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Wednesday, July 20, 2005
Abstract Pause
Thanks for stopping by.

Work has me on the road, so I'm taking a temporary break.

In the meantime, consider that The Florida Bar has announced it will look into the circumstances surrounding the Aguilera settlement. Read about it here in today's St. Pete Times.

Monday, July 18, 2005
Appellate Reminder
Members of The Florida Bar's Appellate Practice Section should keep in mind that the section's monthly teleconference CLE's resume this month.

The next one will be tomorrow at 12:10. (They're the third Tuesday of every month except June and December, from 12:10 to 1 pm).

This month's CLE will be on engagement letters and will be presented by Barbara Eagan. Check the section's web page for details.

Playing Safe
Overlawyered.com, I've got a link for you.

This story from today's Sun-Sentinel takes a look at how Broward County's school playgrounds no longer offer swings, merry-go-rounds, or teeter-totters. Oh, and no running.

It's all in the name of safety. And something about a lawsuit here or there.

Perhaps the areas could just be called "grounds." There's not much play in them.

Supreme Investigation
Rumors that a timely settlement was prompted by a leak of how the Florida Supreme Court would rule in Aguilera v. Inservices, Inc. led the high court to investigate itself. This story from the St. Pete Times discusses the investigation and its conclusion that no leak occurred.

Inservices, you may recall, was a 4-3 decision in which the supreme court held workers' compensation insurers are not immune from some intentional tort claims. (Mere delays of payment or "simple bad faith" in handling claims remain immune from liability.) The case involved an intentional infliction of emotional distress claim based on factually detailed allegations of how a carrier supposedly set out to harm an injured worker. The dissenters argued vigorously that the case did not present the sort of jurisprudential conflict necessary to trigger the high court's jurisdiction and that, on the merits, the majority failed to follow the legislative scheme for resolving problems with workers' compensation insurance carriers.

The case arrived at the high court in early 2003. Oral arguments were held in November 2003. On June 8, 2005, the parties filed a joint motion to dismiss the case and a notice that they had settled their claims, but the court denied that motion and released its decision on June 16.

Rumors apparently spread that someone at the supreme court had leaked the result ahead of time, leading to what became a last-minute settlement. That's a mighty high accusation. Unfortunately -- or, rather, fortunately -- the story run by the Times does not present anyone as making that accusation. It seems "rumors" based simply on the timing of it all were met by an investigation that found no wrongdoing, and no one appears to be claiming knowledge of any impropriety.

Several folks have commented on the court's refusal to dismiss the case following the parties' settlement. I'll just point out a few facts that seem relevant. The case involved a conflict in Florida's case law and had been pending for over two years. Briefing was complete, oral arguments were held, and as we now know majority and dissenting opinions -- with substantial cross-references and interplay -- had been completed and were on the verge of being publicly released.

At some point, a decision is as much or more about the jurisprudence as it is about the parties.

Fifth District: Jury Selection
If you follow cases in which reversible error occurred before the jury was even empaneled, check out this decision from the Fifth District. Two prospective jurors stated they could follow the court's instructions and be fair and impartial, but, nonetheless, the appellate court concluded they should have been stricken for cause. Voir dire produced a reasonable doubt each could not be impartial.

In a footnote, the court reviewed the circumstances under which harmful error is shown and an objection preserved where trial counsel must expend a peremptory challenge on a juror who should have been stricken for cause.

Second District: Ineffective Assistance
In examining a defendant's claim that appointed trial counsel was ineffective for failing to present a certain witness's testimony, is it appropriate to resolve the prejudice prong of the inquiry against the defendant by relying on testimony from someone else who did not testify at trial? No, said the Second District in this case.

Fifth District: Discovering Insurers' Files and Privilege Logs
Those who litigate in the insurance area or who deal with privilege logs may find this case of interest.

A plaintiff sued a defendant for having caused a car accident, claiming personal injuries as well as economic damages (increased premiums) from the cancellation of his auto insurance. Both parties previously had the same insurer, and in the litigation the plaintiff noticed the deposition of and demanded broad document production from that insurer concerning both the plaintiff's and the defendant's policies. The defendant moved for a protective order, which the trial court denied.

The Fifth District granted a petition for writ of certiorari and quashed the trial court's order.

An unsigned majority opinion briefly concluded that, as to the insurer's documents relating to the plaintiff, nothing relevant could be gained from the deposition and that Florida law does not recognize a claim for increased insurance premiums caused by an accident. As to the insurer's documents relating to the plaintiff, they were protected work product.

In dissent, Judge Thompson challenged that the defendant's arguments were not preserved because, below, the defendant argued only that the requested discovery was not appropriate in what was not a bad faith case. The dissent also pointed out that the defendant had no interest in the insurer's materials relating to the plaintiff and that no privilege log had been provided in response to the production requests.

Judge Griffin authored a concurrence that addressed the dissent's contentions. Among her more noteworthy points was that the category-based nature of the plaintiff's document requests (as opposed to document-specific requests) called not for a privilege log listing the responsive documents but a category-based objection. She also defended the majority's decision to relieve the defendant of the improper discovery burdens created by seeking discovery from the insurer.

Friday, July 15, 2005
Appellate Jurisdiction, Part II
In talking about the decision discussed in the prior post, someone I know just had what seems to be a most sensible reaction. The appeal may be dismissed, but all may not be lost. Rule 9.130(f) prohibits trial courts from entering a final order in a case while a nonfinal order is being reviewed, so perhaps the trial court in that case never had jurisdiction to enter a final order -- the final order could be vacated as a nullity, a new final order entered, and an appeal timely taken from that order. Voilà?

Fourth District: Appellate Jurisdiction
This decision from Wednesday is an example of something every appellate lawyer fears. The case is already on my list of recent items that should be reviewed by those preparing to take the appellate certification exam. (For the full list, attend the appellate section's review course next winter.)

Back in January, a defendant in a garnishment proceeding appealed to the Fourth District what turned out to be a nonfinal order. The matter was then fully briefed, and at some point after the appealed order was rendered, the trial court entered a final judgment. The defendant did not appeal that judgment within 30 days of its rendition.

Perhaps you can see where this is headed. Earlier this week, the Fourth District determined that the appealed nonfinal order was not appealable and that the appealable final judgment was not appealed. So the court dismissed the case for lack of jurisdiction.

Some might might wonder whether rule 9.110(l) applies in these situations. That rule provides:

If a notice of appeal is filed before rendition of a final order, the appeal shall be subject to dismissal as premature. However, if a final order is rendered before dismissal of the premature appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order. Before dismissal, the court in its discretion may permit the lower tribunal to render a final order.
As the Fourth District's decision implicitly seems to demonstrate, courts define a premature appeal as an appeal from a judicial act that has not yet been reduced to a rendered order -- "rendered" meaning written, signed by the judge, and docketed by the clerk of court. By this interpretation of the rule, appeals from nonfinal orders that were not intended to be final judgments are not premature appeals under rule 9.110(l).

Thursday, July 14, 2005
Justice Ehrlich
Today's Times-Union has this update on the life and death of former Chief Justice Ray Ehrlich. As noted here yesterday, Justice Ehrlich passed away earlier this week. He was 87.

Second District: Judicial Reassignments and Sentencing
If you're a trial judge who has been reassigned out of a criminal division, this decision from the Second District tells you to get your pending sentencings completed. Convenient or not.

Third District: Disqualification of Counsel
The high burdens placed in the way of someone seeking to disqualify another's attorney are well illustrated by this case, which should be of interest to anyone who in the course of litigation attempts to obtain another party's attorney-client privileged documents.

The case involved an insurance dispute, and the plaintiff sought to discover the defendant's attorney-client privileged documents utilizing the crime-fraud exception to the privilege. The trial court agreed and entered an order compelling production. The Third District quashed that order as erroneous, but not before the plaintiff's counsel had reviewed the documents. The defendant then moved to disqualify opposing counsel for having done so. The trial court granted that motion, and yesterday the Third District quashed that decision, too.

The court ultimately concluded that a higher burden must be met to disqualify counsel for having viewed privileged materials where that observation was judicially authorized than where counsel comes into possession of privileged materials through an inadvertent disclosure.

In the inadvertent disclosure context, the standard is whether counsel has possibly gained an unfair tactical advantage. In the context of an order compelling disclosure, however, opposing counsel may be disqualified only if the disclosure caused actual harm to the party's case and the trial court cannot otherwise remedy that harm.

The decision included some strong language about the importance of not interfering with the relationship between a client and a chosen attorney.

The decision also included language about how this situation could be avoided if the trial judge issues a protective order to seal the privileged information while immediate appellate review of a disclosure order is sought.

Third District: Pari-Mutuels
Sporting fans may be interested in this brief decision from the Third District. The court affirmed an administrative decision to revoke a pari-mutuel's thoroughbred racing permit for having voluntarily decided not to run scheduled races for economic reasons.

The court explained: "The financial hardship causing Hialeah Racing’s inability to field enough horses to compete against other racetracks does not constitute just cause . . . " to fail to operate performances at the date and time specified on a license.

Third District: Ineffective Assistance
Assuming the error is meaningful in the context of a particular case, can appellate counsel provide ineffective assistance by failing to appreciate that a trial transcript incorrectly reflects a witness's examination took place in front of the jury, when in fact it did not?

Yes. In this case from the Third District, appellate counsel had also been trial counsel, and there were apparently statements in the disputed portion of the transcript that should have alerted counsel to the transcription error.

Third District: Presuit Requirements
Medical malpractice fans may wish to check out the divided decision in this case from the Third District.

The majority held that a plaintiff's presuit notice and affidavit did not satisfy the presuit requirements for bringing a medical malpractice claim against a nurse. The notice identified the nurse as a prospective defendant but the affidavit mentioned only a doctor whose conduct was also at issue. The majority held that these documents failed to satisfy the medical corroboration requirement.

Judge Cortiñas dissented. He argued that the notice and affidavit should be read together and that the plaintiff complied with the presuit requirements.

Wednesday, July 13, 2005
Justice Ehrlich Passes, Too
The Times-Union reports here that former Chief Justice Ray Ehrlich also passed away earlier this week. He served on the Florida Supreme Court from 1981 to 1991.

It seems Florida lost two great leaders on consecutive days.

Judge Shevin Passes
Bob Shevin, who accomplished the rare feat of serving in all three branches of state government, died earlier this week. He was 71.

Judge Shevin served in the state senate from 1964 to 1966, in the state house from 1966 to 1970, as the state's attorney general from 1971 to 1979, and as a judge on the Third District from 1996 to 2005.

You can read more on Judge Shevin's life and passing in today's St. Pete Times, Sarasota Herald-Tribune, Miami Herald, and the Sun-Sentinel.

Hey, Legislature!
The Fifth District would like to see the Jimmy Ryce Act (Florida's civil commitment for violent sexual offenders law) clarified with regard to whether the state may compel a defendant's deposition in such cases. There are provisions in the act that appear to limit the state's ability to conduct mental exams, but, as the court explained, those provisions are meaningless if the state can circumvent them through a traditional deposition under the rules of civil procedure.

You can read the decision here.

If you do, you might notice footnote 6, which contains this statement:

The "law" has been settled that these proceedings are "civil" in nature. See Kansas v. Hendrix, 521 U.S. 346, 361 (1997); Westerheide v. State, 831 So. 2d 93 (Fla. 2002); Hudson v. State, 825 So. 2d 460 (Fla. 1st DCA 2002).
The court doesn't sound convinced, does it?

Fifth District: Extending Contracts
If you're what I would call a contract purist, you may be intrigued by this decision. The Fifth District reversed a final judgment that, in addition to awarding a party damages for another's violation of a non-compete agreement, effectively extended the agreement's duration by two years through an injunction. The court affirmed the damages award but held that an injunction should not have been used to extend the non-compete agreement.

Here's the intriguing part. The court reached its conclusion on the injunctive aspect by considering, albeit briefly, whether equity made the extension necessary and proper. The court concluded equity did not.

Judge Peterson concurred in the result only.

Fifth District: Rule 1.442 and Settlement Proposals
If a settlement proposal is prematurely filed with the court, does the filing invalidate the proposal? The Second District has essentially said yes, but we now have certified conflict among the districts on this point, since the Fifth District reached the opposite conclusion in this case.

Fifth District: Sexual Harassment
Employment law fans will be interested in this decision, where the Fifth District reversed a sexual harassment judgment against an employer. Notwithstanding the jury's verdict, the court found the claim unsupported by competent evidence.

Sexual Offenders and Predators
If you're wondering whether Florida's sentencing scheme is constitutional in how it does not permit persons qualifying as a sexual offender or a sexual predator to challenge the notion they will likely repeat their offenses, you can read decisions rejecting substantive due process challenges along these lines for both recidivist categories.

The Eleventh Circuit rejected this argument as it applies to sexual offenders in this case, while the Fifth District adopted the Eleventh Circuit's rationale and applied it to sexual predators in this case.

For those following the litigation in the Florida Supreme Court over whether multipliers may be used to enhance fee awards under the insurance fee-shifting statute, you may be interested to know that, in this case, the Fifth District once again certified a question in this regard.

Apparently this issue comes up once in a while...

Fifth District: Probate
Probate fans have an interesting case to examine in this decision out of the Fifth District. The court held that, in an adversarial proceeding to contest a will, a standing challenge is not waived by not being pled as an affirmative defense. The court also examined the doctrine of dependent relative revocation and decided that whether it applies will turn on whether the parties challenging the will at issue can prove the will's revocation clause was not the product of undue influence and that it was not intended to be conditional on the will's validity.

Tuesday, July 12, 2005
Florida Supreme Court: Vicarious Liability and Sovereign Immunity
If you've been looking for a hornbook quality discussion of vicarious liability and comparative negligence, check out the Florida Supreme Court's decision in this case. The court held vicariously liable parties that stand in the shoes of an active tortfeasor may have their damages recovery reduced through comparative negligence principles.

The court also reached a significant holding regarding sovereign immunity.

Whereas sovereign immunity prevents state entities from being liable for breach of a contract unless the legislature specifically authorized them to enter that contract, the court held that sovereign immunity offers no such protection to municipalities. The court was not clear about whether this follows from the broad language of article VIII, section 2(b) of the Florida Constitution or the Municipal Home Rule Powers Act, but, either way, the result seems clear: municipalities can enter written contracts as they wish unless the law prohibits them from doing so.

Based on this rationale, the court upheld the validity of an indemnification agreement by which a muncipal agency agreed, without limits, to indemnify CSX for liability and attorney's fees incurred in connection with a municipal easement across CSX's railroad tracks.

If you represent municipalities, or if you contract with them, that's a mighty important holding.

Justice Cantero authored a concurrence that explored the historical basis for treating the state and its municipalities differently for purposes of sovereign immunity.

Monday, July 11, 2005
Florida Supreme Court: Spoliation
A Wal-mart customer claimed to have had her arm injured when, at a checkout employee's request, she placed a 40-pound bag of salt in the child-seat portion of her shopping cart. The cart collapsed. She filled out an incident report and told the store's manager where she left the cart in the parking lot. Two and a half years later, the customer sued Wal-mart. She claimed the store was negligent in how it maintained the cart prior to her use of it and in how it trained the cashier. She also claimed that Wal-mart should be liable for spoliating evidence because it had not kept the shopping cart or surveillance video of the incident.

In 2003, the Fourth District addressed this case and held that no independent claim for spoliation exists where a defendant in a case is alleged to have lost or destroyed something that may have been unfavorable evidence against that defendant. Spoliation in this first-party sense can be addressed by the trial court through sanctions or presumptions utilized at trial.

Last week, the Florida Supreme Court affirmed that ruling in this decision.

The Fourth District also held that, while no independent spoliation claim existed, Wal-mart's loss of the cart and tape could give rise to an adverse inference that the materials were unfavorable and, based on this evidence, the customer's negligent maintenance claim should have gone to a jury. In reviewing the case, the Florida Supreme Court declined to address this issue, though Justice Wells authored a concurrence lamenting that declination and encouraging the court to make clear what duties Florida citizens have to maintain materials that might later be used in lawsuits against them. He explained:

This is an exceedingly important issue which should be confronted by this Court. Businesses as well as individuals must have regular record and property disposition policies. Obviously, storage space, both in warehouses and in computers, have finite limits. Practically, what was Wal-Mart to do when it was notified by Martino in March 1997? Was Wal-Mart to take the cart out of service? Was Wal-Mart to store the cart? How many warehouses would it take to store all of the property involved for the four-year statute of limitations period when Wal-Mart receives a notice of a possible claim?
Justice Bell agreed.

Workers' Compensation
In this column, Martin Dyckman of the St. Pete Times supports the Florida Supreme Court's decision in Aguilera v. Inservices, Inc., which held, 4-3, that an injured worker's claims against a workers' compensation insurer alleged acts that would not be protected by the insurer's statutory immunity. Dyckman also pans the dissent in that case. In both instances, however, his comments are based on the workers' compensation system he'd like to see in place, not the statutes that have been duly enacted by the state legislature and which the case called for the justices to interpret.

Contrary to the column's implications, the justices disagreed over the proper interpretation of Florida's statutory scheme. Neither the majority nor the dissenters argued that the case should turn on the scheme they wish the legislature had adopted.

Florida Supreme Court: Real Propery Appraisals
Florida's long-standing "subtantial completion" statute holds that improvements to a parcel are not to be valued for a given year unless they were substantially completed by January 1 of that year. Was this statute invalidated in 1968, when Florida's constitution was amended to include provisions about when real property may be valued by different standards? No, the Florida Supreme Court held in this case. The court confirmed that the "substantial completion" statute implements the constitution's "just valuation" requirement for real property appraisals and is consistent with the constitutional valuation scheme.

The bottom line here is that, because of the "substantial completion" statute, Florida's property appraisers cannot include improvements in the value of real property unless they are substantially completed by January 1 of the valuation year.

Florida Supreme Court: Life Sentences
The Florida Supreme Court does not accept jurisdiction in many habeas corpus cases that do not involve the death penalty, so I found it interesting that the court chose to accept the two cases addressed in this decision.

The court apparently took these two cases to squelch what's become a common argument: that life sentences are "indefinite imprisonment" within the meaning of article I, section 17 of Florida's constitution. Rejecting this argument, the court explained:

The fact that the judicial system has no way of knowing how long the defendant will live and therefore cannot know how long the defendant will be incarcerated does not render a life sentence unconstitutionally indefinite. It is abundantly clear that the Legislature, by prescribing a sentence of life imprisonment, intends that the defendant remain in prison for the rest of his life. The term "life" is sufficiently definite so that it can be understood and applied.
(citations omitted).

Florida Supreme Court: Real Estate Commissions and Contractual Validity
If you're involved in real estate and seek commissions from sales to government entities, you'll be very interested in this decision from the Florida Supreme Court. The court reaffirmed that, under Florida law, fee contracts by which a broker seeks a commission based on a sale to a government purchaser are generally lawful unless they involve "favors or corrupt means."

The court acknowledged that a statute forbids the use of contingency fees for contracts involving architecture, engineering, landscape architecture, surveying, or mapping, but the sales contract involved in the case did not fit these categories and so was subject to the general rule.

An interesting point is contained in footnote 1 of the decision. The note explains that courts may sua sponte (on their own initiative) question whether a contract's terms are, on their face, legal. The high court explained that it did not fault the district court for raising a question about the validity of the contract at issue.

Florida Supreme Court: Lenient By Rule
You just don't see enough of the rule of lenity anymore. That rule carried the day in this case, where the Florida Supreme Court held that under Florida's statutory sentencing scheme, defendants may not be sentenced under multiple recidivist categories. In the particular case, the court held that a defendant could not be sentenced as both a habitual felony offender and a violent career criminal.

Friday, July 08, 2005
Friday Florida Law Trivia Answer
A number of folks thought this was a trick question because, under this statute, the appellate courts' terms begin the second Tuesday of January and then July. Since the second Tuesday in July 2005 is this coming Tuesday, we're still in the January 2005 term.

But that isn't why it was a trick question. It was a trick question because that answer only counts for the five district courts of appeal.

Under this statute, the Florida Supreme Court's January and July terms begin on the first day of those months that is not a Sunday or legal holiday. (Trivial aside: the supreme court's terms can thus begin on a Saturday.)

So, today, the Florida Supreme Court is in its July 2005 term, while the district courts of appeal are still in their January 2005 terms. I have no idea why.

For those who are truly technical about such things, the circuit courts sit in an appellate capacity from time to time, and they too have terms -- only their terms are literally all over the map. Check out chapter 26 for the specific statutes that set out the terms for each individual circuit.

Friday Florida Law Trivia!
Hey, the weekly trivia's back. This question is truly trivial:

You may know that the year for Florida's appellate courts is divided into two terms, a January term and a July term. Which term are the courts in now?

I'll post the answer (but I won't even try to explain it) around 4:45 pm EDT today.

Schiavo News: No Proof of Criminal Activity -- Case Closed
Today's St. Pete Times has a round-up of what may mark the conclusion of the Terri Schiavo saga. Or at least the part involving state officials.

Here you can find a reprint of an internal memo from State Attorney Bernie McCabe's office that extensively discusses, from a law enforcement perspective, why various theories of Terri's collapse are either inconsistent with known facts or pure speculation. This is the most thorough treatment of its kind that I have seen. Ultimately, the memo concludes that no proof of criminal activity exists.

No doubt this memo will spark some interesting discussions.

You can also read Bernie McCabe's recent letter to the Governor regarding the inquiry. The State Attorney agrees with his investigator's conclusions as expressed in the memo linked above and informs the Governor that discrepancies in Michael Schiavo's recollection about what time he discovered Terri collapsed on the floor "are not indicative of criminal activity and thus not material to any potential investigation."

Here you can read the Governor's letter in response. The Governor expresses his thanks for the State Attorney's work and explains that the state's inquiry will be closed.

Finally, the Times has a story summing it all up here.

Fourth District: Shorthand
If you find yourself considering whether to marry someone who was previously married to another person with your first name, no doubt you will think of several reasons you might say no. One of those reasons will not likely be that someday a bound volume of a state's appellate decisions will refer to you as Wife #2 or Husband #2.

Well, maybe that will occur to you if you've read this decision, where a decedent's wives were referred to as Wife #1 and Wife #3. Both were named Marilyn.

Third District: Outré!
Judge Schwartz's dissent makes clear how he finds a literal application of the South Florida Building Code to be plainly absurd in the context of this case.

His opinion also seems to mark the first time the term "poppy-cockish" has been used in a Florida appellate decision.

Fourth District: Fraudulent Inducement
In this decision, the Fourth District explained a significant distinction between fraudulent inducement claims seeking rescission and fraudulent inducement claims seeking damages. In the rescission context, the plaintiff may disavow the terms of the contract entirely, while in the damages context, the plaintiff is bound by terms in the contract that negate the plaintiff's reliance theory.

Second District: Standard of Care
Here is a case in which the Second District reversed a summary judgment on grounds that the applicable standard of care, and whether it was met, were questions of fact to be resolved at trial through expert testimony. The decision indicates that, in the first respect, this may have been a case of first impression in Florida.

Fourth District: Expert Testimony
Here, the Fourth District found no error in the exclusion of an expert's opinion that was arrived at only two weeks prior to trial.

Fourth District: Arbitration
Moving to dismiss a complaint for failure to state a cause of action was not grounds to hold the defendant had waived its right to arbitrate the dispute, the Fourth District held in this case. The court reversed the arbitration order at issue, though, on grounds an evidentiary hearing was required to address the plaintiff's claim the agreement was invalid.

Second District: Eminent Domain
If takings are your passion, then you'll probably be interested in this eminent domain decision from the Second District. The court examined whether a landowner's attorneys were entitled to compensation from the state for nonmonetary benefits they achieved in getting the Department of Transportation to design an intersection in a way that minimized the costs of future development for the adjoining land. The court said no.

Third District: Electric Utility Duties
If an electric utility undertakes repairs of a transformer but does not have a contract with equipment's owner to maintain the lights in the area, does the utility owe a duty to the public to maintain power to local traffic signals? No, said the Third District in this case. The utility can be sued for negligently performing repairs but not for simply discontinuing power to a traffic signal.

Fourth District: Rule 1.442
The Fourth District has again invalidated a proposal for settlement as ambiguous because it was conditioned on a release that was not limited to damages arising out of the underlying action. You can read the decision here.

Second District: Searching Probationers
In this case, the Second District rejected a defendant's efforts to suppress contraband recovered from him while a probation officer and law enforcement conducted a warrantless search of his residence. The defendant shared the residence with a probationer who was suspected of violating her probation.

A special concurrence by Judge Canady offered an interesting argument that the leading Florida cases on search of a probationer's residence have been overruled by federal Fourth Amendment jurisprudence, including a discussion on distinguishing holdings from dicta.

Third District: Whistle-Blower Claims
In this case, the Third District held that neither the Airline Deregulation Act nor the Whistleblower Protection Program, both federal law, preempt the Florida Whistleblower Act with respect to retaliatory termination claims.

Second District: Certiorari, Medical Records, Unsworn Statements
Appellate practitioners may wish to take note of this decision from the Second District. The court held that certiorari petitioners seeking to block discovery of private medical records could challenge, in the certiorari proceeding, whether the plaintiffs' complaint stated a cause of action.

The court ultimately rejected the challenge under the facts of the case but did so while expressly invoking the high burden placed on those seeking certiorari relief. The court noted that its decision did not resolve the matter and did not establish law of the case on the validity of the underlying cause of action. Nonetheless, the court did offer some relief regarding the disclosure of private medical records, requiring the trial court to conduct an in camera inspection to ensure that disclosed records were relevant to the matters at issue. There's another nugget hidden in this case that some may wish to note. The court explained that while the respondents' attorney offered unsworn statements at the hearing below (on which a trial court should not ordinarily rely), the petitioners' counsel did not object to those statements, and thus the petitioners could not complain about the trial courts' reliance on them.

Thursday, July 07, 2005
Decision Blast
Whoa, Nelly. Looking forward to its coming summer recess, the Florida Supreme Court released a plethora of decisions today, including the long-awaited Boca Burger decision and the Sunset Harbour decision. Great stuff. I'll get to discussing it as soon as I can.

Rush News
It looks like the saga involving law enforcement's access to Rush Limbaugh's medical records has finally come to a conclusion. The Palm Beach Post reports here that, after an in camera inspection, the trial judge has ruled which of the seized records should be returned to Rush and which may be examined by investigators.

For more on what happened in this case, check out this prior post, this one, and perhaps this one.

First District: Duty
It's not every day that an appellate court reverses a summary judgment on grounds that genuine issues of material fact exist regarding whether a legal duty ran from the defendant to the plaintiff. But it happened in this case from the First District involving Pensacola Beach's Bushwacker & Music Festival.

(It looks from that link like the festival's coming up again next month.)

First District: Finality
If an order reserves jurisdiction to entertain additional issues that the parties wish to present, can the order be a final appealable order? No, said the First District in this relocation case.

First District: Apprendi/Blakely
Those following how Apprendi v. New Jersey is being applied in Florida may wish to check out this decision from the First District. The court determined that prior juvenile dispositions fit within the prior conviction exception described in Apprendi.

First District: Tax
Tax decisions are rather rare, so tax fans will likely be interested in this one. The First District examined the proper application of Florida's tax exemption for research and development costs.

First District: Custody
Just a reminder here from the First District to trial judges: even in the face of what's clearly a substantial change in circumstances, primary residential responsibility for a child should not be changed without first conducting an evidentiary hearing regarding the child's best interests.

Wednesday, July 06, 2005
Fourth District: Disqualification
In this case, the Fourth District reminds us that motions to disqualify judges must be made in writing. The court also points out why a motion to disqualify should not be mislabeled a "motion to recuse."

Fifth District: Personal Representatives and Offers of Judgment
Reading this decision from the Fifth District brought to mind complaints I've heard over the years that the fee-shifting system we have in place to encourage settlements and discourage frivolous litigation fails in too many instances.

One oft-discussed instance is wrongful death litigation, where decisions on the plaintiff's side are made by someone who has no exposure to attorney's fees if a reasonable offer of judgment is refused.

You see, under Florida's offer of judgment scheme, acceptance of reasonable settlement offers is encouraged by penalizing the offeree with having to pay the offeror's attorney's fees if the offeror later prevails at trial. (Prevailing in this sense is determined by a mathematical formula based on the amount of the offer.) This system generally provides a strong incentive for parties to accept reasonable settlement offers.

But does the system work if the offeree has no money to pay a fee judgment? Well, perhaps a financially bare offeree does not wish to be tainted or troubled by an outstanding fee judgment, and in this sense even an uncollectible offeree generally has an incentive to accept reasonable settlement offers.

But what if the offeree is deceased and the person deciding whether to accept the offer is not even a party? That's essentially the situation in wrongful death cases, where the plaintiff is the decedent's estate and the estate is represented by its personal representative. The personal representative should decide whom to sue, what claims to bring, how much money to seek, and whether to settle the case when presented with a reasonable settlement offer. The personal representative is not, however, an individual party to the case.

So if a personal representative rejects a reasonable settlement offer, and the estate does not prevail at trial, a fee award can be entered against the estate but not against the person serving as the estate's representative. If the decedent left only a modest-sized estate, from which a fee award cannot be collected, then practically speaking there is no penalty to the estate or the personal representative for refusing to accept a reasonable settlement offer.

Getting back to the case I mentioned at the start of this post, the court held that it was fundamental error to enter an attorney's fees award against a personal representative individually based on the rejection of a reasonable settlement offer. The award could only be entered against the estate.

Fourth District: Privilege Logs
In this decision, the Fourth District clarified that the mere failure to file a timely privilege log does not automatically constitute a waiver of any privilege. The court allowed a waiver finding to stand, however, where a log was not only filed late but was found by the trial court to be "completely inadequate."

Fourth District: Class Action Appeals
Can an order dismissing the class action allegations of a complaint as legally insufficient be immediately appealed under Rule 9.130? No, said the Fourth District in this case.

Fifth District: Probate Litigation
Probate fans may wish to check out this decision from the Fifth District concerning who is an interested person and service on minors.

Fourth District: Lemon Law Appeals, Magnuson-Moss Act Claims
If a statutory scheme gives you the right to appeal an arbitration decision and have a trial de novo in the circuit court, have you invoked that right if you simply file a circuit court complaint that makes no mention of the arbitration or an appeal? Not according to the Fourth District's decision in this case, which involved a Lemon Law arbitration decision that was not appealed when the consumer filed a circuit court claim making no mention of the arbitration or an appeal.

The decision also contains a footnote that substantively explores the Lemon Law's scope as well as a ruling on splitting causes of action. The court held that the consumer could not pursue a Magnuson-Moss Warranty Act claim based on the same purported defects that were the subject of the unsuccessful arbitration.

Fifth District: Fellow Officer Rule
Anyone looking for a simple explanation of how the fellow officer rule works in the context of multiple-officer arrests might wish to check out this decision from the Fifth District.

Fourth District: The Trouble With Mary
Family law practitioners will likely be familiar with the dynamics at work in this case.

Among other things, the Fourth District's decision confirms that one cannot avoid the expense of having a hearing transcript prepared by submitting one's own version of events to the court, or by expecting a general master to supply a written record of a hearing to the trial court.

Tuesday, July 05, 2005
Ad Hoc Thoughts
Perhaps other than getting two briefs filed in two different appellate courts Friday afternoon, nothing has made me more glad recently than this story in The Florida Bar News.

The story explains how the Board of Governors has rethought a decision it made in April to recommend that attorneys' Internet sites be regulated as advertising under The Florida Bar's rules. Under the new decision, the BOG recommends no change to the current rules regarding Internet sites while a committee studies the issue. The current rules in Florida do not treat Internet sites as advertisements. In fact, the current rules expressly provide that Internet sites controlled by a lawyer and that contain information regarding the lawyer's services are considered information provided upon request. (Rule 4-7.6(b)(3), R. Reg. Fla. Bar.)

I will admit that when I first heard about the April recommendation, I was a bit concerned. I voiced that concern in certain circles, but I made no comments on it here. I had not seen any formal proposal, and I believed the matter could be addressed properly once a formal effort to amend the rules had been undertaken.

Well, it sounds as if the process is on hold at the moment. So I'll take this opportunity to offer a few thoughts to the powers that be. Just in case those powers happen to be around this corner of the Internet universe.

There is a saying in law that "death is different." It connotes the courts' utter unwillingness to tolerate missteps or inadequacies in capital cases, when a person's life is literally on the line and finality is irreversible. I mean no insult to the criminal justice system when I offer this paraphrase in the context of regulating the legal profession:

The Internet is different.

It is. You can try to analogize it to post mail, or telephone conversations, or facsimile transmissions, or speeches, or face-to-face communications, but none of them presents a truly workable analogy. The Internet offers an infinite variety of opportunities to act, and to interact.

Internet sites offer information in multitudes of forms, and lawyers' sites are no less diverse than anyone else's sites. Lawyers create an Internet presence to discuss not only the law but politics, religion, current events, sports -- even the weather. You name it, and there is a lawyer somewhere discussing, featuring, challenging, or just repeating it. Perhaps the site is a blog, which is just a web site that offers updates in reverse chronological order. Perhaps not.

Few would argue that every word publicly spoken by an attorney represents an effort to promote the attorney's practice. Marketing is everywhere, but every lawyer is not always marketing. Lawyers volunteer time with all sorts of organizations. They run for office. (Occasionally, they win.) They give speeches. They write articles and stories. They attend meetings. They speak out as concerned citizens.

Just like all of these things need not be marketing, or "advertising," a lawyer's web site is not necessarily marketing either. Sometimes speech is just speech.

Now, there are certainly many sites on the Internet where lawyers and law firms tout their legal wares. It may be quite fair to say that some of them are not materially different from an ad in the traditional phone directory. But there are many attorneys' sites that are not comparable to ads in any solicitation-like sense, even if they are sites related to legal concerns.

I encourage the bar leadership to be mindful of the many forms taken by attorneys' Internet sites. There is a significant constitutional dimension to the notion that individuals should be free to speak without regulation. With careful foresight, the time-honored and effective vigilence with which bar officials have protected the public from unsavory methods of soliciting legal work can be maintained without treading on personal freedoms.

The Gaggle Can Wait
I know I mentioned a number of posts earlier today, and I have several waiting in the virtual wings here, but there's just one I want to post today. Give me a minute...

I hope everyone enjoyed the holiday weekend. I'll be back later this morning with a number of posts.

Friday, July 01, 2005
Supreme Speech
If you're interested in reading the remarks delivered at last week's Florida bar meeting by U.S. Supreme Court Associate Justice Anthony Kennedy, you can check them out here.

They're well worth a few minutes of time.

Fifth District
The Judicial Nominating Commission for the Fifth District has nominated six persons for the coming vacancy on that court. The names submitted to the Governor are:

Angela Flowers (Attorney, Ocala)
Hon. Kerry Evander (Circuit Judge, Melbourne)
Hon. Brian Lambert (Circuit Judge, Ocala)
Hon. Charles Lawson (Circuit Judge, Orlando)
Hon. Belvin Perry, Jr. (Circuit Judge, Orlando)
Hon. Stan Strickland (Circuit Judge, Orlando)

Many thanks to the friend who forwarded me the list.

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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