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Friday, July 8, 2011

People Say I’m Lazy…

Dreaming my life away. Well they give me all kinds of advice…

You know the rest. Lennon had been spending time raising a family in New York. My story is a little different.

When I abruptly stopped posting in late February, I expected the break to last about 10 days. It was, as it always is, a briefing problem — I found myself headed toward a motion to rehear a no further extensions order, and I could not allow that motion to be preceded by time obviously spent here. The motion was granted, and that very important brief then ran into the time when I needed to be preparing another important brief, and so on. Things cascaded. I tend to have a bit going on, and the work I have is wonderfully interesting, so when things tumble together, they really tumble together, and it becomes difficult to find the massive amount of time it takes to head back here and re-energize the place.

By my rough totals, I wrote over 340 pages of briefs since I last posted. Three of those briefs involved cases with thousands of pages of trial transcripts. Whew. So where was I? Writing. Those who have long stopped by Abstract Appeal hopefully know that I never let this site interfere with giving my best efforts to my work.

A few other interests certainly affected my ability to return here. I spoke at this Hot Topics appellate seminar in Jacksonville, this Defense Research Institute appellate seminar in Orlando, a Product Liability Advisory Council seminar in Coral Gables, and this Florida Supreme Court appellate seminar in Tallahassee. They were tremendous fun. I also created and hosted this terrifically fun seminar in Tampa that featured all 14 of the Second District’s judges, and I had the honor of visiting Tallahassee and speaking to Solicitor General Scott Makar’s FSU Law School class.

I wrote a short article that is just now being published in The Record, and I squeezed in reading two books, too, one of which I highly recommend.

Somehow I managed to keep running. Barely. I may have run more races than training runs, which is backwards. The races included three 5k’s, one 8k, one 10k, one 15k, one half-marathon, and one full marathon. Debbie and I had a great time on a trip to New York, which incidentally gave me a chance to sneak in a 20-mile run in Central Park, going past The Dakota a few times with somber thoughts. We also visited Connecticut for my grandfather’s 90th birthday. Inspirational.

I regret that I missed the chance to comment on some significant events. This year’s legislative session was controversial, with multiple bills aimed squarely at the appellate judiciary. The Casey Anthony case has been a noteworthy saga, too, in many respects.

I served two briefs this week, and when I did so, the backlog that began in February ended. Things are back on track. I am looking forward to an exciting year as the new chair of the Appellate Practice Section and to catching up here.

I have dearly missed it.

Thanks for stopping by.

POST-SCRIPT: As you can tell, I have not been able to return here for quite a while. The opportunities I have had since I last posted have been extraordinary. I am grateful for them and appreciate how, in many ways, this site helped pave their path for me. I will eventually update this site. It means too much to me for it to come to an unremarkable end at this point. Time will tell how. In the meantime, as always, thanks for stopping by.

Monday, February 21, 2011

Hey Legislature: That MedMal Immunity Is Illusory

This decision from the Fourth District examined section 768.135, the title of which references immunity for volunteer sports team physicians.

There is a problem. As the court pointed out, the statute’s immunity applies only where the volunteer physician acts “as a reasonably prudent person similarly licensed to practice medicine would have acted under the same or similar circumstances.” This standard essentially mimics the general tort standard for liability. After all, the volunteer team physician would not be liable in the first place if he or she acted reasonably. The court thus characterized the statute’s grant of immunity as illusory and invited the legislature to revisit whether it intended this law to have any meaning.

The court also dealt with the statutory “similar specialty” requirement for expert testimony and declined to interpret it as requiring that an expert have the same precise specialization area as the defendant.

Fourth District: No Jurisdiction, But Directions

The plaintiff in this case attempted to appeal a circuit court’s order refusing to reopen a file. The Fourth District determined that the order was not appealable as a final or non-final order and dismissed the appeal.

Interestingly, despite the lack of jurisdiction, the appellate court observed that the rules of civil procedure do not permit a case file to be closed simply for being dormant and directed the circuit court clerk to reopen the file.

A peculiar win.

Fourth District: Treating Treaters As Experts, Or Not

This decision from the Fourth District considered whether a treating physician was an expert whose opinions were required to be disclosed prior to trial under rule 1.280(b)(4). The court held that disclosure was required for a treating physician only for opinions acquired or developed in anticipation of litigation or for trial, and because the opinions at issue were not shown to meet that standard, the rule did not require disclosure.

Second District: Fake Prescriptions, Privacy

For search and seizure purposes, can a defendant have an expectation of privacy in a fake prescription? No, said the Second District in this case.

Fourth District: Uninsured Motorist Coverage

Suppose a man signs a document rejecting uninsured motorist coverage under an auto insurance policy. Can the man then sue his insurance agent for negligently failing to procure uninsured motorist coverage? No, said the Fourth District in this case, even if the man claims he did not read the document.

Fourth District: Face-To-Face Informants

Criminal law fans may wish to check out this intriguing decision. The Fourth District reversed a conviction because the vehicle stop that led to the appellant’s arrest was not based on a reasonable suspicion. The case turned on the usefulness of an anonymous but face-to-face informant.

Friday, February 18, 2011

Third District: You Can’t Do That That, Either

May a Florida appellate court issue a decision that reverses a lower court’s decision without explaining why — the so-called per curiam reversal? No.

Does that prohibition extend to certiorari orders that quash lower tribunal decisions without explanation? Yes, as the Third District held in this decision.

Second District: You Can’t Do That

A defendant in a criminal case requests an instruction on a lesser-included offense, is convicted of the lesser-included offense, and then contends that the evidence was insufficient to support that conviction. Can you do that?

It was tried in this case, where the Second District explained that, under such circumstances, the conviction for the lesser-included offense is valid if the evidence supported the greater offense. Any argument on the evidence as to the lesser-included offense is waived in exchange for giving the jury an opportunity to exercise its pardon power.

First District: Nursing Home Battery?

I have no idea whether this case drew any attention in the Tallahassee area, or what the story behind the story could be, but it does seem peculiar that a man who took his 94-year-old mother from a nursing home to a hospital emergency room was charged with, and convicted of, battery. On his mother. For helping carry her to his car.

The First District reversed.

Third District: Open and Obvious Dangers

Is the oil in a deep fryer in a bakery’s kitchen an open and obvious danger to employees of an independent contractor hired to clean the exhaust hood over the fryer?

The Third District divided over such a question in this case.

The majority essentially determined that questions of fact exist, based largely on evidence that the bakery owner should have turned off the fryer sufficiently before the work began to ensure that the oil was cool.

Judge Rothenberg dissented. She asserted that the kitchen was open and being used during the cleaning and that hot oil in a fryer was an inherent danger of the job.

Second District: Negligence During Arrest

This decision involved the differences between intentional and negligent acts. The case stemmed from an off-duty police offer’s arrest of a man at a flea market. The market’s operator employed the officer to provide security, and the man sued the flea market operator for personal injuries, claiming negligence in connection with the officer’s alleged use of excessive force during the arrest. The operator’s insurer filed an action to determine if it had to provide coverage and a defense, arguing that the man’s claims fell within a policy exclusion for assault and battery.

A trial court concluded that the insurer owed coverage and a defense, but the Second District reversed. The appellate court determined that the officer’s alleged use of excessive force was an intentional and not negligent act that triggered the policy’s battery exclusion.

The case raises some interesting questions about the protections the law gives to police officers and how those protections impact others when an officer acts as another’s agent.

Third District: Surveillance Videos

In this case, the Third District granted a certiorari petition and quashed an order requiring production of a surveillance video because the order did not first afford the surveilling party an opportunity to depose the subjects of the video.

First District: Settlement Proposals

In this case, the First District reversed an order finding that an insurer’s nominal offer of judgment was not made in good faith. The trial court considered only objective factors, such as the amount of the proposal and the amount at issue in the litigation. However, as the district court explained, settlement proposals must be examined under a subjective standard, and whether an offer is made in good faith ultimately turns on the offeror’s subjective motivations and beliefs.

First District: Attorney’s Fees Findings

Just a quick reminder here from the First District: fee-shifting awards must include findings on the reasonable number of hours worked, the reasonable hourly rate, and the appropriateness of any reduction or enhancement.

Wednesday, February 16, 2011

New Appointment — Judge Conner

Congratulations to Judge Burton Conner, whom Governor Scott has appointed to the Fourth District Court of Appeal. Since 1997, Judge Conner served as circuit judge in the Nineteenth Circuit.

The Governor’s announcement is available here.

Eleventh Circuit: Florida Robbery, A Crime Of Violence

Florida’s robbery statute is a generic robbery statute. So said the Eleventh Circuit on its way to holding that an attempted robbery conviction under Florida law constitutes a crime of violence for federal sentencing purposes. The decision is available here.

Eleventh Circuit: Forum Selection Clauses

This decision from the Eleventh Circuit considered the enforceability of a forum selection clause in an Alabama class action brought against a litigation funding company. The putative class claimed that its contracts with the defendant were void under Alabama law as unlawful gambling contracts. The contracts themselves called for disputes to be litigated in state court in Cook County, Illinois. After the district court denied the defendant’s motion to dismiss and opened the door to an interlocutory appeal, the Eleventh Circuit determined that it should review the enforceability decision de novo, and, doing so, reversed.

Eleventh Circuit: The Power of Two, And Of A Picture

This decision by the Eleventh Circuit caught my eye for three reasons.

First, the panel ultimately consisted of only two judges because a third judge originally assigned to the case retired months ago. The quorum agreed on the case’s disposition and resolved the case.

Second, the decision contains some interesting challenges involving the Drug Trafficking Vessel Interdiction Act, including a discussion of how the United States may regulate stateless, unflagged vessels traveling in international waters. The interdiction at issue occurred 163 nautical miles off the Colombian coast, which Colombia considers within its territorial waters.

Third, the decision ends with an appendix containing a color picture, apparently taken from a helicopter and showing the interdiction of the sinking semi-submersible vessel at issue in the case.

Tuesday, February 15, 2011

Repeal Zeal

This story in the St. Pete Times discusses a legislator’s efforts to clean Florida’s statute books and repeal laws like this one, which makes it a crime to live in open adultery, and the portion of this law that makes it illegal for a man and woman not married to each other to “lewdly and lasciviously associate and cohabit together.”

Did you know that Florida law currently prohibits riding a bicycle without at least one hand on the handlebars? Subsection 7 of this law says so, and it’s under the repeal microscope, too. Same with this law, which prohibits coasting downhill with the transmission in neutral.

Monday, February 14, 2011

Fifth District: 57.105 Appellate Fees

Can you obtain an appellate attorney’s fees award under section 57.105 based on a lack of merit with regard to the trial court proceedings? No, explained the Fifth District in this decision. An appellate court’s fee award for lack of merit should be with reference to the appeal, not the trial court proceedings.

As the district court stated, “In many cases, it may be the same, but often, not.”

First District: Justifiable Reliance

Those who follow fraudulent and negligent misrepresentation cases should be interested in this decision from the First District. The court held that, because justifiable reliance is not the equivalent of due diligence, “a misrepresenter is precluded from arguing that the recipient of information did not justifiably rely because he or she failed to conduct an adequate independent investigation.”

One might wonder how much of a role the word “adequate” plays in that statement. The answer may come later in the opinion, where the court held that if the recipient of false information does undertake an investigation, “the element of justifiable reliance does not fail as a matter of law.”

First District: Waiving Workers’ Compensation Appeals

This decision serves as a simple reminder that, under rule 9.180(b)(2), a claimant in a workers’ compensation case waives the right to appeal from an abbreviated final order unless a request for findings of fact and conclusions of law is timely filed.

First District: UAC Findings

Unemployment law fans may be interested in this decision, where the First District urged the Unemployment Appeals Commission to demand accurate, specific fact-finding from its referees. For lack of such findings, the district court reversed a decision and remanded for further proceedings.

Judge Altenbernd: Nelson Assistance Needed

In his concurrence in this case, Judge Altenbernd echoed the calls of opinions past in asking the circuit court conference to create a bench book to assist trial judges with Nelson hearings.

Fifth District: Dangers To The Public

Can a habitual thief, “willing to steal anything and everything” but with no history of violence, be found to pose a danger to the public? Yes, said the Fifth District in this case.

Fifth District: Damages

Those interested in personal injury cases may wish to note this decision, where the Fifth District reversed a judgment that awarded a plaintiff future economic damages but no future noneconomic damages. The appellate court determined that some future noneconomic damages should have been awarded and remanded for a new trial on damages.

Second District: Appellate Costs

Just a simple reminder at the end of this decision from the Second District: motions for appellate costs are not properly filed in the appellate court. The district court struck such a motion.

Friday, February 11, 2011

Fourth District: Appellate Rules In Disguise

Can you think of a rule of civil procedure that acts like a rule of appellate procedure by expressly directing how an appellate court should act in a particular situation?

How about rule 1.530(f)? It provides that if a new trial ruling fails to state specific grounds, the appellate court shall relinquish jurisdiction to the trial court for entry of a more specific order. The Fourth District followed that procedure in this decision.


Fourth District: Local Dangerous Dog Ordinance Invalid

Broward County has an ordinance providing that if a dog off its owner’s property kills a domestic animal, then the dog is a dangerous dog and shall be euthanized. An owner whose dog escaped and killed a neighbor’s cat challenged the ordinance as invalid because it conflicts with state law.

The Fourth District agreed. The district court’s decision pointed out that under state law, a dog is classified as a “dangerous dog” if it has more than once severely injured or killed a domestic animal while off the owner’s property, and a dog previously declared dangerous is to be euthanized if it attacks a domestic animal without provocation. The court put those concepts together and concluded that, under state law, “a dog would have to kill at least three domestic animals before section 767.13(1) would require its destruction.” The court then held Broward County’s ordinance invalid as being in conflict with the state’s statutes.

One might note that, under the statutory scheme, and contrary to the district court’s observation, a dog could be destroyed if it twice severely injures a domestic animal, is declared dangerous, and then attacks a domestic animal. Killing three domestic animals does not appear necessary. Whether the court’s contrary statement is corrected or left in place would not seem to alter the court’s conclusion that the ordinance and state law conflict.

The good news for the appellant and his dog is that the dog, which has been in the county’s custody, will not be put down. The bad news is that the appeal began in September 2009, which suggests that the dog has been in custody for well over a year and a half.

Florida Supreme Court: 57.105’s Safe Harbor

In 2002, the legislature amended section 57.105 to include a safe harbor provision that requires those who take assertedly meritless positions in court filings to be given a chance to withdraw those filings before a motion for sanctions can be filed. Does the safe harbor requirement apply to filings that pre-date its July 1, 2002 effective date?

The Florida Supreme Court confronted that question in this case and answered it in the negative. The court determined that the amendment was substantive and that the legislature gave no indication it was intended to be applied retroactively.

As a result, a person moving for attorney’s fees with respect to a filing that predates the amendment’s July 2002 effective date need not send a safe harbor letter. The high court quashed this decision from the Fifth District that reached a different conclusion.

Fourth District: Defendants Opposing Defendants’ Summary Judgments

If a defendant moves for summary judgment on a plaintiff’s claims, can a co-defendant oppose that motion and move to continue the hearing while discovery is completed? Certainly, explained the Fourth District in this decision. The decision also shows that the co-defendant can appeal if the trial court’s rulings are adverse.

Fourth District: Lack of Prosecution

Before a case can be dismissed for lack of prosecution, how important is service of the notice referenced in rule 1.420(e)? Very. In this case, the Fourth District reversed a dismissal because no notice was served.

Thursday, February 10, 2011

Farewell To Counsel

This decision notes the recent passing of Kathy Ramers, an appellate practitioner who specialized in family law appeals and frequently appeared in the Second District.

She will be missed.

Third District: John Doe Pleading

This decision from the Third District reminds us that filing a complaint against “John Doe” is insufficient to commence an action in Florida against a real person in interest, and this deficiency cannot be corrected by serving the person.

Third District: Service Time

How much discretion does a trial court have when deciding whether to extend the time for service of process on an expired claim? Not too much, if good cause or excusable neglect is shown, as the Third District explained in this decision. The district court reversed a trial court’s order dismissing an action with prejudice after refusing to extend the service time.

Second District: Contempt

Trial courts may want to check out this decision from the Second District. The district court reversed a direct contempt judgment because the trial court did not determine whether the appellant was indigent and entitled to counsel. The appellant was a member of the public who attended a proceeding and apparently lashed out at the judge in open court.

Third District: Warranty Deeds and Homestead

Real property fans may be interested in this decision, where the Third District considered the validity of a 30-year-old warranty deed transferring homestead property from a tenancy by the entireties to just one of the spouses. The appellants unsuccessfully argued that the warranty deed was an insufficient waiver of the constitutional homestead right.

Third District: Insurance Appraisals

Insurance fans may wish to check out the Third District’s decision in this first party case, which held that until a policy’s post-loss conditions were met, a trial court could not order an appraisal on the amount of loss.

Second District: Certiorari, Presuit

Medical malpractice fans may be interested in this decision. The Second District held that claims against pharmacists and a hospital did not require presuit notice because the pharmacists were not health care providers under the presuit notice statutory scheme and the hospital was not sued for medical malpractice.

Second District: Certiorari, Abatement

This decision from the Second District explained that orders abating proceedings can be reviewed by certiorari. The decision also held that abatement can be based on a second proceeding only where a “strict identity of parties” exists and “the plaintiffs and the defendants in the actions are the same.”

Wednesday, February 9, 2011

Health Care Litigation Fallout

Today’s Palm Beach Post has this story about Florida’s position on the 2010 federal health care legislation after a federal district court entered a judgment for Florida declaring the law unconstitutional.

Florida Supreme Court: One Case, Multiple Losers, And A Discovery Question

In this attorney discipline decision, the Florida Supreme Court disbarred the respondent because he practiced law during a previously imposed three-year suspension from practice.

The case struck me as noteworthy for two reasons.

First, this was a disciplinary proceeding brought by the bar, and three justices joined a concurrence that heavily criticized the bar’s counsel for misrepresenting the record at oral argument and not afterward correcting the misstatements. Apparently the bar’s counsel repeatedly stated that the bar had objected to certain evidence presented below — once even saying the bar had “repeatedly and vociferously” objected — when it had not objected at all.

By implication, the concurrence tells all attorneys who argue before the court that misstatements made during oral argument should be corrected.

Second, the majority opinion criticized the respondent for how he responded to interrogatories seeking mitigation evidence to be used at the hearing. The respondent answered that any potential mitigation had not yet been determined, and he never supplemented that response, but at the hearing he presented mitigation evidence concerning his mental health. Under these circumstances, the majority stated: “[W]e feel compelled to reiterate that parties who evade their discovery responsibilities will not be permitted to benefit from such improper tactics.” As the concurrence pointed out, though, it was never determined that the response was untrue when made, and rule 1.280(e) specifically provides that there is no duty to supplement proper responses with information later acquired. Exactly what was improper about the discovery response is not clear.

Florida Supreme Court: Bankruptcy, Personal Property Exemption

In this decision, the Florida Supreme Court considered a question certified by the Eleventh Circuit regarding whether a bankruptcy debtor can claim this statute’s $4,000 personal property exemption if that person owns homestead property but elects not to claim the constitutional homestead exemption. The supreme court’s answer was yes.

Florida Supreme Court: Help On Jimmy Ryce

In December, I published this post about a Second District pass-through order that sent a Jimmy Ryce Act dilemma straight to the Florida Supreme Court. As the post explained in some detail, the case involves a man who has been detained for eight years under Florida’s Jimmy Ryce Act without receiving a trial or treatment. The act permits the involuntary civil commitment of sexually violent persons.

The man’s Jimmy Ryce case is proceeding Broward County, in the Fourth District’s territory, but he is being detained in DeSoto County, in the Second District’s territory, and filed a habeas corpus petition in DeSoto. The circuit court denied the petition and the man appealed. Under these geographic circumstances, the Second District doubted its jurisdictional authority to order relief, so the district court certified the matter for immediate resolution by the state supreme court.

In this order, a divided supreme court stayed the Jimmy Ryce proceeding and relinquished jurisdiction to the Broward court to resolve a number of issues relating to how things got where they are. From the list of issues, which include obtaining details about the lack of treatment for pretrial detainees and whether the case’s inordinate delay has rendered the man’s commitment unlawful, it appears that the high court is interested in learning more about the larger picture of detainees, trials, and treatment.

Tuesday, February 8, 2011

Red Bull Defense?

Today’s St. Pete Times has this story about how prosecutors in St. Petersburg are evaluating a murder suspect’s apparent claim that he was insane at the time of the crime due to a combination of sleep deprivation and Red Bull.

First District: Family Law, Delayed Rulings

This decision shows that a reversal can be built upon a lengthy delay in issuing a decision and an indication that something is “seriously amiss on the merits.”

The First District reversed a dissolution judgment entered more than a year after the trial court held an evidentiary hearing on the matter.

The district court identified “two key factors” in spotting something seriously amiss: inconsistency between the judge’s statements or findings at trial and the written order, and whether a factual finding is unsupported by the evidence.

First District: Administrative Hearings

Administrative law fans should also be interested in this decision, where the First District took a division of the Department of Business and Professional Regulation to task for determining that a permit applicant lacked standing to challenge the denial of its permit application. The court noted that the underlying decision was “so contrary to the fundamental principles of administrative law” that the court granted the appellant’s motion for attorney’s fees.

First District: Administrative Finality

Administrative law fans will appreciate this decision, which held that the appellate court lacks jurisdiction to review a hearing officer’s “final order” under section 409.1541(5)(b), Florida’s Road-To-Independence scholarship program for former foster children.

The First District explained that the order did not constitute final agency action and so could not be reviewed by the court.

First District: Impact Rule

This decision should be interesting to those who follow Florida’s impact rule, a rule that somewhere along the way morphed from being rooted in duty limitations to one framed as a matter of necessary damages. The First District reversed a negligent infliction of emotional distress award involving a family member who dismembered his mother’s body and scattered her burnt remains on the family farm.

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