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Friday, April 29, 2005
Friday Florida Law Trivia Answer
It turns out I'll be on a flight back to Tampa at 4:45, so I'm going to post the answer to today's question now.

While it may surprise some -- yes, a court can reform a written contract to include a signature that was omitted from the document. Proving that should happen isn't easy, but it can be done.

Friday Florida Law Trivia!
The doctrine of reformation permits a court to correct a written document where it says one thing but the parties agreed to another. But how far does that go? Let's say a signature was inadvertently omitted from a document that can't be enforced unless it was signed. Can you go to court to have the signature "added" to the document?

I'll post the answer around 4:45 EDT today.

Third District: Replevin Remedies
"Replevin for a cow." That opening line from Sherwood v. Walker just sticks in my mind. Sort of like "It was a dark and stormy night...." Or the witty opening to Pride and Prejudice that, universally true, a single man in possession of a good fortune must be in want of a wife.

Anyway, Rose 2d of Aberlone -- the cow in Sherwood v. Walker -- left enough of an impression on me that replevin cases always catch my eye. Perhaps that's because replevin is such a basic concept: you took something of mine, give it back. Or pay me for it.

But what if the misappropriated item was something you needed to be employed and earn a living -- can you recover the wages you lost during its absence? This case presented that very question. The dispute involved a mechanic whose tools were kept for a time by his former employer after the employer fired him. The Third District held that while the mechanic could recover the value of the tools' lost use, he had asked only for the wages he lost while the detained tools kept him from being able to work, and lost wages were not recoverable. Judge Cope dissented. Interesting.

Second District: Affirmative Defenses
There is nothing really new here, but this decision from the Second District is the first case I recall that addresses the constitutionality of 2002's section 893.101. That statute provides that the state is not required to prove a defendant in possession of a controlled substance knew of the substance's illicit nature; rather, a lack of knowledge is an affirmative defense that the defendant may prove.

The Second District rejected a due process challenge to the statute and its placement on the defendant of the burden to prove lack of knowledge. The court explained that the legislature is constitutionally permitted to define what elements comprise a crime and what constitutes a defense. That's the long-established view. So, here, the legislature could decide that knowledge of a substance's illicit nature is not an element of a crime, and the legislature could permit lack of knowledge to be a defense.

Third District: Unemployment Compensation
Just a reminder here from the Third District that folks who voluntarily leave their jobs are generally not eligible to collect unemployment compensation. There is an exception for situations where an employer gives an employee good cause to leave.

Second District: Probate Appeals
Is a determination regarding entitlement to an elective share, without a determination regarding amount, a final order that may be immediately appealed under Rule 9.110(a)(2)? No, said the Second District in this decision.

Third District: Attorney-Client Privilege
Can you have a privileged conversation in Florida with a lawyer who is a member of another state's bar but not The Florida Bar? Sure. It happened in this case from the Third District.

Thursday, April 28, 2005
Rush News, Part II
When I last commented on this case, back here, I noted that the high court might decide not to answer the certified question. Rejecting certified questions is not common, but it does happen, and when it does, there's no way to tell why it happened.

Perhaps the court agreed with the result below. Or perhaps the court would like to see the certified issue further fleshed out by the other district courts. Or perhaps the court just didn't agree the issue was very important.

It might also be worth noting that you cannot tell whether the justices who dissented from today's order did so because they believe the court should answer the certified question or because they believe the district court's answer was not correct.

Inferring that the three dissenting justices would have voted to quash the district court's decision is no more valid than inferring that the four justices who voted not to hear the case would have voted to approve that decision.

Both inferences are invalid.

Rush News
Today, the Florida Supreme Court announced it will not review a high-profile decision against Rush Limbaugh entered last year by the Fourth District.

Today's order is available here.

The Fourth District's decision against Rush is available here.

You can also read my explanation of the Fourth District's decision in this October 2004 Abstract Appeal post.

I'll post some thoughts on today's order later this afternoon.

Schiavo Updates
Last night, I put together the list of links to my more "popular" Schiavo posts. The Pop Posts page is available here. Many thanks to those who gave suggestions on what to include.

Two additional Schiavo-related thoughts.

First, I should have the timeline on the InfoPage updated by tomorrow morning.

Second, for those of you who live in Tallahassee, I will be visiting your way tomorrow. The Capital Tiger Bay Club has asked me to be the guest speaker at tomorrow's meeting and discuss the Schiavo case. I can't imagine those folks will have any questions...

Wednesday, April 27, 2005
I Am My Castle
I suppose that's one way to look at it.

When it came to using deadly force against an attacker, the common law generally offered some rather rigid rules. Deadly force could be used in self-defense only in response to a threat of serious harm, and one had a duty to retreat if possible before using deadly force unless the attack took place in one's own home -- one's "castle." That exception to the duty to retreat became known as the castle doctrine.

I suppose that in crafting those rules long ago, the courts focused on authorizing as little harm as possible. Get away if you can. Go home. But if you're already home, you can go ahead and defend yourself. That makes sense.

At the same time, I suppose it also makes sense to say that a person under attack outside the home was thrust into a serious predicament. Anyone's instinct would be to survive the attack, and yet at that moment the law focused not on instincts but on well reasoned behavior -- if at all possible, retreat and don't return the attacker's aggressions. Otherwise, if you return deadly force with deadly force, you could find yourself being prosecuted for murder and even being sued by the person (or the family of the person) who attacked you.

Enter the Florida Legislature, which earlier this month passed this bill. The bill generally authorizes the return of deadly force anywhere a person has a right to be. The governor signed the bill into law yesterday, and it takes effect on October 1.

Some see the new law as keeping the focus on the attacker's conduct, rather than second-guessing and penalizing the victim's conduct. Others see the law as promoting deadly shootouts in public places, with potentially fatal consequences for those involved in the attack as well as bystanders.

I look at it as an example of how the legislature sets the state's policies on behalf of its people, and if the people believe a common law rule is outdated, the legislature is empowered to change it.

For more on the new law, check out the coverage in today's Sun-Sentinel and St. Pete Times.

Blogus Amicus
Perhaps it's a first: 80 bloggers from California have formed the Bear Flag League, and two weeks ago the group filed this amicus brief in a California intermediate appellate court.

The case is the well known Apple Computer litigation in which Apple contends certain bloggers are not protected by the privileges applicable to traditional journalists.

My hat's off to my blogging amici.

Tuesday, April 26, 2005
Suggestions Wanted
After taking a few weeks off from the saga, I've started to update the Schiavo materials on this site. You may have noticed some new links in the top left column.

For those still looking for reference materials, I've created a page of my 2005 Schiavo-related posts. More important for purposes of this post, I've started a new page that will contain links to some of my better Schiavo posts. It occurred to me that some sort of "popular posts" index might be helpful, but I'm not sure which ones to include. The posts on hearsay and clear and convincing evidence seem like good candidates, and I got a great deal of positive feedback for the "Judging Courage" post on Judge Greer. So that'll be listed, too. Anything else? Longtime readers, was anything I said years ago about Terri's Law or the earlier proceedings helpful?

Let me know. I'm going to compile that list and fix up that page tomorrow night. Then I can update the timeline and add a few posts regarding DCF, the Congressional subpoenas, and, finally, the autopsy.

Court Props
The Fourth District deserves credit. In the last few weeks, the court has begun implementing a new format for its opinions. The change is certainly for the better.

For years, the Fourth District's opinions have been released in a professional-looking single-spaced, dual-column format with a somewhat small Times New Roman font. The result has been a very readable opinion -- if you printed it out. Indeed, when printed, the Fourth District's opinions closely resembled the versions you would later see professionally published in the bound Southern Reporter.

Here is an example.

Trouble came, though, if you wanted to read the court's opinions online. Dual-column format is very easy on the eyes when a page is printed, but it is an invitation to eyestrain when the page is viewed on a computer screen and the user must scroll the page down to read a page's left column and then back up to read the same page's right column.

The court's new format eliminates this trouble and, in my view, adopts a wonderful set of changes. The new approach -- which you can see here -- utilizes a single-column format with single-spaced text and the Bookman font. The result is arguably the most readable of the Florida appellate courts' online opinions.

As someone who reads every state district court and supreme court decision online, I say thanks.

Monday, April 25, 2005
Implementing Legislation For New Amendments
Over the weekend, the AP ran this interesting story about bills that would implement two constitutional amendments Florida voters adopted in 2004.

Amendment 7 requires the release of doctors' adverse incident documents, and Amendment 8 provides for the revocation of doctors' medical licenses after they are found to have committed malpractice three times.

Fifth District: Appellate Mediation
Here is an order that should be noticed by appellate mediators and anyone whose clients are scheduled for appellate mediation.

The Fifth District sanctioned a party who did not appear in person at an appellate mediation. It probably did not help that the mediation resulted in a settlement agreement with which the nonattending party refused to comply. The court ordered the nonattending party to pay the mediator's fees, opposing counsel's fees for both mediation and the sanctions motion, and a $500 fine payable to the court.

Attend mediation. It's that simple.

Third District: Tolling Time 101
Appealing a county court decision to circuit court, the appellant in this case obtained a 30-day extension of time to file an initial brief and then filed a motion to supplement the record. Months later, with no initial brief but the motion to supplement still pending, could the circuit court dismiss the appeal?

No, said the Third District. Rule 9.300 tolls time in circuit court and district court appeals whenever a motion is filed, unless the motion is one of those listed in subdivision (d) of the rule. So as long as the unlisted motion remained pending, time was tolled, and the initial brief was not untimely.

Fifth District: Administrative Review
For an interesting decision showing how the Fifth District decided whether it or a circuit court should hear a challenge from a particular decision by the state Board of Education, check out this opinion. The winner was… the district court.

Fourth District: Juror Bias
Can you win an appeal on grounds the trial court erred in not striking a biased juror for cause? Of course you can, as the plaintiff did in this case. The Fourth District reversed a judgment for the defendants and remanded for a new trial.

Fourth District: Tax Time
The tax consequences of how a piece of real property is used on January 1 of a given year can be seen in this decision from the Fourth District.

The court held that whether the units in an apartment building qualified for tax-exempt status under this affordable housing exemption hinged on whether the units were actually rented to low or very low income tenants on the first day of the year.

Fifth District: Home Venue Privilege
For an interesting and concise discussion on the home venue privilege shared by the state's agencies, and on the contours of the principal exception to that privilege, check out this decision by the Fifth District.

Friday, April 22, 2005
Friday Florida Law Trivia Answer
I received many good responses to today's question. I can't fight with a number of them. Sure, schools, roads, and gun shops may be ordered closed in the case of a riot or mob. But the answer I had in mind concerns a group that wears a special, statutory bull's-eye in these situations: bars.

This statute specifically authorizes local mayors and county commissions to order the closure of certain bars and the cessation of alcohol sales at restaurants and stores in the event of a mob gathering or riot.

Now, if you wish, go start your weekend off right with a drink at a local watering hole, and be glad there's no mob in sight.

Friday Florida Law Trivia!
Trivia time. This one's too easy, I think.

If a riot occurs or a mob erupts in your area, what's likely to be ordered closed?

I'll post the answer around 4:45 pm EDT today.

Email Note
To those who've emailed me in the last few days -- travel and workload have kept me from responding so far. I'll get back to you later today.

Oh, and there's a group of about 342 emails that I received one afteroon during the Schiavo saga to which I've still not responded -- yet. I managed to keep up before and after that group, but that set just hasn't been addressed. Responses may not be timely anymore, but I will get to each of them.

Florida Supreme Court: The Perfect Storm Case
Florida has a statute -- this one -- that prohibits publishing or publicly using a person's name, photograph, or likeness for commercial purposes without the person's consent. (Or, if the person is deceased, the consent of the person's spouse or adult child.)

Knowing that, let's say the folks out in Hollywood decide your life is particularly entertaining and that a movie about you is just what the coming holiday season needs. Alarmingly good-looking people play you and everyone you know -- why not? -- and the movie makes its stars and the movie production machinery lots of money. You never consented to any of this.

Do you have a claim under the Florida statute that prohibits using your name and likeness?

That's essentially the sort of question the Florida Supreme Court had to tackle in this case. The suit was brought by relatives of the actual people portrayed, without consent, in the motion picture The Perfect Storm. You remember Captain Billy Tyne and friends.

And the answer, for the plaintiffs, was no.

Florida's high court had never interpreted this law before, but the court agreed with a decades-old interpretation by other Florida courts that limits a "commercial purpose" to one that uses a person's name or likeness directly to promote a product or service. A movie or book, fact or fiction, does not ordinarily promote a product or service, and The Perfect Storm did not. Concerns that a broader interpretation of the statute would violate the First Amendment's freedom of speech right strongly influenced the case's result.

So if The Perfect Storm isn't using Billy Tyne's name or likeness to promote something, what would? Well, maybe think about an infomercial. Using your name or likeness to sell a slicing, dicing, get-ripped-abs-while-watching-tv machine -- that just might do it.

First District: Deposing (Former) Agency Heads
Last week I mentioned how the certiorari writ can be used to require testimony by deposition. This week I'll point out that the converse is true, too: the writ can be used to block deposition testimony.

The case in point is politically noteworthy because it involves former Commissioner of Education Jim Horne. The plaintiffs sought to depose him regarding funding decisions made on his watch, and while Florida law generally prohibits deposing agency heads except when their testimony is necessary, relevant, and unavailable from any other source, the trial judge found that principle inapplicable in the case of a former agency head.

The First District disagreed. Former agency heads share the principle's protection, too. You can read the decision here.

Second District: Coverage Exclusions
This decision from the Second District shows the potential for confusion when an insurance endorsement speaks to whether it limits coverage. The case involved a homeowner's insurance policy's business exclusion as affected by a home day care endorsement. The court found that the exclusion limited coverage and the endorsement limited the exclusion, all without ambiguity.

Nice win, Caryn.

First District: Criminal Transcripts
As the First District explained in this decision, indigent defendants are entitled to transcripts of their criminal proceedings for appellate purposes -- even if the trial judge believes no error occurred.

Thursday, April 21, 2005
Wine Out
The St. Pete Times today has this story about a proposed bill that would allow restaurant diners to bring open bottles of wine home without violating the state's open container laws.

Smoke Act
Today's Tallahassee Democrat reports here on a proposed bill that would exempt theater actors from Florida's workplace smoking ban.

Makes sense.

Fifth District: Rule 1.442 Proposals For Settlement
Here we have a very interesting case from the Fifth District regarding proposals for settlement.

The case involved an auto accident and a defendant's $12,500 proposal for settlement. The proposal conditioned acceptance on the execution of a release, and the proposal summarized the release's key language. The plaintiff did not accept the offer. When the plaintiff later obtained a judgment for only $6,423, the defendant sought fees pursuant to the rejected proposal. The trial court denied that motion, finding the release language ambiguous and not sufficiently particular.

The Fifth District affirmed, but the three-judge panel divided 2-1, with the two judges voting to affirm offering different rationales for doing so.

Judge Sharp authored the lead opinion and concluded that the release as summarized could potentially extinguish the plaintiff's first-party PIP and health insurance claims, making the release's legal effect unclear and rendering the proposal ambiguous.

Judge Griffin authored a special concurrence. She explained that a proposal should fail where it contains nonmonetary terms that go beyond what would inhere in a dismissal or release by operation of law upon settlement.

Disagreeing with the majority, and pointing out that the split in rationales left no precedential opinion from the court, Judge Pleus asserted that the proposal stated the required release language with sufficient particularity and that Rule 1.442 does not limit the scope of permissible nonmonetary conditions in the way Judge Griffin suggested.

Practitioners may wish to keep in mind the rationales that combined to defeat the proposal in this case.

Also, those in a position to change the governing rules may wish to keep in mind Judge Pleus's suggestion to make the offer of judgment system more effective by requiring offerees to make objections. He explained:

I believe virtually all plaintiffs who reject proposals for settlement do so because the monetary amount offered is unacceptable, not because the proposal is ambiguous or requires the plaintiff to execute a confidentiality agreement, indemnification agreement or release. These are just convenient arguments used by plaintiffs to invalidate proposals after they have gambled with a jury and lost. If the amount of money was agreeable, but the release terms were not, a plaintiff would surely contact the offeror so that the two sides could agree upon mutually acceptable release provisions.

A system whereby an offeree can silently reject a proposal for settlement and then later cry foul after the offeror has expended time and expense in obtaining a favorable judgment, undermines the efficacy of proposals for settlement. It allows plaintiffs to take questionable cases to trial with impunity that should be settled, knowing that they may avoid the proposal following an adverse outcome. The current rule places the burden on the offeror to make offers in good faith, but places no reciprocal burden on offerees to reject such offers in good faith. Requiring offerees to timely object to proposals with sufficient particularity would encourage offerors to accommodate such concerns by filing amended proposals or risk the denial of fees and costs. Such a system has the salutary effect of ensuring the proposal for settlement as a useful tool in facilitating settlements.

Florida Supreme Court: Insurers' Bad Faith, Discovery of Claims Files
I'm in Miami today to help present a seminar my firm puts on annually for a large insurance client and its panel trial counsel, and now seems to be as good a time as any to mention this decision released earlier this month by the Florida Supreme Court. The court considered whether the diminished work product protection extended to insurers' files in the context of third-party bad faith cases should apply also in the case of first-party claims.

Relying heavily on the legislature's creation of a first-party bad faith cause of action, and receding from a 1989 decision, the high court held that the two types of bad faith claims should be treated the same for purposes of discovering the insurers' files.

Hey, Legislature!
In this decision, the Fifth District encouraged the legislature to revisit the "financially devastating" requirement set forth in section 901.35 that counties pay for the medical care of persons held under arrest.

Wednesday, April 20, 2005
Late Start
Whew. It's been a long week already. I had two oral arguments in the last few days. (I think it's safe to say one went better than the other, but I'll leave it at that.)

Looking around, I see we have a bunch of new cases out, that Celene Humphries hosted an awesome telephonic CLE yesterday on motion practice in the state appellate courts, and that my email responses on things as peculiar as the difference between sexual offenders and sexual predators can end up anywhere -- even a "Cool" place. Hmmph.

Tuesday, April 19, 2005
Chief Judge Sawaya Joins Small Rock and Roll Club
Ok. That's almost funny. As best I can tell, though, Chief Judge Sawaya is only the fifth judge in Florida's history to refer to Sisyphus or, as the chief judge did at the very end of this opinion, a Sisyphean victory or effort.

I bet somewhere out there, perhaps at the outskirts of a college campus, you'll find a cleverly named bar called Sisyphus Rocks.

Or maybe a band.

Or maybe a prison...

Third District: Teaching Trouble
For an example of why school boards may be troubled by the use of substitute teachers, check out this decision from the Third District.

The court affirmed a jury verdict against a school board. The plaintiffs were parents of a child who was sexually assaulted in a school bathroom during class. The parents claimed the board was negligent in not informing a substitute teacher that the child who committed the assault had a history of sexually aggressive behavior, not instructing the substitute teacher about the school's one-at-a-time bathroom pass policy, and not otherwise taking steps to prevent the aggressive child from visiting the bathroom with other children.

Both kids were in kindergarten.

Third District: Certiorari
Can a writ of certiorari be used to compel testimony by deposition? Yes, as the Third District showed in this decision.

Fourth District: Jury Selection
In a drug trafficking case, is the fact a prospective juror is from Jamaica, a country with known ties to drug trafficking, a race-neutral and ethnically neutral reason for striking that prospective juror?

No, said the Fourth District in this case. Referencing this recent Third District decision involving Haitian prospective jurors, the Fourth District explained:

[T]he juror’s country of origin should be viewed as a surrogate for impermissible racial or ethnic bias. A policy of striking all jurors who originate from a country inhabited by a distinct racial or ethnic group, without regard to the particular circumstances of the trial or the individual responses of the jurors, is inherently discriminatory. As the defense counsel pointed out, the prosecutor made no attempts to question Juror Anderson about her familiarity and experiences, if any, with drug trafficking in Jamaica. Rather, the prosecutor’s challenge rested on stereotypical assumptions about Jamaicans. Striking all Jamaicans from criminal drug trials on the assumption they will be tolerant of drug offenses is akin to striking Haitian jurors on the assumption that they will be biased in favor of a Haitian defendant or Creole-speaking witnesses. This is precisely the type of impermissible stereotyping condemned by the Equal Protection Clause.
Trial attorneys, you've been warned.

Third District: Partial Closures
For an interesting case on when a courtroom may be partially closed, allowing would-be attendees to view the proceedings by a live closed-circuit television link, check out this decision from the Third District.

Monday, April 18, 2005
Eleventh Circuit: "Unpublished" Opinions Now Published
The Eleventh Circuit's internet site now contains links to the court's daily published and unpublished opinions.

Yep, unpublished opinions.

Remember, though, under IOP-6 to Local Rule 36-1:
Opinions that the panel believes to have no precedential value are not published. . . . Although unpublished opinions may be cited as persuasive authority, they are not considered binding precedent. Reliance on unpublished opinions is not favored by the court.
In any event, research for cases in the Eleventh just got more difficult.

Florida Supreme Court: Negligence And The Impact Rule
Here's an interesting situation. The defendant wrote a "to whom it may concern" letter about the plaintiff, accusing him of abusing his children. The letter was then used by the children's mother to obtain an injunction against the plaintiff without notice to him. The injunction was ultimately rescinded, and the plaintiff sued the counselor's employer. The employer argued that the negligence claim should be dismissed because the plaintiff failed to comply with the pre-suit notice requirements applicable to medical malpractice claims and because the claim fails under Florida's impact rule. The trial court granted the motion to dismiss.

The First District reversed, holding that the plaintiff stated a claim in negligence to which the medical malpractice pre-suit notice requirements were not applicable. The court also held that the impact rule did not bar the plaintiff's claim, but in this regard the court certified the following to the Florida Supreme Court as a question of great public importance:

You can read the First District's decision here.

Last week, the Florida Supreme Court addressed the certified question but declined to answer it. In this decision, the court found it problematic that the impact rule had been at issue in this case while the threshold issue of whether a cause of action even exists had not. The high court thus quashed the district court's decision and remanded the matter for further proceedings on whether the plaintiff pled a viable cause of action.

Perhaps the impact rule is better thought of as a shorthand way of expressing the result reached where certain negligence claims do not state causes of action. Relying on the "rule" as a rule, rather than a result, can take the focus off the underlying principles -- which can be okay, as long as the "rule" need not be applied to new situations that call for application of those principles.

Premises liability provides a related example: while we have not coined a catchy name for the rules we apply in various premises liability contexts -- you know, all those invitee/licensee/trespasser/known, unknown, obvious danger rules -- those rules are really the product of decisions holding that, as a matter of law, certain premises-related conduct resulting in bodily injury or property damage is not or may be unreasonable for negligence purposes. Each rule was created not by applying the previously existing rules but by referring back to the underlying negligence principles.

In this case, our high court seems to have been troubled by the absence of a fundamental analysis on the basic elements of negligence -- particularly, I'd wager, the issue of duty. Our legal tradition has long recognized a duty on each of us not to harm another's body or another's property. Note that the claim in this case is for harming the plaintiff's emotions and his relationship with his children, not his body or his property. Whether the law protects the interests the plaintiff seeks to enforce in a manner that can provide remedies through a negligence action is the real threshold issue regarding this claim, and I suspect that's exactly what the supreme court wants the parties and the lower courts to address.

Second District: Prejudgment Interest
When does a tender of monies owed not stop the accrual of prejudgment interest? When the tender is not absolute and unconditional, explained the Second District in this case.

First District: Blakely
With this decision, the First District adds its voice to the chorus singing that Blakely v. Washington cannot be applied retroactively in collateral proceedings.

At the same time, Blakely would seem to support the very notion of bringing these retroactivity challenges now. You never know...

Second District: A Better Way
The Second District's order in this case explains that the court granted rehearing in part, withdrew its prior opinion, and issued the attached opinion in the former one's place. The order is noteworthy, and commendable, because it then sets out what portions of the prior opinion have been changed.

What a great practice it would be if all orders substituting opinions identified at least what discussions in the original opinion were modified.

By the way, my pithy post on the Second District's original decision is available here.

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

The court certified the same question in a 2002 case, before I started this web log.

Time Issues
The First District's decision in this case simply says, "The petition seeking belated appeal is denied as time barred," followed by a citation.

Now, there's late and then there's late.

First District: Attorney's Rate and Hours Not Protected
In a case that could get rather interesting down the road, the First District rejected a petition asking that a writ of certiorari be directed to an order requiring disclosure of opposing counsel's hourly rate and the hours expended in defending a claim. The case concerns a constitutional challenge to a cap on fee awards in certain workers' compensation proceedings. You can read the First District's decision here.

Friday, April 15, 2005
Friday Florida Law Trivia Answer
What does milk have to be separated from in the dairy aisle at your local grocery store?

Fake milk, or as this statute puts it, imitation and substitute milk products.

The statute actually requires that milk be separated from the non-milks by a partition or divider in the display case.

I worked the dairy aisle at my local Publix for two years back in high school, and I just thought those plastic partitions were randomly placed. Who knew?

(I'm guessing the dairy lobby knew...)

Have a great weekend.

Friday Florida Law Trivia!
Happy Friday, everyone. This week's installment of Friday Florida Law Trivia is definitely taking a turn away from the serious.

What must milk be kept separate from in the dairy aisle at your local grocery store?

I'll post the answer around 4:45 pm (EDT) today.

Amendments Brewing
Today's Palm Beach Post has this interesting story on constitutional amendment proposals we're likely to see on Florida's 2006 statewide ballot. One of these days I'll wade into some of these waters....

Thursday, April 14, 2005
Schiavo Numbers
This story from today's St. Pete Times has some interesting data on the public's reaction to both the media's coverage of the Schiavo saga and politicians' intervention in the matter.

The most interesting part of the story to me is that 81 percent of those surveyed reported they have made their end-of-life wishes clear to their families.

Nineteen percent to go.

Second District: Distractions Noted
Have you ever had a case involving a great number of facts that you need to convey to avoid confusion but which really shouldn't matter to the ultimate result? Well, this decision from the Second District may offer a formatting device for dealing with that situation. The case's facts were a bit complicated -– so much so that the court opened the opinion with the observation that the facts "recite like the worst nightmare of a law student preparing for a final exam in trusts and estates."

The court began its fact discussion with a seven-page section aptly titled "The Facts." Then the court discussed nearly four pages of additional facts in a second section called "The Distractions."

I love it. And I intend to use it. It's sort of like drafting a summary judgment motion that presents "The Undisputed Material Facts" in one section and "The Disputed But Immaterial Facts My Opponent Will Surely Talk About" in another. Hah.

By the way, great win, Bob.

Florida Supreme Court: Duty and Intervening Causes
Those interested in the common law concepts of duty and intervening causes may wish to check out the Florida Supreme Court's decision in this case. The case involved a power company that disconnected power to a traffic light while doing repair work, motorists who failed to treat a nonfunctioning traffic light as an all-way stop, and a fatal car accident.

New Problem, New Appellate Route
This statute enacted last year prohibits trial courts from withholding adjudications of guilt in certain cases. As of last week, this new amendment to the Rules of Appellate Procedure permits the state to appeal a violation of the new statute.

Wednesday, April 13, 2005
Eleventh Circuit: Felon Disenfranchisement Upheld
Yesterday, an en banc panel of the Eleventh Circuit upheld Florida's law that bans felons from voting unless their civil rights are restored. The challenge was based on equal protection principles and the federal Voting Rights Act.

Addressing the equal protection argument, the court held that the disenfranchisement law predates the ability of African Americans to vote and thus cannot have been originally created for racially discriminatory purposes. In a historically fascinating discussion, the court considered -- but rejected -- an argument that the re-adoptions of the ban in the 1868 state constitution and again in the 1968 version were racially motivated. The court then applied the general equal protection analysis and concluded that no equal protection violation existed.

In another very interesting discussion, the court rejected an argument that the ban violates the Voting Rights Act. The court concluded that Congress did not intend the Voting Rights Act to cover a state's decision to disenfranchise felons.

Ultimately, the court expressed that the wisdom of felon disenfranchisement statutes is a matter for the consideration of state legislators, not federal courts.

Judge Wilson dissented. He agreed that no equal protection violation existed but would have held the ban to violate the Voting Rights Act.

Judge Barkett also dissented. She would have held the ban invalid under both an equal protection analysis and the Voting Rights Act challenge.

You can read the en banc court's decision here.

Florida Supreme Court: Governmental Duties of Care
If you enjoy delving through the planning/operational decision dichotomy in route to determining whether government units owe citizens duties of care -- and who doesn't? -- then this is a case for you. The Florida Supreme Court divided 4-3 in holding that the City of Miami Beach owed a duty of care to warn beachgoers of rip currents at a Miami Beach location.

The dispute between the majority and dissenting positions appears to surround the basics of the planning/operational decision analysis. That analysis asks if the decision at issue is a planning-level decision, such as whether to operate a particular beach as a swimming facility at all, or an operational decision, such as how a planned swimming facility is in practice going to be operated. Decisions at the planning level involve no duty of care, while decisions at the operational level involve duties of care.

In the case, the city had affirmatively decided not to operate the particular beach at issue as a swimming facility. The city did, however, permit the beach to be utilized for various other activities, including sunbathing and watersports, and did not expressly prohibit swimming or disclaim responsibility for swimmers. In essence, the majority found that the city's activities constituted an implicit planning decision to permit swimming, albeit one contrary to the city's expressed planning decision. The dissent was troubled by that analysis, to say the least.

Florida Supreme Court: PIP Constitutional Challenges
Here we have a case that constitutional law fans should enjoy. The case concerns a provision in Florida's PIP scheme that requires health care providers to send PIP-related bills to insurance companies within 30 days of the service dates or else forfeit the ability to recover the monies owed. The statute was challenged on equal protection, due process, and access to courts grounds. The Florida Supreme Court rejected all three challenges, applying the rational basis test for each.

Chief Justice Pariente authored a concurrence in which she suggested the statute may be unconstitutional in particular applications, such as where a provider is unable to mail a bill timely through the fault only of others.

The real interesting part begins with the dissent by Justice Lewis. He briefly contended that the statutes failed to satisfy the rational basis test, but he focused his dissent on how he believed the statute impacted fundamental rights -- rights to property and access to courts -- and should have triggered strict scrutiny. Justice Lewis's conclusions about the strict scrutiny result are probably indisputable, but what is clearly at issue here is whether that standard is applicable to the 30-day requirement in the first place. An interesting issue.

Justice Quince offered a separate dissent in which she seemed to apply only rational basis scrutiny to the 30-day requirement but still found the statute unsupportable under both equal protection and access to courts principles.

Tuesday, April 12, 2005
Abstract Mention
Some of you may have noticed that this story in today's Tallahassee Democrat mentions this web log and quotes me. It's an interesting story about how living wills are very helpful but do not preclude all litigation over a person's end-of-life wishes.

The story also contains a brief quote from a rather extensive April 1 post I authored regarding living wills. At the moment, that post hasn't yet fallen off the bottom of this page, so if you'd like to read that discussion on living wills, you can scroll down to April 1's posts and find it. Or you can jump directly to that post by clicking here.

Florida Supreme Court: Jurisdiction
Appellate attorneys may wish to review the Florida Supreme Court's brief decision in this case. The decision discussed in detail how the court lacks jurisdiction to review district court decisions that contain no citation or statement establishing a point of law, while the court has jurisdiction to consider review of cases citing or stating points of law.

Florida Supreme Court: Cruel Punishment, Unusual Punishment
One of these days I'll take a few minutes to recount history surrounding the "cruel and unusual punishment" prohibition currently found in Article I, section 17 of the Florida Constitution. It's an interesting tale. For now, I'll just note that the Florida Supreme Court had occasion to interpret the provision's "cruel or unusual" predecessor in this case involving a life sentence without possibility of parole for the sexual battery of a child under 12 years of age. The court found nothing cruel, or unusual, about the sentence.

Also noteworthy about the case is Chief Justice Pariente's suggestion that twelve-person juries might be more appropriate than six-person juries in capital sexual battery cases. She encouraged the matter to be studied.

Florida Supreme Court: Assignment of Malpractice Claims
With the Florida Supreme Court's decision in this case, we now know that a limited number of malpractice claims against lawyers are assignable, namely claims involving the preparation of private placement memoranda.

Appellate fans may also note that the court took the case based on conflict between a district court decision and dicta from an earlier high court decision. The district court rejected the dicta, giving rise to review, and the supreme court approved that decision.

Florida Supreme Court: No Contest Pleas
Where a defendant pleads nolo contendere to an offense and adjudication is withheld, can that plea later be used as a prior conviction when calculating the defendant's sentence for a subsequent offense? Resolving a split in the districts, the Florida Supreme Court answered that question in the affirmative in this case.

Still Catching Up...
Yesterday I made some good progress in getting caught up on recent cases in the wake of the much-consuming Schiavo saga. (I'm still not caught up on answering email, though. Almost.) This morning I'll add a few posts on recent supreme court decisions, but I have a way to go in getting those cases covered, and there a number of noteworthy federal circuit court decisions to discuss, too. Hopefully I'll be caught up within a day or two.

Monday, April 11, 2005
Fourth District: A Get-Out-of-Losing-Free Card
Shhhh. Don't tell anyone, but if a judge enters a recusal order and the case is later reassigned to the same judge, all orders entered after the reassignment are void. So said the Fourth District in this case. The court explained that it was bound by Florida high court precedent.

The facts are simple but interesting. The trial judge in the case had originally recused himself because the defendants' firm represented him in an unrelated matter. When the case was later reassigned back to the same judge, the other matter had concluded, and no one objected to the reassignment.

Until someone lost. And then -- voila -- the loser got to vacate the judgment.

Talk about advisory decisions.

Third District: Arrogance Noted, Or Why E-Mailing Too Much Is A Bad Idea
After reading footnote 1 in this decision a few times, I'm still not sure which comment by the attorney who represented himself in his own divorce offended the Third District more.

Was it when the attorney told his wife in an email, "I will fight you to the ground, [sic] if necessary and I will cause you to run up HUGE legal bills as a result"?

Or was it when he referred to his wife's counsel as "DRACULADEENAGOOSE"?

Or perhaps it was when the attorney referred to the trial judge as "BOGUS JUDGE … [who] doesn't even qualify intellectually for janitor."

Or maybe it was when the attorney claimed both opposing counsel and the trial judge were "simply no match" for him.

One thing's for sure, with the decision's publication, lots of us can now debate the matter.

Two days before Terri Schiavo's feeding tube was removed, and before Congress passed the law the Eleventh Circuit would later have to interpret amidst calls for and against judicial activism, Judge Gersten of Florida's Third District offered these comments in a concurrence about the role of judges:

Our responsibility as judges is to follow applicable precedent rather than our own beliefs. In doing so, we contribute to the predictability and certainty of law, which in turn, is required by an orderly society in order to flourish. That requirement is far more important than any individual judge’s subjective belief.
Well said. The decision is here.

Fourth District: Auto Black Box Information Admissible
The Fourth District's decision in this manslaughter case contains a noteworthy legal ruling: the court found that a "black box" data recorder in the defendant's Trans Am could be used to provide scientifically reliable evidence of the defendant's speed prior to a crash. According to the box, the defendant had been traveling 114 miles per hour in a 30-mile per hour zone just seconds before a fatal crash.

What folks might wish to take from this case is the notion that data recording devices are increasingly present in vehicles and record all sorts of data about a vehicle and its use. Facts like speed, seating, and seat belt use -- classic issues in crash litigation -- may end up being a bit more difficult to dispute.

Hey, Legislature!
In this decision, the Fourth District pointed out a quirk in the sentencing statutes that the legislature may wish to address. Chapter 921 exempts a state detention worker convicted of sexual misconduct from receiving victim injury points on his or her sentencing scoresheet but does not exempt county or municipal detention workers who commit the same offense. That's illogical, the court said, though not so illogical as to render the discrepancy unconstitutional.

Fifth District: Deposing Hearing Officers
Hearing officers serve much like judges, and they share the immunity that judges have when they rule on cases arguably within their jurisdiction. So it should come as no surprise that, in this case, the Fifth District issued a writ of certiorari quashing an order that permitted a hearing officer to be deposed. The plain purpose of the deposition was not to establish a factual record of what events occurred in the earlier proceeding but to probe the officer's thought processes and qualifications. Oh, you can't do that.

Questions, questions
Florida's district courts of appeal have unanimously agreed that Blakely v. Washington is not retroactive and cannot be used to make collateral attacks on a sentence. Nonetheless, the Fourth District in this case decided to certify the following to the Florida Supreme Court as a question of great public importance:


Second District: Article 9
Does anyone out there deal with security interests? If so, you may be interested in this decision by the Second District. The court undertook an interesting analysis to resolve a discrepancy between a financing statement and a security agreement in the description of a loan's collateral.

Third District: Expert Testimony
Can a lawyer's testimony concerning his role in a case ever be considered expert testimony, subject to the usual expert disclosure rules? It can and it was in this case out of the Third District.

Fifth District: Adult Entertainment
First Amendment fans will be interested in this decision from the Fifth District, which held that Orange County's Adult Entertainment Code was not unconstitutionally vague.

The case may also be of interest to appellate fans for its split over whether requiring an unsuccessful adult entertainment license applicant to pursue an original action in the circuit court provides a constitutionally adequate process for reviewing such licensing decisions.

Second District: Sentencing Errors
Let's say you work for the state attorney's office and you notice that the sentence the trial judge just gave a defendant is lower than the sentencing guidelines permit. If you notice it in time, you can appeal the sentence. But can you file a motion asking the trial court to correct the error?

No, said the Second District in this case.

Questions, questions
Further confirming the interest in resolving these issues, this decision from the Third District certified the following to the Florida Supreme Court as questions of great public importance:


The Fifth District previously certified these questions, one in each of two separate cases.

Third District: Ineffective Assistance
For an interesting example of a situation where a defendant successfully raised an ineffective assistance claim on direct appeal, check out this decision from the Third District. Trial counsel wanted to use a fourth peremptory challenge but did not because the trial court erroneously permitted the defendant only three. Counsel should have known the defendant was entitled to six.

Fourth District: Child Custody
Where the only custody arrangement among former spouses has been a joint one, can a trial court designate one parent as primary residential parent without finding a substantial change in circumstances? No, said the Fourth District in this case, weighing in on a district court split over the issue.

Fifth District: Nursing Home Care, Punitive Damages
The district courts continue to agree that whether a sufficient basis has been shown to state a claim for punitive damages is reviewed de novo on appeal. You may recall this prior post concerning recent decisions by the First and Fourth Districts, and now this decision from the Fifth District joins the chorus.

Nursing home fans will also be interested in the case's ultimate result. The court determined that evidence of inadequate staffing was sufficient to show negligence by management, opening the door to punitive damages based on vicarious liability for actions by the staff. The trial court's denial of the motion for leave to amend was reversed for a new trial on punitive damages.

Third District: Not Convenient Enough
If you closely follow forum non conveniens case law, you may be interested in this decision from the Third District.

Fourth District: Forum Non Conveniens
Just a reminder here from the Fourth District that the 60-day limit for moving to dismiss a case on forum non conveniens grounds does not apply to a trial court's ability to raise that issue sua sponte.

Fourth District: Flag Foreclosure
I wish I'd noticed the press coverage surrounding this case when it came out. The case involved a couple who lost a battle with their homeowners' association over a flag pole they erected on their property. The association obtained a judgment for its attorney's fees and sought to enforce the judgment by foreclosing on the couple's home.

The Fourth District held that the fee judgment could not predicate a foreclosure of the couple's homestead property, but the decision had nothing to do with the patriotic nature of the underlying dispute. The court simply concluded that the homeowners' association documents did not consider attorney's fees for violation enforcement to be assessments, so the relation back concept that usually permits assessments to overcome a property's homestead status did not apply to the fee judgment.

That's a lucky win for the former flag-flying couple, and it's a hint for those who draft association documents.

Third District: Workers' Compensation
Workers' comp fans will be interested in this "unrelated works" decision from the Third District.

Fourth District: Failure to Prosecute
This failure to prosecute decision from the Fourth District recalls the notion that where an attorney does not actively practice law for a period of time, the attorney's firm has an obligation to monitor the attorney's case load.

Fourth District: Dissolution Fees
Family law folks may be interested in this recent decision from the Fourth District. The court reversed a fee award because a former spouse's "superior future income prospects" did not amount to an ability to pay the other side's attorneys fees.

Second District: Legal Tender
The Second District's decision in this case is rather unremarkable, except for its mention of Wal-Mart vouchers. The Department of Agriculture and Consumer Services is issuing Wal-Mart vouchers as compensation? How enterprising.

Third District: 57.105 Fees
I suppose there's a lesson to be taken from the Third District's decision in this case. If you file a malpractice claim saying your former lawyer should have told you something and you later admit you in fact knew it at the time, then you're going to get hit with attorney's fees, whether the trial judge awards them or not.

Third District: Probate Fees
Can a potential beneficiary of a will challenge an attorney's fee award in the estate? In this case, the Third District said no and acknowledged a district court conflict on the issue.

Catching Up...
As you may know, a significantly heightened focus on the Schiavo saga has left me behind in noting some interesting recent cases. This morning, I'll be caught up on district court decisions.

Sunday, April 10, 2005
New Link
I've updated the prior post to include a link that's still good today.

Saturday, April 09, 2005
Unprecedented Redux
Perhaps you recall how some rather high level officials declared the removal of Terri's feeding tube to be without precedent. I could try to say something witty here, but I won't. The whole scenario is just too somber, whether or not this would be just the second time.

I note that the situation in the linked story involves a woman who memorialized her wishes in writing. That hasn't stopped the court battle. People who believe a living will eliminates all controversy are just kidding themselves, no matter what prime time hour they occupy on weeknights. As I explained here, making sure family and friends understand your wishes is no less important.

The Cost of Fame
Thanks to John Mills, who noticed my question the other day about the First District keeping oral argument archives. John pointed out that the court does archive the arguments and, as this administrative order explains, you can purchase your very own copy of an OA video for $25. No word yet on whether Wal-Mart plans to compete.

Friday, April 08, 2005
Friday Florida Law Trivia Answer (Schiavo Related)
Here's the answer to the question I posed this morning...

Hearsay. It's defined in popular culture as something you heard someone else say. The legal definition is a bit different, but let's stick with the popular definition for now.

Lots of people believe that what you heard someone else say isn't admissible in court. That's not true. In the federal court system and Florida's courts (and probably every other state's courts), there is a general rule prohibiting hearsay but dozens of rather broad exceptions to the rule.

The fact that there are exceptions to a rule barring hearsay suggests that some hearsay must be okay, while other hearsay is not. What's the difference? Before considering that, it helps to understand what the problem is with hearsay in the first place.

The common assumption seems to be that hearsay is unreliable -- and should be kept out of court -- because the witness might be lying about what someone else said. Let's put this in Michael/Terri terms. I've heard innumerable people say Michael Schiavo should never have been allowed to testify to what Terri told him because he may have been making it up.

That a witness might be lying about what someone else said is a valid concern, but it's no reason to keep such testimony out of court. After all, what's the difference between Michael testifying that he heard Terri say "don't let me live like that" and Michael testifying that he saw Terri run a red light, or that he saw Terri eat broccoli one night? Nothing, in the sense of Michael's truthfulness. Theoretically, a witness could lie about what someone did just as easily as about what someone said. So, no, we don't make a special case out of hearsay because the witness might not be telling the truth.

We make a special case out of hearsay because, even if the witness really heard the statement, the witness might not reliably convey what the original speaker really meant -- either by mistake or because the original speaker wasn't clear.

A well known example of the problem here can be found in the modern classic My Cousin Vinny. When the officer accuses Billy of shooting the convenience store clerk, Billy responds in disbelief, "I shot the clerk?" Later, when the officer takes the stand and is asked to repeat what Billy said when confronted with the charge, the officer testifies, "He said, 'I shot the clerk.'" Subtle difference, but a huge one. The officer got the words right but the meaning wrong. You'd want to talk to Billy to be sure you understood what he really meant.

So the trouble with hearsay isn't that the witness might not be telling the truth about what someone else said. The witness's truthfulness can be an issue no matter what the witness claims to have heard or seen or done. The trouble with hearsay is that without the "someone else" there to examine, it can be very difficult to determine the reliability of the witness's interpretation of the other person's words.

If you look at the exceptions to the hearsay rule -- and there are dozens -- you'll notice that lots of them concern situations where we can be fairly sure of what the speaker meant. I may discuss this in more detail at a later time.

The next time you hear someone say Michael shouldn't have been allowed to testify to what Terri told him, ask if the person is being critical of Michael's ability to convey what Terri really meant or if the person just doubts Michael told the truth. If the answer is that we can't be sure what Terri's words meant, then at least the person's in the ballpark with the problems of hearsay (though it was still admissible...). If the answer is that Michael may have been lying, then the person doesn't really understand hearsay in the first place.

More Trivia...
Well, the day wound up being too busy to get substantive posts up. I may as well just post the answer to the trivia question soon.

While I'm getting it ready, I'll mention the wrong answer I had in mind: contrary to popular belief, hearsay's not undesirable because the person may not have said what the witness says was said...

Friday Florida Law Trivia!
Late morning. I'm just turning my attention to the blog and, whaddaya know, it's Friday. Time for Friday Florida Law Trivia. At some point between the Schiavo case becoming all-consuming and our pal Hunter getting way too deep in some litigation, we lost track of the weekly trivia question.

Well, it's time to bring the weekly question back, although I'll do things a little different today. I'm going to post the question, then around midday I'm going to post a number of substantive posts and re-post the question along with a hint. Then, around 5 pm eastern, I'll post the correct answer.

This week's question is not confined to Florida law, and it concerns a concept that nonlawyers and even many lawyers continue to misunderstand: hearsay. (You may recall this post, where I did my best to explain why "hearsay" was properly admitted in the Schiavo case.)

Here's the question:

Something must be wrong with hearsay, since there's a rule in probably every state and in federal court saying hearsay is generally not admissible. But what exactly is wrong with it?

The answer is probably not what you think, and if that's the case, you'll enjoy and hopefully learn a bit by reading the answer later today.

Thursday, April 07, 2005
Schiavo News: Memo Had Author
A bit of a maelstrom seems to have developed with the revelation of who authored the "talking points" congressional memo circulated in connection with Terri's Law II. Read about it in this story from today's Orlando Sentinel.

First District: General Laws, Special Laws
As many people who followed the Schiavo saga have come to appreciate, Florida's constitution permits special laws to be enacted (as opposed to general ones) only under limited circumstances, while the U.S. Constitution has no directly comparable limitation. For a discussion on the difference between special and general laws in Florida, check out this recent decision from the First District.

First District: Hard Times
Experiencing the death of a child is unthinkably tragic, but being charged with causing your child's death through culpable negligence must be even more so. In this case, the mother of a child with a severely compromised immune system was charged with causing the child's death due to the condition of the family's home. No one disputed that the home was filthy, but other, reasonably present sources of bacterial infection existed. The state failed to offer proof of what bacteria caused the child's death, so tying the fatal infection to one source or another could not be done.

A jury convicted the child's mother, and the First District reversed. In essence, the court held that the jury could only have speculated as to whether the source of the child's fatal infection was the home's filth or some unrelated item.

Two other items about the decision seem noteworthy. First, the appellate court not only made mention of a concession by the state at oral argument, the court reproduced the relevant oral argument dialogue in a footnote. That's a bit unusual, and I didn't know the First District kept audio or video copies of its oral arguments from which to draw such quotes. I'll have to check on this.

Second, getting back to the post title, I thought it was appropriately somber for the court's factual recitation to mention that the mother and child lived in Holt, Florida, on Hard Times Lane.

Questions, questions
A plaintiff sued two defendants, one of whom was alleged to be liable only vicariously based on the codefendant's negligence. Liability for both was essentially admitted, leaving only damages at issue. The plaintiff then made a high ($100,000) demand for judgment to the directly negligent defendant and a low ($15,000) demand to the vicariously liable defendant. Both demands were rejected. When the jury returned a verdict of $23,500, the plaintiff sought and obtained a $99,425 fee award against the vicariously liable defendant based on the differential between the demanded and recovered amounts. The defendant then appealed, arguing the "bookend" demands were impermissible and in bad faith.

Chief Judge Altenbernd authored this interesting opinion which affirmed the fee award but expressed significant concerns with the legislation and judicial authorities that demanded this result. The case is a well-timed example of courts following the "rule of law" despite misgivings about its underlying wisdom – here, the law's inflexibility concerning offers of judgment.

The Second District's decision also certified the following to the Florida Supreme Court as a question of great public importance:

The "common law outcome" referenced in the question is the result that would have occurred in the absence of the fee-shifting offer of judgment statute: each party would bear its own attorney's fees.

An interesting question here is whether the defendant will even attempt to appeal the award to the high court. After all, if the defendant does so and loses, it will again be on the hook for the plaintiff's attorney's fees. And there's always the possibility the high court will permit briefing, hear argument, and then dismiss the case based on an improvident grant of jurisdiction. These things happen...

Second District: Preservation of Error
Appellate attorneys who work mostly or entirely with civil matters may forget, or not know, that what it means to preserve a claim of error in the criminal realm is codified by a rather precise statute. The Second District quoted the relevant statutory provision near the end of this decision.

First District: Nursing Homes and Punitive Damages
You may recall this prior post from January, where I discussed this decision by the First District and how it apparently conflicted with this decision from the Fourth District regarding review of an order refusing leave to add a punitive damages claim. (The Fourth District later withdrew that decision, replacing it with this one, which reached the same holding on this point.)

In its January decision, the First District held that the proper standard was abuse of discretion review. The Fourth District, on the other hand, held that a de novo review standard applied.

Well, the conflict is no more. The First District withdrew its prior opinion last week and released this one its stead. The new opinion recites that the de novo review standard applies and even cites the Fourth District's decision for support.

By the way, the change in the standard of review did not affect the result.

Questions, questions
In a case involving a complex web of issues concerning the local action rule and the exclusive jurisdiction of the Leon County circuit court to address certain insurance questions, the First District in this decision certified the following to the Florida Supreme Court as a question of great public importance:


First District: Land Use
Here is a way of necessity case from the First District that may interest those who, legally speaking, spend their time in the dirt.

First District: Finality
Ok, appellate fans, here's a simple question as I ease back into some case law. Does this language give rise to an appealable final order:

[T]he court must grant summary judgment to the defendant on the issue of Plaintiff’s failure to exhaust his administrative remedies, and on the doctrine of primary jurisdiction.
The First District has the answer here.

Wednesday, April 06, 2005
Dinner Plate
Well, one lunchtime post...

It's no knock on the food to say that the best plate at last night's Tallahassee Bar Association meeting was the one Florida Bar President Kelly Overstreet Johnson displayed. It's the new "Kids Deserve Justice" specialty license plate:

Kids Deserve Justice Specialty Plate

The Florida Bar sponsored this plate, and money raised from sales will be used to provide legal assistance to needy children.

Neat. Good for the Bar.

Abstract Pause
I greatly enjoyed the speaking opportunity last night mentioned in the previous post. A good and gracious set of folks up there in Tally. I'm back in St. Pete now and, looking around, I think I'll take a break from the blog until morning.

My office really, really needs to be cleaned. It's been a long few weeks...

Tuesday, April 05, 2005
Talk Talk
If you are a member of the Tallahassee Bar Association, I may see you later today. I have the honor of speaking at tonight's monthly meeting. If only I could think of something to say...

Don't Forget...
Just a reminder to appellate attorneys: as of April 1, filings in the Florida Supreme Court should also to be transmitted to the court by email in Microsoft Word format. This is a backup transmission, not an actual filing, and replaces the former method of transmitting the document by disk.

See this administrative order for more details.

Monday, April 04, 2005
Schiavo Thoughts: The Iyer Ire
While I'll no doubt mention things in short form, there is only one Schiavo-related topic left that I intend to address in a longer post. It's gone from being an issue I largely ignored to something I now believe deserves attention from the bar, the media, and the public.

It's the issue of post-trial evidence -- evidence that someone brings forward only after a trial is over for the purpose of asking for a new trial in whole or in part.

I bring this up because I probably received 80 emails in the last week asking why I haven't discussed the Carla Iyer affidavit.

For those who don't know, Carla Iyer was a nurse at a Largo nursing home from April 1995 until July 1996. Terri was there during that time. In a September 2003 affidavit, Iyer made numerous assertions. She claimed that she heard Michael say some rather terrible things about wanting Terri to die and that rehabilitation had been ordered for Terri but never done. Iyer said Terri was "alert and oriented" and "spoke on a regular basis in my presence." Iyer said she made numerous entries in Terri's chart regarding what Terri said and her behaviors, and about the things Michael said, but by the next shift, those notes were always deleted. Iyer said she saw Terri's blood sugar drop after Michael visited and that she suspected he'd been injecting her with insulin. Iyer stated the nurses were instructed not to talk to Terri's parents, "but I would call them, anyway," Iyer said, "because I thought they should know about their daughter." Iyer seemed to say she called the police because of statements Michael and a nurse made about Terri being worth more dead than alive, and that she was terminated the next day for making that call.

Selected portions of these allegations made their way onto almost every radio and television talk show that covered this saga. Apparently, many believe her statements were accurate and only a corrupt judge would ignore them, while others suppose the judge must have found her a few cards short of a deck and ignored her. Neither is true, and I've become concerned about how little the public seems to know about how the courts review evidence brought forth after a trial is over.

Start with this scenario in mind. Imagine a trial takes place. Both sides are free to present whatever evidence they wish, subject to the rules of evidence. One side wins, while the other loses. The losing side appeals and the appellate court finds no error in the trial proceedings. At this point, the losing side returns to the trial court and offers to present evidence it did not previously present.

Post-trial offers of "new evidence" are nothing new. The legal system has some rather well defined ways of dealing with such things. Keeping in mind that I'm oversimplifying to a degree, there are generally four requirements for obtaining a new trial based on evidence offered for the first time only after a trial is over:

- the evidence must be newly discovered
- it must not be evidence that due diligence could have uncovered in time for the trial,
- it must be brought to the court's attention within one year after the judgment, and
- granting a new trial in whole or part must be just.

That's from rule 1.540(b) of Florida's rules of civil procedure. In most cases, the second requirement is dispositive: trials are held only after extensive opportunities are given to discover evidence, and it is extremely difficult to show that, for instance, you had no way to learn of a particular witness's testimony in time for trial.

In 2001, the Second District concluded in this decision that, because of the nature of this case, a new trial could also be granted in part if it was shown that enforcement of the original decision was no longer equitable because new technology might offer Terri a reasonable hope of recovering some cognitive function. If she could do that, then she could make and communicate her own decision regarding her feeding tube.

So let's go back to the Iyer affidavit and see if it meets any of these tests.

Was her testimony newly discovered? Iyer herself said in her affidavit that she called the Schindlers to tell them what was happening with Terri, and so Iyer's own story is that the Schindlers knew about her information. So, no, Iyer's testimony was not newly discovered.

Could Iyer's testimony have been discovered through due diligence? Putting aside that Iyer says she told the Schindlers about these events at the time, nothing seems to suggest that the Schindlers could not have spoken with every nurse who cared for Terri over the years to learn what they had to say, especially the nurse who once called the police on Michael and was supposedly fired for it.

Was it brought to the court within a year? No. The trial was in 2000. The 2002 trial was just under a year before the affidavit's execution, but that trial concerned whether experts believed new medical science could restore Terri's function level. Iyer's affidavit didn't involve that subject.

Finally, was granting a new trial based on this evidence just? I'll leave that unanswered since the other factors are dispositive. It may well be that it is always just to reconsider decisions such as the one here, if new evidence explains why prior testing or evidence reached the wrong conclusion. It may also be worth noting, though, that the most critical issues in this case concerned Terri's previously stated wishes and whether she had any hope of recovering the ability to make and communicate her own decision, and Iyer's affidavit did not speak to either of those issues.

If you read Judge Greer's order that addressed the Iyer affidavit (and others), you'll see he discussed all of these concerns. You'll also see that the affidavit was not presented in an effort to obtain a new trial -- it was presented in an effort to justify giving Terri new therapy. The judge did note that Iyer's claims seemed fantastic and required a cover-up by a number of people, but that was not the reason a new trial or new therapies were not allowed. The motion failed because the legal standards for reopening the case were not met. That's not taking a side, or being biased or corrupt. It's just following the law as it applies to every case.

Schiavo News
Those who've followed this web log for a while know that I used to link various articles on the Schiavo case, especially local coverage. That pretty much stopped in the last month or two when the coverage became ubiquitous.

Well, yesterday's St. Pete Times included this noteworthy column by the last reporter to visit Terri. The visit came just after the January 2000 trial, and the piece's title -- "Before The Circus" -- is very well put.

Saturday, April 02, 2005
Schiavo Thoughts: Myths, Inexcusable Myths
For years now, the most popular myth regarding the Schiavo case was that Michael Schiavo decided what should happen to Terri, and the court system simply enforced his right to make that decision. If you're reading this post, you hopefully know that nothing of the sort happened. (Otherwise, please review this site's Terri Schiavo Information Page, particularly the Q&A section.)

Over time, most of the major media figured out that a trial was actually held between Michael Schiavo and the Schindlers. Most. Not all.

Yet even as much of the country learned that a trial had been held and the judge found the evidence clear and convincing that Terri wished not to receive life-prolonging medical care in this sort of situation, another myth began to emerge. And this one never went away. It did not overtake everyone, but host after host, national news channel after national news channel, editorial board after editorial board -- an astounding number of media figures -- seized on, criticized, lamented, praised, or otherwise discussed something that never, ever happened:

That the clear and convincing evidence of Terri's wishes was just Michael Schiavo's word.

There was talk of how a spouse could be expected to know these things, but then how this spouse could not be trusted. There was talk of how spouses should be believed, but then how "hearsay" testimony from someone with something to gain should be ignored. There was talk of, well, lots of talk. About Michael.

How is it possible that none of these people -- or at least the folks who feed them information -- ever read what the trial judge actually said about the evidence he relied on?

Look back at Judge Greer's February 2000 order. He explained that the clear and convincing evidence did not come from Michael's testimony alone. In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence.

Looking at the trial judge's ruling, he did rely on Michael's testimony, but he also placed tremendous weight on Michael's brother and sister-in-law, Scott Schiavo and Joan Schiavo. The trial judge found their testimony and that of one of the Schindlers' witnesses to be so significant that he had their trial testimony transcribed after the trial so he could review it again. The trial judge explained:

As with the witness called by the Respondents [the Schindlers], the court had the testimony of the brother and sister-in-law transcribed so that the court would not be hamstrung by relying on its notes. The court has reviewed the testimony of Scott Schiavo and Joan Schiavo and finds nothing contained therein to be unreliable. The court notes that neither of these witnesses appeared to have shaded his or her testimony or even attempt to exclude unfavorable comments or points regarding those discussions. They were not impeached on cross-examination. Argument is made as to why they waited so long to step forward but their explanations are worthy of belief.
The court also pointed to an expert witness who testified that the oral statements reported by Scott and Joan were consistent with statements of a person Terri's age:

The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. "Hooked to a machine" means they do not want life artificially extended when there is not hope of improvement.
Later in the decision, the court explained that Terri made different types of statements during her life, including statements where she spoke of what she would want for other people, and statements where she spoke of what she would want for herself. The court said:

There are some comments or statement[s] made by Terri Schiavo which the court does not feel are germane to this decision. The court does not feel that statements made by her at the age of 11 or 12 years truly reflect upon her intention regarding the situation at hand. Additionally, the court does not feel that her statements directed toward others and situations involving others would have the same weight as comments or statements regarding herself if personally placed in those same situations. Into the former category the court places statements regarding Karen Ann Quinlan and the infant child of the friend of Joan Schiavo. The court finds that those statements are more reflective of what Terri Schiavo would do in a similar situation for someone else.
Finally, Judge Greer's order discussed the testimony on which he ultimately relied. He said:

The court does find that Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand. Initially, there is no question that Terri Schiavo does not pose a burden financially to anyone and this would appear to be a safe assumption for the foreseeable future. However, the court notes that the term "burden" is not restricted solely to dollars and cents since one can also be a burden to others emotionally and physically. Statements which Terri Schiavo made which do support the relief sought by her surrogate (Petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want [a] life like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine" and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo's oral declarations concerning her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.
(emphasis added).

These findings show that Michael's testimony was not the clear and convincing evidence the court relied upon -- Michael's testimony was only part of that evidence. Two other witnesses who were not impeached gave what the court found to be specific, reliable, and creditable statements about her wishes. One of them was, as I understand it, Terri's best friend in the years before her collapse.

It is unfortunate, to say the least, that so many people -- particularly media figures -- who have publicly doubted the result of the trial do not appear even to have been aware of these other witnesses' testimony, let alone viewed it live or even reviewed it in transcripts.

I'll repeat now what I've said before regarding my own views. I did not attend the trial, and I do not know whether the trial judge reached the decision that Terri herself would have made. I hope he did, but I'm not willing to second-guess the result either way. We have trials to make decisions, and whether the factfinder is a judge or jury, the result is reached based on the evidence presented there.

I'll offer one final thought in this area. I remain befuddled that while hundreds of documents and other items concerning Terri and Michael have been replicated time and again across the Internet, prompting people around the world to second-guess the trial's result, the transcripts of the trial itself are not among the items in circulation. How can that be? Surely the parties have copies of the trial transcript. Shouldn't it be the one thing everyone should want to see before attempting to cast judgment on the propriety of the trial's result?

Truths About Myths
The truth is, I'll finish the biggest myth post right after I go check out a luxury doggie resort. They're having an open house from 10-12. I have high hopes...

Friday, April 01, 2005
Schiavo Thoughts: Written Wishes
I'm back on the cyberspace wagon, if that's the right way to think of things. I haven't answered email in a few days but I've tried to monitor it coming in, and I'm a bit surprised that, even with Terri's death yesterday, there are still so many questions about this case and the law involved.

For as long as people keep asking questions, I'll do my best to provide some answers. And I still have a good deal of commentary to offer.

Let's go back to an issue I raised the other day but unfortunately could not follow up on until now. How binding is a living will? Or any other written form of someone's wishes? I've been disappointed to hear a number of public figures speak of living wills as being sacrosanct, and I have heard one high profile nighttime television host state numerous times that, unlike Terri's wishes, his wishes are in writing and there will never be an issue for him. Softly put, that's a reasonable expectation, but the host hammered the point repeatedly, saying his written statements were beyond assail.

That's not true, at least in Florida. It may not be easy to overcome a living will, but it can be done by clear and convincing proof that the person subsequently made contrary oral statements.

Let's go back to a few basic principles. Florida's constitution expressly includes a right of privacy, and the Florida Supreme Court held in In re Browning that the right of privacy includes the right to refuse medical care, particularly life-sustaining medical care. Including a feeding tube. That's every Florida citizen's right.

Because this right is considered fundamental, by virtue of its inclusion in the constitution, it is not very difficult to exercise. Indeed, In re Browning decided that, for Floridians, the right could be exercised by a written or oral statement. If the right could be exercised only in writing, then it would be a weaker right, requiring you to jump through procedural hoops to exercise it. By comparison, a decision-making right that allows you to make a decision by announcing it is a stronger right. At least, that's the logic.

Now, if you can exercise this right orally, can an oral statement negate a prior written wish? Yes. In fact, if you read the facts of the Browning case, you will see that Estelle Browning had executed a document in which she declared she did not wish to be maintained by a feeding tube under certain circumstances, and the state government intervened in her case and argued that her written wishes should not be followed because it was possible that, later, she orally made a decision to the contrary.

Think about that. She said no to a feeding tube. The state embraced the notion she could have revoked that wish through oral statements and argued that because she may have done that, her written wishes should not be followed.

That didn't work -- the court made it clear that it would not indulge presumptions someone did or did not say something. But had such oral statements been made, and been proved, they could have controlled the outcome.

So, yes, written wishes regarding end-of-life care can be orally revoked. At least in Florida. They just need to be proved by clear and convincing evidence.

For those who would rather look at a statute than dwell on constitutional principles, take a look at the Florida statute that governs this area. Section 765.104(1)(c) explains that an advance directive -- including a living will -- or the designation of a health care surrogate decisionmaker may be revoked "[b]y means of an oral expression of intent to amend or revoke." Now, keep in mind that the statutes enacted by the legislature cannot conflict with the rights provided in the state constitution, but it is certainly meaningful to see that the legislature has affirmatively recognized the signicance of oral declarations.

This post is getting a bit long, so let me wrap it up with some final thoughts.

First, for those who wonder why anyone should bother with a living will, here's the answer: a properly executed living will is, standing alone, clear and convincing evidence of a person's wishes. In Florida. Oral statements do not necessarily rise to that level, depending on the circumstances, and proving them involves the credibility of the witness.

Second, for those who wonder if this means a living will can be challenged if someone comes forward and asserts he or she heard the incapacitated person revoke the living will by oral statements, the answer is yes. It can. And if those involved cannot agree on the person's wishes, the result could well be a trial in court to resolve the dispute. Just like in Terri's case.

Third, for those who live in states other than Florida and are wondering if the law is the same in their states, I'm not qualified to say. Other states' constitutions may speak to these issues, and many states have statutes that apply here, too. I will note that it is possible courts will read the liberty interests protected by the federal constitution to include a right to refuse medical treatment that may be exercised through oral statements that can overcome previously written wishes. If that occurs, such a right would trump any state laws to the contrary.

One final comment. It seems obvious to me that living wills are an important but not complete solution for preparing for end-of-life situations. Perhaps equally important is that persons actually tell their wishes to family and friends, particularly in group situations. The more a person's wishes are understood by those close to the person, the more likely it is that those wishes will ultimately be known, and honored.

Abstract Return
That cert petition is in the final stage of review, as it's heading out the door in a few hours. After that, I'll be back here. The first thing I'll do is discuss the two issues I mentioned the other day -- the false security surrounding living wills and the myth that, in the end, rose to the top of the Schiavo saga.

Meanwhile, and again, thanks for stopping by.

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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