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Friday, February 24, 2006
Medical Malpractice Fee Waiver
Today, The Florida Bar filed with the Florida Supreme Court a proposed amendment to rule 4-1.5 of the Rules Regulating The Florida Bar that should bring the rule into conformity with recently enacted article I, section 26 of the Florida Constitution. Adopted by voters in 2004, that provision guarantees claimants certain minimum recoveries in medical malpractice cases involving contingency fees.

Back in December, the Florida Supreme Court entered this order requiring the Bar to submit a proposed amendment that accounted for the new provision and provided a means for waiver of the new rights.

The Bar has now done that. You can read the proposal here.

In short, the proposed rule includes a mandatory disclosure requirement regarding the new constitutional provision for all medical malpractice contingency fee cases. The proposed rule also includes a waiver option and a required form for all waivers that contains some fairly extensive disclosures. Finally, there is no court approval requirement that is specific to the new waiver option. As a result, the waiver form will be sufficient so long as the waiver does not move the attorney's fee recovery above the presumptively reasonable caps already set forth in the rules.

Florida Supreme Court: Capital Defendant Acquitted
It is not every day that a person sentenced to death for a capital offense obtains a complete acquittal on appeal. It may not even be every decade.

But it happened yesterday, in this case.

The defendant was accused of a double murder, and he was prosecuted and convicted based solely on circumstantial evidence: his fingerprint was found in the victims' apartment and a single hair from him was found in one of the victim's hands. There was no evidence of how either item got where it was found, but it was undisputed that the defendant had often been in that apartment. He and the victims were neighbors.

The Florida Supreme Court unanimously reversed the conviction for entry of a judgment of acquittal, holding that the evidence however viewed was insufficient to permit a finding of guilt without speculation.

Notably, hours after the decision was released, the state filed a notice stating it had no intent to seek rehearing in the case.

Third District: Homestead Case En Banc
You may recall that, in December, the Third District released this decision upholding an attorney-client fee agreement in which the client waived his article X, section 4 right to exempt his homestead from creditors.

Judge Wells authored an interesting dissent that, among other things, discussed a potential consequence of the majority's decision: perhaps all creditors would start to "ask" that homestead rights be waived. Hmmm.

Just recently, the Third District voted to rehear the case en banc. So stay tuned.

Fourth District: Internet Pornography
When you view a picture over the Internet, it is almost inevitable that a copy of that picture is temporarily stored on your computer. If the picture you are viewing is unlawful child pornography, have you necessarily committed the crime of knowingly possessing child pornography? No, said the Fourth District in this decision, but once you save or somehow manage the photo on your computer, you are in knowing possession, just like the defendant in the case was found to be.

Third District: Medical Monitoring Class Actions
If you thought medical monitoring class action claims were on a smooth path to success in Florida, then you will probably view this decision from the Third District as a bump in the road.

Reversing a certification order for a medical monitoring claim involving the prescription drug Prempro, the Third District reached several conclusions that would appear adverse to the certification and even merits hopes of those wishing to pursue monitoring claims involving prescription drugs currently approved by federal authorities and where the supposed hazards of such drugs' use are not, at the moment, well defined.

Fourth District: Usury
Following a long line of cases holding that a usurious loan cannot survive by being labeled something else, the Fourth District in this case held a so-called investment arrangement unlawful.

Maybe the investor could have persuaded the legislature to authorize such practices going forward, and then the court might have ruled that they were never improper all along. Could that really happen? Theoretically.

Fourth District: Search and Seizure
Reconsideration in light of a vacatur by the U.S. Supreme Court did not persuade the Fourth District in this case that a dog sniff for marijuana outside a person's house was a reasonable search under the Fourth Amendment. The court split on the issue, though, with the majority and dissent authoring lengthy and thorough opinions that resemble the sort of nuts-bolts-nuts-again approach we see from the nation's high court.

Maybe they all think the case could be headed back up...

Third District: Negligent Training and the Impact Rule
In this case, two judges from the Third District reversed a negligent training and supervision award because it was not based on any physical impact or injury. Judge Schwartz concurred specially, offering that the reversal should more properly be based on the notion that negligent training is not a distinct theory of liability against an employer where the employees can be liable and their actions are within the scope of their employment.

Judge Schwartz's concurrence raises an interesting question: can a plaintiff go forward with a claim that involves elements the plaintiff does not need to prove in order to recover? Assume the "extra" elements color the defendant in a very negative light. In the context of this case, can the plaintiff prove negligent training by the employer, leading to negligence by the employee, when the plaintiff could simply prove the employee's negligence and rely on vicarious liability to hold the employer responsible? Another example might involve proving negligent entrustment of a car (to get in evidence that the driver was a bad egg) when Florida generally holds automobile owners strictly liable for actions taken with a car, so proving the driver's negligence would be enough to impose liability on the owner.

Third District: Proving the Obvious
This case may be a good example of what sometimes looks like a disconnect between legal arguments and reality. The defendant was convicted of sexual battery on a person under 12 by a person eighteen or older. He was around 29 when the offense occurred, and 36 at the time of trial, but he claimed the state failed to prove he was at least 18 when he committed the crime. Apparently the state offered nothing directly to prove his age.

The trial court had agreed, granting a partial judgment of acquittal on this ground, but the Third District reversed. The appellate court held there was enough circumstantial evidence in the record for the jury to have determined the defendant was at least 18 when he committed the battery. Most notably, the jury saw him.

Third District: Alimony
This decision from the Third District reminds family law fans why it may make little sense for an alimony payor not to ask alternatively for termination of an alimony award when seeking its modification.

Fourth District: NICA Conflict, Again
Those interested in Florida's Birth-Related Neurological Injury Compensation Act may want to check out this decision from the Fourth District. The court certified conflict with another district over NICA's notice requirement and whether an emergency appearance at the facility excuses the requirement if the patient previously visited under non-emergent circumstances. The court held that notice was required to have been given at the earlier opportunities and that notice given when the patient was unable to act on the information was insufficient.

Recall that the Third District certified much the same conflict last year in this decision.

Fourth District: Appellate Jurisdiction
In this decision, the Fourth District reminds us that a criminal defendant wishing to appeal a sentence supposedly in violation of a plea agreement must preserve the issue through a motion to withdraw the plea. The juvenile in the case filed such a motion but then abandoned it, leading the appellate court to conclude it lacked jurisdiction under rule 9.140.

Fourth District: Homestead
In this case, the Fourth District examined whether homestead property owned by a revocable trust could be used to satisfy debts of an estate based on a directive in the trust instrument that the debts of the estate be paid through trust assets. Favoring the preservation of homesteads, the court held that the trust could not be read to require the sale or encumbrance of the homestead.

Fourth District: Duty
If you build a school around a heavily traveled multi-lane road, do you have a duty to exercise care for the safety of students who must cross the road as part of their school activities? Yes, said the Fourth District in this case.

Fourth District: Credentialing Files
In this certiorari case, the Fourth District once again explained that, no, you cannot obtain a hospital's credentialing files concerning its physicians. You can get them from another source, perhaps, but not from the hospital.

Third District: Preservation of Error
This decision from the Third District shows that renewing an objection to a seated juror immediately before accepting the jury is not always necessary to preserve the matter for review. The case involved a peremptory strike that was rejected, erroneously it turns out, on grounds of pretext.

Questions, questions: Peremptory Strike Challenges
Some questions are meant to be answered. Others, maybe not so much, but rather to make a point. This decision from the Third District could offer some of both, as the court certified the following to the Florida Supreme Court as questions of great public importance:



As these questions show, the Third District has apparently grown weary of reversals based on procedural problems in peremptory strike challenges where the problems have had no discernible impact on the fairness of the proceedings.

Third District: Fingerprints
Can the defendant in a criminal case involving fingerprint evidence present an expert whose testimony is, in essence, that fingerprint analysis is of questionable reliance? No, said the Third District in this case, where the court granted a certiorari petition requested by the state.

Fourth District: Trial De Novo
Those wishing to request, or oppose, a trial de novo following a non-binding arbitration may wish to check out this decision from the Fourth District.

Those wondering whether a circuit court petition for a trial de novo following a lemon law arbitration must read like an ordinary complaint in a civil case will find the answer in this decision from the Fourth District.

Third District: Damages
If I agree to sell you a new piano, but I deliver to you a not-so-new piano in need of repair yet worth at least what you paid for it, can you sue me for breach of contract? Of course, explained the Third District in this case. The purchaser can sue for the difference between the amount paid and the value received (actual damages) or for return of the purchase price (rescission).

Third District: Recanting An Affidavit
What happens if you swear to something in an affidavit but later claim you never read the affidavit before signing it? Well, without more, nothing happens. Your attempted recantation is entirely ineffective, as occurred in this decision from the Third District.

Fourth District: Preservation of Error
This decision from the Fourth District addresses various ways in which trial court error may not be preserved for appellate review.

Fourth District: Bert Harris
Real property fans may be interested in this decision from the Fourth District, which addressed the proper statute of limitations to be applied to claims under the Harris Private Property Protection Act. The court held that the general four-year statutory period governs.

Third District: Irrelevance
Can a certiorari petition be used to quash an order requiring the production of what you claim is irrelevant material? Yes, at least in some instances, such as in this case from the Third District.

The case involved an insurance company that was ordered to produce information relating to the drafting and marketing of its umbrella policies and claims paid under such policies. The district court held that such information was "completely unnecessary" to the issues in the case.

Soon And Very Soon
I'm sitting on a plethora of posts. They'll be up shortly...

Tuesday, February 21, 2006
Buckeye Is Out... Florida Reversed
Today, the U.S. Supreme Court released its decision in Buckeye Check Cashing, Inc. v. Cardegna.

In doing so, the nation's high court reversed this decision from the Florida Supreme Court.

The Florida decision held that the validity of a usurious agreement containing an arbitration provision should be decided by a court, not an arbitrator, since a usurious contract is void, not voidable, under Florida law. Over the dissent of one justice, the Florida Supreme Court concluded that there is nothing to sever regarding a void agreement and thus no arbitration agreement to enforce.

The U.S. Supreme Court reversed and held that the severability rule of Prima Paint Corp. v. Flood & Conklin Manufacturing Co. controls regardless of a state's distinction between void and voidable agreements. Under the Federal Arbitration Act (which governed the contract at issue), unless a challenge is made specifically to the validity of an agreement's arbitration provision, the arbitration provision is severable as a matter of federal arbitration law, and the validity of the overall contract is thus a matter for the arbitrator to address.

The court noted that its decision did not address situations where there is disagreement over whether a contract was entered, such as where there is a dispute that one party signed the contract, that the signor lacked capacity to bind the alleged principal, or that the signor lacked the mental capacity to assent.

CLE Reminder
Just a brief reminder to appellate folks -- the monthly CLE teleconference will be held today. Check the Appellate Practice Section's web site for the usual information.

Toll Bridge Post Update
Does anyone remember this post about the Second District's recent decision involving a challenge to a toll bridge charge?

My inbox has produced two follow-up points.

First, the plaintiff in the case apparently happened across this blog. She wrote me an email, informing me that in 2005 the Sanibel Bridge toll increased to $6 for access to Sanibel and Captiva Islands. (There is no toll for leaving the islands.) She apparently plans to aim her challenge at that increased fee, too.

Second, my post related Judge Altenbernd's suggestion that an enterprising student of the law examine the lingering efficacy of article V, section 20 of the Florida Constitution. That section carried over numerous provisions from the 1885 constitution concerning court jurisdiction and keeps those provisions in effect unless the legislature changes them by general law.

Well, there is at least one enterprising student of the law who reads this blog, and he has taken up Judge Altenbernd on his invitation. Reader (and law student) David Warren sent me the following summary of what he sees as the current status of the various jurisdictional provisions of article V, section 20(c). I'm quoting:
¶1 is a simple carryover provision dealing with Supreme Court jurisdiction, which is currently defined under Article V, section 3(b) of the FL Constitution (defining its appellate jurisdiction, discretionary review, and authority over original proceedings).

¶2 is a carryover provision for the DCAs (whose jurisdiction is currently defined in Article V, section 4(b) of the FL Constitution) now codified in Chapter 35 of the FL Statutes.

¶3 deals with the jurisdiction of the Circuit courts, now codified at Section 26.012 of the FL Statues. It tracks the language of section 20 almost verbatim.

¶4 deals with the jurisdiction of the County courts, now codified at Section 34.01 and 34.011 (adding jurisdiction over landlord & tenant cases) of the FL Statutes. It tracks the language of section 20 almost verbatim, except it changes the amount at controversy in civil actions from an upward threshold of $2,500 to $15,000.

¶5 deals with the Judicial Nominating Commission (JNC), which is now codified at Section 43.291 of the FL Statutes. The Governor now appoints members, rather than the Board of Governors. The mix of membership qualifications was also changed. He appoints 4 (rather than 3) members who are practicing attorneys in their territorial jurisdiction, and 5 more (rather than 6) of which at least 2 (rather than 3) are practicing attorneys. Previously, 3 members had to be non-lawyers; there is no such requirement today.

¶6 deals with the public role of members on the JNC, which is now codified under §43.291(2). It tracks the language of section 20 almost verbatim.

¶7 deals with the term limits of members on the JNC, which is now codified under §43.291(3). Four years remains the length of time a member will serve.

¶8 deals with the disposition of fines & forfeitures collected in county courts, which is now codified at Section 34.191 of the FL Statutes. With some clarifications & qualifications, it tracks the language of section 20 (specific statutes have since been enacted to account for the allocation of various revenues). The funds are still dispersed monthly. That part of section 20 dealing with court costs has been codified at Section 34.041 and 34.045 of the FL Statutes, but still provides for payment into the General Revenue Fund.

¶9 deals with the location of county courts, which is now codified at Section 34.181 of the FL Statutes. It tracks the language of section 20 verbatim.

¶10 (dealing with the division of courts throughout the state) is tracked verbatim at Section 43.30 of the FL Statutes.

¶11 deals with the qualification of county court judges, which is now codified at Section 34.021 of the FL Statues. One major change is that now judges must be lawyers. The only exception is for those judges who were seated prior to July 1, 1978 in a county with a population at or less than 40,000. They can remain judges if they complete a 3-year law training program approved by the Supreme Court (they’re "grandfathered" in with a qualification).

¶12 deals with the authority of municipal prosecutors, which is now codified at 34.13(5) of the FL Statues. It tracks the language of section 20 verbatim.

¶13 does some general housekeeping & ties up loose ends.
Thanks, David. If you're right, many of the 1885 provisions are still in effect today, including, of course, the provision that gives circuit courts jurisdiction over all cases involving the legality of any tax or toll.

First District: Appellate Procedure
Here is an easy warm-up for those getting ready to take the appellate board certification exam. Assume that, during the appeal of a nonfinal order, the trial court refuses to enter a final one, stating in a new order that the previously entered and appealed order was final. Does the refusal order reach the correct result? And is it in any event appealable?

Yes and no, as the First District explained here.

Second District: Judicial Disqualification
If a judge says he thinks a party can't expect him to be impartial based on some particular ground, and the party then moves to disqualify the judge on that basis, can the judge change his mind and decide, no, disqualification is not appropriate after all?

No, said the Second District in this case.

En Banc Follow-Up
In this previous post about the First District's en banc decision involving W.D. Childers's criminal convictions, I mentioned how 14 of the court's 15 judges participated in the en banc decision and I wondered where the fifteenth might have been.

No one from the court sent an answer, but a number of folks (not from the court, I don't think) suggested that the fifteenth judge probably recused himself based on ties to the appellant or the municipal body at issue. (That suggestion was apparently based on that judge's connections to Pensacola, from which Childers hails and where the events at issue occurred.)

That's probably correct. Either way, it makes me wonder: in an en banc case, if a judge on the court does not participate, why not reflect that in the ultimate decision? Ideal would be to distinguish recusal from non-participation for other reasons.

In related news, the First District most recently released this en banc decision, 14 of its 15 judges participating...

Certified Conflict: Rule 1.525, Then and Now
In this decision, the Second District recertified a number of existing conflicts between the districts over the application of rule 1.525's 30-day requirement for serving motions for attorney's fees.

Those familiar with the rule and its troubles will recognize the issues. One point should be noted, though, for fans of this rule's saga. In what could be dicta, the court spoke to how a motion for fees previously filed out-of-time will not be held in a theoretical abeyance until entry of an amended judgment following remand from the district court's earlier decision in the case. In other words, the existing motion was untimely, and just because a new judgment will be entered, the old motion will not suddenly become a timely filed motion.

The interesting part is that the court does not mention that the rule has now changed or how that change may or may not affect the case. For years, rule 1.525 provided:
Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
Effective January 1, 2006, however, the Florida Supreme Court amended the rule to substitute "no later than" for "within," making the new rule:
Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
The amendment is available here.

First District: Vacating Agency Orders By Settlement
In the last month, the First District has twice explained that it will not vacate an agency's order based on the parties' settlement during an appeal from that order. The court will, however, dismiss the appeal, and the agency has the power to consider vacating its decision.

For more, check out the decisions here and here.

Second District: Dissolution
"It is incumbent upon counsel and the trial court to ensure the fairness and accuracy of the parties’ respective financial affidavits."

So said the Second District in this decision. The court reversed an award of periodic permanent alimony favoring a husband on his argument the award should have been higher.

First District: Contracts and Promises
I really enjoyed reading the legal discussion in this decision from the First District. The case involved claims for breach of contract and promissory estoppel, and the discussion included the effect of the statute of frauds and how reasonable reliance plays out in the context of compulsory competitive bidding requirements.

First District: Stare Decisis
Assume you win a judgment from a Florida trial court and, rejecting the correctness of a state supreme court decision, the final order includes words to this effect:
[The court may] reexamine the law which may be applicable to a case even to the extent of reconsidering the correctness of the conclusions announced in previous cases. And, if the court is a trial court, pointing out such to appellate courts.
What are the odds your decision will be reversed by the district court?

Darn near perfect, as this decision from the First District might suggest.

Second District: Representations of Counsel
Here, the Second District reminds us that a trial court abuses its discretion where it accepts, over objection, counsel's mere representation of what the facts are.

The case also shows that, in certain circumstances, counsel may not get a second chance to prove the matter at issue.

First District: Workers' Compensation Fees
If you have an interest in fee awards in workers' compensation cases, then you may want to check out this decision from the First District.

Second District: TPR Lingo
A party's failure to appear in opposition to a complaint is generally termed a default.

In this case, the Second District reminds us that a parent's failure to oppose an effort to terminate parental rights is more properly labeled a consent, not a default.

Interesting case, by the way. A termination by implied consent was reversed, just as the attorneys for the other parent and the child's guardian ad litem had told the trial court might well happen.

Monday, February 20, 2006
Back In Blog
Work kept me away from the blog for a bit, there. I am back now and will have a gaggle of posts up soon.

Tuesday, February 14, 2006
First District: Nothing Funny Happened On The Way To En Banc
En banc. It translates to "in bench" or "full bench." In law, the term is used to describe the hearing of a case by an entire court, as opposed to a mere panel of judges from that court.

Earlier this month, the First District released this decision in W.D. Childers's appeal from his much publicized criminal convictions. The First District heard the case en banc, and just in case you might doubt that the judges were paying close attention to the case, they released ten opinions that should convince you otherwise.

That's right. Ten opinions.

I am fairly sure that our supreme court, with its seven justices, could not release ten opinions in a single proceeding, supremecy notwithstanding. Indeed, I question whether any court remotely in this blog's sites -- including any district court of appeal, the Florida Supreme Court, the Eleventh Circuit Court of Appeals, or the U.S. Supreme Court -- has ever released ten opinions in a single appeal.

Fifteen judges sit on the First District Court of Appeal. Only fourteen of them participated in the case. Judge Barfield's name does not appear on any of the opinions.

W.D. Childers is a former president of the Florida Senate. He also served as a commissioner on the Escambia County Commission, and events during his service there gave rise to bribery and unlawful compensation charges. He was convicted, and on appeal he challenged the trial court's decision to exclude from evidence the state's attempt to revoke a key witness's plea agreement. The witness had changed his story at times, prompting the state to try to revoke its plea deal with him, but the attempt failed when the court in his case ruled he had substantially complied with his agreement. Childers wanted to introduce the revocation notice in his own case to show the changes in testimony and that the state was continuing to exert pressure on the witness to testify in a certain manner. The trial court excluded the notice as irrelevant. Separately, the trial court ruled that Escambia County was not a "person" within the meaning of section 775.089, and thus Escambia County could not be awarded nearly $1 million in restitution for losses caused by Childers's actions.

The panel originally assigned the case would have reversed the conviction, as Chief Judge Kahn tells us in his partial dissent, but before that decision was released, a member of the court requested en banc consideration. A majority of judges on the First District agreed to en banc review.

The lead opinion released by the en banc court was a 28-page piece that affirmed the revocation notice's exclusion. Applying the "tipsy coachman" rule, the unsigned opinion held that the notice was relevant but that its probative value was so outweighed by its prejudicial effect that it should have been excluded on that ground. The opinion also affirmed on two other grounds raised by Childers and, on cross-appeal by the state, reversed the restitution decision, holding that the county was a person entitled to recover a restitution award.

From there things got a bit strange. But follow me. It's easy.

Six judges concurred with the per curiam opinion: Judges Davis, Van Nortwick, Padovano, Lewis, Hawkes, and Thomas. Those same six also signed onto a concurring opinion authored by Judge Allen, who concurred fully in the lead opinion and added some thoughts on the court's ability to hear the case en banc. Specifically, he explained that rule 9.331 authorizes the court to hear a "case" of exceptional importance, not merely an issue of exceptional importance, and that there may be circumstances in which the "involvement of a particular party or some unique aspect of the case's procedural history" qualifies a case as exceptionally important. He went on to say that even if an issue in the case must be exceptionally important, the $1 million restitution issue involving Escambia County met that standard.

Chief Judge Kahn wrote an opinion agreeing with the lead opinion's disposition of two of Childers's points on appeal but otherwise dissenting in many respects. He disagreed that the revocation notice was irrelevant or too prejudicial, and he "vigorously" disagreed that the case was appropriate for en banc review, agreeing with two paragraphs from Judge Wolf's decision about why the case was heard en banc. (More on that below.)

Chief Judge Kahn would not have reached the restitution question, but in a footnote he stated that the court's resolution of that issue conflicts with decisions from the Second and Fourth Districts. Those courts held restitution unavailable to other government actors or entities.

Let me pause for a moment to focus on that matter. The majority disagreed that its restitution decision created conflict, viewing the other districts' cases as materially different because they did not involve restitution from a criminal defendant. If there is conflict, the Florida Supreme Court has discretion to review this case and resolve the conflict. On that topic, Judge Kahn had this to say:
Whether our supreme court will determine in the future that it has jurisdiction to review this en banc decision is clearly beyond my ken. Nevertheless, if there were ever a case in which the supreme court should take upon itself to limit the jurisdictional boundaries of en banc consideration, this is the case. In fact, and perhaps ironically, the only matter of exceptional importance in this entire case is whether en banc jurisdiction exists at all.
I suspect they will get the message.

Back to the field, so to speak, Judge Ervin agreed with Judge Kahn on the merits of the case and "emphatically" dissented from the court's en banc review. Judge Ervin conducted an interesting exploration of the nature of en banc review. He concluded that en banc authority is a matter of subject matter jurisdiction and that grounds to exercise such jurisdiction did not exist.

In a separate opinion, Judge Wolf agreed with the per curiam opinion's results on the merits but dissented from the en banc review. Challenging Judge Allen's comments on why en banc review may be appropriate here, Judge Wolf stated:
I challenge the implication that the restitution issue had anything to do with the vote of the court to go en banc. I suggest, rather, that it is an attempted after-the-fact justification for a decision which otherwise cannot be justified.

I am also concerned with the statement that "involvement of a particular party" might justify exercise of the court's en banc jurisdiction. If this statement implies that the name of a particular person involved in the case affects the quantum of consideration and scrutiny available in a particular case, I strongly disagree. A party is entitled to the same consideration from this court whether his name is Childers or Smith. To do otherwise would place more importance on personalities than equal application of the rule of law.
(footnotes omitted). Keep in mind, Judge Allen's opinion was joined by six other judges, so Judge Wolf's words have many targets.

Back to the field once again, Judge Webster authored an opinion agreeing with the per curiam opinion's results on the merits but dissenting (without elaboration) from the en banc review.

Judge Thomas wrote a separate opinion concurring with the per curiam opinion but adding that, in his view, any error in excluding the revocation notice was harmless.

Judge Benton wrote a special concurrence on the merits of the appeal, agreeing with the trial judge that the revocation notice was irrelevant, but dissenting with regard to the restitution issue. He gave no indication of his views on whether the restitution decision created conflict or whether en banc review was appropriate.

Judge Browning wrote an opinion concurring in the decision for en banc review but dissenting on whether the conviction should be reversed for failure to admit the revocation notice.

Finally, Judge Polston wrote a separate opinion concurring with Chief Judge Kahn's opinion on the merits, which would be a dissent from the majority's decision on the revocation notice issue.

That's all. In the end, Childers lost his appeal and the state won its cross-appeal. Given the amount of the restitution award, I suspect it is inevitable that Childers will seek review in the state supreme court, surely on grounds that conflict exists. Perhaps he will also pursue a writ, arguing that one of the judge's opinions suggests grounds for extraordinary relief.

I am left with three burning questions:

Will the high court take the case? If so, will the court address the en banc issue? And, either way, what ever happened to Judge Barfield?

Friday, February 10, 2006
Judge Pryor on Religion and the Judiciary
The ABA Journal's latest e-Report has this intersting story about a recent speech given by Judge William Pryor of the Eleventh Circuit. He discusses Catholicism and the interplay between faith and judicial service.

The story gives Judge Pryor's answer to this question: how is being a judge like being a mail carrier?

Fifth District: Tolling, Tolling, Tolling
Ask not for whom the statute tolls. Ask how it tolls.

The concept of tolling is an interesting one. It applies in lots of contexts. Statutory limitations periods are one, since section 95.051 provides that certain events toll the running of time under any statute of limitations. Another common tolling instance concerns appeals. Under rule 9.300(b), and subject to various exceptions, service of a motion generally tolls the time schedule of an appellate proceeding. Other examples abound.

What does it mean, though, for a time period to be tolled? Are there different forms of tolling, depending on the context? Theoretically, "tolling" can operate in at least three different ways.

The most restrictive view of tolling would say that the deadline at issue is not enforceable while the circumstances that give rise to the tolling are in effect. So the moment the tolling ceases, the deadline resumes, unchanged. This may be thought of as an immunity theory of tolling. If the task at issue is performed after the deadline but while the time period remains tolled, then it has been timely performed.

A second view of tolling would say that the clock simply stops while the circumstances that give rise to the tolling continue, and once they cease, the clock resumes from its prior position. So if two days before the deadline to do something the period becomes tolled, and the tolling stops 10 days later, you still have two days left to perform your task. You can think of the time period as being extended by the time the period was tolled, making this an extension theory of tolling.

Perhaps the most generous view of tolling would say that once a period is tolled, the clock effectively starts over. So if you were one year into a two-year period when the period tolled, then once the tolling ends, a new two-year period begins. This is essentially a restart theory. If a tolling event occurs, then once it ceases, the period starts over.

Appellate lawyers will have an easy time applying these theories in the context of a due date for a brief. Assume that 50 days into a 70-day briefing deadline, you file a motion to supplement the record. If the court denies the motion on day 65, is the brief due in 5 days? Or can you add 15 days to the original deadline? What if the court denies the motion on day 75? Do you then have 25 more days to submit the brief, or none?

I note that in some contexts, the law providing for tolling seems to spell out how it should be applied. For instance, in the well known context of tolling after service of presuit notice in a medical malpractice case, section 766.106 states:
The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.
In that statute, the legislature seems to accept the extension theory and complements it with a 60-day minimum period once the tolling ceases.

I discuss these points as a prelude to mention of this recent decision from the Fifth District. The case involved a bank's suit on a note payable in monthly installments. The bank's predecessor had accelerated the loan in December 1998, presumably for nonpayment, but despite the acceleration, the debtor thereafter made nine partial payments on the note. The last of those payments was made in June 2000.

The bank filed suit on the note in November 2004, and the debtor defended on the basis of the five-year statute of limitations. Keep in mind that under section 95.051, partial payment on a written instrument tolls the limitations period for an action on a written instrument. But what does that mean?

The debtor argued that the limitations period began to run in December 1998 and that under the tolling statute, the period was suspended for each month where he made a payment. His nine post-acceleration payments would add nine months to the limitations period, extending that period to September 2004, but would not save the bank's November 2004 lawsuit from being untimely filed.

The bank argued that the limitations period was "tolled entirely" by each of the debtor's post-acceleration payments, so that after the debtor made his June 2000 partial payment, the bank then had a new five-year period in which to file suit. That would give the bank until June 2005, and would make the November 2004 suit timely filed.

Who won? The bank. The Fifth District held that the bank timely filed suit in November 2004. Squeezing the parties' arguments into my rubric above, it seems that in this context, the restart theory won over the extension theory.

Thursday, February 09, 2006
Certified Conflict: Prevailing Party Costs
Does a trial court have discretion in determining that a party has prevailed for purposes of awarding prevailing party costs?

In this case, the plaintiff accused a neighbor of intentionally flying his plane so close to her and her horse that the horse became startled and she fell off, causing her injury. The jury found in the plaintiff's favor but awarded her no damages. The trial court then awarded the plaintiff costs as the prevailing party. On appeal, the Fifth District affirmed, holding that the trial court had discretion to determine who prevailed in the action and that no abuse of discretion was shown.

The Fifth District also certified conflict with this decision from the Third District, where that court, sitting en banc, reversed a prevailing party costs award that had been made to a plaintiff whose $4,210 jury award was reduced to zero by setoffs. The Third District held that prevailing party costs are simply a matter of right and that the plaintiff who recovered nothing had not prevailed.

By the way, back to the Fifth District's case, can anyone tell me what the plaintiff's cause of action was? Negligence? Battery?

Judge Lawson is the newest judge at the Fifth District, and last week he authored his first written opinions -- three of them, actually, available here, here, and here. Perhaps a testament to his priorities, his bio page is not yet ready.

Questions, questions: Parental Liability
The Fifth District continues to ponder what costs can properly be imposed in connection with a juvenile proceeding. In this decision, the court certified the following to the Florida Supreme Court as a question of great public importance:
The district court affirmed the cost-as-lien order in the case.

Wednesday, February 08, 2006
Third District: Interference With Business Relations
Can you insist that a business partner fire its lawyers without exposing yourself to liability for intentional interference with a business relationship?

In this case, a patron injured at Pro Player Stadium sued both Pro Player Stadium and the company in charge of staffing and (allegedly) security at the stadium. The attorney defending the staffing company took the position that his client provided only staffing, not security, and he questioned a member of Pro Player's administrative staff about whether Pro Player had paid sales taxes associated with security personnel. Days later, the staffing company fired its counsel.

The attorney belived Pro Player Stadium demanded that the staffing company fire its counsel for exposing the Stadium's possible failure to pay taxes, and he sued for intentional interference with a business relationship. He argued he was simply providing a vigorous defense for his client and that Pro Player should not have used its influence with its staffing company to demand his termination.

The trial court granted Pro Player a judgment on the pleadings. On appeal, the Third District affirmed, holding that Pro Player's actions were not the sort of "unjustified" interference required to bring a tortious interference claim.

The moral of the story is: be careful when your defense could implicate a co-defendant, at least where the co-defendant has leverage over your client.

Second District: Say What?
When I started Abstract Appeal, "Say What?" was a title I would use for posts involving the interesting phenomenon of drug-possessing persons permitting themselves to be searched by law enforcement. Keep in mind, these cases usually rely on the officer's side of the story, since the trial court has held a hearing and expressly or implicitly determined that the officer's version of events is what happened.

We have not had one of those cases in quite a while. Until now. In this case from the Second District, we find this account:
Deputy Capitano asked Johns whether he had anything illegal on his person or in the car that the deputy "needed to know about." Johns replied, "No, I do not." Deputy Capitano then asked, "[D]o you mind if I look." Johns replied, "[N]ot at all," and held his hands up, a gesture the deputy interpreted as meaning "go ahead." Deputy Capitano found a cigar wrapper containing two small pieces of rock cocaine in Johns' change pocket and arrested him.

Third District: Personal Jurisdiction
In the first reported case in Florida to involve eBay, the Third District held that an allegedly fraudulent sale of a vehicle through eBay to a purchaser known to be in Florida gave rise to personal jurisdiction over the seller in Florida's courts. You can read the decision here.

Second District: Certiorari and the Right to Privacy
This case demonstrates the strength of Florida's constitutional right to privacy. That right is found in article I, section 23 of the state constitution.

The case involved the now familiar context of grandparent visitation -- where a child's grandparent seeks a court order allowing visitation with the child over the wishes of the parent with custody and decisionmaking authority. Florida's courts have consistently ruled that awarding a grandparent visitation, even under a statute providing for such visitation, violates the parent's constitutional right to raise a child without state interference, unless the grandparent is required to and does prove that the child will be harmed without the visitation.

What if, prior to ruling on a visitation request, a trial court orders the appointment of a "parental coordinator" who is to make recommendations on visitation and assist the parties in implementing the resulting plan so that the grandchildren can have consistent contact with the grandparents? Is that order erroneous, though it is only a precursor to an actual visitation order? Yes, said the Second District. The court held that the order was predicated on the notion the grandparents in the case were entitled to visitation.

More interesting, can the parent seek certiorari relief from a district court to quash that parental coordinator order, rather than wait for the final visitation order to be entered to take a plenary appeal? Yes, again, said the Second District. Permitting inquiry into the parent's decision-making process regarding the best interests of his or her child gives rise to an irreparable violation of the right to raise the child free of government interference, at least where there is no finding or even a claim of harm to the child in the absence of that visitation. So the Second District granted the parent's certiorari petition and quashed the parental coordinator order.

First District: Administrative Appeals
If an agency sends you two letters that indicate you must file a notice of appeal by two different dates, and you file timely with respect to the later date but not the earlier date, is your appeal timely? The First District addressed such a situation in this case and held the appeal was timely.

Second District: Temporary Injunctions
In this case, the Second District reversed a temporary injunction that prohibited the Florida High School Activities Association from preventing a private middle school student from playing in volleyball and other sports at a local public middle school.

The appellate court held that the injunction was entered without notice, which is required, and without a bond, which is also required.

Fourth District: On-line Solicitation
Here is an example of the rule of lenity in action. A man was charged with violating this Florida statute by knowingly utilizing a computer on-line service to attempt to solicit a person believed to be a child into committing an illegal act relating to sexual battery. No solicitation occurred, however, through an on-line service. Instead, the defendant used an on-line service to give his phone number to a person he thought was a child, and the actual solicitation occurred later, during a cell phone conversation.

The Fourth District held that the statute was ambiguous as to whether it encompassed solicitation occuring on a phone call initiated by an on-line chat or if the solicitation must occur on the computer. Applying the rule of lenity, the court held that the solicitation must occur on the computer, and the defendant was therefore entitled to a judgment of acquittal.

Second District: Soverign Immunity
The Florida Civil Rights Act permits employees to bring discrimination claims against employers, including state entities, but when the state is a defendant "the total amount of recovery" is capped at $100,000. Does that mean the $100,000 cap applies only to compensatory damages? The plaintiff in this case somehow made that argument, and, in short, the Second District politely rejected it. The cap applies to the whole judgment.

Second District: Rule 1.540
In this case, the Second District reminds us about the portion of rule 1.540 that allows judgments to be vacated where it is no longer equitable that a judgment or decree have prospective application. It only applies where the equities at issue come to fruition after entry of the final judgment.

Second District: Sentencing Challenges
Does the invited error doctrine apply where the appellant invites a trial court to enter an order it lacks jurisdiction to enter? Not really, as shown by this decision from the Second District.

Third District: Insurance Coverage
If a property owner rents a property only once, but does so for a two-year term, does that qualify as an "occasional" rental for insurance coverage purposes? In this case, where the "occasional" rental limitation provided an exception to a general exclusion on rental property coverage, the Third District said that was an occasional rental.

Third District: Expert Testimony
For the latest example of a case affirming the exclusion at trial of a damages expert, on grounds his testimony was speculative and unreliable, check out this decision from the Third District.

Fourth District: Unemployment Compensation
Those interested in the "family emergency exception" applicable in unemployment compensation cases may wish to check out this decision from the Fourth District.

Tuesday, February 07, 2006
Almost Back...
It's still Tuesday. Is it too late to start that gaggle? Probably. I'll blame the folks responsible for that 77-page opinion I took the time to read. More on that one very soon...

Monday, February 06, 2006
Still Pausing
Much work to be done. I'll be back tomorrow with a gaggle of posts.

Friday, February 03, 2006
Abstract Pause
I am attending the Appellate Certification Review Course in Tampa today. Thankfully, I'm already board certified, so there is no pressure on me. It should be a fun day. I will even be making a brief presentation to the attendees on recent case developments. I suppose you can guess what I use to create my materials...

Thanks for stopping by.

Thursday, February 02, 2006
Lethal Injection, Under Fire
Much attention has been given to the U.S. Supreme Court's decision last week to stay the execution of Florida death row inmate Clarence Hill. That decision was quickly followed by an additional stay in another Florida case and the court's refusal to stay the execution of an Indiana man.

The execution method at issue in all three cases is, or was, lethal injection.

The nation's high court has ordered briefing from Hill and the State of Florida. That process is scheduled to be completed by April 17. So, at a minimum, Hill appears to have obtained a reprieve until then.

Though many reports on the Hill case have been accurate, some have unfortunately stated or suggested that what is being considered is whether lethal injection violates the Eighth Amendment's prohibition on cruel and unusual punishment. Hill is making that argument, but the supreme court is not tackling that issue at this point. The high court is using Hill's case to sort out whether a procedural avenue is available for persons like Hill to challenge the intended means of their execution.

Let's back up.

Hill was sentenced to death for his role in a 1982 bank robbery. Two police officers caught and were in the process of arresting Hill's accomplice when Hill approached and shot the officers from behind, killing one of them.

You can read the Florida Supreme Court's decision affirming the imposition of Hill's death sentence here.

Hill thereafter pursued various postconviction claims in state and federal courts.

In 2000, Florida changed its means of execution from electrocution to lethal injection, although under the law a person sentenced to death may affirmatively opt out of lethal injection and for electrocution. You can read that law here.

Hill now wants to argue that lethal injection, as a means of execution, violates the Eighth Amendment. Such executions are cruel and unusual under our evolving standards of decency, the argument goes, because they subject persons to unnecessary pain.

The Florida Supreme Court has repeatedly held that the Eighth Amendment does not prohibit the use of lethal injection as a means of execution. The court first rejected an Eighth Amendment challenge on this point in this case, and you can read the court's January 17, 2006 decision rejecting Hill's particular argument on this point here.

Justice Anstead dissented in Hill's case, but not because he agreed with Hill that lethal injection is unconstitutional; rather, Justice Anstead believed an evidentiary hearing should be held to explore the matter further.

Hill then wanted to take the matter to the federal courts. Procedurally speaking, his options were limited. He could try to raise the issue in a habeas corpus proceeding, but Hill has previously raised habeas claims in federal court relating to his conviction and sentence, and federal law is strict in limiting when successive claims can be brought. Under this statute, and at the risk of oversimplifying, successive habeas claims can only be brought (1) by obtaining permission from the appropriate court of appeals, and (2) by demonstrating to that court that the claim relies on a new and retroactive rule of constitutional law or that newly discovered evidence would have resulted in a finding of not guilty. That is a tough standard, and in this 2000 decision, the Eleventh Circuit held that a lethal-injection-violates-the-Eighth-Amendment claim does not meet the statutory standards for bringing a successive habeas claim.

So habeas relief is unavailable to Hill under the Eleventh Circuit's case law.

As an alternative approach, Hill filed a civil rights claim under 42 U.S.C. section 1983 with a federal district court. The district court dismissed the suit based on the Eleventh Circuit's decision in this case, which held that a similar section 1983 claim was really just an impermissble successive habeas claim. Hill appealed that dismissal to the Eleventh Circuit, which relied on its earlier decisions to reject his request for a stay pending resolution of the appeal.

You can read that decision from the Eleventh Circuit here.

To sum that up, Hill has previously filed habeas claims in federal court and he now wants to argue that lethal injection is cruel and unusual punishment. The Eleventh Circuit has ruled that such a claim does not qualify for relief as a successive habeas claim under Congress's limitations on those claims, and that Hill's claim cannot go forward as a civil rights claim because it is really a successive habeas claim.

Hill has now appealed that decision to the U.S. Supreme Court. The court has granted certiorari, agreeing to hear the case, and has stayed Hill's execution in the meantime. The only issues before the supreme court concern whether it was appropriate for the lower courts to consider Hill's section 1983 claim a successive habeas claim and whether a challenge to a particular protocol used during the execution process is something that can be pursued in a section 1983 claim. Whether lethal injection is constitutional is not before the court. Now, that is not to say no justice will speak to that issue when the case is resolved, but, at this time, the case is merely a matter of procedure.

That the supreme court has allowed other states to proceed with lethal injections in the past week suggests there is no immediate movement afoot at the court to declare that procedure a cruel and unusual punishment. As a theoretical matter, Hill's argument on that point could succeed or fail entirely, but the only question now is whether or how a federal court is going to hear it.

As a final thought, I will add that, in the Indiana case, I understand that the state encouraged the court to hear and reject the argument on its merits, whereas in Hill's case Florida has maintained that the merits are irrelevant because there is no procedural mechanism to have the claim heard. It is interesting to consider that Florida might have avoided this supreme court proceeding if it had been willing to waive the procedural bars and move ahead to the merits of the issue.

Wednesday, February 01, 2006
Welcome, Justice Thomas
Justice O'Connor's retirement from the U.S. Supreme Court has prompted a reassignment of the justices' assigned circuits. Previously, Justice Kennedy had been assigned the Eleventh Circuit, but with Justice O'Connor's retirement he shifts to her old grounds, the Ninth Circuit. Justice Thomas is now assigned the Eleventh Circuit.

You can read today's assignment order here.

I'm sure Justice Thomas looks forward to that special kind of case only Florida sends the high court's way.

That reminds me, I feel some obligation to comment on the U.S. Supreme Court's recent decisions to review two Florida death penalty cases. There seems to be a bit of confusion about what is being considered. I will try to clear that up in my next post.

Petition Deadline
In 2004, Florida's voters chose to amend article XI, section 5 of the Florida Constitution to require constitutional amendments proposed by citizens' initiatives to be filed with the state by February 1 in the year of the general election. This year we will hold a general election, and today is February 1.

Among the requirements for a citizen's initiative is that a sufficient number of voter signatures be obtained in support of the proposal. That magic number is currently 611,009.

With that background, today's St. Pete Times has this update on the progress of three proposed amendments. According to the story:

- the marriage amendment was 200,000 signatures short as of yesterday

- the redistricting amendment that would shift that responsibility from the legislature to a commission has enough signatures

- the tobacco education amendment that would set requirements for spending state tobacco settlement money also has enough signatures

Watch those street corners today. Someone may want your signature.

CLE Time
Just a reminder for appellate fans that there are some good CLE opportunities on the horizon.

On the Florida side of things, the Appellate Practice Section of The Florida Bar will be holding its annual Appellate Certification Review Seminar this Friday, February 3, in Tampa. I'll be there and will even say a few words. The program offers 7.5 hours of CLE credit, including 7.5 hours of certification credit for appellate practice and criminal appellate, and is ideal not only for appellate specialists but also for those looking to get a little appellate water on their feet. For more information, look here.

On a more national level, the Appellate Advocacy Committee of DRI will be holding its sixth Appellate Advocacy Seminar on March 9-10, 2006, at the beautiful Pointe Hilton Tapacio Cliffs Resort in Phoenix, Arizona. The seminar's lineup of judges, practitioners, and in-house counsel is excellent and should make for a great experience. I hope to be there. For more information, check out the event's brochure, available here.

Fifth District: Disqualification of Counsel
This decision is the latest from Florida's appellate courts letting stand an order that disqualifies a party's chosen counsel. The case involved a will contest, and the attorney at issue had been involved in the will's drafting and execution and was a witness to the decedent's mental condition. The court held that rule 4-3.7 of the Rules of Professional Conduct supported the disqualification.

Interestingly, the petitioner in this certiorari case also argued that rule 4-3.7 violates the right of association found under the federal constitution. The court gave that argument more treatment than you might expect and politely rejected it.

Fifth District: Licensing
Can the Construction Industry Licensing Board deny an applicant a license simply because the applicant has been convicted of a felony (and has not had his or her civil rights reinstated)? No, said the Fifth District in this decision.

Fifth District: Attorney's Fees and Rule 1.525
Can a prevailing party recover attorney's fees for amounts that the someone else paid on that party's behalf? Yes, the Fifth District confirmed in this case involving a successful annexation challenge. Whether the third persons paying the party's costs or fees are insurers or anyone else is of no moment, the court explained.

Equally interesting, in a rare instance where rule 1.525 is construed in a manner favorable to the party seeking fees, the Fifth District stated that the rule's 30-day filing requirement would not seem to apply where a judgment already awards a party fees and costs and all that remains is a determination of amount. The court's statement was arguably dicta.

Fifth District: Service of Process
If you are a trial judge determining what to do when a plaintiff fails to serve process within the initial 120-day period, or if you are a plaintiff looking for an extension of the service time, you may wish to check out this decision from the Fifth District. The court reversed for reconsideration a decision not to extend the service period after the statutory limitations period expired and where the plaintiff's counsel had apparently made misrepresentations to the trial court.

Fifth District: Sentencing
Sitting en banc in this case, the Fifth District receded from its prior holdings that unpronounced and otherwise unobjectionable conditions of probation must be stricken from probation orders and cannot be reimposed.

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