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Thursday, April 30, 2009
Third District: Oral Summary Judgment Motions
Observing that it goes without saying that one cannot serve an oral motion for summary judgment, and of course saying it, the Third District quashed a circuit court's appellate decision affirming an order granting such a motion. You can read the second-tier certiorari decision here.

Eleventh Circuit: The Reality of Virtual Contact
The federal sentencing guidelines include a sentence enhancement where a defendant's offense involves sexual contact. In this case, the offense involved a self-stimulating act conducted in front of an Internet camera being viewed by an undercover police officer whom the defendant believed to be a minor. Was that sexual contact?

Yes, explained the Eleventh Circuit, because that term is defined in the relevant statute as the intentional touching of certain body parts of "any person" with an intent to "abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." The court rejected arguments that the defendant's act of touching himself did not meet the statutory language.

Tuesday, April 28, 2009
Third District: A Disturbed Affirmance, Names To Follow
Prosecutors, take note: "harmless" misconduct may still get you named in the Southern Reporter.

The Third District's opinion and Judge Ramirez's concurring opinion in this case reflect serious concerns with the prosecutor's closing arguments in the trial below.

The court affirmed the defendant's conviction based on harmless error, but the court quoted Judge Blue's wise words from a 1994 decision:
Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.
Judge Ramirez was even more disturbed. He intends to start publishing the names of prosecutors who abuse the law in pursuit of a conviction. He explained:
Over the years, it has been my unfortunate experience to see a long procession of assistant State attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel’s questions during oral argument. If nothing else, I will henceforth publish their names so that their questionable tactics appear in the permanent record of the Southern Reporter.
Fair warning.

Third District: Sealing Records
The Third Distict would like to make a point about sealing records: if you wish to file something under seal, your motion should utilize the standards set forth in Barron v. Florida Freedom Newspapers, Inc.

The court made this point publicly by publishing this order, which denied without prejudice an appellant's motion for leave to file an appendix under seal. The court noted that it must determine whether good cause exists to seal records even where no party objects to the request.

Third District: Class Actions
Class certification fans will surely be interested in this divided decision by the Third District. The court reversed a certification order involving overcharges made by a finance company. The majority opinion -- actually, both majority opinions -- concluded that the lack of uniform, knowing conduct by the defendant made the putative representative's claims insufficiently typical of the class's claims and, in the end, caused individual issues to predominate over common ones.

Judge Suarez authored the lead opinion and Judge Shepherd concurred in it. Judge Shepherd also wrote a concurrence with which Judge Suarez concurred. That makes two majority opinions.

Fifth District: Contracts
Contracts fans may be interested in this decision from the Fifth District. The case involved an attempt to bind municipalities to an agreement that their governing boards never approved. Overruling a trial court that ordered the purported agreement enforced, the appellate court explained why the statute of frauds could not be overcome by promissory estoppel or partial performance.

Monday, April 27, 2009
Fourth District: Appellate Traps, Pro Se Filings
Appellate practice can seem so simple, right? Draft a brief. Deliver an oral argument. Try to explain why a per curiam affirmance is an injustice....

The truth is that appellate practitioners tend to live in serious fear of procedural slip-ups. It can happen to anyone, and the only protection from a misstep (other than an understanding judiciary) is a healthy vigilance that somehow avoids becoming an unhealthy paranoia.

This decision helps illustrate the point, albeit in the context of a pro se filing. The petitioner was previously convicted of a crime, and the Fourth District upheld his judgment and sentence. Though he was represented by counsel in the appeal, he timely filed a pro se motion for rehearing. Between the time he placed the motion in prison officials' hands and the time the appellate court denied it, the court issued its mandate. Slightly more than two years after the mandate issued but slightly less than two years after the denial of the rehearing motion, the petitioner filed a petition alleging ineffective assistance of appellate counsel. The appellate court denied the petition based on a procedural default.

The court held the petition was untimely because it was filed more than two years after the mandate issued. The court explained that a timely filed motion for rehearing is generally cause to recall a mandate but that the earlier motion in this case was a legal nullity because it was filed pro se by a party represented by counsel.

Apparently the order denying rehearing was a nullity as well.

Either way, traps are everywhere.

Judge Warner: Hey Rules Committees...
In a concurrence to this decision, Judge Warner recommends that the Criminal Procedure and Appellate Rules Committees amend rules 3.800(a) and 9.141 to set forth the record attachments requirement imposed by case law.

In a time of budgetary crisis, where workload efficiencies must be maximized, her words ring out:
Substantial time and expense are wasted in the courts because the rules of postconviction relief are incomplete and antiquated. Although the trial and appellate courts have called for postconviction relief reform for years, no changes have resulted. The postconviction relief process occupies substantial time of the judges and staff of both the trial and appellate courts. Changes to make the process more efficient must be made.

Fourth District: Work Product
The Fourth District recently released an important decision concerning work product, and you can read it here.

In the case, a health maintenance organization petitioned for a writ of certiorari. The HMO sought to block the compelled production of documents created in response to a regulatory agency's inquiries about how the petitioner set certain rates. The court denied the writ with a lengthy explanation that, at times, was harshly critical of the petitioner's arguments. The court viewed those arguments as an improper attempt to expand work product protection to encompass the ordinary activities of a regulated business.

As the court explained:
There must be some specific matter reasonably indicating litigation beyond the general business prospects of eventually being sued.
* * *
We must not forget that the work product doctrine was created as a litigation privilege. It was never meant to apply to ordinary, routine, business-as-usual communications. That obviously means that it was not intended to protect the general foreseeability of being sued in the course of business — something HMOs routinely face. Hence we think, at a minimum, a claim of work product protection requires that a specific litigation matter can be reasonably anticipated as a result of an occurrence or circumstance — such as an act giving rise to the accrual of a cause of action. It was never designed to protect the normal business activities of an industry against general regulatory oversight and enforcement — outside of specific disciplinary action by the agency.
It might be noted that the documents at issue were apparently generated in the preparation of a response to the regulator's inquiry, and that the court ultimately focused not on the regulatory nature of the inquiry but on the nature of the materials created in response to that inquiry.

Friday, April 24, 2009
Unconstitutional Ordinance
This story from the Palm Beach Post caught my attention. It explains that a circuit judge has declared unconstitutional a Riviera Beach ordinance prohibiting the baggy pants-look seen today. Apparently the ordinance prohibits persons from publicly wearing pants below the waist and thereby exposing skin or undergarments.

From how I read the story, it appears the court considered the ordinance a deprivation of liberty without due process because the city lacks a legitimate interest in keeping people's pants in place. The story is not clear, though, and I do not have a copy of the order. If someone has it, please forward it to me. It sounds quite interesting.

Wednesday, April 22, 2009
Fourth District: Appellate Jurisdiction and Interlocutory Appeals
In this decision, the Fourth District reminds us that, in a non-final appeal, the appellate court's jurisdiction is limited and does not extend to all orders entered in the case below.

This particular appeal involved an injunction, and in reviewing the appealed order the court declined to review a prior order sustaining the appellee's objections to a discovery request. The court explained that the discovery order was reviewable only by a final appeal or by a petition for writ of certiorari, and the court noted that no certiorari petition had been filed.

For what it is worth, I will add that it was only a couple of years ago that the Fourth District released this en banc decision receding from the court's former view that certiorari petitions may not be directed at orders refusing to compel discovery. In a sense, the court has come fully around.

Fourth District: Rule 1.442 and Proposals for Settlement
Can the parties agree to extend the deadline for responding to a proposal for settlement? In this case, the Fourth District answered that question by holding that an offer made and accepted after an agreed-upon extension of time constitutes a binding settlement.

Fourth District: Computer Software and Taxes
Does computer software constitute tangible personal property subject to taxation by a county? No, held the Fourth District in this interesting tax case.

To constitute tangible personal property for Florida tax purposes, the chief value of the property must be intrinsic to the article itself. The court explained that the chief value of a software program stored on a medium is not intrinsic to the medium itself.

Fourth District: Prejudgment Interest
Those who litigate commercial cases may be interested in this prejudgment interest decision by the Fourth District. The plaintiff successfully sued the defendant under the Lanham Act and Florida's false advertising statutes. The trial court awarded the plaintiff $93,306 in lost profits, as well as prejudgment interest on that amount.

The defendant appealed the prejudgment interest award, and the Fourth District reversed.

The court explained that the plaintiff had sought $300,000 to $400,000 in lost profits and that Florida case law suggests prejudgment interest is not warranted on a lost profits claim because the amount of damages is generally unknown. The court also observed that, to date, cases recognizing a right to prejudgment interest have all involved the loss of a vested property right, and anticipated business profits are not a vested property right.

Fourth District: Premises Liability
Premises liability fans will be interested in this decision, where the Fourth District answered the question of whether an unsecured mat with a pattern and color different from the underlying carpet can constitute an open and obvious condition so as to defeat a failure to warn claim.

The court held that it did.

Interestingly, the court further held that the plaintiff abandoned the trip and fall theory she both pled and verified at her deposition when she belatedly opposed the defendant's summary judgment motion with an unpled and apparently inconsistent version of the events leading to her fall.

Fourth District: Trade Secrets and Injunctions
Intellectual property fans will no doubt agree that trade secrets decisions are not common in Florida. This decision is thus a rarity. The Fourth District did not plow any new legal ground, but it did detail the successful trade secrets claim at issue in the case and discuss important legal concepts such as how the lack of a confidentiality agreement between a business and its employees does not preclude the business's key information from constituting a trade secret.

The case is also noteworthy for its injunction discussion. The court reversed a permanent injunction and remanded for further findings because the order at issue did not specify the reasons for its entry.

Fifth District: Anders
If you are incarcerated, convicted, questioning your sentence, and faced with an Anders brief by your appellate counsel, you might be interested in this decision by the en banc Fifth District.

In a pithy few lines of text, the court receded from its former view and agreed with two of its sister courts that a criminal defendant may file a pro se rule 3.800(b)(2) motion after counsel has filed an Anders brief. In Anders cases in which the appellant may file a pro se brief, that brief, and not counsel's Anders brief, is considered the "party's first brief" for purposes of rule 3.800(b)(2).

Monday, April 20, 2009
Fourth District: Material Concerns
Contract fans might be interested in this decision from the Fourth District. Condo fans, too. The case concerned a common scene in the current condominium real estate market: a buyer seeking to avoid a contract to purchase a condominium unit.

As required by this statute, the contract at issue provided the buyer with an option to cancel the agreement if the developer materially altered or modified the offering in a manner adverse to the buyer. The developer planned a 62-unit residential complex with one commercial unit.

Prior to closing, the developer notified the buyer that nine private cabanas were being added to the pool area, to be sold for $225,000 each.

The buyer took the position that the addition of the private cabanas constituted a material change that permitted the buyer to cancel the purchase agreement. The developer disagreed. The buyer then filed a declaratory judgment action to resolve the matter.

A trial court heard the case at a bench trial and ruled in the developer's favor. According to the Fourth District, the trial court's final order stated that the addition of the cabanas was not a material, adverse change.

On appeal, the Fourth District reversed and ordered judgment entered in the buyer's favor. The court recited the standard of review as follows:
This issue involves a matter of statutory interpretation, namely whether the trial court correctly interpreted and applied section 718.503(1)(a)(1), Florida Statutes (2008). As such, the de novo standard of review is applied.
The court followed this statement with the principle that factual findings from disputed evidence are upheld if based on competent substantial evidence.

Notably, the court never identified any issue as a fact issue or stated that competent substantial evidence did not support any factual finding. Rather, after defining the terms "material" and "adverse," the court simply explained that the cabana change was both material and adverse and ordered judgment entered in the buyer's favor, canceling the contract.

Did the court treat the materiality and adversity issues as issues of law, subject to de novo review? Or did the court treat those issues as factual ones subject to the competent substantial evidence standard? The court never directly said as much, and persons wishing to read the opinion either way might have arguments to make.

The present economy has created turmoil in Florida's condominium industry, for buyers and developers alike. Interest in this opinion may run high.

Friday, April 17, 2009
Third District: Appellate Jurisdiction, Part II
Arbitration fans may wonder: Is a nonfinal order confirming an arbitration award appealable?

If you read this portion of the Florida Arbitration Code, you might think the answer is yes.

But if you read this decision by the Third District, you will be reminded that the answer is no.

A statute cannot authorize a non-final appeal to a district court of appeal. Pursuant to Article V, section 4(b)(1), of the Florida Constitution, only the state supreme court can authorize district court appeals from non-final orders.

Second District: Appellate Jurisdiction, Part I
Those involved with termination of parental rights and dependency cases may be interested in this decision from the Second District. The case involved an appeal from a placement order entered after the court found a child dependent but before the court concluded the proceeding. The district court dismissed the appeal, holding such orders are not appealable. The court noted that a proposed change to rule 9.146 would later permit review of the order, if the supreme court approves that proposed change.

Thursday, April 16, 2009
Questions, questions: Government Duties
If you know what a large fan I am of duty cases in the negligence context, then you will appreciate my interest in this decision issued yesterday by the Second District.

The case involves a substance abuse counselor formerly licensed by the Department of Children and Families and two children the counselor abused. One of them committed suicide. The other suffered serious mental injuries. The children's families sued DCF for negligently licensing and continuing to license the counselor, including investigating complaints about him.

The families recovered substantial verdicts. DCF appealed. The Solicitor General's office appeared as an amicus curiae to support DCF.

Writing for the Second District, Judge Altenbernd focused on DCF's argument that no enforceable tort duty exists when the agency serves only a licensing role. DCF had no relationship with the children here and did not employ the counselor, but it did have (and continues to have) a statutory duty to license and regulate persons providing substance abuse services. The question is whether that statutory duty gave rise to a civil tort duty that ran to the persons the counselor treated and which could form the basis of a negligence claim against DCF. The court assumed DCF was negligent in the sense its actions unreasonably fell below a standard of care.

The court's opinion wends its way through the murk of Florida's sovereign immunity case law, which for better or worse has as much to do with duties as it does immunity. The opinion also places great weight on a law and economics analysis rarely seen in Florida case law, akin to what some might expect from the likes of Judge Posner of the Seventh Circuit. The court explains that the costs of imposing not only regulatory oversight but tort liability on an agency such as DCF are such that the legislature, not the judiciary, should determine tort liability's extent. Otherwise, the court explains, the economic efficiencies that tort law seeks to achieve may be lost, and the judiciary would risk dissuading the legislature from enacting beneficial regulatory statutes in the first place.

The court ultimately concludes that DCF owed no duty directly to the children, but the court acknowledged the uncertainty surrounding Florida's government liability case law and certified the following to the Florida Supreme Court as a question of great public importance:
One dimension not discussed in the opinion, but worth musing over, is what effect recognizing a tort duty by DCF here would have on the state's other regulatory agencies. Florida licenses a wide variety of activities, from banking to driving to medicine to cosmetology. Whatever the answer ultimately is -- and we have essentially a new supreme court in Tallahassee to consider the matter -- hopefully the result and analysis will be helpful for future litigation.

Eleventh Circuit: Insurance
In the context of commercial motor vehicle insurance coverage and registration, this decision from the Eleventh Circuit points out the distinction between a policy's cancellation and its expiration. The former requires 30 days' written notice; the latter does not.

Tuesday, April 14, 2009
Real Problems With Virtual Authorities
In the last several years, Florida's appellate courts have begun to utilize online resources as authorities, most often online dictionaries and encyclopedias such as Wikipedia. I recall the first time any Florida or Eleventh Circuit opinion cited Wikipedia -- it was an Eleventh Circuit opinion authored by Judge Tjoflat and discussed in this October 2004 Abstract Appeal post.

Times have changed since that 2004 Eleventh Circuit decision. The Internet has become truly ubiquitous. I doubt anyone today is much impressed by seeing an online authority cited in an opinion, particularly when the point mostly adds context to the court's decision.

That said, I wonder if anyone notices the potential uncertainty that such citations present.

For instance, in the Eleventh Circuit decision, Judge Tjoflat addressed an argument that the Homeland Security Advisory System's threat level could help justify a city's practice of conducting mass metal detector screenings on certain protesters. Rejecting that argument, the court quoted Wikipedia to explain that while the threat level was at yellow at the relevant time, "[t]o date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has been raised to orange (high) six times." The better part of five years later, you might think that figure would stand at six or more. Not exactly. Today's Wikipedia entry for Department of Homeland Security Advisory System makes a distinction the 2004 entry apparently did not: to date, the threat level has been raised to orange five times on a nationwide level and three times on a "select or partial basis." None of the three involved the city at issue in the 2004 case.

What if an online resource simply disappears?

It can happen. Last month, the Fifth District issued this opinion concerning a paternity action. The opinion defined the word "reputed," as in the term "reputed father," by citing Microsoft's online Encarta reference center. That was so last month. Later this year, according to this Microsoft announcement, Encarta will disappear from the virtual landscape. Click. Gone.

What is a court to do? That is not easy to say. Printed dictionaries are permanent resources but they are becoming scarce. I keep a massive one on my desk at work, but I confess I have gone from using it a dozen times a day to perhaps a dozen times a year. I now use online dictionaries and even keep my search boxes in Firefox and Internet Explorer set on Dictionary.com, rather than a search engine.

I suspect that courts will continue to cite online resources. Every once in a while, though, their published opinions may prove to be the only remaining trace of what those resources once said.

Fifth District: Verdicts and Damages
Where a jury finds for a plaintiff but awards no damages, and no objection is made to the verdict, the trial court should enter judgment in the defendant's favor.

So said the Fifth District in this decision.

Judge Monaco authored an interesting special concurrence that explained how a more fair result in this particular case would have been a new trial, but the matter was not properly preserved.

Fifth District: Incest
Is it always lawful for two competent, consenting adults to know each other -- in the Biblical sense?

No. This Florida statute prohibits incest, which is defined as marriage or sexual intercourse between persons related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece.

Does the incest statute apply to an adoptive parent and child? Or to a niece and uncle-in-law? The Fifth District considered both situations in this case, and in both instances answered no.

Fifth District: Negligent Brawlers
Could the scope of the intentional tortfeasor exception to the apportionment of fault be shrinking?

Perhaps so.

In this case involving a plaintiff who sued a restaurant over its security practices after he brawled with two others in the restaurant's parking lot, the Fifth District affirmed a trial court's decision to allow on the verdict form not only the restaurant but, as Fabre defendants, the two other brawlers.

Fifth District: Duty to Control
Duty fans will be interested in this decision, where the Fifth District considered what duty of care, if any, the Special Olympics owed to control volunteers who arrived early for bowling activities. The court determined that a special relationship under Restatement (Second) of Torts § 315 could exist between the Special Olympics volunteers and bowlers who arrived early to socialize.

Fifth District: First-Party Bad Faith
The Fifth District held in this decision that the attorney-client privilege still exists after an insured first files a first-party statutory bad faith case.

Fifth District: Limits on Appellate Review
This decision from the Fifth District demonstrates the limits inherent in an appellate court's jurisdiction. A circuit court sitting in its appellate capacity not only reversed the order on appeal but affirmatively enjoined a party to cease certain actions and took other unusual steps beyond a straightforward reversal.

On second-tier review, the Fifth District granted a certiorari petition, quashing the circuit court decision and explaining the limits on appellate review.

Fifth District: Class Actions
As class action fans know, class certification decisions are relatively rare in Florida's appellate jurisprudence, which makes this decision affirming the denial of a certification motion a rarity. The Fifth District affirmed the denial based on the putative representative's inadequacy. The putative representative's principal liability theory was potentially adverse to the interests of the putative class.

Questions, questions: Takings
In this order, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:
You can read the court's original opinion here.

Questions, questions: Termination of Parental Rights
Continuing a pattern of questions in the termination of parental rights context, the Fifth District in this case certified the following to the Florida Supreme Court as a question of great public importance:

Fifth District: Hey, Legislature!
The Fifth District would like the Legislature to take another look at section 443.151(4)(3), which provides that UAC orders are to be reviewed by the "district court of appeal in the appellate district in which the issues involved were decided by an appeals referee." As the court points out, there are multiple ways to interpret this unclear provision, and the district courts of appeal are not in agreement.

Certified Conflict: Presuit Notice
If a person files a workers' compensation claim and is fired as a result, is the person's claim for retaliatory discharge under section 440.205 a claim that first requires presuit notice be given under section 768.28?

The Fifth District said no in this decision. The court held that the presuit notice feature of section 768.28 is intended to apply only to common law-based torts for which the statute waived sovereign immunity. Because a claim under section 440.205 is based on a statutory claim not recognized at common law, the court held that presuit notice is not required.

The Fifth District certified conflict with decisions from two other districts.

Very, very interesting...

Fifth District: Loss of Consortium
This decision caught my attention because it ordered a new trial on a spouse's loss of consortium claim. The jury had awarded damages to the principal plaintiff but nothing for the spouse's consortium loss. The Fifth District held that at least nominal damages were necessary.

That result begs a question: if nominal damages had been awarded -- say, $1 -- would the award have been legally sufficient? For purposes of a claim such as loss of consortium, it seems questionable that a jury would ever find any serious distinction between awarding $0 and awarding $1. Legally, however, the difference appears to be worlds apart.

I suppose this could impact what the parties, and defendants in particular, argue in closing arguments involving loss of consortium claims.

Fifth District: Attorney's Fees
This decision from the Fifth District reminds us that a district court cannot award attorney's fees in connection with supreme court work.

Fifth District: Claims Files
In this case, the Fifth District reminds us that an insurer's claims file is privileged work product until the insurer's obligation to provide coverage is established.

Monday, April 13, 2009
Fifth District: The Life and Death of Pre-Nups
Assume two persons enter a prenuptial agreement and then marry. Now assume they divorce and, without a new agreement, later remarry. Does the prenuptial agreement entered before the first marriage apply to the second marriage?

The Fifth District addressed that issue and more in this case. The court explained that, as a general rule, a prenuptial agreement terminates with the marriage's dissolution. Exceptions can exist where the terms of the agreement provide for its continued life, but the court rejected various arguments that the agreement at issue had any such provision.

So the answer is: generally, no.

Fifth District: Negligent Mode of Operation
In negligent personal injury cases, one of the more interesting general theories of liability is the negligent mode of operation theory. It is sometimes discussed as a theory of duty, though in my view it is really a theory of breach, not duty.

The negligent mode of operation theory asks whether the defendant should have known that its way of doing business would likely injure the plaintiff. It can focus on the way a defendant acted in a particular case, and when it does, this theory can narrow the case's issues to the point where it can become difficult for a defendant to obtain judgment as a matter of law.

This case is an example. A Disney employee at the Downtown Disney complex in Orlando allegedly directed a patron to cross a street precisely at a storm drain. The patron was injured and sued, and at trial the court directed a verdict in Disney's favor. On appeal, the Fifth District reversed, holding that the jury should have determined whether directing patrons to cross over the storm drain amounted to negligence.

Questions, questions: Ineffective Assistance in TPR Cases
In this decision, the Fifth District certified the following to the Florida Supreme Court as questions of great public importance:


Fifth District: Charging Liens
Attorneys who work on a contingency basis should be interested in this decision. The Fifth District examined whether a trial court that had reserved jurisdiction regarding a party's entitlement to, and the amount of, attorney's fees had jurisdiction to address a charging lien filed after the entry of final judgment. Based on the pending issues of not only amount but entitlement, the appellate court said yes.

Fifth District: PIP Logs
An insured with PIP benefits assigns those benefits to a medical services provider, which (prior to suit) sends the insurer a demand that it produce a PIP payout sheet or log.

A PIP log is a PIP provider's internal document that lists claims against the account, bills that have been paid, deductible amounts, and other information that would allow a medical provider to assess the chances of recovering money from PIP benefits.

Is the insurer required to turn over the log?

No, said the Fifth District in this decision.

Fifth District: Miltary Garb
This Florida law prohibits non-military people from walking around in military garb or with clothing bearing military insignia. The law does not require the person to intend to mislead anyone into believing he or she is a military member, and the law covers situations where a person wears military insignia as a political statement.

Do these features make the law unconstitutionally overbroad?

A man wearing an Army uniform in an expedited military/security line at Orlando International Airport made that argument after his arrest. The Fifth District considered the matter in this interesting opinion and held the law is indeed overbroad.

The state could have appealed the decision to the state supreme court but did not.

Fifth District: Professional Services Exclusion
A woman visits a podiatrist's office where the podiatrist orders an x-ray of her foot. A technician at the facility is positioning the woman at the machine when she falls and is injured. The doctor has a business liability insurance policy that excludes coverage for personal injury due to rendering or failure to render any professional services or treatments, including x-ray services and treatments. Does the exclusion apply and preclude coverage?

That was the question the Fifth District considered in this case. The trial court had determined the injury was caused by a condition on the premises and not the taking of an x-ray, and thus the trial court held the exclusion did not apply. The Fifth District reversed. The appellate court determined that the term "x-ray services" encompassed the act of positioning the foot and thus the injury occurred due to the rendering of professional services.

Fifth District: Juror Bias
It is sometimes thought that so long as a prospective juror ultimately agrees he or she can be fair to both sides and follow the law, then the juror can be properly seated over objection despite prior admissions showing bias.

This decision from the Fifth District rejects that notion in the context of a prospective juror who first admitted favoring law enforcement but later succumbed to the trial court's rehabilitation efforts.

The appellate court ordered a new trial.

Fifth District: Guidance, Please...
The Fifth District continues to implore the state supreme court and the Juvenile and Appellate Rules committees to create a mechanism for addressing ineffective assistance of counsel claims in termination of parental rights cases. The court did so again in this decision.

Judge Pleus: Gadfly Gripe
The Fifth District's majority opinion in this case held that an environmental group had standing to challenge a development's approval as contrary to the local comprehensive land use plan.

The decision is interesting for its expansive view of standing in the environmental challenge context.

Judge Pleus dissented, and his concluding words are at least noteworthy:
The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overturn the decisions of local, duly-elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet."

The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out!

Fifth District: Depositions
The most impressive aspect of this decision is that the court actually wrote it. The Fifth District denied a certiorari petition to quash an order requiring an out-of-state plaintiff to reappear in Florida for a second deposition and a compulsory medical examination. The plaintiff had been less than forthcoming in the first Florida deposition.

Fifth District: The Bomb?
If the state wishes to convict someone for making a false bomb threat, the state must present evidence of the actual threat -- not just that some threat was made. So said the Fifth District in this case.

Fifth District: Settlement Authority
Does an attorney automatically have authority to agree to settle a client's dispute?


Is there an exception that applies in the event of an "emergency"?


Has any Florida appellate court found that exception to be applicable?

No, including the Fifth District's decision in this case.

Fifth District: Confrontation Clause
Does the right of confrontation, as explained by the U.S. Supreme Court in Crawford v. Washington, apply in a restitution proceeding?

The Fifth District examined that issue in this case and concluded that the answer is no. As a result, the state could rely simply on two affidavits to establish the restitution amount the defendant owed.

Friday, April 10, 2009
Fifth District: Quo Warranto
Long-term incarceration makes folks willing to try anything to obtain post-conviction relief, and when someone stumbles onto something that sounds a tad promising, it can quickly become popular in the prison population and the subject of countless filings.

Concerns about such copycat filings apparently prompted the Fifth District to write at length in this case. The court dismissed a petition for writ of quo warranto challenging that the state attorney and trial judge involved in the petitioner's convictions 34 years earlier had not properly filed their oaths of office. The court explained that a direct quo warranto proceeding should be brought at the time of the prosecution, and that quo warranto could not serve as a basis for post-conviction relief.

Having explained what should have happened, I wonder if the courts will see an increase in more traditional ineffective assistance claims arguing someone should have raised oath-related defects during the prosecution.

Fifth District: Corpus Delicti
The Latin phrase corpus delicti, which is usually translated "body of the crime" or even "body of evidence of the crime," still carries a legal meaning in modern jurisprudence. It refers to the evidence necessary to prove a crime was committed, independent of any statement by the accused.

In practice, the principle makes sure that no one is convicted based on his or her confession alone. You cannot walk into a police station and admit, "I just shot and killed someone over on First Street" and, on that evidence alone, be convicted of murder. There must be other evidence -- the corpus delicti -- that at least proves someone on First Street was shot and killed. If the state has such evidence, it can then use the confession to prove you were the killer.

Florida courts have ratcheted up the manner in which the corpus delicti rule is applied in DUI cases. Florida requires the corpus delicti for DUI offenses to include evidence showing that the defendant operated the vehicle while under the influence.

Judge Lawson laments that development in his concurrence in this case, and he suggests that Florida follow the federal courts and abandon the corpus delicti rule in favor of the "trustworthiness doctrine." Under that doctrine, the state may rely on a defendant's confession if the state introduces independent evidence that supports a finding the confession is true.

Fifth District: Missing Transcript
Can a new trial be ordered because, through no fault of the parties, the transcript is incomplete? That is what happened in this decision from the Fifth District. Note that the matter was a civil case but involved an injunction for protection.

Fifth District: Jurisdiction
Does the state's announcement of a nolle prosequi in a criminal case end the judiciary's subject matter jurisdiction over matters related to the charge? This decision from the Fifth District answers that question in the affirmative.

Attempting to preempt a trial court's suppression order, the state made a nol pros announcement. When the trial court refused to accept a nolle prosequi and suppressed evidence in the case, the state appealed. The Fifth District dismissed the appeal based on the judiciary's lack of jurisdiction and declared void the trial court's actions taken after the announcement.

Fifth District: Insurance
This decision from the Fifth District shows how an insurer's efforts to avoid a policy based on a supposedly false answer to an application question can be derailed if the question was ambiguous. Courts will read the question in the insured's favor.

Fifth District: Prejudgment Interest
A first-party insurer pays its insured for a loss and becomes subrogated to the insured's breach of contract claim against a third party. Assuming the insurer successfully sues the third party and is entitled to prejudgment interest, should it run from the time the claim was first liquidated or the time the insurer paid its insured? The latter, said the Fifth District in this decision.

Thursday, April 09, 2009
Fifth District: The Hazards of Tinted Windows
If your windows are so heavily tinted that the tint might be illegal, can you be pulled over, thereby allowing the police to check your identity and make other safety-based examinations?

Yes, if an officer could reasonably suspect the tint is illegal.

In this case, police stopped a car with heavily tinted windows. A check on the passenger's identity revealed an outstanding warrant, and additional checks located drugs on the passenger and elsewhere in the vehicle. A trial court originally suppressed the contraband and certain statements, ruling that because the tint was actually legal, the fruits of the search were rotten. The Fifth District reversed, explaining that an officer's mistake of fact does not invalidate a stop, so long as the mistake was reasonable.

Fifth District: Appellate Attorney's Fees
I have seen appellate attorney's fees battles from all angles, including where my own fees were at issue, where I had to contest the reasonableness of someone else's fee request, and where I served as an attorney's fees expert for someone else. What I have not seen is a meaningful body of case law that gives guidance on what appellate courts believe are reasonable appellate attorney's fees.

So this decision caught my eye. The Fifth District reversed the amount of an appellate attorney's fees award, leaving the hourly rate approved by the trial court in place but finding an abuse of discretion regarding the number of hours reasonably worked. The court effectively reduced the reasonable time involved from 135 hours to 80 hours.

Fifth District: Public Policy
This decision from the Fifth District reminds us that contractual provisions cannot violate Florida public policy. In this personal injury case, a builder sought to utilize a release that extended to damages caused by intentional acts and building code violations. The district court held the provision unenforceable.

Fifth District: Arbitration
If a defendant is sued and conducts merits discovery before moving to compel arbitration, has the defendant waived any right to arbitrate? Yes, said the Fifth District in this decision.

Fifth District: Tax Deed Sales
When the clerk of court sends notice of a tax deed sale to the address listed on the appropriate tax roll, and receipt of the notice is acknowledged in writing by someone at the property, is the clerk required to investigate whether the person signing was a representative of the owner? No, said the Fifth District in this decision.

Certified Conflict: Eminent Domain
Takings fans are most likely to appreciate the conflict certified by the Fifth District in this case. The court disagreed with another district's decision regarding how business damages are calculated where a business relocates following a taking or partial taking. The case is currently on review at the state supreme court.

On Catching Up
Why blog old cases? That is a question many have whenever I return from an absence. Surely old cases are not newsworthy in the ordinary sense of that term. To me, however, this web log is more than a commentary on new and notable decisions -- it is a compilation of events relating to subject areas that, for whatever reason, catch my attention. When this site is up to date, it serves as a resource in my legal practice, when I give speeches or presentations, and when others ask me for assistance with issues. It is like having my own electronic treatise on Florida law. Posts are searchable, and the mere act of posting about a case helps plant the decision in my memory, making me a better lawyer.

So while it may be awkward to blog old cases, it is certainly useful to me, particularly with respect to Florida law. Besides, some cases just deserve mention.

To state the obvious: catching up will not happen overnight. But it will happen.

Wednesday, April 08, 2009
Eleventh Circuit: Class Certification
Class certification fans will likely be interested in this decision released yesterday by the Eleventh Circuit. The court reviewed a district court's order certifying a class of T-Mobile sales representatives with wage-related claims against the company.

The appellate court reversed the certification order on numerous grounds, including a lack of evidence showing numerosity and the district court's conflation of the mandatory commonality and optional predominance criteria.

The decision includes interesting observations regarding how a plaintiff's failure to demonstrate numerosity does not deprive the federal courts of subject matter jurisdiction under the Class Action Fairness Act, the advantages of putting temporal distance between the resolution of certification and summary judgment motions, and the usefulness of a trial plan in cases requiring individualized proofs.

The court's trial plan discussion includes a footnote that is particularly notable. Stopping short of "necessarily" requiring a trial plan as a matter of law in every case, the court at least recommended that district courts follow a practice that utilizes them in Rule 23(b)(3) cases. I quote the note in full, without citations:
We do not mean to say that submission of a trial plan by the plaintiff is necessarily a prerequisite, as a matter of law, for a finding of superiority in every case. Nonetheless, a plaintiff seeking class certification bears the burden of establishing each element of Rule 23, which includes superiority in Rule 23(b)(3) cases, and courts must consider how a case will be tried as part of the superiority assessment. Accordingly, the proposal of a workable trial plan will often go a long way toward demonstrating that manageability concerns do not excessively undermine the superiority of the class action vehicle. Moreover, there is a direct correlation between the importance of a realistic, clear, detailed, and specific trial plan and the magnitude of the manageability problems a putative class action presents. We therefore recommend that district courts make it a usual practice to direct plaintiffs to present feasible trial plans, which should include proposed jury instructions, as early as practicable when seeking class certification.
Interesting indeed.

Appellate Appointments
Governor Crist made numerous judicial appointments in the last several months.

Let's start with the supreme picks.

After a series of events that saw Fifteenth Circuit Judge Jorge Labarga appointed to the Fourth District and serve there for just one day, the Governor appointed him to the Florida Supreme Court. This article quotes Justice Pariente as characterizing Justice Labarga's time on the Fourth District as "a nanosecond."

The Governor then appointed Eighteenth Circuit Judge James Perry, now Justice Perry, to the supreme court.

The Governor's appointments of Justice Labarga and Justice Perry completed a historic series of four supreme court appointments in a six month period. I wonder if Justice Canady pines for the days when he was the most junior justice -- or if anyone can remember which days those were.

Governor Crist has had the good fortune of making numerous district court appointments as well. He appointed Second Circuit Judge Nikki Clark to the First District and Thirteenth Circuit Judge Marva Crenshaw to the Second District. He also appointed Seventeenth Circuit Judge Dorian Damoorgian, Palm Beach County Judge Cory Ciklin, Fifteenth Circuit Judge Jonathan Gerber, and Ft. Lauderdale attorney Spencer Levine to the Fourth District -- the last two of those appointments being announced just yesterday in this press release.

Congratulations to each appointee.

Abstract Thanks
A quick word of thanks to the many who contacted me this past week to say welcome back. I appreciate the appreciation.

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

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