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Wednesday, October 31, 2007
Property Tax Proposal: Consideration Underway
If you are interested in the property tax reforms that the legislature approved Monday and on which Florida's voters are scheduled to vote in January, then the next few months should have your attention. Whether you think the legislature's proposal is good or bad for Florida, no one can reasonably deny that it is important and will directly affect most Floridians.

Today's coverage is certainly noteworthy. My local paper, the St. Pete Times, ran an editorial lambasting the legislature's work and a front-page story suggesting the proposal might violate the federal constitution on equal protection and dormant commerce clause grounds. You can read the editorial here and the article here.

In contrast, the Orlando Sentinel ran this story focusing on Governor Crist's support for the proposed reforms. Similar stories can be found in today's Palm Beach Post, Times-Union, Sun-Sentinel, and Miami Herald.

Do the suggested constitutional challenges have any merit? I have no desire to make news by weighing in here, but I will keep an eye on such topics, and if it seems appropriate to discuss the applicable law here at some point, then I will.

First District: Blood Banks
Where a plaintiff alleges that a blood bank negligently screened blood donors, resulting in the death of a recipient of donated blood, is that claim subject to the presuit notice requirements of chapter 766?

Yes, said the First District in this decision. The court explained that under the 2003 amendments to chapter 766, blood banks are considered health care providers and the negligent screening of blood amounts to medical negligence. The court also observed that case law from around the country supports the notion that blood banks provide medical services.

First District: Authority
Appellate attorneys may wish to keep this decision around as an example of how a precedentially insignificant decision by the state supreme court not to review a certified question of great public importance can be seen as, well, somewhat precedential.

First District: Punitive Damages and Summary Judgments
This decision caught my attention. An injured plaintiff sued the defendant for negligence in failing to maintain a handrail. The plaintiff sought leave to add a request for punitive damages, and the trial court permitted that amendment and, later, denied the defendant's motion for summary judgment on the punitive damages issue. The case then proceeded to trial, which resulted in a judgment for the plaintiff, including a punitive damages award.

On appeal, the defendant argued that the trial court erred in not granting summary judgment against the plaintiff on the punitive damages issue. The First District agreed. The court held that, at the summary judgment stage, the record showed only that the defendant had notice of a badly deteriorated handrail, which notice was sufficient to establish breach of a duty of care but insufficient to establish the sort of willful and wanton conduct that would support a criminal conviction for manslaughter. The court therefore reversed the final judgment to the extent it awarded punitive damages.

Punitive damages fans will surely find the court's discussion on that issue to be of interest. I was also intrigued, though, by the court's decision to review the punitive damages issue at the summary judgment stage, rather than as a matter of the evidence presented to the jury at trial. Perhaps this decision runs counter to the notion that certain pretrial events relating to the sufficiency of allegations or proofs, including rulings on motions to dismiss and for summary judgment, merge or are subsumed into the trial where the case proceeds to trial.

First District: Contracts
This decision from the First District may stand for the broad proposition that where a contract supplies a mechanism to address some deficiency in one party's performance, such a deficiency is not automatically deemed a breach of the agreement.

First District: Forum Selection Clauses
The First District's decision in this case shows that forum selection clauses that require litigation to be brought in states other than Florida can be unenforceable under certain circumstances.

First District: Cross-Appeals
Yes, appellate courts can dismiss cross-appeals, as this decision from the First District shows.

First District: Land Use and Second-Tier Certiorari
Some second-tier certiorari cases apply the applicable review standards in a way that makes them seem almost insurmountable, as if the district court's second look is so limited that all but the most patent legal errors may escape being quashed. Other cases seem to offer hope that second-tier review permits a broad look at the legal side of a case.

This decision would seem to fall in the second category. The First District quashed a circuit court's certiorari review decision and directed the circuit court to quash an ordinance enacted by the City of Jacksonville for being inconsistent with the city's comprehensive plan.

First District: Family Law Attorney's Fees
Just a reminder here from the First District that, at least in some ways, parties to a marital settlement agreement can waive the fee-shifting that might otherwise occur under chapter 61.

First District: Circuit Court Appeals
In this decision, the First District reminds us, and state prisoners in particular, that where review of quasi-judicial action is sought in a circuit court (such as a Department of Corrections decision awarding gain-time), that court is governed by the Florida Rules of Appellate Procedure.

Conflict: Habeas Corpus
Is a writ of habeas corpus appropriate where a trial court sets bail at a rather high amount, allegedly tantamount to no bail, but the hearing below focused on mental issues and no competent evidence was presented regarding the defendant's ability to pay or ties to the community?

In this case, the First District acknowledged that a sister court has granted a habeas corpus petition under these circumstances, but the First District held that such use was inappropriate and denied the petition before the court.

Tuesday, October 30, 2007
Property Taxes: Proposal for the Ballot
Wow. What a change. Several weeks ago, Florida voters were facing a proposed constitutional amendment on the January 29, 2008 ballot that would, in time, eliminate the Save Our Homes protection for homestead property. Then a judge declared the ballot summary accompanying that proposal to be misleading and ordered it off the ballot, prompting the legislature to reconsider the property tax situation in a special session. Yesterday, that special session produced a new proposed constitutional amendment, and this one not only keeps Save Our Homes but expands it, making up to $500,000 of its benefits portable, and adds both a cap for assessments on nonhomestead property and multiple exemptions to reduce the taxable value of various forms of property.

Some are upset the proposed changes do not go far enough, offering little to reduce current taxes. Some are upset the system that ties assessment increase caps to property ownership, and results in inequities over time, remains in place. Some are happy that Save Our Homes will remain effective and one of its drawbacks, the inability to move residences without losing long-accrued Save Our Homes benefits, would be largely eliminated.

Read about it all in today's Tallahassee Democrat, Herald-Tribune, Orlando Sentinel, Sun-Sentinel, and St. Pete Times, and in today's Miami Herald, whose story carries the headline, "Lawmakers failed to make substantial change."

First District: Procedural Statutes
Is a statute governing whether the prosecution or the defense gets the last closing argument in a criminal trial procedural or substantive? The First District has the rather obvious answer here.

The decision also showed why the legislature's enactment of this statute was unnecessary -- and ineffective -- beyond simply repealing former rule 3.250.

First District: Agency Law
This decision points out that the deference courts typically pay to agencies' interpretations of statutes within their jurisdiction does not extend to attorney's fees statutes. The First District explained, "Whether a party is entitled to an award of attorney fees is a question that arises in many different kinds of cases, regardless of the subject matter, and it is one that the courts are best equipped to answer."

The decision also includes an interesting analysis of how actual malice need not be demonstrated for a public official to recover attorney's fees from a person who falsely accuses the official of an ethics violation.

First District: Conspiracy
Those interested in criminal law, and drug offenses in particular, may wish to check out the First District's decision in this case. The court demonstrated how, under Florida law, repeated sales of resale quantities of a drug can support a conviction for conspiracy to purchase or possess with intent to purchase.

First District: Diligence
In this case, the First District explained that inexplicably failing to move to set aside a default for 10 weeks does not constitute acting with due diligence, apparently as a matter of law.

First District: Legal Malpractice
Does the limitations period on a legal malpractice claim begin to run when a judgment adverse to the plaintiff is entered by a trial court or when the appeal from that judgment is adversely resolved?

In this context, appeals count, as the First District reminds us in this case.

First District: Medical Malpractice
This decision from the First District shows that a plaintiff can allege a medical malpractice claim where the alleged malpractice itself extends the repose period applicable to the claim.

First District: Smell Test
Here is a case that shows why having a relatively dull sense of smell can be a source of empowerment. The First District explained that a human's dull sense of smell reduces the risk it will falsely detect the presence of burnt marijuana, giving an officer who smells burnt marijuana in a vehicle after pulling it over probable cause for a search.

First District: Dismissals
Appellate folks may wish to keep this decision around for the next time a case settles. The court holds simply that settlement of a case on appeal calls for dismissal of the appeal.

Monday, October 29, 2007
Property Tax -- Crunch Time
According to this story in today's St. Pete Times, the Florida Senate placed a property tax proposal on the legislative table yesterday. If approved by Florida voters, the proposal would significantly amend the state constitution as it relates to property taxes.

With the current special session on the verge of ending, and with a deadline of Tuesday night for passing anything intended for the January 2008 election ballot, this latest proposal will stand or fall soon.

According to the story, the proposal includes increasing the homestead exemption, capping taxable value increases for nonhomestead property, and making Save Our Homes benefits portable.

On that last item, can you picture the potential effects such a provision could have on the current home sales market?

Justice Boyd Passes
On Friday, former Chief Justice Joseph Boyd passed away. He was 90. His body is expected to lie in state today at the Florida Supreme Court.

This story from the Tallahassee Democrat offers some details on the former justice's life.

This AP story adds some -- but, no doubt out of respect, not many -- details about Justice Boyd's involvement in one of the events that compromised our high court's integrity in the 1970s. For more on that unfortunate affair, which hopefully offers today's bench and bar lessons about the legal profession and insight into one of the events that later prompted significant constitutional changes regarding the Florida judiciary, look here.

Friday, October 26, 2007
50 Years To Lead From Lakeland
Last night, the Second District celebrated its fiftieth anniversary. Its equally aged sister courts, the First and Third Districts, held similar galas earlier this year. I was unable to attend the earlier events, but I was able to attend the Second District's function yesterday.

It was well done. Numerous speakers, featuring former Justice Stephen Grimes, who served on the Second District from 1973 to 1987, spoke about the district court and its evolution over the last five decades. Many showed their affinity for the court, its members, its staff, and the Lakeland location.

It also caught my attention that, over the past 50 years, the court's 46 judges have worked with 307 law clerks. I can think of two current judges who formerly served as law clerks at the court, putting them in both categories, and I learned last night that one current judge once turned down a clerkship with then-Judge Grimes.

Thursday, October 25, 2007
Property Tax Update
If I was slightly correct in calling PIP the product of politics, I am more so in characterizing the current property tax imbroglio a political creature.

Let's take a few moments to assess.

For the better part of the last two decades, Florida's constitution has afforded all owners of homestead property the famous (or, to some, infamous) "Save Our Homes" protection, which recognizes that property taxes in this state are based on property values and accordingly caps the amount by which the taxable value of homestead property can increase each year.

Property that qualifies for Save Our Homes ends up with two assessed values each year: an actual assessed value and a taxable value, with the latter being an artificially deflated figure that is initially based on the assessed value but can increase each year only up to the capped amount. Because the protection was intended simply to keep rising property values from producing taxes that homeowners cannot afford, the protection only lasts so long as the homeowner owns the property. If homestead property is sold, the deflated taxable value is wiped away, and the new owner will be taxed at the full assessed value, even if the new owner can declare the property as homestead and utilize Save Our Homes going forward.

In the last few years, some rather high profile voices have decried Save Our Homes because it produces inequities within neighborhoods. If you bought a home 10 years ago and have qualified for Save Our Homes, your property taxes will inevitably be much lower than the taxes on an identical home next door that was purchased just this year and which will be taxed at its full assessed value. Let there be no doubt: the system does produce inequities -- the question is whether those inequities are acceptable, given the alternatives.

One view says they are not -- two people living next door to each other in identically valued properties should not have such disparate tax bills. Another view says such differences are acceptable, since once you own a piece of property you have no control over its rising value, and Save Our Homes can keep you from being taxed into selling the place, while a person who purchases the home next door at its current value should know almost exactly what taxes it will carry and can decide whether to purchase that home or not.

In the last year, it seems the state legislature accepted the inequity argument and, as part of a plan to reduce taxes, proposed replacing the Save Our Homes system with an exemption-based one that would likely lower taxable values in the short term but would not cap taxable values in the long term. Such a change would have to be approved by voters, and the Mayor of Weston challenged the ballot summary the legislature drafted to accompany the proposal as misleading. He won that challenge in a Leon County circuit court, with the court ruling that the ballot summary implies Save Our Homes would be kept in place, when it fact it would be phased out. You can read that decision here.

The state appealed that decision to the First District, which immediately passed the appeal through to the Florida Supreme Court. The supreme court has set oral arguments in the appeal for December 3.

After the circuit court ruled the ballot summary is misleading and cannot be placed on the January 29, 2008 ballot, the public became more aware that the current legislative proposal, which may or may not wind up on the ballot, would eliminate Save Our Homes. As a whole, the public apparently does not approve. That has led the legislature into a special session that is still going on. It seems scrapping Save Our Homes is off the table and expanding the protection is the goal of the day. According to this story from today's St. Pete Times, the House and Senate are at odds over issues such as whether a Save Our Homes-like protection should cover all Florida properties.

The story notes that the legislature faces a deadline of this coming Tuesday to pass a proposed amendment if the proposal is to be placed on the January 29, 2008 ballot. The story also notes that it is possible the January ballot could have two competing property tax proposals -- the original legislative proposal if the state wins the current appeal and a new proposal passed in the coming days. Practically speaking, that will not happen. If the legislature passes a new proposal in the next week, it seems inevitable the state will drop its appeal and the order keeping the original proposal off the ballot will be allowed to stand.

So, for now, things are uncertain. We will know more by next Tuesday.

Monday, October 22, 2007
Stay, Stay, Stay: Stuck In The Middle
Perhaps you recall this earlier post on how the Florida Supreme Court has considered amending rule 9.310 to harmonize it with this new law on stays and supersedeas bonds.

On Friday the court released this order, which explained the court has unanimously decided "no revision is to be made at this time."

That decision leaves in place a judicial rule that without question conflicts with a legislative statute, though the constitutionality of that statute has very much been questioned. Indirectly, that decision also leaves in place the interdistrict conflict discussed in this 2004 Abstract Appeal post.

I suppose you could say the court's ruling also helps appellate lawyers stay, too -- busy, that is.

PIP: Great Expectations
PIP. Personal Injury Protection. It is a form of automobile-related insurance coverage that was rarely mentioned in the popular media until recently, as we approached the October 1, 2007 sunset of the law requiring Florida drivers to carry this coverage. Then PIP suddenly became a hot topic. Most if not all of Florida's large automobile insurers did not want the requirement reinstated. Many medical establishments badly wanted it kept in place.

I watched with some interest as the various sides -- including Florida's big media -- made their pitches for renewing or scrapping the PIP system. I never wrote about it here, though. Sure, PIP is a legal matter, but there was hardly anything legal being discussed in the PIP debates. It was purely a political animal, and it was nearly all about money.

I am oversimplifying, but generally the PIP system offers health care providers a remarkably reliable source of up to $10,000 for care given to each person in an automobile accident regardless of who was at fault, assuming someone had the required PIP coverage. The reliability of those payments is even further enhanced by legal provisions that penalize insurers if they do not immediately make PIP payments, including provisions requiring insurers to pay the attorney's fees of those who successfully establish the insurers violated the time-sensitive PIP laws.

The near-certainty of those payments, however, led to some significant dishonest practices among some medical professionals. The system also led to a legal niche for attorneys who sue insurers for delayed or missed PIP payments and, in the process, may end up recovering fees that are many times higher than the total PIP payments at issue.

PIP coverage was created to allow the insurance industry to pay low sums of medical injury and property damage costs following an automobile accident without the need for someone to admit fault or the injured or damaged person to prevail in a lawsuit against the person at fault. As you might imagine, investigations and lawsuits can be difficult, time-consuming, and of course expensive. At least with respect to low amounts of damages, then, the PIP system is predicated on the idea that determining fault is a transaction cost that can be avoided, lowering the costs that result from each accident while providing swift payments.

It makes a lot of sense. But as I mentioned, the system does have problems.

In its prior sessions, the Legislature chose not to renew PIP, and the law expired on October 1 of this year. But as the law lapsed, the media derided that decision and insisted the public would suffer without PIP. Fortuitously, the legislature held a special session this past month to address state spending, and the session was expanded to cover PIP as well. You can read the Governor's declaration expanding the session here. On October 11, the Legislature passed a bill, which the Governor quickly signed, recreating the PIP system as of January 1, 2008. You can read the new law here.

The new system is much like the old one, although a number of tweaks have been made to address various fraudulent practices.

There is a legal wrinkle in all of this that is worth a mention. A fundamental part of what makes the PIP system efficient is the elimination of low-dollar value suits stemming from automobile accidents. In fact, the PIP laws prohibit such suits from being filed and, as a result, any claim you may have against another for up to $10,000 in medical or property damages is not recognized by Florida law. Well, with PIP being absent from the legal landscape between October 1 and December 31, 2007, that prohibition temporarily does not exist, and suits for under $10,000 can now be brought for accidents happening through the end of 2007. Will they be brought? I suppose we will have to wait and see.

Thursday, October 18, 2007
I feel like a kid in a candy store. I spent a good amount of time yesterday just planning to write on several subjects -- PIP, the property taxes situation, the fast-tracked appeal in the tax case discussed below, the Democratic electors lawsuit, and some recent notable state decisions -- but wound up taking too much time absorbing it all and not enough publishing my thoughts.

So I am going to start today.

But wait, no sooner am I trying to string together some meaningful comments on these big issues of the day than the state supreme court, obviously energized after its summer break, dropped this tort-lover's delight onto the legal landscape. The so-called "impact rule" lives, but the impact it requires is apparently far less than the rule's name might suggest. The principal decision is rather short, but it is tailed by a series of concurrences and dissents that implicitly explain why the case took almost two and a half years after the oral argument to decide.

I have many observations to make about the decision. Energized from my own recent break, I may even be a mite critical.

Stay tuned.

And to the many who dropped by this blog recently looking for my return to posting, thanks for stopping by.

Tuesday, October 16, 2007
Back In Blog

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