Trivia Answer
I was glad to see many folks write in with correct answers to the trivia question. Some of the opinions offered by the expert in the story are debatable, but there is one chief problem with the story itself, and it is found in the following set of statments: The story says that courts have consistently ruled that loved ones can act as surrogates to say what a person who can't respond would have wanted. "In other words, Terri Schiavo's husband, Michael Schiavo, who says she would want the tube removed, takes precedence over her parents, who want it to stay." That may be the result in some hypothetical world, but it has nothing to do with what happened in the Schiavo case.

In the Schiavo case, Terri's husband and parents disagreed over what they believed Terri would want. Michael went to court and asked the court to act as Terri's surrogate and determine who was correct about what she would have wanted. In essence, he asked the court to do what courts often do -- resolve factual disputes between parties by hearing from each side and determining which side's evidence is more persuasive. The court held a trial, heard the evidence the parties wished to present, and determined that the evidence clearly and convincingly showed that Terri would not choose to continue receiving nurishment through a feeding tube in her present condition. That decision was upheld on appeal.

In my personal view, the misunderstanding that Terri's husband made the decision to remove Terri's feeding tube has been an ongoing source of undeserved scorn for Florida's judiciary. A great number of people have reacted to this misbelief by questioning the wisdom and even the legitimacy of a court system that would simply do whatever a spouse says, even if it means to end the other spouse's life. Add in accusations that the spouse seeking to pull the proverbial plug is driven by a desire to control the couple's assets or obtain life insurance proceeds, or that the other's medical condition is the result of spousal abuse, and suddenly the judiciary looks like a gaggle of puppets.

The Florida judiciary is no assemblage of dolts. It is an honorable branch of our state government, operated by talented and often extremely wise people who attempt to promote the ends of justice in every case they encounter. Terri's wishes were explored in a full trial, with evidence on all sides, and a court weighed that evidence and reached a decision on what she would do. That decision was appealed and affirmed. It was also questioned in a second trial on a new issue raised by Terri's parents, but the result remained the same, and that too was affirmed on appeal.

I understand that people disagree with the court's decision. Some believe the court made the wrong choice. Others don't know but believe that if there's any question at all then the error should be on the side of continuing the medical treatment that's keeping Terri alive. I was not at the trial, and if my experience as an attorney has taught me anything about trials it's that they're very difficult to second guess unless you were there. Even reading the entire transcript and examining the evidentiary exhibits is often not enough to give you the perspective of the factfinder, be it a judge or a jury. So I have no opinion on whether the court "got it right."

I also appreciate that Florida law requires the person's wishes to be determined only by clear and convincing evidence, not a simple preponderance of the evidence or by uncontested evidence. The trial judge determined that Terri's wishes were shown by clear and convincing evidence, and the appellate court agreed that such a high level of evidence existed.

I will conclude this post with a poignant excerpt by Judge (now Chief Judge) Altenbernd, who four years ago this month wrote the appellate court decision affirming Judge Greer's decision regarding Terri's wishes:

[T]he Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court's decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence. See In re Guardianship of Browning, 543 So.2d at 273.

In Browning, we stated:

In making this difficult decision, a surrogate decisionmaker should err on the side of life.... In cases of doubt, we must assume that a patient would choose to defend life in exercising his or her right of privacy.
In re Guardianship of Browning, 543 So.2d at 273. We reconfirm today that a court's default position must favor life.

The testimony in this case establishes that Theresa was very young and very healthy when this tragedy struck. Like many young people without children, she had not prepared a will, much less a living will. She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.
You can read the Second District's full opinion from January 2001 here.

Friday, January 14, 2005
Friday Florida Law Trivia!
In lieu of a normal Friday Florida Law Trivia question, and in Hunter's absence, I'll combine trivia and the ongoing Schiavo saga to ask this question:

What's wrong with this story in today's St. Pete Times?

I'll post the answer late tonight.

Trivial Lockup
It turns out Hunter's in jail this morning. Literally, though not necessarily to stay. I suspect he's just visiting, though you never know with him. In his absence, if I can think of a Friday Florida Law Trivia question, I'll go ahead and post it for him later this morning.

Supreme Court: Parental Notification Amendment – It's Over
On Wednesday, in this post, I mentioned the motion for rehearing filed in the ACLU's partially successful challenge to the 2004 parental notification constitutional amendment, which voters approved in last November's election. The motion addressed the Florida Supreme Court's decision not to write an opinion explaining its initial, unelaborated order requiring the proposal's ballot summary to be replaced with the proposal's text. The motion also addressed the merits of the original order.

Well, as Mick and Keith once sang, it's all over now. Yesterday, in this order, the court struck the rehearing motion as unauthorized, relying on the "no motion for rehearing will be allowed" language in the original order.

Fourth District: Extending Time In Statutory Proceedings
Here is a case that should interest trial and appellate lawyers for its discussion about when the rules of procedure do not permit courts to modify time requirements in statutory proceedings. There is a level of detail to the court's inquiry that I suspect is routinely missed when considering time issues. There is also a very interesting dissent by Chief Judge Farmer that calls the majority's analysis dicta, and wrong.

Third District: Prejudgment Interest
Here is an interesting decision from the Third District regarding prejudgment interest. Prior to any order being entered requiring payment, one party tendered an amount owed to the other, and the latter rejected the tender. Once the amount was judicially determined to be owed, the trial court did not calculate prejudgment interest for the time when the money would have been in the winning party's hands had it accepted the tender. The district court reversed, holding that that trial court was required to award the full amount of prejudgment interest because the tender was not accepted nor was the money deposited into the court's registry.

That result is certainly something to consider when a tender is rejected.

Fourth District: Res Judicata and Splitting Causes of Action
If you're a fan of legal theory on causes of action, you are probably aware of this October 2003 decision from the Fourth District. Well, it's no longer good law. On Wednesday, the court withdrew that decision with the release of this en banc decision. The full court split over how to apply Florida's rule against splitting causes of action. An interesting read, and an interesting set of issues.

Second District: Tax
Tax folks may be interested in this decision from the Second District, which viewed a statute giving property appraisers the ability to adjust valuations retroactively as itself not being retroactive. The court certified potential conflict with another district's decision.

First District: PPR and A Tipsy Coachman Limitation?
Family law practitioners may be interested in this decision from the First District for how it addressed, or perhaps refused to address, the appellant's primary physical residence challenge.

Appellate folks may also be interested in Judge Browning's views, expressed in dissent, on how the tipsy coachman rule should be applied only when the alternate basis for affirmance was advanced by one of the parties, with exceptions for matters of jurisdiction, public policy, and illegality.

Interesting. What would that do to PCAs?

Second District: Insurance Coverage
It's always interesting to note when a Florida court disagrees with a federal court's interpretation of Florida law. That occurred this week in this case, where the Second District held that on plenary appeal an insurer can challenge not only the lower court's decision on coverage but the decision on the scope of coverage, even if the matter has been submitted for appraisal. By comparison, in this 2004 case, the Eleventh Circuit held that once coverage is determined and submitted to appraisal, the insurer can only dispute coverage as a whole.

Questions, questions
I blogged the Fifth District's decision regarding criminal restitution below (in this post), but I forgot to mention that the decision ended with the district court certifying two questions to the Florida Supreme Court as questions of great public importance:


By the way, the restitution award in the case, which was reversed for not taking into consideration certain liabilities the decedent would have faced, was over $2 million.

Wednesday, January 12, 2005
Post-Blakely: Booker Is Out
Earlier today, the U.S. Supreme Court released its encore to the decision in Blakely v. Washington. Blakely held that states may not increase sentences beyond statutory maximums based on facts not submitted to a jury and proved beyond a reasonable doubt.

The new decision is United States v. Booker, which addresses the jury-as-factfinder issue in the context of the federal sentencing guidelines. You can read the court's opinion here.

Appellate Review
Whether you're a newbie to appellate practice, a seasoned practitioner looking for certification as an appellate specialist, or a board-certified appellate attorney looking for certification CLE, consider attending the 2004 Appellate Practice Certification Exam Review Course. The single-day course will be held on February 4 in Ft. Lauderdale and will cover civil and criminal appeals in state and federal courts as well as administrative appeals and extraordinary writs.

The course is a great review of the practice and an update on important practice-related developments. It is approved for 7.5 hours of certification credit. (Yes, appellate specialists, those are the credits you need 50 of roughly every five years.)

The brochure for the course is available here.

Eleventh Circuit: Judge Pryor Challenge
Remember the effort to invalidate Judge Pryor's appointment to the Eleventh Circuit on grounds it was an invalid recess appointment? For more, check out this Abstract Appeal post regarding Senator Kennedy's views and this prior post regarding the Eleventh Circuit's order in Evans v. Stephens, which rejected an attempt to disqualify Judge Pryor.

Evans has been appealed to the U.S. Supreme Court, and the petitioner requested that consideration of the certiorari petition be expedited. On Monday, the court's order list included an order denying the motion to expedite.

Schiavo News
The Schindlers continue their efforts to remove Michael Schiavo as Terri's guardian with this amended motion.

A couple of astute readers have asked me whether this effort is meaningful, since the decision to remove Terri's feeding tube was not made by the guardian -- it was made by the court based on what Terri would choose to do.

Yes and no.

It's true that the decision on the feeding tube was made by the court and constitutes a formal judicial finding of Terri's wishes, and in this sense a change in guardian could not directly change the decision on Terri's wishes. But if a guardian who shared the Schindlers' point of view were appointed, that person could change the saga's dynamic. The guardian could attempt to look for evidence Terri might recover with some treatment or another or that she is no longer in a persistent vegetative state. Or the guardian could appear in any of the ongoing appellate proceedings (as a party or an amicus) and agree with the Schindlers or the Governor, as the case may be. Or...

Supreme Court: Parental Notification
Those who've followed the judicial review of 2004's parental notification constitutional amendment will be interested in this motion for rehearing filed by the ACLU.

The quick story here is that the ACLU challenged the proposal's summary as misleading, prompting the Florida Supreme Court to issue this order directing the Secretary of State to remove the Legislature's summary from the ballot and replace it with the proposal's text. The order stated that an opinion would follow. After the election (at which voters approved the proposal), the court issued this unanimous follow-up order which said that no opinion would issue after all.

The motion for rehearing challenges the court's original order and the court's decision not to explain that order.

For more on these events, see this prior post, and this one.

Fifth District: Criminal Restitution
If a person commits murder, can the restitution ordered in the criminal proceedings include an award to the decedent's estate for lost wages? How about lost wages for the decedent's family who have the right to be present at trial? Yes, and no, said the Fifth District in this case.

Tuesday, January 11, 2005
Second District: Arbitration
Arbitration fans will be very interested in this case from the Second District. Expanding on a decision the court issued last year, the Second District has squarely placed Florida in line with federal case law interpreting the Federal Arbitration Act to require arbitrators to determine the enforceability of an arbitration agreement’s limitations on statutory remedies, particularly where the agreement contains a severability provision. This result precludes an argument that an arbitration agreement is unenforceable merely because it waives a person's statutory remedies.

First District: Ex Post Facto
If you enjoy a good read on the retroactivity, check out this decision from the First District. The court upheld application of last year’s court costs increases to a defendant who committed his offense before the increases became effective.

Monday, January 10, 2005
Gay Adoption Decision Stands... Again
Today, the U.S. Supreme Court denied certiorari to review the Eleventh Circuit's decision upholding Florida's ban on adoption by homosexuals.

For more on the cert denial, check out this story from the Associated Press.

For more on the Eleventh Circuit's decision (I called it a "must read"), check out this Abstract Appeal post from January 2004.

Saturday, January 08, 2005
Schiavo Thoughts
Ok, getting back to the post I should have added last night (but didn't due to the arrival and setup demands of a new dvr...)

First, some thoughts on the status of things at the U.S. Supreme Court. The court's docket shows that Governor Bush's petition for writ of certiorari is scheduled for conference on January 21, which means that date is when the justices should vote on whether to accept review of the case, with the result being released with the court's order list on the following Monday.

Realistically, though, there are three possibilities. The court could deny the petition and refuse to hear the case. Also, the court could defer ruling on the petition until another conference date. Finally, the court could defer ruling and request a response from Michael Schiavo, who chose to waive his response. That's it. I know I didn't include that the court could grant the petition -- that is a possibility, but it is not likely to happen on January 21, since the court traditionally does not grant petitions without receiving or at least requesting a response from the respondent. The court could request a response, reschedule the case for another conference date, and then decide to grant the petition and hear the case.

Now I'll turn to the Schindlers' latest motion for relief from the original judgment, a motion that is available here. It presents three arguments as to why the original judgment should be declared void, and thus a nullity: (1) Terri was not represented by counsel during the proceeding to determine her wishes; (2) the trial court applied the wrong law to the case, depriving Terri of due process; and (3) the trial court's role as judge of Terri's wishes violated the constitutional principle of separation of powers.

I am not going to comment on the merits of these arguments, but I will try to add context to them with a few observations.

I will begin with an overarching observation: there is a significant difference between whether an error exists in a case and whether an alleged error amounts to a defect that renders the ultimate judgment a nullity. So each of the three arguments here can be examined in two ways: (1) whether the asserted defect is of the sort that would void the judgment, and (2) whether the asserted defect actually exists.

As to the first argument, keep in mind that an attorney is only half of an attorney-client relationship. Attorneys do not -- or at least cannot, without the client's consent -- simply make significant decisions affecting their clients' interests. Attorneys are counselors. They advise, and after giving advice and consulting with their clients, they take legally meaningful action on their clients' behalf. So an argument that Terri should have been represented by counsel is not the same as an argument that Terri should have had a guardian or a guardian ad litem. (I'll note, parenthetically, that Terri has had a guardian, and the Schindlers previously raised the guardian ad litem argument before the Second District, which rejected it in this decision.)

Regarding the second point, a reader emailed me yesterday to remind me of an Abstract Appeal post from November 2003 -- this one. There, I answered a reader's question that concerned similar issues but not the issue actually raised here. I'll refer folks to that old post for discussion about this area, but I emphasize that the analysis there does not address the specific issue now being raised.

Finally, on the third argument, I note that this point is rather similar to the first point raised in the Governor's cert petition. Both stem from an underlying notion that a judge cannot constitutionally serve (under Florida's constitution) as a decisionmaker in cases where a ward's close family members and/or the surrogate cannot agree on the ward's wishes. I have seen no press coverage of this concept, which strikes me as odd because its implications are fascinating. Who is a constitutionally permissible decisionmaker? I note that conflicts such as the one in Terri's case can arise even if a living will exists. Very interesting.

Why Post?
I could just leave Hunter's q&a up the whole weekend, right?

Friday, January 07, 2005
Friday Florida Law Trivia Answer
Some good-ol' fashioned consummation will prevent a marriage from being annulled for fraud, according to this recent decision from the Second District.

Have a GREAT weekend!

Friday Florida Law Trivia!
Well, I'm back. Sorry for being gone for a bit, but I really enjoyed the Holidays. Let's start the New Year right with a good, fun trivia question!

If a marriage is entered into by fraud, what will prevent either party from annulling it?

The answer will be posted this afternoon.

Schiavo News
There are a couple of updates to note regarding the Schiavo saga. I'll give them in only basic detail now, with some longer explanations to follow late today.

First, the U.S. Supreme Court is currently scheduled to consider Governor Bush's certiorari petition later this month. We may have a decision on whether the court will take the case soon.

Second, the Schindlers yesterday filed a new motion for relief from the original judgment regarding Terri's wishes, asserting the judgment is void. You can read the motion here, thanks to the folks at Terri's Fight.

Thursday, January 06, 2005
First District: Appealing Additurs (or Remittiturs)
Question for appellate folks: if a jury enters an award in your favor, and the trial judge grants you an additur, can you appeal the additur as insufficient? In 1997, the Second District said no, on the basis that you're not adversely affected by the additur within the meaning of section 768.043(1). Last week, though, in this case, the First District disagreed.

Fourth District: Producing Privileged Documents
This case presents a brief reminder from the Fourth District regarding the need for an in camera inspection or evidentiary hearing before assertedly privileged materials are ordered produced.

Hey, Legislature
Judge Villanti has a suggestion for an amendment to the standard sex offender probation conditions that would help keep sex offenders away from children. See his concurring opinion in this case.

Fourth District: Prejudgment Interest
Trial lawyers and appellate lawyers may be interested in the Fourth District's discussion at the end of this case. The court addressed how to handle a judgment resolving all issues except prejudgment interest, for which jurisdiction is reserved. In the case, the right to prejudgment interest was lost.

Second District: Lack of Transcript
It appears the lack of a transcript was only part of the basis for the Second District's referral to The Florida Bar in this case.

First District: Child Abuse Cases
Those interested in the proper scope of expert testimony in a child sexual abuse case may want to consider the differing views presented in this case from the First District.

Second District: Wrongful Death Settlements
In this decision, the Second District noted that when wrongful death claims are settled, the court should be presented with the proposed attorney's fees and costs at the same time the court considers approving the proposed settlement.

Fifth District: Rules of Professional Conduct
In this decision, the Fifth District granted a petition for certiorari, holding the trial court should have disqualified the respondent's counsel. The decision contains an interesting discussion about representing persons in matters adverse to existing clients, as opposed to former clients.

First and Fourth Districts: Class Actions
Class action fans will be interested in this decision, in which the First District followed federal precedents to hold that a settlement with the named plaintiffs in a putative class action, while a certification motion is pending, does not moot the class action. In the case, though, an intervenor appeared as a possible representative.

Also noteworthy is this class action decision from the Fourth District, which engaged in some interesting discussion and reversed a certification to the extent it relied on Rule 1.220(b)(2).

Retiring South?
I found it interesting to spot two judges who retired from the Fifth District, Judge Cobb and Judge Harris, serving as senior judges in two Third District cases: this one and this one.

Wednesday, January 05, 2005
Faithful Service... But in Florida?
Here is a story from the Tampa Tribune on how Florida's religious organizations have received $67 million in funds to be used for social services, like caring for the homeless and housing the elderly.

That's interesting, but what I'd really like to see done is a report on whether any of the grants discussed in this story could be lawfully given by the State of Florida despite Article I, section 3 of the Florida Constitution, as the First District interpreted that provision in this case. There's a great story here.

Bad Law
Folks in Charlotte County who were arrested for breaking the county's curfew in the wake of Hurricane Charley have lucked out: the state attorney's office admits the law was not validly enacted. Read about it here in the Daytona Beach News-Journal.

Line Spacing Makes News
Last weekend, I was surprised to see this story in the St. Pete Times concerning the line spacing order released last month by the Fifth District. And I thought only appellate attorneys could care about that sort of thing.

I never did find out what really happened with the petition's spacing in that case, but I did offer these thoughts on the whole line spacing controversy.

Back In Blog
Whew. The down side to taking a few days off from work is that, when you return, there's too much to be done to do anything else. So I've had to put off the blogging for a few days, and now I'm finally caught up. Back to the blog.

Monday, January 03, 2005
New Year Pause
The holiday weekend may be over but not so for a series of things keeping me busy, and as a result I'm going to extend my holiday break from the blog until Wednesday morning. I hope it's been a wonderful start to the new year for everyone, and I hope you'll stop by again on Wednesday.

Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.

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