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Friday, September 29, 2006
Florida Supreme Court: Medical Malpractice Fee Waiver
In the past year, we have seen a bit of a brouhaha concerning recently enacted article I, section 26 of the Florida Constitution. Adopted by voters in 2004, that provision guarantees claimants certain minimum recoveries in medical malpractice cases involving contingency fees. Viewed another way, the guarantees serve as caps on the fee amounts plaintiffs' attorneys can receive in medical malpractice cases -- caps that are lower than the percentages that the then-existing bar rules considered presumptively reasonable.

The amendment generated controversy from the medical community that proposed it after it became evident that the new provision was being routinely circumvented by plaintiffs' lawyers who insisted on representing medical malpractice clients only if they agree to waive the rights provided in the new constitutional provision.

To address the waiver issue, and in an effort to eliminate waivers, various attorneys filed a petition with the Florida Supreme Court, asking the court to amend the bar rules to reflect the new constitutionally-based fee caps for medical malpractice cases. You can read the petition here.

To make a long story short, the high court agreed that the Rules of Professional Responsibility needed to be amended, and the court directed the bar to draft an amendment that accounts for the new provision. Ironically, though, at least from the petitioners' perspective, the court also directed that the proposed draft include a procedure for claimants to waive the rights the new provision provides.

Yesterday, the high court released this order formally amending the Rules of Professional Conduct. The amendment includes a procedure for waiving medical malpractice claimants' constitutional recovery rights and the corresponding fee limitations. The court's order includes a discussion on how personal rights can generally be waived, but the court expressly stopped short of resolving the validity of a waiver made under the new provision. Apparently, that is an issue for another day.

Justice Wells authored a partial dissent, explaining that he agreed waivers should be permitted but would require them to be subject to judicial approval. He was troubled by the appearance of a conflict of interest when attorneys seeking fees above the constitutional limitations ask prospective clients to waive their constitutional rights to recover certain high percentages of their award. Justice Bell concurred.

Florida Supreme Court: User-Friendly Rules
Last week, in this order, the Florida Supreme Court announced a reorganization of the Rules of Judicial Administration.

The changes were adopted to make the rules more "user-friendly."

I suppose that would apply to everyone except those few who had thoroughly mastered the prior organization...

Florida Supreme Court: Judicial Vacancies
Judge Ervin is retiring from the First District on January 1, 2007 -- the end of his current term of service.

Had he been eligible for retention, and wished to serve again, he would have had to seek qualification during the qualifying period, May 8-12, 2006. Of course, he is not eligible, and he did not seek qualification.

Article V, section 10 of the Florida Constitution provides that, "[i]f a justice or judge is ineligible or fails to qualify for retention, a vacancy shall exist in that office upon the expiration of the term being served by the justice or judge." The next section provides that the Governor is to fill such a vacancy.

Earlier this year, the Governor asked the Florida Supreme Court whether Judge Ervin not qualifying for retention created a constitutional vacancy at this time, even if a physical vacancy in the office will not occur until January 1.

Earlier this month, the supreme court responded to the Governor with this letter, signed by all seven justices, which decided that a vacancy for Judge Ervin's position does not exist until the expiration of Judge Ervin's term.

Wednesday, September 27, 2006
Third District: Second Tier Review
Okay, appellate gurus: when is a circuit court's harmful, preserved error not reversible by a district court?

As this decision from the Third District shows, the answer is when the district court proceeding is a certiorari review of an appellate decision rendered by the circuit court, and the error, while indeed error, falls short of meeting the elevated "departure from the essential requirements of law" standard applied on second tier certiorari review.

Talk about awkward affirmances.

Second District: Drugs, Nuisances, and Dicta By Association
Florida law permits municipalities to create administrative boards that can declare properties to be public nuisances when they are the site of more than two illegal drug transactions. Sarasota has created such a board, and in this case, the city's board refused to allow property owners to present evidence that the police had engaged in racially selective enforcement and thereby compromised the drug activity in question.

On second tier certiorari review, the Second District held that the owners should have been able to present their selective enforcement defense.

The case also offers an example of what I will call dicta by association. Judge Altenbernd authored a concurrence in which he expressed skepticism that the circuit court could properly find the board's nuisance declaration to be supported by competent substantial evidence. Standing alone, those words are simply a single judge's view, but Judge Villanti joined the concurrence, giving it a majority of the panel's votes. That second vote elevates Judge Alternbernd's comments to official dicta, by association.

Third District: Preservation of Error
Appellate fans will be interested in this case, where the Third District held that a party failed to preserve its argument of error involving the trial court's refusal to strike a prospective juror for cause. The party had followed the usual steps of striking the prospective juror, requesting an additional peremptory challenge, and identifying who the party would have used the extra peremptory challenge to strike, but when making the cause strike motion, the party did not articulate to the trial judge the bias rationale the party presented on appeal. That bias rationale had been extensively developed in voir dire and was probably obvious, but it nonetheless was not articulated.

Third District: What's In A Name?
A lot. In this case, the Third District held that a candidate for state representative was properly disqualified from the race because he designated a name for the ballot that was not the name under which he had transacted private and official business, and which was clearly intended to deceive voters into thinking he was someone else -- the incumbent.

Third District: Public Records
If you are statutorily entitled to a public entity's records, are you exempted from having to pay for them, as a person ordinarily would when requesting records under Florida's public records laws?

The Third District tackled that question in this case, which dealt with a labor union that sought records from a public employer for collective bargaining purposes. Since 1982, the Florida Public Employees Relations Commission has held that unions can exercise their statutory right to obtain such orders without having to pay for them under the public records laws.

The court rejected the commission's position and held the statutory access right did not obviate the need for the union to comply with the payment obligations set forth in the public records laws.

Second District: Cheating
When a store owner in Alturas started selling bottled water he obtained for free from hurricane relief officials, prosecutors charged him with the rather obscure crime of cheating by false pretenses. They convicted him, and he appealed, arguing the evidence failed to show that he obtained the water by making a misstatement.

The Second District agreed in this decision. The court acknowledged that many would find the defendant's conduct offensive, but the court found no evidence in the record to show the defendant misstated anything to obtain the relief water.

I probably could have labeled this post with a "Hey, Legislature!" title, but the court did not go so far as to suggest that legislative action could directly address these situations.

Of course, the legislature could make it unlawful to sell hurricane relief supplies that the state or federal government distributed for free. I do not recall such a proposal in the last year or two, and it is probably a good bet someone will pursue that sort of legislation soon.

Third District: Public Defenders
In this, the Third District considered whether a Florida public defender can voluntarily represent a convicted person in a non-capital, post-conviction proceeding. The court said no, ruling that a public defender cannot represent a person in a non-capital, post-conviction proceeding unless a court appoints the public defender after determining such representation is constitutionally mandated.

Third District: Hearsay
Though Florida's hearsay exception for regularly kept business records may apply to medical records, this decision from the Third District reminds us that trial courts may nonetheless determine that the probative value of such a record is outweighed by the danger of confusing or misleading the jury.

Monday, September 25, 2006
Second District: When Final Judgments Aren't
When is a final judgment not a final judgment? When the trial court does not have jurisdiction to enter it. That's what happened in this case, where the Second District quashed a final judgment entered during the pendency of an interlocutory appeal.

First District: Releases
Can a gym's membership agreement release the gym from its own negligence? Sure, as can be seen in this decision from the First District.

The case also caught my eye because I belonged to that gym during my time with the state solicitor general's office...

Second District: Voir Dire
In this case, the Second District reversed a conviction based on the trial judge's erroneous imposition of a voir dire cutoff. The trial court gave no warning of a time limit, and 60 minutes into the defense's questioning the venire, the court announced that counsel had only 10 minutes to complete his examination.

The appellate court explained that trial courts have discretion to limit the amount of time for voir dire but they must give the parties reasonable notice of such constraints.

First District: Appellate Jurisdiction
Appellate specialists will tell you there is a difference between an order granting a motion to dismiss and an order dismissing a party from a case. The First District will tell you the same thing, here.

Second District: Properly Prohibiting Prohibition
If a circuit court lacks appellate jurisdiction over an agency's decisions, is the circuit court the appropriate forum to seek a writ of prohibition to block the agency from holding what you believe to be an unconstitutional arbitration?

No, said the Second District in this case, where the court granted a petition for a writ of prohibition to block the circuit court's consideration of a petition for writ of prohibition.

First District: Appellate Standing
Can you appeal a summary judgment granted in favor of your co-defendant, if the plaintiff suing you both does not oppose that motion? Sure. It happened in this case from the First District.

Second District: 57.105 Fees
Looking for proof that the current standard for receiving attorney's fees under section 57.105 is not easily met? Look here. And if you're looking for trends, you might find one by looking here, too.

First District: Statutory Rape
For a brief but authority-filled look at the validity of the Florida law that prohibits persons over 24 from having sexual activity with 16- and 17-year-old minors, regardless of whether the defendant is aware of the other's minority, check out this decision from the First District.

First District: Plea Challenges
A plea challenge based on a contention wholly contradicted by a plea agreement and colloquy can be summarily denied, as the First District explained here.

First District: Experts and Continuances
For a decision demonstrating the breadth of a trial court's discretion in excluding experts or denying last-minute motions to continue, check out this decision from the First District.

Thursday, September 21, 2006
First District: You Can't Say That
If you are thinking about filing -- or if a client, a colleague, or anyone else encourages you to file -- an appellate brief that uses grandiose insulting characterizations of the proceeding below, the opposition's position, or the opposition's attorneys, stop. Don't do it. Instead, break out a copy of this order.

The case involved a defamation suit based on how the defendants reported the circumstances surrounding a guardianship. The trial court entered summary judgment in the defendants' favor, and the plaintiff appealed. The First District affirmed the summary judgment and sanctioned the plaintiff's attorneys for the language they used in their initial and reply briefs.

For a lengthy recitation of the briefs' improper statements and characterizations, check out the order. I will point out a few highlights:

- the initial brief quoted a portion of the trial court's order and then stated, "Baloney."

- the initial brief claimed certain items filed below constituted a fraud on the trial court

- the initial and reply briefs repeatedly labeled unknown doctors whom the defendants had apparently consulted as the "Twilight Zone Doctors"

- the initial brief, arguing against the existence of a public interest, claimed, "In short, there is no controversy over a public concern here, only a bunch of Internet freaks parroting Patton's lies."

- the initial brief stated, "Appellees accused Appellant of attempted murder and claimed they had medical evidence to back it up. They lied."

- the initial brief argued, "The Final Summary Judgment, however, disparages honest journalism by legitimizing an Internet lynch mob and elevating porno queens to the level of supreme court judges."

- the reply brief argued, "This case is not about a difference of opinion; it is about lies fabricated and spread by the Appellees for profit."

- the reply brief referred to a proceeding in the underlying guardianship case as a "'Star Chamber' proceeding."

The First District's order ultimately had this to say about the briefing tactics:
[I]n addition to making offensive remarks about the trial court, appellant accuses opposing counsel and appellees of fabricating evidence, lying, and defrauding the court. Appellant relies on such accusatory language presumably because no law supports appellant's arguments.
(footnote omitted). The court held that the arguments presented on appeal were, on their merits, frivolous, and awarded the appellees attorney's fees for the appeal under section 57.105.

The procedure surrounding the sanctions order is also noteworthy. The video of the oral argument in the case is available here, and it shows that the court was very interested in the language used in the briefing and the bottom-line merits of the appeal. This exchange occurred:

Judge Webster: Is this the order you're referring to as having been entered in a "Star Chamber proceeding" in the trial court?

Counsel: It is, sir.

Judge Webster: Do you think that's appropriate lawyering?

Counsel: I have apologized for that, sir, already.

Judge Webster: Okay.

Chief Judge Kahn: Let me ask you about a few more phrases that you used in your brief, and which, to tell you the truth, we don't see all the time, counsel. And I've just picked a few out. I'm sure the other judges on this panel have them also. You used the word "baloney" to refer to an aspect of the final summary judgment. You used the phrase "Tab 18 Plants" -- P-L-A-N-T-S, you used the word phrase "Internet screwballs," and you used the phrase "Twilight Zone Doctors," and finally the phrase "Poison Pen Letter."

Counsel: I have addressed, Your Honor...

Chief Judge Kahn: These are all your appellations, I believe, they are not things somebody else attributed to these particular items, are they counsel?

Counsel: That is correct, Your Honor.

Chief Judge Kahn: What on earth do they add to your case?

Counsel: I'm sorry, Your Honor, I have explained those, and I would, if I had time, I'd like to go over them one at a, in fact, Your Honor, if I may...

Chief Judge Kahn: I'm just wondering as a matter of advocacy -- verbal, written advocacy -- when you're obviously trying to win a case. What do phrases like that which suggest at least with regard to "Twilight Zone Doctors" and forgive me if I'm wrong suggest that your opposing counsel has done something inappropriate or even dishonest.

Counsel: We're talking about First Coast News, Your Honor.

Chief Judge Kahn: They're a party, now.

Judge Webster: Do you really think using phrases like that are going to help you with an appellate court?

Counsel: Frankly, Your Honor, the language in my first draft was a lot worse.

Later in the argument, the third judge on the panel, Judge Hawkes, asked the appellees' counsel if the appeal had enough merit to avoid sanctions under section 57.105. Counsel George Gabel was taken a bit aback and gave a diplomatic answer.

After the oral argument, the court issued an order to show cause, which detailed the court's concerns and required a response from the plaintiff's counsel as to why they should not be sanctioned. The response apologized only for the use of the term "baloney."

One might wonder if the sanctions order would have been entered, and published, if the plaintiff's counsel had taken the cues from the oral argument and the order to show cause and made a thorough apology.

First District: Economic Loss Doctrine
Those suffering economic loss doctrine withdrawal (a condition caused by a widespread recent reluctance to advance economic loss defense theories) may be interested in this decision. The First District held that a complaint's tort claim based solely on a failure to comply with a contractual obligation was properly dismissed, the proper claim being a breach of contract count also pled in the same complaint.

First District: Traffic Crashes
This statute permits law enforcement officers to arrest the driver of a vehicle, without a warrant, where an investigation reveals that a "traffic crash" occurred involving the vehicle and probable cause supports a belief the driver committed certain offenses.

What's a traffic crash? The statute does not define the term.

In this case, the First District considered whether a traffic crash occurred where a driver drove her vehicle through a stop sign, across a road, across the opposite shoulder, through a driveway, and into a drainage ditch, causing about $100 in damage to the vehicle. The lower court had determined no traffic crash happened because there had been no forceful contact with another object, there being only nominal damage to the driver's vehicle.

The First District disagreed and held that while the term "traffic crash" contemplates some degree of damage, there is no minimum amount of damage, and the damage need not be to the property of another.

Questions, questions: Workers' Compensation
For the fourth time this year, the First District has certified the following to the Florida Supreme Court as a question of great public importance:
The high court declined to exercise jurisdiction in the first two cases certifying this question. Workers' compensation attorneys are no doubt hoping for better luck with the latest two...

Questions, questions: Inmate Liens
For the third time this year, the First District has certified the following to the Florida Supreme Court as a question of great public importance:

First District: Burglary
Those who have followed the Delgado saga know that the legislature has attempted to amend Florida's burglary statute to give it a meaning the Florida Supreme Court held the 1989 version of the statute did not have, and to make that meaning retroactively applicable. The latest chapter in that story is this decision from the First District. The court held that the legislature's 2004 effort to nullify Delgado retroactively was, once again, ineffective.

First District: Confrontation Clause
Criminal law fans may be interested in this Confrontation Clause decision from the First District. The court reversed a conviction that was based in part on an FDLE report detailing the positive results of contraband tests. The report had been admitted under the business records exception to the rule against hearsay, but the appellate court held the report constituted testimonial hearsay that was ineligible for that exception under the circumstances.

First District: Workers' Compensation
Punching the desk at work is probably not a good idea if you're thinking of collecting workers' compensation for the hand you injure. Check out this decision from the First District for more.

Monday, September 18, 2006
Judge Roney Passes
After the bar activities concluded last week, I put together a string of posts to start this new week off right. Most concern recent cases, and one or two of them might be considered a bit pointed.

But all that will be put aside today. I learned this morning that Judge Paul Roney of the Eleventh Circuit Court of Appeals passed away yesterday. He was 85.

Judge Roney was appointed in 1970 to what was then the Fifth Circuit Court of Appeals. When that court split in 1981 (the territory it covered had grown too populated), he joined the new Eleventh Circuit, which to this day covers Alabama, Florida, and Georgia. He took senior status in 1989 and continued to participate in cases as a senior judge through his death.

Judge Roney was an icon in St. Petersburg. He practiced law here, taught at Stetson Law School, and maintained his chambers here. For the last few years, with St. Pete's federal building being sold to private interests and later demolished in favor of a spiffy new condominium project, he worked in the building where I work, just a few floors away. For more years than I know, he lived in a condominium just two blocks away from that building (and just three blocks from where I live), and I often passed him and his staff in the elevator or walking to or from the office. He was always smiling, well attired, and extremely polite. By all accounts, he was tireless and loved his work and those around him.

His clerks speak of him with reverence. I have had the fortune of working with two of them. He engendered respect, loyalty, and confidence that the justice system was a positive instrument in the hands of those who study and embrace it.

Today's St. Pete Times has this story on Judge Roney's life and death. The Tampa Tribune has this story.

God bless, Judge Roney.

Thursday, September 14, 2006
Back Soon
There is a great deal to talk about this week, particularly some decisions released yesterday, but this morning I'm headed over to Tampa for the September Florida Bar bar section meetings. I know I will see a few regular Abstract Appeal readers there. When I'm done, I'll get to the posts.

Wednesday, September 13, 2006
What would the average judge do if someone unlawfully parked in the judge's reserved parking space? What if this was not the first time it happened and the parking lot is generally full?

This story from yesterday's St. Pete Times tells the tale of a circuit judge whose reaction was to park behind the scofflaw, trapping her car.

Today's paper is peppered with follow-up. The editorial board had this to say about how long the judge made the violator wait before she could remove her car, and columnist Sue Carlton offered this carefully worded piece that suggests the judge may be too wrapped up in his own power but doesn't directly acuse him of it.

Monday, September 11, 2006
Florida Supreme Court: Review Denied in Childers Case
If you have followed the saga of the W.D. Childers appeal, then you will be interested in this latest piece of news. Today, the Florida Supreme Court denied review of the First District's decision affirming his conviction.

Recall that the First District's decision came in two installments. The decision on the merits was noteworthy not just for the political legacy of the high-profile defendant but that the court sat en banc from the outset and released ten -- yes, ten -- opinions in the case.

The district court's rehearing and certification decision next became a hot topic not only for its extensive discussion of en banc procedures but for one judge's concurring opinion that openly questioned the appearance created by another judge's participation on the original three-judge panel in the case.

You can read the order denying review here.

Chief Justice Lewis and Justice Cantero dissented without comment, and Justice Bell recused himself.

You may recall that a footnote in an earlier filing by Childers suggested that Justice Bell should recuse himself in this latest proceeding "for reasons well known to Justice Bell." This earlier Abstract Appeal post had some thoughts on that comment.

Back In Blog
Many, many thanks to those who've stopped by here in the past week or so. A number of work and extracurricular activities left me consumed. I'll be back later today. There are lots of things to talk about.

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

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