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Wednesday, August 30, 2006
 
Voter Registration Law Declared Unconstitutional
Last year, the legislature adopted this law, which imposes fines on organizations that collect voter registration cards but fail to submit them to elections officials within 10 days. The law does not apply to political parties.

On Monday, U.S. District Judge Patricia Seitz declared the new law unconstitutional as violating the federal rights of free speech and association. You can read the court's order here. You can also read a story on the decision here from yesterday's St. Pete Times.

 
Fifth District: Protesting Remittiturs
If you disagree with a trial court's order granting a remittitur, how long do you have to file an objection?

As the Fifth District points out in this decision, the additur and remittitur statute does not provide a specific timeline.

So we don't know. Not until someone challenges an objection as untimely.



Monday, August 28, 2006
 
Second District: The Value of Compromise
In this family law dispute, the Second District borrowed a line from Judge Schwartz, who in turn borrowed it from an Eleventh Circuit decision, that some efficient streamlining of issues by the parties would be "an appropriate concession to the shortness of life."

Nice.

The Eleventh Circuit decision borrowed the phrase from an 1887 Massachusetts decision by Justice Oliver Wendell Holmes.

 
Fourth District: False Imprisonment
The hospital in this case sought and obtained an order, later determined to be void for lack of subject matter jurisdiction, authorizing the hospital to transport an injured, incompetent, illegal alien to Guatamala. The patient subsequently sued the hospital (through a guardian) for false imprisonment. The trial court dismissed the claim, holding the hospital had acted under the prior order's authority and could not be liable.

The Fourth District reversed. The court held that the void order did not immunize the hospital's alleged conduct, and the litigation privilege did not apply.

 
Fourth District: Magnuson-Moss
If you've spent time wondering if the federal Magnuson-Moss Warranty Act provides a breach of written warranty action independent of Florida's privity requirements for warranty claims, you may be interested in this decision, where the Fourth District said yes.

 
Fourth District: Personal Jurisdiction
Personal jurisdiction fans may be interested in this decision, where the Fourth District held that a foreign ship owner lacked sufficient contacts with Florida to give rise to general jurisdiction.



Friday, August 25, 2006
 
Election Questions
Questions, questions. Judges are used to answering them, at least in the context of particular lawsuits, where the issues call for applying controlling legal principles to specific fact situations.

What about legal questions presented to judicial candidates for purposes of gauging their individual views on divisive issues?

You may be aware that, this year, the Florida Family Policy Council sent this letter and survey to hundreds of candidates for popular and retention judicial election. A bit of a storm resulted.

The survey portion presents 13 questions:

- five are biographical

- one asks which current justice of the Florida Supreme Court most reflects the candidate's judicial philosophy

- one asks which current justice of the U.S. Supreme Court most reflects the candidate's judicial philosophy

- one asks for agreement or disagreement with a statement that Florida's constitution recognizes a right to same-sex marriage

- five ask for agreement or disagreement with particular decisions by the Florida Supreme Court.

The five specifically referenced decisions are: In re TW (Florida's privacy right trumps parental consent for abortion statute), Krischer v. McIver (Florida's privacy right does not trump statute prohibiting assisted suicide), Loften v. Kearney (federal equal protection right does not trump Florida statute prohibiting homosexual adoption), Bush v. Holmes (Florida's uniform system of free public schools provision trumps statute utilizing private schools in school voucher program), and Delgado v. State (Florida's burglarly statute requires surreptitious conduct).

Each of the philosophical questions offers responses of agree, disagree, decline to answer based on constraints on judicial officials, and refuse to answer. The FFPC recommends that those who believe they cannot respond seek guidance from Florida's Judicial Ethics Advisory Committee.

Someone did. In response, on August 7, the JEAC released this advisory opinion. It concluded that judicial candidates are not per se barred from answering such questionnaires and that if they do so, they must indicate a pledge to follow binding precedent and must not give answers that appear to bind the candidate if such issues arise once the candidate has assumed judicial office. A minority on the committee recommended that judges inquire of the uses to be made of survey answers and may have an obligation to decline to answer questions that will be used to misstate or mischaracterize the obligations of judicial officials or candidates' qualifications.

Judge Webster, of the First District, responded to the survey with this letter, which characterizes such efforts as improperly attempting to link a candidate's personal views to expectations of how that person would rule on particular issues as a judge, and as offering a misimpression that judges base decisions on personal biases and prejudices rather than the facts of a case and the controlling law.

I will be interested to see how many candidates completed this and similar surveys.

Whatever the source of any particular survey, the questions are most likely posed to offer the questioners an opportunity to categorize candidates as meeting or not meeting the preferences of the questioners and those they advise. The characterizations may be direct, as in summaries put forth by the questioners, or indirect, as with the FFPC survey, which explains that answers will simply be passed on as information for the benefit of voters.

But the agree-disagree format that makes responses easy to relate en masse also makes them difficult to provide. Judicial decisions are nuanced and filled with logical (or illogical, if you disagree) steps. It is possible to agree with a case's result and disagree with some or all of its reasoning. It is also possible to agree with most of a decision's reasoning and disagree with its result.

Also, even if a decision's analytical steps could be isolated for purposes of answering agree-disagree questions, unless one is a candidate for a supreme court position, the person may never find himself or herself able to make such decisions without the constraint of binding precedent -- and even if one is a candidate for a supreme court position, the doctrine of stare decisis may affect future decisions. All of this makes agree-disagree answers difficult to translate into predictions of future action.

There are questions that permit judicial candidates to discuss personal judicial philosophies in ways that may be indicative of how they might resolve a particular issue, were the proverbial slate to be blank (which it rarely is). However, those questions, and their answers, may not be easily understood by the public at large, which unfortunately tends to be underinformed about the legal doctrines that guide judicial decisionmaking.

In an ideal world, the public would be well educated about the legal system, and the sorts of philosophical answers that judges might be eager to share would be meaningful to both the persons asking the questions and those with whom those answers are shared.

I continue to hope we get there.



Thursday, August 24, 2006
 
Third District: Obscene Calls
This Florida statute contains four slightly different prohibitions on making obscene or harassing phone calls. The last three govern harassing calls. Only the first targets obscene calls, and, due to free speech limitations, the prohibition extends only to calls made to a location where the victim "has a reasonable expectation of privacy."

What if obscene calls are made to a location where there is no expectation of privacy, like a business? Such calls do not violate the statute, the Third District held in this case. Interestingly, the calls at issue were made to a business line located in a home.

Perhaps somewhere out there, someone adept at toeing the line between obscenity and harassment is having a field day.

 
Temporary Streak
It appears we can say that, for the moment, 100 percent of Judge Lagoa's decisions have been affirmances.

 
Third District: Drug Dependency
Is a parent's drug peddling from the home, along with keeping an unsecured firearm, a sufficient basis for finding a child dependent?

A majority in this decision from the Third District said yes.

Judge Shepherd dissented.



Tuesday, August 22, 2006
 
Fourth District: Disqualification
The trial judge in this case was not disqualified because of anything the petitioner set forth in her motion to disqualify. The Fourth District held that the trial judge properly found the petitioner's motion untimely filed.

The Fourth District also found, though, that the judge went farther and commented on the validity of the petitioner's asserted grounds -- giving rise to a new basis for disqualification.

 
Fourth District: Home Venue Privilege
This decision from the Fourth District construed the statutory home venue privilege applicable to state university boards of trustees. The court held the joint tortfeasor exception inapplicable to a university board of trustees.

 
Fourth District: Stays
This decision from the Fourth District holds that a trial court has discretion in deciding whether to enter a stay based on previously filed litigation.

 
Fourth District: Attorney's Fees
If you happen to be in need of a recent citation for a case awarding appellate attorney's fees contingent on a party ultimately prevailing in litigation, try this case from the Fourth District.

 
Fourth District: Business Damages
Those interested in business damages, especially eminent domain fans, may be interested in this takings case. The Fourth District held that a trial court erred in permitting Target Corp. to prove its damages by relying on aspects of a site plan that were never submitted to local authorities for approval and for which no affirmative steps toward effectuation were taken.

 
Fourth District: Alimony
Family law fans may be interested in this decision from the Fourth District. The court held an award of bridge-the-gap alimony to have been an abuse of discretion.

 
Certified Conflict: Sentencing Hearsay
In this case, the en banc Fourth District held that a trial court properly relied on a letter from the Department of Corrections as proof of a prior release date for purposes of sentencing the defendant as a habitual violent felony offender. The defendant had argued that the letter was inadmissible hearsay -- a position adopted by the First District.

The Fourth District receded from an earlier decision, held the letter satisfied the public records exception to the general rule against hearsay, and certified conflict with the First District's contrary decision.



Monday, August 21, 2006
 
Fifth District: Lessons Learned
The Fifth District's opinion in this case offers some interesting, and uncomplicated, lessons.

First, the speedy trial right well known to criminal defendants does not apply in civil cases.

Second, there is no right to have a motion heard before a specific judge, as opposed to the appropriate court, even if the notice pertaining to the hearing named a particular judge.

Finally, standing mute before the trial court on grounds you will not participate in an unlawful hearing is no way to preserve an issue for appellate review.

Yes, the appellant was pro se.

 
Fifth District: Resisting An Officer
In this case, the Fifth District explained that an essential element of resisting an officer without violence is knowledge that the person being resisted is in fact an officer.

The decision was authored by Judge Sawaya, who presented an entertaining account of the case's factual history:
An inebriated individual, Cecil Ray Harris, attempted to gain entry into a bar. When he tendered payment of the cover charge, Harris was asked by employees of the bar to remove himself from the premises. With his reason and judgment diverted by an overindulgence in alcohol, and being ill-disposed to rejection, by employees of a bar no less, Harris began to hurl verbal obscenities at them. We will save the reader from disclosure of the vulgarity. When his misbehavior failed to cause the employees to relent and allow him to enter, Harris threatened to obtain a firearm and shoot everyone. Being displeased with Harris and his insufferable conduct, and concerned by his threats of violence, the employees summoned two police officers for assistance.

The police officers arrived and asked Harris to leave, but as a man of mettle he would not be turned away by anyone, not even police officers, so he "squared off, ready to fight." When the officers attempted to arrest Harris for disorderly conduct, a melee ensued wherein Harris struck the officers. Pepper spray was applied to Harris, but to no avail. Although the struggle continued, the pugnacious Harris eventually passed out, bringing a welcome end to his obnoxious behavior. Handcuffed and vanquished, Harris was removed to jail.



Friday, August 18, 2006
 
Third District: PCAI?
PCAI. Maybe that is what we can call a PCA decision that says nothing other than that the appealed order is affirmed and the affirmance shall have immediate effect, notwithstanding the filing of any motion for rehearing.

Like the Third District's decision in this case.

 
First District: Standing on Appeal
What's the result when you appeal a decision wholly favorable to you?

Dismissal, says the First District.

 
Third District: Standing In General
In the case mentioned above, a party that apparently had standing below had no standing to appeal an entirely favorable order, and the court dismissed the appeal.

In this case, the Third District found that the plaintiff never had standing in the first place, and based on that deficiency the court affirmed a summary judgment entered below against the plaintiff.

The case involved a plaintiff's suit over who -- the plaintiff or the defendant -- caused the situation that led the defendant to choose to stop doing business with the plaintiff. The district court explained that the plaintiff's loss of the defendant's business produced no legally cognizable injury.

 
Second District: Mediation
Rule 1.710(b) permits circuit judges to refer matters to mediation -- but not extraordinary writs.

In this case, a party sanctioned with mediation fees because he failed to attend a scheduled mediation requested a writ of certiorari from the Second District. The underlying proceeding was a mandamus petition he filed for the production of a county's public records.

In the certiorari proceeding, he argued that the trial court should not have sanctioned him for failing to attend the mediation because rule 1.710(b) precludes referring extraordinary writs to mediation in the first place.

The Second District rejected that argument.

 
Questions, questions: Jimmy Ryce
In this decision, a divided Third District certified the following to the Florida Supreme Court as a question of great public importance:
WHETHER A PERSON WHO WAS NOT IN CUSTODY ON JANUARY 1, 1999, IS ELIGIBLE FOR CIVIL COMMITMENT UNDER THE JIMMY RYCE ACT IF THAT PERSON WAS SENTENCED TO TOTAL CONFINEMENT AFTER JANUARY 1, 1999, BUT THE QUALIFYING CONVICTION OCCURRED BEFORE JANUARY 1, 1999.
The majority said yes. Chief Judge Cope dissented.



Tuesday, August 15, 2006
 
Third District: Hacking
Computer hackers will probably find themselves intrigued by this decision. The defendant had been charged with modifying computer data in violation of this statute. The Third District held that entering new information into a computer system, causing an indentification card to be issued, did not constitute modifying computer data.

 
Fifth District: A Case Of Condemnation
Just over a year ago, almost to the day, I authored this post about a Fifth District decision that affirmed a $1.4 million inverse condemnation award against Osceola County. The plaintiffs successfully claimed the County deprived them of their ability to close a landfill.

The decision was divided, and lively so. The dissenting judge offered this mememorable view:
I have been doing this job for a while, and I think this is the largest verdict based on the least evidence I have ever seen. In fact, it may be the least evidence to support a verdict of any size that I have ever seen. Even for the most committed believer in the twin propositions that all government is evil and a man's landfill is his castle, this one is a hard sell. . . . Everyone agrees that the only way to properly close the landfill and to restore the land to other utility in accordance with DEP regulations was to cover it with two feet of dirt. What Mr. Huff's attorneys have succeeded in doing is convincing the people who matter that Osceola County, for no apparent reason, and against all logic, refused to let Mr. Huff do this. This is a feat of advocacy so adroit that I predict it will go down in Florida legal history as the eminent domain equivalent of "If the glove doesn't fit, you must acquit."
The County moved for rehearing. And lest you think that moving for rehearing on the merits of the court's decision never works, note the result. The judge who originally authored the opinion changed her vote, and the formerly dissenting judge authored the new lead opinion.

The three opinions of the new decision contain some notable turns of phrase, from the back and forth of the lead and dissent over whether the case presents an "entirely bogus claim," to the concurrence's note about changing minds ("A judge's change of mind in the context of rehearing is not rare, nor to be condemned as unexpected or unfounded."), to the dissent's introductory line ("If there was ever a case for inverse condemnation, this one is it!"), to the dissent's critique of the appellant's motion for rehearing:
The County's motion failed to state with particularity any point of law or fact that we overlooked or misapprehended in the original panel decision. Instead, the County simply pointed to Judge Griffin's dissent as support for its position. . . .

This is precisely what the petition for rehearing does. It is nothing more than an effort to delay the termination of litigation. The original panel majority correctly determined that competent, substantial evidence supported the trial court's finding of a taking. In doing so, we thoroughly considered Judge Griffin's dissent, or so I thought.

Amazingly, Judge Sharp changed her mind and a new majority of the panel has decided to grant rehearing and decide just the opposite -- that there was NO evidence of a taking! In doing so, the new majority has grossly exceeded the proper standard of review, substituting its view of the facts for that of the trial court. Beyond that egregious usurpation of authority, the new majority has also misconstrued the applicable administrative rules and has turned takings analysis on its head by shifting the proper focus from the County's actions to the landowner's intent.
Oh my.

 
Fifth District: Community Development Districts
Real property fans may be interested in this case, where the Fifth District held that a charter school was not exempt from a community development district's special assessment.



Monday, August 14, 2006
 
Second District: Fashion Police
At what point does a hip fashion sense, such as wearing pants below the hips and partly exposing one's rear, give police a reasonable suspicion that criminal activity is, um, afoot?

In this case, the Second District considered the stopworthiness of partly exposed buttocks. The court found no basis for an investigatory stop.

 
Fifth District: Arbitration Overload
For the last two years, I have labeled arbitration as the single hottest civil topic. It remains so.

Take, for instance, this decision released on Friday by the Fifth District. The court addressed the identical issue raised and resolved in this earlier Fourth District case, and the Fifth District reached the same conclusion: the parties' arbitration agreement could not be enforced because it employs an enhanced standard for imposing certain types of damages, in violation of Florida public policy.

When the Fourth District released its decision, this arbitration case from the Florida Supreme Court -- which held that a contract containing a void provision invalidates the entire agreement -- was the law of our land. But no longer. The U.S. Supreme Court later reversed that decision in this case, holding that under the Federal Arbitration Act (on which Florida's act was modeled), unless a void-as-a-matter-of-public-policy challenge goes directly to the arbitration clause itself, then the arbitrator, not a court, should address the matter.

The Second District applied that rationale under Florida's act to provisions limiting punitive and non-economic damages in this case, which the Fifth District later followed in this citation PCA decision.

Is all of this consistent?

And just in case you thought one arbitration decision on Friday could not be enough, you might wish to look at this decision released by the Second District. The court affirmed an order compelling arbitration -- over the appellant's voidness objections.

 
Second District: Long-Arm Jurisdiction
Those interested in personal jurisdiction issues may wish to review this nursing home case, where the Second District held that a resident failed to establish personal jurisdiction over a corporation related to the home's licensee.

 
Second District: Disqualification
For an interesting discussion on when an attorney should not be disqualified for being a potential witness, check out this decision from the Second District.



Friday, August 11, 2006
 
First District: Constitutional Conundrum
Earlier this week, the First District released one of the year's most significant constitutional decisions. The case concerns this constitutional amendment approved by Florida's voters in 2004. The amendment permitted voters in Miami-Dade County and Broward County the option to approve the use of certain slot machines. The case challenges that the proponents of the amendment fraudulently created many of the signatures needed to have the proposal placed on the ballot.

The challengers brought their claim prior to the election, but the trial court declined to expedite the matter. After the voters approved the amendment, the trial court entered summary judgment against the challengers, ruling that voters' approval cured any problem with the proposal.

The First District reversed that ruling. You can read the court's decision here.

A majority of the court held that fraud resulting in a proposed amendment's inclusion on the ballot is not cured by the proposal's approval, where a challenge to the amendment's eligibility is brought before the election takes place. Furthermore, the majority held, substantial fraud cannot be cured regardless of whether a challenge is brought prior to the election.

Chief Judge Kahn dissented. He acknowledged the gravity of the fraud allegations but found that, given the voters' approval of the amendment and the absence of any problem with the language used on the ballot, earlier decisions by the state supreme court require affirmance of the trial court's summary judgment.

Assuming the case reaches the state's high court, where controlling authority is not really so controlling, the case presents a remarkable policy-based issue: can massive fraud that leads to the inclusion of a proposed constitutional amendment on the ballot be legally meaningless, and the amendment valid, if the public approves the proposal?

On one hand, the notion of allowing fraud to lead to the passage of a constitutional amendment -- or any law, for that matter -- is morally offensive. On the other hand, if the public has approved a fairly worded amendment, then why should the will of the people be thwarted by the misdeeds of those responsible for getting the matter before the electorate, particularly when the offenders can be subject to criminal prosecution for their roles?

Another dimension to the problem may concern the source of the amendment. Should constitutional amendments proposed by the legislature be treated differently than those proposed through a citizens' initiative? If fraud is to be the touchstone, then such a difference perhaps exists in effect, since fraud is unlikely (if not constitutionally impossible, as a matter of separation of powers) to be found in the legislative context.

This case will remain one to be watched.



Thursday, August 10, 2006
 
Fourth District: Mail Daze
When does rule 1.090 permit you to add five extra days onto a time period? The rule is fairly straightforward, though it is more narrow than some think.

You can add the bonus days when you are required to act within so many days of service of something, and the something is sent to you by mail.

Two cases released yesterday by the Fourth District illustrate the significance of whether the time period begins with service of the item.

In this case, the court addressed 1.820(h), which requires that a motion for trial be filed "within 20 days of service" of an arbitrator's order.

In this case, the court addressed an order that required a party to provide a response within 10 days of the order's date.

What were the results? Well, in the first case, the time period was triggered by service, and the order at issue was mailed. An extra five days applied. In the second case, the time period was triggered by the date of the order. No bonus days.

 
Fourth District: Prepared Orders
Though trial judges should make findings of fact and conclusions of law on the record before requesting a proposed order, the failure to make such findings and conclusions is not itself reversible error where the party opposing a proposed order had notice of it and an opportunity to object prior to entry. So said the Fourth District in this case.

 
Fourth District: Experts
The next time you find yourself arguing an expert witness's testimony would merely be cumulative and should be excluded, you might wish to consider this decision from the Fourth District. The court reversed a jury verdict based on the improper exclusion of an expert. The motion to exclude came on the verge of the expert's testimony, after the similar witnesses had already testified.

 
Fourth District: Settlement Deaths
Will a settlement agreement made during the course of a dissolution action be enforced if one party dies before a dissolution judgment is entered? The Fourth District considered such a situation in this case and decided that, under the circumstances, the agreement was not enforceable.

 
Fourth District: Right to Silence
During a police officer's recount of the defendant's actions after an arrest, a prosecutor asked if, during the investigation, the defendant would agree to make a tape-recorded statement. The officer then testified:
No, he wouldn't. And that – He thought about it for a while. And then he said, "No. I'd rather have an attorney present."
The trial court denied the defendant's motion for mistrial. Was that error? Yes, said the Fourth District in this case. The statement was a comment on the defendant's right to remain silent.

 
Fourth District: Prohibition
This decision from the Fourth District shows that the writ of prohibition remains available when a criminal prosecution is brought beyond the applicable statute of limitations.

Are the jurisdictional natures of criminal prosecutions and civil suits so different that they justify a different result in the context of expired civil claims? The case law suggests so.

 
Fourth District: Workers' Compensation Immunity
Those interested in the "conduct which is substantially certain to cause injury or death" exception to workers' compensation immunity will be interested in this decision from the Fourth District. The court affirmed a summary judgment in an employer's favor, concluding that the employer's conduct did not meet that standard.

The court focused on two factors that "show the type of intentional conduct which a reasonable person would consider resulting in the substantial certainty of injury or death: 1) knowledge of prior accidents or defects and 2) intentional conduct to prevent the employee from learning and appreciating the risks involved in the work specifically known by the employer." The court found neither factor present.

Interestingly, Judge Hazouri authored a special concurrence stating that the employer's concealment of the danger is not required.

You might recall that the Florida Supreme Court is currently reviewing this decision from the Third District, which paid much attention to the notion of concealment.



Wednesday, August 09, 2006
 
Second District: Counting Days
This is one of my favorite cases of the year. The court wrote a concise opinion addressing an issue only an attorney could really appreciate: where a contract provides a set number of days in which a party may make a payment, and the final day falls on a Saturday, is a payment made on the following Monday a timely payment under the contract?

The notion of rolling deadlines from Saturdays, Sundays, and holidays to the next "business" day is probably engrained in the parietal lobes of most attorneys' brains. By every set of procedural rules of which I am aware, nothing is ever due on a Saturday, Sunday, or holiday. Due dates that fall on those days roll over to the next business day.

But what happens if a contract calls for something to be performed by the 45th day after something occurs, and that day just happens to be a Saturday? And what if the contract has a provision making time of the essence?

Is the Monday payment timely?

No, said the Second District.

 
Third District: Magistrates
In this decision, the Third District reminds us that "[o]nce a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgment for that of the magistrate."

As the district court explained, a trial court reviews the record to determine whether the magistrate's factual findings are supported by competent substantial evidence, whether the magistrate's legal conclusions are clearly erroneous, and whether the magistrate misconceived the legal effect of the evidence.

 
Second District: Abandoning Claims
This decision from the Second District held that appointed counsel for an inmate seeking post-conviction relief orally waived a claim the inmate had made and for which he was entitled to an evidentiary hearing. Counsel informed the circuit court that insufficient evidence existed to proceed to a hearing.

Judge Salcines dissented.

This may be a criminal case, but that doesn't mean it has no civil implications.



Tuesday, August 08, 2006
 
Second District: A House Divided
When is a home not a dwelling, for purposes of Florida's burglary statutes?

When the home is so completely undergoing renovations that it is wholly unsuitable for lodging.

So held a divided Second District in this case, where a home being substantially renovated was found not to be a dwelling.

Judge Canady dissented. He would have held the home qualified as a dwelling because it was designed for eventual human habitation.

 
Second District: Certiorari and Insurance
Extraordinary writ fans will be interested in this decision from the Second District. The district court granted an insurer's certiorari petition and quashed a circuit court's summary judgment order concluding the insurer unlawfully imposed a finance charge. The insurer had asserted that such contentions must first be brought to the Office of Insurance Regulation, and the district court agreed. The district court determined that certiorari, not prohibition, was the appropriate remedy.

 
Second District: Attorney's Fees and Preemption
The federal Magnuson-Moss Warranty Act provides certain "consumers" with a cause of action against various persons involved with the manufacture and sale of consumer products. The act also entitles prevailing consumers to recover attorney's fees. Does that entitlement preclude a defendant from obtaining attorney's fees where appropriate under, say, Florida's offer of judgment statute?

You may recall that, earlier this year, the Fifth District addressed that issue in this case and held that no premption exists.

Last week, a divided Second District addressed the same issue and reached the same conclusion. You can read that decision, along with Judge Kelly's dissent, here.

Fascinating issue.

 
Questions, questions: Hearsay and Confrontation Clause
In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:
DOES ADMISSION OF A BREATH TEST AFFIDAVIT VIOLATE THE CONFRONTATION CLAUSE AND CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004), WHEN THE TECHNICIAN WHO PERFORMED BREATH TEST DOES NOT TESTIFY?
The district court answered the question in the affirmative, relying on a decision it issued last year that is currently being reviewed by the state supreme court.

The same day, in this case, the same court also certified the following similar question:
DOES ADMISSION OF A TEST RESULT FROM A LEGAL BLOOD DRAW VIOLATE THE CONFRONTATION CLAUSE AND CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004), WHEN THE TOXICOLOGIST WHO PERFORMED THE BLOOD TEST DOES NOT TESTIFY?
Somewhere in Tallahassee, a law clerk wonders if the Confrontation Clause will ever come up in private practice...



Monday, August 07, 2006
 
Questions, questions: Workers' Compensation
If you follow workers' compensation issues, you are most likely aware of the Florida Rock and Lundy decisions released this year by the First District. They held that the 2003 amendments to the workers' compensation attorney's fees statute eliminated the judge of compensation claims's discretion to award a fee higher than permitted by the benefits-obtained statutory formula and that such does not violate various constitutional guarantees.

Through a later order in Florida Rock and the original decision in Lundy, both cases also certified to the Florida Supreme Court the following as a question of great public importance:
DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY'S FEE TO BE AWARDED A CLAIMANT?
Well, as previously mentioned on this blog, the high court declined to exercise jurisdiction in Florida Rock. The notice to invoke the high court's jurisdiction in Lundy was received by the court two days after the court denied review in Florida Rock, and the court has not yet decided if it will accept jurisdiction in the second case. Granted, Lundy presents the constitutional issues, which may be more attractive to the court for jurisdictional purposes.

The latest development along these lines comes in the form of this new decision from the First District, which followed its earlier decisions in all respects and certified the same question.

 
First District: Sanctions
Trial judges may be interested in this decision from the First District. The opinion shows why a trial court willing to sanction a litigant for misrepresentations may wish to impose that sanction prior to submitting the case to a jury, rather than allowing the jury to find for the deceptive party and then taking that verdict away through a judgment notwithstanding the verdict.

Sanctions are reviewed for an abuse of discretion, but a judgment notwithstanding a verdict is reviewed to determine if any evidence supports the jury's findings.

 
Second District: Settlement Agreements
This decision from the Second District reinforces the need for an evidentiary hearing when, on a motion to enforce a settlement, counsel's authority to settle the matter on behalf of the client is questioned.

 
Second District: Arbitration
A plaintiff waives a contractual right to arbitrate by filing a complaint and a notice of lis pendens without simultaneously requesting a stay and an order compelling arbitration. That's the short of the Second District's decision in this case.

 
First District: Inmate Suits
As this decision shows, the First District has requested that the state supreme court recede from its decision characterizing all post-conviction cases that could conceivably reduce a litigant's prison time as collateral criminal proceedings. In some instances of frivolous filings, the district court would like liens against inmate's accounts to be available.

 
First District: Workers' Compensation
Can a workers' compensation claimant be denied benefits on the basis that the claimant previously relied on fraudulent statements to obtain benefits relating to a different accident? No, said the First District in this case.

 
Second District: Buying Freedom
The Second District found no legal error in the proceedings that resulted in the appellant in this case receiving three years' imprisonment. The court was significantly troubled, however, by a situation that left the defendant's mother obliged to pay restitution to the victims and would have allowed the defendant to serve only 18 months had the mother fully paid the restitution amount. She did not.

The appellate court questioned "the wisdom of plea agreements that permit longer prison terms for poor people whose relatives have failed to raise the money needed to buy their freedom."



Thursday, August 03, 2006
 
Questions, questions: Hearsay
In this case, the Fourth District joined the First District in certifying the following to the Florida Supreme Court as a question of great public importance:
Whether the Crawford hearsay rule applies in community control and probation revocation proceedings.
Jeopardy fans might have something to say about the form of a question, but, well, this isn't Jeopardy.

 
Fifth District: Construction Bonds
Construction fans may be interested in this en banc decision from the Fifth District. The court considered whether a bond filed after work had begun on a project was a common law bond or a statutory bond. The court decided it was the latter type with respect to all lienors who sought relief after the bond was filed.

 
Fourth District: Tobacco, and Summary Judgments
Those who follow tobacco litigation may be interested in this decision from the Fourth District. The court reversed a summary judgment in favor of the defendant, addressing a number of issues, including federal preemption.

Also notable about the case is the following statement: "A defendant's motion for summary judgment is not a vehicle to test the sufficiency of the evidence to support a plaintiff's claims."

That notion is at odds with the summary judgment procedure utilized by the federal system, even though the federal and Florida summary judgment rules are largely identical. Florida courts just take a different view.

 
Fifth District: Proposals for Settlement
Those keeping track of Florida case law on offers of settlement may well be interested in this decision. The Fifth District addressed the validity of a proposal that offered to pay $60,000 to settle the litigation. The trouble with the proposal stemmed from the attached release, which provided that the consideration for the settlement was "the sum of FIFTY NINE THOUSAND NO/100 DOLLARS ($60,000.00) . . . ."

Did the release's discrepancy between the numeric and printed descriptions of the settlement amount undermine the proposal's validity?

The trial court held that it did not, but the Fifth District reversed. The district court concluded the proposal was ambiguous and thus lacked the particularity required by rule 1.442.

 
Fifth District: Rear-End Collision Rule
In this case, the Fifth District reversed a summary judgment that favored the rear driver in a two-vehicle highway collision. Examining the rear-end collision rule, the court concluded that the presumption provided by the rule had been rebutted but that summary judgment in favor of the rear driver was nonetheless inappropriate.

By the way, the first Florida case to utilize the term "rear-end collision rule" (and which also tried to synthesize the case law on the subject) was an interesting 1997 decision from the same court. Great decision, written by a wise judge.

 
Fifth District: Certiorari and NICA
Those who appreciate a well-received extraordinary writ request may be interested in this decision from the Fifth District.

The court granted a certiorari petition and quashed an order permitting an amended complaint against a hospital for medical negligence concerning the birth of the plaintiff's son. Such claims are governed by Florida's Neurological Injury Compensation Act, and the court held that permitting an amendment that contravenes the immunity provided by that act creates the sort of irreparable harm that can be addressed by certiorari.

 
Fifth District: Personal Jurisdiction
Florida law on duty with respect to negligence has moved far down a one-lane path labeled "foreseeability."

Federal law on personal jurisdiction for nonresidents might be viewed as having taken a similar route, and some Florida cases support that notion, but the Fifth District's decision in this case takes a different approach.

The court explained that mere foreseeability a manufacturer's products would end up in a particular state is an insufficient basis to predicate long-arm jurisdiction. More is needed.

 
Fifth District: Psychotherapist Privilege
In this case, a plaintiff who had withdrawn a damages claim for mental anguish, but whose psychologist was nonetheless about to be deposed, sought and obtained a writ of certiorari from the Fifth District.

 
Fifth District: Preservation of Error
Do preservation of error principles apply to administrative hearings? Yes, as the Fifth District demonstrated through this case. The court rejected, as unpreserved, the appellant's argument that an administrative law judge should not have relied on certain witness testimony, but no objection to such testimony or its sufficiency was raised when the testimony was given.

 
Fifth District: Withdrawal of Counsel
If you have ever wondered about the circumstances under which a trial court should permit a plaintiff's lawyer to withdraw based on a perceived lack of merit in the plaintiff's case, then you may be interested in this decision. The Fifth District granted an attorney's certiorari petition after a trial court refused to permit the attorney to withdraw as counsel.

 
Fifth District: Restrictive Covenants
Real property fans may be interested in this decision, where the Fifth District explained that an ambiguous restrictive covenant found in a housing subdivisions's declaration must be construed against a party seeking to enforce that covenant.

 
Fourth District: Sunshine Law
Those interested in what it means for our state government to operate in the sunshine may wish to check out this decision. The Fourth District held that a committee of the Broward County Sheriff's Office that privately met and recommended the plaintiff's termination was acting only in an advisory capacity and did not violate Florida's open meeting requirements.

 
Fourth District: Contempt
Talk about your bad mornings.

On one hand, the defendant in this case did his civic duty and appeared for jury duty.

On the other hand, during jury selection, he misrepresented his father's criminal record and his own record. The trial judge held him in direct criminal contempt and sentenced him to four months in prison. The Fourth District affirmed.

 
Fourth District: Habitual Drunkenness
Where a person injured by a drunk sues the bar where the latter had been drinking, this law makes the vendor liable only if it knew the person was habitually addicted to alcohol and willfully served the person under those circumstances. This decision from the Fourth District shows the sort of evidence that supports a vendor's liability under that statute.

 
Fourth District: Search and Seizure
I'm inclined not to say what sort of fans might be interested in this case. The Fourth District held that a drug-sniffing dog's alert to the handlebars of a bicycle is, standing alone, insufficient to provide probable cause to search a person who recently rode the bicycle.

 
Fourth District: Failure to File Briefs
In yet another decision quashing a circuit court's order dismissing an appeal from county court for failure to file a timely initial brief, the Fourth District in this case again stated that a circuit court must give an appellant 10 days to file a brief before an appeal may be dismissed and warn that dismissal may be a consequence of failing to file on time.

 
Fourth District: Products Liability and Jury Instructions
Products liability fans will be very interested in this decision from the Fourth District. The case involved a claim that the manufacturer of a processed form of asbestos was negligent in failing to warn of the product's risk of harm when it is used as intended.

Among the notable items found in the case is footnote 4, where the court stated it was purposefully forbearing any reliance on the risk-utility test set forth in the Restatement (Third) of Torts until Florida's high court recognizes that product defect test as the law of Florida. It is not clear from the opinion whether the risk-utility test was actually at issue in the case.

Also notable is the court's holding that the plaintiff's failure to prove whether the defect alleged in the case was a result of design or manufacture did not impair the plaintiff's ability to seek a strict liability defective product instruction.

In addition, the court engaged in a detailed analysis of how a raw materials manufacturer's duty to warn can extend to ultimate users of the product.

Finally, the decision included an interesting discussion on a trial court's discretion, or lack of it, in giving jury instructions. Rather than simply offering the generally stated notion that trial courts simply have broad discretion in formulating jury instructions, the court explained that the standard jury instructions are presumed correct absent a showing to the contrary, that the trial court has a duty to instruct on the law appliable to the issues litigated, and that discretion arises only as to the content of a given instruction.

 
Fourth District: Insurance
As the Fourth District points out in this case, an insurer who wishes to cancel a policy purchased directly from the insurer need not give notice to a non-existent independent insurance agent.

 
Fourth District: Premises Liability
Premises liability fans may be interested in this decision from the Fourth District. The court rejected the notion that the open and obvious danger doctrine, as it applies to a body of water, should be inapplicable to young children who cannot appreciate the body of water's open and obvious dangers. The court held the common law in this area to be well established.

 
Fourth District: Prejudgment Interest
The Fourth District reminds us in this decision that prejudgment interest does not run on funds deposited in the registry of the court.

 
Fourth District: Insurance
In this case, the Fourth District held that an insurer's settlement of a claim does not prevent an insured from seeking punitive damages against the insurer through a bad faith claim.

 
Questions, questions: Punitive Damages
Punitive damages fans will be very interested in this decision, where the Fifth District certified the following as a question of great public importance:
DOES THE RULE ANNOUNCED IN MERCURY MOTORS EXPRESS, INC. v. SMITH, 393 SO. 2D 545 (FLA. 1981), UNDER WHICH AN EMPLOYER CAN BE HELD VICARIOUSLY LIABLE FOR PUNITIVE DAMAGES BASED UPON THE WILLFUL AND WANTON CONDUCT OF ITS EMPLOYEE, APPLY TO PUNITIVE DAMAGE AWARDS UNDER SECTION 760.11(5), FLORIDA STATUTES?
A majority of the en banc court answered this question in the affirmative. It does not appear that supreme court review was sought.

Also interesting is the court's rejection of the defendant's argument that, having obtained a remand of the case from federal court on grounds punitive damages did not place $75,000 or more in controversy, the plaintff should be estopped to recover punitive damages in an amount that pushes the total damages beyond $75,000. The court found no basis for an estoppel.



Wednesday, August 02, 2006
 
Fourth District: The Right To Appeal
This decision simply fascinates me. Impressively concise, it concerns a topic that has not received nearly enough attention in the jurisprudence: the constitutional right to appeal.

The decision specifically addressed the constitutionality of section 681.1095(14), which provides that appellate review in certain lemon law cases "may be conditioned upon payment by the manufacturer of the consumer's attorney's fees . . . ."

In the case, the fees at issue totalled over $262,000. The manufacturer argued that conditioning the right of appeal on payment of such a sum violates both the constitutional right to appeal and the right of access to courts. The Fourth District agreed.

 
Questions, questions: Duty To Retreat
In this order, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:
DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING AT THE TIME THE STATUTE BECAME EFFECTIVE?
The statute at issue contains the much-publicized law that eliminates the common law duty to retreat before using deadly force in self-defense, where such force is reasonably necessary to prevent immiment great bodily harm or death. The court's original opinion, which held that the law is not retroactive and does not apply to events pre-dating the law's effective date, is available here.

 
Fourth District: Offers of Settlement
Those who follow Florida's recent jurisprudence on rule 1.442 and settlement offers will probably not be surprised by this decision. The Fourth District held invalid a settlement offer conditioned on execution of a general release, a no-lien affidavit, a hold harmless agreement, and a stipulation for dismissal -- none of which accompanied the offer.

 
Fourth District: Jury Selection
The Fourth District's opinion in this case expounds upon the circumstances in which a trial court must conduct a Neil or Slappy inquiry. In the case, the defense's request for an inquiry was denied when the state struck a Pakistani prospective juror. The district court reversed.

 
Fourth District: Damages
The risk in shooting for the moon with your damages theory at trial is that, if you get there, it might later be determined that your theory was unsound, and without a valid theory of damages, you will be left with none at all.

That is what happened in this case from the Fourth District. The appellees had a determination of liability in their favor and went to trial on the value of their damages. Their damages theory was extraordinary. Too extraordinary. The jury's $4 million award was vacated and the appellate court ordered judgment to be entered in favor of the appellants.

 
Fifth District: Personal Jurisdiction and Pleading
The Fifth District's decision in this case offers a very interesting look at long-arm jurisdiction and the sort of acts that will trigger it in the context of a negligent misrepresentation claim. The court also explained that section 552 of the Restatement (Second) of Torts governs such claims, at least outside certain privity contexts.

The case contains this notable line: "As we wearily continue to point out, Florida is a fact-pleading jurisdiction, not a notice-pleading jurisdiction."

In my experience, that notion gets lost at times.

 
Fifth District: Arbitration
Arbitration fans may be interested in this decision. The Fifth District affirmed an order confirming an arbitration award despite claims the arbitration panel was improperly selected under NASD rules.

 
Fourth District: Insurance
Is it possible to write an insurance policy that provides coverage for bodily injury but does not limit that coverage to incidents occurring within a particular period of time? In this case, the Fourth District identified such a policy.

 
Fourth District: Nominal Offers
Those looking to validate their nominal settlement offers may be interested in this decision from the Fourth District. The court approved a nominal offer and reversed a trial court's decision that the offer could not be a basis for a fee award.

 
Fourth District: Lemon Law
Fans of Florida's Lemon Law may be interested in this decision, where the Fourth District addressed the entitlement of a successful lemon law claimant to attorney's fees.

 
Hey, Legislature!
Somewhere in Tallahassee, a legislator is listening to the Fourth District, which in this case pointed out a potentially penalizing overlap between this statute and Florida's longstanding hunting traditions.

The statute criminalizes acts resulting in the cruel death or unnecessary pain and suffering of any animal, and the only intent necessary to violate the law is the intent to commit the act that produces the result.

The court pointed out that hunting practices may well trigger the statute -- a result that could be corrected by amending the statute to require that a person intend the prohibited result.

 
Fourth District: Jury Instructions
If there is evidence in a negligence case from which the jury could determine that a party violated an applicable statute or regulation, then the failure to instruct on that violation entitles the party seeking the instruction to a new trial. So held the Fourth District in this case.

 
Fourth District: Settlement Offers, I Do Not Like Them In A Box (Or Do I?)
How is the Florida Supreme Court like Dr. Suess's Horton the elephant? As the Fourth District explained in this decision, when the high court held that rule 1.442 requires all offers of settlement to be apportioned, the court "meant what is said and said what it meant." The rule applies to all offers, without exception.





 
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