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Monday, April 30, 2007
 
Link Fixed
A reader kindly alerted me to a bad link in the "delayed discovery" post below. It's fixed now.

 
First District: Rapid Reversal?
If you are the appellee in a case and acknowledge that the trial court erred, is there a way to speed the reversal process? This decision from the First District suggests that a concession of error and motion to remand may be useful.

 
First District: Delayed Discovery
If a person slips and falls on another's premises but does not appreciate the extent of his injuries until years later, will the delayed discovery doctrine toll the statute of limitations for a negligence claim until the extent of the injuries is discovered?

No, explained the First District in this decision.

 
First District: Separation of Powers
The brevity of this decision, and this companion decision, could belie the significance of the underlying principles. The district court held that the trial court lacked jurisdiction to direct the Agency for Persons with Disabilities to direct funding toward specific services for the respondents. The fiscal aspects of the separation of powers doctrine are part of a rather fascinating, and not yet well developed, area of the law.

 
First District: Injunction Appeals
If a temporary injunction is entered against you without notice, then you have a right to appeal that interlocutory order under rule 9.130. But can you waive that appellate right by requesting and participating in a hearing to dissolve the injunction? Yes, as shown by this decision from the First District, where a hearing was begun on a motion to dissolve and a modified injunction was thereafter entered.

 
First District: Presuit Notice
Do the presuit notice requirements of section 768.28 apply to a claim under Florida's Public Whistle-blower's Act?

In this interesting case of first impression, the First District said no.

 
First District: Workers' Compensation
The First District's en banc decision in this case confronts a workers' compensation claim based on hypertension. The majority holds the claim is not compensable. The dissent differs, and the two principal opinions contain an unusually large amount of interaction.

 
First District: Jury Instructions
A trial court's refusal to give a concurring cause instruction was the basis for reversal in this decision from the First District.

 
First District: Anders
Is the Anders procedure utilized in direct criminal appeals where appointed counsel finds no meritorious appellate issue applicable where appointed counsel in a post-conviction appellate proceeding reaches the same conclusion? No, said the First District in this case. The court struck an Anders brief filed in an appeal from the denial of a rule 3.850 motion.

 
First District: Eminent Domain and Damages
Eminent domain fans may be interested in this decision from the First District. The court left a primary takings award in place but reversed an additional severance damages award that was based on nearby median construction.

Damages fans may also be interested in the result -- the court held that the property owner made a tactical decision to prove damages it could not legally recover, and not to prove damages it perhaps could recover, and so remand was not necessary.

 
Then Again
Make that Monday morning for new posts. Friday night found me at the theater, seeing this film, which was unexpectedly quite good.

I am going to try something different this week: planned posts by court, by day. This morning I will post regarding the First District's recent decisions, tomorrow I will post regarding the Second District's, etc. By Friday, all DCAs will be caught up.



Friday, April 27, 2007
 
Fast Times
Not long after I mentioned how appellate practice does not offer the instant gratification (or despair) associated with jury verdicts, a loyal reader wrote to say not so. Election cases now follow elections like night the day (to borrow a phrase), and the trial and appellate courts have taken to resolving them with the sort of lightning speed you might compare to a jury's verdict. Or so he says.

Perhaps so. And perhaps there are other expeditious moments in appellate practice, such as last-minute capital proceedings. Still, appellate practice is, at its essence, a delayed gratification sport.

Speaking of delays, it's been a long week. Posts to follow later today...



Monday, April 23, 2007
 
About That Story
I said I would say something about that "big" story. This one. Though it's been quite a bit since the St. Pete Times published it -- front page in the Tampa Bay area -- I am still uncertain how to address the matter. Gossip about a government official's personal relationships does not become less tawdry just because a newspaper gives it attention, and such things are not the subject of this blog. Still, there are some items here that could bear pointing out.

First, as with most other stories involving persons' relationships or JQC investigations, or both, I get a strong sense less than the full story is related here. It is of course newsworthy that 13 judges from a Florida district court of appeal concluded something was afoot that merited a complaint to the JQC about a fellow judge. It is also newsworthy that such a complaint was dismissed as lacking what amounts to probable cause regarding the existence of a judicial ethics violation.

It is not, however, newsworthy -- and certainly not a valid hook for a story widely distributed to the lay public -- that the JQC is not pursuing that complaint but is instead "going after the judge who was critical of a fellow judge." If I correctly read between the lines, the JQC has simply finished its initial investigation into one complaint, finding it without merit, and has not finished its initial investigation into a second complaint, not finding it meritorious or meritless at this point. Unless a JQC official is willing to step forward and draw meaning from that timing, it appears no more meaningful than noting how a case I orally argued months ago at an appellate court remains pending while a case I orally argued last month has now been resolved -- which is to say it has no meaning at all. Unfortunately, the public at large, which is hardly familiar with the appellate process let alone JQC investigations, may understandably believe otherwise.

As a wise person once told me with regard to appellate courts' decisions, we will know when we know, and not before.

Finally, and though it is off point for the story, a notable lesson to be drawn from these incidents applies to state employees. Regardless of the morality or immorality surrounding the subject, do not place personal pictures or videos on government computers. Just don't.

 
Back In Blog
Well, between saying "soon" and now, I found myself preparing for and then in a jury trial in Miami, providing appellate support. It was a contract case and we represented the plaintiff. After four days of trial, the jury needed only 45 minutes to return a verdict in our client's favor. One thing I can say for sure about the trial process: the instant gratification of winning a trial has no counterpart in the appellate realm.



Thursday, April 12, 2007
 
Abstract Mention
The last post ended on a relatively positive note regarding the practice of law, and I was happy to leave it at the top yesterday while I mulled how to address, and if to address, yesterday's "big" story. You probably know the one I mean. I have decided to address it in part but have not yet finished the post. Soon.



Tuesday, April 10, 2007
 
First District: Attorney's Fees for Meritless Appeals
Appellate attorneys will be -- and all attorneys and clients should be -- very interested in this decision by the First District. The court imposed sanctions on the appellant and the appellant's lawyer for bringing a meritless appeal.

The court took the occasion to discuss the standards applicable to motions under section 57.105 and the tension between sanctioning meritless appeals and chilling creative legal argument. Notably, the court looked to Rule 4-3.1 of the Rules Regulating The Florida Bar for the notion the governing standard is one of frivolousness. The decision invoked numerous authorities to give some substance to the nebulous concepts surrounding frivolity.

The court concluded its discussion with some insightful language, which I commend in full and reproduce here in part:
We believe that applying sanctions in cases such as this will protect this court's ability to serve litigants with meritorious cases, will encourage lawyers to give thoughtful consideration as to whether there are non-frivolous grounds for an appeal before filing, and will discourage lawyers from raising meritless appellate arguments on the chance that they will "stick." "The filing of an appeal should never be a conditioned reflex. 'About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.'" Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1202 (7th Cir. 1987)(quoting 1 Jessup, Elihu Root 133 (1938)).
Those last quotations are insightful. They should be prominently featured by the bench and bar.

 
Certified Conflict: False Reporting Impeachment
Under section 90.610, a party may attack a witness's credibility by establishing that the witness has been convicted of a crime punishable in excess of one year or a crime involving dishonesty or a false statement. What if the witness is an alleged victim in a case and admittedly once falsely accused someone of committing a crime similar to the charged crime, but the witness was never convicted of a false reporting crime? Can the witness be impeached with the prior false report?

In this case, the First District said no. The court also certified conflict with a series of decisions from the Second District.

 
First District: Constitutional Amendments
Those interested in Florida's constitutional amendment process will be interested in this decision from the First District. The court affirmed a trial court's decision rejecting various challenges to the 2004 constitutional amendment proposal that, having been approved by voters, altered various timing and similar aspects relating to citizens' initiatives to amend the constitution. Most notable is the court's equal protection discussion -- the court explained that the state legislature is not similarly situated to the public at large.

 
First District: Class Actions
Class action fans may be interested in this brief decision from the First District. The court reversed an order certifying a class as insufficiently detailed.



Monday, April 09, 2007
 
Abstract Pause
Thanks for stopping by.

It's been a spring break of sorts for me. I've been visiting family in California. I'm returning to St. Pete today, and posting will resume soon.



Tuesday, April 03, 2007
 
Third District: Appellate Jurisdiction
Is a nonfinal order requiring the immediate payment of rent an appealable order? The Third District has the answer here.

 
Third District: Juror Nondisclosure
I was called for jury duty two weeks ago tomorrow. By midday, everyone had been divided into three groups, two of which went to courtrooms for voir dire and one of which went home. My group went home, or, in my case, back to the office.

Frankly, I would appreciate the experience of serving as a juror. At the same time, being a juror is like being a witness at trial -- you are under oath, and depending on what you say, you might become more the focus of someone else's trial than you wished.

So it seems to have been in this case, where the Third District reversed a trial court's refusal to grant a new trial after it was shown that the juror ultimately serving as foreperson (and an attorney at a Miami firm) concealed information about her own prior accident and claim.

 
Third District: Attorney's Fees and Law of the Case
Can an appellate court's decision on a party's entitlement to attorney's fees become law of the case, binding on the trial court as the case goes forward? This 2005 decision from the Second District showed the answer can be yes. This recent decision from the Third District showed that the answer can also be no.

Are the cases in conflict? Or does a distinction lie in the asserted basis for entitlement? The Second District case involved the sufficiency of an offer of judgment. The Third District case involved a meritless appeal argument.

 
Third District: Separation of Church and State
Fans of the constitutional provisions on religious freedom will be interested in this decision. The case involved a state whistleblower claim brought against a Roman Catholic archdiocese by a former employee. The Third District granted a petition for writ of prohibition to block a trial court from hearing that claim, based on the ecclesiastical abstention doctrine.

 
Third District: Contract Formation
This decision from the Third District involved an interesting issue of contract formation: whether the offeror of an offer containing a deadline for acceptance waives the deadline by delivering the offer after the deadline has past.

The court said yes.

 
Third District: Statements By Counsel, And/Or Something Else
Attorneys may be officers of the court, but, as the courts keep reminding us, attorneys' statements in open court do not take the place of evidence. This decision considered whether competent evidence supported setting aside a default. Since the only support for finding the necessary diligence came from unsworn statements made by counsel in open court, the Third District held the default should not have been set aside.

The decision concludes with an entertaining discussion on the lamentable, yet effective, practice of using the phrase "and/or" to allege liability in a complaint.

 
Third District: Passion
The Third District determined that the high damages verdict in this case -- some $2 million more than the $6 million the plaintiff requested in closing arguments -- was the result of passion. The district court ordered a new trial on damages.

 
Third District: Arbitration
Arbitration remains hot. This decision from the Third District shows how an arbitration agreement may be broadly applied not only to claims but in favor of persons who were not signatories to the agreement.

 
Third District: Subsequent Pleadings
The Third District abhors any sort of "gotcha" tactics in custody cases. This case is simply the latest application of this principle. The court refused to apply rule 1.110(h) "slavishly" to a situation where no objection to noncompliance was timely made.

 
Third District: Forum Non Conveniens
Forum non conveniens fans will be interested in this decision from the Third District. The court reversed a decision denying a motion to dismiss on FNC grounds and held dismissal was required.



Monday, April 02, 2007
 
First District: Appealable Orders
Can an order dismissing a pleading without prejudice be a final, appealable order? Sure, as this decision from the First District shows.

 
Postconviction Procedures
Does Florida's procedural scheme for postconviction challenges encourage the filing of meritless claims in the United States Supreme Court? Judge Altenbernd thinks so. Read why in his concurring opinion in this case.

 
Certified Conflict: Costs
Does the prevailing party standard apply to an award of trial court costs? In this case, the First District said no, but the court certified conflict with decisions from the Second and Fifth Districts.

 
First District: Citizens
The Legislature established Citizens Property Insurance Corporation to be an insurer of last resort for Floridians. Its enabling legislation prevents it from providing coverage for flood damage. In this case, however, a divided First District held, among other things, that the 2004 version of Florida's Valued Policy Law required Citizens to cover the full value of a home destroyed by a combination of wind and flood. Citizens argued that coverage should be apportioned. Dissenting in part, Judge Thomas agreed with Citizens.

 
Second District: Felon Jurors
Two felons sit as jurors in a civil case without disclosing their disqualifying criminal backgrounds. The losing party discovers the nondisclosure and successfully moves for a new trial. On appeal, in this pair of very interesting opinions, the Second District reversed. Once again, the case law explains that parties are entitled to a fair trial, not a perfect one.

 
Second District: Arbitration
In this case, the Second District held that defendants who included an arbitration right as the first affirmative defense in their answer did not waive that right, although they had previously moved to dismiss the plaintiff's claims and prevailed in part on that motion.

 
Second District: Recorded Proceedings
Is it sufficient for a trial court proceeding that must be recorded to be recorded only by tape? It was not in this case, where a court reporter later found a tape recording inaudible in many areas and the Second District held the lack of a meaningful transcript warranted reversal.

 
Certified Conflict: Sentencing Representation
In this case, the Second District certified conflict with another district over whether a lack of representation at a sentencing proceeding qualifies as fundamental error. The Second District held such an error must be preserved. Notably, the panel disagreed over whether rule 3.800(b)(2) and its post-judgment procedures can be used for that purpose.

 
Questions, questions: Putative Father Registry
In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:
IN A PROCEEDING ON A PETITION FOR TERMINATION OF PARENTAL RIGHTS PENDING ADOPTION, MAY THE PUTATIVE FATHER'S RIGHTS IN RELATION TO THE CHILD BE TERMINATED BASED ON THE PUTATIVE FATHER'S FAILURE TO PROPERLY FILE A CLAIM OF PATERNITY WITH THE FLORIDA PUTATIVE FATHER REGISTRY?
The court again answered the question in negative. Judge Canady authored a special concurrence explaining he would have held otherwise had the district court's precedent not already resolved the issue.

 
Second District: Marital Agreements
Those wishing to learn a little about prenuptial and antenuptial agreements may wish to check out the Second District's decision in this case.





 
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