Abstract Appeal -- by Matt Conigliaro

Thursday, September 30, 2004

Schiavo News: Legal Sufficiency Hearing

The AP reports here on the hearing held today. Apparently Judge Greer announced he will rule in the coming weeks on the legal sufficiency of the most recent motion to set aside the original judgment on Terri's wishes. The motion is described further in the preceding post.

...posted by ⊥ 8:45 PM ⊥ #

Schiavo News: A Hearing, A Withdrawal, And A Transcript

Today is the day that Judge Greer is scheduled to hold a hearing on the legal sufficiency of Terri's parents' latest motion to vacate the court's decision regarding Terri's wishes.

You can read the motion here, and you can read a legal memorandum the Schindlers filed supporting the motion here.

Reduced to their essence, the motion and memo argue that the court's decision on whether Terri would chose to continue receiving her feeding tube (the court found she would not) should be revisited in light of a speech Pope John Paul II gave in March in which he spoke about the removal of feeding tubes from people in persistent vegetative states. According to the Schindlers, Terri would not want her feeding tube removed if she knew of this recent speech. You can read the speech here.

Today's hearing regards the legal sufficiency of the motion, meaning that the court is not going to reconsider Terri's wishes but is instead going to determine, as a threshold matter, whether the motion presents a valid legal basis to revisit those wishes.

Also, today's St. Pete Times reports here that Pat Anderson, longtime lead attorney for the Schindlers in their battle with Michael Schiavo, has withdrawn from the case.

Finally, the Schindlers were interviewed on Larry King's show earlier this week. You can read the transcript from the interview here.

...posted by ⊥ 8:21 AM ⊥ #

Supreme Court: Abortion Funding Ruling Stands

Earlier this week, the Florida Supreme Court declined to review a Third District decision upholding Florida's rules that limit Medicaid reimbursements in the abortion context.

You can view the supreme court's order here. You can also view the district court's decision here.

To provide a more detail on this interesting constitutional case, the following is taken from my September 3, 2003 post on the district court's decision:

Earlier today, the Third District issued an opinion that will likely be noticed by the mainstream press for one holding but may be overlooked for another. The court rejected challenges to certain rules of Florida's Agency for Health Care Administration. The Florida rules at issue permit Medicaid reimbursement for abortion-related services only when the life of the mother is threatened or the pregnancy is the result of rape or incest. Florida's rules essentially track the federal law that limits to those same situations the circumstances under which the federal government will reimburse states for their Medicaid costs.

The plaintiffs challenged the law based on the equal protection guarantees found in the federal and Florida constitutions. The plaintiffs argued that the limitations on reimbursement for abortion-related services amounted to discrimination against women "because funding exists for all necessary medical services for men."

The court rejected the federal challenge based largely on the United States Supreme Court's decision in Harris v. McRae. More interestingly, and more likely to be overlooked, the court also rejected an argument that the Florida Constitution's equal protection provision requires a strict scrutiny analysis of any difference in how men and women are treated, an argument based on the 1998 amendment to Florida's provision adding the words "female and male alike" to its guarantee. The court held that the addition of those words to the constitutional provision does not require that a scrict scrutiny test be used to examine all gender-based differences in treatment.

...posted by ⊥ 8:06 AM ⊥ #

Second District: C'Mon Within

Rule 1.525 requires a motion for attorney's fees to be served "within 30 days after the filing of the judgment." Does a motion served before entry of the judgment satisfy the rule? No, said the Second District in this case. Ouch.

...posted by ⊥ 8:03 AM ⊥ #

First District: Arbitration Meets Administrative Law

If you are interested in administrative law or arbitration law, you will probably want to check out this divided opinion from the First District, which reversed a declaratory statement by the Department of Business and Professional Regulation.

DBPR had determined that a mandatory arbitration provision found in a condominium developer's sale documents violated public policy in Florida and could not be enforced. The court discussed some constitutional (preemption) and appellate (preservation) issues triggered by the parties' respective efforts to reverse and uphold the decision, and the court ultimately decided that the statement was beyond the agency's authority to issue. An industry sighs.

...posted by ⊥ 7:54 AM ⊥ #

First District: Light Reading

An employee walks out to his car for a cigarette break, and when he opens the car door, his gun falls, fires, and injures him. The employer has a policy against possessing firearms on store premises. The employee seeks workers' compensation. What do you think happens? Learn about the personal comfort and horseplay doctrines as you read the First District's opinion here.

...posted by ⊥ 7:47 AM ⊥ #

Tuesday, September 28, 2004

Bring Out Your Dead...

And make sure they vote, or sign petition drives. This story from today's St. Pete Times tells the morbid tale of how dead people's signatures keep turning up in the citizen support signature lists for sponsors of Florida's proposed constitutional amendments.

I know. You're shocked. Shocked, you tell me.

...posted by ⊥ 9:35 PM ⊥ #

We're Not Alone

Apparently Florida is not the only state that will serve as battleground for the doctors v. plaintiffs' lawyers battle on election day. Check out this story from FindLaw.

Stay tuned in the coming weeks for discussion on the Florida proposals discussed in the article.

...posted by ⊥ 9:16 PM ⊥ #

Eleventh Circuit: Latest Election Suit, Going Forward

Yesterday, the Eleventh Circuit issued the latest judicial decision involving Florida elections. (From somewhere out there, maybe the direction of Tallahassee, I think I hear sighs of relief.) The case involves a suit by U.S. Representative Robert Wexler that challenges Florida's voting system as unconstitutional because the voting machines used by some, but not all, counties do not permit manual recounts. Representative Wexler asserts it is unconstitutional for voting machines in some counties to utilize paper ballots or receipts that can be recounted and for others not to do so. Ultimately, he's seeking to force the 15 Florida counties with paperless electronic voting machines to install paper receipt functionalty on the machines, which would allow manual recounts.

The district court had dismissed the case on abstention grounds based on the pendency of a similar state case filed by Representative Wexler. In a rather brief opinion, available here, the Eleventh Circuit reversed. The case will now go forward on its merits.

To check out a story on the district court's dismissal, see this prior Abstract Appeal post.

For coverage of yesterday's decision, check out the stories in today's Palm Beach Post and Sun-Sentinel.

...posted by ⊥ 7:26 AM ⊥ #

Appellate Seminar... On Blogs?

October is looking to be a brutal month. Actually, these last few days of September seem rather daunting themselves. If I make it to November, I may find myself heading to New York for DRI's annual Appellate Advocacy Seminar. I believe it's been approved for appellate certification credit in Florida, in addition to the usual CLE credit, and -- would you believe -- one of the presentations will concern appellate practice and the Internet, hosted by the godfather of blawgs himself, Howard Bashman. That's right, a presentation on blogs. By Howard. Gotta love that.

For more info on the seminar, look here.

...posted by ⊥ 7:23 AM ⊥ #

Eleventh Circuit: Important Case On Appellate Arguments

I don't label too many cases "must reads" for anyone, but here is a case from the Eleventh Circuit that I will call a must-read case for appellate attorneys. It's an important case about whether the Americans With Disabilities Act applies to Southwest Airlines's Internet site.

The district court determined that the web site was not a place of public accommodation under the act. The Eleventh Circuit affirmed, but not on the merits. The circuit court explained that, on appeal, the plaintiffs argued only a modified version of the theory they presented to the district court, and by changing the theory on appeal, they left the court with nothing to review. The modified theory was not preserved for appeal, and the old theory was effectively abandoned.

If yours is an appellate practice, keep this case handy. It's filled with legal authorities to support both components to the circuit court's two-punch decision. Also, keep this case in mind as you craft your appellate arguments. As the decision reminds us, an appellate court's primary function is to review alleged error by the trial judge, not to give the appellant a second day in court.

As a final note, I noticed that the court's opinion (page 11) referred to the plaintiffs' "blue brief." (An appellant's initial brief in the Eleventh Circuit is filed with a blue cover.) By my recollection, and Westlaw's far better recollection, that's the first time a published Eleventh Circuit opinion has made such a reference in text, as opposed to a citation.

...posted by ⊥ 7:19 AM ⊥ #

Eleventh Circuit: Asserting New Claims At Summary Judgment

This case presents a strangely simple yet significant holding. The Eleventh Circuit explained that a plaintiff may not oppose a motion for summary judgment by asserting a new, unpled claim. The proper procedure is to move to amend the pleadings.

...posted by ⊥ 7:14 AM ⊥ #

Questions, questions

Everyone has questions. In this case, the Eleventh Circuit had five, all concerning Florida insurance law and all now certified to the Supreme Court of Florida for resolution. Insurance folks, particularly those who represent sureties, will really enjoy these:

1. IS THE OBLIGEE OF A SURETY CONTRACT CONSIDERED AN "INSURED" SUCH THAT THE OBLIGEE HAS THE RIGHT TO SUE THE SURETY FOR BAD-FAITH REFUSAL TO SETTLE CLAIMS UNDER § 624.155(1)(b)(1)?

2. IF SO, DOES THE LANGUAGE IN § 624.155(1)(b)(3) ELIMINATE § 626.9541's REQUIREMENT OF PROOF OF A GENERAL BUSINESS PRACTICE WHEN THE PLAINTIFF IS PURSUING A § 626.9541 CLAIM THROUGH THE RIGHT OF ACTION PROVIDED IN § 624.155?

3. IS AN ARBITRATOR'S FINDING THAT A SURETY'S PRINCIPAL HAS BREACHED ITS DUTY TO THE OBLIGEE, AND THAT THE SURETY IS BOUND TO THE ARBITRATION AWARD TO THE EXTENT THAT ITS PRINCIPAL IS BOUND, SUFFICIENT TO SATISFY THE CONDITION PRECEDENT TO A LATER BAD-FAITH REFUSAL TO SETTLE CLAIM THAT THERE BE A PRIOR ADJUDICATION THAT THE PLAINTIFFS WERE ENTITLED TO A PAYMENT OF A CLAIM FROM THE SURETIES?

4. IF NOT, IS THAT ARBITRATOR'S DECISION RES JUDICATA BARRING DADELAND'S LATER CLAIM AGAINST THE SURETIES FOR BAD-FAITH REFUSAL TO SETTLE?

5. WILL AN ARBITRATOR'S DENIAL OF THE DEFENDANT'S AFFIRMATIVE DEFENSES IN A BREACH OF CONTRACT CLAIM COLLATERALLY ESTOP THE SAME DEFENDANTS FROM RAISING THE SAME DEFENSES IN A SUBSEQUENT BAD-FAITH REFUSAL TO SETTLE CLAIM AGAINST THE SAME PLAINTIFF?

...posted by ⊥ 6:57 AM ⊥ #

Eleventh Circuit: Interesting Prisoner Suit

If you are one of those persons who cannot get enough Eleventh Amendment case law, or you happen to take an interest (maybe a personal one) in either the Americans With Disabilities Act or the Eighth Amendment, then you may want to check out the interesting legal analysis set forth in this decision from the Eleventh Circuit.

...posted by ⊥ 6:54 AM ⊥ #

Eleventh Circuit: Immigration

Is an expunged state conviction still a conviction for federal immigration purposes? Yes, said the Eleventh Circuit in this case.

...posted by ⊥ 6:53 AM ⊥ #

Eleventh Circuit: ERISA and Standing

ERISA fans and constitutional standing buffs will enjoy this decision from the Eleventh Circuit, which held that a state which took assignments of its citizens' ERISA claims lacked standing to pursue those claims in federal court.

...posted by ⊥ 6:51 AM ⊥ #

Eleventh Circuit: Sentencing Guidelines and Blakely

Earlier this month, in this case, the Eleventh Circuit weighed in on the circuit-splitting question of whether the federal sentencing guidelines survive the United States Supreme Court's decision in Blakely v. Washington. The Eleventh Circuit held that the federal guidelines survive Blakely, at least until the U.S. Supreme Court says otherwise.

Blakely held that states may not increase sentences beyond statutory maximums based on facts not submitted to a jury and proved beyond a reasonable doubt. This Fall, in one of its most watched cases, the nation's high court will decide whether the sentencing guidelines stand or fall based on Blakely's rationale.

...posted by ⊥ 6:46 AM ⊥ #

Focus

Over the past couple of weeks, I spent a large amount of time focusing on the Reform Party and Schiavo cases. It's time now to update what's been going on in some of the case law, particularly that from the desks of our local federal friends.

...posted by ⊥ 6:42 AM ⊥ #

Monday, September 27, 2004

Provisional Ballot Challenge -- Lost

File this under news that got lost somewhere between the Schiavo case and our most recent windy visitor. According to this story from the Palm Beach Post, last week Leon County Circuit Judge L. Ralph Smith entered what sounds like a final order against the petitioners in the provisional ballot challenge. (The article is not clear about the nature of the order or its grounds.)

You may recall this case from this earlier post, where I linked the petition and described a few of its peculiarities. The petitioners in this case originally sought a writ of mandamus from the state supreme court, but the high court transferred the proceeding to the Leon County Circuit Court. For more on the transfer order, check out this prior post.

...posted by ⊥ 9:30 AM ⊥ #

Word Play

If you are among those attorneys who use Microsoft Word for work but have dutifully purchased a lone copy of Word Perfect to comply with the Florida Supreme Court's rule that briefs and most other filings be submitted in Word Perfect format, you can relax. No more hurrying to convert Word documents to Word Perfect just before getting the document filed. The high court is converting to Word. That's great news for many.

The court first mentioned its conversion on its opinions page a few weeks ago. More recently (somewhere between the Reform Party case and Hurricane Jeanne), the court released an adminstrative order providing details on how this change will affect filings. The court will begin accepting documents in Word format on October 1 (though they'll surely take them now, too), and as of April 1, 2005, Word will be the required format -- except in rules cases, where Word format will become mandatory beginning on January 1.

I suppose those offices that use Word Perfect will now wind up getting a lone copy of Word for conversions. Perhaps someday the court will accept pdf-formatted documents. Then we could all use Adobe Acrobat or freeware like PDF995 to format our documents instantly and uniformly, regardless of what word processor produced them.

You can read the court's administrative order here.

...posted by ⊥ 9:10 AM ⊥ #

Storm Loss

Looking back on the last six weeks, Floridians have had only one weekend where we weren't fixated on a storm bearing down on the state. All four storms were headed straight for my area -- St. Pete -- at one time or another. Fortunately, they all turned more or less, and, with one exception, we received only a whole lot of tropical storm-level wind and rain. Three of the storms' centers hit less than a county away. Ivan hit the Panhandle.

Seeing all the true devastation so close to Tampa Bay, or on the other coast, I'm not going to complain. We were greatly inconvenienced but not harmed. Still, for someone who keeps track of time for a living, it continues to strike me as bizarre that so much time has just been lost over the past month and a half. And that's if you were lucky.

...posted by ⊥ 8:28 AM ⊥ #

Friday, September 24, 2004

Schiavo Thoughts

This has taken so long to post because there is so much to say about yesterday's decision declaring "Terri's Law" unconstitutional.

First, let's round up the local media coverage. Local coverage abounds on yesterday's decision, such as the stories in these papers:

Sun-Sentinel
Tallhassee Democrat
Tampa Tribune
St. Pete Times

Also, check out the national coverage in these papers:

Herald-Tribune
Florida Times-Union

Now let's see what I can add to all that.

First, my hat is off to the Florida Supreme Court not only for its expeditious ruling but for keeping the ruling unanimous. That is no small feat nowadays. Florida courtwatchers know that our high court is continuously treading farther down the path of multiple concurrences, where justices who agree with the majority offer independent, non-binding thoughts on the issues ruled upon and not ruled upon, and justices disagreeing in whole or part with the majority set out their differences, too. The single unanimous opinion in this case is a strong, bold statement the court is of one mind that "Terri's Law" is not constitutional. The well-written decision will be relevant and precedential in Florida and elsewhere for decades and perhaps centuries to come.

So how about an appeal? The quoted comments reproduced in the stories above suggest that an appeal to the United States Supreme Court is under consideration. That's appropriate. It should be. But long consideration does not appear necessary. The U.S. Supreme Court will only review decisions involving federal law. This case was brought to challenge a state law as unconstitutional under a state constitution, and neither the legal challenge nor the final ruling in the case bears any trace of a federal issue.

That said, I can suggest what the Governor's counsel might be thinking about. Remember Governor Bush's Reply Brief? I didn't mention this when I was discussing the briefing, but the Governor's Reply Brief did include an argument on a federal issue: the Governor argued (page 6) that he was being denied his federal due process rights by not having a trial regarding Terri's wishes. That argument was most likely included to try to set up a U.S. Supreme Court challenge should the Florida Supreme Court rule against the law's constitutionality.

As for the process of appealing, Florida provides state officials with an "automatic stay" of a lower court's ruling when they appeal that ruling. There is no similar rule when a state official appeals a state court decision to the federal supreme court. So Governor Bush would need to ask the U.S. Supreme Court not only to review the Florida decision but to stay that decision pending review. The ruling on that motion, were it made, would be a rather good signal of whether the U.S. Supreme Court thought it had a role to play here.

So you know, the Governor will have 90 days from when the Florida Supreme Court's decision becomes final to file a notice of appeal. The Florida court's decision will be final either 10 days from yesterday, if no motion for rehearing is filed, or whenever a filed motion for rehearing is resolved. As I mentioned, though, filing a notice would not stay the Florida court's ruling. That could only be done by motion.

Next, a word on why this case is different from the death penalty cases that are being discussed. When a defendant is sentenced to die, the defendant will usually return to court by every possible means in an attempt to have the conviction and sentence overturned. (Timothy McVeigh was a high profile exception to this.) This process often takes decades to conclude. Importantly, these challenges are made by the defendant against the conviction and sentence. The propriety of the conviction and sentence are squarely at issue.

In this case, by comparison, the propriety of the original decision regarding Terri's wishes was never squarely at issue. The case was brought by Michael Schiavo to determine the constitutionality of "Terri's Law." Only the constitutionality of the law was at issue. No one ever instituted a separate claim or case in an attempt to revisit the decision about whether Terri would chose to continue receiving a feeding tube. That's why the Florida Supreme Court yesterday began its analysis by saying:

We begin our discussion by emphasizing that our task in this case is to review the constitutionality of chapter 2003-418, not to reexamine the guardianship court’s orders directing the removal of Theresa’s nutrition and hydration tube, or to review the Second District’s numerous decisions in the guardianship case.

Meanwhile, there are a number of things still going on that concern the guardianship court. Two concern Michael's status as Terri's guardian. They are ancillary to the decision to remove Terri's feeding tube because that decision was made by the court based on what Terri would want, not what her guardian wants. Whether Michael is Terri's guardian or someone else is would not change the result regarding Terri's wishes. I'll post about these items more in the future.

The significant item pending in the circuit court is a motion filed by Terri's parents to vacate the original decision regarding Terri's wishes. You can read the motion here. It alleges that Terri's wishes should be revisited in light of Pope John Paul II's recent statements regarding the removal of feeding tubes from people in persistent vegetative states.

This is a terribly interesting motion on multiple levels. First, there is a significant threshold question of whether such a motion states a proper claim for relief. Should recent events affect someone's decision regarding whether he or she would continue to receive life-prolonging medical treatment? And in particular, statements by religious leaders? That's one angle.

Another is whether this particular statement really means what the Schindlers say it means. The statements were made in a speech the Pope gave back in March. You can read the speech here. There is considerable debate in the Catholic Church over whether the Pope's statements were meant to cover all situations or whether they were addressed to particular situations, such as where there is a potential for recovery. There appears to be far less debate in the Church regarding whether the statements were made as authoritative, binding pronouncements. They were apparently not. (Contrary to the beliefs of some, not every word uttered by a pope in any situation is binding on Catholics.)

So what do the Pope's words mean for Catholics? How do they compare with what the American Bishops have been teaching about feeding tubes? (Compare the Pope's statements to last year's statement on Terri's case by Bishop Robert Lynch, bishop of the diocese where Terri and her family live and the highest ranking Church official with respect to Terri other than the Pope.) These questions are tough to answer, and there is a significant legal issue here about whether a court can even try to do so. The constitutional doctrines regarding the separation of church and state generally discourage, if not prohibit, courts from delving into theological disputes.

According to the Tampa Tribune article linked above, Judge Greer will hold a hearing next week on the legal sufficiency of the Schindlers' latest motion to vacate. If he rules the motion is facially sufficient to form a basis for relief, the matter will head to a trial, and thereafter the losing party will most likely appeal. If he rules the motion insufficient, the Schindlers will no doubt appeal. So, either way, this saga continues.

...posted by ⊥ 7:50 AM ⊥ #

Thursday, September 23, 2004

Schiavo Thoughts

I'll have some expansive thoughts posted later regarding today's decision. Thanks to the many readers who've emailed me and asked questions. I'll try to answer them, mostly about what happens now, tonight.

...posted by ⊥ 3:01 PM ⊥ #

SCHIAVO RESULT

The Florida Supreme Court has ruled in the Terri Schiavo case. I previously commented in this post that a decision should probably not be expected for months, but I also noted that the sooner the court ruled, the more likely it was that the court would affirm the trial court's decision that "Terri's Law" is unconstitutional. I commented that it was possible a quick ruling could find the law unconstitutional based on the separation of powers issues.

Well, the high court ruled very quickly. Far quicker than I expected. The ruling is unanimous that "Terri's Law" is unconstitutional because it violates the separation of powers principles of Florida's constitution.

You can read the decision here.

...posted by ⊥ 11:19 AM ⊥ #

Proposed Minimum Wage Amendment

Today's St. Pete Times has this story regarding the proposed constitutional amendment to increase, perpetually, the minimum wage in Florida. That's just one of many proposed constitutional amendments that we'll be voting on in November and that I will be blogging about in the weeks ahead.

Appropriately so for a business-section piece, the story leaves out one angle that's been the subject of many a political whisper: that this proposal was created not so much for its own merits but to encourage turnout by voters likely to vote for the Democratic presidential nominee.

...posted by ⊥ 8:48 AM ⊥ #

Wednesday, September 22, 2004

CLE Highlight

Yesterday's CLE for members of the Appellate Practice Section discussed the state supreme court's pass-through jurisdiction: the procedure by which an appeal can leap-frog the district court of appeal and land right away in the high court. The CLE was very well done and included one trivial tidbit I thought I'd pass along.

Jon Wheeler, Clerk of the First District Court of Appeal, was a panelist yesterday. He recounted how Sid White -- the former longtime clerk of the state supreme court -- once referred to pass-through cases by another term: throw-up cases.

It's in all the point of view, I guess.

...posted by ⊥ 6:48 AM ⊥ #

Fifth District: Majority Opinions?

This case from the Fifth District presents an unusual situation. One judge concurred in both the lead opinion and in another judge's separate concurrence. On the theory that two judges of a three-judge panel speak for the court, I suppose that means there are two majority opinions in this case, although the second one would then appear to be largely dicta.

...posted by ⊥ 6:33 AM ⊥ #

Third District: Support Problems

Can $23 million in payments pursuant to an agreed dissolution order be characterized as support for the payee? Maybe, but not in this case. The Third District saw the payments as part of an equitable distribution. Family law attorneys will enjoy just reading the figures at issue in this case.

...posted by ⊥ 6:33 AM ⊥ #

Third District: Certified Conflict Question

In this asset forfeiture case, the Third District not only certified conflict with a Fourth District case but articulated the specific question that the districts have answered differently:

DOES A PERSON IN MERE POSSESSION OF PROPERTY AT THE TIME OF SEIZURE HAVE STANDING AT AN ADVERSARIAL PRELIMINARY HEARING TO CHALLENGE THE SEIZURE WITHOUT SHOWING A PROPRIETARY INTEREST IN THE PROPERTY?

...posted by ⊥ 6:31 AM ⊥ #

Third District: Police Duties

We know that police owe a duty of care to third parties injured as a result of high speed chases of fleeing suspects. However, according to this case from the Third District, a passenger in the car of a fleeing suspect is not owed a duty of care.

The court's analysis is interesting. Resolving whether a legal duty exists is one of the purest policy-based substantive decisions that courts make.

...posted by ⊥ 6:24 AM ⊥ #

Fourth District: Certiorari

Is the denial of a motion to continue a trial reviewable by petition for writ of certiorari? No, said the Fourth District in this case. Any error can be corrected on appeal.

...posted by ⊥ 6:23 AM ⊥ #

Questions, questions

Chief Judge Schwartz of the Third District recently authored this opinion, which certified a series of questions to the Florida Supreme Court as matters of great public importance.

The case involved a woman who claimed she visited a hotel and learned its parking lot was full. A guard directed her to park at a lot across the street, with assurances the lot was safe. She did so and was confronted by an armed robber who took her purse and, after asking her to lift her clothes, patted her body. She was not physically injured but claimed severe emotional damage. She sued the hotel and its security company for negligence in failing to protect her from foreseeable criminal action. The trial court granted the defendants summary judgment based on Florida's impact rule. The Third District affirmed based on its precedent, but the court expressed misgivings about the result and certified to the state supreme court the following questions:

1. Is the evidence that the plaintiff was touched against her will by the pistol placed to her head and in "patting down" her body sufficient to satisfy the Florida impact rule? See and compare, e.g., Gracey v. Eaker, 837 So. 2d 348, 355 (Fla. 2002); Zell v. Meek, 665 So. 2d 1048 (Fla. 1995); Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985), review denied, 492 So. 2d 1331 (Fla. 1986).

2. Is the evidence that the plaintiff was apparently the object of an assault and multiple batteries1 sufficient to satisfy a "free standing tort" exception to the impact rule which may exist in Florida? See Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992).

3. Is the innkeeper-guest relationship involved in this case a "special relationship" under an exception to the impact rule which may exist in Florida? Rowell v. Holt, 850 So. 2d 474 (Fla. 2003); Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002).

4. Should the impact rule be abolished?

...posted by ⊥ 6:20 AM ⊥ #

Tuesday, September 21, 2004

Appellate Practice Reminder

This is more than a bit late, but in case anyone's checking this blog just before lunch: A reminder to the appellate folks out there that today's Florida Bar Appellate Practice Section CLE starts at 12:10 pm and concerns "The Ins and Outs of Pass-Through Jurisdiction."

...posted by ⊥ 11:50 AM ⊥ #

Second District: Will You?

Let's say you are in a divorce proceeding. Can the family law court require you to make your child the beneficiary of your will? For the answer, check out the end of this case.

...posted by ⊥ 7:48 AM ⊥ #

Second District: Plain Smell

Here is a constructive possession case that may interest those involved in criminal law. The possession issue turned on whether a block of pressed cocaine, wrapped in plastic and placed in an open kitchen cabinet behind some other items, was in plain view. The Second District said no, rejecting a "plain smell" theory that the item, which may have looked like soap, did not smell like soap. Judge Covington dissented.

...posted by ⊥ 7:43 AM ⊥ #

Second District: Applying Kaklamanos

This case involved a plaintiff's failure to utilize chapter 766's presuit notice procedures, in the context of a developmentally disabled persons' rights claim, and the appellate court's ability to utilize the writ of certiorari to correct the trial court's error in not dismissing the case. A panel of the Second District divided over whether certiorari could apply, with a majority saying it could. The discussion is an excellent one for appellate practitioners to study.

...posted by ⊥ 7:42 AM ⊥ #

Second District: Conferring With Counsel

For a very interesting, academic-style analysis of whether a trial court committed reversible error in prohibiting a defendant from conferring with counsel during a break in the defendant's testimony, check out this decision from the Second District.

...posted by ⊥ 7:39 AM ⊥ #

Second District: Set-offs

To set off a third party's settlement, must the issue be pleaded as an affirmative defense? As this case from the Second District shows, the answer is: it depends.

...posted by ⊥ 7:37 AM ⊥ #

Second District: ERISA

Are all group medical insurance policies purchased through an employer covered by ERISA? Not according to this decision from the Second District.

...posted by ⊥ 7:36 AM ⊥ #

Second District: Jurisdiction Reminder

Just a simple reminder here from the Second District: a trial court's lack of post-judgment jurisdiction, such as where the trial court considers a Rule 1.540 motion beyond the rule's time limits, can be raised for the first time on appeal.

...posted by ⊥ 7:33 AM ⊥ #

Monday, September 20, 2004

Second District: Spider Sense

This decision may make for an interesting lesson in tort law. Following an automobile accident, a man went to a hospital, where he donned a gown and was bitten by a black widow spider. He sued the hospital for negligence regarding the bite and for negligent infliction of emotional distress regarding some joking comments the hospital staff made after the injury. A jury awarded damages on each theory, but, in Florida's first case on spider bites, the Second District reversed, finding the evidence insufficient to impose liability as a matter of law.

...posted by ⊥ 8:00 AM ⊥ #

Supreme Court: Homestead Exemption

In this case, the Florida Supreme Court held that the "Save Our Homes" cap on homestead property tax assessments does not take effect until a homeowner applies for and receives a homestead exemption. The Fourth District had previously decided here that the cap applied once a homeowner qualified for the exemption.

...posted by ⊥ 7:59 AM ⊥ #

First District: Sentencing

The First District has generated a conflict with other district courts of appeal over whether a single offense can result in a sentence as a violent career criminal and a habitual felony offender. If sentencing's up your alley, check out this decision for the details.

...posted by ⊥ 7:58 AM ⊥ #

Crisis Break?

Looking back over the last few weeks, Charley, Frances, Ivan, and the Reform Party election case have been overpowering events from where I sit. The storms had me away from the blog for a bit and the elections case dominated the blog. Time to get back to some case law and such, at least until the next crisis.

...posted by ⊥ 7:34 AM ⊥ #

Friday, September 17, 2004

Reform Party Case: By the Numbers

For those of you who keep track of everything by numbers, here's some info on the decision blogged below:

There are 7 justices on Florida's supreme court.

Today's decision was 6-1 in favor of reversing the trial judge and leaving the Reform Party candidates on the ballot.

The court split 5-2 with regard to whether the Reform Party candidates were affiliated with a national party and were nominated at a national convention. Five said maybe. Two said no.

Only 1 justice thought the Reform Party folks should not be on the November ballot in Florida.

The more I think about it, the more I think the media will have an interesting time summarizing what the majority actually decided. Did they find that the Reform Party folks were legit or not? Well, they did, but they did so in the most deferential way possible, essentially saying that under some definition of those terms, the Reform Party candidates qualified, but the justices had no idea whether such broad meanings were the meanings the Legislature intended when it set those requirements. Given the context -- a presidential election, a right of access to the ballot, and a right to vote -- the court decided to err in favor of putting candidates on the ballot.

...posted by ⊥ 7:13 PM ⊥ #

REFORM PARTY CASE: INJUNCTION REVERSED

The Florida Supreme Court has just reversed the injunction by Judge Davey which ordered the Reform Party presidential candidates, Ralph Nader and Peter Camejo, off Florida's 2004 ballot.

So Nader is on the Florida ballot. For good.

You can read the high court's decision here.

I must give the court a grand amount of credit. The court issued three opinions -- a five-justice majority opinion, a concurring opinion, and a dissenting opinion. All three are well written, which, under the circumstances, seems almost impossible.

The majority opinion is without attribution but was joined by Chief Justice Pariente and Justices Wells, Quince, Cantero, and Bell. In short, the majority concluded that terms such as "national party" and "national convention" -- terms which are critical to qualification for the statewide ballot in Florida -- are not defined under Florida law and, in the absence of some indication of what the Legislature intended those terms to mean, the court was unwilling to conclude that the Reform Party candidates did not qualify. The court was also unwilling to ascribe meaning to those terms when the Reform Party would have had no way to be on notice of any such meaning. So said five justices.

Justice Lewis concurred in the result in one of the more dissentful concurrences you will come across. He found the majority's approach unfaithful to a common understanding of what makes a party a "national" one, but he agreed with the result -- leaving Nader on the ballot -- because the Reform Party had no notice of how Florida would construe the requirements at issue.

Finally, Justice Anstead dissented. In essence, he agreed with the trial court that no matter how the terms at issue are defined, the current Reform Party candidates do not qualify for inclusion on the ballot.

Congratulations to the court on making it through this difficult case in such a swift but polished fashion. The county elections supervisors -- all 67 of them -- now know what ballot to send to absentee voters, and the 4 or so supervisors who already mailed ballots with the Reform Party candidates listed, well, you folks can breathe easier now.

...posted by ⊥ 6:35 PM ⊥ #

Reform Party Case

No decision yet, but the day is far from over...

...posted by ⊥ 3:14 PM ⊥ #

School Voucher Decision: Headed En Banc

Turning back to last month's Bush v. Holmes decision -- the case invalidating Florida's Opportunity Scholarship Program under Article I, section 3, of the Florida Constitution -- a funny thing has happened on the way to the Florida Supreme Court.

Word is out that the First District has granted rehearing en banc in the case.

It would seem doubtful they did that to reiterate the panel majority's opinion.

Those of you who have frequented Abstract Appeal of late may recall that I took the rare step of offering my own views on the majority's decision back in this post. (That probably had something to do with my work in writing the Attorney General's brief in the case.) And the following Friday the whole subject prompted me to ask this very neat Florida Law Trivia question, which generated some terribly interesting responses from readers. (The answer came here.)

...posted by ⊥ 10:58 AM ⊥ #

Trivial Break

Hunter and I are getting a pro bono brief out the door today to one of our state's noble courts, so we're taking a break from the weekly Florida Law Trivia post. We'll think of a good stumper for next week.

...posted by ⊥ 9:37 AM ⊥ #

Reform Party Case: Oral Arguments Today

Just a reminder that the oral argument for the lightning-fast appeal in the Reform Party case is scheduled for 8 am this morning. The argument will be broadcast over the Internet, and you can watch it by going to this page at 8 o'clock and clicking on the appropriate link. If you log on to that page before 8 am, you will need to refresh the page at just about 8 in order to acquire the correct link to watch the arguments.

I haven't checked on national cable coverage, but I would not be surprised if one of the news channels will be presenting the argument live.

...posted by ⊥ 5:32 AM ⊥ #

Thursday, September 16, 2004

Reform Party Case: Briefs Are In

On the heels of Judge Davey's ruling yesterday that the Reform Pary is not a national party under Florida law and that it failed to nominate Ralph Nader and Peter Camejo at a national convention, the parties to the case have filed their appellate briefs in the Florida Supreme Court. They're available at these links:

Reform Party, Nader, Camejo (appellants)
Secretary of State (appellant)
Florida Democratic Party and others (appellees)
Harriet Black and others (appellees)

If you are interested in reading the Florida Statute that is primarily at issue, you can find it here.

...posted by ⊥ 2:20 PM ⊥ #

Fourth District: The "Frances" Extension

I'm looking for the right metaphor here... Broad stroke? Giant step? Either way, the Fourth District knows how to do it, or take it. In this administrative order entered yesterday, the court dealt with how deadlines will be accommodated in light of the fact Hurricane Frances caused the court to be closed from September 1 until September 15. The order tolls all original proceeding deadlines that passed between September 1 and September 15 for the period the court was closed. The order also extends all other filing deadlines that fell during the September 1-15 period until September 30.

...posted by ⊥ 2:12 PM ⊥ #

Reform Party Case: Stay Update, Filing Update

From the filings, it looks like Judge Davey has entered another order vacating the automatic stay. This order came after the state supreme court in effect granted the motion to reinstate the stay, vacating the order that required the Secretary of State to direct the elections supervisors who have already mailed absentee ballots with the Reform Party candidates to mail new ballots without those candidates.

As best I can tell, the trial court's latest order on the stay issue has little or no practical effect because the Florida Supreme Court has essentially ordered the Secretary to instruct elections supervisors not to mail anything more until that court decides what should be mailed.

Turning to the issue of who files what where, I mentioned a few days ago (in this post) that the final judgment would be appealed to the First District and that the Florida Supreme Court may be expecting an immediate certification. Well, the high court has now entered this order clarifying that it has assumed jurisdiction over the entire case and that all final and non-final appeal notices should be filed in the supreme court, not the district court.

...posted by ⊥ 4:32 AM ⊥ #

Wednesday, September 15, 2004

STAYED

My question posed at the end of the last post is squarely on my mind as I now read that the Florida Supreme Court has, in essence, granted the Secretary of State's motion to stay the trial court's injunction pending appeal.

Backing up a second: This morning, Judge Davey ruled (in this order) that the Secretary must instruct all elections supervisors that if they have mailed any ballots listing the Reform Party candidates, ballots without those candidates' names must be mailed immediately along with a statement that the prior ballots were in violation of Florida law and that the ballots without the Reform Party are the correct ones.

The supreme court's order, which is available here, overrules the portions of Judge Davey's order that I just described.

The supreme court's order is quite plain: the stay is going to remain in effect until the high court resolves the case. Meanwhile, the Secretary (as a condition of receiving the stay) is to direct the elections supervisors not to mail any more ballots until the court resolves the appeal.

Does this mean that the high court has ordered Nader back on the ballot? Not really. The Secretary had recertified the ballot to include the Reform Party candidates. The trial judge then attempted to gut that recertification. In the most simple of terms, the high court just said: EVERYBODY STOP.

Bravo.

Returning to my question from the end of the last post, will the plethora of newspaper editorial boards who castigated the Secretary in today's papers for making the "political" move of invoking an automatic stay acknowledge that the Secretary's decision may have been the proper interim -- and let me emphasize interim -- step until the supreme court rules in the case?

...posted by ⊥ 4:55 PM ⊥ #

Stay, Stay, Stay?

It seems that, before this morning's trial started, Judge Davey first heard the Florida Democratic Party's motion to vacate the stay that was automatically generated when the Secretary of State appealed Judge Davey's preliminary injunction, and he granted the motion. Thus, in a strange, almost ethereal sense, Ralph Nader is now not supposed to be on the Florida ballot and the Secretary is enjoined from certifying him as a candidate for election. Of course, she just did certify him as a candidate yesterday (after the stay of the injunction took effect), after she did not certify him last week (while the injunction was in effect).

The elections supervisors' heads must be spinning. They're the folks that need to have overseas absentee ballots printed for their respective counties, and by Saturday.

The Secretary has already asked the Florida Supreme Court to vacate this morning's ruling and reinstate the automatic stay. You can read her motion here.

I suppose the high court will feel compelled to rule on this quickly, but I wonder if the court does not wish it could speak to one of the elections supervisors so it can assess the logistics of the printing situation.

In related news, the editorial staffs of Florida's major papers roundly blasted the Secretary today for her decision to appeal the preliminary injunction, characterizing it (and the resulting stay) as a crass political move to help the GOP. (Mark Lane of flablog has a great summary of today's editorials, with links.) I can't help but wonder, though: if the Florida Supreme Court reinstates the stay, on the theory that leaving Nader on the ballot is the most equitable thing to do while the case is still in court, what will the editorial boards think?

...posted by ⊥ 2:38 PM ⊥ #

Welcome (Back) To Florida, Professor Tribe

It looks like none other than renowned constitutional scholar Larry Tribe will be arguing on behalf of the Florida Democratic Party at Friday morning's oral arguments in the Reform Party case.

Read the pro hac vice order here.

...posted by ⊥ 1:28 PM ⊥ #

Reform Party Case: High Entropy

If you thought the only thing the Reform Party intends to try at today's trial is whether its candidates qualify for inclusion on Florida's presidential ballot, think again. The Reform folks have counterclaimed against the Democrats, charging that the Democratic candidates should be removed from the ballot because they failed to deliver a list of their electors that was certified or notarized, as required by Florida law. You can read the answer and counterclaim here.

Just to be clear, in case this is new to anyone: Accompanied by various affiliates, the Democratic Party and the Reform Party are each in a Tallahasee courtroom today arguing, at trial, that the court should remove the other's candidates from the Florida ballot. Loser or losers get a rocket-like appeal in the state supreme court.

...posted by ⊥ 1:18 PM ⊥ #

Reform Party Case: Oral Argument Scheduled

Right now, the parties in this case are holding a trial before Judge Davey. The current plan is for the trial judge to enter a final order later today on whether the Reform Party candidates are bona fide candidates under Florida law. Given Judge Davey's statements at the preliminary stage, it is very likely he will determine that Ralph Nader and his fellow nominee are not valid national party candidates under Florida law.

Appellate briefs on the issues are due at noon tomorrow