Abstract Appeal -- by Matt Conigliaro

Friday, April 29, 2005

Friday Florida Law Trivia Answer

It turns out I'll be on a flight back to Tampa at 4:45, so I'm going to post the answer to today's question now.

While it may surprise some -- yes, a court can reform a written contract to include a signature that was omitted from the document. Proving that should happen isn't easy, but it can be done.

...posted by ⊥ 3:43 PM ⊥ #

Friday Florida Law Trivia!

The doctrine of reformation permits a court to correct a written document where it says one thing but the parties agreed to another. But how far does that go? Let's say a signature was inadvertently omitted from a document that can't be enforced unless it was signed. Can you go to court to have the signature "added" to the document?

I'll post the answer around 4:45 EDT today.

...posted by ⊥ 9:28 AM ⊥ #

Third District: Replevin Remedies

"Replevin for a cow." That opening line from Sherwood v. Walker just sticks in my mind. Sort of like "It was a dark and stormy night...." Or the witty opening to Pride and Prejudice that, universally true, a single man in possession of a good fortune must be in want of a wife.

Anyway, Rose 2d of Aberlone -- the cow in Sherwood v. Walker -- left enough of an impression on me that replevin cases always catch my eye. Perhaps that's because replevin is such a basic concept: you took something of mine, give it back. Or pay me for it.

But what if the misappropriated item was something you needed to be employed and earn a living -- can you recover the wages you lost during its absence? This case presented that very question. The dispute involved a mechanic whose tools were kept for a time by his former employer after the employer fired him. The Third District held that while the mechanic could recover the value of the tools' lost use, he had asked only for the wages he lost while the detained tools kept him from being able to work, and lost wages were not recoverable. Judge Cope dissented. Interesting.

...posted by ⊥ 9:04 AM ⊥ #

Second District: Affirmative Defenses

There is nothing really new here, but this decision from the Second District is the first case I recall that addresses the constitutionality of 2002's section 893.101. That statute provides that the state is not required to prove a defendant in possession of a controlled substance knew of the substance's illicit nature; rather, a lack of knowledge is an affirmative defense that the defendant may prove.

The Second District rejected a due process challenge to the statute and its placement on the defendant of the burden to prove lack of knowledge. The court explained that the legislature is constitutionally permitted to define what elements comprise a crime and what constitutes a defense. That's the long-established view. So, here, the legislature could decide that knowledge of a substance's illicit nature is not an element of a crime, and the legislature could permit lack of knowledge to be a defense.

...posted by ⊥ 8:59 AM ⊥ #

Third District: Unemployment Compensation

Just a reminder here from the Third District that folks who voluntarily leave their jobs are generally not eligible to collect unemployment compensation. There is an exception for situations where an employer gives an employee good cause to leave.

...posted by ⊥ 8:58 AM ⊥ #

Second District: Probate Appeals

Is a determination regarding entitlement to an elective share, without a determination regarding amount, a final order that may be immediately appealed under Rule 9.110(a)(2)? No, said the Second District in this decision.

...posted by ⊥ 8:57 AM ⊥ #

Third District: Attorney-Client Privilege

Can you have a privileged conversation in Florida with a lawyer who is a member of another state's bar but not The Florida Bar? Sure. It happened in this case from the Third District.

...posted by ⊥ 8:49 AM ⊥ #

Thursday, April 28, 2005

Rush News, Part II

When I last commented on this case, back here, I noted that the high court might decide not to answer the certified question. Rejecting certified questions is not common, but it does happen, and when it does, there's no way to tell why it happened.

Perhaps the court agreed with the result below. Or perhaps the court would like to see the certified issue further fleshed out by the other district courts. Or perhaps the court just didn't agree the issue was very important.

It might also be worth noting that you cannot tell whether the justices who dissented from today's order did so because they believe the court should answer the certified question or because they believe the district court's answer was not correct.

Inferring that the three dissenting justices would have voted to quash the district court's decision is no more valid than inferring that the four justices who voted not to hear the case would have voted to approve that decision.

Both inferences are invalid.

...posted by ⊥ 5:47 PM ⊥ #

Rush News

Today, the Florida Supreme Court announced it will not review a high-profile decision against Rush Limbaugh entered last year by the Fourth District.

Today's order is available here.

The Fourth District's decision against Rush is available here.

You can also read my explanation of the Fourth District's decision in this October 2004 Abstract Appeal post.

I'll post some thoughts on today's order later this afternoon.

...posted by ⊥ 11:44 AM ⊥ #

Schiavo Updates

Last night, I put together the list of links to my more "popular" Schiavo posts. The Pop Posts page is available here. Many thanks to those who gave suggestions on what to include.

Two additional Schiavo-related thoughts.

First, I should have the timeline on the InfoPage updated by tomorrow morning.

Second, for those of you who live in Tallahassee, I will be visiting your way tomorrow. The Capital Tiger Bay Club has asked me to be the guest speaker at tomorrow's meeting and discuss the Schiavo case. I can't imagine those folks will have any questions...

...posted by ⊥ 7:27 AM ⊥ #

Wednesday, April 27, 2005

I Am My Castle

I suppose that's one way to look at it.

When it came to using deadly force against an attacker, the common law generally offered some rather rigid rules. Deadly force could be used in self-defense only in response to a threat of serious harm, and one had a duty to retreat if possible before using deadly force unless the attack took place in one's own home -- one's "castle." That exception to the duty to retreat became known as the castle doctrine.

I suppose that in crafting those rules long ago, the courts focused on authorizing as little harm as possible. Get away if you can. Go home. But if you're already home, you can go ahead and defend yourself. That makes sense.

At the same time, I suppose it also makes sense to say that a person under attack outside the home was thrust into a serious predicament. Anyone's instinct would be to survive the attack, and yet at that moment the law focused not on instincts but on well reasoned behavior -- if at all possible, retreat and don't return the attacker's aggressions. Otherwise, if you return deadly force with deadly force, you could find yourself being prosecuted for murder and even being sued by the person (or the family of the person) who attacked you.

Enter the Florida Legislature, which earlier this month passed this bill. The bill generally authorizes the return of deadly force anywhere a person has a right to be. The governor signed the bill into law yesterday, and it takes effect on October 1.

Some see the new law as keeping the focus on the attacker's conduct, rather than second-guessing and penalizing the victim's conduct. Others see the law as promoting deadly shootouts in public places, with potentially fatal consequences for those involved in the attack as well as bystanders.

I look at it as an example of how the legislature sets the state's policies on behalf of its people, and if the people believe a common law rule is outdated, the legislature is empowered to change it.

For more on the new law, check out the coverage in today's Sun-Sentinel and St. Pete Times.

...posted by ⊥ 7:40 AM ⊥ #

Blogus Amicus

Perhaps it's a first: 80 bloggers from California have formed the Bear Flag League, and two weeks ago the group filed this amicus brief in a California intermediate appellate court.

The case is the well known Apple Computer litigation in which Apple contends certain bloggers are not protected by the privileges applicable to traditional journalists.

My hat's off to my blogging amici.

...posted by ⊥ 7:28 AM ⊥ #

Tuesday, April 26, 2005

Suggestions Wanted

After taking a few weeks off from the saga, I've started to update the Schiavo materials on this site. You may have noticed some new links in the top left column.

For those still looking for reference materials, I've created a page of my 2005 Schiavo-related posts. More important for purposes of this post, I've started a new page that will contain links to some of my better Schiavo posts. It occurred to me that some sort of "popular posts" index might be helpful, but I'm not sure which ones to include. The posts on hearsay and clear and convincing evidence seem like good candidates, and I got a great deal of positive feedback for the "Judging Courage" post on Judge Greer. So that'll be listed, too. Anything else? Longtime readers, was anything I said years ago about Terri's Law or the earlier proceedings helpful?

Let me know. I'm going to compile that list and fix up that page tomorrow night. Then I can update the timeline and add a few posts regarding DCF, the Congressional subpoenas, and, finally, the autopsy.

...posted by ⊥ 5:07 PM ⊥ #

Court Props

The Fourth District deserves credit. In the last few weeks, the court has begun implementing a new format for its opinions. The change is certainly for the better.

For years, the Fourth District's opinions have been released in a professional-looking single-spaced, dual-column format with a somewhat small Times New Roman font. The result has been a very readable opinion -- if you printed it out. Indeed, when printed, the Fourth District's opinions closely resembled the versions you would later see professionally published in the bound Southern Reporter.

Here is an example.

Trouble came, though, if you wanted to read the court's opinions online. Dual-column format is very easy on the eyes when a page is printed, but it is an invitation to eyestrain when the page is viewed on a computer screen and the user must scroll the page down to read a page's left column and then back up to read the same page's right column.

The court's new format eliminates this trouble and, in my view, adopts a wonderful set of changes. The new approach -- which you can see here -- utilizes a single-column format with single-spaced text and the Bookman font. The result is arguably the most readable of the Florida appellate courts' online opinions.

As someone who reads every state district court and supreme court decision online, I say thanks.

...posted by ⊥ 7:58 AM ⊥ #

Monday, April 25, 2005

Implementing Legislation For New Amendments

Over the weekend, the AP ran this interesting story about bills that would implement two constitutional amendments Florida voters adopted in 2004.

Amendment 7 requires the release of doctors' adverse incident documents, and Amendment 8 provides for the revocation of doctors' medical licenses after they are found to have committed malpractice three times.

...posted by ⊥ 7:58 AM ⊥ #

Fifth District: Appellate Mediation

Here is an order that should be noticed by appellate mediators and anyone whose clients are scheduled for appellate mediation.

The Fifth District sanctioned a party who did not appear in person at an appellate mediation. It probably did not help that the mediation resulted in a settlement agreement with which the nonattending party refused to comply. The court ordered the nonattending party to pay the mediator's fees, opposing counsel's fees for both mediation and the sanctions motion, and a $500 fine payable to the court.

Attend mediation. It's that simple.

...posted by ⊥ 7:44 AM ⊥ #

Third District: Tolling Time 101

Appealing a county court decision to circuit court, the appellant in this case obtained a 30-day extension of time to file an initial brief and then filed a motion to supplement the record. Months later, with no initial brief but the motion to supplement still pending, could the circuit court dismiss the appeal?

No, said the Third District. Rule 9.300 tolls time in circuit court and district court appeals whenever a motion is filed, unless the motion is one of those listed in subdivision (d) of the rule. So as long as the unlisted motion remained pending, time was tolled, and the initial brief was not untimely.

...posted by ⊥ 7:43 AM ⊥ #

Fifth District: Administrative Review

For an interesting decision showing how the Fifth District decided whether it or a circuit court should hear a challenge from a particular decision by the state Board of Education, check out this opinion. The winner was… the district court.

...posted by ⊥ 7:42 AM ⊥ #

Fourth District: Juror Bias

Can you win an appeal on grounds the trial court erred in not striking a biased juror for cause? Of course you can, as the plaintiff did in this case. The Fourth District reversed a judgment for the defendants and remanded for a new trial.

...posted by ⊥ 7:41 AM ⊥ #

Fourth District: Tax Time

The tax consequences of how a piece of real property is used on January 1 of a given year can be seen in this decision from the Fourth District.

The court held that whether the units in an apartment building qualified for tax-exempt status under this affordable housing exemption hinged on whether the units were actually rented to low or very low income tenants on the first day of the year.

...posted by ⊥ 7:40 AM ⊥ #

Fifth District: Home Venue Privilege

For an interesting and concise discussion on the home venue privilege shared by the state's agencies, and on the contours of the principal exception to that privilege, check out this decision by the Fifth District.

...posted by ⊥ 7:39 AM ⊥ #

Friday, April 22, 2005

Friday Florida Law Trivia Answer

I received many good responses to today's question. I can't fight with a number of them. Sure, schools, roads, and gun shops may be ordered closed in the case of a riot or mob. But the answer I had in mind concerns a group that wears a special, statutory bull's-eye in these situations: bars.

This statute specifically authorizes local mayors and county commissions to order the closure of certain bars and the cessation of alcohol sales at restaurants and stores in the event of a mob gathering or riot.

Now, if you wish, go start your weekend off right with a drink at a local watering hole, and be glad there's no mob in sight.

...posted by ⊥ 4:46 PM ⊥ #

Friday Florida Law Trivia!

Trivia time. This one's too easy, I think.

If a riot occurs or a mob erupts in your area, what's likely to be ordered closed?

I'll post the answer around 4:45 pm EDT today.

...posted by ⊥ 10:14 AM ⊥ #

Email Note

To those who've emailed me in the last few days -- travel and workload have kept me from responding so far. I'll get back to you later today.

Oh, and there's a group of about 342 emails that I received one afteroon during the Schiavo saga to which I've still not responded -- yet. I managed to keep up before and after that group, but that set just hasn't been addressed. Responses may not be timely anymore, but I will get to each of them.

...posted by ⊥ 10:09 AM ⊥ #

Florida Supreme Court: The Perfect Storm Case

Florida has a statute -- this one -- that prohibits publishing or publicly using a person's name, photograph, or likeness for commercial purposes without the person's consent. (Or, if the person is deceased, the consent of the person's spouse or adult child.)

Knowing that, let's say the folks out in Hollywood decide your life is particularly entertaining and that a movie about you is just what the coming holiday season needs. Alarmingly good-looking people play you and everyone you know -- why not? -- and the movie makes its stars and the movie production machinery lots of money. You never consented to any of this.

Do you have a claim under the Florida statute that prohibits using your name and likeness?

That's essentially the sort of question the Florida Supreme Court had to tackle in this case. The suit was brought by relatives of the actual people portrayed, without consent, in the motion picture The Perfect Storm. You remember Captain Billy Tyne and friends.

And the answer, for the plaintiffs, was no.

Florida's high court had never interpreted this law before, but the court agreed with a decades-old interpretation by other Florida courts that limits a "commercial purpose" to one that uses a person's name or likeness directly to promote a product or service. A movie or book, fact or fiction, does not ordinarily promote a product or service, and The Perfect Storm did not. Concerns that a broader interpretation of the statute would violate the First Amendment's freedom of speech right strongly influenced the case's result.

So if The Perfect Storm isn't using Billy Tyne's name or likeness to promote something, what would? Well, maybe think about an infomercial. Using your name or likeness to sell a slicing, dicing, get-ripped-abs-while-watching-tv machine -- that just might do it.

...posted by ⊥ 8:35 AM ⊥ #

First District: Deposing (Former) Agency Heads

Last week I mentioned how the certiorari writ can be used to require testimony by deposition. This week I'll point out that the converse is true, too: the writ can be used to block deposition testimony.

The case in point is politically noteworthy because it involves former Commissioner of Education Jim Horne. The plaintiffs sought to depose him regarding funding decisions made on his watch, and while Florida law generally prohibits deposing agency heads except when their testimony is necessary, relevant, and unavailable from any other source, the trial judge found that principle inapplicable in the case of a former agency head.

The First District disagreed. Former agency heads share the principle's protection, too. You can read the decision here.

...posted by ⊥ 8:24 AM ⊥ #

Second District: Coverage Exclusions

This decision from the Second District shows the potential for confusion when an insurance endorsement speaks to whether it limits coverage. The case involved a homeowner's insurance policy's business exclusion as affected by a home day care endorsement. The court found that the exclusion limited coverage and the endorsement limited the exclusion, all without ambiguity.

Nice win, Caryn.

...posted by ⊥ 8:22 AM ⊥ #

First District: Criminal Transcripts

As the First District explained in this decision, indigent defendants are entitled to transcripts of their criminal proceedings for appellate purposes -- even if the trial judge believes no error occurred.

...posted by ⊥ 8:20 AM ⊥ #

Thursday, April 21, 2005

Wine Out

The St. Pete Times today has this story about a proposed bill that would allow restaurant diners to bring open bottles of wine home without violating the state's open container laws.

...posted by ⊥ 8:38 AM ⊥ #

Smoke Act

Today's Tallahassee Democrat reports here on a proposed bill that would exempt theater actors from Florida's workplace smoking ban.

Makes sense.

...posted by ⊥ 8:32 AM ⊥ #

Fifth District: Rule 1.442 Proposals For Settlement

Here we have a very interesting case from the Fifth District regarding proposals for settlement.

The case involved an auto accident and a defendant's $12,500 proposal for settlement. The proposal conditioned acceptance on the execution of a release, and the proposal summarized the release's key language. The plaintiff did not accept the offer. When the plaintiff later obtained a judgment for only $6,423, the defendant sought fees pursuant to the rejected proposal. The trial court denied that motion, finding the release language ambiguous and not sufficiently particular.

The Fifth District affirmed, but the three-judge panel divided 2-1, with the two judges voting to affirm offering different rationales for doing so.

Judge Sharp authored the lead opinion and concluded that the release as summarized could potentially extinguish the plaintiff's first-party PIP and health insurance claims, making the release's legal effect unclear and rendering the proposal ambiguous.

Judge Griffin authored a special concurrence. She explained that a proposal should fail where it contains nonmonetary terms that go beyond what would inhere in a dismissal or release by operation of law upon settlement.

Disagreeing with the majority, and pointing out that the split in rationales left no precedential opinion from the court, Judge Pleus asserted that the proposal stated the required release language with sufficient particularity and that Rule 1.442 does not limit the scope of permissible nonmonetary conditions in the way Judge Griffin suggested.

Practitioners may wish to keep in mind the rationales that combined to defeat the proposal in this case.

Also, those in a position to change the governing rules may wish to keep in mind Judge Pleus's suggestion to make the offer of judgment system more effective by requiring offerees to make objections. He explained:

I believe virtually all plaintiffs who reject proposals for settlement do so because the monetary amount offered is unacceptable, not because the proposal is ambiguous or requires the plaintiff to execute a confidentiality agreement, indemnification agreement or release. These are just convenient arguments used by plaintiffs to invalidate proposals after they have gambled with a jury and lost. If the amount of money was agreeable, but the release terms were not, a plaintiff would surely contact the offeror so that the two sides could agree upon mutually acceptable release provisions.

A system whereby an offeree can silently reject a proposal for settlement and then later cry foul after the offeror has expended time and expense in obtaining a favorable judgment, undermines the efficacy of proposals for settlement. It allows plaintiffs to take questionable cases to trial with impunity that should be settled, knowing that they may avoid the proposal following an adverse outcome. The current rule places the burden on the offeror to make offers in good faith, but places no reciprocal burden on offerees to reject such offers in good faith. Requiring offerees to timely object to proposals with sufficient particularity would encourage offerors to accommodate such concerns by filing amended proposals or risk the denial of fees and costs. Such a system has the salutary effect of ensuring the proposal for settlement as a useful tool in facilitating settlements.

...posted by ⊥ 8:08 AM ⊥ #

Florida Supreme Court: Insurers' Bad Faith, Discovery of Claims Files

I'm in Miami today to help present a seminar my firm puts on annually for a large insurance client and its panel trial counsel, and now seems to be as good a time as any to mention this decision released earlier this month by the Florida Supreme Court. The court considered whether the diminished work product protection extended to insurers' files in the context of third-party bad faith cases should apply also in the case of first-party claims.

Relying heavily on the legislature's creation of a first-party bad faith cause of action, and receding from a 1989 decision, the high court held that the two types of bad faith claims should be treated the same for purposes of discovering the insurers' files.

...posted by ⊥ 7:07 AM ⊥ #

Hey, Legislature!

In this decision, the Fifth District encouraged the legislature to revisit the "financially devastating" requirement set forth in section 901.35 that counties pay for the medical care of persons held under arrest.

...posted by ⊥ 7:02 AM ⊥ #

Wednesday, April 20, 2005

Late Start

Whew. It's been a long week already. I had two oral arguments in the last few days. (I think it's safe to say one went better than the other, but I'll leave it at that.)

Looking around, I see we have a bunch of new cases out, that Celene Humphries hosted an awesome telephonic CLE yesterday on motion practice in the state appellate courts, and that my email responses on things as peculiar as the difference between sexual offenders and sexual predators can end up anywhere -- even a "Cool" place. Hmmph.

...posted by ⊥ 5:11 PM ⊥ #

Tuesday, April 19, 2005

Chief Judge Sawaya Joins Small Rock and Roll Club

Ok. That's almost funny. As best I can tell, though, Chief Judge Sawaya is only the fifth judge in Florida's history to refer to Sisyphus or, as the chief judge did at the very end of this opinion, a Sisyphean victory or effort.

I bet somewhere out there, perhaps at the outskirts of a college campus, you'll find a cleverly named bar called Sisyphus Rocks.

Or maybe a band.

Or maybe a prison...

...posted by ⊥ 8:10 AM ⊥ #

Third District: Teaching Trouble

For an example of why school boards may be troubled by the use of substitute teachers, check out this decision from the Third District.

The court affirmed a jury verdict against a school board. The plaintiffs were parents of a child who was sexually assaulted in a school bathroom during class. The parents claimed the board was negligent in not informing a substitute teacher that the child who committed the assault had a history of sexually aggressive behavior, not instructing the substitute teacher about the school's one-at-a-time bathroom pass policy, and not otherwise taking steps to prevent the aggressive child from visiting the bathroom with other children.

Both kids were in kindergarten.

...posted by ⊥ 8:06 AM ⊥ #

Third District: Certiorari

Can a writ of certiorari be used to compel testimony by deposition? Yes, as the Third District showed in this decision.

...posted by ⊥ 8:04 AM ⊥ #

Fourth District: Jury Selection

In a drug trafficking case, is the fact a prospective juror is from Jamaica, a country with known ties to drug trafficking, a race-neutral and ethnically neutral reason for striking that prospective juror?

No, said the Fourth District in this case. Referencing this recent Third District decision involving Haitian prospective jurors, the Fourth District explained:

[T]he juror’s country of origin should be viewed as a surrogate for impermissible racial or ethnic bias. A policy of striking all jurors who originate from a country inhabited by a distinct racial or ethnic group, without regard to the particular circumstances of the trial or the individual responses of the jurors, is inherently discriminatory. As the defense counsel pointed out, the prosecutor made no attempts to question Juror Anderson about her familiarity and experiences, if any, with drug trafficking in Jamaica. Rather, the prosecutor’s challenge rested on stereotypical assumptions about Jamaicans. Striking all Jamaicans from criminal drug trials on the assumption they will be tolerant of drug offenses is akin to striking Haitian jurors on the assumption that they will be biased in favor of a Haitian defendant or Creole-speaking witnesses. This is precisely the type of impermissible stereotyping condemned by the Equal Protection Clause.

Trial attorneys, you've been warned.

...posted by ⊥ 8:00 AM ⊥ #

Third District: Partial Closures

For an interesting case on when a courtroom may be partially closed, allowing would-be attendees to view the proceedings by a live closed-circuit television link, check out this decision from the Third District.

...posted by ⊥ 8:00 AM ⊥ #

Monday, April 18, 2005

Eleventh Circuit: "Unpublished" Opinions Now Published

The Eleventh Circuit's internet site now contains links to the court's daily published and unpublished opinions.

Yep, unpublished opinions.

Remember, though, under IOP-6 to Local Rule 36-1:

Opinions that the panel believes to have no precedential value are not published. . . . Although unpublished opinions may be cited as persuasive authority, they are not considered binding precedent. Reliance on unpublished opinions is not favored by the court.

In any event, research for cases in the Eleventh just got more difficult.

...posted by ⊥ 1:56 PM ⊥ #

Florida Supreme Court: Negligence And The Impact Rule

Here's an interesting situation. The defendant wrote a "to whom it may concern" letter about the plaintiff, accusing him of abusing his children. The letter was then used by the children's mother to obtain an injunction against the plaintiff without notice to him. The injunction was ultimately rescinded, and the plaintiff sued the counselor's employer. The employer argued that the negligence claim should be dismissed because the plaintiff failed to comply with the pre-suit notice requirements applicable to medical malpractice claims and because the claim fails under Florida's impact rule. The trial court granted the motion to dismiss.

The First District reversed, holding that the plaintiff stated a claim in negligence to which the medical malpractice pre-suit notice requirements were not applicable. The court also held that the impact rule did not bar the plaintiff's claim, but in this regard the court certified the following to the Florida Supreme Court as a question of great public importance:

DOES FLORIDA'S IMPACT RULE PRECLUDE THE RECOVERY OF DAMAGES FOR EMOTIONAL INJURIES IN A NEGLIGENCE CASE ALLEGING THAT THE DEFENDANT’S ACTIONS WRONGFULLY CAUSED THE PLAINTIFF TO LOSE CUSTODY OF HIS CHILDREN AND ALL OTHER PARENTAL RIGHTS FOR A SIGNIFICANT PERIOD?

You can read the First District's decision here.

Last week, the Florida Supreme Court addressed the certified question but declined to answer it. In this decision, the court found it problematic that the impact rule had been at issue in this case while the threshold issue of whether a cause of action even exists had not. The high court thus quashed the district court's decision and remanded the matter for further proceedings on whether the plaintiff pled a viable cause of action.

Perhaps the impact rule is better thought of as a shorthand way of expressing the result reached where certain negligence claims do not state causes of action. Relying on the "rule" as a rule, rather than a result, can take the focus off the underlying principles -- which can be okay, as long as the "rule" need not be applied to new situations that call for application of those principles.

Premises liability provides a related example: while we have not coined a catchy name for the rules we apply in various premises liability contexts -- you know, all those invitee/licensee/trespasser/known, unknown, obvious danger rules -- those rules are really the product of decisions holding that, as a matter of law, certain premises-related conduct resulting in bodily injury or property damage is not or may be unreasonable for negligence purposes. Each rule was created not by applying the previously existing rules but by referring back to the underlying negligence principles.

In this case, our high court seems to have been troubled by the absence of a fundamental analysis on the basic elements of negligence -- particularly, I'd wager, the issue of duty. Our legal tradition has long recognized a duty on each of us not to harm another's body or another's property. Note that the claim in this case is for harming the plaintiff's emotions and his relationship with his children, not his body or his property. Whether the law protects the interests the plaintiff seeks to enforce in a manner that can provide remedies through a negligence action is the real threshold issue regarding this claim, and I suspect that's exactly what the supreme court wants the parties and the lower courts to address.

...posted by ⊥ 9:29 AM ⊥ #

Second District: Prejudgment Interest

When does a tender of monies owed not stop the accrual of prejudgment interest? When the tender is not absolute and unconditional, explained the Second District in this case.

...posted by ⊥ 9:26 AM ⊥ #

First District: Blakely

With this decision, the First District adds its voice to the chorus singing that Blakely v. Washington cannot be applied retroactively in collateral proceedings.

At the same time, Blakely would seem to support the very notion of bringing these retroactivity challenges now. You never know...

...posted by ⊥ 9:06 AM ⊥ #

Second District: A Better Way

The Second District's order in this case explains that the court granted rehearing in part, withdrew its prior opinion, and issued the attached opinion in the former one's place. The order is noteworthy, and commendable, because it then sets out what portions of the prior opinion have been changed.

What a great practice it would be if all orders substituting opinions identified at least what discussions in the original opinion were modified.

By the way, my pithy post on the Second District's original decision is available here.

...posted by ⊥ 9:04 AM ⊥ #

Questions, questions

In this decision, the Second District certified the following to the Florida Supreme Court as a question of great public importance:

ARE ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ABOUT THE SENTENCE ENHANCING CONSEQUENCES OF A DEFENDANT'S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM?

The court certified the same question in a 2002 case, before I started this web log.

...posted by ⊥ 9:03 AM ⊥ #

Time Issues

The First District's decision in this case simply says, "The petition seeking belated appeal is denied as time barred," followed by a citation.

Now, there's late and then there's late.

...posted by ⊥ 9:01 AM ⊥ #

First District: Attorney's Rate and Hours Not Protected

In a case that could get rather interesting down the road, the First District rejected a petition asking that a writ of certiorari be directed to an order requiring disclosure of opposing counsel's hourly rate and the hours expended in defending a claim. The case concerns a constitutional challenge to a cap on fee awards in certain workers' compensation proceedings. You can read the First District's decision here.

...posted by ⊥ 9:00 AM ⊥ #

Friday, April 15, 2005

Friday Florida Law Trivia Answer

What does milk have to be separated from in the dairy aisle at your local grocery store?

Fake milk, or as this statute puts it, imitation and substitute milk products.

The statute actually requires that milk be separated from the non-milks by a partition or divider in the display case.

I worked the dairy aisle at my local Publix for two years back in high school, and I just thought those plastic partitions were randomly placed. Who knew?

(I'm guessing the dairy lobby knew...)

Have a great weekend.

...posted by ⊥ 4:48 PM ⊥ #

Friday Florida Law Trivia!

Happy Friday, everyone. This week's installment of Friday Florida Law Trivia is definitely taking a turn away from the serious.

What must milk be kept separate from in the dairy aisle at your local grocery store?

I'll post the answer around 4:45 pm (EDT) today.

...posted by ⊥ 9:18 AM ⊥ #

Amendments Brewing

Today's Palm Beach Post has this interesting story on constitutional amendment proposals we're likely to see on Florida's 2006 statewide ballot. One of these days I'll wade into some of these waters....

...posted by ⊥ 9:15 AM ⊥ #

Thursday, April 14, 2005

Schiavo Numbers

This story from today's St. Pete Times has some interesting data on the public's reaction to both the media's coverage of the Schiavo saga and politicians' intervention in the matter.

The most interesting part of the story to me is that 81 percent of those surveyed reported they have made their end-of-life wishes clear to their families.

Nineteen percent to go.

...posted by ⊥ 8:30 AM ⊥ #

Second District: Distractions Noted

Have you ever had a case involving a great number of facts that you need to convey to avoid confusion but which really shouldn't matter to the ultimate result? Well, this decision from the Second District may offer a formatting device for dealing with that situation. The case's facts were a bit complicated -– so much so that the court opened the opinion with the observation that the facts "recite like the worst nightmare of a law student preparing for a final exam in trusts and estates."

The court began its fact discussion with a seven-page section aptly titled "The Facts." Then the court discussed nearly four pages of additional facts in a second section called "The Distractions."

I love it. And I intend to use it. It's sort of like drafting a summary judgment motion that presents "The Undisputed Material Facts" in one section and "The Disputed But Immaterial Facts My Opponent Will Surely Talk About" in another. Hah.

By the way, great win, Bob.

...posted by ⊥ 8:23 AM ⊥ #

Florida Supreme Court: Duty and Intervening Causes

Those interested in the common law concepts of duty and intervening causes may wish to check out the Florida Supreme Court's decision in this case. The case involved a power company that disconnected power to a traffic light while doing repair work, motorists who failed to treat a nonfunctioning traffic light as an all-way stop, and a fatal car accident.

...posted by ⊥ 8:20 AM ⊥ #

New Problem, New Appellate Route

This statute enacted last year prohibits trial courts from withholding adjudications of guilt in certain cases. As of last week, this new amendment to the Rules of Appellate Procedure permits the state to appeal a violation of the new statute.

...posted by ⊥ 8:18 AM ⊥ #

Wednesday, April 13, 2005

Eleventh Circuit: Felon Disenfranchisement Upheld

Yesterday, an en banc panel of the Eleventh Circuit upheld Florida's law that bans felons from voting unless their civil rights are restored. The challenge was based on equal protection principles and the federal Voting Rights Act.

Addressing the equal protection argument, the court held that the disenfranchisement law predates the ability of African Americans to vote and thus cannot have been originally created for racially discriminatory purposes. In a historically fascinating discussion, the court considered -- but rejected -- an argument that the re-adoptions of the ban in the 1868 state constitution and again in the 1968 version were racially motivated. The court then applied the general equal protection analysis and concluded that no equal protection violation existed.

In another very interesting discussion, the court rejected an argument that the ban violates the Voting Rights Act. The court concluded that Congress did not intend the Voting Rights Act to cover a state's decision to disenfranchise felons.

Ultimately, the court expressed that the wisdom of felon disenfranchisement statutes is a matter for the consideration of state legislators, not federal courts.

Judge Wilson dissented. He agreed that no equal protection violation existed but would have held the ban to violate the Voting Rights Act.

Judge Barkett also dissented. She would have held the ban invalid under both an equal protection analysis and the Voting Rights Act challenge.

You can read the en banc court's decision here.

...posted by ⊥ 7:44 AM ⊥ #

Florida Supreme Court: Governmental Duties of Care

If you enjoy delving through the planning/operational decision dichotomy in route to determining whether government units owe citizens duties of care -- and who doesn't? -- then this is a case for you. The Florida Supreme Court divided 4-3 in holding that the City of Miami Beach owed a duty of care to warn beachgoers of rip currents at a Miami Beach location.

The dispute between the majority and dissenting positions appears to surround the basics of the planning/operational decision analysis. That analysis asks if the decision at issue is a planning-level decision, such as whether to operate a particular beach as a swimming facility at all, or an operational decision, such as how a planned swimming facility is in practice going to be operated. Decisions at the planning level involve no duty of care, while decisions at the operational level involve duties of care.

In the case, the city had affirmatively decided not to operate the particular beach at issue as a swimming facility. The city did, however, permit the beach to be utilized for various other activities, including sunbathing and watersports, and did not expressly prohibit swimming or disclaim responsibility for swimmers. In essence, the majority found that the city's activities constituted an implicit planning decision to permit swimming, albeit one contrary to the city's expressed planning decision. The dissent was troubled by that analysis, to say the least.

...posted by ⊥ 7:42 AM ⊥ #

Florida Supreme Court: PIP Constitutional Challenges

Here we have a case that constitutional law fans should enjoy. The case concerns a provision in Florida's PIP scheme that requires health care providers to send PIP-related bills to insurance companies within 30 days of the service dates or else forfeit the ability to recover the monies owed. The statute was challenged on equal protection, due process, and access to courts grounds. The Florida Supreme Court rejected all three challenges, applying the rational basis test for each.

Chief Justice Pariente authored a concurrence in which she suggested the statute may be unconstitutional in particular applications, such as where a provider is unable to mail a bill timely through the fault only of others.

The real interesting part begins with the dissent by Justice Lewis. He briefly contended that the statutes failed to satisfy the rational basis test, but he focused his dissent on how he believed the statute impacted fundamental rights -- rights to property and access to courts -- and should have triggered strict scrutiny. Justice Lewis's conclusions about the strict scrutiny result are probably indisputable, but what is clearly at issue here is whether that standard is applicable to the 30-day requirement in the first place. An interesting issue.

Justice Quince offered a separate dissent in which she seemed to apply only rational basis scrutiny to the 30-day requirement but still found the statute unsupportable under both equal protection and access to courts principles.

...posted by ⊥ 7:39 AM ⊥ #

Tuesday, April 12, 2005

Abstract Mention

Some of you may have noticed that this story in today's Tallahassee Democrat mentions this web log and quotes me. It's an interesting story about how living wills are very helpful but do not preclude all litigation over a person's end-of-life wishes.

The story also contains a brief quote from a rather extensive April 1 post I authored regarding living wills. At the moment, that post hasn't yet fallen off the bottom of this page, so if you'd like to read that discussion on living wills, you can scroll down to April 1's posts and find it. Or you can jump directly to that post by clicking here.

...posted by ⊥ 8:08 AM ⊥ #

Florida Supreme Court: Jurisdiction

Appellate attorneys may wish to review the Florida Supreme Court's brief decision in this case. The decision discussed in detail how the court lacks jurisdiction to review district court decisions that contain no citation or statement establishing a point of law, while the court has jurisdiction to consider review of cases citing or stating points of law.

...posted by ⊥ 7:55 AM ⊥ #

Florida Supreme Court: Cruel Punishment, Unusual Punishment

One of these days I'll take a few minutes to recount history surrounding the "cruel and unusual punishment" prohibition currently found in Article I, section 17 of the Florida Constitution. It's an interesting tale. For now, I'll just note that the Florida Supreme Court had occasion to interpret the provision's "cruel or unusual" predecessor in this case involving a life sentence without possibility of parole for the sexual battery of a child under 12 years of age. The court found nothing cruel, or unusual, about the sentence.

Also noteworthy about the case is Chief Justice Pariente's suggestion that twelve-person juries might be more appropriate than six-person juries in capital sexual battery cases. She encouraged the matter to be studied.

...posted by ⊥ 7:54 AM ⊥ #

Florida Supreme Court: Assignment of Malpractice Claims

With the Florida Supreme Court's decision in this case, we now know that a limited number of malpractice claims against lawyers are assignable, namely claims involving the preparation of private placement memoranda.

Appellate fans may also note that the court took the case based on conflict between a district court decision and dicta from an earlier high court decision. The district court rejected the dicta, giving rise to review, and the supreme court approved that decision.

...posted by ⊥ 7:52 AM ⊥ #

Florida Supreme Court: No Contest Pleas

Where a defendant pleads nolo contendere to an offense and adjudication is withheld, can that plea later be used as a prior conviction when calculating the defendant's sentence for a subsequent offense? Resolving a split in the districts, the Florida Supreme Court answered that question in the affirmative in this case.

...posted by ⊥ 7:49 AM ⊥ #

Still Catching Up...

Yesterday I made some good progress in getting caught up on recent cases in the wake of the much-consuming Schiavo saga. (I'm still not caught up on answering email, though. Almost.) This morning I'll add a few posts on recent supreme court decisions, but I have a way to go in getting those cases covered, and there a number of noteworthy federal circuit court decisions to discuss, too. Hopefully I'll be caught up within a day or two.

...posted by