Welcome To Abstract Appeal

Blog Pages

  Home Page
  About Abstract Appeal

  Terri Schiavo Info:
    Terri Schiavo Infopage
    2003 Schiavo Posts
    2004 Schiavo Posts
    2005 Schiavo Posts
    Pop Schiavo Posts




Subject Sources
  Florida Supreme Court
     First DCA
     Second DCA
     Third DCA
     Fourth DCA
     Fifth DCA
  11th Cir Ct of Appeals


Source Resources
  Fla Sup Ct Dockets
  Fla DCA Dockets
  Fla DCA Map
  11th Cir En Banc Issues


Useful Org Sites
  Fla Bar
  Fla Bar App Section
  Council of App Lawyers


Useful Law Sites
  Fla Constitution
  Fla Statutes
  Fla Admin Code
  Fla Att'y Gen Opinions
  Fla Legislature
  Fla Governor
  Fla Attorneys


Useful Docs

  Fla R Appellate Pro
  Fla R Civil Pro
  Fla R Criminal Pro
  Fla R Jud Admin
  Fla Fam Law R Pro
  Fla Probate R
  Fla Small Claims R
  Fla Traffic Ct R
  Fla Small Claims R
  R Reg Fla Bar

  11th Cir LR/FRCP/IOP

  ND Fla Local Rules
  MD Fla Local Rules
  SD Fla Local Rules

 Filing Instr/IOPs:
  Fla Sup Ct Filing Instr.
  Fla Sup Ct IOP
  First DCA Att'y Notice
  Second DCA Att'y Notice
  Second DCA IOP
  Third DCA Att'y Notice
  Fourth DCA Att'y Notice
  Fourth DCA IOP
  Fifth DCA Att'y Notice

  11th Cir LR/FRCP/IOP
  11th Cir Filing Instr
  11th Cir Civ App Stmt
  11th Cir Appearance

 Jury Instructions:
  11th Cir Civ Jury Instr
  11th Cir Crim Jury Instr



Any Remark Found On Abstract Appeal Should Be Attributed Solely To Its Author




Atom Feed

Subscribe through My Yahoo

Subscribe in NewsGator Online


Abstract Appeal

Blog Somebody!


Friday, August 31, 2007
Fifth District: Certiorari Meets A Bigger Cat
Earlier this month, I published the following words in connection with this decision from the Third District:
I have seen many cases substantially affected -- sometimes fatally affected -- by incredibly broad discovery requests that somehow give rise to equally incredible discovery orders. Historically, the appellate courts have been loathe to address such discovery matters through the extraordinary writ of certiorari.

But perhaps that reluctance is diminishing. Or perhaps patently opprobrious requests are becoming more common. Perhaps both.
Just weeks later, we have another discovery order being quashed as overly broad. This time the certiorari-issuing court is the Fifth District. The decision is available here.

Notably, the court begins the opinion by referring to the case as involving "cat out of the bag" matters. Florida courts have long used that phrase to capture the notion that once certain information is shared, it cannot be unlearned by the recipient. Often, though, the phrase is used in the context of material that the possessor has a legal right not to disclose, and which right cannot be restored if the disclosure is later determined to have been erroneously ordered. In this case, the Fifth District used the phrase in what appears to be the commonsensical context that information improperly disclosed cannot be withdrawn.

Perhaps the kitty is growing a bit.

Fifth District: Arbitration
It has often been observed that by participating in litigation, a party may waive its right to arbitration. If a party participates in arbitration, has the party necessarily waived its right to litigate? The answer was no in this decision from the Fifth District.

Fifth District: Drunkard Walks Into A Bar, Sues Bar...
Can a drunkard who was served too much by a bar sue the bar under this statute for injuries he later causes himself? Yes, said the Fifth District in this case.

Fifth District: Elections
Election law fans may be interested in this decision. The Fifth District affirmed a decision to fine a candidate for her husband's conduct, finding the evidence sufficient to support the notion the husband was the candidate's agent.

Fifth District: When Arbitration Goes Nuclear
Those following the recent explosion of arbitration cases may wish to check out this decision from the Fifth District.

The case involved a home purchaser who, 11 days after the sale, fell while walking in his yard. He sued the home's builder for negligently installing the home's sod. The warranty contract between the builder and purchaser contained a broad arbitration clause. The contract also waived the purchaser's right to seek damages or other relief beyond that set forth in the agreement.

The purchaser argued that the warranty excluded negligence claims and thus his claim was beyond the agreement's scope. A trial court refused to compel arbitration, but on appeal the district court reversed. The Fifth District held that, under the terms of the parties' agreement, the scope of the arbitration clause was an issue for the agreed-upon arbitrator.

As written, that decision is barely notable even if you are a true arbitration aficionado. Where the case gains a wider audience is through its dissent. To say the least, Judge Griffin is disappointed.

She is concerned that the majority decision has effectively approved a "scheme" that allows the "elimination of personal injury claims in any case where the victim has a contractual relationship with the tortfeasor."

She is concerned that the scheme, laid out in the documents at issue, is sufficiently nefarious that publishing the contractual language in a judicial opinion "seems somehow reprehensible - a little like publishing the blueprints for a nuclear device." (And you thought I introduced that word into this discussion with this post's title...)

She is concerned that the release and waiver language utilized in the scheme would not be enforced by any court in the context of personal injury claims, and that "[t]he solution is not to try" -- instead, try arbitration.

She is concerned that the scheme involves the careful selection of a hardly neutral decisionmaker. As she explains:
The final phase of this scheme is the most important. It is essential to be precise in the arbitration provision about exactly what arbitration is required. Specify who the arbitrator will be and what rules will apply. Find a for-profit arbitration service with a serious-sounding name suggesting expertise in whatever product you have produced, and a good acronym. What their actual qualifications are, or are not, will be none of the buyer's business, and the case law across the country suggests that unless the president of such arbitration service actually perjures himself, their role as arbitrator and their power based on the arbitration "agreement" to determine both technical and legal issues will usually be enforced. Because you refer many matters to this arbitration service and specify them by name in the printed form contract, they will know that you admire their decision making. If you cease to include them in your contracts or refer matters to them, they will understand that you no longer admire their decision making. This provides the economic incentive to rule in favor of the seller that is so woefully lacking in judicial proceedings. As a fail-safe device, include a provision that the seller, at his sole discretion, can select any other arbitration service he chooses.
Judge Griffin is concerned the arbitration provision being enforced was contained not in the construction contract but the warranty agreement. She would have held that the provision relied upon by the majority gave the arbitrator the power to decide only what is within the scope of warranty arbitration, and since the claim in the case was not a warranty claim, she would have affirmed the trial court's decision.

There is more. Judge Griffin also lamented what she perceives to be the overreaching of arbitration agreements:
What we have begun to see is that virtually all consumer transactions, no matter the size or type, now contain an arbitration clause. And with every reinforcing decision, these clauses become ever more brazenly loaded to the detriment of the consumer -- who gets to be the arbitrator; when, where, how much it costs; what claims are excluded; what damages are excluded; what statutory remedies are excluded; what discovery is allowed; what notice provisions are required; what shortened statutes of limitation apply; what prerequisites even to the right to arbitrate are thrown up -- not to mention the fairness or accuracy of the decision itself. The drafters have every incentive to load these arbitration clauses with such onerous provisions in favor of the seller because the worst that ever happens, if the consumer has the resources to go to court, is that the offending provisions are severed.
She is also concerned with how the agreement in that case required the parties to split equally the costs of arbitration, saying "This provision alone may discourage or even prevent the consumer from pursuing any claim, warranty or non-warranty."

Judge Griffin speaks from great experience. I am not going to attack or defend arbitration agreements here. I will note that they are neither a panacea nor a pandemic. Also, as an appellate specialist, I might be remiss if I did not point out that among the substantial rights abandoned by arbitrating parties is the right to full review in an appellate court. Arbitration agreements are, inherently, compromises.

Wednesday, August 29, 2007
Questions, questions: Minor Releases
Has this decision received the attention it deserves?

A father took his 14-year-old son to a motor sports facility to ride an all-terrain vehicle. Upon arrival, and as a condition of participation in the facilities' activities, the father executed a release and waiver of claims on the son's behalf. The son then rode an ATV. Attempting a jump, the son lost control of the vehicle, which landed on top of him. The son died from his injuries.

The son's estate then sued the sports facility, which defended based on the release executed on the son's behalf by his father. The trial court granted the facility a summary judgment. The estate appealed.

The Fourth District reversed. The district court held the release to be unenforceable as a matter of law -- the first time a Florida appellate court has reached such a decision.

The district court rejected the notion that the release, which was required by the facility before the minor could participate, could be supported by a parent's inherent authority to make decisions about a child's welfare without government interference. The court stated:
The decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child. The decision to allow a minor to participate in an activity is properly left to the parents or natural guardian. . . . The effect of the parent's decision in signing a pre-injury release impacts the minor's estate and the property rights personal to the minor. These rights cannot be waived by the parent absent a basis in common law or statute.
The court then determined no basis for a parental release exists in the common law or in a state statute.

The court's analysis appeared generally applicable to all situations involving releases made by parents on behalf of their children. This was a case about parental authority to execute releases, not a case about the particular activity at issue. Part of what makes the case interesting is that if parents cannot execute releases on their children's behalf, and if minors cannot be bound by their own signatures, then there is no practical, lawful means for minors to be bound by such releases. If a business (such as one with much inherent danger) requires such a release for participation in an activity, then minors will effectively be foreclosed from participating in that activity, unless the state legislature adopts a statute permitting parents to execute a valid release. Very interesting, and certainly something that businesses and parents should know.

Recognizing that the decision conflicted with a 1998 decision from another district, the Fourth District certified conflict. The court also certified the following to the Florida Supreme Court as a question of great public importance:
Expect a full ensemble of amici at the state supreme court. If the decision is approved, and presently in the Fourth District's territory unless the decision is quashed, parental releases on behalf of minors are invalid, and only the state legislature can authorize such agreements.

Tuesday, August 28, 2007
Third District: Causation
Picture an apartment complex. Its parking lot is surrounded by trees overgrown to the point they interfere with the ability of tenants and guests to enter and exit their vehicles. A tenant complains but the landlord does not correct the situation. A maintenance supervisor suggests that the tenant go ahead and cut back the trees. So he does, using a 12-foot ladder. Unfortunately, he falls, injuring himself. He then sues the landlord for his injuries.

A trial court granted the landlord a summary judgment. On appeal, a divided Third District issued this set of opinions.

The majority opinion concluded that the landlord's various arguments -- such as whether the landlord violated a statute intended to protect persons such as the tenant, and whether the landlord's failure to address the overgrowth proximately caused the tenant's injuries -- were issues of fact.

Judge Ramirez dissented. He argued that the tenant was not injured by any unsafe condition created by the landlord but by his own act of falling off the ladder. The tenant did not allege that the fall was directly caused by anything related to the landlord. The tenant instead argued that it was foreseeable the landlord's inaction would result in someone like him resorting to self-help and injuring himself in the process.

The discourse between the majority and dissenting opinions is a tad touchy.

Fourth District: Alimony
Family law fans may be interested in the Fourth District's decision in this case. Addressing a 15-year marriage where the husband's income was over $100,000 per month, and where the husband was ordered to pay $11,111 in child support and $23,000 in permanent alimony, monthly, the court explained:
Where a high standard of living is met during marriage, the purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce.

Fourth District: Declaratory Judgments
Insurance fans may wish to note this decision from the Fourth District. The court explained that an insurer interested in rescinding a policy may seek a declaratory judgment to determine whether the policy is indeed voidable.

Fourth District: Vehicular Homicide
Those interested in vehicular homicide, and what sort of evidence beyond speed alone qualifies as supporting a conviction, may wish to check out the Fourth District's decision in this case.

Monday, August 27, 2007
Third District: Truck Tales
The City of Coral Gables adopted an ordinance that prohibits parking trucks -- including pickup trucks -- at any time in any residential place, including a private driveway, or on any public street between 7 pm and 7 am. After a city resident received a citation for parking his pickup truck overnight on the street in front of his home (he had no garage), he sued the city. He argued the law was unconstitutional, but the trial court granted a summary judgment in the city's favor.

The Third District reversed. The court's divided opinion is available here.

The majority opinion casts the issue in terms of the city's authority to adopt the ordinance. Focusing on the breadth of the ordinance, particularly its application to wholly noncommercial vehicles, the court rejected the city's police powers as a valid source of such a regulation.

The majority opinion has some notable lines, including a query that asked, "Could Coral Gables forbid the parking of military-looking, right-angled vehicles, or any car which has not been washed and polished within the previous twenty-four hours?" Later, wending towards a conclusion, the majority states:
Absent any legitimate basis for the ordinances, what remains is that the City Parents disapprove of a perhaps unorthodox vehicle and the possibly diverse taste and lifestyle which may be reflected by its ownership. . . .

For a governmental decision to be based on such considerations is more than wrong; it is frightening. Perhaps Coral Gables can require that all its houses be made of ticky-tacky and that they all look just the same, but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld.
(footnotes and citations omitted). Some of you may recognize the pen of Judge Schwartz.

The case offers two additional opinions, and both are worthwhile reads.

Judge Cortiñas authored an interesting concurrence that focused more narrowly on the personal use at issue in the case.

Judge Rothenberg authored a lengthy dissent. She argued that ordinances enhancing or maintaining the aesthetic appeal of a community are a valid exercise of the community's police power.

It should be noted that the majority did not invalidate the ordinance on its face. The majority held the ordinance invalid only as applied to the plaintiff. That said, it seems likely the city will apply the decision's rationale to all noncommercial pickup trucks.

Third District: The Value of Time, and Credibility
Have you ever wondered what sort of pain and suffering damages might be appropriate for spending a day falsely imprisoned?

The jury in this case set the amount at $50,000 for two nights in a county jail.

The case is also interesting for its discussion of future economic damages, and specifically lost future earnings. The Third District took the unusual -- but at times appropriate -- step of determining that a person's credibility was so undermined that his testimony on future lost income did not constitute substantial competent evidence on the matter. The court also distinguished between loss of capacity to work and loss of desire to work, where the latter is based at least in part on something other than the defendant's conduct.

Third District: Amended Charges
When is an information amended so substantially that an amended charge will not relate back to the original charge? A divided Third District dealt with that issue in this case.

Third District: Landlord-Tenant Disputes
Those interested in landlord-tenant disputes may wish to check out the Third District's decision in this case. The county court heard a dispute it lacked subject matter jurisdiction to hear, and when the circuit court refused to reverse on jurisdictional grounds, the district court issued a writ of certiorari.

Third District: Settlement Agreements
Where the parties to a case reach a settlement, a trial court may be able to enforce the agreement's terms, but it cannot add to those terms. The Third District offered an example of this rule's application in this decision.

Third District: Photo Lineups
If you wish to learn more about the photographic lineups sometimes used in the identification of criminals, check out the Third District's decision in this case. The court granted a petition for writ of certiorari whereby the State of Florida sought to quash a trial court's order suppressing a lineup identification.

Third District: Forthright and Commendable
In this case, the Third District praised what it called a "forthright and highly commendable confession of error."

If you find yourself confessing error, it is sure nice to be credited for it.

Thursday, August 23, 2007
First District: Reading Your Motions
Perhaps dissatisfied with the high failure rate of post-decision motions made to Florida's appellate courts, folks sometimes ask if the judges even read them.

They read them.

Take, for instance, one particular case from the First District. The court originally issued this traditional per curiam affirmance. Then, on a motion for a written opinion, the court withdrew the earlier decision and issued this six-page written opinion -- still an affirmance. Then, on a motion for rehearing, the court issued this modified opinion, changing some language that might have affected an issue not yet ripe in the litigation.

That said, the court denied the appellant's efforts to change the ultimate decision, obtain a rehearing en banc, or have the matter certified to the state supreme court. But you cannot say the court did not read the motions filed...

And if you are wondering if it is inconsistent for a district court to grant a motion for a written opinion but then not certify the existence of a conflict, I suspect the district courts would tell you the answer is no.

First District: Juvenile Sandwich
This recently enacted statute provides that the state presents the first and last closing argument in a criminal case, and the statutory language applies even if the defendant offers no evidence other than his or her own testimony. Does that provision apply in juvenile delinquency cases?

No, said the First District in this case. A juvenile who has offered no evidence other than his or her own testimony can present the initial and a rebuttal closing argument -- the so-called "sandwich."

First District: Free Time
Suppose a prisoner is mistakenly released from prison prior to serving his full sentence. When the person is later returned to the prison system, should he receive credit towards his sentence for the time he was free? What if he was unaware of the error? Would it make a difference if he was aware of the error and said nothing to prison officials about it?

Historically, the general legal doctrine governing this area holds that the sentence of a mistakenly released prisoner continues to run while he is free unless he violates parole or is somehow at fault in the release.

At present, a Florida administrative rule provides that credit will not be applied if it is determined that the prisoner was aware of the error and made no attempt to notify the releasing authority.

In this case, though, that rule was not in effect, and the First District considered whether credit should be given to a prisoner for the time he was mistakenly at liberty when he knew of the error and said nothing.

A divided court, considering the case on second-tier certiorari, held the lower court did not depart from clearly established principles of law when it held the prisoner should not receive credit for his time at liberty. The majority found no Florida precedent speaking to this particular issue.

Judge Benton authored an interesting dissent.

First District: Administrative Challenges
Administrative law fans may be interested in this decision, where the First District granted a petition for writ of mandamus, essentially ordering an agency to proceed with a formal administrative hearing on a petition presenting both a rule challenge and factual disputes regarding an agency determination.

First District: Section 57.105 Fees
Florida's appellate courts continue to clarify that the fee-shifting sanction of section 57.105(1) is based on a standard of frivolousness. The First District did so in this decision, which awarded an appellee fees against an appellant.

First District: Insurance Forum Selection Clauses
Those interested in forum selection clauses, or insurance policy terms, or both, may wish to check out the First District's decision in this case.

The case involved an insurance dispute. The insured, a commercial entity, sued the insurer for unpaid defense costs. The policy contained a mandatory forum selection clause that required the litigation to be brought in New York. The trial court dismissed the Florida suit based on the clause, and the insured appealed.

The district court affirmed. The court discussed the standards for invalidating forum selection clauses, which were not met, and further relied on the administrative approval given to the policy language before the insurer could issue the policy.

First District: Mootness
When the losing party in an action performs the obligations required by the judgment, and then appeals, is the appeal moot? It can be, depending on the circumstances.

In this case, the First District addressed a workers' compensation proceeding where the claimant accepted settlement funds from the employer/carrier and then appealed. The district court dismissed the appeal.

First District: Law of the Case
Over a strong dissent, this decision from the First District takes the infrequent route of determining that a prior appellate decision in the same case was decided in error, resulting in a manifest injustice.

First District: Written Opinion
Here we have another example of a per curiam affirmance by the First District being un-PCA'd.

First District: Impairment of Contracts and Corporate "Privileges"
In this case, the First District affirmed a trial court's decision that a special law unconstitutionally impaired the obligations of a contract between a hospital and its medical staff, in violation of both Article I, section 10 (impairment of contracts) and Article III, section 11(a)(12) (special law granting corporate privilege).

Both provisions are rarely addressed in appellate opinions, making this decision a notable one.

First District: Indigent Transcripts
At the end of an appeal, and upon request, a public defender must return to the defendant all transcripts from the proceeding. But is a public defender obliged to provide copies of transcripts to the defendant while the appeal is still underway? No, said the First District in this case.

Tuesday, August 21, 2007
Second District: Attorneys Given Class, and Nonfinal Appeals
Some decisions necessarily raise as many questions as they answer. Or more. This decision is one of them.

The Second District affirmed a trial court order certifying not only a class of plaintiffs who, as attorneys, paid occupational license fees to city and county governments in the last four years, but also a class of defendants who, as municipal governments, charged and collected such fees. The case challenges the propriety of those fees.

The plaintiffs in the case are Tampa attorneys. The lone defendant is the City of Tampa. To the extent the court affirmed certification of a plaintiff class having claims against the City of Tampa, the decision is hardly remarkable. But that is merely a small portion of the decision. The remainder is most remarkable.

The particular bilateral certification approved here creates a situation where persons who have claims against defendants who are not parties in the case are absent plaintiff class members, and municipalities who are not defendants are nonetheless defendant class members subject to claims by those absent plaintiff class members. Thus, under this scheme, persons who are not actual defendants in the litigation are being sued only by persons who are not actual plaintiffs.

Not surprisingly, the City of Tampa expressed concern about being involuntarily forced to represent other municipalities.

As mentioned above, the decision raises many questions. It seems awkward for persons like me, who may well be class members, to discuss them. So we watch.

I will, however, note one aspect of the decision that pertains to nonfinal appeals. The court explained that while the defendant could not directly appeal an order granting a motion in limine to exclude evidence, the court could review that order to the extent it was subsumed within the certification order that the court had interlocutory jurisdiction to review. The certification order on appeal resulted from an evidentiary hearing, and the order in limine applied to that hearing.

Monday, August 20, 2007
Second District: Workers' Compensation Elections
This decision might offer some lessons about how employers can defend or settle litigation where a person claims to be an employee entitled to workers' compensation and a nonemployee entitled to pursue a tort suit. The Second District reversed a summary judgment entered in favor of a company in a tort suit after the plaintiff settled his workers' compensation claim with the company.

Second District: Malpractice and Limitations
In this decision, the Second District reversed a summary judgment granted to a set of attorneys on a former client's malpractice claim. The plaintiff asserted negligence in the preparation and approval of settlement documents used years earlier to settle a claim involving substantial injuries to the plaintiff's minor child.

The decision may be of interest to anyone who prepares such materials.

The limitations aspects of the decision may also be of interest to anyone who might be affected by a legal malpractice claim. While the procedural history of this particular case is rather unusual, the court's language in the causation discussion -- with respect to how the child's guardian ad litem would have reacted to the settlement had it been presented as the plaintiff wished it to be -- is worth attention.

Second District: Dissolution and Bankrutpcy
This decision from the Second District highlights some recent changes in federal bankruptcy law with respect to the dischargeability of domestic support obligations.

The court ordered stricken from a final dissolution judgment language stating that a particular debt could not be discharged in bankruptcy -- not because the language was erroneous, but because, either way, it should not have been included in the judgment.

Second District: Virtual Adoption
If you are not familiar with the concept of virtual adoption, which allows a person to claim inheritance rights as if a formal adoption had occurred, you might be interested in the Second District's decision in this case.

Second District: Preservation of Error
For an example of how harsh the preservation doctrine can be, check out this decision from the Second District.

Second District: Hey, Standard Jury Instructions (Criminal) Committee
In the case discussed below in the "Drug Deal" post, the Second District held in favor of a prescription defense to certain drug charges. In this decision from Wednesday, the same court suggested that the Standard Jury Instructions Committee for criminal instructions draft a standard prescription defense instruction.

Second District: Statute of Frauds
Fans of the statute of frauds will really enjoy reading this decision from the Second District.

Second District: Panel Procedure
This decision offers an interesting discussion on limitations tolling in the context of minors and sexual abuse. The decision caught my eye, though, for how the Second District addressed the panel assignment following a remand from the state supreme court. Two of the three original panel members were on the remand panel, and the court noted that the third member of the present panel had been substituted for the (now retired) third member of the original panel.

Friday, August 17, 2007
Talkin' Class
For those wondering if or when I will get to that other class action decision from last week, it will be soon...

Second District: Hearing Notice
The appellee in this case served a nonparty -- an independent medical examiner -- with two days' notice of a hearing on sanctioning the physician.

The Second District reversed the sanctions order that resulted from the hearing. In the court's words, "two working days' notice to obtain counsel and prepare for the hearing" was insufficient under rule 1.090(d).

Second District: Drug Deal
When common sense clashes with the state's interpretation of the criminal laws, common sense often prevails.

In this case, the Second District tackled section 893.135(1)(c) which, on its face, prohibits drug trafficking and makes no exception for those with medical prescriptions to justify the possession. "Trafficking" is a bit of a misnomer -- the label applies wherever a sufficient quantity is possessed.

The defendant in the case was convicted of trafficking based on his possession of 58 tablets of Vicodin. The state's interpretation of the law would consider someone possessing only eight Vicodin tablets, pursuant to a prescription -- one day's worth for some treatments -- to be a drug trafficker subject to a mandatory minimum prison term of three years and a mandatory fine of $50,000. A patient validly prescribed 60 Vicodin tablets would, upon picking up the prescription, face a minimum mandatory prison term of 25 years and a fine of $500,000.

Apparently, the state would have the public rely on prosecutorial wisdom to use the law to prosecute only those who, well, should be prosecuted.

The Second District disagreed.

Employing a number of statutory construction principles and addressing the larger picture of Florida's drug laws, the court rejected the state's interpretation and held that a valid prescription can be a defense to a trafficking charge under section 893.135(1)(c).

Last week, a local paper ran a story about this decision with the headline "'Absurd' case? Prosecutors think not." The story stated that the Second District called the state's case against the defendant "absurd" and "ridiculous." The next day, the paper ran a very small correction, explaining that the court used those words to describe the state's arguments on appeal.

There is a distinction, and the correction was in some senses warranted, but unless there is a dispute that the defendant did not have a valid prescription (and apparently a doctor and a pharmacist testified at trial that he did), the court's characterizations would seem to cover both the state's legal opinion on the governing law and the state's case in this particular prosecution.

Second District: Numbers Count
In the midst of this interesting decision, which reversed a trial court's determination the appellee's trial counsel was ineffective, the Second District turned to Jules Verne to describe the astronomical quantity known as a quintillion.

The next time I need to describe a quintillion, I can simply cite this case. Sort of how I like citing Atlantic Coast Line R.R. Co. v. Mack, 57 So. 2d 447, 450 (Fla. 1952), for the notion, "This principle is correct and fundamental and no citation of authorities is necessary to support it."

Second District: Litigation Immunity
Does litigation immunity -- the concept that keeps you from being (successfully) sued for something you do or say during a judicial proceeding -- apply to an arbitration proceeding?

Yes, said the Second District in this decision.

Second District: Separation of Powers
If the state legislature adopts a tolling provision that extends the time in which a petition for writ of certiorari relating an administrative decision must be filed, has the Legislature infringed on the state judiciary's rule-making authority? No, said the Second District in this case.

Second District: Plain Crash
Expanding on its original opinion, the Second District held, once again, that a driver whose driving causes two other vehicles to crash is "involved in a crash" for purposes of the statute prohibiting drivers involved in a fatal crash from leaving the scene.

The opinion on rehearing made clear this result follows from the plain meaning of the governing statute. The decision is available here.

Judge Altenbernd: Sovereign Practices
Judge Altenbernd's concurrence in this case questioned "the sovereign immunity ramifications" of an arrangement between private health care providers and a state university's board of trustees. He stated, "If the University of Florida is essentially selling its sovereign immunity for profit to physicians and hospitals that do not otherwise possess sovereign immunity, this is a practice that should be carefully examined."

The Honorable Charles Harris, late of the Fifth District, has been spotted spending time with the Second District.

Second District: Forum Selection Clauses
For an examination of the differences between mandatory and permissive forum selection clauses, check out this decision from the Second District.

Second District: When A Win Is Still A Loss
This decision from the Second District offers an interesting application of how a law enforcement officer must be in the execution of a lawful duty to support a conviction of resisting an officer with violence or battery on a law enforcement officer.

The point is completely overshadowed, though, by the horrific facts of the case. They are worth a quick read.

Thursday, August 16, 2007
Second District: Great Expectations
I enjoyed the storytelling aspect of the Second District's decision in this case. Here's a sample:
In June 2002, Thomas stole $95,000 from Bernard Johnson, a drug dealer in St. Petersburg. It was an inside job planned with one of Johnson's girlfriends. The girlfriend did not receive her share, however, and she advised Johnson that Thomas was the culprit. As might be expected, Johnson refrained from calling the police, opting instead to put out a $25,000 hit on Thomas.

Drug Tolerance
The concurrence in this case mentions that the state relied on creatine use as one of the bases to terminate a mother's parental rights.

Creatine? Creatine? The stuff our bodies produce naturally and which is available as a supplement in multiple forms at your local vitamin store?


The Honorable Warren Cobb, late of the Fifth District, has been spotted spending time with the Second District.

Second District: Appellate Jurisdiction
Is a motion for rehearing an authorized motion, sufficient to toll the time to appeal, where it is directed at a post-decretal order?

Yes, if the underlying order finally resolved a post-decretal matter, as the Second District explained in this decision.

Judge Altenbernd: Hey, Legislature!
If your job description includes the ability to prompt changes in Florida's statutory law or judicial rules, consider Judge Altenbernd's suggestion in his concurrence from this case:
I fully concur in Judge Wallace's opinion for the court. I write only to suggest that there is a need for statutes, rules, and forms to facilitate the process of returning personal property to defendants in criminal cases once the cases have been resolved. As things stand, the courts resolve these issues using their "inherent authority." See Stevens v. State, 929 So. 2d 1197, 1198 (Fla. 2d DCA 2006). This process is slow, expensive, and somewhat haphazard.

Second District: Staying Home
The divorced appellant in this case requested but was refused permission to move her two children with her to Texas. On appeal, for the first time, she asserted that the former Florida statute governing parental relocation is unconstitutional.

The Second District observed that facial constitutional challenges can be raised for the first time on appeal, so the court considered the facial constitutionality of former section 61.13(2)(d) with respect to the rights of privacy, travel, and equal protection.

The court rejected all three challenges.

Second District: Amendment 7
Those interested in what is still being called "Amendment 7" -- the constitutional amendment that permits actual, prospective, or previous patients of a doctor to obtain medical records relating to that doctor's adverse medical incidents -- should check out the Second District's decision in this case. Among other things, the court held that relevancy and burdensomeness are themselves irrelevant to a requestor's entitlement to such records.

Judge Canady: Sentencing and Due Process
If you are interested in whether and when a trial court imposing a sentence may rely on conduct for which the defendant has been found not guilty, check out Judge Canady's much developed thoughts in his concurrence in this case.

Second District: Criminal Stays
Where a district court of appeal has denied a motion to stay a mandate following an affirmance of a defendant's judgment and sentence, can a circuit court grant the defendant a further stay while the defendant pursues discretionary review by the state supreme court?

No, explained the Second District in this decision.

Second District: Bankrupt Insureds
Those interested in the interplay between an insurer's responsibility for an insured's liabilities and the insured's discharge in bankruptcy should check out the Second District's decision in this case.

Third District: Riverfront Care
This 41-page opinion reflects a lot of time and attention paid by the Third District to the nuances of Miami's riverfront land use regulation. The opinion's final words are particularly noteworthy for their concern over development along such a limited resource as the Miami River:
We further note that these "small scale" amendments, when viewed together as a whole, are changing the character of the Miami River waterfront without proper long range planning or input from appropriate agencies, departments, and citizen groups. Because the Miami River is such an important asset to the City, County, and State, such piecemeal, haphazard changes are not only ill-advised, they are contrary to the goals and objectives of those who worked together, debated, and determined how the Miami River waterfront should be developed. If the City’s vision for the Miami River has changed, then that change should be clearly reflected in its Comprehensive Plan to provide industries and land owners along the Miami River with fair notice.
Land use fans and locals might find the entire opinion of much interest.

Monday, August 13, 2007
Third District: You Can't Do That
The opening words of that Beatles tune might go well with the Third District's decision in this case. Released Wednesday, it already feels very old. It raced its way around the state bar, and then nationally, within hours.

This is the sort of case I immediately had much to say about and lots of reasons to say not much. At this point, though, the sizzle has subsided, and anything I say here is less likely to be quoted elsewhere.

So let's look at the decision. The underlying case was a 1998 suit by about a half-dozen plaintiffs who claimed the City of Miami improperly imposed a special assessment for fire rescue services. The case was pled as a class action and sought relief on behalf of those who paid the fee. The plaintiffs pursued class certification, but the trial court deferred ruling on the matter.

Approximately six years after the suit began, the case was set for trial. Partial summary judgments had already been entered that found portions of the challenged laws to be unconstitutional, and trial was to concern entitlement to a refund. On the eve of trial, the plaintiffs and the city negotiated a settlement.

Apparently treating the matter as a class action, the plaintiffs originally demanded as much as $75 million. They later demanded $35 million. The case settled for $7 million, to be paid in two parts, and subject to approval by the City Commission. The agreement was made in May 2004. The matter was not presented to the City Commission until after October 2004.

When the City Commission ultimately approved the settlement and paid the first installment of $3.5 million, at least some city commissioners believed they had settled the class action. But they had not. They had approved a settlement with only the plaintiffs, but, in the absence of a class action, the claims of the proposed class members would expire in October 2004. In short, the plaintiffs had settled for $7 million, and the proposed class received nothing. The settlement was subject to a confidentiality agreement, which could have prevented others from learning the agreement's terms.

Others came to appreciate this situation, and several persons moved to intervene as plaintiffs and set aside the settlement. In the proceedings that followed, key officials who negotiated on the city's behalf admitted that allowing the class claims to expire was part of the settlement. The plaintiffs' attorneys, Adorno & Yoss, denied having considered the expiration of the limitations period in connection with the settlement.

The trial court held a hearing on the efforts to vacate the settlement and ruled in favor of the intervenors. The trial court found there was an "implied class action" and that judicial approval of the settlement was required. The trial court further determined that the plaintiffs and their counsel colluded and breached their fiduciary duties to the uncertified class -- what the law refers to as the "putative" class. The plaintiffs and Adorno & Yoss were ordered to disgorge the $3.5 million first installment. Resurrecting the class claims, the trial court also certified the class and named the intervenors class representatives.

The plaintiffs and Adorno & Yoss then appealed. They argued no breach of fiduciary duty occurred because no class had been certified at the time of the settlement.

The district court was not receptive to that argument.

The district court held that "at the very least, there was an implied fiduciary relationship" between the plaintiffs, Adorno & Yoss, and the putative class. The court further held that the settlement, which allowed class members and the firm to recover millions of dollars, prejudiced the class.

In reaching those holdings, the court spoke in strong language about the events leading to the settlement. The court stated:
It defies any bounds of ethical decency to view class counsel's actions as anything but a flagrant breach of fiduciary duty.

* * *

The amount the original plaintiffs settled upon bears no relation to the extent of any damages they paid in the form of assessments during prior years. The original plaintiffs admitted that they received a windfall from the settlement. The original plaintiffs, together with Adorno & Yoss, then conspired to keep silent about the settlement terms, to the detriment of the other taxpayers.

Adorno & Yoss' conduct further solidified the compromise of the class claims. The firm oversaw the settlement of $7 million which the parties agree could have otherwise resulted in a refund of $24 million to $70 million for the class. Additionally, Adorno & Yoss failed to move the class refund claims along, allowing the City to raise statute of limitations issues that were not otherwise available prior to the inequitable settlement. The language of the settlement actually called for a standstill of the litigation. Furthermore, at no time did Adorno & Yoss exercise candor before the trial court to explain the nature of the settlement. This reprehensible conduct alone is more than sufficient to establish a breach of fiduciary duty.
Judge Cortiñas authored a concurrence. To the extent the court's opinion impugned, the concurrence raged. Judge Cortiñas explained that the original plaintiffs' claims totaled less than $84,000 and that Adorno & Yoss was to receive $2 million of the $7 million settlement. Addressing whether the firm improperly presented the settlement as if it was a class settlement, though all the money went only to the firm and the named plaintiffs, and specifically referencing a May 2004 statement attorney Hank Adorno made to the trial judge saying the city would consider the settlement no earlier than October 2004, Judge Cortiñas wrote:
The trial judge was not advised that this was an individual settlement or given the terms of the settlement. Adorno later testified that the settling parties did not discuss the statute of limitations and that the $7 million settlement amount was "pulled out of thin air." However, in order to find Adorno's testimony regarding the statute of limitations credible, one would have to believe that his reference to October 2004 was coincidental, and that, in the real world, $84,000 in claims are settled for $7 million with $2 million going to Adorno's law firm. Even if one were so gullibly inclined, it is difficult to ignore the fact that the settling parties also entered into a non-disclosure agreement, which would keep the facts surrounding their scheme private, despite Adorno's testimony that "the City, under normal terms, entering into a non-disclosure agreement would probably violate . . . the public records law, sunshine law." Apparently, these were not normal circumstances. Not coincidentally, it was not until November 18, 2004, after the supposed expiration of the statute of limitations, that the City Commission was presented with the settlement proposal, which they approved.

In a transparent attempt to legitimize their reprehensible conduct, appellants contend that it is not uncommon for class members of an uncertified class to settle their claims without prejudicing the claims of unnamed class members. They also maintain that they fully intended to pursue the claims of the unnamed class members despite the fact they never did so and, instead, vigorously opposed their intervention in this lawsuit. Moreover, appellants' position is entirely belied by the testimony of Charles Mays, an attorney for the City of Miami, who testified that this settlement was surreptitiously conditioned on the supposed expiration of the statute of limitations and the concomitant extinguishment of the unnamed class members' claims.
Judge Cortiñas then laid down the proverbial hammer:
Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients' interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine.
The decision quickly made news. The Miami Herald ran this story entitled, "Judges: Miami fire-fee attorney acted reprehensibly." Miami's Daily Business Review ran this similarly-titled story, which Law.com circulated across the Internet, and which opened with the words, "The 3rd District Court of Appeal took Coral Gables, Fla.-based Adorno & Yoss to the woodshed Wednesday . . . ." The latter story quotes an Adorno & Yoss representative as saying, "We believe that we properly represented both the individual plaintiffs and the class as a whole."

These events are, ultimately, unfortunate. It appears the attorneys involved believe they acted properly, yet the trial and appellate court emphatically disagreed. I suspect the firm will attempt to seek further relief either from the district court or the state supreme court, particularly since the merits of the case are so closely intertwined with some significant ethical and attorney-client claims that relate to the conduct involved.

Those involved in class action litigation also have much to digest from this case. The case does not hold that plaintiffs in putative class actions cannot settle only their personal claims, but the case does raise questions about whether seeking judicial approval might be appropriate in such instances. After all, exactly when does an "implied class action" exist?

Also, what if the plaintiffs chose to settle only as individuals after the limitations period has expired on the underlying claims? At that point, can a case ever be settled only on an individual basis? If the limitations period on the class's claims is tolled while a putative class action is pending, then is that tolling of the sort that would extend the limitations period by a like amount of time, or is it the sort of tolling that simply keeps the period from expiring while the action is pending, leaving the class with stale claims if, post-expiration, the certification efforts cease or fail? (For more on the different theories of tolling, check out this post of mine from February 2006.)

Apart from the conduct issues, I believe a few developments are likely to result from this case.

I suspect parties and trial judges will more quickly wish to resolve certification issues. It is notable that rule 1.220(d)(1) instructs trial judges to make certification decisions "[a]s soon as practicable" after a class is first alleged. Had that directive been followed in this case, the fiduciary issues may never have arisen.

Also, if plaintiffs and their attorneys may be personally liable to members of the classes they propose, then addressing certification before the limitations period would ordinarily expire seems wise. Perhaps class claims will not even be pled where such deadlines are close.

I suspect there will at least be proposals to modify the rules of civil procedure and the limitations statutes in the context of putative class actions, if only to clarify how the existing law applies.

Finally, I suspect there will be efforts to develop the notion that plaintiffs and their attorneys owe duties to those within the classes they plead. Some will see such efforts as a bane and an attempt to discourage class claims. Others will see them as a new way to champion the interests of the masses. And lest anyone think this is strictly a plaintiff-based issue, consider that defendants too may be caught in the net, perhaps alleged to have conspired with intentional efforts to sacrifice the putative class to pacify the plaintiffs.

In the end, one thing is clear to me: class action practice is a specialty. Tread carefully.

Friday, August 10, 2007
Third District: Comfortable With Its Role
What is the role of the appellate court? In this decision, the Third District expressed what might be called a judicially conservative point of view. Rejecting a view espoused by the Department of Children and Families, the court stated:
If the Legislature wishes as a matter of public policy to qualify a particular child rearing risk as a ground for adjudication, we are confident that it is able to do so. We appreciate the Department's entreaty to us. However, it is our duty to say what the law is, and not what it should be.

Third District: Trial By Phone
This decision reminds us that, in Florida, a court may take testimony through "communication equipment," such as a telephone, only with the consent of all parties.

The Third District found error where such testimony was taken over objection. The court also found the error harmless.

Third District: Administrative Discipline
This decision from the Third District stands for the unremarkable proposition that state agencies should not discipline people for failing to do something that could not have been done. The decision's concluding language is noteworthy:
In sum, given that Dr. Rupp was sanctioned for a failure to take actions which were admittedly impossible to take, we reverse the Department of Health, Board of Medicine’s Final Order and remand the case for entry of judgment in Dr. Rupp's favor, thereby disposing of this matter in its entirety and avoiding another hearing. We further comment that this case has been a shocking waste of everyone's resources. Dr. Rupp is a physician with an unblemished record providing services to the poor, who took the step of hiring a firm to keep her licenses current, and yet was disciplined for not doing the impossible. The Florida Department of Health, Board of Medicine, should be encouraging other physicians to do what Dr. Rupp has been doing. The Department, after all, has the traditional mandate of providing primary medical care for the poor. It should exercise better judgment in deciding whether to file such a frivolous case and instead focus its energies on tracking down and disciplining those physicians who truly deserve punishment.

Corporate Names: Don't Do That!
I will confess: In reading this single paragraph opinion, I looked for a second footnote not once, not twice, not thrice, but four times.

Force of habit.

Third District: Insurance Settlements
Those who litigate insurance bad faith actions may be interested in the following concluding language from this decision by the Third District:
We recognize that the practical effect of our ruling is that, because the plaintiff has received the policy limits she "demanded" (although obviously with the hope that they would not in fact be forthcoming), no bad faith action for amounts beyond the $10,000 may be maintained. We are not uncomfortable with this result. See Berges v. Infinity Ins. Co., 896 So. 2d 665, 685 (Fla. 2004)(Wells, J., dissenting).

Third District: Confrontation Clause
In this decision, the Third District followed the lead of other Florida courts and held that the federal and state Confrontation Clauses are not applicable in civil proceedings, including Jimmy Ryce civil commitment actions.

Third District: Discovery and Certiorari
I have seen many cases substantially affected -- sometimes fatally affected -- by incredibly broad discovery requests that somehow give rise to equally incredible discovery orders. Historically, the appellate courts have been loathe to address such discovery matters through the extraordinary writ of certiorari.

But perhaps that reluctance is diminishing. Or perhaps patently opprobrious requests are becoming more common. Perhaps both.

This decision from the Third District is yet another recent example of the district courts' willingness to quash overbroad discovery orders through certiorari.

Third District: Personal Jurisdiction
Hey, personal jurisdiction fans. Is injury to a Florida plaintiff caused by a tortious act committed outside the state sufficient to invoke the Florida's long-arm jurisdiction under the provision of the long-arm statute speaking to "[c]ommitting a tortious act within this state"?

No, said the Third District in this decision.

Third District: Indigency
If you are in prison, and indigent, then this decision will bring you little joy. The Third District held that while indigent inmates are entitled to copies of the state's prosecutorial files to prepare post-conviction relief motions, such copies must be purchased.

Third District: Search and Seizure
This decision is an easy read, if you are a fan of search and seizure cases.

Police receive a tip that a jet ski and trailer are being sold along a roadside, which violates local law. An officer approaches the scene, and the defendant begins to leave on a bicycle. The officer orders the defendant to stop, learns his name, calls in the VIN and description of the jet ski, and ultimately arrests the defendant after confirming the equipment was recently stolen. The defendant moves to suppress the evidence based on a supposedly illegal stop.

A trial court granted that motion, but the Third District reversed. The district court first held that the stop was reasonable under the circumstances. The court further held that the defendant had no interest in the stolen goods and therefore lacked standing to complain about their search and seizure. The court mentioned that such standing defects can be raised on appeal for the first time.

Third District: Presuit Discovery
Presuit discovery in connection with medical malpractice claims is important, but dismissing claims for noncompliance requires a showing of prejudice. Check out this decision from the Third District for more.

Third District: Fiduciary Duties and Agency
Have you ever considered how loose the legal standards sound for ascribing someone with the duties of a fiduciary? How about the standards for being named an agent?

This decision from the Third District offers some discussion on how each status is not as easily proved as it is alleged.

Third District: Defamation
To commit an actionable defamation, you must publish defamatory statements to a third person. As the Third District reminds us in this decision, publication among a corporation's employees does not constitute publication to a third person.

Third District: Elections
Elections law fans are surely interested in this decision from the Third District. The court explained why a voter has standing to challenge the propriety of a ballot's language.

The court also reversed a decision enjoining the count of a November 2006 straw ballot. Unlike the trial court, the district court held the ballot language sufficiently informed voters that the vote was not a binding one.

The straw ballot question asked voters if they would support a particular petition.

Third District: Breach of Contract
Is it a material breach of an agreement to be a few days late with a payment where the agreement does not make time of the essence? The answer was no in this decision from the Third District.

Third District: Trade Secrets
As the Third District shows us in this case, a writ of certiorari may be used to quash a trial court order compelling production of alleged trade secrets if the trial court never conducted an in-camera review of the allegedly secret materials or did not make detailed findings of fact.

Third District: Transcripts
Hey, appellate fans:

When, in a civil case, will an appellate court reverse for lack of a transcript?

This decision from the Third District reversed a trial court decision that rejected a special master's recommended findings. The trial court lacked a transcript of the proceedings before the special master.

Third District: FNC
Fans of the doctrine of forum non coveniens -- which allows Florida trial courts to dismiss cases on grounds they should be brought in a more "convenient" forum, i.e., another state or country -- will be interested in this decision from the Third District.

The court explained that there is nothing convenient about an alternative forum that does not recognize the actions and relief a plaintiff seeks to pursue.

Third District: Certiorari
If you keep a list of orders certiorari may be used to quash, the list might include orders excluding an attorney from a medical examination and orders precluding a medical examination from being recorded. This decision from the Third District supports both notions.

Third District: Second-Tier Certiorari
This decision from the Third District explains how the seriousness of an error may be considered when a court decides whether to quash an order through second-tier certiorari.

Third District: Arbitration
For an example of how an arbitration provision in a principal agreement can be applied to related agreements, even where the related agreements contain venue provisions, check out this decision from the Third District.

Whole Lotta Blogging...
... today on our friends to the south. I will ultimately end with a discussion of the most notable opinion since, well, Funny Cide...

Thursday, August 09, 2007
Soon and Very Soon
Yes, I'm going to talk about that decision from yesterday...

Wednesday, August 08, 2007
Fourth District: Attorney's Fees and RUPA
Commercial litigation attorneys may be interested in this decision from the Fourth District. The court explored whether long-standing judicial precedent permitting fee-shifting in disputes among partners was overruled with Florida's adoption of the Revised Uniform Partnership Act.

Others may be interested in the case simply because it tells a tale of two partners who received, and later fought about, over $200 million in contingency-based attorney's fees from the State of Florida's much discussed civil suit against the major tobacco companies.

Fourth District: Agency and Apparent Authority
For an interesting discussion of apparent authority in the context of settlements, check out this decision from the Fourth District.

Fourth District: Prohibition
Remember this recent decision from the Fifth District? It held that prohibition is not available to address a trial court's ruling that a statute of limitations had not expired.

This decision from the Fourth District states that prohibition is available to address a limitations ruling.

The distinction? The Fourth District's case involved a criminal statute of limitations, and Florida courts consider criminal prosecutions in violation of a statute of limitations to present a jurisdictional component, while civil claims with the equivalent problem do not.

Fourth District: Attorney Disqualification
For purposes of disqualifying your former attorney from being adverse to you, what does it mean for two matters to be substantially related? The Fourth District discusses that issue in this decision.

Fourth District: Nonfinal Appeals
Here, the Fourth District reminds us that non-final orders in termination and dependency proceedings are not immediately appealable.

Monday, August 06, 2007
Fourth District: The (Non-Final) Appeal of Money
Is a nonfinal order to pay someone a particular sum immediately appealable under rule 9.130 as an order that determines "the right to immediate possession of property"?

In this decision, a divided Fourth District held that it had such jurisdiction over a nonfinal order immediately awarding attorney's fees, to be disbursed from a certain trust's assets.

Judge Farmer authored a strong dissent. He advocated that the rule at issue should be narrowly construed, applying basically to physical property, real or personal.

Whether orders requiring the immediate payment of money should be immediately appealable is a hefty topic that easily expands to a number of areas.

As a policy matter, it certainly seems sound that a nonfinal order requiring an immediate divestiture of property -- whether a lamp, a home, $1000, or $1 million -- would be appealable. Money in particular is susceptible to being consumed, whether prudently or wastefully, and if it must be paid with no chance to bond or deposit the funds with the court while an appeal of right is taken, the payor is faced with a substantial risk of never regaining the funds if the payment order is reversed much later in the litigation.

One might also wonder whether orders requiring the immediate payment of money can be considered injunctions, which are appealable nonfinal orders under rule 9.130. If so, then the rule regarding possession of property might be limited to orders that speak to possessory rights, which need not involve ordering anyone to perform any act.

Fourth District: It's BUI Time Somewhere
If you are the rare person interested in both boating and search and seizure cases, then this boating-under-the-influence decision from the Fourth District is right up your channel.

Fourth District: Administrative Procedures
Administrative law fans may wish to note that in this case, the Fourth District joined two of its sister districts in holding that excusable neglect is not available in proceedings under chapter 120. In the case, a veterinarian failed to make a timely request for hearing following a disciplinary sanction.

Friday, August 03, 2007
Fourth District: Additurs
A jury awards a plaintiff future medical expenses but nothing for future pain and suffering. Is an additur required for future pain and suffering? Yes, said the Fourth District under the circumstances of this case.

Fourth District: Vagueness
This case involved a challenge to the 2003 version of Florida's Labor Pool Act. The law limits how much a labor pool employer can charge a worker for transportation to or from the job site. The law also imposes a per-violation fine of $1000 or actual damages, whichever is greater. Inevitably, $1000 will be greater.

A worker arguing he was overcharged 50 cents for each of about 500 trips won $177,000 in statutory damages from a labor pool employer, who argued the statute was unconstitutionally vague. The Fourth District agreed.

Fourth District: Notice
A defendant defaults on liability. A damages trial is scheduled but the trial court does not send the notice of the trial to the defendant. However, the plaintiffs send the trial notice to the defendant. The defendant does not appear for the trial, which is held, and later challenges he was entitled to notice directly from the court. The trial court agrees.

On appeal, though, a divided Fourth District reversed. The court held that notice from the plaintiffs satisfied due process and the applicable rule calling for notice. Judge Gunther dissented.

Fourth District: Discovery and Certiorari
In this case, the Fourth District granted a petition for writ of certiorari, quashing a discovery order that improperly required the disclosure of irrelevant, private, and attorney-client privileged materials.

Fourth District: Chapter 120
Fans of the Administrative Procedure Act may be interested in this decision. The Fourth District held that a school board's termination of a school's charter is an action subject to chapter 120, but school board meetings are excepted from the APA's full notice and agenda requirements. If a school board gives 14-days' notice and at a hearing finds good cause for termination, a charter can be terminated with just twenty-four hours' notice.

Fourth District: Insurance Attorney's Fees
In this case, an insured sought a declaration regarding the insurer's duty to defend and the duty to provide coverage. The trial court found a duty to defend -- an issue the insurer did not contest -- but no coverage obligation. The Fourth District affirmed a decision that the duty to defend determination did not give the insured a right to prevailing party attorney's fees, since the insurer had been providing a defense and did not contest the duty to defend.

Fourth District: Rule 3.170(l)
If you have an interest in rule 3.170(l), which allows defendants an opportunity to withdraw pleas through conflict-free counsel, then you will be interested in Judge Warner's concurrence in this case.

Thursday, August 02, 2007
Fourth District: Standard of Care
Can a claim for medical malpractice be made without testimony that the defendant breached the relevant standard of care? This case addressed a summary judgment entered in the absence of such testimony. A divided Fourth District reversed, holding that a doctor's testimony never expressly mentioning a standard of care was sufficient to preclude summary judgment.

Fourth District: Legal Malpractice
Attorneys are fiduciaries for their clients. If an attorney discloses confidential information learned during the course of a representation, and the attorney discloses the information after the representation concludes, causing the former client damage, can the former client bring a malpractice claim?

Yes, said the Fourth District in this decision.

Equally interesting, the court held that, to state a cause of action for such malpractice, a plaintiff must allege the breach of duty with particularity. That includes the confidential information. The court held that the complaint in the case failed to state a claim because it did not allege the disclosure of information that constituted confidential information.

Fourth District: Ready, Willing, and Able
Real property litigators may be interested in this specific performance decision. The Fourth District reversed a trial court's ruling that a would-be purchaser was ready, willing, and able to purchase a particular piece of property.

Fourth District: Insurance
For an example of why Florida insurance companies may not wish their applications to state that the applicant has completed the application to the best of his or her knowledge, check out this decision from the Fourth District.

The decision is also interesting from the perspective of agents who participate in the completion of insureds' applications. The court affirmed a summary judgment in favor of an agent on an insured's claim the agent negligently recorded the insured's answers. The court held the agent had no duty to the insured in such a context.

Fourth District: Alimony
Family law fans may be interested in this decision from the Fourth District. The decision's opening two lines state:
For a marriage not longer than ten years, the trial judge awarded permanent periodic alimony to a 34-year old spouse with a college degree and no health or employment problems. We conclude that the award is an abuse of discretion.

Fourth District: Attorney's Fees
Can prevailing party attorney's fees be awarded for litigation under a contract that has been terminated? Yes, explained the Fourth District in this decision.

Fourth District: Certiorari
The Fourth District, sitting en banc, has receded from its prior position that certiorari is not appropriate to address a trial court's refusal to compel discovery. You can read the decision here.

Fourth District: 57.105
Where a plaintiff files but then voluntarily dismisses a claim, can the defendant thereafter seek fees on grounds the claim was of the frivolous sort covered by section 57.105? Yes, explained the Fourth District in this case.

Certified Conflict: Eviction Procedures
In this case, the Fourth District certified conflict with another district regarding the procedures required in chapter 51 eviction proceedings. At issue was whether a defendant in such a proceeding can still file an answer, or should be defaulted, where the defendant filed only a motion to dismiss within the five-day period following service.

Fourth District: Lease Covenants
For an in-depth look at when exclusivity agreements in a property lease can be enforced against nearby lessees in the same commercial property, check out this decision from the Fourth District.

Fourth District: Sale of Property
The opening paragraph of this decision, quoted below, commendably captures the case's issue and the Fourth District's answer:
If a seller breaches a real estate sales contract, does the law require the buyer to file a lis pendens to protect the remedy of specific performance against the seller? We hold that the filing of a lis pendens is a tactical decision of the buyer alone. Without such a filing, the buyer may pursue a timely filed specific performance action; if the seller frustrates the remedy by selling the property to another, the buyer may recover the profits the seller realized from the sale.

Fourth District: Personal Jurisdiction and Preservation
When a person seeks to avoid enforcement in Florida of a judgment obtained in another state, on grounds the other state lacked personal jurisdiction, who has the burden of proof? The judgment debtor in this case argued that the judgment holder had the burden of proof, but the Fourth District held it did not need to resolve the matter. The judgment debtor never took that position in the trial court, and the issue was therefore not preserved.

The subject matter of the underlying case is also worth a note: the judgment holder sued for spam e-mail sent to him unlawfully under Washington state law.

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

Abstract Guests

Abstract Hits


Abstract Appeal

July 2003
August 2003
September 2003
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006
June 2006
July 2006
August 2006
September 2006
October 2006
November 2006
January 2007
February 2007
March 2007
April 2007
May 2007
June 2007
July 2007
August 2007
September 2007
October 2007
June 2008
July 2008
August 2008
October 2008
March 2009
April 2009

Didn't I Once Read…?

Abstract Appeal



- by state -

Ariz Fam Law Blog
Razorback Lawyer
Cal Election Law
Cal Yankee
Criminal Appeal
The SoCal Law Blog
The UCL Practitioner
Connecticut Law Blog
Delaware Law Office
Abstract Appeal
The 13th Juror
Boating Safety Law
Fla Arbitration Law
Fla Asset Protection Blog
Fla Bankruptcy Blog
Fla Injury Law Blog
Fla Land Law
Fla Mediator Blog
Fla Probate Lit
Fla Venture Blog
Orlando Family Lawyer
Per Curiam
SD Fla
Atlanta Inj & Civ Lit Blog
A Georgia Lawyer
Indiana Law Blog
La-Legal Annotated
Naked Ownership
Maine Divorce Blog
Show Me Blawgs
Husker Blawgs
New Hamp Law Blog
New Jersey Family Law
New Jersey Law Blog
New York Civil Law
NC Divorce Blog
OK Blawg
SC Appellate Law
SC Family Law Blog
SC Trial Law Blog
Day On Torts
Tex Estate & Probate Law
State of the Bee Hive
SW Virginia Law Blog
Brian Peterson
Wis Pers Inj Lawyers

- by federal court -

Supreme Court Blog
Criminal Appeal
Direct Appeal
Abstract Appeal

The 10b-5 Daily
ACS Blog
Alt Med Law Blog
App Law & Practice
Bag and Baggage
Becker-Posner Blog
Election Law
Employment Blawg
Ernie the Attorney
How Appealing
Inter Alia
The Legal Reader
Lawrence Lessig
May It Please The Court
Minor Wisdom
On Appeal
Out-of-the-Box Lawyering
Point Of Law
Real Lawyers:Have Blogs
Southern Appeal
Statutory Construct Zone
Underneath Their Robes
Where's T. McGee?
The Volokh Conspiracy

? law blogs #
« ? Tampa Bay Blogs # »

Alachua Politix
Bark Bark Woof Woof
Blunted On Reality
Fla Blog
Fla News
Fla Politics
Fla politiX
Interbay Superstar
Kim's Point of View
Lines in the Sand
Ocean Guy
The Orange Grove
Political Bloviation
Seminole Heights
Side Salad
South of the Suwannee
Sharp As A Marble
Space Coast Web
Sticks of Fire
Tampa Book Buzz
Tampa Film Fan

want a blog added?