Abstract Appeal -- by Matt Conigliaro

Wednesday, June 30, 2004

Supreme Review

Yesterday, the Florida Supreme Court heard oral arguments in four citizens' initiative cases, where the court examines a constitutional amendment proposed by the public to ensure it complies with the Florida Constitution's requirements regarding its title and ballot summary and that it pertain to a single subject. The four proposals at issue were the proposal to double the homestead exemption, the proposal to increase Florida's minimum wage, the proposal to require legislative review of Florida's sales tax exemptions (remember John McKay?), and the proposal to repeal the high-speed rail amendment voters adopted in 2000.

This story from today's Sun-Sentinel focuses on the argument regarding the homestead exemption proposal, which is being challenged for, among other things, its ballot summary's accuracy. The complete summary states:

This amendment provides property tax relief to Florida home owners by increasing the homestead exemption on property assessments by an additional $25,000.

There are several asserted problems with that language, including that the amendment does not affect every home owner and that it does not technically provide "relief" -- it lowers the tax base by reducing homes' taxable base value, but taxing authorities could increase the rate to make up some or all of the difference.

I think the ballot summary issue for the homestead exemption amendment is interesting, but not as interesting as the price tag. The Legislature's Office of Economic and Demographic Research has come up with a financial impact statement for this proposed amendment. The statement provides that the proposed increase in the exemption "would reduce property tax revenues for cities, counties, schools, and special districts by approximately $2 billion, based on 2003 tax rates." (You can read the entire statement here).

Keep in mind, this coming election will be the first time that voters get to see public financial impact statements when they vote on proposed constitutional amendments. Thank goodness.

...posted by ⊥ 7:05 AM ⊥ #

More Dog News

A Largo man saw police entering his mobile home park, which prompted him to run, leaving his dog in his Jeep in the midday Florida sun. When the man returned a few hours later, the dog had died, prompting police to arrest him for animal cruelty. Read about it here in today's St. Pete Times.

...posted by ⊥ 6:49 AM ⊥ #

Dog Suit

Today's Naples Daily News has this story about a woman's suit against a pet transportation company that was paid to drive her dog to Boston. The dog died on the way, and the woman is now seeking compensatory and punitive damages for negligence and fraud. From the looks of the paper's web site, this is serious news in Naples.

...posted by ⊥ 6:30 AM ⊥ #

First District: Attorney General and Special Laws

Is the state's Attorney General an indispensable party to an action to declare a law unconstitutional? No, as explained in this decision from the First District. Though the AG must be served in the case, the AG can elect not to participate without affecting the validity of the proceedings. The First District's decision is also noteworthy for its discussion of when a law constitutes an unconstitutionally enacted special law. The court affirmed a decision finding unconstitutional, as a special law not enacted pursuant to the applicable constitutional procedures, a law permitting hospitals in only certain counties with adult open-heart services to be exempt from generally applicable certificate of need requirements.

Those of you following the Terri Schiavo constitutional case may recall that Michael Schiavo argued "Terri's Law" to be an unconstitutional special law, but the circuit court declared the law unconstitutional on several other grounds before reaching this argument.

...posted by ⊥ 6:13 AM ⊥ #

Tuesday, June 29, 2004

But Wait, There's More...

Tonight, Associated Press has its own short list of interesting new laws in this story on new laws that take effect Thursday.

...posted by ⊥ 9:23 PM ⊥ #

Legislation Update

A few quick legislation-related updates:

- the Central Florida beltway legislation (good for our black bears, better for our I-4 captives): Signed. (more here)

- the commercial real estate lien act (much scoffed by real estate lawyers because it would allow brokers to file liens based on commission agreements not made in writing): Vetoed.

- the condominium association law rewrite (why, oh, why did I become president of my condo building's association???): Signed.

- the law against promoting self-murder (remember when that band got a whole lot of national press for announcing a concert in St. Petersburg featuring a suicide?): Signed.

- Florida's spam law ($500 per email violation!): Signed.

...posted by ⊥ 3:15 PM ⊥ #

Petition Troubles

We are heading into that biennial funtime that might be called petition season -- when proposed citizen initiatives to amend the state constitution go through the processes of signature collection, state supreme court review, public relations bombardment, and, if they are lucky, a general election vote.

A few items are having trouble at the petition stage. Today's Pensacola News-Journal has this interesting story about how forgeries have been spotted on petitions being circulated in some panhandle counties. And the Associated Press has this story about a lawsuit challenging petitions used to collect signatures in support of Governor Bush's proposal to derail the high-speed rail amendment voters approved in 2000.

...posted by ⊥ 7:20 AM ⊥ #

Workout Suit Worked Out

Today's Tallahassee Democrat has this story on the settlement of Devaughn Darling's estate's wrongful death suit against Florida State University. Darling was a linebacker on the school's football team who died in 2001 during off-season workout drills. Note that under Florida law the family will need to obtain a claims bill from the Legislature next session in order to collect the top $1.8 million of the settlement.

...posted by ⊥ 7:11 AM ⊥ #

Eleventh Circuit: Rolling, Rolling, Rolling

If you'll pardon the second Rawhide reference in a week, you may be interested in this decision released yesterday by the Eleventh Circuit. The court construed the federal Wilderness Act to preclude the National Park Service from using motor vehicles to transport visitors across certain portions of Cumberland Island, Georgia. The case includes two notable notes: one on page 7 that deals with when a post-litigation change in conduct may result in mootness, and one on page 14 that identifies common sense as the most fundamental guide to statutory construction.

...posted by ⊥ 6:47 AM ⊥ #

Monday, June 28, 2004

Appellate Tips

One of the events I attended last week at The Florida Bar's annual meeting was the annual question and answer session with the Florida Supreme Court. Five of the justices attended -- Chief Justice Anstead, soon-to-be-chief Justice Pariente, and Justices Wells, Cantero, and Bell.

A couple of comments by the justices caught my ear, and I thought I would pass them along here.

On the subject of cases that take a long time to be decided, Chief Justice Anstead explained that attorneys can place discrete calls to the clerk's office to check on a case's status, and the inquiry will be passed on to the court without attribution to any particular caller. Justice Wells further commented that he thinks it can be appropriate for an attorney to file a motion at some point, such as a motion to expedite.

Also, responding to a question (or was it a comment?) about how the court makes jurisdictional decisions in certified question cases after the briefing is completed, Justice Pariente commented that she would be willing to consider an early motion to dismiss that raises jurisdictional arguments.

There you go. Now, let's not all start calling the clerk's office, moving to expedite, and moving to dismiss...

...posted by ⊥ 8:49 AM ⊥ #

Sunday, June 27, 2004

Supreme Court: PIP Party

This last week saw the Supreme Court of Florida release two PIP cases. I don't expect to say that very often. In one case, available here, the court held that PIP setoffs must be performed by the trier of fact (generally a jury) absent agreement by the parties. In the second case, available here, the court held that PIP setoffs should be made from the factfinder's economic damages award before, not after, that award is reduced by the amount of any comparative negligence on the plaintiff's part.

...posted by ⊥ 7:50 PM ⊥ #

Fifth District: Fees for Fees?

Are attorney's fees expended to determine whether a plaintiff's attorney is entitled to a contingency risk fee multplier considered fees incurred in determining entitlement to fees (in which case they're taxable) or in determining the amount of fees (in which case they're not taxable)? For the correct answer, and a dissent, check out this decision from the Fifth District.

...posted by ⊥ 5:22 PM ⊥ #

Eleventh Circuit: Citizenship of LLCs

A limited liability company is a citizen of which state? The Eleventh Circuit has the answer in this decision. The court also discusses how citizenship must be alleged when a case involving an LLC is removed to federal court.

...posted by ⊥ 5:18 PM ⊥ #

Eleventh Circuit: Reviewing MPPAA Arbitration Awards

In this decision, the Eleventh Circuit discussed the standards to be applied in this circuit when a district court reviews an arbitration award made under the Multi-Employer Pension Plan Amendments Act: factual decisions are reviewed for clear error, and legal decisions are reviewed de novo.

...posted by ⊥ 5:08 PM ⊥ #

Fifth District: S-Corp Assets

If you happen to be involved in a divorce where one party's assets include ownership of a Subchapter S corporation, then you will probably want to check out the Fifth District's decision in this dissolution case.

...posted by ⊥ 5:01 PM ⊥ #

Eleventh Circuit: Right For The Wrong Reason

I've meant to blog this decision for well over a week: the Eleventh Circuit has finally stated, in text, the well-established appellate principle that a lower court's decision may be affirmed even if that court's reasoning was wrong, so long as the result below is supported by another ground. In Florida, we refer to this as the "tipsy coachman rule." One of these days, I'll blog about why.

...posted by ⊥ 4:56 PM ⊥ #

Fourth District: When Interest Gets Interesting

Sticking with the hot topic notion, the issue of post-verdict, pre-judgment interest should be expected to heat up again with the Fourth District's release of its opinion in this case. The decision might make you wonder what the Florida Supreme Court really meant when it decided Amerace Corp. v. Stalling.

...posted by ⊥ 4:40 PM ⊥ #

Fourth District: Rule 1.525

Wondering what might be a "hot topic" in Florida law right now? How about the timeliness of an attorney's fees motion under Rule 1.525, a topic discussed again in this decision from the Fourth District.

...posted by ⊥ 4:36 PM ⊥ #

Supreme Court: 3.850 Motions

If you practice criminal law, or if you happen to have a personal need for post-conviction relief, you may be interested in the Rule 3.850 discussion found in this decision issued Thursday by the Florida Supreme Court.

...posted by ⊥ 4:31 PM ⊥ #

Fourth District: Passing the Sniff Test, Or Not

This decision from the Fourth District is last week's must-read for any Fourth Amendment fan. The case concerns the constitutionality of a search warrant issued, in part, on the basis of a canine's previous alert at the front door of the home to be searched. The majority held that the use of the dog to sniff for drugs at a front door constituted an unlawful search and that the resulting warrant was consequently invalid. Judge Gross offered a contrary point of view in an interesting dissent, arguing that use of the dog at a doorstep that the public could approach was not a search at all.

This is a fascinating issue, and one on which reasonable persons could differ.

The Miami Herald ran this story on the case on Thursday. Thanks to the loyal Abstract Appeal reader who sent me this link.

...posted by ⊥ 3:59 PM ⊥ #

Saturday, June 26, 2004

Third District: Renewing An Old PIP Conflict

Is an insured tortfeasor entitled to a PIP setoff where the claimant is unlawfully uninsured and thus lacks PIP coverage? In this decision, the Third District said yes, joining one other district and certifying conflict with two others. Given that the losing party in this appeal is the claimant, and that the amount at issue is probably $10,000, appealing the Third District's decision may be economically impractical, and this conflict, which has already been around for a few years, may be around a bit longer. Just a thought.

...posted by ⊥ 7:54 AM ⊥ #

Third District: Move 'Em On, Head 'Em Up...

This decision from the Third District reversed a criminal judgment for a new trial because the trial judge repeatedly told defense counsel to move on during cross-examination, limiting that examination's effectiveness.

As an appellate lawyer, I cannot help but wonder if defense counsel was required to do anything to preserve the interruption issue for review. I hope not...

...posted by ⊥ 7:35 AM ⊥ #

Friday, June 25, 2004

Abstract Pause

I have just spent the past couple of days in Boca Raton for The Florida Bar's annual meeting, which was excellent as usual and very well attended at the appellate events. The annual meeting is still going on, but I've returned to St. Pete for work purposes. That same work is going to keep me away from the blog during the day today, and all of the above is keeping Hunter hopping -- he's still in Boca. As a result, we are going to take today off from Florida Law Trivia, and I will be back to blogging (and answering email) as soon as I can.

Have a great day.

...posted by ⊥ 10:11 AM ⊥ #

Thursday, June 24, 2004

Third District: Caring About Carrying

Because the armed robbery portion of Florida's robbery statute, section 812.13, refers to carrying weapons, not using them, the Third District in this case vacated a conviction for armed robbery (reducing it to strong-arm robbery) where the weapon utilized by the defendant was a car. You cannot carry a car.

...posted by ⊥ 7:37 AM ⊥ #

Second District: Land Use Review

Land use fans will be interested in this decision released yesterday by the Second District. The decision reversed a trial court's decision not to disturb a city commission ruling on a requested small-scale development amendment to the city's comprehensive plan. The three-judge panel produced three opinions -- a majority, a concurrence, and a dissent -- and all three focused on how the "fairly debatable" standard of review should be applied to the evidence adduced before the commission.

...posted by ⊥ 6:59 AM ⊥ #

Constitutional Costs

The AP is running a story, available here, on the price tags that state analysts are coming up with for some proposed constitutional amendments that may make this year's ballot. Worth noting: Florida's cities and counties will lose an estimated $2 billion under the proposal to double the homestead tax exemption.

To quote the ever-affable, if a bit sardonic, character Vinny Gambini: Ya think?

...posted by ⊥ 12:53 AM ⊥ #

Wednesday, June 23, 2004

Eleventh Circuit: Securities Litigation

Securities lawyers may wish to note this case decided yesterday by the Eleventh Circuit. The court made clear that scienter in a complaint governed by the Private Securities Litigation Reform Act may be inferred from an aggregation of a complaint's factual allegations, and that scienter must be shown for each alleged statutory violation.

...posted by ⊥ 7:21 AM ⊥ #

Eleventh Circuit: Debt Collection Act

If your practice involves collecting debts, you may be interested in this decision from the Eleventh Circuit concerning the Fair Debt Collection Practices Act. The court held that a debt collector who filed a lien at the time it sent a demand letter, in conformity with Georgia law, did not violate the act. The court also held that a debt collector has no obligation under the act to stop a clerk's office from recording a lien if a debtor requests verification of the debt after the collector mails the lien to the clerk for filing.

...posted by ⊥ 7:13 AM ⊥ #

Tuesday, June 22, 2004

Mail Call

A reader recently wrote in to ask me about some general appellate principles. Here are the questions, slightly reordered for space purposes:

If the State Supreme Court has held that an appellate court cannot rule on issues which were not raised at trial, how does that square with their statement that an appellate court can also address any item which may affect the case? Would this be limited to constitutional issues and fundamental errors?

In addition, the Second District recently dropped a footnote in Smith v. State, 29 Fla. L. Weekly D1295 (Fla. 2d DCA May 28, 2004) which reads:

Because Smith's case must be retried, we mention another aspect of Smith's trial that was not argued in the briefs filed in this appeal. The prosecutors played for the jury the audiotapes of two lengthy interviews with Smith by sheriff's deputies. Upon retrial, if the State again seeks admission of these tape-recorded interviews into evidence, we suggest that the trial court consider whether some statements by Smith or the interrogating officers or both should be redacted. See §§ 90.403, 90.801-.802; Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000); Worden v. State, 603 So. 2d 581, 583 (Fla. 2d DCA 1992).

Smith at D1302, n.5.
[I]f appellate courts in general will not address an issue raised for the first time on appeal, how can the Second District address something that wasn't even raised or briefed to them? Could it be distinguished on the basis that it was 1) dropped in a footnote and was not part of the ruling; 2) only a 'suggestion' to the trial court and not an order; and 3) couched as something the trial court should 'consider' as opposed to an error which required correcting?

And here are my answers:

The idea that appellate courts cannot rule on issues not raised at trial is a prudential one that is based on the dominant function of the appellate courts: decisional error-checking. If the appellant said nothing about an issue to the trial court, then the trial court can hardly be said to have decided that issue adverse to the appellant, so there's really no decision to appeal. The exception is, of course, fundamental error -- an event unlawful in substance or process that bears so much on the notion of justice that the result in the case cannot be accepted as just simply because such a foul event occurred. Courts can address fundamental error for the first time on appeal, but, relatively speaking, very few things qualify as fundamental error. Some constitutional errors certainly do.

So how does this square with the idea that an appellate court can address any item that affects a case once the court's jurisdiction is invoked? Well, this latter proposition is quite different. It stems from the notion that, on some occasions, an appellate court's jurisdiction is invoked only by a particular issue, such as where the Florida Supreme Court's jurisdiction is triggered by, say, a constitutional issue. The state supreme court has long held that, once it has a case for some purpose, it can decide any issue presented by the case, if the court chooses to do so. (I'll note, parenthetically, that as stated the principle seems too broad: for instance, district courts of appeal hearing interlocutory appeals under Rule 9.130 steadfastly reject their ability to consider matters other than the appealable issue.) This is by no means the same as saying the court can address issues never previously raised in the case. The two sets of principles can thus work together: even if the supreme court's jurisdiction is triggered by one issue, the court has the ability to decide other issues presented by the case, so long as they are preserved for review or constitute fundamental error.

As for the Second District's footnoted comments, your second and third comments are appropriate. The appellate court did not make a decision, but the court did direct the lower court's attention to a particular issue. Why? Probably because it was a criminal case. In the criminal justice system, once an unpreserved issue reaches a certain level, which can be less than the level of fundamental error, it or the error of not raising it may form a basis for reversing the conviction or sentence at some future point, and a lot of work may be required to posture the case so that the issue may be addressed on its merits. The earlier the matter is directly addressed by the courts, the earlier justice can be obtained.

...posted by ⊥ 7:47 PM ⊥ #

Engle

If you are interested in class actions, or tobacco litigation, or appeals in general, you may wish to follow the briefing in the Florida Supreme Court in the giant Engle class action appeal. The class representatives recently filed their initial brief, and you can read it here.

You may recall that the class won a punitive damages judgment of approximately $145 billion in the trial court -- the largest judgment in history -- but on appeal the Third District reversed based on numerous grounds and ordered the class decertified. You can read the Third District's decision here.

...posted by ⊥ 7:04 AM ⊥ #

Questions, questions

Here is an interesting case involving judicial estoppel. An employee injured on the job not only recovered workers' compensation payments for a work-related accidental injury but brought a successful (and, it appears, ultimately uncontested) claim for additional benefits. Subsequently, the worker filed a tort suit against the employer, claiming the employer's actions were substantially certain to cause injury or death.

Should the worker be judicially estopped from pursuing the tort claim, having been successful in receiving additional benefits based on the notion that the injury was the result of an accident? According to the cases cited in this decision from the First District, states are split in answering this question. The First District answered it in the affirmative, holding that an estoppel exists, but the court certified the following to the Florida Supreme Court as a question of great public importance:

MAY AN EMPLOYEE RECEIVING WORKERS' COMPENSATION BENEFITS LITIGATE ENTITLEMENT TO ADDITIONAL BENEFITS THEN, HAVING OBTAINED AN AWARD OF THE ADDITIONAL WORKERS' COMPENSATION BENEFITS, BRING SUIT IN CIRCUIT COURT FOR THE PERSONAL INJURIES SUSTAINED ON THE JOB THAT WERE THE BASIS FOR THE AWARD?

...posted by ⊥ 6:47 AM ⊥ #

First District: Sanctioned Appeal

This decision from the First District imposes sanctions on appellate counsel. The case might serve as a reminder to appellate lawyers that they should know whether certain orders are appealable, and more importantly they should not be unresponsive, and surely not circuitous, when faced with an order to show cause.

...posted by ⊥ 6:31 AM ⊥ #

Monday, June 21, 2004

Bathing Suits

Remember the green or yellow or red flags that could be seen on Florida's beaches, letting would-be swimmers know whether it was safe, risky, or dangerous to enter the water? They won't be found any longer on state park beaches without lifeguards, on the theory that it's better to have no flag than the wrong flag, and without lifeguards present, changing the flags in a timely fashion is too difficult.

That's one way to look at, as presented in this story from the AP. Another way would be to look at the lawsuit mentioned in the story -- a man dove into riptide-filled waters to save a struggling couple despite red flags and wound up drowning himself, and his family sued the state for providing inadequate warnings -- and wonder if the Florida Legislature's calculus in abandoning the flag system was not as simple as: say something, get sued for saying it wrong; say nothing, avoid suit.

So where there are lifeguards, the state will rely on them to protect swimmers, and the flags will fly, too. Where there are no lifeguards, however, we will now have nothing.

Somebody call Overlawyered.com.

...posted by ⊥ 4:46 PM ⊥ #

Dare To Go Bare

If you are interested in a look at some doctors' perspective of the medical malpractice situation in Florida, including why some choose to "go bare" and not carry malpractice insurance, check out this story from yesterday's St. Pete Times.

One doctor mentioned in the story reported that his premiums had reached $95,000 for $250,000 in coverage -- and he had never had a judgment against him or settled a case. That does not mean he has never had suits filed against him, or that it did not cost some insurer good money to defend any such claims, but if such claims were filed, he apparently won them.

...posted by ⊥ 7:22 AM ⊥ #

Second District: Cracked Front View

Can you be pulled over by the police for having a crack in your front windshield? Does it depend how big the crack is, or where it is? Well, in this case, the Second District held that all cracks in windshields do not violate Florida law, only ones that block the driver's view or otherwise place the car in an unsafe condition that endangers persons or property. Unless one of these circumstances exists, law enforcement has no basis to stop a vehicle based on the condition of its windshield. Judge Whatley dissented and would apparently have held that any cracked windshield is a violation of Florida law.

...posted by ⊥ 6:50 AM ⊥ #

Questions, questions

In the second half of this opinion, the Second District found itself unsure about its offer of judgment case law where two defendants are involved, one of which is variously liable for the other's conduct. The court certified the following to the Supreme Court of Florida as a question of great public importance:

PURSUANT TO SECTION 768.79, FLORIDA STATUTES (2001), AND FLORIDA RULE OF CIVIL PROCEDURE 1.442, MAY A SINGLE DEFENDANT WHO MAY BE JOINTLY AND SEVERALLY LIABLE WITH ONE OR MORE CODEFENDANTS OFFER TO SETTLE A SINGLE PLAINTIFF'S CLAIM CONDITIONED UPON THE DISMISSAL OF CLAIMS AGAINST ALL DEFENDANTS?

...posted by ⊥ 6:38 AM ⊥ #

Second District: Prejudgment Interest

Those interested in whether prejudgment interest may be raised for the first time in a contract case after the jury returns its verdict should check out the first half of this decision from the Second District.

...posted by ⊥ 6:36 AM ⊥ #

Schiavo News

For those following the nuances of the Terri Schiavo saga, some noteable events are in the works. First up, Governor Bush's hand-picked lead attorney, private sector lawyer Ken Connor, has a scheduling conflict with the Florida Supreme Court's selected oral argument date of August 31. It seems Connor is likely to be in a Mississippi trial on that date, where he will serve as lead counsel for a plaintiff in a suit against a nursing home. You can read the motion to continue the oral argument here.

A couple of people have asked whether that sort of conflict qualifies as the sort of "extreme hardship" that the court referenced in its scheduling order (available here) as necessary to continue the oral argument date. Well, that is up to the court, but rescheduling in a situation like this would seem routine.

Of a more substantive nature, the Governor's motion to stay the appeal in the Second District has been transferred to the supreme court, as explained in this order. You can read that motion here and Michael Schiavo's opposition here.

The motion to stay is based on a pending petition that the Schindlers are pursuing before Judge Greer -- a petition for a writ of quo warranto. What's that? Quo warranto proceedings are inquiry proceedings wherein a court determines an individual's right to hold public office or whether a public officer may exercise a right or privilege derived from the state. From their petition, available here, it appears that the Schindlers are challenging Michael Schiavo's right to serve as Terri's guardian. They claim that he failed to file guardianship reports on time or at all and as a result is ineligible to serve. In his written response (available at the end of this document), Michael seems to imply that he received extensions of time to file his reports, says they have now all been filed, challenges the use of quo warranto proceedings for a guardianship matter, and argues that the writ is in all events inappropriate under the circumstances of the case.

The quo warranto issue is before Judge Greer in the guardianship case, not the separate constitutional challenge case that was before Judge Baird and is now on appeal. Governor Bush's motion to stay the constitutional challenge is based on his argument that Michael Schiavo's standing to challenge the constitutionality of "Terri's Law" may be lost if the Schindlers succeed.

If the motion to stay is granted, the delay may be considerable, since whatever decision Judge Greer makes will undoubtedly be appealed to the Second District.

...posted by ⊥ 4:00 AM ⊥ #

Friday, June 18, 2004

Friday Florida Law Trivia Answer

Skiing under the influence is a crime in Florida according to this statute. This statute provides that drunk skiing is a second degree misdemeanor.

Please have a safe weekend, and please do not violate this law.

...posted by ⊥ 4:50 PM ⊥ #

Friday Florida Law Trivia!

We all know that driving a car under the influence is against the law. And most of us who live in Florida know that boating under the influence is against the law, too. But, is water skiing under the influence against the law?

The answer will be posted today at approximately 4:45 PM EDT.

...posted by ⊥ 9:43 AM ⊥ #

Rush News

I had to attend a hearing in Tampa yesterday, and while driving across Tampa Bay's Howard Frankland bridge, I tuned in to Rush Limbaugh's program. He was talking about the case he has pending in the Fourth District, and he was insisting that a case decided the day before by the Third District -- this one -- strongly supported his position.

Now, Rush recited the facts from the Third District's case and its holding. But does the case really help him?

I'll suggest that the case cuts both ways. It can be read to support Rush's position that investigators cannot simply use a search warrant to seize medical records without complying with the procedures laid out in section 395.3025(4)(d). But the case can also be read to support a fallback position asserted by the state -- that even if section 395.3025 applies, the state acted with good faith in how it obtained the records and received court permission to review them, or at least that a hearing on that issue should still be held.

...posted by ⊥ 9:11 AM ⊥ #

Third District: Client, Know Thy Lawyer; Lawyer...

Here is a case that leads you to wonder. In it, a company sued its lawyers for malpractice after losing an indemnification case. The lawyers won on a summary judgment, and on appeal the Third District affirmed the judgment in the lawerys' favor, but not because the summary judgment was correctly entered. The court never reached that issue. Instead, the court agreed with the lawyers' cross-appeal that the trial court erred in not dismissing the case for failure to prosecute. Sounds like a good win for the old lawyers...

...posted by ⊥ 9:03 AM ⊥ #

Fourth District: Clarification on Fees For Coverage By Estoppel

On Wednesday, the Fourth District clarified an earlier opinion concerning attorney's fee awards under section 627.428 when a plaintiff is pursuing a theory of coverage by estoppel. The prior opinion stated that the plaintiff in the case could not receive fees because it was seeking to recover under an estoppel theory, not "under the policy" as the statute requires. The clarified opinion, however, explains instead that whether the plaintiff can be entitled to recover fees turns, in part, on whether the plaintiff was actually an insured under the policy. The statute permits fees to insureds who prevail against insurers.

In the case before the court, no coverage existed because the plaintiff did not qualify as an insured for purposes of the underlying suit. Thus, even though the plaintiff could pursue coverage under an estoppel theory, the plaintiff was not an insured and, even if it prevailed, could not recover fees under section 627.428.

...posted by ⊥ 8:44 AM ⊥ #

Third District: Ineffective Assistance

If you are a real estate appraiser facing disciplinary proceedings before the state administrative agency that governs you, and gaffes by your lawyer lead to you being disciplined, can you overturn the result on grounds you received ineffective assistance of counsel? Nope, said the Third District in this case.

...posted by ⊥ 8:39 AM ⊥ #

Third District: Power Company Liability

Recent case law says that when a power company takes on the responsibility of maintaining street lights, it must do so reasonably and can be liable to persons injured as a result of unreasonable maintenance. What if a person is injured in a parking lot next to a street with a light out? That is not the power company's responsibility, said the Third District in this case, unless the power company affirmatively undertook a duty to light the parking lot, too.

...posted by ⊥ 8:29 AM ⊥ #

Second District: Accident Reconstructionists

Looking to use an accident reconstructionist at trial, or to object to one? Check out this decision from the Second District, which explains how the propriety of admitting such testimony turns on the difficulties of the reconstruction process.

...posted by ⊥ 8:28 AM ⊥ #

Third District: Phoning It In

Let's start with an account that sounds like something I'd hear in a "Criminals Is Stupid" radio morning show segment. In this case, a man called 911 to report that his tenant was yelling and banging on his car. Officers arrived at the man's home to check out the incident. They found his door wide open, but knocks at the door produced no response. Next, they checked out the adjoining home, where the tenant lived, and found the tenant home but no disturbance. The officers then returned to the caller's home, the door to which was still open. They knocked again, and, fearing the man may be injured, entered, where they found marijuana in pots and they spotted the man in his backyard, with more marijuana in his hands.

The case concerned the man's efforts to suppress the contraband. The Third District reversed a suppression order, finding the entry and seizure constitutional.

...posted by ⊥ 8:13 AM ⊥ #

Happy Friday

'Tis Friday again, which means that Mr. Hunter Carroll returns to Abstract Appeal to offer our weekly Florida law trivia question. Before he does, though, I want to cover a few interesting cases from the last couple of days.

...posted by ⊥ 8:00 AM ⊥ #

Thursday, June 17, 2004

Eleventh Circuit: Satellite Signal Theft

I know I am behind on talking about some interesting cases out of the Eleventh Circuit, and that I need to devote some good time to this to catch up, but here's a quick post on a case from earlier this week that is just real interesting. The court held that the federal wiretap act, and specifically 18 U.S.C. § 2520(a), does not give DirectTV a private right of action to sue persons who illegally possess devices that decrypt the company's encrypted satellite television signals.

You can read the court's decision here. The court's legal analysis is very interesting, and the court notes that while district courts nationally have split over the private right of action issue, this is the first case to decide this issue at the circuit level. The decision's practical effect on the circuit's dockets is also noteworthy: the court notes that DirectTV has approximately 1800 similar cases pending in Florida's federal district courts alone. Finally, it might be mentioned that the decision was written by the circuit's newest member: Judge William Pryor.

...posted by ⊥ 7:00 AM ⊥ #

Not So Schiavo News

A reader sent me a post this morning from a message board run by a Maryland newspaper. Trying to develop a conspiracy-like ulterior motive for my disapproval of the Internet petition to impeach Judge Greer (remember this post and this one?), the poster commented that I work with Carlton Fields, that CF is "a big online advertiser" with the St. Petersburg Times, and that the Times "has been biased toward the side of protecting and coddling Judge Greer since 2000."

Wow. To my knowledge, CF does not "advertise" in any general media, including newspapers like the St. Pete Times. I suppose we run job ads in the classified section once in a while, but no different from any other employer in town. Probably less so.

What the poster does not understand is that I have no ulterior motives for anything posted on this site. I do this in my spare time (read: time many say would be better spent sleeping, working, enjoying life, etc.) simply because I enjoy Florida law. I am not out to help, or hurt, anyone. As for the Schiavo case in particular, I have never met or even spoken with anyone involved in the case, including Judge Greer. My disapproval of the Internet petition to have him impeached was based on two things: my appreciation for Judge Greer's very good reputation in the legal community, and my legal understanding that impeaching a judge based on his rulings -- especially rulings that have been affirmed or not appealed at all -- is nonsensical and contrary to the fundamental purposes of impeachment.

...posted by ⊥ 6:22 AM ⊥ #

Schiavo News

I previously commented that I would not take any bets on whether the Florida Supreme Court would immediately hear the constitutional challenge to "Terri's Law." (Such as in this post.) The reason for my uncertainty was that the supreme court had complete discretion in whether to accept the certification: they could have decided that the case was not of such great public importance, or even if it is they could have decided that they just did not want to hear it, and sent it back to the Second District.

So it was no surprise to see a 4-3 vote in favor of keeping the case.

Practically speaking, the four-justice majority may have focused on its inevitable role in the case, as defined by Article V, section 3(b) of the Florida Constitution: if the case had been sent back to the Second District and that court had affirmed Judge Baird's ruling that Terri's Law is unconstitutional, then the state supreme court would have been required to review that decision; if the Second District had reversed Judge Baird's ruling, finding the law constitutional, then the supreme court would have had discretion to choose whether to review that decision. So the high court could have reviewed the case in either event, and certainly the more one believes the law is probably unconstitutional, the more one must acknowledge that supreme court review may be inevitable.

Is that line of thinking what produced the 4-3 vote? I doubt it. Sure, the justices were aware of the possibility that sending the case back to the Second District might be no more than a temporary reprieve from the matter, but that happens all of the time, with every constitutional challenge to a statute. Certifications such as the one here are rare, and the supreme court's acceptance of such certifications is even rarer still.

My guess is that the four justices voting to keep the case were ultimately persuaded by how much time has passed since the judicial effort to determine Terri's fate got underway, and how many judicial decisions have been required during that period. It has been six years since Michael Schiavo asked the circuit court to determine whether Terri would choose to continue receiving her feeding tube, and there have been many, many decisions at both the trial and appellate levels, with no finality yet in any direction. Another factor may have been the extraordinary nature of the events that led to Terri's Law being passed -- events at the highest levels of state government. Why not resolve the constitutional challenge at the judiciary's highest level at the earliest opportunity? Just a guess.

...posted by ⊥ 3:14 AM ⊥ #

Wednesday, June 16, 2004

Schiavo News

The Florida Supreme Court has ruled that it will decide the constitutionality of "Terri's Law." In this order, issued today, a 4-3 divided court decided that it would accept the Second District's certification of the case as a matter of great public importance requiring immediate resolution by the high court.

As you probably know, Governor Bush is appealing Judge Baird's decision that the law, which authorized the Governor to reinsert Terri's feeding tube, is unconstitutional.

More on this later tonight.

...posted by ⊥ 4:49 PM ⊥ #

Grill Kill

If you live in a condo, townhome, or apartment and have any inclination to grill in the vicinity of your home, you may be interested in this story in today's Palm Beach Post. It discusses the regulations regarding grilling in and around these multi-family dwellings, including new rules that will prohibit even charcoal grilling. The story is never clear about whether the regulations being discussed are Palm Beach County fire codes or statewide. I hope to find this out.

...posted by ⊥ 7:54 AM ⊥ #

First District: Statements by Attorneys

Just a reminder here from the First District: statements made by lawyers not under oath are not evidence. Nice win, Bob.

...posted by ⊥ 7:46 AM ⊥ #

First District: DNA Database Problems

Many folks know that the Florida Department of Law Enforcement maintains a DNA database. But do you know that, last Thursday, in this case, the First District agreed with a criminal defendant's argument that the state failed to show how using that database to compute statistical probabilities for DNA results comported with the Frye test for the admissibility of scientific evidence? So, until some problems with FDLE's database are cleared up, it is effectively disapproved for statistical analysis purposes.

...posted by ⊥ 7:26 AM ⊥ #

Med Mal Woes

Today's Sun-Sentinel has this story about a South Florida plastic surgery center that's declared bankruptcy in response to hefty group of malpractice claims.

I found the story interesting because it refers to former patients' claims that the center is liable for the actions of doctors practicing there. Now, I'm not saying the center is not liable in that way, but I will note that, historically, doctors have been considered independent from hospitals where they practice, and thus a hospital was generally not liable for a doctor's malpractice. With the new limits on suits against doctors, though, it seems inevitable that plaintiffs' lawyers will be trying new and novel theories to spread malpractice liability to doctors' employing facilities -- whether medical centers, hospitals, clinics, or something else. This area of the law will be interesting to track over the coming years.

...posted by ⊥ 6:51 AM ⊥ #

Updated!

I finally took some time tonight to do a little tweaking to the main page template. Those with really good recollections may notice that the left column is a bit reorganized, with some new links, including one to the Florida Bar's Appellate Practice Section's web page. I also made a number of updates to the links in the right column, adding a number of new GeoBlawgs, making the "Good Blawgs and Blogs" section merely about blawgs, and creating a new list of Florida blogs. Some good Florida bloggers have been linking Abstract Appeal, and as I spot you all I will gratefully add you to the BlogBook.

...posted by ⊥ 2:07 AM ⊥ #

Tuesday, June 15, 2004

Drinking Thoughts

The AP has a story out this afternoon, available here, about how three homeless men are challenging the City of Jacksonville's public drinking law. According to the story, the law allegedly suffers from a number of defects, including selective enforcement, as shown by the city's willingness to create an "entertainment zone" around the time of the Super Bowl that will permit all sorts of folks (read: not homeless) to drink to their hearts' content in the same park where these men were arrested.

The legal profession: uncreative people need not apply.

...posted by ⊥ 3:26 PM ⊥ #

Second District: Jimmy Ryce

The list of legal quandaries over the Jimmy Ryce Act, Florida's law regarding the civil commitment of sexual offenders, does not seem to be getting any shorter. On Friday, in this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

The same court previously certified the same question in another case, back in August of last year, but since it has been awhile, I thought I'd repost it here on the blog.

...posted by ⊥ 12:58 PM ⊥ #

Second District: The Other ADA

It is rare to spot a Florida appellate decision involving preemption under the Airline Deregulation Act, but here's one from the Second District.

...posted by ⊥ 12:47 PM ⊥ #

Abstract Pause

The last few days have been b