Abstract Appeal -- by Matt Conigliaro

Wednesday, March 22, 2006

Fourth District: Contract Incorporation

This case involved a contract that, by its terms, was "subject to" the terms and conditions stated on a particular Internet page. The defendant argued that those terms included an arbitration provision, and thus the parties' dispute should be before an arbitrator, but the trial court disagreed and the Fourth District affirmed. Merely making a contract "subject to" other terms is not enough to incorporate those terms into a contract.

It may not have been an issue at that early stage of the case, but I will add that incorporating something from the Internet can be particularly troublesome, unless there are well established procedures in place for documenting and confirming a site's contents at all times. The Internet is just a virtual blackboard -- constantly subject to being erased and rewritten.

...posted by ⊥ 9:20 AM ⊥ #

Fourth District: Eminent Domain

Business damages are generally unavailable to a property owner where the government takes an entire parcel of property. What happens if the government takes an entire parcel that is one of two from which a single business is operated? Can the business recover its damages?

No, said the Fourth District in this case.

...posted by ⊥ 9:15 AM ⊥ #

Monday, March 20, 2006

Abstract Mention

Mark Lane, over at FlaBlog, seems to have liked the Construction Lessons post and had this to say about it.

Thanks.

But me, estimable? After I looked it up, Mark, and confirmed you weren't just saying I guess too much, all I can say is, well, thanks again.

...posted by ⊥ 7:14 PM ⊥ #

Certified Conflict: Settlement Proposals

It has taken me a while to get to summarizing this decision from the Fourth District. You could write a small book on the issues it raises. I have finally opted for a moderately long post, rather than a short book.

The case involved a plaintiff who made a settlement proposal to a defendant. The plaintiff intended to make the proposal pursuant to rule 1.442 and section 768.79, but, contrary to both the rule and the statute, the offer did not recite that the proposal was based on that statute. The offer did refer to rule 1.442. Ultimately, the plaintiff recovered a judgment that was sufficiently high to invoke the statute's fee-shifting mechanism, and the defendant challenged the proposal as insufficient to permit a fee award under section 768.79 because the proposal failed to reference that statute. The trial court held the proposal to be invalid.

On appeal, the Fourth District reversed. The majority opinion recognized that the Florida Supreme Court has required the rule and the statute to be strictly contrued, but the majority decided that, regardless, the proposal here satisfied both because there was only one statute -- section 768.79 -- that governs settlement proposals and provides a fee-shifting mechanism. Agreeing with a Fifth District decision on the same point, and certifying conflict with two other districts, the Fourth District held that the proposal's failure to state it was made pursuant to section 768.79 was an insignificant technical violation of the rule.

Judge Farmer wrote a special concurrence that was filled with interesting points.

He too acknowledged that the Florida Supreme Court has held section 768.79 and rule 1.442 must be strictly construed, but Judge Farmer found that, with respect to the rule, the supreme court's statements to this effect contravene its prior case law and the construction statement found in the rules themselves. So, in his view, the rule should not be strictly interpreted.

Perhaps most interesting, Judge Farmer concluded that section 768.79 is unconstitutional to the extent it requires that an offer made pursuant to that section reference that section. In Judge Farmer's view, that requirement is an unconstitutional legislative encroachment into the judiciary's exclusive authority to adopt procedural rules of court. This point allows Judge Farmer to set aside the traditional strict scrutiny given to statutes in derogation of the common law and focus on why he believes rule 1.442 should not be strictly construed.

Judge Farmer also posited that the fee-shifting function utilized by section 768.79 "is biased in favor of those who are being sued for money damages—who alone can make nominal offers merely to set up a claim for attorneys fees when the litigation is over."

Both opinions create opportunities for very interesting discussions. I will just toss out some possibilities.

First, the majority opinion appears to find that excusing "technical" violations of the rule and statute is consistent with the strict scrutiny required by existing Florida Supreme Court precedent. Whether strict scrutiny generally allows for technical noncompliance is an interesting issue that the decision does not develop.

The majority also finds the failure to reference section 768.79 to be merely technical because the only settlement proposal and fee-shifting statute presently on the books is section 768.79. It would be interesting to discuss whether a settlement proposal could still be made under rule 1.442 -- perhaps for purposes of formality, or to help establish someone's bad faith in not ending the litigation -- even if section 768.79 did not exist.

As to whether the fee-shifting mechanism of the settlement proposal statute is unfair to plaintiffs, as Judge Farmer finds, it might be noted that this case involved an offer by a plaintiff whose recovery at trial was sufficient to trigger a fee award against the defendant. Practically speaking, plaintiffs may not be able to make "nominal offers," but they can make offers at or just below the range they expect to be awarded at trial. There might arguably be as much risk to a defendant who offers judgment for a nominal amount as there is to a plaintiff who demands judgment of a fair amount.

Is section 768.79 unconstitutional to the extent it requires an offer made pursuant to that statute to state that it is made under that section? Unfortunately, neither the majority nor the concurrence develops an analysis of this very interesting issue. It might be noted that the requirement exists only in connection with attaining a statutory right to attorney's fees that otherwise would not exist. Does that give the requirement a sufficient substantive component to make it constitutionally permissible for the legislature to enact? That is a fascinating question, but I suspect that the Florida Supreme Court could resolve the existing case law conflict either way without answering it.

Finally, I note that it is difficult to see this decision as favoring either plaintiffs or defendants. The decision simply favors persons making offers to settle.

...posted by ⊥ 8:35 AM ⊥ #

Proposed Amendment Follow-Up

I received some interesting email over the weekend in response to the preceding post. Thanks for it all, especially to those who understood that I was not coming from a pro-OSP or anti-OSP point of view.

...posted by ⊥ 6:03 AM ⊥ #

Friday, March 17, 2006

Construction Lessons, And Why A Proposed Amendment Will Fail

How many people can name a rule of statutory or constitutional interpretation? How many people can discuss the pros and cons of applying any particular interpretive rule?

I am not much of a gambler, but I will venture to say that with respect to the general public, the answers are roughly in the ballpark of none and none.

Nevertheless, as this story in yesterday's St. Pete Times discussed, the Florida legislature is considering presenting Florida voters with a constitutional amendment that, if approved, would direct when a particular rule may not be used to interpret the Florida Constitution.

It gets better. Stick with me.

This issue starts with this decision released last year by the Florida Supreme Court. In that case, the court relied on the rule "expressio unius est exclusio alterius" -- a Latin phrase meaning "the expression of one thing implies the exclusion of another." The court held that because the Florida Constitution requires the legislature to provide a high quality system of free public schools, the legislature can provide only a high quality system of free public schools, not a second, alternative system.

The result was the invalidation of the well known Opportunity Scholarship Program, better known as the school voucher program, for children in failing schools.

A number of legislators apparently remain disturbed by the supreme court's decision, and undermining it is apparently the aim of this latest proposed constitutional revision.

The proposed bill is available here and would amend the state constitution to provide:

In interpreting the extent of political power vested in the legislative branch by the people, the expression of one thing does not imply the exclusion of another.

The story in the St. Pete Times indicates that the House Judiciary Committee considered this proposal on Wednesday and gave it a favorable 8-4 vote. The story also indicates that a "brief last-minute amendment" was considered to add an exception for cases in which the maxim's use is "absolutely necessary" to carry out a constitutional provision.

Seeing all this, a number of thoughts come to mind.

Is it appropriate to present voters with an amendment solely concerning constitutional construction? Perhaps, but it would seem a good deal of public education would be in order before the public could intelligently vote on such a proposal.

If the purpose of this amendment is to undo the school voucher decision, will it work? Hmmm. It would seem the doctrine most in the way of reversing the recent decision is not the expressio unius doctrine -- it is stare decisis, the principle that the court's prior decisions remain binding on the court going forward. The court has interpreted the free public schools provision to mean that the legislature cannot create a system of private schools, and in a future case involving that provision, the court might just rely on its prior decision, leaving no need to interpret the free public schools provision again. Also, it is not clear from the proposed language that it would apply to existing constitutional provisions.

Would this amendment affect provisions other than the free public schools provision? Absolutely, in the sense it applies across the board. Whether the results in other situations would favor the interests of those now proposing this amendment would remain to be seen.

Will this proposed amendment make the ballot? No, not the current proposal. At the risk of offending either the proposal's sponsors or those who would prefer to see an error stay under the radar until it is too late to fix it, or both, I will point out that the proposal's ballot summary is exactly incorrect and, in its present form, is probably not going to be allowed onto the ballot. It states:

BE IT FURTHER RESOLVED that the following statement be placed on the ballot:
CONSTITUTIONAL AMENDMENTS
ARTICLE X, SECTION 12
RULES OF CONSTRUCTION.--Proposing a revision to the rules of construction when interpreting the State Constitution. The revision prohibits the use of the maxim expressio unius est exclusion alterius when interpreting the extent of political power vested in the legislature by the people. This maxim stands for the proposition that the expression of one thing does not imply the exclusion of another.

Read that last sentence again. It is incorrect -- the maxim stands for the proposition that the expression of one thing does imply the exclusion of another. The ballot summary says the opposite.

If this is too convoluted for the proposal to be accurate, how can the public ever be expected to make an informed, intelligent decision on such an issue?

...posted by ⊥ 4:30 PM ⊥ #

Still Catching Up...

Just stating the obvious here: I'm still catching up on recent cases after a few thoroughly consuming weeks of work.

...posted by ⊥ 8:03 AM ⊥ #

Fourth District: Impossible Proof?

This case caught my eye. It involved a personal representative's malpractice claim against an estate planning attorney who allegedly failed to achieve the decedent's purpose in setting up a trust. The attorney successfully argued to the trial court that the personal representative could not rely on extrinsic evidence to prove the trust instrument did not achieve its intended purpose.

The Fourth District reversed. Extrinsic evidence may of course be used to establish that the trust document does not achieve the testator's intent. Otherwise, a complete failure to reflect the testator's intent in a trust document could never be proven.

This situation reminded me of the hearsay issue that kept creeping up in the Schiavo saga. If I received one I received 500 emails arguing that no one should have been allowed to testify to what Terri orally declared her wishes to be because that would be hearsay, notwithstanding the Florida Supreme Court's decisions that one may exercise his or her privacy rights regarding life-sustaining measures by orally declaring those wishes. I suppose the persons who took that point of view believed the law might recognize oral declarations as binding but no one can come to court to testify to what someone supposedly said. And of course that is not the case...

...posted by ⊥ 7:57 AM ⊥ #

Fourth District: Adoptions

This decision, which involved a father who claimed he was impersonated by another who consented to the adoption of a child he fathered. He wanted to move to set aside the adoption judgment, but confidentiality restrictions prevented him from obtaining so much as the case number, and you cannot move to set aside the judgment in a case you cannot identify. So he filed a petition for writ of mandamus with a circuit court, asking that the clerk be ordered to disclose the case number. The circuit court granted that petition and ordered not only the case number but other information disclosed.

The adoptive parents appealed to the Fourth District, which affirmed the order insofar as it required disclosure of the case number but reversed in other respects. The appellate court outlined procedures for how the state should be involved in such challenges as a gatekeeper of sorts to information concerning the adoption.

...posted by ⊥ 7:54 AM ⊥ #

Fourth District: Alimony

Family law fans may be interested in this decision, which involved a 25-month "Internet marriage." The couple met over the Internet, and the wife moved from the Ukraine to marry the husband. After she filed for divorce, she sought and received rehabilitative alimony to allow her to attend school. On appeal, the Fourth District reversed, holding that the now-former wife failed to demonstrate that the short marriage affected her employability.

...posted by ⊥ 7:51 AM ⊥ #

Fourth District: Election Reports

Is a qualifying fee the sort of expense that candidates for office must timely report as an expenditure? As the Fourth District explains here, yes.

...posted by ⊥ 7:48 AM ⊥ #

Certified Conflict: 3.850 Amendments

If a rule 3.850 motion for postconviction relief is denied for failure to include sufficient details of evidence to be presented, must the trial court grant leave to amend? Or can the denial be with prejudice if the motion is wholly deficient to show any aspect of a claim of prejudice? In this decision, an en banc Fourth District receded from a prior opinion and held that trial courts need not always grant leave to amend insufficient rule 3.850 motions. The Fourth District certified conflict with a 2005 decision from the Second District.

...posted by ⊥ 7:45 AM ⊥ #

Wednesday, March 15, 2006

New Chief

The Florida Supreme Court has just announced that Justice Lewis will be the court's next chief justice. His two-year term as chief will start this July.

...posted by ⊥ 9:53 AM ⊥ #

More On Judge Nesbitt

I did not notice this yesterday, but the Miami Herald ran this story on Sunday about Judge Joseph Nesbitt's death.

...posted by ⊥ 8:46 AM ⊥ #

Third District: The Revelance of Reputation

The defendant in this case was accused of lewd or lascivious exhibition on or in the presence of a child and of sexual battery on a child under 12. The trial court rejected his effort to present character witnesses who would have testified to his reputation in the community as a non-violent person and someone who respected females.

The Third District affirmed, holding such testimony would have been irrelevant. The court explained:

It was not argued that Russ had acted violently. Likewise, Russ’s reputation for respectfulness toward women had no bearing on whether he committed these offenses. As aptly stated by the Fifth District, "[u]nlike one's reputation for honesty or peacefulness, traits that might be noticed by the community, whether one secretly molests children or does not would not be openly exhibited to the community." Alvelo v. State, 769 So. 2d 476, 477 (Fla. 5th DCA 2000).

Interesting. That reasoning would seem to have application in lots of other contexts.

...posted by ⊥ 8:20 AM ⊥ #

Third District: Certiorari and Punitive Damages Claims

This case caught my attention. In short, a defendant petitioned the Third District for a writ of certiorari to quash a trial court's order permitting the plaintiff to add a claim for punitive damages.

As many know, the Florida Supreme Court has clearly held that certiorari cannot be used to challenge such rulings. So the Third District could not and did not grant the petition.

The district court did, though, explain its considerable misgivings about the correctness of the trial court's ruling. The case involved maritime law, where punitive damages are available under only very limited circumstances.

In that sense, of course, the defendant got much benefit from the certiorari petition, even though the petition was denied. Still, filing the petition seems a somewhat unusual move, given the case law.

...posted by ⊥ 8:16 AM ⊥ #

Third District: Declaratory Actions and Insurance Coverage

This decision from the Third District highlights how a motion to dismiss a claim for declaratory relief must show that the plaintiff is not entitled to declaratory relief at all. Whether the plaintiff is entitled to a particular declaration is a different issue altogether.

The case involved insurance coverage and an insured's efforts to transform a policy that did not cover a particular procedure into one that does, based on various claims regarding the agent's representations. The insurer's motion to dismiss was ultimately unsuccessful because the plaintiff pled the elements required to state the various claims presented.

...posted by ⊥ 8:10 AM ⊥ #

Third District: Proper Appeals

This decision from the Third District demonstrates how a rule 1.540 motion may be no substitute for an appeal.

...posted by ⊥ 8:07 AM ⊥ #

Certified Conflict: Prison Release Reoffenders

Is battery on a law enforcement officer a qualifying offense for purposes of sentencing as a prison release reoffender? The Third District said no in this case and certified conflict with three other districts.

...posted by ⊥ 8:03 AM ⊥ #

Third District: Class Actions

Class action fans may be interested in this decision, where the Third District reversed an order denying a motion for class certification. The case involved an insurer's improper failure to include uninsured motorist coverage when an automobile renter purchased excess coverage. The certification motion had been denied when the trial court found the plaintiff lacked standing to represent a class. The district court reversed only that determination and did so over a detailed dissent.

...posted by ⊥ 8:00 AM ⊥ #

Tuesday, March 14, 2006

Judge Joseph Nesbitt Passes

Judge Joseph Nesbitt, who served on the Third District from 1979 to 1999, passed away this past Saturday.

Judge Nesbitt will be fondly remembered for his tremendous service to the judiciary. The reach of his impact includes my firm's appellate practice group. Two of our attorneys, including our practice group leader, clerked for him.

...posted by ⊥ 10:10 AM ⊥ #

Second District: Patience

This decision from the Second District shows a trial judge who may have been a bit too offended by what he perceived to be a deceitful presentation in a postconviction proceeding.

The case also supports the well known rule that whenever a trial judge announces something to the effect "I don't care if they reverse me," reversal is rather likely.

...posted by ⊥ 10:06 AM ⊥ #

Second District: Two Out Of Three Ain't Bad

Florida law provides that a motor vehicle must be equipped with two or more stop lamps that emit red or amber light capable of being seen for 300 feet in normal sunlight.

Are you in compliance with this law if your vehicle has three brake lights and one of the "traditional" ones (i.e., a taillight) is burnt out but the other two work?

Yes, as the Second District explained in this case.

Judge Casanueva's observation that the undisputed facts in the case "clearly illuminate the issue" should not go unnoticed...

...posted by ⊥ 10:02 AM ⊥ #

Third District: Outrageous Conduct

Those interested in the intentional infliction of emotional distress tort may wish to check out this decision, where the Third District yet again showed the high bar set for such claims.

The court affirmed the dismissal of an outrage claim that the defendants falsely reported to the Division of Insurance that the plaintiff had committed fraud. That report led to the plaintiff's arrest, but the anxiety and stress of those events were not based on "outrageous conduct," as the law defines that term.

It's a high bar.

...posted by ⊥ 10:00 AM ⊥ #

Second District: Insurers and Privilege

When an insurer hires counsel to defend an insured, a somewhat unique tripartite relationship is created. Suppose the insurer provides defense counsel with the insurer's claims file for the insured. Can the insurer prevent the insured from viewing it or giving it to another attorney hired by the insured to help defend the same suit?

That is essentially what was asked of the Second District in this case, and the court said no to both questions. The court held, "Precluding a client from inspecting all materials held by its attorney that were provided by third parties would interfere in the relationship between attorney and client to an unacceptable degree." The third party was the insurer.

More interesting to some might be that this decision came in the form of an order granting a petition for a writ of certiorari, and the only authorities cited for the result were the bar ethics rules and an ethics opinion, none of which was directly on point. In that sense, this decision should remind folks how broadly defined the "essential requirements of law" can be in certiorari cases.

Also interesting might be the court's suggestion, in a footnote, that disqualification may be in order if disclosing the materials leads to an attorney's conflict of interests.

...posted by ⊥ 9:55 AM ⊥ #

Third District: Dismissals

Are orders dismissing an initial complaint with prejudice ever affirmed? One was in this decision by the Third District.

...posted by ⊥ 9:50 AM ⊥ #

Second District: Premises Liability and New Trials

Premises liability fans may wish to check out this decision from the Second District. In reversing a new trial order, the court discussed how a dangerous condition's non-transitory properties could give rise to constructive knowledge of the condition's presence. At issue was a metal bench that apparently protruded onto a school's running track and which a runner struck.

The case also has a discussion of how a trial court cannot grant a new trial simply because the verdict is said to be "contrary to the evidence and to the law." The verdict must be contrary to the manifest weight of the evidence, and the trial court's order must explain this point with some detail.

Interestingly, the defendant in the case had not moved for a directed verdict, but the defendant requested a new trial on grounds that, in essence, no evidence supported that the premises owner had knowledge of the dangerous condition. Perhaps because the evidence in the case was satisfactory, the appellate court never directly addressed whether a verdict based on evidence that fails to show an essential element of the required proofs can be said to be contrary to the manifest weight of the evidence.

...posted by ⊥ 9:48 AM ⊥ #

Second District: Failure to Prosecute

In this decision, the Second District again reminded trial courts that setting cases on a trial docket is not a responsibility that can be placed upon the parties. Once a party files a proper notice of readiness for trial under rule 1.440(b), it is the trial judge's duty to set the matter for trial.

...posted by ⊥ 9:43 AM ⊥ #

Second District: Ineffective Assistance

Like the Fourth District did last year in this case, last week the Second District released this en banc decision altering the way the court considers post-conviction claims of ineffective assistance of counsel.

With respect to unpreserved errors that would have warranted a new trial had they been preserved, the court held that the defendant must show a reasonable probability that, but for counsel's errors, the result of the trial court proceeding would have been different.

Florida's courts thus continue to focus on refocusing the prejudice inquiry of an ineffective assistance of counsel claim.

The Second District's decision notes that the Eleventh Circuit disagrees to the extent that court permits the ineffective assistance inquiry to consider whether the outcome on appeal would have been more favorable to the defendant had trial counsel's actions been different.

...posted by ⊥ 9:40 AM ⊥ #

Second District: Lis Pendens

Quick, property experts: what is the proper method for an appellate court to review an order discharging a lis pendens?

In four of the five district courts of appeal, the answer is certiorari; in the remaining district, it is an interlocutory appeal. Check out this decision from the Second District for the breakdown of districts. The decision also holds that a party not named in a case and which appears solely to move to dissolve a lis pendens filed against its property does not make a general appearance in the proceedings and thereby subject itself to the court's full jurisdiction.

...posted by ⊥ 9:37 AM ⊥ #

Third District: Workers' Compensation

For an interesting (and divided) decision on whether an alleged injury to an employee was substantially certain to occur, thus allowing the employee to avoid the employer's otherwise applicable workers' compensation immunity from tort suits, check out this decision from the Third District.

...posted by ⊥ 9:34 AM ⊥ #

Second District: Jury Instructions and the Lemon Law

Jury instructions fans may wish to tuck away this recent decision from the Second District. The court found reversible error in the case's jury instructions as they related the plaintiff's burden to prove a defect or condition that substantially impaired a vehicle's use, value, or safety. The error came in a sentence that told the jury a condition that annoys or is unacceptable to the owner can be evidence of a defect or condition that meets the plaintiff's burden. That was a correct statement of the law, but, as the Second District held, it improperly emphasized the plaintiff's evidence in the case.

Lemon Law fans may be interested in the decision's holding that a successful Lemon Law plaintiff must furnish the defendant with title and possession to the vehicle. That is not an optional remedy for a jury to award. It may also be noted that the defendant in the case was only the company that made the vehicle's transmission.

...posted by ⊥ 9:32 AM ⊥ #

Questions, questions: Sexual Battery

The ever-changing statutory scheme governing sex-related crimes prompted the Second District in this case to certify the following to the Florida Supreme Court as a question of great public importance:

MAY THE CRIME OF LEWD OR LASCIVIOUS BATTERY PROHIBITED BY SECTION 800.04(4), FLORIDA STATUTES (2002), BE A PERMISSIVE LESSER INCLUDED OFFENSE OF THE CRIME OF SEXUAL BATTERY CHARGED PURSUANT TO SECTION 794.011(3), FLORIDA STATUTES (2002)?

The Second District answered this question in the affirmative, based on recent statutory amendments.

...posted by ⊥ 9:30 AM ⊥ #

Monday, March 13, 2006

Second District: Legal Experts

Can you present an expert who opines that when the law is properly applied an issue of fact exists for a jury?

No.

Such an opinion crept its way into this case, and the Second District reversed.

...posted by ⊥ 8:40 AM ⊥ #

First District: Search and Seizure

This case from the First District makes for a simple Fourth Amendment trivia question.

An officer spots and pulls over a car that appears not to have a license tag. While approaching the stopped vehicle, the officer sees that a temporary tag is properly displayed. Nonetheless, the officer proceeds to the driver's window, where the officer requests the driver's identification and smells marijuana. A search of the vehicle reveals a small horde of illegal drugs.

Should the evidence be suppressed because the officer lacked probable cause to proceed with the stop?

No. While the officer should not have asked for the driver's identification after the basis for the stop was determined to be unfounded, the officer was permitted to speak to the driver and inform him of why he was pulled over. At that point, the officer would have smelled the marijuana, and events would then follow as they occurred. Discovery was inevitable under the circumstances.

...posted by ⊥ 8:36 AM ⊥ #

Questions, questions: Strict Liability

Here is a decision that tort fans and especially products liability fans will find particularly interesting. The case involved the sale of a used motor home that was allegedly built based upon a defective design. Had the vehicle been new, strict liability would have been available to bring a claim against the company that sold the vehicle. But the vehicle was used. The Second District discussed the law on strict liability, including how two Florida district courts of appeal have previously held it does not apply to sellers of used goods and how, nationally, states are split on the issue.

Ultimately, the court declined to extend strict liability to sellers of used products but certified the following to the Florida Supreme Court as a question of great public importance:

CAN A FLORIDA COURT IMPOSE STRICT LIABILITY ON THE SELLER OF A USED AND RECONDITIONED MOTOR VEHICLE THAT IS DEFECTIVELY DESIGNED AND UNREASONABLY DANGEROUS?

The issue turns heavily on public policy considerations, or at least considerations of how heavily public policy should influence such developments. Expect the high court to hear from an amicus curiae or two on this one.

...posted by ⊥ 8:32 AM ⊥ #

Second District: Section 57.105 Fees

The post-1999 version of section 57.105 is intended to allow fees to be assessed against a party and its attorney when an inadequate factual basis exists to support a claim. While the standard is no longer that the claim must be "frivolous," that term continues to appear in discussions on the subject -- like it did in this decision from the Second District and, to a lesser extent, this one as well. In both cases, the court reversed attorney's fees awards entered under section 57.105.

...posted by ⊥ 8:29 AM ⊥ #

Second District: Hey, Legislature!

In this decision, the Second District denied a local public defender's certiorari petition to block a circuit's administrative order permitting thorough electronic recording of courtroom activities in lieu of using court reporters. But the Second District saw some concerns with such electronic recording and offered a couple of suggestions.

First, the court suggested that the Florida Legislature consider a statute ensuring that authorized electronic recording in courtrooms does not contravene any existing criminal statutes under Chapter 934.

Second, to address the potential problem of privileged conversations being intercepted, the court suggested that the Florida Supreme Court consider amending rule 2.051 to provide that matters recorded by an electronic court reporting system that are not intended to be part of the record of the judicial proceedings shall be deemed confidential.

Does anyone remember Dean Wigmore's very harsh rule on waiving attorney-client privilege? His view was, in essence, that if a privileged conversation could be overheard, even by means of stealth, then the privilege was lost. What would he think today?

...posted by ⊥ 8:27 AM ⊥ #

First District: Jury Verdicts

If a jury improperly deliberates before being instructed to do so at the end of the trial, do those deliberations inhere in the verdict? In a word -- no. The First District's decision discussed relatively new rule 3.575 of the criminal procedure rules and allowed a motion on juror misconduct to go forward in the absence of sworn allegations.

...posted by ⊥ 8:25 AM ⊥ #

First District: Arbitration

Is filing a lawsuit over a dispute inconsistent with wanting to arbitrate that dispute? The First District thought so in this case, which happened to involve a handful of lawyers litigating against each other.

...posted by ⊥ 8:22 AM ⊥ #

Second District: Attorney's Fees

Is a final order assessing attorney's fees facially sufficient if it recites both the reasonable number of hours expended by counsel and a reasonable rate for that time? Not necessarily. The order may also be required to indicate the appropriateness of any reduction or enhancement factors, as the Second District explained in this case.

...posted by ⊥ 8:19 AM ⊥ #

Judge Villanti: Probate

Can the solicitation of court approval in probate cases be deemed a dissipation of estate assets if the solicitation is unnecessary? Perhaps so, suggested Judge Villanti in a special concurrence in this case. Judge Villanti also pointed out that receiving "authorization" for actions already approved by statute does not insulate a personal representative from personal liability or eliminate the requirement that personal representatives act reasonably and for the benefit of the interested persons.

...posted by ⊥ 8:17 AM ⊥ #

First District: Constitutional Silence

The majority opinion in this decision from the First District grants a second-tier certiorari petition without mention of the need to resolve any constitutional issues against the respondent. The dissent laments that denying the petition would have obviated the need to decide the "substantial constitutional questions raised in the answer brief." Yet the dissent does not identify those questions either. Interesting.

...posted by ⊥ 8:15 AM ⊥ #

Second District: Hearsay

This decision from the Second District provides a good example of hearsay that does not meet the "excited utterance" exception. The case also points out a significant difference between Florida and federal procedural law with regard to criminal trials: in Florida, deficiencies in the state's evidence cannot be corrected by the defense's presentation of evidence.

...posted by ⊥ 8:12 AM ⊥ #

First District: Untimely Appeals

Have you ever used a circuit court clerk's docket page to calculate the 30-day period in which a notice of appeal may be filed? Have you ever wondered what happens if the docket is incorrect, and day 30 by your calculations is really day 31?

As this decision shows, an untimely appeal is an untimely appeal. The case also suggests, however, that an untimely appeal based on an erroneous docket entry may be resurrected through a rule 1.540 motion.

...posted by ⊥ 8:10 AM ⊥ #

Second District: Arbitration

The Second District has recently released two decisions that illustrate the significance of an arbitration agreement's specific language.

In this case, the agreement said nothing about who determines the arbitrability of issues between the parties, and the court held that the trial court makes such determinations in the absence of contrary language in the agreement. (The court also confirmed that punitive damages are generally available in an arbitration involving claims where punitive damages may be recovered.)

In this case, on the other hand, a very broad arbitration agreement ensured that the arbitrator would decide the scope of arbitrable issues.

...posted by ⊥ 8:08 AM ⊥ #

Second District: Certiorari

In a criminal case, a petition for a writ of certiorari may be the only means the state has to undo what it believes to be an erroneous pretrial ruling on a critical matter. This decision from the Second District provides a good example of how limited that review can be. The district court declined to enter the requested writ, but it did suggest -- twice -- that it would not have entered the order entered below.

...posted by ⊥ 8:06 AM ⊥ #

Back In Blog

Many thanks to those who have continued to check this site, looking for signs of life. Last week I again found myself too deep in work to emerge even for brief moments. The good news is that it was fascinating work. The bad news is that I am quite behind on discussing recent events in Florida law.

I will start catching up this morning with state and federal cases that caught my attention. I expect it be a few days before I am current.

Once again, thanks for stopping by.

...posted by ⊥ 8:04 AM ⊥ #

Friday, March 03, 2006

Can They Do That?

Yesterday, a loyal reader pointed me to this story from CNN.com. The story relates the work underway to create Ave Maria, a town to surround the also underway Ave Maria University, in eastern Collier County. The university will be the first Catholic university built in the United States in decades, and the town is apparently planned to be a bit Catholic too.

The reader asked my thoughts on the matter. Can there be a Catholic town, with no condoms in stores and no X-rated channels on the local cable network?

I think the answer depends on how things actually play out. Of course the federal and state constitutions would prohibit a municipality from deeming itself Catholic and directly or indirectly promoting the Catholic faith. But there is a constitutionally significant difference between promoting a religion and promoting the morals or values one or more religious faiths embrace. It may be possible for private landowners to create a locale that follows the same moral principles that a particular religion would follow, without any constitutionally meaningful religious connection. I suspect such regions may currently exist throughout the country, perhaps from the dry counties of some southern states to the heavily Amish areas of the north.

Of course, as they say, the devil is always in the details.

...posted by ⊥ 8:27 AM ⊥ #

Thursday, March 02, 2006

New Watchdog Group

Today's St. Pete Times has this interesting story about a new organization watching for so-called frivolous lawsuits: Florida Stop Lawsuit Abuse.

Unusually imperative name, no?

The story also discusses an effort underway in Tallahassee to modify the joint and several liability doctrine -- the common law rule, which is already rather modified by Florida's statutory law, that makes each person who is liable for a portion of an injury responsible for all damages associated with that injury.

...posted by ⊥ 9:17 AM ⊥ #

First District: Rickey Henderson Fan?

You may recall Rickey Henderson's comments about Rickey Henderson. If you do, you might think of them when you read the start of this decision from the First District.

...posted by ⊥ 9:10 AM ⊥ #

First District: Defaulting Damages

If I file a complaint against you and allege that your, say, breach of contract has resulted in $1234.56 in damages, am I entitled to that amount if you default by not responding to the claim?

No. Amounts of damages are not admitted by a default, as the First District explained in this decision. If the amount is disputable, the defendant can try the issue.

...posted by ⊥ 9:05 AM ⊥ #

First District: Attorney's Fees

Family law practitioners may wish to check out this decision, where the First District highlights the importance of requesting attorney's fees as early as possible.

...posted by ⊥ 9:01 AM ⊥ #

First District: Appeal Or Petition?

If a Judge of Compensation Claims orders a claimant to submit to a vocational evaluation, and the claimant wishes to challenge that ruling, is the proper vehicle a petition for certiorari or a non-final appeal? The First District notes the issue in this case, without resolving the question.

...posted by ⊥ 8:58 AM ⊥ #

First District: Hearsay

Hearsay testimony not fitting some exception to the general hearsay prohibition cannot form the entire basis for finding probable cause at an adversary preliminary hearing. In this decision, the First District seemed quite concerned about how this is not well enough understood.

...posted by ⊥ 8:53 AM ⊥ #

First District: Judicial Bypass For Terminating Pregnancies

This is one of few written decisions in Florida involving an appeal from a denial of permission to terminate a pregnancy without parental notification. The First District reversed 2-1, with no written dissent.

...posted by ⊥ 8:49 AM ⊥ #

Back In Blog

No, I didn't get married again. Work mushroomed, keeping me away. Glad to be back.

...posted by ⊥ 6:43 AM ⊥ #