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Monday, June 30, 2008
Chief Justice Quince
The news page at the Florida State Courts site recounts this past Friday's ceremony for Florida's new Chief Justice: Peggy Quince. Congratulations to her not only as an individual but as the first African-American woman to serve as a justice, and now the chief justice, on our state's high court.

Time to Cross-Appeal?
Feel like filing a notice of cross-appeal or joinder this week? How about intervening on appeal? Doing so today would save a few dollars. Tomorrow, this new law takes effect, and such formerly cost-free acts will carry a $295 charge.

Fifth District: Rehearing Tolerance, Exceeded
The following quote from this opinion demonstrates how rehearing motions can try, and overcome, an appellate court's patience:
[W]e do not view the privilege to seek a rehearing pursuant to rule 9.330, Florida Rules of Appellate Procedure, as an open invitation for an unhappy litigant or attorney to reargue the same points previously presented, or to discuss the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief.
The Fifth District ordered the movant's attorney to show cause why sanctions should not be imposed.

One might hope this story would end there. But it does not.

It turns out that the movant's attorney did not file a response to the court's order to show cause. He instead filed something else -- a notice of intent to invoke the state supreme court's jurisdiction.

On June 12, the Fifth District issued an order commanding the attorney to appear at the court on July 30 to face indirect criminal contempt charges for failing to respond to the show cause order. The proceeding will be trial-like, as the attorney will be permitted to testify and summon witnesses. The court directed the Hillsborough County Sheriff's Office to serve the attorney with the order.

Meanwhile, at the supreme court, the appeal stammers on, but the docket shows it has nearly been dismissed four times based on the attorney's failure to follow various appellate rules.

Most recently, the Fifth District's docket shows that, on June 25, the Hillsborough County Sheriff's office reported that it could not serve the June 12 order on the attorney.

That is odd, but perhaps most odd of all is what the supreme court's docket shows: the attorney filed an amended jurisdictional brief in the supreme court -- on June 25.

To borrow a line from Ray Bradbury, something wicked this way comes....

Fifth District: The Trouble With Trebles
Florida's civil theft statute allows a plaintiff to recover treble damages. Does that mean total damages are three times the actual damages amount or that three times the amount of actual damages should be added to the actual damages amount?

The Fifth District answered that question here. The answer is that total damages are three times actual damages, not four times.

Fifth District: Class Actions and Certiorari
Is an order permitting merits discovery in a putative class action the sort of order that can be successfully challenged by petition for writ of certiorari?

Yes, as this decision from the Fifth District shows.

Fifth District: Law Enforcement Duties
Is a deputy working as a school resource officer engaged in the execution of his or her legal duties for purposes of charging a student with battery on a law enforcement officer? Yes, said the Fifth District in this case.

Fifth District: Custody, Out-Of-State Transfers, and Certiorari
Family law fans may wish to check out the Fifth District's certiorari decision in this case, which allowed a trial court's decision that a child be immediately returned to Florida to stand but quashed that decision to the extent it made a temporary custody determination seemingly based on punishment and without an evidentiary hearing.

Fifth District: Siting Plans
Decisions like this one, which involve the siting of electric power generating units, are rare. The Fifth District reversed an agency's rejection of a siting application.

Fifth District: Specific Performance
In this case, the Fifth District reversed an award of interest on lost profits related to a successful specific performance claim.

The decision follows the notion that damages flowing from a grant of specific performance are limited to those that return the parties to status quo at the time of breach.

Fifth District: Perpetual Leases
Florida law's preference for construing leases not to be perpetual is well demonstrated by this decision from the Fifth District.

Fifth District: Tax Advice
If you are interested in whether a taxing authority can bring a declaratory judgment claim against a prospective taxpayer to establish the allegedly taxable nature of the defendant's conduct, rather than assess any tax believed to be owed and allow any challenges to go forward, you may wish to check out the Fifth District's decision in this case.

Judge Evander: On Risks
In this case, Judge Evander offered the following notable thought in a concurrence to a per curiam affirmance:
I would simply observe that when an attorney refuses to present any evidence at a pretrial hearing because he disagrees with the trial court's determination as to which party has the burden of proof, he does so at considerable risk.

Friday, June 27, 2008
Fifth District: Preemption
This decision from the Fifth District contains an interesting federal preemption discussion.

The court rejected the appellant's argument that the FCC's regulatory scheme precluded him from being convicted of stalking by ham radio.


Fifth District: Show Me The Meaning...
... of being confidential.

This decision from the Fifth District involved documents sealed in prior litigation between the Back Street Boys and Louis Pearlman. The decision makes for a good primer on what it now takes to seal, and unseal, court records under Florida law.

And no, "I want it that way" does not work in either case.

Fifth District: Attorneys
This decision from the Fifth District reminds us that an attorney has no implied authority to execute a contract on a client's behalf for the sale or purchase of real property.

Fifth District: Now We All See
Is the Orlando Utilities Commission a "municipality" for purposes of excusing the presuit notice requirement of section 768.28(6)?

No, said the Fifth District in this decision.

The court declined to determine precisely what OUC is, having determined it is not a municipality.

Fifth District: Fraud on the Court
Dismissing a plaintiff's case based on the plaintiff's litigation conduct requires "the most blatant showing of fraud, pretense, collusion, or other similar wrong doing." The Fifth District held that standard was not met in this case.

Questions, questions: Double Jeopardy
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:
The court answered this question in the negative.

Fifth District: Discovery Rule
Those interested in how the discovery rule impacts statutes of limitations in the medical malpractice context may wish to check out the Fifth District's decision in this case.

The court explained that, for limitations' purposes, knowledge could not be imputed between the mother and daughter in the case, and that where an injury causes mental incapacitation and a guardian is not appointed, the malpractice cause of action's accrual is delayed.

The decision also included this notable line: "The statute of limitations should not be construed to compel one who knows of an injury, or an adverse outcome following a medical procedure, to scour the medical records, in the off chance that the health care provider did something wrong."

Fifth District: Elections
Elections law fans should be interested in this decision, where the Fifth District held that the right against double jeopardy prevented a candidate from being conviction of multiple offenses for a single (but widespread) distribution of an unlawful electioneering communication.

Fifth District: Maybe They're Amazed
The judges on Florida's district courts of appeal are routinely confronted with strange situations, so it is noteworthy when a panel expresses amazement at the facts of a given case.

That happened here.

The Fifth District characterized the criminal defendant's actions as among the sort of conduct that is "so bizarre, it is virtually inexplicable."

I suspect the court was more astounded by the defendant's "police brutality" defense than anything else.

Fifth District: And1
Perhaps the respondent in this case felt the court ruled 4-0 in the petitioner's favor. Among the authorities the Fifth District cited was Judge Sawaya's personal injury treatise.

Questions, questions: Breath Test
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:
The district court answered the first question in the negative and the second in the affirmative.

Fifth District: Spoliation
Spoliation fans should be very interested in this decision. The Fifth District reversed the dismissal of a plaintiff's products liability case (including defective design and manufacture claims) after the plaintiff's counsel lost the product at issue.

The court relied on the existence of photographs of the product, stating that the sides would be on "equal footing" inasmuch as they would both be limited to using the photographs. The court explained that dismissal is too harsh a consequence where the defendant is not completely unable to defend, as opposed to being unable to defend completely.

The court ultimately focused on the incomplete state of discovery, particularly of the experts and their opinions on the consequences of the lost product, and, reversing, held that "once essential discovery has been done and the record has been developed, the trial court may or may not correctly arrive at the same conclusion."

Fifth District: Closing Time
In this case, the Fifth District considered whether the following closing argument deprived the appellant of a fair trial:
[T]hey do an amazing job, they do an amazing job of trying to convince people of these injuries, but that's why they keep on hiring these doctors over and over; that's why Dr. Hoffman has testified 15 times for this Plaintiff's firm, they're good. They're good at what they do and they're paid very handsomely for it. That's why these guys are so good. I mean, there's a network of lawyers and doctors and all working together, everybody is making money. That's what these guys do for a living, they testify, they're professional witnesses. They do this for a living. And how dare they make us look like the bad guy for hiring our own doctors.
The trial court sustained an objection to this argument and offered to give a curative instruction, but the appellant's counsel declined. The trial court denied the appellant's mistrial motion.

On appeal, the district court agreed the argument was improper. Arguments that "attack opposing counsel or suggest fraud or collusion are not acceptable and will not be condoned." Nonetheless, the court affirmed the denial of the motion for mistrial, holding the comments were isolated and did not deprive the appellant of a fair trial.

Fifth District: The Nonsense Defense
This case considered whether the following contractual language was enforceable as a fee-shifting provision:
ATTORNEY’S FEES: In the event that either party incurs legal fees or costs in the enforcement of this Lease or any provision hereof, whether suit is filed or not, shall be entitled to recover and to receive payment of reasonable attorneys’ and costs incurred by the other party.
The Fifth District said no -- the language as written "clearly makes no sense." The court further held that no meeting of the minds was reached regarding the provision.

In a footnote, the court also observed that an action for fraudulent inducement to enter a contract is not a suit "in the enforcement" of the contract.

Wednesday, June 25, 2008
Fifth District: Class Actions
When a class action is filed in a county court, must the relief requested by class members be aggregated for purposes of determining whether the county court's $5,000 jurisdiction limit is exceeded?

Yes, said a divided Fifth District in this decision. Judge Sawaya dissented on grounds aggregation should be permissive, not mandatory.

Fifth District: Economic Loss Doctrine and Section 552
Here we have a case involving the economic loss doctrine -- perhaps my favorite intersection along the law's many crossroads.

The plaintiff entered a contract with a company for environmental assessment work. The resulting assessment led the plaintiff not to purchase and develop a particular stretch of land, and the plaintiff later came to believe the company erroneously performed the assessment. The plaintiff then filed a negligence claim against the employee who performed the work and, as damages, sought profits lost from not pursuing the project.

The trial court dismissed the claim, and on appeal the Fifth District affirmed. The employee was not a professional, and the court held that he could not be sued for negligently performing the contract on behalf of his employer.

The decision is interesting and frames its discussion using the tools offered by the case law of recent years. But the analytical toolbox is awkwardly stocked. A so-called products liability economic loss rule and exceptions to exceptions to various rules lead to a tangled path the district court seemed constrained to take.

In my humble view, Florida's case law (and the parties and courts who must follow it) would be well served if the controlling cases involving economic losses could return to first principles. Here, for instance, the plaintiff brought a negligence claim against the employee. As all law students learn early in torts class, the elements of a negligence claim are duty, breach, causation, and damages. Did the plaintiff allege the breach of a specific duty of care the employee owed the plaintiff? Did the employee have a tort duty to perform his employer's contract without disappointing the plaintiff's economic expectations? Does Florida law recognize a general duty not to injure someone else economically, as opposed to physically harming another or another's tangible property? If not, does any more narrow duty apply under these circumstances, such as one found in a particular case that expands the tort duties owed under Florida law (like the supreme court's Moransais decision) or a particular Restatement section that has been adopted in Florida (like section 552 of the Restatement (Second) of Torts)?

The Fifth District's decision followed the rubric of Florida's recent case law and did not speak in these terms, but I suggest the decision can be read to have effectively answered these questions in the negative. The plaintiff did not allege the breach of a duty of care that the employee owed the plaintiff.

I also note that fans of section 552 of the Restatement (Second) of Torts may be very interested in the court's decision that section 552 "does not apply as an economic loss rule exception in contractual privity cases." Having made that ruling (which really deserves attention), the court never reached the interesting issue of whether, under section 552, the employee at issue could be said to have a pecuniary interest in the transaction between his employer and the plaintiff.

Fifth District: Certiorari and Discovery
Once again, a district court's certiorari jurisdiction has been successfully invoked to limit an overbroad discovery order. Check out the Fifth District's decision in this case for more.

Fifth District: Secured Transactions
Fans of the Uniform Commercial Code's Article 9 should be interested in this decision. The Fifth District reversed a summary judgment for further proceedings on whether the sale of repossessed vehicles was commercially reasonable.

Fifth District: Drug Court
The trial court in this case determined that Florida law allows any person who has a substance abuse problem to enter a pretrial drug court program, as long as he or she is not involved with drug dealing and has not previously rejected a pretrial substance abuse program. The Fifth District held that interpretation of the pretrial drug court laws to be too broad and granted a certiorari petition filed by the state.

Fifth District: Tax Deed Sales
Is publishing notice of a tax deed sale in a newspaper a sufficient "additional step" to satisfy the requirements of due process after notice of the sale to the property owner is returned as unclaimed mail? It was not in this case decided by the Fifth District.

Tuesday, June 24, 2008
Fifth District: Statutory Interpretation
A provision of Florida's statutory law states, "The failure to provide and use a child passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence."

This language is part of a larger statutory scheme designed to protect children, including protecting them from having their injury claims diminished when a caregiver fails to restrain them properly in an automobile.

But what if a child sues a caregiver for negligently failing to place the child in a child passenger restraint? Is the failure to use a child passenger restraint admissible as evidence in that civil action?

In this case, a divided Fifth District said yes. The majority held that "any civil action with regard to negligence" means a comparative negligence claim.

The majority and dissenting opinions exemplify the difficult position in which the judiciary can be placed when a statute is poorly drafted.

Fifth District: Closing Argument
In this case, the Fifth District admonished a prosecutor whose closing arguments included the following:
If Josh Montanye is lying, Sean is guilty. Josh Montanye is lying. Josh Montanye is lying, and he is doing it to get you all to buy it.
The closing also included the line, "I was expecting them to say that the sun was in their eyes and the dog ate their homework." And in commenting on how the defense did not call a certain witness, the prosecutor said, "Maybe one perjurer in the family was enough."

None of these unobjected-to comments rose to the level of fundamental error, but they did earn the prosecutor a rebuke.

Fifth District: Apple Records
Can a trial court dismiss a proceeding sua sponte based on res judicata? This decision shows the answer is yes. The Fifth District not only affirmed the dismissal but explained:
Every litigant is entitled to one bite at the apple. Two bites is unfair. Three bites is an abuse of the trial court, the opposing party and this court.
This particular proceeding was the appellant's tenth appeal to the Fifth District in the same litigation. The underlying case was a dissolution of marriage.

Questions, questions: NICA
En banc decisions are rare. En banc decisions certifying questions of great public importance to the Florida Supreme Court, like this one, are rarer still. The Fifth District certified the following:
Further highlighting the unusual nature of this case is that Judge Sawaya specially concurred and, in doing so, included the full text of an opinion he proposed for the court.

Fifth District: Deceptive and Unfair Trade Practices
Can an unfair trade practices claim be brought not only against a business but also the person who acted for the business? Yes, said the Fifth District in this decision.

Questions, questions: Lesser Includeds
In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:
Is a defendant charged with robbery entitled to have the jury instructed on more than one of the lesser included offenses where his theory of defense is that he committed both lesser offenses but not the greater charged offense?
Previously, in this decision, the court answered that question in the affirmative.

Fifth District: Specific Performance
Being ready, willing, and able to close on a piece of real property does not mean that someone has merely told you he or she will give you the purchase money. The Fifth District applied this principle in this case.

Monday, June 23, 2008
Fifth District: Oaths
What happens when someone wishing to testify refuses to swear or affirm to tell the truth? A litigant in this case apparently had religious convictions contrary to such things. So he did not swear, and he did not affirm, which led the Fifth District to affirm the trial court's refusal to allow him to testify.

Certified Conflict: Confessions
Under the common law, a confession alone is not sufficient evidence to convict someone of a crime. The underlying notion is that one should not be convicted based only on one's own statement of past wrongdoing. Otherwise, you might find yourself imprisoned for telling a tale.

The legislature has changed that common law rule in the context of sexual abuse. Under this statute, you can be convicted of a crime based solely on your admission that it happened and you did it, so long as the criteria set forth in the statute are met.

In this decision, a divided First District held that, under the statute, confessions of sexual abuse may not be admitted unless some disability on the victim's part prevents the state from proving the crime independent of the confession.

In this decision, the Fifth District disagreed and certified conflict. The court held that a confession is admissible in a sexual abuse case when the state is unable to prove the crime without it.

Fifth District: This Happened Once Before...
Not quite a year ago, the Fourth District released this decision, which held a motor sports facility's negligence waiver invalid because it attempted to limit the facility's prospective liability to a minor. His father signed the waiver, and after an accident resulted in the minor's death, his mother sued the facility. The Fourth District accepted her argument that the waiver violated Florida's public policy and should not be enforced. (I blogged the decision in greater detail here.)

More recently, in this case, the Fifth District addressed a similar waiver involving a cable water ski facility. Like its sister court, the Fifth District invalidated the waiver at issue, although the Fourth District's decision was referenced only once, and then only in a string-citation footnote.

The Fifth District expressly distinguished commercial enterprises from not-for-profit ones, stating that the latter should be permitted to utilize contracts that waive liability for negligence that results in injury to a minor. Based on that distinction, the Fifth District saw no conflict with the Third District's decision in this case, where the Third District rejected a public policy challenge to an agreement used to waive a school board's liability in connection with a minor's cheerleading activities.

The Fourth District's and Fifth District's decisions are currently being reviewed by the Florida Supreme Court. Less than two weeks ago, the high court heard oral arguments regarding the Fourth District's decision.

The potential impact of the Supreme Court's decision is substantial in at least three respects.

Theoretically, the court could invalidate waivers involving children across the board, or validate them across the board, or embrace the distinction that a waiver's validity turns on whether the entity relieved of liability by the waiver is in the business of making profits. As a practical matter, any of those decisions will likely impact the recreational activities that are ultimately available to Florida's minors.

The decision is also likely to impact Florida law on minors. It should be noted that Florida law allows adults to agree to waivers that limit someone else's liability for simple negligence (as opposed to gross negligence or intentional conduct). A holding that invalidates such agreements when made by parents on behalf of their minor children could be a boon, or bane, to those interested in the extent to which minors should be free from the decisionmaking of others.

Finally, the decision may impact Florida law on when public policy can invalidate an otherwise legally binding agreement. There is no question that public policy is a wholly legitimate basis for invalidating all or part of an agreement -- the more troubling issue is when this can happen. There are Florida decisions that speak to such matters, but for whatever reason those cases are rarely mentioned in recent years. Regardless of which outcome one might favor in any particular case, it seems most preferable for modern case law to chart a course that Florida's contract makers, and its courts, can later follow.

Thursday, June 19, 2008
... today at the bar meetings in Boca Raton: "You know, there are four other districts...."

Considering the speaker's status, that was part compliment, part not so much.

Fifth District: Marathon Man
As you can hopefully tell, I am wending my way towards catching up with the Fifth District.

There is one person at the Fifth that I will not catch.

Last week, I mentioned my marathoning adventures of the past six months.

There is someone at the Fifth who shares that passion, and he is a lot faster.

Judge Alan Lawson ran his first marathon a year ago this past February, finishing the Gasparilla Marathon in Tampa in a blazing 3:27:44. That excellent time (under 8 minutes per mile for 26.2 miles) qualified him to enter the esteemed Boston Marathon. He ran the legendary hills of that course this past March, finishing in a very fast 3:40:45.

I note that Judge Lawson's bio on the Fifth District's site now includes "2008 Boston Marathon Qualifier and Finisher."

Congratulations to him on these fantastic accomplishments.

Wednesday, June 18, 2008
Fifth District: Preservation of Error
You just knew this decision was going to be interesting when the Fifth District began it this way:
This is a disturbing case. It is disturbing because the trial lawyers who were involved know better, or at least should have known better. Although we have concluded that we should affirm the final judgment because the errors complained of were not preserved and were not fundamental in nature, we do so with serious misgivings.
The court proceeded to relate the "less than professional" conduct of the defendant's trial counsel -- conduct which, because objections were not properly made and preserved, could not form a basis to undo a defense verdict and reverse the judgment.

Unfortunate in numerous respects.

Fifth District: Declaratory Judgments, Insurance
Can a trial court abate an insurer's declaratory judgment claim pending the outcome of an underlying tort suit? A trial court did in this case, but the Fifth District granted a petition for writ of certiorari and quashed the abatement order.

Fifth District: Pharmacists' Warranties
Products liability fans, especially those involved with pharmaceuticals, should be interested in this decision. The Fifth District reversed the dismissal of a breach of warranty claim against a pharmacist.

Fifth District: Employment
Employment law fans likely took interest in this decision, where the Fifth District confirmed the essential element of causation in a disability suit.

Fifth District: Arbitration
A person who signed an agreement that expressly provided the parties joined a separate agreement was bound by an arbitration provision in that separate agreement, the Fifth District held in this case.

Certified Conflict: Sentencing
If a defendant serves a portion of concurrent terms but then is resentenced to consecutive terms, should the defendant receive credit for time served on each of the consecutive terms? A Fifth District panel consisting of three former trial judges said yes in this decision. The opinion certified conflict with a sister court's decision and is now being reviewed by the state supreme court.

Fifth District: French Kiss
Not the movie with Meg Ryan and Kevin Kline. The case.

Fifth District: Lesser Includeds
The defendant in this criminal case argued to the jury that he did not commit robbery -- he committed petit theft and resisting a merchant. Both were lesser included offenses for his robbery charge and both were included on the jury's verdict form, but the jury was not allowed to find him guilty of both. After being convicted of robbery, the defendant appealed on grounds the jury should have been able to find him guilty of petit theft and resisting a merchant, as an alternative to robbery.

The Fifth District agreed and reversed.

The defendant in this case is oddly fortunate. This was the second time the Fifth District reversed his conviction for a new trial.

Fifth District: Presuit Investigation
Does the affidavit supporting a medical malpractice claimant's presuit investigation have to name the defendant who is later sued? No, said the Fifth District in this case.

Tuesday, June 17, 2008
Fifth District: Stipulations
Need a client be present in court for his or her counsel to make a binding stipulation during a civil trial? The Fifth District quickly said no in this case.

Fifth District: Duty
Those who have frequented this corner of the blogosphere probably recall that one of my favorite legal topics is the matter of duty, as in the extent to which one person owes another a duty of care.

So of course this duty decision caught my eye.

Sheriff's deputies visited an elderly woman's home when she failed to respond to telephone calls. The deputies and a neighbor entered the home, where they found the woman unresponsive but alive and perhaps asleep. The deputies recommended that the neighbor continue to check on the woman. The next morning, the neighbor again found the woman unresponsive and had her taken to a hospital. She died just days later without regaining consciousness.

The woman's daughter sued the sheriff for wrongful death. The daughter argued that if law enforcement officers undertake a well-being check and in doing so discover a person wholly dependent upon them for emergency aid, then they are under an affirmative duty to render that aid.

The Fifth District disagreed. The court relied on the limits of the legal duties imposed on government actors, such as the duty not to increase the risk of harm to a person, to hold the deputies had no duty to aid the woman in this case. The court also explained how such legal limitations further public policy:
If law enforcement agencies are found to have liability under these circumstances, they may stop making well-being checks, thereby avoiding any liability. If they do respond, in order to avoid liability, they likely would direct that everyone be transported to the hospital, further taxing local hospitals and emergency services. Both outcomes harm the public. Though some of the decisions made by law enforcement in the course of making well-being checks may be wrong, overwhelmingly, the results of such checks are helpful and should be continued.

Fifth District: Challenging Service of Process
If someone moves to dismiss a complaint but the motion does not challenge service of process, is any such challenge irrevocably waived?

This decision from the Fifth District holds that if the motion has not yet been heard, it may be amended to include such a ground, avoiding any waiver.

Fifth District: Good Samaritan Act and Statutory Standards of Liability
In this case, a medical expert discussed the legal meaning of the proof required to overcome the immunity given certain health care providers by the 1998 version of Florida's Good Samaritan Act. The Fifth District characterized that testimony as "irrelevant and outside the expertise of a medical expert." At the same time, the court found the expert's testimony regarding the facts of the case to constitute sufficient evidence to reach the jury, and the court reversed a directed verdict in the defendants' favor.

Fifth District: Criminal Conflicts
This interesting decision from the Fifth District awarded a new trial to a criminal defendant whose trial counsel had a financial conflict of interest. In doing so, the court explored and corrected some inconsistencies in its own case law and considered some undeveloped aspects of our state supreme court's decisions. The court's discussion is intriguing and insightful.

Also notable are the court's comments concerning the permissibility of the conflict at issue. In the case, the attorney had agreed to charge a flat fee of $135,000, including any expert costs, creating a financial conflict between the attorney's interest in maximizing his fee and the client's interest in presenting effective, though expensive, expert testimony. The district court wrote:
[W]e once again note that attorneys have an ethical obligation under Rule 4-1.7 of the Rules of Professional Conduct to avoid representing any client under circumstances that would compromise the lawyer's exercise of independent professional judgment. . . . The types of fee arrangements employed in this case . . . are so susceptible to claims of conflict and questions regarding the ethics of the attorney's strategic decisions at odds with his or her own financial interests that an attorney should probably expect an ethics inquiry by the Florida Bar with respect to any case for which this type of fee arrangement is used. In fact, this type of fee arrangement is so obviously prone to allegations of ethical lapse that the supreme court may want to consider barring it altogether in criminal cases.
Does anyone know if these rather strong words prompted any action by the bar?

Fifth District: Flood Limits
This decision from the Fifth District examined how the statute of limitations applies where improvements to real property cause repeated flooding to neighboring property.

Judge Lawson filed an interesting special concurrence. He acknowledged the controlling authority on this issue but lamented how that authority permits the flooded neighbor to sit on his or her rights for years and ultimately seek to recover far greater damages than would have existed had a claim been promptly brought.

Monday, June 16, 2008
Supreme Victory
Congratulations to Florida's Solicitor General Scott Makar, who prevailed in this decision released this morning by the United States Supreme Court. The high court reversed an Eleventh Circuit decision that allowed a Chapter 11 bankruptcy tax-stamp exemption to apply to preconfirmation transfers.

Solicitor General Makar argued the case in March -- apparently quite well.

Fifth District: Circuit Court Appeals
It is good to see the Fifth District join its sister courts in rebuking the dismissal of circuit court appeals merely for the inadvertent but untimely filing of an initial brief. This decision quashes such a dismissal.

Fifth District: Arguments at Hearings
This decision from the Fifth District involved an affidavit submitted on the day of a summary judgment hearing. The trial court disregarded the affidavit as untimely, but the affidavit contained only legal argument, not facts. The appellate court reversed the entry of summary judgment, holding that the trial court should have considered the affidavit's legal challenge.

Fifth District: More Certiorari
A petition for writ of certiorari can be filed no later than 30 days after rendition of the order at issue. What if you receive the order on the 24th day, leaving only six days to draft and file a petition?

According to this case from the Fifth District, the proper course is to file a timely but "bare bones" petition along with a motion to amend, setting forth the circumstances.

Fifth District: Certiorari
Is excluding a witness or striking a defense the sort of ruling that can qualify for certiorari review? No, said the Fifth District in this case.

Fifth District: Arbitration
Construing a 20-day limitation on seeking arbitration as a condition precedent to arbitration that can be addressed by the courts, and finding the condition not satisfied, a divided Fifth District in this case reversed a trial court's decision to compel arbitration.

Fifth District: First Amendment
First Amendment fans no doubt cheered the Fifth District's decision in this case. The court reversed an order that, on privacy grounds, enjoined a television station from publishing documents in its possession.

Certified Conflict: Rule 1.525
In this case, the Fifth District held that, under rule 1.525, a motion for fees and costs cannot be served more than 30 days after the entry of judgment. The court certified conflict with this decision from the Third District, which held that if the final judgment establishes a party's entitlement to fees, the timing of the party's motion to set the amount is not governed by rule 1.525.

The Fifth District's case contains a quirk that does not seem to be addressed by the appellate arguments but might still be worth a mention. The original "judgment" reserved jurisdiction to award prejudgment interest. Technically, a ruling to defer consideration of prejudgment interest should make an order nonfinal, though if the order contains language of finality, such as a provision for execution, the nonfinal order may well be treated as final for appellate purposes and the time to appeal may immediately begin to run.

If that was the case here -- the order was nonfinal but improperly contained language of finality -- then the issue under rule 1.525 may be recharacterized: does the 30-day period to serve a motion for fees and costs under 1.525 begin to run where a nonfinal order is improperly entered in the form of a final judgment?

Fifth District: Forum Selection Clauses
The Fifth District's opinion in this case suggests how heavily the parties litigated whether the following forum selection language was permissive or mandatory: "The parties hereby submit to jurisdiction for any enforcement of this agreement in Minnesota."

Fifth District: Child Play
The trial court in this case denied a grandparent's petition to adopt an adult grandchild after determining that the petition's true aim was to enable the pair to obtain otherwise unavailable federal benefits.

The Fifth District reversed and held the adoption should go forward.

So, yes, you can adopt your grandchild in Florida.

Questions, questions: Fundamental Error, Again
In this decision from the Fifth District, the court certified the following to the Florida Supreme Court as a question of great public importance:
DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME? A divided court answered the question in the affirmative. The supreme court is currently addressing a number of cases presenting this issue.

Fifth District: Hearsay
Criminal law fans may be interested in this decision from the Fifth District. The court examined whether a pawn shop transactional record constitutes inadmissible testimonial hearsay under Crawford v. Washington.

The court held the document at issue was not prohibited hearsay.

Fifth District: Competency
The end of this decision from the Fifth District points out that a motion to discharge one's counsel is invalid if the movant is incompetent.

Fifth District: Lis Pendens and Specific Performance
In the context of a lis pendens dispute, this decision from the Fifth District explained that a document containing only an address, the names of the parties, and a sliding scale for a purchase price is insufficient to support a claim for specific performance of real property.

More interestingly, the court divided over whether an insufficient legal claim to real property is properly considered when addressing a lis pendens. The majority said yes. Judge Thompson dissented.

Friday, June 13, 2008
Third District: Downward Departure
In the immediately preceding post, I mentioned this law, which increases numerous court-related fees across the litigation spectrum.

Section 12 of that law also does something interesting with respect to the Third District: shrinks the court from 11 judges to 10.

Statistics show that while Florida's overall population continues to grow rapidly, and while case loads in other districts continue to rise, the Third District's case load has been steadily falling for years. The result is less need for appellate judges, and so the legislature has eliminated a position in that district.

My understanding is that one of the judges (who is not at mandatory retirement age) is soon expected to retire, and that judge's position will not be filled.

Climbing Costs: Counterclaims and Cross-Appeals
Florida litigants, take note. Costs are climbing at a court near you. Filing a suit? The filing fee just went up.

Filing a counterclaim? There is now a fee for that, too.

Filing a cross-appeal, or just joining someone else as an appellant or petitioner? You guessed it: there are now fees for taking such steps.

I expect a lot of folks will be surprised to receive orders directing them to pay an overdue fee for something they did not know involved a fee.

Governor Crist signed the increases into law earlier this week.

You can read the new law here. It takes effect July 1.

Closing Time
The Judicial Qualifications Commission's ethics trial involving Judge Allen wrapped up Wednesday, ending what was surely a surreal experience for many. The Tallahassee Democrat and St. Pete Times both covered the event and described the apparently impassioned closing arguments.

I am too flabbergasted by it all to comment, at least at this point, but I do recommend reading the news coverage.

Supreme Fun
I had the privilege of speaking on a panel at the Practicing Before The Florida Supreme Court seminar held yesterday in Tallahassee. It was great fun, and the company was excellent. I saw old friends, and a few friends who are not so old -- which of course is happening more and more and makes me feel older every minute. Topping it off quite well was that I returned to St. Petersburg to find an email from someone I did not meet yesterday but who assures me she was there, learned some things, and is glad to see this blog getting back in gear. Talk about positive notes to start the day...

One person I saw yesterday (whom I will classify as a new-friend-not-so-old) asked me if I restarted things when I did because of that seminar. No. If the timing could be attributed to any such thing, it might be the bar meetings that are coming up next week in Boca Raton. Well, maybe. Either way, I am still smarting from the ribbing I took at the bar's January meetings for this site being what it was...

Wednesday, June 11, 2008
More Trying Times
Those interested in the Judicial Qualifications Commission's ethics trial involving Judge Allen may wish to check out today's St. Pete Times and Tallahassee Democrat.

Blogger Outer
One of the many good things about never having blogged anonymously is that no one ever considered it newsworthy to discover who I am. That is not so for the attorney blogger discussed in this story.

Appellate Moves
In terms of internal movement, Florida's appellate courts are more glacier than river. But as with many a glacier, the often imperceptible movement at times becomes a bit extraordinary.

The last several months saw the Governor appoint Judge Dorian Damoorgian to the Fourth District, Judge Jay Cohen to the Fifth District, and Judge Nelly Khouzam to the Second District.

Moving on to Tallahassee, the news is who is moving from Tallahassee. Justice Cantero has announced he will resign from the court in September, as seen in this press release, and Justice Bell has announced he will resign in October, as seen in this press release. Justice Cantero and Justice Bell both indicated their families were drawing them back to their hometowns -- Miami and Pensacola, respectively.

Considering that Justice Anstead and Justice Wells are each expected to announce their retirement from the court early next year (due to mandatory retirement at age 70), it appears that, one year from now, a majority of our high court will be newly appointed. That is the judicial equivalent of when a slowly moving glacier suddenly splits.

Martin Dyckman, retired but still contributing to the St. Pete Times, discussed the supreme confluence in this interesting piece.

To its credit, the Times also recently ran what I thought was a terribly insightful article on the situation -- "Salary Is A Concern For Florida Supreme Court Justices." As most any practicing attorney would surmise, the article touches on the financial quandary that surrounds the judicial selection process.

In my own view, the article understates the situation, and I say that with the appreciation that a clearer focus might make the legal profession seem disappointingly distant from the reality in which most newspaper readers live.

Abstract Wonder
When I started this blog, it received about 20 hits a day, and I assumed they were from either me or my mother. I have never marketed it, never tried to turn it into a promotional piece for my personal practice. And yet folks somehow came across it and started reading it. I saw the hit numbers steadily go up.

When I had to take time away from the site the last many months, I wondered if anyone would notice when I came back. I still wonder, but it is more about who the folks are that have checked out Abstract Appeal already this week.

Whoever you are, thanks for stopping by.

Tuesday, June 10, 2008
Trying Times
Those interested in the Judicial Qualifications Commission's ethics trial involving Judge Allen may wish to check out the press reports on the event, which as I understand started yesterday and is supposed to end Wednesday.

You can read about it in today's St. Pete Times and Tallahassee Democrat.

Fifth District: Mediation Matters
When I read about someone being sanctioned, or being considered for sanctions, I tend to view the situation in one of two lights: either, wow, on a bad day maybe that could have been me, or, well, I hope I never get so deep in the mud I do something like that. Either way, the situations are usually instructive.

Recently, the Fifth District has published two sanctions-related orders regarding its appellate mediation program. Each is worth a look.

First, the court released this order, which involved a plaintiff's case against a company and its now-former employee following an automobile accident. The defendants admitted liability and the trial proceeded on damages. The former employee did not attend the trial and the employer handled the defense. After trial, the employer appealed, and the district court referred the case to mediation. The employer believed the presence of its representative satisfied the attendance requirement and so the former employee did not attend, which in turn prompted an objection by the plaintiff. Nonetheless, and despite the objection, the case settled with the mediator's help.

Following the mediation, the district court directed the former employee to explain why he should not be sanctioned for failing to attend the mediation. Thereafter, in the order now published, the court found that his nonattendance was a violation of the court's mediation order, which instructed him personally to appear. The court explained that he could have filed a motion to excuse him from attending, and, under the facts, such a motion "may very well have been granted." Ultimately, however, the court found that the violation was not willful and that the imposition of sanctions was not appropriate.

Theoretically, all of that could have been done in an unpublished order. Or not done at all -- after all, the case did settle. It certainly appears, then, that the court published this order to highlight the sanctionable nature of any party failing to attend mediation in person absent the court's prior authorization.

Appellate practitioners, are you listening?

The second case I mentioned is a bit different. This order explains -- and try to follow this in one breath -- how an attorney filed an appeal, failed to complete the court's mediation questionnaire, failed to respond to a show cause order regarding the questionnaire, was sanctioned $500 for failing to respond, filed a motion for relief from the sanctions order blaming a former employee for hiding the questionnaire, failed to pay the $500 after the court denied the motion, was issued an order for his personal appearance before the court, failed to appear at the required date, was then contacted by the court, blamed an employee for his nonappearance, then paid the $500, was directed to pay opposing counsel $1,790 in fees, failed to make that payment and was fined an additional $480 as a result, failed to attend a subsequent mediation date in the same case (notably, his client attended), was ordered again to appear before the court to explain his nonappearance at the mediation, faxed a motion to the court the day before the scheduled appearance asking to continue the hearing or appear by phone for unexplained personal reasons, and after that motion was denied faxed the court a suggestion of bankruptcy under Chapter 13, which (for the first time) indicated the attorney had filed for bankruptcy weeks earlier and suggested the sanctions hearing be stayed under the federal bankruptcy code. Needless to say, the attorney did not appear.

The court held that monetary sanctions were appropriate but would be withheld pending the bankruptcy proceeding. The court also referred the matter to The Florida Bar and, in a final ironic note, withdrew its mediation order.

Chief Judge Palmer wrote both orders. His points should be well taken.

Monday, June 09, 2008
Long Road, Still Winding
As I get back into full blogging gear this week, I thought I would say a few words about why I stopped for so long.

The chief reason is a pro bono project that I took on last year that, as it turned out, required substantial involvement. I had been working on it for some time when it became clear I needed to find large blocks of time to devote to it. I rearranged what I could in my schedule and, unfortunately, the blog had to be put aside. At first I expected the absence would only be a week or two. But that quickly became a month, and then two, and then more -- and I still was not done. The project finally came together, but by then I had put aside a large amount of my usual work, and my catch-up efforts shifted from the project to my real job.

Now, I am finally back in all respects. I can breathe. And blog. Many folks have asked whether I intend to catch up on all the noteworthy cases I have not blogged in the last many months or just start from scratch. The answer will be obvious in the next few days.

I did do one thing while I was away that I promised myself I would post about when I got the blog rolling again: I ran. A lot. About this time last year I committed to run a series of fall and winter races, and I was determined to finish them. I wound up calling them my 5-Medals-In-5-Weeks Challenge. It was arduous, and exhausting, but at the same time incredibly satisfying because not only did I finish but I met my goals for each race. The first event was the Gulf Beaches Half Marathon. That was medal one. I ran the race in 1:51:16 -- a little too fast for me, considering that I was running the Jacksonville Marathon the next weekend. The marathon was fantastic. I set my personal record of 3:48:32 and, for the first time, had a great run at that distance:

Matt Finishing The Jax Marathon 2007
Finishing The Jax Marathon

That was medal two. (For anyone paying close attention -- my start time was about 24 seconds after the gun, so my official chip time was lower than the clock time at the finish.)

The best news was that I had more in the proverbial tank. I knew I needed to stay healthy because, in just a few weeks, I was running what the folks at Disney kindly refer to as "The Goofy" -- the Disney World Half-Marathon on a Saturday morning followed by the Disney World Marathon the next morning. Finishers of the half marathon receive a Donald Duck medal. Finishers of the full marathon receive a Mickey Mouse medal. And those who finish both receive a third medal, with -- who else? -- Goofy.

I was going for Goofy. That would be medals three, four, and five. My goals were to run the Disney half in under two hours and the Disney full in under four hours. It looked good on paper, so to speak. I am not a natural runner. I do it for fun and to relax but I really have to work at it. As it turned out, adrenaline made the half pretty easy. I coasted to a 1:51:27 finish -- over eight minutes ahead of my goal. That turned out to have been a mistake, though, because the next morning, around mile 8, I started to feel fatigued. Then I started to feel sore. By mile 19, I was in trouble. The last hour of the Disney full was the hardest hour of my life -- mentally and physically. I think I spent the entire time doing the math on exactly what pace I needed to keep to finish in under four hours and telling myself that if I make it I never need to do the Goofy again.

Well, I never have to do it again. I finished the full in 3:58:47. Twenty-six point two miles with just 73 seconds to spare. Unreal. If that says anything, it says I can do some basic pacing calculations in my head when I am really, really tired. I suppose it also says I am a bit Goofy. In that respect, I have the hardware to prove it:

Matt Finishing The Disney Half-Marathon 2008
Disney Day 1: Finishing the Half-Marathon

Matt Finishing The Disney Marathon 2008
Disney Day 2: Finishing the Disney Marathon

Disney Medals
The Goofy, Mickey & Donald Medals

Now enough about running. Time to talk some Florida law. There is certainly much to talk about, and it is good to be back in blog.

Wednesday, June 04, 2008
Whoa, Judge
As this press release shows, Governor Crist has announced the appointment of Florida Sixth Judicial Circuit Judge Nelly Khouzam to the Second District Court of Appeal.

Congratulations to Judge Khouzam.

To my knowledge, this appointment marks the first time two spouses have served together on a district court of appeal. Judge Khouzam is married to Judge Morris Silberman, who has served on the Second District since 2001.

Today's St. Pete Times also has this story on the appointment.

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