Abstract Appeal -- by Matt Conigliaro

Friday, September 30, 2005

Friday Florida Law Trivia!

A little late today, but it's been a busy morning with work and the few posts I've squeezed in.

Tomorrow, a new law takes effect that extends Florida's "castle doctrine" to any place one has a right to be. You may know that under the common law, a person could not defend himself with deadly force if retreat was an option. The exception to the retreat rule was when one was home -- there was no duty to retreat from your own home, your "castle."

Under the law that takes effect tomorrow, the duty to retreat is eliminated not only in one's home but in a car or anywhere a person has a lawful right to be. The use of deadly force must still be reasonable, but the obligation to retreat is eliminated.

All that background brings me to today's trivia question:

If a madman with a gun accosts someone on the street today (the day before the new law takes effect), and the victim does not retreat as she could but instead uses her own gun to defend herself, killing her attacker, can she be found liable for murder because she did not retreat? What if she is not arrested until after tomorrow, when the new law takes effect?

Because this question is going up late today, I'll post the answer early tomorrow morning.

...posted by ⊥ 11:45 AM ⊥ #

DNA Test Deadline Again Extended

Yesterday, the Florida Supreme Court once again extended Rule 3.853's deadline for filing postconviction motions for DNA tests. You can read the brief unsigned order here.

The idea behind the DNA testing issue has been that persons convicted of crimes who did not have the benefit of DNA testing at the time of conviction -- either to prove innocence or demonstrate that they should receive a reduced sentence -- should now be given the benefit of DNA testing.

When "now" ends is where the controversy begins.

In 2001, the legislature passed this statute, which allowed postsentencing DNA testing to be requested by a defendant or considered by a court within two years of a conviction or by October 1, 2003, whichever comes later. In essence, the legislature created a two-year window for defendants to raise DNA challenges. Defendants in new cases had two years from their conviction. Defendants in old cases had until October 1, 2003.

To provide complementary procedural guidelines, later that year the state supreme court adopted rule 3.853, which implemented the key deadline for old cases: October 1, 2003.

All was well until October 2003 approached. Reportedly, many defendants had not yet had an opportunity to seek DNA tests under the new rule and law. A key concern at the time was that the statute required relevant evidence to be maintained only through the October 1, 2003 date, and there were fears that critical evidence might be destroyed after the October 1 deadline but before the legislature could approve an extension.

So, on September 30, 2003, the Florida Supreme Court released this order which "suspended" the October 1, 2003 deadline while the court considered further action. The order expressly required DNA evidence to be maintained in the meantime.

Whether the court had the authority to enter that order that in the face of a contrary statute was the subject of a vigorous three-justice dissent. Those interested in the separation of powers issues would be much intrigued by the order and its additional opinions.

In 2004, while the court was still considering further action, the legislature amended section 925.11 to extend the deadline in old cases until October 1, 2005. That made the court's job easy. On September 15, 2004, in this order, the court amended rule 3.853 to extend the key deadline to October 1, 2005. This time, there was no controversy.

That brings us to yesterday. The statutory deadline expires tomorrow, and again there is concern that many defendants have not yet completed their DNA challenges. Yesterday's order amends rule 3.853 on an "interim" basis to extend the old case deadline to July 1, 2006. The order is not signed by any justice, and there is no dissent.

The order invites comments and indicates that an oral argument may be held in the matter.

...posted by ⊥ 11:31 AM ⊥ #

All Writs

Perhaps no Florida jurisdictional concept is more misused or misunderstood than that of the state supreme court's "all writs" jurisdiction.

Contrary to the wishful thinking of some, the constitutional all writs power does not allow the court to enter any order that furthers justice. In fact, the all writs power is not an independent source of jurisdiction at all. Rather, as the Florida Supreme Court explained yesterday in this opinion, the all writs power simply allows the court to act in ways necessary to complete the exercise of jurisdiction otherwise granted to the court.

Now, whether that narrow definition of the all writs power squares with all of the high court's decisions invoking it is an entirely different matter...

...posted by ⊥ 10:05 AM ⊥ #

Rules Amendments

If your practice involves probate matters, you may wish to check out the amended probate rules adopted yesterday by the Florida Supreme Court.

...posted by ⊥ 9:54 AM ⊥ #

Thursday, September 29, 2005

Supreme Watchlist

Florida courtwatchers may note that, once again, one of our own remains on some short lists (like this one) as a possible nominee to replace U.S. Supreme Court Justice Sandra Day O'Connor:

Florida Supreme Court Justice Raoul G. Cantero, III

...posted by ⊥ 12:56 PM ⊥ #

Congratulations

Our federal judiciary has a new chief justice. Congratulations, Chief Justice Roberts.

...posted by ⊥ 11:45 AM ⊥ #

Third District: Street Performers Ban Unconstitutional

Yesterday, the Third District released this important decision that declared unconstitutional a city's law banning "fixed location" public street performances or art vending without a permit.

The ordinance at issue was adopted by the City of Miami Beach to curtail the number of street performers and sellers that the public and local businesses must encounter on the city's streets. The court determined that the ordinance was content neutral but that its significant breadth failed the time, place, and manner constraints imposed by the First Amendment.

To be clear, the court did not hold that the city could not adopt any ban on street performances and sales. The court just held that the existing ban was too broad.

...posted by ⊥ 8:14 AM ⊥ #

Fourth District: Hard Drive Discovery

This decision released yesterday by the Fourth District will be the subject of national attention.

The court reviewed an order that allowed the Broward County School Board, through an expert, to examine the entire contents of every computer hard drive in a high-school teacher's home. The board was administratively prosecuting the teacher for misconduct involving an alleged exchange of sexually explicit messages with a student.

The teacher argued that the blanket discovery order would compromise confidential, private, or privileged information, including irrelevant information and information he had a Fifth Amendment right not to disclose.

The Fourth District quashed the order.

The court deserves a great deal of credit for appreciating the breadth of the challenged discovery order. In what will become a common analogy in such cases, the court analogized unfettered access to entire hard drives to similar access to an opponent's filing cabinets:

Today, instead of filing cabinets filled with paper documents, computers store bytes of information in an "electronic filing cabinet." Information from that cabinet can be extracted, just as one would look in the filing cabinet for the correct file containing the information being sought. In fact, even more information can be extracted, such as what internet sites an individual might access as well as the time spent in internet chat rooms. In civil litigation, we have never heard of a discovery request which would simply ask a party litigant to produce its business or personal filing cabinets for inspection by its adversary to see if they contain any information useful to the litigation. Requests for production ask the party to produce copies of the relevant information in those filing cabinets for the adversary.

Ultimately, the court held that a blanket request to discover the entire contents of a hard drive cannot be the starting point for electronic discovery in a case. The case involved no evidence that the teacher had destroyed evidence or thwarted the board's discovery efforts.

Electronic discovery is certainly a hot topic in modern litigation, and for good reason: it's complicated. I do not know that parties have ever been entirely comfortable with the notion that locating and producing paper documents unfavorable to their adversary is often their adversary's responsibility, and I am fairly sure that any such discomfort is only magnified when the context involves electronic materials. After all, I know many lawyers who could not personally find electronic records on a computer under any circumstances, let alone records that have undergone deletion processes or that may exist only as electronic remnants.

Thorough searches of computer records for relevant, discoverable materials require expert attention. Arguably, the current rules of civil procedure do not account for this need. I suggest that, in the near future, they will.

...posted by ⊥ 8:03 AM ⊥ #

Wednesday, September 28, 2005

CLE Follow-Up: Oral Argument Mistakes

This past month's appellate teleconference CLE covered oral argument mistakes. I hosted the program, and a stellar panel of appellate specialists shared some lessons from OA foibles they had made and seen.

Bob Biasotti was one of our panelists, and he shared some insightful experiences. After we completed the teleconference, though, he mentioned an additional story, and I thought it was as good as any we heard that day. Here it is, advertently paraphrased and with some details left out as a courtesy to the parties involved:

Several years ago, Bob handled a pro bono child custody appeal at the Second District. In the briefs, the attorneys used descriptive labels to refer to the persons involved in the case -- the birth parent, the custodial parent, etc. Bob referred to his own client using more than one of these descriptive terms.

In those days, the Second District did not announce the panel in advance of the argument. Upon arriving at the oral argument, Bob learned that the panel would be presided by Judge Altenbernd, who earlier that year had published a law review article entitled "Quasi-Marital Children." Although the issue on appeal was substantially different from the issues addressed in Judge Altenbernd's article, the article coined the term "functional parent," and that descriptive term arguably applied to Bob's client.

At the argument, Bob used the "functional parent" term for the first time to describe his client. Opposing counsel, at the outset of his responsive argument, essentially told the court that Mr. Biasotti was making up new labels as he went along and did not even know how to refer to his own client. Opposing counsel specifically pointed to Bob's use of the term "functional parent," saying "I don't know where he got that."

Judge Altenbernd replied, "Perhaps he got it from my recent law review article on that subject."

Oops.

Bob points out the moral of the story: if an appellate judge has written a substantive article on a topic that is remotely close to the issue in your appeal, know what is in that article...

...posted by ⊥ 8:58 PM ⊥ #

Storytelling

If you recall this post, you may be glad to know Bob has agreed to let me post the story that got away. I'll try to post it later today.

...posted by ⊥ 8:30 AM ⊥ #

Fifth District: Certiorari

The importance of demonstrating irreparable harm in a certiorari petition is seen in this decision from the Fifth District.

...posted by ⊥ 8:18 AM ⊥ #

Fifth District: Land Use

The conflicts seen in this case from the Fifth District are a good example of what happens when one neighbor wishes to expand the use of its property and another neighbor objects. Perhaps the human foosball court was the final straw.

If you follow the case after remand to the trial court, you will probably get to see a good example of what happens when a neighbor builds something it did not have the right to build -- in this case, a dormitory.

...posted by ⊥ 8:00 AM ⊥ #

Fifth District: Res Judicata

If you're thinking of moving to dismiss a complaint based on res judicata, you might first check out this decision from the Fifth District, and the cases the court relies upon.

...posted by ⊥ 7:28 AM ⊥ #

Fourth District: Adoption

In this case, the Fourth District ultimately affirmed the decision terminating the parental rights of two parents whose child was adopted, but not before examining many of the legal requirements surrounding adoptions and terminations of parental rights.

...posted by ⊥ 7:13 AM ⊥ #

Tuesday, September 27, 2005

Third District: Interrogations 101

Suppose a police officer tells a suspect that his DNA was found on the victim's body, and as a result the suspect confesses. Also suppose the officer lied. Is the confession admissible?

Yes, as the Third District explained in this case.

...posted by ⊥ 9:15 AM ⊥ #

Third District: Disqualification

If a trial judge mistakenly grants a motion to recuse himself or herself, can the judge rehear the motion and correct the mistake? No. As the Third District explained in this decision, once a disqualification order is signed, even if the signature is inadvertent, the judge loses all jurisdiction in the case and cannot vacate that order.

...posted by ⊥ 9:06 AM ⊥ #

Fourth District: Equitable Estoppel

This case from the Fourth District concerns a wife's tort claims against her husband for causing her to contract a disease. The trial court dismissed her claims on statute of limitations grounds, but the appellate court reversed, holding that the wife's equitable estoppel argument could avoid the husband's limitations defense.

...posted by ⊥ 9:04 AM ⊥ #

Fourth District: Duty

Negligence fans will enjoy this recent decision on the duty element. The Fourth District held that an electric utility did not owe an injured person a duty of care related to overhead power lines under the circumstances of the case.

...posted by ⊥ 9:00 AM ⊥ #

Third District: Insureds' Attorney's Fees

In this case, the Third District weighed in on an issue over which the Fourth and Fifth Districts are divided: whether an insured is entitled to appellate attorney's fees where the insured loses an appeal but a new trial will follow. The Third District sided with the Fifth, holding that the insured is not entitled to attorney's fees for an appellate proceeding in which the insured loses, even if the insured may later prevail in the litigation.

...posted by ⊥ 8:57 AM ⊥ #

Questions, questions: Voluntary Searches

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

IS AN OTHERWISE UNTAINTED CONSENT TO SEARCH VOLUNTARY WHEN THE CONSENT IS GIVEN WHILE A LAW ENFORCEMENT OFFICER, WITHOUT JUSTIFICATION, RETAINS POSSESSION OF DEFENDANT'S DRIVER'S LICENSE?

...posted by ⊥ 8:54 AM ⊥ #

Third District: Insurance Defense

Insurance fans will be interested in this decision from the Third District. Addressing a matter of first impression, the court held that a policy giving an insurer an ambiguous right to defend an insured does not create a duty to defend. Rather, the insurer has the option to defend.

...posted by ⊥ 8:51 AM ⊥ #

Fourth District: Homestead

For an example of when a trial court can force the sale of homestead property to satisfy a financial obligation, check out this family law decision from the Fourth District.

...posted by ⊥ 8:48 AM ⊥ #

Monday, September 26, 2005

Second District: You've Been Smushed

Disciplinary proceedings aside, I do not recall any recent opinion that discredits an attorney's unprofessional closing arguments as much as this opinion does. The prosecutor's tactics obviously disturbed the Second District, which wrote:

We affirm. We write only to comment that, although not rising to the level of fundamental error, the prosecutor's closing argument in this case exceeded the bounds of proper argument. Again, we reiterate the admonition of Judge Blue in his specially concurring opinion in Luce v. State, 642 So. 2d 4 (Fla. 2d DCA 1994): "Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar."

If the prosecutor intends to continue to appear in criminal court, we suggest that he view continuing education videotapes on the subject of closing argument to review arguments that should not be made before a jury. If he persists in disregarding the rules of proper argument, he should expect appropriate sanctions. See Bell v. State, 723 So. 2d 896 (Fla. 2d DCA 1998) (Altenbernd, J., concurring).

Affirmed.

Ouch.

...posted by ⊥ 8:07 AM ⊥ #

Second District: Arbitration

Can a defendant waive the right to arbitrate a dispute if the defendant's attorney is not aware that an applicable arbitration agreement exists?

Yes, explained the Second District in this case.

...posted by ⊥ 7:58 AM ⊥ #

Second District: Rehearing Explained

Just a couple kudos to the Second District for doing what every appellate court should do when modifying a previously released opinion: explain what's changed. As seen in this case, the Second District provides explanations through an order from the clerk's office.

...posted by ⊥ 7:55 AM ⊥ #

First District: Jimmy Ryce, Collateral Relief

Quick: how does a defendant in a Jimmy Ryce proceeding raise an ineffective assistance of counsel claim?

If you're looking for a good way to raise such a claim, well, none exists -- something that should be on the radar of the state legislature, the Florida Supreme Court, and I suppose the rules committees. (I won't even start on the question of which one...)

If you're looking for any answer, the First District explains in this decision that, for now, habeas corpus petitions will have to do.

...posted by ⊥ 7:52 AM ⊥ #

Fifth District: Final Orders

Something about this case just cries out to be used in an appellate certification exam.

Let's see if you get the answer right.

A plaintiff sued a defendant for breach of contract, seeking about 30 thousand dollars. The defendant admitted it owed the plaintiff over six thousand dollars, and after a hearing on a partial summary judgment motion the trial court determined about five thousand was owed. The court then entered an order awarding that amount and including "let execution issue" language. The defendant paid the amount indicated and the plaintiff's counsel executed a satisfaction of judgment, which the defendant filed.

When the plaintiff attempted to litigate the case further, the defendant contended that a final judgment had been entered and the case was over. The trial judge agreed the order was a final judgment, although the court had intended it not to be. The plaintiff then filed a rule 1.540 motion to vacate the satisfaction and the final judgment on grounds of mistake. The trial court granted that motion and the defendant appealed.

What happened on appeal? Does this "mistake" qualify for relief under rule 1.540? Assume a significant amount of time had passed between the entry of judgment and the filing of the motion to vacate.

The answer is: the Fifth District reversed. The court expressly distinguished mistakes of law from mistakes of fact with respect to rule 1.540's "mistake" ground.

So watch out for final judgments. It may be advantageous early in a case to obtain a favorable order permitting execution to issue, but the price of that early victory may be unexpectedly high.

...posted by ⊥ 7:49 AM ⊥ #

Second District: Hearsay, Administrative Style

Those interested in administrative matters may wish to check out this decision from the Second District. The opinion concerned the use of hearsay in a UAC proceeding.

...posted by ⊥ 7:44 AM ⊥ #

First District: Rule 1.525

If you are keeping track of the developing case law regarding rule 1.525's 30-day service requirement for attorney's fees motions, check out this decision from the First District.

...posted by ⊥ 7:41 AM ⊥ #

Fifth District: Disqualification

Ethics fans should be interested in this decision from the Fifth District, which addressed an order disqualifying counsel in the context of a derivative action.

...posted by ⊥ 7:38 AM ⊥ #

Fifth District: Preservation of Error

This decision from the Fifth District could serve as a general reminder from appellate counsel to trial counsel: on appeal, we can only argue points that you raised below.

...posted by ⊥ 7:35 AM ⊥ #

Friday, September 23, 2005

Friday Florida Law Trivia Answer

As many know, Article I, section 23 of Florida's constitution sets forth the fundamental right of privacy. Despite the section's broad statement of each person's right to be "let alone," the section concludes by limiting the right in the context of public records.

So, you may have a right not to be forced to divulge some private aspect of your life to state officials, but if state officials know your secret and include it in a public record, you may have a tough time trying to block a citizen's effort to access that record, even if you believe public access to the document violates your privacy right.

...posted by ⊥ 4:44 PM ⊥ #

Friday Florida Law Trivia!

On the late is better than never theory, here's a Friday Florida Law Trivia question. Some will say this is too easy:

What fundamental right do all Floridians have that includes a rather large exception saying the right does not affect the public's ability to inspect public records?

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

...posted by ⊥ 11:03 AM ⊥ #

Appellate Procedure

Hey, appellate specialists. How short must your brief be for you to omit a summary of argument?

That's a trick question. A summary of argument is always required under Florida's rules and the Eleventh Circuit's rules.

This order from the Florida Supreme Court shows that our high court is paying attention to the summary requirement.

...posted by ⊥ 9:40 AM ⊥ #

Fourth District: Preservation of Error

Can you be required to preserve an alleged error prior to the release of the case establishing that the event in controversy actually is error? Well, yes, if the general principles predated that decision.

...posted by ⊥ 9:31 AM ⊥ #

Fourth District: Confrontation Clause

Criminal law fans will enjoy the extensive hearsay analysis provided by both sides of this divided opinion from the Fourth District.

Former law review editors may wonder about the inadvertent red-lining but of course would approve the edits.

...posted by ⊥ 9:24 AM ⊥ #

Fourth District: Dog Tales

In the last several months, many appellate practitioners have, in one way or another, happened upon this oral argument audio clip. It's an example of many things, including how to demonstrate a substantial lack of respect for a judicial panel.

If you've listened to the clip, you may recall how the appellant's attorney told the court he hoped it would find a way to distinguish the U.S. Supreme Court's decision in Illinois v. Caballes. Caballes held that consent was not necessary for a drug dog to sniff a parked vehicle during a traffic stop. No reasonable expectation of privacy existed.

I bring these matters up because of this recent decision from the Fourth District, where on remand from the U.S. Supreme Court the court reconsidered its pre-Caballes decision in a dog sniff case. The panel concluded that Caballes was distinguishable in that a sniff at the front door of a residence was materially different from a roadside car sniff. I don't suppose that distinction would have worked in the oral argument linked above.

As he did from the court's original decision, Judge Gross dissented. I suppose he could not resist the temptation to close his opinion in this way:

To adopt the majority’s view is to create a novel fourth amendment rule that the propriety of a dog sniff is analyzed differently based on the location of the dog, an approach that the Supreme Court has yet to adopt. In this case, affirming the motion to suppress is an example of the humble tail wagging the constitutional dog.

...posted by ⊥ 8:56 AM ⊥ #

Third District: Prohibition

Just a reminder here from the Third District to trial judges: when an agency is statutorily charged with deciding who is entitled to social services, a court cannot instead make the decision.

...posted by ⊥ 8:51 AM ⊥ #

Thursday, September 22, 2005

Gone Bloggo

You may be familiar with the "Future Lawyer," Rick Georges. His savvy website and columns have been educating lawyers on technology points for years. Now, Rick's gone bloggo, and his Futurelawyer site has taken on a blog format. Great job, Rick!

(My apologies to George Harrison fans...)

...posted by ⊥ 11:22 AM ⊥ #

5DCA: You Too Can View

Some proper respects are due the Fifth District, which this month began broadcasting its oral arguments live on the Internet. I caught part of yesterday's arguments and was glad to see a picture-in-picture format that shows both the attorney arguing and the panel. It also appears the court will archive its arguments and make the archives available online.

Well done. And thanks to Shannon for pointing this out.

...posted by ⊥ 8:08 AM ⊥ #

Schiavo News: DCF Rejection Affirmed

It's been a while since I posted anything regarding the Terri Schiavo saga. At some point, I should update the information on this site. I'll get there.

Meanwhile, I can comment a bit on this opinion, which will likely be the final judicial opinion directly concerning Terri Schiavo. In short, the Second District explained why it affirmed Judge Greer's order preventing the Department of Children and Families from taking Terri into protective custody to reinsert her feeding tube and investigate last-minute "abuse" allegations.

DCF is the state agency charged with protecting children, the disabled, and other vulnerable Floridians. Recall that in Terri's final weeks, DCF attempted to intervene in Terri's case. The agency claimed it had received numerous tips or complaints that Terri had been abused by Michael and that it needed to protect Terri while investigating the abuse allegations.

Judge Greer denied DCF's requests to intervene, and DCF immediately appealed that ruling to the Second District. After expedited briefing, the appellate court issued a brief order affirming Judge Greer's decision and explaining that a written opinion would follow.

The latest opinion is the court's explanation for its decision.

The court essentially reached two conclusions. First, the court determined that compliance with a lawfully entered guardianship court order regarding Terri cannot constitute neglect or abuse. So, to the extent Michael was allegedly abusing Terri by complying with Judge Greer's directives, Michael was not neglecting or abusing Terri.

Second, to the extent other "abuse" was at issue and DCF claimed it needed to take Terri into custody to investigate those claims, the court ruled that DCF never provided any reasonable explanation for why it supposedly needed Terri alive to conduct that investigation. Therefore, Judge Greer properly rejected DCF's intervention efforts.

...posted by ⊥ 8:03 AM ⊥ #

Second District: Double Jeopardy

Do Florida's Rules of Juvenile Procedure permit a trial court to reconsider a decision that the state failed to prove a charged offense? No, said the Second District in this case.

...posted by ⊥ 7:53 AM ⊥ #

Wednesday, September 21, 2005

CLE Post-Script

Many thanks to those who participated in and those who joined yesterday's CLE call. From what I've heard, a splendid time was had by all.

After it was over, Bob recalled a hysterical experience he had in a Second District argument -- one that fully rivals Jane's cookbook story.

Perhaps Bob'll let me post the story here.

And perhaps you'd like to send him an e-mail asking him to let me do it...

...posted by ⊥ 6:13 AM ⊥ #

Second District: Collateral Estoppel

When Judge Canady was appointed to the Second District, I congratulated him and wished him well. He responded with a gracious thanks and told me he was looking forward to some quiet, thoughtful time as a judge with the court.

He sure seems to have found time to think.

In this decision, Judge Canady offers a thorough, interesting analysis of whether the results of an administrative disciplinary proceeding can collaterally estop the state in a subsequent criminal prosecution. The case involved an elementary school principal charged with sexual offenses involving students. At his trial, the state presented similar fact evidence involving a particular child, despite the fact that a prior disciplinary proceeding concluded that no encounters between the principal and that child ever occurred.

Based on the lack of mutuality of parties in the two proceedings, and their different natures, the court concluded that collateral estoppel had no application in the criminal proceeding.

...posted by ⊥ 6:03 AM ⊥ #

Hey, Legislature!

I know the legislature pays attention to judicial suggestions regarding the need for new or changed laws. Perhaps this suggestion from Judge Villanti will influence some regulation of no-knock entries:

To be valid, a no-knock entry must be based upon the particularized exigent circumstances described in the majority opinion. The supervisor directing the execution of the warrant must have almost swami-like powers to get it right, and the supervisor's decision is only as good as the information he is provided. Here, the supervisor's decision to make a no-knock entry was flawed because of his reliance upon incorrect information.

Under current case law, the time frame separating a "good" knock-and-announce case from a "bad" one, as this case demonstrates, can be as little as a few seconds. The majority correctly point to record facts mandating suppression because controlling legal authority holds that due notice was lacking and insufficient officer safety grounds existed to excuse such notice. Perhaps it is time for the legislature to revisit the area of knock and announce with the specific goal of giving officers greater guidelines in an area that is presently defined on only a case-by-case basis.

...posted by ⊥ 5:55 AM ⊥ #

First District: 57.105 Fees Revisited

You may recall this post from last month, where I noted how this decision from the First District strangely seemed to affirm a section 57.105 attorney's fees award based on the existence of controlling authority from another district. The fee issue should turn not on the existence of authority from another district but on whether the sanctioned party made a good faith argument the First District should reach a different result.

The court has now released this clarification of its decision. The court explained that no transcript of the arguments presented below existed, that the sanctioned party's initial brief made no reference to a good faith argument for a change in the law, and that while the reply brief improperly contained such an argument for the first time, the court rejected it as insufficient to show an abuse of discretion.

...posted by ⊥ 5:52 AM ⊥ #

Monday, September 19, 2005

Appellate CLE Teleconference

Appellate folks will hopefully enjoy (and join) tomorrow's installment of the Appellate Practice Section's monthly teleconference CLE program. The topic will be oral arguments, with a focus on mistakes we've made and seen.

After all, learning from your own mistakes is important, but learning from others' mistakes is, well, more fun. And less agonizing.

Some very accomplished appellate specialists will offer us their favorite "lessons learned":

Steve Brannock
Jane Walsh
Tracy Carlin
Bob Biasotti
Lou Hubener
Retired Judge John Blue

and perhaps a surprise speaker or two. I'll be hosting the program, and I'm sure I can come up with a mistake or two of my own. Well, maybe more.

The program starts at 12:10 tomorrow. You can find the call-in information on the section's web site or by clicking here. Attendees will receive an hour of CLE credit.

...posted by ⊥ 7:40 AM ⊥ #

Amended Answer

I was stuck in traffic around the Miami airport on Friday when I posted the trivia question answer from my phone. I'm tempted to edit the answer to fix the missing period, but -- nah. As much as I abhor typos, that one seems almost understandable.

By the way, I don't endorse blogging-while-driving. Especially in Miami.

Getting back to the answer, Justices England, Hatchett, Overton, and Sundberg were appointed to the Florida Supreme Court in the mid-1970s. They were young, very bright, and eager to move the court past the dark days that preceded their time on the state's supreme bench. I will not dwell on the specifics of that earlier time, but for those interested I will note that this Martin Dyckman column from 2002 recounts some of the positives surrounding the transition, and this 1975 decision by the court recounts some of the negatives that fueled the need for change. Careful readers will note Dyckman's presence on the scene 30 years ago, something not mentioned in the 2002 column.

The court today is quite different than it was 30 years ago.

The court's jurisdiction has been narrowed to permit the court's involvement only in cases of statewide importance. My appellate colleagues from other states are often amazed that Florida's supreme court does not have general "certiorari" jurisdiction to review any district court decision.

Justices are no longer elected by the public at large. Instead, for each vacancy, a commission nominates highly qualified candidates and the governor chooses a new justice from among them. This eliminates the danger of a justice being "a politician first, and a justice second," to borrow the words of the previously linked decision.

Also, the state constitution expressly lowers the standard used to disqualify judges below the standard used in the 1970's. Article V, section 12(c)(1) now provides: "Malafides, scienter or moral turpitude on the part of a justice or judge shall not be required for removal from office of a justice or judge whose conduct demonstrates a present unfitness to hold office."

So, to the young bucks who helped right the course of our lead ship, thanks.

...posted by ⊥ 7:05 AM ⊥ #

Friday, September 16, 2005

Friday Florida Trivia Answer

I'm posting this with my Treo while in traffic, so this is a brief answer The young bucks were Justices England, Hatchett, Overton, and Sundberg.

...posted by ⊥ 5:34 PM ⊥ #

Friday Florida Law Trivia!

I'm out of the office today, down in Miami for a firm function. Our program is about to start, and I was wondering aloud what trivia question to post. A friend who happens to be a former Florida Supreme Court law clerk suggested something quite good:

What four justices were together known as the "young bucks"?

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

...posted by ⊥ 9:05 AM ⊥ #

Thursday, September 15, 2005

Hey, Legislature!

This 9-page opinion issued yesterday by the Second District would probably have been a PCA were it not for one tiny concern: the case highlights a potential need for statutory regulation of so-called "litigation loans."

So if you're an ambitious state legislator looking to make a difference, consider this case and its message. I'll give a thumbnail sketch.

Victoria Fausone was struck by a dump truck while riding a bicycle. As she pursued a claim, she obtained a series of "litigation loans" from various sources. The loans were not truly loans since they were without recourse -- Fausone was not required to repay the amount paid to her if she did not recover on her claim. However, if she did recover, she was required to pay a figure that continued to escalate as time passed. The escalation rate far exceeded the rate an ordinary lender could lawfully charge for interest. Fausone eventually consolidated her "loans" through an arrangement with U.S. Claims, which in 2001 paid her $30,000.

When Fausone's lawsuit ultimately settled for over $200,000, she was contractually obligated to pay U.S. Claims $50,937. She refused to pay and instead filed a suit to declare the arrangement unconscionable and unenforceable. That suit was stayed while the parties arbitrated their dispute, as required by their arrangement.

The arbitrator awarded U.S. Claims $72,117 -- the amount then due under the escalation provisions. The trial court then confirmed the award, and while Fausone had moved to vacate the award, for some reason she withdrew her motion prior to the confirmation. She then appealed the confirmation, and a reluctant Second District affirmed. The court noted that Fausone's obligation had grown to at least $102,007 and that she owed U.S. Claims attorney's fees for the litigation.

The court did not suggest that the result would have been different had Fausone directly pursued an effort to vacate the award. The court detailed the case's factual background to encourage the legislature to consider regulating this area. The court was sensitive to the monetary needs of injured persons who may not see proceeds from a suit for years and to its own lack of authority to regulate "litigation loan" agreements. The court concluded that "the legislature might wish to examine this industry to determine whether Florida's citizens are in need of any statutory protection."

Public policy concerns aside, the case is also noteworthy for its brief mention of Fausone's representation, or lack thereof:

It is noteworthy that Ms. Fausone has not been assisted by a lawyer in the arbitration proceeding, in the action for declaratory relief, or in this appeal. Throughout these proceedings, the documents reflect that she has been assisted by a nonlawyer, Joyce L. Potkay of "Cheaper than a Lawyer" in Holiday, Florida. Ms. Potkay may be cheaper than a lawyer, but she certainly has been no substitute for one.

...posted by ⊥ 8:20 AM ⊥ #

Second District: Proposed Judgments

For a thorough review on the recent spate of cases about the circumstances under which a trial court can enter, verbatim, a party's proposed judgment, check out this decision from the Second District.

...posted by ⊥ 8:09 AM ⊥ #

First District: Rule 1.442

The First District observed in this case that rule 1.442's apportionment requirement required an irrational apportionment of liability among two equally liable defendants. The court urged the Florida Supreme Court to revisit the rule.

...posted by ⊥ 8:00 AM ⊥ #

Wednesday, September 14, 2005

Graffiti BOLO

If you own property in Martin County, be on the lookout for graffiti on your property. If code enforcement officials find it, they'll give you 10 days to clean it up, or they'll clean it up themselves and send you the bill.

Read about it in this story in today's Sun-Sentinel.

...posted by ⊥ 8:18 AM ⊥ #

Gambling Update

If you're looking for an update on the South Florida slots situation, and particularly the efforts in Tallahassee to pass legislation on the matter, check out this story in today's News-Press.

...posted by ⊥ 8:14 AM ⊥ #

Fourth District: Intertwined Claims

Quick quiz for appellate folks: does an appellate court review de novo or for an abuse of discretion a trial court's decision, for purposes of an attorney's fees award, that a plaintiff's claims are either intertwined or separate and distinct?

If you answered abuse of discretion, this decision from the Fourth District will set you straight.

...posted by ⊥ 8:10 AM ⊥ #

Fourth District: Time of the Essence

Transactional folks, this decision from the Fourth District reminds us that time can become of the essence even if the parties' contract does not contain that language.

If one party is not in default and the other is in default, the non-defaulting party can give notice that time is now of the essence and performance is due within a stated time, so long as the time allowed is a reasonable amount.

...posted by ⊥ 8:05 AM ⊥ #

Fifth District: Work Product

If you list your investigators as trial witnesses, have you negated the work product privilege that ordinarily attaches to their work? Yes, said the Fifth District in this case.

What if you do that, and the trial court denies your effort to protect the investigators from being deposed -- can you then amend your witness list to remove the investigators and thereby restore the work product protection? Yes again, said the Fifth District in the same decision.

Interstingly, the decision includes no discussion of waiver and whether work product protection, once lost, is lost forever. Perhaps the parties did not argue such issues.

...posted by ⊥ 8:03 AM ⊥ #

Third District: Reservations of Rights

Insurance fans may wish to check out this decision. The facts are a bit involved. Here's the nutshell version:

The insured requested coverage and a defense in a personal injury case. In a letter, the insurer reserved its rights to deny coverage based on possible defenses but offered to provide the insured a defense. The insured responded with a letter taking the position the insurer had denied coverage and declaring that the insured would do what it must to reduce its exposure. The insurer then notified the insured that the reservation of rights was not a denial of coverage and that the insurer was willing to provide the insured with a defense.

The insured then settled the claim against it for $1 million and proceeded to sue the insurer for bad faith. The trial court granted the insurer summary judgment under the policy's cooperation clause based on the insured's settlement.

The Third District reversed. The court held that the reservation of rights entitled the insured to defend itself, without breaching the cooperation clause, if the insured actually rejected the insurer's offer to defend under a reservation of rights. The court concluded that a question of fact existed on that issue.

Judge Schwartz authored a pithy dissent and would have held that the insured clearly breached the cooperation clause.

...posted by ⊥ 8:00 AM ⊥ #

Third District: Tax Sales

If you're interested in the competing priorities of liens that survive a tax sale, including whether an injunction favoring a government agency qualifies as a government lien, check out this decision from the Third District.

...posted by ⊥ 7:57 AM ⊥ #

Third District: 57.105 Fees

The standard of review for an order granting section 57.105 fees is abuse of discretion, but reversals do happen, on occasion. Take this case from the Third District as an example.

...posted by ⊥ 7:55 AM ⊥ #

Third District: Goverment Employee Subpoenas

Here is an example of an appropriate use of a writ of prohibition.

The Third District prohibited a circuit court from requiring three state agency employees to comply with a subpoena duces tecum. Apparently, the respondent wanted the state employees to testify regarding, and bring documents supporting, the agency's decision to deny a person services.

...posted by ⊥ 7:51 AM ⊥ #

Fourth District: Arbitration

Arbitration fans may recall the Fourth District's earlier release of this decision, which the court released in amended form last week.

The court offered no explanation of what it amended, and in glancing over the decision, I didn't pick up the changes. (There are some -- the majority's decision is a bit longer.)

The case remains noteworthy for its ultimate conclusion: that an alternative dispute resolution provision in a construction contract "went down with the whole" when one party opted to terminate the entire agreement. As the majority explained:

The contract’s ADR system was like the rifle shot before the nuclear bomb. If only rifles were being fired, final completion was still possible. But the owner chose the nuclear option of total war rather than the contract’s system of less drastic, alternative resolution. Once the nuclear bomb was dropped, any resolution was not for this contract’s ADR meant to avoid total war.

Judge Gunther dissented.

...posted by ⊥ 7:49 AM ⊥ #

Monday, September 12, 2005

Third District: YPCA

Ok, I made that up. There's no such thing as a YPCA, though such a term might be applicable to decisions like this one from the Third District. The decision was essentially a PCA with a very brief explanation.

The entire opinion reads:

After careful review we can find no reason to reverse the trial court's order.

That the appellant was pro se probably explains why the court chose to say anything at all.

...posted by ⊥ 8:00 AM ⊥ &nb