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Wednesday, July 22, 2009
Fourth District: Insurance
Insurance fans may be very interested in this decision. The Fourth District reversed an order enforcing a settlement, holding that an insurer's response to a settlement demand constituted a counteroffer, not an acceptance, because the response contained a release that included objectionable, not "usual," terms.

The court initially paraphrased the not "usual" terms as (1) a release of other potential defendants, (2) a requirement that the plaintiff warrant that all hospital bills had been paid, and (3) a non-disclosure provision.

The second item may catch someone's eye. Later in the opinion, the court stated that the insurer "required all liens to be satisfied prior to disbursement of the proceeds" and then still later stated that the insurer required a warranty that all hospital bills had been satisfied and none were outstanding.

Was the insurer looking for a warranty that all bills were paid? Or was the insurer looking for a warranty that, before the settlement proceeds were distributed to the plaintiff, all hospital liens had been satisfied?

The two are not the same, and some laws (designed to protect medical establishment) prohibit insurers from disbursing policy proceeds to claimants when medical liens have not yet been satisfied. If an insurer attempts to comply with such a requirement by requiring assurances that liens will be satisfied before the individual plaintiff receives proceeds, is that term an unusual one?

Fourth District: Hearsay
Under this decision from the Fourth District, you can add certificates of non-licensure from the Construction Industry Licensing Board to the list of non-testimonial hearsay items that can be admitted against a criminal defendant consistent with Crawford v. Washington.

Fourth District: PSIs
To impose a habitual offender sentence, Florida law requires a pre-sentence investigation. That requirement is said to amount to a right to a PSI before being sentenced as a habitual offender. Can counsel waive that right, or is it the sort of right only the individual should be able to waive?

In this decision, the Fourth District explained that counsel can waive the right to a PSI. In a footnote, the court stated that the better practice would be for trial judges to confirm the waiver with the defendant as well. Judge Hazouri agreed so strongly he wrote a concurrence echoing that view.

Friday, July 17, 2009
Ineffective Assistance -- Winning In The Worst Way?
Appellate friends, is there such a thing as a bad win? If there is, then this decision released earlier today by the Fifth District might be an example.

A criminal defendant appealed his convictions for tampering with physical evidence and resisting arrest without violence. The district court never reached the issues raised on appeal because the court determined the police illegally obtained the critical evidence, requiring its exclusion and the convictions' reversal.

In reaching its decision, the court acknowledged that the defendant had not challenged the search's legality on appeal. The court explained, however, that ineffective assistance of appellate counsel can be addressed on direct appeal where the ineffectiveness is apparent from the record.

Fifth District: Forum Selection Clauses
A contract includes this language: "The parties consent to the exclusive jurisdiction of the courts located in New York City, USA."

Is that forum selection provision permissive or mandatory?

Mandatory, as Fifth District explained in this decision.

Fifth District: Final Contractor's Affidavit
Construction fans should be interested in this decision. The Fifth District explained that while providing a final payment affidavit is a condition precedent to a statutory lien foreclosure claim, that condition can be waived where the defendant does not raise its failure with particularity in the answer.

Fifth District: Legal Duties and Ultimate Facts
Does a police officer executing a search warrant for a home owe a duty of care to an occupant of the residence?

Considering that a police officer's actions create a duty of care where the officer's conduct creates a foreseeable zone of risk to an individual or group, the question could be put in these terms: does a police officer create a foreseeable zone of risk to the occupants of a home by executing a search warrant?

In this decision, the Fifth District said yes, the officer can. The court held that an officer executing a warrant to search a home owed a duty of care to an occupant. The officer shot the occupant during a gunfire exchange that began after the officer knocked and another occupant answered the door. The man who answered the door had an extensive criminal history, including firearm offenses, and was known to carry a firearm by at least one deputy executing the warrant.

The court did not clarify exactly what facts were critical to its determination that a duty of care existed.

Perhaps more interesting than the duty issue is how the court proceeded to address sovereign immunity. The wounded occupant sued the local sheriff, claiming negligence, and whether the sheriff was immune from the claim turned on whether the actions at issue involved the execution of planning or operational functions. The district court determined that it could not make that decision because the complaint failed to set forth sufficient ultimate facts to establish how the officer assertedly breached the duty of care. The court remanded to allow an additional opportunity to replead.

Published decisions holding dismissals appropriate for lack of ultimate facts are rather rare -- and potentially handy.

Fifth District: Mandamus, Disqualification
This decision from the Fifth District shows that a petition for writ of mandamus can be used to compel the reassignment of trial judges where the 30-day period to rule on a disqualification motion has expired without a ruling.

Fifth District: Fighting Words
Concerned that a lesser standard could cross lines drawn by the First Amendment's free speech clause, the Fifth District in this case reversed a juvenile's disorderly conduct conviction because the juvenile's loud, profane words did not incite others to breach the peace or present an imminent danger to others.

Fifth District: Violence
When is exhibitionist behavior considered sexual violence? When applying Florida's Jimmy Ryce Act to keep sexually violent persons involuntarily committed, as the Fifth District explained in this decision.

Fifth District: Family Law
Family law practitioners may be interested in this reminder from the Fifth District that rule 12.490(f) requires courts to hold hearings on timely filed exceptions to magistrate reports.

Tuesday, July 14, 2009
Fifth District: Insurance and Attorney's Fees
This decision really caught my eye. The Fifth District denied an attorney's fees motion made by an insured in a certiorari proceeding.

The insured lost the proceeding on grounds any error would be remediable on plenary appeal. In that context, the denial of fees was not remarkable -- a few years ago, the state supreme court confirmed that insureds must prevail on appeal to recover appellate attorney's fees.

However, the Fifth District's decision ended with an interesting musing. The court questioned whether appellate courts can award even prevailing insureds attorney's fees in certiorari proceedings, since the only reference to appellate level proceedings in the governing fee-shifting statute references "appeals." As with all extraordinary writ proceedings, a certiorari proceeding is not an appeal. Very interesting....

Fifth District: Default Judgments
Part of me constantly fears overlooked deadlines. That same part is always relieved to see decisions setting aside default judgments. This decision from the Fifth District does so, and it points out that reasonable misunderstandings originating from clerical errors can establish excusable neglect.

The decision suggests that the appellee used some sharp tactics to obtain a default judgment and avoid litigating the merits.

Fifth District: Visitation
Family law practitioners may be interested in this opinion. The Fifth District determined that the trial court improperly delegated its decisionmaking authority regarding visitation to one party's expert. The appellate court seemed more than a bit concerned that, without findings to support the decision, the final judgment forbid the former husband's current wife from being in the children's presence during visitation.

Tuesday, July 07, 2009
Florida Supreme Court: Appointment Time (continued)
Before delving into other recent decisions, I would like to return to last Thursday's mandamus decision by the Florida Supreme Court. The court faced a petition for a writ of mandamus filed by retired Judge Robert Pleus, formerly of the Fifth District. The petition asked the court to order Governor Crist to appoint Judge Pleus's successor from a list of nominees first certified to the Governor in November 2008.

Article V, section 11(c) of the Florida Constitution provides that the governor "shall" make appointments for vacant judicial positions within 60 days after nominations are certified to the governor. In this case, Governor Crist rejected the original nomination list in the interest of diversity. He pointed out that 3 of the 26 applicants for the vacant position were African-American and asked the nominating commission to reconsider the nomination list. The nominating commission resubmitted the original list. Months passed without an appointment, and Judge Pleus filed his mandamus petition, asking the court to order the governor to act.

In what could be perceived as a separation of powers struggle between the executive and judicial branches, the court granted the petition and directed the Governor to perform the constitutional duty of appointing a new Fifth District judge from the list of nominees. You can read the decision here.

The case is very interesting on multiple levels.

First, consider how the case appeared to the general public. To Governor Crist, the case centered on diversity and whether the judiciary can order the governor to perform duties that require substantial discretion. To Judge Pleus, the case was about the constitutional requirement that appointments be made within 60 days of a nominating list's certification. Does the constitution allow a well-motivated governor to reject a certified list of nominees in the interest of obtaining a more diverse list? The supreme court has now told us the answer is no.

Consider also how this case helps define the scope of the judiciary's mandamus power. A writ of mandamus compels a public official to perform a ministerial duty, even one that involves discretion, so long as the official is under a legal to take some action. The writ directs the official to perform the legal duty without telling the official what decision to make. Governor Crist's response to the mandamus petition argued that, as the state's chief executive, the judiciary could not direct him to act, particularly since the selection of judges involves significant discretion. The supreme court rejected that argument, though the court's decision never expressly discussed whether, as a public official, a governor might be uniquely able to avoid a writ of mandamus. The Governor also argued that his duty to make the appointment after the 60-day period expired was unclear and for that reason mandamus relief should be denied. The court also rejected that argument, which would have allowed a governor to avoid the duty to appoint simply by not acting within the required time frame.

Sticking with the features of mandamus writs, consider who petitioned for relief in this case. It was Judge Pleus, the person whose retirement from the Fifth District triggered the vacancy at issue. Judge Pleus asserted in his petition, which is available here, that the unfilled status of his former position created workload issues for the court's remaining judges. That certainly places Judge Pleus in the storyline that led to this proceeding, but was it necessary that the petitioner have such a role to have standing to petition for a writ of mandamus? The court's decision stated, "Petitioner, as a citizen and taxpayer, has a clear legal right to request that the Governor carry out [his] duty."

Finally, consider that the decision also helped define the authority a governor has upon receiving a certified list of nominees. The court explained that a governor must make appointments within 60 days and that the constitution does not authorize a governor to extend the 60-day period or reject the list. Will that stop the gubernatorial practice of asking nominating commissions to reconsider their lists, or stop nominating commissions from doing so? I suppose we will see.

It bears mention that the author of the court's opinion, Justice Labarga was appointed by Governor Crist after the Governor asked the supreme court judicial nominating commission to reconsider a list it certified. Justice Labarga's name was on the original list -- in fact, it was Governor Crist's appointment of Justice Labarga to the Fourth District that prompted the Governor to ask for the list's reconsideration. That district court appointment proved short-lived when Governor Crist then appointed Justice Labarga to the supreme court.

Speaking of Justice Labarga, he and the court should be credited for delivering a unanimous opinion in this case. Arguably, the need for the judiciary to speak with one voice is never stronger than when tensions arise between our government's branches. Also, this decision was Justice Labarga's first as a supreme court justice. For opinions without dissents, Justice Labarga is batting 1.000, with a streak of one.

Thursday, July 02, 2009
Florida Supreme Court: Appointment Time
Today, the Florida Supreme Court issued this decision, which holds that Governor Crist must select district court of appeal judges within 60 days of receiving a list of nominees from the Judicial Nominating Commission. The court granted a petition by Senior Judge Robert Pleus to require the Governor to select a Fifth District judge from a list originally submitted to him on November 6, 2008.

The Governor sought another list from the JNC to obtain more diversity, and particularly racial diversity, in the group of nominees.

More on this from me later -- I'm back to blogging in the next couple of days...

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