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Wednesday, May 24, 2006
 
Eleventh Circuit: DISHing It Out
Yesterday, the Eleventh Circuit released this noteworthy decision.

The case is very interesting on multiple levels -- the law involved, the results and their consequences, and the court's comments on the appellate strategies utilized in the case.

The Law Involved. The case concerns Dish Network, a company offering satellite television signals directly to households through miniature dishes. Dish Network was sued by associations affiliated with several major American networks (ABC, CBS, FOX, and NBC) for allegedly violating the Satellite Home Viewer Act of 1988, as amended, which under limited circumstances permits satellite carriers like Dish Network the ability to broadcast to its subscribers the copyrighted broadcasts of national networks. Among the chief general restrictions on that rebroadcast right is that it be used to bring network signals only to households that receive what amounts to a poor over-the-air signal from their local network affiliates. Rebroadcasting to households that receive a minimal quality signal or better is prohibited, and if a satellite carrier is found to have engaged in a willful or repeated pattern or practice of delivering a network's signals in violation of the law, then the carrier can be enjoined from rebroadcasting anywhere any signals affiliated with the same network.

Notably, the law puts the burden on the satellite carrier to demonstrate its compliance with the statutory scheme.

The Results. After a trial, a federal district court imposed penalties on Dish Network for having utilized flawed methods to determine customers' eligibility to receive satellite rebroadcasts of local network programming. The trial court found that, consequently, Dish Network rebroadcast network programming in violation of the home viewer act. The trial court stopped short, though, of imposing the ultimate penalty of a nationwide rebroadcast ban for the affected networks' signals. On appeal by Dish Network and cross-appeal by the network affiliates, the Eleventh Circuit rejected nearly every point Dish Network raised and agreed with the plaintiff networks that the trial court should have entered a nationwide permanent injunction prohibiting Dish Network from rebroadcasting any of the plaintiffs' networks' signals to anyone.

The Court's Comments. Appellate practitioners will likely find some of the court's appellate practice commentary interesting and perhaps even useful in future situations. Referring to Dish Network by its corporate name, EchoStar, the court stated:
In this appeal, EchoStar has alleged a staggering seventeen claims of error. Despite EchoStar's apparent characterization of the trial as one of gross mismanagement, utter incompetence, and widespread chaos, we find the district court's orders and opinions to be generally thoughtful, careful, and well-reasoned. We applaud the court's efforts in dealing with a complicated, technical matter-oftentimes in spite of, rather than with the aid of, defendant's cooperation. We find the vast majority of EchoStar's claims to be completely without merit and address those briefly in the margin.
I omitted the footnotes referenced in that excerpt. One of them said, "In EchoStar's opening brief, these claims are sometimes clearly correlated to section headings, and other times they are overlapping and/or only tangentially mentioned in the course of discussing another alleged error and left for this court to discover and evaluate." Another note -- the one rejecting the vast majority of the defendant's claims -- runs over two full pages of single-spaced text.

Later, after addressing the claims that the court determined to be worthy of extended discussion, the court offered this rarely stated view:
Before we move on to plaintiffs' cross-appeal, we pause to briefly comment on defendant's approach. While it is not normally the place for courts to second guess the strategic decisions of counsel, we do note that, here, EchoStar may have been better served by focusing on and developing its serious objections as opposed to its scattershot approach which ultimately wasted limited space on patently unmeritorious claims of error.

 
Congratulations
Official word is now out and available here.

Judge Kerry Evander has been appointed to the Fifth District.



Tuesday, May 23, 2006
 
Judge Evander To The Fifth District
Though I have not seen any official announcement, word on the appellate streets is that the Governor has appointed Judge Kerry Evander to the Fifth District Court of Appeal.

Judge Evander is from Brevard County and since 1993 has served as a trial judge with Florida's Eighteenth Judicial Circuit.



Monday, May 22, 2006
 
More Certifiable Excellence
As I learn who passed this year's appellate practice board certification exam, I will keep updating my list here. Congratulations to:

Caryn Bellus
Chris Carlyle
and
Nick Shannin

who each passed this year's exam and met the other criteria for board certification.

Just remember, folks -- until June 1, the designation is not official, so until then you are specialists-in-waiting.

 
Rules Amendments
The recent amendments to the Rules of Professional Conduct, approved here by the Florida Supreme Court, take effect today.

You can read a summary of the changes here. Among them is the new rule that, generally, conflict waivers must be confirmed in writing.

 
No More Sandwich?
The Florida Bar News explains here that, under this bill passed earlier this month, defendants in criminal cases will no longer get the first and last word in closing where they offered no evidence beyond their own testimony. The bill repeals rule 3.250 and states that it controls the order of closing arguments unless the state supreme court determines that such is a matter of procedure and the high court issues a substitute rule.

 
First District: Frye and Shaken Baby Syndrome
Those interested in Frye-testing may wish to check out this decision from the First District. The court held that a Frye hearing on "shaken baby syndrome" was not necessary for two reasons.

First, the court held that because "shaken baby syndrome" evidence has been admitted as causation evidence in other Florida cases (without a Frye hearing), and because other jurisdictions have found the underlying principles to be generally accepted, Frye is not applicable to "shaken baby syndrome."

Second, the court held that the expert's causation testimony in the case was based not on science but on personal experience and training, again making Frye inapplicable.

 
Judge Farmer: Dissent, QED
The majority in this en banc decision from the Fourth District determined that probable cause, stemming mainly from two inspections of the defendants' curbside trash, supported a search warrant.

The majority began its opinion this way:
The issue we are resolving is whether two trash pulls, which revealed cannabis, provided probable cause for issuing a search warrant for defendants' home. The trial court concluded that the search warrant should not have been issued and suppressed the evidence. We reverse.
Judge Farmer authored a two-part dissent that ran a mighty wide gamut and is a very worthwhile read. In the first part, after references to Frege and Liebnitz, he presented a much-italicized critique of the majority for "belittling" the underlying trash inspections:
Here in the opening sentence of the majority opinion, right off the bat, the outcome is foreshadowed-or shall I say betrayed-by the belittling term used to characterize the police conduct. Thus the ending is foretold.

The majority is not here considering the legal consequences of a police search and seizure. Oh no. For them this case involves only a trash pull. And if all that is involved is just a trash pull, well, we can see where this is going. A little old trash pull or two certainly isn't going to have the legal significance of an out-and-out, warrantless police search of private property from a home. We all know the Fourth Amendment deals with searches, not pulls. And if a pull is not a search, it follows that not even a founded reasonable suspicion-and certainly no probable cause-is needed to validate it. Quod erat demonstrandum!
Judge Farmer then considered the U.S. Supreme Court's view that trash discarded at a curbside may be examined by law enforcement:
Yes, I am aware that for Fourth Amendment purposes the Supreme Court thinks people have abandoned and have thus consented to a search of the solid waste they place outside their homes for the waste removal authorities. But the Supreme Court is appallingly mistaken if they think people do not regard even the waste placed for collection as very, very private. The placement on the curb reflects only that its use to the owner is over. It does not follow that the end of use means the end of privacy. Disposing of solid waste does not convey an intention to have the whole world-especially the police-searching and analyzing it. A homeless vagrant looking for food, maybe, but not the police. Technology may have made some things transparent to government eyes, but the natural expectation of privacy people have even in the used up matérial of their private lives should not yet be deemed a relic in some museum of lost values.
In an accompanying footnote, Judge Farmer stated that "[t]he Supreme Court's view that trash placed curbside should be treated as legally abandoned property is a conclusion unconnected to any major premise." He then explained that citizens placing trash at a curbside are not abandoning it for public inspection but are disposing of it in the manner required by Florida law.

Next, Judge Farmer likened the "War On Drugs" to an effort to eradicate original sin, explaining:
The power of the State to seize and search private trash without any legal basis seems to me but one more manifestation of Government's long obsession with its residents' pharmacological pursuits. In keeping with that obsession, this case adds one more compromise with our essential liberty of personal privacy, laying wager on a dream that Government might yet salvage something of its War on Drugs. This mania of the last four decades has been a costly failure. As Prohibition did, it founders on the reality that many humans will crave and use forbidden substances, legal or not. Like other pickpockets in the crowd while the condemned ascends the guillotine, there will ever be those to supply these illicit apples for a price-no matter the penalties, even the loss of paradise. Yet we obstinately go on squandering even more weapons of mass deconstruction of personal liberties, and all in the name of a metaphor! We might as well expend law's resources in a campaign to erase original sin. As a citizen, I am discouraged (if not surprised) that "trash pulls" mining for evidence of possible crimes are so fixed in the legal lexicon that Judges would find not even a founded suspicion necessary for such a search.
In the second part of his dissent, which was joined by Judge Gunther, Judge Farmer explained his view that the trash inspections at issue failed to yield probable cause to search the defendants' home.



Saturday, May 20, 2006
 
Certifiably Excellent
Results are starting to come in from this year's appellate practice board certification exam. I am honored to pass along the good news that

Chris Carlyle
and
Nick Shannin

passed this year's exam and have met the other criteria for board certification. Congrats!!

Now remember, folks, the designation is not official until June 1. So, right now you're just specialists-in-waiting.

 
Justice In St. Pete
The Chief Justice of the Florida Supreme Court was in St. Petersburg yesterday. According to this story from today's St. Pete Times, Justice Pariente spoke at a Salvation Army location and was a bit critical of lawmakers' funding of child welfare programs.



Friday, May 19, 2006
 
Judge Tillman Pearson Passes
Last week, Judge Tillman Pearson passed away. He was 93. Judge Pearson was one of the original three judges appointed to the Third District in 1957 and served on that court for 26 years. The court has posted a thoughtful obituary here.

 
Fifth District: Appellate Fees
Have you ever handled an appeal brought by a pro se adversary and thought to yourself, "This is frivolous, but the court will never award fees against a pro se appellant"?

If so, think again.

 
Questions, questions: Homestead Waiver
Late last year, the Third District rejected a person's argument that his agreement to waive his constitutional homestead exemption right was invalid. You might recall that I was quite interested in that decision, since the courts appear to be sending mixed signals over when a person can waive a right.

One one hand, the Fourth District had just agreed with a plaintiff (here) that the arbitration agreement she signed with a nursing home was void because in it she waived rights she could not waive. She had agreed to arbitrate any dispute with the home and, in doing so, agreed the arbitrator could not award punitive damages and noneconomic damages would be capped at $250,000. The home had likewise agreed to arbitrate and agreed to pay the full costs to arbitrate any claim she brought. The court essentially held that nursing home residents have statutory rights to seek punitive and noneconomic damages and that any waiver of such statutory rights is not enforceable.

On the other hand, largely at the request of many of the state's most prominent plaintiffs' lawyers, the Florida Supreme Court had ordered The Florida Bar (here) to draft a rule allowing injured persons to waive their newly adopted constitutional right to retain certain minimal percentages of their recoveries in medical malpractice cases. At the oral argument over that issue, one justice openly suggested that a person can waive any right as long as such is done knowingly and voluntarily.

Since then, we have had a couple of developments.

As I mentioned earlier this week, the Second District addressed the same sort of waivers by nursing home residents as the Fourth District confronted, and even though the court referred the enforceability issue to arbitration, the court observed (here) that arguments in support of the waivers' enforceability were "compelling."

Also, the Third District has changed its decision in the homestead waiver case. While the panel had originally split 2-1 in favor of the waiver's validity, on rehearing the panel issued this decision. It contains two opinions. The first is by Judge Wells and concludes that under Florida Supreme Court precedent specifically addressing homestead waivers, constitutional homestead rights cannot be waived.

Interestingly, though, the other two judges on the panel concurred in just the result. They also offered a lengthy treatment of why, under Florida law and consistent with the laws of many other states, the "modern" view of waiver should permit persons to knowingly and voluntarily waive their homestead rights. Seeing the modern view as inconsistent with the supreme court's homestead rights precedent, the other two judges ultimately concurred in the certification of the following to the Florida Supreme Court as a question of great public importance:
WHETHER, IN LIGHT OF SUBSEQUENT PRECEDENT IN FLORIDA AND OTHER JURISDICTIONS, AND THE TEXTUAL CHANGES MADE BY THE PEOPLE OF THE STATE OF FLORIDA IN ARTICLE X, SECTION 4 OF THE FLORIDA CONSTITUTION IN THE GENERAL ELECTION OF NOVEMBER 1984, THE HOLDING IN CARTER'S ADM'RS v. CARTER, 20 Fla. 558 (1884), FOLLOWED IN SHERBILL v. MILLER MFG. CO., 89 So. 2d 28 (Fla. 1956), THAT A WAIVER OF THE BENEFIT AND PROTECTION OF THE EXEMPTION FOUND IN ARTICLE X, SECTION 4(A) OF THE FLORIDA CONSTITUTION IS UNENFORECEABLE AGAINST THE CLAIM OF A GENERAL CREDITOR, SHOULD BE OVERRULED?
I suppose time will tell us what, if anything, the high court says in these respective areas.

 
Third District: Supersedeas, Discovery, and Certiorari
Appellate attorneys may be interested in this brief decision from the Third District. The court granted a petition for writ of certiorari, quashing a trial court order that permitted discovery in aid of execution. The petitioner had previously posted a supersedeas bond, which stays all such proceedings.

 
Third District: Duty
Tort fans may be interested in this decision from the Third District. The court affirmed the dismissal of a negligence claim against a pharmacy. The plaintiff had been injured in a car accident that was allegedly caused by a driver who had been given deficient information about driving while taking certain prescription medication. The appellate court held that the pharmacy owed no common law duty to the plaintiff and that, by placing a warning sticker on the medication's bottle, the pharmacy did not voluntarily assume a duty. Thus, the plaintiff had no negligence claim against the pharmacy.

 
Third District: Insurer's Duty to Defend and Certiorari
This decision from the Third District should be extremely interesting to those involved in insurance defense work. An insured sued its insurer for breach of contract based on the insurer's denial of coverage and a defense. The insured won, at which point the insurer obtained an order allowing it to replace the insured's selected counsel with the insurer's counsel of choice and to control the insured's defense.

The insured petitioned for a writ of certiorari, which the Third District granted. The district court determined that, under the circumstances, once the insurer breached its duty to defend, it could no longer control the insured's defense.

Judge Schwartz authored a dissent that began with this memorable line:
I would deny certiorari on the basis of the immutable legal principle that nothing is perfect.
He continued with his views that the insurer is entitled under the policy to conduct the defense and that the insured is now in breach of the policy's cooperation clause.

 
Certified Conflict: Former Rule 1.525
Three districts have now held that the pre-2006 version of rule 1.525, which required motions for attorney's fees and costs to be served "within" 30 days of the filing of a judgment of the service of a notice of voluntary dismissal, is satisfied where a fee or costs motion is served prior to the entry of judgment or the service of a voluntary dismissal.

Recall that the First District reached that conclusion last year in this divided decision, and the Fourth District reached that conclusion in this decision. Most recently, the Third District has joined that group with its decision in this case.

All of those decisions conflict with the Second District's decision on the issue, which you can find here. The Second District held that a timely motion for fees or costs must be served only in the 30-day window following entry of judgment or the service of a voluntary dismissal notice.

Recall that the issue is now a historical one. As of January 1, 2006, rule 1.525 provides that a motion for fees or costs must be served "no later than" 30 days from the events mentioned above.

 
Third District: Paying GALs
Can a properly appointed guardian ad litem for the children in a dissolution receive payment priorty for her fees, and those of her attorney, ahead of a charging lien imposed in favor of one of the parties' attorneys? Yes, said the Third District in this case.

 
Certified Conflict: Blakely
The conflict concerning the possible retroactive effects of the United States Supreme Court's decision in Blakely v. Washington continues with this decision from the Fifth District.



Thursday, May 18, 2006
 
Second District: On Pushing The Envelope
In this case, the Second District noted its objection to a prosecutor's efforts to circumvent a trial court's evidentiary ruling:
We recognize that counsel must advocate vigorously for his or her client. We are also aware that, at trial, counsel may try to "push the envelope" on evidentiary issues. The obligation to represent a client zealously, however, is not unbounded. Counsel is an officer of the court and must comport himself or herself with the trial court's rulings. We are compelled to express our concern with the prosecutor’s unwillingness to follow the trial court's rulings.
By the way, I checked on how many times Florida's appellate courts have pushed the envelope by referencing that particular test pilot lingo. The answer is now six.

 
Fourth District: Expert Testimony
Those interested in expert testimony at trial will be very interested in this decision released yesterday by the Fourth District. The court addressed a trial court's rulings precluding one expert from testifying to a certain topic because that topic was not disclosed pretrial and precluding another expert from giving rebuttal testimony. The district court reversed in both respects.

Regarding the first issue, the district court directed trial courts to take a broad view of expert designations:
We do not think that these designations of the substance of testimony in pretrial notices of experts should be subjected to literalistic, mechanical or crabbed readings. If a disclosed witness's trial testimony is even arguably within the designation, exclusion of the testimony by the witness should not be employed. In the instances where a good faith misimpression occurs, the trial judge has other remedies to correct any injustice. These would include a delay in the testimony of that witness to allow additional discovery testimony of the proposed witness or, even in an extreme case perhaps, giving the party claiming to have been aggrieved by the designation the right to call additional experts.
Regarding the second issue, the district court explained:
To be cumulative the substance, function and effect of the previous evidence should be the same. Here, as proffered, it would not have repetitive. Again, because this proposed evidence went to the heart of the theory of defense, it was prejudicial error to exclude it entirely without giving plaintiff an opportunity to present it without engaging in an unreasonable duplication of previous evidence.

 
Fourth District: Seat Belt Negligence
Section 316.614(4)(a) makes it unlawful to operate a motor vehicle in Florida unless each passenger under 18 is restrained by an appropriate device. Another provision of that same section states:
A violation of the provisions of this section shall not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, but such violation may be considered as evidence of comparative negligence, in any civil action.
In a suit by a child against a parent for failing to buckle the child as required by this law, a trial court concluded that the above-quoted language precludes the parent from being sued for negligence.

In this decision, however, the Fourth District reversed. The district court found "no indication the Legislature intended to eliminate a parent's liability for failing to protect his or her child."

The district court did not address whether the plaintiff's negligence claim would have to proceed without mention of the statutory requirement.

 
Fifth District: Appellate Mediation Sanctions
The Fifth District remains steadfast with regard to issuing sanctions where a party fails to appear for a mandatory appellate mediation.

In this case, the court granted rehearing of an order sanctioning a party for failing to attend a mediation. The rehearing motion explained that counsel had failed to inform the party of the physical attendance requirement. The court acknowledged counsel's candor and, granting rehearing, ordered that the attorney alone pay the sanctions imposed.

 
The Ultimate Sanction
It may be rare that a trial court dismisses a plaintiff's case based on the plaintiff's conduct, but it happens. In fact, orders entering the ultimate sanction were expressly approved twice this week.

The First District affirmed such a dismissal in this case, and the Fourth District affirmed such a dismissal in this case.

 
Fourth District: Frye Evidence
Those interested in Frye issues may want to check out this decision from the Fourth District. The court reversed a murder conviction because an expert was impermissibly permitted to testify that a silicone injection caused the decedent's death when the expert was not qualified to testify on silicone migration. In addition, the court found that no testimony established the general acceptance of the expert's premises concerning silicone migration and absorption in the body.

 
Fourth District: Appellate Fees
In this case, the Fourth District pointed out that a party cannot receive appellate attorney's fees based on the theory that the other side has inappropriately requested fees.

 
Questions, questions: Confrontation Clause
In this decision on a motion for rehearing, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:
WHETHER A DRIVING RECORD AS CONTEMPLATED IN SECTION 322.201, FLORIDA STATUTES, IS TESTIMONIAL IN NATURE, AND THEREFORE A DEFENDANT HAS A SIXTH AMENDMENT RIGHT UNDER CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004), TO CONFRONT AND CROSS-EXAMINE A WITNESS CONCERNING THE COMPILATION OF THAT RECORD?
You can find the court's original decision here. You may also recall that the Fifth District faced a similar challenge involving a driver's license record in this recent case and had "no difficulty" concluding the record there was not testimonial hearsay.

 
Fourth District: Judicial Recusal
Trial judges may be interested in this decision issued yesterday by the Fourth District. It appears to set the bar rather high concerning the sort of disclosures a trial judge would have to make to put the parties on notice of the judge's activities while in private practice and any appearance of partiality that might follow.

The trial judge in this particular case had apparently represented one of the defendants in an unrelated matter during the time the instant suit was pending in the trial court, although obviously before the trial judge took the bench. In 2003, after taking the bench, the trial judge issued a notice indicating that her prior firm had represented one of the parties. Years later, the plaintiffs sought to recuse her based on what they described as recently obtained information concerning her prior representation. The trial judge denied the recusal motion, but the Fourth District granted a petition for writ of prohibition. The district court concluded that the plaintiffs "were not required to conduct an investigation relating to the impartiality of the judge" and that because "the judge would have had a conflict of interest preventing her, if she had remained in practice, from representing them" she should not be deemed impartial.



Wednesday, May 17, 2006
 
First District: Brief Alternative?
Can a party to an appeal file a notice explaining that it is not going to file a brief but nonetheless containing a short argument in support of a particular result?

No, said the First District in this case.

 
Fourth District: Be Careful What You Ask For...
... because you just might get it.

In this case, a party that lost at trial and on appeal asked the Fourth District for a written opinion.

The court granted the motion. Among other things, the court's opinion explained that any prejudice the appellant suffered when his counsel told the jury what an expert would say, and that testimony was later excluded, was the result of trial strategy, not error by the trial court. The opinion also explained that the appellant provided the court with only partial transcripts from the multi-day trial and that "[s]uch record omissions are fatal to an appeal."

 
Fourth District: Legal Malpractice
Case law recognizes a series of rules that are partly or entirely unique to lawyers.

There is the time-honored rule providing for an attorney-client privilege.

There is the rule that precludes lawyers paid from litigation proceeds from having to pay the funds back should the litigation result be reversed.

And then there's the rule at issue in this case that prohibits persons with legal malpractice claims from assigning them to others. As the Fourth District explained, this rule applies even in the absence of a formal assignment. A client had created an arrangement with new counsel that effectively offered full control over a malpractice claim against the client's former counsel in return for extinguishing a debt to the new counsel. In the case, the "new" counsel had been the attorneys for the client's former adversary -- a situation the court recognized as "the worst excess to be avoided."

 
Fourth District: Arbitration
As arbitration becomes more popular, so do "evident partiality" challenges to arbitration decisions. Such a challenge was unsuccessfully brought in this case involving an arbitrator from a law firm that handles cases like the one being arbitrated and which led to supposedly biasing contacts taking place during the arbitration. The Fourth District affirmed a decision refusing to vacate the arbitration award.

 
Questions, questions: TPR, IAC, and Props For A Law Clerk
The due process provision of Florida's constitution requires indigent parents facing termination of their parental rights to be appointed counsel. What happens if a parent loses a TPR case and wants to argue that appointed counsel rendered ineffective assistance?

The Fourth District struggled with that issue in this case. A man whose parental rights had been terminated, and who had raised an ineffective assistance claim on direct appeal, filed a habeas corpus petition in the circuit court claiming ineffective assistance. The trial court dismissed the claim, and on appeal the Fourth District was faced with determining whether Florida law affords an avenue to raise such a claim.

The court surveyed how other states have addressed this issue and reviewed the efficacy of the habeas remedy under Florida law. Ultimately, the court concluded that it lacked the authority to select habeas corpus as the mechanism for raising ineffective assistance claims regarding TPR proceedings, but the court certified the following to the Florida Supreme Court as questions of great public importance:
Does Florida recognize a claim of ineffective assistance of counsel rising from a lawyer's representation of a parent(s) in a proceeding for the termination of parental rights?

If so, what procedure must be followed to pursue a claim of ineffective assistance of counsel?
Chief Judge Stevenson dissented. He would have held that an ineffective assistance claim relating to a TPR proceeding may be raised by petition for writ of habeas corpus.

Notably, the court's decision ends with a chart-based appendix that catalogues how each state handles ineffective assistance claims in TPR cases. That appendix reflects the substantial efforts of a law clerk, no doubt, and nice work by the court to preserve them.

 
Fourth District: Certiorari and Malpractice
In this case, the Fourth District granted a petition for writ of certiorari, quashing an order that refused to abate a legal malpractice claim. The underlying action at issue in the malpractice claim was not yet completed, making the malpratice claim not yet ripe.

 
Fourth District: Prohibition and Double Jeopardy
This decision from the Fourth District is interesting for both its procedure and substance. The case involved a defendant whose initial conviction for aggravated child abuse was reversed based on a lack of evidence. The reversal was accompanied by language that any retrial could involve no offense other than simple child abuse. However, when the state attempted to retry the defendant based on simple child abuse, the defendant sought a writ of prohibition from the Fourth District, arguing that no lesser included offenses were presented to the jury in the original trial and that accordingly he could not now be retried for that offense.

The Fourth District held that prohibition was a proper remedy to assert a right against double jeopardy and, despite the language in the court's earlier decision, that the state's failure in the first trial to present the jury with the lesser included offense of simple child abuse prevented the state from doing so in a retrial. The court observed:
Because simple child abuse was not submitted to the jury at the previous trial, it follows that defendant cannot now be forced to stand trial on that charge. Both sides went for all or nothing. One of them, the State, is left with nothing.
The court ordered the trial court to discharge the defendant. In a concluding footnote, the court mentioned that in a co-defendant's appeal from the same original trial, the court directed that judgment be entered against the co-defendant on the lesser included charge. The court did not suggest whether that directive was correct or whether the co-defendant might now have a remedy to correct any error.

 
Fourth District: Personal Jurisdiction
This decision from the Fourth District reminds us how high the bar is to obtain personal jurisdiction in Florida over a foreign parent company based on either a joint venture with a subsidiary or the notion that the subsidiary is the parent's agent.

 
Questions, questions: Sentencing
In this case, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:
Where defendant timely files a motion for reduction or modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), but, through no lack of diligence in obtaining a hearing date or no fault of his or her own, the hearing does not take place until after the expiration of the sixty-day period as provided in the Rule, is the Court divested of jurisdiction to consider and rule upon the timely filed motion?
The district court answered the question in the negative.



Tuesday, May 16, 2006
 
First District: Questioning Finality
Can a party that files a notice of appeal from an order ask the appellate court to determine its jurisdiction by examining the order on appeal and dismiss the appeal if the order was non-final? Sure. It happened in this decision from First District. The appellate court granted the motion and dismissed the appeal.

 
Second District: Putative Father Registry
A while back, in this post, I commented that anyone looking for a topic that could use some additional public discourse might consider Florida's Putative Father Registry. The public should learn about this law, and I hope the major media interested in elevating the public's knowledge of our legal system will consider discussing it.

That view is prompted by this recent decision from the Second District. The court struggled with a complex situation involving an unmarried biological father who apparently learned of his former girlfriend's pregnancy with their child only after the child was born and after she had not only affiliated herself with a private adoption agency but also begun proceedings to have the child adopted and the father's rights terminated.

The law creating Florida's Putative Father Registry requires a unwed biological father to register his parental status. If the registration is not made before the mother attempts to place the child for adoption, the registration comes too late. The law is intended to cut off biological father's rights in order to permit adoptions to take place without interference, but whether the law violates due process by cutting off unknown rights remains an open question.

In this case, the father claimed the mother never told him about the pregnancy -- the unwed couple broke up shortly after the pregnancy occurred. The father learned of the pregnancy only after the trial judge inquired of his identity and, the mother having disclosed it, ordered the placement organization to serve him with papers in the case. The father then filed an action to determine his paternity, but the trial court never resolved that action; instead, the trial court proceeded to terminate the father's parental rights and then dismissed the paternity action as moot.

On appeal, the father raised a number of constitutional challenges to the Putative Father Registry. The appellate court found it unnecessary to decide them to resolve the appeal. The court held that the trial court should not have terminated the father's parental rights -- under Florida's statutory scheme, he had no parental rights to terminate -- and that the trial court should have resolved the paternity action before resolving the termination action. If the father is adjudged to be the child's parent, then he will have standing in the termination and adoption proceedings.

That holding allowed the court to leave the constitutional issues concerning the Putative Father Registry for another day, but the decision eloquently pointed out some of the public policy tensions created by the registry law. The facts of the case also show that the public at large could use some education about this area.

 
Fifth District: Tattoo Youth
A special condition of probation can be imposed where it relates to conduct that is in itself criminal. What if a youth gets a tattoo without the required consent, which is a crime -- can a court placing the youth on probation for an unrelated offense require that the tattoo be removed simply because it was unlawfully made?

The Fifth District divided over that issue in this case, with the majority holding no, the court cannot require a youth to remove a tattoo as a special condition of probation merely because the tattoo was not lawfully obtained.

 
Fifth District: Certiorari and Irrelevant Discovery
Litigators may be interested in this decision from the Fifth District, where the court granted a certiorari petition and quashed a trial court order seeking patient records from a physician. The requested records post-dated the plaintiff's care and were not relevant to the plaintiff's claims.

 
Questions, questions: Attorney-Client Privilege
In this decision, the First District certified the following to the Florida Supreme Court as a question of great public importance:
Does the Florida Supreme Court's holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), relating to discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?
The First District answered the question in the negative.

 
Fifth District: Conspiracy
To sue someone civilly for conspiring against you, you must allege that the person conspired to commit an actionable tort that was actually committed. There is a single exception to that rule: when the defendant combined with others and thereby possessed a peculiar power of coercion. In that instance alone does Florida label conspiracy an "independent" tort.

When does the sort of peculiar power of coercion exist that will support an independent claim for civil conspiracy? In this case, the Fifth District examined a claim by condominium owners that they sold their condominium units at a depressed price at an auction because their neighbors conspired and, contrary to applicable rules, posted "for sale by owner" signs in their units' windows during the auction.

A divided Fifth District held that the plaintiffs stated a claim not only for civil conspiracy but for tortious interference with prospective business relationships.

 
Fourth District: Tortious Interference
Where a client who is represented by counsel initiates contact with a new lawyer, and that contact results in the existing counsel's discharge, the new lawyer has not intentionally and unjustifiably interfered with the first counsel's business relationship with the client. On that basis, the Fourth District affirmed the dismissal of a lawyer's tortious interference claim in this case.

 
Certified Conflict: Termination Proceedings
Can a parent's failure to appear for an involuntary termination of parental rights proceeding constitute a sufficient basis for terminating the parent's rights? No, said the Fifth District in this case, where the court held that the consent derived from a failure to appear cannot transform an involuntary termination proceeding into a voluntary one. The court certified conflict with two decisions from the Second District that reached the opposite conclusion.

 
Fifth District: Confrontation Clause, Part II
Criminal law fans may be interested to know that the Fifth District remains committed to its view that pretrial depositions that a criminal defendant may attend for good cause present a sufficient opportunity to cross-examine a witness to satisfy the Confrontation Clause. Two other districts are in conflict on that point. Check out this opinion for details.

 
Fifth District: Confrontation Clause
Is a self-authenticating drivers' license record testimonial hearsay for purposes of the Confrontation Clause? No, said the Fifth District in this case.



Monday, May 15, 2006
 
Second District: Arbitration
Arbitration remains hot. This decision involving an arbitration agreement challenged on unconscionability and public policy grounds is the latest in the area.

Addressing a nursing home resident's argument (made through the resident's daughter) that an arbitration agreement with the home was unconscionable, the Second District held that the resident's failure to demonstrate procedural unconscionability ended the inquiry. The court therefore did not address the existence of substantive unconscionability. Interestingly, the court added that the Fourth District follows a sliding scale approach to unconscionability, whereby an agreement will be invalidated when a high degree of substantive unconscionability combines with even scant evidence of procedural unconscionability. The Second District stated that it "eschews" the sliding scale approach.

The Second District also addressed the resident's claim that the arbitration agreement at issue was invalid because, in return for the arbitration commitment and the home's agreement to pay the costs and fees of arbitration, the resident agreed the arbitrator could not award noneconomic damages over $250,000 or punitive damages at all. Whereas the Fourth District has held that such provisions violate Florida's public policy because they waive specific remedies available under the nursing home statutes, the Second District observed that a "compelling" argument can be made that the courts should honor a party's decision to contract away statutory protections in this area. The Second District did not decide the issue, however, and instead held that the enforceability of the remedial restrictions contained in the parties' arbitration agreement was an issue for the arbitrator, not the court.

 
Second District: Noncompete Agreements
Is the statutory presumption of irreparable harm from the violation of an enforceable noncompete agreement obviated where the damages with respect to several identified clients are known? The Second District said no in this case.

The harm presumed by the statute includes damage to longstanding client relationships and the protection of confidential information. The court concluded that known financial losses were not sufficient to rebut that presumption.

 
Second District: Mobile Home Associations and Pleading Capacity
This decision from the Second District concerns how mobile homeowners' associations must have written authorization from a majority of homeowners to bring a lawsuit concerning an increase in lot rental amount, a reduction in services or utilities, or a change in the applicable rules and regulations.

The case may also be of interest to those interested in pleading requirements. The court explained that a lack of capacity to sue may not be raised by a mere denial based on a lack of knowledge. However, while the defendant in this case made only a general denial based on lack of knowledge, the plaintiff made no argument that it was prejudiced when the defendant raised the capacity issue in a motion for summary judgment. Accordingly, the trial court properly treated the summary judgment motion as effectively encompassing a motion for leave to amend.

 
The Ethics Of Error
The law involved in this decision is rather unremarkable. A prosecutor's closing arguments were held to be error that did not rise to the level of fundamental error, and thus the trial court erred in granting the defendant a new trial based on the prosecutor's unobjected-to closing argument.

The error at issue was the prosecutor's repeated misstatements that the defendant had a duty to retreat under facts that do not give rise to such a duty.

The law involved may not have been remarkable, but the case still caught my eye.



Saturday, May 13, 2006
 
Second District: Rule 1.525 and Certified Conflict
The Second District continues to interpret rule 1.525 in a strict manner.

In this case, the trial court adopted the parties' stipulated settlement as an order of the court and dismissed the claims in the case. The stipulated settlement provided that the plaintiff was entitled to attorney's fees and reserved jurisdiction to effectuate the settlement. In the 30 days that followed the order's entry, the plaintiff did not move for attorney's fees. Instead, approximately two months after the order's entry, the plaintiff filed a "Memorandum of Law in Support of Request for Attorney's Fees." At a later hearing, the trial court awarded the plaintiff its fees.

The Second District reversed. The court held that the parties' settlement did not address rule 1.525's 30-day requirement for serving a motion for fees; nor did the settlement waive that rule's requirement. Because no motion for fees was timely served, the fee award was reversed.

As it has done before, the court certified conflict with other districts' decisions that held a judgment reserving jurisdiction to award fees automatically extends the time to file a rule 1.525 motion.

 
Second District: Homestead Exemptions
In Florida, a property owner can receive a homestead exemption for real property on which the person maintains a permanent residence. Timely to today's national immigration discussion, what if a property owner is not a permanent U.S. citizen? Can he or she claim a homestead exemption?

The Second District addressed that question in this case. The court explained that noncitizens do not qualify for the homestead exemption, unless they have a pending application for political asylum.

 
Second District: Rendered Orders
This decision from the Second District points out an interesting effect caused by the different means by which the state and a criminal defendant appeal suppression orders.

The state appeals the suppression order itself, and to do that the order must have been rendered, i.e. signed and filed. A defendant, on the other hand, appeals a judgment, and as long as the judgment has been rendered, the appellate court may review a previously entered suppression order whether it was rendered or not.

So, in the case, the Second District rejected the state's argument that the court lacked jurisdiction to review an order, never reduced to writing, which denied a motion to suppress.

 
Second District: Riparian Rights
Being the water-themed state that it is, one might expect riparian cases to arise on a regular basis. Strangely, though, they do not, which makes this decision from the Second District most noteworthy. A divided court held that an easement over lands ending at a bay conveyed the riparian rights associated with those lands.

UPDATE: The court later heard this case en banc and reached a contrary decision while certifying the matter for the state supreme court. Look here.



Friday, May 12, 2006
 
Second District: Contract, Tort, and A Hint Of Economic Loss
If you enjoy the interplay of the basic concepts underlying tort and contract, and even if you do not, there is probably something, somewhere for you in this decision from the Second District.

The case started, simple enough, with the construction of a small pond in the backyard of a home located in a community governed by a homeowners' association. Or maybe it did not. As the appellate court noted:
Just as it is doubtful that the Defenestration of Prague was the actual cause of the Thirty Years' War in 1618, it is unlikely that Dr. Rao's pond, all by itself, precipitated the subsequent litigation. It is the only explanation in the record, though, and an adequate one for our purposes.
The court ultimately reversed a judgment in favor of an individual homeowner, finding his claims against a property management company to be legally deficient.

Regarding the homeowner's contract claim, the homeowner claimed the company breached its contractual duties to the association and was consequently liable to him. The court held that an individual homeowner is generally not a third-party beneficiary to a homeowners' association's contract with a property management company such as would allow the individual to sue the company for breach of contract.

Regarding the homeowner's tort claim, the homeowner claimed the management company negligently performed its contractual duties, resulting in emotional damage to him. The appellate court held this claim not to be actionable, based on the nature of negligence and the general requirement of bodily injury or property damage.

The court's tort discussion appears abbreviated. In fact, the court acknowledged that it hesitated "to further muddy the waters of the dreaded economic loss rule by addressing its application to this case."

Dreaded economic loss rule? Say it isn't so. After all, the case bore mention to 400-year-old defenestrations, and everyone knows that rumors of the economic loss doctrine's death have been greatly exaggerated....

 
Second District: Dog Tales
Let's say you have a dog and a homeowner's insurance policy. The dog bites someone but your policy excludes coverage for injuries caused by any dog owned or kept by you. Can you argue that the dog was jointly owned by your nine-year-old daughter, who is also an insured under the policy, and that the exclusion does not apply to her dog?

That is what happened in this case. The trial court found the policy ambiguous and construed the ambiguity against the insurance carrier, which resulted in coverage. On appeal, the Second District reversed. Essentially applying the notion that an ambiguity exists only where contractual language may reasonably be interpreted in more than one way, the court held there was nothing ambiguous about the exclusion. The dog was the parents' dog, and giving the policy language its ordinary meaning it could not reasonably be construed to say coverage does not exist for a dog owned by a child residing in the household.

I wonder if the daughter was actually sued as the owner of the dog.

 
Second District: Jurisdiction and Pleading Jurisdiction
Family law attorneys and general fans of jurisdiction issues may be very interested in this decision from the Second District. The court reversed an order setting aside a series of child custody orders because the affidavit required by Florida's Uniform Child Custody Jurisdiction Act in 2000 was never filed when the case began. The district court concluded that the failure to follow the statutory procedure was not fatal to the trial court's jurisdiction over the case's subject matter.

 
Second District: Premature Appeals
This decision from the Second District points out that an order merely granting a motion for summary judgment is not the same as a final judgment and thus not a final, appealable order.

The case also points out the Second District's practice of relinquishing jurisdiction where a premature appeal is taken to allow a final order to be entered.

 
Second District: Fee Awards
For an interesting decision on attorney's fees awards, including whether an award should be joint and several or pro-rata, check out this decision from the Second District.

 
Second District: Don't Turn Around
This case should encourage those who operate boats not to turn their gazes from the waters ahead. Florida law incorporates a set of federal boating rules, one of which requires those operating vessels to maintain a proper lookout.

The defendant in the case had been operating a pleasure boat that was pulling a wakeboarder when the wakeboarder fell. The defendant turned and watched the wakeboarder for some amount of time when the boat ran into and severly injured a person floating in the water. The defendant was found guilty of failing to maintain a proper lookout, and the Second District affirmed the conviction.

 
Second District: Circumstantial Evidence
If I were defendant convicted on circumstantial evidence, I would want to read this decision from the Second District. The court reversed the conviction of a man found as a passenger in a truck containing stolen goods. The truck had been seen at the site of the theft but the man had not.

 
Second District: Mens Rea
This Florida law on computer pornography prohibits persons from, among other things, receiving or sending computer transmissions containing descriptive or identifying information about minors for the purpose of facilitating sexual conduct with a minor.

So when someone gets information online about a 15-year-old, and the purpose of the communication is to set up a trist, the statute is in play.

The question raised in this case was whether the statute contains a mens rea element which would require the defendant to have known the person at issue was a minor. The Second District said yes after observing that Florida courts will presume the legislature intended criminal violations to contain knowledge requirements absent an express indication to the contrary.



Thursday, May 11, 2006
 
Abstract Pause
Despite my efforts to get updates posted here, work has just consumed me this morning. Too many recent events that affect my own practice. Be back soon.

 
Email Note
I've been working on a gaggle of posts to put up this morning, but I've not responded to recent emails yet. I've not even opened them. So, if you sent me something recently, I will get back to you as soon as I can.



Wednesday, May 10, 2006
 
Back In Blog
... and in town. The trial went very well. I did my usual parts, handling the directed verdict, jury instructions, and verdict form, and leaving our trial counsel free to concentrate on winning the case. It worked -- we won.

Of course our trial counsel, Dan Vega, rightly deserves all the credit. But, in a weak moment, I'll tell you it was all about the instructions and verdict form...

Anyway, I am back in St. Pete and will be back to blogging late tonight.



Tuesday, May 09, 2006
 
Abstract Pause
On top of a fast weekend trip to Jersey to become a godfather to my niece, I'm providing appellate support at a Miami trial that is likely to end today. So probably no posts from me until tonight or tomorrow.

Thanks for stopping by.



Friday, May 05, 2006
 
Second District: Attorney's Fees
This decision from the Second District points out that expert testimony remains necessary to show the reasonableness of an attorney's fees award.

The decision also shows that you can appeal a fee award on grounds the appellee failed to present the requisite expert testimony, but even if you win the result may simply be a new hearing at which expert testimony can be presented.

 
Second District: Limiting the Taint
When an appellate decision relates the improper actions of a party's trial counsel, it can appear that the party's appellate counsel -- whose name is shown with the court's opinion -- was the offender below. Yet sometimes a party's appellate counsel was hired only for the appeal and had nothing to do with the events in the trial court.

With that point in mind, I will suggest that a court's clarification that appellate counsel was not counsel below can be very much appreciated by the appellate practitioner who, new to the case, simply did his or her best to advocate the client's interests on appeal. Of course, the court may make such an indication for reasons other than disclaiming appellate counsel's involvement, but I suspect the mention is appreciated nonetheless.

You can see an example of the sort of clarification I mean in footnote 1 of this opinion from the Second District. The court included the note to explain a lack of clarity in the record.

 
Second District: Insurance and Certiorari
Insurance fans may wish to check out this decision, where the Second District granted a petition for a writ of certiorari quashing a trial court's order that required an insurer to turn over an insured's claims file to the insured.

 
Second District: Two For One
If two judges on a three-judge panel agree on a point, their agreement is said to be the decision of the court. So when a three-judge panel's majority opinion is followed by a concurrence that is joined by a second judge, the concurrence would appear to be a second majority opinion.

That is what happened in this decision from the Second District. You may recall the same situation occurred a couple of months ago in this decision from the Fifth District.

 
Second District: Prohibition
Extraordinary writ fans may wish to note two recent prohibition decisions from the Second District.

In this case, the court granted a writ of prohibition to prevent a trial court from conducting a hearing on a notice issue under Florida's Birth-Related Neurological Injury Compensation Act. Under the 2003 version of that act, resolving the notice issue was the exclusive province of an administrative law judge.

In this case, the court granted a writ of prohibition where a trial court improperly allowed a once-litigated case to be reopened through an amended complaint. In a footnote, the court also explained that while the state supreme court has held the prohibition writ cannot be used to revoke an order already entered, a court issuing a writ of prohibition may direct the lower court to quash an order it previously entered.

 
Second District: Workers' Compensation Immunity
Prior to statutory changes that took place in 2003, an employee injured due to an employer's fault could avoid the employer's workers' compensation immunity and sue in tort only if the injury was the result of conduct by the employer that was deliberately intended to injure the employee or substantially certain to result in injury or death.

It is fair to say that the courts have, at times, struggled a bit with how to apply the second portion of that test, but not so in this case involving an animal keeper who lost part of her arm to a lion she was attempting to reward with food during a medical exercise. The Second District sorted through the relevant authorities and concluded that summary judgment was properly entered in favor of the employer, Busch Gardens.

 
Second District: Appellate Jurisdiction
If a statute gives a district court of appeal jurisdiction to review a certain type of nonfinal order, then that statute is unconstitutional. Under Florida's constitution, only the state supreme court can authorize interlocutory review in a district court.

Is the result the same if a statute gives a circuit court jurisdiction to review a certain type of nonfinal order? No, explained the Second District in this decision. The court also explained that where a nonfinal appellate remedy is available, certiorari review is not.

 
Second District: Amendments at Trial
The Second District reminds us in this case that amending a complaint at trial to assert a new cause of action should generally not be permitted.

 
Second District: Relocation
Family law practitioners interested in relocation issues may wish to check out this decision from the Second District.



Tuesday, May 02, 2006
 
Law Day
Yesterday was Law Day. This week is Law Week, and as this announcement from the Florida Supreme Court explains, this month is Law Month.

To get into the spirit of things, I thought I would do a little storytelling this morning. It's good for the soul, they say. Besides, I have a good story to tell, and it's a Law Day story.

I'll keep quiet about the year and the court, but this story involves one of Florida's district courts of appeal. All five of the districts encompass more than one of Florida's 20 judicial circuits, and each district court holds an oral argument session annually in each of its respective circuits. Typically, oral arguments away from a district's seat take place in county court buildings, and sometimes the district courts liven things up a bit by inviting local school children to attend the session. That is especially true around Law Day. By inviting local students to attend an "away" session, the district court can accomplish three goals at once: sitting in a circuit that year, bringing the public into the courtroom, and promoting Law Day.

With that background, picture me in early May in one of Florida's beautiful rural courthouses. I stood before a panel of district court judges to deliver an oral argument and was flanked by a gaggle of school children no doubt eager to hear about my interesting case. Factually, it was an interesting case, which is why it was selected for the event, and I was asked in advance if I would not mind waiting around afterwards to answer any questions the students might ask.

The appellant's argument had been unremarkable. The panel was rather quiet, asking very few questions. When you represent the appellee, like I did that day, you hope judges like that are just being pensive or are tired -- and not that they are waiting to unleash a fury on you when it is your turn to argue. Well, it was my turn and I began to defend the trial court's eminently correct rulings. I was immediately hit with a hostile question. And another. And another. Most were from one judge who made clear that he did not agree with me or my client, notwithstanding the sincerity behind my arguments. A couple of times, the judge shook his head and just said he saw things differently than the trial court (and I) saw them. It was 20 minutes of back and forth. Given that he was the judge, it felt like his forth was a lot more powerful than my back.

Perhaps needless to say, the appellant won that appeal. Always trying to look at the bright side, I prefer to focus on two things.

The first is that because the appellate court reversed, the court had to put its thoughts in writing. Some day that decision will be corrected.

The second point brings me back to the Law Day theme. At the end of the oral argument, the court asked the school children (whom I would guess were in about the third or fourth grade) if they had any questions. A young man did. He stood up, looked right at the judge who had hammered me and said, "Do you always make up your mind before you get here?"

I tried to hold back a smile.

Tried.



Monday, May 01, 2006
 
Judges of Excellence
When I read the weekend paper, I usually cringe a bit if I see a story about a local judge. Almost invariably, local judges are mentioned in the news only when they have done something that proves how human they are. Those who say there is no such thing as bad press surely do not have the judiciary in mind.

So perhaps you can imagine the relief I felt when I read this story, which the St. Pete Times published on Saturday. In fact, relief turned to pride as I read the details of how five African-American judges held a forum for youths at one of the Pinellas County courthouses to discuss the justice system and issues facing today's black adolescents. The judges were from around the state.

Hats off to those involved.





 
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