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|Any Remark Found On Abstract Appeal Should Be Attributed Solely To Its Author|
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.I suspect some family law attorneys will have use for that quote.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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?
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."
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?
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.
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."
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.
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.As the reader put it -- a classy move.
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.
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).
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?
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.
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.
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?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.
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?
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