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Thursday, May 31, 2007
 
Law Day: The Rest Of The Story
As May winds to a close, I want to take a moment to address the month that presents us with Law Day -- a date sometimes expanded to Law Week or even Law Month.

The Florida Bar celebrates Law Day. So do many local bar associations, and many of our state's courts. Early May routinely finds lawyers and judges appearing at civic events, in schools, at luncheons and dinners with speakers on law and justice, and otherwise involved in community activities to promote the basic ideals and framework of our society's legal structure.

It all sounds so noble.

And it is, which is why I was caught off guard when I read my colleague Lee Rightmyer's "President's Message" in the May issue of the St. Petersburg Bar Association's monthly magazine. Lee is currently President of the St. Pete Bar, and like many lawyers in a position to write a column for a May publication, Lee chose Law Day as his subject. He did a little research, though, and was surprised to learn that Law Day began as a propaganda piece to combat communism.

As Lee explains, the American Bar Association first proposed Law Day in 1957 to emphasize the difference between our country's rule of law and the communism-based alternative that had taken hold in various parts of the world. President Eisenhower proclaimed May 1, 1958 to be the first "Law Day," and the nation followed. Not just the legal nation -- the popular press, too. Lee explains how two local papers ran editorials on the celebration, how Stetson Law School hosted a large celebration, and how President Eisenhower spoke in Washington.

The date was not chosen at random. May 1 was and remains the date when many around the world celebrate some form of May Day, or Labor (Labour) Day, to honor the working class. In the 1940's and 50's, various countries embracing socialist or communist ideals elevated the event into a national celebration of their particular -- Americans then would call it "Red" -- form of government. Law Day was created as an American counter-celebration, to promote America's rule of law. They had May Day. We now had Law Day. Propaganda at its finest. (Today, we would say "marketing.")

I will never think of it quite the same way again.

You can read Lee's column here. It is short, well delivered, and much recommended.

 
Certifiably Excellent: 5
Make that five persons who I am aware passed this year's appellate certification exam. I previously mentioned Nancy Ciampa, Barbara Eagan, Lynn Hearn, and Joe Lang.

Add to that list Jim Rowlee, who works with the Broward County Attorney's Office.

Jim, to subject you to the same treatment I gave the others, I not only say congratulations but point out that at the moment you are, technically, a specialist-in-waiting. Well, until tomorrow, that is. The new certifications take effect June 1.

 
Third District: The Tentative Side Of Pleadings
The issues in a case are framed by the pleadings, we often hear. Does pleading a particular fact prevent a party from obtaining summary judgment if the party later changes positions on that fact?

No, as this decision from the Third District explains. The court held that positions taken in a pleading merely represent tentative viewpoints on the case, and thus a party can change a pled position after discovery without creating an issue of fact that defeats the party's ability to obtain summary judgment. The court also stated that "[p]leadings are inadmissible into evidence to prove or disprove a fact in issue."

This case intrigued me. The evolution of a party's positions should not destroy that party's ability to obtain summary judgment, as the case shows. Put another way, a party opposing summary judgment should not be able simply to point to the movant's pleadings to find a variance from the summary judgment motion and argue that an issue of fact exists on that basis alone. But that should not be taken too far. Going back to the thought that opened this post, a case's pleadings frame its issues, and so while pleadings may be inadmissible as evidence to prove a fact in issue, the pleadings should help determine what actually is in issue.

 
Third District: Circuit Court Certiorari
In this case, a municipal board denied a variance to two homeowners who wished to place a metal roof on their home.
The homeowners appealed to the city commission. It denied them relief.

The homeowners then sought certiorari relief from the local circuit court. It denied their petition without ordering a response or permitting argument on the petition.

The homeowners then sought second-tier certiorari relief from the Third District, arguing that the circuit court could not reject their petition without ordering a response and hearing argument.

The district court rejected the petition.

 
Third District: Privilege Logs
In this case, a party opposed the discovery of certain logs and reports on grounds the requests were irrelevant, immaterial, overbroad, burdensome, harassing, and oppressive. When the trial court rejected those arguments, the party sought reconsideration on grounds the desired materials constituted work product. At no point was a privilege log produced. Was the work product protection waived?

No, said the Third District.

The case's procedural background is also noteworthy. The party initially sought certiorari relief after the trial court first ordered production. The district court deferred ruling, though, until the trial court considered the party's reconsideration motion. More technically, the docket shows that a relinquishment of jurisdiction order was entered with respect to the reconsideration motion and, after that motion was denied, the party filed an amended petition for a writ of certiorari.

 
Third District: Ambiguities
That two parties to a contract disagree on a term's meaning does not confirm that the term is ambiguous. For an example of a court rejecting the existence of an ambiguity under such circumstances, check out the Third District's decision in this case.

 
Third District: Dangerous Conditions
Products and premises liability fans may be interested in this decision from the Third District.

The plaintiffs in the case sued when their son was injured while playing on monkey bars at Parrot Jungle. They argued the ground surface under the bars constituted a dangerous condition. The distributer/dealer who sold the apparatus sought and obtained summary judgment on grounds Parrot Jungle knew of the condition and accepted it, relieving the distributor/dealer of liability. Notably, co-defendant Parrot Jungle appealed. The district court reversed.

 
Certified Conflict, Question: Homestead and Co-Ops
This case concerned whether a co-operative residential apartment is eligible for homestead status, which would limit the power to devise it where the owner is survived by a minor child. Finding the result controlled by a 1978 state supreme court decision, but contrary to a 2002 decision from another district, the Third District held that the property was not homestead, certified conflict, and certified the following to the Florida Supreme Court as questions of great public importance:
DOES THE FLORIDA SUPREME COURT'S DECISION IN IN RE ESTATE OF WARTELS V. WARTELS, 357 So. 2d 708 (Fla. 1978), HAVE CONTINUING VITALITY IN LIGHT OF THE ADOPTION BY THE FLORIDA LEGISLATURE OF THE COOPERATIVE ACT, CHAPTER 76-222, LAWS OF FLORIDA?

IF THE ANSWER IS YES, IS IT LEGALLY PERMISSIBLE TO INTERPRET ARTICLE X, SECTION 4(a)(1) OF THE FLORIDA CONSTITUTION DIFFERENTLY FOR FORCED SALE PURPOSES THAN DEVISE AND DESCENT PURPOSES UNDER ARTICLE X, SECTION 4 OF THE CONSTITUTION?



Wednesday, May 30, 2007
 
First District: Work Product and Privilege Logs
This certiorari decision from the First District will be of interest to anyone involved in discovery disputes.

The court first held that requiring the petitioner's non-testifying expert to be deposed constituted a departure from the essential requirements of law. The court held such testimony to be protected as work product.

More importantly, the court rejected the respondent's argument that the petitioner waived the work-product protection by failing to provide a privilege log.

Accepting a view Judge Griffin previously offered in a special concurrence in this case, the First District held:
Waiver for failure to file a privilege log should not apply where assertion of the privilege is not document-specific, but category specific and the category itself is plainly protected.
The court determined that the privilege claim in this case was clearly category specific -- the category being all findings and opinions of an expert retained by counsel in anticipation of litigation and who is not going to testify at trial.

The court determined that a privilege log was not required also because to provide one would have been futile. The court explained:
Here, there was no need to identify specific documents, because any document or statement within the purview of the request was clearly subsumed within the categorical privilege claimed by Petitioner. . . . Requiring Petitioner to file a perfunctory privilege log in this case would serve no legitimate purpose, and would simply elevate form over function.
The decision includes some refreshing language about how important privileges should be waived only through serious missteps in discovery.

 
First District: No Citation Needed
It certainly says something when you obtain a reversal of a judgment and the appellate court feels no need to cite any authority in its decision.

That is what happened this case.

Nice job by Tracy, whose rumored retirement is the stuff of legend.

 
First District: Wrongful Act Doctrine
As a general rule, a prevailing party cannot recover its attorney's fees from the losing party. What if the prevailing party's damages include attorney's fees expended in litigation with some other, third party -- litigation that the defendant's actions forced the plaintiff to undertake? The wrongful act doctrine can permit such fees to be recovered.

This decision from the First District shows that attorney's fees recoverable under the wrongful act doctrine are special damages that must be specifically pled or are otherwise unrecoverable.

 
First District: Corporal Punishment
If you would be interested in a discussion of the law governing when a parent's physical discipline of a child becomes child abuse, then check out the First District's decision in this case.

 
First District: Municipal Liability
If you are interested in crafting a viable claim against a county for showing favoritism in a request for proposals process, you may wish to check out the First District's decision in this case. The court held a claim along such lines was properly stated.

 
First District: Constitutional Challenges By Appraisers
For an example of when a county property appraiser has been permitted to challenge the constitutionality of a taxing statute, such as an exemption, check out the First District's decision in this case.

Judge Kahn authored an interesting dissent, in which he echoed the views Justice Bell admittedly set forth as dicta in a concurrence in this 2005 case. The majority found Justice Bell's dicta to be, well, dicta.

 
Questions, questions: Citizens Coverage
In this order, the First District certified the following to the Florida Supreme Court as a question of great public importance:
DOES THE ENABLING STATUTE FOR CITIZENS PROPERTY INSURANCE CORPORATION, § 627.351(6), FLA. STAT. (2004), PRECLUDE AN AWARD OF POLICY LIMITS UNDER THE VALUED POLICY LAW, § 627.702(1), FLA. STAT. (2004), WHEN THE COVERED PERIL OF WINDSTORM AND THE EXCLUDED PERIL OF FLOOD COMBINE TO PRODUCE A TOTAL LOSS TO THE INSURED PROPERTY?
For the earlier decision answering the question in the negative, look here.

 
First District: Resulting Trusts
Trusts and estates fans may be interested in this decision from the First District. The court explored resulting trusts in some detail while reversing a summary judgment.

 
Questions, questions: Valued Policy Law
In this case, the First District once again certified the following to the Florida Supreme Court as a question of great public importance:
DOES SECTION 627.702(1), FLORIDA STATUTES (2004), REFERRED TO AS THE VALUED POLICY LAW, REQUIRE AN INSURANCE CARRIER TO PAY THE FACE AMOUNT OF THE POLICY TO AN OWNER OF A BUILDING DEEMED A TOTAL LOSS WHEN THE BUILDING IS DAMAGED IN PART BY A COVERED PERIL BUT IS SIGNIFICANTLY DAMAGED BY AN EXCLUDED PERIL?
The district court previously certified the same question in this case with the certification order found here. Notably, the supreme court accepted jurisdiction in that case and will hear oral arguments on it next week.

 
First District: Administrative Law
Administrative law fans may be interested in this decision from the First District, where the court held a party was entitled to a declaratory statement from the Agency for Health Care Administration.



Tuesday, May 29, 2007
 
Judges, Lawyers, Law Clerks -- Lend Me Your Weekend
Well, not me, and, no, not just a weekend. September 27-30, which happens to be a Thursday through Sunday.

The event is the Appellate Judges Education Institute's 2007 Summit, sponsored by the Appellate Judges Conference and its two offshoots, the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys. I have it on good word that the not-yet-formally-announced program will be first rate, so appellate fans may wish to keep Washington DC in mind for late September.

And, yes, there is a Council of Appellate Staff Attorneys...

 
Second District: Gotcha Back
After successfully objecting to a defendant's request that a neurosurgeon examine the plaintiff, the plaintiff's counsel in this case suggested to the jury in closing arguments that the defendant chose not to have the neurosurgeon examine the plaintiff in order to hide something. Determining the defendant had been "ambushed," the Second District reversed.

 
Second District: Self-Representation
This decision from the Second District shows the distinction between a criminal defendant's competency to represent himself and the defendant's competency to decide to represent himself.

 
Second District: Issue Preclusion
Florida law provides that a person convicted of a criminal offense is precluded from challenging the essential elements of that conviction in a subsequent civil case. For an example of how that principle applies to liability and damages in a later civil action, check out this decision from the Second District.

 
Second District: Child Custody
Family law fans may be interested in this decision from the Second District, involving the Uniform Child Custody and Jurisdiction and Enforcement Act, grandparents, and both temporary and permanent custody determinations.

 
Second District: Second-Tier Certiorari
For a good example of how limited a district court's jurisdiction is in a second-tier certiorari proceeding, check out this decision from the Second District. The court addressed a proposed 24-story condominium on famed Bayshore Boulevard in Tampa. The proposal had been rejected by the City of Tampa and its Architectural Review Commission for being too tall.

A circuit court quashed that decision, finding the city's various legal requirements for the area to be a confused mess and that the proposed height alone could not doom the project. On second-tier review, the district court found that the circuit court applied the correct law to the case.

 
Questions, questions: Search and Seizure & Internet Service Providers
In this Fourth Amendment case, the Second District was confronted with a "tip" from Internet service provider AOL regarding the defendant's transmission of child pornography.

The defendant challenged the information's reliability -- for Fourth Amendment purposes, obviously. A trial court suppressed the evidence gained from the tip, but the district court reversed. The appellate court also certified the following to the Florida Supreme Court as a question of great public importance:
WHETHER INFORMATION PROVIDED TO LAW ENFORCEMENT BY AN INTERNET SERVICE PROVIDER PURSUANT TO THE PROVIDER'S STATUTORY OBLIGATION UNDER 42 U.S.C. § 13032(b) IS ACCORDED A PRESUMPTION OF RELIABILITY AKIN TO THAT OF A CITIZEN INFORMANT SUCH THAT NO INFORMATION CONCERNING THE RELIABILITY OF THE "TIPSTER" IS NECESSARY TO PROVIDE PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT.

 
Second District: Standards of Review
What sort of ruling does an appellate court review for an abuse of a trial court's "narrowed" discretion? As the Second District explains in this decision, the answer is an order dismissing a claim based on fraud committed during the discovery process.

By the way, the appellate court reversed.

 
Second District: Closing Arguments
This 19-page opinion from the Second District explained how an attorney's remarks in closing arguments were erroneous for multiple reasons. No contemporaneous objections were made, however, and after examining the applicable standards in detail, the appellate court affirmed the trial court's denial of the insurer's new trial motion.

It bears mention that the case involved an insured's claim against an insurer for uninsured motorists coverage -- a claim the appellate court pointed out is not a breach of contract or a bad faith claim.

Also noteworthy is the appellate court's remark that the insured's appellate counsel did not represent the insured in the trial court. It is good to see Florida's appellate courts take a moment to avoid what might otherwise appear to be an impugnment of a party's appellate counsel. A reader might presume a party's appellate counsel was also the party's poorly behaved trial counsel.

 
Second District: Bad Faith, Discovery
Insurance fans will be interested in the discussion found in this decision. The Second District addressed a trial court order allowing a plaintiff to discover communications among an insurer and its attorneys, and an insured and its attorneys, notwithstanding the attorney-client privilege. The plaintiff was suing the insurer in a bad faith action, without any assignment from the insured, after having successfully sued the insured for personal injuries.

The court granted the insurer's petition for a writ of certiorari and quashed the discovery order. The court had little trouble determining that privileged communications between the insurer and its independent counsel remained privileged in the face of the plaintiff's claim. The court also undertook a rather developed analysis to conclude that, in the absence of an assignment of the insured's privilege, communications between the insured and its attorneys remained privileged as well. As the court put it, "[a] person does not waive or otherwise lose an attorney-client privilege merely because a third party is authorized to file a lawsuit against the person's insurance company."

The decision offers a nice summary of some different forms of bad faith actions. The decision also places several cases in historical context, comparing the statutory and case law developments in place when they were decided to the present legal context.

Also, and frankly, I smiled a bit when I saw that page five of the 15-page decision contained the heading, "THE HOLDING IN THIS CASE." If the court were posting its holdings in a blog like this one, I suspect the post would look a lot like page five.

 
Second District: Post-Judgment
In this family law case, the Second District focused on the distinction between enforcing a final judgment and modifying the relief granted in a final judgment.

 
Questions, questions: Garnishment
In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:
DOES AN ATTORNEY GARNISHEE HAVE A DUTY TO ISSUE A STOP PAYMENT ORDER FOR A CHECK DRAWN ON HIS OR HER TRUST ACCOUNT AND DELIVERED TO THE PAYEE PRIOR TO THE RECEIPT OF A WRIT OF GARNISHMENT IF THE SERVICE OF THAT WRIT OCCURS PRIOR TO THE PRESENTMENT OF THAT CHECK FOR PAYMENT TO THE ATTORNEY'S BANK?
The district court answered that question in the affirmative.

 
Second District: Juror Nondisclosure and Remittiturs
This month's Florida Bar Journal includes a story entitled, "The Burden of Truth - Have Florida Courts Gone Far Enough in Addressing the Problem of Juror Misconduct." (I'm pretty sure that title could have been intended to end with a question mark, but it did not.)

Coincidentally, this decision from the Second District rejected a litigant's efforts to obtain a new trial based on jurors' nondisclosures.

The decision also points out that, where the evidence supports such a result, a jury may return a verdict in excess of what the plaintiff's counsel requested in closing arguments. The district court reversed a remittitur ordered by the trial court.



Friday, May 25, 2007
 
Watering Daze
Today's Sun-Sentinel has this story about a Pembroke Pines couple who were cited for washing a rug outside, supposedly in violation of water restrictions that prohibit "all wasteful and unnecessary water use." The story seems to indicate that a violation may turn on why the couple chose to wash the rug, not how or how long they washed it.

Would Pembroke Pines second-guess each load placed in a washing machine?



Wednesday, May 23, 2007
 
Fourth District: The Funny Side Of Causation
There has been a discernible buzz over this decision. The case itself is rather notable. It concerns Funny Cide, the horse that won the Kentucky Derby in 2003 and thereafter the Preakness. He came in only third at the Belmont, though, unsuccessfully ending his Triple Crown quest.

So his owners sued the Miami Herald.

The suit claimed that the Herald had falsely printed a story saying that Funny Cide's jockey had admitted holding an unapproved object in his hand during the Kentucky Derby. The story ran before the Preakness, and the plaintiffs asserted that, to combat the story's falsehoods, Funny Cide's jockey over-rode the horse in the Preakness, taking the title by several lengths but leaving the horse too tired to win the Belmont. Their damages theories were predicated on the notion that, but for the Herald's article, Funny Cide would have won the Triple Crown.

The trial court granted the Herald a summary judgment, determining that, as a matter of law, the plaintiffs could not establish causation.

On appeal, the Fourth District agreed. But that is not all we learn from the decision. As happens from time to time, the court gave us not just an answer to the questions presented in the appeal but background on how the court's final product took form.

Apparently, Judge Farmer initially wrote an opinion for the court affirming the summary judgment order. The other panel members chose not to endorse that opinion -- "or even some slightly altered version." They instead signed onto the traditional-looking, two-page lead opinion that explains the court's decision to affirm.

Judge Farmer nonetheless opted to publish his original opinion. It follows the two-judge opinion and oddly is labeled not as a concurrence or special concurrence but simply as "Opinion by JUDGE FARMER."

Judge Farmer's "Opinion" is, well, unconventional. I suppose that explains why he precedes it with a "Foreword" that explains his unorthodox approach and tells the tale of how his "Opinion" came not to be the court's opinion.

The Foreword is a three-page, six-footnote essay on judicial writing. It discusses how judicial opinions are too long and too often filled with needless detail and arcane terminology. It questions why the conventions in judicial writing continue to constrain and laments what he terms the resulting "legal ennui." Judge Farmer confesses his own contributions to the situation and explains his recent resolution to "try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees." He concludes with the view that "nothing that is available in human experience ought to be banned by convention in judicial opinion writing."

The "Opinion" is divided into two sections: The Backstretch and The Finish Line. The Backstretch is a summary of the case's facts and how the appeal should resolve. At times it admittedly borrows the cadence of a Guys and Dolls tune. Here is an excerpt:
The horse won the Kentucky Derby. Decisively. Tenth fastest time in Derby history. First jewel in the Crown.

Sure, there was some racket in the press afterwards. The Miami newspaper said it saw something in the jockey’s hand, some illegal electric thing, maybe to spark the horse. Turns out the paper was seeing a fantasy in a shadow and retracted the story. But the noise had already begun. Are we looking at a Triple Crown horse?

Then the horse won the Preakness Stakes. And it's not even close. Wins by nearly ten lengths. The horse is so far out front, looks like he could make it past the wire and into the barn before they can take the photo. Hardly anyone asked if the horse ran out of gas for the Belmont. Are you kidding? Racing was all stirred up about the Crown. The feedbox noise grew hot.

* * *
The horse did not win the Belmont Stakes. Yeah, he finished in the money, best he could do was show.
* * *
Anyhow the horse sues the paper. Says the false report in the Miami paper damaged him. Paper says name your damages. Allow me to clarify, says he. Belmont purse is $1 million. Collaterals bring another $5 million. So I'm out $6 million.

But the steward in the court saw an illegal substance in the damages and disqualified them. The horse now wants the judges to let him back in.
The Finish Line contains a legal analysis of the causation issue. It is less poetic than the Backstretch but still uses an uncommon tone and unconventional techniques, with many rhetorical questions calculated to lead the reader toward commonsensical conclusions, much as a skillful trial attorney might do with a jury. Footnotes in the Finish Line inform readers of each horse to win the Double Crown or the Triple Crown, with emphasis on the irony of the last Triple Crown winner's name, Affirmed.

Judge Farmer is certainly onto something. Some appellate opinions are too long, too detailed, too wordy, too obtuse, to be understandable through reasonable effort. The same could be said of many statutes, law review articles, appellate briefs, and even standard jury instructions. I personally believe that whoever is responsible for the three utterly incomprehensible causation jury instructions (legal cause, concurring cause, and intervening cause) found in Florida's standard civil jury instructions should face an inquisition -- those standard instructions are given in nearly every civil jury trial and probably have never once been understood by a jury of nonlawyers.

It may be too much to ask, though, for judicial opinions to be fully comprehensible to persons untrained in the law. Judicial writing must address principles and arguments that are often obtuse and not on their surface commonsensical. Where decisions are intended to serve as precedent, they must do so in a way that allows future lawyers and judges to excerpt or summarize their pertinent facts and holdings, applying them accurately to later events and circumstances. Discourse that is too street-friendly can lack the sort of precision that makes working with a case's facts and holdings possible. For instance, summarizing the facts of the Funny Cide case using only what is available in The Backstretch would be a challenge. Similarly, heavy use of rhetoric can blur the lines between holdings and dicta, creating confusion down the proverbial road.

I do applaud the notion of simplification. It is needed in all areas of legal writing, and it is not going to happen until the masses on the bench and in the bar focus on that need.

Perhaps now is the time.

 
Fourth District: Willies
In this case, the Fourth District affirmed the rejection of the appellant's efforts to set aside his guilty plea. The court also had this to say about plea conferences:
A plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is said and done at a plea conference carries consequences.
And in case you're curious, the appellant's name was Larry.

 
Fourth District: Certiorari Conflict
Can a party seek certiorari relief with respect to an order that denies the party requested discovery? This decision from the Fourth District, and specifically Judge Klein's concurrence, points out that three districts consider certiorari petitions in such circumstances on the theory any harm is not reparable on plenary appeal, one district looks for irreparable harm on a case-by-case basis, and one district -- the Fourth -- holds that any error can be corrected on final appeal and therefore rejects certiorari petitions in this context.

 
Fourth District: Mentionable
This criminal appeal involved a defendant named Hagan Diaz, a victim named Dale D. Fox, and a witness named Christian Heart. Really.

 
Fourth District: Insurance Settlements
Insurance fans will be very interested in this decision. The Fourth District held that, under the circumstances, an insured stated a cause of action against his insurer for failing to exercise good faith in settling a medical malpractice claim against him.

The relevant statutory scheme and the policy at issue authorized the insurer to settle without a veto by the insured, but they also required the insurer to do so in good faith. The court held that the good faith requirement could be enforced.

 
Fourth District: 57.105 Fees
Trial courts have discretion when it comes to awarding fees under section 57.105 for meritless litigation. Can that discretion be abused by denying a motion for fees? Yes, as you can see in this decision from the Fourth District.

 
Fourth District: Fourth Amendment
Those intrigued by search and seizure issues may wish to check out this decision from the Fourth District. The court upheld the use of evidence obtained from a warrantless stop of a boat, leading to the defendant's conviction for boating under the influence, based not on law enforcement's reasonable suspicions regarding the commission of a crime, but under the community caretaking doctrine. That doctrine allows law enforcement to stop someone to ensure the person's safety or the safety of the public.

 
Fourth District: Self-Incrimination
Criminal law fans may be interested in this decision, where the Fourth District granted certiorari relief to the state in a criminal case. The district court quashed a trial court's order excluding testimony from a mental health expert who conducted a voluntary examination of the defendant. Whereas the trial court found that such testimony would violate the defendant's privilege against self-incrimination, the district court focused on the voluntary nature of the exam and held no unconstitutional self-incrimination would occur with the testimony's disclosure.



Tuesday, May 22, 2007
 
Certifiably Excellent: And 1
Make that four persons who I believe passed this year's appellate certification exam. In addition to the three mentioned yesterday -- Nancy Ciampa, Lynn Hearn, and Joe Lang -- add Barbara Eagan, a private practitioner with a firm in Orlando.

Congratulations, Barb. I suppose I should say you are now a specialist-in-waiting.

 
Wait For It...
To answer a common question today, no, I've not yet posted on Judge Farmer's much-noted musings from last week, beyond simply mentioning them in this post I put up an hour or two after the decision came out.

I'm thinking tomorrow...

 
Fifth District: Basic Reversal
In this decision, the Fifth District reversed a third degree grand theft conviction due to the prosecution's failure to present competent evidence of the value of burgled computer equipment. In doing so, the court noted:
The evidentiary issues giving rise to this appeal are basic ones. The State Attorney might consider relying less on intuition and more on training.
Ouch.

 
Fifth District: Certiorari, Service by E-mail, and Rules Committees
This decision interested me. It is a certiorari case involving parents who lost custody of their child after a hearing at which neither they nor their newly-appointed lawyer were present. The Fifth District focused on the error in not providing appropriate notice to the parents and their attorney and granted relief.

Appellate fans may note that the court never discussed the irreparable harm component of certiorari relief -- the notion that a writ of certiorari is only appropriate to correct error that cannot be remedied on plenary appeal. The court implicitly found that element satisfied, presumably based on the nature of the case.

All lawyers may be interested in the district court's comments regarding service by e-mail. In discussing the "half-baked effort" made in the case to serve notice on the parents and their attorney, the district court observed that the circuit court clerk had sent notice to the attorney by e-mail less than five hours before the hearing. The district court then stated in a footnote:
Although no mention is made in rule 8.225(c)(5) concerning service by e-mail, there are certainly occasions when this method might well be most likely to accomplish service, and it might well be considered as a supplement to the methods identified by the rule. The appropriate committees of the Florida Bar may wish to visit this issue in the future.
Rules committees, those comments were directed at you.

In my view, the court is correct that e-mail service may at times be the most likely means to accomplish service, at least in the short term. I note, though, that the court suggested considering e-mail "as a supplement" to other forms of service. I take that suggestion to mean e-mail might be used in addition to, not in lieu of, other forms of service.

The difference is significant. E-mail as an independent form of service presents significant challenges that touch upon due process. At a minimum, I would suggest that nothing should be "served" on an attorney through an e-mail address unless the attorney has expressly selected that address as a means to receive service. Otherwise, service could be sent to an account that is not being monitored, or that is being monitored by various spam filters that could, unknown to the sender or the recipient, quarantine or simply delete service e-mail that some computer algorithm identified as spam.

My own situation at work may be a good example. My work e-mail address is very much public, being found on the firm's web site and available over the Internet from The Florida Bar. Consequently, I currently get between 250 and 350 unsolicited junk e-mails per day. (Sometimes more. The number has been steadily rising for years.) My firm has a filter that captures most spam, and I try -- try -- to review a daily summary of what it captures. But I do not always review the summaries in complete detail, and the junk filters inevitably catch items that are certainly not junk. Theoretically, important e-mail -- including served items -- could get lost and never seen. Also, there are times when I am not only out of the office but completely out of contact, by e-mail, phone, etc. At those times, e-mail sent to my work address is not going to be promptly reviewed.

Some of you reading this may be wondering about how I address electronic filing in federal courts, where, in most instances, filed documents are automatically served by e-mail on all parties and no paper copies are sent by anyone. The paperless functionality of the federal electronic case filing system is brilliant, and of course I use it. Critically, though, the system allows you to designate multiple recipients for electronically served items. In my case, items served on me are sent not just to my firm address and my legal assistant's firm address but to a third address that uses an entirely separate domain (not carltonfields.com) in case the firm's servers ever go down for an extended period of time. That third address is monitored multiple times each day and is used only for the receipt of electronically filed court documents. The redundancy works. I am usually in the company of my Treo, which like a Blackberry transparently allows me to monitor and send my work e-mail in real time, from most anywhere, and if both I and my legal assistant are out of contact, the backup domain will function as a backpostoffice and get the service materials to whomever is overseeing my U.S. mail.

Florida's courts are eventually going to implement true, paperless, electronic filing. When they do, and at a minimum, I hope they allow individual attorneys to utilize multiple e-mail addresses for service.

 
Fifth District: Logo Liability
If you are interested in the so-called "logo liability" imposed by federal law on interstate motor carriers, check out this decision from the Fifth District.

 
Fifth District: Nursing Homes and Personal Jurisdiction
If you have ever noticed a nursing home resident's lawsuit that sues not only the direct owner of the home but all sorts of related or even distantly related companies, on the theory they were all operating the particular home at issue, then you may be interested in this decision.

The Fifth District reversed an order that denied an out-of-state corporate parent-type company's motion to dismiss for lack of jurisdiction. The appellate court held that personal jurisdiction was not shown to exist.



Monday, May 21, 2007
 
Abilities and Disabilities
Some weeks ago I published this post regarding a Fourth District case that held a Florida law claim for malicious prosecution cannot be brought against a state agency. A reader wrote me to criticize the post, saying I was misleading those with disabilities by not pointing out in my post that they could still sue state agencies under the Americans With Disabilities Act.

This is a delicate issue. I never mean to mislead anyone on this blog, and equally important I never mean to lead anyone on this blog. My discussions here are not legal advice. They are, at best, discussions, albeit a bit one-sided. I am never telling anyone whether they have a viable claim or defense, or what legal steps they in particular should take to protect their rights.

There are some very good resources out there for ADA-related topics, such as the blog Disability Law. Most lawyers' blogs, though, are probably much like mine -- they happily talk about various subjects but are not offering specific legal advise to anyone. If you have questions about your rights, I cannot strongly enough recommend that you speak to an attorney in your jurisdiction. Allow him or her to appreciate your factual situation and advise you on your rights.

 
So Maybe They Are In-Waiting...
It's been pointed out to me that, today being May 21, there still remains over a week until the new crew of board-certified appellate attorneys officially becomes board-certified, and thus the "specialists-in-waiting" label may apply.

Well, that's true. They just don't have much of a wait. So, I suppose you can call them specialists-in-waiting if you would like to do so. Just hurry.

 
Also Certifiably Excellent
Word has made it to my inbox that Lynn Hearn, general counsel for the Department of State, also passed this year's appellate certification exam. That brings the '07 class to three, as best I know. Waiting to hear about others...

 
Appellate Attorneys Wanted
Florida's Solicitor General, Scott Makar, has announced that his office has two openings for entry-level attorneys. Having previously taken a planned sabattical of sorts from private practice to spend 15 months working for that office, I can vouch for the tremendous experience it provides and would be glad to talk with anyone considering that unique form of appellate public service in Florida.

For more information on the openings, look here.

 
Blog Watch: Two Promising Arrivals
The local blogosphere continues to grow exponetially, and two recent additions deserve special mention.

One is a blog by Tampa practitioner Richard Harrison called Partly Cloudy. It covers all things related to public records and the sunshine law, and it's off to a marvelous start.

Also, Carlton Fields has joined the blogging leagues by launching a class action blog -- Classified. It's very impressive and is going to be a great resource for class action fans.

 
Certifiably Excellent
News is making its way out regarding who passed this year's appellate practice board certification exam and is now board-certified by The Florida Bar as an appellate specialist.

The two persons about whom I have so far heard (note my careful use of correct grammar in this post) both happen to be colleagues of mine: Joe Lang and Nancy Ciampa. Congratulations to both of them.

In case anyone's trying to keep track, that brings my firm's appellate practice group up to seven board-certified attorneys -- Sylvia, Wendy, Paul, Bob, Nancy, Joe, and me. Yes, we're an alarmingly, um, quirky group.

By the way, this is the first time in recent memory that the Bar did not send out notices several weeks in advance of June 1, when the certification officially takes effect. In past years, the lag time between notification and effective date led me to call folks who had just received their good news "specialists-in-waiting." This year's class has been deprived of that moniker.

If anyone hears of others who passed this year, let me know. I'll be glad to mention it here.

 
Back In Blog
Whew. After using GetDataBack to salvage as much data as I could from my damaged hard drive, I wound up visiting my local big box store and walking out with a new hard drive, a full copy of Vista, and Office 2007. I then spent the weekend creating a new home system. I'll say this much about Vista: it's nice in many respects, but it has some significant issues that will hopefully be cleaned up in the next few months.

I'm designating today "Announcement Day." During the course of the day, I am going to post various items that folks have asked me to pass along or I've otherwise wanted to mention. There are many...



Wednesday, May 16, 2007
 
The Value of Second Opinions
Despite coming awfully close to catching up on recent cases, I'm tied up at the moment. The hard drive on my home computer mysteriously underwent a crash of sorts (many sectors bad) and I'm in the process of recovering what I can and figuring out whether a new drive, a new operating system, or a new computer altogether is in store.

And of course that's all driving me batty, since there is much good stuff to talk about here. If I could only stop thinking about lost files at home.

Speaking of good stuff, if you like the subject matter of this blog then definitely check out the second opinion in this case. I cannot, um, commend it enough. I'll also have lots to say about it, once I get my files back...



Monday, May 14, 2007
 
Fifth District: Nolo Contendere
The defendant in this plea withdrawal case asserted he suffered from a personality disorder that caused him to have "an uncontrollable urge to agree with authority figures." Who could argue?

 
Fifth District: Citations and Definitions
This decision from the Fifth District cites a Florida authority -- a DOAH decision -- that rule 9.800's citation guide does not directly cover. Appellate Rules Committee, take note.

Speaking of authorities, the Fifth District seems open to, well, lots. This decision utilizes two different online dictionaries to define two terms, while this decision uses a more traditional print dictionary, albeit the 1989 version.

 
Fifth District: Preservation of Error
The Fifth District's decision in this case reminds us that, to preserve an objection made during jury selection, the objection must be renewed before the jury is sworn.

 
Fifth District: (Proposed) Standard Jury Instructions
If you ever need support for using proposed standard jury instructions before they are approved by the state's high court, consider referencing this decision from the Fifth District.

 
Questions, questions: Nursing Homes and Nicknames
Nursing home fans are no doubt interested in this decision.

The Fifth District acknowledged its branch's role in naming the relevant sections of chapter 400 the "Nursing Home Residents' Act," calling the denomination a "fitting sobriquet recently coined by the judiciary."

Celebrating the linguistics but uncertain of a liability issue, the court also certified the following to the Florida Supreme Court as a question of great public importance:
DOES THE VERSION OF SECTION 400.023(1), FLORIDA STATUTES, IN EFFECT PRIOR TO ITS AMENDMENT IN 2001 PROHIBIT A PERSONAL REPRESENTATIVE FROM MAINTAINING A CLAIM WHEN THE ALLEGED VIOLATION DID NOT CAUSE THE RESIDENT'S DEATH AND WHEN THE SUIT WAS ORIGINALLY FILED BY THE RESIDENT PRIOR TO HIS OR HER DEATH?

 
Fifth District: Don't Call
For a very interesting look at the federal and state "Do-Not-Call List" regulations, and their interplay, check out this decision from the Fifth District.

 
Fifth District: Jury Instructions
It appears that being able to work up meaningful, accurate jury instructions and verdict forms is a useful skill. The following excerpt from this case supports that view:
It is not clear why the jury reached . . . two legally inconsistent conclusions. Perhaps, in part, it was the jury instructions, which in this case, were awful. They are confusing, inconsistent, and incorrect. This was not entirely the fault of the trial judge because these instructions, inexplicably, were the product of a stipulation. The jury's plight was made worse by the design of the verdict form . . . .

 
Fifth District: Annexation
If you have an interest in municipal annexations, then you will probably be interested in this decision from the Fifth District. On second-tier review, the court declined to set aside a circuit court order quashing an annexation ordinance adopted by the City of Center Hill.

 
Fifth District: Parental Rights
The Fifth District wrote this decision to remind the Department of Children and Families, and the public, that parental rights are protected by the Due Process Clause of the federal constitution. Lax efforts to serve a parent in a termination of parental rights proceeding will not be permitted.

 
Fifth District: Personal Jurisdiction
Those interested in personal jurisdiction disputes may wish to check out this decision from the Fifth District. The court explained that, in responding to a motion to dismiss based on a lack of personal jurisdiction, the plaintiff need not, at the outset, prove the commission of the alleged tort.

 
Fifth District: Magistrates and Attorneys' Authority
This decision from the Fifth District is part of a small but growing body of case law addressing Florida's use of "magistrates" as complements to trial judges. The court reversed a trial court's order adopting a magistrate's report.

The court also notes the limits on when attorneys are authorized to settle the interests of their clients.

 
Fifth District: Rebuilding Bridges
Four of the state's five appellate districts permit trial judges in marital dissolution cases to award so-called "bridging the gap" alimony. The Fifth District has rejected such awards as improper, but in this opinion a panel of the court unanimously stated its belief that, were the issue to be properly raised and heard en banc, a majority of the court's judges would likely recede from that view.

 
Fifth District: Tax Sales
If you are interested in when mobile homes qualify as real property in Florida, and when persons with interests in property to be sold through a tax deed sale should receive notice of the sale, check out this decision from the Fifth District.



Monday, May 07, 2007
 
Number Signs
I spotted a news blurb in my local paper this weekend which began like this:
Conceding they have just a 15 percent chance of winning, [city name] officials have decided to appeal a court ruling that allows [well, something...].
I left out the identifying information, which is probably odd in the sense only several hundred people will read this post, while several hundred thousand people received Saturday's paper.

The figure cited made me wonder if someone was actually estimating the likelihood of success on appeal or if someone was simply offering an approximate reversal rate for appealed orders in general. (The latter number is, of course, rarely useful, in that such aggregate figures are rarely applicable to any single appeal.)



Friday, May 04, 2007
 
Fourth District: Proposals For Settlement
Must a proposal for settlement under rule 1.525 state that, if the proposal is accepted, all claims will be dismissed and the party sued will be released? No, said the Fourth District in this case. Accepting a proposal for settlement relating to all claims disposes of all claims and ends the litigation.

 
Certified Conflict: Rights of First Refusal, Perpetuities, Vested Rights
There must not be enough litigation concerning real property and restraints on alienation. Otherwise, the Fourth District might not have had to work through so much ground to determine that the right of first refusal at issue in this case was not invalid under Florida's rule against perpetuities. The decision is interesting, and with respect to the retroactive application of Florida's statutory abolition of the common law perpetuities rule, very much in conflict with an 11-year-old decision from another district.

 
Fourth District: Attorney's Fees and Law of the Case
In this decision, the Fourth District explained that its denial of an appellate attorney's fees motion based on claims of meritlessness did not preclude the trial court from subsequently granting a motion for trial court attorney's fees also based on lack of merit.

 
Fourth District: Arbitration
Arbitration fans will be interested in this decision, where the Fourth District held not only that the increased burden of proof called for by the agreement at issue invalidated the agreement but that there was no way simply to sever a provision and cure the problem.

 
Fourth District: Entrapment
If you are interested in learning about entrapment, and subjective entrapment in particular, check out this decision from the Fourth District.

 
Fourth District: Forum Non Conveniens
Forum non conveniens fans, do the well known Kinney factors apply to a motion to transfer venue between Florida counties? The Fourth District has the answer here.



Thursday, May 03, 2007
 
Nothing Funny Happened On The Way To En Banc, Part IV: Formal Charges Filed
Today, Florida's Judicial Qualifications Committee filed formal charges against Judge Allen of the First District Court of Appeal, based on the contents of a concurrence he authored in one of the W.D. Childers opinions from 2006.

The formal charging document can be viewed here.

Over the past year, I have posted numerous items on the events that underlie today's development. Rather than try to summarize the saga, I will point towards those posts:

- for the Abstract Appeal post on the initial Childers en banc decision, which launched these events, look here.

- for the Abstract Appeal post on the court's decision not to certify the Childers decision to the state's supreme court, which included Judge Allen's concurrence on whether the First District should have heard the case en banc, look here.

- for the Abstract Appeal post on the state supreme court's decision denying review in the Childers case, look here.

- for the Abstract Appeal post on the St. Pete Times story that linked the Childers decision to ongoing troubles at the court, look here.

- finally, for the Abstract Appeal post on the St. Pete Times story that discussed the complaints filed with the JQC in connection with the Childers case, look here.

Those five posts contain, and link to, a significant amount of background on the situation.

 
Fourth District: Sending A Message
Telling the jury to send a message with its verdict is just fine -- in a punitive damages case. So said the Fourth District in this decision.

The decision also reaffirms the notion that a new trial cannot be obtained based on something to which an objection was made and sustained unless a mistrial was also requested.

 
Fourth District: Finding Fault
Juries are routinely asked to apportion fault among multiple persons in civil cases involving personal injuries. Typically, juries select whole, round numbers -- 50/50, 70/20/10, 60/40, etc.

Can a jury assess someone .01% fault and someone else 99.99% fault? Yes, said the Fourth District in this case.

 
Fourth District: Non-Delegable Duties
I have noted before that the tort reforms recently enacted to protect doctors from catastrophic liabilities have quite logically pushed the plaintiffs' bar towards suits against hospitals, which as defendants lack many of the liability and damages protections recently afforded the state's doctors.

This decision is an excellent example of how novel legal theories are being developed to support claims against hospitals for physicians' acts of malpractice.

The Fourth District held that a hospital holds a non-delegable duty to its patients to provide sound anesthesiology services, and thus an anesthesiologist's malpractice may be pursued by a claim against the doctor or, perhaps more rewardingly at this point, against the hospital where the doctor performed the negligent services.

 
Evolving Legal Lingo
Do you know what a negative pregnant assertion, or a negative pregnant admission, is?

Judge Farmer will tell you in this opinion.

 
Fourth District: High-Low Agreements
If you try civil cases, you know what a high-low agreement is: an agreement between a plaintiff and a defendant that, no matter what the jury's actual verdict, the plaintiff will receive no less than the "low" portion of the agreement and no more than the "high" portion of the agreement. A high-low agreement allows the parties to proceed to trial while hedging their bets against the catastrophically high or low verdict. The plaintiff will not receive nothing, and the defendant will not be financially crippled.

Are high-low agreements contrary to Florida's public policy? And if not, can a defendant who feels a bit, well, set up by a co-defendant's high-low arrangement with the plaintiff introduce the agreement as evidence at trial?

In this decision, the Fourth District appears to have determined that each issue should be considered on a case-by-case basis. The court upheld the high-low arrangement at issue and affirmed the trial court's decision to exclude the agreement as evidence.

 
Fourth District: Westlaw Costs
This decision from the Fourth District shows that Florida's appellate courts remain uniform that computerized legal research costs are not taxable in favor of a prevailing party.

 
Fourth District: Standard Jury Instructions
If you have spent time with Florida's standard jury instructions, you probably appreciate how the civil and criminal committees that craft those standards tend to avoid creating instructions not directly supported by statutes or case law.

In this decision from the Fourth District, Judge Farmer wrote that the Committee on Standard Jury Instructions (Criminal) should provide an instruction on the definition of the term "maliciously," as it is used in connection with aggravated stalking, even though the aggravated stalking statute does not define that term. Judge Farmer wrote:

The fact that the legislature failed to give a special definition of a term hardly means that the Committee should refrain from doing so. It is far preferable to have a standardized instruction on this element of the crime used throughout the state than to have ad hoc and differing formulations in each trial where the issue is presented. It strikes us that justice would be better served by a standardized instruction for section 784.048(4) defining maliciously to mean "wrongfully, intentionally, and without legal justification," for that is surely the sense in which the legislature used the term in this statute.
It might be noted that Judge Farmer is a member of the standard jury instructions committee for civil cases.

 
Fourth District: Sovereign Immunity
The state has sovereign immunity from suits by citizens. Section 768.28 waives that immunity in some respects, including certain negligent acts, but not in other respects, such as instances where a state employee acts with a malicious purpose.

Does that mean a state agency can never be sued for malicious prosecution?

Yes, said the Fourth District in this case.

 
Fourth District: Certified Questions From County Courts
In this decision, the Fourth District encouraged county courts not to certify questions of great public importance without first resolving any preliminary issues that underlie such questions. The case involved a certified question on the applicability of Crawford to excited utterances, when the county court never resolved whether the statement at issue in the case actually qualified as an excited utterance.

 
Fourth District: Piecemeal Appeals
This decision from the Fourth District discusses the judiciary's dislike for piecemeal appeals. The case involved an initial order denying a motion to compel arbitration (which was not appealed), a class certification order, and a second order denying a second motion to compel arbitration. On appeal from the second denial, the district court rejected an argument that the post-certification nature of the second order made it sufficiently different from the first order to permit an interlocutory appeal.

 
Fourth District: Property Value
Noted within this criminal decision from the Fourth District is the notion that the amount paid by a property damage insurer, together with the deductible, is reliable evidence as to the value of the damage.



Wednesday, May 02, 2007
 
Judicial Candidates
As this letter shows, the Judicial Nominating Commission for the Third District has sent the following "short list" of names to Governor Crist as nominees for an appointment to that court:

Jennifer D. Bailey
Kevin Emas
Michael A. Hanzman
Vance E. Salter
Eduardo I. Sanchez
Cristina Pereyra-Shuminer

The person selected will replace Judge Fletcher, who is retiring this summer.

 
Third District: Stories
If you're looking to spend a few minutes with an interesting story, check out this decision from the Third District. The legal import of the case concerns the sufficiency of the evidence to support a criminal conviction. The factual tale -- of a city commissioner who, with his wife, was being surveilled by plainclothes detectives, and, spotting persons he believed to be nefariously stalking his wife, stopped one and, for his protective actions, thereafter was charged with corruption by threat against a public official -- is rather fantastic.

 
Third District: Capacity
If a plaintiff acting in a representative capacity sues a defendant, can the defendant file a counterclaim against the plaintiff as an individual? As the Third District explained in this case, the answer is no.

 
Third District: Paternity and Child Support
Even if you think you understand why the state prosecutes in the face of evidence the accused may well not be guilty, and why the defense defends in the face of evidence the accused may well be guilty, do you understand why the state demands continued child support from someone DNA evidence has proved not to be the child's biological parent, as in this case from the Third District?

In my view, the answer lies in the notion that the state believes it must look after children's best interests, from which it apparently follows that having someone pay, even wrongly pay, support for a child is better than no one paying support for that child. Whether that answer is a good one is another question entirely.

 
Third District: Tolling Limitations
If you are interested in the various grounds for tolling the running of statutes of limitation, and specifically the part payment tolling provision, check out this decision from the Third District.

 
Third District: Mediation and Arbitration
Is a nonfinal order denying a request to compel mediation and abate the pending litigation an appealable order? No, said the Third District in this decision.

The decision also explains a host of ways a party can waive its right to arbitrate a dispute.

 
Third District: Liquidated Damages
The Third District's decision in this case caught my eye because of its concise discussion of what makes damages liquidated, or not, for purposes of a default judgment.

 
Third District: Arbitration
Can an arbitration award be vacated, or modified, merely because the arbitrator awarded relief that would not ordinarily be awarded by a court of law?

In a word, no, as this decision from the Third District shows. The arbitrator found in the claimant's favor in a derivative action but awarded the damages to shareholders, rather than the company on whose behalf the derivative action was brought.

 
Third District: Wills
Probate fans should be very interested in this decision, in which the Third District explored in depth the tort claim of intentional interference with an expectancy of inheritance.

 
Third District: Personal Representatives
Probate fans may be interested in this decision, where the person selected by a majority of heirs to administer the decedent's estate was not selected by the trial court as the estate's personal representative. The Third District reversed for an evidentiary hearing on the matter.



Tuesday, May 01, 2007
 
Questions, questions: Miranda
If you are reading this blog, you are probably aware of the information that police officers are constitutionally required to give criminal suspects prior to interrogating them. Go ahead. Recite it. "You have the right to remain silent. Anything you say...."

Of course, the Miranda rights, as they are known, include the right to speak with an attorney at any time -- even in the middle of questioning. With that in mind, consider that an officer reads a suspect the following version of the Miranda rights:
You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering . . . any of our questions. If you cannot afford to hire a lawyer, one will [be] appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.
Consider also that the suspect proceeds to answer questions in an apparent waiver of his rights to silence and counsel. The answers amount to a confession, and later his counsel asserts the Miranda warnings were constitutionally deficient because they did not inform the suspect of his right to have a lawyer present during questioning. Will that argument prevail?

A trial judge determined that the warnings were constitutionally sufficient. Though the warnings related a right to a lawyer only "before answering" questions, the warnings also explained that the suspect could use the rights mentioned "at any time . . . during [the] interview."

The defendant, a minor, appealed, and as it turned out, the trial judge's decision became the tie-breaking vote. The fourteen-judge Second District heard the case en banc and, through a gaggle of opinions, ultimately split 7-7 on the validity of the youth's confession. The trial judge's decision was therefore affirmed.

You can read the Second District's numerous opinions here. They are very interesting, and each plainly reflects the author's sense of pragmatism concerning law enforcement and the hurdles that should prevent the government from utilizing a suspect's, including a minor's, voluntarily spoken confession.

While the court split on the merits of the case, the court did certify the following to the Florida Supreme Court as a question of great public importance:
DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER "BEFORE QUESTIONING" AND (B) THE "RIGHT TO USE" THE RIGHT TO CONSULT A LAWYER "AT ANY TIME" DURING QUESTIONING?

 
Second District: Preservation 101
This decision examines the requirements for preserving an argument for appeal to a Florida appellate court. In the context of search and seizure, the Second District examined the arguments raised below and those raised on appeal and concluded the latter were unpreserved.

On the verge of a trend, the Second District engaged in a similar discussion, with a similar result, in this subsequent decision.

In my experience, some cases are black and white when it comes to preservation: an issue is either clearly preserved or clearly not. Many cases are more gray, however, and in such instances courts seem to follow a sort of sliding scale for preservation. The more unjust the result, the less demanding the appellate court will be regarding the steps necessary to preserve a challenge for appeal.

 
Second District: Duties To The Unconceived
Whether one person owes another a duty, the breach of which may be the subject of a negligence suit, is a question of law for the courts to resolve. Does a physician who delivers a birth owe a duty of care to the woman's future children? That issue arose after a physician allegedly failed to document a significant complication that occurred during a child's birth. By not documenting the problem, a different physician who handled a later birth by the same mother was unaware of the earlier trouble, which occurred again.

The mother wished to sue the first doctor on behalf of the second injured child, who obviously was not yet conceived when the doctor committed the alleged malpractice. Under those circumstances, will the courts agree that the first doctor owed the second child a duty of care?

The Second District did so in this case. The court held that a preconception duty to the plaintiff existed under the circumstances of the case.

The case was one of first impression in Florida, and the court gave much attention to following the appropriate analysis.

As a fan of duty issues, I took great interest in this decision. It advances the law in a fundamentally logical direction. The birth-related aspects of the case can draw you toward contemporary society's highly contentious debates concerning life's beginnings and implications, but the case should not be read so far. At its root, the decision simply concerns whether unreasonable actions should be without consequence simply because the person they may harm is not alive at the time. That single fact should not be dispositive.

 
Second District: When Death Is No Injury
The federal Comprehensive Environmental Response, Compensation, and Liability Act, better known as CERCLA, defers the accrual of state law causes of action for any personal injury caused by exposure to a hazardous substance until the person knows or should know the injury was caused by the substance.

Does that provision apply to a state law wrongful death claim? That is the question the Second District confronted in this case. The court examined the "common and long-standing" distinction between personal injury and wrongful death claims, ultimately concluding that CERCLA's reference to the former does not include the latter.

The court acknowledged that its decision conflicts with a 2002 decision from the Second Circuit Court of Appeals.

 
Second District: Stealth
Florida law will presume that a would-be burglar has an intent to commit a criminal offense on the property if the person attempts to enter the property "stealthily," but the statute that so provides does not define that term. So cases like this one from the Second District take up the task of determining what it means to act "stealthily." The decision held that walking up to a garage door and jiggling its handle in broad daylight, with no effort to conceal one's actions or identity, lacks the necessary stealth to invoke the statutory presumption.

 
Second District: Jurisdiction
Just a reminder here from the Second District that a trial court lacks jurisdiction to enter a post-judgment restitution order after a defendant has filed a notice of appeal from the judgment and sentence.

 
Questions, questions: Hearsay
In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance, joining a chorus of districts voicing the same concern:
DOES THE "TESTIMONIAL HEARSAY" RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004), APPLY IN PROBATION AND COMMUNITY CONTROL REVOCATION PROCEEDINGS?
As did the other three districts that certified the same question, the Second District answered this question in the negative.





 
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