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Wednesday, February 28, 2007
Not Kidding . . . But Wish I Were
I just heard the host of a national legal news show refer to the "tipsy coachman" language in today's Anna Nicole Smith decision and say something to the effect, "The appellate court compared Judge Seidlin's decision to a drunk driver."

The tipsy coachman rule may never be the same again...

Anna Nicole Smith: The Fourth District's Decision
The Fourth District has now posted its opinion affirming the trial court's order that Dannielynn, through her guardian ad litem, is entitled to custody of her mother's remains. You can read the decision here.

The district court held that the reasoning of the trial court was incorrect but that the trial court nonetheless reached the correct result. So the district court affirmed the trial court's decision as being right for the wrong reason.

Recall from the trial court's order that the trial court paid significant attention to who is the "legally authorized person" entitled to custody of Anna Nicole Smith's remains. The trial court saw the matter as a custody dispute.

The Fourth District disagreed. The district court determined that the statutes the trial court relied upon were intended to address to whom a funeral home or a medical examiner should surrender a body, not where or how a person's remains should be disposed. Instead, the controlling law is found in the common law notion that the wishes of the decedent control. The statutory list of persons to whom remains may be surrendered is a list of those who are most likely to know and follow the decedent's wishes.

So Anna Nicole Smith's wishes control where she should be buried. Do we know them? As it turns out, we do. The district court explained that the trial court found Anna Nicole Smith wished to be buried in the Bahamas, next to her son, and that this finding was "not essentially disputed" in the appeal. The district court further observed that the guardian ad litem had committed to burying Anna Nicole Smith in the Bahamas, consistent with her wishes. On this basis, the Fourth District determined that it was not necessary to remand the case to have it decided under the correct legal standard, since the result under that standard was going to be achieved under the trial court's order. Thus, the order was affirmed as being right for the wrong reason.

Now, the lawyers who read this post, and nonlawyers who frequently read Abstract Appeal, are no doubt familiar with the nickname that Florida law gives the doctrine that allows erroneous decisions to be affirmed when their reasoning is wrong but their result is still right. We call it the "tipsy coachman" doctrine, and the Fourth District expressly invoked it in deciding to affirm the trial court's decision here. I suspect that a number of nonlawyers who come upon this decision will speculate as to why that label found its way into the Anna Nicole Smith decision and if it represents a comment on her much-ballyhooed lifestyle.

Of course, the answer is no. It is now a common term in Florida law. I used it in this post from earlier this month, and in this post from last month, and in a gaggle of earlier posts.

Some may also wonder where the "tipsy coachman" term originated. Well, it comes from a 1774 poem by Oliver Goldsmith entitled "Retaliation," which contains the following passage:
The pupil of impulse, it forc'd him along,
His conduct still right, with his argument wrong;
Still aiming at honour, yet fearing to roam,
The coachman was tipsy, the chariot drove home....
The Georgia Supreme Court quoted that poem in an 1879 decision, and the Florida Supreme Court quoted from the Georgia decision in a 1963 decision. But it was not until 1984 when Judge Joe Cowart, Jr. of the Fifth District Court of Appeal quoted the poem in a dissent and referred to the right-for-the-wrong-reason concept as the "tipsy coachman" rule that the term began to take off in Florida. Since then, it has been used many dozens of times by Florida's appellate judges. Today's decision is simply the most recent.

One last point for appellate-minded readers. I previously wondered why the case had been filed as a certiorari petition -- which presents a higher standard for the petitioner than an appellant has in an ordinary appeal -- rather than as an appeal. As it turns out, the reason was probably just strategic in the sense of getting a complete argument on paper in front of the Fourth District sooner rather than later. The Fourth District's decision indicates that the matter was filed as a certiorari petition but was treated as an appeal by the court.

Anna Nicole Smith: Appellate Petition Denied
FoxNews.com reports here that the Fourth District has denied Virgie Arthur's petition.

Anna Nicole Smith
CNN.com has this report on this morning's oral arguments. Frankly, the story does not tell me much. I wish I had a copy of the certiorari petition and the response. It is difficult to gauge from the press reports what the actual issues presented are.

Anna Nicole Smith: Arguments Today
The Fourth District has kindly posted its order granting a stay in the Anna Nicole Smith case. The order is available here, and it reveals that the court has entered an indefinite stay in the case.

The order further reveals two additional items. First, it indicates that Virgie Arthur technically did not appeal from last week's trial court order granting custody of Anna Nicole Smith's body to her daughter; instead, Virgie Arthur filed a petition for a writ of certiorari.

A certiorari petition is not an appeal, though by its nature it is a petition that asks an appellate court to review an order. The standards for granting such a petition are higher than in an appeal -- the petitioner must demonstrate that irreparable harm will occur if the petition is not granted and that an error has occurred of sufficient magnitude to qualify as a "departure from the essential requirements of law."

The stay order also required the respondents in the case, which include the daughter's guardian ad litem, to file a response to the certiorari petition by 2 pm yesterday. That is a mighty accelerated schedule, and it makes me wonder if the certiorari petition focuses on whether the body should be permitted to leave Florida in the short term, as opposed to the merits of the trial court's custody determination. But that is just a hunch -- I have not yet seen the certiorari petition, or the responses that were presumably filed yesterday afternoon.

Also, according to this order, the district court has scheduled oral arguments on the certiorari petition for 9:30 am this morning.

I suppose this would be a good time to mention how nice it would be if the Fourth District broadcasted its oral arguments live on the Internet...

Second District: AOL as Tipster
Those interested in how internet service providers have become watchdogs for certain types of activity may wish to check out the Second District's decision in this case. The court determined that an AOL tip regarding a subscriber's email transmission of child pornography was sufficiently reliable to support the issuance of a search warrant.

Second District: Probation Orders and Breath Tests
If you find yourself drafting or executing community service probation orders, the Second District has some reminders for you here about the contents of such orders. The case is also an interesting one that shows how automobile ignition lock devices that test for alcohol in a driver's breath can create evidentiary problems, particularly where a driver claims a device is producing false positives.

Second District: Prejudging Death
Those involved in death penalty cases may wish to check out the Second District's decision in this case. The court's opinion and a concurrence examined why a trial judge's comments on the state seeking death for a 65-year-old defendant warranted the judge's disqualification.

Second District: Child Custody and Support
Family law fans may be interested in this decision, where the Second District affirmed an order establishing different primary residences for a couple's two children. The court also reversed a support award where it insufficiently took into account the split custody arrangement and the changes in financial circumstances that took place over the course of the litigation.

Second District: Injunctions
Where a trial court enters an injunction without notice and neither the motion seeking the injunction nor the order granting the motion explain the irreparable harm that would result were notice given, the result appears to be reversible error. It was in this decision from the Second District.

Second District: Arbitration
The difficulties in arguing you should not be bound by an arbitration agreement you signed but did not read are shown by this decision from the Second District.

Second District: Mortgages and Amici
This decision from the Second District reversed the dismissal of a mortgage foreclosure action where a mortgagee attempted to foreclose based on nonpayment of a promissory note issued by a third party. The mortgagee also sought the reissuance of the note, which had been lost and the mortgagee claimed to hold. The district court held the complaint stated claims for relief and should not have been dismissed.

The opinion also shows that six amici curiae, represented by six different counsel, appeared in the case.

Monday, February 26, 2007
Anna Nicole Smith: Stay Entered
I have been debating whether to wade into the waters of the Anna Nicole Smith matter. With events now entering the appellate realm, I am inclined to get my virtual feet wet.

Here goes. Let me start with the obvious: Anna Nicole Smith died in Florida. Her body is here, and numerous people are claiming entitlement to control of her remains. Such disputes are resolved by our judicial system.

The competing claims were heard by a trial court in Broward County, which resolved them late last week with this order. It concludes that Anna Nicole's infant daughter, Dannielynn, is the person legally entitled to receive custody of Anna Nicole's body and to determine how the remains should be handled.

Dannielynn resides in the Bahamas. She is also just shy of six months old, which as a practical matter makes her incapable of understanding the nature of her mother's remains, let alone the significance of any decision on handling them. However, Dannielynn is represented by a guardian ad litem, who the court determined stands in Dannielynn's shoes and can make decisions for her by acting in her best interests.

So the order gives Dannielynn, through her guardian ad litem, custody of Anna Nicole's remains. Among those who also sought custody of the remains and lost was Anna Nicole's mother, Virgie Arthur.

Reports in the press indicate that the guardian ad litem wanted Anna Nicole's body immediately flown to the Bahamas for burial, but Virgie Arthur quickly appealed the trial court's decision to Florida's Fourth District Court of Appeal. Today, Arthur also requested that the appellate court enter a stay order that blocks Dannielynn's guardian ad litem from removing Anna Nicole's remains from Florida.

According to news reports such as this story from CNN.com, the Fourth District entered an order granting the requested stay.

I have not yet seen the stay order, but I will assume it is a standard order staying enforcement of the trial court's order. Put another way: the trial court's order is Dannielynn's authorization to remove her mother's body from Florida, and the stay order temporarily halts the effectiveness of that authorization.

The theory underlying the stay is, in all likelihood, that if the body is removed from Florida, then the Florida courts may well be powerless to award custody to the proper custodian if it is later determined that the trial court erred in awarding custody to Dannielynn.

How long will the stay last? Well, that depends on what the Fourth District's order says. It might only create an emergency stay that will last until the court decides whether to enter a full stay -- essentially a "nobody moves" order that allows the appellate court time to consider Virgie Arthur's stay motion. Such emergency stays are common when an appellate court wants to maintain the status quo while allowing all sides to file papers addressing whether a stay is appropriate. Or the stay order could, right now, create a stay that will last until the appeal is fully resolved. Such orders are common when a party's actions might undermine the appellate court's ability to grant an appellant relief.

If you have a copy of the stay order, please forward it to me and I will post it.

First District: Asking For Reversal
When is invited error not invited error? When it is invited by a criminal defendant who should rarely be in a position to invite anything, of course. This decision from the First District reminds trial courts they cannot grant a defendant's request to be appointed his or her own co-counsel without first conducting a Faretta inquiry.

First District: Insurance
This decision from the First District reminds insurance fans that primary insurance carriers owe a duty of good faith not just to the insured but also to any excess carrier.

Questions, questions: Search and Seizure
In this decision, the First District certified the following to the Florida Supreme Court as a question of great public importance:
The court answered the question in the negative.

Interestingly, Judge Wolf wrote a concurrence wherein he listed the reasons he believes the state supreme court should review the decision. Given that the supreme court has recently decided that jurisdiction briefs should be permitted in certified conflict cases but not certified question cases, it seems Judge Wolf's approach is an important one in encouraging review.

Certified Conflict: Blakely
Here we have another reminder that Florida's district courts of appeal are split 4-1 on whether the U.S. Supreme Court's decision in Blakely v. Washington applies to a resentencing in a case where it did not apply retroactively to the original sentence.

Wednesday, February 21, 2007
U.S. Supreme Court: Punitive Damages
Yesterday, the United States Supreme Court released yet another decision redefining the federal constitutional due process concerns that cabin punitive damages awards.

In this tobacco-related decision, a court divided 5-4 held that a punitive damages award may not punish a defendant for harm caused to a stranger to the litigation. The court acknowledged that harm caused or threatened to others may be considered in determining the reprehensibility of the defendant's conduct, but the court held that states must utilize procedures to ensure that a defendant is not punished for injuries inflicted on nonparties.

This decision is the most recent in a series of recent U.S. Supreme Court decisions that distance the federal due process clause from longstanding Florida law on punitive damages.

Florida Supreme Court: Cruise Ship Doctors
This case presents an example of a decision that turns not on what the court believes the law ought to be but on the existing rule of law -- or, more specifically, the rule of case law.

The case involved whether cruise ships can be held vicariously responsible for the acts of their on-board physicians. Historically, case law has said no, but in 2003 the Third District rejected that longstanding view in favor of one that modern shipowners should be as liable for a ship's doctor's ability to practice medicine as they are for a ship's captain's ability to sail the ship.

The Florida Supreme Court unanimously disagreed. Focusing on federal admiralty law, which governed the case, and its fundamental principle of uniformity, the court determined that a shipowner's nonliability for the acts of an on-board physician was a matter of settled maritime law that the district court could not upset, particularly where only one other decision espoused a contrary view at the time the district court made its decision. The decision never discussed what the court believed the result ought to be.

Friday, February 16, 2007
Eleventh Circuit: Privacy
An Alabama law bans the commercial distribution of devices designed or marketed primarily for human genital stimulation. Does that prohibition violate the privacy right that the U.S. Supreme Court has found inherent in the Fourteenth Amendment? No, said the Eleventh Circuit in this decision released on February 14.

The court held no fundamental right to sexual privacy exists in the federal constitution and, applying only the low-level rational basis test, concluded that public morality was a legitimate and sufficient justification for the law's commercial-based constraints.

Wednesday, February 14, 2007
Congratulations are in order for Scott Makar, who had a pretty good week. Attorney General Bill McCollum named him the next Solicitor General of Florida, as announced by this press release.

Oh, and Scott also won this eminent domain case in the First District.

Third District: Spoliation
This opinion from the Third District concisely explained that an adjuster for an insurer is an agent for the insured, in the sense that if the adjuster is responsible for losing evidence material to a third party's claim against the insured, the third party cannot bring a separate spoliation claim against the adjuster.

The decision relies on the principle that spoliation by a party that impairs a claim against that party is to be addressed through appropriate sanctions in the litigation on that claim, not through a separate claim for spoliation.

Fourth District: Personal Jurisdiction
The plaintiff in this case alleged that the out-of-state defendant failed to make a payment that, by contract, was due to be made in Florida. The Fourth District acknowledged that allegation but nonetheless held the defendant lacked sufficient minimum contacts with the state to satisfy due process. The district court reversed a trial court order denying a motion to dismiss for lack of personal jurisdiction.

First District: Ad Valorem Taxation
Municipalities and tax fans will be greatly interested in this decision from the First District. A divided court addressed the taxability of a city's communication towers and equipment, including items partly leased to private telecommunications interests.

Third District: Sovereign Immunity and Certiorari
Those interested in sovereign immunity may wish to check out this decision from the Third District. The court granted a certiorari petition in favor of a county after a trial court erroneously denied the county's motion to dismiss a negligence suit.

Third District: Jury Instructions
The trial court in this case modified the standard instruction on negligence in a way that erroneously curtailed the plaintiff's claim. With some blunt language about departing from the standard negligence instructions without stating a basis for doing so, the Third District reversed.

Third District: Closings
For an explanation of how a buyer being "ready, able, and willing" to close a sale includes having either the money or a binding committment for a loan from a financially able third party, check out this decision from the Third District.

Fourth District: Separation of Powers
This decision from the Fourth District considered whether the legislature unconstitutionally delegated too much authority to local school boards when they determine whether to grant applications for charter schools. The court said no. The discussion will be of much interest to constitutional law fans.

Third District: Retroactivity
If due process and retroactivity issues interest you, then you may wish to check out the Third District's decision in this case. The court rejected two challenges to a law that affected a case that was already in court when the law took effect.

Fourth District: Rule 3.850
If you find yourself wondering whether your appeal will halt the running of rule 3.850's two-year limitations period, check out this decision from the Fourth District.

Third District: Computer Printouts
The next time you wish to use the contents of a computer printout as evidence, keep in mind what is necessary for such hearsay to be admitted. For a refresher, check out the Third District's decision in this case.

Tuesday, February 13, 2007
Bankrupt Appeals CLE
I have seen a few appeals that would qualify for that, but, no, no, this post is supposed to be about a bankruptcy appeals CLE.

Those involved in bankruptcy work or who wish to learn (or learn more) about bankruptcy appeals should consider attending the Appellate Practice Section's first ever bankruptcy appeals seminar. It will be held March 8, 2007, in Tampa. For more information, look here.

Blogging "Upgrade"
The tool I use to publish posts finally forced me to upgrade versions this morning, resulting in little quirks I need to address. So if you spot problems, like the "#" direct links to posts now not working, hopefully you will see them fixed soon.

Third District: Attorney's Fees
A Florida court cannot award attorney's fees incurred in a federal bankruptcy proceeding, as the Third District explained here. The court noted that the error of awarding such fees can be considered fundamental.

Third District: Brief Writing
Though I acknowledge some others feel differently, I am refreshed by opinions like this one -- very brief, offering only a conclusion and a directive, saying no more than needs to be said in a case where privacy is surely a concern.

Monday, February 12, 2007
First District and Eleventh Circuit: Gone Fishing
Last week I caught the release of two alluring decisions.

This decision from the First District addressed a challenge to a Florida administrative rule that prohibits the use of fishing nets with mesh greater than two inches. I suppose the decision could have begun:
Two-inch fish nets, or not two-inch fish nets? That is the question.
But the decision did not.

In this case, the Eleventh Circuit addressed a challenge to a federal classification that considers the Alabama sturgeon and the shovelnose sturgeon to be the same species of fish. The decision in fact began:
Two fish, or not two fish? That is the question.
And a serious question, too.

Second District: Multipliers
For the second time in the last few weeks, a district court of appeal has reversed the use of an attorney's fees contingency risk multiplier in an employment case under the Florida Civil Rights Act, holding multipliers are unavailable in such litigation. On Friday, the Second District did so in this case, and two weeks ago, the First District did so in this case.

Second District: Conversion
If you never have possession of something, you cannot convert it, as the Second District explained in this decision.

Second District: Successive Postconviction Motions
Trial courts may be interested in this decision, where the Second District discussed some limits on dismissing rule 3.850 motions as successive.

Fifth District: Discovery and Certiorari
The district courts of appeal continue to express frustration with the breadth of some trial court discovery orders, and the district courts continue to use the writ of certiorari to address the situation.

In this case, the trial court required the production of what would apparently be a mammoth privilege log without ruling on the discoverability of the requested documents. The Fifth District held the order constituted a departure from the essential requirements of law, observing once again that litigants are not entitled to carte blance discovery of irrelevant material.

The court's final words bear repeating:
In so ruling, we note that we are not unsympathetic to the challenge that trial courts face when confronted with what appear to be unlimited discovery disputes, each requiring an inordinate amount of judicial time and effort to resolve. For this reason, we remind Respondent's counsel of his ethical obligation to refrain from making frivolous discovery requests. See Rule 4-3.4 (d), Rules of Professional Conduct. Some of the requests propounded in this case are so patently overbroad that they are clearly frivolous. We similarly remind Petitioners' counsel of her professional obligation, set forth in the same rule of professional conduct, to comply with all legally proper discovery requests. Id. The parties should fulfill their respective ethical obligations by meeting and working together to reasonably narrow the disputed issues before bringing future discovery matters to the trial court for resolution. This should be the practice of all counsel, in all cases.
Unfortunately, the standard set forth in that paragraph does not describe the practice of all counsel in all cases -- not even close, with the problems coming from both sides of the bar. The situation will likely improve, however, to the extent the judiciary continues to demonstrate a willingness to step in and publicly address these matters.

First District: Duty
Premises liability fans will be interested in this decision from the First District.

A divided court held that a landowner owed no duty to the employees of an independent contractor with respect to a dangerous condition, where the owner could not be expected to know of any connection between the condition and the owner's property. That the condition was in fact partly on the landowner's property was apparently unknown to all until a professional surveyor hired by the plaintiff's counsel uncovered the situation years later.

Judge Lewis dissented.

First District: Workers' Compensation
I note that, in this case, the First District rejected a set of constitutional challenges to the workers' compensation attorney's fees scheme without certifying the matter to the state supreme court through a question of great public importance.

Compare that result to the First District decisions discussed in this prior post.

Fifth District: Inmate Filing Restrictions
Trial courts may be interested in the Fifth District's decision in this case, where the court explored the restrictions applicable to trial court orders prohibiting further pro se filings by convicted defendants.

Fifth District: Appellate Lessons
The Fifth District issued a written opinion in this case, rather than a per curiam affirmance, to make two points regarding appellate practice.

First, the court explained that merely listing a point of error in an initial brief is ineffective if the argument portion of the brief lacks discussion of the point. Finding such an argument waived, the court asked, rhetorically, "Why bring it up in the first place?"

Second, the court denied as untimely the appellant's motion for attorney's fees. By rule, such motions must be served no later than the due date for service of the reply brief. The appellant apparently served the reply brief and the fees motion late, accompanied by a motion that, as the court explained, asked the court to accept the reply brief but made no mention of the fees motion. The court asked, again rhetorically, "If a motion for attorney's fees is untimely, why file it?"

I have not seen the motion filed in the case, but I can guess at the answer to the court's second rhetorical question. I suspect counsel intended the motion to request that the reply brief's deadline be extended, not just that the late brief be accepted, on the premise such an extension would render not only the brief but also the fees motion timely served and filed. Apparently things did not work out that way, and as I said, I have not seen the motion.

Fifth District: Lis Pendens Bonds
The amount of a lis pendens bond should bear a reasonable releationship to the damages likely to be incurred if the lis pendens is ultimately found not to be justified. For a discussion on this topic, check out the Fifth District's decision in this case.

Fifth District: PIP Benefits
Can an insured's misrepresentations to an insurer about an accident preclude a third party from recovering PIP benefits otherwise due under a policy, if the third party had nothing to do with any misrepresentations? No, said the Fifth District under the circumstances of this case, which were sufficiently extraordinary to warrant a writ of certiorari on second-tier review.

Certified Conflict: Sentencing
In this case, the Second District certified conflict with a decision from the First District regarding whether a scoresheet error can be raised on resentencing after a violation of probation.

Fifth District: Plea Withdrawal
A defendant's unawareness that a plea in one case would permit his credibility to be impeached in another case can be grounds for allowing the defendant to withdraw the plea. The Fifth District held the denial of a withdrawal request under those circumstances to be reversible error in this decision.

Fifth District: Personal Representatives
Estates fans may be interested in this decision from the Fifth District. The court reversed a trial court's order that refused to appoint as personal representative the person selected for that role in the decedent's will.

Second District: Mistakes
Rule 1.540 provides for relief from mistakes, but not judicial mistakes, as the Second District explained in this case.

Friday, February 09, 2007
Second District CLE
If you are in the Tampa/St. Pete area and would like to attend an interesting appellate CLE program, consider the one being held next Thursday, February 15, in downtown St. Pete. The Appellate Practice Section of the St. Pete Bar is putting on a three-hour appellate practice CLE that focuses on practice in the Second District.

The program runs from 2-5 and will include a half hour of appellate ethics, a presentation on attorney's fees and proposals for settlement, and an extensive roundtable discussion with judges from the Second District on many aspects of appellate practice and appellate decisionmaking.

If you handle one appeal a year or many, or if you just want to spend some time hearing from the people who make up the Second District, please join us. For more information, check out the St. Pete Bar's web site.

Thursday, February 08, 2007
Fifth District: Frye
Those interested in Frye-testing may wish to check out the Fifth District's decision in this case. The court affirmed a trial court's exclusion of an expert's proposed testimony that a plaintiff's use of the drug Verteporfin caused him to develop a permanent photoallergy.

Fifth District: Mandamus
As the Fifth District pointed out in this decision, you cannot seek a writ of mandamus directing a trial court to do something if you have not first asked the trial court to do it.

Fifth District: Separation of Powers
A trial court ordered the Department of Children and Families to pay for a man's drug testing, and DCF appealed. The Fifth District determined the order was not appealable but nonetheless treated the appeal as a petition for writ of certiorari and granted it.

The court held that the judicial directive requiring DCF to expend funds in a particular manner violated the constitutional principle of separation of powers. You can read the decision here.

Questions, questions: Hearsay
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:
The district court answered this question in the negative.

Fifth District: Noncompete Agreements
The covenant not to compete at issue in this case contained a liquidated damages provision. The Fifth District held that the provision was actually a invalid penalty, not a measure of anticipated damages. The court also held application of the provision would be unconscionable under the circumstances of the breach at issue.

Fifth District: Attorney's Fees and Costs
This decision from the Fifth District points out that the time period for filing a motion for costs (or, it would seem, a motion for fees) can be extended by timely filing a motion for extension of time under rule 1.090(b) and showing good cause.

Fifth District: Restraints on Alienation
In this case, the Fifth District declared a commercial lease to be void because it constituted an unreasonable restraint on the alienation of property.

The lease gave the lessee the right to renew indefinitely for two-year periods, with rent increases set at an additional $50 per month with each renewal. The lease was binding on subsequent owners of the property, and the lessee had the first option to purchase should the property ever be for sale.

Wednesday, February 07, 2007
Fifth District: Leasing Lingo
If you do not know what a "hell-or-high-water clause" is, then footnote 4 from the Fifth District's decision in this case will get you up to speed.

Fifth District: Pre-Suit Notice
In this case, the Fifth District held that a pre-suit notice that did not specifically identify a particular physician nonetheless constituted notice to him. The doctor's identity had not been determined at the time the notice was sent, the doctor's conduct was described, and the doctor had a close legal relationship with an entity that received the notice.

Fifth District: Certiorari
In this certiorari decision, the lack of case law on point for a particular argument was held to preclude a finding that the trial court's order violated a "clearly established" principle of law. Thus, the Fifth District denied certiorari relief.

Certified Conflict: Double Jeopardy
If a trial court credits a defendant's sentence with a particular amount of time served, and the amount is erroneously overstated, can the trial judge ever correct the error without violating the constitutional prohibitions on double jeopardy? Yes, said the Fifth District under the circumstances of this case.

The court certified conflict with decisions from the First and Second Districts.

Fifth District: Overbreadth
Constitutional law fans may be interested in this decision from the Fifth District, which rejected a claim that a statute prohibiting animal fighting was unconstitutionally overbroad.

Fifth District: Breathalyzer Source Code
In this decision, the Fifth District addressed the following question, which a circuit court certfied as a matter of great public importance:
The district court answered the question in the negative.

Fifth District: Arbitration and Rule 1.525
The Fifth District decided in this case that, where fees are to be determined by a court, rule 1.525 applies to arbitration proceedings and under the pre-2006 version of that rule, a motion for fees filed prior to the entry of judgment is timely filed.

Recall that the districts are split on whether the former version of the rule required that a motion for fees or costs be filed between the entry of a judgment and 30 days thereafter or simply be filed no later than 30 days after the entry of judgment.

The Second District adopted the former interpretation in this decision. The First District disagreed here, the Third District disagreed here, the Fourth District disagreed here, and now the Fifth District has disagreed as well.

Fifth District: Subject Matter Jurisdiction
This decision from the Fifth District reminds us that, in Florida, circuit courts are courts of plenary jurisdiction which have authority over any matter not expressly denied them by the state constitution or applicable statutes.

Fifth District: Bad Faith
Insurance fans may note that the Fifth District in this case held that a trial court departed from the essential requirements of law when it permitted a first party bad faith case to go forward in the absence of a determination of the insurer's underlying liability. However, the court held that no irreparable harm had been demonstrated and denied the insurer's petition for a writ of certiorari.

In a footnote, the court observed that the bad faith claim may never ripen because a breach of contract claim would likely be precluded by the five-year statute of limitations.

Question, questions: Criminal Jury Instructions
In this case, the Fifth District once again certified the following to the Florida Supreme Court as a question of great public importance:
The court again answered the question in the affirmative.

Tuesday, February 06, 2007
Fifth District: Arbitration Appeals
Florida Rule of Appellate Procedure 9.130 permits immediate, interlocutory review of orders determining the entitlement of a party to arbitration.

In this case, a defaulted party succeeded in setting aside the default. The trial court then ordered the party to file a pleading in response to the complaint, and the party responded by moving to compel arbitration. The trial court struck the motion and entered a new default. The party then attempted to appeal that order.

The Fifth District held that the order striking the motion to compel arbitration was not an order on the substantive issue of whether an entitlement to arbitrate exists. The court further held that the correctness of the trial court's decision could be challenged on plenary appeal after a final judgment is entered, precluding certiorari review. Thus, the court dismissed the appeal.

Fifth District: Custody
Family law fans may be interested in this decision from the Fifth District. The court held that a successor judge erred in relying upon testimony presented to the original trial judge, at a temporary hearing, to support a decision to order a permanent change in custody.

Fifth District: Attorney's Fees and Multipliers
Few issues raise eyebrows among attorneys more so than the matter of attorney's fees and contingency risk multipliers -- the mathematical device used to multiply the fee the attorney would ordinarily receive if it were based simply on a reasonable hourly rate and the reasonable number of hours expended on the case, with the purpose of rewarding the attorney for having taken the case on a contingency basis. A case where the attorney is to be paid a contingency fee is a case where the attorney risks recovering no fee at all if the client recovers nothing.

If these subjects interest you, then so will this decision from the Fifth District.

The case began as a PIP benefits case in county court. An insured with an unpaid $1,315.30 chiropractic bill sued his insurer. After extensive discovery, the parties settled the case. The insured's attorney then sought to recover his fees. He asserted that he expended 193.75 hours on the case and should be paid $400 per hour, or $77,500. The trial court agreed and also approved a fee multiplier of 2.5, resulting in a total attorney's fees award of $193,750.

The insurer appealed to the local circuit court and lost. The insurer then sought certiorari review from the Fifth District. While certiorari review of a circuit court's appellate decision presents a higher standard of review than mere error, the Fifth District granted the petition.

The court held the use of the multiplier to be a manifest injustice. The court emphasized that fee awards must in all events be reasonable, and the court was troubled by several things: (1) the evidence did not show the client had trouble obtaining counsel, (2) no client had ever paid the attorney $400 per hour, (3) the amount in controversy was merely $1,315, and (4) the insurer's actions in denying payment for the chiropractic bill, while wrong, did not seem unreasonable, unwarranted, or outrageous.

Focusing on the connection, or lack of connection, between the value of a case and the amount of fees that should be charged to represent a party in the case, the court quoted the following passage penned by Judge Farmer in 1993:
[J]udges and lawyers [have lost] . . . sight of a truth they [formerly] accepted almost universally: viz., that there is an economic relationship to almost every legal service in the marketplace. The value of any professional service is almost always a function of its relationship to something else -- i.e., some property or other right . . . . Trial judges and lawyers used to accept a priori the idea that, no matter how much time was spent or how good the advocate, the fair price of some legal victories simply could not exceed--or, conversely, should not be less than--some relevant sum not determined alone by hours or rates. Since Rowe, that all seems lamentably forgotten.
In a footnote, the court indicated that it was troubled by the lodestar fee amount in the case, particularly the $400 hourly rate, but the court said it would "leave that issue for another case when the scope of our review is broader."

Judge Pleus authored a special concurrence that included these observations:
This case demonstrates why a multiplier should not be given automatically. If the plaintiff's attorney spent only ten hours, and his or her normal hourly rate is $200, yielding a lodestar of $2,000, a multiplier might be appropriate. On the other hand, a lodestar of $77,500 based on 193 hours at $400 per hour is a gracious plenty. Any attorney who would not be pleased with $400 per hour and a collectible fee of $77,500 is most unusual.

I do not suggest for a minute that the plaintiff's attorney is unprofessional. He had every right to ask for the multiplier. The error was by the judges who gave it to him. In this case, $193,000 is not a reasonable fee; it is a penalty. In my view, the multiplier should not be used as a penalty. In the words of Judge Orfinger, it amounts to a "manifest injustice."

UPDATE: The court later withdrew its original opinion in the case and substituted this decision. No concurrence was filed.

Questions, questions: Probation
In this decision, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:
The court answered this question in the negative and certified conflict with a series of cases from the Second District.

Questions, questions: Charter Schools and Special Assessments
In this order, which followed this earlier decision, the Fifth District certified the following to the Florida Supreme Court as questions of great public importance:

In the original opinion, the court answered the first question in the negative and the second question in the affirmative.

Fifth District: Discovery and Certiorari
This decision from the Fifth District explains how a subpoena duces tecum should not be used at trial as a replacement for a timely discovery request for the production of documents.

The case also shows that orders requiring the production of irrelevant documents can, at times, be the subject of a writ of certiorari.

Fifth District: Appellate Jurisdiction, Minutes/Orders
This en banc decision from the Fifth District concerned the appealability of orders with both "order" and "minutes" in the title.

The court concluded that including "minutes" or "court minutes" in the title of an order does not transform what is otherwise a final, appealable order into an unappealable one.

The court expressly held that "a document entitled 'order' (even if also entitled 'court minutes' or 'minutes') that is signed by the judge and filed with the clerk is a rendered and appealable order."

Two judges dissented based on the Florida Supreme Court's decision in State v. Wagner. That decision held that minute entries do not constitute orders, and therefore cannot be the subject of a certiorari petition or an appeal.

The majority based its decision on what that group saw as the realities facing trial judges in the Fifth District's territory. Judges without significant resources, and yet who must move through a multitude of cases each day, apparently rely heavily on the use of forms serving as both court minutes and court orders. The majority saw Wagner as addressing a signed minute entry that is not labeled an order and offering an ideal that separate, formal orders should be entered in each case.

The dissent viewed Wagner as reaching a broader holding that prohibits minute entries from being considered orders, regardless of what a minute entry does, and requires separate, formal orders in each case.

Monday, February 05, 2007
Fifth District: Hospital Liability
Those interested in the many efforts being undertaken to seek liability against hospitals, in the wake of tort reform making it difficult to sue physicians, should check out this decision.

The Fifth District considered whether hospitals have a nondelegable duty to provide competent medical care to patients, which, if it existed, would allow hospitals to be held liable for the acts of independent contractor physicians. In an interesting opinion, the court held no such duty exists.

The court also determined, however, that a hospital can undertake a duty to provide competent care by contract.

Fifth District: Rule 1.540(b)
Rule 1.540(b) can be used to correct mistakes in orders and judgments. Can it be used to correct an error in the stated post-judgment interest rate? Yes, said the Fifth District in this case, though the court affirmed a trial court's discretionary denial of relief on such a motion.

Fifth District: Class Actions
Class action fans will be interested in this decision from the Fifth District. The court reversed an order certifying a class. The certified class involved alleged oral misrepresentations made orally and in writing, by various sales personnel, to over 500 persons who purchased memberships to a golf club. The district court found individual issues would predominate.

Questions, questions: Lewd Conduct
In this decision, the Fifth District certified the following to the Florida Supreme Court as questions of great public importance:

The district courts of appeal are in conflict regarding the first question. The Fifth District answered yes to both questions.

Certified Conflict: Failure To Prosecute
This decision from the Fifth District held that the pendency of a motion for reconsideration, filed prior to a 16-month period without record activity and which was not brought to the trial court's attention during that time, did not constitute good cause for a lack of record activity. The case was controlled by the pre-2006 version of rule 1.420(e). The court certified conflict with an earlier First District decision.

Fifth District: Arbitration
The Fifth District's decision in this case is an interesting read on the extremely popular matter of arbitration.

The decision is also a good example of the benefit of reading all the way through an opinion -- at the end, two of the three panel judges concur only in the result. The opinion is therefore not the opinion of the court.

Friday, February 02, 2007
First District: Privacy and Minors' Sexual Conduct
Privacy fans will take great interest in this decision, which involved a minor girl's appeal from her delinquency adjudication for producing, directing, or promoting a video including sexual conduct of a child.

The girl was 16. She created digital photographs of herself engaging in sexual conduct with her 17-year-old boyfriend. (He was charged as well, but this was not his appeal.) The pair apparently emailed the pictures at some point, though neither minor published the pictures to a third party.

The girl argued that her conduct was protected by her constitutional right of privacy under Florida law and that prosecuting her, the younger of two minors in the pictures, under a law designed to stop child abuse, was unconstitutional.

The First District disagreed in a divided decision.

The majority held that the girl had no reasonable expectation of privacy in her conduct. Judge Padovano dissented, arguing that this case was constitutionally indistinguishable from the Florida Supreme Court's decision in B.B. v. State.

B.B. held that a statute prohibiting sexual relations with a minor was unconstitutional as applied to a minor who had such relations with another minor.

First District: Legal Fees For Public Officials
Public officials and sovereign immunity fans may be interested in a pair of decisions released this week by the First District.

In this case, the court examined whether sovereign immunity overcomes the common law right of public officials to receive legal representation at taxpayer expense when they defend themselves against litigation arising out of their official duties and while serving a public purpose. The court held sovereign immunity is not a bar to recovery.

In this case, the court applied that principle and held a county commissioner was entitled to reimbursement for legal fees incurred in defending charges that arose out of his official duties.

Second District: Multipliers
The Second District reversed a trial court's award of a contingency fee multiplier in this case. The multiplier was apparently awarded on the premise the plaintiff had brought a bad faith claim against the defendant insurer, but in fact the plaintiff had moved to amend her complaint to assert such a claim and the case was settled before the trial court ruled on that motion. Because the bad faith claim was not properly pled as a claim in the case, it could not predicate a fee multiplier.

First District: Multipliers
This decision from the First District holds that attorney's fees awards under the Florida Civil Rights Act may not be increased through a contingency fee multiplier.

UPDATE: The court later withdrew its first opinion and replaced it with this one.

Questions, questions: Vacating Pleas
In this case, the First District certified the following to the Florida Supreme Court as a question of great public importance:
The court answered the question in the negative.

First District: Costs
Can a trial court award a plaintiff a partial costs judgment if the plaintiff recovered only part of the damages sought in the case? No, said the First District in this case.

Thursday, February 01, 2007
Fourth District: Contracts and Limitations Periods
Appellate courts do change their minds on rehearing. Sometimes. This decision represents one of those times. The issue is a fun one.

Medical Jet owned an airplane and entered an agreement with a Signature Flight Services to inspect and repair it. The work apparently included obtaining the necessary certification from a government regulatory authority. Signature performed its work and returned the plane to Medical Jet in April 1998.

In May 1999, authorities grounded the plane because it lacked the proper certificate and therefore failed an inspection.

In August 2003, Medical Jet sued Signature for breach of contract. The limitations period for breach of contract claims is five years. If the period began to run in April 1988, then the suit was untimely filed. If the period began to run in May 1999, the suit was timely filed. So when did it begin?

In its initial decision, available here, the Fourth District unanimously held that the limitations period began to run with the failed inspection because it was only at that point Medical Jet was damaged. Signature moved for rehearing, and on rehearing the court, now divided, held that the limitations period began to run when the work was performed and the breach occurred.

Citing a long-popular contracts treatise, the majority held that, for a breach of contract action, the limitations period runs from the time of the breach, even if no damage occurs until later. The dissent took a contrary view, finding that damages are required for the cause of action to accrue, and accrual is necessary for the limitations period to begin to run. The dissent found the Florida cases cited by the majority all distinguishable. The majority accused the dissent of attempting to introduce the tort law concept of delayed discovery into contract law. The dissent disagreed, stating that the issue was simply one of damages, which did not occur in this case until a year after the breach occurred.

The issue, and the dialogue, are fascinating, as they reach toward a fundamental distinction between tort and contract law.

As I see it, tort law protects interests we all share -- such as the interest in maintaining our bodies or our property free from harm. If you negligently or intentionally injure one of those shared interests, you can be held liable under tort law.

Contracts, by comparison, do not protect interests shared by society. Contracts protect interests by agreement. By definition, the interests protected by a contract are uniquely held by the parties (and perhaps those who benefit from the contract), not by society as a whole. The parties acquire those unique interests because they pay for them, through some form of consideration.

Where one party to a bilateral contract fails to perform, the other party is immediately damaged -- in the sense that the consideration paid has not been matched by the bargained-for performance. In the context of the Fourth District's case, Medical Jet did not get what it paid to receive. Consequently, it was damaged from the time Signature failed to perform, a breach of contract action could be brought as of that point, and it follows that the limitations period should run from that time as well.

Fourth District: Paternity
This decision presents an interesting look at the issues surrounding paternity. In 1995, the Department of Revenue filed a paternity action to establish that one man, Miller, was the father of twin boys. The department obtained a default judgment, and Miller thereafter was assessed and paid child support. Miller helped raise the boys, believing he was their father.

The mother died in 2003, and Miller took temporary custody of the children. In 2005, a police officer shot and killed one of the boys. Obviously, the estate might wish to pursue substantial damages through a wrongful death claim. Miller requested appointment as personal representative of the estate, but so did another man, Glover, who claimed he was the twins' father. DNA testing conducted in 2006 confirmed Glover likely was the father.

The trial court denied Glover's petition for administration, and Glover appealed, arguing he was the boy's father and should be named personal representative. The Fourth District affirmed with a thoughtful opinion that examined the numerous consequences of shifting paternity from the person previously adjudicated to be the boys' father and someone new. Ultimately, the court held that the existing probate proceeding was not the proper place to adjudicate such a matter, and that for Glover to overcome the existing paternity adjudication, that adjudication must first be set aside in another proceeding.

Fourth District: Tipsy Coachman
This decision from the Fourth District presents an example of when an appellate court will not utilize a "right for the wrong reason" approach: where a trial court's dependency adjudication is unsupported by the trial court's specific findings, even if evidence in the case would have supported the result.

Fourth District: Appellate Mandates
This decision from the Fourth District indicates that an appellate court can retain jurisdiction over a case so long as its mandate has not issued.

Fourth District: Expert Testimony
In this decision, the Fourth District held that the trial court erred in permitting the jury to consider the lost profits testimony of an expert witness. The expert failed to consider numerous variables that could have affected profits, making his testimony speculative and unfounded. The court also criticized the expert's arbitrary decision to calculate lost profits for a period of five years.

Fourth District: Unemployment Compensation
Unemployment compensation fans may be interested in this decision from the Fourth District. The court explained that the case law-based "family emergency" exception applies only where an employee takes time off to care for an ill family member or because a death occured. The court held that taking time off to watch a child because a nanny quit does not constitute a family emergency.

Fourth District: Duty
This decision from the Fourth District explores the duty applicable to a negligence case involving a firearm left where a minor could access it. The plaintiff, who was injured by the firearm at issue, argued the jury should be instructed that the defendant had "a duty to use the highest degree of care." The district court disagreed, holding that the applicable duty is to act within the reasonable person standard of care.

Fourth District: Manifest Weight
A particular restaurant became a night club at night and had a tradition of persons throwing napkins into the air. The napkins would fall to the floor and remain there until the end of each night. Some napkins were or became wet.

A patron visiting the restaurant after midnight, and having had a drink, fell on her way from the restroom. She afterwards observed a wet floor and wet napkins on her shoes, and she sued for negligence. The restaurant admitted the napkins created a hazardous condition but defended that it was unclear what made the plaintiff fall. The jury returned a verdict for the defendant, and the trial judge denied the plaintiff's motion for new trial, rejecting a manifest weight of the evidence argument.

The Fourth District reversed. The court held that the evidence was undisputed that the restaurant was negligent. The court explained:
[T]he record in the present case shows at least some negligence on the part of the defendant, even though a jury could find that Izquierdo was negligent herself. The jury's verdict finding no negligence on the defendant's part is contrary to the manifest weight of the evidence, and the trial court abused its discretion in denying the motion for new trial.
The court's discussion focused extensively on the defendant's conduct, which from the court's explanation seems plainly to have been negligent. But could the jury have reached its verdict by finding the plaintiff failed to prove the defendant's negligence caused the fall? The court's discussion on causation was as follows:
Although the defendant argued in closing that Izquierdo did not know how she fell, the circumstantial evidence included her testimony that she slipped, went down on a wet floor, and found napkins on her shoes. The inference that the wet napkins on the floor caused her fall clearly was the only reasonable inference which could be drawn from the facts presented. The defendant offered no contrary interpretation consistent with the facts proved.
Very interesting. The court's decision is available here.

Fourth District: Trusts
Can a trustee who is not an attorney represent the trust pro se in a legal proceeding? No, said the Fourth District in this decision. The trustee represents the interests of others and therefore would be engaged in the unauthorized practice of law.

Fourth District: Insurance
Those interested in how breach of contract claims against insurers may be predicated on an insurer's noncompliance with a regulatory provision may wish to check out the Fourth District's decision in this case. The court affirmed a judgment on the pleadings for the insurer because the complaint failed to establish that a breach occurred. Notably, the court also reversed a judgment on the pleadings related to a declaratory relief count.

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

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