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Friday, March 30, 2007
 
Alimony
This story from the St. Pete Times tells the tale of a former husband who asked a court to end his alimony obligation after the former wife underwent a sex change. Apparently, the court declined.

 
Second District: Manslaughter
Those interested in learning about manslaughter should check out this decision from the Second District. In an opinion essentially re-released en banc to preserve the uniformity of the district's case law, the Second District confirmed that manslaughter by act requires not an intent to kill but rather an intentional act that causes the death of the victim. In the case, a single punch killed a man. The court unanimously affirmed the defendant's manslaughter conviction.

 
Transcripts
Why is Judge Altenbernd concerned that electronic recordings of court proceedings might be transcribed by "criminal defendants, their family members, . . . [p]eople who do not possess a high school diploma . . . [or people who] may not even reside in Florida or in the western hemisphere"?

Find out in his concurring opinion in this case.

 
Second District: Error, Per Se
In this case, a divided Second District held that using the words "per se" in a jury instruction affected the instruction's meaning and created reversible error.

 
Second District: Personal Jurisdiction
Those interested in nursing home litigation may be interested in this decision from the Second District. The court reversed a trial court's order that denied two parent companies' motions to dismiss for lack of personal jurisdiction. The plaintiff alleged the parent companies were operating the home in question, but the evidence offered in opposing the motion to dismiss failed to support that assertion.

 
About That Trial...
It settled. The day after openings. Some might think that happened because at least one party was able to hear the other side's opening and see what was really coming, but everyone knows the tipping point was the presence of appellate counsel...

I will post a few items this morning, but the real push will come this weekend, when I will fully catch up.



Monday, March 26, 2007
 
Abstract Pause
There is much to talk about, but posting will be delayed today until later. At the moment, I am providing appellate support at a trial in Lafayette County.

UPDATE: Make that delay a bit longer...



Thursday, March 22, 2007
 
Fourth District: Billions and Billions
Few Florida opinions have circulated among Florida lawyers, and the national news media, as quickly as this decision has traveled.

It's the Fourth District's opinion released yesterday in the appeal of a $1.5 billion verdict entered against Morgan Stanley. The plaintifff company claimed Morgan Stanley lured it to purchase the ultimately worthless shares of Sunbeam, Inc. A jury awarded over $600 million in compensatory damages and $850 million in punitives damages.

A divided Fourth District reversed. The majority held that the plaintiff company's expert testimony on damages failed to establish the fraud-free value of Sunbeam's stock and so failed to provide competent evidence under the plaintiff's "benefit of the bargain" damages theory. The majority also held that the punitive damages award failed as a matter of law in the absence of proof of actual damages.

Judge Farmer dissented. While he would have ordered a new trial on punitive damages, he disagreed with the majority's decisions that competent evidence of compensatory damages was not presented and that punitive damages could not be awarded in the absence of a showing of actual damages.

For reports on the case covering a full range of depths (and accuracy) check out the stories available from Law.com, the Palm Beach Post, the Sun-Sentinel, and (with the AP's story) the Miami Herald.



Wednesday, March 14, 2007
 
Retirement
In this letter, Judge Fletcher announced that he will retire from the Third District at the end of July 2007.

 
Third District: Rehearings
Ok, appellate experts, answer quickly: can a rule 1.530 motion for rehearing be denied without prejudice?

If you must look, then look here.

 
Third District: Homestead and a New Courthouse Legend
Homestead fans will be very interested in the Third District's decision in this case, which began with the following line:
It has been said by those who labor in the area, that "the leading cause of cerebral herniation among probate lawyers, real estate lawyers, circuit court judges sitting in probate, and appellate judges reviewing their work, is the study of the [']legal chameleon['], also known as homestead."
Whether a cerebral herniation resulted from the court's work in this case is not, well, unequivocally apparent from the decision. The court considered whether a decedent's specifically devised homestead property could be used to satisfy the estate's unsatisfied debts when the will directed that such should occur if the residual estate were insufficient to do so.

A majority held the homestead property could not be so used, despite the decedent's directive.

Judge Schwartz dissented. His dissent includes a note (oddly numbered consecutive to the notes in the majority opinion) addressing his concern that the majority's view may have turned on the fact the decedent's directive to use the homestead property to satisfy unpaid debts was not set forth in the sentence devising the property as a condition of the devise. He mused:
I hope, without confidence, that the majority is not saying that the limitation on the devise would have been okay if it were contained in the same sentence or paragraph as a condition of the devise, but it is not and the testatrix's clearly expressed wishes must be frustrated because it is in a separate provision of the will. If my hope is unjustified, as I write I can hear workers installing the words -- in Gothic letters, of course -- "All common sense abandon, ye who enter here" over the doors to our courtroom.

 
First District: Habeas Corpus
Can a statute requiring prisoners' extraordinary writ petitions to be filed within one year, unless they challenge a criminal conviction, be applied to bar a habeas corpus petition? Certifying conflict with another district's decision, the First District in this case said no. The legislature cannot curtail the writ of habeas corpus in such a way and, in any event, the continuing nature of illegal confinement would render a habeas petition perpetually timely.

 
Records
This decision -- shortest opinion ever released?

 
First District: Separation of Powers, Costs, and Legal Malpractice
In this decision, the First District agreed with another district that section 57.071(2), which allows a party to recover expert witness fees as costs only if the party timely served a signed summary of the witness's testimony, is unconstitutional. The court held the statute intrudes on the judiciary's role of establishing rules of procedure.

The court further held that a legal malpractice plaintiff does not recover a judgment in a case where the jury finds the defendant was negligent but awards zero damages.

 
Third District: Personal Jurisdiction
If you are interested in personal jurisdiction as it pertains to foreign companies, then check out this decision from the Third District.

 
Questions, questions: Inmate Trust Account Liens
In this decision, the First District once again certified the following to the Florida Supreme Court as a question of great public importance:
DOES THE HOLDING IN SCHMIDT V. CRUSOE, 878 So. 2d 361 (Fla. 2003), EXTEND TO ALL ACTIONS, REGARDLESS OF THEIR NATURE, IN WHICH, IF SUCCESSFUL, THE COMPLAINING PARTY'S CLAIM WOULD DIRECTLY AFFECT HIS OR HER TIME IN PRISON, SO TO PRECLUDE IMPOSITION OF A LIEN ON THE INMATE'S TRUST ACCOUNT TO RECOVER APPLICABLE FILING FEES?



Monday, March 12, 2007
 
En Banc Qualifications
The circumstances under which a district court of appeal may hear a case en banc (i.e., whether an appeal may be considered by the entire court, not just a three-judge panel) have become a topic of published discussion in the past year. The debate has focused on rule 9.331's language authorizing en banc review where "the case is of exceptional importance," which can be taken to mean a case must present an issue of exceptional importance or that there must be something about the case itself, not just an issue in the case, that qualifies as exceptionally important.

Recall that the subject of case-based or issue-based en banc review came up last year in this decision from the First District. Judge Allen authored an opinion concurring in a grant of en banc review, and he offered this observation:

Florida Rule of Appellate Procedure 9.331 authorizes en banc consideration of a "case" of exceptional importance. Although some members of this court would apparently limit this authority to those cases in which a legal "issue" of exceptional importance is presented, it seems to me that there may be circumstances in which the involvement of a particular party in a case or some unique aspect of the case’s procedural history could cause the case to be of exceptional importance even though the precise legal issues involved might be of a rather routine nature.
That view, which six other First District judges joined, would seem to hold that the rule can be read to authorize case-based exceptional importance en banc review as well as issue-based exceptional importance en banc review. Judge Allen did not assert that a case-based approach was the only permissible approach. He asserted that it was an additional approach to issue-based review.

More recently, in connection with this order denying a motion rehear this panel decision, Judge Shepherd of the Third District authored a concurrence advocating that a motion alleging exceptional importance may allege only that the case, rather than an issue in the case, is of exceptional importance. Judge Shepherd set out what he views as the relevant considerations in this respect:
I conclude we should consider en banc review only if: (1) the outcome of the case (or its notoriety) is of greater moment or impact within the community rather than its effect upon the law of the state, and either (a) the case is important beyond the effect it will have on the litigants or (b) will affect the ability of other potential litigants to seek their own remedies, or (2) the outcome of the case may reasonably and negatively influence the public’s perception of the judiciary’s ability to render meaningful justice.
(emphasis in original). In a footnote, Judge Shepherd gave three examples of cases that might fall within these parameters:
(1) an electoral tabulation dispute where the electoral boundaries are solely within the jurisdiction of a district court of appeal as distinguished from a dispute where the boundaries cross district lines; (2) an environmental dispute of local significance; and (3) a criminal proceeding where the accused is a recognizable figure in the local community and the panel's decision may create a reasonable belief by the public that the judiciary was not acting impartially.
The last example would seem to constitute implicit agreement with Judge Allen's reason, expressed here, for voting in favor of en banc review in the First District case mentioned above.

One point that emerges from these discussions is that Florida's district courts of appeal have no settled and binding interpretation of exceptional importance en banc review. Each judge would thus seem free to apply his or her own view of rule 9.331, be it Judge Shepherd's restrictive view, the more broad view seemingly agreed upon by seven judges of the First District, or some other view.

In the absence of any settled or binding interpretation, but in the wake of recent opinions on the subject, I would not be surprised if counsel seeking en banc review do their best to address both the exceptional importance of the issues to be decided en banc and the exceptional importance of the case itself.



Friday, March 09, 2007
 
Abstract Pause
No substantive posts today. If you know the name of the road that is traveling through Tampa this weekend, then you will know where I am.



Thursday, March 08, 2007
 
Third District: Pure Bill of Discovery
The Third District has twice addressed pure bills of discovery in recent weeks. I mentioned one decision yesterday, and here we have another. The court again granted a petition for a writ of certiorari and quashed a pure bill of discovery.

The decision presents some significant legal points. The plaintiff in the underlying case sought and obtained a pure bill of discovery to determine whether she could bring nonfrivolous claims against the defendant. As the Third District explained, however, the modern purpose for a pure bill is to identify potential defendants and theories of liability -- not to determine if causes of action exist or if certain claims would be frivolous.

 
Striking Briefs
A certain judge from the Second District is known to espouse the view that a motion to strike an opponent's brief can be of questionable value to the movant and should be labeled something akin to "Motion To Require My Opponent To File A Better Brief."

Perhaps there are times, however, when making your opponent file a better brief is nonetheless preferable to responding to the brief previously filed. Presumably, that was the situation in this case in the Third District, where a motion to strike was filed and granted.

 
Third District: Rear-End Collision Rule
If you are interested in Florida's rear-end collision rule -- and some may have noted my affinity for the term from this prior post -- then you will want to examine the two majority opinions and one dissenting opinion in this case.

The Third District considered whether a verdict should have been directed against the plaintiff's position that a highway patrol officer negligently caused a motorcycle crash. The trial judge refused to direct a verdict against the plaintiff, and, over a dissent, the district court reversed.

The majority determined that no evidence showed negligence by the highway patrol officer. Disagreeing, the dissent accused the majority of examining the evidence with a "we know best" standard of review -- tongue-in-cheek, of course, but notable as the first occasion where a Florida case has used such a phrase.

 
Credit Card Agreements
If the day ever comes when banks that issue credit cards require cardholders to visit Internet sites from time to time and, while there, affirmatively acknowledge understanding of the terms governing the relationship, it will probably be to avoid the situation seen in this decision. A cardholder was held not bound by a particular term because she successfully asserted not to have received the mailing that contained it.

 
Third District: Appraisers
If you find yourself drafting language that calls for an appraisal, this decision from the Third District may make you consider whether the language should require a competent appraiser, a neutral appraiser, or both.



Wednesday, March 07, 2007
 
Third District: You Can't Do That
Maybe it is just me, but my perception over the past twelve years is that the Third District has been the toughest Florida appellate court when it comes to calling out improper conduct by trial attorneys and reversing jury verdicts where such conduct may have contributed to the result. A spate of recent retirements have led a new guard into place in that court, but the court's distaste for improper conduct appears to remain the same.

Take this recent case as an example. The district court reversed a jury verdict. The victorious party's counsel improperly attacked an expert witness for having destroying computer records regarding the number and names of lawyers for whom the expert had previously testified, when nothing showed such records ever existed. The same party's counsel also made personal attacks on the opposing counsel during closing arguments, saying opposing counsel was "pulling a fast one," "hiding something," and "trying to pull something."

Such tactics are of course improper, no matter which side uses them or what sort of case is being tried. It is good to see the appellate bench attach consequence to the impropriety.

 
Third District: Family Law Attorney's Fees
When your contemptuous husband has to be removed from a marital home by a SWAT team following a five-hour standoff, you might be on your way to building a case that the husband's attorney's fees obligations to you should be satisfied from the proceeds of the home's sale. Check out this decision from the Third District for more.

 
Third District: Pure Bill of Discovery
If a party is litigating elsewhere, can it pursue a pure bill of discovery in Florida as a substitute for discovery in the pending action? Not under the circumstances of this decision from the Third District. The court granted a certiorari petition and quashed an order denying a motion to dismiss a complaint for a pure bill of discovery.

 
Third District: Eleventh Amendment and Tax Refunds
For an interesting case regarding Eleventh Amendment immunity (which is not really an immunity based on the Eleventh Amendment), including when it does not apply and when it is waived, check out this decision from the Third District. The court also construed Florida's tax refund scheme, which requires persons to seek refunds within strict time limits unless the tax is challenged as unconstitutional, to apply where a tax is claimed to be preempted by federal law.



Tuesday, March 06, 2007
 
Sealed Records
Yesterday, the Florida Supreme Court heard oral arguments on proposed rule changes to address sealing trial court records in high profile cases.

You can read about the arguments in today's Miami Herald.

 
Second District: Medical Malpractice
The extraordinary writ of certiorari is available where a trial court erroneously denies a motion to dismiss a claim for failure to comply with Florida's medical malpractice presuit notice requirements. The key in many cases is determining whether a particular claim involves medical malpractice.

In this case, the plaintiff accused a physical therapy center of negligence in failing to maintain a machine that, when later connected to the plaintiff's arms, burned her.

Is that a medical malpractice case?

Yes, said the Second District.

 
Second District: Class Actions
Class action fans will be very interested in this decision from the Second District. The court reversed a certification order, holding it is generally insufficient for a trial court simply to accept the allegations in a plaintiff's complaint as true for purposes of class certification. Rather, the burden is on the plaintiff to prove the matters necessary to support certification. The court remanded for an evidentiary hearing.

 
Second District: Conceding Error
It is unusual to see a decision that rejects an appellee's concession of error (sometimes called a confession of error), but such things do happen from time to time. This decision from the Second District was one of those times.

 
Second District: Appellate Jurisdiction
Just a reminder here from the Second District that only the state supreme court -- and not the Legislature -- can authorize the appeal of a non-final order to a district court of appeal.

The case involved an effort to appeal an order vacating an arbitration award and denying a motion to reinstate a previously vacated arbitration award. The appellant argued that the Florida Arbitration Code authorized an immediate appeal by providing for a right of appeal from orders "confirming or denying confirmation" of an award, but under Florida's constitution that provision cannot authorize an interlocutory appeal to a district court of appeal.

It appears everyone agreed that, under the circumstances of the case, the order was nonfinal.

 
Second District: Cross-Examination
Can a trial court's limitation on cross-examination result in a new trial? The answer is certainly yes in criminal cases, as this decision from the Second District shows.



Monday, March 05, 2007
 
Certified Conflict: Ineffective Assistance and Sandbagging
This decision from the First District certified conflict with decisions from two other districts regarding whether ineffective assistance of counsel can be demonstrated merely by showing that a trial judge would have been disqualified had appointed trial counsel timely requested that relief.

The First District held that actual prejudice from the failure to disqualify must be demonstrated. To follow any other rule, the First District observed, promotes sandbagging by a defendant's trial counsel.

 
First District: Dead Bodies
Emotional distress damages are available to a plaintiff in a negligent handling of a dead body case, so long as the defendant's actions were willful and wanton. This decision from the First District discusses this principle in terms of the impact rule.

 
First District: Adoption
Those interested in adoptions and parental rights may wish to check out the First District's decision in this case. The court held that an unmarried biological father who files a paternity claim before a petition for termination of rights is filed is entitled to the resolution of his claim before the adoption proceeding is concluded. The court further explained that the claim need not be resolved in a formal paternity case but may occur in any court proceeding that determines the matter.

 
First District: Redemption
This decision from the First District presents a case of first impression regarding a mortgagor's right of redemption. I suppose second impressions will have to be more meaningful than usual, since only one judge joined the lead opinion, one judge concurred in the result only, and one judge dissented. The result was a reversal without an official opinion of the court.

 
First District: Arbitration and Damages Limitations
This nursing home arbitration decision addressed two cutting-edge areas in Florida law.

The first area concerns challenges to arbitration agreements. The specific issue confronting the court was whether a court or an arbitrator should decide a plaintiff's challenge that agreed limitations on damages incorporated into an agreement to arbitrate are void as a matter of public policy. The First District held that a court, not an arbitrator, should decide such an issue.

To the extent the court's holding addressed federal arbitration law, that holding would seem to be of national significance. The ability of parties to avoid an arbitration agreement by challenging aspects of it other than whether the parties actually made an agreement to arbitrate in the first place is a hot topic.

The second area concerns the validity of damages limitations. The agreement at issue waived punitive damages and capped noneconomic damages at $250,000. A majority of the panel held that such waivers violate Florida's public policy and are thus invalid. The court based that conclusion on its view, which is shared by at least two other districts in the nursing home context, that any waiver of a statutory right is invalid if it defeats a remedial purpose of the right. Judge Polsten dissented on this point.

The waiver issue seen in this case is part of a larger wave of waiver challenges being advanced under Florida law. Recall last year's controversy over the bar rules amendment that permits persons injured by medical malpractice to waive their new constitutional right to keep a certain percentage of their recoveries. Recall also that the state's high court is currently reviewing this decision to consider whether Florida's homestead protections can be waived in favor of a creditor -- a case that may ultimately be as important for its analysis as it is for its result.





 
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