Abstract Appeal -- by Matt Conigliaro

Friday, December 31, 2004

Happy Happy

'Tis the end of 2004, and as I sit in a comedy club in Ybor City, I think to myself: I haven't blogged in two days. Wow. Well, there's next year. I look forward to catching up then. Happy New Year, folks, and thanks for stopping by.

...posted by ⊥ 9:38 PM ⊥ #

Wednesday, December 29, 2004

Schiavo News: A Little Help

Governor Bush's effort to obtain review in the U.S. Supreme Court got a boost today in the form of an amicus curiae brief from the American Center for Law and Justice. You can read the ACLJ's amicus brief here.

...posted by ⊥ 7:37 PM ⊥ #

Schiavo News: Latest Appeal Lost

Well, the latest step in the Terri Schiavo saga has now been taken. Today, the Second District rejected the latest appeal by the Schindlers, affirming Judge Greer's decision that the Schindlers' most recent effort to set aside the original decision on Terri's wishes is insufficient. (For more on the Schindlers' appeal, see this prior post.)

The Second District issued its decision without a written opinion. That's a "per curiam affirmance" or "PCA" in appellate parlance.

Today's PCA is significant, and between breaths here at work I'm going to try to sum things up. There are some interesting appellate angles here that I will set aside for now to focus on the practical consequences of today's decision.

To begin, this decision does not entirely end the case. The Second District still has not issued its mandate, and that will not happen until one of two things occurs: (1) the Schindlers do nothing during the 15-day period in which motions for rehearing and rehearing en banc can be filed, or (2) the Schindlers timely file one or both forms of rehearing motion, or request a written opinion, and the court rules on whatever they file.

When the Second District issues its mandate, the case will be returned to Judge Greer. Assuming there is no change from the current decision affirming the result below, the operative order going forward will be the Second District's directive in this June 2003 decision, which instructed Judge Greer to hold a hearing to set a date for the feeding tube's removal.

As for the pending U.S. Supreme Court appeal, recall that the U.S. Supreme Court has not yet decided whether to hear Governor Bush's appeal from the Florida Supreme Court's decision declaring "Terri's Law" invalid. (For more here, see this post and this one.) Recall also that the Florida Supreme Court had stayed its decision regarding "Terri's Law" until November 29, 2004, to give the Governor time to seek a further stay from the U.S. Supreme Court. I am not aware that the Governor ever sought such a stay, and the Florida Supreme Court's stay has now expired. So, the Governor's current effort to appeal to the U.S. Supreme Court has no effect on what at the moment looks like the coming removal of Terri's feeding tube, unless the Governor requests and is granted a stay by that court.

One close follower of this saga has already asked me whether the Schindlers can appeal this latest decision to the Florida Supreme Court. In short, no. Assuming a motion for rehearing or written opinion is not filed or, if one is filed, it is denied without comment, the Schindlers can theoretically ask the Florida Supreme Court to review the Second District's decision, but the Florida Supreme Court will not have the ability to grant that request. The PCA issued today is, in the context of this case, unreviewable by the Florida Supreme Court. It is possible that the Second District could issue a written opinion based on a motion by the Schindlers for rehearing, and such an opinion might -- might -- open the door to review by the state supreme court, but the odds of a written opinion being issued that provides a means for supreme court review are very, very poor.

You might wonder whether today's decision can be reviewed by the U.S. Supreme Court. The answer is yes, if that court wishes to hear the case. The Schindlers have argued that the refusal to revisit the original decision deprives Terri of her religious freedoms under the First Amendment, an argument that raises an issue of federal law within the U.S. Supreme Court's jurisdiction. Of course, the Schindlers cannot ask the U.S. Supreme Court to hear the case until the matter is over in the Florida courts, and absent some form of stay from the nation's top court, the feeding tube would be removed long before the court resolved the case. So U.S. Supreme Court relief remains a long way off.
Bottom line? The Second District's mandate should issue 16 days from now unless a rehearing motion or motion for written opinion is filed. I suggest watching for the Schindlers to file one of those motions, which will take at least weeks to resolve. I also suggest watching to see if, before the Second District can issue its mandate, the Governor's office prepares a motion asking the U.S. Supreme Court to stay the "Terri's Law" case while that court decides whether to hear the Governor's appeal.

As for me, I'm going to update the 2004 Schiavo Posts page tonight. I haven't done that since late October, and I suspect a number of folks may be visiting here soon who may be interested in an up-to-date, though horribly long, chronology.

...posted by ⊥ 3:50 PM ⊥ #

First District: Workers' Compensation

At least the First District waited until after the (religious) holidays to inform the claimant in this case that he's not getting his new house.

...posted by ⊥ 11:10 AM ⊥ #

Schiavo News

Today's Miami Herald has a year-end update here.

...posted by ⊥ 10:20 AM ⊥ #

Join Now, Or Pay Later

If you've put off joining the Eleventh Circuit's bar, don't delay another day. On January 1, the application fee goes from $20 to $170.

...posted by ⊥ 10:17 AM ⊥ #

Tuesday, December 28, 2004

Supreme Court: Economic Loss

Those of you who know me well know that there is only one case that's come out in the last week that I really, really care about: the Florida Supreme Court's latest economic loss decision: Indemnity Insurance v. American Aviation, Inc.

The court reached its decision in the context of five questions the Eleventh Circuit certified in this case, which involved an aircraft owner's negligence claim that poor maintenance by the defendant, performed on the plane while it was owned by a prior owner, resulted in damage to the plane (and only the plane) during the plaintiff's ownership. A federal district court dismissed the claim for failure to state a cause of action under Florida law. The parties argued that Florida's economic loss doctrine controlled, and the circuit court certified a series of questions regarding how that doctrine should be applied to the case's allegations.

The supreme court's decision began what looks like a recharacterization process. The court has started to define Florida's "economic loss rule," sorting it into two forms, one of which applies in the context of contractual privity and the other in the context of product manufacture or distribution. The court held that neither "rule" has any application in the Eleventh Circuit's case, since it involves no privity and no manufacture or distribution.

On the whole, the court's decision is substantively consistent with established Florida law. The court receded in part from a prior decision and disapproved a district court decision to the extent they conflict with the court's new statement regarding the "rule"'s scope, but those disapprovals are merely technical in the sense the negligence result in each case should withstand them. Ultimately, and without ever saying so, the court's decision alters the lexicon by limiting the "rule" to instances of active extinguishment of otherwise cognizable torts, carving out from the "rule"'s scope situations where the allegations fail to state a cognizable tort in the first place.

There's no harm in that approach, though it is inconsistent with the approach taken in much of the existing case law, including the supreme court's own past decisions. Over the past two decades, Florida's courts have spoken of the two areas I just described under the single, arguably inaccurate heading "economic loss rule," and the cases' discussions have moved between these two areas with hardly a pause or distinction. Some or all of the resulting confusion about the "rule" might have been avoided if it had been seen more as a doctrine of multiple rules and the cases been appropriately categorized. Unfortunately, that approach never caught on. I expect it will soon. Indemnity Insurance is a start, though it carves out of the "rule" pieces that belong within the overall doctrine.

The puzzling part of the court's decision is that, after concluding the "rule" has no application to the facts of the federal case before it, the decision ends. The court sends the case back to the Eleventh Circuit for an examination of whether a claim for negligence is stated. Yet perhaps the Eleventh Circuit hoped the Florida Supreme Court would answer that very question, since it cannot be resolved without examining Florida's economic loss principles. Indeed, that question arguably cannot be answered without examining some of the same "economic loss rule" cases discussed in the Indemnity Insurance opinion. I wonder whether the Eleventh Circuit will feel comfortable determining whether a negligence claim is stated, or if the court will be inclined to certify another question. I can't wait.

...posted by ⊥ 4:58 PM ⊥ #

Eleventh Circuit: Mail Fraud & Punitive Damages

Those interested in fraud theories against large defendants or the constitutional reduction of punitive damages judgments will be interested in this concise Eleventh Circuit decision, where the court upheld a RICO judgment (predicated on mail and wire fraud) against AT&T based on the company's billing practices in connection with a 900-number service. The jury awarded the plaintiff $115 in actual damages and $1 million in punitive damages. The court held that the punitive damages award should be reduced to $250,000.

...posted by ⊥ 8:14 AM ⊥ #

Eleventh Circuit: Bankruptcy and Eleventh Amendment Immunity

Eleventh Amendment fans will enjoy this short decision from the Eleventh Circuit, which invalidated Congress's effort to abrogate states' Eleventh Amendment immunity through section 106(a) of the Bankruptcy Code. The court held that debtors may not bring claims against states (absent a state's consent) for unlawfully attempting to collect debts after receiving notice of a debtor's bankruptcy filing.

...posted by ⊥ 7:55 AM ⊥ #

Eleventh Circuit: Maritime Law & Rule 50(b)

The Eleventh Circuit has apparently determined that it should verify its admiralty jurisdiction before applying admiralty law, as the court did in this decision.

The case involved a suit against a cruise line based on a waiter's off-shore rape of a passenger. After a jury found in the plaintiff's favor, the district court granted the defendants judgment under Rule 50(b) based on an evidentiary ground the defendants had never raised. The Eleventh Circuit held this was error.

The court also held that, under maritime law, common carriers are strictly liable for crew member assaults. The court rejected an argument that a reasonable care standard applies.

...posted by ⊥ 7:08 AM ⊥ #

Supreme Court: Jimmy Ryce

The Florida Supreme Court has resolved two more issues concerning the Jimmy Ryce Act. (Recall that the court decided the Anders issue a couple of weeks ago in this case.)

The court held, here, that Kansas v. Crane does not require that a jury be instructed that the defendant must have serious difficulty controlling his or her behavior. Essentially, the court determined that the presently recognized elements of a Jimmy Ryce action sufficiently encompass difficulty controlling behavior.

In this case, the court held that a person need not be in custody for a sexually violent crime when Jimmy Ryce proceedings are initiated.

Both decisions were 4-3, with Chief Justice Pariente, Justice Anstead, and Justice Quince dissenting.

...posted by ⊥ 7:04 AM ⊥ #

Monday, December 27, 2004

Fourth District: Rule 3.800(b) Relinquishments

Where a sentencing error is spotted after the defendant's first brief is served, can the appellate court permit the defendant to withdraw the brief and proceed to the lower court under Rule 3.800(b)? In this case, the Fourth District said no.

Perhaps it is significant that the briefing in this case had already been perfected. It makes some sense to say that where the briefing is perfected and the court is now poised to consider the case's merits, withdrawing a brief already served should not be permitted. Likewise, if the briefing is not yet completed, it makes sense to permit a defendant to withdraw a brief to raise an unpreserved sentencing issue in the trial court.

...posted by ⊥ 6:25 PM ⊥ #

Third District: Outrageous Conduct

One way or another, I am always interested when the judiciary addresses outrageous conduct claims as a matter of law. Intentional infliction of emotional distress is one of the very few torts where the bar even to get to a jury is supposed to be very high.

In this case, the Third District held that a trial court correctly dismissed a pastor's intentional infliction claim. The defendants allegedly called the pastor "Satan" and other things in front of his congregation and told the audience he had stolen church money to buy a Mercedes. Possibly tortious in various ways, but not outrageous, said the court.

...posted by ⊥ 6:23 PM ⊥ #

Third District: Drone Debate

If the term "alimony drone" catches on, it's because of this decision from the Third District.

...posted by ⊥ 6:22 PM ⊥ #

Third District: Condo Homesteads

How do you calculate the size of a condominium for purposes of the Florida Constitution's half-acre homestead limitation? As a condo owner, I am a bit surprised to say that I have never thought about it. Interestingly, neither had the judiciary until the Third District considered this case, which disapproves the trial court's approach and thus really just tells us how not to do it. Judge Fletcher drafted a concurrence that offered a formula.

...posted by ⊥ 6:21 PM ⊥ #

Fifth District: Automatic Stays

Does the automatic stay triggered where a public officer or body initiates an appeal apply in civil forfeiture cases? Yes, said the Fifth District in this case.

...posted by ⊥ 6:19 PM ⊥ #

Questions, questions

In this case concerning the breadth of the stillbirth exception to the impact doctrine, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:

Absent physical impact, may a man recover for negligent infliction of emotional distress for the loss of a fifteen to eighteen week-old fetus under Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997)?

The Fourth District answered the question in the negative.

...posted by ⊥ 6:17 PM ⊥ #

First District: Sentencing Conflict

Somewhere, in the depths of a certain Tallahassee landmark, a law clerk sits. Eager. Giddy. Awaiting the opportunity to investigate and help resolve the latest sentencing conflict among the district courts of appeal. And here it is.

Happy holidays.

...posted by ⊥ 6:16 PM ⊥ #

Third District: Products Liability

Products liability fans will be interested in this decision from the Third District. In the context of a pool drain case, the court discussed product design and warnings, treated the risk-utility test as an alternative to the consumer expectations test, and rejected the trial court's application of the multiple accident theory that had been used to eliminate Fabre defendants on one of the plaintiff's theories.

...posted by ⊥ 6:14 PM ⊥ #

Third District: Peremptory Strikes

This decision from the Third District presents an example of how an ordinarily permissible basis for striking a prospective juror is insufficient when the juror and the defendant are members of the same racial minority.

...posted by ⊥ 6:12 PM ⊥ #

Fourth District: Rule 1.525

If you are keeping up on the latest developments concerning Rule 1.525, the rule requiring attorney's fees motions to be filed within 30 days of the entry of judgment, check out this decision from the Fourth District.

...posted by ⊥ 6:10 PM ⊥ #

Third District: Mere Flight's No Crime

Maybe it's me, but the state's position in this case seems, well, unbelievable. The Third District rejected it, though the court certified a possible conflict that may send the case to the state supreme court.

...posted by ⊥ 6:07 PM ⊥ #

Third District: Made Whole Doctrine

Wow. Two "made whole doctrine" cases in one month. I discussed the first case in this prior post. The latest is from the Third District, sitting en banc, and is available here. The court divided over how the principle interacts with an insured's comparitive negligence. Very interesting.

...posted by ⊥ 6:05 PM ⊥ #

First District: Extending Time For Service

In this case, the First District reminds us that a trial court can extend the time for serving process on a defendant even in the absence of good cause.

...posted by ⊥ 6:04 PM ⊥ #

Third District: Forum Non Conveniens

This decision from the Third District is chock full of interesting angles. A number of foreign cruise ship workers sought to bring Jones Act (federal maritime injury) claims in Florida courts for injuries suffered in foreign waters, and the defendants sought to dismiss the cases under the forum non conveniens doctrine.

Why would the plaintiffs want to bring their claims here, when nearly everything connected with the case concerned other countries or even other continents? In my experience, there are usually three reasons: the generosity of American juries, the low barriers to litigation in America's courts (in other countries, for instance, a losing plaintiff may always be required to pay the winner's attorney's fees, or a plaintiff may be required to put up a costs bond in advance for all of the defendant's expected costs), and the high recognition given to American judgments in other countries. State courts, on the other hand, don't like using the Florida taxpayer-funded judicial system to resolve large, time-consuming disputes that basically have nothing to do with Florida. Therein lies the tension.

Sitting en banc to clarify its case law, the Third District split over how to apply the forum non conveniens doctrine in these cases. The majority concluded the cases should dismissed and litigated elsewhere. Three judges dissented. Lots of good discourse here.

...posted by ⊥ 6:00 PM ⊥ #

Third District: Tobacco Decision

Those following tobacco litigation will be interested in this latest decision in the flight attendants' class action. The Third District upheld an individual, stage 2 award against the cigarette manufacturers.

Those interested in Florida's various legal doctrines may wish to check out this decision for its application of the "indivisible injury rule," which the court used to determine that the defendants should be jointly and severally liable for the plaintiff's damages.

...posted by ⊥ 5:58 PM ⊥ #

Schiavo Thoughts

I thought I should finally mention that show. Some of you know which one. It aired last Saturday on A&E and was called "Between Life and Death: The Terri Schiavo Story." The show included three clips with comments from me. Yeah, that was me. The producers called me last November and asked if they could interview me. I agreed to speak but only on the legal events that had already taken place. I didn't want to comment on "Terri's Law," which at the time had just been passed.

I didn't know if anything would ever come of the interview. I was surprised to get an email from the producer last Saturday afternoon -- well over a year later -- saying the program would air on A&E that day. Unfortunately, when I got the email, I was shopping in Orlando, a long way from my home in St. Pete.

I finally got to see a tape of most of the program this weekend. A very kind reader has also emailed me, saying he recorded the entire program and would send me a copy. Very kind, indeed. A great Christmas gift. Anyway, I thought the show did a decent job of explaining the circumstances of the case. Both "sides" had parts of their stories told, and both "sides" probably felt minor but critical elements of their stories were left out, which probably means the program was pretty well balanced.

...posted by ⊥ 6:00 AM ⊥ #

Very Merry

Christmas weekend was very nice for me. Merry, in fact. Hope it was for you, too.

...posted by ⊥ 5:45 AM ⊥ #

Friday, December 24, 2004

Schiavo Thoughts

UPI ran a story this week about the Terri Schiavo saga. The story is available here and here. The author assumes the U.S. Supreme Court will hear Governor Bush's challenge to the decision overruling "Terri's Law," and, if I read the story correctly, he predicts the result will be a 5-4 decision reaffirming the principles from Cruzan v. Director MHD without deciding Governor Bush's "14th Amendment argument." The author labels the justices as conservative or liberal and, deeming Cruzan to have reached a conservative result, believes the court's conservative majority will again carry the day in the Schiavo case.

Though some readers have asked me to comment on this story, and I have leisurely pondered it and Cruzan now for a couple of hours, I have decided to say little about the story itself. I am not sure I understand the author's conclusions about how the court would rule if it took the case, and I don't believe broad labels like "conservative" or "liberal" are very useful for predicting how a judge will decide a case involving the sort of issues found in Terri's case.

The Cruzan case is available here, and I commend it to anyone interested in this area.

Cruzan involved a Missouri woman in a persistent vegetative state who was being kept alive with a feeding tube. Years earlier, she had made comments to others about not being kept alive in such circumstances, and her family wanted the feeding tube removed. The hospital where she stayed, however, wanted the tube left in place. So did the State of Missouri. A trial judge examined the case and, to oversimplify, ruled in the parents' favor. The state supreme court reversed, holding that the state's interest in preserving Cruzan's life could only be overcome by clear and convincing evidence she would not wish to continue her medical care. Cruzan's guardian and her parents then asked the U.S. Supreme Court to reverse that decision. The high court took the case, but it affirmed the result below.

The argument made to the U.S. Supreme Court was that Cruzan's federal due process rights included a liberty interest in refusing unwanted medical treatment, including the use of a feeding tube, and that Missouri could not deprive her of that right. The court framed the issue to be decided in the case as whether Missouri's clear and convincing evidence requirement violated the Fourteenth Amendment's due process clause. A majority of justices said no.

So what does Cruzan tell us? It tells us that the federal constitution does not prohibit states from using the clear and convincing standard when evaluating incompetent patients' wishes. That's it, and that has nothing to do with anything that has ever been at issue in Terri's case.

Two concurring opinions from the "conservative" Cruzan majority deserve some attention. Justice O'Connor observed that a feeding tube cannot be distinguished from other forms of medical intervention. She wrote:

Artificial feeding cannot readily be distinguished from other forms of medical treatment. Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." A gastrostomy tube (as was used to provide food and water to Nancy Cruzan) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

(citations omitted.)

Justice Scalia added that, in his view, the federal constitution simply has nothing to do with any of this. He explained that no one has a substantive federal right under the due process clause to deliberately end his or her own existence, regardless of the circumstances.

These are certainly conservative views in some senses, but do they align with what many seem to believe a "conservative" court would do with Terri's case? Does the label "conservative" help here at all? I don't think so.

...posted by ⊥ 1:52 PM ⊥ #

Supreme Court: No Opinion After All

Quick: what was the first proposed constitutional amendment on the this year's ballot? Right, the parental notification amendment proposed by the legislature. You may recall that the ACLU challenged the proposal's summary as being misleading, and in this order, the Florida Supreme Court took the interesting and, I believe, unprecedented step of striking the proposal's summary and ordering it replaced with the proposal's text. The order concluded with the words "Opinion to follow.

At the time, Mark Lane, of flablog, had wondered aloud why the court would correct a perceived deficiency in the parental notification proposal but simply strike from the ballot the proposed amendment to double the homestead exemption. Since I like this sort of stuff, I took a stab at guessing the answer in this predictive post.

Was I right? Well, I'll say yes, with a wink: on Wednesday, the court issued this unanimous follow-up order, which essentially said that no opinion will follow after all.

...posted by ⊥ 8:31 AM ⊥ #

Abstract Play

Did I say "morning"? Yesterday just reinforced an old lesson: never think you'll have a brief done in the morning. Or the afternoon, for that matter. Anyway, it's Christmas Eve's dawn, and I'm staring at downtown St. Pete. It's ghostly quiet. An occasional municipal bus rides by but, otherwise, there's hardly a sign of life. Everyone must have slept in, and no one's gone to work.

Good. I'm not going to work either. I'm just going to sit here for, well, a long time and catch up. Great stuff in these last couple days. Got to get to it. To those who've emailed me recently and to whom I've either not responded or curtly responded, look for bigger, badder, better responses today.

Ho ho ho.

...posted by ⊥ 7:42 AM ⊥ #

Thursday, December 23, 2004

Abstract Pause

I'm not on a Christmas break just yet -- I've been working to finish two briefs that need to go out before the end of today. One went out yesterday. The other will be done this morning, and then back to blogging...

...posted by ⊥ 9:18 AM ⊥ #

Tuesday, December 21, 2004

Courthouse Wi-Fi

Law.com offers this story on wireless networks in courthouses. While the topic is not really Florida-law related, I thought I'd link the story anyway.

Wireless networks are the inevitable future in Florida's courthouses. It's important, though, that court administrators and judges understand what computer users can do with these networks and what can be used as substitutes if such networks are not made available. This story's a start.

It's a tech world now.

...posted by ⊥ 10:48 AM ⊥ #

School Voucher Case

Yesterday, the Florida Supreme Court rejected the plaintiffs' motions to expedite review in the school voucher case. (The three sets of defendants have filed three separate appeals, and the orders denying the plaintiffs' motions in each case are available here, here, and here.)

...posted by ⊥ 8:09 AM ⊥ #

Monday, December 20, 2004

Florida's Blaine Amendment

Over the weekend, I drafted some extensive thoughts on Florida's Blaine amendment. I had mentioned that provision in this post, which described how the amendment was suddenly a topic of conversation all over Tallahassee and, consequently, in the news.

It turns out that there's too much to say to include it all in a single post. Or two or three. Instead, I'm just going to post a thought or two at a time, and in the course of doing so try to explain what Florida's amendment says, what it means (the tough part), and what impact it has on our state. The implications and ramifications could be the subject of countless stories.

Let's start out with the text of the provision we're talking about. Article I, section 3 of the Florida Constitution contains three sentences, the third of which is commonly referred to as Florida's Blaine amendment:

There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

That third sentence is the source of the recent discussion about amending the constitution and the validity of the state's voucher program. The provision tells state and local government officials not to use public money to aid religious groups. What does it mean? And what or who is Blaine? I'll get there in coming posts.

...posted by ⊥ 7:58 AM ⊥ #

Suit Numbers

Last week, in this post, I mentioned the jury's $5.7 million compensatory damages award in a Tampa case involving a young woman's claim against her apartment complex. The woman had been abducted and shot, and she apparently sued to make her apartment complext pay for lax security. The jury later ultimately awarded $10 million in punitive damages, bringing the total verdict to $15.7 million.

Over the weekend, the St. Pete Times ran this story about the fees the woman's lawyers might receive.

...posted by ⊥ 6:47 AM ⊥ #

Saturday, December 18, 2004

Eleventh Circuit: Insurance Coverage

In this case, the Eleventh Circuit considered whether an insurance policy's coverage for advertising injuries provided coverage for claims of misappropriation of a customer list and other confidential information. Florida law controlled but Florida case law did not answer the question. Turning to out-of-state authorities, the Eleventh Circuit held that that the policy at issue did not cover the alleged wrongdoing, which had nothing to do with misappropriating advertising ideas or business styles, and the insurer thus had no duty to indemnify or defend.

...posted by ⊥ 9:57 AM ⊥ #

Fifth District: Open Container Laws

This decision is good for the holiday spirit. Or spirits.

During a large event, a man was walking down a sidewalk along A1A in Daytona Beach with a group of others. They were all carrying red plastic cups. A police officer directing traffic spotted the group and observed the man holding his cup by his leg and altering his path in an apparent effort to avoid the officer. The officer crossed the street, grabbed the man's arm, and asked about the cup's contents. Hennessy was the answer, and when the officer arrested the man for violating the city's open-container law, the officer found Ecstacy pills on him as well.

The Fifth District reversed a decision denying suppression of the evidence and ordered the man released. The court concluded that the facts observed by the officer gave rise to no more than a hunch about unlawful conduct -- not enough to justify stopping the man.

Before you go celebrating this decision with a red plastic cup and a stroll down the local lane, keep in mind that the key to the ruling was the timing of the officer's detention. Had the officer not detained the man until after he admitted what was in the cup or after the officer observed the liquor's presence, the result would no doubt have been different.

Still, the case leaves me with one unanswered question: how many people carrying cups down the streets in Daytona are drinking Hennessy? Hmmm.

...posted by ⊥ 8:11 AM ⊥ #

Fifth District: Inquiry By Trial Judges

When does a trial judge go too far in examining a witness? Here's an example.

...posted by ⊥ 8:07 AM ⊥ #

Fifth District: Self-Defense

For those keeping track of which errors are fundamental in the criminal context, the Fifth District's decision here reminds you that erroneously adding the forcible felony exception to the self-defense instruction is one.

...posted by ⊥ 7:46 AM ⊥ #

Fifth District: Alimony

As in this case, the Fifth District continues to urge family law attorneys to place evidence in the record of how federal taxes affect the parties' incomes. It helps in the alimony analysis.

...posted by ⊥ 7:36 AM ⊥ #

Friday, December 17, 2004

Special Session Summary

The legislature's special session wrapped up yesterday in Tallahasee with the passage of a number of bills. My firm's government consulting group has done a first rate job of summarizing the new legislation in a report you can read here.

...posted by ⊥ 6:42 PM ⊥ #

Make That Four New Appellate Judges

Governor Bush has been busy with appellate appointments. As mentioned below, he has appointed Edward LaRose, of Trenam Kemker, to the Second District.

The Governor has also appointed three persons to the Third District:

Angel Cortinas, of the U.S. Attorney's Office (SD Fla)
Leslie Rothenberg, of Steel, Hector, & Davis, and
Richard Suarez, of the Miami-Dade County Court bench

...posted by ⊥ 6:24 PM ⊥ #

Whew

Oh my, what a day. Much work on a brief left me largely unable to post, but there are many things to mention. I'll get one or two quick posts up now and get the others up this weekend.

...posted by ⊥ 6:12 PM ⊥ #

Supreme Court: Nursing Home Law

Yesterday, the Florida Supreme Court released a long-awaited decision in the nursing home area. The decision, available here, approved a decision by the Fourth District concerning whether (under pre-2001 law) a personal representative of a resident's estate can bring a statutory claim for a residents' rights violation if the asserted violation did not cause the resident's death.

The decision implicitly disapproved this decision released earlier this year by the Fifth District and approved this decision reached by the Second District.

For more on the merits of these cases, see this prior post.

The Supreme Court's lead opinion is unsigned but joined by four justices, including Justice Cantero, who also wrote a separate concurring opinion. The three justices who joined the lead opinion with Justice Cantero also joined his concurrence, which perhaps means there were actually two majority opinions, one "per curiam" and the other by Justice Cantero. This is a bit peculiar, but an explanation may lie in the case's age. The Fourth District issued the decision on review in 2000, and when the case was orally argued in 2001, two of the present justices (Justice Cantero and Justice Bell) were a year away from being appointed to the court. Perhaps one or both of the justices they replaced had a hand in what became the unsigned lead opinion. Just a guess.

...posted by ⊥ 1:05 PM ⊥ #

New Second District Judge: Edward LaRose

I have heard that Governor Bush has appointed Edward LaRose to the Second District.

...posted by ⊥ 12:15 PM ⊥ #

It's What?

I can't believe the day has slipped by so fast. I'm quite late in posting...

...posted by ⊥ 12:13 PM ⊥ #

Thursday, December 16, 2004

Florida's Blaine Amendment

I wish I'd saved myself some time this morning to pen some thoughts on Florida's Blaine amendment -- the portion of Article I, section 3 of the Florida Constitution that prohibits the state from using public funds to aid religious institutions. That provision is making lots of news these days. I'll try to give a quick summary.

First, there's the legislature's special session on universal pre-kindergarten. That session is going on now, and whether religious schools can be part of a statewide pre-K program is a hot, hot topic in Tallahasee. Today's Miami Herald has this story on it.

Second, the state has now appealed to the Florida Supreme Court from the First District's decision in Bush v. Holmes. That decision declared Florida's Opportunity Scholarship Program to be unconstitutional under Florida's Blaine amendment because the program permits parents of students in failing schools to use state scholarship money to send their children to numerous alternative local schools, with no exclusion for religious schools.

Finally, with the hullaballoo over the pre-K program potentially involving religious schools, one powerful state senator is raising talk about amending the state constitution to remove the Blaine amendment portion of Article I, section 3. That would bring Florida's constitution squarely in line with the federal constitution and eliminate the controversy over whether the state constitution has a different meaning. Today's Tallahassee Democrat has an in-depth story here.

When I get some time in the next day or two, I'm going to post some extensive thoughts on the law at issue here. This is a truly fascinating subject, and one that should interest all Floridians because of its impact on so many aspects of state government. More to come...

...posted by ⊥ 7:59 AM ⊥ #

Jury Award In Progress

A student who was abducted and shot has been awarded $5.7 million by a Tampa jury in a suit against her apartment complex, according to this story in today's Tampa Tribune. The jury will resolve the issue of punitive damages today.

...posted by ⊥ 7:47 AM ⊥ #

Fourth District: Disqualification

From correspondence I've received over the past year, it seems that some folks believe a trial judge's repeated rulings against a party demonstrate bias and are grounds for disqualification. Not so. The statements made in this case, by comparison, are another story.

...posted by ⊥ 7:41 AM ⊥ #

Fourth District: Made Whole Doctrine

If you are not familiar with Florida's use of the "made whole" doctrine in insurance cases, check out this case from the Fourth District for an example.

...posted by ⊥ 7:36 AM ⊥ #

Fourth District: Local Action Rule

The distinction between a claim of lien against real property and claim on a surety bond is seen in this decision from the Fourth District.

...posted by ⊥ 7:24 AM ⊥ #

Fourth District: Marital Settlement Agreements

Does a settlement agreement created during a divorce survive the parties' subsequent remarriage? Perhaps, but the Fourth District held that the agreement at issue here did not.

...posted by ⊥ 7:17 AM ⊥ #

Questions, questions

You may recall this post from October concerning the Fourth District's split decision in this insurance subrogation case. In this order released yesterday in the same case, the court certified the following to the Florida Supreme Court as a question of great public importance:

May an employer who has been found guilty of destroying evidence critical to its employee's right to recover from a third party tortfeasor, and who has been forced to pay the employee damages for such destruction, be deemed a third party tortfeasor for purposes of a carrier’s subrogation rights under § 440.39(3)(a)?

...posted by ⊥ 7:06 AM ⊥ #

Third District: Forfeitures

If you are interested in currency forfeiture proceedings, check out this en banc decision of the Third District, which examined the standing requirements associated with the preliminary adversarial hearing stage.

...posted by ⊥ 6:59 AM ⊥ #

Third District: Workers' Comp Immunity

In this case, the en banc Third District held that an employer's act in granting an employee permission to steal a backhoe was, as a matter of law, not the legal cause of the death of someone injured during the allegedly stolen backhoe's operation.

...posted by ⊥ 6:45 AM ⊥ #

Second District: Work Product

If the parties agree that the plaintiff can have a videographer attend the plaintiff's compulsory medical exam, is the resulting videotape work product? Yes, said the Second District in this case, though it remains to be determined whether the defendant can overcome the work product protection.

...posted by ⊥ 5:59 AM ⊥ #

Not So Important After All

Recently, the Florida Supreme Court discharged its jurisdiction in this case, which involved the following question certified by the Fourth District to be of great public importance:

Does the litigation privilege of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So. 2d 606 (Fla. 1994), apply to claims alleging direct interference with an attorney's fee earned by representing a consumer's claim for unfair or deceptive practices in a sale of a motor vehicle, where the interference arose from a seller-initiated settlement without counsel in which the fee due the lawyer was reduced without the lawyer's consent?

This was an interesting case. For more on the district court's opinion and that court's certification, check out this prior post and this one, respectively.

...posted by ⊥ 5:44 AM ⊥ #

Florida Supreme Court: Insurance

Where an insurance policy covering an employer's workers' compensation liabilities excludes coverage for injuries intentionally caused by the employer, does that exclusion apply where the employer is successfully sued by an employee under the (now statutorily superceded) theory that the employee's injury was substantially certain to occur? No, said a divided Florida Supreme Court in this decision, answering two questions certified to the court by the Eleventh Circuit.

Interesting, the court previously decided that workers' compensation immunity did not apply to the underlying claims in this case. As a result of this latest decision, coverage exists for acts for which no immunity exists. Three justices dissented.

...posted by ⊥ 5:24 AM ⊥ #

Supreme Court: Evidence Rules

The Florida Supreme Court has adopted the recent legislative amendments to the Evidence Code (to the extent they are procedural), with one exception. The court did not adopt the amendment to section 90.104(1) that eliminates the need for an objection at trial to preserve an evidentiary ruling in cases where the judge made a definitive ruling on admissibility. The court is still considering that amendment.

The court's order is here.

For those who do not know the background on this sort of order, I will just say, briefly, that there is a longstanding uncertainty surrounding the legislature's adoption of rules of evidence and the extent to which the rules are substantive (and thus in the legislature's domain) or procedural (and thus in the court's domain). To temper what could otherwise be a separation of powers battle, and alleviate uncertainty in the law, when the legislature amends the Evidence Code, the court generally adopts those amendments.

...posted by ⊥ 5:03 AM ⊥ #

Wednesday, December 15, 2004

Supreme Court: Jimmy Ryce

Does the Anders procedure for briefing apparently meritless appeals apply in cases involving Florida's Jimmy Ryce Act? Yup, said the Florida Supreme Court in this case.

...posted by ⊥ 11:05 PM ⊥ #

Font Tales: Details Only An Appellate Attorney Could Love

I suppose by now most appellate attorneys have seen the Fifth District's order sanctioning an attorney for repeatedly using the wrong line spacing in a brief. (If not, check it out here.) I have some thoughts on this subject that I'd like to share.

In the way of a disclaimer, let me first point out that I have not contacted anyone involved in that case about it, nor have I seen the offending material(s) or the motions involved. I've just read the same order we've all seen.

That said, I'm going to guess at what happened. Or what may have happened. You see, there is a recognized debate in Florida's appellate community over line spacing. (What other group could possibly debate this?) This has gone on for four years, since the Florida Supreme Court amended Rule 9.100 (petitions) and Rule 9.210 (briefs) with respect to fonts and line spacing. Former Rule 9.210 provided that briefs should be "printed in type of no more than 10 characters per inch" and "double spaced so that there are no more than 27 lines per page." Rule 9.100 didn't address this topic. Once amended, both rules simply provided that briefs and petitions should be "double-spaced" and "submitted in either Times New Roman 14-point font or Courier New 12-point font."

For those who write too much (not me!!), these amendments were like bombs falling on the appellate landscape. Here's why.

Microsoft Word offers two different forms of line