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Saturday, December 31, 2005
Twelve Days of Christmas, Appellate Style
On The Sixth Day Of Christmas, The Judges Gave To Me...

Six-Minute Rebuttals
Five Golden Rule Reversals
Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

A Little Late
Day 6 was a late day...

Friday, December 30, 2005
Twelve Days of Christmas, Appellate Style
On The Fifth Day Of Christmas, The Judges Gave To Me...

Five Golden Rule Reversals
Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

First District: Transcripts
Want of a transcript warranted a new trial in this case from the First District involving a request for an injunction against dating violence.

And in case you are curious, yes, you can get an injunction against dating violence. Check out subsections (1)(d) and (2)(b) of this statute.

Second District: Summary Judgment
This decision from the Second District reminds us that a trial court may not grant summary judgment on a ground not raised in the movant's summary judgment motion. Like the First District decision mentioned in the preceding post, the decision also points out the difficulties of obtaining summary judgment in a negligence case.

First District: Foreseeability
The next time you seek summary judgment in a negligence case because the injury was not foreseeable, remember the case of the man who stole gas from a gas station, drove away recklessly, was chased by acquaintances of the station's owner, was struck while in his vehicle by the chasing vehicle, and whose vehicle then hit a third car, resulting in injuries to its driver who then died from the pain medication she received for her injuries. The summary judgment the man received in the resulting wrongful death suit was reversed by the First District in this decision. Foreseeable.

Second District: Final Orders
Which of the following characteristics makes an order nonfinal and thus nonappealable (unless the order qualifies for an interlocutory appeal under rule 9.130): (1) the order disposes of claims but not compulsory counterclaims, (2) the order reserves jurisdiction to determine damages, or (3) the order states that a motion to dismiss is granted but does not declare that judgment is entered in the movant's favor?

If you selected all of the foregoing, you probably do not need to read this decision from the Second District.

Fourth District: Redemption
Transactional fans may wish to check out this short opinion from the Fourth District. The court held valid a mortagor's transfer of its right to redeem mortgaged property prior to a foreclosure sale and the transferee's last-minute payment of the amounts due.

First District: Rule Challenge Standing
Administrative fans may wish to check out this brief opinion from the First District. The court determined that a New York doctor denied a temporary license under rules and policies of the Florida Board of Medicine had standing to bring a rule challenge.

Second District: Law Of The Case
If an appellate court grants an unopposed motion for appellate attorney's fees based on a proposal for settlement, then when the case returns to the trial court, can the other party raise for the first time that the proposal failed to follow the apportionment requirements of rule 1.442? Does the appellate court's ruling govern the entire attorney's fees issue, so that the other party cannot raise the proposal's insufficiency even with respect to a motion for trial court attorney's fees? What about another party in the trial court case that was not involved in the fee motion in the earlier appeal -- can that party raise the proposal's insufficiency?

The Second District answered these questions no, yes, and yes in this case. Judge Stringer dissented with respect to the court's answer to the second question.

Bottom line: Do not underestimate the need to oppose an appellate fees motion on all possible grounds.

First District: Jimmy Ryce Conflict
Florida's Jimmy Ryce Act permits the state to confine those who present a threat of committing violent sexual offenses. Must a commitment petition under the act be filed while the person is in state custody?

The Second District said yes in this 2003 decision, but earlier this year, the Fifth District disagreed in this case, and yesterday in this decision the First District sided with the Fifth, certifying conflict with the Second.

Thursday, December 29, 2005
Twelve Days of Christmas, Appellate Style
On The Fourth Day Of Christmas, The Judges Gave To Me...

Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

In South Florida, there appear to be mixed reactions to the fact the area came in at number 6 on the American Tort Reform Association's "Judicial Hellholes 2005" report. You can read the whole report here.

By the way, ATRA uses "South Florida" to refer to the area covered by Palm Beach, Broward, and Dade Counties.

Fourth District: Judicial Notice
Section 90.201 sets out a series of items of which courts must take judicial notice. The list includes certain decisional, constitutional, and statutory law; Florida's statewide rules of court; and the rules of the U.S. Supreme Court and the federal courts of appeals.

Section 90.202 sets out a series of items of which courts may take judicial notice. The list includes special acts of the state legislature, records of any Florida court, rules of court from other states, ordinances promulgated by Florida's municipalities, rules of state agencies published in the Florida Administrative Code, and a catch-all: "[f]acts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned."

Section 90.203 states that a court shall take judicial notice of items from section 90.202 upon request when proper notice and a request are made and the other side has an opportunity to meet the request.

All that said, can a court take judicial notice of items listed in section 90.202 for the benefit of a party that does not follow the procedure outlined in section 90.203? Does the answer depend on which 90.202 item is at issue?

In this case, a party seeking summary judgment wanted the court to take judicial notice of facts demonstrated by exhibits to the complaint, but the party did not make a formal request and the issue of judicial notice was not brought to the opposing party's attention until the end of the summary judgment hearing. The trial court granted summary judgment, taking judicial notice, and the Fourth District reversed.

The case is also interesting for its facts. The plaintiff was The Scripps Research Institute, the California medical research company that made gigantic news in late 2003 when Governor Bush brokered a deal to bring the company to South Florida. The defendant is a company that registered the name "Scripps Research Institute, Inc." with Florida's department of state just weeks after the Governor's announcement. The California Scripps sued, claiming the company with the Florida registration could deceive would-be donors into giving it funds intended for the California company. The trial judge granted the plaintiff summary judgment after taking judicial notice of various items attached to the complaint, but the statutory procedure for taking such notice was not followed.

Who is this company that decided to grab the Scripps name? Today's Palm Beach Post has this story describing how the principals of the company have registered other company names that sound like companies we all know, but it looks like the story behind the story did not get much development before going to press for today's paper. There must be more there. If anyone spots a follow-up, let me know.

Fourth District: Stop, Grammar Time
In my experience, there are two principal criticisms you'll hear about lawyers: they're soulless, heartless moneygrubbers, and they're always picking at a word here or a letter there.

As for the first, there are many lawyers who are principled, upstanding persons who practice their profession with the intent of helping clients receive just treatment, whether in court or in business.

As for the second, well, that's just true, and of every one of us.

These thoughts were prompted by this inconspicuous decision from the Fourth District. A tenant had signed a written agreement with a landlord, agreeing to pay for "damages to the premises." Based on this language, the landlord demanded not only money for physical injuries to the property but rent the landlord lost when delays caused the next tenant to move in late. The landlord argued that lost rent constituted "damage to the property," and the trial court agreed.

The Fourth District reversed. Dusting off its grammar primer, the court explained:
This issue centers on the meaning of the term "damages to the premises." "To" is a preposition and "the premises" is a noun phrase that is the object of the preposition. As such, the prepositional phrase "to the premises" modifies the noun "damages" and defines the location of the damages. With this understanding, the question becomes whether lost rent is a damage to the premises, meaning that the location of the injury stemming from the lost rent is the premises. It seems that what is damaged by lost rent is not the premises, in the sense that the premises will not be rendered physically imperfect by the loss of rent, but rather the bank account of the corporation owning the premises.
So, no, the landlord did not recover the lost rent. Words matter.

Fourth District: Medicaid Liens and Estates
Those who deal with wrongful death claims may be interested in this case. A decedent's survivors argued that a Medicaid lien should be paid out of a wrongful death settlement's proceeds only in proportion to the "value" the survivors received on their portions of the overall claim. The trial court disagreed with the requested reduction, and the Fourth District affirmed.

Wednesday, December 28, 2005
Twelve Days of Christmas, Appellate Style
On The Third Day Of Christmas, The Judges Gave To Me...

Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

New Advertising Rules Proposed
The Florida Bar has proposed a series of amendments to the Rules Regulating The Florida Bar with respect to advertising and lawyers' web sites.

Yes, web sites.

The Florida Supreme Court has posted the Bar's petition and the accompanying materials here.

Stay tuned for more on this subject.

Web Sights
It's good to see that the Fourth District's web site is back from its holiday break. I was tempted for a few days there to say something about motions for extensions of time, but I didn't...

Tuesday, December 27, 2005
Twelve Days of Christmas, Appellate Style
On The Second Day Of Christmas, The Judges Gave To Me...

Two Conflicting Districts
And A 30-Day Extension On My Brief

First District: Minor Restitution
The merits of this case did not strike me as noteworthy, but the case's result could serve as a lesson on how parents are responsible for damage caused by their children. The youths in the case set fire to a middle school's band/choir room, and in the end the restitution award affirmed by the First District was just under $68,000.

Second District: Civil Contempt
Trial litigators may wish to note this decision, where the Second District affirmed the imposition of a $2500 per day civil contempt sanction for a party's failure to produce email and other documents sought in discovery. After 30 days of fines, and with a few thousand dollars added for attorney's fees, the sanction totalled nearly $80,000.

For what it's worth, I note that the fine was imposed in favor of the party that sought the discovery.

First District: 57.105 Fees
Just a reminder here from the First District that the 21-day safe harbor provided by section 57.105(4) does not apply to an award granted on the court's own motion.

Second District: Negligence Per Se
Okay, legal eagles, is the violation of a building code provision negligence per se or merely evidence of negligence? The Second District has the answer in footnote 1 of this decision.

First District: Sovereign Immunity
As this decision from the First District shows, it is one thing for a municipality to be able to impose a stormwater runoff fee on the state's Department of Transportation, but it is another thing entirely to collect such a fee in the absence of a written contract with the department.

First District: Fictitious Names
If a company does business in Florida under an unregistered fictitious name, are contracts entered by the company enforceable?

Yes, the First District explained in this case, which made the company doing business there under a fictitious name (and not the name's owner) liable on the contract at issue.

Nice win, Tracy.

First District: Medicaid and Married Couples' Assets
Those with a Social Security practice, and those who wonder in what sort of instances will a transfer of assets to a spouse be ineffective for purposes of eliminating assets when determining Medicaid eligibility, may wish to check out this decision from the First District. The court affirmed a decision deeming over $200 thousand in transferred assets to be the available property of the transferor spouse.

First District: Rule 3.800(b)
Rule 3.800(b) serves the much needed purpose of allowing sentencing errors discovered after an appeal is filed (but before the matter is briefed) to be preserved before, and corrected by, the trial court. That makes great sense in the context of a direct appeal, but does the rule's belated preservation mechanism apply where the trial court proceeding is one for postconviction relief? No, said the First District in this decision.

Monday, December 26, 2005
Twelve Days of Christmas, Appellate Style
On The First Day Of Christmas, The Judges Gave To Me...

A 30-Day Extension On My Brief

The Twelve Days Of Christmas, Appellate Style...
As I mentioned last week, the appellate folks in the St. Pete office of Carlton Fields -- Bob, Judge Blue, Joe, Annette, Chris, and I -- got together and compiled an appellate version of the Twelve Days of Christmas.

Debbie (my fiancée) and I thought of the idea. If it works, she gets all the credit. If it doesn't, well, you know.

So, for the next twelve days, I'll update the list with my last post of the morning. Merry, merry.

Fa La La Leak
Last week, the state supreme court determined that no evidence exists the result in Aguilera v. Inservices, Inc. was leaked to the parties ahead of the decision's release. You may recall that, this summer, a bit of a firestorm erupted over suspicion the defendant insurance company learned the result in advance, prompting a settlement just before the court announced its decision.

Other than the timing of the settlement, I do not recall ever hearing what prompted those suspicions.

You can read a brief story on this latest determination here, thanks to the Miami Herald.

For more on the controversy and an early inquiry into the situation, check out this previous post.

Third District: Arbitration
For the latest arbitration decision from Florida's courts, look here. The Third District held an arbitration agreement unconscionable and thus unenforceable.

Friday, December 23, 2005
Very Merry
I had an oral argument on Wednesday morning and, poof, a few holiday thoughts later it's Friday and I haven't blogged since Tuesday. There are some notable things to talk about involving Florida law, and I'll get to them, but right now there's just a holiday buzz in the air, and it's nice.

I want to say a sincere thanks to those who've stopped by here. I greatly appreciate it. Once in a while someone tells me they read this site, and I get emails from time to time, but by and large I don't know who most of the visitors are here. I am grateful, though -- especially this time of year. There is much for which I am very thankful.

For some holiday fun, I got together with the other appellate folks from my firm's St. Pete office -- Bob, Judge Blue, Joe, Annette, and Chris -- and we came up with a sort of appellate-themed Twelve Days of Christmas. It's a fun list, and I'll share it starting on Monday, the first day of Christmas. I'll be back with some traditional posts between now and then, but in the mean time, to everyone, merry everything.

Tuesday, December 20, 2005
Eleventh Circuit: Worst Win Ever?
I am not aware of any competition for worst appellate wins, but if there were such an event, this case should advance directly to the final round.

A plaintiff sued Judge Guido Calabresi of the Second Circuit Court of Appeals in the Southern District of Florida. Apparently, the plaintiff found it actionable that Judge Calabresi had decided to dismiss an earlier case.

The district court dismissed this new suit sua sponte based on judicial immunity, but the plaintiff appealed, and the Eleventh Circuit entered one of the more reluctant reversals you can imagine.

The appellate court acknowledged that judicial immunity is an affirmative defense that must be pled, and so the case should not have been dismissed on immunity grounds prior to that defense having been raised. The court also recognized that the plaintiff's case was destined for failure:
We note that this case is clearly subject to dismissal upon a plea of judicial immunity. It is unfortunate that the case law requires it be remanded. This remand will expend additional judicial and governmental resources because the Government has to reply and raise the defense. Therefore, because of this waste of resources, the district court may want to consider sanctions.
To say the least, it is not common that an appellant wins the reversal of a dismissal but is essentially told that pursuing his claim on remand should result in sanctions.

Fifth District: Arbitration
In 2005, arbitration has arguably been the hottest appellate topic in Florida. This most recent arbitration decision from the Fifth District exemplifies how arbitration agreements can cover torts related to the parties' contractual arrangements.

Eleventh Circuit: Arbitration
In this case, the Eleventh Circuit once again began an arbitration decision with these words:
This is another arbitration dispute in which the parties are litigating whether or not they should be litigating. The familiar scenario is that the parties agree in writing to arbitrate any disputes between them, but then one party files a lawsuit taking the position that the agreement to arbitrate is inapplicable, invalid, or unenforceable for one reason or another.
The case involved a 131-count, 246-page, 937-paragraph complaint.

The parties' arbitration agreement contained multiple limitations on the remedies an arbitrator could utilize and no severability clause. The district court denied a motion to compel arbitration, but the appellate court reversed. The agreement incorporated the Commercial Arbitration Rules of the American Arbitration Association, which provide an arbitrator with the power to make jurisdictional rulings. That power, the court held, makes the issues of the limitations' validity and the agreement's consequent overall enforceability ones for the arbitrator to decide.

Fifth District: Appeal After Plea
When can a criminal defendant plead guilty but reserve the right to appeal? Only when the defendant expressly reserves the right to challenge a prior dispositive order of the trial court. What makes an order dispositive? The Fifth District explains in this decision.

Fifth District: They Really Do Pay Attention
The formerly pro se defendant in this case submitted an altered document in an appendix. The Fifth District noticed.

Criminal Appeal
After reading -- well, skimming -- this decision involving eleven appellants who challenged their high-profile drug trafficking convictions, I kept thinking that law clerks are just not paid enough. (And never were...)

Fifth District: Criminal Dismissals
Has there ever been a criminal case in Florida that made use of the phrase "go hence without day" in the context of a dismissal? Perhaps not, until this case came along. The Fifth District found itself divided over whether the dismissal was with prejudice.

Fifth District: Annexation
Land use fans may be interested in this certiorari decision, where the Fifth District held that the City of Edgewater was not an affected party and therefore lacked standing to challenge an annexation by the City of Oak Hill. Edgewater provided water and wastewater services to some annexed parcels, but that was not sufficient to afford it standing.

It might also be noted that the lack of standing to litigate also gave rise to a lack of standing to collect attorney's fees.

Monday, December 19, 2005
Third District: Confidentiality Orders and The Sunshine In Litigation Act
I've been meaning to find a few moments to discuss this decision from the Third District. The court rejected Goodyear's arguments that tire data produced in litigation could be kept confidential after the litigation's completion.

The procedural history of the case is rather complex, and anyone interested in this area should read the whole decision carefully. In short, Goodyear successfully argued to the trial court that all of the records at issue should be deemed confidential, and the Third District later determined that to be error under the Sunshine In Litigation Act, which prohibits courts from entering orders that in effect conceal public hazard information from the public.

Most interesting, the Third District further held that by successfully seeking a blanket confidentiality order, Goodyear waived the argument it later attempted to assert -- that the trial court should conduct an in camera review of the documents at issue to determine whether they contained trade secrets.

Last, the appellate court rejected Goodyear's arguments that the Sunshine In Litigation Act unconstitutionally deprives Goodyear of its due process rights.

More E-(mail) Filing
Beginning January 1, 2006, you can add the Third District to the list of Florida appellate courts that require simultaneous submission of briefs and extraordinary writ materials by email. Paper filings are still required -- the email submission is an additional requirement.

You can read the court's administrative order requiring the email submissions here.

I think of these sorts of filing requirements as shadow electronic filings, not true electronic filings. Were they true electronic filings, there would be no paper filed with the court. The good news is that the electronically mailed file can be in Word, WordPerfect, or PDF format. The bad news (which is not too bad) is that the file must be transmitted on the earlier of the day of filing or the day of service, and the administrative order provides specific naming requirements for the file.

Second District: Scooting Without A License
Perhaps you have seen those colorful motorized scooters being ridden along the side of the road.

And perhaps you have wondered -- do you need a license to ride those things?

Well, the Second District has the answer.

In this case, the court addressed a defendant's claim that he should not have been charged with driving on a suspended or revoked license because his SunL E-21 scooter is not a "motor vehicle" under Florida law. The court disagreed. It is a motor vehicle, and the defendant needed a valid license.

Third District: Relations
A marital settlement agreement essentially provided that alimony to the former husband would cease once he lived as husband and wife with an unrelated woman for one year out of a two-year period. The former husband then lived with a woman -- his second cousin, by blood.

The former wife argued that alimony should be terminated under the parties' agreement. The former husband argued his second cousin was not "unrelated" to him.

Four out of four judges surveyed agreed that second cousins by blood are not "unrelated." You can read about it in this decision from the Third District.

The briefs in this one were probably interesting, to say the least.

Third District: Homestead
Where real property belongs to a partnership, can a partner claim that property as homestead? No, said the Third District in this case.

Third District: Continuing Torts
Has any Florida appellate court applied the doctrine of continuing torts to a medical malpractice claim? No, said the Third District in this case, where the court declined to apply the doctrine because no continuing relationship between doctor and patient existed.

Second District: Visitation
Where a dissolution court and a dependency court both have opportunities to make visitation decisions, this case shows which court the Second District prefers to make the call.

Second District: Eminent Domain
Those interested in takings cases may wish to check out this decision from the Second District. The court held a jury's verdict on severance damages to be inadequate under the unique considerations applicable to eminent domain cases. The court also added some thoughts on why the jury instructions given in the case were confusing and legally erroneous.

Third District: Frye
Trial evidence fans may be interested to know that, in this case, the Third District held that evidence offered by OnStar Computer Service -- GPS-based location information, apparently -- did not need to be subjected to a Frye hearing to be admissible. The court held that global position satellite technology has been in use for years and is generally accepted.

Friday, December 16, 2005
Judges Wanted
Yesterday, the Florida Supreme Court released a certification of need for additional judges in Florida's trial and appellate courts. You can read the certification order here.

If you're looking for the appellate highlights, here's the short of it: The court certified the need for an additional judge in both the Second District and the Fourth District. The high court did not certify a need for an additional judge in the Fifth District, despite that court's request for an additional position.

Been There!
My thanks to the First District for updating its newly redesigned web site this week to include a color change for links to previously viewed opinions. The new design is great, and now those of us who try to read every case can quickly assess which ones we've already read.

First District: Confrontation Clause
Any law professor will probably tell you that legal lessons are best conveyed when they are exemplified by interesting facts. This decision from the First District presents a memorable lesson on the Sixth Amendment's Confrontation Clause.

In the case, the state introduced as evidence a witness's former statement. The witness was present at trial and subject to cross-examination, but he testified that since making the statement he had been hit on the head with a barbell and had no memory of the matters discussed in his earlier statement. After being convicted, the defendant sought a new trial based on Crawford v. Washington, arguing that his right to confront the witnesses against him had been violated. The trial judge granted the motion, but the First District reversed. The witness was available for cross-examination, testified, and could be asked about his faulty memory. Thus, the appellate court found no violation of the Confrontation Clause.

Fourth District: Recorded Liens
Real property fans may be rather interested in this decision from the Fourth District.

The case involved a statutory lien created when a judgment was recorded in Broward County. Though the statutory scheme provided a mechanism for extending the lien, that scheme was not utilized, and eventually both the lien and all extension opportunitites expired. The question for the court was whether, at that point, a new lien could come into existence by re-recording the judgment. Examining the statutory scheme, and finding it silent on this point, the court held that re-recording a judgment once a statutory lien is finally expired does not give rise to a new lien.

Fourth District: Spoliation
In this decision, the Fourth District reminds us that a cause of action for spoliation does not accrue until the underlying action affected by the spoliation is completed.

Questions, questions
On Wednesday, in this order, the Fourth District certified the following to the Florida Supreme Court:
Is a Michigan insurer, which does not sell insurance in Florida, subject to personal jurisdiction in Florida in a suit by the insured seeking a defense and coverage, where (a) the insured is being sued in Florida for committing slander in Florida and (b) the policy is a homeowner's policy covering only a Michigan residence but also providing coverage for torts including slander?
You can read the Fourth District's earlier opinion in the case, which answered this question in the negative, here.

Fifth District: Arbitration
Arbitration fans may be interested in this decision from the Fifth District. The case is rather fact-specific, but it ultimately suggests a reluctance by the courts to find a waiver of the right to arbitrate.

Fifth District: Child Support
Is a parent's duty to pay child support enforceable by the estate of the other parent? No, said the Fifth District in this case.

Thursday, December 15, 2005
Florida Supreme Court: Contingency Fee Case
If you have been following the petition asking the Florida Supreme Court to amend the Rules Regulating the Florida Bar to account for newly adopted article I, section 26 of the Florida Constitution, take note.

Yesterday, the high court entered this order unanimously directing The Florida Bar to submit a proposed rule amendment within 60 days. By the order's terms, the proposed amendment must (1) acknowledge the new constitutional provision, (2) require attorneys to notify prospective clients with medical liability claims of the provision, and -- perhaps most important to many -- (3) provide a procedure whereby a medical liability claimant may knowingly and voluntarily waive the rights provided in the rule.

The court left the Bar some flexibility in how the waiver operates. The order states the proposed procedure "may involve judicial oversight or review of the waiver and may include a standard waiver form or otherwise provide for the protection of the rights of a potential client."

I suspect this order, which by no means ends the case, suggests the final result will favor those who opposed the petition more so than those who proposed it. The petitioners wanted no waivers to be permitted, while the opponents wanted the most simple waivers possible. The order leaves open the possibility that waivers will be permitted but only when approved by a court.

The true effect of this order seems to be that it shifts the battle to the Bar by forcing it to take a position on how any waiver should operate. Previously, the Bar had said only that it thought amending the rules was premature at this point. Now, the Bar must decide if the rights provided to medical malpractice claimants by the new constitutional provision will be treated the same or differently than the fee limitations generally applicable in all contingency fee cases.

Under the current rules, an attorney's contingency fees are presumed reasonable up to certain percentages, but a court can approve an agreement for the attorney to receive a higher percentage. Will the lower limits on fee percentages now effective only in medical malpractice cases be treated the same, with any attorney asking a client to waive the fee percentage entitlements having to obtain judicial approval for that waiver, too? Or will the new rights applicable in medical malpractice cases be something a client can waive at a private consultation with the attorney through a signed form, so long as the waiver does not extend past the general limits that cannot be exceeded without judicial approval?

How the Bar comes out on this will be interesting, for sure.

For details on the underlying dispute here, check out this prior post. For some discussion on the oral argument held in the case on November 30, check out this prior post.

Fifth District: Paternity and Rule 1.540(b)(5)
I have been meaning to take a few moments to discuss this decision from the Fifth District. It is one of those rare cases that, while rather short, offers interesting social and legal dimensions.

The case involves a man named Boswell who, in 1991, stipulated to his paternity with respect to a child then one year old. The stipulation resulted in a final judgment that adjudicated him to be the child's father and ordered him to pay child support. Boswell questioned the paternity status in a 1994 letter to the court but took no action in this regard until 2001, when he began a series of paternity challenges. Those challenges ultimately resulted in a DNA test that confirmed Boswell was not the child's father and a circuit court order relieving him of his child support obligations and arrearages.

The Department of Revenue appealed that decision, and the Fifth Distrtict reversed. Boswell must continue to pay child support, and he owes the payments he has not made. Boswell was pro se below and did not file a brief in the appeal.

Here is the practical side of what happened. The court essentially determined that Boswell waited too long to challenge the paternity judgment. New evidence and claims the mother defrauded the court would be a basis for undoing the judgment only if brought to the court's attention within one year of the judgment's entry. That did not happen here. The moral of the story might be that persons should appreciate the fundamental importance associated with a judicial determination (stipulated or not) that one is a child's parent and must pay child support. In 2005, where DNA testing is priced at a point many can afford and is readily obtainable, one should accede to a paternity decision only with knowledge that all possible steps to confirm paternity must be taken then, not later, or the decision may not be undone even if it is subsequently found incontestably incorrect.

The legal dimension here is rather fascinating as well. The court devoted much attention to rule 1.540(b)(5), which allows a party to obtain relief from a judgment "where it is no longer equitable that the judgment or decree should have prospective application." The court determined that this provision does not apply to matters that could have been raised as a defense to the original action. The court explained:
This interpretation of category (5) of Rule 1.540(b) is supported by the structure of the rule and is the only interpretation that gives effect to all the rule's provisions. The circumstances addressed in category (5) all appear to address matters arising after the judgment, not circumstances present before the judgment. If a category (5) "equity" included any of the categories contained in Rule 1.540(b)(3), the other categories would be meaningless and superfluous. What would be the point of a one-year limit on fraud if a mere inequity can be the basis for relief from a judgment at any time? Indeed, Boswell never offered any evidence that the mother did commit a fraud. How could "equity" offer greater protection to someone who merely failed to exercise his rights than to the victim of a fraud?
The court did not discuss whether a possible difference between a category (b)(5) "equity" and category (b)(3) "new evidence" could be that the circumstances addressed by (b)(5) are only prospective equitable ones. A rule that allows, say, money judgments to be undone within a year is quite different from a rule that allows a party to be relieved of only future performance under a judgment, whether that performance is one year, ten years, or twenty years after the judgment's entry.

In that sense, equity would not offer greater protection to someone who failed to exercise his rights than to the victim of a fraud -- equity would allow both persons the opportunity to avoid a judgment's future application, assuming the judgment at issue has such an application. Mere money judgments, for instance, will not, but a judgment that requires one person, say, to sweep another's driveway every day for the rest of the first person's life has a prospective component that could be set aside as a matter of equity.

Under this view, the critical distinction between a rule 1.540(b)(3) claim to set aside a judgment based on newly discovered evidence and a rule 1.540(b)(5) claim based on the inequity of a judgment's prospective application is not the proof used to support the claim but the nature of the judgment to be set aside.

The Fifth District appears not to have taken this view, but I will note that it could be consistent with a portion of the Second District's Terri Schiavo opinion that the Fifth District quoted in its decision. In the Schiavo case, the Second District offered thoughts on what sort of hypthetical circumstances could justify setting aside the order to remove Terri's feeding tube, including this one:
[I]f an interested party discovered the ward's advance directive or her written designation of a health care surrogate hidden in a desk after the trial, and it conflicted with the court's judgment, that might be grounds for relief from the prospective nature of the judgment.
Perhaps the Second District was willing to allow new evidence on a previously raised defense to affect a judgment's prospective application.

Finally, I will add that the Fifth District ultimately considered the equities of Boswell's case and found that "'equity' is not available to deprive a child of parental support based on facts that could easily have been determined prior to entry of the stipulated judgment of paternity."

"Parent" beware.

Tuesday, December 13, 2005
Fifth District: Lewd Conduct
In this case involving sexual conduct at a public establishment, the Fifth District held that charges of lewd conduct and exposing sexual organs do not require proof someone was offended. The court examined prior Florida case law on this subject and concluded that offending someone is required only in the case of private conduct, not public conduct. Only public conduct was at issue here.

Note that, a few weeks earlier, the Second District also decided that section 796.07 does not require that someone be offended, but that court reached its result on a different basis. You can read the Second District's decision here, and you can read my post on that decision here.

Fourth District: Threats
Florida law prohibits corruption by threat against a public servant, which is a short way of saying it is unlawful to threaten a public employee with the intent of making the person do or not do something the person either has the discretion to do (or not do) or is required to do (or not do). You can read the relevant statute here. It is quite broad, extending to threats against families of public servants and to efforts to make someone do something he or she does not have the power to do.

In this case, a student made a threat about a school nurse, saying "she's gonna make me do a Grunow on her." Barry Grunow was a Palm Beach County teacher who was shot and killed by his student.

The issue in the Fourth District's case was whether the student intended his threat to be communicated to the nurse. Acknowledging that there is rarely direct evidence of a person's specific intent, the court found sufficient circumstantial evidence to show the student intended his threat to be conveyed to the nurse and to influence her.

A point to be taken from this, especially with respect to children, is that threats are serious business, and whether you commit a crime when you make one will likely come down to how your actions are perceived, not whether, in your own mind, you really meant it or not.

Right As Rein
Misspellings, bad grammar, poorly written sentences -- you'll find each of these here from time to time, despite my efforts to avoid them. I like to think that is because I tend to write my posts very quickly and move on to the other pursuits of my day (work, family, watching sports, running, etc.), but I suspect the simple truth is that we all make mistakes.

In that spirit, I'll point out this decision from the Fourth District, which uses the phrase "free reign" to discuss a trial court's unfettered discretion, rather than "free rein," which correctly refers to the unconstrained. The mistake is not only understandable but interesting, given how reign relates to rule, as by a king, and trial courts can seem quite monarchical at times.

And by the way, I greatly appreciate it whenever someone emails me about a gaffe I make. One of the advantages of blogging over other forms of publication is that corrections are very easily made.

Questions, questions
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:
In light of the supreme court's decision in Sarkis v. Allstate Insurance Company, 863 So. 2d 210 (Fla. 2003), may a multiplier be applied to enhance an award of attorney's fees granted under a fee-shifting statute such as section 627.428, Florida Statutes (2002)?
Notably, the Fifth District previously certified the same question in this case, which was appealed to the state supreme court. In October, however, the high court released this 4-3 order declining to hear that case.

Apparently the Fifth District would still like an answer.

Also, there is an interesting attorney's fees issue still lingering from the original case. I'll discuss that controversy sometime soon.

Fourth District: Arbitration
In this arbitration case, the Fourth District reminds us that where a party believes it is entitled to attorney's fees for arbitration but the arbitrator's award fails to indicate the theory on which the successful party prevailed, there is a limited period of time in which the award may be modified to make that indication.

In the case, the parties waited too long, and so no one was entitled to fees.

Fifth District: Offers of Judgment
Those following the offer of judgment case law applying rule 1.442 to specific settlement proposals may wish to check out this decision from the Fifth District. The court held an offer invalid because it misidentified the plaintiff and ambiguously referred to the claims intended to be settled.

Fourth District: Trust Reformation
If you are a trusts and estates fan, you may be interested in this decision from the Fourth District. The court affirmed a trial court's decision to reform a trust to provide for a contingency that was not accounted for in the original writing, and of course which actually came to pass.

Monday, December 12, 2005
Fourth District: Bias
Ordering the defendant taken into custody for contempt at the start of the contempt hearing suggests a certain lack of objectivity, the Fourth District concluded in this case.

Third District: 57.105 Fees
In this case, the Third District determined that a motion for attorney's fees under section 57.105 is not timely if the other party does not have an opportunity to retract or amend its position. The court thus held a motion for fees under that statute to be untimely where the motion was made after the movant prevailed at trial.

Calendar Call
The Third District has just launched a new calendar page. It's easy to use and well organized, showing six months at a glance. Nice job, 3DCA.

Second District: Visitation
In this case, the Second District reminds us that a change in custody is not an appropriate sanction for a parent's contempt in failing to abide by a visitation order. (Such a change may be appropriate for other reasons, though.)

Friday, December 09, 2005
Ask, And Ye Shall Receive
Remember Monday's post about the 1999 appeal decided last week based on a confession of error? (This post; this appeal.) Well, indeed there is more to the story. A bankruptcy stay was in effect from 2000 to 2005.

The Clerk's Office Ate My Filing?
My ears perked up when the litigators in my firm's West Palm Beach office recently mentioned this administrative order from the Fifteenth Circuit. The order was apparently the subject of much discussion at a November 18 Bench/Bar Conference for the circuit.

The order concludes with the following language: "Memoranda, including memoranda of law, or letters will not be made a part of file unless ordered by judge."

It seems this language has resulted in some legal memoranda "filed" by counsel not becoming part of the court record -- a potentially significant problem if you are an appellate lawyer expecting the appellate court to receive all materials trial counsel filed.

I cannot say from experience whether this is happening or not, but as a theoretical matter I can picture some considerable public records issues stemming from it all.

Court Turns Back Time
If you live in the Bradenton area and have a penchant for making 4:45 pm filings at the Manatee County Courthouse, take note. Effective January 3, 2006, that court's clerk's office will begin closing at 4:30 pm, instead of 5 pm. Filings received after 4:30 will be docketed the next day. The court will also begin opening at 8:00 am, instead of 8:30 am.

This is apparently a temporary shift due to traffic problems accompanying construction in downtown Bradenton.

The Long Way Home
As luck would have it, I'm flying Southwest back to Tampa/St. Pete today, and they're running a few hours behind schedule. My loss is the blog's gain, thanks to free wi-fi in the West Palm Beach airport. I can post some small items I've been meaning to mention.

Schiavo News
Many thanks to the reader who sent me this press release published by LawFuel.

The release explains how a woman upset over the Terri Schiavo case posted "IF SHE DIES, I WILL KILL MICHAEL SCHIAVO AND THE JUDGE THIS IS FOR REAL!!" on an AOL message board discussing Terri's case. Judge Whittemore -- the judge who heard the case Terri's parents filed in federal court after Congress authorized them to do so -- read that message board and saw the threat.

The federal government indicted the woman under 18 U.S.C. section 875(c) for transmitting a threat in interstate commerce, and a jury has now found her guilty. She will be sentenced in March.

Voting Machine Suit
Yesterday's Miami Herald had this story on an oral argument held Wednesday before the Eleventh Circuit. The case is U.S. Representative Robert Wexler's suit against the State of Florida over the use of electronic voting machines. I've never been clear on the specifics of his claims, but it in essence it appears he is arguing that Florida's voting system is unconstitutional because the voting machines used by some, but not all, counties do not permit manual recounts.

Thursday, December 08, 2005
I thoroughly enjoyed the opportunities I had today to discuss the Florida appellate court system and Internet-based legal resources with young reporters eager to improve their legal reporting skills. The Bar puts on a great Reporters' Workshop, and I was once again impressed by the level of support shown the program by the Florida Supreme Court.

Chief Justice Pariente and Justice Cantero spoke to the attendees, and I believe five justices will attend a special dinner for the program tonight.

I'm missing the dinner as I type -- I'm blogging from the airport in Tallahassee, ready to hop a flight to West Palm Beach, where I need to be in court tomorrow. Work calls...

Workshop Work
I'm about to hop a plane to Tallahassee, where today I will have the pleasure of helping present The Florida Bar's annual Reporters' Workshop. It's an excellent program, now in its sixteenth year, that helps introduce reporters to Florida's court system.

Back to blogging later...

Second District: Patdowns and Automatic Stays
This case deserves a bit of attention, but, at the moment, I can give it only brief mention. It's the Second District's decision to lift the automatic stay that took effect when the Tampa Sports Authority appealed a trial court's decision that patdowns at Raymond James Stadium for NFL games are unconstitutional. The decision explores the rather uncharted territory of when to lift or leave in place the automatic stay set in place by rule whenever a government entity files a notice of appeal.

Wednesday, December 07, 2005
Irony: It Was Really A Triple Play
On Friday, I offered this post about the irony involved in how plaintiffs' representatives in the Florida Supreme Court were embracing plaintiffs' ability to waive their constitutional right to fee caps while, at the same time, a plaintiff in the Fourth District succeeded in arguing that one cannot agree to waive a statutory right to punitive damages and to limit non-economic damages in arbitration because such rights cannot be waived.

There is a third dimension to the irony. At nearly the exact same time as the above, the Third District released this decision. In it, the court considered the validity of a fee agreement between an attorney and client in which the client waived his right under article X, section 4 of the Florida Constitution to exempt his homestead from creditors. A divided court ruled that the waiver was enforceable. Judge Wells dissented. Both opinions are worthwhile reads.

This is really getting interesting...

Fourth District: Duty to Warn
Products liability fans will be interested in this decision, where the Fourth District held the manufacturer of a vacuum sewage system had no duty to warn of the electrocution danger posed by the system's electrical panel because that danger was obvious.

Third District: Post-Nuptial Agreements
Family law fans may wish to add this decision to their "if you sign it, you're bound by it" file. The Third District reversed a trial court's decision invalidating a post-nuptial agreement that a husband would make his wife's daughter an equal heir with his natural sons. The trial court had found the agreement to be the product of undue influence, but the appellate court found the evidence not to support that result.

Third District: Exculpatory Evidence
Criminal law fans may wish to check out the Third District's decision in this case. The court held that photographs lost by the state (most likely by the police) constituted only potentially useful evidence, not material exculpatory evidence, and reverved a trial court's dismissal of the charges against the defendant.

Fourth District: Homestead
Those interested in Florida's constitutional homestead exemption may be interested in this decision from the Fourth District. The court reversed a city's imposition of an equitable lien upon homestead property.

Third District: Service of Process
In this case, the Third District clarified that the filing of a motion to dismiss for forum non conveniens while a motion to quash service of process is pending does not constitute a waiver of the motion to dismiss.

The decision also merits some credit for its use of subtlety. The fact statement includes the following:
In October 1995, the parties briefly crossed paths in Miami Beach, Florida, after which Marcos learned that she was pregnant.
As you might guess, this was a paternity case.

Third District: Attorney's Fees Against Insurers
This case resulted in a divided decision from the Third District that is interesting on three levels.

First, the factual level.

The case involved an insured who rented a vehicle. He allowed an unlicensed person to drive it and, while doing so, the driver was involved in an accident. The insured misrepresented to the police and the insurer who drove the vehicle. When someone involved in the accident sued the insured for liability, and the insured wanted coverage, the insurer investigated and ultimately discovered the insured's deception. The insurer then filed a declaratory judgment action to determine its responsibilities under the policy. Afterward, the insurer settled with the allegedly injured person for a nominal amount and voluntarily dismissed its declaratory judgment action.

In this same time period, the insured was arrested, fined, and sentenced to probation for fraud in connection with the accident report and the insurance claim. The insured nonetheless sought attorney's fees from the insurer for defending the now-dismissed declaratory judgment action. The insurer opposed the award on grounds the insured's entire claim was based on fraud. The trial court reluctantly awarded fees, finding case law to require the award based on the insurer's payment on the claim and voluntary dismissal. On appeal, a divided Third District affirmed.

Second, there's the legal level. Section 627.428 provides insureds with a right to attorney's fees in litigation against their insurers "[u]pon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured . . . ." Long ago, the Florida Supreme Court held that an insurer's payment on a claim and voluntarily dismissal of a declaratory judgment action against an insured gave rise to the equivalent of a judgment in the insured's favor. Holding otherwise, the court concluded, would permit abusive tactics by insurers who force insureds to incur unnecessary legal expenses when the insurer ultimately honors the coverage request and drops the coverage dispute.

In this case, a majority concluded that the supreme court has provided a predictable, bright-line rule that should be followed, notwithstanding the fraud involved in this or any particular case. Judge Shepherd dissented, arguing at length that the purpose behind the supreme court's interpretation of the statute was to prevent abusive tactics by insurance companies, not to condone fraud by insureds. The result here, all seemed to agree, disregards if not condones the insured's fraud, providing the insured with fees for defending a declaratory judgment action that it could not have won.

Third, there's the judicial philosophy level. The supreme court's decision was perhaps a departure from the notion that statutes in derogation of the common law should be strictly contrued -- after all, fee awards were not permitted under our common law, and the statute's text seems to lay out a simple rule that fee awards are proper only when a judgment is recovered against an insurer. The court plainly wished to avoid the perhaps absurd result of allowing an insurer to escape liability for fees by dismissing a declaratory judgment suit (and paying on the claim at issue) just before that suit is lost. With the high court having liberally interpreted the statute, however, to avoid an unjust end, the Third District has now embraced a philosophy of restraint and in essence held that it will not make exceptions to the exception created by the supreme court. The dissent's point is ultimately that, in doing so, the judiciary has now allowed the statute to be used in a manner contrary not only to its text but to its purposes as well.

Fourth District: Inverse Condemnation
Land use fans will probably be interested in this decision from the Fourth District. The court affirmed a trial court's decision that requiring a developer's successor to comply with a planned unit development agreement did not constitute a taking and that the agreement's preservation requirements were enforceable. The property at issue was the Big Blue Reserve in the Village of Wellington.

Monday, December 05, 2005
There Must Be More...
... to this story. In an appeal by pro se appellants, the Second District reversed a state agency's decision based on the agency's confession of error. That's interesting, but it seems more interesting that the case is a 1999 appeal -- one so old the docket is not online. Could it have taken six years for the state to confess error?

First District: Final Orders
Hey, appellate fans, which of the following is a final appealable order: an order granting a motion to dismiss without prejudice or an order granting a motion to dismiss with prejudice?

If you said the latter, you are incorrect. Neither is final, as the First District pointed out in this decision involving the high-profile case of wrongly-convicted Wilton Dedge.

Perhaps some litigation does go on forever. In this case involving an offer of judgment, the controlling offer of judgment statute was the 1987 version of section 768.79.

First District: Impeachment
Can not responding to a trial subpoena be grounds for a witness's impeachment, so that it is error for the judge simply to tell the jury the witness is unavailable, as opposed to saying the person refused to appear? Yes, under some circumstances, as you can see from this decision by the First District.

Questions, questions
In this decision, the Second District certified the following to the Florida Supreme Court as a question of great public importance:
The Second District answered the question in the negative, relying on prior case law reaching the same result.

Second District: Grandparent Visitation
This decision will likely be of interest to anyone dealing extensively in family law matters, particularly guardianships. The Second District held that a probate court has the power to direct a guardian to permit visitation between a minor ward and a third person, including grandparents, if visitation will promote the minor's best interests. Comparing the parental powers of guardians and parents, the court squarely held that guardians do not enjoy the same rights as parents to control who visits children in their care.

Judge LaRose: Higher Expectations
Those involved in criminal appeals involving indigents may wish to take note of Judge LaRose's comments in this decision, where the judge explained his "increasing concern with the lack of thoroughness reflected in many Anders briefs" filed in the Second District.

First District: Forcible Felony Exception
Criminal law fans may be interested in this decision from the First District. The court held that whether a forcible felony exception instruction was erroneously given in a self-defense case need not be addressed if the defendant was not entitled to a self-defense instruction in the first place.

Friday, December 02, 2005
Criminal Instruction
Many, many folks will be glad to hear that, as of today, the Florida Supreme Court's web site offers an online version of the Florida Standard Jury Instructions for Criminal Cases.

Irony, Florida Law Style
Looking back, Wednesday was a bit of an ironic day.

In Tallahassee, we had one of the year's most interesting oral arguments as the Florida Supreme Court considered what to do about the conflict between rule 4-1.5 of the Rules Regulating the Florida Bar and newly adopted article I, section 26 of the Florida Constitution. In medical malpractice contingency fee cases, the new constitutional provision entitles plaintiffs to a greater minimal percentage of their recovered damages than does current bar rule. (For more on this topic, see this previous post.)

If you watched the oral argument (which is available online here), you saw a very engaged court interact with attorneys passionate about what, if anything, should be done about the new fee limitations.

The issue I wish to focus on is whether the new constitutional provision can be waived. Those proposing to amend the bar rules to reflect the new limits argue that they cannot be waived any more than an employer could ask an employee to waive the new constitutionally-based mimimum wage. Those opposing the proposal (including, interestingly, the Florida Consumer Action Network) argue that the new provision simply establishes a right of claimants to keep a minimal percentage of a damages award and such a right, just like the right to silence or to trial by jury, can be waived so long as that is done knowingly, intelligently, and voluntarily.

As best I could tell, multiple members of the court favored the notion that the new right can be waived. No justice openly disagreed with the idea.

Now, at nearly the exact time a debate was going on in Tallahassee over whether medical malpractice plaintiffs can waive their constitutional right to keep certain minimal percentages of the monetary awards they receive, with plaintiffs arguing they can waive that right, down in West Palm Beach, the Fourth District released this decision.

In the Fourth District's decision, the court held an arbitration agreement invalid and unenforceable because in it a nursing home resident agreed that, in arbitration, she would waive her right to collect punitive damages and would cap non-economic damages at $250,000. The court accepted the resident's argument that nursing home residents have rights to punitive and non-economic damages under Florida's statutes and that residents cannot waive those rights.

I am sure someone else noticed this...

Fifth District: Summary Judgment
Receiving a reversal of a summary judgment in your favor is usually not a good thing for the appellee, and I suspect that was true in this case out of the Fifth District.

That said, the appellee in that case might take some comfort in the rare benefit it did receive: a dissenting judge opined in no uncertain terms that the evidence used to overcome the summary judgment could never sustain a verdict in the appellant's favor.

Fifth District: Missing Transcripts
When a transcript from a trial proceeding cannot be obtained, rule 9.200(b)(4) allows parties an opportunity to agree upon a statement reconstructing the proceedings and requires trial judges to review any proposed or agreed-upon reconstruction. It is possible, and perhaps likely, though, that the parties will disagree over what happened and the trial judge will not recall, with the result being that neither a transcript nor an approved reconstruction exists for the appellate court.

What effect will the lack of a transcript or reconstruction have on an appeal? Often the result appears to be an affirmance, as was seen in this decision issued by the Fifth District in September. In November, however, the same court issued this decision, where the court found error and ordered a new trial despite the absence of transcripts for two days of a three-day trial.

It may be worth mention that, in the more recent case, the proceeding was reported but the court reporter "disappeared with her notes."

Fifth District: Judgment Liens
This decision from the Fifth District reminds us that a judgment lacking the judgment creditor's address does not become a lien against the debtor's property.

Fifth District: Homestead Property
Decisions involving homestead property rights are somewhat rare, but the tail end of this year has seen two of them.

You may recall that back in September, the Florida Supreme Court released this decision, which held that a decedent's homestead property not specifically bequeathed is not part of the decedent's probate estate and cannot be sold to satisfy a general bequest of cash.

In this more recent decision, the Fifth District further explained that while Florida's probate statutes allow a personal representative to take possession of homestead property to preserve it, the personal representative still lacks the power to sell that property.

Thursday, December 01, 2005
Supreme Site Survey
The Florida Supreme Court wants to hear about your experiences using the court's web site. The main page for the court's site now links to this survey.

Don't say they didn't ask...

Carlie Brucia News: One Last Effort In The Photos Case
Today's Herald-Tribune has this story on how, yesterday, the state attempted to obtain a stay from the U.S. Supreme Court that would prevent the media from viewing the autopsy and crime scene photos introduced as evidence in the Joseph Smith trial. The stay request was denied.

It is not clear whether the state has filed or soon will file a petition for writ of certiorari with the nation's supreme court, asking that court to overrule this decision from the Second District.

The Attorney General's office released this statement about the new federal appellate effort. From the release, it sounds like a certiorari petition will be filed.

If anyone has a copy of what the state has filed and can forward it to me, I would appreciate it. I am curious how the state argued federal law governs here. Presumably, the argument is that Carlie and her family have federal constitutioanl rights of privacy that will be unlawfully infringed if the media view the evidence used at trial.

Green E-Light
Yesterday, Chief Justice Pariente entered this order authorizing the chief judge of each district court of appeal to adopt rules requiring the electronic filing of briefs, petitions, and other documents, including any or all parts of the record.

Ready your browsers, folks. E-filing in Florida steadily approaches.

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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