Abstract Appeal -- by Matt Conigliaro

Monday, November 29, 2004

Matt is on TDA

Matt is still west of the Mississippi River, and he finds himself without internet access. Matt hopes to return Tuesday evening, and he will blog shortly after his return.

...posted by ⊥ 10:45 AM ⊥ #

Still Thankful

Debbie and I are still out of town for the holiday weekend. I hope everyone had a wonderful time. We have. We'll be back tomorrow, and posting will resume then, probably late in the day. Thanks for stopping by.

...posted by ⊥ 10:06 AM ⊥ #

Thursday, November 25, 2004

Happy Thanksgiving

Many thanks to those who've stopped by this site, and especially those who've corresponded with me about cases, stories, and issues in general. I sincerely appreciate your time and thoughts, and I wish everyone a very happy Thanksgiving.

...posted by ⊥ 5:22 AM ⊥ #

Wednesday, November 24, 2004

Not Exactly Schiavo

I have been blogging about the Terri Schiavo case since I started this web log in mid-2003. I've tried to help communicate what has really happened in that case, legally speaking, and part of my motivation has been my frustration with the still-too-common myth that Terri's husband, Michael, simply decided that he wants Terri's feeding tube removed.

That's not so. Florida law is clear that each individual has a constitutional right to decide whether to continue receiving life-prolonging measures, and if a particular person is unable to make that decision, what decision that person would make must be determined by someone else. In the Schiavo case, someone else had to decide what decision Terri would make, and disagreement among Terri's family led to that decision being made by a judge based on the evidence presented in a trial. The judge did not determine what he thought Terri should do -- he determined what he thought Terri herself would do.

Today's news brings this related story from the Orlando Sentinel. Apparently, doctors for a man in an Orlando hospital agree he is terminally ill, cannot make decisions for himself, and is unlikely to recover. He is on a ventilator, a dialysis machine, and medications.

Many years ago, the man signed a living will expressing his desire not to have the dying process artificially prolonged and that he wanted treatment in such a case only to alleviate pain.

Now, the man's wife refuses to agree to withhold medical treatment, and the hospital and the wife found themselves in court over the matter. The wife contends her husband is alert and responsive.

Yesterday, Judge Kirkwood of the Ninth Circuit in Orlando rejected the wife's arguments and ruled that the living will applies and must be honored here by the hospital.

The story is sad, as all such stories are. But it does help point back to some lessons from the Schiavo case. The ultimate decision is the ward's, and where there is disagreement over what the ward would do under the circumstances, a court will step in and determine what those circumstances really are and what the ward would choose to do. Living wills are marvelous and critically important declarations of intent, and they certainly help matters, but they do not eliminate the possibility of disagreements and even litigation.

...posted by ⊥ 8:35 AM ⊥ #

Streamlining Clemency

Today's Miami Herald has a very interesting report here.

...posted by ⊥ 7:55 AM ⊥ #

Burt Reynolds News

The Burt Reynolds case has now caught my attention, partly because I don't understand what's going on. Today's Sun-Sentinel has this update, which indicates that Burt's Florida suit is an effort to stop former girlfriend Pamela Seals's palimony suit in California. Is he really asking a Florida court to enjoin a California lawsuit, or, I suppose more likely, to enjoin the ex-girlfriend from bringing a California lawsuit?

Very interesting if that is the case. Maybe it is. Or maybe not. I had that maybe-it's-just-me feeling while reading the story until I got to the line about "criminal justice." (Look for it.) Something's confusing here.

...posted by ⊥ 7:34 AM ⊥ #

Rush News

Yesterday, Rush Limbaugh filed a notice of appeal in the Florida Supreme Court, seeking to overturn this decision from the Fourth District.

For more on the case and what the Fourth District decided, check out this prior post and this certification order. The notice of appeal is available here.

Keep in mind that the supreme court need not accept this case -- the Fourth District certified a question of great public importance, but the high court has discretion in deciding whether to resolve that question. As for when the court will make that decision, there is no way to know. Extraordinarily time sensitive cases are, appropriately, handled very quickly. More ordinary cases like this one usually do not get the green or red light for months.

...posted by ⊥ 7:08 AM ⊥ #

First District: Wal-Mart Class

Yesterday, the First District decided an interlocutory appeal in a class action involving Wal-Mart. The plaintiffs sued on behalf of all current and former hourly Wal-Mart employees in Florida, alleging Wal-Mart forced its employees to work off the clock and without promised breaks. The trial court denied the plaintiffs' motion to certify.

On appeal, the First District held that the trial court incorrectly denied certification based on the class members' individualized damages claims, but the denial was nonetheless affirmed because the class definition was overbroad. Not every employee is alleged to have received the complained-of treatment. You can read the decision here.

Sounds like, on remand, some amendments to the complaint are in order and that certification will follow.

...posted by ⊥ 7:06 AM ⊥ #

Tuesday, November 23, 2004

Court Closed

As of this week, the federal court facility in downtown West Palm Beach is closed. Due to mold. The Palm Beach Post has details in this story.

...posted by ⊥ 8:23 AM ⊥ #

Not Moving To Recuse

Today's Miami Herald has this story about Seventeenth (Broward County) Circuit Judge Marc Gold, whose impartiality is being publicly questioned by local prosecutors. Apparently, the judge's wife is an attorney in a case accusing the Broward County Sheriff's Office of misconduct, and while prosecutors feel this is a problem, they have not actually asked Judge Gold to recuse himself from any case.

...posted by ⊥ 8:07 AM ⊥ #

Big Payday

The numbers appear to be in for the attorneys who successfully brought a class action suit against two Menorah Gardens cemetaries, the case that gained much attention around this time last year. Bottom line: $25.8 million for the lawyers. Read about it here in today's Sun-Sentinel.

...posted by ⊥ 7:56 AM ⊥ #

Imagine More Of This

A kind reader sent me a link to this story in last week's Sun-Sentinel. The story describes how Broward County Sheriff's Office detectives are leaving laptops and other valuables for the taking in terminals at the Ft. Lauderdale airport, and then catching anyone who tries to steal them.

There may be nothing unconstitutional about that practice, but it does make me wonder what things would be like at shopping centers, on streets, wherever, if such tactics were more prevalent.

...posted by ⊥ 7:44 AM ⊥ #

Monday, November 22, 2004

Florida Supreme Court: Insurers' Bad Faith

On Thursday, the Florida Supreme Court released this decision, where a 4-3 majority upheld a jury's finding an insurer failed to settle a claim through bad faith. The case deserves some attention.

To condense the facts: A woman died and her minor child was injured in a crash involving the insured's vehicle. Available insurance totaled $20,000, which the woman's husband demanded the insurer pay within 30 days. A week after the demand was made, the insurer orally agreed to make the payments. The insurer also agreed to aid the husband in becoming personal representative for the deceased wife's estate and getting court approval for the minor's settlement. The insurer's attorney then confirmed its intent to pay in a letter to the husband, but an erroneous zip code caused the letter's delivery to take nearly a month. In the meantime, the husband "revoked" the offer based on nonpayment within the demanded time period. The husband then sued the insured, recovering $1.8 million in damages, and then sued the insurer for bad faith failure to settle. A jury found bad faith, requiring the insurer to pay the full judgment against the insured.

The Second District reversed on the basis that the husband was not legally authorized to accept a settlement and thus, as a matter of law, there could have been no bad faith on the insurer's part. This holding created a conflict in the districts, which ultimately landed the case at the Florida Supreme Court. The high court reversed and reinstated the jury's verdict.

None of the justices appeared troubled with the conflict issue: the offer was valid and bad faith was not precluded. The justices divided, though, over whether the case's facts could permit a finding of bad faith.

The majority focused on the insurer's failure to meet the offer's deadlines and what the insurer could have done to communicate its acceptance better and make the payments on time. Ultimately, the majority upheld the verdict because a jury could reasonably have found the insurer could and should have settled in the allowed time. The majority repeatedly emphasized that it was making no new law here and that Florida's bad faith standard remained as it has been: focused on whether the insurer acted in the best interests of its insured.

Justice Cantero dissented and was joined by Justices Wells and Bell. Justice Cantero argued the offer was accepted and that the husband's deadlines were arbitrary. He concluded that the facts of the case might demonstrate mistakes by the insurer, but not bad faith.

Justice Wells penned a separate dissent that discussed how bad faith scenarios are being manufactured against insurers to gain "coverage" that does not exist. He further observed that the results are negatively affecting the insurance industry and, ultimately, Florida's insureds, because everyone's premiums must eventually be raised to allow, as in this case, a $20,000 policy to pay out on a $1.8 million claim. Justice Wells concluded that legislation appears necessary to solve these problems. Notably, the majority criticized Justice Wells's views as lacking empirical support.

This is a rare case because, in my view, everyone's right.

An unspoken truth that plainly emerges from the opinions in this case is that the claim of bad faith against an insurer may be the most inaptly named claim in the legal lexicon. Whether you agree with the majority or the dissents here, it is obvious that "bad faith" claims have no necessary connection to whether an insurer actually acted in bad faith.

Florida's standard jury instruction in this regard appears to have been accepted as the state's substantive law in third-party cases such as the one here. Under that instruction, the standard for bad faith conduct is this:

An insurance company acts in bad faith in failing to settle a claim against its insured within its policy limits when, under all of the circumstances, it could and should have done so, had it acted fairly and honestly towards its insured and with due regard for his interests.

This standard seems to ask the jury to determine merely whether it would have been reasonable to settle the claim -- in this case, to comply with the plaintiff's settlement terms and deadlines. Arguably, this is a lower standard than a negligence standard. In the classic negligence case, the factfinder is told that liability can be found only if the defendant acted unreasonably, by breaching a duty to act reasonably. Here, by comparison, the factfinder is not asked to find that what the insurer did failed to meet some standard. The factfinder is simply asked whether it would have been reasonable for the defendant to do the thing the plaintiff says should have been done, such as settle for a certain amount in a compressed time period. I suggest that the difference is material. Of course, even if that's not the case and the bad faith standard is the same as a negligence standard, the claim still has nothing do with whether the insurer actually acted in bad faith.

So, looking back at the opinions in this case, I read the majority's decision as holding that, applying Florida's common law standard for bad faith in third party cases, the jury had evidence in this case to find a reasonable insurer could have met the plaintiff's demands. Justice Cantero's dissent argues otherwise, but he seems to be searching for conduct that bears some semblance of true bad faith, and no such conduct appeared here. Justice Wells, on the other hand, points out that the system is in need of repair and that, given the majority's unwillingness to revisit this area of court-made law, a legislative solution seems necessary.

They're all right.

...posted by ⊥ 2:45 PM ⊥ #

Supreme Court: Curfews Unconstitutional

Last week, in this divided decision, the Florida Supreme Court declared curfews adopted by Tampa and Pinellas Park to be unconstitutional. The curfews applied only to minors during late hours of the night. A four-justice majority held that the ordinances violated the minors' federal freedom of movement rights and the minors' privacy rights under the Florida Constitution. The court examined the ordinances under a strict scrutiny analysis, and the court held that while cities have compelling interests in protecting juveniles from victimization and reducing juvenile crime, the ordinances here did not advance these interests through the least restrictive means.

Justice Cantero, joined by Justices Wells and Bell, dissented. Justice Cantero concluded that rational basis scrutiny should be applied to the ordinances but, under any level of analysis, the ordinances are constitutional.

The case has three noteworthy aspects that I wish to point out.

First, as Justice Cantero explained, the cities proceeded at the trial level as if only rational basis scrutiny applied, which arguably led the cities to present far different proofs than they would have presented had they believed strict scrutiny applied. Yet the appellate courts have examined the evidence under the strict scrutiny standard, without permitting any further evidence to be presented. The lesson for constitutional litigators appears to be that, except perhaps where the law firmly holds scrict scrutiny inapplicable, proofs to meet that high standard should generally be attempted in a constitutional challenge. Just in case.

Second, constitutional buffs will enjoy pondering exactly how Florida's constitutional right of privacy played a role here. The majority repeatedly spoke of the ordinances at issue as infringing the privacy right, but, as Justice Cantero pointed out, the majority never articulated precisely how the ordinances trigger that right. The right of privacy would at least seem to cover things that are, well, a bit more "private" than being present on the street or sidewalk at certain times of day or night -- the matters at issue in the ordinances challenged in this case. The majority's willingness to find a privacy right violation without explaining how the privacy right actually applies here is curious and may make you wonder where the court could head with the privacy right in future cases.

Finally, I point out a position taken by the dissent. While the majority held otherwise, the dissent opined that the cities' compelling interests -- protecting juveniles from victimization and reducing juvenile crime -- were furthered by the least intrusive means through the imposition of criminal penalties, rather than civil penalties, on the very persons sought to be protected. In other words, in the dissent's view, arresting juveniles and charging them with crimes are among the least intrusive ways of protecting juveniles from crime and victimization. That strikes me as a departure from existing case law regarding strict scrutiny analysis.

...posted by ⊥ 2:30 PM ⊥ #

Fifth District: Privilege Logs

Many litigators who represent corporate or institutional clients will applaud the Fifth District for its opinion in this case, which held that one does not waive any applicable privilege by merely failing to produce a privilege log at the time the party is required to respond to document production requests. The court further held that if the party tenders a log a reasonable time before a hearing is held on any motion to compel production, the trial court will be able to examine the log and rule on its merits.

This decision is realistic and a good step toward injecting some sense into how privilege logs are handled. Depending on the circumstances of the case, it can be impossible to complete a privilege log in the 30-day response period following a request for production. Indeed, sometimes many months are necessary to create an accurate log that neither includes nonprivileged material nor waives the protections applicable to privileged material, particularly in the corporate context.

I liken the hasty assembly of a privilege log to requiring a plaintiff to answer contention interrogatories in a 30-day period at the outset of a case -- a bad idea that will likely not lead to a just result.

Great win, Celene.

...posted by ⊥ 8:21 AM ⊥ #

Questions, questions

The Fourth District has denied rehearing of its decision in the Rush Limbaugh litigation but has certified the following to the Florida Supreme Court as a question of great public importance:

Do §§ 395.3025(4) and 456.057(5)(a) bar the State from obtaining a search warrant to seize and inspect a patient's medical records without providing the patient notice and a prior hearing to oppose the seizure and inspection?

The case now has a clear path to the state supreme court.

You can read the certification order here. Also, for more on what this case is about, check out this prior post.

...posted by ⊥ 8:18 AM ⊥ #

Second and Third Districts: Blakely

Those following the nationwide wake of Blakely v. Washington may be interested that the Second and Third Districts have now joined the chorus caroling that Blakely is not retroactive. ('Tis the season...) Their respective decisions can be found here and here.

Recall from this post that the Fourth and Fifth Districts reached the same conclusion last month.

...posted by ⊥ 8:17 AM ⊥ #

Questions, questions

If a party fails to respond to a request for an admission on a purely legal issue, is the matter deemed admitted? No, said the Fifth District in this case.

The court also held that Florida's foreseeability standard must be applied when determining whether the owner of private, non-commercial land owes a duty of care to a motorist on a public roadway whose view of the roadway is obscured by foliage on the land. On this second issue, the court also certified the following to the Florida Supreme Court as a question of great public importance:

DOES THE FORESEEABLE ZONE OF RISK ANALYSIS ESTABLISHED IN MCCAIN APPLY TO PRIVATE OWNERS OF NON-COMMERCIAL PROPERTY CONTAINING FOLIAGE THAT BLOCKS MOTORISTS' VIEW OF AN ADJACENT INTERSECTION AND CAUSES AN ACCIDENT WITH RESULTING INJURIES?

Judge Griffin offered a very interesting partial dissent, arguing that the landowner owed no duty as a matter of law.

I'm looking forward to the high court's resolution here.

...posted by ⊥ 8:15 AM ⊥ #

First District: Unconstitutional Hearsay, Conflict

This case reminded me of tackling a law school exam question. It's a criminal case involving the admissibility of hearsay. The First District reversed the judgment and remanded for a new trial after concluding the statement at issue was hearsay, but it fit within the excited utterance exception, but that exception's application under the facts of the case violated the defendant's Sixth Amendment confrontation right.

The fun will not stop here. The court certified that its decision on the confrontation issue conflicts with this decision issued earlier this year by the Fifth District, so the state supreme court will get a chance to address these matters, too.

...posted by ⊥ 8:11 AM ⊥ #

Fourth District: Municipal Authority

Here is a rare case involving interpretation of a city's charter and, specifically, the city's ability to convey land. The Fourth District agreed with the city's interpretation that it could avoid a referendum requirement by redesignating the property at issue.

...posted by ⊥ 8:10 AM ⊥ #

Fourth District: A Call To Amend Rule 1.420

The facts of this case are a bit strange, and the result more so. A plaintiff had a pending whistleblower's suit pending against his employer when the employer allegedly violated the plaintiff's rights under the Florida Civil Rights Act, and so the plaintiff amended his suit to add a FCRA claim.

At trial, the trial court directed a verdict against the plaintiff on the FCRA claim, at which point the plaintiff attempted to voluntarily dismiss that claim. The trial judge rejected the dismissal effort and entered judgment on the claim in the employer's favor. On appeal, the Fourth District decided that the directed verdict was properly entered but that the plaintiff should have been permitted to dismiss the claim. The court reasoned that while Rule 1.420 gives plaintiffs an absolute right to voluntarily dismiss only an entire action, the plaintiff had effectively combined two separate actions in this case and should have been permitted to dismiss only the second one. The court thus reversed the final judgment against the plaintiff on the FCRA claim and expressly stated that the res judicata effect of the court's opinion on the directed verdict issue was not being decided.

In a footnote, the court also suggested that Rule 1.420 be changed to avoid this result.

...posted by ⊥ 8:05 AM ⊥ #

First District: Rule 1.525

This decision from the First District agrees with a number of other decisions that the 30-day window for serving an attorney's fees motion under Rule 1.525 may be extended based on excusable neglect.

...posted by ⊥ 8:04 AM ⊥ #

Fifth District: Certiorari

Think quick, appellate lawyers: is an order denying a motion to consolidate reviewable by certiorari? The answer is here.

...posted by ⊥ 8:03 AM ⊥ #

First District: Obscenity and Minors

This case from the First District is a must-read for those who enjoy watching how our classic notions of free speech and due process interact with our modern efforts to prevent minors from being corrupted through electronic technologies.

The court unanimously upheld a set of constitutional challenges to this statute dealing with computer pornography.

But the panel passionately split over the constitutionality of this statute, which prohibits transmitting material "harmful to minors" through "electronic mail" to a person known or believed to be a minor. The majority held the statute constitutional, but Judge Browning vigorously dissented, finding it overbroad, vague, and not narrowly tailored to serve the statute's compelling interests. Much of Judge Browning's argument stems from the dual notions that what is harmful to minors varies with age and that targetting "electronic mail" captures too broad a range of indirect or multiple recipient communications.

Our supreme court will tackle these issues next. I'm looking forward to it.

...posted by ⊥ 8:00 AM ⊥ #

Fourth District: Fundamentally Unsupportable, Inconsistent Verdicts

Products liability fans, and anyone interested in inconsistent verdict cases, should check out this decision from the Fourth District. The court reversed a jury verdict against an auto manufacturer after the jury specifically found negligence but no defect. The defendant had not objected to the verdict as inconsistent, but the court found that an exception to the preservation rule exists where, as here, a verdict is fundamentally unsupportable. The only theory the plaintiff pursued at trial was for defective design.

Assuming this exception comes into play whenever a jury interrogatory establishes a fact that undermines a plaintiff's theory of recovery (and that may be too big an assumption), it would seem ideal for the defendant to identify such situations at trial and not object to such a verdict as inconsistent. After all, if an objection is made and the judge sends the jury back to correct the inconsistency, especially after the jury has set damages figures, it would seem likely that the jury will correct the error in the plaintiff's favor. Then again, if the verdict is inconsistent but the "fundamentally unsupportable" exception does not apply, then the inconsistency will be deemed waived and the verdict may be enforced. Very interesting, and all the more reason to have an appellate lawyer around at trial.

...posted by ⊥ 7:55 AM ⊥ #

Fourth District: Employment Litigation Instructions

Employment litigators will be interested in this decision, where the Fourth District reversed a jury verdict based on the trial court's failure to provide requested instructions on after-acquired evidence and the same actor inference.

...posted by ⊥ 7:55 AM ⊥ #

First District: Rescission

Real property and remedies fans may be interested in this decision from the First District, which held that a transfer of property could not be rescinded because, since the transfer, the IRS had placed a lien on the property and the IRS had not been made a party to the rescission action.

...posted by ⊥ 7:54 AM ⊥ #

Second District: Frye Reversal

The Second District's decision in this case might be summarized in the following way: if as a trial judge you feel a party's novel scientific evidence seems "pretty hokey," then excluding the evidence might be the way to go.

The case involved an automobile manufacturer and a products claim. Nice win, Jeff.

...posted by ⊥ 7:49 AM ⊥ #

Fourth District: Directed Verdicts in Bench Trials, Minority View

If the trial judge in a bench trial believes the plaintiff has not carried the applicable burden, is it appropriate, even though issues of fact technically exist, for the judge to grant a directed verdict or involuntary dismissal? No, said the Fourth District in this casej. The court acknowledged that Florida is in the extreme minority regarding this view.

...posted by ⊥ 7:45 AM ⊥ #

Whew

A number of network- and Blogger-related problems kept me from posting yesterday. They appear to be solved, or at least worked around. Assuming this post works, many more to follow...

...posted by ⊥ 6:40 AM ⊥ #

Saturday, November 20, 2004

Wow

What a win. Hunter's gotta be happy.

I suppose I can now bury his Q&A with posts. In the morning, though...

...posted by ⊥ 11:55 PM ⊥ #

Friday, November 19, 2004

Friday Florida Law Trivia Answer

Here's the answer to the question I asked this morning.

Setting aside for a moment elections for legislative seats, if there is a tie vote in the general election, then according to this statute, all candidates who received the same number of votes "shall draw lots" to determine who wins. This is accomplished by flipping a coin, drawing straws, drawing playing cards, etc.

It's questionable whether that statute applies if there is a tie vote for a member of the Legislature. Under Article III, section 2 of the Florida Constitution, each house of the Legislature "shall be the sole judge of the qualifications, elections, and returns of its members[.]" This statute recognizes that provision and indicates that the contest of an election by a losing candidate may only occur in the house to which the candidate seeks membership. Conceivably then, the specific house at issue would seem to have the constitutional authority to determine who wins the seat in the event of a tie.

I hope that you have a good and safe weekend. Go Gators!

...posted by ⊥ 4:47 PM ⊥ #

Feeling Trivial

I have written two large posts concerning yesterday's curfew and bad faith decisions, but I've just been so giddy about Hunter's return to weekly trivia that I haven't wanted to bump his question down with lengthy substantive talk. I'll just let my thoughts on the two biggies from yesterday be until tomorrow and give folks a chance to spot the question and answer.

...posted by ⊥ 4:41 PM ⊥ #

Friday Florida Law Trivia!

Ok, ok, I've been dilatory in posting Friday's trivia questions. I wish that I had a good reason other than work, but alas, I do not. Anyway, I thought I would I give you an easy question today to gear you back up for more arcane questions in the future. The question is like an Election Redux, so here goes.

Excluding the election for President, what happens if two or more candidates receive the highest but same number of votes in a general election? Who is elected in this situation?

The answer will be posted this afternoon.

...posted by ⊥ 10:04 AM ⊥ #

Break

A bit of a pause now before posting on yesterday's curfew and bad faith cases...

And by the way, where's Hunter? I think he owes us a Friday Florida Law Trivia question, and he's got to be caught up with work by now.

...posted by ⊥ 8:37 AM ⊥ #

Fourth District: Negligent Entrustment

Of a shopping cart? It's tempting to give a shout out to Overlawyered.com about the theory alleged (or the one that may soon be alleged) in this case.

...posted by ⊥ 8:35 AM ⊥ #

Fifth District: Certiorari Pointer

Just a reminder here from the Fifth District: under this 2004 decision by the Florida Supreme Court, a petition for certiorari cannot be predicated on court minutes, even if those minutes are signed by the trial judge and filed.

...posted by ⊥ 8:33 AM ⊥ #

Fourth District: Appropriate Times To Swear

Trial judges may be interested in this decision from the Fourth District. The court reversed a judgment and ordered a new trial because the plaintiff had been denied the opportunity to backstrike a main panel juror after the parties had selected the main panel and the alternates. The district court concluded that trial courts cannot prevent belated backstrikes so long as the jurors have not been sworn, and that to avoid such situations, trial courts can swear the main panel prior to selecting the alternates. The court observed that, to its knowledge, swearing the main panel prior to choosing alternates is the general practice.

Conceptually, that makes sense, but it differs from my experience. Interesting. I need to learn more about this.

...posted by ⊥ 8:31 AM ⊥ #

Fourth District: Saving Class Actions

The plaintiff in this class action is a partner in a law firm who, amazingly, hired his firm to represent him. After the firm incurred hundreds of thousands of dollars in fees (it was to be paid hourly?) during two years of litigation, the plaintiff changed counsel. The trial court entered an order certifying the plaintiff as representative of a class, and the defendant took an interlocutory appeal.

On appeal, the defendant argued that the plaintiff's individual interest in the fees owed to his firm precluded finding him to be an adequate class representative. The Fourth District agreed but held the conflict cured when, during the appeal's oral arguments, the plaintiff expressly waived his right to any fees for legal work performed by himself or his firm.

...posted by ⊥ 8:28 AM ⊥ #

Fourth District: But Killing Contracts

Does Florida's Deceptive and Unfair Trade Practices Act encompass claims that really amount to breach of a commercial contract? Check out the Fourth District's decision in this case for the divided panel's views.

And for those of you noticing the illogic of my tying two post titles together in a sequence posted, chronologically speaking, in the reverse order, I congratulate you on your astuteness.

...posted by ⊥ 8:26 AM ⊥ #

Fourth District: Unconscionable Arbitration Agreements

In its latest decision affirming a decision that an arbitration agreement is unconscionable, the Fourth District addressed an agreement to purchase a car. The court held the agreement (or at least the arbitration language in the agreement -- there's no discussion about this) substantively unconscionable because it required the purchaser to arbitrate all of her disputes with the dealership but did not require the dealership to arbitrate all of its disputes with the purchaser.

The court also found procedural unconscionability based on the following: the arbitration language was included on the back of a form the purchaser signed, but the purchaser only signed the form's front; the language referring to language being included on the back was in small type; the purchaser denied ever seeing the back of the page; and the dealership's sales manager and salesperson were unaware the arbitration provision existed and had a practice of not pointing out the language on the back of the page.

You can read the decision here. I consider the finding of substantive unconscionability to be significant.

...posted by ⊥ 8:19 AM ⊥ #

Fourth District: Fraud Damages

Fraud is a fascinating claim in many ways, not the least of which is how it can seem to encompass conflicting notions of tort and contract law. A good example of a court clearing up some confusion in this regard can be seen in this case, where the Fourth District reversed a fraud judgment on the basis that the damages the plaintiff proved were not fraud damages at all. Good stuff.

...posted by ⊥ 8:13 AM ⊥ #

Fourth District: TBE Property

If property held through a tenancy by the entireties is sold and the proceeds are deposited into an attorney's trust account, do the funds retain the property's former character, preventing a creditor of one of the former owners from garnishing the account? The Fourth District answered this question in the affirmative. Read about it in this decision.

...posted by ⊥ 8:12 AM ⊥ #

Fifth District: Habitual Offenders

If a defendant is placed on probation for an offense and not sentenced until he later commits another offense and is also sentenced for that offense as well, are the two sentences sequential for purposes of sentencing as a habitual felony offender? The Fourth District answered this question in the negative earlier this year, but in this case, the Fifth District found that view to be "hyper-technical and illogical." Conflict certified.

...posted by ⊥ 8:09 AM ⊥ #

Fifth District: Recalling Mandates

Can a district court recall a mandate issued during a prior term of court? Most appellate lawyers will answer no, and correctly so, but there is an exception or two to the rule, as seen by this decision from the Fifth District.

...posted by ⊥ 8:08 AM ⊥ #

Fourth District: Race-Neutral Strikes

This decision from the Fourth District shows one of the few areas where a trial court's ruling regarding voir dire will be reversed unless it has certain record support. The subject is a challenge to a strike as being racially motivated, and the situation is where the striking party defends the move based on nonverbal behavior. The behavior must have been admittedly observed by the trial judge or otherwise have record support, or granting the strike will be reversible error.

...posted by ⊥ 8:07 AM ⊥ #

Fourth District: Avoiding Limitations

For a good review of the distinctions between the statutory tolling doctrines for limitations periods and their judicially created counterpart, estoppel to assert a limitations period, check out this decision from the Fourth District. Nice win, Louise.

...posted by ⊥ 8:05 AM ⊥ #

Fourth District: Prenuptial Agreements

Family law folks may be interested in this decision, in which the Fourth District affirmed enforcement of what the court called a "patently unreasonable" but fairly entered prenuptial agreement.

...posted by ⊥ 8:05 AM ⊥ #

Still Pondering...

I still haven't figured out what to do with all of my broken Florida Supreme Court links, but I suppose I should get back to the substantive posts I intended to put up last night. I'm going to catch up on case law today. Much of it in the next couple of hours.

...posted by ⊥ 5:25 AM ⊥ #

Thursday, November 18, 2004

Florida Supreme Court: Unlinked

Historically, the Florida Supreme Court and the Florida state courts system have shared an Internet domain: www.flcourts.org.

No more. Starting this afternoon, the high court broke away from the state courts system, moving its data to a new domain: www.floridasupremecourt.org.

The new site looks good. It appears based on the layout used for the DCA docket search pages. I've also seen a preview of the coming electronic filing page, and it seemed to share the same look.

The new look and location are great for the court. But they've left me with a problem: all of the court's pages on the old domain now load a page announcing the split from the state courts system, so links to the old pages don't work at all. At all. Abstract Appeal probably has 1000 links to various Florida Supreme Court justices, opinions, orders, etc. Right now, none of them works, except the curfew decision in the prior post. I changed that one.

But changing them all seems, well, unthinkable. I can easily recode the links in the left column, but I use Blogger for posting, and Blogger is bad at letting you edit recent posts. It's terrible at letting you edit old posts. Almost impossible.

What to do? I dunno. I'm pondering things at the moment over a certain Irish stout. Inspiration's sure to follow. That and reading today's curfew and bad faith cases...

...posted by ⊥ 8:14 PM ⊥ #

Curfew Laws Unconstitutional

Today, the Florida Supreme Court held that juvenile curfew ordinances adopted by Tampa and Pinellas Park are unconstitutional.

The court split 4-3. You can read the opinions here. I'll have more on the case, and some other interesting items, later today.

...posted by ⊥ 11:52 AM ⊥ #

Wednesday, November 17, 2004

Privacy Concerns

The Florida Supreme Court's Committee on Privacy & Court Records is holding public hearings this week in Tallahassee, and today's Tallahassee Democrat has this interesting story on the committee and the issue of electronically open court records.

...posted by ⊥ 8:15 AM ⊥ #

Football Suit

When officials at a high school football game thought a player collapsed after a neck injury, they let him be until paramedics arrived. After the 15-year-old died due to heart problems, his family sued, saying officials should have intervened. Read about it in this story in today's Sun-Sentinel.

...posted by ⊥ 8:09 AM ⊥ #

Civil Session?

Mark Lane, of the quite fun flablog, seems downright disappointed that the upcoming legislative session may appear, well, civil. Mark has this story in today's News-Journal.

...posted by ⊥ 8:05 AM ⊥ #

A Note To The Appellate Judges

If any Florida appellate judge happens across this blog, I have a thought to share:

Two weeks ago, election time, a number of people were actively interested in your decisions and were using the Internet to research them.

It was a complete surprise to me at first, and it took me a few days to understand what was going on. Let me back up and explain.

When someone accesses Abstract Appeal from a link on another web page, I receive what the web publishing crowd calls referral information. Basically, I can see the Internet address for the site that referred the person here. When someone arrives at this site by way of a search engine, I see the search itself, since the text of the search is (usually) embedded in the referring address.

To give an example, if you go to Google and run a search for "conigliaro," you will get one or more links that lead to this site. If you click on one of those links, I get referral information that looks like this:

http://www.google.com/search?hl=en&q=conigliaro

For Internet marketing folks, such information is pure gold. For me, it is just something to check out once in a while.

Getting back to the point, about a week before the election, I started seeing referral links that looked like this:

http://www.google.com/search?hl=en&q=decisions+by+judge+canady

At first I thought someone must have a case before Judge Canady. But then there were similar searches involving Judge Torpy, Judge Sharp, Judge Wallace, and (the wise clerk-chooser) Judge Griffin. Plus Justice Bell and Justice Cantero, too. And others. Eventually I caught on and realized these were all people who were up for merit retention this election, and that made me start paying attention to the details of the searches.

Some searches included some rather specific terms. The most popular? By far: "abortion." I do not know which way that works -- did the searchers support broad or narrow abortion rights? Either way, that was the hottest item. Other subject terms added to the searches included "constitutional decisions," "privacy," and my personal favorite, "bad decisions."

There were hundreds of these, and I am sure my site captured only a fraction of the searches being run.

What I took from all this is that a number of citizens out there are taking the time to utilize the Internet to help guide their merit retention votes. It does not appear, though, at least not at my unsophisticated glance, that this election's results were any different from the norm. Each judge up for merit retention seemed to garner the usual 65-75% favorable result. Still, I found these searches interesting and thought I would pass the information along.

By the way, if you would like to review the results of the merit retention votes, you can check out the supreme court justices' results here and the district court judges' results here.

...posted by ⊥ 7:45 AM ⊥ #

Monday, November 15, 2004

Enforcement of Three Strikes Law Enjoined

Two weeks ago, Florida's voters approved 2004's Constitutional Amendment No. 8, which prohibits the state from licensing doctors who have been found to have committed three or more acts of medical malpractice.

This morning, Tallahassee area circuit judge Janet Ferris entered an injunction that prevents the new law from being implemented. There are numerous questions about how the law should operate, and perhaps legislation will be necessary to implement the law in proper fashion.

You can read about the injunction in this story from the Sun-Sentinel.

...posted by ⊥ 12:26 PM ⊥ #

Attention Appellate Lawyers

Just another reminder here for Florida Bar members about the Appellate Practice Section's monthly lunchtime teleconference, which will be held tomorrow, November 16, from 12:10 p.m. to 1 p.m. The topic will be extensions of time, and we will have the honor of hearing from the following rather well informed folks on the subject:

Tom Hall, clerk of the Florida Supreme Court
Jon Wheeler, clerk of the First District
Jim Birkhold, clerk of the Second District
Mary Cay Blanks, clerk of the Third District
Marilyn Beuttenmuller, clerk of the Fourth District
Frank Habershaw, clerk of the Fifth District
and
Tom Kahn, clerk of the Eleventh Circuit

They will all speak on their respective courts' policies and practices regarding extensions of time, and if time permits they may take questions. Should be a good one.

Unfortunately, it seems the section's web page has not been updated to reflect tomorrow's topic, but it does give the call-in number for the program, and if you click on the forms link on that page, you will find information about costs. Remember, preregistration is not necessary. Just call in.

...posted by ⊥ 12:20 PM ⊥ #

Emergency Rule Challenge Over

This probably is no surprise to anyone, but last week, the Florida Supreme Court declined to hear the Florida Democratic Party's appeal in the case challenging the Secretary of State's emergency election recount rule.

I'm sure it helped that there was no recount.

You can read the order declining to exercise jurisdiction here.

...posted by ⊥ 12:02 PM ⊥ #

Slight Delay

Still finishing up that brief. I'll post a bit later this morning, before heading off to a hearing in Orlando.

...posted by ⊥ 7:42 AM ⊥ #

Friday, November 12, 2004

DRI

Over the last two days, DRI held its annual Appellate Advocacy Seminar. This year's meeting was in New York.

At the beginning of the week, I couldn't make it. Then I could. Finally, I couldn't. I hope it went well. I have a few friends who went, and I look forward to hearing all about it.

For now, though, it may be Friday night, but I'm working on a brief.

...posted by ⊥ 8:24 PM ⊥ #

First District: School Voucher Case, Version II

You may recall that, several months ago, the First District released its 2-1 decision in Bush v. Holmes, which held Florida's Opportunity Scholarship Program unlawful under Florida's constitution because the program permits public funds to be given to religious (as well as non-religious) private schools.

The court later granted rehearing en banc in the case, and today the en banc court released what looks like an 8-5 decision reaching the same result. The en banc decision is available here. It will make for a long read this weekend.

...posted by ⊥ 2:18 PM ⊥ #

Med Mal Three Strikes Law

The ABA Journal has a very interesting story on Florida's new medical malpractice three strikes law, which voters overwhelmingly approved last week as a constitutional amendment. According to the story, there seems to be much agreement that the law will force doctors to settle cases rather than take them to trial, which in turn will increase the likelihood of frivolous lawsuits.

You can read the story here.

...posted by