Abstract Appeal -- by Matt Conigliaro

Tuesday, May 31, 2005

Privacy and Court Records

Jon Mills, chair of the Florida Supreme Court's Committee on Privacy and Court Records, has this column in today's St. Pete Times regarding the committee's recommendations. You can read the committee's draft report here, and while comments are technically due by June 3, the column states the committee will continue to accept comments through finalization of its report.

...posted by ⊥ 9:12 AM ⊥ #

Florida Supreme Court: Death Penalty

The United States Supreme Court's decision in Ring v. Arizona held that sentencing judges may not impose the death penalty based on the presence of necessary aggravating factors where a jury has not found those factors present.

On Thursday, in this case, the Florida Supreme Court held that Ring does not invalidate Florida's system of permitting a trial judge to override a jury's recommendation that the defendant in a capital case receive life imprisonment, not death.

...posted by ⊥ 4:44 AM ⊥ #

Florida Supreme Court: Custody

In this case, the Florida Supreme Court resolved a district conflict over whether changes from a rotating custody agreement should be governed by the factors of section 61.13(3) or the substantial change in circumstances test.

Unless the earlier judgment provided a different standard would be used, the correct standard is the substantial change in circumstances test. The high court clarified that the substantial change in circumstances test does not involve finding that existing circumstances present a detriment to the child.

...posted by ⊥ 4:41 AM ⊥ #

Questions, questions: Juvenile Costs

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

DOES A TRIAL JUDGE HAVE THE POWER AND AUTHORITY TO IMPOSE ON JUVENILES IN A JUVENILE DELINQUENCY PROCEEDING, THE MANDATORY SURCHARGES SET FORTH IN SECTIONS 938.08 AND 930.085?

The Fifth District answered the question in the affirmative, based on prior district precedent.

Interestingly, one judge on the panel authored a special concurrence that disagreed with (but recognized the binding nature of) the court's precedent, and another judge concurred in that special concurrence. I suppose that second vote elevates the special concurrence to a second opinion of the court that disagrees, in dicta, with the result reached in the court's primary opinion. Or something like that.

...posted by ⊥ 4:37 AM ⊥ #

Fifth District: Attorney's Fees

In the classic fee-shifting context of this insurance case, the Fifth District reminds us that attorney's fees awards are not appropriate on appeal where the appeal concerns only the amount of, not entitlement to, the contested fees.

...posted by ⊥ 4:34 AM ⊥ #

Fifth District: Administrative Appeals

Hey, admin fans. Can you argue on appeal that an agency erred in not giving you a formal hearing, even if you did not request one? Well, apparently yes. Footnote 3 of this decision from the Fifth District treats the issue as a matter of waiver that must be proved by the agency, not a matter of preservation.

...posted by ⊥ 4:33 AM ⊥ #

Second District: Parental Rights

Those interested in parental rights may wish to check out this decision from the Second District. The court examined the rights of legal, not biological, fathers in the context of termination proceedings pending adoption. It's reassuring when the correct legal result is also the fairest one.

...posted by ⊥ 4:30 AM ⊥ #

Saturday, May 28, 2005

Hit Records

Shortly after starting this web log, I began using Sitemeter to count visitors. Sitemeter is free, and it's very handy. The "visitors" it counts are persons who have not visited in the last 30 minutes -- so clicking numerous links or numerous pages on the site counts as only a single visit unless you're gone for more than 30 minutes between page views. I suppose that's handy for advertising purposes, and it keeps folks from hitting "refresh" and inflating a true hit counter.

Sitemeter tracks hits, too, but the counter does not display that number. I can see it when I check the blogs statistics, and lately I've watched the hit counter creep closer to -- who would believe? -- 1,000,000.

One million is an awful lot of hits. I know an extraordinary portion of that figure is from persons seeking information on the Schiavo case, but I also know -- and greatly appreciate -- that a number of folks from all walks of life have taken to visiting this site on a regular basis. I can't express my gratitude enough.

To share the approach of hit no. 1,000,000, I've added a hit counter display, courtesy of StatCounter. I've also moved both counters up from the bottom of the right column to near the top of that column.

Enjoy both counters, and thanks for visiting. It makes all this worth it.

...posted by ⊥ 8:42 PM ⊥ #

Friday, May 27, 2005

Friday Florida Law Trivia Answer

The simple answer is no. Wearing a mask is, alone, not unlawful. However, that doesn't mean people wearing masks are not breaking the law.

You see, this statute prohibits persons over 16 from wearing masks on public ways, this statute prohibits wearing masks on public property, and this statute prohibits wearing masks on private property.

All of these statutes only apply, though, if the person also satisfies one of the conditions set forth in this statute (e.g., the person intends to intimidate, threaten, harass, or deprive another of legal rights or protection) and the person does not qualify as an exempted person under this statute (e.g., the person is wearing a traditional holiday costume, is wearing a mask for work purposes, or is in a theatrical performance, including the Gasparilla celebrations).

So, can you wear a Darth Vader mask to go see Revenge of the Sith? As long as you don't intend to intimidate anyone or deprive them of their rights, but then you wouldn't be very Darth Vader-like, would you?

...posted by ⊥ 4:49 PM ⊥ #

Friday Florida Law Trivia!

Yesterday, I spotted this story about a West Virginia man arrested for wearing a Grinch mask as he walked along a city street. That led me to this week's Friday Florida Law Trivia question:

Is it unlawful in Florida to wear a mask in public?

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

...posted by ⊥ 8:31 AM ⊥ #

Justice Dekle

The Tampa Tribune has this story on the recent death of former Florida Supreme Court Justice Hal Dekle. He was 87.

...posted by ⊥ 8:24 AM ⊥ #

Budget Matters

The budget is in, and out, of the Governor's office. Today's St. Pete Times looks into the Governor's budget vetoes with an eye on Tampa Bay, while the Sun-Sentinel does the same from a South Florida perspective.

...posted by ⊥ 8:22 AM ⊥ #

Fourth District: Double Jeopardy

Say someone is carrying an illegal drug in multiple packages. Can the defendant be convicted of multiple counts of possession? Not without violating double jeopardy principles, said the Fourth District in this case.

...posted by ⊥ 8:21 AM ⊥ #

Fourth District: Complete Rulings Wanted

In this decision, the Fourth District had the following directive for trial courts presented with multiple post-trial motions:

[W]e exhort trial courts to rule on all post trial motions in their entirety and to address in full each part of every motion. This is necessary to avoid piecemeal review. While a trial court might be convinced that a JNOV is required on a particular claim, as in this case, the judge should nevertheless address any companion motion for a new trial--even one on the same claim. Addressing and deciding all aspects of these motions is necessary to facilitate plenary review on appeal.

...posted by ⊥ 8:19 AM ⊥ #

Fourth District: Parental Rights

Parental rights can be terminated for various reasons, including a parent's failure to comply with a case plan. This case, though, shows some of the limits on state's ability to terminate on that basis and on the state's ability to terminate for other reasons. The Fourth District reversed a termination order.

...posted by ⊥ 8:16 AM ⊥ #

Fourth District: Foreclosure, Subject Matter Jurisdiction

Real property fans may wish to check out this case, in which the Fourth District first examined the traditional rule that a superior lien holder cannot be compelled to be a party to a foreclosure suit by a junior lienholder. The decision concludes with a discussion of subject matter jurisdiction and how a party's failure to file a proper pleading can preclude a trial court from having subject matter jurisdiction over an issue.

...posted by ⊥ 8:14 AM ⊥ #

Fourth District: Res Judicata

For an interesting look at res judicata and collateral estoppel, check out this decision from the Fourth District.

...posted by ⊥ 8:10 AM ⊥ #

Thursday, May 26, 2005

Father Figures

Today's Sun-Sentinel has a very interesting story here about the case of Jerrod Miller.

Jerrod was 16 when he was shot and killed three months ago by Delray Beach police. The case has taken on high racial overtones. Jerrod's mother is deceased, but his father is not. Kenneth Miller has hired high-profile attorney Willie Gary to sue Delray Beach for Jerrod's wrongful death, but there's suddenly a problem. Another man has come forward and claimed to be Jerrod's biological father. Terry Glover. Just in time, right?

In case you're thinking, "there ought to be a law" -- there is a law that could apply here. It's this one, which defines who qualifies as a "survivor" for purposes of recovering money under Florida's Wrongful Death Act. A father whose child was born out of wedlock may not recover unless the father "has recognized a responsibility for the child's support." From the story, it is not clear whether Terry Glover meets this test. If he does, the city may have an argument that it is liable to neither Kenneth Miller (if he's not Jerrod's father) nor Terry Glover (if he never attempted to fulfill his responsibilities for the child's support).

This is one to watch.

...posted by ⊥ 7:38 AM ⊥ #

Third District: The Old College Suit

Here is a case with an interesting story.

Miami-Dade Community College has a two-year medical assistant degree program. When the class entering in the Fall of 1999 originally applied, the total costs for the two-year program were estimated to be $5,032.50. In May 1999, the college notified the incoming students that the tuition would be increased but should be under $6,000 for the two-year program, and the college required the students to acknowledge in writing their understanding of the pending increase. In July 1999, the school notified the incoming students that the total cost for the program would be $18,543.10. Thirty-one students decided to attend the program, paid the tuition for both years, and graduated with medical assistant degrees in 2001. Oh, and in 2001, they all sued the school for fraud and breach of contract. (I'm betting they waited until their final grades were in.)

The Third District unanimously affirmed a summary judgment in the school's favor on the fraud claim, based on a lack of evidence. A majority also affirmed a summary judgment in the school's favor on the students' breach of contract and promissory estoppel theories, holding no definite promise of tuition had been made, and even if an agreement existed with an implied term of reasonable costs, there was no dispute that the $18,543 package was the most economical in the state.

Judge Shepard dissented on grounds the students had accepted a contract when they signed the acknowledgment of the pending increase. He asserted that issues of fact existed as to whether the students had agreed to costs between $5,000 and $6,000 or costs that could increase without limits, and as to whether the ultimate charges were reasonable.

...posted by ⊥ 7:31 AM ⊥ #

Third District: Abatement

The general rule is pretty simple: if an action is pending in a court of competent jurisdiction, a subsequently filed action between the parties should be abated. But what if the first case is filed in, say, Italy, and the second case is filed in Florida? The rule applies, as the Third District held in this case.

...posted by ⊥ 7:26 AM ⊥ #

Second District: The Standard of Review Has No Clothes

I'm not sure that fits here, but maybe.

Case law has long applied the abuse of discretion standard to review a ruling on a new trial motion and required a "greater showing" to reverse a decision granting the motion than to reverse a decision denying the motion. In this case, the Second District pointed out the lack of clarity surrounding what a "greater showing" means and that, where a new trial issue is based on an error of law rather than the weight or impact of evidence, the abuse of discretion standard is applied in a "restricted manner." The court noted that the restricted application looks a lot like de novo review.

As you might imagine, that standard of review discussion became a prelude to a reversal of an order granting a new trial. The trial court had granted a new trial based on the court's failure to instruct the jury on concurring causes. The appellate court reversed. The evidence in the case pointed to only one cause of injury, and the jury's role was not to decide among competing causes but to decide if the single causal event took place on the defendant's watch.

...posted by ⊥ 7:24 AM ⊥ #

Third District: Paying For Competency Exams

In a criminal case involving an indigent, where an expert is appointed "for" a party that does not request an expert, must the party -- either the state attorney's office or the public defender's office -- pay for the expert, or is the expert an expense of the trial court?

In the consolidated cases resolved here, the Third District held that competency experts not requested by either party are neutral experts working for the court and are to be paid by the court system. The case contains an interesting separation of powers discussion.

...posted by ⊥ 7:22 AM ⊥ #

Third District: Preemption

For an in-depth look at why a Florida statute that prohibits making false statements in connection with Medicaid is not preempted by federal law, check out this decision from the Third District.

...posted by ⊥ 7:19 AM ⊥ #

Third District: Insured v. Insured Exclusion

Insurance fans with an interest in the common "insured v. insured" exclusion in directors and officers liability policies will want to check out this decision released yesterday by the Third District. That exclusion precludes coverage where an insured is sued by, on behalf of, or at the direction of another insured.

The case involved a bankruptcy trustee who brought a claim against a former officer and director of the company. The insurer denied coverage based on an insured v. insured exclusion in the company's directors and officers insurance policy. The policy defined the insureds as the company and its directors and officers. Here, the defendant was clearly an insured, and the issue was whether the trustee was an insured, too.

The district court held the exclusion inapplicable to the trustee's suit. But wait. Why? In the case, the trustee had asked the company to list him as an insured in the directors and officers policy, which the company did, and the only argument addressed by the district court was the insurer's argument the trustee qualified as an insured because of that listing. The district court rejected that argument, holding the trustee sued in his capacity as trustee, not as an officer or director.

That strikes me as odd, not for what it says but what it does not say. I have seen similar cases (mostly from other jurisdictions) where the trustee had not been listed as an insured. In those cases, the insurer argued that, by law, the trustee steps into the shoes of the company and sues only under that authority, and thus when the trustee sues a director, an insured is being sued by, on behalf of, or at the direction of, another insured. I don't know if that argument was not made here or whether it was made but not addressed. Hmmm.

...posted by ⊥ 7:17 AM ⊥ #

Second District: Nursing Home Discovery, Lack of a Transcript, Work Product

This decision from the Second District presents three interesting discussions.

First, the court delved into the protections from discovery and evidentiary use given to quality-of-care monitoring done in nursing homes.

Second, the court determined that the lack of a transcript from a hearing on a motion to compel the production of evidence was not fatal to the petitioner's certiorari petition. It was undisputed that no evidence was offered at the hearing. (Before anyone goes running to use this holding the next time a transcript is unavailable, consider how this point relates to the next one.)

Third, the nonevidentiary nature of the hearing was enough to conclude the respondent had not met its burden to discover materials subject to the classic work product standards of need and undue hardship. Work product protection cannot be overcome based on mere argument by counsel.

...posted by ⊥ 7:13 AM ⊥ #

By The Court?

There's an oops here. Hopefully the court spots it.

...posted by ⊥ 7:11 AM ⊥ #

Wednesday, May 25, 2005

Slots In The Courts

The story is really pretty simple:

- in November 2004, Florida voters approved this constitutional amendment, which authorized Miami-Dade and Broward Counties to vote on whether they would allow slot machines at their pari-mutual facilities (dog racing, horse racing, and jai-alai)

- the amendment also included a directive for the legislature:

In the next regular Legislative session occurring after voter approval of this constitutional amendment, the Legislature shall adopt legislation implementing this section and having an effective date no later than July 1 of the year following voter approval of this amendment. Such legislation shall authorize agency rules for implementation, and may include provisions for the licensure and regulation of slot machines. The Legislature may tax slot machine revenues, and any such taxes must supplement public education funding statewide.

- in March, voters in Broward County approved the use of slots at parimutuel facilities

- earlier this month (May), the "next regular Legislative session occurring after voter approval" ended without legislation implementing the amendment

- July 1 approaches...

The question seems to be whether the legislation called for by the amendment is legislation to authorize and regulate slots or legislation merely to regulate. If the constitution authorizes slots but the legislature chooses not to regulate them, can the pari-mutuels go ahead and operate? Then again, if the amendment did not authorize slots, isn't implementing legislation required before slots may lawfully be used?

I suppose we will start getting answers to these questions and more. Yesterday, the pari-mutuels in Broward County filed a suit seeking a declaration that they have the right to operate slot machines. One day earlier, gambling opponents filed a suit seeking the opposite declaration. You can read about the legal battle in today's Sun-Sentinel and St. Pete Times.

The cases present an interesting venue question. The gambling opponents filed their suit in Leon County (Tallahassee), while the pari-mutuels filed suit in Broward County. Will both go forward at the same time, or will one be dismissed or abated? If anyone has access to the documents in these cases, I'd appreciate it if you could forward them.

...posted by ⊥ 7:01 AM ⊥ #

Blogaround

More and more blogs continue to enter the Blogosphere, just as fewer and fewer people react strangely when they hear the term Blogosphere.

I've done another round of edits to the blogroll in the right column. Among the most notable additions are a new Florida blog on probate litigation, aptly titled Florida Probate Litigation, and the newest Florida blog I could spot, The Orange Grove.

Oh, and for my family up in Connecticut who've been looking for a blog covering Connecticut law, there's Connecticut Law Blog, a good one.

If anyone has any suggestions on other blogs to add, let me know.

...posted by ⊥ 6:24 AM ⊥ #

Tuesday, May 24, 2005

Catchers

The AP today has this really interesting story about a Longwood company that identifies plaintiffs or insurance claimants who fake their claimed injuries.

...posted by ⊥ 1:37 PM ⊥ #

More Schiavo News

Corporate Counsel has this piece spotlighting the role of hospitals' in-house counsel in end-of-care decisions and the impact of the Schiavo case.

...posted by ⊥ 9:08 AM ⊥ #

Judge Pryor

Yesterday's compromise in the U.S. Senate looks like it will allow Judge William Pryor a confirmation vote on his appointment to the Eleventh Circuit. For more, check out this story from Law.com.

...posted by ⊥ 8:59 AM ⊥ #

Schiavo News

Today's Palm Beach Post has this story on some of some email exchanged by government officials during the most recent chapters of the Schiavo saga.

...posted by ⊥ 7:39 AM ⊥ #

Tax Break

About to purchase hurricane supplies? Wait! There's a tax holiday on the horizon, as today's Sun-Sentinel discusses in this story.

...posted by ⊥ 7:38 AM ⊥ #

Al-Arian Stays For Trial

Judge Moody ruled yesterday that extensive media coverage of the Sami Al-Arian prosecution did not provide grounds to change the trial's Tampa venue. Read about it in this story in today's Tampa Tribune.

...posted by ⊥ 7:37 AM ⊥ #

First District: Copying Charges for Prisoners

Imagine the buzz in the prison system right now. Yesterday, in this case, the First District invalidated the administrative rule under which the Department of Corrections charges prisoners for photocopying services on grounds the rule lacks legislative authorization. A statute permits DOC to collect monetary assessments, but that authorization does not permit DOC to make assessments, the court said. DOC has had a rule on photocopying charges since 1983.

The court did not rule on the appropriate relief, remanding the matter to the circuit court. That'll be interesting.

...posted by ⊥ 7:33 AM ⊥ #

First District: NICA

Does an administrative law judge have the authority to determine if a person involved in a birth has immunity under the Florida Birth-Related Neurological Injury Compensation Act? No, said the First District in this decision involving a midwife.

...posted by ⊥ 7:28 AM ⊥ #

First District: Procedural Bars

No doubt there are times when a prisoner's repetition of unsuccessful claims seems abusive, but then there are cases like this one from the First District that must give oft-rebuked prisoners hope to try again.

...posted by ⊥ 7:25 AM ⊥ #

Monday, May 23, 2005

Liquor Lessons

I sure learn a lot from keeping this blog.

For instance, if you saw last Friday's trivia question and answer, you saw my musing about what might be just below the 153-proof cutoff for distilled spirits. I really didn't know, but Gerald Taylor of Wesley Chapel wrote in to suggest the saved spirits might be 151-proof rums. I surfed the 'Net for a few 151-proof products, and certain drinks I've had now make a whole lot more sense...

...posted by ⊥ 5:11 PM ⊥ #

Buckle Bucks

The "Click It Or Ticket" campaign is now underway, and since the failure to wear a seat belt is not an offense for which Florida law enforcement can stop a vehicle, officers will be looking for other ways to pull over cars with unbuckled occupants. That should make the total ticket quite painful, no doubt.

Check out this story in today's Sun-Sentinel for more on the campaign, including a discussion of the (as yet unsigned) bill passed this session to permit officers to pull over unbuckled minors.

...posted by ⊥ 7:17 AM ⊥ #

William Dedge

I've not previously posted about the plight of William Dedge, a man who spent 22 years in Florida prison system for a rape he didn't commit, and for whom the legislature did nothing this past session despite impassioned and well founded pleas from no less a source than Sandy D'Alemberte. The Sun-Sentinel has an update on D'Alemberte's litigation plans for Dedge here

...posted by ⊥ 7:15 AM ⊥ #

Right Push Vetoed

In case you missed the reports from the end of last week, this past Thursday Governor Bush vetoed this bill to create the "Road Rage Reduction Act," which would have required drivers generally to drive in the right lane of multi-lane roads.

...posted by ⊥ 7:12 AM ⊥ #

Fourth District: Flight Home

When you begin to read the facts of this decision, you might think it strange that the defendant fled the police after being pulled over and led them on a high speed vehicle chase to -- his driveway, where he was arrested.

Then you'll learn he knew when he was stopped that he was going to be arrested, and he was just trying to keep his car from getting impounded. I suppose that explains it.

...posted by ⊥ 7:11 AM ⊥ #

Fourth District: Appellate Jurisdiction

Appellate specialists should know this one: can a county court certify a question of great public importance to a district court any time the county court's order would be appealable to the circuit court? No, as shown by this decision from the Fourth District.

...posted by ⊥ 7:08 AM ⊥ #

Fourth District: Costs And Proposals For Settlement

Should costs be apportioned between joint tortfeasors in accordance with their percentages of fault for purposes of determining whether a proposal for settlement triggers a right to attorney's fees? No, said the Fourth District in this case.

...posted by ⊥ 7:05 AM ⊥ #

Fourth District: Duty To Defend

The written difference between "at its sole option" and "as its sole option" is just a single letter, but in this case that distinction may have controlled whether the insurer's policy obligated the insurer to defend its insured.

...posted by ⊥ 7:02 AM ⊥ #

Fourth District: Reviving Prior Wills

How often is there a reported case involving the probate doctrine of dependent relative revocation? Not often, but here is a case from the Fourth District that found the doctrine inapplicable. Under certain conditions, it allows a prior will to be revived when a more recent will that revoked the prior one is invalid.

...posted by ⊥ 7:00 AM ⊥ #

Fourth District: Contempt Precision

This decision from the Fourth District demonstrates courts' reluctance to permit contempt orders in family law cases to be based on obligations that are not clearly spelled out in prior orders.

...posted by ⊥ 6:59 AM ⊥ #

Friday, May 20, 2005

Friday Florida Law Trivia Answer

The answer is 153 proof, or 76.5% alcohol, as set forth in this statute.

Now what weighs in at 152 proof that someone wanted to keep legal? Hmmph.

Anyway, thanks for stopping by, and have a great weekend.

...posted by ⊥ 4:41 PM ⊥ #

Friday Florida Law Trivia!

In honor of wine lovers' victory this week in the U.S. Supreme Court, today's Friday Florida Law Trivia has an alcoholic component. Literally.

In Florida, it's illegal to process, sell, or drink liquor with an alcohol content above a certain limit. What's the limit?

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

...posted by ⊥ 8:55 AM ⊥ #

Fourth District: Unemployment Benefits

If you like unemployment compensation cases, you'll enjoy this one. The Fourth District reversed a denial of benefits in a case involving a mother who failed to appear at work for five days while she attended her daughter's wedding in Iraq. The employer had denied the mother's leave request, but the appellate court found no misconduct had occurred. (The appeals referee had reached the same decision.)

...posted by ⊥ 7:18 AM ⊥ #

Fourth District: Offers of Judgment

Next in the recently formed but ever-growing line of Rule 1.442 cases is this decision from the Fourth District,which held that a proposal by a mother on behalf of her child was a proposal by a single person and not a joint proposal requiring apportionment.

...posted by ⊥ 7:11 AM ⊥ #

Fourth District: Arbitration

Here is an interesting arbitration decision from the Fourth District. The plaintiff brought tort claims against a car dealership, claiming the dealership negligently allowed its employee to steal the plaintiff's identity information from the credit application she filled out when buying a car. The dealership moved to compel arbitration, saying the dispute fit within the broad "arising from, concerning or related to" language of the sale agreement's arbitration clause.

The trial court denied the motion, finding that the torts alleged were not sufficiently connected to the sale to trigger the arbitration requirement. The appellate court affirmed.

...posted by ⊥ 7:10 AM ⊥ #

Fourth District: Intervening Causes

For an in-depth look at when an intervening cause issue is one for the jury, and not summary judgment, check out this auto-accident case from the Fourth District.

...posted by ⊥ 7:09 AM ⊥ #

Fourth District: Reformation

Reformation cases are rather rare, so this one from the Fourth District would be noteworthy for that reason alone. But the decision also concludes with a pithy, insightful response to the appellant's argument the appellee failed to show, by clear and convincing evidence, that a mutual mistake occurred in drafting the parties' agreement:

In litigation, “the issue of mutual mistake arises only when alleged by one party and denied by the other. Agreement on the matter would eliminate it as an issue to be tried.”

The quote is taken from a 1982 decision from the same court.

...posted by ⊥ 7:06 AM ⊥ #

Thursday, May 19, 2005

Eleventh Circuit: Personal Jurisdiction

Those not familiar with corporate structures might be surprised by the result in this case, where today the Eleventh Circuit held that the Middle District of Florida lacked personal jurisdiction over The Walt Disney Company.

...posted by ⊥ 2:35 PM ⊥ #

Bzzzzz... Doc Stamps... Bzzzzz...

That buzz you hear today is the rare buzz of transactional lawyers clamoring to read a Florida Supreme Court opinion -- this one. It's a case on documentary stamp taxes for real property transfers, and it explains how doc stamps are not owed when a corporation transfers unencumbered property without consideration to a wholly owned subsidiary.

...posted by ⊥ 2:12 PM ⊥ #

Trashy Idea

A 13-year-old wrote the Governor with an idea to put trash cans at the toll booths leading to the Sunshine Skyway bridge. The Governor thought it was a great idea, and two months later we have a trash can project underway at the Skyway bridge. Neat.

Ok, so that's not really a Florida law story, but it's close. Read about it here in The Herald.

...posted by ⊥ 8:57 AM ⊥ #

It All Depends On What The Meaning...

Is it possible for a legislative body to appropriate funds it did not intend to appropriate? It's sure possible for executive branch officials to see things that way and politely not spend the money, as is happening right now at Florida State University. Check out this story in today's St. Pete Times.

...posted by ⊥ 8:46 AM ⊥ #

Second District: Defending Against Corporal Punishment

At some point you've probably thought about this: if a parent is going to strike a child, is the child allowed to use force in self-defense? In some cases, yes, and this case was one of them.

In the case, a mother swung a board with protruding nails at her son. The son deflected the board back at the mother, injuring her. The state prosecuted the son for battery, and the trial court found him guilty (but withheld adjudication). On appeal, the son argued that his acts were incontestably self-defense, which is defined as the use of force to defend against another's use of unlawful force. The Second District examined whether the mother's actions constituted unlawful force. Agreeing they did, the appellate court held the son's actions necessarily qualified as self-defense and reversed the trial court's order.

The case is interesting not only for its treatment of what I'll call the "hitting back" issue but the underlying concern of when corporal punishment by a parent becomes unlawful abuse. And -- as a plus -- the decision is thankfully short.

...posted by ⊥ 8:35 AM ⊥ #

Second District: Rev'd

I suppose a one-sentence opinion would be still shorter, but this decision from the Second District was about as concise as a reversal can be.

...posted by ⊥ 8:31 AM ⊥ #

Second District: Class Certification

In this case, the Second District reversed a class certification because the class representative's claim was not typical of each class member's claim. The trial court had defined the class to include members whose claims presented a timing issue that did not apply to the representative's claim.

...posted by ⊥ 8:30 AM ⊥ #

Wednesday, May 18, 2005

See Breach, Enter

Today's Sun-Sentinel has this interesting story about how Broward County officials are working on legislation to regulate newly voter-approved slots in that county.

Recall that the elected folks in Tallahassee did not comply with the state constitution's mandate that they adopt a law governing slots this past session.

...posted by ⊥ 6:37 AM ⊥ #

DCF Verdict

Today's Palm Beach Post offers this story on a $35.1 million verdict returned yesterday against the Department of Children and Families.

...posted by ⊥ 6:31 AM ⊥ #

Public Records

Here is an interesting story from yesterday's Palm Beach Post on reaction to the recently passed slate of new public records exemptions.

...posted by ⊥ 6:08 AM ⊥ #

Tuesday, May 17, 2005

A Fine Time For Wine

What a day yesterday was for folks who wish to have wine direct-shipped to them from out of state. The U.S. Supreme Court held that New York and Michigan laws prohibiting persons from directly importing wine into their states violate the federal constitution's commerce clause where in-state shipments are permitted. That would sure seem to invalidate similar laws found across the country.

You can read the decision here.

...posted by ⊥ 8:29 AM ⊥ #

Appellate Reminder

Attention Appellate Practice Section members: today's the monthly lunchtime telephonic CLE.

...posted by ⊥ 8:27 AM ⊥ #

Florida Supreme Court: Multi-Jurisdictional Practice

Florida is taking part in a national shift toward limited multi-jurisdictional practice, as we see from this set of rules amendments announced last week by the Florida Supreme Court.

...posted by ⊥ 8:01 AM ⊥ #

Monday, May 16, 2005

Blogging News

Yesterday's Daytona Beach News-Journal featured this interesting editorial on the rising influence of blogs. I was happily surprised to see Abstract Appeal mentioned in connection with the Schiavo saga as an example of blogs' positive contributions:

Abstract Appeal, a legal blog run by St. Petersburg attorney Matt Conigliaro, won national attention for providing near-instant analysis of the legal fight to disconnect Schiavo from feeding tubes. It was a perspective that was too often missing from news stories that focused on the emotional appeals of Schiavo's warring family members.

I'm very much appreciative of the kind mention. I also appreciate the reader who alerted me to it.

...posted by ⊥ 6:58 AM ⊥ #

Florida Supreme Court: A Shorter Bridge Will Do

The Florida Supreme Court has decided that the "Practicing With Professionalism" course given to most new Florida lawyers should be reduced from a two-day course to a one-day course, with the number of Young Lawyers Division basic CLE course requirements for the first years of practice increased from two to three.

The idea behind this decision is to eliminate the substantive portions of the Practicing With Professionalism program (by the way, the program used to be called "Bridging The Gap"), allowing it to focus on generally applicable professionalism issues and allowing new attorneys to select the substantive areas of their chosing for in-depth CLE instruction.

...posted by ⊥ 6:25 AM ⊥ #

Florida Supreme Court: Jimmy Ryce

In this decision from last Wednesday, the Third District held that the state has a right to appeal in Jimmy Ryce Act cases. On Thursday, the Florida Supreme Court approved that result in this appeal from the decision the Third District relied upon.

The supreme court reached that result in a case filed in 2001, and it would appear the case's second holding is what caused the decisional delay. The court split 5-2 on the question of whether a dismissal based on the state's failure to bring a Jimmy Ryce defendant to trial within the mandatory 30-day time frame following a probable cause determination is a dismissal with prejudice or not. In other words, if the state fails to try the case in the 30-day window, is the matter over, or can the state refile (assuming the statutory limitations period has not expired)? The majority held the dismissal is without prejudice. The state can refile.

...posted by ⊥ 6:15 AM ⊥ #

Jury Instructions

For a comment on the state of jury instructions today, including appellate courts' role in the journey thus far and the limits on those courts' ability to reverse where instructions are not "user friendly," check out Judge Gross's special concurrence in this case.

...posted by ⊥ 6:11 AM ⊥ #

Fourth District: Limitation of Power

As this case shows, the district courts of appeal can find themselves unable to correct a prior error in the same case where the judicial term in which the earlier mandate issued has expired. Judge May's concurrence points out that the state supreme court has turned to "all writs" jurisdiction to act in such a situation, but the district courts of appeal have not construed that power to give them comparable authority.

...posted by ⊥ 6:07 AM ⊥ #

Fifth District: Fir