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Tuesday, October 31, 2006
More Debatable
Following up on the prior post, Judge Whittemore's order yesterday appears not to have been a written one.

An oral order authorizing a candidate to participate in a debate...


If you tuned in to last night's Florida gubernatorial debate, you saw not two but three candidates. According to this story in today's St. Pete Times, U.S. district judge James Whittemore entered an order 20 minutes before the debate began, requiring organizers to allow Reform Party candidate Max Linn to participate.

I have not yet seen a copy of the order but will post it when I get one.

First District: Election Signs
Election cases. They're back...

On Friday, the First District confronted the issue of whether notices can be placed near polling sites to inform voters that a vote for Mark Foley, former U.S. Congressman and a Republican candidate on the current election ballot for Florida's 16th congressional district, will actually be a vote for Joe Negron. Foley has withdrawn from the race and the Republican Party has substituted Negron as its candidate.

Florida's Secretary of State proposed a notice to be posted at polling places that would inform voters a vote for Foley on the ballot will be counted as a vote for Negron. The general counsel for the Florida State Association of Supervisors of Elections proposed a notice that would offer the same information as well as that a vote for Democratic candidate Tim Mahoney will be counted as a vote for Mahoney and a vote for no party affiliation candidate Emmie Ross will be counted as a vote for Ross.

Florida's Democratic Party challenged the display of these notices, and a circuit court in Tallahassee held that elections officials had no authority to post them. The circuit court enjoined the officials from doing so.

In this decision, the First District disagreed. The district court held that posting informative and impartial notices to avoid voter confusion is within the authority of elections officials.

The district court further determined that the notice proposed by the Florida State Association of Supervisors of Elections was an informative, impartial, and therefore valid notice, while the notice proposed by the Secretary of State could be perceived as partial toward Republicans, since it mentions only the Republican candidates. Accordingly, the appellate court affirmed the injunction with respect to the single-party notice and reversed the injunction as it applied to the multi-party notice.

The appellate court rejected the Democratic Party's argument that providing even lawful, impartial notices at polling sites violated the equal protection rights of those who received absentee ballots by mail unaccompanied by such notices. The court held that providing unbiased factual information to voters does not implicate equal protection.

So voters in Florida's 16th Congressional district may see notices telling them that a vote for Foley is a vote for Negron, a vote for Mahoney is a vote for Mahoney, and a vote for Ross is a vote for Ross.

I suppose we should be thankful no one insisted on informing voters that no vote for any candidate will not be counted as a vote for any candidate....

First District: Valued Policy Law and Improvements To Statutory Interpretation
Prior to 2005, Florida's valued policy law provided that where property is declared a total loss, the insurer's liability is the full value of the policy covering the property. What happens under that law if the property is damaged by multiple causes, one a covered peril and the other an excluded peril?

In this case, the First District addressed that question and agreed with an earlier decision from the Fourth District that coverage must be provided at the policy's limits.

The majority opinion is notable in multiple respects. The court invoked Justice Scalia's well-known precepts on interpreting statutes by their text. The court also devoted substantial attention to the 2005 amendments to the valued policy law, ultimately holding that they were of no moment because they were not retroactive and could not affect the court's interpretation of the longstanding prior law.

I found that last point refreshing to read.

In the last few years, multiple district court decisions have erroneously looked to statutory amendments to determine the intent behind longstanding earlier versions of the same statutes. We saw that happen in this district court decision, which the Florida Supreme Court later indirectly reversed. We also saw the same thing happen in this case (albeit over an eminently wise dissent), and the supreme court directly disapproved that decision, explaining the error.

Hopefully the tide has turned in this regard.

Returning to the merits of the First District's valued policy law decision, I should add that Judge Polsten dissented. He viewed the prior law as setting the value of any loss but not resolving the issue of whether coverage existed where multiple causes gave rise to a loss. Notably, Judge Polsten referenced the 2005 amendment to the statute, but he did so only to compare the amended language to its predecessor, not to interpret the intent behind the prior version.

First District: Borrowed Servant Doctrine, Preserving Closing Argument Challenges
In the hospital nursing context, the borrowed servant doctrine allows a hospital not to be liable for the actions of a hospital-employed nurse who acts at the direction of a physician.

Should that doctrine be limited to surgery situations? The nursing conduct at issue in this case took place 10 hours after a surgery ended, and the trial court instructed the jury on the borrowed servant doctrine. The First District held that the doctrine did not apply as a matter of law.

Nonetheless, the appellate court refused to reverse a jury verdict in favor of the hospital. The court explained that giving the instruction was harmless error, since the jury found the hospital's nurses were not negligent and the jury was instructed not to consider the borrowed servant defense unless the plaintiffs proved their negligence claims.

The case also presented an interesting discussion on closing arguments. The district court held that an assertion of closing argument error is not preserved for appeal where no contemporaneous objection was made to the argument and the appellant's motion for new trial did not reference the specific argument to be challenged on appeal. Put another way, if you are going to file a post-trial Murphy motion regarding unobjected-to closing arguments, you must include in the motion every instance of allegedly improper closing argument in order to preserve that challenge for appeal.

First District: General Masters
If a party timely objects to a trial court's order referring a family law case to a general master, the matter simply cannot be heard by a general master. The First District explained as much in this case.

Most interesting to me, the court also stated that the error of an unconsented general master hearing going forward can be raised by mandamus, prohibition, or final appeal. I suppose that rare situation -- where relief is available by both extraordinary writ and plenary appeal -- is because the error touches upon subject matter jurisdiction.

Monday, October 30, 2006
Appellate Rules Amendments
On Thursday, the Florida Supreme Court issued this order amending the Florida Rules of Appellate Procedure.

Here are some highlights:

1. The court modified rule 9.120 to require jurisdictional briefs in certified conflict cases. The court declined to do the same where the high court's jurisdiction is invoked based on a certified question of great public importance.

2. The court amended rule 9.200 to require court reporters to provide electronic copies of transcripts (in addition to paper copies) to both the court and the parties where transcripts are designated for inclusion in a record on appeal.

3. The court changed the page limits for briefs presenting cross-appeals. Now, an appellee/cross-appellant's answer/cross-appeal brief must be no more than 85 pages. That's right -- 85 pages.

4. The court modified rule 9.300 to eliminate the provision that excepted motions filed in the Florida Supreme Court from the list of motions tolling briefing schedules. The practical effect here is that motions that previously tolled time in a district court will now automatically toll time in the supreme court, without a special separate request for that relief.

5. The court amended the rule governing amicus briefs to make the deadline for serving them run from the time of service (rather than the time of filing) of the relevant party's brief. The practical effect of this amendment would seem to be that amici can now take advantage of "mailing days" under the computation of time rule.

The amendments take effect January 1, 2007.

Florida Supreme Court: Bad Faith
Does an insurer's tender of policy limits in response to a civil remedy notice preclude a third-party from pursuing a common law bad faith claim against the insurer? No, said the Florida Supreme Court in this decision. The court explained that statutory and common law bad faith claims are distinct, and the statutory cure provision does not permit an insurer to avoid a common law claim.

Florida Supreme Court: Failure To Prosecute
This decision from the Florida Supreme Court concerned the 2003 version of rule 1.420(e), Florida's failure-to-prosecute rule. The court confirmed the former rule requires a two-step procedure: the party seeking dismissal must demonstrate a lack of record activity, and if that is done, the party seeking to avoid dismissal must affirmatively demonstrate good cause for the deficiency.

The court also clarified that pending motions that do not require trial court action do not necessarily establish good cause, and the court concluded that the petitioner failed to meet the burden of timely demonstrating good cause.

Florida Supreme Court: On Being Adversely Affected
In this decision, the Florida Supreme Court examined who is a party "adversely affected" by a trial court's remittitur or additur. Is it the party receiving an additur or remittitur in an arguably insufficient amount? Or the opposing party?

The supreme court said yes to both. The court held that either side can be "adversely affected" by the amount of an additur or remittur, and thus either side can opt for a new trial when an additur or remittur is granted.

The court acknowledged the practical effect of its decision: additurs and remittiturs will only be effective where both parties agree to the amount.

I wonder if this result effectively means that Florida's appellate courts will be out of the business of determining the proper amount of any remittitur or additur.

Florida Supreme Court: Statutory Incorporation
Can I sue someone for breach of contract where I am not a party to the contract and the term I claim was breached is not a term of the contract?

Yes, if I am among the plaintiffs in this case. The Florida Supreme Court held that the plaintiffs, who were medical service providers, could sue health maintenance organizations for breaching their contracts with their subscribers by failing to make prompt payments to the providers.

The court followed the long-recognized but rarely utilized statutory incorporation doctrine to determine that an HMO's statutory obligation to make prompt payment to medical service providers was an implicit part of the contracts between the defendant HMOs and their subscribers, the patients. The court further determined that the service providers can be third-party beneficiaries to those contracts and thus can sue for failure to comply with "prompt pay" obligations.

Keep an eye open for the statutory incorporation doctrine. It's going to attract attention.

Thursday, October 26, 2006
Florida Supreme Court: Arbitration
Arbitration remains hot. This time it's the Florida Supreme Court wading into the water. The case looks like a good example of what it means to resolve all doubts in favor of arbitration.

The parties agreed to arbitrate their disputes, but the agreement further provided that a demand for arbitration cannot be made when the institution of judicial proceedings would be barred by the applicable statute of limitations.

So who gets to decide if the limitations period has passed -- a court, or an arbitrator? The Fourth District held that whether the limitations period had passed, and thus whether arbitration could be demanded, was for a court to decide. The Fifth District disagreed, holding that the limitations issue was simply a defense to an agreed-upon arbitration and for the arbitrator to decide.

A unanimous supreme court agreed with the Fifth District. The limitations defense is for the agreed-upon arbitrator.

Florida Supreme Court: Homestead Hint?
When the Florida Supreme Court issued this amendment to the Rules Regulating The Florida Bar, allowing medical malpractice plaintiffs to waive their new constitutional right to keep certain percentages of their recoveries, the court offered a brief discussion on waiving rights before announcing it would not, at that time, determine the validity of the waiver mechanism the court approved:
Numerous instances of judicial recognition of the right to waive constitutional rights have been cited to the Court. For example, even the most basic fundamental constitutional rights, such as the Fifth Amendment right to remain silent and the Sixth Amendment right to counsel may be knowingly and voluntarily waived. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Additionally, Florida's highly valued constitutional homestead protection is subject to waiver. See Hartwell v. Blasingame, 564 So. 2d 543, 545 (Fla. 2d DCA 1990) ("Although the constitution and statute do not expressly recognize a person's right to waive [homestead] protection, it has long been recognized that an individual is free to knowingly and intelligently forego a right which is intended to protect only the property rights of the individual who chooses to make the waiver."), approved, 584 So. 2d 6 (Fla. 1991). We also note that nothing in the plain language of article I, section 26 prohibits a waiver of the rights granted. Nevertheless, in the context of this rules case, we decline to actually determine the legal issue of whether the rights granted to medical malpractice claimants under article I, section 26 may be waived.
Did anyone notice the line about how homestead rights can be waived? It struck me as odd because that precise issue is currently before the supreme court. In the past year, the Third District issued multiple opinions in a case on the homestead waiver issue, ultimately settling on this decision which held that homestead rights cannot be waived and certified a question of great public importance on the subject.

Very odd.

Florida Supreme Court: Anticipatory Conflicts
Most fans of the Florida Supreme Court understand that the court does not have jurisdiction to hear an appeal from every district court decision. One of the few situations where the high court can review a district court decision, though, is where it expressly and directly conflicts with a decision from another district or from the supreme court.

Can you obtain conflict review on grounds that a district court decision conflicts with a decision the Florida Supreme Court will later decide?

This decision from the supreme court suggests that, at a minimum, the court can accept jurisdiction in a case based on a conflict that arose after the petitioner attempted to invoke the high court's jurisdiction. The petitioner had argued that conflict existed at the time review was sought, but the court rejected those arguments. Nonetheless, the court found it had jurisdiction in the case based on conflict with a decision the court released after the petitioner sought review.

Justice Cantero dissented and was joined by Justices Wells and Bell. Justice Cantero explored why the court should not have jurisdiction under such circumstances and, even if jurisdiction could exist, why the court should not exercise it.

Wednesday, October 25, 2006
Fourth District: Debates and Free Speech
Yesterday, I heard that a circuit judge in Broward County issued an injunction that required the organizers of last night's gubernatorial debate to include Reform Party candidate Max Linn in the event. Organizers claimed they had long ago imposed objective criteria for who could participate and that Linn's support did not meet the 10 percent statewide threshold they had set.

Then I tuned in to watch the debate, and it was just two candidates: Charlie Crist and Jim Davis. No Linn.

This story in today's Sun-Sentinel explains that Florida Public Broadcasting Service immediately appealed the injunction and obtained an order yesterday afternoon from the Fourth District allowing organizers to exclude Linn.

I have not seen the Fourth District's order yet, but I suspect it is supported by this decision from the U.S. Supreme Court. There, the nation's high court explained that while the First Amendment applied to a public television debate among election candidates, the debate's organizers could exclude a candidate with little popular support.

Monday, October 23, 2006
Second District: Duty to Retreat
When the legislature changed Florida law last year and essentially eliminated the common law duty to retreat before using deadly force (see this prior post for more), some persons decried the change.

I occasionally see billboards decrying Florida as the "shoot first" state or that try to frighten tourists into believing they have now crossed onto the set of a western movie when they enter Florida. (See this 2005 story from the St. Pete Times for more on such ads.)

Well, the next time you find yourself pondering the merits of the 2005 change and just what effects it might have, consider this case. It shows how, under the old law, the victim of an attack who responds with deadly force could wind up in a murder trial where the entire focus is on whether the victim could have retreated. The case involved not a gun but a knife, and the victim had been physically attacked by the decedent, who also verbally threatened to kill the victim. The victim's defensive use of the knife killed the attacker, essentially transforming him from victim to murderer. A jury convicted him of manslaughter without a weapon -- something the appellate court acknowledged was a partial jury pardon. He received 25 years in prison.

On appeal, the Second District determined the state failed to present evidence that the defendant's acts were anything but self-defense and that he had any reasonable opportunity to retreat under the case's particular facts. The trial court was therefore directed to acquit the defendant as a matter of law. The appellate court admittedly struggled with the decision "nearly as hard as the jury struggled."

Under the new law, which took effect after the events at issue in this case occurred, there would have been no issue of a duty to retreat. The issue would only have been whether the defendant reasonably believed deadly force was necessary to protect himself.

I think people who oppose last year's legal change have good points to make. So do the people who support the change. Hopefully people on both sides understand how the new law will actually change the way these situations play out.

Second District: Privileges
If a plaintiff places her mental state in issue by seeking damages that include mental anguish, and the defendant uses that assertion to seek to discover the plaintiff's privileged psychological records, can the defendant be blocked from obtaining those records if the plaintiff withdraws the mental anguish claim?

Yes, said the Second District in this decision, which granted a petition for writ of certiorari.

Second District: Res Judicata
The defense that a plaintiff has violated the rule against splitting causes of action is an aspect of res judicata, and, as such, is generally inapplicable as a ground for granting a motion for judgment on the pleadings. Check out this decision from the Second District for more.

Second District: Use of Uncounseled Pleas
For a very interesting constitutional-level look at how pleas entered without counsel may form the basis for an administrative "habitual traffic offender" designation which is, in turn, later used to support a felony conviction for driving with a suspended license, check out this decision from the Second District.

Second District: Estate Claims
Can a personal representative make a "partial objection" to a statement of claim against an estate? No, explained the Second District in this decision.

Thursday, October 19, 2006
A reader kindly alerted me that in the original version of the rule 9.110(m) post below, I left out the link to the First District's opinion. That's fixed now.

Wednesday, October 18, 2006
Florida's judicial role in the last appellate efforts of convicted Gainesville murderer Danny Rolling may be at a close. The Florida Supreme Court released this opinion this morning. It rejects Rolling's latest efforts to avoid lethal injection later this month.

First District: Funeral Expenses
The appellant in this case received all of a decedent's assets, while the decedent's children paid for the funeral. When the children sought to recover the funeral expenses more than two years after the death, and a trial court permitted recovery, the appellant successfully appealed to the First District. The appellate court held the claim came too late.

Beneficiary of the year might be a long shot.

First District: Insurance Appeals
Does rule 9.110(m) authorize non-final appeals from partial summary judgment orders that determine coverage exists under an insurance policy? In this decision from earlier this year, the Second District said no, that the rule simply allows final judgments determining coverage to be treated in the same expeditious manner that the appellate rules require non-final appeals to be treated.

Recently, the First District considered the same question and dismissed this non-final appeal under the rule, but the court's rationale was rather different. The court found it dispositive that no underlying personal injury suit was pending, since the parties to that suit had already settled it:
[T]here is no danger of delaying the underlying action absent prompt appellate review; therefore, the summary judgment is not subject to immediate and expedited review under rule 9.110(m).
Anyone else sense a conflict?

First District: Psychotherapist-Patient Privilege
In this case, the First District reminds us that the psychotherapist-patient privilege can be waived where the patient places a mental or emotional condition in issue, but it cannot be waived by other parties doing so.

Tuesday, October 17, 2006
Internet Defamation: Defenseless
Did anyone notice this story from last week about a South Florida defamation suit based on message board postings? I saw several stories on it, most of them making the case sound like a legal breakthrough.

Apparently, however, the out-of-state defendant could not afford counsel for the trial and did not even attend. That lack of representation would seem to undermine whatever precedential value the case might otherwise offer.

Fourth District: Medical Malpractice and Causation
This is an interesting medical malpractice case. The plaintiff, as personal representative of her husband's estate, sued a doctor for failing to admit the husband to a hospital. A jury found the defendant liable, but the trial judge granted the defendant judgment as a matter of law, finding the verdict could only be based on speculation.

On appeal to the Fourth District, a majority held that expert testimony the husband had a 60 percent chance of survival had he been admitted provided a sufficient evidentiary basis for the jury's verdict. Judge May dissented, asserting the expert testimony was based on admitted speculation.

That the majority never directly addressed Judge May's point made me wonder if there had been any objection to the admission of the expert testimony in the first place.

Fourth District: Rule 1.442
We have another settlement proposal case to consider. This one concerns a plaintiff's demand for judgment against the owner of a vehicle that allegedly injured the plaintiff in an accident. The plaintiff did not sue the vehicle's driver.

The trial court held that the plaintiff's settlement proposal lacked the particularity required by rule 1.442.

The Fourth District affirmed. The court held that the settlement proposal's language concerning an offered but unprepared release was ambiguous. According to the court, a copy of the offered release was not attached to the proposal, no summary was given, and, probably most significant to the case, nothing indicated whether the release would extend to another person for whose acts the defendant was vicariously liable.

Judge Hazouri dissented. He asserted that the release would have settled all claims between the plaintiff and defendant and that no ambiguity existed.

Fourth District: Bad Faith
In this bad faith case against an insurer, the Fourth District explained that a plaintiff's conduct in inviting settlement but taking action inconsistent with wanting to settle is relevant to the insurer's defense.

That holding might make some question the rationale behind the decision I discussed in this Abstract Appeal post from early September.

Fourth District: Sanctions
There is a proposal brewing out there that would simplify the process by which Florida judges can sanction attorneys for misconduct. This decision from the Fourth District involves the current process.

Questions, questions: Attorney-Client Privilege, Bad Faith Cases
In this case, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:
The district court answered the question in the negative. Judge Polen dissented from that holding.

Fourth District: Juror Waiver
A defendant in a non-capital criminal case in Florida is constitutionally entitled to a jury of six persons.

In this case, one juror of the six was dismissed from service during the defendant's trial. The trial court informed the defendant that it would grant a mistrial if requested by the defense, but the defendant asked to go forward with five jurors. The trial court engaged in a direct and extensive colloquy with the defendant before allowing the trial to continue. The defendant lost.

On appeal, he argued that the trial court erred in permitting the trial to go forward with five jurors, contending the trial court failed to establish his waiver was knowing, intelligent, and voluntary. The Fourth District affirmed.

Fourth District: Self-Representation
The key to an indigent person proceeding pro se in a criminal case lies in making a knowing and intelligent waiver of the right to counsel. The Fourth District explains in this case that the "intelligent" portion of the inquiry does not call for an examination of the defendant's own legal skills.

Fourth District: Privilege Logs
I suspect many trial lawyers' hats are tipped to the Fourth District for keeping sense in the matter of discovery privilege logs in at least one narrow context.

In this case, the court explained that a privilege log need not be produced, and thus its omission is no waiver of any privilege, where a party objects to a discovery request as overbroad and harassing in addition to calling for privileged information. Until the court rules on the scope of discovery issues, the recipient of the discovery request need not compile a log of responsive yet privileged materials.

As the court explained:

Where a party claims that the production of documents is burdensome and harassing, such as was done here, the scope of the discovery is at issue. Until the court rules on the request, the party responding to the discovery does not know what will fall into the category of discoverable documents. If the party is correct in her assertion that the documents requested are burdensome to produce, why should she still go through all the requested documents to determine which ones are privileged, even though none of them may be required to be produced because the request is burdensome?
In a footnote, the court reminded us that where the only objection to a discovery request is based on privilege, compliance with rule 1.280(b)(5) is required.

Fourth District: Appellate Procedure
The Fourth District's decision in this case reminds us that an order in Florida may be final and appealable between a plaintiff and one defendant but not final and appealable as to another defendant, where the order leaves claims pending between the plaintiff and the second defendant.

Fourth District: Legal Fees
Here is an unusual case about a lawyer suing a client's family members for fees under various legal theories, including fraud. Reversing a summary judgment for the defendant family members, the Fourth District points out that agreements for legal representation, even where fees will be paid be a third person, need not be in writing unless they involve a contingency fee arrangement.

Trial judges might wish to note the appellate court's expressed dissatisfaction with the trial judge in the case having granted summary judgment in part on a ground not raised by the defendants. The trial court had used its own knowledge of Haitian culture to interpret English language the Haitian defendants had used in their correspondence with the attorney.

Fourth District: Disqualification of Counsel
The Fourth District reminds us in this case that disqualification need not result every time an attorney inadvertently obtains an opponent's attorney-client privileged information.

Fourth District: Arbitration
This arbitration decision from the Fourth District distinguishes between determining who prevailed in an arbitration and awarding attorney's fees to the prevailing party.

Fourth District: Good Faith and Fair Dealing
It may be unusual, but in this commercial contract case, the Fourth District reversed a summary judgment in favor of one party and ordered summary judgment entered in favor of the other party, apparently based on a breach of the implied duty of good faith and fair dealing.

Fourth District: RICO
The Fourth District's decision in this case, which contains an interesting discussion on the constitutionally distinct natures of the State Attorney's office and the Department of Legal Affairs, concludes there is no statutory provision that would allow a successful criminal RICO defendant to recover attorney's fees incurred in the defense.

Fourth District: Breach of Contract
When does the statute of limitations begin to run on a breach of contract claim where a party has anticipatorily breached the agreement? As this decision from the Fourth District shows, the limitations period may not begin until the time for performance has passed.

Fourth District: Pain and Suffering
Does a trial court necessarily err in denying a motion for new trial based on the asserted inadequacy of a jury awarding past medical expenses for a foot injury but no pain and suffering damages? No, said the Fourth District in this case.

Fourth District: Annexation
Those interested in municipal annexation may be interested in this decision from the Fourth District. The court also addressed the severability of county charter amendments where portions of an amendment are unconstitutional.

Fourth District: To The Point
In this case, the Fourth District's decision consisted entirely of the following:
Upon review of the record, we cannot conclude that there was reversible error or an abuse of trial court discretion. We have considered the cases cited by Appellants, but deem them distinguishable. Therefore, the non-final order is affirmed.
I suspect many attorneys will agree that such a decision is far preferable to a simple "per curiam affimed" decision.

Friday, October 13, 2006
Blog Time
An awful lot of notable developments are occurring, I know. I'll get to them as soon as I can...

Tuesday, October 10, 2006
This decision from the Fourth District is certainly noteworthy. At least in the court's view.

I do not have the knowledge to say it is the only opinion in Florida's jurisprudence that utilizes a footnote after each of the opinion's first five sentences, but I can say I am not aware of any other decision with that distinction.

Fourth District: Temporary Possession
This decision from the Fourth District explains that taking temporary possession of contraband is not unlawful -- as where a parent finds a child with contraband and disposes of it or a person walking along a beach finds contraband washed ashore and takes it to the authorities.

The case also explains that to pursue a temporary possession defense and receive an appropriate instruction, the evidence in the case must support that theory.

Fourth District: Arbitration
In this decision, the Fourth District reminds us that attorney's fees are a matter for the court in an arbitration case unless the parties have expressly referred that issue to the arbitrator.

Monday, October 09, 2006
Constitutional Cafeteria
Ah, Florida's constitutional cafeteria is open once again. Our first selection comes from this morning's St. Pete Times, which brings us this piece on the proposed constitutional amendment that would increase the popular vote needed to amend the state constitution. You can read that proposed amendment here.

In the next few weeks, I am going to chat at length about each of the proposed constitutional amendments that will be on next month's general election ballot. Great stuff.

Certified Conflict: Watch What You Say
A Florida statute on child abuse prohibits the "intentional infliction of physical or mental injury upon a child." The statute does not define "mental injury."

Can mental injury be the result of mere words? If so, does the law's prohibition against using mere words upon a child contradict the First Amendment's free speech protections? To be within the statute, but outside its constitutional reach, must the speech be "protected" speech?

The district courts are currently caught in a constitutionally intriguing disagreement over the answers to such questions.

In this case, the Fourth District addressed a defendant's statements that encouraged a minor to get a knife and stab his mother. The court held that the speech at issue was unprotected speech but that the speech's status as such did not matter: the statute is overbroad as it applies to speech and speech alone cannot form the basis for a "mental injury" prosecution.

To the contrary is this decision from the First District. In the context of some salacious comments the defendant made to young girls, the First District held that speech to which the statute applies should only be speech meeting the definitions of both "abuse" and "mental injury" utilized in Florida's statutory chapter relating to children. The First District concluded that doing so would confine the statute to speech that is wholly unprotected by the First Amendment, eliminating any overbreadth problem.

The First District decision certified conflict with the Fourth District decision.

Fourth District: Arbitration
I suppose I sound like a broken record -- or in more modern parlance I should say a scratched disc -- when I note once again that arbitration remains hot. Very hot. Perhaps hotter than some appreciate -- especially when mixed with waiver issues, which are quite hot themselves.

Take, for instance, this recent decision from the Fourth District. A plaintiff challenged an arbitration agreement on grounds its remedial limitations violated Florida's public policy by waiving the plaintiff's statutory remedies. Agreeing, the court reached two noteworthy holdings.

First, the court held that a challenge to an arbitration agreement's remedial limitations is a challenge to the arbitration agreement, making the issue one for a court, not an arbitrator. The Fourth District noted this contrary decision released months earlier by the Second District, where the Second District concluded that a challenge to an agreement's remedial limitations is not a challenge to whether the parties agreed to arbitrate in the first place and the agreed-upon arbitrator can resolve the challenge to any remedial limitation. The Fourth District characterized its sister court's comments as dicta.

The Fourth District's decision is also noteworthy for its resolution of the plaintiff's public policy challenge. The court held, as it has before, that waiving punitive damages and capping non-economic damages defeats the remedial purpose of Florida's nursing home statutes and that such an agreement is void.

One might contrast that last holding with the Florida Supreme Court's decision two weeks ago to amend the Rules Regulating The Florida Bar and allow clients claiming injury by medical malpractice to waive their new constitutional right to keep certain percentages of their recovery -- waivers that eliminate the fee caps effectively put in place by the constitution. Two justices stated that such waivers are permissible, and the entire court agreed with including the waiver procedure in the rules. For more on that decision, check out this prior post.

Thursday, October 05, 2006
Happy Holiday
Today begins Florida's one-week sales tax holiday for new, "Energy Star"-quality dishwashers, clothes washers, air conditioners, ceiling fans, incandescent or fluorescent light bulbs, dehumidifiers, programmable thermostats, and refrigerators.

Items costing over $1500 do not qualify, as do items purchased for business, trade, or resale.

For more information, check out this announcement from Florida's Department of Revenue.

I think I'll go buy a few light bulbs.

Third District: Way!
Yesterday, the Third District affirmed a civil judgment against major league slugger Jose Canseco and his brother Ozzie. The claims involved an altercation at a Miami Beach night club, where Jose apparently attacked and injured a patron. Both brothers were found liable for battery, conspiracy to commit battery, and the intentional infliction of emotional distress. The appellate court's brief affirmance is available here.

Wednesday, October 04, 2006
"This Isn't About Money"
So said the brother-in-law of a permanently disabled man who, on Friday, won a $116.7 million compensatory damage award in a medical malpractice case, according to this story from today's St. Pete Times. As the story further explains, yesterday, the jury in the case returned an additional $100.1 million verdict for punitive damages against the defendants.

Record numbers, apparently.

Today's Tampa Tribune has a story on the verdicts here.

Tuesday, October 03, 2006
Fourth District: Easy As ABC... BBD
The defendant in this case correctly pointed out that Florida law prohibits mingling poison with food or drink with the intent to kill or injure, but the law does not define "poison."

Nonetheless, the Fourth District had no problem rejecting the defendant's arguments that the omitted definition makes the prohibition unconstitutional on its face or as applied to her.

She had placed rat poison in her victim's drink.

Fourth District: Insurable Interests
This case presents a rather interesting situation. A divorcing couple agreed that the former wife could obtain an insurance policy on the former husband's life and that he would maintain a $500,000 life insurance policy so long as he owed alimony or child support.

The former wife obtained a $1 million policy on the former husband's life. Years later, after the alimony obligation expired with the former wife's remarriage and the child support obligation was nearly expired, the former husband filed a petition seeking to modify the earlier agreement. He asserted that the former wife no longer had an insurable interest in his life.

Skipping much of the procedural details, the trial court dismissed the petition and the former husband appealed. The Fourth District reversed for a hearing on the parties' intent in making the agreement, but not before observing that with respect to life insurance, an insurable interest must exist not only at the policy's inception but throughout its existence.

Judge Farmer authored an intriguing concurrence. He explained that any ambiguity in the agreement should be construed against the former wife's interpretation, which Judge Farmer concluded to violate Florida's public policy. He explained that the former wife could maintain insurance on the former husband's life only so long as that insurance was necessary to protect a support obligation owed by the former husband. To construe the agreement otherwise would turn it into what Judge Farmer called a War of the Roses pact. In a footnote, he described that film as one whose "darkly humorous plot suggests that only with extreme measures may divorce be survivable."

Fourth District: Rule 1.540
Florida Rule of Civil Procedure 1.540 contains numerous grounds for setting aside a judgment, including that it is no longer equitable to give the judgment prospective effect.

In this case, the Fourth District explained that the rule's "no longer equitable" ground is mutually exclusive with the rule's other grounds. Therefore, while the rule allows judgments to be vacated for intrinsic fraud, the one-year time limit associated with that ground cannot be avoided by arguing that intrinsic fraud makes giving the judgment prospective application inequitable.

Fourth District: Offers of Judgment
In this case, the Fourth District held that an offer of judgment made in an amount greater than the plaintiff's recovery but less than 25 percent greater than that recovery could not be used to demonstrate the unreasonableness of the plaintiff's attorney's time and costs after the offer was rejected.

Fourth District: Pest Control
If you did not know that application of an insufficient concentration of termite pesticide can be the subject of administrative disciplinary proceedings before the Department of Agriculture and Consumer Services, then you know now.

Fourth District: Double Jeopardy
Does the protection against double jeopardy apply to a probation hearing that began but concluded before any evidence was taken? The Fourth District said no in this case.

Monday, October 02, 2006
Third District: No Unexplained Reversals
A circuit court reviewing an adminstrative order in a certiorari proceeding cannot quash the administrative order without giving written reasons to support that result. So said the Third District in this case, which seems to stand for the more broad proposition that the integrity of the judicial system requires that the reversal of any order be explained by the appellate court.

Third District: Rendition
Deadlines for initiating an appellate proceeding generally run from the rendition of an order, and rendition occurs when an order is reduced to writing, signed by an appropriate official, and filed in the appropriate public office.

Are these concepts maintained when a statute provides that judicial review of an order must be initiated within 30 days of its rendition? They were in this case, where the Third District held that section 163.3215(3) incorporates the judicial meaning of rendition when it requires challenges to development orders to be filed within 30 days of order's rendition.

The city development order at issue was signed by the city's mayor on one day and entered into the city's records by the city clerk on the following day. The Third District held that rendition occurred upon filing by the clerk, not upon the mayor's signature, and the 30-day period in which to file a challenge ran from the second day.

Third District: Attorney-Client Privilege
Can a party that wishes to rely upon an advice of counsel defense make a limited waiver of the attorney-client privilege? Yes, as shown by the Third District's decision in this case.

Third District: Service
Serving a party is not the same as serving the party's attorney of record, and doing the former while failing to do the latter can invalidate a judicial order. Check out this this decision from the Third District for an example.

Third District: Arbitration
Where an employment agreement that contains an arbitration provision expires, and the employment continues, will subsequent problems be subject to arbitration under the provision? Not under the facts in this decision from the Third District.

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