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Thursday, June 04, 2009
Fifth District: Serious About Subject Matter Jurisdiction
Florida's appellate courts can and should raise the issue of subject matter jurisdiction when the parties ignore or overlook it. Recently, the Fifth District has issued two decisions that, sua sponte, delve into that area.

One is rather simple. The other is simply significant.

This decision shows that the inquiry can extend to where the jurisdictional flaw lies at the case's inception in the trial court. The district court reversed a summary judgment entered by a circuit court that lacked jurisdiction to hear what, based on the amount in controversy, should have been a county court case. Those paying careful attention might observe that the trial judge was a former judge from the Fifth District who still serves as a senior judge on that court.

This second decision concerns the authority of general magistrates to try cases and enter judgments. The parties brought the Fifth District an appeal from what they asserted was a defamation judgment. The appellate court originally issued an opinion reversing the decision below, but immediately thereafter the court withdrew that opinion, and just a few weeks later the court issued a new decision with no discussion of the merits. The new decision holds that the judgment on appeal is a nullity, and the appellate court lacks jurisdiction to hear the appeal, because the supposed judgment was purportedly entered by a magistrate who tried the case apparently with consent but nonetheless without authority.

The Fifth District explained that Florida's Ninth Judicial Circuit has had a practice of allowing magistrates to preside over civil jury trials. The district court held that no statute or procedural rule authorizes magistrates to conduct trials, even by consent.

With the appeal dismissed, the case returns to the trial court for further proceedings. One might wonder how many other cases have been tried by consent before general magistrates and supposedly resolved by magistrate-entered and consequently invalid judgments.

Fourth District: Arbitration, Part II
In the second of two arbitration decisions that the Fourth District released last week, available here, a divided court affirmed a waiver determination.

The majority opinion is just over four pages long and includes three footnotes that were nearly as long as the opinion's text. The court ultimately affirmed the trial court's waiver decision based on a view combining the defendant's pre-suit and post-suit conduct, which included defaulting in the underlying litigation, avoiding service, and delaying assertion of the right to arbitrate, including delay during prolonged settlement negotiations.

Judge Farmer dissented. His lengthy opinion offers 21 footnotes of its own and is at times caustic, at times sarcastic, and at times light, as we see in this note:
A verbal nugget lies buried in the verbal harvest of this case: a lawyer named Kornfield argues on behalf of a party named Green Acres before a judge named Farmer. Maybe it's just fertilizer for the Farmer.
Such light comments should not overshadow the serious arguments Judge Farmer makes. He criticizes the majority for what he calls its "casual" approach to affirming a waiver ruling based on a series of events that, in his view, cannot demonstrate waiver individually or collectively. He bases his arguments on case law that the majority did not discuss, and he declares the majority opinion to conflict with other decisions from the Fourth District. Judge Farmer also includes an intriguing footnote regarding whether a party that files a lawsuit has breached, or merely waived a right contained in, a contract requiring alternative dispute resolution.

This decision remains one to watch.

Fourth District: Arbitration, Part I
In the first of two arbitration decisions released last week by the Fourth District, the court held that a "mere attempt to settle a dispute outside the courtroom" does not establish a waiver of the right to arbitrate.

The decision is available here.

Monday, June 01, 2009
Fifth District: Additur
When should a trial court order a new trial on liability -- not just damages -- after a party adversely affected by a potential additur objects to increasing the jury's verdict? In this decision, the Fifth District explains that the answer is when liability was "hotly contested."

Perhaps one might consider this recognized view to be rather peculiar. After all, additurs and remittiturs are governed by this statute, which provides that the remedy for inadequate or excessive verdicts where the parties cannot agree on an additur or remittitur is "a new trial on the issue of damages only."

Or perhaps not.

Perhaps the peculiarity lies in the notion that juries separately decide liability and damages, and the judiciary is making a questionable departure from a statute's text to address a perceived injustice.

Fourth District: Hey, Criminal Rules Committee
Now that the supreme court has dealt with complex case management, the Fourth District would apparently like the high court and the criminal rules committee to turn their rulemaking attention to something that is supposed to be less complicated: post-conviction relief.

Rule 3.851 imposes a 75-page limitation on post-conviction motions in death penalty cases. This decision from the Fourth District laments that no similar limitation exists in non-capital cases. The defendant in the case filed a 105-page motion for post-conviction relief -- after entering a plea.

Florida Supreme Court: It's Complicated
In this decision, the Florida Supreme Court accepted, with modifications, the recommendations of a complex litigation task force and adopted a new rule of civil procedure to address complex civil case management. The court did so over the unanimous objection of all members of the civil rules committee.

New rule 1.201 will provide structure for complex litigation cases other than family law cases. It is subject to further comments and is scheduled to take effect in 2010.

The court also made substantial revisions to the civil cover sheet filed at the start of a case. The new form looks more like some of its federal counterparts and provides the courts with better detail regarding judicial workloads. The new form also requires counsel to certify the accuracy of completed forms.

Certified Conflict: Standing Your Ground
In 2005, Florida adopted this law, which codified and expanded the common law's castle doctrine to include homes and vehicles and eliminated the duty to retreat from places where a person has a right to be. Some may recall the claims, including those made by major media such as the Washington Post, that Florida was wrongly codifying the ways of the Wild West and making more work for morticians.

I cannot recall the law making serious news since its adoption, but it has led to a conflict in the district courts. In this decision, the First District construed the law to provide an immunity that must be resolved by a trial court at the outset of a prosecution when the defendant raises the issue by motion to dismiss. In two more recent cases, found here and here, the Fourth District disagreed with that procedure, holding that such a motion should be denied where issues of fact exist.

Fourth District: Attorney-Client Privilege
This decision from the Fourth District shows that where a client testifies against the client's attorney at a deposition in a malpractice action, that testimony is not protected by the attorney-client privilege. The court denied a certiorari petition seeking to prevent discovery of such a deposition.

Fifth District: Constitutional Constraints
In a provision with a lengthy history, the Orange County charter authorizes a local board to review citizen complaints against the county sheriff's deputies and employees.

In this thoughtful decision, the Fifth District examined that provision, its place in the county's charter-based government, and the conflicts between the charter's provisions and state statutes governing complaints regarding law enforcement officers. The district court concluded that the charter provisions unconstitutionally conflicted with the statutory provisions and could not, as written, survive on the authority given to charter counties.

Fifth District: Communication Breakdown
The Fifth District would appreciate more communication between counties that have charges pending against a single defendant.

In this case, the court concluded a speedy trial violation occurred, requiring charges to be dismissed, after Indian River County would not transfer the defendant to Orange County for trial.

Fourth District: Appealability
Just a reminder here from the Fourth District that a notice of appeal does not permit an appellate court to review acts committed by the lower court after the appellant filed the notice.

Fifth District: Amendment 7
The saga of article X, section 25, continues. In this decision, the Fifth District held that the constitutional provision still known by its 2004 ballot number supersedes the work product privilege with respect to fact work product, though not opinion work product.

Back In Blog
A few things kept me away from here over the past two weeks. I completed three briefs, worked on several more, had an oral argument in Miami, took a quick trip to Baltimore, spoke at this function in Orlando, and, by reading this book, waded into a tremendously interesting area that will probably occupy me for some time to come.

Of course, I read a good number of opinions, too. It is now time to talk about them. Before I do, though, a quick thanks to those who have recently given me some great feedback about this blog. Your words are very encouraging, and appreciated. And to Anthony in Pasco, I owe you and your colleagues special thanks for the kind words. To show my gratitude, I will soon catch up regarding our mutual friends at the Second District.

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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