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Tuesday, May 31, 2005
 
Privacy and Court Records
Jon Mills, chair of the Florida Supreme Court's Committee on Privacy and Court Records, has this column in today's St. Pete Times regarding the committee's recommendations. You can read the committee's draft report here, and while comments are technically due by June 3, the column states the committee will continue to accept comments through finalization of its report.

 
Florida Supreme Court: Death Penalty
The United States Supreme Court's decision in Ring v. Arizona held that sentencing judges may not impose the death penalty based on the presence of necessary aggravating factors where a jury has not found those factors present.

On Thursday, in this case, the Florida Supreme Court held that Ring does not invalidate Florida's system of permitting a trial judge to override a jury's recommendation that the defendant in a capital case receive life imprisonment, not death.

 
Florida Supreme Court: Custody
In this case, the Florida Supreme Court resolved a district conflict over whether changes from a rotating custody agreement should be governed by the factors of section 61.13(3) or the substantial change in circumstances test.

Unless the earlier judgment provided a different standard would be used, the correct standard is the substantial change in circumstances test. The high court clarified that the substantial change in circumstances test does not involve finding that existing circumstances present a detriment to the child.

 
Questions, questions: Juvenile Costs
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:

DOES A TRIAL JUDGE HAVE THE POWER AND AUTHORITY TO IMPOSE ON JUVENILES IN A JUVENILE DELINQUENCY PROCEEDING, THE MANDATORY SURCHARGES SET FORTH IN SECTIONS 938.08 AND 930.085?
The Fifth District answered the question in the affirmative, based on prior district precedent.

Interestingly, one judge on the panel authored a special concurrence that disagreed with (but recognized the binding nature of) the court's precedent, and another judge concurred in that special concurrence. I suppose that second vote elevates the special concurrence to a second opinion of the court that disagrees, in dicta, with the result reached in the court's primary opinion. Or something like that.

 
Fifth District: Attorney's Fees
In the classic fee-shifting context of this insurance case, the Fifth District reminds us that attorney's fees awards are not appropriate on appeal where the appeal concerns only the amount of, not entitlement to, the contested fees.

 
Fifth District: Administrative Appeals
Hey, admin fans. Can you argue on appeal that an agency erred in not giving you a formal hearing, even if you did not request one? Well, apparently yes. Footnote 3 of this decision from the Fifth District treats the issue as a matter of waiver that must be proved by the agency, not a matter of preservation.

 
Second District: Parental Rights
Those interested in parental rights may wish to check out this decision from the Second District. The court examined the rights of legal, not biological, fathers in the context of termination proceedings pending adoption. It's reassuring when the correct legal result is also the fairest one.



Saturday, May 28, 2005
 
Hit Records
Shortly after starting this web log, I began using Sitemeter to count visitors. Sitemeter is free, and it's very handy. The "visitors" it counts are persons who have not visited in the last 30 minutes -- so clicking numerous links or numerous pages on the site counts as only a single visit unless you're gone for more than 30 minutes between page views. I suppose that's handy for advertising purposes, and it keeps folks from hitting "refresh" and inflating a true hit counter.

Sitemeter tracks hits, too, but the counter does not display that number. I can see it when I check the blogs statistics, and lately I've watched the hit counter creep closer to -- who would believe? -- 1,000,000.

One million is an awful lot of hits. I know an extraordinary portion of that figure is from persons seeking information on the Schiavo case, but I also know -- and greatly appreciate -- that a number of folks from all walks of life have taken to visiting this site on a regular basis. I can't express my gratitude enough.

To share the approach of hit no. 1,000,000, I've added a hit counter display, courtesy of StatCounter. I've also moved both counters up from the bottom of the right column to near the top of that column.

Enjoy both counters, and thanks for visiting. It makes all this worth it.



Friday, May 27, 2005
 
Friday Florida Law Trivia Answer
The simple answer is no. Wearing a mask is, alone, not unlawful. However, that doesn't mean people wearing masks are not breaking the law.

You see, this statute prohibits persons over 16 from wearing masks on public ways, this statute prohibits wearing masks on public property, and this statute prohibits wearing masks on private property.

All of these statutes only apply, though, if the person also satisfies one of the conditions set forth in this statute (e.g., the person intends to intimidate, threaten, harass, or deprive another of legal rights or protection) and the person does not qualify as an exempted person under this statute (e.g., the person is wearing a traditional holiday costume, is wearing a mask for work purposes, or is in a theatrical performance, including the Gasparilla celebrations).

So, can you wear a Darth Vader mask to go see Revenge of the Sith? As long as you don't intend to intimidate anyone or deprive them of their rights, but then you wouldn't be very Darth Vader-like, would you?

 
Friday Florida Law Trivia!
Yesterday, I spotted this story about a West Virginia man arrested for wearing a Grinch mask as he walked along a city street. That led me to this week's Friday Florida Law Trivia question:

Is it unlawful in Florida to wear a mask in public?

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

 
Justice Dekle
The Tampa Tribune has this story on the recent death of former Florida Supreme Court Justice Hal Dekle. He was 87.

 
Budget Matters
The budget is in, and out, of the Governor's office. Today's St. Pete Times looks into the Governor's budget vetoes with an eye on Tampa Bay, while the Sun-Sentinel does the same from a South Florida perspective.

 
Fourth District: Double Jeopardy
Say someone is carrying an illegal drug in multiple packages. Can the defendant be convicted of multiple counts of possession? Not without violating double jeopardy principles, said the Fourth District in this case.

 
Fourth District: Complete Rulings Wanted
In this decision, the Fourth District had the following directive for trial courts presented with multiple post-trial motions:

[W]e exhort trial courts to rule on all post trial motions in their entirety and to address in full each part of every motion. This is necessary to avoid piecemeal review. While a trial court might be convinced that a JNOV is required on a particular claim, as in this case, the judge should nevertheless address any companion motion for a new trial--even one on the same claim. Addressing and deciding all aspects of these motions is necessary to facilitate plenary review on appeal.

 
Fourth District: Parental Rights
Parental rights can be terminated for various reasons, including a parent's failure to comply with a case plan. This case, though, shows some of the limits on state's ability to terminate on that basis and on the state's ability to terminate for other reasons. The Fourth District reversed a termination order.

 
Fourth District: Foreclosure, Subject Matter Jurisdiction
Real property fans may wish to check out this case, in which the Fourth District first examined the traditional rule that a superior lien holder cannot be compelled to be a party to a foreclosure suit by a junior lienholder. The decision concludes with a discussion of subject matter jurisdiction and how a party's failure to file a proper pleading can preclude a trial court from having subject matter jurisdiction over an issue.

 
Fourth District: Res Judicata
For an interesting look at res judicata and collateral estoppel, check out this decision from the Fourth District.



Thursday, May 26, 2005
 
Father Figures
Today's Sun-Sentinel has a very interesting story here about the case of Jerrod Miller.

Jerrod was 16 when he was shot and killed three months ago by Delray Beach police. The case has taken on high racial overtones. Jerrod's mother is deceased, but his father is not. Kenneth Miller has hired high-profile attorney Willie Gary to sue Delray Beach for Jerrod's wrongful death, but there's suddenly a problem. Another man has come forward and claimed to be Jerrod's biological father. Terry Glover. Just in time, right?

In case you're thinking, "there ought to be a law" -- there is a law that could apply here. It's this one, which defines who qualifies as a "survivor" for purposes of recovering money under Florida's Wrongful Death Act. A father whose child was born out of wedlock may not recover unless the father "has recognized a responsibility for the child's support." From the story, it is not clear whether Terry Glover meets this test. If he does, the city may have an argument that it is liable to neither Kenneth Miller (if he's not Jerrod's father) nor Terry Glover (if he never attempted to fulfill his responsibilities for the child's support).

This is one to watch.

 
Third District: The Old College Suit
Here is a case with an interesting story.

Miami-Dade Community College has a two-year medical assistant degree program. When the class entering in the Fall of 1999 originally applied, the total costs for the two-year program were estimated to be $5,032.50. In May 1999, the college notified the incoming students that the tuition would be increased but should be under $6,000 for the two-year program, and the college required the students to acknowledge in writing their understanding of the pending increase. In July 1999, the school notified the incoming students that the total cost for the program would be $18,543.10. Thirty-one students decided to attend the program, paid the tuition for both years, and graduated with medical assistant degrees in 2001. Oh, and in 2001, they all sued the school for fraud and breach of contract. (I'm betting they waited until their final grades were in.)

The Third District unanimously affirmed a summary judgment in the school's favor on the fraud claim, based on a lack of evidence. A majority also affirmed a summary judgment in the school's favor on the students' breach of contract and promissory estoppel theories, holding no definite promise of tuition had been made, and even if an agreement existed with an implied term of reasonable costs, there was no dispute that the $18,543 package was the most economical in the state.

Judge Shepard dissented on grounds the students had accepted a contract when they signed the acknowledgment of the pending increase. He asserted that issues of fact existed as to whether the students had agreed to costs between $5,000 and $6,000 or costs that could increase without limits, and as to whether the ultimate charges were reasonable.

 
Third District: Abatement
The general rule is pretty simple: if an action is pending in a court of competent jurisdiction, a subsequently filed action between the parties should be abated. But what if the first case is filed in, say, Italy, and the second case is filed in Florida? The rule applies, as the Third District held in this case.

 
Second District: The Standard of Review Has No Clothes
I'm not sure that fits here, but maybe.

Case law has long applied the abuse of discretion standard to review a ruling on a new trial motion and required a "greater showing" to reverse a decision granting the motion than to reverse a decision denying the motion. In this case, the Second District pointed out the lack of clarity surrounding what a "greater showing" means and that, where a new trial issue is based on an error of law rather than the weight or impact of evidence, the abuse of discretion standard is applied in a "restricted manner." The court noted that the restricted application looks a lot like de novo review.

As you might imagine, that standard of review discussion became a prelude to a reversal of an order granting a new trial. The trial court had granted a new trial based on the court's failure to instruct the jury on concurring causes. The appellate court reversed. The evidence in the case pointed to only one cause of injury, and the jury's role was not to decide among competing causes but to decide if the single causal event took place on the defendant's watch.

 
Third District: Paying For Competency Exams
In a criminal case involving an indigent, where an expert is appointed "for" a party that does not request an expert, must the party -- either the state attorney's office or the public defender's office -- pay for the expert, or is the expert an expense of the trial court?

In the consolidated cases resolved here, the Third District held that competency experts not requested by either party are neutral experts working for the court and are to be paid by the court system. The case contains an interesting separation of powers discussion.

 
Third District: Preemption
For an in-depth look at why a Florida statute that prohibits making false statements in connection with Medicaid is not preempted by federal law, check out this decision from the Third District.

 
Third District: Insured v. Insured Exclusion
Insurance fans with an interest in the common "insured v. insured" exclusion in directors and officers liability policies will want to check out this decision released yesterday by the Third District. That exclusion precludes coverage where an insured is sued by, on behalf of, or at the direction of another insured.

The case involved a bankruptcy trustee who brought a claim against a former officer and director of the company. The insurer denied coverage based on an insured v. insured exclusion in the company's directors and officers insurance policy. The policy defined the insureds as the company and its directors and officers. Here, the defendant was clearly an insured, and the issue was whether the trustee was an insured, too.

The district court held the exclusion inapplicable to the trustee's suit. But wait. Why? In the case, the trustee had asked the company to list him as an insured in the directors and officers policy, which the company did, and the only argument addressed by the district court was the insurer's argument the trustee qualified as an insured because of that listing. The district court rejected that argument, holding the trustee sued in his capacity as trustee, not as an officer or director.

That strikes me as odd, not for what it says but what it does not say. I have seen similar cases (mostly from other jurisdictions) where the trustee had not been listed as an insured. In those cases, the insurer argued that, by law, the trustee steps into the shoes of the company and sues only under that authority, and thus when the trustee sues a director, an insured is being sued by, on behalf of, or at the direction of, another insured. I don't know if that argument was not made here or whether it was made but not addressed. Hmmm.

 
Second District: Nursing Home Discovery, Lack of a Transcript, Work Product
This decision from the Second District presents three interesting discussions.

First, the court delved into the protections from discovery and evidentiary use given to quality-of-care monitoring done in nursing homes.

Second, the court determined that the lack of a transcript from a hearing on a motion to compel the production of evidence was not fatal to the petitioner's certiorari petition. It was undisputed that no evidence was offered at the hearing. (Before anyone goes running to use this holding the next time a transcript is unavailable, consider how this point relates to the next one.)

Third, the nonevidentiary nature of the hearing was enough to conclude the respondent had not met its burden to discover materials subject to the classic work product standards of need and undue hardship. Work product protection cannot be overcome based on mere argument by counsel.

 
By The Court?
There's an oops here. Hopefully the court spots it.



Wednesday, May 25, 2005
 
Slots In The Courts
The story is really pretty simple:

- in November 2004, Florida voters approved this constitutional amendment, which authorized Miami-Dade and Broward Counties to vote on whether they would allow slot machines at their pari-mutual facilities (dog racing, horse racing, and jai-alai)

- the amendment also included a directive for the legislature:

In the next regular Legislative session occurring after voter approval of this constitutional amendment, the Legislature shall adopt legislation implementing this section and having an effective date no later than July 1 of the year following voter approval of this amendment. Such legislation shall authorize agency rules for implementation, and may include provisions for the licensure and regulation of slot machines. The Legislature may tax slot machine revenues, and any such taxes must supplement public education funding statewide.
- in March, voters in Broward County approved the use of slots at parimutuel facilities

- earlier this month (May), the "next regular Legislative session occurring after voter approval" ended without legislation implementing the amendment

- July 1 approaches...

The question seems to be whether the legislation called for by the amendment is legislation to authorize and regulate slots or legislation merely to regulate. If the constitution authorizes slots but the legislature chooses not to regulate them, can the pari-mutuels go ahead and operate? Then again, if the amendment did not authorize slots, isn't implementing legislation required before slots may lawfully be used?

I suppose we will start getting answers to these questions and more. Yesterday, the pari-mutuels in Broward County filed a suit seeking a declaration that they have the right to operate slot machines. One day earlier, gambling opponents filed a suit seeking the opposite declaration. You can read about the legal battle in today's Sun-Sentinel and St. Pete Times.

The cases present an interesting venue question. The gambling opponents filed their suit in Leon County (Tallahassee), while the pari-mutuels filed suit in Broward County. Will both go forward at the same time, or will one be dismissed or abated? If anyone has access to the documents in these cases, I'd appreciate it if you could forward them.

 
Blogaround
More and more blogs continue to enter the Blogosphere, just as fewer and fewer people react strangely when they hear the term Blogosphere.

I've done another round of edits to the blogroll in the right column. Among the most notable additions are a new Florida blog on probate litigation, aptly titled Florida Probate Litigation, and the newest Florida blog I could spot, The Orange Grove.

Oh, and for my family up in Connecticut who've been looking for a blog covering Connecticut law, there's Connecticut Law Blog, a good one.

If anyone has any suggestions on other blogs to add, let me know.



Tuesday, May 24, 2005
 
Catchers
The AP today has this really interesting story about a Longwood company that identifies plaintiffs or insurance claimants who fake their claimed injuries.

 
More Schiavo News
Corporate Counsel has this piece spotlighting the role of hospitals' in-house counsel in end-of-care decisions and the impact of the Schiavo case.

 
Judge Pryor
Yesterday's compromise in the U.S. Senate looks like it will allow Judge William Pryor a confirmation vote on his appointment to the Eleventh Circuit. For more, check out this story from Law.com.

 
Schiavo News
Today's Palm Beach Post has this story on some of some email exchanged by government officials during the most recent chapters of the Schiavo saga.

 
Tax Break
About to purchase hurricane supplies? Wait! There's a tax holiday on the horizon, as today's Sun-Sentinel discusses in this story.

 
Al-Arian Stays For Trial
Judge Moody ruled yesterday that extensive media coverage of the Sami Al-Arian prosecution did not provide grounds to change the trial's Tampa venue. Read about it in this story in today's Tampa Tribune.

 
First District: Copying Charges for Prisoners
Imagine the buzz in the prison system right now. Yesterday, in this case, the First District invalidated the administrative rule under which the Department of Corrections charges prisoners for photocopying services on grounds the rule lacks legislative authorization. A statute permits DOC to collect monetary assessments, but that authorization does not permit DOC to make assessments, the court said. DOC has had a rule on photocopying charges since 1983.

The court did not rule on the appropriate relief, remanding the matter to the circuit court. That'll be interesting.

 
First District: NICA
Does an administrative law judge have the authority to determine if a person involved in a birth has immunity under the Florida Birth-Related Neurological Injury Compensation Act? No, said the First District in this decision involving a midwife.

 
First District: Procedural Bars
No doubt there are times when a prisoner's repetition of unsuccessful claims seems abusive, but then there are cases like this one from the First District that must give oft-rebuked prisoners hope to try again.



Monday, May 23, 2005
 
Liquor Lessons
I sure learn a lot from keeping this blog.

For instance, if you saw last Friday's trivia question and answer, you saw my musing about what might be just below the 153-proof cutoff for distilled spirits. I really didn't know, but Gerald Taylor of Wesley Chapel wrote in to suggest the saved spirits might be 151-proof rums. I surfed the 'Net for a few 151-proof products, and certain drinks I've had now make a whole lot more sense...

 
Buckle Bucks
The "Click It Or Ticket" campaign is now underway, and since the failure to wear a seat belt is not an offense for which Florida law enforcement can stop a vehicle, officers will be looking for other ways to pull over cars with unbuckled occupants. That should make the total ticket quite painful, no doubt.

Check out this story in today's Sun-Sentinel for more on the campaign, including a discussion of the (as yet unsigned) bill passed this session to permit officers to pull over unbuckled minors.

 
William Dedge
I've not previously posted about the plight of William Dedge, a man who spent 22 years in Florida prison system for a rape he didn't commit, and for whom the legislature did nothing this past session despite impassioned and well founded pleas from no less a source than Sandy D'Alemberte. The Sun-Sentinel has an update on D'Alemberte's litigation plans for Dedge here

 
Right Push Vetoed
In case you missed the reports from the end of last week, this past Thursday Governor Bush vetoed this bill to create the "Road Rage Reduction Act," which would have required drivers generally to drive in the right lane of multi-lane roads.

 
Fourth District: Flight Home
When you begin to read the facts of this decision, you might think it strange that the defendant fled the police after being pulled over and led them on a high speed vehicle chase to -- his driveway, where he was arrested.

Then you'll learn he knew when he was stopped that he was going to be arrested, and he was just trying to keep his car from getting impounded. I suppose that explains it.

 
Fourth District: Appellate Jurisdiction
Appellate specialists should know this one: can a county court certify a question of great public importance to a district court any time the county court's order would be appealable to the circuit court? No, as shown by this decision from the Fourth District.

 
Fourth District: Costs And Proposals For Settlement
Should costs be apportioned between joint tortfeasors in accordance with their percentages of fault for purposes of determining whether a proposal for settlement triggers a right to attorney's fees? No, said the Fourth District in this case.

 
Fourth District: Duty To Defend
The written difference between "at its sole option" and "as its sole option" is just a single letter, but in this case that distinction may have controlled whether the insurer's policy obligated the insurer to defend its insured.

 
Fourth District: Reviving Prior Wills
How often is there a reported case involving the probate doctrine of dependent relative revocation? Not often, but here is a case from the Fourth District that found the doctrine inapplicable. Under certain conditions, it allows a prior will to be revived when a more recent will that revoked the prior one is invalid.

 
Fourth District: Contempt Precision
This decision from the Fourth District demonstrates courts' reluctance to permit contempt orders in family law cases to be based on obligations that are not clearly spelled out in prior orders.



Friday, May 20, 2005
 
Friday Florida Law Trivia Answer
The answer is 153 proof, or 76.5% alcohol, as set forth in this statute.

Now what weighs in at 152 proof that someone wanted to keep legal? Hmmph.

Anyway, thanks for stopping by, and have a great weekend.

 
Friday Florida Law Trivia!
In honor of wine lovers' victory this week in the U.S. Supreme Court, today's Friday Florida Law Trivia has an alcoholic component. Literally.

In Florida, it's illegal to process, sell, or drink liquor with an alcohol content above a certain limit. What's the limit?

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

 
Fourth District: Unemployment Benefits
If you like unemployment compensation cases, you'll enjoy this one. The Fourth District reversed a denial of benefits in a case involving a mother who failed to appear at work for five days while she attended her daughter's wedding in Iraq. The employer had denied the mother's leave request, but the appellate court found no misconduct had occurred. (The appeals referee had reached the same decision.)

 
Fourth District: Offers of Judgment
Next in the recently formed but ever-growing line of Rule 1.442 cases is this decision from the Fourth District,which held that a proposal by a mother on behalf of her child was a proposal by a single person and not a joint proposal requiring apportionment.

 
Fourth District: Arbitration
Here is an interesting arbitration decision from the Fourth District. The plaintiff brought tort claims against a car dealership, claiming the dealership negligently allowed its employee to steal the plaintiff's identity information from the credit application she filled out when buying a car. The dealership moved to compel arbitration, saying the dispute fit within the broad "arising from, concerning or related to" language of the sale agreement's arbitration clause.

The trial court denied the motion, finding that the torts alleged were not sufficiently connected to the sale to trigger the arbitration requirement. The appellate court affirmed.

 
Fourth District: Intervening Causes
For an in-depth look at when an intervening cause issue is one for the jury, and not summary judgment, check out this auto-accident case from the Fourth District.

 
Fourth District: Reformation
Reformation cases are rather rare, so this one from the Fourth District would be noteworthy for that reason alone. But the decision also concludes with a pithy, insightful response to the appellant's argument the appellee failed to show, by clear and convincing evidence, that a mutual mistake occurred in drafting the parties' agreement:

In litigation, “the issue of mutual mistake arises only when alleged by one party and denied by the other. Agreement on the matter would eliminate it as an issue to be tried.”
The quote is taken from a 1982 decision from the same court.



Thursday, May 19, 2005
 
Eleventh Circuit: Personal Jurisdiction
Those not familiar with corporate structures might be surprised by the result in this case, where today the Eleventh Circuit held that the Middle District of Florida lacked personal jurisdiction over The Walt Disney Company.

 
Bzzzzz... Doc Stamps... Bzzzzz...
That buzz you hear today is the rare buzz of transactional lawyers clamoring to read a Florida Supreme Court opinion -- this one. It's a case on documentary stamp taxes for real property transfers, and it explains how doc stamps are not owed when a corporation transfers unencumbered property without consideration to a wholly owned subsidiary.

 
Trashy Idea
A 13-year-old wrote the Governor with an idea to put trash cans at the toll booths leading to the Sunshine Skyway bridge. The Governor thought it was a great idea, and two months later we have a trash can project underway at the Skyway bridge. Neat.

Ok, so that's not really a Florida law story, but it's close. Read about it here in The Herald.

 
It All Depends On What The Meaning...
Is it possible for a legislative body to appropriate funds it did not intend to appropriate? It's sure possible for executive branch officials to see things that way and politely not spend the money, as is happening right now at Florida State University. Check out this story in today's St. Pete Times.

 
Second District: Defending Against Corporal Punishment
At some point you've probably thought about this: if a parent is going to strike a child, is the child allowed to use force in self-defense? In some cases, yes, and this case was one of them.

In the case, a mother swung a board with protruding nails at her son. The son deflected the board back at the mother, injuring her. The state prosecuted the son for battery, and the trial court found him guilty (but withheld adjudication). On appeal, the son argued that his acts were incontestably self-defense, which is defined as the use of force to defend against another's use of unlawful force. The Second District examined whether the mother's actions constituted unlawful force. Agreeing they did, the appellate court held the son's actions necessarily qualified as self-defense and reversed the trial court's order.

The case is interesting not only for its treatment of what I'll call the "hitting back" issue but the underlying concern of when corporal punishment by a parent becomes unlawful abuse. And -- as a plus -- the decision is thankfully short.

 
Second District: Rev'd
I suppose a one-sentence opinion would be still shorter, but this decision from the Second District was about as concise as a reversal can be.

 
Second District: Class Certification
In this case, the Second District reversed a class certification because the class representative's claim was not typical of each class member's claim. The trial court had defined the class to include members whose claims presented a timing issue that did not apply to the representative's claim.



Wednesday, May 18, 2005
 
See Breach, Enter
Today's Sun-Sentinel has this interesting story about how Broward County officials are working on legislation to regulate newly voter-approved slots in that county.

Recall that the elected folks in Tallahassee did not comply with the state constitution's mandate that they adopt a law governing slots this past session.

 
DCF Verdict
Today's Palm Beach Post offers this story on a $35.1 million verdict returned yesterday against the Department of Children and Families.

 
Public Records
Here is an interesting story from yesterday's Palm Beach Post on reaction to the recently passed slate of new public records exemptions.



Tuesday, May 17, 2005
 
A Fine Time For Wine
What a day yesterday was for folks who wish to have wine direct-shipped to them from out of state. The U.S. Supreme Court held that New York and Michigan laws prohibiting persons from directly importing wine into their states violate the federal constitution's commerce clause where in-state shipments are permitted. That would sure seem to invalidate similar laws found across the country.

You can read the decision here.

 
Appellate Reminder
Attention Appellate Practice Section members: today's the monthly lunchtime telephonic CLE.

 
Florida Supreme Court: Multi-Jurisdictional Practice
Florida is taking part in a national shift toward limited multi-jurisdictional practice, as we see from this set of rules amendments announced last week by the Florida Supreme Court.



Monday, May 16, 2005
 
Blogging News
Yesterday's Daytona Beach News-Journal featured this interesting editorial on the rising influence of blogs. I was happily surprised to see Abstract Appeal mentioned in connection with the Schiavo saga as an example of blogs' positive contributions:

Abstract Appeal, a legal blog run by St. Petersburg attorney Matt Conigliaro, won national attention for providing near-instant analysis of the legal fight to disconnect Schiavo from feeding tubes. It was a perspective that was too often missing from news stories that focused on the emotional appeals of Schiavo's warring family members.
I'm very much appreciative of the kind mention. I also appreciate the reader who alerted me to it.

 
Florida Supreme Court: A Shorter Bridge Will Do
The Florida Supreme Court has decided that the "Practicing With Professionalism" course given to most new Florida lawyers should be reduced from a two-day course to a one-day course, with the number of Young Lawyers Division basic CLE course requirements for the first years of practice increased from two to three.

The idea behind this decision is to eliminate the substantive portions of the Practicing With Professionalism program (by the way, the program used to be called "Bridging The Gap"), allowing it to focus on generally applicable professionalism issues and allowing new attorneys to select the substantive areas of their chosing for in-depth CLE instruction.

 
Florida Supreme Court: Jimmy Ryce
In this decision from last Wednesday, the Third District held that the state has a right to appeal in Jimmy Ryce Act cases. On Thursday, the Florida Supreme Court approved that result in this appeal from the decision the Third District relied upon.

The supreme court reached that result in a case filed in 2001, and it would appear the case's second holding is what caused the decisional delay. The court split 5-2 on the question of whether a dismissal based on the state's failure to bring a Jimmy Ryce defendant to trial within the mandatory 30-day time frame following a probable cause determination is a dismissal with prejudice or not. In other words, if the state fails to try the case in the 30-day window, is the matter over, or can the state refile (assuming the statutory limitations period has not expired)? The majority held the dismissal is without prejudice. The state can refile.

 
Jury Instructions
For a comment on the state of jury instructions today, including appellate courts' role in the journey thus far and the limits on those courts' ability to reverse where instructions are not "user friendly," check out Judge Gross's special concurrence in this case.

 
Fourth District: Limitation of Power
As this case shows, the district courts of appeal can find themselves unable to correct a prior error in the same case where the judicial term in which the earlier mandate issued has expired. Judge May's concurrence points out that the state supreme court has turned to "all writs" jurisdiction to act in such a situation, but the district courts of appeal have not construed that power to give them comparable authority.

 
Fifth District: Firearms
If you're a firearm fan, or if you're a felon trying to figure out what qualifies as an antique firearm you may lawfully possess, or if you're just looking for an interesting story, check out the majority and dissenting opinions in this decision from the Fifth District. They tell the unfortunate tale of a man who tried but apparently failed in his effort to understand and comply with the law on firearms possession by felons. Sorta makes you wish there was a good faith exception here.

 
Fourth District: Voluntary Dismissals
Rule 1.420(a)(1)(B) requires a notice of voluntary dismissal to be signed by all parties to an action. In this case, the Fourth District rejected a literal interpretation of the rule that would require even parties who are no longer part of a case to participate in the execution of such a notice.

 
Fourth District: Foreign Judgments
What's the only limitation on recording a foreign judgment in Florida? If you said the judgment must not be expired under the law of the foreign forum, well, perhaps you've already read this decision from the Fourth District.

 
Questions, questions: Deadly Weapons
The robber in this case claimed he had a bomb. Witnesses saw him holding a device that looked like a battery tester and had a light and protruding wire. The jury determined he carried a deadly weapon, but was there sufficient evidence to support that finding? The Fourth District said yes but certified the following to the Florida Supreme Court as a question of great public importance:

WHETHER UNCERTAIN WITNESS DESCRIPTIONS, COUPLED WITH DEFENDANT'S CONDUCT AND INCRMINATING STATEMENTS INDICATING THAT THE DEVICE USED AS A THREAT WAS A BOMB, ARE SUFFICIENT TO PROVE THAT THE DEFENDANT CARRIED A "DEADLY" WEAPON IN THE COURSE OF COMMITTING A ROBBERY UNDER SECTION 812.13, FLORIDA STATUTES, WHERE THE DEVICE IS NEVER FOUND?
I wonder if there was any testimony, perhaps from an explosives expert, to show that the item witnesses saw could have been a deadly bomb.



Friday, May 13, 2005
 
Judge Pryor Nomination
Those following the continuing saga of Judge William Pryor's appointment to the Eleventh Circuit will be interested in this story available at Law.com. In short, the Senate Judiciary Committee yesterday approved Judge Pryor's nomination to the court, sending the issue to the full senate, where a possible filibuster and a possible filibuster-breaking rule change await.

You should recall that Judge Pryor received a recess appointment to the Eleventh Circuit last year. For more on that appointment and the unsuccessful challenges to its legality, check out this prior post, this one, and this one.

 
Also Certifiably Fantastic
I've now learned of three persons who passed this year's appellate certification exam and are newly certified by The Florida Bar as experts in appellate practice.

In this post on Wednesday, I mentioned Rebecca Mercier-Vargas and Celene Humphries. Today, I can add to that list Kathi Giddings of Akerman Senterfitt in Tallahassee.

Congrats to all.

 
Third District: Sidewalk Liability
If you have a public sidewalk between your property and the street, are you responsible for injuries to another if somehow the sidewalk becomes a dangerous condition? If I didn't cause the condition, I'm not sure I would have thought about the issue -- until I read this decision, which involves a City of Hialeah ordinance that essentially puts the burden on owners of property abutting a sidewalk to police the sidewalk's condition and notify the city of problems.

I suppose it's time to break out Municode to look up the ordinances in my city, St. Pete.

 
Third District: Rehearing Granted in Religious Engtanglement Agency Case
You may recall this post from last December, where I discussed in some detail a Third District case involving canvassing Jehovah's Witnesses, an automobile accident, and religious entanglement.

In the post, I explained my view that there was no single decision of the court. Judge Goderich voted to affirm a summary judgment in favor of the defendants based on religious entanglement grounds, Judge Wells disagreed that impermissible entanglement existed but voted to affirm on grounds that a key agency relationship between the defendants and the alleged tortfeasor was lacking, and Judge Green disagreed with both propositions and would have reversed the matter for trial.

On Wednesday, the court withdrew its earlier decision (the Internet version of the original is no longer available) and replaced it with this one. Without explanation (at least in the decision), the now-retired Judge Goderich is no longer on the panel. He has been replaced by Judge Ramirez, who agreed with Judge Wells's position. So the new opinion consists of an affirmance of a summary judgment against the religious organizations on agency principles and a dissent by Judge Green that agency was an issue for the jury.

It's still a very interesting case -- the agency issues are intriguing. But it's no longer a religious entanglement case. That subject is barely mentioned at all.

 
Third District: Preservation of Error
In this case, the Third District held that whether, on remand, a case should be reassigned to a new judge based on the trial judge's inappropriate comments was not an issue preserved for review. The appellant never sought recusal on that basis. (The judgment was reversed on an unrelated ground.)

 
Third District: Economic Loss
This decision from the Third District helps remind us that, following Indemnity Insurance v. American Aviation, Inc., "economic loss rule" arguments are distinct from arguments about duties in negligence.

 
Third District: State's Right To Appeal, Jimmy Ryce
In a civil case, the state has the same right to appeal as any other litigant, explained the Third District in this Jimmy Ryce Act case. The court also decided that the jury instructions in the case placed too high a burden on the state when they added the word "highly" to the term "likely" in the required finding that the defendant was "likely to engage in acts of sexual violence . . . ."

 
Third District: Uninsured Motorist Coverage
Insurance fans may be interested in this decision from the Third District. The district court ordered a new trial in an uninsured motorist case against State Farm. The court found error in the insureds' argument about the number of years they had paid premiums, their argument State Farm simply wasn't being a good neighbor by not paying benefits, and their injection of the issue of insurance coverage for future medical expenses.

 
Third District: Easements
Implied easements tend to continue when a property is sold, the Third District reminds us in this case.

 
Third District: Prevailing Parties
The parties' settlement agreement in this family law case included a prevailing party attorney's fees provision, but, on appeal, the Third District denied both parties' motions for fees. The court held that each party prevailed in part and lost in part. 'Twas a tie.

And just in case someone might think that result is unusual, the Third District on Wednesday also issued this decision affirming a trial judge's conclusion that no party prevailed when the parties settled their dispute.



Thursday, May 12, 2005
 
A Rising Clerk
When the Fifth District opened its doors in 1979, Frank Habershaw was its clerk.

Frank Habershaw is still its clerk, only he's retiring soon. As his replacement, the court has chosen...

Susan W. Wright

Susan has long headed up the Fifth District's Central Staff, serving as its Director.

She'll make an excellent clerk of court, and the Fifth District will remain in good hands. Congratulations.

 
Alimony Scuffle
Perhaps you've heard about the bill passed this past session involving alimony. The bill would allow courts to discontinue an alimony award where the recipient is in a supportive relationship with another and lives with that person.

Today's Palm Beach Post has this story on the bill and why some support or oppose it. The Governor has not yet acted on the bill, and folks are lobbying for their respective positions.

One of the bill's critics claims it would adversely affect older women who receive alimony but simply have roommates. Is that a valid criticism? I think the answer's pretty plain when you look at the bill's language. Check out the green, underlined words here.

 
Everglades Update
Today's Sarasota Herald-Tribune has this story on phosphorus cleanup efforts in the Everglades and the dismay of the federal judge overseeing the work.

 
Second District: Signal Lights & Seat Belts
If you drive a car, you know that it's unlawful not to signal when you intend to take a coming turn. You may not know that a 2003 court decision interpreted Florida law to permit an officer to stop a car for failing to signal only if another driver is affected by the failure. And you may not know that, yesterday, the Second District decided in this case that a police officer can be that other driver.

The same case also involved a second interesting point. The court held that a gun obtained from a passenger in a stopped car was unlawfully seized because the police had no lawful grounds to detain him. An officer had detained the man because he was not wearing his seat belt, but the officer admitted to observing the passenger unbuckled only after the stop. Because the officer did not observe the passenger unbuckled while the car was moving, the officer had no grounds to detain the passenger or cite him for failure to wear a safety belt.

 
Second District: Domestic Injunctions
There's nothing controversial or groundbreaking about this decision, which reversed the entry of a domestic injunction. But the case may be interesting to those who don't appreciate what must be established in order for a domestic injunction to be set in place. Note the Second District's observation about the temptation to use domestic injunctions as a sort of temporary "divorce" between unmarried couples with children.

 
Second District: When Death's Suggested
Rule 1.260 provides a 90-day time limit for substituting a proper party where a party's death is suggested on the record. We know that applies when a party dies, but does it apply when an estate's personal representative dies? In this decision, the Second District said no.

 
Second District: Attorney's Fees
Entitlement isn't enough. A contested fee award must be based on testimony from both the attorney earning the fees and an expert on the reasonableness of the award, as the Second District reminds us in this case.



Wednesday, May 11, 2005
 
Certifiably Fantastic
Congratulations are in order for those who recently passed the appellate certification exam and now join the ranks of attorneys board certified in appellate practice -- or, as the rules now require it to be said, the ranks of attorneys certified by The Florida Bar as appellate practice specialists. Gotta get The Florida Bar in there.

I haven't learned all of this year's results yet, but I have heard that Celene Humphries, of Swope, Rodante, P.A., in Tampa, and Rebecca Mercier-Vargas, of Jane Kreusler-Walsh, P.A., in West Palm Beach, both made it.

Congrats to you both! I knew you were certifiable.

 
Economic Loss... Over Lunch
Hopefully many of the folks who read this web log know that the Appellate Practice Section of The Florida Bar hosts monthly teleconference CLE's. They're held at 12:10 pm on the third Tuesday of each month except June (the month of the bar's annual meeting) and December (the month when no work gets done). Topics run the gamut from appellate procedure to important substantive issues. One hour of credit, usually advanced credit, is given and you attend by phone. Advance registration is not required -- just call in and listen. There are typically opportunities to ask questions at the end, if you like.

This month's call (next Tuesday, May 17) concerns a topic that's constantly old and new again: the economic loss doctrine. The host and presenter will be, um, me. I call the presentation, "Everything You Ever Wanted To Know About The Economic Loss Doctrine, In 50 Minutes Or Less."

I'll start with the basics and ulimately cover Florida's "economic loss rule" case law, old and new. You may recall that the Florida Supreme Court released its latest economic loss decision in December. That decision is available here.

So, if you're strange like me and enjoy "economic loss rule" stuff, or if you just need an hour's CLE credit, call in on Tuesday.

 
Second District: Judicial Neutrality
Trial judges must avoid acts that might be perceived as giving tips to either side in a case, perhaps most particularly to the state in a criminal case. Here, the Second District concluded that the trial judge crossed that line.

Criminal law fans may be interested in noting that the error involved advising the state to amend a particular count in an information, and while the appellate court reversed for a new trial on that count, the court chose not to address the propriety of the amendment itself. The court also rejected the notion that the error here was fundamental and thus affected a separate count.

 
Second District: Contracts 101
This case concerned arbitration but the Second District's principal holdings are applicable to contracts in general.

First, by definition, bilateral agreements don't usually fail for a lack of consideration -- each party's promise to do something in the future serves as consideration for the other's promise.

Second, claiming you signed an agreement by mistake is not going to get you very far unless you can show you were coerced into signing it or were affirmatively prevented from knowing the agreement's contents. Anything that amounts just to "I didn't read it" is not going to work.

 
Second District: Attorney's Fees, Part II
Rule 1.525 requires attorney's fees to be requested from a trial court by motion filed within 30 days of a judgment's entry. Does a judgment's reservation of jurisdiction to award fees extend the time for filing a fee motion? No, said the Second District in this case, certifying conflict on that point with two other districts.

What about new rule 12.525, which provides that rule 1.525 does not apply in family law cases? Does the new rule retroactively apply to a family law case where no timely motion was made? In the Second District's case, the new rule was promulgated by the state supreme court one day before the district court held rule 1.525 governed the case and precluded a fee award. On rehearing, the Second District determined that the new rule was not retroactive. The court also certified conflict with another district's decision that rule 1.525 did not apply to family law cases prior to the adoption of new rule 12.525.

And the fees go on...

 
Second District: Attorney's Fees, Part I
I know it's simple but it's worth repeating: request appellate attorney's fees in Florida only by motion, not within a brief, or the result will be what happened here. Rules are rules.



Tuesday, May 10, 2005
 
Passed and Present
Today's St. Pete Times has this story about a newly passed law that authorizes nursing home residents to rearrange the furniture in their rooms.

In the what-didn't-pass column, you might note that Florida voters amended Article X, section 19(b) last year to direct the legislature to pass legislation this session on the regulation of slot machines. That legislation failed to pass, leaving the slot situation a bit awkward.



Monday, May 09, 2005
 
Draft Privacy Report Out
The Florida Supreme Court's Committee on Privacy and Court Records released its draft report last week. The report, which is available here, examines how Florida's courts should handle the sensitive interplay between privacy concerns and access to court records.

I haven't had a chance yet to read it, but after I do I'll offer some thoughts here. The Committee will accept comments on the draft through June 3.

 
Schiavo News: Autopsy Report Still In Works
Today's St. Pete Times has this update on the medical examiner's progress with the Terri Schiavo autopsy report.

 
Fourth District: Parental Immunity
Attention parents and grandparents: if you let a 2-year-old drive one of those cute, tiny motorized cars, keep a watch out for potential accident victims.

Like the plaintiff in this case.

The Fourth District allowed the plaintiff's claim of a leg injury to go forward against the toddler driver's parents and grandparents. The trial court had improperly dismissed the complaint based on parental immunity.

 
Third District: Fun With Torts
In this case, a school bus driver got lost on the way to school and took several hours to arrive. A 4-year-old child on the bus then started having nightmares about buses, and the child's parents sued.

Does anyone spot a tort? The parents claimed false imprisonment and negligence. The trial court granted the school board a summary judgment on the false imprisonment claim, and a jury found for the parents and the child on the negligence claim. Among the claimed damages were the costs of finding alternative transportation for the child.

The Third District reversed. The court explained that a verdict should have been directed in the school board's favor because, absent a physical injury, the child had no negligence claim due to the impact rule. The court also affirmed the summary judgment on the false imprisonment claim. False imprisonment is an intentional tort, and the driver was simply lost.

 
Fourth District: Divorce Tales
A couple divorced in 1983. At the time, the wife was a stay-at-home mother and the husband was earning $338,000 per year. A court awarded her $5,000 per month in permanent alimony. Some twenty years later, the former wife was earning $150,000 per year as an attorney, and the former husband requested that the amount be reduced or the award eliminated altogether. The trial judge did neither, instead increasing the monthly payment at the former wife's request by $1,833 per month.

The Fourth District reversed. Also, Chief Judge Farmer authored an interesting concurrence on how, in his view, the standard-of-living-during-the-marriage factor used in calculating alimony has been overemphasized by the judiciary.

You can read the court's opinion, and the chief judge's concurrence, here.

 
Third District: Spoliation
This decision in an electrical fire case concludes that a verdict should have been directed in the defendant's favor because no evidence actually showed a breach of duty.

The truly interesting part of the opinion, though, lies in footnote 2, which concerns spoliation. The Third District expressed "serious misgivings" about the plaintiff's tactic of seeking sanction-like inferences from the jury based on the defendant's loss of documents, when the plaintiff never pursued the issue of sanctions with the trial court prior to trial. The appellate court explained:

We have serious misgivings about this tactic. Cases in which evidence has been destroyed, either inadvertently or intentionally, involve discovery violations and application of Florida Rule of Civil Procedure 1.380 for imposition of sanctions. Rule 1.380 is not self-executing, but contemplates the imposition of sanctions on motions to compel and for sanctions with attendant notice and opportunity to be heard. As Johnson's counsel pointed out to the trial court, there were no pending motions against Johnson seeking to compel or claiming spoliation when trial commenced.
(citation omitted).

 
Questions, Questions: HMO Suits
The Fourth District in this case permitted service providers to sue health maintenance organizations under a breach of contract theory for failure to comply with the prompt payment requirements of section 641.3155. The court viewed the providers as third-party beneficiaries who are not limited to seeking administrative relief.

The court also certified the following to the Florida Supreme Court as a question of great public importance:

ARE THE PROMPT PAY PROVISIONS OF THE HEALTH MAINTENANCE ORGANIZATION ACT ENFORCEABLE BY COURTS IN AN ACTION FOUNDED ON PRINCIPLES OF BREACH OF CONTRACT BROUGHT AGAINST A HMO BY A SERVICE PROVIDER?

 
Fourth District: Attorney's Fees
Can an attorney's fees award based on in-house counsel's work be limited to the attorney's salary? No, said the Fourth District in this case. The court also affirmed a fee award based on a fee-shifting provision in a contract that was rescinded based on fraudulent misrepresentations.

 
Fourth District: Insurance
Insurance fans may be interested in this case for the trivial reason that the Fourth District relied on Farinas v. Florida Farm Bureau to uphold a summary judgment in favor of an insurer.

 
Third District: Contempt
If you fail to pay a child support debt, can you be held in contempt based on evidence a parent or a fiancée could give you the money? The Third District affirmed such a contempt order here.



Saturday, May 07, 2005
 
Session Ends
But the fun in talking about it is just beginning...

 
Third District: Word Play
Odds are good that you didn't use "noscitur a sociis" in a sentence this week. But Judge Rothenberg did in this decision. In fact, the Third District relied on that doctrine to reach its decision.

 
Third District: Sentencing
This decision from the Third District involves a prisoner whose sentence was affirmed on direct appeal and then again in a post-conviction proceeding. Yet on the prisoner's most recent Rule 3.800 motion, which the trial court denied, the appellate court reversed and instructed the trial court to consider a claim that pre-trial time served had not properly been calculated.

Marvelously just.

 
Third District: Magnuson-Moss
How the federal Magnuson-Moss Warranty Act does or does not apply in the context of leased automobiles has lately caused confusion on a national level. That's now spread to the state level, too, as the Third District in this case just certified conflict with a decades-old First District decision on the same subject.

 
Third District: Attorney's Fees For Insureds
In this case, a county court awarded an insured attorney's fees under section 627.428 following the resolution of a PIP claim. The insurer appealed the fee award to the circuit court, but the appeal was dismissed when the insurer failed to file an initial brief. The circuit court then declined to award the insured fees on appeal. Was that proper?

The insured sought a writ of certiorari from the Third District. Writ granted.

 
Third District: Paying Discharged Attorneys
Where an attorney and client have a contingency fee agreement, and the client fires the attorney but later recovers an award with the help of new counsel, is the terminated attorney entitled to any part of the recovery? And if the new attorney has a contingency agreement is that amount to be determined prior to or after deducting for any fees paid to the former attorney? The Third District has the answers here.

 
Third District: Punitive Damages
This is among the more strange punitive damages decisions I've seen. The short decision reverses the denial of a motion to amend a complaint to add a punitives damages claim but states only that amendments to complaints should be liberally permitted. There's no mention of the heightened standards that specifically apply to punitive damages claims.

 
Third District: Unappealing Conflict
This case would seem to present one of the least "appealing" district court conflicts you might imagine.

On the issue of whether the validity of a stop challenged at an adversarial preliminary hearing in a forfeiture case is judged by a probable cause standard or a reasonable suspicion standard, the Third District held that the lower standard (reasonable suspicion) applied. The court noted that the Fourth District and Fifth District previously utilized the probable cause standard, but in listing a string of contrary authorities the Third District included still earlier decisions from those same courts applying the reasonable suspicion standard.

That's not much of a conflict, is it? Even supposing that it is, the case is still likely to go nowhere, since the Third District held that the city seeking forfeiture failed to satisfy even the reasonable suspicion standard. So the defendant has no reason to appeal. Also, the city isn't in the other districts and should be happy with the decision to utilize the lower standard, so the city has no reason to take the case higher, either.

 
Third District: Voir Dire
For an excellent example of how a criminal defense lawyer preserved error in the trial court's refusal to allow voir dire on the state's burden of proof, check out this decision from the Third District.

 
Back In Blog
That was a longer pause than I'd hoped, but I'm back. I'll put up a few posts today and a few more tomorrow regarding recent cases and events in Tallahassee.



Friday, May 06, 2005
 
Abstract Pause
I'm taking a brief hiatus this morning while getting some important work done. And I suppose that means the weekly trivia is taking the week off, unless Hunter comes out of nowhere and posts a question. (You never know with him....) I'll be back a little later with some posts on some interesting recent cases and maybe a few words about the legislative session.



Thursday, May 05, 2005
 
Abstract Press
I don't recall ever thinking I'd have my picture on the cover of anything, but this last week I've been on the cover of the Hillsborough/Pinellas edition of the Gulf Coast Business Review.

Gulf Coast Business Review Cover 4/29/05 (used by permission)

The Manatee/Sarasota edition featured Robert Lincoln, of the excellent Florida Land Use Law blog.

The story discussed some Florida legal blogs, including mine. What a compliment.
Also, many thanks to Robert for saying some wonderfully nice things about me and the Abstract Appeal blog. That's much appreciated.

For those who remember the song and are wondering, yes, I ordered five copies for my mother...

 
Judgeships, Session
As the legislative session winds up this week, those looking to follow the latest on the additional judgeships requested by the state supreme court may wish to check out this story in today's News-Press.

For an overview of what's not yet wrapped up in Tallahassee, check out this story in today's Tampa Tribune.

Also, Point of Law offers this post on the progress of tort reform heading into the session's final week.

 
A Fruit, Officially
The Sun-Sentinel explains in this story that the legislature has finally passed a law naming Florida's official fruit. No surprise in what it is.

 
Municipal WiFi: First In Florida
Dunedin looks to be the first municipality in Florida to offer wireless internet access to all of its residents and businesses. Not free, though. Check out this story in today's Tampa Tribune.

 
Second District: Sealed Suspensions
In this case, the Second District explained why a trial court lacked authority to seal the suspension of a driver's license.

 
Second District: A Reminder To Defense Attorneys
The plaintiff in this case was injured in an auto accident by the defendant's admitted negligence and visited the hospital as a result. The case went to trial on damages, and the jury answered "no" to the question, "Was the negligence on the part of [the defendant] a legal cause of damage to [the plaintiff]?" The result was a defense verdict, and the trial court granted the plaintiff a new trial because the verdict was against the manifest weight of the evidence.

On appeal, the Second District affirmed the new trial order and wrote to remind defense attorneys of the danger in telling jurors they can do whatever they want when damages are to some degree admitted. Here, defense counsel suggested that damages should be in the $17,000-18,000 range but also told the jury it could do whatever it wanted.

It appears from the opinion that the jury may have known that $10,000 in PIP coverage applied to the auto accident, and perhaps the jury improperly concluded that the accident was not a "legal cause" of damage in light of that coverage.

As an aside, I'll use this case to point out a pet peeve of mine. I distinguish between "injury," as in bodily harm, and "damage," as in monetary or property harm, and I distinguish both of those terms from "damages," as in the value of the bodily harm or property harm. In this case, the jury was asked only whether the defendant's actions caused the plaintiff damage, not whether they caused her injury, though bodily injuries were at issue and were perhaps the only harm at issue.

 
Second District: Substitute Opinions
My hat remains tipped to the Second District for accompanying substitute opinions with brief orders that point out what's been changed from the original decision, as happened yesterday in this case. Explanations help everyone.



Wednesday, May 04, 2005
 
My View: Accessing Judicial Records In High Profile Cases
Twice recently I made suggestions about increased public access to Florida court materials in very high profile cases. When the St. Pete Times covered my talk at the Capital Tiger Bay Club last week, the story included that suggestion. I'd like to take this opportunity to explain my thoughts in some detail.

At the outset, I emphasize that the Florida court system has done an incredible job of making materials available to the public. In the spirit of government in the sunshine, the Florida Supreme Court and the district courts of appeal make their final decisions freely available through the Internet. The supreme court has also created a "high profile cases" designation for cases that merit having all of their supreme court filings freely available on the Internet, and I know of at least one circuit court clerk -- Bob Inzer, Clerk of the Circuit Court in Leon County -- who has established a similar program for high profile trial court cases.

These are marvelous efforts by forward thinking persons and institutions that provide great resources to the public. The Florida courts have been national leaders in providing public access to court materials. In the end, all I am doing is suggesting a tweak to an already impressive system.

Part of my concern lies with the public's ability to use the currently available resources. Unfortunately, most of our citizens do not understand the structure of the court system. A case starts in one court, and then goes to another, and then back to the first, and then on to another. If you do not understand where the case has been, you will have a difficult time collecting information on it. Also, even if you know which courts have been involved in a case, locating that case's decisions in that court can be quite a challenge. Some courts post none of their decisions. Others post final decisions, but that is usually done in a chronological fashion, not by case. The process of identifying courts, then searching dockets to learn of decision dates, and then hunting down those decisions is, at best, cumbersome.

Another part of my concern lies with the information that is being made available. I am not addressing the issue of total Internet access for all court records -- that is a complicated concern currently being considered by the Florida Supreme Court. I am speaking of only the highest profile cases -- cases like Terri Schiavo's, where the public's interest is high enough, and the potential for scrutiny significant enough, that the independent judiciary's credibility as an institution is at stake. In such cases, public access to certain materials may be critical to assuring the public that an educated, informed, and thoroughly deliberative judiciary is processing the matter as the law requires. For such cases, final decisions of the appellate courts may well not be enough. Perhaps the public should also be able to see the documents that assert or defend the claims being brought, significant nonfinal orders by the trial court, publicly filed transcripts of important hearings or trials, briefs by the parties on appeal, and so on.

The Schiavo case serves as the best example I can find. From my efforts to provide resources for that case using my own web site, I learned how important access can be to the public. People wanted to read the trial court's decisions on Terri's wishes and her medical condition. They wanted to see the motions Terri's parents filed and the trial court's orders resolving those motions. They wanted access to the transcript where the three witnesses spoke of what Terri said. To the extent I could, I gathered those materials and presented them in one place on my own Internet site, and the positive feedback I received was rewarding, to say the least.

I understand that some persons will second guess nearly any decision, and certainly everyone will not be satisfied no matter how thorough a court explains why the law or the evidence gives rise to a certain result. But a great number of people who may not understand all of the legal or factual complexities a case presents nonetheless find comfort when they see that issues being discussed around the Internet or by the media have been raised with the courts and resolved after due consideration. In cases where public interest is very high, the judiciary should be able to provide at least that level of comfort.

With these things in mind, I have a simple suggestion: the Florida court system should consider creating a centralized Internet site where certain case materials from courts at any level will be available once a case generates a high level of mass public interest. Very few cases would meet such a standard, and someone would have to be given discretion to decide which ones do. Once a case is chosen, publicly available materials on the case from any Florida court could be selected, again with discretion, for easily accessed and well organized placement on this single Internet site. The people of Florida, and from elsewhere, could view these materials and see that the state judiciary as a whole has handled the matter with care, attention, and competence.

No one should expect to agree with or even understand every judicial decision, particularly where the law and facts involved are complex, and there is of course room for judgment in the business of judging. But people rightly expect those who serve as judicial officers to make their decisions based on knowledge of the law and careful deliberation of how it applies to a case's facts. Judicial independence is ultimately founded on such trust, and that independence will remain only so long as that trust continues.

The marvels of electronic communication have allowed criticism of the judiciary to spread widely and with incredible speed, with the merits of the impugnment being, in my view, inversely proportionate to the rate of dissemination. Ultimately, my suggestion is aimed at electronically empowering those who wish to know more about a high profile case to gain that knowledge from the most reliable source possible: the Florida judiciary.



Tuesday, May 03, 2005
 
It'll Never Happen Again
Realize I'm working off the assumption that Google is omniscient in this respect, but a Google search tells me that this post marks the first time someone's used the term Conigliaromania.

Man, that's too many vowels. And downright silly.

Thanks, Mark.

 
The Jessica Lunsford Act
We have a new law to help keep sexual offenders and sexual predators incarcerated longer and better supervised upon their release. You can read thorough coverage on the Jessica Lunsford-inspired law in today's St. Pete Times, Palm Beach Post, Tampa Tribune, and Sarasota Herald-Tribune.

 
Schiavo Trial Judge Honored
The Tampa Tribune reports here that the West Pasco Bar Association will be honoring Judge George Greer this week with its Special Justice Award.

 
Fourth District: Free At Last, Free At Last…
Well, maybe not quite, but the petitioner in this case surely felt like singing after the Fourth District issued its opinion in this unfortunate case.

The petitioner pled no contest in 1999 to two charges of burglary of a dwelling. Nothing in the record indicated that he entered an occupied dwelling. The petitioner was sentenced as a prison release reoffender, since, at the time, controlling case law from the Fourth District held that the PRR designation applied to burglaries regardless of whether the burgled dwelling was occupied. Subsequently, the Fourth District changed its position and held that the PRR designation could apply only where a person enters an occupied dwelling.

Armed with the new case, the petitioner then sought relief under Rule 3.850, but the trial court denied the motion. The trial court read police affidavits in the record to support the notion the dwelling was occupied. That was a misreading, but on appeal, the petitioner argued only that his trial counsel had been ineffective, which was not the case. So the Fourth District affirmed the denial.

A series of additional failures followed. The petitioner filed a Rule 3.800 motion, but the PRR issue he raised had already been ruled on and that ruling had been affirmed, so the 3.800 motion didn't work. Nor did the Rule 3.850 motion he then filed, or the Rule 3.800 motion that followed.

Finally, the petitioner filed a habeas corpus petition with the Fourth District, and finally that court considered the PRR sentencing issue on its merits. And the court granted relief. Finally.

John Mills recently circulated an email on this case to some appellate folks, including me. He complimented the Fourth District on doing the right thing and for being willing to show in its opinion how the system had let this petitioner down. John also mentioned that cracks like the one that nearly swallowed the petitioner here are not as infrequent as we all would wish.

 
Fifth District: Waiver of Privilege
If a person seeks to delay her deposition on grounds she is suffering from post-traumatic stress disorder stemming from a horrific traffic accident, and she submits letters from a mental health care provider substantiating that claim, has she waived the psychotherapist-patient privilege relating to communications regarding her condition?

The trial court in this case found a waiver, but the Fifth District disagreed and granted a certiorari petition to quash the trial court's disclosure order.

 
Fourth District: Assault
Let's say an officer pulls a car over. The seated driver disobeys a command to keep his hands in view and begins to reach behind his back for something. The officer opens the car door and discovers the driver had been reaching for a gun. The driver is charged with aggravated assault, but is that an assault? The officer was surely in fear, but did the driver's act of surreptitiously reaching for a gun communicate a threat?

Those are essentially the facts of this case. The Fourth District said no. The driver made no threat. The court ordered the driver's assault conviction vacated.

 
Fourth District: Preemption
Preemption issues come along every once in a while, and they almost always make for interesting cases. Take, for instance, this decision from the Fourth District. The case involved the Federal Aviation Act and whether its requirement that mechanic's lien notices for civil aircraft be filed with the Federal Aviation Administration preempts a Florida requirement that such notices be filed in the county where the services were performed.

And the winner was... no preemption.

 
Fourth District: Alimony
Can a successor judge presiding over a request for an alimony modification ask a predecessor judge to clarify the original intent behind an earlier alimony order, and can the predecessor judge then hold a hearing and enter an order?

In a word, no.



Monday, May 02, 2005
 
Hear Ye, Hear Ye, Hear Ye: A Supreme Retirement
Over the weekend, the Tallahassee Democrat ran this story highlighting the career of Wilson Barnes, the Florida Supreme Court's Marshal for the past 15 years. He's retiring this Thursday.

So, as I did back in November when the court advertised the search for Marshal Barnes's replacement, here's a just-click-it clip of his booming voice delivering the oyez that has long opened the high court's sessions:
HEAR YE, HEAR YE, HEAR YE. THE SUPREME COURT OF THE GREAT STATE OF FLORIDA IS NOW IN SESSION. ALL WHO HAVE CAUSE TO PLEA DRAW NEAR, GIVE ATTENTION, AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA, AND THIS HONORABLE COURT.

 
Bad Coffee?
Today's Palm Beach Post has this story on a coffee shop chain whose name, some say, should be illegal.

 
Minimum Wage
I see that the Tampa Tribune, Tallahassee Democrat, Orlando Sentinel, and St. Pete Times are among those discussing how the minimum wage in Florida increases to $6.15 today.

To me, the most interesting part of the story is not today's move but the successive inflation-based increases that will take effect every January 1. That's what Florida voters required when they approved this constitutional amendment in 2004.

 
Abstract News
I received a kind welcome Friday when I spoke at the Capital Tiger Bay Club regarding the Schiavo case. I was a bit surprised to see the talk merit mention in this story in the St. Pete Times.

The story notes my suggestion for greater use of the Internet to provide public access to court materials in high-profile cases. I'll elaborate on that suggestion later this week.

 
Fourth District: Due Process
Substantive concerns aside, due process generally requires two things: notice and an opportunity to be heard. But this decision from the Fourth District discusses an exception to the rule: notice and a hearing are not required for a judgment debtor prior to a writ of garnishment.





 
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