Appellate Law
Abstract Appeal 
Devoted to Florida law and the 11th U.S. Circuit Court of Appeals based in Atlanta. Noteworthy decisions by Florida's appellate courts and the 11th Circuit.
Post Frequency: 1/day Last Entry: August 06, 2009 at 09:45:00 Recent Entries: 284
By Matt Conigliaro, Esq.
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Fifth District Appointment
Posted on August 06, 2009Congratulations to Indialantic's Judge Bruce Jacobus. Yesterday, Governor Crist appointed Judge Jacobus to the Fifth District. Judge Jacobus spent the last 14 years as a judge with the 18th Judicial Circuit. He takes the seat vacated when Judge Pleus retired...
Fifth District: Grandparental Custody
Posted on August 06, 2009Can grandparents obtain primary residential responsibility over their grandchildren, better known as custody, without adopting them? Yes, explained the Fifth District in this decision, which involved a mother who consented to the placement and a father whose identity was allegedly unknown.
Fifth District: Great Way To Lose, Treating Physician Discovery
Posted on August 06, 2009I recently posted on a Fifth District decision that seemed a bad way to win. Well, here we have a decision from the same court that seems like a great way to lose. The case involved a certiorari petition seeking relief from a trial court's order denying discovery...
Fifth District: Entrapment
Posted on August 06, 2009If you are interested in entrapment, take a look at this decision from the Fifth District. It is rather short but gives a good overview of the distinction between the objective entrapment test, which focuses on how the government official's conduct would affect a reasonable person, and the subjective entrapment test, which focuses on how the government official's conduct actually affected the
Back In Blog
Posted on August 06, 2009Whew. A couple of hard weeks of work just flew by. Thanks to the many who sent me comments on that last post. They were both entertaining and insightful.
St. Pete Times: HERE'S THE INFORMATION YOU ARE NOT SUPPOSED TO LEARN
Posted on July 22, 2009My local paper, the St. Petersburg Times, has a notable story today on the front page of the local section. Using bullet points, it describes what a jury will not be told in a local trial that started yesterday. The story, which you can read online here, concerns a murder trial...
Fourth District: Insurance
Posted on July 22, 2009Insurance fans may be very interested in this decision. The Fourth District reversed an order enforcing a settlement, holding that an insurer's response to a settlement demand constituted a counteroffer, not an acceptance, because the response contained a release that included objectionable, not "usual," terms...
Fourth District: Hearsay
Posted on July 22, 2009Under this decision from the Fourth District, you can add certificates of non-licensure from the Construction Industry Licensing Board to the list of non-testimonial hearsay items that can be admitted against a criminal defendant consistent with Crawford v...
Fourth District: PSIs
Posted on July 22, 2009To impose a habitual offender sentence, Florida law requires a pre-sentence investigation. That requirement is said to amount to a right to a PSI before being sentenced as a habitual offender. Can counsel waive that right, or is it the sort of right only the individual should be able to waive? In this decision, the Fourth District explained that counsel can waive the right to a PSI...
Ineffective Assistance -- Winning In The Worst Way?
Posted on July 17, 2009Appellate friends, is there such a thing as a bad win? If there is, then this decision released earlier today by the Fifth District might be an example. A criminal defendant appealed his convictions for tampering with physical evidence and resisting arrest without violence...
Fifth District: Forum Selection Clauses
Posted on July 17, 2009A contract includes this language: "The parties consent to the exclusive jurisdiction of the courts located in New York City, USA." Is that forum selection provision permissive or mandatory? Mandatory, as Fifth District explained in this decision.
Fifth District: Final Contractor's Affidavit
Posted on July 17, 2009Construction fans should be interested in this decision. The Fifth District explained that while providing a final payment affidavit is a condition precedent to a statutory lien foreclosure claim, that condition can be waived where the defendant does not raise its failure with particularity in the answer.
Fifth District: Legal Duties and Ultimate Facts
Posted on July 17, 2009Does a police officer executing a search warrant for a home owe a duty of care to an occupant of the residence? Considering that a police officer's actions create a duty of care where the officer's conduct creates a foreseeable zone of risk to an individual or group, the question could be put in these terms: does a police officer create a foreseeable zone of risk to the occupants of a home by
Fifth District: Mandamus, Disqualification
Posted on July 17, 2009This decision from the Fifth District shows that a petition for writ of mandamus can be used to compel the reassignment of trial judges where the 30-day period to rule on a disqualification motion has expired without a ruling.
Fifth District: Fighting Words
Posted on July 17, 2009Concerned that a lesser standard could cross lines drawn by the First Amendment's free speech clause, the Fifth District in this case reversed a juvenile's disorderly conduct conviction because the juvenile's loud, profane words did not incite others to breach the peace or present an imminent danger to others.
Fifth District: Violence
Posted on July 17, 2009When is exhibitionist behavior considered sexual violence? When applying Florida's Jimmy Ryce Act to keep sexually violent persons involuntarily committed, as the Fifth District explained in this decision.
Fifth District: Family Law
Posted on July 17, 2009Family law practitioners may be interested in this reminder from the Fifth District that rule 12.490(f) requires courts to hold hearings on timely filed exceptions to magistrate reports.
Fifth District: Insurance and Attorney's Fees
Posted on July 14, 2009This decision really caught my eye. The Fifth District denied an attorney's fees motion made by an insured in a certiorari proceeding. The insured lost the proceeding on grounds any error would be remediable on plenary appeal. In that context, the denial of fees was not remarkable -- a few years ago, the state supreme court confirmed that insureds must prevail on appeal to recover appellate
Fifth District: Default Judgments
Posted on July 14, 2009Part of me constantly fears overlooked deadlines. That same part is always relieved to see decisions setting aside default judgments. This decision from the Fifth District does so, and it points out that reasonable misunderstandings originating from clerical errors can establish excusable neglect...
Fifth District: Visitation
Posted on July 14, 2009Family law practitioners may be interested in this opinion. The Fifth District determined that the trial court improperly delegated its decisionmaking authority regarding visitation to one party's expert. The appellate court seemed more than a bit concerned that, without findings to support the decision, the final judgment forbid the former husband's current wife from being in the children's
Florida Supreme Court: Appointment Time (continued)
Posted on July 07, 2009Before delving into other recent decisions, I would like to return to last Thursday's mandamus decision by the Florida Supreme Court. The court faced a petition for a writ of mandamus filed by retired Judge Robert Pleus, formerly of the Fifth District...
Florida Supreme Court: Appointment Time
Posted on July 02, 2009Today, the Florida Supreme Court issued this decision, which holds that Governor Crist must select district court of appeal judges within 60 days of receiving a list of nominees from the Judicial Nominating Commission. The court granted a petition by Senior Judge Robert Pleus to require the Governor to select a Fifth District judge from a list originally submitted to him on November 6, 2008...
Fifth District: Serious About Subject Matter Jurisdiction
Posted on June 04, 2009Florida's appellate courts can and should raise the issue of subject matter jurisdiction when the parties ignore or overlook it. Recently, the Fifth District has issued two decisions that, sua sponte, delve into that area. One is rather simple. The other is simply significant...
Fourth District: Arbitration, Part II
Posted on June 04, 2009In the second of two arbitration decisions that the Fourth District released last week, available here, a divided court affirmed a waiver determination. The majority opinion is just over four pages long and includes three footnotes that were nearly as long as the opinion's text...
Fourth District: Arbitration, Part I
Posted on June 04, 2009In the first of two arbitration decisions released last week by the Fourth District, the court held that a "mere attempt to settle a dispute outside the courtroom" does not establish a waiver of the right to arbitrate. The decision is available here.
Fifth District: Additur
Posted on June 01, 2009When should a trial court order a new trial on liability -- not just damages -- after a party adversely affected by a potential additur objects to increasing the jury's verdict? In this decision, the Fifth District explains that the answer is when liability was "hotly contested...
Fourth District: Hey, Criminal Rules Committee
Posted on June 01, 2009Now that the supreme court has dealt with complex case management, the Fourth District would apparently like the high court and the criminal rules committee to turn their rulemaking attention to something that is supposed to be less complicated: post-conviction relief...
Florida Supreme Court: It's Complicated
Posted on June 01, 2009In this decision, the Florida Supreme Court accepted, with modifications, the recommendations of a complex litigation task force and adopted a new rule of civil procedure to address complex civil case management. The court did so over the unanimous objection of all members of the civil rules committee...
Certified Conflict: Standing Your Ground
Posted on June 01, 2009In 2005, Florida adopted this law, which codified and expanded the common law's castle doctrine to include homes and vehicles and eliminated the duty to retreat from places where a person has a right to be. Some may recall the claims, including those made by major media such as the Washington Post, that Florida was wrongly codifying the ways of the Wild West and making more work for morticians.
Fourth District: Attorney-Client Privilege
Posted on June 01, 2009This decision from the Fourth District shows that where a client testifies against the client's attorney at a deposition in a malpractice action, that testimony is not protected by the attorney-client privilege. The court denied a certiorari petition seeking to prevent discovery of such a deposition.
Fifth District: Constitutional Constraints
Posted on June 01, 2009In a provision with a lengthy history, the Orange County charter authorizes a local board to review citizen complaints against the county sheriff's deputies and employees. In this thoughtful decision, the Fifth District examined that provision, its place in the county's charter-based government, and the conflicts between the charter's provisions and state statutes governing complaints regarding
Fifth District: Communication Breakdown
Posted on June 01, 2009The Fifth District would appreciate more communication between counties that have charges pending against a single defendant. In this case, the court concluded a speedy trial violation occurred, requiring charges to be dismissed, after Indian River County would not transfer the defendant to Orange County for trial.
Fourth District: Appealability
Posted on June 01, 2009Just a reminder here from the Fourth District that a notice of appeal does not permit an appellate court to review acts committed by the lower court after the appellant filed the notice.
Fifth District: Amendment 7
Posted on June 01, 2009The saga of article X, section 25, continues. In this decision, the Fifth District held that the constitutional provision still known by its 2004 ballot number supersedes the work product privilege with respect to fact work product, though not opinion work product.
Back In Blog
Posted on June 01, 2009A few things kept me away from here over the past two weeks. I completed three briefs, worked on several more, had an oral argument in Miami, took a quick trip to Baltimore, spoke at this function in Orlando, and, by reading this book, waded into a tremendously interesting area that will probably occupy me for some time to come...
Second District: Certiorari and Discovery Denials
Posted on May 14, 2009Civil practitioners, add this decision from the Second District to the increasing pile of modern appellate cases that utilize certiorari to review and quash a trial court order denying discovery. Certiorari in the discovery context has long centered on "cat out of the bag" discovery orders that require discovery to be exchanged...
Second District: School Employees
Posted on May 14, 2009Government employment can lead to some legal peculiarities, such as how employees may receive immunity from the use of statements made under threat of adverse employment action for the failure to answer questions, thus leading to an employee's obligation to answer without Fifth Amendment protection...
Second District: Sentencing
Posted on May 14, 2009Sentencing fans -- you're out there, I know -- can have much fun with this decision from the Second District. The court spends some time on a subject it knows much about (whether a sentence is an illegal one under rule 3.800(a)), a subject it newly encounters (whether an illegal but fully served state sentence's effect on a federal sentence can be corrected by a state court habeas corpus
Supreme Path on Children's Behalf
Posted on May 08, 2009This week proved to be a briefwriting bonanza for me, and the fun kept me away from here and discussing this week's big news out of Florida -- the U.S. Supreme Court's order granting review of the First District's decisions in Graham v. State and Sullivan v...
Law Day
Posted on May 01, 2009Today is Law Day. To help promote it, I had the good fortune to speak last week to two history classes at a local high school. I always enjoy speaking with students about the law -- they pay attention and always have terrifically interesting questions about how the law can impact their lives...
Untimely
Posted on May 01, 2009If you follow national legal news, you probably learned from items like this one about Mark Levy's apparent suicide yesterday morning. Mark headed up the appellate group at Kilpatrick Stockton in Washington D.C. I did not know Mark well but I was part of the planning committee that created the first two installments of the Eleventh Circuit Appellate Practice Institute, and Mark joined us for the
Third District: Oral Summary Judgment Motions
Posted on April 30, 2009Observing that it goes without saying that one cannot serve an oral motion for summary judgment, and of course saying it, the Third District quashed a circuit court's appellate decision affirming an order granting such a motion. You can read the second-tier certiorari decision here.
Eleventh Circuit: The Reality of Virtual Contact
Posted on April 30, 2009The federal sentencing guidelines include a sentence enhancement where a defendant's offense involves sexual contact. In this case, the offense involved a self-stimulating act conducted in front of an Internet camera being viewed by an undercover police officer whom the defendant believed to be a minor...
Third District: A Disturbed Affirmance, Names To Follow
Posted on April 28, 2009Prosecutors, take note: "harmless" misconduct may still get you named in the Southern Reporter. The Third District's opinion and Judge Ramirez's concurring opinion in this case reflect serious concerns with the prosecutor's closing arguments in the trial below...
Third District: Sealing Records
Posted on April 28, 2009The Third Distict would like to make a point about sealing records: if you wish to file something under seal, your motion should utilize the standards set forth in Barron v. Florida Freedom Newspapers, Inc. The court made this point publicly by publishing this order, which denied without prejudice an appellant's motion for leave to file an appendix under seal...
Third District: Class Actions
Posted on April 28, 2009Class certification fans will surely be interested in this divided decision by the Third District. The court reversed a certification order involving overcharges made by a finance company. The majority opinion -- actually, both majority opinions -- concluded that the lack of uniform, knowing conduct by the defendant made the putative representative's claims insufficiently typical of the class's
Fifth District: Contracts
Posted on April 28, 2009Contracts fans may be interested in this decision from the Fifth District. The case involved an attempt to bind municipalities to an agreement that their governing boards never approved. Overruling a trial court that ordered the purported agreement enforced, the appellate court explained why the statute of frauds could not be overcome by promissory estoppel or partial performance.
Fourth District: Appellate Traps, Pro Se Filings
Posted on April 27, 2009Appellate practice can seem so simple, right? Draft a brief. Deliver an oral argument. Try to explain why a per curiam affirmance is an injustice.... The truth is that appellate practitioners tend to live in serious fear of procedural slip-ups. It can happen to anyone, and the only protection from a misstep (other than an understanding judiciary) is a healthy vigilance that somehow avoids
Judge Warner: Hey Rules Committees...
Posted on April 27, 2009In a concurrence to this decision, Judge Warner recommends that the Criminal Procedure and Appellate Rules Committees amend rules 3.800(a) and 9.141 to set forth the record attachments requirement imposed by case law. In a time of budgetary crisis, where workload efficiencies must be maximized, her words ring out: Substantial time and expense are wasted in the courts because the rules of
Fourth District: Work Product
Posted on April 27, 2009The Fourth District recently released an important decision concerning work product, and you can read it here. In the case, a health maintenance organization petitioned for a writ of certiorari. The HMO sought to block the compelled production of documents created in response to a regulatory agency's inquiries about how the petitioner set certain rates...
Unconstitutional Ordinance
Posted on April 24, 2009This story from the Palm Beach Post caught my attention. It explains that a circuit judge has declared unconstitutional a Riviera Beach ordinance prohibiting the baggy pants-look seen today. Apparently the ordinance prohibits persons from publicly wearing pants below the waist and thereby exposing skin or undergarments...
Fourth District: Appellate Jurisdiction and Interlocutory Appeals
Posted on April 22, 2009In this decision, the Fourth District reminds us that, in a non-final appeal, the appellate court's jurisdiction is limited and does not extend to all orders entered in the case below. This particular appeal involved an injunction, and in reviewing the appealed order the court declined to review a prior order sustaining the appellee's objections to a discovery request...
Fourth District: Rule 1.442 and Proposals for Settlement
Posted on April 22, 2009Can the parties agree to extend the deadline for responding to a proposal for settlement? In this case, the Fourth District answered that question by holding that an offer made and accepted after an agreed-upon extension of time constitutes a binding settlement.
Fourth District: Computer Software and Taxes
Posted on April 22, 2009Does computer software constitute tangible personal property subject to taxation by a county? No, held the Fourth District in this interesting tax case. To constitute tangible personal property for Florida tax purposes, the chief value of the property must be intrinsic to the article itself...
Fourth District: Prejudgment Interest
Posted on April 22, 2009Those who litigate commercial cases may be interested in this prejudgment interest decision by the Fourth District. The plaintiff successfully sued the defendant under the Lanham Act and Florida's false advertising statutes. The trial court awarded the plaintiff $93,306 in lost profits, as well as prejudgment interest on that amount...
Fourth District: Premises Liability
Posted on April 22, 2009Premises liability fans will be interested in this decision, where the Fourth District answered the question of whether an unsecured mat with a pattern and color different from the underlying carpet can constitute an open and obvious condition so as to defeat a failure to warn claim...
Fourth District: Trade Secrets and Injunctions
Posted on April 22, 2009Intellectual property fans will no doubt agree that trade secrets decisions are not common in Florida. This decision is thus a rarity. The Fourth District did not plow any new legal ground, but it did detail the successful trade secrets claim at issue in the case and discuss important legal concepts such as how the lack of a confidentiality agreement between a business and its employees does not
Fifth District: Anders
Posted on April 22, 2009If you are incarcerated, convicted, questioning your sentence, and faced with an Anders brief by your appellate counsel, you might be interested in this decision by the en banc Fifth District. In a pithy few lines of text, the court receded from its former view and agreed with two of its sister courts that a criminal defendant may file a pro se rule 3...
Fourth District: Material Concerns
Posted on April 20, 2009Contract fans might be interested in this decision from the Fourth District. Condo fans, too. The case concerned a common scene in the current condominium real estate market: a buyer seeking to avoid a contract to purchase a condominium unit. As required by this statute, the contract at issue provided the buyer with an option to cancel the agreement if the developer materially altered or
Third District: Appellate Jurisdiction, Part II
Posted on April 17, 2009Arbitration fans may wonder: Is a nonfinal order confirming an arbitration award appealable? If you read this portion of the Florida Arbitration Act, you might think the answer is yes. But if you read this decision by the Third District, you will be reminded that the answer is no...
Second District: Appellate Jurisdiction, Part I
Posted on April 17, 2009Those involved with termination of parental rights and dependency cases may be interested in this decision from the Second District. The case involved an appeal from a placement order entered after the court found a child dependent but before the court concluded the proceeding...
Questions, question: Government Duties
Posted on April 16, 2009If you know what a large fan I am of duty cases in the negligence context, then you will appreciate my interest in this decision issued yesterday by the Second District. The case involves a substance abuse counselor formerly licensed by the Department of Children and Families and two children the counselor abused...
Eleventh Circuit: Insurance
Posted on April 16, 2009In the context of commercial motor vehicle insurance coverage and registration, this decision from the Eleventh Circuit points out the distinction between a policy's cancellation and its expiration. The former requires 30 days' written notice; the latter does not.
Real Problems With Virtual Authorities
Posted on April 14, 2009In the last several years, Florida's appellate courts have begun to utilize online resources as authorities, most often online dictionaries and encyclopedias such as Wikipedia. I recall the first time any Florida or Eleventh Circuit opinion cited Wikipedia -- it was an Eleventh Circuit opinion authored by Judge Tjoflat and discussed in this October 2004 Abstract Appeal post...
Fifth District: Verdicts and Damages
Posted on April 14, 2009Where a jury finds for a plaintiff but awards no damages, and no objection is made to the verdict, the trial court should enter judgment in the defendant's favor. So said the Fifth District in this decision. Judge Monaco authored an interesting special concurrence that explained how a more fair result in this particular case would have been a new trial, but the matter was not properly preserved.
Fifth District: Incest
Posted on April 14, 2009Is it always lawful for two competent, consenting adults to know each other -- in the Biblical sense? No. This Florida statute prohibits incest, which is defined as marriage or sexual intercourse between persons related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece...
Fifth District: Negligent Brawlers
Posted on April 14, 2009Could the scope of the intentional tortfeasor exception to the apportionment of fault be shrinking? Perhaps so. In this case involving a plaintiff who sued a restaurant over its security practices after he brawled with two others in the restaurant's parking lot, the Fifth District affirmed a trial court's decision to allow on the verdict form not only the restaurant but, as Fabre defendants,
Fifth District: Duty to Control
Posted on April 14, 2009Duty fans will be interested in this decision, where the Fifth District considered what duty of care, if any, the Special Olympics owed to control volunteers who arrived early for bowling activities. The court determined that a special relationship under Restatement (Second) of Torts § 315 could exist between the Special Olympics volunteers and bowlers who arrived early to socialize.
Fifth District: First-Party Bad Faith
Posted on April 14, 2009The Fifth District held in this decision that the attorney-client privilege still exists after an insured first files a first-party statutory bad faith case.
Fifth District: Limits on Appellate Review
Posted on April 14, 2009This decision from the Fifth District demonstrates the limits inherent in an appellate court's jurisdiction. A circuit court sitting in its appellate capacity not only reversed the order on appeal but affirmatively enjoined a party to cease certain actions and took other unusual steps beyond a straightforward reversal...
Fifth District: Class Actions
Posted on April 14, 2009As class action fans know, class certification decisions are relatively rare in Florida's appellate jurisprudence, which makes this decision affirming the denial of a certification motion a rarity. The Fifth District affirmed the denial based on the putative representative's inadequacy...
Questions, questions: Takings
Posted on April 14, 2009In this order, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance: WHERE A LANDOWNER CONCEDES THAT PERMIT DENIAL DID NOT DEPRIVE HIM OF ALL OR SUBSTANTIALLY ALL ECONOMICALLY VIABLE USE OF THE PROPERTY, DOES ARTICLE X, SECTION 6(a) OF THE FLORIDA CONSTITUTION RECOGNIZE AN EXACTION TAKING UNDER THE HOLDINGS OF NOLLAN AND DOLAN WHERE,
Questions, questions: Termination of Parental Rights
Posted on April 14, 2009Continuing a pattern of questions in the termination of parental rights context, the Fifth District in this case certified the following to the Florida Supreme Court as a question of great public importance: MAY A PARENT WHOSE PARENTAL RIGHTS HAVE BEEN TERMINATED CHALLENGE THE JUDGMENT OF TERMINATION BY PETITION FOR HABEAS CORPUS ON THE BASIS THAT THE PARENT WAS DENIED EFFECTIVE ASSISTANCE OF
Fifth District: Hey, Legislature!
Posted on April 14, 2009The Fifth District would like the Legislature to take another look at section 443.151(4)(3), which provides that UAC orders are to be reviewed by the "district court of appeal in the appellate district in which the issues involved were decided by an appeals referee...
Certified Conflict: Presuit Notice
Posted on April 14, 2009If a person files a workers' compensation claim and is fired as a result, is the person's claim for retaliatory discharge under section 440.205 a claim that first requires presuit notice be given under section 768.28? The Fifth District said no in this decision...
Fifth District: Loss of Consortium
Posted on April 14, 2009This decision caught my attention because it ordered a new trial on a spouse's loss of consortium claim. The jury had awarded damages to the principal plaintiff but nothing for the spouse's consortium loss. The Fifth District held that at least nominal damages were necessary...
Fifth District: Attorney's Fees
Posted on April 14, 2009This decision from the Fifth District reminds us that a district court cannot award attorney's fees in connection with supreme court work.
Fifth District: Claims Files
Posted on April 14, 2009In this case, the Fifth District reminds us that an insurer's claims file is privileged work product until the insurer's obligation to provide coverage is established.
Fifth District: The Life and Death of Pre-Nups
Posted on April 13, 2009Assume two persons enter a prenuptial agreement prior to being married. Now assume they divorce and, without a new agreement, later remarry. Does the prenuptial agreement entered before the first marriage apply to the second marriage? The Fifth District addressed that issue and more in this case...
Fifth District: Negligent Mode of Operation
Posted on April 13, 2009In negligent personal injury cases, one of the more interesting general theories of liability is the negligent mode of operation theory. It is sometimes discussed as a theory of duty, though in my view it is really a theory of breach, not duty. The negligent mode of operation theory asks whether the defendant should have known that its way of doing business would likely injure the plaintiff...
Questions, questions: Ineffective Assistance in TPR Cases
Posted on April 13, 2009In this decision, the Fifth District certified the following to the Florida Supreme Court as questions of great public importance: 1. DOES FLORIDA RECOGNIZE A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING FROM A LAWYER'S REPRESENTATION OF A PARENT(S) IN A PROCEEDING FOR THE TERMINATION OF PARENTAL RIGHTS? 2...
Fifth District: Charging Liens
Posted on April 13, 2009Attorneys who work on a contingency basis should be interested in this decision. The Fifth District examined whether a trial court that had reserved jurisdiction regarding a party's entitlement to, and the amount of, attorney's fees had jurisdiction to address a charging lien filed after the entry of final judgment...
Fifth District: PIP Logs
Posted on April 13, 2009An insured with PIP benefits assigns those benefits to a medical services provider, which (prior to suit) sends the insurer a demand that it produce a PIP payout sheet or log. A PIP log is a PIP provider's internal document that lists claims against the account, bills that have been paid, deductible amounts, and other information that would allow a medical provider to assess the chances of
Fifth District: Miltary Garb
Posted on April 13, 2009This Florida law prohibits non-military people from walking around in military garb or with clothing bearing military insignia. The law does not require the person to intend to mislead anyone into believing he or she is a military member, and the law covers situations where a person wears military insignia as a political statement...
Fifth District: Professional Services Exclusion
Posted on April 13, 2009A woman visits a podiatrist's office where the podiatrist orders an x-ray of her foot. A technician at the facility is positioning the woman at the machine when she falls and is injured. The doctor has a business liability insurance policy that excludes coverage for personal injury due to rendering or failure to render any professional services or treatments, including x-ray services and
Fifth District: Juror Bias
Posted on April 13, 2009It is sometimes thought that so long as a prospective juror ultimately agrees he or she can be fair to both sides and follow the law, then the juror can be properly seated over objection despite prior admissions showing bias. This decision from the Fifth District rejects that notion in the context of a prospective juror who first admitted favoring law enforcement but later succumbed to the
Fifth District: Guidance, Please...
Posted on April 13, 2009The Fifth District continues to implore the state supreme court and the Juvenile and Appellate Rules committees to create a mechanism for addressing ineffective assistance of counsel claims in termination of parental rights cases. The court did so again in this decision.
Judge Pleus: Gadfly Gripe
Posted on April 13, 2009The Fifth District's majority opinion in this case held that an environmental group had standing to challenge a development's approval as contrary to the local comprehensive land use plan. The decision is interesting for its expansive view of standing in the environmental challenge context...
Fifth District: Depositions
Posted on April 13, 2009The most impressive aspect of this decision is that the court actually wrote it. The Fifth District denied a certiorari petition to quash an order requiring an out-of-state plaintiff to reappear in Florida for a second deposition and a compulsory medical examination...
Fifth District: The Bomb?
Posted on April 13, 2009If the state wishes to convict someone for making a false bomb threat, the state must present evidence of the actual threat -- not just that some threat was made. So said the Fifth District in this case.
Fifth District: Settlement Authority
Posted on April 13, 2009Does an attorney automatically have authority to agree to settle a client's dispute? No. Is there an exception that applies in the event of an "emergency"? Supposedly. Has any Florida appellate court found that exception to be applicable? No, including the Fifth District's decision in this case.
Fifth District: Confrontation Clause
Posted on April 13, 2009Does the right of confrontation, as explained by the U.S. Supreme Court in Crawford v. Washington, apply in a restitution proceeding? The Fifth District examined that issue in this case and concluded that the answer is no. As a result, the state could rely simply on two affidavits to establish the restitution amount the defendant owed.
Fifth District: Quo Warranto
Posted on April 10, 2009Long-term incarceration makes folks willing to try anything to obtain post-conviction relief, and when someone stumbles onto something that sounds a tad promising, it can quickly become popular in the prison population and the subject of countless filings...
Fifth District: Corpus Delicti
Posted on April 10, 2009The Latin phrase corpus delicti, which is usually translated "body of the crime" or even "body of evidence of the crime," still carries a legal meaning in modern jurisprudence. It refers to the evidence necessary to prove a crime was committed, independent of any statement by the accused...
Fifth District: Missing Transcript
Posted on April 10, 2009Can a new trial be ordered because, through no fault of the parties, the transcript is incomplete? That is what happened in this decision from the Fifth District. Note that the matter was a civil case but involved an injunction for protection.
Fifth District: Jurisdiction
Posted on April 10, 2009Does the state's announcement of a nolle prosequi in a criminal case end the judiciary's subject matter jurisdiction over matters related to the charge? This decision from the Fifth District answers that question in the affirmative. Attempting to preempt a trial court's suppression order, the state made a nol pros announcement...
Fifth District: Insurance
Posted on April 10, 2009This decision from the Fifth District shows how an insurer's efforts to avoid a policy based on a supposedly false answer to an application question can be derailed if the question was ambiguous. Courts will read the question in the insured's favor.
Fifth District: Prejudgment Interest
Posted on April 10, 2009A first-party insurer pays its insured for a loss and becomes subrogated to the insured's breach of contract claim against a third party. Assuming the insurer successfully sues the third party and is entitled to prejudgment interest, should it run from the time the claim was first liquidated or the time the insurer paid its insured? The latter, said the Fifth District in this decision.
Fifth District: The Hazards of Tinted Windows
Posted on April 09, 2009If your windows are so heavily tinted that the tint might be illegal, can you be pulled over, thereby allowing the police to check your identity and make other safety-based examinations? Yes, if an officer could reasonably suspect the tint is illegal...
Fifth District: Appellate Attorney's Fees
Posted on April 09, 2009I have seen appellate attorney's fees battles from all angles, including where my own fees were at issue, where I had to contest the reasonableness of someone else's fee request, and where I served as an attorney's fees expert for someone else. What I have not seen is a meaningful body of case law that gives guidance on what appellate courts believe are reasonable appellate attorney's fees...
Fifth District: Public Policy
Posted on April 09, 2009This decision from the Fifth District reminds us that contractual provisions cannot violate Florida public policy. In this personal injury case, a builder sought to utilize a release that extended to damages caused by intentional acts and building code violations...
Fifth District: Arbitration
Posted on April 09, 2009If a defendant is sued and conducts merits discovery before moving to compel arbitration, has the defendant waived any right to arbitrate? Yes, said the Fifth District in this decision.
Fifth District: Tax Deed Sales
Posted on April 09, 2009When the clerk of court sends notice of a tax deed sale to the address listed on the appropriate tax roll, and receipt of the notice is acknowledged in writing by someone at the property, is the clerk required to investigate whether the person signing was a representative of the owner? No, said the Fifth District in this decision.
Certified Conflict: Eminent Domain
Posted on April 09, 2009Takings fans are most likely to appreciate the conflict certified by the Fifth District in this case. The court disagreed with another district's decision regarding how business damages are calculated where a business relocates following a taking or partial taking...
On Catching Up
Posted on April 09, 2009Why blog old cases? That is a question many have whenever I return from an absence. Surely old cases are not newsworthy in the ordinary sense of that term. To me, however, this web log is more than a commentary on new and notable decisions -- it is a compilation of events relating to subject areas that, for whatever reason, catch my attention...
Eleventh Circuit: Class Certification
Posted on April 08, 2009Class certification fans will likely be interested in this decision released yesterday by the Eleventh Circuit. The court reviewed a district court's order certifying a class of T-Mobile sales representatives with wage-related claims against the company...
Appellate Appointments
Posted on April 08, 2009Governor Crist made numerous judicial appointments in the last several months. Let's start with the supreme picks. After a series of events that saw Fifteenth Circuit Judge Jorge Labarga appointed to the Fourth District and serve there for just one day, the Governor appointed him to the Florida Supreme Court...
Abstract Thanks
Posted on April 08, 2009A quick word of thanks to the many who contacted me this past week to say welcome back. I appreciate the appreciation.
Equipoise: Back In Blog
Posted on March 31, 2009Is anyone here? Likely not. There may have been some passers-by recently, but it would take only a glance to see there has been quite an absence around here. When I started this site, there was no one around. That changed, slowly, over time. One by one, folks who enjoyed its content found their way here, and many returned...
Another Supreme Selection: Judge Ricky Polston
Posted on October 01, 2008I've come out of my briefwriting shell to note that Governor Crist has just announced his appointment of First District Court of Appeal Judge Ricky Polston to the Florida Supreme Court. This selection fills the vacancy created by the resignation of Justice Bell...
Supreme Selection: Judge Charles Canady
Posted on August 28, 2008The Governor is currently holding two lists of nominees for the Florida Supreme Court. This morning, just minutes ago, he held a press conference and announced that he has appointed Judge Charles Canady, currently of the Second District Court of Appeal, to the at-large seat made vacant by Justice Cantero's resignation...
Supreme Landing
Posted on August 26, 2008Today, White & Case announced that Justice Raoul Cantero will be joining the firm's Miami office upon his September resignation from the Florida Supreme Court. Congratulations are in order. You can read the firm's press release here.
Judicial Nominating Omissions?
Posted on August 15, 2008Today's St. Pete Times includes a story about yesterday's state supreme court nominations. Its headline varies. The printed article carries the following top headline on the front page of the local and state section: "Court list frustrates Crist," with the subheading, "No women or blacks are nominated for the high court...
Supreme Nominees
Posted on August 14, 2008The Judicial Nominating Commission for the Florida Supreme Court has forwarded the following lists of names to the Governor. The Governor may appoint one person from each list to the supreme court: For Justice Cantero's (at large) seat: Judge Charles Canady Judge Kevin Emas Edward Guedes Judge Jorge Labarga Judge Vincent Torpy For Justice Bell's (First District) seat: Judge Ricky Polston
Fourth District: Time To Rule!
Posted on August 11, 2008At what point has an appeal been pending too long without a decision? In this decision from the Fourth District, one year was too long. The district court granted a mandamus petition asking that a circuit court be directed to rule on a county-to-circuit court appeal that had been pending for one year...
Fourth District: Incorporation By Reference
Posted on August 11, 2008Does referencing a document in a complaint allow a trial court to consider that document for purposes of a motion to dismiss if the document is not actually attached to the complaint as an exhibit? In federal court, the answer is usually yes. In this decision from the Fourth District, the answer was no...
Fourth District: Search and Seizure
Posted on August 11, 2008Is a police officer who wishes to search a shared residence constitutionally required to secure consent from a physically absent, but nearby, tenant after that officer has already obtained a valid consent from a co-tenant who is on the premises? No, said the Fourth District in this case...
Fourth District: Appealing From Consolidated Cases
Posted on July 29, 2008Is an order appealable as a final judgment if it completely disposes of one of two cases consolidated "for all matters" in the trial court? The Fourth District assumed so in this decision.
Fourth District: Slips and Falls, and Ethical Calls
Posted on July 29, 2008This decision from the Fourth District demonstrates the usefulness to a plaintiff of the "mode of operation" negligence theory in a slip and fall case. In short, the theory asserts that a breach of duty lies in how a business chooses to run its operation, ultimately leading to a condition that injures the plaintiff...
Fourth District: Arbitration Stays
Posted on July 29, 2008In this decision, the Fourth District explained that the Florida Arbitration Code mandates a stay while a motion to compel arbitration is pending but not while an order denying such a motion is on appeal. The appellate court denied the appellant's motion for review of a stay denial order.
Fourth District: Pure Bill of Discovery -- Rare, Not Dead
Posted on July 29, 2008The chances of obtaining a pure bill of discovery -- that rarely used device that allows discovery of information without the filing of claims in a lawsuit -- seem to improve if the prospective plaintiff is impaired and cannot provide important details on the incident in question...
Fourth District: Disqualification?
Posted on July 29, 2008Should you have a reasonable fear of impartiality, supporting a trial judge's disqualification, if you are a criminal defendant being represented by an attorney who is campaigning for a circuit judge position and you suspect, or even know, that the judge's spouse has contributed to your attorney's opponent? No, said the Fourth District in this case.
Eleventh Circuit: Pledging Allegiance, Or Not
Posted on July 23, 2008Pound for pound -- or should I say, page for page -- this is one of the most interesting decisions I have read in a while. Today, in just over 13 pages (with one of them being all caption), the Eleventh Circuit tackled the facial constitutionality of Florida's statute on reciting the Pledge of Allegiance in public schools, kindergarten through 12th grade...
Questions, questions: Nursing Homes & Amendment 7
Posted on July 22, 2008Does Article X, section 25 of the Florida Constitution, which provides for a right to review health care providers' adverse incident records, apply to nursing homes? In this decision, the Fourth District said no but certified the following to the Florida Supreme Court as a question of great public importance: WHETHER "NURSING HOMES" OR "SKILLED NURSING FACILITIES" FALL WITHIN THE DEFINITION OF "
Fourth District: Payment Bonds
Posted on July 22, 2008Can a subcontractor on a public project state a claim against a payment bond when the materials at issue were neither delivered to the site nor incorporated into the project but were nevertheless "specially fabricated" for the job? In this decision, the Fourth District said yes.
Fourth District: Spoliation and Workers' Compensation
Posted on July 22, 2008Spoliation fans may be interested in this case, where the Fourth District held that a special employer for workers' compensation purposes has a statutory duty to preserve evidence. Breach of that duty can support a spoliation claim.
Fourth District: More Arbitration
Posted on July 22, 2008Can a person who signed an arbitration agreement solely in his capacity as a company's chief executive officer be forced to arbitrate under the agreement when he is sued in his personal capacity? No, said the Fourth District in this case. The court expressly held that while the CEO could enforce the arbitration agreement, arbitration could not be forced upon him.
Fourth District: Arbitration
Posted on July 22, 2008This arbitration decision from the Fourth District demonstrates how a person can be bound to an unexecuted arbitration agreement. The decision also shows how difficult it is to show that the panel called for by an arbitration agreement will be unconscionably constituted...
First and Fourth Districts: State Sandwich Unconstitutional
Posted on July 22, 2008In 2006, the legislature repealed Florida Rule of Civil Procedure 3.250, which provided criminal defendants whose only evidence is no more than their own testimony with the first and last closing arguments. The legislature also enacted a statute that provided the state with the first and last closing argument in criminal cases...
JQC Recommends Reprimand For Judge Allen
Posted on July 21, 2008On Friday, the Judicial Qualifications Commission released its findings, conclusions, and recommendations regarding the ethics charges it previously brought against Judge Allen of the First District. The JQC found Judge Allen guilty of not maintaining high standards of conduct so as to preserve the integrity and independence of the judiciary, not acting in a manner that promotes public
Fourth District: Attorney's Fees, English Style
Posted on July 21, 2008As this decision from the Fourth District shows, where an agreement provides it is governed by English law, the losing litigant had better be prepared to pay the other side's attorney's fees. Applying English law to a case includes applying the English rule on fees, which requires fee-shifting from the loser to the winner.
Fourth District: Voir Dire
Posted on July 21, 2008This is an unusual decision, if only in the sense that few jury verdicts are reversed on grounds that a juror should have been stricken for cause during jury selection based on bias. The case involved a slip and fall and the juror at issue admitted to a predisposition toward thinking persons who trip are responsible for being aware of their surroundings and so carry a percentage of fault.
Fourth District: Rule 1.525, Ambiguous Proposals
Posted on July 21, 2008This offer of judgment case is notable for two reasons. First, the Fourth District held a plaintiff's proposal for settlement to an insurance company invalid because in one portion of the proposal the plaintiff said it would resolve all claims and in another portion the plaintiff said the proposal would resolve all raised in the suit...
Fourth District: Absolute Immunity
Posted on July 21, 2008The trial court in this case dismissed a defamation and tortious interference complaint against employees of The Florida Bar because their positions as bar employees gave them absolute immunity for statements made during disciplinary proceedings. The Fourth District affirmed.
Fourth District: Construction
Posted on July 21, 2008Construction fans should be very interested in this brief decision from the Fourth District. The court held that chapter 558, which provides a dispute resolution mechanism for construction cases, does not apply where the claimant is both property owner and contractor.
Fourth District: Arbitration
Posted on July 21, 2008Arbitration fans may wish to check out the Fourth District's decision in this case. The court explained the standard for determining when a contract containing an arbitration clause can be found incorporated into another contract.
Fourth District: Privileged Witnesses
Posted on July 21, 2008A court does not abuse its discretion in excluding testimony when cross-examination on material issues raised on direct examination is curtailed because of a witness?s valid claim of privilege. So held the Fourth District in this case, which involved a defendant who claimed error after the trial court excluded the defendant's son...
Fourth District: Remittitur Reminder
Posted on July 17, 2008This decision from the Fourth District helps show why Florida's appellate courts may never again have to consider the sufficiency, or insufficiency, of orders granting a remittitur or additur. Simply put, unless the parties agree to the amount of an additur or remittitur, a new trial on damages is to be ordered...
Fourth District: Loss of Consortium
Posted on July 17, 2008Can a loss of consortium claim be proved solely through evidence the married couple fought as a result of the tort against the spouse? Yes, said the Fourth District in this decision.
Fourth District: Relinquishment Practice Pointer
Posted on July 17, 2008Attention, those filing motions in the Fourth District to relinquish jurisdiction and allow the trial court to resolve a rule 1.540 motion. This order explains that the court will ordinarily not grant such motions unless the appellate court is furnished with a copy of the rule 1...
Fourth District: Bailiffs and Jury Questions
Posted on July 17, 2008If deliberating jurors ask the trial judge a substantive question and the judge directs a bailiff to communicate the answer ex parte, does that constitute reversible error? Yes, and per se reversible error at that. But does it constitute fundamental error, if no one objects? No, said the Fourth District in this case...
Fourth District: False Light
Posted on July 17, 2008In Florida, the false light tort is the legal equivalent of a work in progress. The last few years have seen the district courts of appeal release a few false light decisions that, by their rather extraordinary facts, have allowed the tort to take shape...
Fourth District: Spoliation
Posted on July 17, 2008The notion that a spoliation claim cannot be brought simultaneously with the underlying action (the one allegedly compromised by the spoliation) applies to a statutory spoliation claim under the workers' compensation statutes, the Fourth District explained in this decision...
Fourth District: Sovereign Immunity
Posted on July 17, 2008Does the $100,000 sovereign immunity cap on claims against the state include attorney's fees? Yes, said the Fourth District in this decision.
Fourth District: Crime-Fraud Exception
Posted on July 17, 2008Finding the attorney-client privilege waived under the crime-fraud exception without first conducting an evidentiary hearing was grounds for certiorari relief in this decision from the Fourth District.
Fourth District: Insurance Declaratory Judgments
Posted on July 17, 2008Noninsureds who seek declaratory judgments against insurers without first obtaining a judgment against the insurer's insured may find their claims dismissed, as the Fourth District explained in this case.
Fourth District: Wrongful Conduct, and An Advocacy Tip
Posted on July 14, 2008This decision is notable in two respects. First, the Fourth District applied the oft-unused and not well developed wrongful conduct rule to hold that the estate of a person who allegedly died from ingesting illegally obtained prescription drugs could not sue a pharmacy that was allegedly negligent in allowing them to be stolen...
Questions, questions: Risk-Utility Test
Posted on July 14, 2008Products liability fans are surely much interested in this decision from the Fourth District. Addressing a negligence claim against a cigarette manufacturer, the court reached some significant holdings. The court held that there can be no tort claim against a cigarette manufacturer for continuing to manufacture cigarettes after learning of the dangers they present...
Fourth District: Initiatives, Mandamus, and Laches
Posted on July 14, 2008This decision by the en banc Fourth District is rather interesting. When a group of West Palm Beach citizens disagreed with the city's efforts to relocate some key public buildings, they followed the initiative procedure to propose ordinances to block the relocation...
Fourth District: Ineffective Assistance
Posted on July 14, 2008In the post-conviction context, whether a trial strategy was reasonable is a matter of law, not a question of fact, as the Fourth District explained in this decision.
Fourth District: Class Certification
Posted on July 14, 2008Class action fans may wish to check out this decision from the Fourth District, which discussed the procedural requirements applicable to certification orders.
Judge Scriven
Posted on July 11, 2008Congratulations are in order for U.S. Magistrate Judge Mary Scriven, whom the President nominated yesterday for an Article III district court judgeship for the Middle District of Florida. You can read more about the nomination in this story from the St...
Fourth District: Insurance Settlements
Posted on July 11, 2008Insurance fans will be interested in this decision, where a divided Fourth District held that the good faith/best interests standard for settlements contained in section 627.4147(1) does not require insurers to consider an insured's best interests with respect to "collateral" consequences of settlement...
Fourth District: Future Pain and Suffering
Posted on July 11, 2008For an example of where a jury inadequately awarded no future pain and suffering damages although liability and future pain and suffering were undisputed, check out this decision from the Fourth District. After an interesting discussion of the law in this area, the court directed that a new trial be held on the issue of future non-economic damages.
Fourth District: Cassisi Inference
Posted on July 11, 2008Products liability fans should be very interested in this decision from the Fourth District. Over a dissent, the court rejected the application of a Cassisi inference where a plaintiff wished to use expert testimony to establish not only that a ladder from which the plaintiff fell was defective but that the fall was caused by a malfunction...
Fourth District: Notice of Trial
Posted on July 11, 2008Even a defaulted party is entitled to notice that an action is to proceed to trial. Is the notice requirement satisfied if a trial court order setting a case for trial is not sent to a defaulted defendant but the plaintiff then forwards the defendant a copy of the order? Yes, said a divided Fourth District in this decision.
Fourth District: Fiduciary Duties
Posted on July 11, 2008This decision from the Fourth District followed a line of Florida decisions and held that the delayed discovery doctrine did not apply to a breach of fiduciary duty claim.
Fourth District: Paternity
Posted on July 10, 2008This decision, which reflects a change on rehearing from the Fourth District's earlier decision in the same case, exemplifies the difficulties faced by the judiciary when it tries to apply to modern persons, who are capable of arming themselves with the scientific certainty of DNA testing, a common law system rooted in rigid rules to compensate for a lack of such science...
Fourth District: School Duties
Posted on July 10, 2008The Fourth District's decision in this case includes a very interesting discussion explaining why a school board did not have a legal duty to a student to prevent her from skipping classes during the day, leaving the campus, and ultimately getting in a fatal car wreck.
Fourth District: Retroactivity
Posted on July 10, 2008Is the twenty-one day safe harbor provision added to section 57.105 in 2002 retroactive? No, said the Fourth District in this case, agreeing with a similar decision from another district. The court's decision included a discussion of how statutes that contain procedural aspects may have substantive components, requiring such statutes to be given only prospective effect absent clear legislative
Fourth District: Trusts, Conflict of Interest
Posted on July 10, 2008Trusts fans may be interested in this decision, in which the Fourth District affirmed an order finding a trustee had a conflict of interest that should have precluded it from paying its attorneys from trust assets without court approval. The conflict arose based on interrogatory responses in litigation, and the principal issue was whether such responses should have placed the trustee on notice of
Fourth District: FDUTPA Attorney's Fees
Posted on July 10, 2008This decision from the Fourth District involved an in-depth look at how attorney's fees are shifted following a successful claim under the Florida Deceptive and Unfair Trade Practices Act. Most notable may be the court's discussion of how out-of-town counsel are generally not to be reimbursed for travel expenses that local counsel would not incur.
Fourth District: Sham v. Mistake
Posted on July 10, 2008In this case, the Fourth District explored the difference between a sham pleading and a mistaken pleading. Finding the complaint at issue to be of the latter sort, the court reversed a lower court's order striking the appellant's complaint.
Fourth District: Tax Deed Sales
Posted on July 10, 2008Those interested in tax deed sales, and the efforts the government must make to notify property owners of such sales, may wish to check out the Fourth District's decision in this case. The court held that a county's notice efforts were constitutionally insufficient.
Supreme Court Review, Tougher
Posted on July 07, 2008This past Thursday, the Florida Supreme Court released three orders discharging jurisdiction in cases where the court had previously accepted jurisdiction. In one of those orders -- this one, which involved a decision that construed a provision of the federal constitution -- the court discharged jurisdiction as improvidently granted...
Catching Up
Posted on July 07, 2008Catching up is going to be a long process, but I will get there. Soon I will be up to date with our friends at the Fourth District.
Fourth District: Racing
Posted on July 07, 2008In this decision, the Fourth District held that Florida's law against racing on highways is unconstitutionally vague because it defines "racing" in a way that encompasses a multitude of routinely employed driving activities. However, because the law does not impair a fundamental right, the court declined to find the law overbroad.
Fourth District: Arbitration
Posted on July 07, 2008Where an arbitration agreement required that the arbitration filing fee be advanced by the party seeking relief, the Fourth District held it was reversible error to require the defendant to pay the fee as a condition of granting the defendant's motion to compel arbitration...
Fourth District: Vexatious Litigants
Posted on July 07, 2008This decision from the Fourth District upheld the constitutionality of portions of Florida's Vexatious Litigant Law. The case involved an inmate at a state prison who sued the prison's physician regarding a prescription. When the plaintiff failed to furnish $600 in security for the case, his claim was dismissed...
Gambling Loss
Posted on July 03, 2008Big news today from the Florida Supreme Court, which released this decision holding that the Governor lacked authority to enter a November 2007 compact with the Seminole Indian Tribe of Florida. The compact expanded the forms of gambling permitted on tribal lands, including blackjack card tables...
New Law Day
Posted on July 01, 2008July 1 is one of two dates when new Florida laws traditionally take effect. (The other is October 1.) Today's Sun-Sentinel has this Associated Press story on Florida's new laws. The Tallahassee Democrat has this story on the Ethics in Education Act that takes effect today and which may require education employees to be fired based on new background checks...
Chief Justice Quince
Posted on June 30, 2008The news page at the Florida State Courts site recounts this past Friday's swearing-in ceremony for Florida's new Chief Justice: Peggy Quince. Congratulations to her not only as an individual but as the first African-American woman to serve as a justice, and now the chief justice, on our state's high court.
Time to Cross-Appeal?
Posted on June 30, 2008Feel like filing a notice of cross-appeal or joinder this week? How about intervening on appeal? Doing so today would save a few dollars. Tomorrow, this new law takes effect, and such formerly cost-free acts will carry a $295 charge.
Fifth District: Rehearing Tolerance, Exceeded
Posted on June 30, 2008The following quote from this opinion demonstrates how rehearing motions can try, and overcome, an appellate court's patience: [W]e do not view the privilege to seek a rehearing pursuant to rule 9.330, Florida Rules of Appellate Procedure, as an open invitation for an unhappy litigant or attorney to reargue the same points previously presented, or to discuss the bottomless depth of the
Fifth District: The Trouble With Trebles
Posted on June 30, 2008Florida's civil theft statute allows a plaintiff to recover treble damages. Does that mean total damages are three times the actual damages amount or that three times the amount of actual damages should be added to the actual damages amount? The Fifth District answered that question here...
Fifth District: Class Actions and Certiorari
Posted on June 30, 2008Is an order permitting merits discovery in a putative class action the sort of order that can be successfully challenged by petition for writ of certiorari? Yes, as this decision from the Fifth District shows.
Fifth District: Law Enforcement Duties
Posted on June 30, 2008Is a deputy working as a school resource officer engaged in the execution of his or her legal duties for purposes of charging a student with battery on a law enforcement officer? Yes, said the Fifth District in this case.
Fifth District: Custody, Out-Of-State Transfers, and Certiorari
Posted on June 30, 2008Family law fans may wish to check out the Fifth District's certiorari decision in this case, which allowed a trial court's decision that a child be immediately returned to Florida to stand but quashed that decision to the extent it made a temporary custody determination seemingly based on punishment and without an evidentiary hearing.
Fifth District: Siting Plans
Posted on June 30, 2008Decisions like this one, which involve the siting of electric power generating units, are rare. The Fifth District reversed an agency's rejection of a siting application.
Fifth District: Specific Performance
Posted on June 30, 2008In this case, the Fifth District reversed an award of interest on lost profits related to a successful specific performance claim. The decision follows the notion that damages flowing from a grant of specific performance are limited to those that return the parties to status quo at the time of breach.
Fifth District: Perpetual Leases
Posted on June 30, 2008Florida law's preference for construing leases not to be perpetual is well demonstrated by this decision from the Fifth District.
Fifth District: Tax Advice
Posted on June 30, 2008If you are interested in whether a taxing authority can bring a declaratory judgment claim against a prospective taxpayer to establish the allegedly taxable nature of the defendant's conduct, rather than assess any tax believed to be owed and allow any challenges to go forward, you may wish to check out the Fifth District's decision in this case.
Judge Evander: On Risks
Posted on June 30, 2008In this case, Judge Evander offered the following notable thought in a concurrence to a per curiam affirmance: I would simply observe that when an attorney refuses to present any evidence at a pretrial hearing because he disagrees with the trial court's determination as to which party has the burden of proof, he does so at considerable risk.
Fifth District: Preemption
Posted on June 27, 2008This decision from the Fifth District contains an interesting federal preemption discussion. The court rejected the appellant's argument that the FCC's regulatory scheme precluded him from being convicted of stalking by ham radio. Seriously.
Fifth District: Show Me The Meaning...
Posted on June 27, 2008... of being confidential. This decision from the Fifth District involved documents sealed in prior litigation between the Back Street Boys and Louis Pearlman. The decision makes for a good primer on what it now takes to seal, and unseal, court records under Florida law...
Fifth District: Attorneys
Posted on June 27, 2008This decision from the Fifth District reminds us that an attorney has no implied authority to execute a contract on a client's behalf for the sale or purchase of real property.
Fifth District: Now We All See
Posted on June 27, 2008Is the Orlando Utilities Commission a "municipality" for purposes of excusing the presuit notice requirement of section 768.28(6)? No, said the Fifth District in this decision. The court declined to determine precisely what OUC is, having determined it is not a municipality.
Fifth District: Fraud on the Court
Posted on June 27, 2008Dismissing a plaintiff's case based on the plaintiff's litigation conduct requires "the most blatant showing of fraud, pretense, collusion, or other similar wrong doing." The Fifth District held that standard was not met in this case.
Questions, questions: Double Jeopardy
Posted on June 27, 2008In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance: ARE THE SEX ACTS PROSCRIBED BY SECTIONS 794.011 and 800.04(4), FLORIDA STATUTES, PROPERLY VIEWED AS "DISTINCT CRIMINAL ACTS" FOR DOUBLE JEOPARDY PURPOSES, SO THAT A DEFENDANT CAN BE SEPARATELY CONVICTED FOR EACH DISTINCT ACT COMMITTED DURING A SINGLE CRIMINAL EPISODE?
Fifth District: Discovery Rule
Posted on June 27, 2008Those interested in how the discovery rule impacts statutes of limitations in the medical malpractice context may wish to check out the Fifth District's decision in this case. The court explained that, for limitations' purposes, knowledge could not be imputed between the mother and daughter in the case, and that where an injury causes mental incapacitation and a guardian is not appointed, the
Fifth District: Elections
Posted on June 27, 2008Elections law fans should be interested in this decision, where the Fifth District held that the right against double jeopardy prevented a candidate from being conviction of multiple offenses for a single (but widespread) distribution of an unlawful electioneering communication.
Fifth District: Maybe They're Amazed
Posted on June 27, 2008The judges on Florida's district courts of appeal are routinely confronted with strange situations, so it is noteworthy when a panel expresses amazement at the facts of a given case. That happened here. The Fifth District characterized the criminal defendant's actions as among the sort of conduct that is "so bizarre, it is virtually inexplicable...
Fifth District: And1
Posted on June 27, 2008Perhaps the respondent in this case felt the court ruled 4-0 in the petitioner's favor. Among the authorities the Fifth District cited was Judge Sawaya's personal injury treatise.
Questions, questions: Breath Test
Posted on June 27, 2008In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance: CAN THE DHSMV SUSPEND A DRIVER'S LICENSE FOR REFUSAL TO SUBMIT TO A BREATH TEST, IF THE REFUSAL IS NOT INCIDENT TO A LAWFUL ARREST? IF NOT, IS A DHSMV HEARING OFFICER REQUIRED TO ADDRESS THE LAWFULNESS OF THE ARREST AS PART OF THE REVIEW PROCESS? The district court
Fifth District: Spoliation
Posted on June 27, 2008Spoliation fans should be very interested in this decision. The Fifth District reversed the dismissal of a plaintiff's products liability case (including defective design and manufacture claims) after the plaintiff's counsel lost the product at issue...
Fifth District: Closing Time
Posted on June 27, 2008In this case, the Fifth District considered whether the following closing argument deprived the appellant of a fair trial: [T]hey do an amazing job, they do an amazing job of trying to convince people of these injuries, but that's why they keep on hiring these doctors over and over; that's why Dr...
Fifth District: The Nonsense Defense
Posted on June 27, 2008This case considered whether the following contractual language was enforceable as a fee-shifting provision: ATTORNEY?S FEES: In the event that either party incurs legal fees or costs in the enforcement of this Lease or any provision hereof, whether suit is filed or not, shall be entitled to recover and to receive payment of reasonable attorneys? and costs incurred by the other party...
Fifth District: Class Actions
Posted on June 25, 2008When a class action is filed in a county court, must the relief requested by class members be aggregated for purposes of determining whether the county court's $5,000 jurisdiction limit is exceeded? Yes, said a divided Fifth District in this decision...
Fifth District: Economic Loss Doctrine and Section 552
Posted on June 25, 2008Here we have a case involving the economic loss doctrine -- perhaps my favorite intersection along the law's many crossroads. The plaintiff entered a contract with a company for environmental assessment work. The resulting assessment led the plaintiff not to purchase and develop a particular stretch of land, and the plaintiff later came to believe the company erroneously performed the assessment
Fifth District: Certiorari and Discovery
Posted on June 25, 2008Once again, a district court's certiorari jurisdiction has been successfully invoked to limit an overbroad discovery order. Check out the Fifth District's decision in this case for more.
Fifth District: Secured Transactions
Posted on June 25, 2008Fans of the Uniform Commercial Code's Article 9 should be interested in this decision. The Fifth District reversed a summary judgment for further proceedings on whether the sale of repossessed vehicles was commercially reasonable.
Fifth District: Drug Court
Posted on June 25, 2008The trial court in this case determined that Florida law allows any person who has a substance abuse problem to enter a pretrial drug court program, as long as he or she is not involved with drug dealing and has not previously rejected a pretrial substance abuse program...
Fifth District: Tax Deed Sales
Posted on June 25, 2008Is publishing notice of a tax deed sale in a newspaper a sufficient "additional step" to satisfy the requirements of due process after notice of the sale to the property owner is returned as unclaimed mail? It was not in this case decided by the Fifth District.
Fifth District: Statutory Interpretation
Posted on June 24, 2008A provision of Florida's statutory law states, "The failure to provide and use a child passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence...
Fifth District: Closing Argument
Posted on June 24, 2008In this case, the Fifth District admonished a prosecutor whose closing arguments included the following: If Josh Montanye is lying, Sean is guilty. Josh Montanye is lying. Josh Montanye is lying, and he is doing it to get you all to buy it. The closing also included the line, "I was expecting them to say that the sun was in their eyes and the dog ate their homework...
Fifth District: Apple Records
Posted on June 24, 2008Can a trial court dismiss a proceeding sua sponte based on res judicata? This decision shows the answer is yes. The Fifth District not only affirmed the dismissal but explained: Every litigant is entitled to one bite at the apple. Two bites is unfair...
Questions, questions: NICA
Posted on June 24, 2008En banc decisions are rare. En banc decisions certifying questions of great public importance to the Florida Supreme Court, like this one, are rarer still. The Fifth District certified the following: WHEN A NICA PROVIDER FAILS TO PROVIDE THE STATUTORY NOTICE TO AN OBSTETRICAL PATIENT WITHIN A REASONABLE TIME AFTER THE COMMENCEMENT OF THE PROVIDER-OBSTETRICAL PATIENT RELATIONSHIP, IS THE
Fifth District: Deceptive and Unfair Trade Practices
Posted on June 24, 2008Can an unfair trade practices claim be brought not only against a business but also the person who acted for the business? Yes, said the Fifth District in this decision.
Questions, questions: Lesser Includeds
Posted on June 24, 2008In this case, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance: Is a defendant charged with robbery entitled to have the jury instructed on more than one of the lesser included offenses where his theory of defense is that he committed both lesser offenses but not the greater charged offense? Previously, in this decision, the court
Fifth District: Specific Performance
Posted on June 24, 2008Being ready, willing, and able to close on a piece of real property does not mean that someone has merely told you he or she will give you the purchase money. The Fifth District applied this principle in this case.
Fifth District: Oaths
Posted on June 23, 2008What happens when someone wishing to testify refuses to swear or affirm to tell the truth? A litigant in this case apparently had religious convictions contrary to such things. So he did not swear, and he did not affirm, which led the Fifth District to affirm the trial court's refusal to allow him to testify.
Certified Conflict: Confessions
Posted on June 23, 2008Under the common law, a confession alone is not sufficient evidence to convict someone of a crime. The underlying notion is that one should not be convicted based only on one's own statement of past wrongdoing. Otherwise, you might find yourself imprisoned for telling a tale...
Fifth District: This Happened Once Before...
Posted on June 23, 2008Not quite a year ago, the Fourth District released this decision, which held a motor sports facility's negligence waiver invalid because it attempted to limit the facility's prospective liability to a minor. His father signed the waiver, and after an accident resulted in the minor's death, his mother sued the facility...
Overheard...
Posted on June 19, 2008... today at the bar meetings in Boca Raton: "You know, there are four other districts...." Considering the speaker's status, that is part compliment, part not so much.
Fifth District: Marathon Man
Posted on June 19, 2008As you can hopefully tell, I am wending my way towards catching up with the Fifth District. There is one person at the Fifth that I will not catch. Last week, I mentioned my marathoning adventures of the past six months. There is someone at the Fifth who shares that passion, and he is a lot faster...
Fifth District: Preservation of Error
Posted on June 18, 2008You just knew this decision was going to be interesting when the Fifth District began it this way: This is a disturbing case. It is disturbing because the trial lawyers who were involved know better, or at least should have known better. Although we have concluded that we should affirm the final judgment because the errors complained of were not preserved and were not fundamental in nature, we
Fifth District: Declaratory Judgments, Insurance
Posted on June 18, 2008Can a trial court abate an insurer's declaratory judgment claim pending the outcome of an underlying tort suit? A trial court did in this case, but the Fifth District granted a petition for writ of certiorari and quashed the abatement order.
Fifth District: Pharmacists' Warranties
Posted on June 18, 2008Products liability fans, especially those involved with pharmaceuticals, should be interested in this decision. The Fifth District reversed the dismissal of a breach of warranty claim against a pharmacist.
Fifth District: Employment
Posted on June 18, 2008Employment law fans likely took interest in this decision, where the Fifth District confirmed the essential element of causation in a disability suit.
Fifth District: Arbitration
Posted on June 18, 2008A person who signed an agreement that expressly provided the parties joined a separate agreement was bound by an arbitration provision in that separate agreement, the Fifth District held in this case.
Certified Conflict: Sentencing
Posted on June 18, 2008If a defendant serves a portion of concurrent terms but then is resentenced to consecutive terms, should the defendant receive credit for time served on each of the consecutive terms? A Fifth District panel consisting of three former trial judges said yes in this decision...
Fifth District: French Kiss
Posted on June 18, 2008Not the movie with Meg Ryan and Kevin Kline. The case.
Fifth District: Lesser Includeds
Posted on June 18, 2008The defendant in this criminal case argued to the jury that he did not commit robbery -- he committed petit theft and resisting a merchant. Both were lesser included offenses for his robbery charge and both were included on the jury's verdict form, but the jury was not allowed to find him guilty of both...
Fifth District: Presuit Investigation
Posted on June 18, 2008Does the affidavit supporting a medical malpractice claimant's presuit investigation have to name the defendant who is later sued? No, said the Fifth District in this case.
Fifth District: Stipulations
Posted on June 17, 2008Need a client be present in court for his or her counsel to make a binding stipulation during a civil trial? The Fifth District quickly said no in this case.
Fifth District: Duty
Posted on June 17, 2008Those who have frequented this corner of the blogosphere probably recall that one of my favorite legal topics is the matter of duty, as in the extent to which one person owes another a duty of care. So of course this duty decision caught my eye. Sheriff's deputies visited an elderly woman's home when she failed to respond to telephone calls...
Fifth District: Challenging Service of Process
Posted on June 17, 2008If someone moves to dismiss a complaint but the motion does not challenge service of process, is any such challenge irrevocably waived? This decision from the Fifth District holds that if the motion has not yet been heard, it may be amended to include such a ground, avoiding any waiver.
Fifth District: Good Samaritan Act and Statutory Standards of Liability
Posted on June 17, 2008In this case, a medical expert discussed the legal meaning of the proof required to overcome the immunity given certain health care providers by the 1998 version of Florida's Good Samaritan Act. The Fifth District characterized that testimony as "irrelevant and outside the expertise of a medical expert...
Fifth District: Criminal Conflicts
Posted on June 17, 2008This interesting decision from the Fifth District awarded a new trial to a criminal defendant whose trial counsel had a financial conflict of interest. In doing so, the court explored and corrected some inconsistencies in its own case law and considered some undeveloped aspects of our state supreme court's decisions...
Fifth District: Flood Limits
Posted on June 17, 2008This decision from the Fifth District examined how the statute of limitations applies where improvements to real property cause repeated flooding to neighboring property. Judge Lawson filed an interesting special concurrence. He acknowledged the controlling authority on this issue but lamented how that authority permits the flooded neighbor to sit on his or her rights for years and ultimately
Supreme Victory
Posted on June 16, 2008Congratulations to Florida's Solicitor General Scott Makar, who prevailed in this decision released this morning by the United States Supreme Court. The high court reversed an Eleventh Circuit decision that allowed a Chapter 11 bankruptcy tax-stamp exemption to apply to preconfirmation transfers...
Fifth District: Circuit Court Appeals
Posted on June 16, 2008It is good to see the Fifth District join its sister courts in rebuking the dismissal of circuit court appeals merely for the inadvertent but untimely filing of an initial brief. This decision quashes such a dismissal.
Fifth District: Arguments at Hearings
Posted on June 16, 2008This decision from the Fifth District involved an affidavit submitted on the day of a summary judgment hearing. The trial court disregarded the affidavit as untimely, but the affidavit contained only legal argument, not facts. The appellate court reversed the entry of summary judgment, holding that the trial court should have considered the affidavit's legal challenge.
Fifth District: More Certiorari
Posted on June 16, 2008A petition for writ of certiorari can be filed no later than 30 days after rendition of the order at issue. What if you receive the order on the 24th day, leaving only six days to draft and file a petition? According to this case from the Fifth District, the proper course is to file a timely but "bare bones" petition along with a motion to amend, setting forth the circumstances.
Fifth District: Certiorari
Posted on June 16, 2008Is excluding a witness or striking a defense the sort of ruling that can qualify for certiorari review? No, said the Fifth District in this case.
Fifth District: Arbitration
Posted on June 16, 2008Construing a 20-day limitation on seeking arbitration as a condition precedent to arbitration that can be addressed by the courts, and finding the condition not satisfied, a divided Fifth District in this case reversed a trial court's decision to compel arbitration.
Fifth District: First Amendment
Posted on June 16, 2008First Amendment fans no doubt cheered the Fifth District's decision in this case. The court reversed an order that, on privacy grounds, enjoined a television station from publishing documents in its possession.
Certified Conflict: Rule 1.525
Posted on June 16, 2008In this case, the Fifth District held that, under rule 1.525, a motion for fees and costs cannot be served more than 30 days after the entry of judgment. The court certified conflict with this decision from the Third District, which held that if the final judgment establishes a party's entitlement to fees, the timing of the party's motion to set the amount is not governed by rule 1...
Fifth District: Forum Selection Clauses
Posted on June 16, 2008The Fifth District's opinion in this case suggests how heavily the parties litigated whether the following forum selection language was permissive or mandatory: "The parties hereby submit to jurisdiction for any enforcement of this agreement in Minnesota...
Fifth District: Child Play
Posted on June 16, 2008The trial court in this case denied a grandparent's petition to adopt an adult grandchild after determining that the petition's true aim was to enable the pair to obtain otherwise unavailable federal benefits. The Fifth District reversed and held the adoption should go forward...
Questions, questions: Fundamental Error, Again
Posted on June 16, 2008In this decision from the Fifth District, the court certified the following to the Florida Supreme Court as a question of great public importance: DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME? A divided court answered the question in the affirmative...
Fifth District: Hearsay
Posted on June 16, 2008Criminal law fans may be interested in this decision from the Fifth District. The court examined whether a pawn shop transactional record constitutes inadmissible testimonial hearsay under Crawford v. Washington. The court held the document at issue was not prohibited hearsay.
Fifth District: Competency
Posted on June 16, 2008The end of this decision from the Fifth District points out that a motion to discharge one's counsel is invalid if the movant is incompetent.
Fifth District: Lis Pendens and Specific Performance
Posted on June 16, 2008In the context of a lis pendens dispute, this decision from the Fifth District explained that a document containing only an address, the names of the parties, and a sliding scale for a purchase price is insufficient to support a claim for specific performance of real property...
Third District: Downward Departure
Posted on June 13, 2008In the immediately preceding post, I mentioned this law, which increases numerous court-related fees across the litigation spectrum. Section 12 of that law also does something interesting with respect to the Third District: shrinks the court from 11 judges to 10...
Climbing Costs: Counterclaims and Cross-Appeals
Posted on June 13, 2008Florida litigants, take note. Costs are climbing at a court near you. Filing a suit? The filing fee just went up. Filing a counterclaim? There is now a fee for that, too. Filing a cross-appeal, or just joining someone else as an appellant or petitioner? You guessed it: there are now fees for taking such steps...
Closing Time
Posted on June 13, 2008The Judicial Qualifications Commission's ethics trial involving Judge Allen wrapped up Wednesday, ending what was surely a surreal experience for many. The Tallahassee Democrat and St. Pete Times both covered the event and described the apparently impassioned closing arguments...
Supreme Fun
Posted on June 13, 2008I had the privilege of speaking on a panel at the Practicing Before The Florida Supreme Court seminar held yesterday in Tallahassee. It was great fun, and the company was excellent. I saw old friends, and a few friends who are not so old -- which of course is happening more and more and makes me feel older every minute...
More Trying Times
Posted on June 11, 2008Those interested in the Judicial Qualifications Commission's ethics trial involving Judge Allen may wish to check out today's St. Pete Times and Tallahassee Democrat.
Blogger Outer
Posted on June 11, 2008One of the many good things about never having blogged anonymously is that no one ever considered it newsworthy to discover who I am. That is not so for the attorney blogger discussed in this story.
Appellate Moves
Posted on June 11, 2008In terms of internal movement, Florida's appellate courts are more glacier than river. But as with many a glacier, the often imperceptible movement at times becomes a bit extraordinary. The last several months saw the Governor appoint Judge Dorian Damoorgian to the Fourth District, Judge Jay Cohen to the Fifth District, and Judge Nelly Khouzam to the Second District...
Abstract Wonder
Posted on June 11, 2008When I started this blog, it received about 20 hits a day, and I assumed they were from either me or my mother. I have never marketed it, never tried to turn it into a promotional piece for my personal practice. And yet folks somehow came across it and started reading it...
Trying Times
Posted on June 10, 2008Those interested in the Judicial Qualifications Commission's ethics trial involving Judge Allen may wish to check out the press reports on the event, which as I understand started yesterday and is supposed to end Wednesday. You can read about it in today's St...
Fifth District: Mediation Matters
Posted on June 10, 2008When I read about someone being sanctioned, or being considered for sanctions, I tend to view the situation in one of two lights: either, wow, on a bad day maybe that could have been me, or, well, I hope I never get so deep in the mud I do something like that...
Long Road, Still Winding
Posted on June 09, 2008As I get back into full blogging gear this week, I thought I would say a few words about why I stopped for so long. The chief reason is a pro bono project that I took on last year that, as it turned out, required substantial involvement. I had been working on it for some time when it became clear I needed to find large blocks of time to devote to it...
Whoa, Judge
Posted on June 04, 2008As this press release shows, Governor Crist has announced the appointment of Florida Sixth Judicial Circuit Judge Nelly Khouzam to the Second District Court of Appeal. Congratulations to Judge Khouzam. To my knowledge, this appointment marks the first time two spouses have served together on a district court of appeal...
Temporary Post -- Appellate CLE
Posted on May 20, 2008Abstract Appeal has been silent for many months now while I've tended to numerous other things. Yes, it's coming back -- probably within the next week. In the meantime, I'm hosting a CLE today at which this document might come in handy. Feel free to open it and save it locally.
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I was fired on June 3, 2002 in Massachusetts because I reported discriminatory behavior by the employer towards a particular nationality. In July I filed a discrimination/retaliation complaint against the employer with t
It seem sin your case that the fact you filed the complaint prior to being dissa...
Can the CA Local Child Support Angency put a lein on your bank account when you are all ready paying your support?
Hello and Thank you for your question.
Your brother needs to file an Ex Pa...
My children's school is falsely charging me with truancy. The local district justice works for the school in the most blatently open way. And his wife works for the district, too! They have violated private health record
I am no lawer by any means, so I would love for someone to verify what I have to...
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