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Monday, February 28, 2005
 
Schiavo News
Terri's parents have apparently filed a petition for Terri's divorce from Michael Schiavo -- so reports today's news. I'm waiting for more details before I comment.

 
Schiavo News
Well, I took yesterday off from this controversy, which has left me behind in answering email. I'll get there. Also, if you're still curious, the St. Pete Times did have this story yesterday on the saga, and Daniel Ruth from the Tampa Tribune had this opinion piece.

 
Second District: Feline Tendencies, And Candor Regarding Settlements
Where exactly does a cat that's out of the bag go? Well, in this order on a motion to vacate a prior decision for mootness, the Second District gives us one possible answer. Rejecting the motion, the court explained:

At this point, the cat is not only out of the bag, it has curled up and is nestled in one of the bound volumes of the Southern Reporter. Whether or not we withdraw the opinion, it will be available to the bench and bar for the foreseeable future and is likely to be cited.
On a more somber note, the district court also entered this separate order in the same case, sanctioning the attorney whose settlement mooted the appeal but who failed to inform the appellate court of that development. There was no appearance by an appellee in the case, and it appears the attorney wished the court to rule on the appeal's issue because of its relevance to other litigation.

 
The Art of Understatement
The factual recitation in this arbitration decision from the Fourth District includes the following:

The SSB analyst assured him that he had analyzed WorldCom and recommended holding onto it because “it would break triple digits by the end of the year.” Needless to say, something bad happened to WorldCom. The retiree lost all value from his WorldCom portfolio.
Nice win, Rebecca.

 
First District: Emotional Distress and Employers' Duties
This decision from the First District includes a quick rejection of an emotional distress claim against an employer and an intriguing discussion of why the employer had no duty to avoid a potential harm to its employee.

 
Second District: Fees Against Insurers
A claim is made on a life insurance policy. Neither a payment nor a denial is made within the following 60 days. The claimant then sues for payment, but payment is made before the insurer is even served. Is the insurer liable for fees for the suit? Yes, said the Second District in this decision. The court relied on section 627.428, which generally provides prevailing insureds a right to fees but excepts life insurance and annuity cases where suit is filed within 60 days of making the claim.

Chief Judge Altenbernd offered a partial dissent. He observed that neither the policy at issue nor a statute expressly required payment within a 60-day period, and the insurer had not denied the claim. In his view, the majority gave the plaintiff a cause of action for fees.

Interesting case.

 
First District: Tax
Tax decisions are not common. So those who follow tax issues may well be interested in this opinion from the First District. The district court held that, in a taxpayer's challenge, a trial court may permit alternative security arrangements besides full payment of the disputed amount.

 
Second District: Mechanics' Liens
Where a trial court orders additional security in a mechanics' lien context and the party fails to comply, the party's pleadings may not be stricken absent findings of willful noncompliance. So said the Second District in this case. Much like with discovery violations.



Saturday, February 26, 2005
 
Schiavo News
Today's local Schiavo news roundup includes stories from the Sun-Sentinel, St. Pete Times, and Palm Beach Post.

Without picking, I'll note that one of these stories contains a quote so off base, legally speaking, that printing it seems irresponsible.

 
Hmmph
I've been flattered, and even honored, that numerous folks have linked to the Info Page on the Schiavo saga. The "Dossier over Terri Schiavo" link at this site, though, really caught my eye -- is that a Dutch news agency?



Friday, February 25, 2005
 
Schiavo News
Well, Judge Greer's latest order is being distributed, and I've posted a copy here.

In short, the order explains that no further stays will be granted. It directs Michael Schiavo to remove Terri's feeding tube at 1 pm on March 18, 2005. The time between now and then will permit the Schindlers to appeal this order and obtain a stay in any of the other appeals they are currently pursuing. It will also permit the family time to arrange for sacramental steps, such as last rites.

To those who may be surprised by the order's directive, keep in mind that the directive to remove the tube (as opposed to allowing the husband to do what he wants) is consistent with the notion that the court has determined how Terri would exercise her privacy rights and that she would choose not to continue receiving life-prolonging measures in the form of her feeding tube. Removing the tube is not a decision by the guardian. It is a decision by the court.

 
Schiavo News
Word is circulating that Judge Greer has ordered the stay extended until March 18, at which point Terri's feeding tube is to be removed. I'll have more to say when I see the judge's order.

 
Schiavo News
Terri's collapse occurred 15 years ago today.

Here's today's local roundup:

The Orlando Sentinel has this story, and columnist Mike Thomas has this piece on the views of the guardian ad litem who advised the Governor.

The St. Pete Times has this story on Terri's medical outlook, this story on the legislature's potential involvement, this story on a business located near the Hospice caring for Terri, and this editorial on the case's future.

Today's Bradenton Herald has this story on DCF's involvement and this rather rare story on Terri's eating disorder.

Finally, stepping outside Florida for a second, Philadelphia Inquirer columnist John Grogan has this piece.

 
Fun With Fonts
A certain court out there is obviously having too much fun changing its fonts and then changing them back. Or maybe folks like me are having too much fun noticing...

 
Schiavo Thought
My thanks to a reader who pointed out that Judge Greer entered a November 2002 order on the bone scan issue, wherein he concluded that the Schindlers, through their attorneys, had the scan in their possession prior to 2002. Apparently there was no argument by the Schindlers that the bone scan had been secreted or intentionally withheld from them. Judge Greer also determined that the bone scan was not relevant to the issue of Terri's wishes. I've modified the Info Page Q&A and Timeline accordingly.

 
Supreme Court: Arbitration, Eleventh Circuit Conflict
Arbitration fans are having a great run nowadays, as we keep getting more and more interesting decisions on the subject. Take this decision from the Florida Supreme Court.

Florida's district courts have been split on the issue of whether prejudice is required to show a waiver of the right to arbitrate. Interpreting both the Florida Arbitration Act and the Federal Arbitration Act, Florida's high court held that prejudice is not required for a waiver to exist. Conduct inconsistent with the arbitration right is sufficient.

Note that this result directly conflicts with the Eleventh Circuit's view of the federal act. In the Eleventh Circuit, a waiver will not be found without a showing of prejudice.

 
Supreme Court: Criminal Jury Instructions
Folks interested in jury instructions in criminal cases may want to look at this decision released yesterday by the Florida Supreme Court. The court addressed whether omitting certain instructions unsupported by evidence (age of majority, excusable and justifiable homicide) constituted fundamental error. The court said no in each instance.



Thursday, February 24, 2005
 
Fourth District: Rule 1.442 and General Releases
There are developments outside the Schiavo case, and I do intend to get to them at some point. How about starting with a post on settlement offers and general releases? I'm puzzled by how the two go together, at least in the Fourth District.

You see, in this case, the Fourth District approved a settlement proposal, finding it unambiguous after rejecting the appellant's argument that the offer implicitly required the execution of a general release that was not provided.

In reaching that conclusion, the court discussed general releases in these terms:

[I]t would be a rare (if indeed there are any) offer in which we would infer an unstated requirement of a general release. If an offer is to include the requirement of a release, general or otherwise, it will have to say so explicitly. Generally, it is not for judges to infer additional requirements into otherwise plain and unambiguous offers of settlement.
Sounds good. But my list of general releases authorities also includes Erhardt v. Duff, 729 So. 2d 529 (Fla. 4th DCA 1999), where the same court considered whether an insurer accepted a settlement offer for policy limits or made a counteroffer when the insurer conditioned its acceptance on the offeror's execution of a general release. The Fourth District held it was an acceptance, not a counteroffer, because executing a general release was "implicit" in the offer. According to the Fourth District in Erhardt, "it would have made no sense" for the insurer to tender its policy limits if it could still be liable for further claims based on the same incident. Citing a Third District case, the court referred to settlement documents such as the general release as "a mere procedural formality."

Do we have interdistrict conflict, intradistrict conflict, or no conflict at all? Neither the new case nor Erhardt seemed to turn on any unique facts. So is execution of a general release never implied? Always implied? Always implied in insurance cases -- where policy limits are already tendered?

 
Schiavo News
Well, I've continued to work on the Info Page. I still have much more to finalize on the Q&A section, but I've gone ahead and posted an updated page. It contains some new thoughts from me and an updated timeline with links to most of the judicial decisions. At a reader's request, I've even located and posted on my site a copy of Judge Greer's original February 2000 order regarding the trial on Terri's wishes. Only a few of the Q&A's are updated. The remainder will be updated as soon as possible.

As for news, the reports were correct yesterday about the Department of Children and Families seeking to intervene in the case. According to reports, Judge Greer refused to consider the motion yesterday.

Meanwhile, the stay on the tube's removal remains in effect, at least through Friday. Judge Greer is considering whether a longer stay should be entered to permit additional appeals.

Read the local coverage in today's St. Pete Times, Tampa Tribune, and Orlando Sentinel.

Also, Howard Troxler of the St. Pete Times has this column today on the subject, Tom Lyons of the Sarasota Herald-Tribune has this column, and Mike Thomas of the Orlando Sentinel has this column.



Wednesday, February 23, 2005
 
Schiavo News
Word is coming out that the hearing before Judge Greer today resulted in the judge taking matters under advisement, at least until Friday. So the stay on the feeding tube's removal has been extended until then.

Apparently, the Department of Children and Families has also asked for leave to intervene in the case. It's not clear yet what the asserted basis for intervention is. This would appear to be action taken at the Governor's request.

Links to follow.

 
Schiavo Thoughts
I had an oral argument in an appeal this morning, and on my drive back from court I spent over an hour listening to a popular national talk radio show, one I often enjoy and which I used to listen to daily (back when my schedule would permit).

The topic was Terri Schiavo.

Unfortunately, the host was completely uninformed about the actual procedural history of this case, including how the decisions were made, by whom, that Terri did receive therapy for years, that the Schindlers had doctors examine Terri for each of the two trials in this case, that two trials were even held, and that the court had appointed its own independent doctor to examine Terri and who agreed with the conclusions reached by Michael Schiavo's doctors.

People who know nothing about the case but heard that show were totally misled. I can't blame folks for thinking Florida's judiciary has lost its collective mind if you believe the things being said on that show.

It's one thing to disagree with the law, or to disagree with a decision reached after a trial. That's perfectly acceptable and gives rise to healthy debate. But it's another thing altogether to distort the procedural history of how things got where they are in this case, especially when the misinformation is used to condemn people involved.

I'm still revising my own information page on the saga. I'm hoping to be done tonight...



Tuesday, February 22, 2005
 
Schiavo News
As you've probably heard, and not unexpectedly, Judge Greer entered an extended stay today that keeps Terri's tube from being removed until a hearing is held Wednesday.

 
Schiavo News
A kind reader sent me a copy of the Second District's order from yesterday, denying a motion by the Schindlers to stay issuance of the court's mandate. The order, available here, indicates that the court's mandate will issue at 1 pm today.

The St. Pete Times has an update here.

Most interesting, the reporter indicates that a "court spokesman" erroneously informed the media yesterday that the stay on the feeding tube's removal had been extended to Wednesday. I suppose we'll find out for sure today, since Michael's attorney has made clear Terri's tube will be removed at the earliest opportunity and, barring an extension of the last stay order, that would seem to be after the Second District issues its mandate today.

To catch folks up on where things are at the moment, in 2004, the Schindlers asked the trial court to vacate the original ruling regarding Terri's wishes based on what they characterized as new evidence concerning Terri's religious beliefs. The new evidence was this speech given by Pope John Paul II. You can read the motion for relief here. Judge Greer denied that motion in this order. He ruled that the same considerations regarding the Catholic Church's beliefs were already taken into account in the original trial and that the Schindlers had still not presented him with a religious person who had advised Terri and could speak to her beliefs.

Judge Greer also entered this order that stayed the tube's removal until Terri's parents had a chance to appeal his decision to the Second District. By its terms, the stay expires when the Second District issues its mandate. Well, the Second District heard the Schindlers' appeal, rejected it, and as mentioned above, the mandate returning the case to Judge Greer is scheduled to be issued at 1 pm today.



Monday, February 21, 2005
 
Schiavo News
The Orlando Sentinel reports here that the Second District has rejected a last-minute effort by the Schindlers to have the court withhold its mandate in the most recent appeal. The mandate is scheduled to be issued tomorrow, and with it the current stay on the removal of Terri's feeding tube will expire.

UPDATE: Today, Judge Greer reportedly extended the stay through Wednesday to permit a court hearing.

 
Schiavo Update -- Questions Wanted
I started this site to be informative about Florida law. I started blogging the Schiavo events because I saw a need for accurate legal information about that particular case. I also saw an awful lot of misinformation about the case being spread by the media and the public -- especially on the Internet, where it's sometimes hard to tell those two apart.

With the latest stay on the removal of Terri's feeding tube about to expire, I think it would be helpful to rewrite my own information page on the Schiavo saga. I'm going to tackle the legal events, and because I keep getting an enormous amount of email about the facts in the case, I'm even going to address some of the more popular factual issues.

So for all of you who ever wanted to ask anything about the case, here's your chance to help me. Send me your thoughts. Right away. After nearly 18 months of doing this I think I have a pretty good idea what the common concerns are, but send questions anyway. They'll help me make sure I hit the right points.

I'm going to work on the page tonight and tomorrow, and hopefully it'll be posted by Wednesday. Hopefully.

 
Schiavo News
Yesterday's Tampa Tribune ran this cover story on the Terri Schiavo saga, focusing on whether it has strained Florida's court system.

 
Questions, questions, or Cracked Front View, Part II
You can be stopped in Florida for having any visible crack in your windshield, at which point the officer can determine whether the windshield is in need of repair. If it is, then you're in violation of Florida law.

That's the way I read the 11-2 majority opinion in this en banc decision by the Second District.

The case concerned a driver arrested for illegal possession of a gun and marijuana. Officers pulled him over for having a 7-inch crack in the upper passenger-side corner of his vehicle's front windshield. The issue in the case was whether probable cause existed for the stop.

The majority held that probable cause existed and that the cracked windshield was in fact a violation of Florida law. The majority opinion did not clearly indicate whether all cracked windshields violate Florida law, only that the one in this case did and that any visible crack is grounds for a stop.

Judge Northcutt dissented and was joined by Judge Fulmer. You may recall from this prior Abstract Appeal post that they comprised the panel majority when this case was first decided last summer.

Judge Northcutt concluded that Florida law does not state that windshields cannot contain cracks, nor does Florida law set forth any criteria for determining when a crack makes a windshield in need of repair. Thus, in Judge Northcutt's view, the only cracked windshields prohibited by Florida law are those that make the vehicle unsafe, since the law does prohibit driving a vehicle in such an unsafe condition as to endanger persons or property. No one appears to disagree that the crack in this case posed no danger.

Ultimately concerned about the Fourth Amendment implications of its decision, the majority certified the following to the Florida Supreme Court as a question of great public importance:

MAY A POLICE OFFICER CONSTITUTIONALLY CONDUCT A SAFETY INSPECTION STOP UNDER SECTION 316.610 AFTER THE OFFICER HAS OBSERVED A CRACKED WINDSHIELD, BUT BEFORE THE OFFICER HAS DETERMINED THE FULL EXTENT OF THE CRACK?
I hope the high court takes this case and tells us what many really want to know: the point at which a crack in a windshield violates Florida law.

 
Fourth District: Marital Assets
In this case, the Fourth District explained the distinction between the extent of the trial court’s discretion in classifying assets as marital or nonmarital and the extent of the trial court’s discretion in valuing assets and liabilities. None on the former, wide on the latter.

 
Third District: Conflicts Conflict
In this choice-of-law case, the Third District held that Florida, rather than North Carolina, had the more substantial relationship to the underlying rental car transaction. The court certified conflict with a 1997 decision from the First District.

 
Fourth District: Topps Limitation
In this case, the Fourth District held that Topps v. State, which set forth that extraordinary writ petitions are not denied on the merits unless otherwise indicated, does not apply to a rule 9.141 petition alleging ineffective assistance of appellate counsel.

 
Chief Judge Farmer: Judicial Recusals
The Fourth District's case law makes it clear that an attorney's association with a judge's opponent's campaign for judicial office does not require the judge's recusal. In this case, Chief Judge Farmer acknowledges that precedent but strongly disagrees with the result. He notes that the court's earlier cases "arose in a not-so-distant date when aspirations for judicial elections were high and professional influences restrained judicial candidates." Using the following language, Chief Judge Farmer encouraged judges to grant recusal motions under these circumstances and noted his own desire to change the current law:

In spite of our extant precedent, a judge would be well advised to grant recusal under these circumstances. I urge all trial judges to do so in spite of our precedents. If given the opportunity, I will vote to overturn all our precedents denying prohibition on account of judicial election ties and vote to install a regime of blanket disqualification. If such a regime is too disruptive to the operation of courts, well then maybe we should rethink our dedication to the direct election of judges.
I suspect that the judiciary would be reluctant to adopt the rule Chief Judge Farmer advocates, since doing so would give every attorney the opportunity to avoid appearing before a particular judge by simply contributing to or campaigning for the judge's opponent. Especially in smaller metropolitan areas -- say, our state's capital city -- clients could select their attorneys by which judges they could force to recuse themselves. All that said, I don't disagree with Chief Judge Farmer's point about the reasonableness of a client's fears in some of these situations. Perhaps there is another answer, as the chief judge suggests.

 
Fourth District: Rule 1.525
Another reminder here from the Fourth District concerning rule 1.525: the 30-day time period to move for attorney's fees applies where claims are voluntarily dismissed.

 
Fourth District: Calculating Time
Just a reminder here from the Fourth District that mailing days are generally not added where a court order directs a party to perform an act by a specified date.

 
Fourth District: Rule 1.442 and Settlement Offers
Those keeping track of the very few situations where apportionment of a settlement offer is not required by rule 1.442 will wish to note this decision. The Fourth District approved an unapportioned offer in a first party insurance context. The court also held that the offer did not need to address the plaintiffs' claim for punitive damages because the plaintiffs had never received authorization to plead that claim.



Friday, February 18, 2005
 
Schiavo News: Media/Political Blitz Coming
This story from the St. Pete Times describes how the Schindlers have once again hired Randall Terry to coordinate a massive public relations campaign aimed at stopping the removal of Terri's feeding tube. Fox News ran a similar story here.

You might recall that Randall Terry is credited with organizing the wave of press, email, and political activity that accompanied the removal of Terri's tube in 2003. Those efforts culminated in the Governor's decision to add Terri's situation to 2003's special legislative session "E," which was originally called to help lure a Scripps plant to South Florida, and ultimately the ill-fated "Terri's Law."

Finally, today's Tampa Tribune reports that the Schindlers intend to file a new motion for relief from judgment, this one asking the court to subject Terri to new medical tests. You can read the latest story here.

 
Femme Forum
On Wednesday, the Third District celebrated its first panel of all female judges.

Judges Green, Wells, and Rothenberg (who doesn't have a web page yet) took the bench, accompanied by the court's clerk, Mary Cay Blanks, and its marshal, Dorothy Munro.

The court has posted a page of photos to commemorate the event, which was no doubt followed by the usual spate of PCA's.

 
Third District: More Appellate Procedure
Okay, appellate experts: when is an order appealable as a final order even if it does not end the judicial labor with regard to a party? Partial final judgments might come to mind, but this decision from the Third District reminds us that sanctions orders that end the trial court's labor as to a nonparty are immediately appealable, too. In fact, they must be immediately appealed, or not at all.

 
Second District: Appellate Procedure
We know that there is no such thing as a belated appeal in a civil case. We also know that termination of parental rights cases are not truly civil cases. So what's the method for obtaining the equivalent of a belated appeal in a TPR case? The Second District has the answer in this decision.

 
Third District: Drone Debate, Part II
You may recall the "alimony drone" case from this prior post. Well, it's back, I suppose on rehearing.

In my quick read, I didn't notice what changed.

 
Second District: Library Check
If your version of Black's Law Dictionary does not include "suicide-by-cop," then it's time to upgrade to a newer version. Footnote 1 of this opinion shows that the Second District has no need for an update. The case is an interesting one that tells you, among other things, how far it's not reasonable to expect a person to throw a drawn knife.



Thursday, February 17, 2005
 
Eleventh Circuit: A Classic
The Eleventh Circuit invited Judge Cudahy to town, and the visiting Seventh Circuit judge decided to bring a little Plato with him, beginning his opinion in this bankruptcy case with the philospher's line, "When a Benefit is wrongly conferred, the author of the Benefit may often be said to injure."

The line Judge Cudahy used is one by the Athenian Stranger in Plato's Laws. I'm pretty sure that when the local bar association looks for folks to present that dialogue, I'm volunteering while Cleinias is still available. Wouldn't you?

 
First District: Appellate Procedure and Monofilaments
In this decision from the First District, the court reminds us all that circuit courts do not have jurisdiction in appeals of county court judgments to the extent those judgments declare state statutes unconstitutional.

Those who fish may be interested to know the court also determined that the term "monofilament" is not ambiguous.

Those who legislate may be interested to know that section 370.093(2)(b) contains the term "[m]ultistrand monofilament material," which the county court found to be an unconstitutionally vague oxymoron. The district court found the issue inappropriate for the county court to address because the charges in the case did not utilize that language.

 
First District: Teachers' Social Security Numbers
The Sarasota Herald-Tribune has been looking for teachers' social security numbers. In this decision, the First District affirmed in part and reversed in part a trial court's order granting the paper access to the numbers. To the extent access was granted, it was because the legislature did not make chapter 2004-95's confidentiality measures retroactive.

 
Questions, questions
I suppose that when it rains, it pours. For the third time in as many weeks, the Eleventh Circuit has certified a question to the Florida Supreme Court. This case presents Florida's high court with the following question:

DOES THE FLORIDA PARI-MUTUEL WAGERING ACT PROHIBIT AN AGREEMENT BETWEEN A FLORIDA THOROUGHBRED RACETRACK AND AN OUT-OF-STATE RACETRACK THAT GRANTS THE FLORIDA RACETRACK THE EXCLUSIVE RIGHT TO DISSEMINATE THE OUT-OFSTATE TRACK’S SIMULCAST SIGNAL TO OTHER FLORIDA WAGERING SITES PERMITTED TO RECEIVE THEM.



Wednesday, February 16, 2005
 
Fifth District: Wiretapping Via Spyware
This may be the most interesting Florida case in recent weeks. The Fifth District confronted the issue of whether computer software installed by a wife to record her husband's computer activities violated Florida's Security of Communications Act. (Yes, they were getting a divorce.)

Specifically, the wife installed Spector, a spyware program marketed for spying on Internet activity by a computer's users. The program captured screen shots of the husband's communications with another woman, and the wife wished to use those screen shots in the divorce proceeding. The trial judge determined that the screen shots were illegally obtained and refused to consider them as evidence.

The Fifth District affirmed. The court drew a distinction between capturing information being displayed during a communication process and capturing communication-related information stored on a computer. The court determined the screen shots were of the former sort, and thus the screen shots were unlawfully obtained.

Curiously, the act prevents the use as evidence of unlawfully obtained oral or wire communications but not electronic communications. The court accordingly held that the act did not require the trial judge to exclude the wife's screen shot evidence. However, trial judges have broad discretion regarding the admissibility of evidence, and the district court found no abuse of discretion in the trial court's decision in this case to exclude the illegally obtained screen shots.

This decision strikes me as a beginning, not an end.

I wonder if the folks at Spectorsoft found out about this case before or after the Fifth District declared one of Spector's primary functions to be unlawful.

 
Fifth District: Derivative Actions
If a shareholder brings a derivative action on behalf of a company, is the shareholder required to remain a shareholder in order to maintain standing to prosecute the action? In a rare Florida decision on derivative actions, the Fifth District in this case said yes. Ownership is required at the time the cause of action arises and throughout the litigation.

 
Fourth District: Defamation
It makes perfect sense. If you are aware of what someone will say, and you invite the person to say it, you do not have a claim for defamation, regardless of the defamatory nature of the speech. That's the invited defamation defense, and the Fourth District recognized it in this case.

 
Fourth District: Implied Rights of Action
You might recall that three districts have held that section 458.320(2) contains an implied right of action. In essence, the statute requires hospitals to ensure that their staff physicians have satisfied Florida law's financial responsibility requirements (generally, to have at least $250,000 in coverage or assets for a medical malpractice claim). The Second, Third, and Fifth Districts have held that this statute gives a plaintiff an implied cause of action against a hospital where its staff physician causes the plaintiff injury but fails to meet the minimum financial responsibility requirements. As often occurs with implied rights of action, those district courts have had to work to set reasonable limits on such claims.

In this decision, the Fourth District disagreed that any implied right of action exists. The court held that causes of action can only be said to be implied in a statute where some indication exists, generally in the statute itself, that the legislature intended to give persons a right to recover in court. The Fourth District concluded that while section 458.320 requires hospitals to oversee that staff physicians comply with the financial responsibility laws, the statute provides no cause of action against a hospital where a negligent physician fails to meet the minimal requirements.

 
Fifth District: Workers' Compensation Immunity
How well does state workers' compensation immunity protect a workers' compensation carrier and its administrator from claims such as intentional infliction of emotional distress? Very well, as seen by this decision from the Fifth District.

 
Fourth District: Judicial Notice
Let's say you're trial counsel defending a case and one of your defenses is based on the applicable statute of limitations. You present evidence that the claim was known to your opponent earlier than the limitations statute's look-back period, but you fail to inform the jury of when the claim was actually filed. Whoops. Can the judge direct a verdict against your defense?

That's essentially what happened in this case, and the trial judge entered a directed verdict. While it seems no motion was made for the trial court to take judicial notice of the filing date or to reopen the evidence and prove the date, the Fourth District still reversed the judgment. The district court held that the trial judge should have taken judicial notice of the undisputed filing date and accordingly instructed the jury.

 
Fifth District: Citable
I like to keep track of interesting citations and quotes, just in case they ever come in handy. For instance, my favorite cite, and one I've never been daring enough to use in a brief, is a Florida Supreme Court case stating that a certain proposition was so basic that no citation to authority was necessary. One of these days, I'll cite that case for that point.

Anyway, (Senior) Judge Harris opened this affirmance of a summary judgment with this paragraph:

There is a season for all things. The trial court determined that the season for this litigation had finally come to an end. We agree with the trial court.
Definitely citable.

 
Fourth District: Sentencing
Attention prosecutors: the Fourth District has now decided that a shotgun notice of intent to enhance a sentence through every enhancement status works just fine. Check out this decision on rehearing for more.

 
Blogging Troubles...
I had an oral argument yesterday at a district court but still managed to get some posts up in the morning. Today, no argument, but no posts yet either. Time to correct that...



Tuesday, February 15, 2005
 
Name Change Statute Unconstitutional?
Judge Casanueva is concerned about the constitutionality (under the First Amendment and federal statutory preemption) of a 2003 law that effectively prevents convicted felons from changing their names unless their civil rights are first restored. Check out his concurring opinion in this case.

 
Third District: Reversed
This may be the shortest written reversal of a summary judgment. Ever.

 
Second District: Shared Parental Responsibility
Family law fans may be interested in footnote 1 of this decision, where the Second District noted a discrepancy within section 61.13 and explained when parental responsibility should be considered through a best interests test and when it should be considered through a detriment to the child test.

 
Second District: Rule 3.800(c)
Quick, appellate folks: orders denying rule 3.800(c) motions are reviewable by what, appeal or certiorari? The Second District has the answer here.

 
Second District: Rule 3.850
I suppose many trial judges faced with a rule 3.850 motion have considered simply attaching the entire transcript to an order denying the motion. The Second District prefers a bit more specificity.

 
Third District: Venue
You might sum up this decision from the Third District by saying that permissive venue provisions don't get you much.

 
Second District: Class Actions, Mobile Home Association Style
Can a defendant in a suit brought by a mobile homeowners' association force the association to become a representative for a class of all the associations' homeowners? If rule 1.222 permits class actions by mobile homeowners' associations but expressly provides that rule 1.220's provisions on class actions do not govern, what governs? It seems not much is settled here yet, but the Second District started wading into these waters in this case.

 
Second District: Exploitation of the Elderly
To learn what this crime involves, and to see an interesting example of where the state failed to prove its elements, check out this decision from the Second District.



Monday, February 14, 2005
 
Schiavo Thoughts
I received an email yesterday that prompted me to write a lengthy response about the Terri Schiavo saga. Here's the email:

Hi Matt,

I stumbled across your site and quickly became immersed. I have been an avid follower of Terri Schiavo as I feel quite passionately about the case as explained in the letter I wrote to the Rocky Mountain News which was recently published (see below). So far, no amount of legal jargon has been able to quench my desperate desire to understand this case. I have been searching for answers for so very long, that I felt some sense of relief when finding your site. I would really love to hear your opinion as to whether or not there is any hope whatsoever to save Terri at this point, or is this it? Thank you so much in advance for your time and for listening. And also, for this site. Have a great day!
I left the attached letter out. Here's my response, which tries to sum up all sides here:

Thanks for the kind words and the sincere thoughts.

This is a very tough situation for all involved -- and mind you I'm not at all involved. I just discuss the case as part of what seems to be my running commentary on Florida law.

I appreciate that you wish to understand more. Ultimately, Terri's case is understandable, though painfully so. If you take away the "evil" allegations that have been leveled against everyone, it's easy to see what you're left with.

You're left with a woman who suffered a heart attack 15 years ago, who essentially died but was resuscitated, though not entirely. Her brain had suffered enormous damage from the heart attack. As time passed, her brain further deteriorated -- to the point where much if not most of her cerebral cortex (the portion of the brain that controls conscious thought, among other things) was literally gone, replaced by spinal fluid. Doctors hired by Terri's husband say the deterioration of Terri's brain left her without thoughts or feelings, that the damage is irreversible, and that Terri's life-like appearance is merely the result of brain stem activity -- basically involuntary reflexes we all have. An independent doctor hired by the court reached the same conclusions. Doctors hired by Terri's parents did not dispute the physical damage done to Terri, but they claim there are new therapies that could improve her condition. In two separate trials, the trial court found such claims of potential improvement to be without merit. Terri's body continues to function without her cerebral cortex. She is sustained by a feeding tube surgically inserted into her stomach. She cannot eat through her mouth without a strong likelihood of choking to death.

You're left with a husband who lived with his in-laws following Terri's heart attack, who apparently provided care and therapy for years but who later came to believe Terri would never recover. He believes she would not have wanted to be kept alive in this brain-degenerated condition by a surgically implanted tube. He is apparently willing to continue his fight to achieve what he believes Terri would want despite ridicule, hatred, expense, and threats.

You're left with parents who were once allied with Terri's husband in an effort to care for Terri and restore her but, unlike Terri's husband, they never lost hope. They believe Terri reacts to them and has conscious thoughts. They believe Terri would not want, and does not want, her feeding tube removed, and that some cognitive function could be restored through new therapies. Terri's parents are willing to continue their fight to achieve what they believe Terri would want despite ridicule, hatred, expense, and threats.

You're left with judges who have been placed in the utterly thankless position of applying Florida law to this impassioned situation. Florida law calls for the trial court to determine what Terri would chose to do in this situation, and after a trial hard fought by Terri's husband and her family, where each side was given the opportunity to present its best case about what Terri would do, the court determined the evidence was clear and convincing that Terri would chose not to continue living by the affirmative intervention of modern medicine -- that she would chose to have her feeding tube disconnected. In a second trial, brought about by Terri's family's claims new therapies could restore her and that the existence of such a therapy would make her "change her mind," the trial court again heard evidence from all sides and determined that no new therapy presented any reasonable chance of restoring Terri's brain function. The propriety of these decisions -- from the sufficiency of the evidence to the appropriateness of the procedures used -- has been unanimously upheld on appeal each time.

You're left with a public that is much confused. Some see video clips of Terri moving, appearing to make eye contact, and making sounds, and they assume such are the product of conscious thought -- that Terri's "in there." Some believe Terri's husband has been motivated by money. Some believe that no heart attack occurred -- instead, Terri's husband beat her nearly to death and has been trying to end her life ever since. Some believe he is a bad person because he has taken up with another woman and has children with her. Some believe Florida's judiciary is corrupt or inept, to the point where death threats have been made against the trial judge. Some are sad that families would fight like this. Some believe that removing Terri's feeding tube would cause her pain and is inhumane (I'm no doctor, but the medical information I've seen on this subject uniformly says the opposite.) Some are disappointed that the law does not allow someone in Terri's condition to be kept alive perpetually if a family member is willing to care for him or her. Some believe no life should be permitted to reach an unnecessary end unless irrefutable proof, or at least written proof, shows the person wanted things that way.

All of these positions are understandable in some sense, though if you've read my posts over the years you know I am particularly sensitive to the judiciary's position of following the law correctly and yet being so horrifically misunderstood by many.

Is there hope? Well, if you mean hope to keep Terri alive any longer, there is some. Terri's family continues to launch new legal battles, and to appeal old ones, in hopes a court somewhere will give them another chance to prove Terri would not want to discontinue her feeding tube, or in hopes they can win the authority to care for Terri themselves. There is a new legislative measure under consideration that could prove to be a repeat of 2003's "Terri's Law." How long can these efforts forestall the tube's removal? Can they stop it altogether? I can't say. But I don't think anyone with knowledge of how the legal system works would have foreseen several years ago that Terri would be with us in 2005, yet here she is.

I continue to hope that when this saga ends it will be the ending that Terri would have wanted.



Saturday, February 12, 2005
 
Schiavo News
Yesterday, Judge Greer entered an order denying the Schindlers' most recent motion to vacate the original judgment regarding Terri's wishes. The motion, available here, alleged that Terri had improperly been denied her own attorney in the proceedings, that the court had improperly applied Florida's statutory law retroactively to Terri's case, and that the court violated separation of powers principles by determining Terri's wishes (rather than allowing them to be determined by, say, an administrative agency).

Judge Greer's order rejects all three arguments as legally unfounded. You can read the order here. You can read coverage of the order in today's St. Pete Times and Sun-Sentinel.



Friday, February 11, 2005
 
Friday Florida Law Trivia Answer
I suppose I should preface this answer by saying that what qualifies as offensive to one person is not necessarily offensive to all, or even to some.

The question asked for a slur still found in the Florida Statutes. The answer I had in mind is found in chapter 791, which regulates the sale of fireworks. Section 791.01 defines "fireworks" rather broadly and includes this statement:

The term includes blank cartridges and toy cannons in which explosives are used, the type of balloons which require fire underneath to propel them, firecrackers, torpedoes, skyrockets, roman candles, dago bombs, and any fireworks containing any explosives or flammable compound or any tablets or other device containing any explosive substance.
It was "dago bombs" that I had in mind. Dago is typically a disparaging term for a person of Italian descent, though it's sometimes also used to refer to Spaniards and Portuguese.

Not surprisingly, some of you came up with other possible slurs.

One reader suggested that those of African descent might be offended that section 258.391 establishes Cockroach Bay Aquatic Preserve to include an area bounded in part by "Negro Island." Apparently Negro Island is in or near Tampa Bay. I've no idea where.

Also on the potentially offensive list are several statutes in chapter 457, the chapter regulating acupuncture. The chapter repeatedly uses the term "Oriental," including through the defined term "Oriental medicine" found in section section 457.102. Many consider "Oriental" to be less respectful than the term Asian.

Finally, in the way of an honorable mention, one reader with perhaps a penchant for pets thought some might take offense that section 828.27 defines the term animal as "any living dumb creature." Now, as a guy who's going to pick up his new puppy on Sunday, I'm offended...

Have a great weekend, folks.

 
Answer Coming...
I spent too long in a moot court session today... I'm posting the answer now.

 
Friday Florida Law Trivia!
Hey, trivia's back this week. Hunter seems way too busy, so I'm going to offer something.

We know that recent years have seen efforts to purge Florida's laws and maps of disparaging references to racial, national, religious, and other sorts of heritage. Are those efforts complete? Perhaps not. Name an ethnic slur still found in Florida's statutes. I have one in mind, and if I were sensitive to such things, I suppose I might take it to apply to me.

I'll post my answer, and any other valid answers I get by email, around 4:45 today.

 
Judge Pryor
One year after Judge Pryor's recess appointment to the Eleventh Circuit, law.com has this story on his service and his upcoming renomination.

 
First District: Interlocutory Review
Just a reminder here from the First District that courts engaged in interlocutory review under rule 9.130 will not review rulings other than those giving rise to the court's jurisdiction. Nice win, John.

 
Second District: False Arrest
Here is an interesting case on numerous levels. It's a Second District case that involved an overzealous pharmacist who believed she'd spotted someone falsifying a prescription to include a refill. The pharmacist contacted the hospital where the script had been written and confirmed the patient's chart did not show a refill had been prescribed. She then called the St. Petersburg police, at 4 a.m., and told the reporting officer she'd verified the refill was not authorized. It was authorized, but she never actually spoke to the doctor. The officer arrested the patient one hour later. The man was later released, and he brought suit against the City of St. Petersburg for false arrest.

The appeal concerned whether probable cause for the arrest existed as a matter of law. The panel disagreed, with a majority determining that the issue was one for the jury. The jury ultimately awarded the man $45,000 in damages, for which St. Pete was 90% liable.

The case's facts are interesting. So is the disagreement between the majority and the dissent over probable cause. Another interesting aspect, perhaps notable for appellate folks, is that the city appears to have argued on appeal that its motion for summary judgment should have been granted because probable cause was clear, and the majority and dissent both speak in terms of whether the city is correct. That caught my eye because I usually think of summary judgment proceedings as being merged into the trial once a trial occurs, at which point the issue is whether judgment as a matter of law should be entered. It's the same analysis (or at least it usually should be), but procedurally this seems noteworthy.

By the way, appellate counsel for the plaintiff was Marcus over at the Florida ERISA Blog. Nice win, Marcus.

 
First District: Rule 1.525
Those following the proliferation of opinions interpreting rule 1.525 -- the rule requiring attorney's fees motions to be served within 30 days of a judgment's entry -- will be interested in this decision from the First District.

It's a family law case where the judgment determined one party's entitlement to fees. The appellate court held that the trial court should have construed a motion for fees served outside the rule's 30-day window as a rule 1.090(b) motion to extend the service period. (The movant would still be required to comply with rule 1.090(b)'s good cause requirement.)



Thursday, February 10, 2005
 
Schiavo News
Today's St. Pete Times has some predictions in this report.

 
Eleventh Circuit: Publication Directive
The Eleventh Circuit's decision in this case ended with the following instruction: "The clerk is directed to direct the clerk of the district court to forward the decision of the district court for publication in the Federal Supplement." Very unusual. It's not clear from the opinion whether the district court had sealed its order or otherwise took steps to prevent its publication.

 
Eleventh Circuit: Economic Loss
Remember the Florida Supreme Court's big economic loss decision from just over a month ago? I had wondered aloud whether the Eleventh Circuit would be troubled by the Florida court's lack of discussion of the duty element in the case. The answer is apparently not at all -- this decision from Tuesday simply sends the case back to the district court, suggesting that it'll be the district court that must take up the duty question.

You might recall that the case involves an aircraft owner's negligence claim that poor maintenance by the defendant, performed on the plane during the previous owner's ownership, resulted in damage to the plane (and only the plane) during the plaintiff's ownership. Duty? It'll be a great issue.

 
Eleventh Circuit: Title IX
In the context of teacher-on-student sexual harassment, those looking for an example of a school district's conduct that as a matter of law did not constitute deliberate indifference should check out this decision from the Eleventh Circuit.

 
Eleventh Circuit: Arbitration
The Federal Arbitration Act excludes from its scope "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."

That third category may seem broad, but it is actually limited to a narrow set of transportation workers, as seen by this decision. The Eleventh Circuit held the exclusion inapplicable to an employment dispute involving a furniture business's account manager who made interstate deliveries in his employer's truck.

 
Eleventh Circuit: Booker Error, Plain Error?
Is an unpreserved sentencing error under Booker v. Washington plain error, such that it can be a source of relief on appeal? In this decision, the Eleventh Circuit said no, it's not. The court characterized Booker error not as a sentence enhancement based on facts not found by a jury but as a mandatory sentence enhancement that could have been constitutionally imposed under a permissive enhancement scheme.

Booker has been out for less than a month and already there's a circuit split on this issue.



Wednesday, February 09, 2005
 
Schiavo News
Apparently the Schindlers plan to appeal last week's PCA by the Second District to the United States Supreme Court. See this story for details.

 
The Blog Gets Schooled
The notion that Abstract Appeal might even be mentioned in a university environment -- a law school, no less -- is a bit amazing to me. It seems the class is on legal research techniques, and the syllabus has this blog on the list for February 9. That's today. I'm honored.

A note to the students: LEARN TO USE THE BOOKS!

 
Almost There
I'm almost caught up on the Eleventh Circuit's noteworthy decisions in the last few weeks. I gotta stop letting myself get behind like that...

 
Questions, questions again
Once again, Florida's insurance law is not sufficiently clear for the Eleventh Circuit to apply it in a diversity case. The prior post mentioned an advertising injury case the Eleventh Circuit certified to the Supreme Court of Florida. In this order released last week, the circuit court certified the following questions to Florida's high court in a case involving coverage for retail lessees of Ford vehicles:

DOES THE DEFENDANT MICHIGAN MUTUAL HAVE ANY LIABILITY TO THE PLAINTIFFS UNDER THE POLICY IN QUESTION, AND, IF SO, WHAT IS THE EXTENT OF THAT LIABILITY?
The circuit court elaborated that the following issues may be relevant to the preceding questions:

(A) WHETHER PLAINTIFFS HUNTER, ROBIN AND MACKAY, WHO LEASED VEHICLES FROM FORD UNDER A RETAIL LEASE PROGRAM, ARE INSURED FOR OR ENTITLED TO UM/UIM COVERAGE UNDER THE AUTO SUPPLEMENT TO DEFENDANT MICHIGAN MUTUAL'S POLICY FOR ANY INJURIES SUSTAINED AS DRIVERS OR OCCUPANTS AS A RESULT OF THE NEGLIGENCE OF AN UNINSURED/UNDERINSURED MOTORIST?

(B) IF PLAINTIFFS ARE INSURED FOR OR ENTITLED TO ANY SUCH UM/UIM COVERAGE UNDER THE AUTO SUPPLEMENT, IS THAT COVERAGE PRIMARY COVERAGE, EXCESS COVERAGE OR BOTH?

(C) IF PLAINTIFFS ARE INSURED FOR OR ENTITLED TO ANY SUCH UM/UIM COVERAGE UNDER THE AUTO SUPPLEMENT, WHETHER THE AUTO SUPPLEMENT OF DEFENDANT MICHIGAN MUTUAL’S POLICY MAY BE REFORMED TO REFLECT THE CONTRACTING PARTIES' (FORD AND MICHIGAN MUTUAL’S ) UNDISPUTED INTENTIONS NOT TO PURCHASE OR PROVIDE SUCH UM/UIM COVERAGE IN THE AUTO SUPPLEMENT?

(D) WHETHER DEFENDANT MICHIGAN MUTUAL IN ISSUING PRIMARY COVERAGE UNDER THE AUTO SUPPLEMENT OF THE POLICY WAS SUBJECT TO AND OBLIGATED TO COMPLY WITH THE REQUIREMENTS IN FLA. STAT. § 627.727, AND IF SO, WHETHER AS TO PRIMARY COVERAGE THAT STATUTE APPLIES ONLY TO FORD OR TO THE PLAINTIFFS OR TO BOTH? FURTHER, IF APPLICABLE, DID DEFENDANT MICHIGAN MUTUAL COMPLY WITH FLA. STAT. § 627.727 AND, IF NOT, WHAT IS THE RESULT OF FAILURE TO COMPLY WITH SUCH STATUTORY REQUIREMENTS?

(E) WHETHER DEFENDANT MICHIGAN MUTUAL IN ISSUING THE EXCESS COVERAGE UNDER THE AUTO SUPPLEMENT OF THE POLICY WAS SUBJECT TO AND OBLIGATED TO COMPLY WITH THE REQUIREMENTS IN FLA. STAT. § 627.727, AND IF SO, WHETHER AS TO EXCESS COVERAGE THAT STATUTE APPLIES ONLY TO FORD OR TO THE PLAINTIFFS OR TO BOTH? FURTHER, IF APPLICABLE, DID DEFENDANT MICHIGAN MUTUAL COMPLY WITH FLA. STAT. § 627.727, AND, IF NOT, WHAT IS THE RESULT OF FAILURE TO COMPLY WITH SUCH STATUTORY REQUIREMENTS?
Piece of cake.

 
Questions, questions
Many general liability policies include coverage for something along the lines of "advertising injury," and many policies contain exclusions for when such injuries are intentionally caused or caused with knowledge of a statement's falsity.

The scope of such coverage, as limited by the standard exclusions, is more and more becoming the subject of litigation. That's the situation in this case, where the Eleventh Circuit, unsure about Florida law, certified the following question to the Supreme Court of Florida:

Whether the Lanham Act § 43(a) claim, as pleaded in the Schumacher complaint, triggers either the intent to injure exclusion or the knowledge of falsity exclusion provided for in the Policies.

 
Eleventh Circuit: IDEA
Are tort-like damages available under the Individuals with Disabilities Education Act? Nope, said the Eleventh Circuit in this case. The act's purpose is to provide educational services, not establish a mechanism for compensating personal injuries.

 
Eleventh Circuit: Booker
Some simple truths in the Eleventh Circuit concerning the U.S. Supreme Court's recent decision in Booker v. Washington:

1. The decision is not applicable to cases on collateral review.

2. The decision will not, not permit collateral attacks on sentences where appellate rights are waived in a plea deal.

I get the impression they're going to be consistent about this...

 
Eleventh Circuit: GVR…TP?
Granted, vacated, and remanded. That's a common phrase among appellate lawyers for when a higher court (well, usually the U.S. Supreme Court) grants review, vacates the decision below, and simply remands the case to the lower court for further consideration in light of some recent authority.

This order from the Eleventh Circuit presents a twist of sorts on the GVR idea. The en banc court had previously vacated a panel decision, and while the en banc case proceeded, a law passed by Congress spoke to the issue, prompting the en banc court to vacate its order granting rehearing en banc and remand the matter to the original panel for reconsideration. This happens from time to time (as also seen in this recent decision, which involved the same legislative change), but I've never heard a name for it. Maybe GVRTP would work.

 
Eleventh Circuit: Commerce Clause
The dissenters in this case presented some interesting arguments on the scope of the Commerce Clause, but the en banc majority set forth what will now be seen as the definitive Commerce Clause analysis in the Eleventh Circuit.

The court held the Commerce Clause authorized Congress to adopt 18 U.S.C. § 247, which essentially prohibits the intentional destruction of religious property where the offense is in or affects interstate or foreign commerce.

The facts of the case gave the court a perfect example to test the statute: a self-proclaimed missionary of Lucifer traveled from state to state burning Christian churches.



Tuesday, February 08, 2005
 
New Appellate Rules
It occurs to me that while I discussed the new appellate rules changes at the appellate certification review course this past Friday, I haven't actually blogged the recent amendments. So here goes:

On Thursday, the Florida Supreme Court amended the state's appellate rules in a few significant ways.

The court amended rule 9.020 to define rendition of an appellate order as when all authorized motions under rule 9.330 or 9.331 are resolved by written order. The court also amended rule 9.331 to allow motions for rehearing en banc to be filed without also filing a motion for rehearing and to require en banc motions to be disposed by written order. These amendments should make en banc motion practice much more clear. Previously, you could only move for rehearing en banc if you also asked the panel for rehearing (which at times could be very awkward if not inappropriate), and if the court entered an order saying the rehearing motion is denied, it could be difficult to tell if that order addressed the en banc motion too.

Rule 9.130 now authorizes the interlocutory appeals unconstitutionally authorized by the Legislature in section 70.001(6)(a), under the Bert Harris Property Rights Protection Act. (The Legislature can't provide for interlocutory review...)

Rule 9.190 is amended to provide a 10-day period for agencies to respond to certain stay requests in administrative appeals.

Rule 9.220 now provides that parties should be given an opportunity to supply omitted portions of an appendix, just as occurs with records.

Rule 9.370 is changed to state that leave of court is required to file an amicus brief, which is pretty much the way it's been anyway, since courts sometimes struck amicus briefs filed with the consent of all parties. Requesting consent is now significant only in that the motion for leave to file must state whether all parties consent.

I suppose if you're reading this blog from prison, you may be interested to know that the court amended Rule 9.340 to address affidavits, indigency, and costs for prisoners.

There are a few other amendments as well. For the whole slate, check out the court's order, which is available here.

 
A Bit Behind
While I'm up to date on tracking Florida's interesting case law this year, I've allowed myself to fall behind on discussing some really interesting Eleventh Circuit decisions in the last several weeks. I'll right the ship and catch up today.



Monday, February 07, 2005
 
Schiavo News
Two updates in the Terri Schiavo saga:

First, on Friday, the Second District denied the Schindlers' various motions asking the court to rehear or issue an opinion in their latest appeal. You may recall that the Schindlers appealed Judge Greer's order denying their motion for relief from judgment -- a motion based on statements the Pope made last year. For more on the appeal, check out this earlier post and the first post linked therein.

Second, and also on Friday, Representative Baxley filed House Bill 701, which may soon become dubbed Terri's Bill II. Oh my. (Thanks to Janice Sanford for the info.)

I'll have some thoughts on both events later.

 
Second District: Arbitration
Those involved in arbitration proceedings should pay attention to the message sent by the Second District in this case: even if the Federal Arbitration Act governs an arbitration, a prevailing party entitled to fees for the arbitration is not going to get them unless the party took some affirmative step prior to the dispute's resolution to inform the other side of an intent to seek fees. Not doing so cost the defendant in this case over $57,000 in fees.

 
Fifth District: Electric and Municipal Easements
Any land use fan, and certainly those who follow electric utility and municipal easement regulation, should be much interested in the Fifth District's decision in this case. The court reviewed a summary judgment granted against an electric utility and a municipality concerning the scope of electric easements they held.

The utility and city had been utilizing fiber optic cables in the easement for power-related communications. The cables had excess capacity, which the utility and city wished to lease to telecommunications companies. The court found the governing easements' language to be unambiguous and controlling. Leasing the excess fiber optic cable to telecommunications companies was not permissible.

 
Questions, questions
Long time Abstract Appeal readers may recall this January 2004 post about how two-thirds of Florida's schools still utilize corporal punishment. More recently, you might recall this post regarding the felony child abuse prosecution of an administrator at Charlotte Regional Christian Academy. The Second District reversed the administrator's conviction.

On Friday, in this decision, the Second District granted a motion to certify in the administrator's case and certified the following to the Supreme Court of Florida as a question of great public importance:

WHETHER A SPANKING ADMINISTERED AS CORPORAL PUNISHMENT THAT RESULTS IN SIGNIFICANT BRUISES OR WELTS MAY CONSTITUTE FELONY CHILD ABUSE UNDER SECTION 827.03(1), FLORIDA STATUTES (2001).
The Second District's answer remains no.

 
Second District: You're 0-4, And Here's Why
The next time you feel like challenging not only a statute's application but its constitutionality, consider that Judge Wallace may be the primary judge on your panel. And if you're wrong, he'll tell you exactly why, as occurred in this decision from the Second District. Takes all the fun out of moving for rehearing and asking for a written opinion, doesn't it?

 
Fifth District: Conflicts of Interest
Decisions on conflict-of-interest issues for law firms are rare. Those interested in such issues may wish to check out the Fifth District's decision in this case, which upheld a summary judgment in a law firm's favor. The suit had been brought as a derivative action by shareholders of the firm's former client.

 
Fourth District: Releases
What impact does a release have on the liability of subsequent and sequential tortfeasors? The Fourth District has the answer in this decision.

 
Second District: Fourth Amendment
Fourth Amendment fans will enjoy the school search discussion found in this decision from the Second District.



Sunday, February 06, 2005
 
Whistle-Blowing
A reader emailed me this weekend about the whistle-blowing case discussed in this prior post, the one where the law firm associate reported her superior's alleged theft of funds to the state attorney. The associate did so in purported compliance with Rule 4-8.3(a) of the Rules Regulating The Florida Bar, which states:

Reporting Misconduct of Other Lawyers. A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.
In the course of my email discussion with the reader, a question arose about whether the associate's action of informing the state attorney came within the rule's command of informing "the appropriate professional authority." Anyone know?

 
Mini-Running High
Thanks to those who've inquired about my IT band syndrome problems -- something I developed during marathon training this past fall and which knocked me out of running altogether. A surprising number of folks wrote me or talked to me, saying they've suffered the same fate this past year.

Well, I have good news. Between October and yesterday, I had run a total of about 10 miles, but yesterday I mananged to run the Gasparilla 15k in Tampa, which is 9.3 miles. I was hoping just to finish, and perhaps even to be able to walk afterwards, but I guess the ridiculous stretching, knee wraps, and ibuprofen paid off. I managed to finish on my feet with a time of 1:12:51. Not great, but not bad. And today I can walk.



Friday, February 04, 2005
 
Predator, Predator
Florida's Sexual Predators Law may label persons "predators," but if you look at what the act considers, a person's dangerousness is not a factor. On this basis, a 4-3 majority of the Florida Supreme Court upheld the law yesterday against a procedural process challenge. The court also rejected a separation of powers challenge, holding that the act's inflexibility regarding the predator designation raises no separation of powers problem.

Justice Anstead led a dissent on the procedural due process issue. He considered the majority's approach "sophistry" for its refusal to consider the significance of the "predator" designation.

Check out the court's decision here.



Thursday, February 03, 2005
 
Schiavo Opinion
Those interested in the Terri Schiavo saga may wish to check out the views and suggestions made in this guest column published yesterday by the Times-Union.

 
First District: Dismissals For Failure to File A Timely Initial Brief
Echoing decisions made last year by two sister districts, the First District has issued an opinion explaining that circuit courts should not dismiss county court appeals for failure to file a timely initial brief unless the appellant was first instructed that such a failure would result in dismissal or given a warning and a short time to file the brief.

In this case, the circuit court dismissed the appeal at issue after the appellant had failed to file a brief some 10 weeks after the due date. The district court granted the appellant's petition for writ of certiorari.

 
Second District: High School Baseball
What would it take to make you sue a state-run high school athletic association to get your child another year of athletic eligibility? This decision from the Second District can't answer that question, but it can tell you when such a suit should be rejected as a matter of law. In the case, the court reversed an injunction order requiring an association to grant a student another year of eligibility.

Given the case number (2D04-830), I wonder if the season at issue was last year.

 
First District: DCF Rule Invalidated
Administrative law fans and anyone thinking of adopting children may be interested in this decision released earlier this week by the First District. The court affirmed the invalidation of a Department of Children and Families rule providing that applicants for adoption had no right to appeal a department decision on a child's adoptive placement.

Seriously, that was the rule.

 
Second District: Nursing Care
If you work in a nursing home, believe a patient died in pain because anti-anxiety medication was not administered, and spread rumors about this at the facility, are you violating federal law? This case before the Second District involved a nursing assistant's denial of unemployment benefits based on such conduct, and the decision mentions a finding below that the conduct at issue violated federal law. Interesting.

 
Third District: Maritime Law
Does federal maritime law permit a loss of consortium claim for non-seamen? Not according to the Third District's decision in this case.

 
Third District: Juror Discrimination
You shouldn't have to read past the following line to know how the Third District decided this jury selection appeal: "The State basically argues that they were wrongfully accused of racial discrimination when they were only engaged in ethnic discrimination." Yeah, you know.

 
First District: Search and Seizure
We know that the police have the right to search a vehicle where an occupant of the vehicle is arrested. Do they have that same right if the arrest is not for a crime but for a civil offense, like where an officer acts to enforce writs of attachment issued for failure to make child support payments? There's no difference, said the First District in this case.

 
Second District: Arrests
Does the fellow officer rule – which typically permits an officer with the lawful power to arrest someone to delegate that authority to another officer – apply in the context of misdemeanors? Yes, said the Second District in this case.

 
Third District: Probation
The Third District has weighed in on the district split over whether probation is a sentence for purposes of the habitual felony offender statute. The court said yes.



Tuesday, February 01, 2005
 
Certification CLE Reminder
Just a reminder that the annual appellate board certification review course will be held this Friday in Ft. Lauderdale. Worth 7.5 hours of appellate certification credit, the course is a great review of all things appellate and may be valuable to those seeking certification, those looking to meet their certification CLE requirements, and anyone looking for a solid overview of appellate practice.

And, hey, yours truly will be hosting it.

For more information, check out the brochure here. Hope to see you in Ft. Lauderdale.





 
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