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Thursday, April 27, 2006
Joint and Several Liability: Relic
Yesterday, Governor Bush signed this bill into law. It eliminates Florida's last remnants of the common law doctrine "joint and several liability."

You can read about it in this story from today's Tallahassee Democrat.

As in that story, and I believe every other paper's stories that I read as this bill was wending its way along, the event is described as a battle waged between big business and the state's plaintiffs' lawyers, with business coming out on top after a decades-long fight.

There is some truth to that, so it is accurate in a sense. But it is also incomplete, and I think the public would benefit from a bit more discussion of how the law works (or has worked) in this area and why some say this is an eminently fair change in the law.

Joint and several liability is a concept that makes every person who is responsible for another's injuries responsible for all damages associated with those injuries. So if a plaintiff has been injured by four people and, all told, his damages total $1 million, all four are liable for the entire $1 million. Now, the plaintiff can only recover a total of $1 million, so he cannot collect $1 million from each of them, but he could collect $1 million from one, or $500,000 from two, or any other division he would like to pursue. Practically speaking, it will usually be easiest to collect the entire amount owed from the wealthiest defendant, leaving the poorer defendants off the hook.

That system was arguably unfair to defendants, in the sense that if one of the four was only slightly at fault and another was enormously at fault, they both bore the entire financial responsibility for the plaintiff's entire damages.

What perhaps balanced this unfairness to defendants was the equally if not more so unfair common law doctrine of contributory negligence. Under that doctrine, a plaintiff who had any fault in causing his or her own injuries could not recover for those injuries from anyone else who was also responsible.

So, if you were in a car accident and were slightly at fault, then you could not recover anything from someone else who was almost entirely at fault. But, if you were faultless and two people were at fault, you could collect your entire damages from either of them, based on the notion of joint and several liability.

Florida's legal system abandoned the doctrine of contributory negligence decades ago on grounds it was too inequitable. It was replaced by a system of comparative fault, by which a jury determines the percentage of fault for everyone involved. If you were in a car accident and were 20 percent at fault, and two other drivers were each 40 percent at fault, then you can recover only 80 percent of your damages from them. You are responsible for the 20 percent you caused.

Yet while the system tossed contributory negligence aside, joint and several liability remained, although a number of exceptions to its applicability appeared over the years. That led to situations where, say, two defendants are 90 and 10 percent responsible for an accident, and the second one still has to pay the plaintiff 100 percent of his or her damages. That can be considerably unfair.

The bill signed into law yesterday in essence removes the statutes that kept joint and several liability in place for one situation or another. Now, when someone is accidentally injured, money damages get sorted out by dividing the total liability among everyone responsible according to their percentages of fault. You are responsible to pay for the amount of damages you are responsible for having caused.

That has an awfully fair sound to it.

U.S. Supreme Court: Firing Away At Lethal Injection
Yesterday, the United States Supreme Court heard oral arguments in the case of Florida death row inmate Clarence Hill. The argument reinforces a good lesson for appellate advocates: be ready for everything at an argument, even issues that are not squarely before the court.

Hill's case concerns the procedures surrounding habeas corpus challenges, not the constitutionality of Florida's lethal injection method of capital punishment. Nonetheless, as you can read in these stories in today's Miami Herald, Tallahassee Democrat, and St. Pete Times, the justices yesterday peppered attorneys for Hill and the state with questions about the method's constitutional propriety.

For a detailed look at the Hill case, including his prior Florida cases and the decisions that led to the current appeal, check out this Abstract Appeal post from early February.

Wednesday, April 26, 2006
Eleventh Circuit: .500 Yesterday
The United States Supreme Court released two opinions yesterday, and both cases arose out of the Eleventh Circuit. The high court reversed one decision and affirmed the other.

The reversal came in this case, where the court rejected the notion of any residual immunity that would protect political subdivisions, such as counties, from suits where they do not qualify as "arms of the state" for Eleventh Amendment purposes.

The affirmance came in this case, where the court held that trial courts in federal habeas cases have discretion to raise a time bar sua sponte where the state miscalculated the limitations period applicable to the petitioner's claim. In the case, a magistrate judge raised the miscalculation, ordered the petitioner, Day, to show cause why his claim should not be dismissed, and recommended dismissal to the district court, which agreed. The Eleventh Circuit affirmed.

The second case takes an interesting twist in the opinion filed by Justice Stevens and joined by Justice Breyer. Though they disagreed on the merits, those justices agreed that the court should not enter judgment and labeled their opinion a dissent from the judgment. Their point was that the court should resolve the case but withhold judgment until the court decides another case pending this term -- a case out of the Eleventh Circuit that will decide whether claims such as the petitioner's are actually time barred. (The issue concerns the Eleventh Circuit's view that the time in which a state postconviction proceeding is "pending" for purposes of starting a federal habeas claim's limitations period is not extended by the 90 days in which U.S. Supreme Court review may be sought from the state court's final decision.) They also suggested that the Eleventh Circuit not dispose of the current case on remand until the high court decides the remaining case. Apparently they hold out hope that Day will still get his day...

Hey, Civil Rules Committee!
Assume a plaintiff files a complaint that seeks a jury trial. The defendant fails to respond and a clerk's default is entered. The plaintiff then moves to withdraw the jury demand, and the defendant makes not a peep. A bench trial is held and a significant damages award is made. Afterwards, the defendant appears and requests a new trial, claiming he never gave up his right to a jury trial -- a right the plaintiff triggered by demanding a jury trial in the first place. The trial court denies that motion and the defendant appeals.

Is that reversible error? Yes, said the Second District in this case. Rule 1.430(d) requires the consent of the parties before a jury demand may be withdrawn, and the defendant took no affirmative step that could be seen as consenting to the withdrawal. Silence or inaction alone is insufficient to constitute consent.

Judge Altenbernd authored a concurrence explaining that the reversal is properly predicated on rule 1.430(d), not a constitutional right to a jury trial. In his view, the defendant's acquiesence could be seen as a waiver of the jury trial right for constitutional purposes, but rule 1.430(d)'s text calls for "consent," not waiver. Judge Altenbernd also observed that the subsection is nonetheless labeled "Waiver," and he encouraged the Civil Procedure Rules Committee to consider whether the rule's language should be amended.

Second District: Curing Single-Subject Violations
This case concerned whether a statute governing the revocation of drivers licenses was legally in effect at the time the defendant drove his vehicle supposedly without a valid license. The statutory law at issue had been declared invalid based on a single subject violation, but prior to the defendant's excursion in this case, the legislature readopted the statute with its 2003 wholesale recodification of Florida's statutes, curing the problem surrounding the law's original adoption. As a result, the statute was lawfully in effect at the relevant time, and the Second District reversed the trial court's decision to dismiss the charge against the defendant.

The court took the opportunity to discuss the recodification rule. I commend that discussion to anyone interested in single subject requirements and note that the opinion hits the mark with its observation that the wholesale recodification of Florida's statutes is, in some respects, the ultimate act of logrolling.

If I could add a thought to the court's comments, it would be that perhaps the recodification rule's most useful purpose is to create a limitations period of sorts no greater than the interval between regular recodifications. By recodifying the state's statutes every year or so, the number of persons affected by a given law who might challenge its validity under single-subject principles becomes both fixed and rather low, and some single subject violations may never be challenged simply because no one with an eye toward that concern became affected by the law in the narrow window prior to recodification. That result is surely a convenience for the legislature and the judiciary.

Second District: Rule 1.525, and Certified Conflict
The Second District has held that a motion for rehearing does not toll the time in which a motion for attorney's fees must be filed under rule 1.525. But what if the motion results in an amended judgment? Does a new 30-day window open up in which to file a motion for fees? The Second District said no in this case.

The court also re-certified conflict over whether rule 12.525, which makes rule 1.525 inapplicable in family law matters, is retroactive.

Monday, April 24, 2006
Questions, questions (and conflict): Amendment 7
Florida's voters approved Amendment 7 in the 2004 general election. That amendment created new article X, section 25 of the Florida Constitution, which in essence provides actual, prospective, or previous patients of a doctor a right of access to any records relating to that doctor's adverse medical incidents.

Shortly after the amendment passed, the legislature enacted section 381.028, which provides detailed regulation over how article X, section 25's right of access may be exercised.

The statute was quickly challenged on grounds that its terms unduly restrict the broad right granted in the new constitutional provision. Two district courts have recently issued decisions on those challenges and the amendment's reach -- one last month, and one this past Friday. The decisions agree on some key points and differ on at least one fundamental issue.

Before getting into the details, and for the benefit of those unfamiliar with the meaning behind all this controversy, let me take a few moments to discuss some background.

Florida law has long implemented an intricate peer review system by which medical doctors are reviewed, and given credentialing and other privileges necessary to practice medicine, based on the observations of other doctors. The theory behind this system is that no one understands better than doctors themselves whether someone knows how to practice medicine, or what went wrong in a particular case. To encourage candid reporting regarding incidents, skills, and aptitude, Florida's statutes include a variety of privileges and exemptions that make these documents confidential -- basically undiscoverable and unusable in court.

In short, the system struck a balance that favored confidentiality in order to encourage doctors to come forward and be honest in evaluating their colleagues.

When Florida's doctors and plaintiffs' lawyers declared legal war on each other in 2004, each side advanced proposed constitutional amendments designed to damage the other's interests. One of the amendments proposed by the plaintiffs' lawyers was Amendment 7, which would open up the previously confidential record system so records relating to "adverse medical incidents" could be obtained. The proposal was promoted on the notion that the public should be given a right to know about a doctor's past results.

The promotion worked. The amendment passed.

Two general issues now face the judiciary: what does article X, section 25 mean, and is section 381.028 a permissible effort to implement the new right of access?

Last month, the Fifth District released this decision regarding the new provision and the new statute. The Fifth District decided that the new right of access preempts the statutory privileges that have previously kept records relating to adverse incidents from being discovered in litigation, and to the extent section 381.028 curtails that right by interpreting it more narrowly than the constitutional language permits, it is unconstitutional. The court was not specific about the particular aspects of the statute that conflict with the constitutional right.

The Fifth District also determined that the amendment was self-executing, meaning that the right it created did not need to be implemented by a statute. Finally, the court decided that the new right does not retroactively apply to records that were created under the old system of confidentiality -- so the right of access applies only to records created on or after article X, section 25's effective date, November 2, 2004.

Acknowledging the statewide impact of these issues, the Fifth District certified the following to the Florida Supreme Court as questions of great public importance:


This past Friday, the First District released this decision concerning much the same issues. The First District determined that article X, section 25, is self-executing and that section 381.028 unconstitutionally restricts the right of access. The court gave four particular examples of such restrictions. The court also rejected an argument that the restrictions are necessary to prevent vested rights from being impaired and, along the same lines, determined that the right of access applies to records created before the amendment's effective date.

On that last point, Judge Ervin dissented. He agreed with the Fifth District that the amendment should apply to records created after the amendment's effective date.

This controversy now makes its way to the state supreme court.

I should point out that both district court decisions focused on access to records. Neither concerned an issue that will soon be on the block: whether article X, section 25, preempts the statutory restrictions that make the previously confidential records inadmissible as evidence in court.

First District: Dependency
If anyone has ever wondered what happens if the Department of Children and Families goes a bit far in attempting to declare children dependent on the state, and in effect declaring their parents consequently unfit, perhaps the First District's decision in this case will offer some assurances that the judiciary serves as a check on the state's authority.

As Chief Judge Kahn aptly put it, "The State of Florida does not demand perfection from its families."

Fifth District: Arbitration
Arbitration remains a hot topic in Florida law -- aguably the hottest topic.

You may recall this post from earlier this year, which concerned this decision by the Fifth District.

The case involved arbitration agreements between a brokerage and an investor. One of those agreements provided, "I agree that all controversies which may arise between us concerning . . . my account . . . shall be determined by arbitration."

The broker handling the account left the brokerage, and the investor agreed to use the broker's new brokerage firm. Thereafter, the investor's account lost a substantial amount of money, and the investor sued the original brokerage, claiming it breached its fiduciary duties to the investor by (1) failing to supervise the broker's management of the investor's accounts, (2) failing to warn the investor, before it transferred its accounts, that the broker's trading on them was inconsistent with the investor's investment objectives, and (3) failing to warn the investor that the broker handling the accounts had a "significant regulatory history."

The issue in this case was whether the claims were within the scope of the parties' arbitration agreement. The trial court sent the case to arbitration, following which the court confirmed the arbitration panel's decision dismissing or denying each of the investor's claims. On appeal, the Fifth District reversed, holding that the claims were not arbitrable in the first place. The court later denied motions for rehearing and rehearing en banc but granted a motion for clarification.

The court did not change its decision. It still held the dispute is not within the scope of the arbitration agreement.

So, I still find the decision noteworthy in two respects.

First, the case points out that failing to take an interlocutory appeal of an order compelling arbitration until the arbitration is held and a final order is entered is not a waiver of the challenge to arbitration -- at least, not in Florida's state courts.

Second, the case demonstrates what some might characterize as a reluctance to hold claims within the scope of an arbitration agreement. The court concluded that the parties must have intended to arbitrate only claims that relied on the investor's financial agreements with the brokerage or turned on a construction of those agreements. Thus, the court held that breach of fiduciary duty claims were not within the arbitration agreement.

Unfortunately, even in the clarified opinion, the court never explained how the arbitration agreement's language that the parties would arbitrate "all controversies . . . concerning . . . my account" did not include claims that the brokerage violated fiduciary duties concerning the account. True, the claims were based on duties arising from the common law, not the contracts, and the court construed the claim to involve losses suffered only after the investor switched brokerages, but as the court itself described the claims, they concerned the original brokerage's account.

Fifth District: Attorney's Fees
Florida's appellate courts will not review a decision determining entitlement to attorney's fees until the lower court determines the amount of the award. Where an order finding an entitlement to fees is appealed before the lower court rules on the amount, the entitlement issue is generally held not to be ripe for review.

What if the lower court later determines the amount and that order goes unappealed -- can the appellate court consider the fees issue in an appeal from the first order, the one determining entitlement?

I am not sure there is a rule to be drawn here, but that is what happened in this decision by the Fifth District. The court heard an appeal in a dissolution case, and having decided to reverse the equitable distribution and alimony awards, determined it would reverse the attorney's fees entitlement decision as well.

Bear in mind that the court did not review the amount of fees awarded.

Questions, questions: Prison Liens
Once again, the First District has certified the following to the Florida Supreme Court as a question of great public importance:
The First District's decision is available here.

Fifth District: Translated Transcripts
The next time you find yourself facing an uncertified English translation of a recording made in another language, do not rely on a mere objection to the unverified interpretation. The defendant in this case tried that approach, and the Fifth District rejected it. The court found the error harmless because no challenge was made to the accuracy of the translated transcript.

Fifth District: Public Records
The public records saga between the Daytona Beach News-Journal and Memorial Hospital is a well known one. About 15 years ago, the courts determined that Memorial was subject to Florida's public records laws because it operated under a lease from the West Volusia Hospital Authority. In this case, the Fifth District considered whether Memorial was still subject to the public records laws after the Authority sold the hospital to Memorial, subject only to covenants that Memorial maintain the hospital according to certain contractual language.

The court held that the sale changed the result. A key issue was whether the court should apply the "totality of factors" test used to examine whether a private entity is "acting on behalf of" a public agency, or the "delegation" test, which holds a private actor bound by public records requirements if the private actor has accepted a complete delegation of a governmental obligation.

The court decided that a complete delegation did not occur and thus the totality of factors test applied. Conducting that exam, the court held that Memorial was not acting on the Authority's behalf, and thus Memorial was no longer subject to the state's public records laws.

Fifth District: Delayed Rulings
Can the delay associated with a ruling, in and of itself, give rise to reversible error? No, said the Fifth District in this case. There must be something else indicating that something is "seriously amiss" on the merits, such as "conflicts or inconsistencies between the trial court's findings at the time of trial and the ultimate judgment, or significant findings not supported by the record."

Fifth District: Unwed Biological Fathers
Anyone looking for an interesting legal topic that could use some public attention might wish to check out this decision from the Fifth District. The court examines a case involving Florida's Putative Father Registry.

Perhaps you've never heard of Florida's Putative Father Registry? That's why some public discourse might be a good idea.

In short, any unwed biological father should register as a putative father. Not doing so may lead to a judicial finding that the man failed to take timely steps to establish paternity. Such a finding can allow a court to disregard what would otherwise be the man's parental rights, paving the way for the child to be adopted.

Fifth District: Tax Exemptions
Tax fans may enjoy the thorough ad valorem tax exemption discussion found in this decision from the Fifth District. The court held that an apartment complex owned by a municipality and used for student housing near a university was not being used for a municipal or public purpose, as would be required to claim the exemption.

Fifth District: Search and Seizure
Fourth Amendment fans may be interested in this brief decision from the Fifth District. The court held that while the defendant's girlfriend had authority to consent to a search of the hotel room she shared with the defendant, she could not authorize a search of the defendant's suitcase and shaving kit which were found in the room.

I made good progress yesterday getting through many of the notable recent cases I intend to discuss. It's all part of catching up. Someone remind me not to get too busy again...

Time to get those posts up.

Sunday, April 23, 2006
Big Day
Today is Florida cases catch-up day. It's time to get current.

Friday, April 21, 2006
Posting Delay
Posts will be delayed until later. It's all (Professor) Steve Brannock's fault, trust me.

New Judgeships?
Today's Tallahassee Democrat notes here that the state house has passed a bill that would create 67 new judicial positions.

Thursday, April 20, 2006
Miltary Funerals: Tact Versus Taliban
Apparently the Westboro Baptist Church's efforts to disrupt military funerals have prompted Florida lawmakers to advance a bill that would make such disruptions cost a bit more. The situation puts an interest group or two in a bind over how to contest efforts to curb free speech while not embracing the WBC's attacks or messages. The WBC, meanwhile, seems to think the legislature is Florida's Taliban.

Read about it here in today's Palm Beach Post.

Perhaps also noteworthy is that the Post's online story is accompanied by an Internet poll asking, yes or no, "Is the Florida Legislature's proposal in violation of the U.S. Constitution?" Now, as this blog hopefully shows, I am in favor of as much public education as possible when it comes to the law and legal issues, but I wonder what purpose lies behind this particular question.

Amending the Amendments
This story in today's St. Pete Times discusses an effort underway in Tallahassee that would offer voters a chance to remove a number of previously approved citizens' initiatives -- including the pregnant pigs care provision and the medical malpractice attorney's fees provision -- from the state constitution.

Questions, questions: Insurance
Sitting in the airport last night, I read over this interesting decision issued yesterday by the Eleventh Circuit. The court faced an insurance coverage question, under a standard commercial general liability policy, regarding a general contractor's liability for the costs of repair and replacement of defective work performed by a subcontractor. The insurer denied repair and replacement coverage for the products at issue (windows), and after the manufacturer agreed to remedy the owner's claim, the manufacturer and general contractor entered a settlement where the general contractor agreed to an amount of liability between them and to assign its coverage (and bad faith) rights to the manufacturer.

Standing in the general contractor's shoes, the manufacturer then brought coverage and bad faith claims against the insurer. The trial court determined that coverage existed for repair and replacement of the windows, and the case then went to trial. A jury determined that there was no collusion in the settlement but nonetheless found that the damages were $300,000, not the agreed-upon amount of $646,726. The jury also found the insurer to have been in bad faith and that $500,000 in punitive damages were warranted.

After trial, the trial court concluded the evidence could not support bad faith or punitive damages as a matter of law. Both sides then appealed.

The Eleventh Circuit affirmed the decision that neither bad faith nor an entitlement to punitive damages was established. On the coverage issue, though, the Eleventh Circuit found Florida law unsettled and certified the following to the Florida Supreme Court as a question of great public importance:

Wednesday, April 19, 2006
Catching Up
Slowly but surely I'm getting there.

I could not post much this morning. For the second time in the past three days, I find myself starting the day in West Palm and ending it back in St. Petersburg. Thank goodness for Florida's unofficial statewide taxi service, Southwest Airlines, and for free wireless Internet access in the Tampa and West Palm airports...

Be back later today. (From the airport, of course.)

Name Games
Perhaps the Fifth District might have waited just a bit longer -- until last Friday -- to release this decision.

Fifth District: NICA
If you follow the case law addressing the merits of the notice issues under Florida's Birth-Related Neurological Injury Compensation Act, then you may wish to check out the latest decision on the subject from the Fifth District. It's available here.

Question, questions: Criminal Jury Instructions
In this case, the Fifth District, sitting en banc, certified the following to the Florida Supreme Court as a question of great public importance:
A majority of the courts' judges answered the question in the affirmative.

Tuesday, April 18, 2006
Appellate CLE Reminder
Just a reminder to appellate fans that the Appellate Practice Section of The Florida Bar will hold its monthly CLE teleconference today at 12:10. Check the section's site for more details.

Fifth District: Sovereign Immunity
If a police officer tells a stupified drunk to leave a store's parking lot and head on foot down an unlit highway, can that be the sort of "willful and wanton disregard of human rights, safety, or property" that will overcome the sovereign immunity ordinarily possessed by the officer? The drunk man was struck by a vehicle and killed shortly after being ordered to leave. His estate filed suit against the officer.

In this case, the Fifth District concluded that a reasonable jury could conclude there was willful and wanton conduct by the otherwise immune officer and, on that basis, the court reversed a summary judgment in the officer's favor. Judge Thompson dissented.

Fifth District: Condo Restrictions
This case presented the Fifth District with the attorney's fees appeal of condominium owners who successfully defended a suit by their association that would have required them to remove their newly installed skylights.

One interesting aspect of the case was that the skylights were deemed to be "energy devices based on renewable resources" and thus a feature the association could not prohibit the owners from installing -- a result reached by the parties' stipulation.

Another interesting aspect is the existence of a statute -- this one -- permitting anyone to overcome deed or similar restrictions to install "energy devices based on renewable resources." The statute applies only to residential dwellings of three or fewer stories.

A third interesting aspect is that the appellate court reversed an order denying the owners' motion for attorney's fees, even though no trial transcript existed. Appellate fans may find this case citable for this notion in the future.

Fifth District: Nolo Contendere Pleas
If someone pleads nolo contendere to a charge of resisting arrest, can that person then sue the officer and his superiors for battery, false imprisonment, and related torts based on the same arrest? That was the question confronting the Fifth District in this case.

The court first determined that the nolo contendere plea resulted in a conviction that cannot be challenged in the civil suit against the law enforcement officials. The court then turned to section 90.410 of the evidence code, which states:
Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution [for perjury].
Notwithstanding the statute's text stating that evidence of a nolo contendere plea is not admissible in any civil proceeding, the court held the defendants in the civil case could rely upon the plaintiff's plea. The court agreed with cases construing similar provisions in the federal rules of evidence and Oklahoma's rules of evidence, which held that the rule is meant to be a shield, protecting a defendant from having a plea used against him, and not a sword that allows a civil suit by the defendant to go forward despite the defendant's conviction for the charged offense.

The Fifth District consequently affirmed a summary judgment in favor of the law enforcement officers.

Fifth District: Confrontation Clause
Those following the what is/what isn't testimonial hearsay issue emanating from Crawford v. Washington may be interested in this decision from the Fifth District. The court held that 911 calls falling under the excited utterance exception were not testimonial hearsay but that the unavailable victim's statements to a police officer were testimonial and should have been excluded under Crawford.

Fifth District: Two For One
I wonder how West will handle headnotes for this decision from the Fifth District. Two judges joined a concurring opinion, and the third judge on the panel authored a special concurrence that was joined by one of the first two judges. As I see it, that constitutes two majority opinions.

Fifth District: Pro Se Estates?
Can a personal representative maintain an appeal pro se? Not unless the representative is the sole interested person, as the Fifth District explained in this case.

Fifth District: Attacking Arbitration Awards
For an example of how difficult it is to challenge an arbitration award based on "evident partiality," check out this decision from the Fifth District. The court specifically examined the standards to be applied where the challenge is based on an undisclosed relationship between an arbitrator and a party.

Monday, April 17, 2006
Fifth District: Appeal Kickers
If you have a fee agreement that permits you to retain an extra five percent of a client's recovery in the event of an appeal, and during the case you file a petition for a writ of certiorari from an appellate court, can you invoke the extra five percent provision? The Fifth District said no in this case. An original writ proceeding is not an appeal.

Fifth District: Invited Fundamental Error
Defense Counsel: You were convicted, but, hey, the jury instructions were erroneous.
Defendant: Great. Let's appeal.
Defense Counsel: Oh wait. I didn't object, so the error was not preserved.
Defendant: Can't we argue it was a really bad error?
Defense Counsel: Well, yes. We can. Case law says this error is a fundamental error.
Defendant: Great. Let's appeal.
Defense Counsel: Oh wait again. I invited the error, so the appellate court won't reverse.
Defendant: Can I go straight to my ineffective assistance claim?

For an example of a case essentially involving everything but the last question, check out this decision from the Fifth District.

Fifth District: Missing Mediation
Don't miss an appellate mediation. The Fifth District has warned you about attending scheduled mediations, and warned you again.

Fifth District: School Searches
Can students at an "alternative" school, made up of mostly at-risk students who are not eligible to attend a regular public school, be subjected to daily searches? Yes. See this decision from the Fifth District for more.

Fifth District: And/Or, Or Not
When is it not fundamental error -- and arguably only harmless error -- to convict a defendant using instructions that refer to his "and/or" his codefendant's actions? One answer is when the codefendant is acquitted. Check out this decision from the Fifth District for an example.

Fifth District: Defendants' Property
Does a trial court in a criminal case have a responsibility to hear a defendant's claim that law enforcement is wrongly in possession of the defendant's property? Yes, explained the Fifth District in this case.

Friday, April 14, 2006
Back In Blog
It'll take a bit longer but I'm catching up...

First District: Disingenuous Arguments and Billing Records
The First District seems to be on a roll lately when it comes to pointing out questionable appellate arguments. In this decision involving a fee award in a workers' compensation case, the claimant's attorney argued on appeal that the judge of compensation claims erred in admitting defense counsel's billing records as evidence. The court found no error in that decision, and, digging a bit deeper into the record, observed:

Moreover, it is disingenuous of claimant’s attorney to take the position in this appeal that the billing records of defense counsel were irrelevant to the determination of a reasonable fee, as it was claimant’s attorney who initially sought discovery of defense counsel’s records with regard to determination of her fee, arguing in her motion to compel discovery that these records were relevant and material to the determination of whether the hours she spent on this case were reasonable.
Notably, one judge on the panel concurred in result only.

Also, some may be interested to know that the First District's decision adopted the Second District's view that an opponent's time records are "only marginally relevant" to an attorney's fees claim.

First District: Additurs and Remittiturs
For an interesting and brief discussion of why rejected additurs to a jury verdict can result in a new trial on liability and damages, while rejected remittiturs can result in a new trial on damages only, check out the First District's decision in this case. The short answer is that juror compromises involving liability can result in the perceived need for an additur but not a remittitur.

Say What?
In this case, a police officer happened upon a citizen near a wooded area. The officer asked the man for his identification, and the man obliged. The officer then took the identification, ran a warrant check that revealed no outstanding warrants, and returned to the man, asking him if he would consent to being searched. The officer claimed the man consented to the search, which revealed cocaine in a container in the man's pocket. The trial court found the officer credible and denied the man's motion to suppress the evidence.

The First District reversed based on the fact the officer continued to hold the man's license while asking if the man would consent to a search. Under the circumstances, the man was detained without legal justification. His consent was therefore involuntary.

Of course, I mention all this not so much for the search and seizure principle but just to relate yet another tale of how a person in possession of contraband had no problem consenting to be searched. Amazing.

First District: Robbery
The crime of robbery by sudden snatching is "the taking of money or other property from the victim's person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became aware of the taking."

Does grabbing a purse from a victim's shopping cart with the victim's knowledge constitute this crime? No, said the First District in this case. The purse must be taken from the victim's person.

Questions, questions: Deferred Retirement Option Program (DROP)
In this case, an en banc and divided First District certified the following to the Florida Supreme Court as a question of great public importance:
A majority answered yes.

First District: Mandamus
Before a court will grant a petition for writ of mandamaus to compel an official to perform an act, the petitioner must first have demanded the official perform the act.

In the context of a judge not entering a particular order, this decision from the First District shows that it is not enough to have filed a motion requesting entry of the order. The petitioner must also have taken the steps necessary for the motion to be called up for a hearing.

Thursday, April 13, 2006
Chief Judge Kahn: Professional Responsibility
In this case, the Department of Health appealed a final order from a circuit court. The First District affirmed the order without a written opinion. As it turns out, that was the appellant's good news.

Chief Judge Kahn authored a concurrence that took a strong view of the lack of merit in the appeal and the judgment exercised by the state-employed attorney who argued the case:

He explained:
I write separately because the Department's appeal of the trial court’s ruling is not professionally defensible. . . .
Then, after examining the lack of merit in the appeal, the chief judge continued:
The pressing of these positions before this court by a state agency and its attorney is improper. See R. Regulating Fla. Bar 4-3.1 ("A lawyer shall not bring or defend a proceeding . . . unless there is a basis for doing so that is not frivolous. . . ."). I do not ignore the particular exigencies that face attorneys employed by a state agency. Nevertheless, just as attorneys employed by powerful individuals and corporations are responsible for their professional actions, so also are government lawyers. Although the client has the ultimate say concerning the objectives of legal representation, the means by which such objectives are pursued are left to the professional judgment of the lawyer after consultation with a client. See R. Regulating Fla. Bar 4-1.2.
So, government attorneys, the next time you feel squeamish about taking a particular position on appeal, consider reminding your supervisor about Judge Kahn's views.

First District: Preservation of Error
If a trial court says something to the effect that if its decision is appealed, "they are going to get me reversed," then is the usual requirement of a specific objection to the judge's ruling relaxed a bit?

Probably. At least, that is what seems to have happened in this sentencing case from the First District. A rather general objection was held sufficient.

First District: Rehearing Deadlines
Appellate fans may be interested in the nuance pointed out by this decision from the First District. If a circuit court petition for an extraordinary writ involves an appellate remedy, then the time limit for filing a motion for rehearing is governed by rule 9.330 of the appellate procedure rules, which provides for a 15-day filing period. If a circuit court petition for an extraordinary writ does not involve an appellate remedy, then the time limit for filing a motion for rehearing is governed by rule 1.530 of the civil procedure rules, which provides for a 10-day service period.

In the First District's case, the civil procedure rule applied and the appellant's motion for rehearing was not timely under the shorter period allowed by that rule. You can guess where that lead: the untimely motion for rehearing did not delay rendition of the order below, and consequently the appeal was not timely initiated. Appeal dismissed.

First District: Expeditious Reversal
At the St. Pete Bar's appellate CLE yesterday, someone asked what the most efficient means would be to reverse a case where both sides agree the trial judge erred. The responses from the panel included asking the appellate court to relinquish jurisdiction to allow the trial court to hear a rule 1.540 motion.

This case from the First District illustrates that advice. The appellant filed an initial brief and the appellee filed a motion to relinquish jurisdiction to permit the trial court to vacate the order on appeal. The appellate court treated the motion as a concession of error and reversed the appealed order.

Technically, it does not appear that this was a summary reversal under rule 9.315, since that rule seems to require that an answer brief be filed before a summary reversal can be entered, and there is no mention of an answer brief having been filed in this case.

If the appellee concedes error before an answer brief is filed, perhaps the result is not a "summary reversal" within the meaning of rule 9.315 but merely an expeditious one. Interesting.

There must be an appellate certification exam question in here somewhere.

First District: Declaratory Statements
I suspect administrative law fans are much interested in this decision, where the First District reversed an agency's declaratory statement order.

An optometrist in contract negotiations with Wal-Mart petitioned for a declaratory statement concerning the validity of certain lease demands made by Wal-Mart. After the petition was filed, though, Wal-Mart withdrew the contentious demands. As a result, the appellate court held that the Board of Optometry exceeded its authority when it issued a statement addressing the optometrist's petition.

Once Wal-Mart withdrew the demands raised in the petition, there was no need for the optometrist to select a particular course of action in advance, and the board should have declined to issue a declaratory statement.

First District: 57.105 Reminder
In this case, the First District said:
We again remind the bar that section 57.105 expressly states courts "shall" assess attorney's fees for bringing, or failing to timely dismiss, baseless claims or defenses.
The appellants in that case voluntarily dismissed their appeal after the appellees moved to dismiss. And, yes, the appellate court granted the appellees' motion for fees.

First District: Estoppel
This case from the First District includes a very interesting discussion about the "exceptional" circumstances that must be present for a government agency to be held estopped.

First District: Judicial Waiver For Parental Notification
By my count, this is only the third written appellate opinion to address a minor's effort to obtain a waiver of the parental notification requirement regarding plans to terminate a pregnancy.

I discussed the surrounding law in some detail in this post concerning the first judicial waiver case. The second case was mentioned in this post.

Interestingly, all three cases reversed a trial judge's decision not to grant the requested waiver, and all three cases were decided 2-1.

First District: Guardians Ad Litem
Can a trial judge authorize a guardian ad litem to make all visitation decisions concerning a minor?

No, said the First District in this case. The court granted a certiorari petition to quash the improper delegation.

Questions, questions: Ineffective Assistance
In this case, the First District certified the following to the Florida Supreme Court as a question of great public importance:

With a hint of reluctance, the district court followed its own precedent and answered this question in the affirmative. The court noted that hearing the case en banc and receding from the court's prior decision would only create conflict in the districts, which would open the door to supreme court review just as certifying a question does.

First District: State Employee Classifications
Those interested in the state employee classification system, including issues such as who should decide reclassification challenges and what evidence should be presented in such a challenge, may wish to check out the opinions filed in this case from the First District.

First District: Sequestration
The First District held in this case that a minor's mother was a party to the minor's delinquency proceeding and could not be excluded from that proceeding under the rule of sequestration.

Wednesday, April 12, 2006
Appellate CLE
Among the many things that tied me up the past few weeks was the planning of multiple appellate seminars. One of them is today, in St. Pete. It's the St. Pete Bar's appellate practice seminar, and I'm quite glad to say this afternoon's program will be fun and informative. I will be the host, and we will have the honor of hearing from numerous judges from the Second District, the Clerk of the Second District, and several local appellate specialists.

If you're in the neighborhood, stop on by.

Fourth District: Arbitration
Is it reversible error for a trial court not to hold an evidentiary hearing on a motion to compel arbitration? Not where the motion's opponent does not articulate a challenge to the arbitration agreement that would require such a hearing, said the Fourth District in this case.

Fourth District: Insurance
This decision from the Fourth District reminds insurers that cancelling a commercial motor vehicle policy requires notice to the state as well as the insured. Otherwise, the cancellation is ineffective.

Fourth District: Workers' Compensation Immunity
If you are following the developing case law on what makes something "substantially certain" to cause injury, allowing a plaintiff to avoid an employer's traditional workers' compensation immunity, you will be interested in this decision from the Fourth District. The court reversed a summary judgment entered in favor of an employer, holding a jury issue existed regarding a school board's decision to place an emotionally disturbed student in a school without warning the school's teachers.

Fourth District: Tobacco Possession
If you are under 18 and wish to conceal, say, something unlawful, where should you not attempt to hide it?

If you answered "in a cigarette box," then you are correct, as this decision shows. The Fourth District upheld an officer's search of a minor's cigarette box because it is against the law in Florida for a minor to possess tobacco products. You can read that law here.

Had the box contained cigarettes, the violation would have been a noncriminal offense. Instead, the box contained cannabis. Big difference.

Fourth District: Hearsay
In the wake of Crawford v. Washington, the courts continue to sort out what constitutes testimonial hearsay. In this case, the Fourth District held a driving record is nontestimonial.

Fourth District: New Trial Hearings
Does a trial court need to hold a hearing to deny a motion for new trial? No, said the en banc Fourth District in this decision, receding from an earlier decision to the contrary.

Keep in mind, though, that due process requires a court to hear from the other side (in writing or in court) before granting a motion for new trial.

Fourth District: Try, Try Again
Why include sixteen grounds in your postconviction motion?

Because number fifteen may work. It did here.

Fourth District: Bad Faith and Directed Verdicts
Bad faith fans (insurance bad faith, that is) should be very interested in this decision from the Fourth District. The court reversed a directed verdict granted in favor of an insurer in a bad faith case.

I am oversimplifying a bit, but the short of the story is that the insurer had two insureds -- a driver and an owner -- and $20,000 in total policy limits. The driver killed a pedestrian, and the pedestrian's estate demanded policy limits to settle the estate's claim against the owner. The insurer attempted to tender the policy limits in exchange for a release of the driver and the owner, but the estate rejected that tender and demanded settlement for only the owner. The insurer declined. Later, the estate took an assignment of the owner's bad faith claim and sued the insurer for bad faith.

The policy provided that the duty to defend ends when coverage is exhausted, and in defending the owner's bad faith claim the insurer argued that it would have been acting in bad faith toward the driver had the insurer settled for the owner and left the driver without coverage or a defense. The trial judge agreed and granted a directed verdict in favor of the insurer.

The Fourth District reversed, holding that the insurer would not have acted in bad faith had it settled on behalf of the owner, despite the consequence of terminating the duty to defend the driver, because the insurer had attempted to obtain a release of the driver. Once it became clear the estate was not willing to settle with the driver, the insurer had done all it could do and at that point was obligated to protect its other insured, the owner. Thus, the insurer was not entitled to a directed verdict on grounds it was avoiding a bad faith claim by the driver. The driver could have no bad faith claim.

I wonder if the insurer has ever had a better loss on appeal. The result sends the case back to the trial court, but the Fourth District has made a powerful statement about an insurer's duties in the context of multiple insureds where a plaintiff demands settlement with one and refuses to settle with another. Settling on behalf of one insured, even if that settlement cuts off the indemnification and defense rights of another insured, is not bad faith toward the other insured, if the insurer could not obtain a settlement for both insureds.

It might be emphasized that this case only addressed a potential bad faith claim by the insured whose claim is not settled. The case did not address whether there could be bad faith concerns involving the insured whose claim is settled -- such as if the settlement does not actually extinguish the settling insured's exposure because the settling insured remains vulnerable to an indemnification claim by the nonsettling insured.

Fourth District: Stays
Here is a case appellate fans may wish to note. The Fourth District granted a certiorari petition quashing a circuit court's decision not to stay a case while an appeal in another case remains pending.

Fourth District: Sexual Predators
For a thorough review of the case law explaining why the judiciary finds no constitutional flaw in Florida's use of the "sexual predator" label for persons previously convicted of certain offenses, check out this decision from the Fourth District.

Interestingly, the court concludes by pointing out an argument that has not yet been raised with respect to the Sexual Predator Act: whether its irrebutable presumption of dangerousness infringes a fundamental right.

Fourth District: Post-Conviction Time Limits
In a criminal case, does a petition for leave to file a belated appeal toll the time for bringing a post-conviction claim directed at the original judgment? No, said the Fourth District in this case.

Fourth District: Financial Affidavits
Must parties in a dissolution proceeding each file a financial affidavit? At least in a non-simplified proceeding, where permanent financial relief is sought, the Fourth District holds the answer is yes.

You can read the decision here.

The appellant in that case challenged that, even if filing a financial affidavit is required, that requirement violates the right of privacy set forth in article I, section 23 of the Florida Constitution. The court rejected that challenge, holding that the appellant had no reasonable expectation of not filing a financial affidavit in his divorce proceeding, and so the right of privacy was not implicated.

Fourth District: Bifurcated Criminal Trials
If a person is charged with the crime of unlawful possession of a firearm by a convicted felon, is it error for the trial court not to bifurcate the trial with respect to the possession element and the conviction element? In this decision, the Fourth District said no.

Questions, questions: DUI Affidavits
The Fourth District sat en banc in this case to determine that portions of a breath test technician's affidavit can constitute testimonial hearsay that contravenes a criminal defendant's right to confrontation. The court also certified the following to the Florida Supreme Court as a question of great public importance:
Does admission of those portions of the breath test affidavit pertaining to the breath test operator's procedures and observations in administering the breath test constitute testimonial evidence and violate the Sixth Amendment's Confrontation Clause in light of the United States Supreme Court's holding in Crawford v. Washington, 541 U.S. 36 (2004)?
The court's answer was yes.

Back In Blog
Yesterday evening I sat down and surveyed the situation here, and it's a tough one. Lots of email. A gaggle of noteworthy cases. Numerous news events.

I'm working on them all.

Monday, April 10, 2006
Abstract Return
My sincere thanks to the many who continue to stop by here, checking for my return. I've been swamped, so to speak, but I am just about clear of it all.

I'll be back tomorrow, when I will begin the process of catching up on a multitude of noteworthy items -- from joint and several liability to some very interesting new cases to open judgeships to, well, lots of things.

Again, thanks for stopping by.

Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.

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