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Saturday, October 29, 2005
Friday Florida Law Trivia Answer
Yesterday's question asked which of Florida's local federal judges -- from the Eleventh Circuit and the U.S. district courts -- previously served on Florida's appellate courts.

I'm sure someone out there could name them all, but no one sent me an email with all of the correct answers.

Let's see if I can do it.

On the Eleventh Circuit, there is only one judge who previously served on a Florida appellate court. Judge Rosemary Barkett served on the Fourth District and the Florida Supreme Court before being appointed to the federal bench.

In the U.S. District Court for the Northern District of Florida, there is one judge who previously served on a Florida appellate court. Judge Stephan Mickle served on the First District before being appointed to the federal bench.

Four judges from the Middle District previously served on Florida's appellate courts. Judge Richard Lazzara and Judge Virginia Covington served on the Second District, Senior Judge John Moore served on the Fourth District, and Judge John Antoon served on the Fifth District.

Finally, one judge from the Southern District served on a Florida appellate court. Judge Daniel Hurley served on the Fourth District.

Whew. I wonder if they can name that whole list...

(note: this post was edited to correct my own error...)

Friday, October 28, 2005
Friday Florida Law Trivia!
Here is this week's Friday Florida Law Trivia question:

Which judges on what I will call Florida's federal courts (the Eleventh Circuit and the district courts) previously served as judges on Florida's state appellate courts?

There are quite a few.

I'll post the answers tomorrow morning.

Eleventh Circuit: Appealing Remand Orders
When a case is remanded from federal court back to state court, appellate options for review of the remand order are sometimes nonexistent. (Remand orders involving class actions under the Class Action Fairness Act are now a giant exception to this notion.)

So when a remand order is reviewed, the case is usually worth a look.

This is such a case.

A defendant in a state case removed the action to federal court. The federal district court granted the plaintiff's motion to remand and sanctioned the removing party for "improper" removal. Such a sanction is reviewable by the circuit court, and the defendant appealed to the Eleventh Circuit on grounds the removal was proper and thus the sanction inappropriate.

The defendant won. The attorney's fees order was reversed because the removal was indeed proper. The court did not, however, reverse the remand order because that order was not on appeal.

Eleventh Circuit: Pleading Fraud
It is not often that the Eleventh Circuit relies on its prior unpublished opinions, but an unpublished opinion was among the authorities the court relied upon in this case involving the False Claims Act and the particular pleading requirements of rule 9(b).

The court affirmed a complaint's dismissal for failure to meeting the particularity requirements.

Florida Supreme Court: Sexual Predators
In this decision, a unanimous Florida Supreme Court avoided an interesting issue over whether due process is violated when the state designates someone a sexual predator based on offenses that did not qualify the defendant for sexual predator status when they were committed.

The court did so by deciding that, under the scheme in place since 1996, Florida's sentencing statutes do not permit such designations.

As an aside, I note that this case is an example of where the court accepts jurisdiction based on a certified question of great public importance but then reaches a decision that obviates the need to answer that question. Here, the district court certified a question concerning the due process issue, but the court's interpretation of the sentencing scheme eliminated any due process concerns.

Linking On
Thanks to those who offered me advice or even assistance to edit the html links to the First District's decisions using that court's new file structure. The ideas were good ones, but unfortunately they don't account for Blogger -- the tool I use to store and publish my posts. Blogger has some great positives, but it has a few negatives, too. It doesn't offer any sort of global search and replace for old posts.

Yes, I could edit the html code of each of the archived pages, but whenever I change Abstract Appeal's template html code I republish all of the archived months -- so the now-invalid old code Blogger has stored in my old posts would be reinserted. (Blogger's republishing feature allows the look of the old pages to stay current.)

So, as best I can tell, there's no good answer.

Back In Blog
Thanks to those who wondered where I've been much of this last week. No, it wasn't the storm. Sometimes the day job becomes the day, night, and anything else you have job.

It's a good thing I really enjoy it. And I do.

I've also enjoyed the emails I've received. If you sent one and I haven't responded yet, I will soon.

Monday, October 24, 2005
Hurricane Wilma
We're getting 40+ mile per hour winds here in St. Pete. Not too bad, but enough to keep people off the roads and disrupt normal life.

For a list of today's court closures, look here.

Stay safe.

Friday, October 21, 2005
Trivial Pause
Thanks for stopping by.

Fridays often involve a Florida law trivia question, but this week I'll take a sort of trivial break.

Florida Supreme Court: Revised Interpretation of Rule 1.420(e)
If you have ever been bogged down in litigation over whether record activity sufficiently moved a case toward resolution to avoid a dismissal for failure to prosecute, you need not worry about repeating the experience. Yesterday, the Florida Supreme Court released this decision, which recast the failure to prosecute analysis under Rule 1.420(e).

The court explained:
The subjective analysis that is currently being applied . . . has simply proven unworkable and has spurred an increase in non-merit-based litigation that has led us down a path we are no longer willing to follow. Too many times we have seen that reasonable persons have assessed and reached contrary conclusions as to whether particular filings or actions would hasten the proceedings to conclusion. The analysis has simply become too subjective.
The new interpretation of the rule is rather simple:
[I]f a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending; however, if a review of the face of the record reveals activity by "filings of pleadings, order of court, or otherwise," an action should not be dismissed.
That's it. No more inquiries about whether a particular filing was calculated to advance the case toward resolution.

Three justices dissented, at least insofar as the rule applies to filings that are neither pleadings nor orders, and encouraged the civil rules committee to consider amendments that would serve the public's interest in keeping cases moving in the system. Justice Bell noted that filing a "Notice of Vacation" is now sufficient to avoid a dismissal.

Not So Important After All?
In January 2004, the Fifth District released this decision, which certified the following to the Florida Supreme Court as a question of great public importance:
In June 2005, the Third District certified the same question in this decision.

Earlier this week, a divided court dismissed the appeal in the Fifth District's case, determining (4-3) that the court should decline to exercise jurisdiction. You can read the dismissal order here.

No word yet on the appeal in the Third District's case.

Florida Supreme Court: Preservation of Error
In 2003, the legislature amended section 90.104(1)(b) to eliminate the need to renew objections or offers of proof to preserve points for appeal when a trial court has made a definitive ruling on the record admitting or excluding evidence.

Since that amendment took effect, its validity has been the subject of some doubt. To the extent the provision creates a procedural rule of court, such is the province of the judiciary, not the legislature, under Florida's separation of powers principles.

Yesterday, the Florida Supreme Court ended the uncertainty surrounding this amendment by adopting the new provision to the extent it is procedural. You can read the court's decision here.

Wednesday, October 19, 2005
Parts Is Parts
Today's Palm Beach Post has this story on some Lynn University students who, as part of a media class, are auctioning their cheeks on this eBay page. Winning bidders get a week of face time.

Sounds legal. Strange, but legal.

Unlinked Again, Naturally...
Last year, the Florida Supreme Court changed its Internet domain from the flcourts.org address the court used to share with the state courts system to a new address, floridasupremecourt.org. The effect of that change was to invalidate any previously operable link to the supreme court's site, including links to opinions. I quickly updated this site's main page and some recent posts, but I did not try to go back and correct the innumerable (now inoperative) links to supreme court materials contained in all of the blog's past posts. That would take too much time.

Unfortunately, the problem has now repeated -- this time with the First District. The court has not changed domain names, but in the last couple weeks it has restructured the 1dca.org domain in a way that has relocated the court's opinions to a subdomain.

As a result, as best I can tell, all First District opinion links posted on Abstract Appeal prior to this month no longer work.

Such developments are part of the evolution of web sites, I acknowledge. But in a world where links matter, I wish there was a better way...

First District: IDEA
Fans of disability laws may be interested in this decision from the First District. The court reversed an administrative law judge's order determining that, under the Individuals With Disabilities Education Act, a school board had sufficiently evaluated a student's need for specialized services.

Tuesday, October 18, 2005
Appellate CLE Teleconference
Appellate Practice Section members will hopefully enjoy today's installment of the section's monthly teleconference CLE program. The topic will be the status of two constitutional amendments -- Amendment 3 and Amendment 7 -- approved by Florida voters in 2004.

The hosts will be Tracy Carlin, Chris Carlyle, and yours truly.

The program starts at 12:10. You can find the call-in information on the section's web site or by clicking here. Attendees will receive an hour of CLE credit.

Pat-Down Challenge
This weekend, the St. Pete Times ran this story on the ACLU's law suit to stop the pat-downs now being performed before Tampa Bay Buccaneers games at Raymond James Stadium.

Today, the Tampa Tribune has this story, which suggests Tampa may not want to fund the suit's defense.

Constitutional Cafeteria
On one hand, it is unfortunate that our state constitution is forced to serve as the battleground for disputes over matters that hardly rise to the level of fundamental governmental concerns.

On the other hand, a sense of humor should always be appreciated, and with that thought in mind, I point out the pending citizens' initiative that, if passed, would require legislators to take the FCAT exam annually until they achieve a 10th grade passing score.

The petition's title? "Leave No Legislator Behind."

Monday, October 17, 2005
Hey, Legislature! Post-Ring Procedures
The Florida courts continue to wend their way down or around the path lit when the U.S. Supreme Court decided Ring v. Arizona. Ring 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.

Earlier this year, 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.

Last week, Florida's high court released this new decision. The court held that requiring the state to disclose the aggravating factors it intends to rely upon at trial does not constitute a departure from the essential requirements of law. The court further held that no reciprocal obligation to disclose mitigating factors need be imposed on the defense and that the state is not limited to proving only disclosed aggravating factors -- at most, the defense would be entitled to a continuance to prepare for the new argument.

Even more interesting, the court decided that current Florida law does not permit trial courts in capital cases to require a majority of jurors to find a particular aggravating factor applicable. Instead, a majority need only agree that some aggravating factor applies.

On that second point, the court explained that Florida is the only state in the nation that permits a jury in a capital case -- by a mere majority vote -- to decide that aggravating factors exist and to recommend death. Calling Florida the "outlier state," the court urged the state legislature to consider whether a more demanding standard should be required to impose the death penalty.

Through multiple concurring opinions, a majority of the court's justices pointed toward the federal capital system -- which requires advance notice of aggravating factors and unanimity in a jury's decision to impose the death penalty -- as a model system for Florida to follow.

Schiavo Pages Updated
It's been a long while, but I have finally updated the 2005 Schiavo posts page. In case you missed any of them when they were new and found on this site's main page, all Terri-Schiavo related posts for this year are now found on the 2005 Schiavo posts page.

Friday, October 14, 2005
Friday Florida Law Trivia Answer
I know, this was too easy. Under article VI, section 4 of Florida's constitution, persons convicted of felony offenses lose the right to vote. No matter how heinous the charged offense, a mere arrest does not extinguish the right.

Here's a twist, though. Suppose someone casts an absentee ballot, and between mailing the ballot and election day the person is convicted of a felony. Should the vote count? What if the person dies between mailing the ballot and election day?

The Florida Supreme Court addressed these situations, albeit as hypothetical ones, in a 1936 case titled Peacock v. Latham. The court stated:
The Constitution (article 18, § 9) provides that the general election shall be held on the first Tuesday after the first Monday in November and not at any other time. No ballots have been cast nor will be cast by absentee voters until that date arrives. The law has merely provided for the accommodation of those who will not be present at their respective election precincts on that day that they may prepare a ballot which will be cast for them on that day, but, if a person preparing such a ballot and depositing it to be cast as the law directs should die before election day, the authority vested in the county judge to cast that ballot for such elector will cease to exist, and so also if, after preparing such a ballot to be cast in the general election, that proposed elector should be convicted of a felony, his right to suffrage will cease and his ballot cannot lawfully be cast.
The relevant constitutional provision is no longer article 18, section 9 -- it's article VI, section 5, but election day remains the same first Tuesday after the first Monday in November of even-numbered years. There have certainly been changes to the voting process, like early voting, but would they change the result described by the court?

I will not try to answer that question. I will suggest, though, that the next time you hear about absentee ballots making a difference in an election, see if anyone's paying attention to whether those who had the right to vote when they mailed their ballots may have lost that right by election day.

Then again, never mind. An election will never be that close...

Happy Friday.

Friday Florida Law Trivia!
It's time for the weekly Florida law trivia question.

Regardless of your political views on the country's situation, you probably appreciate the significance of the constitutional referendum that will take place later this week in Iraq. News reports covering every possible angle of the event have pointed out an interesting triviality. Apparently, Saddam Hussein has the right to vote in the referendum -- a right he will most likely not exercise, but one he has nonetheless.

Saddam's privilege inspired this week's Florida law question:

Can a person charged with a heinous crime in Florida vote if the election takes place between the person's arrest and conviction? (Assume the person is convicted.)

I'll post the answer and a couple interesting asides later today, hopefully around 4:45 pm EDT.

Questions, questions: Impact Rule
Although the Fifth District has yet to release its decisions for the week, I will go out on a limb and suggest that this decision from the Fourth District is the week's most interesting decision.

You may recall that the case has twice before made news headlines: when the Jupiter Christian School expelled a student for being a homosexual and when a circuit court dismissed the student's subsequent law suit. The student claimed that he had divulged his sexual orientation to the person serving as the school's chaplain and that the chaplain breached his confidentiality obligations by revealing the information to the school and, ultimately, others. The student's dismissed claims included a claim for negligent infliction of emotional distress.

The case is now at the Fourth District, where a divided court affirmed the dismissal.

Judge May wrote what the court published as its lead opinion. She determined that the chaplain qualified as a member of the clergy for purposes of Florida's clergy privilege but that Florida's "impact rule" required dismissal of the claim because the school's conduct did not physically impact the student.

Judge Stone concurred with respect to the impact rule but disagreed that the chaplain could legally qualify as a member of the clergy. The Bible-based school was not affiated with any church.

Judge Farmer dissented. He would have held that the impact rule has no application to a claim for negligent infliction of emotional distress. In his view, controlling authority from the state supreme court already explains that the rule has no application to claims such as the student's claim here.

Ultimately, the court decided to certify the following to the Florida Supreme Court as a question of great public importance:
Does the impact rule preclude a claim for negligent infliction of emotional distress arising out of the breach of confidential information provided to a clergyman?
At some point in the next week I will post some thoughts on the impact rule. It's a great topic.

Third District: Traffic Stops
Unless your car was built before the mid-1980's, it has three brake lights: a right and left tail light and a rear windshield center light. (Prior to 1984, the center light was not required.) If just one of those lights is out, can the police pull you over and ticket you?

The Third District considered that question in this case, which concerned the lawfulness of a traffic stop. The court held that an inoperable brake light constitutes an unlawful "unsafe condition" for which the police can ticket someone.

Judge Schwartz: Unwarranted Reversals
In this case, the Third District reversed a man's convictions for first-degree murder and aggravated child abuse. Controlling Florida law mandated the reversal because the trial court failed to conduct a required inquiry when the defense challenged the prosecution's decision to strike a Hispanic prospective juror.

Judge Schwartz filed an eloquent concurrence lamenting the law's inflexibility under the circumstances of the case:
I acknowledge, but regret, that we are forced by Melbourne v. State, 679 So. 2d 759 (Fla. 1996), and State v. Holiday, 682 So. 2d 1092 (Fla. 1996), to require that this distressing case be tried again, notwithstanding that the verdict is supported by evidence to a moral certainty that the defendant is guilty of a hideous crime, and was infected by no error which could have conceivably affected his substantial rights. In my opinion, these cases reduce the noble idea reflected in Neil and Batson that peremptory challenges, like everything else in our justice system, may not be employed to effect a discriminatory purpose into a formalistic rite in which any misstep from the intricate choreography prescribed by the cases requires reversal. And this is true even when, as here, it is beyond all doubt both that the challenges in question were not motivated by racial prejudice and that no hint of any such prejudice infected the jury which actually tried the appellant.

Although we are of course bound to the result, I cannot but express my dismay that this is the law.
(citations and footnotes ommitted).

Interestingly, Judge Shepherd concurred in the concurrence, making it an opinion by the panel. The Third District is officially dismayed.

Third District: Tipsy Coachman
The real Friday Florida Law Trivia question will be posted a little later this morning, but here's an alternative question for appellate folks:

Can an appellate court affirm a trial court's decision under the tipsy coachman rule if the alternate basis for the ruling was not apparent in the trial court's record?

No, said the Third District in this case.

Thursday, October 13, 2005
Second District: Admonishment II
For the second time in the last few weeks, the Second District has released an opinion affirming a criminal conviction but admonishing the prosecutor for improper conduct during closing arguments. In this case, the court again suggested that the prosecutor view continuing legal education tapes and that, if the improper conduct is repeated, sanctions will be in order.

The court also restated this striking quote from Judge Blue:
Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.
You can read last month's similar decision here.

Second District: Appellate Procedure
Appellate fans may be very interested in this decision released yesterday by the Second District.

A party appealed an adverse county court decision to the circuit court, and lost. The party then moved for rehearing in the circuit court and, having received no order on the motion as the 30th day after entry of the decision approached, filed a notice of appeal to the district court.

Now, a district court reviews the decision of a circuit court sitting in its appellate capacity by certiorari, not by appeal. So the district court ordered that the matter proceed as if on a petition for certiorari.

After the notice of appeal triggered the district court's jurisdiction, the circuit court granted the motion for rehearing. That led the appellant to move to dismiss the certiorari proceeding as moot, while the opponent argued that, under rule 9.020(h)(3), filing a notice of appeal abandons a pending motion for rehearing and, once the notice was filed, the circuit court lacked jurisdiction to grant the rehearing motion.

Who won? The appellant -- the case was dismissed as moot. The Second District treated the notice as a petition for writ of certiorari, not a notice of appeal, and held that filing such a petition does not deprive the lower court of jurisdiction to resolve a pending motion for rehearing. The Second District also noted its practice of ruling on the merits of a motion for rehearing even when a movant has already invoked the state supreme court's jurisdiction.

I am sure there is a potential appellate certification exam question in here somewhere...

Questions, questions
In this case, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:
Whether a workers' compensation insurance carrier that failed to seek its statutory lien until after the tort action concluded, despite having actual knowledge of the proceedings, is entitled to an "equitable lien"?
The district court said no.

Fourth District: Venue
Should a trial court dismiss a case brought in the wrong venue where the limitations period on the plaintiff's claim has expired? No, said the Fourth District in this decision. The case should have been transferred, and the defendant's motion should properly have been labeled a motion to abate or transfer, not a motion to dismiss brought in the form of a motion for summary judgment.

Second District: Section 57.105
For a party to be entitled to a fee award under the post-1999 version of section 57.105, must the opposing party's position be frivolous? In this case, the Second District used that word multiple times while discussing the difference between a claim that is ultimately found legally or factually deficient and a claim that entitles the opponent to a fee award.

Second District: Adoptions
This decision from the Second District covers a number of issues that may interest anyone involved in adoption litigation.

Having been denied leave to intervene in a child's dependency action, an adoption agency pursuing a private adoption of the child filed an original proceeding in the appellate court. The Second District treated the matter as a final appeal. The district court also held that the agency should have been given leave to intervene and that the circuit court should not have invalidated the birth mother's consent to adoption without notice to the agency and proof of fraud or duress.

The case includes some discussion of how circuit courts manage simultaneous private adoption and dependency proceedings.

Second District: Protected Disclosures
In this case, the Second District held that a deposition concerning information protected under chapter 39 should be conducted only under a protective order that will prevent inadvertent or intentional disclosure of the deponent's testimony.

Second District: Ambiguities
If you would like a refresher on the distinction between latent and patent ambiguities, check out this decision from the Second District.

Wednesday, October 12, 2005
Just Re-Do That Vote That, Ew, Didn't Do So Well...
Today's St. Pete Times has this story on renewed efforts to offer Florida voters a chance to repeal the slots amendment that they approved this past November.

The amendment authorized Miami-Dade County and Broward County each to hold a referendum on whether to permit slot machines at their respective existing pari-mutuel facilities (horse and dog tracks and jai-alai frontons). Earlier this year, Broward residents voted in favor of allowing slots at the county's fronton and three tracks.

Whether either vote had much meaning apparently remains to be seen...

Eleventh Circuit: Employment
Employment law fans may be interested in this decision from the Eleventh Circuit. The court held that, under the circumstances of the case, a plaintiff's knowledge that the EEOC had concluded its investigation of her claim triggered its limitations period under the ADEA.

First District: Interlocutory Orders
When you appeal from a final judgment, you can also challenge interlocutory (nonfinal) orders entered prior to the final judgment. But what if the final judgment is an order dismissing for failure to prosecute? Can you appeal not only the dismissal but prior interlocutory orders?

No, said the First District in this decision. Keep in mind that the court affirmed the dismissal order.

Tuesday, October 11, 2005
The Bench Left Behind
Today's Miami Herald has this interesting story on the legacy left by our governor's judicial appointments.

Justice Ehrlich, Remembered
By all accounts, yesterday's ceremony at the Florida Supreme Court honoring the late Ray Ehrlich was an outstanding event.

You can read about the ceremony in today's St. Pete Times and Times-Union.

Also, the court has posted a story here on the former chief justice's memorial, and you can watch the video of the event or read the transcript if you were unable to attend.

I highly commend the video or transcript. You can learn which former justice became proudly known as a stud (of sorts) because of Justice Ehrlich, how Justice Harding learned where to buy his bow ties, and what Justice Ehrlich had to say when a disbarred lawyer called Judge (and our former chief justice) Barkett a bimbo.

You will, of course, also learn about a great man who led an exceptional and inspirational life.

Monday, October 10, 2005
Remembering Justice Ehrlich
The Florida Supreme Court will hold a ceremony at 11 a.m. this morning to honor the late Ray Ehrlich, former chief justice of the state supreme court. Justice Ehrlich passed away in July. He was 87.

The court's program is available here (if it doesn't load correctly the first time, try reloading it).

Fifth District: Criminal Cert
In a criminal prosecution, can a defendant ever utilize a petition for writ of certiorari to challenge a nonfinal order? In this case, the Fifth District said no and that "[a] criminal accused can always attack an interlocutory order by an appeal from a judgment and sentence."

Sunday, October 09, 2005
Schiavo News: Judicial Speech
Tampa's chapter of the Federalist Society held its fall luncheon this past Thursday, and its guest speaker was Florida Supreme Court Justice Raoul Cantero. His topic, as you can see from this promotional piece, was "Is Judicial Activism A Concept In Need Of Restraint?: Lessons From The Schiavo Case."

The title is somewhat a play on concepts, with judicial activism and judicial restraint lying at opposite ends of one philosophical spectrum. After discussing both, Justice Cantero proceeded to criticize the critics who declared the court decisions in the Terri Schiavo case to be the work of activist judges. From Judge Greer's initial weighing of the evidence on Terri's condition and her wishes, to the appellate courts' review of the trial and post-trial proceedings, to the federal courts' application of traditional principles governing injunctive relief, Justice Cantero explained that the state and federal judiciary exercised restraint, not activism.

In a particularly interesting observation, Justice Cantero remarked that Judge Greer's decision regarding Terri's medical status was more empowering to doctors than to the judiciary. No doubt that is true: judges and juries charged with making factual determinations do not set out on an independent quest for the truth; rather, they passively observe the evidence brought to them and then favor the side that presented its case with more credibility and persuasion.

Justice Cantero also observed that, to whatever extent persons criticize the legal principles applied in the Schiavo case, their comments are best summed as a critique of Florida's statutory scheme for handling cases like Terri's. The route to altering that scheme lies not through the judiciary (or at least not a restrained judiciary) but through the legislature.

Justice Cantero's speech was well delivered and well received. He avoided making judgments about the Schiavo case or even whether judicial activism is an inherently proper or improper approach to judicial decisionmaking. He focused narrowly on whether the term "judicial activism" can be saved from the fate of mere epithet and how, if it can, it has no application to the events in Terri's case.

An interesting post-script to the speech came during the question-and-answer session that followed. An attorney for Terri's family who said she heard Terri try to say "I want to live" -- Barbara Weller, I believe -- commented that, in her view, the case suffered not from too much but too little activism. She wished the judiciary had intervened more to prevent the removal of Terri's feeding tube.

That speaks volumes.

Friday, October 07, 2005
Friday Florida Law Trivia Answer
The Florida Bar began certifying attorneys in the area of appellate practice in 1993.

Three of Florida's appellate judges are board certified in appellate practice:

Judge Winifred Sharp of the Fifth District

Judge Patricia Kelly of the Second District, and

Judge Linda Wells of the Third District

The list might also include Justice Raoul Cantero of the Florida Supreme Court. He became a board-certified appellate specialist in 1995 and maintained that status until 2002, when he joined the high court.

Judge Sharp was on the bench when she became board certified. Judges Kelly and Wells were board-certified appellate lawyers when they were appointed.

And for those of you wondering, it was Justice Cantero who spoke yesterday regarding the Schiavo saga. A post on his speech will be next, though later.

Happy Friday, and thanks for stopping by.

Friday Florida Law Trivia!
Some of you may be aware that a certain member of Florida's judiciary gave a speech yesterday in Tampa concerning the Terri Schiavo saga. I'll post about the speech later, but first I'll offer this week's trivia question, which was inspired by the speaker:

How many of Florida's appellate judges are board certified specialists in appellate practice?

I will post the answer around 4:45 EDT today.

Eleventh Circuit: Spoliation
This week, the Eleventh Circuit released this very interesting decision on spoliation.

The case concerned products liability. The short of the matter is that, after an accident in which a vehicle's airbag did not deploy, the plaintiff's insurer sold the vehicle at issue for salvage. Years later, the plaintiff brought suit against the manufacturer. The manufacturer sought to have the case dismissed based on spoliation, but, applying Georgia's spoliation law, the trial court allowed the spoliation issue to be decided by the jury.

The plaintiff won.

On appeal, the Eleventh Circuit first held that federal law controls spoliation sanctions in a diversity case. That's an important holding, though it was tempered by the court's willingness to allow Georgia law to inform the spoliation analysis, based on a lack of spoliation guidelines in the circuit's precedent.

The court then determined that, under the circumstances of the case, the only party with any fault for the vehicle's spoliation was the plaintiff, and the only proper remedy was dismissal of the plaintiff's suit.

Thursday, October 06, 2005
Fourth District: Rehearing Motion Denied
It is not every day that a Florida appellate court denies a motion for rehearing with a published comment that the motion is misleading, but yesterday was such a day. You can read the Fourth District's decision here.

Third District: Aw, Shoot
Self-defense issues aside, Florida law generally makes it a second degree felony to shoot at, within, or into any public or private building. Does that law apply when a person fires a gun within a building at someone outside the building?

The defendant in this case tried that argument with the Third District.

It didn't work.

Fourth District: Citation Alert
If you keep track of citations that may be useful, here's one that may be of use the next time you argue your adversary is trying to fit a square peg in a round hole. The court affirmed a 57.105 award of fees against the appellant.

Fourth District: Voir Dire
Those following case law on jury selection will be interested in this decision from the Fourth District. The court explained that concealment by a juror during voir dire need not be purposeful.

Fourth District: Insurance Fees
If an insurer settles a first-party claim while the insured and insurer are litigating coverage, the insurer will be liable for the insured's fees in the declaratory judgment action.

But what if the insurer settles a third-party claim against the insured while a declaratory judgment action is pending? Under the circumstances of this case, the Fourth District held that the insured was not entitled to fees.

Third District: Venue
This decision from the Third District rejects the notion that an improper venue defense may be pled by simply denying the plaintiff's venue allegations.

Fourth District: Attorney's Fees
Just a reminder here from the Fourth District that an entitlement to fees generally cannot be raised in a case after entry of the final judgment.

Third District: Lessor Liability
If you rent or lease vehicles in Florida, you will be interested in this decision from the Third District. The court addressed the statutory limits of automobile lessors' liability for injuries caused by their lessees.

Wednesday, October 05, 2005
Bankruptcy Reform
Times are sure tougher for Florida's bankrupt. Much of the new federal bankruptcy legislation -- enacted to reduce the number of people who can abuse the system to avoid debts -- takes effect this month.

The most high-profile aspect of the new laws is already in effect: the elimination of Florida's limitless homestead exemption. Now, bankruptcy filers who purchased a Florida home within the last 1215 days (about 3 1/3 years) can exempt their homestead up to only $125,000. So millionaires who move to Florida, buy mansions, and then declare bankruptcy will not be keeping those homes.

Today's Sun-Sentinel has this good story covering the impact of the reform efforts.

Buffer Law Challenged
This story in today's Palm Beach Post discusses a lawsuit challenging a new West Palm Beach ordinance prohibiting protests and amplified noise near medical facilities.

Eleventh Circuit: Microsoft Trap
If you enjoy stories involving Microsoft and software piracy, you may be interested in the facts of this decision from the Eleventh Circuit.

Microsoft and a company Microsoft uses to replicate and distribute its software attempted to ensnare a company suspected of illegally selling unlicensed Microsoft software. They laid their trap by agreeing to sell software to the suspected pirate -- agreements they then broke, prompting the reseller to sue. And win.

The case contains an interesting discussion of Florida law regarding the recovery of future lost profits.

Tuesday, October 04, 2005
Fifth District: Equity
Appellate lawyers sometimes refer to an "equitable PCA."

If there is such a creature as an "equitable reversal," I would suggest that this decision from the Fifth District qualifies.

Fourth District: Interrogation
If a defendant caught carrying a good amount of drugs has invoked his right to silence, and an officer transporting the defendant and the drugs says to the defendant, "That's a lot of drugs you had," should the defendant's incriminating response be admissible?

In this case, the Fourth District reversed the defendant's conviction and held his response should not have been admitted at trial.

By the way, the defendant responded, "I have to make money and make a living."

Second District: Sexual Predator Relief
In this case, the en banc Second District reversed course from its precedent and decided that persons designated as sexual predators can challenge those decisions through the criminal post-conviction relief procedures available under rules 3.800 and 3.850. Previously, the court had required such challenges to be brought as civil matters.

The districts had previously been split on this relief mechanism issue. They remain split. The Second District just switched sides.

Fifth District: Imputed Income
If you practice family law, this imputed income decision from the Fifth District may interest you.

Fourth District: DNA
If you are a fan of the admissibility of DNA evidence, or if you enjoy dealing with numbers like 101 quintillion, you may wish to check out this decision from the Fourth District. The court remanded for an evidentiary hearing regarding the basis of a DNA expert's statistics testimony.

Fifth District: Appellate Procedure
There is nothing wrong with asking a trial court to reconsider an appealable nonfinal order. At the same time, the reconsidered order is generally not appealable, and if it comes more than 30 days after rendition of the original order, then its predecessor is no longer appealable either. This decision from the Fifth District well illustrates these points.

Fifth District: Drug Sniffing Dogs
To establish probable cause for a search based on the alert of a drug detection dog, must the state demonstrate the dog's track record? The districts are currently split on this issue. In this case, the Fifth District aligned itself with case law holding that the state need not establish such a predicate.

Second District: Health Care Providers
Those interested in health care provider litigation may wish to check out this decision from the Second District. The court examined when a corporate health care provider's attorneys may speak to its employees and agents to discuss a pending lawsuit.

Second District: Presuit Notice
A corroborating affidavit used to establish that a presuit investigation revealed a health care provider's medical negligence is probably insufficient if it does not identify that specific health care provider by name. This decision from the Second District explains more.

Fifth District: Forcible Felony Instruction
If you are interested in criminal law, and in particular when giving the forcible felony portion of the standard self-defense instruction can constitute fundamental error, then you may wish to check out this decision from the Fifth District.

Fourth District: Additur
If you are following the conflicting case law on when a party given an additur can be adversely affected by that order, check out this recent decision from the Fourth District.

Monday, October 03, 2005
Questions, questions: Duty of Care For Passenger Who Directs
Here's a case everyone might have an opinion on.

A driver stopped in traffic wants to back up his sport utilty vehicle. He turns to look behind him but has difficulty seeing if the way is clear. A passenger in the rear seat also turns around and either gratutiously or upon being asked by the driver informs the driver that the way is clear.

Unfortunately, the way was not clear. A motorcycle was stopped behind the SUV. A passenger on the motorcycle was injured and sued the passenger in the SUV for negligence.

The questions presented to the First District were straightforward: did the SUV passenger owe the motorcycle rider and passenger a duty of care when he told the driver it was safe to back up, and was the driver's operation of the SUV an intervening cause? (The case was not about whether the motorcycle passenger could sue the SUV driver -- she could.)

As it turns out, this was a case of first impression in Florida, and the court took 17 pages to explain its conclusions that, yes, a passenger with a superior vantage point who unreasonably directs a driver into an accident owes the persons injured in the accident a duty of care and, no, the SUV driver's conduct was not an intervening cause that would elimate the passenger's responsibility.

The result can make for interesting discussion. Every day, passengers tell drivers whether they can go, or stop, or turn. I doubt many consider the responsibility that comes with making such apprisals.

The First District wondered about that, too. The court also wondered whether holding passengers liable in such cases fits within our insurance system, which generally spreads the costs of automobile accidents among drivers of vehicles, not passengers. Such concerns prompted the court to certify the following to the Florida Supreme Court as a question of great public importance:
It will be interesting to watch whether the SUV passenger pursues this case in the high court and if that court takes the case.

Second District: $2
Whether a $2 criminal justice education fee is mandatory or discretionary has sure caused a bit of work in the Second District. In this case, the entire court, sitting en banc, addressed the question, and the court's result conflicts with another district's decisions.

Keep in mind, the Florida Supreme Court is not required to resolve conflict issues. Its conflict jurisdiction is discretionary...

Saturday, October 01, 2005
Friday Florida Law Trivia Answer
The answer to yesterday's question is that the change in the law would have no effect, regardless of when an arrest takes place.

So, if you committed a crime yesterday because you used deadly force against an attacker when you had the opportunity and legal obligation to retreat, the fact that the law today is different does not change that you committed a crime yesterday. You can be prosecuted for that crime.

The notion that changes in the criminal statutes do not affect crimes already committed is embodied in our state constitution. Article X, section 9 provides:
Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.
I suppose you can view this provision as an aspect of the separation of powers. Once a crime is committed, local state attorneys (and in some instances the Attorney General) have the power to prosecute and the executive branch has the power to pardon. The legislature has neither power.

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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