Abstract Appeal -- by Matt Conigliaro

Thursday, June 30, 2005

Slots Saga

Today's Sun-Sentinel has this story on the "automatic stay" that took effect when the state's attorney appealed last week's trial court decision that, beginning July 1, Broward County's pari-mutuels are authorized to operate slot machines.

The story indicates that the pari-mutuels question "if an automatic stay should be applied in this case."

Hmmm. Well, by rule in Florida, an order is automatically stayed as to a Florida government entity or person where that entity or person appeals that order. That said, are the Broward County pari-mutuels authorized to operate slots solely by Judge Moe's order, or is there another authorization source, such as the text of this state constitutional amendment that Florida voters approved last year and the Broward County vote earlier this year approving the use of slots at Broward pari-mutuels?

Perhaps such things are just academic. The story indicates the pari-mutuels have announced they will not begin installing slots until regulations are in place. And that doesn't appear imminent.

...posted by ⊥ 6:35 AM ⊥ #

Wednesday, June 29, 2005

First District: Negligent FDLE Testing?

This decision from the First District concerned a man's ability to sue state officials for negligently conducting a test that falsely implicated him in a criminal investigation, costing him his job. A DNA test was at issue, and based on precedent approving a claim for negligent infectious disease testing for cattle, the court held the plaintiff stated a cause of action against FDLE for negligent testing and reporting.

Judge Thomas authored a special concurrence that, like the two-judge majority, accepted the court's cattle case as binding precedent, but Judge Thomas nonetheless questioned the correctness of the result. Specifically, he questioned whether FDLE owes any common law duty to persons who are the subject of DNA testing. After a thorough look at the question, Judge Thomas concluded the answer should be no. He also indicated that the court's decision "establishes that law enforcement agencies are liable for inaccurate analysis of DNA and . . . any other similar analysis, such as fingerprints, blood types, and other physical evidence."

That seems like significant exposure for Florida's investigators. Yet perhaps the case's consequences are not yet settled. Judge Thomas's concurrence may prompt further action by the court.

In any event, I'm curious about something. Both the prior decision and the current decision involved scientific testing by state officials, but whereas the allegedly false positives in this case resulted in the plaintiff's termination from his employment, the allegedly false positives in the earlier case resulted in the destruction of the plaintiff's property -- his cattle. Negligence traditionally protects one's interest in property. If the cattle case was predicated on a recognized tort duty not to harm another's property, is it really controlling in the context of a criminal investigation, particularly where the consequence was employment-related?

...posted by ⊥ 6:34 AM ⊥ #

Third District: Deadly Weapons

If a person beats another's head into a cement pillar wall, can the wall be considered a deadly weapon and the person prosecuted for aggravated battery with a deadly weapon? I suspect you know the answer, which the Third District explained here.

...posted by ⊥ 6:09 AM ⊥ #

Tuesday, June 28, 2005

Understanding Grokster

I'm going to take an ounce of credit. Not much, just an ounce.

The parties in the MGM v. Grokster case decided yesterday by the U.S. Supreme Court argued two divergent theories of how the country's copyright laws should operate, neither of which was true to the purposes of the copyright system. On behalf of IEEE-USA, the national arm of an international society of engineers, I and others at Carlton Fields filed an amicus brief that charted a highly reasonable, legally accurate middle course for the high court to take.

And that's precisely the course a unanimous court took yesterday.

Dozens of amici filed briefs in the case. In the end, only a handful proposed a theory along the lines IEEE-USA did. We share in this victory.

And it's the right result. Here's a quick outline of why, for those who may not have paid much attention to what sounds like an arcane legal issue but is one that can affect the techology we all enjoy.

Most people surfing the Internet probably realize that any audio or video can be stored in digital format, in a computer file. Whereas it used to be near impossible for someone to buy a record and make equivalent quality copies, it takes literally a click's worth of trouble to duplicate a computer file. If the contents of that file are copyrighted, as they are with most commercial music, each copy may constitute a violation of federal copyright law. The person making the copy may be a criminal.

Generally speaking, file-sharing services are companies that utilize the Internet to set up informal networks of computer users who can make their computer files (in many cases, their computer-stored music libraries) available to others on the network. They can share files. Almost instantly. For free.

The recording industry faces high practical hurdles in pursuing individuals who copy song files in violation of the copyright laws. So the industry has taken a more broad approach and sued the file-sharing services that make massive Internet-based copying possible.

The legal issue that arose from these suits is when file-sharing services will be liable for copying performed not by them but by individual service users.

The recording industry has attempted to place liability on the file-sharing services whenever the services do not take "reasonable" steps to prevent users from copying copyrighted materials. One federal circuit court -- the Seventh Circuit -- agreed with that approach, which invites a case-by-case examination of what's reasonable.

The file-sharing industry has argued that so long as it uses a technology capable of legitimate uses, industry members can only be liable for users' illegitimate uses if the industry materially participates in or is aware of specific illegal activity. One federal court -- the Ninth Circuit -- agreed with that approach, which effectively immunizes those providing technologies capable of unlawful uses so long as those providers do not become actively involved in or aware of specific infringement.

For reasons detailed in our amicus brief, neither of those approaches achieves the balance of interests that the American copyright system was intended to promote: maximizing the incentives for technological innovation while protecting those who own copyrighted works.

If the recording industry's view prevailed, we could see the elimination of the sort of technologies that brought us VCRs, DVD recorders, iPods, and a host of computerized gizmos and programs. The technological progress we have seen in the last 25 years could be substantially halted.

At the same time, if the file-sharing industry's view prevailed, the incentive to create copyrighted works -- legal protection for your creation -- would be substantially diminished. Owners of copyrighted materials would in essence be helpless to stop the rampant copying of their creations.

So what was the solution? We proposed a historically rooted rule that examines whether the file-sharing company (or any defendant) induces others to commit copyright violations. Industry insiders refer to this as "inducement" theory. In short, if a person actively encourages another to violate the copyright laws, then the encourager can be responsible for the violator's actions. The question becomes simply whether encouragement has occurred. In this case, did the Grokster file-sharing service actively encourage its users to share, unlawfully, copyrighted materials?

If that sounds like an obvious solution, well, perhaps it is. And perhaps that's why all nine justices yesterday adopted that theory as the law:

[T]he inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

An excellent decision. Neither party really "won" because neither got what it wanted, but the system achieved a significant victory.

Congrats to IEEE-USA. They seem quite pleased.

...posted by ⊥ 6:16 AM ⊥ #

Monday, June 27, 2005

Supreme Ending

Today's a giant day in Washington, as the U.S. Supreme Court is scheduled to wrap up its term with the release of some very significant decisions. The Establishment Clause cases will probably garner the most attention, and I can't wait to read them, but the case most on my mind is Grokster -- the file-sharing case out of the Ninth Circuit.

While many people's eyes glaze over when they hear terms like "file-sharing," the assumption that this case's scope is limited to some dubious activity only kids engage in is incorrect. This decision will likely affect everyone by influencing what technologies will be commercially available to us. CDs, DVDs, MP3s, I-Pods, computers -- you name it: if it involves a copyrighted work, it may be affected by this case.

...posted by ⊥ 8:35 AM ⊥ #

Florida Supreme Court: Law Enforcement Clothing

Does anyone remember the first case I blogged at Abstract Appeal? It was this decision by the Third District. The court declared unconstitutional section 843.085(1), which prohibits wearing certain indicia of law enforcement.

Last week, in this case, the Florida Supreme Court approved that result. A 5-2 court held that the statute is overbroad, vague, and violates substantive due process because it criminalizes conduct involving no intent to deceive the public and does not give fair notice of the entire range of prohibited conduct.

So the next time you see your 16-year-old neighbor on a street corner wearing a shirt that says "POLICE," and you find yourself asking, "Can he do that?" -- the answer's yes. At least until the law is amended.

...posted by ⊥ 7:47 AM ⊥ #

First District: Police Deception

How much trickery may police detectives employ without crossing the limits of due process? Test your own reaction to this scenario:

While questioning him about a possible probation violation, a police investigator tells a man he is suspected in a grocery store burglary and requests a saliva sample. The man obliges, but there never was a grocery store burglary. The police wanted the sample to investigate a sexual assault. The sample exonerated the man. Nonetheless, when the police later tested the sample against blood found at the scene of a gift shop robbery, they found a match. The man was arrested for the robbery, and he moved to exclude the saliva evidence and test results, claiming the detective's deceptive tactics vitiated the man's consent.

Those are the basic facts underlying this case, where a divided First District affirmed the trial court's rejection of the defendant's motion to suppress. The court used some noteworthy language:

Deception does not negate consent. Absent coercion, threats or misrepresentation of authority, the courts have long recognized deception as a viable and proper tool of police investigation.

This court will not follow State v. McCord, 833 So. 2d 828 (Fla. 4th DCA 2002). In McCord the court equated deception with coercion. There is no threat of force or other compulsion involved in deception. To the contrary, the use of subterfuge avoids coercion which by its nature is overt and direct. The notion that deception is somehow morally reprehensible when practiced by the police in fighting crime unfairly impugns the motives of those seeking to uphold the law. Schneckloth v. Bustamonte, 412 U.S. 218 (1973) does not hold otherwise. In addressing the obtaining of consent the court specifically couches its test in terms of coercion and force, not deception. Because a suspect is outsmarted by police does not mean the suspect somehow loses the will to refuse consent.

(some citations omitted).

Needless to say, the court certified conflict with McCord.

Also, for those wondering if there was really a search here for which consent was required, check out footnote 2 of the majority's opinion.

...posted by ⊥ 7:37 AM ⊥ #

Proposals for Settlement

Those following the ever-expanding body of case law on proposals of settlement may wish to check out two recent decisions.

First, in this case, the Florida Supreme Court resolved a conflict in the districts over whether a proposal must be apportioned between directly and vicariously liable parties. Yes, it must.

Also, in this case, the Second District held a proposal valid though it did not directly mention how a request for injunctive relief should be resolved. The court found the proposal's stated intent to resolve all pending claims encompassed the claim for injunctive relief.

...posted by ⊥ 7:34 AM ⊥ #

Second District: Failure To Prosecute

If more than one year passes without record activity after a jury returns a verdict in a case, can the case be dismissed for lack of prosecution? No, said the Second District in this decision. That result is consistent with the body of case law distinguishing between times when action is required by a party and times when action is required by the court.

...posted by ⊥ 7:30 AM ⊥ #

Second District: Fundamental Error

In a concurring opinion in this case, Chief Judge Altenbernd raised the issue of whether Florida's intermediate appellate courts are correctly imposing on criminal defendants the burden of proving harm from unpreserved error.

...posted by ⊥ 7:27 AM ⊥ #

First District: Rule 1.525 Motions

You may recall a decision issued by the Second District last year holding a motion for attorney's fees invalid because it was filed before the court entered what was ultimately the case's final judgment. You can read that decision here.

Last week, in this case, a divided panel from the First District disagreed. The First District held that the motion was timely because it was served prior to the expiration of 30 days following entry of the judgment. It did not matter that the motion was also served prior to entry of the judgment.

In the end, the issue here comes down to the meaning of the word "within" as it is used in Rule 1.525. Under the rule, a timely motion for fees is one served within 30 days of the filing of the judgment. Does that language establish a window in time for service, opening on the date of the judgment's entry and closing 30 days later, or does the rule establish merely a deadline for service -- 30 days after the judgment is filed? Hopefully our high court will tell us.

And by the way, if someone's keeping track of picayune controversies only lawyers could spot, this one might make the list.

...posted by ⊥ 7:23 AM ⊥ #

Third District: Electric Utilities

Can an electric utility be held liable when a wire inside a metal street light fails, energizing the pole and a surrounding puddle of water, and leading to the electrocution of two children? Not when the utility did not own or maintain the pole and had no knowledge of the problem, as the Third District explained in this case.

...posted by ⊥ 7:19 AM ⊥ #

Third District: Title Defects

What constitutes a diligent effort to clear title defects? You can find an example in this decision from the Third District, where the court reversed a judgment granting specific performance to the purchasers after a non-jury trial. The district court determined that the seller had made diligent efforts.

...posted by ⊥ 7:16 AM ⊥ #

First District: Administrative Review

Does section 408.039(6)(b) require appellate courts to give the Agency for Health Care Administration greater deference in certificate of need cases than is ordinarily given to agency orders? No, said the First District in this.

...posted by ⊥ 7:13 AM ⊥ #

First District: Between Apprendi and Blakely

Criminal law fans may wish to note the First District's decision in this case. The court addressed a Rule 3.850 ineffective assistance claim based on an unobjected-to departure sentence entered by the trial court for an escalating pattern of criminal activity. The sentence had been entered and affirmed after the release of Apprendi v. New Jersey but before the release of Blakely v. Washington. A majority held that Apprendi, as clarified by Blakely, controlled, and that the sentence should be vacated notwithstanding the law of the case doctrine. Judge Kahn dissented.

...posted by ⊥ 7:10 AM ⊥ #

Second District: Magnuson-Moss Act

Those trying to make sense out of the national confusion over whether the Magnuson-Moss Warranty Act applies in the context of leased automobiles should check out this decision from the Second District. The court held that the act encompassed a lessee's warranty claim under the facts of the case. The court also viewed its decision as conflicting with a prior decision from the First District and certified conflict.

...posted by ⊥ 7:06 AM ⊥ #

Saturday, June 25, 2005

Meeting Greetings

I had a great time at the annual meeting. The appellate folks were out in force, and the company was outstanding, as always. The bar presented some memorable speakers, and if I'm not mistaken there was a discernible theme of independence. Judicial independence, that is. Not in the sense judges should do as they please, but in the dignified, honorable sense of discerning the law based on settled methods of interpretation, and following it with steadfast confidence. I'm sure I caught that thought once or twice.

I did snap a few photos at the Appellate Section's dessert reception. Here are some samples:

Chrissy & Bob

June, Tony & Tom

Shannon & Judge Warner

Roy, Celene & Neil

John, with Corey & WC

Steve and Carole Brannock & Cindy
(with Tom in the background)
Several folks can thank me later for not posting the good ones...

...posted by ⊥ 12:00 PM ⊥ #

Thursday, June 23, 2005

Abstract Pause

Like many of the folks who frequent this corner of the Blogosphere, I'm going to be in Orlando nearly all day today for the annual meeting of the The Florida Bar. The appellate-related meetings are mostly early today and late tonight. So I'm hitting the road.

Be back later. Perhaps with pictures...

...posted by ⊥ 7:12 AM ⊥ #

Wednesday, June 22, 2005

Schiavo News

Today's St. Pete Times has the latest here.

...posted by ⊥ 9:14 AM ⊥ #

Slots Slated To Start

Today's Sun-Sentinel reports here that a Broward County circuit judge has ruled he will create a regulatory framework for the slots scheduled to begin operation in the county on July 1 if the local county commission will not. Recall that the legislature did not comply with the constitution directive that it create that framework this past session.

This is a very interesting development, to say the least.

The Miami Herald also has a story on the ruling here.

...posted by ⊥ 8:51 AM ⊥ #

Eleventh Circuit: Preservation of Error

This decision from the Eleventh Circuit should be studied by every trial lawyer.

The case involved a diversity suit in which the defendants moved to dismiss for lack of jurisdiction, arguing the parties were not truly diverse. A magistrate judge scheduled a nonevidentiary telephonic hearing on the motion. The plaintiffs responded with a request that acknowledged the magistrate judge was not going to hold an evidentiary hearing but asked that the hearing be held live. The magistrate judge denied that request and held the hearing by phone. At the hearing, the plaintiffs argued that an evidentiary hearing was not necessary but that if the magistrate judge had any doubts about the plaintiffs' position then an evidentiary hearing could be held.

The magistrate judge apparently had enough doubt in the plaintiffs' views to recommend a ruling in the defendants' favor. The district court accepted that recommendation. The plaintiffs argued to the district court that an evidentiary hearing should have been held, but the district court rejected that argument.

On appeal to the Eleventh Circuit, the plaintiffs again argued error in the failure to hold an evidentiary hearing. The Eleventh Circuit held that no error could be shown because the plaintiffs never timely requested an evidentiary hearing. They timely requested only a live argument.

I see this case as highlighting the error-correcting function of our appellate courts. If no one requested an evidentiary hearing, then the lower court committed no error in not holding one. In a sense, this is a preservation of error concern, and it's the sort of thing that appellate counsel can help focus on if they are brought into a case to support the trial team.

...posted by ⊥ 8:28 AM ⊥ #

Fourth District: Failure To Prosecute

An attorney's misrepresentations to his or her clients that a case is proceeding when it really is not cannot establish the good cause necessary to avoid dismissal of the client's case for failure to prosecute. The Fourth District explained in this case that the result may be harsh for the parties involved but is required by the rules of civil procedure.

...posted by ⊥ 8:08 AM ⊥ #

Tuesday, June 21, 2005

Schiavo News

Terri's ashes were buried yesterday at a cemetery in Clearwater, the St. Pete Times reports here. The plaque covering the site reads:

SCHIAVO
THERESA MARIE
BELOVED WIFE

BORN DECEMBER 3, 1963
DEPARTED THIS EARTH
FEBRUARY 25, 1990
AT PEACE MARCH 31, 2005

[image of a dove]

I KEPT MY PROMISE

The Times has a picture and further details.

...posted by ⊥ 8:12 AM ⊥ #

Fourth District: Arbitration

In the latest of a recent string of arbitration cases, the Fourth District held that a provision precluding an award of attorney's fees was unenforceable but severable in an unfair trade practices case.

I'm glad to see Florida's case law on arbitration taking better shape. But some additional clarification still appears needed. For instance, the agreement at issue in this case was a contract for wireless telephone services between a consumer and a large wireless communications company. It seems, well, likely that the services contract affected interstate commerce, triggering the Federal Arbitration Act, but federal law in this area holds that the validity of an allegedly void provision that is nonetheless severable should be determined by the arbitrator, not a court.

The Second District adopted that approach earlier this year in this decision, when the court held that whether an arbitration agreement validly waived statutory remedies should be determined by the arbitrator. The Second District's case also involved a statutory unfair trade practices claim.

At the moment, then, Florida law does not appear consistent on whether an arbitrator or a court should determine validity issues when questionable provisions are severable. Perhaps this will change soon.

...posted by ⊥ 8:08 AM ⊥ #

Fourth District: Nonlawyer Hearing Officers

If a person is arrested in connection with a DUI or suspected DUI and has his or her license suspended, this statute permits the person to request a formal hearing to review the propriety of the suspension. The hearing officer "shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension." But does the hearing officer have to be a lawyer? The Fourth District considered constitutional and statutory arguments along these lines in this case, and ultimately the court said no.

Lots of folks seem to think that legal educations and backgrounds are overrated -- that justice is merely common sense and should naturally prevail. You might wonder whether thoughts like that change when someone appears for a hearing before a judge who is not a lawyer.

...posted by ⊥ 8:05 AM ⊥ #

Third District: Preservation of Error

Just a reminder here from the Third District that preserving a sustained objection to a closing argument requires the objecting party to request a curative instruction or move for a mistrial.

...posted by ⊥ 8:05 AM ⊥ #

Fourth District: Paternity

In a rare decision finding the almost insurmountable presumption of legitimacy overcome, the Fourth District held in this case that a man other than the man to whom a child's mother was married at the time of conception and birth could establish paternity for the child.

...posted by ⊥ 8:03 AM ⊥ #

Fourth District: Due Process, Drugs, and Knowledge

Due process fans will want to check out this decision from the Fourth District. The court upheld a recent legislative amendment establishing that knowledge of the illicit nature of a controlled substance is not an element of Florida's drug crimes and that a defendant may prove lack of knowledge as an affirmative defense.

...posted by ⊥ 8:00 AM ⊥ #

Monday, June 20, 2005

Cert Granted: Arbitration

The big Florida-related news out of Washington today is that the U.S. Supreme Court has granted certiorari in Cardegna v. Buckeye Check Cashing, Inc., a Florida Supreme Court decision from this past January.

Cardegna was a 5-1 decision on whether an arbitration provision in a potentially usurious check-cashing contract should be enforced for purposes of allowing an arbitrator to decide whether the agreement is wholly or partly enforceable. There was no dispute the Federal Arbitration Act governed the case.

The five-justice majority held that whether the agreement is usurious and thus void is to be determined by a court, not an arbitrator. The majority distinguished the U.S. Supreme Court's well known Prima Paint case, where the federal supreme court held an arbitrator should resolve validity questions when an agreement's invalid provisions are severable, as being based on alleged invalidities that would render the agreement merely voidable, not void. The majority held that, under Florida law, a usurious agreement is entirely void.

Justice Cantero dissented. He argued that federal law controlled, not Florida law, and that the three federal courts that recently addressed the usury issue in the context of the Federal Arbitration Act correctly decided that an arbitrator should resolve the validity question. One of those courts was the Eleventh Circuit.

Briefing will now follow, and we can expect a decision next term.

...posted by ⊥ 12:10 PM ⊥ #

Second District: Subtle Holiday Message

Perhaps it was a coincidence that the Second District released this decision on Friday, just before Father's Day weekend. The case concerns the termination of D.A.D.'s parental rights.

Perhaps....

...posted by ⊥ 8:44 AM ⊥ #

Kudos On Mirror E-Filing

Attention appellate practitioners: the move toward true e-filing in Florida continues.

Effective July 1, 2005, if you're filing materials in the Fourth District, you will want to be sure you comply with this recent administrative order from the court. The order requires briefs, petitions, responses, appendices, motions for rehearing, and transcripts to be submitted to the court by email in addition to the usual paper filing.

Acceptable formats include -- start drum roll, please -- Microsoft Word, Corel WordPerfect, and pdf. My hat's off to the court for its flexibility in permissible formats.

You might recall that, last year, the Florida Supreme Court adopted a similar mirror e-filing administrative order (you can read it here), but the high court currently requires all submissions to be in Word format.

I'm a little surprised that the Fourth District hasn't included a requirement that pdf files be word-processor generated, rather than images, to the extent possible. Scanned pdf image files of briefs can be extremely large.

Note that this mirror e-filing is required to be done on the earlier of the date of paper filing or the date of service. So if you overnight the original to the court but serve opposing counsel the day before, you have to email the document on the earlier date.

Great job by the Fourth District. Let's hope this pilot program succeeds.

...posted by ⊥ 8:16 AM ⊥ #

Second District: Contempt

In this case, the Second District invalidated a procedure used by Polk County to incarcerate those who've not paid fines and other costs associated with criminal convictions. The practices discussed in the case are so plainly invalid that they make the case seem an anachronism.

...posted by ⊥ 8:14 AM ⊥ #

First District: Taxing Leaseholds

The majority and dissenting opinions in this equitable ownership case will be of big interest to tax fans. The First District affirmed a decision to treat a 99-year perpetually renewable leasehold as equitably owned by the lessees.

...posted by ⊥ 8:12 AM ⊥ #

Second District: Criminal Malpractice

In a criminal context, a prerequisite to a person's malpractice claim against his or her trial counsel is that the person have obtained relief either on direct appeal or in a postconviction proceeding. But what satisfies that requirement? Exculpation? Or just a grant of relief? The Second District has the answer here.

The case also involves, but doesn't answer, an interesting evidentiary question about whether a person who was originally represented by a public defender and who pled no contest after the original conviction was vacated can bring a malpractice claim against the public defender and keep the no contest plea out of evidence based on section 90.410. Creative, huh?

...posted by ⊥ 8:09 AM ⊥ #

Second District: Trust Litigation Venue

Trusts and estates fans may wish to check out this recent decision from the Second District. The case concerned whether Florida was the proper venue to hear beneficiaries' claims against a trustee.

...posted by ⊥ 8:04 AM ⊥ #

Windshield Thoughts

It looks like I'm not the only one interested in the cracked windshield problem. I spotted this column over the weekend in a few papers. And it has some nice words about this site.

...posted by ⊥ 5:27 AM ⊥ #

Odds & Ends

This weekend, I got around to tidying a few things up around here.

I've added links to some new blogs, including the 13th Juror, a blog started by Jackie Dowd of FAMU Law School. Jackie used to coordinate statewide prosecutions at the Attorney General's office, but now she's taking her skills and offering them to the clinical program at FAMU. Enjoy the blogosphere, Jackie. It's a blast.

I pulled a few outdated links, including one to a blog that disappeared and whose address was taken over by an internet drug sales outfit. (Note to self: never give up Abstract Appeal's domain name.)

Also, the get-a-lawyer box on the right now has a popup title that tells you clicking on the box's text will take you to The Florida Bar's attorney referral page. (Someone from The Bar actually requested that, and it seemed like a good idea.)

...posted by ⊥ 5:04 AM ⊥ #

Friday, June 17, 2005

Schiavo News: Timeline Trouble?

Michael Schiavo has recently said that he woke from the thud of Terri collapsing at 4:30 am and that he got up, examined her, and called 911. He said as much in an October 2003 interview on Larry King Live, and he apparently said it very recently to the medical examiner. Emergency services records indicate, though, that Michael called 911 at 5:40 am, not 4:40 am.

That's the story behind the Governor's new effort to investigate Michael Schiavo, an effort discussed in this article in today's St. Pete Times.

I suppose this all harkens back to the "Michael did it" theory, which continues to grow more strange. Did Michael wait 70 minutes to call? Or, over thirteen years later, did he mix up 4:30 and 5:30?

I expect we'll soon be hearing about who testified to what during the earlier trials and in deposition. I also expect we'll hear more about whether Terri could have lived if she collapsed at 4:30 am, since paramedics did not arrive until 5:52 am. The Times has already consulted one expert who says no.

...posted by ⊥ 8:04 AM ⊥ #

Second District: Tribal Immunity

No, this has nothing to do with Survivor. It's much better.

The Second District's opinion in this case is certainly among this week's most interesting opinions. The case involves a woman who claimed she was injured at the Seminole Hard Rock Hotel & Casino Tampa when she was struck by a chair. She filed suit against the Seminole Tribe, and the tribe moved to dismiss for lack of subject matter jurisdiction based on tribal sovereign immunity. The trial court denied the motion without prejudice, allowing discovery to go forward. The tribe then sought a writ of certiorari from the Second District.

The appellate court granted the petition and held the suit should be dismissed. The court rejected the plaintiff's argument that the tribe's purchase of liability insurance amounted to a waiver of soveriegn immunity up to the liability limit.
Chief Judge Altenbernd authored a concurrence that briefly explored the awkward reality surrounding the tribe's immunity. He explained:

[T]he Seminole Tribe has created a large tourist attraction along Interstate 4 known as the Seminole "Hard Rock" Casino. It is adjacent to the State Fairgrounds and advertises itself as a hotel and casino on Orient Road in Tampa, Florida. But this casino is not legally in Florida.

The average tourist has no idea that her Florida constitutional rights to access to the courts and to trial by jury do not apply to any claims that may arise while she visits the hotel and casino. The Tribe itself does not post warnings that its tourist attraction is exempt from these basic Florida constitutional protections. In this case, the Seminole Tribe and, indirectly its commercial insurance company, are raising the jurisdictional bar to prevent judicial resolution of a relatively minor and defensible personal injury claim. However, they could raise the same bar for a serious wrongful death action.

(footnotes omitted).

He's right, of course. A person visiting the hotel or casino, which is just outside downtown Tampa, has no idea that he or she has just left Florida and the protection of its laws.

Perhaps some good signage is in order. Can't you see it? "Now Leaving Florida, Please Return Soon," quickly followed by, "Welcome Back To Florida!"

Or how about "Support Education, Save A Dollar For A Lottery Ticket."

And so on...

...posted by ⊥ 7:57 AM ⊥ #

Florida Supreme Court: Workers' Compensation Immunity

Yesterday, the Florida Supreme Court released this decision clarifying the scope of workers' compensation immunity as it relates to a carrier. A divided court explained that late payments or "simple bad faith" do not qualify as independent torts that can survive the statutory grant of immunity but outrageous conduct can survive. The court found the carrier's conduct in the case to be wholly outrageous.

Three justices dissented on grounds the statutory immunity should have barred the workers' tort claims. The dissent emphasized that the injured worker could have availed himself of remedies in workers' compensation scheme that would have prevented or reduced the harm the worker ultimately suffered.

...posted by ⊥ 7:05 AM ⊥ #

Eleventh Circuit: Arbitration

A tiny arbitration discussion can be found within this decision from the Eleventh Circuit. In addressing a Packers & Stockyards Act claim for unlawful unfair or discriminatory conduct, the court held that there was nothing unfair or discriminatory about a company's offers to another company to pay one rate for services if the other company signed an arbitration agreement and a lower rate otherwise.

...posted by ⊥ 6:50 AM ⊥ #

Eleventh Circuit: Insured v. Insured

Insurance fans who enjoyed this decision released last month by Third District regarding the "insured v. insured" exclusion will likely be interested in this decision from the Eleventh Circuit. The new case concerns the same exclusion, which has gone from being virtually unmentioned in Florida law to being covered twice in a few weeks.

...posted by ⊥ 6:42 AM ⊥ #

Thursday, June 16, 2005

Schiavo Thoughts: The Autopsy Report

The release of the Sixth Circuit medical examiner's report on Terri Schiavo's autopsy answered many questions. It also left some significant questions unanswered, and it offered one surprise. After taking some time to examine the report closely, here are my thoughts.

1. Persistent Vegetative State. In the second trial regarding Terri's medical condition, medical doctors offered by Michael, an independent specialist appointed by the court, and the trial court itself found that Terri was in a persistent vegetative state with no reasonable hope of recovery. Evidence to the contrary was rejected as not credible. The medical examiner's report explains that whether someone is in a persistent vegetative state is a clinical diagnosis that his office cannot evaluate after her death. However, the report does offer findings that are relevant to the PVS diagnosis.

a. The medical examiner from the Tenth Circuit served as a consultant neuropathologist. He found that Terri's brain was very much atrophied. It weighed half of what a normal brain would weigh and approximately 75% of what Karen Ann Quinlan's brain weighed at her death. Karen Ann Quinlan spent 10 years in a persistent vegetative state.

b. The surprise I mentioned at the start of this post concerns Terri's vision. The consultant neurologist's report finds the tissue volume loss in Terri's brain to have been worst in the bilateral occipital lobes, and the Sixth Circuit medical examiner concluded Terri suffered from cortical blindness. If I understand this correctly, she was not blind in the sense her eyes could not see, but the portion of her brain that would receive information from her retinas did not exist. I'll leave it to the physicians out there to say for sure, but it would seem that these results support the court's finding that any eye tracking Terri performed was at best reflexive and not the product of conscious thought. Her eyes could perceive light, but the portion of her brain that would process those perceptions did not exist.

2. Ability To Recover. I don't read the report as directly addressing whether Terri had the ability to recover, but in the press conference given by the medical examiner with the report's release, the medical examiner succinctly said that Terri could not recover. The damage to her brain was extensive and irreparable. This supports the trial court's decision that there was no reasonable medical probability that Terri's condition could improve to the point where she might change her mind about withdrawing the feeding tube.

3. Trauma. Of the high profile issues in the Schiavo saga, the one addressed with the greatest certainty seems to be the trauma issue. The report finds the evidence inconsistent with the notion physical trauma caused Terri's collapse or had been inflicted at the time of the collapse. The report relies on medical examinations conducted at the time, as well as observations of Terri's body at her death. The examiner's conclusion was not based on a mere lack of evidence of trauma but on evidence that was affirmatively inconsistent with trauma.

These findings provide a medical complement to what we have already seen from both the court system and law enforcement. Those who have suspected or accused Michael of abusing Terri and causing her collapse would seem to be without support.

4. Ability To Eat. The trial court concluded that Terri could not be fed orally. The medical examiner's report agreed, concluding that Terri was dependent on her feeding tube, and had she been fed sufficient food to sustain her, she certainly would have aspirated it. Without naming anyone, the report mentions caregivers' claims they had fed Terri orally at times, saying such feedings were "potentially harmful or, at least, extremely dangerous" to Terri.

5. Cause Of Collapse. A sizeable portion of the medical examiner's report is appropriately devoted to what may have caused Terri's collapse. The medical examiner rejected bulimia because the best evidence to support that theory -- very low potassium levels observed after her collapse -- could have been explained by the treatment she received to revive her. The medical examiner also rejected strangling and physical abuse, as discussed above, and found no evidence of cardiac anomalies.

People have already written me to ask whether these findings undermine the results of the 1992 malpractice trial. Recall that Michael brought malpractice claims against Terri's physicians. Terri had been trying to become pregnant, but her monthly cycles had stopped, and supposedly proper tests by those treating her could have brought the bulimic situation to light and avoided her collapse. One doctor settled and another went to trial. A jury agreed with Michael's theory and awarded damages, finding Terri partly responsible, and the case then settled for a lesser amount while it was on appeal.

I do not think the medical examiner's conclusion that insufficient evidence supports a finding of bulimia undermines the trial's result. The medical examiner did not rule out that Terri's dieting habits, such as taking pills with caffeine or drinking substantial amounts of iced tea, could have caused or contributed to her collapse. He found that the evidence that would prove or disprove such a finding had not been collected or maintained, but in the malpractice trial apparently there was little or no challenge that Terri collapsed due to her dieting habits and a low potassium level. The jury agreed Terri's dieting habits caused her collapse based on the evidence and arguments presented.

In the end, the official cause of Terri's collapse remains undetermined. It might be emphasized, though, that the cause of her collapse was not directly at issue in the litigation over whether she would want her feeding tube removed and whether some treatment might help her substantially improve to the point where she would not want the tube removed. Concerns about the cause of her collapse were injected into the feeding tube litigation in 2002 -- twelve years after the fact and after two trials on her wishes and her condition -- through claims that Michael attacked Terri and provoked the collapse. Those claims were intended to discredit Michael and cast a criminal pall over the situation, which to an extent is what happened. But one of the medical examiner's strongest findings was that the evidence is inconsistent with the notion anyone caused her collapse by beating or strangling her.

When everything is said, the medical examiner's report substantiates that the court system did its job well in handling Terri's case.

...posted by ⊥ 7:39 AM ⊥ #

Wednesday, June 15, 2005

Schiavo News

You can find a copy of Terri Schiavo's autopsy report here. To the extent I can, I'll try to offer some insights on the legal implications of the report later today.

...posted by ⊥ 12:08 PM ⊥ #

Schiavo News

Like many, I'll be waiting for this morning's release of the autopsy report. I'll post it as soon as I get a copy. Please feel free to send it if you get it....

Meanwhile, today's St. Pete Times has this prelude to the report's release.

...posted by ⊥ 7:20 AM ⊥ #

Tuesday, June 14, 2005

Schiavo News

Are the autopsy results to be released tomorrow? Perhaps, according to this story at News4Jax.com.

...posted by ⊥ 4:45 PM ⊥ #

Wal-Mart Suit

The headline for this story from the St. Pete Times reads, "Suit says missing smile cost job at Sam's Club."

...posted by ⊥ 4:41 PM ⊥ #

Fourth District: Cracked Front View, Vol. III, Issue 1

Some of you may recall my prior "Cracked Front View" posts. They all concern the issue of whether an officer can stop a vehicle in Florida based on a windshield crack that does not present a safety problem. I've discussed these cases at length not because the legal issues are so complex and fascinating but because unlike, say, illegal narcotics, a cracked windshield is the sort of thing anyone might possess on any given day. A cracked windshield is only a kicked-up pebble away, and whether it's unlawful to drive with any crack in a windshield or only a crack that presents a safety hazard seems like the sort of issue that ought to be settled.

Unfortunately, things aren't yet settled.

Recall that, back in February, in this en banc decision from the Second District, a divided court held that any visible crack is grounds for a stop and that a 7-inch crack in the passenger side upper corner of a windshield (which posed no safety threat to the driver or others) violated Florida law. For details on that decision, check out this prior post.

In March, the Fifth District decided this case, which affirmed the denial of a suppression order on grounds the officer properly stopped the vehicle to examine a crack that may have made, and in fact did make, the vehicle unsafe for the driver or others. In this post, I pointed out that while the Fifth District never directly said so, implicit in its analysis was that the officer could properly stop the vehicle for a cracked windshield only if the crack appeared to present a safety threat. Such a rationale would conflict with the Second District's decision. The Fifth District did not cite the Second District's decision.

This past week, the Fourth District released this decision in which the court agreed with and adopted the reasoning of Judge Northcutt's dissent in the Second District's case. The Fourth District held that a stop for a cracked windshield which presented no safety hazard was an unlawful stop. The court certified conflict with the Second District. Interestingly, the court made no mention of the Fifth District's recent decision.

So where does that leave Florida's drivers who may have small cracks in their windshields? Well, if you live in the Second District's territory, any crack in your windshield may get you pulled over and ticketed. If you live in the Fourth District's territory, and in my view the Fifth District's territory, you can only be lawfully stopped for a cracked windshield if the crack presents a safety threat to the driver or others.

For a look at which counties are in which district's territory, look here.

...posted by ⊥ 8:59 AM ⊥ #

Fourth District: Subrogation

If an insurer pays its insured for a loss caused by a third person, and the insurer then sues the tortfeasor (or the tortfeasor's carrier), is the insurer obligated to turn the proceeds of the suit over to the insured to the extent necessary to make the insured whole? No, said the Fourth District in this case. The insured did not sue the tortfeasor but instead sued the insurer, seeking to bring a class action claiming all insureds were entitled to be paid first in such situations. The trial and appellate courts held that the insured failed to state a cause of action.

...posted by ⊥ 8:57 AM ⊥ #

Third District: Subject Matter Jurisdiction

In this dissolution case, the husband filed an interlocutory appeal related to multiple issues, including his argument the trial court lacked subject matter jurisdiction based on a court proceeding the parties were litigating in Venezuela. The Third District declined to rule on the jurisdiction argument, holding a ruling on such an issue is not appealable under the limited nonfinal review provided by Rule 9.130.

The court made no mention of whether it could construe that portion of the appeal as a petition for writ of prohibition.

On the same date, the Third District also released this decision, in which the court granted a petition for a writ of prohibition in favor of a county tax appraiser based on a lack of subject matter jurisdiction in the lower court. A property owner had filed a legal challenge to the appraiser's assessment of the subject property for 2001 but then failed to pay the assessment for 2002. Doing so, the court held, deprived the circuit court of subject matter jurisdiction to hear a challenge to the 2001 assessment.

...posted by ⊥ 8:54 AM ⊥ #

Third District: Appellate Attorney's Fees in Insurance Cases

The Third District granted rehearing in this insurance case to acknowledge that entitlement to attorney's fees had been an issue in the appeal's third point. Thus, the court held, the appellee was entitled to "appellate attorney's fees reasonably expended in defending point III of the appeal."

...posted by ⊥ 8:54 AM ⊥ #

Third District: Contract Interpretation

Is an ambiguous provision always construed against the drafter? Not when there is ample evidence of the parties' intent, as the Third District explained in this case.

...posted by ⊥ 8:52 AM ⊥ #

Fourth District: Appellate Jurisdiction

Quick quiz here for appellate fans. If an unappealable nonfinal order is entered and a motion for rehearing directed to that order is granted, can the order on rehearing be appealed? Nope.

...posted by ⊥ 8:50 AM ⊥ #

Third District: Insurance Settlements

An insured claimed that he developed a jaw disorder, TMJ, from multiple accidents and sought coverage under his automobile policy's uninsured motorist coverage. He demanded $200,000, and when the insurer did not pay he notified the insurer he intended to seek bad faith damages. Such notices trigger a 60-day safe harbor period for payment, and the insurer mailed the payments. They never arrived. When the insurer learned of this after the 60-day period expired, the insurer sent new checks. The man refused the checks as untimely. But he kept them.

The case was litigated. The insurer sought to enforce the settlement based on its timely mailing of the checks, but the trial court ruled proper payment had not been made. The case then went to trial, and the man lost. He then announced he would keep the $200,000 that had been mailed to him after the 60-day period expired. The insurer challenged that action, and the trial court ruled the man could not keep the proceeds he previously refused to accept as a settlement.

On appeal, the Third District released this decision affirming the ruling that the insured could not keep the previously rejected tender. Unfortunately, the court did not address the trial court's ruling regarding whether the original, unsuccessful tender gave rise to a binding settlement.

...posted by ⊥ 8:48 AM ⊥ #

Fourth District: Nonrecord Evidence

In footnote 2 of this decision, the Fourth District reminds us all that briefs should neither rely on nor attach nonrecord evidence.

...posted by ⊥ 8:47 AM ⊥ #

Fourth District: Successive Post-Conviction Motions

In this case, the Fourth District rejected the notion that the successive nature of the prisoner's motion should bar relief, since the prisoner had not previously raised the point in the appellate court.

...posted by ⊥ 8:46 AM ⊥ #