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Wednesday, January 31, 2007
 
Catching Up...
As you might be able to tell, I'm getting there. I'm basically up to date with the First, Second, and Third Districts. Today's yet another day trying to catch up in the Fourth.

Soon, or, to mince a phrase from our elders and betters in Tallahassee, soon enough...

 
Fourth District: Partial Final Judgments
Do today's district courts of appeal ever recognize orders to be partial final judgments, immediately appeable despite the pendency in the lower court of additional claims between the parties?

Some would say such orders are rarely found and that district courts will seize upon any opportunity to tie the adjudicated claims to the pending claims and not allow piecemeal appeals.

But those who say that might not be following the Fourth District. This order from that court allowed an appeal from what it determined to be an appealable partial final judgment.

An employee had been driving a truck that overturned. He sued his employer in negligence, under the intentional misconduct exception to the workers' compensation immunity bar. He also sued the employer for spoliation of evidence and failing to comply with a statutory obligation to cooperate with the employee's efforts to sue third persons.

With the first claim still pending, the trial court entered an order dismissing the other two claims. The employee appealed the dismissal order.

Examining its own jurisdiction, the district court held that because the dismissed claims related to events occuring after the accident, while the pending claim related to alleged breaches of duty occuring before the accident, the resolved claims sufficiently differed from the pending claims to give rise to appellate jurisdiction.

 
Fourth District: Second-Tier Review, Preservation
This decision from the Fourth District contains an interesting point.

The case began in a county court, which issued a subpoena for medical records. The defendant sought certiorari relief from the local circuit court, which denied the petition through a single-judge order, notwithstanding a local administrative order requiring such matters to be determined by three-judge panels. On second-tier certiorari review by the Fourth District, the respondent argued that the procedural issue was not preserved because it had not been raised in the court below.

The district court disagreed, holding that the first time the petitioner was aware of the error was upon receipt of the circuit court's one-judge order and that the failure to seek rehearing on such a procedural issue did not preclude the district court from reviewing the matter.

 
Fourth District: Insurance
This brief opinion from the Fourth District reminds insurers that if they ineffectively cancel a policy, their actions may be seen as nonetheless repudiating the policy, which can relieve the insured of its policy duties. The court held the insured had no duty to notify the insurer of a suit brought against the insured by a third party.

 
Fourth District: Voting and Mandamus
In this case involving a group's demand that the City of West Palm Beach place certain initiatives on a particular election ballot, the trial court denied the group's mandamus petition on grounds of laches, i.e., the group waited too long. The Fourth District affirmed.

 
Certified Conflict: Fees After Volutary Dismissals
In this case, the Fourth District affirmed an award of prevailing party attorney's fees to a defendant after the plaintiff voluntarily dismissed the action. Notably, the plaintiff later refiled the suit and ultimately prevailed in that second action.

The district court recognized that, under a 1985 decision from the Third District, the court should look behind the dismissal to whether it represents an end to the litigation on the merits. Rejecting that approach, which two other districts have rejected as well, the Fourth District certified conflict.

 
Fourth District: Alimony
Judge Farmer has turned a few good phrases, to be sure. His means of capturing the modern observation that most divorced couples cannot separately maintain the lifestyle they once shared, set out in this decision from the Fourth District, caught my eye. He explained:
In effect the [trial] judge concluded that even the amount of modified alimony in this case must insure that Mitzi's lifestyle continues at the level achieved during marriage when both shared the same financial resources and income. In other words, his formula was that x divided by 2 must continue to equal x.

We think the trial judge erred. The standard-of-living is not a super-factor in setting the amount of alimony—trumping all others. It has only a case specific and quite limited purpose. When the living standard during marriage was significantly high and the payor has the ability to pay more than minimum wage (so to speak), its purpose is to avoid having alimony set at bare subsistence levels. The wealthy plutocrat who exposes a spouse during marriage to a standard well beyond the basic necessaries of life on a meager level, should be required to do better than mere subsistence with alimony.
I suspect some family law attorneys will have use for that quote.

 
Questions, questions: Ex Post Facto
The Fourth District in this case certified the following to the Florida Supreme Court as a question of great public importance:
Does the amendment to section 322.271(4), Florida Statutes, which eliminated hardship driver's licenses effective July 1, 2003, violate the prohibition against ex post facto laws as to persons who could have applied for a hardship license before the amendment became effective?
The district court answered the question in the negative.

 
Fourth District: Lost Transcripts
In this case, the Fourth District ordered a new contempt hearing because a portion of the transcript from the original hearing was lost.

 
Questions, questions: Sentencing
In this case, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:
Can an uncounseled prior misdemeanor conviction, in which the defendant could have been incarcerated for more than six months, but was not incarcerated for any period, be used to enhance a current charge from a misdemeanor to a felony?
The district court answered this question in the affirmative.

 
Fourth District: 1.540 Time Limits
The outside time limit for filing most motions to vacate a judgment under rule 1.540 is one year. What if the judgment is appealed and reversed and a new judgment is thereafter entered? Does the time period then run from entry of the new judgment? Yes, said the Fourth District under the circumstances of this case.

 
Questions, questions: Bad Faith and Privileges
The Fourth District has again certified the following to the Florida Supreme Court as a question of great public importance:
DOES THE FLORIDA SUPREME COURT'S HOLDING IN ALLSTATE INDEMNITY CO. V. RUIZ, 899 So. 2d 1121 (Fla.2005), RELATING TO DISCOVERY OF WORK PRODUCT IN FIRST-PARTY BAD FAITH ACTIONS BROUGHT PURSUANT TO SECTION 624.155, FLORIDA STATUTES, ALSO APPLY TO ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS IN THE SAME CIRCUMSTANCES?
The district court's answer in this most recent case is, again, no. I mention it because those interested in the area may wish to read Judge Farmer's special concurrence, wherein he disagrees.

 
Fourth District: Trial Judge Recusals
Sitting en banc, the Fourth District held in this decision that the 10-day limitation on filing a motion a motion to recuse a trial judge is not jurisdictional, and if the timing issue is not addressed by the trial judge in an order, then that issue cannot properly be before the district court on a petition for writ of prohibition.

The court receded from a prior decision that had held the failure to file a motion in the trial court within rule 2.160's 10-day period requires the district court to deny a prohibition petition.

 
Fourth District: Declaratory Judgments
The Fourth District made the following comment in a footnote in this case:
We remind trial judges and lawyers that a declaratory judgment action seeks a formal, express declaration of some legal status or conclusion. That means that in any order granting summary judgment in a declaratory judgment proceeding—and most surely in any final judgment—the trial judge must explicitly declare some legal conclusion.
Makes sense.

 
Fourth District: Teachers
The opening line of this decision from the Fourth District says it all:
In today’s decision, this court once again holds that teachers in this state can no longer be terminated for deficient professional performance in the classroom without the School Board first giving primary consideration to student achievement as measured by the Florida Comprehensive Assessment Tests or other local assessments where the FCAT is not available.
(emphasis in original). The court reversed a school board's decision to discharge a teacher.

 
Fourth District: Section 57.105 Fees
In 1999, the legislature amended section 57.105 to make it easier for courts to tax attorney's fees on parties and their attorneys for meritless litigation.

Previously, the standard was essentially one of frivolousness. Now, the standard is, well, apparently still frivolousness. This decision from the Fourth District is just one of multiple post-1999 cases to employ that term. (For another example, check out this decision from the Second District.)

 
Questions, questions: False Light
In this very interesting decision involving defamation and related claims by a Jewish person described by the defendant's Jews For Jesus publication as having "receive[d]" Jesus, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:
Does Florida recognize the tort of false light invasion of privacy, and if so, are the elements of the tort set forth in section 652E of Restatement (Second) of Torts?

 
Fourth District: Arbitration
Homebuilders who utilize arbitration agreements only in connection with their warranties should probably not expect purchasers' claims such as breach of the original contract and deceptive and unfair trade practices to be covered by the arbitration provision. This decision from the Fourth District illustrates the point.

 
Fourth District: Prejudgment Interest
In this decision, the Fourth District explained that a trial judge who does not calculate the amount of prejudgment interest in the final judgment loses jurisdiction to do so ten days after the judgment is entered and the period for moving to amend the judgment expires. In the case, the judgment stated the prevailing party was entitled to prejudgment interest but did not calculate it. A later calculation was held to be void.

Notably, the court pointed out that, if the trial court improperly reserves jurisdiction to calculate such interest, then while the matter is on appeal, the district court could relinquish jurisdiction for the matter to be resolved, if such is equitable.

 
Fourth District: Non-Binding Arbitration
If you participate in a non-binding arbitration and seek a trial de novo under rule 1.820(h), you must file your own motion for trial. You cannot rely on another party's motion, as the Fourth District explained in this case.

 
Fourth District: Comments On Absent Experts
In this case, the Fourth District ordered a new trial after the trial court precluded one side from arguing that it presented testimony on a particular area but the other side never did. More specifically, the party argued in closing:
And we have an autopsy report from an eminent, well-qualified pathologist. We have the Chief of Autopsy/Pathology at Johns Hopkins. And we don’t have any pathologists on the Defendant's side.
The trial court sustained an objection to the last sentence and instructed the jury to disregard it. That was error. New trial.

 
Fourth District: Hospital Liability
Those involved in litigation against hospitals will be interested in the Fourth District's decision in this case, which reversed a summary judgment in favor of a hospital on a plaintiff's claims for medical malpractice against two staff physicians.

The plaintiff alleged an apparent agency theory, and the district court agreed the plaintiff adduced sufficient evidence to preclude summary judgment. Specifically, the plaintiff contended the hospital represented the physicians were its agents when the plaintiff's physicians lacked privileges and the hospital supposedly supplied its own physicians for treatment.

 
Fourth District: Juror Misconduct
Investigating jurors' answers to questions in voir dire, and finding a juror concealed material facts, is one way an unsuccessful party at trial can attempt to undo the adverse result. It worked in this decision from the Fourth District.

 
Fourth District: Forum Non Conveniens
This decision from the Fourth District concerns the doctrine forum non conveniens, by which a Florida court can dismiss a case that can be, and for convenience's sake should be, litigated elsewhere.

In the decision, the court emphasized that, to dismiss a case on this ground, a trial court must have sufficient evidence to determine that each defendant is amenable to service in the convenient alternative forum. The district court also held that the stipulation ordinarily implicit in a motion to dismiss on this ground -- that the movant agrees the action will be treated in the alternative forum as if filed on the date the action was filed in Florida -- does not automatically apply where the forum non conveniens matter is raised by the trial court.

 
Fourth District: Eyewitness (Mis)Identifications
A crime victim initially describes the perpetrator as six feet tall and muscular but later positively identifies a person who is 5 feet 7 inches, weighs 150 pounds, wears glasses, and has lighter skin than the victim recalled. The investigating detective then testifies, over objection, that such discrepancies are normal. Reversible error? Yes, said the Fourth District in this case.

 
Fourth District: Disqualification of Counsel
There are few presumptions under the law that are irrefutable. One of them arises in the context of attorney-client relationships: where such a relationship exists, the attorney is presumed -- irrefutably -- to have acquired confidences from the client related to the subject matter of the representation.

The benefit of this presumption is that later, where the attorney stands in an adverse position to the client and the client seeks the attorney's disqualification, there is no need for the client to prove what confidences the attorney previously gained. The Fourth District made that point in this case, where the court granted a certiorari petition and quashed an order denying a disqualification motion because the trial court incorrectly required the movant to show its former attorney had acquired confidential information.

 
Certified Conflict: Amendment 7
The Fifth and First Districts are currently in conflict over whether 2004's voter-approved Amendment 7 -- which grants actual, prospective, or previous patients of a doctor a right of access to records relating to that doctor's adverse medical incidents -- applies to records created before the amendment was approved. The Fifth District has said no; the First District has said yes.

In this decision, the Fourth District sided with the First.

By the way, the amendment is now found in Article 1, section 25 of the state constitution. For more on the amendment's background, check out this prior post.

 
Questions, questions: Sentencing
In this case, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:
WHERE THE DEFENDANT DOES NOT OBJECT TO THE PROOF OF PRIOR CONVICTIONS AT THE SENTENCING HEARING, BUT DOES TIMELY RAISE THE OBJECTION IN A RULE 3.800(b)(2) MOTION, DOES THE STATE, AFTER REVERSAL OF THE SENTENCE, HAVE ANOTHER OPPORTUNITY TO PROVE THE PRIOR CONVICTIONS?
The district court answered the question in the affirmative.

 
Certified Conflict: Ineffective Assistance
In this decision, the Fourth District affirmed the summary dismissal of a rule 3.850 motion alleging ineffective assistance in trial counsel's supposed assurances of a win at trial or at least a conviction for a reduced offense. The court certified conflict with two earlier decisions from the Third District.



Tuesday, January 30, 2007
 
Bad Link
A reader caught a link to the wrong opinion in the "Second District: Search and Seizure" post from yesterday. It's fixed now.

 
Fourth District: Restitution
This decision from the Fourth District deals with a rather uncommon form of restitution: an order the trial court can enter after a satisfied judgment has been reversed on appeal, requiring the former victor to return the spoils of the now-lost war.

 
Fourth District: Fundamental Error
If you have followed how Florida courts apply the concept of fundamental error in civil cases, then you will probably be interested in the Fourth District's decision in this case.

The trial court in the case granted a new trial based on an expert's improper bolstering of his own testimony. Specifically, to explain why he did not believe the plaintiffs suffered permanent injuries, the expert cited a local newspaper as supporting his view that 99 percent of automobile accidents in Florida result in lawsuits claiming personal injuries. The testimony was not accompanied by an objection.

On appeal, the Fourth District explained that a trial court lacks discretion to grant a new trial based on error that was not accompanied by a proper objection. Rather, in such cases, the trial court may grant a new trial only if the error was fundamental.

Having established that the error must be fundamental, and that the appellate court reviews such a matter as a question of law, the court went on to hold that the expert's testimony constituted fundamental error:
Although there was no explanation of how the Palm Beach Post gathered and used the statistics to determine that 99 percent of automobile accidents result in lawsuits, the mere mention of this provides credibility to the expert’s opinion not available to the opposing expert.

An expert bolstering his own opinion by inadmissible evidence deprives the parties of a fair trial. See Phillip Morris, Inc. v. Janoff, 901 So. 2d 141, 144, 145 (Fla. 3d DCA 2004) (error to permit expert to be questioned on re-direct examination by "identifying specific authoritative publications and asking whether they lacked articles stating that exposure to ETS [environmental tobacco smoke] causes chronic sinusitis." The examination "was solely to bolster the defense expert’s opinion by showing that his opinion must be correct because it was supported by the lack of articles stating otherwise."). Furthermore, witnesses may not testify to matters that fall outside of their area of expertise. See Jordan v. State, 694 So. 2d 708, 715 (Fla. 1997). We hold the error in this case was fundamental.

 
Questions, questions: Alternative Instructions
In this decision, the Fourth District, unsure about whether an incorrect "and/or" instruction in a criminal case constitutes non-fundamental error, certified the following to the Florida Supreme Court as a question of great public importance:
DOES THE USE OF AN "AND/OR" JURY INSTRUCTION, OVER OBJECTION, IN A CASE INVOLVING CO-DEFENDANTS, CONSTITUTE ERROR REQUIRING A NEW TRIAL, WHERE A PRINCIPALS INSTRUCTION IS GIVEN?

 
Fourth District: Discovery
The trial court in this dissolution case ordered the husband's father to respond to interrogatories regarding financial support the father provided to his daughter. The father and the daughter were not parties to the divorce. The father sought a writ of certiorari from the Fourth District, which granted the petition, holding that the requested discovery was irrelevant and its compelled disclosure invaded the father's privacy interests.

 
Fourth District: Insurance
Insurance fans may be interested in this decision, where the Fourth District held an insured entitled to fees after the insurer voluntarily dismissed a declaratory judgment suit it brought to establish a lack of coverage. The court found that the dismissal resulted in representation, or continued representation, for the insured in the underlying suit, thereby conferring a sufficient benefit upon the insured to base a fee award.

 
Fourth District: Implied Rights of Action
Those interested in the circumstances under which Florida courts will imply a private right of action will be interested in this decision from the Fourth District. The court held that an implied right of action allowed the plaintiff, a physician, to sue health maintenance organizations for failing to reimburse non-participating emergency services physicians in accordance with section 641.513. The court agreed with the Fifth District's similar decision in this case.

 
Fourth District: Elective ShareTrusts
Trust and estates fans may be interested in this decision from the Fourth District, which rejected the notion a decedent had created an elective share trust for her husband.

 
Fourth District: Harassment
Employment law fans should be interested in this decision from the Fourth District. The court affirmed a summary judgment in favor of an employer on an employee's federal and state law sexual harassment claims. The conduct at issue was insufficiently severe and pervasive, and the employer's response was sufficient to stop further harassment.

 
Fourth District: Conversion
In this decision involving conversion, the Fourth District explained how a joint tenant of a bank account can bring a conversion action against a third person where the other tenant wrongly gives the account's funds to the third person and that person refuses to return them. Note the court's description of how the essence of conversion is not a taking but the wrongful refusal to return property.



Monday, January 29, 2007
 
Ring In The New
For the first time since before my time, the Third District has changed the format of its opinions. The new approach, reflected in this decision and all others released by the court since January 17, utilizes Times New Roman for the text and a large, Old English-style font called Cloister Black BT for the court's name.

To be sure, the new look is much more stately than the old format, which previously made one wonder if someone asked "pica or elite?" before heading off to print. Nice job.

 
Third District: Citation Limitations
Speaking of citing Florida Bar Journal articles, note 2 of this decision may curb your desire the next time you feel the need to cite yourself in a brief.

The Third District explained in text that the appellee's counsel cited as authority an article that he co-wrote and which advocated abandoning Florida's summary judgment standard in favor of its federal counterpart. In a footnote, the district court commented:
A bit audacious to cite oneself, but then as Frederick the Great recommended "L'audace, l'audace, toujours l'audace."
I believe the quote means, "Audacity, audacity, always audacity," or, more roughly, "Always be audacious."

 
Second District: Excusable Neglect
This decision shows that failing to offer an actual excuse for not timely answering a complaint is ultimately not going to pass muster, even if the trial judge finds excusable neglect and the standard of appellate review is gross abuse of discretion. The Second District reversed an order setting aside a default.

In a concurrence, Judge Altenbernd questioned the enigmatic "gross abuse of discretion" standard of review. In doing so, he referenced this interesting Florida Bar Journal article on the subject, which it might be noted was written by the judge's then-law clerk who, since the article's publication, has left the court and is practicing with a local law firm under a different name.

 
Third District: Tipsy Coachman
For proof the district courts of appeal do not welcome "right for the wrong reason" arguments at any stage, check out this decision from the Third District. The court refused to consider a basis for affirmance raised for the first time during the oral argument.

 
Third District: Constitutional Law
Constitutional law fans will be interested in this decision from the Third District. The court rejected overbreadth, vagueness, and substantive due process challenges to a statute that prohibits unauthorized persons from entering a school safety zone from one hour before the school day starts until one hour after it ends.

 
Third District: Interests In Remains
This decision from the Third District explains that one's constitutionally protected property interests in another's remains end at the point of burial or other disposition. Claims for events occurring thereafter are the subject of the common law, not the constitution.

The court reversed a 42 U.S.C. § 1983 judgment against the City of Key West. The judgment had been entered upon a jury's verdict in favor of a woman who claimed emotional distress from her husband's cremated remains having been accompanied in a vault for some two months by the casket of the husband's cousin. Apparently the plaintiff -- and perhaps her husband, too -- did not care much for the cousin.

 
Third District: Continuances
If you ever have a critical witness take ill on the eve of trial and need authority for a continuance, consider using this decision from the Third District.

 
Third District: Hearsay
Hearsay fans will enjoy reading this decision from the Third District. The court undertook a detailed examination of the excited utterance exception to explain why a victim's 17-minute statement made approximately five to eight hours after the exciting incident, and upon questioning by police, should not have been admitted as evidence.

 
Third District: New Trials
This decision from the Third District may come in handy if you need support for the notion an inadequate damages award that suggests a compromise verdict should result in a new trial not only on damages but liability.

 
Third and Fifth Districts: Pre-Suit Notice
Those who bring medical malpractice claims will take great interest in the Third District's decision in this case, which held that notices of intent to initiate litigation and corroborating expert affidavits need not name each prospective defendant. The court agreed with this decision recently released by the Fifth District on the same subject.

 
Third District: Impeachment
Does a criminal conviction for failure to file a federal income tax return constitute a conviction involving dishonesty or a false statement for impeachment purposes? No, said the Third District in this case of first impression in Florida. Notably, the court sided with the Third Circuit Court of Appeals on this point and against the Fourth, Ninth, and Eleventh Circuits.

 
Second District: Summary Judgment
If you are looking for authority that a summary judgment should not be granted based on a ground not timely asserted in the motion itself, such as a ground raised only in a legal memorandum filed just before the hearing, this decision from the Second District should do.

 
Third District: Toting Tea
Likewise, a nurse's act of serving -- and spilling -- hot tea on a patient is not an act of medical malpractice, as the Third District explained in this case.

 
Second District: Talking Turkey
Alleging a hospital served you a bad turkey dinner is not a claim for medical malpractice, as the Second District explained in this decision.

 
Third District: DNA Testing
Rule 3.853 authorizes post-conviction DNA testing in criminal cases -- a gem of progress that permits those who lacked the benefit of DNA technology when they were convicted to allow science to look again upon the evidence. But as the Third District explains in this case, DNA testing is not simply available upon request. A defendant must show how testing will exonerate the movant by giving rise to a reasonable probability of acquittal or a lesser sentence.

 
Questions, questions: Riparian Rights
While reversing this earlier panel opinion, the en banc Second District in this case certified the following to the Florida Supreme Court as a question of great public importance:
What rights do the residents in a neighborhood receive, as dominant estate holders under an implied easement created by a denotation on a plat map of an "easement for ingress and egress" to a body of water, when the servient estate is part of a residential lot on which there exists an occupied family dwelling?

 
Third District: Economic Loss Doctrine
This decision from the Third District employs Florida's well known "economic loss rule" to affirm the dismissal of fraudulent inducement and negligent misrepresentation claims.

In the case, a husband signed a contract to sell property to the plaintiffs. The property was homestead property, and the husband's wife refused to consent to the sale. The plaintiffs sued on a number of grounds, including specific performance, fraudulent inducement, and negligent misrepresentation.

The Third District resolved the specific performance count based on the wife's homestead rights. The court resolved the fraudulent inducement and negligent misrepresentation claims based on economic loss principles, namely that the contract governed the parties' relationship and conduct not separate and distinct from performance under the contract cannot form the basis for a tort claim.

A brief aside regarding the nomenclature: You might notice that I prefer the rarely used term economic loss doctrine to the well known term economic loss rule, the former used in the title of this post and the latter used above only in quotes. (Notably, the trial judge in this case apparently used the former term, too, and when the district court quoted the trial court, it placed the term "economic loss doctrine" in quotes and then freely used the economic loss rule term.) Why do that?

Well, as some of you know, the intersection tort and contract is perhaps my single favorite area of the law -- it involves the interplay of a horde of fundamental legal concepts. I acknowledge that Florida case law has long used the term "economic loss rule" when discussing aspects of this area, but, in my view, there is no economic loss rule. At least, no single rule, and the notion that there is a rule is part of why the jurisprudence, the trial bench, and the bar are sometimes so confused over the whole area. There is no one rule. Rather, there is a series of rules or, better, principles, that interrelate, which is why I prefer to use the term economic loss doctrine.

 
Second District: Insurance
In this case, a divided Second District held that a plaintiff cannot avoid Florida's nonjoinder statute and sue an insurer for damages caused by the insurer's insured through allegations the insurer orally agreed to cover the damages.

 
Second District: Sentencing Errors
Just a note here from the Second District (no. 2, to be exact) that there can be such a thing as too many pre-briefing motions to correct sentence under rule 3.800(b)(2).

 
Second District: Emotional Distress and Funeral Homes
Here we have yet another case demonstrating that whether conduct is sufficiently outrageous to predicate an intentional infliction of emotional distress claim is a threshold legal question for the court. In the case, the Second District affirmed a directed verdict granted in favor of a funeral home that cremated a decedent's body with the decedent's brother's permission. The plaintiff was an estranged daughter who, unaware of the death when it happened, believed her father's body should not have been cremated and that the funeral home should have undertaken an investigation to find her.

The decision includes an interesting discussion on the regulated nature of funeral homes and the reluctance of courts to create duties not imposed by statute.

Somewhat hidden in the decision is a judicial rarity: it appears the trial court granted a directed verdict in a jury trial immediately after the plaintiff's case. Unusual, but, in this case, completely appropriate. Trial judges are often inclined to allow legally insufficient claims to go forward in hopes the jury will recognize the deficiency, but if the jury comes back with a verdict in favor of the plaintiff, the trial judge is placed in the even more awkward situation of considering whether to take a verdict away from the plaintiff. In this case, the trial judge apparently nipped the deficient case in the bud.

 
Third District: Forum Selection Clauses
In this decision, the Third District held that a defendant did not waive its venue objection by asserting the existence of a forum selection clause in its answer and thereafter serving on the plaintiff one set of interrogatories and a request for production.

 
Third District: Right To Trial By Jury
"Where, as here, the right or remedy is equitable in nature, there is no right to a jury trial." So said the Third District in this decision. Simple and eloquent.

 
Second District: Search and Seizure
This divided Fourth Amendment decision from the Second District involved a conscientious conflict over contraceptives.

 
Third District: Nursing Homes
Analogizing the pre-suit notice provisions for nursing home litigation to the pre-suit notice provisions for medical malpractice litigation, the Third District in this case held that pre-suit notice to one nursing home entity constituted sufficient notice to a number of related persons.

 
Third District: Local Action Rule
Where litigation involves land, the local action rule traditionally holds the litigation may be brought only in the court of general jurisdiction local to the land, as another court cannot exercise in rem jurisdiction over lands outside its territory.

Florida has this statutory provision, however, that modifies the common law by allowing litigation over mortgaged property to be brought in any of two or more counties if the property at issue lies in two or more counties.

Does the exception apply only if the property is continguously located in multiple counties? No, said the Third District in this case, which affirmed a Miami-Dade County court's subject matter jurisdiction to address property located in Hendry County.

 
Second DIstrict: Back to Contract Basics
This decision reads like the model answer to a law school contracts exam. What constitutes an offer, or a counteroffer, and when is a counteroffer an option that will remain open in the face of a counter-counteroffer? Great stuff from the Second District, if you enjoy the basics of contract. The decision also contains a brief but interesting discussion on what does not constitute an affixed seal.

 
Third District: Appellate Jurisdiction
If a "Default Final Judgment" is entered, but the "default" label is incorrect and the trial court later enters a "Corrected Final Judgment" that fixes the title, does the 30-day appellate period run from entry of the original order, the second order, or both?

In this case, the Third District explained that the time to appeal runs only from the first order. The second order merely corrected a clerical error and did not affect the rights of the parties.

 
Third District: Duty
The longer we see liability caps for physicians on the books, the more likely we are to see cases involving suits against health care industry actors other than doctors. Take, for instance, this decision from the Third District, where the court confronted a case against a nurse practitioner. The court held that the nurse, who was practicing under a doctor, owed no duty to diagnose the plaintiff's injury. Consequently, the trial court erred in failing to enter judgment as a matter of law in the nurse's favor.

 
Third District: Insurance
This decision from the Third District highlights how the policies behind tort law and insurance law produce different results. In tort law, the substantial certainty of a result will equate to the intent to produce that result. Not necessarily so with insurance. In this case, the court found a question of fact existed regarding whether the insured intended the injuries he caused when he fired a gun at someone.

 
Third District: Jury Selection
In this case, the Third District reversed a conviction where the prosecution used "racial profiling" voir dire questions to exclude black venire members who professed beliefs such profiling occurs or that they had experienced it.

 
Third District: Second Review
If a party seeks to disqualify a county court trial judge and, failing that, seeks a writ of prohibition from the local circuit court, is review of the circuit court's order by certiorari petition or appeal? In this case the Third District held that such review is by certiorari, and the court certified conflict with a 2004 decision from the Second District.

 
Second District: Peer Review Privilege
Those interested in Florida's medical peer review statutory privileges will be very interested in this decision, where the Second District held that the Department of Health has limited access to peer review records for purposes of physician disciplinary proceedings. The court construed multiple statutes that, read in isolation, might appear rather unequivocal but, when read together, imply exceptions that the court found necessary for the regulatory scheme as a whole to be workable.

The court also took a moment to discuss the roles of the judicial and legislative branches when it comes to implying exceptions in a statute:
It is sometimes helpful to remember that statutory interpretation is not a contact sport played between the judiciary and the legislature as members of opposing teams. Statutory interpretation is an important function of the judiciary designed to facilitate the functioning of the legislature and the fulfillment of the laws and policies adopted by the legislature. The judiciary must use a degree of common sense in deciding whether the legislature's intent is sufficiently clear that the court may imply a qualifying phrase within a statute. If there is any reasonable concern that a reading other than a strict interpretation might not comport with the legislature's intent, the legislature should generally be required to amend the statute, if that is necessary to fulfill its actual intent.
(footnote omitted). In other words, the judiciary does what it believes it must for statutes to be reasonably applied, and if the legislature disagrees, it should amend the relevant statute and make the underlying intent more clear. That's the system.

 
Second District: Crash Course
While driving erratically down the road, you cause another driver to swerve and ultimately collide with another vehicle, resulting in a fatal crash. Are you required to stop at the accident scene? In this decision, the Second District said yes.

Section 316.027 requires that "[t]he driver of any vehicle involved in a crash resulting in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene . . . ."

Implicitly rejecting that a more strict construction could reasonably be given under the rule of lenity, the court held that a car causing other vehicles to crash is "involved" in the crash.

UPDATE: The court later withdrew the above-linked opinion and issued this opinion in its place.

 
Second District: Class Actions
If you are a class action fan, you probably remember a decision released last summer by the Second District which reversed an order certifying claims against a pest control company.

Well, the court modified its opinion somewhat on rehearing. You can check out a summary of the changes and the revised opinion here.

And for those interested in such things, the revised decision still rejects the notion of a "have you stopped beating your wife yet?" class. See note 2.

 
Third District: Government Liability
This decision from the Third District is noteworthy for its duty and breach examinations as preliminary steps in a sovereign immunity analysis. The case involved a negligence claim against Miami-Dade County for not transporting the decedent to the desired hospital. The court affirmed a summary judgment in the county's favor.

 
Second District: Sex Offenders
A sex offender convicted of failing to report a change of address obtained a reversal from the Second District because the offense itself was improperly introduced as evidence. As this decision explains, introducing the offense as evidence was unduly prejudicial. The fact the defendant was required to report changes in his address was not in dispute.

 
Second District: Defamation
First Amendment fans will appreciate this decision from the Second District, which affirmed a summary judgment against a plaintiff in a libel case. The plaintiff was a co-founder of ESPN whose participation in a Naples real estate venture made him the subject of various alleged investment and public corruption charges, most of which were dismissed and some of which he pled guilty to as part of a plea deal. The defendant was the Naples Daily News, which covered the saga with editorials the plaintiff thought mischaracterized the extent of his pleas.

 
Catching Up
A gaggle of posts to follow this morning...



Thursday, January 25, 2007
 
Hall of Fame
Congratulations to Justice Peggy Quince, who was just selected by Governor Crist to be inducted into the Florida Women's Hall of Fame. You can read about it in this release from the Governor's office.

 
Second District: Merger By Final Judgment
Can you directly attack a non-final order in a case once a final judgment has been entered? No, explained the Second District in this decision, which involved a default that had become the basis for a final judgment. An oft-overlooked principle holds that all non-final orders entered in a case become merged into the final judgment. As Judge Northcutt discussed, once a final judgment is entered, the attack must be directed at the final judgment.

This is a technical point but it has practical effects. For instance, the concept of merger into the final judgment arises often when it comes time to file a notice of appeal after a final judgment has been entered. Many persons will ask if they need to attach to the notice the various non-final orders they intend to appeal. Once a final judgment is entered, however, all non-final orders merge into the judgment, and any attack is to that judgment.

 
Second District: Says You
Just a reminder here from the Second District that "unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation."

 
Second District: The Many Sides Of Homicide
You can learn a lot about homicide from the Second District's decision in this case. For instance, the court explained that the term "homicide" does not denote a crime, and thus a medical examiner's use of that term in a wrongful death case is permissible so long as the jury is told the term does not imply a crime has been committed. The court explained:
The term homicide has an established meaning—in common parlance, as well as in legal and medical usage—that neither denotes nor connotes criminality. The fact that some homicides are caused by criminal conduct and that the term homicide may be misunderstood does not justify precluding use of the term—at least where the meaning of the term is made clear to the jury.
The court affirmed a wrongful death judgment where the medical examiner had been permitted to opine that the death was by homicide, which the medical examiner defined as "death at the hands of another."

 
Second District: Rule 1.442
After I am caught up with the recent case law, I should take a few moments to discuss some abstract thoughts on rule 1.442. If I don't do that, someone send me an email and prod me.

Anyway, the district courts of appeal continue to struggle not so much with the rule but the result under the state supreme court's decision in Lamb v. Matetzschk, which held that to satisfy rule 1.442, all proposals for settlement must be apportioned among all offerors and all offerees, even if a party's liability is purely vicarious. Applying that interpretation seems straightforward: if there are multiple offerors, damages must be apportioned among them; if there are multiple offerees, damages must be apportioned among them. The sort of liability is not relevant.

So, if a plaintiff sues a doctor personally and sues her professional association, of which she is the only member, a proposal for settlement from the plaintiff to both defendants must differentiate between them. In other words, an amount must be offered to each, even if the professional association is simply and entirely vicariously liable for the doctor's actions.

It follows that in this case, the Second District held a plaintiff's proposal invalid when, under these circumstances, the plaintiff made a single offer to one defendant "and/or" the other. As the district court explained:
The fact that the professional association is entirely owned and controlled by Dr. Russell, that its liability is purely vicarious for her actions, and that damages could not be logically apportioned between these two defendants is apparently not a basis to permit such an offer of judgment. The fact that the offer permits either or both defendants to pay the proposed settlement and gives them the option to determine whether or how to apportion their contribution to the settlement is likewise not an exception to the rule announced in Lamb.

 
Second District: Kidnapping
Assume I break into a building while you are there, and after taking your cash I tell you to go into the bathroom, close the door, and stay there. I have committed the crime of robbery, but have I also committed a kidnapping? No, explained the Second District in this case. False imprisonment, yes, but not kidnapping.



Tuesday, January 23, 2007
 
Swearing In Class
A reader unexpectedly witnessed the appointment of Judge Clay Roberts to the First District last week. I received this by email and thought I would share it:
You mentioned that Friday morning, Governor Crist announced the appointment of Clay Roberts to the First DCA. Around 5:30 on Thursday night, I had the good fortune to see it happen live.

I'm taking a Florida Con Law class taught by Sandy D'Alemberte and Clay Roberts that meets Tuesday and Thursday evenings. We were about halfway through class when somebody knocked on the door. I figured it was a student coming in horribly late, but instead it was Charlie Crist, Lt. Gov. Kottkamp, Mrs. Roberts, and several others to deliver Roberts his appointment. The Governor spoke for a moment, everybody cheered, then the whole gang - Roberts included - left to celebrate. It was remarkable.
As the reader put it -- a classy move.

 
Second District: Cruel and Unusual Punishment
The result in this case might disturb you.

A 48-year old man suffering significant back pain, and generally confined to a wheelchair, was convicted of seven counts of trafficking, and eight counts of possession or obtaining by fraud, various prescription painkillers. Apparently, he forged prescriptions to obtain pills to treat his pain. He never sold the pills to others. His seven trafficking convictions, all of which were based simply on the volume of oxycodone he obtained, each earned him 25-year minimum mandatory sentences under Florida's sentencing scheme.

The volume of oxycodone he trafficked was determined from the total quantity of the substances he obtained, even though the quantity of the illegal drug in the overall mixture was rather minute. In fact, the oxycodone pills the defendant trafficked each consisted of 325 milligrams of acetaminophen and 5 milligrams of oxycodone. He was therefore prosecuted based on a total drug weight of 330 milligrams per pill.

The trial court ordered the defendant's sentences to be served concurrently, letting them overlap, but that still left him with a 25-year prison sentence to serve for, in essence, stealing drugs to treat his pain.

The defendant appealed. He argued that the 25-year sentence was unconstitutionally cruel, and unconstitutionally unusual, under the state and federal constitutions. A panel of the Second District divided on the question, and a majority affirmed the sentence.

The majority opinion extensively discussed both the federal "cruel and unusual punishment" proscription and Florida's former (but applicable to this case) "cruel or unusual punishment" proscription. Ultimately, the court concluded that a court's role in such matters is a limited one, that the legislature is the authority for such public policy decisions, and 25 years of imprisonment for these offenses was not so outside the legislature's policymaking authority as to be unconstitutional. The majority was not insensitive to how unattractive the result might appear to some. As Judge Wallace concluded:
Because of the unusual circumstances present in this case, reasonable people might come to different conclusions about the wisdom of the twenty-five-year mandatory minimum sentences that the trial court was required to impose on Mr. Paey. Although Mr. Paey is responsible for his actions, his history of chronic pain and consequent need for analgesics has resulted from circumstances largely beyond his control. These factors—combined with Mr. Paey's age and other persistent health problems—naturally evoke sympathy for what he has endured and concern for his future welfare. Nevertheless, this court's function is limited to determining whether the trial court committed legal error in connection with Mr. Paey's trial and sentencing. In our system of government, which is characterized by a separation of powers, the power to grant pardons and to commute sentences is the prerogative of the executive branch, not the judiciary. Thus Mr. Paey's argument about his sentences does not fall on deaf ears, but it falls on the wrong ears.
(citation and footnote omitted).

Judge James H. Seals, a circuit judge sitting as an associate judge in the appeal, vigorously dissented. Focusing partly on how trafficking is a term of commerce, not personal consumption, partly on the particular circumstances of this individual case, and partly on the Florida constitution's now modified, but then-effective "cruel or unusual punishment" provision, Judge Seals explained how he would have held the sentences unconstitutional. Like the majority, he also suggested that the defendant might pursue clemency from the executive branch at some point.

The case is surely an interesting one -- a good example, or a bad one, depending on your perspective, of the relative inflexibility of statutory sentencing schemes. We are long past the days when judges imposed sentences based largely on their subjective views of the appropriate punishment.



Monday, January 22, 2007
 
Catching Up
Slowly but surely...

 
Second District: TPR Appeals
The Second District has spotted a problem with termination of parental rights appeals. Where the court is unaware that trial counsel for a parent has been permitted to withdraw and another attorney appointed for the appeal, the court is unable to communicate with the appropriate counsel, and, it follows, to expedite a languishing appeal.

After deciding not to sanction the trial and appellate counsel in this particular case, the district court issued a few guidelines for trial courts and counsel involved in TPR cases: the trial judge appointing someone as counsel for a parent should send a copy of that order to the district court, an attorney granted permission to withdraw as counsel for a parent once an appeal begins should send a copy of that order to the district court, and an attorney appointed as appellate counsel for a parent should send a copy of that order to the district court.

The court deserves credit for its sensitivity toward the attorneys involved in this particular case. Rather than use their names, the court referred to them with pseudonyms.

 
Second District: Products Liability
Where two companies could have manufactured a product that allegedly caused a plaintiff harm, but the actual manufacturer is unknown, can the plaintiff sue both? No, said the Second District in this case, where it was clear one potential manufacturer had designed the product. The court affirmed a summary judgment against the other potential manufacturer.

 
Second District: Delayed Rulings
Delayed rulings in family law cases do not always merit reversal for a new trial. But sometimes they do. The Second District placed this case in the latter group.

 
Certified Conflict: Blakely
Four district courts of appeal have held that the U.S. Supreme Court's decision in Blakely v. Washington cannot be applied on collateral review to defendants whose convictions became final before Blakely was released. One district disagrees, which prompted the Second District to certify conflict on the matter in this decision.

 
First District: Untimely Briefs and Mailing Days
This decision from the First District makes two points. First, it requires a finding of willful noncompliance with the rules of procedure to dismiss an appeal for failure to file a timely initial brief. Second, where a court's order requires an act to be done within a certain number of days, five "mailing" days are not added to the period, even if the order is delivered by mail.

 
Certified Conflict: Sexual Predator Designations
As this decision from the First District shows, the district courts of appeal remain in conflict over whether a sexual predator designation can be challenged in a rule 3.800(a) proceeding.

 
Questions, questions: Hearsay
In this case, the First District certified the following to the Florida Supreme Court as a question of great public importance:
DOES THE "TESTIMONIAL HEARSAY" RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004), APPLY IN A PROBATION-REVOCATION PROCEEDING INVOLVING A DEFENDANT WHO RECEIVED A TRUE SPLIT SENTENCE?

 
Certified Conflict: Attorney's Fees
In 2002, the legislature amended section 57.105 to require a party to give an opponent 21-days' notice before moving for attorney's fees for meritless litigation. Is that requirement retroactively applicable to a complaint filed before the amendment took effect? In this case, the First District said no and certified conflict with an earlier decision of the Fourth District.

 
First District: More Appellate Jurisdiction
How about another appellate jurisdiction principle from the First District? This decision goes through the parties' arguments ultimately to rely on the basic principle that a trial court lacks jurisdiction to enter a final judgment where an earlier non-final order is being appealed under rule 9.130.

 
First District: Intervention and Appellate Jurisdiction
Those interested in appellate jurisdiction might wish to note the principle stated in this decision from the First District: an order denying a motion to intervene is final and appealable as to the movant. Note that intervention was sought in the case to appeal an order certifying a class. The court held intervention should have been granted and so, without addressing the correctness of the certification order, reversed it.

 
First District: Apex Depositions
Can a trial court compel the deposition of top-level or so-called "apex" officials even if the information sought is apparently available from lower-ranking persons? In this case, involving a state agency official, the First District reaffirmed its view the answer is no.

You might recall this case, where the Fourth District held that such a view is not reconcilable with the Rules of Civil Procedure.

 
First District: Sudden Emergency Doctrine
This case from the First District shows the difficulties present in obtaining a summary judgment based on the sudden emergency doctrine.

 
First District: Coverage Appeals
Here we have a reminder from the First District that you cannot utilize rule 9.110(m) to appeal an insurance coverage ruling unless a claim has been made against the insured.

I continue to believe there may be a conflict between how the districts interpret that rule. See this prior post for more details.



Friday, January 19, 2007
 
New District Court of Appeal Judge
This morning, Governor Crist announced that he has appointed Clay Roberts to the First District Court of Appeal to fill the vacancy created by the retirement of Judge Ervin. Congratulations, Judge Roberts.

You may recall that there was some controversy over whether Governor Bush would be able to make this appointment before he left office. Check out this prior post for more details.



Friday, January 12, 2007
 
First District: Mandamus and More
Okay, appellate fans, here is a test for this Friday.

We know that mandamus may be issued to compel a ministerial act, including a ministerial act that requires the exercise of discretion, but mandamus cannot be used to compel the exercise of discretion in a particular fashion.

Assume a statute obligates state agencies to grant or deny a petition for formal hearing within 15 days of the petition's receipt, and another statute provides that when there is an appeal, the court may award attorney's fees to the prevailing party if the agency action that led to the appeal was a gross abuse of the agency's discretion.

Now, here's the situation: A petition for formal hearing is filed with an agency. The agency has discretion to grant or deny the petition, but it does neither. The petitioner then seeks a writ of mandamus from the local district court of appeal. The district court grants the writ, holding the duty to rule was ministerial.

Here's the question: Can the district court grant the petitioner's motion for appellate fees? After all, can there have been a gross abuse of discretion when the basis for issuing the writ was the agency's failure to exercise any discretion in the first place?

Whether you answered yes or no, someone on the First District agrees with you. Check out the majority and dissenting opinions in this case.

Both opinions interested me. Also interesting, but not mentioned, is whether a mandamus proceeding constitutes an appeal for purposes of the attorney's fees provision.

 
Questions, questions: Valued Policy Law
In October, the First District released this decision involving Florida's valued policy insurance law. I described the case in this post. The district court has now certified the case to the Florida Supreme Court through the following question of great public importance:
DOES SECTION 627.702(1), FLORIDA STATUTES (2004), REFERRED TO AS THE VALUED POLICY LAW, REQUIRE AN INSURANCE CARRIER TO PAY THE FACE AMOUNT OF THE POLICY TO AN OWNER OF A BUILDING DEEMED A TOTAL LOSS WHEN THE BUILDING IS DAMAGED IN PART BY A COVERED PERIL BUT IS SIGNIFICANTLY DAMAGED BY AN EXCLUDED PERIL?
The certification order can be found here.

 
First District: Appealable Orders
Just a reminder here from the First District that orders merely granting motions for summary judgment, and which do not expressly enter judgment, are not appealable final orders.

 
First District: Testimony Regarding Settlements
In this case, the trial court ordered a new trial post-verdict based on a witness's implication that the plaintiff had settled with a subsequent tortfeasor. On appeal, the First District reversed. Liability had been admitted at trial, leaving damages at issue, and the settlement involved only a subsequent tortfeasor, not a joint tortfeasor.



Thursday, January 11, 2007
 
Email Note
A brief note on email: I'm very behind in responding...

 
First District: Judicial Bypass
This decision from the First District addresses the judicial bypass procedure by which a minor wishing to terminate her pregnancy can seek a judge's approval not to notify her parents of the procedure.

There have been only a handful of reported cases on this topic since Florida voters approved the parental notification constitutional amendment in 2004 and the legislature implemented the provision (including a bypass option) through this 2005 statute.

This new decision expands the jurisprudence. The case involved a local assistant public defender who volunteered to represent a minor seeking a notification waiver. Despite the attorney's representation that his boss, the local public defender, approved such activities "after work," the trial judge expressed the view that the attorney was ethically or legally prohibited from undertaking such representation. The proceeding went forward with the minor being represented by a second attorney, a transactional lawyer who lacked litigation experience. During the hearing, the judge requested and obtained multiple phone numbers from the minor and attempted to contact persons at those numbers to verify facts the minor related. Ultimately, the trial judge denied the request, and the minor appealed.

The appeal resulted in three opinions. In the majority opinion, authored by Judge Allen, the court held that neither the statute identified by the trial judge nor Florida's ethics rules precluded the assistant public defender from representing the minor. Because it could not be known what result would have been obtained had the preferred attorney been used, the court reversed. On the notion a rehearing in cases such as these is inconsistent with the expeditious nature of the proceedings, the court ordered the trial court to grant the notification waiver.

Judge Benton concurred and added that he found it improper -- as jeopardizing the confidentiality of the proceeding -- for the trial judge to make phone calls to investigate the minor's claims.

Judge Hawkes dissented. He viewed the assistant public defender as having voluntarily withdrawn after the trial judge opined the attorney's representation would be improper.

The case is noteworthy in at least two respects. First, it appears any error in denying a notification waiver may result in the waiver being granted, inasmuch as a rehearing is seen as inconsistent with the expeditious nature of the matter. Second, it remains unclear whether the sort of investigation the trial judge undertook is permissible. Judge Benton thought not, but implicitly the other judges on the panel disagreed. The latter issue in particular seems likely to generate some controversy.

 
First District: Mandamus
A writ of mandamus can be used to compel a lower court to render an appealable order. However, as the First District reminds us in this case, such a writ will not be issued unless the petitioner has first requested a final order from the lower tribunal.

The rule is essentially a preservation requirement.

 
First District: Rulemaking
Administrative law fans may be interested in this decision from the First District, where the court held that a Department of Environmental Protection proposed rule on water reservations was authorized by statute.



Tuesday, January 09, 2007
 
Murder, Common Law Style
Under the common law, if you intentionally injured someone and the person died as a result, you could be charged with murder. However, if the person did not die until a year and a day after the injury occurred, then the law conclusively presumed that the death was not the result of your actions.

The "year and a day" rule was part of the English common law, which of course made it part of Florida law -- until the legislature abolished it by statute in 1988.

What effect does that abolition have where a person injured another prior to 1988 and death resulted decades later?

That question is being raised by a New Port Richey case that was the subject of this story in the St. Pete Times. Allegedly, the defendant shook his daughter in 1986, causing her brain damage and other injuries. He pled guilty to aggravated child abuse in 1989 and spent a year in prison as a result. In 2006, the daughter died, allegedly from the 1986 injuries. A grand jury has indicted him for murder.

According to the story, the state will argue that the "year and a day" rule was procedural, as a rule of evidence, and could be retroactively abolished. The defense will argue that the law was sufficiently substantive that abolishing it deprives the defendant of due process.

Interesting.

It might be noted that the year-long period expired in this particular case prior to the legislative change.

 
Questions, questions: Fourth Time's The Charm?
In recent years, the justices on the state supreme court have openly discussed how the court is not taking certified question cases based merely on their great public importance certifications. There was a time when the court seemed to take every certified question case as a matter of course. No longer. The court now wants to see more -- perhaps a certain level of genuine importance, or uncertainty on the merits, or something else.

With that background, consider the contest of wills going on between the high court and the First District over the recently created statutory fee scheme in workers' compensation cases. Workers' compensation attorneys have adamantly brought statutory construction challenges to the new scheme -- challenges the First District initially rejected in this case. Having rejected the construction arguments, however, the district court certified the following to the Florida Supreme Court as a question of 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?
The high court declined to exercise jurisdiction. Next, in this case, the First District addressed a series of constitutional challenges to the fee scheme, rejected them, and again certified the same question on statutory construction. Again, the supreme court declined to accept the case.

Then it happened again. The district court released this decision, certifying the same question, and again the high court declined review. Oh for three.

Apparently undaunted, the First District has now certified the same question again, in this decision. A motion for rehearing is currently before the court. If that is denied, and further review is sought, I suppose we will get to see the result of round four.

 
Questions, questions: Election Challenges
You may recall that in the November 2004 election, the people of Florida approved a this constitutional amendment, which allowed Miami-Dade and Broward Counties to determine if they would permit certain slots-based forms of gambling. You may also recall that, just before the election, a group filed a lawsuit arguing that the amendment's sponsors committed fraud in gathering the voter signatures required to place the amendment on the general ballot. The trial court did not hold an expedited trial prior to the election and, after the election, held that the voters' approval cured any fraud in the process that placed the measure on the ballot.

Back in August of last year, the First District released this divided decision which reversed the cure ruling and remanded for a trial on the existence of the alleged fraud. In late November, the en banc court vacated that earlier decision and released this one in its place. Much as the panel opinion had, the en banc opinion held that the trial court erred in not attempting to expedite the trial prior to the election. The en banc court further held that the public's approval of a measure can only cure infirmities where no challenge was brought prior to the election and the alleged deficiencies were merely formal or procedural irregularities. Because the challenge in this case preceded the election, the election's result could not cure the alleged fraud.

Separately, the en banc court held that even if the challenge had not timely preceded the election, an election cannot cure fraud intended to avoid the requirements for placing an initiative on the ballot. The court remanded the case for further proceedings on the existence of the alleged fraud but certified the following to the Florida Supreme Court as questions of great public importance:

I. WHETHER VALIDATIONS OF SIGNATURES BY SUPERVISORS OF ELECTIONS CAN BE CHALLENGED BASED UPON ALLEGATIONS OF FRAUD AFTER CERTIFICATIONS OF SIGNATURES HAVE BEEN ACCEPTED BY THE SECRETARY OF STATE AND THE BALLOT PRINTED AND ABSENTEE VOTING COMMENCED IN ACCORD WITH FLORIDA LAW?

II. WHETHER AN AMENDMENT TO THE FLORIDA CONSTITUTION THAT IS APPROVED BY VOTE OF THE ELECTORS MAY BE SUBSEQUENTLY INVALIDATED IF, IN AN ACTION FILED BEFORE THE ELECTION, THERE IS A SHOWING MADE AFTER THE ELECTION THAT NECESSARY SIGNATURES ON THE PETITION PROPOSING THE AMENDMENT WERE FRAUDULENTLY OBTAINED?
A three-judge dissent opined that, under controlling state supreme court case law, fraud and mistake leading to the inclusion of a measure on the ballot are cured where a facially valid measure is approved by the electorate. The dissent also seized in part on the appellants' concession at oral argument that there is no distinction between fraud and mistake in failing to obtain the required signatures. Notably, the majority rejected that concession, stating that erroneous concessions should not be accepted by an appellate court.

A second dissent, joined by five judges, asserted that the certified questions should not have been certified but otherwise concurred with the lead opinion, creating a majority. Their views on certification may be intriguing to appellate specialists.

 
First District: Employment By Estoppel
Creating insurance coverage through estoppel may be inappropriate, but this decision from the First District explains that equitable estoppel can be a basis for establishing an employment relationship, which in turn can be a basis for establishing workers' compensation coverage.

 
First District: Psychotherapist Privilege
If a plaintiff claims emotional distress based on psychological distress allegedly suffered by another person, can the defendant access the other person's psychological records? In this certiorari case, the First District said no.

 
First District: Ex Parte Communications With Physicians
Should a physician have ex parte communications with a party adverse to the physician's patient? This certiorari decision from the First District adds to the case law saying no.



Monday, January 08, 2007
 
Back In Blog
Ahem. It was a heck of a hiatus, but I have finally made it back to Abstract Appeal. A long Thanksgiving weekend led into a flurry of activity -- appellate support at two jury trials, multiple briefs, visits away, family visiting, holiday events -- all the way through this weekend, when Debbie and I celebrated our first anniversary.

All through the break, I said I would not post again until I could actually return. And catch up. That is what I will begin doing today -- catching up. Quite a bit has happened in Florida law during the last several weeks, and starting later today (after an oral argument in Miami) I will get to everything worth noting, ideally in rather short order.

I hope everyone had a wonderful holiday season. Happy 2007. To all those who kept checking this blog for signs of life, thanks.





 
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