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Monday, July 30, 2007
Fifth District: Research Your Points
The Fifth District was not happy with the briefing in this case. On a disputed legal point, neither side cited the controlling supreme court decision or its progeny.

In a footnote, the court admonished the attorneys for each side.

Fifth District: For Want of a Transcript
The lack of a transcript. Sometimes it prevents meaningful appellate review. Sometimes it does not.

In this case, it did. The appellant argued that he, not the appellee, was the prevailing party below for purposes of attorney's fees. Fifth District held that the lack of a trial transcript precluded review.

Fifth District: Jurisdiction and Attorney's Fees
If an appeal is untimely taken, leaving the appellate court without jurisdiction to address the merits of the judgment, but the appellee has a right to attorney's fees, can the appellate court award fees?

In this case, the Fifth District dismissed the appeal and assessed fees against the appellant after he filed a notice of appeal more than 30 days past rendition of the lower court's judgment.

Fifth District: Prohibition for a Dog
Dogs lie at the heart of this case. That may explain the passion that has led it through four tribunals thus far, starting with a local code enforcement board, a county court, a circuit court, and most recently the Fifth District.

According to the district court's opinion, the county board determined that a certain trio of dogs was dangerous. (The district court does not state the penalty, but judging by the litigiousness, it is probably not a mild one.) By statute, the owner can seek relief from that decision in the county court, but what kind of proceeding should that be? A certiorari review or a de novo trial? The county court determined it would conduct a certiorari review -- a very limited review proceeding. The owner then sought immediate relief from the circuit court, which issued a writ of prohibition directing the county court to conduct a de novo proceeding, which essentially gives the owner a whole new trial before the county judge.

County authorities then appealed the circuit court's decision to district court, and the Fifth District reversed. The court held that prohibition was not available from the circuit court at this stage of the litigation. Prohibition prevents a court from exercising jurisdiction it does not have, not exercising jurisdiction it has in an improper manner. The district court explained that a plenary appeal to the circuit court would be available at the conclusion of the county court proceeding.

Fifth District: Offers of Judgment and Those Befuddling Releases
If you have been paying attention to the ever-growing offer of judgment case law, then you have surely seen many offers held invalid for failure to include the specific terms of a required release. You have also seen many offers held invalid for requiring the execution of releases that were supplied but also ambiguous.

Place this case in the latter category.

The Fifth District invalidated a settlement proposal because the accompanying release would have released not only a particular, insured defendant but its insurer and privies. Under the circumstances of the case, the scope of the release was ambiguous as to whether it also released other potential defendants insured by the same insurer, one of whom was a co-defendant and the other of whom was not a party.

In a footnote, the decision includes the judicial equivalent of a hat tip to a notion raised recently by Judge Griffin: that releases fitting within the offer of judgment scheme might be limited to what the offeror might be entitled to as a matter law of upon settlement.

Fifth District: Certiorari and Discovery
If a trial court grants a protective order and precludes a party from taking a noticed deposition, can the party seeking the deposition obtain certiorari relief?

It happened in this case decided by the Fifth District.

Fifth District: Mandamus and Patience
Expressing that it had "run out of patience," the Fifth District issued a writ of mandamus in this case, directing the lower court to rule on the petitioner's rule 3.850 motion.

Fifth District: Certiorari and Insurance Attorney's Fees
Appellate fans and insurance fans may be interested in this decision, where the Fifth District granted a certiorari petition to quash a circuit court's order granting an insured attorney's fees.

The district court held that the insured should not have received attorney's fees from the insurer, though the insurer paid the claim after litigation began, because the insured concealed its compliance with the policy terms that gave rise to right of recovery. Under those circumstances, the district court held the confession of judgment insurance doctrine to be inapplicable.

Fifth District: Prohibition and Certiorari
In this decision, the Fifth District addressed both a petition for writ of prohibition, based on an alleged running of a statute of limitations, and a petition for writ of certiorari, based on an alleged running of a statute of repose.

Recognizing that an earlier decision entered a writ of prohibition under similar circumstances, but that a state supreme court decision in the meantime made that result incorrect, the district court held that prohibition cannot be used to address an expired statute of limitations in a civil suit.

The court's certiorari decision may interest some appellate fans. The court chose not to address the irreparable harm aspect of certiorari (which some consider to be akin to a jurisdictional inquiry), concluding instead that petitioner's certiorari claim failed on its merits.

As a result, the court dismissed the prohibition petition and denied the certiorari petition.

Fifth District: Agencies
Administrative law fans may be interested in this decision from the Fifth District. The court held that the Canaveral Port Authority is not an "agency" within the meaning of chapter 120. The court therefore transferred an appeal from an Authority decision to the local circuit court for certiorari review.

Fifth District: Certiorari and Bad Faith Claims
In this certiorari case, the Fifth District quashed a trial court's order refusing to dismiss a bad faith claim pled before the underlying coverage issue had been resolved.

Thursday, July 26, 2007
Taking Time To Serve
I received the following e-mail (I've slightly altered it) regarding service, and thought I would respond to it on the blog:

I'm trying to avoid a contest with another attorney who we served via email with an attached pdf. The attorney insists on a hard copy and cites the "appellate rules." I checked 9.420 and indeed it seems to make no provision for service by any means other than mail or hand delivery. Not even fax, which is so last century. It clearly doesn't contemplate electronic transmission.

Am I missing something here? Maybe somebody on the rules committee should consider updating this?
Service of documents during an appeal is so often not dispositive of anything that attorneys rarely raise service issues with the court. Even less often is service during appeal the subject of published orders or decisions.

That leaves attorneys to wonder about several issues that, in practice, come up from time to time. The question about e-mail and faxes is one of them.

Florida Rule of Appellate Procedure 9.420(c),which I have broken up a bit in the following quote to make it easier to read, states:
If service is required or permitted to be made on a party represented by an attorney, service shall be made on the attorney unless service on the party is ordered by the court.

Service on the attorney or party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule shall mean (A) handing it to the attorney or to the party, or (B) leaving it at the attorney's or party's office with the clerk or other person in charge thereof, or (C) if there is no one in charge, leaving it in a conspicuous place therein, or (D) if the office is closed or the person to be served has no office, leaving it at the attorney's or party's usual place of abode with some person of the attorney's or party's family above 15 years of age and informing such person of the contents.

Service by mail shall be complete on mailing.
The only two options set forth in the rule are delivery and mail. Does Internet e-mail constitute either? My personal view is no. Particularly since, under rule 9.420(e), service by mail can lead to a five-day extension of the recipient's next deadline, it appears mail contemplates the federal postal service. Nor does e-mail appear to fit within any of the defined methods of delivery.

A facsimile is not mail, but is it delivery? Perhaps one could assert that faxing constitutes leaving a copy of the document in a conspicuous place at the attorney's office. But a typical fax machine does not send a true copy. Faxed documents include headers that contain information usually not found on the original page, and as a practical matter it seems difficult to say a faxed document is a true copy of the original. Perhaps most dispositively, Florida Rule of Civil Procedure 1.080(b), by comparison, expressly includes facsimile transmissions as a permissible method of delivery in county and circuit court proceedings, with certain additional requirements. That rule's fifth option for delivery of a document states:
(5) transmitting it by facsimile to the attorney's or party's office with a cover sheet containing the sender's name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.
The absence of any such authorization in the appellate rules of procedure would seem a clear indication fax transmission does not constitute mail or delivery under those rules.

While I am on the subject, I will offer up a few related questions: Does a private delivery service, such as Federal Express, fit within the rule? Is Federal Express mail? Or might it be delivery? Considering Federal Express to be "mail" seems awkward, to say the least. How about delivery? If you contend that Federal Express constitutes delivery, should not the certificate of service reflect the actual delivery date, rather than the date the document was sent? Hmmm...

As a post-script, all this will likely change once the appellate courts move to electronic filing and service. Hopefully that will occur in the near future.

Wednesday, July 25, 2007
Extra Rounds
A circuit judge has ruled state cannot execute Deco Lightbourne, a convicted murderer, until state officials revise Florida's lethal injection procedures. The Orlando Sentinel has this story on the decision.

Extra Innings
The Florida Legislature has announced it will hold a special session this fall to address -- that is, reduce -- the state's budget.

You can read about it in this story from today's Tallahassee Democrat.

Every story I see on this topic mentions the 2007 expiration of Florida's mandatory PIP coverage laws as something else a special session might address, but, so far, that does not seem to be in the plan.

Thursday, July 19, 2007
Fifth District: Brevity
Sometimes little needs to be said for an appellate court to explain why it is reversing the judgment below. Take this opinion from the Fifth District as an example. This style is somewhat common in the Third District and the First District, and perhaps it is catching on at the Fifth.

Fifth District: Manifest Weight
Do manifest weight arguments work on appeal?

On one hand, this decision from the Fifth District reversed a judgment based on a manifest weight of the evidence argument. On the other hand, the case was peculiar, involving a favorable verdict that was transformed into a negative judgment based on the trial court's post-trial rulings.

Fifth District: Public Records
Public records fans should be very interested in this decision, which examined the public's right to access a county's litigation records where a plaintiff has obtained a judgment against the county and is pursuing a claims bill from the legislature. The Fifth District examined the relevant public records exemptions and discussed claims bills at length. The court ultimately affirmed a trial court's decision to deny access to the litigation records at that point in time.

Fifth District: Pure Bills of Discovery
As the Fifth District shows here, the pure bill of discovery lives on, but it can be a trick to use.

Fifth District: Arbitration
Arbitration fans should be interested in this decision.

The notion that the Florida Arbitration Code should be interpreted consistent with the Federal Arbitration Act was long recognized by Florida courts, but that principle was potentially placed in jeopardy last year when the Florida Supreme Court's construction of the federal act was reversed by the U.S. Supreme Court in this case. The reversal of course concerned only the federal act, and it was uncertain if Florida courts would apply the state supreme court's construction to the state law, even if it could not be applied to the federal law.

The Fifth District's decision here takes the U.S. Supreme Court's decision and expressly applies it under Florida's act.

So perhaps the courts will indeed keep the two acts aligned.

Fifth District: Construction Liens
Construction law fans may be interested in this decision, where the Fifth District examined the statutory attorney's fees right applicable to construction lien foreclosure cases and whether that right is triggered by merely prevailing on a lien claim, or if some other test must first be satisfied, such as the net judgment test.

The court held that a lienor is entitled to attorney's fees so long as it is successful in recovering damages in excess of any asserted counterclaim damages in a lien foreclosure action.

Fifth District: Child Support Payments
Do payments toward child support arrearages apply first to reduce the outstanding principal, and then to accrued interest, or first to accrued interest and then to outstanding principal?

The different application methods created a $30,000 distinction in this case, where the Fifth District held payments must first be applied to outstanding interest. Judge Sawaya authored an interesting partial dissent that favored allowing the trial court meaningful discretion.

Fifth District: Transcripts, Due Process, and Jurisdiction
This decision from the Fifth District demonstrates a few interesting principles in one rather short family law opinion.

In the absence of a transcript, which is not needed where error is obvious from the record, the district court reversed a post-dissolution order that modified the parties' previously final rights regarding the sale of a piece of property. The court held the trial court lacked jurisdiction to modify the sale rights and, further, that entering the modification in the absence of a pleading seeking that relief was a violation of due process.

Monday, July 16, 2007
Judge Pleus: FARBAR Limits
This case presented a dispute over a contract to sell real property. The Fifth District struggled with how to interpret the document, which was based on the popular "FARBAR" form.

In a partial dissent, Judge Pleus took to task the form-based approach to complex real estate transactions:
The contract and addendum in this case were drafted by transactional broker Ted Rugg on a FARBAR form. This lawsuit is an excellent example of why lawyers, and not brokers, should draft contracts in complex real estate transactions. As a transactional broker, Rugg owed a fiduciary obligation to both seller and buyer. He served neither.

Had Ted Rugg suggested that an experienced real estate attorney draft the contract, he might now be enjoying the $22,500 commission called for in one of the less ambiguous clauses of the contract.
The FARBAR form is a standardized form contract produced and approved by the Real Property, Probate and Trust Law Section of The Florida Bar and the Florida Association of Realtors.

Fifth District: Proving Cause of Death
In this case, the Fifth District held it was error to grant summary judgment on the cause of the decedent's death based solely on the opinions stated in his death certificate, where the opponent produced medical testimony opining the death resulted from a different cause.

That is hardly noteworthy. What did strike me as noteworthy, though, was the district court's statement that, in addition to not constituting conclusive proof of the cause of a person's death, a death certificate "does not constitute prima facie proof of the cause of death . . . ."

Fifth District: Newly Discovered Evidence
Rule 3.850 requires most post-conviction claims to be brought within two years of the conviction except where newly discovered evidence could not have been discovered within the allowed period. Ordinarily, to be "newly discovered," the evidence must not have been known to the defendant or the defendant's attorney.

What if a defendant's claim is based on his counsel's effectiveness, and the alleged ineffectiveness includes the attorney not disclosing something material to the defendant? This decision from the Fifth District holds such a claim can go forward.

Fifth District: Public Records
This decision from the Fifth District held that a convicted offender had a right, under Florida's public records laws, to obtain unfiled depositions taken in his case. It was not clear what significance, if any, the court placed on the fact the person sought the materials from his own case, as opposed to someone else's case.

Fifth District: Closing Arguments
The majority and specially concurring opinions in this decision from the Fifth District speak against playing videotaped deposition testimony during closing arguments.

The court was particularly emphatic about not doing so when the material has not previously been introduced as evidence and, going further, Judge Orfinger observed that "the practice seems to run contrary to the premise that closing argument is an opportunity for counsel to comment on the evidence -- it is not supposed to be an instant replay."

Fifth District: Tort and Contract
This decision from the Fifth District involved an agreement that was too indefinite to form an enforceable contract. From that notion, the court held that judgment should also have been entered against the plaintiff on his negligent misrepresentation and FDUTPA claims, saying they "should have been resolved as those claims were premised on the same conduct and representations that were insufficient to form a contract and are merely derivative of the unsuccessful contract claim." A very interesting decision.

Back In Blog
Whew. Well, it took a while but I am finally able to return here. The benefit of really enjoying your law practice is that sometimes you can enjoy little else.

I took some time late last week to survey the legal landscape for the past few weeks. There are dozens and dozens of cases to discuss, and some interesting and important developments concerning Florida's now-ubiquitous property taxes problem.

On that last subject, I confess to being rather disappointed in the Florida media's coverage. The public would benefit from information on what the law is and what changes are proposed. In my view, too much attention is being paid to the superficial and the ironic (and of course the superficially ironic), without explaining why the system works the way it does or how changes will operate.

I'll do my best.

Also, to those I owe email responses, be on the lookout for them.

Monday, July 09, 2007
Abstract Pause
I've been tending to work and home as well as bar and other activities. I plan to be back tomorrow or Wednesday, with much to share.

In the meantime, thanks for stopping by.

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

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