Archive for September, 2010

Third District: Ban on Adoption By Homosexuals Unconstitutional

This morning, the Third District released this decision, which declares Florida’s statutory ban on adoption by homosexual persons unconstitutional under Florida’s constitution.

The provision at issue is subsection (3) of this statute. It categorically prevents homosexual persons from adopting a child, regardless of how fit the person is or whether the adoption is in the child’s best interests.

The high profile case was brought by a man who fostered two previously neglected children and whose application to adopt them was denied under the statute only because he is a homosexual. He challenged the law’s constitutionality, and a trial court agreed that the law violates the equal protection guarantee of Florida’s constitution. The trial judge determined that the law lacks a rational basis to discriminate between homosexual and heterosexual persons.

The Department of Children & Families appealed to the Third District. Today, that appellate court affirmed the judgment, agreeing that the law lacks a rational basis to support the disparate treatment of homosexual and heterosexual persons who wish to adopt children.

The three-judge panel’s decision was unanimous. Judge Salter wrote a concurrence that discussed the case’s facts in detail, offered some additional legal analysis, and openly hoped that the litigation would end at this stage.

The Florida Supreme Court must review this decision if the state chooses to appeal, but the state is not legally required to appeal.

Fifth District: Rebuking The Active Judge

This opinion really caught my eye.

During a jury trial on damages against defaulted, absent defendants, the trial court sustained its own objections to hearsay evidence offered by the plaintiffs. When the court determined that the plaintiffs’ only witnesses were themselves and that they were relying on inadmissible hearsay, the court dismissed their claims without prejudice. The limitations period had expired.

Not surprisingly, the plaintiffs appealed. The Fifth District reversed.

More in the way of a surprise was the district court’s discussion. The operative portion states:

In this case, it was improper for the trial court to interject itself into the trial below by making evidentiary objections during the course of Ramos and Murphy’s case-in-chief, and to thereafter determine that the evidence of damages was insufficient to support the entry of a damage award. Accordingly, the trial court’s dismissal order is reversed and this matter remanded with instructions that a new trial be held before a different judge on the issue of damages. See generally Spencer v. State, 615 So.2d 688 (Fla. 1993) (holding that trial judge’s sua sponte excusal of jurors for allegedly having low IQ’s was reversible error in prosecution for first-degree murder).

Most intriguing is the court’s declaration that the trial court improperly interjected itself by making evidentiary objections during the plaintiffs’ case. Is the district court holding that trial courts cannot block the admission of inadmissible evidence when only the plaintiff is present at trial?

Next, note that the court’s only citation to authority is a case involving a trial court that struck prospective jurors on its own motion. Is that the closest the prior case law comes to this situation?

Finally, it bears pointing out that the district court ordered the case transferred to a new judge. Appellate folks might want to tuck that nugget away for future use.

Fifth District: Writs and Remedies

It is often said that an extraordinary writ is not available where the aggrieved party has an adequate remedy by appeal. What if no appeal was taken? In other words, what if there was an appellate remedy but it is no longer available?

This decision from the Fifth District shows that the test is not whether a remedy remains available but whether the law provided one at all.

Fifth District: Dissolution Fees

Where divorcing spouses are on equal financial footing, awarding one side attorney’s fees is an abuse of discretion, at least in the Fifth District. For an example, look here.

First District: Workers’ Compensation, Privilege

Workers’ compensation fans may be interested in this decision from the First District. The court granted a certiorari petition to block discovery of documents prepared by an attorney during the intake process, holding they were protected by the attorney-client privilege. By the court’s description, the materials were the product of communications between an attorney and client. The court did not explain how the documents were, themselves, actually communications.

The court also held that interrogatories are not available as a discovery method in workers’ compensation proceedings.

Abstract Fun

For the peculiar persons who may be interested, I’ll note that the site’s rebuild is nearly complete. There were numerous features I wanted to include — the popular posts boxes at the top center of the home page being good examples — and they are now all completed.

Some of this has been a challenge. Just yesterday I spent a rather silly amount of time figuring out how to display those boxes with the second lines of each bullet point nicely indented in all browsers. I think that now works, and the look is much more neat, especially for folks using browsers with low resolution.

Speaking of resolution, I am astounded at how many people out there are still using 800 x 600 or 1024 x 768 displays. The content-rich web must look painfully coarse on those screens. I have tried to make this site look respectable even at those resolutions.

Simple as it is, the horizontal line up top right below the popular posts boxes gives me a nice floor for displaying quotes or images or whatever comes to mind. The currently displayed quote by Judge Schwartz is the first of many items to find their way into that space.

I started the rebuild with a long to-do list. It is now down to two main items: adding links to a number of good blogs that are not geographically-based legal blogs, and, once that is done, wrapping all of the 2003-09 static archive pages in the new template.

For those who wonder why a rebuild ends up looking largely like the old site, the answer is simple: I like the basic look and layout here. It is somewhat unique, functional, simple, and, at least in my view, suitably professional for what I try to do here. Besides, it took me a long time to create it the first time.

So once I have knocked out the remaining to-do items, I can focus on content. I will surely tweak things from time to time, and if anyone notices a problem please let me know, but I will try to spend my time here working on posts, not behind the scenes changes. There sure is a lot to talk about.

Thanks for stopping by.

First District: Certiorari

In this decision, the First District granted a certiorari petition and quashed an order preventing the Department of Revenue from providing legal services on behalf of a father in an action to reduce his child support obligation. The mother asserted that the department had a conflict of interest because it had previously represented her in a contempt proceeding against the father. The district court rejected that argument, explaining that the department’s counsel represents the department, not a parent. The case is noteworthy for equating the department’s services with legal representation for purposes of a certiorari proceeding, despite rejecting an argument that general conflict of interest principles apply to those same services.

Bar Survey Results

The Florida Bar has released the results of this year’s attorney survey regarding the retention of our appellate judges. Check out the detailed results here.

Fourth District: Appellate Jurisdiction

Criminal law fans, quick: how many days does someone have to appeal from an order denying a rule 3.800(c) motion?

Trick question, of course.

Fourth District: Certiorari

Extraordinary writ fans — I know you are out there — you may be interested in this decision from the Fourth District. The court granted a former wife’s petition for writ of certiorari to quash an order requiring her to submit to vocational testing and permitting the former husband’s expert to block all recording methods. The court found irreparable harm, and a departure from the essential requirements of law, in the exclusion.

I suppose I qualify as a writ fan. I am the author of an extensive chapter on extraordinary writs in the bar’s “Civil Practice Before Trial” publication. This past summer I spent much time updating the chapter for the publication’s next edition, which is due out soon. This also reminds me — I meant to post about what I was doing this past year instead of blogging. I’ll do that.

Third District: Unemployment

Judge Schwartz has often turned a good line. In this case, he authored an opinion affirming a decision to award unemployment benefits to an employee who had made multiple mistakes. The mistakes did not amount to misconduct, however, so they were not a basis to deny benefits. “Several zeros are still zero,” the court tersely concluded.

Fourth District: BB Guns

Is every BB gun necessarily a deadly weapon? Apparently not. This decision from the Fourth District reversed a delinquency adjudication because, while the minor brought a BB gun to school, the evidence did not provide enough information about the weapon.

Fourth District: Plain Ordinary Hearsay

This statute calls for the Division of Elections to conduct investigations where complaints are made “based upon personal information or information other than hearsay.” The appellants in this case apparently argued that the commission should not have investigated them because the complaint against them was based on a campaign treasurer’s report. The report was a statement made outside of a trial or hearing, and thus it constituted hearsay under the evidence code.

Does the elections statute limit investigations to where complaints are made based on information presented at trials or hearings? The Fourth District said no, holding that “hearsay” as used in the elections statute must have its plain and ordinary meaning, not the technical definition found in the evidence code. To hold otherwise would be absurd, the court decided.

The court explained that the plain and ordinary meaning of hearsay is “an item of idle or unverified information; gossip; rumor.” The campaign treasurer’s report did not qualify as that kind of hearsay.

Eleventh Circuit: Insurance Damages

Contract fans, and especially insurance fans, might be interested in this unpublished decision from the Eleventh Circuit. The court held that a condominium association seeking replacement cost value for major hurricane damages had no right to recover from its insurer because, under the policy’s terms, the insured was required to pay for the repairs and seek reimbursement, and it had not done so.

The district court had applied the prevention of performance doctrine, but the circuit court held that doctrine inapplicable and that the cost or inconvenience of completing repairs could not relieve the association of the policy’s requirements. The court explained that the prevention of performance doctrine generally applies when one party is ready, willing, and able to perform and the other party prevents performance by imposing obstacles not contemplated within the contract.

That decision erased an $18.7 million award for replacement value damages.

Judge Farmer To Retire

Judge Farmer has announced his retirement, and we have a vacancy on the Fourth District.

The Fourth District’s Judicial Nominating Commission is now accepting applications. To view the JNC’s announcement, look here.

En Banc Eleventh Circuit: Hope For The Homeless

Is feeding the homeless expressive conduct under the First Amendment?

Orlando has an ordinance that requires a permit to conduct large group feedings downtown and limits permits to two per year per group or organization. The First Vagabonds Church of God and Orlando Food Not Bombs both challenged the ordinance in federal court on various grounds. The district court rejected various claims but held in the church’s favor on its free exercise claim and OFNB’s favor on its free speech claim.

On appeal, the Eleventh Circuit issued this decision.

Examining whether feeding the homeless constitutes expressive conduct, triggering free speech protections, the circuit court held it does not. The court explained:

[J]ust feeding people in the park is conduct too ambiguous to allow us to conclude that a great likelihood exists that an objective reasonable observer would understand that the feeders are trying to convey a message. Without the assistance of explanatory speech (T-shirts, buttons, banners, and so on), an objective reasonable observer would not know whether the group feeding was a family having a reunion, a church intending to engage in a purely charitable act, a restaurant distributing surplus food for free instead of throwing it away, or an organization trying to engage in a form of political speech.

Some who live in Florida cities where great numbers of homeless persons congregate in various locations, including parks, might find that view a bit difficult to accept, at least in terms of whether what is going on when the homeless are being fed is recognizable for what it is. Whether the conduct’s recognizability amounts to expressive conduct for constitutional purposes is perhaps another matter.

From its view, the court concluded that, under the circumstances of the case, “the conduct of simply feeding people” was not expressive conduct for First Amendment purposes.

The circuit court also rejected the free exercise claim, holding that the ordinance was a neutral law of general applicability that served a rational purpose, as well as challenges for vagueness, lack of equal protection, and violation of Florida’s Religious Freedom Restoration Act.

But the case is apparently not over. As reflected by this order, the full court has voted to rehear the case en banc, and as this follow-up order shows, the en banc court will focus on the free speech claim.

This post thus ends where it began: Is feeding the homeless expressive conduct under the First Amendment? We will see.

First District: What’s In A Name

If you wish to understand the “best interests of the child” burden a parent faces when seeking to change the name of a minor child, you may want to take a look at this decision from the First District. The court reversed an order that changed a minor child’s surname from her mother’s name to her mother’s and father’s surnames, hyphenated.

First District: Private Safety Exception

The First District has made its first use of the private safety exception to Miranda v. Arizona, an exception also known as the rescue doctrine.

In this decision, the district court held that the trial court properly admitted incriminating statements made by the defendant without first being given Miranda warnings. Officers saw him chewing something and asked how many crack cocaine rocks he had swallowed. His answer: one. The court applied a three-part test to determine that the officers had an objectively reasonable concern for the defendant’s life.

First District: Save Our Homes Saved

The First District has rejected an appeal by, and affirmed the judgment against, a group of out-of-state residents challenging the Save-Our-Homes constitutional provision and the 2008 portability amendment. The brief decision cites controlling authority and is available here.

Florida Supreme Court: Justifiable Confusion

Some may be interested to learn that, in a unanimous per curiam opinion, the Florida Supreme Court announced this past week that justifiable reliance is not an essential element of a fraudulent misrepresentation claim. The decision is available here.

To quote the decision: “Justifiable reliance is not a necessary element of fraudulent misrepresentation.” In the language that followed, the court recited the elements of fraud, describing the fourth of which as “consequent injury by the party acting in reliance on the representation.” The court then explained that the recipient of a fraudulent misrepresentation may rely on its truth even if an investigation would have revealed its falsity, unless it is obviously false or the recipient knows of its falsity.

The first portions of the court’s pronouncement would seem to be in tension with numerous decisions holding that justifiable reliance is an element of fraud.

Just a few months ago, in this case, the Fifth District held, “The fourth element of fraud is a justifiable reliance on the false statement causing injury.” Similar statements can be found here, here, and here, in recent decisions from the Third, First, and Fourth Districts, respectively.

Indeed, for decades, Florida case law has held that justifiable reliance is an element of fraud.

Did the supreme court mean to overrule that case law?

In both fraudulent and negligent misrepresentation claims, a plaintiff must prove reliance, but permissible reliance is qualified in both situations and not a matter of mere causation. In a fraudulent misrepresentation claim, permissible reliance does not include circumstances where the representation’s falsity is known or obvious. In a negligent misrepresentation claim, permissible reliance requires reasonable conduct by the plaintiff, including any investigation that should reasonably be done, and thus excludes unreasonable reliance.

Viewed in this way, both fraudulent and negligent misrepresentation claims require justifiable reliance, but what constitutes justifiable reliance differs between the two, and the judiciary’s frequent references to justifiable reliance as an element of fraudulent misrepresentation apparently referred to the particular reliance required to prove that specific claim.

The supreme court’s decision in this earlier case would seem to agree. The court spoke repeatedly of how a fraudulent misrepresentation claim requires reliance that is “justified” and discussed situations where reliance would “not be justified” as a matter of law.

The court’s latest discussion did not state an intent to change the law on fraud. Whether anything has changed remains to be seen.

Fifth District: Kidnapping Made Simple

A man at a hotel pool asked a child under 13 if she wanted to see the water pipes for the pool’s waterfall. The child said “okay” and followed the man to a wooded area behind a storage shed.

Did he kidnap the child?

In this decision, the Fifth District explained why it answered that question in the affirmative.

Florida Supreme Court: Rules Amendments

This past week, the Florida Supreme Court amended the civil procedure rules, effective the first of next year. You can read the court’s order here.

Among the highlights:

New rule 1.071 requires a party that files any paper questioning the constitutionality of a state statute or a local ordinance, charter, or franchise to file a “notice of constitutional question” (see new form 1.975) and serve it, with the paper, on the Attorney General. I suspect that this is a positive development from the state’s point of view. I note that the only related statute, section 86.091, is found in the chapter on declaratory judgments. There has long been an issue about whether this statute has any effect when the constitutional challenge is raised in something other than a declaratory judgment action.

New rule 1.285 provides a procedural scheme for addressing the inadvertent disclosure of privileged materials.

Rule 1.442 is amended to provide, in essence, that proposals for settlement need not be apportioned with respect to vicariously liable parties. (Whew.)

Rule 1.480(b) is apparently amended, in effect, to eliminate the need to renew at the close of all evidence a motion for directed verdict made at the close of the opposing party’s evidence. Preservation of error fans could have an interesting time discussing the true meaning of this change.

Fifth District: Testimony Read-Backs

Criminal law fans, if you have followed the current saga over how a trial court may respond when a jury requests a trial transcript, then you may be interested in this decision from the Fifth District. For those who have not followed, the case presents a nice overview.

Nomination Time

I noticed that the Judicial Nominating Commission for the Third District has released this announcement regarding the applicants for that court’s current vacancy, and on the applicant list is one of my fellow officers from the Appellate Section, Jack Reiter. It is great to see appellate specialists take an interest in this form of public service. Best of luck, Jack.

Third District: Can They Do That?

Once in a while, we see a case that is fascinating on legal and procedural levels. While the story is a bit long, it ends with a twist that should intrigue appellate fans.

You may recall the publicity over a pair of Coral Gables ordinances that prohibit “the parking of trucks, trailers, and commercial and recreational vehicles upon the streets or other public places” between 7 am and 7 pm and prohibit parking trucks in residential areas at all times unless parked in an enclosed garage.

The city cited a man, Kuvin, $50 plus costs for violating the first of these two because he parked his noncommercial pickup truck outside the Coral Gables home he rented. After the zoning board upheld the fine, Kuvin appealed through a circuit court certiorari petition claiming both ordinances violated his constitutional right to association and were unconstitutionally vague and arbitrary, as well as selectively enforced. The circuit court upheld the ordinances, and Kuvin appealed to the Third District. Three years ago, a divided panel reversed the circuit court’s decision through this opinion authored by the inimitable Judge Schwartz. Longtime readers may recall that I wrote about the original decision, and its three opinions, here.

The city successfully moved for rehearing en banc. Considering that the Third District is, in my experience, often our most expeditious district court in terms of releasing decisions, it is notable that the en banc process, without additional briefing or argument, took three full years. The process resulted in the en banc court vacating the panel opinion and the panel dissenter, Judge Rothenberg, writing the en banc majority opinion affirming the circuit court’s decision. Judge Shepherd authored a special concurrence, and Judge Cortiñas authored a dissent. The opinions can be found here.

Summing things up, the majority held that the ordinances did not infringe on Kuvin’s right of association and that the regulations were rationally related to a legitimate government interest, thereby overcoming Kuvin’s arbitrariness challenge to the city’s exercise of its police powers. The majority opinion traces a number of lines of Florida zoning-related case law and is notably positive about the ordinances at issue, explaining that they “make perfect sense.”

Judge Shepherd’s brief concurrence focused on the philosophical validity of reviewing these three-decades-old ordinances through a modern lens and the barriers inherent in judicial review of subjective regulations such as the aesthetic-based ordinances at issue. His citation of case law invoking Immanuel Kant might bring back memories for any former political science majors out there. Judge Shepherd departed from what he perceived to be the majority’s subjective embrace of the ordinances, essentially finding such judgments to be beyond the judiciary’s role. He also pointed out that some states place restrictions on municipalities’ power to adopt zoning regulations aimed solely at aesthetics — but not Florida.

Judge Cortiñas’s dissent, which Judge Salter joined, acknowledged that the ordinances were facially constitutional but asserted that they failed an as-applied challenge with respect to Kuvin’s noncommercial Ford F-150 pickup. The dissent characterized the majority’s rational basis analysis as “the proverbial rubber stamp.” By the dissent’s analysis, the city’s ordinances may have been rationally related to aesthetics when the ordinances were adopted in the 1970′s, but not today as applied to Kuvin’s noncommercial small light truck.

The dissent pointed out that, “under the subject ordinances, anyone wishing to dine in Coral Gables may not park a personal-use light truck in any public area of the City or any residential driveway.” The dissent also noted the city’s “elitism” in admittedly enforcing the ordinance against pickup truck owners but not owners of sport utility vehicles or station wagons.

The majority took issue with the dissent’s use of non-record information about Kuvin’s model truck and challenged the dissent’s reliance on an as-applied challenge regarding Kuvin’s particular vehicle. Apparently, Kuvin’s as-applied challenge extended to all trucks used for personal purposes.

Here is where the procedural intrigue enters. As mentioned above, Judge Schwartz wrote the now-vacated panel majority opinion. He is a senior judge on the court and thus not in regular active service. He therefore could not sit on the en banc panel (under rule 9.331(a)), and, even if he had, another vote with the dissent would not have changed the outcome. Nonetheless, on the same date the court released its en banc panel opinions, the court also released this order by the original panel denying the city’s motion for rehearing and certifying the following to the Florida Supreme Court as a question of great public importance:

MAY A CITY ORDINANCE, WHICH PROHIBITS THE PARKING OF ANY TRUCK IN A PRIVATE DRIVEWAY OR IN A PUBLIC PARKING SPACE AT NIGHT, AS APPLIED TO A PERSONAL-USE LIGHT DUTY TRUCK, BE UPHELD AS CONSTITUTIONAL?

Judges Schwartz and Cortiñas concurred in this denial and certification. Judge Rothenberg dissented, arguing that the original panel lacks jurisdiction to certify any question because the en banc court ultimately vacated the panel decision and determined the case itself. Even more intriguing, while I do not have copies of the filings, it appears from the docket that the city never moved for rehearing — it moved for rehearing en banc, and the panel entered an order unanimously ruling that the motion for rehearing en banc would be treated as including a motion for rehearing.

Can a panel certify a question of great public importance when the en banc court has taken and determined the case, and can the panel do so while denying rehearing when the only rehearing motion filed was one for en banc review? This is all most interesting.

Had two judges dissenting from the en banc court’s decision written that a question should be certified, it seems apparent that those opinions would not constitute an effective certification. If that is correct, then the validity of panel’s certification might come down to whether anything material changes when the panel judges rule on a rehearing motion directed at the panel, which of course assumes the panel properly construed the rehearing en banc motion to include a motion for panel rehearing.

We may never learn the answers. Kuvin may choose not to continue this litigation, and the supreme court could deny review, if sought, without revealing whether the result is jurisdictional or discretionary or both. We will see.

Fourth District: Fees, and “Blog” Arrives In The Case Law

This new decision from the Fourth District is interesting on many levels.

Subsection (7) of this Florida law turns contractual provisions allowing only one side attorney’s fees into bilateral provisions that allow both sides fees. Simple enough, but look what comes of it in a new case that includes Judge Farmer’s latest linguistic quips.

Assume a contract allows one side attorney’s fees in a particular class of dispute, and assume that sort of dispute will arise only when the party who drafted the contract sues the other party. Does the statute convert the one-sided fee right into a dual right to fees in any breach of contract action or merely a dual right in any breach action involving the particular class of disputes identified in the provision?

That was the issue in the new Fourth District decision. The court heard the case en banc, and the judges’ differing views resulted in three interesting opinions.

The actual provision at issue was found in a contract between a homeowner and a contractor and referenced only collection actions. A six-judge majority held that the statute converted the contractor’s right to fees in collection actions into a bilateral right to fees, but only in collection actions, not in a homeowner’s action for incomplete or inadequate construction work. So, if the contractor brings a collection action, whoever wins can be awarded fees under the contract. If the homeowner brings a workmanship claim, no one can be awarded fees under the contract.

Five judges dissented through two opinions. Judge Taylor authored the first, and the other four dissenters concurred. She focused on the phrase “any action” in subsection (7). She asserted that the statute allows a party to recover fees in “any action” where the contract allows the other party to recover fees in “any action.” Thus, a contract allowing one side to recover fees in one type of action should be construed to allow the other party fees in another type of action.

Judge Farmer authored the second dissent, and Judge Hazouri concurred. At only six pages in length, this dissent packs 15 footnotes (some merely Bryan Garner-style citation drops) and includes grammatical lessons (“Grammarians recognize three essential types of English sentences…”), views on how we now live in “a prevailing party attorneys fees word . . . whether Judges like it or not,” musings on how the modern legislative process (with the “dominance and pervasiveness of the one-minute news cycle of media-webs-blogs”) can produce no recognizable legislative intent, a hint of how the homeowner might seek further review, and a critique that the majority opinion amounts to judicial legislation.

That last part, the critique, is rather sharp. Judge Farmer says of the majority opinion:

Theirs is not strict construction. Theirs is not strict interpretation. Strictly speaking, theirs is nothing less than judicial legislation. The words of their holding should begin thus: Be it enacted by the Fourth District Court of Appeal, for their form of reformation actually enacts an entirely new and different statute for this district.

Strong language, to be sure.

Did anyone notice the blog reference mentioned above? While the word was used in the compound “media-webs-blogs,” making the occasion a little less remarkable, Judge Farmer’s blog reference still marks the first time the word has appeared in Florida’s case law.

Back to the substance of the case, I believe I follow both sides’ reasoning, but the dissents left me with an unanswered question. If the homeowner should be entitled to fees for prevailing in a workmanship action, would the contractor have been entitled to fees had it prevailed in that same action, based on the contractual provision allowing fees in collection actions, or does the statute give the homeowner a far broader fee right than the contract gives the contractor?

Fourth District: Dear Prudence

The sun is up.
The sky is blue.
Juror used a smartphone?
New trial for you.
-

Long time readers of this site know I enjoy slipping in Beatles references from time to time, and this fan could hardly pass up paraphrasing Lennon’s wake up call to Prudence Farrow after reading this decision from the Fourth District.

The court ordered a new trial for a criminal defendant, reversing a trial court’s contrary decision, because a juror used a smartphone to look up “prudent” or “prudence” online and discussed his findings with other jurors during deliberations.

The prudence of the defendant’s conduct was an issue in the case. Ultimately, the court relied on the principle that juror misconduct requires a new trial unless the party opposing the motion shows there was no reasonable possibility the conduct affected the verdict. There is no doubt that the juror’s acts constituted misconduct.

Notably, the court did not discuss the state’s position or how the contents of the online definitions could have affected the verdict.

The appellate court did mention that the juror used Encarta as his online dictionary of choice. So, presumably the juror saw this page, which is the result whether one looks up prudent or prudence.

Feed Change

If you are reading this post through an RSS Reader, I have good news and bad news. The good news is that Abstract Appeal is alive and running once again. The bad news is that recent changes have caused me to move the site’s feed. Please check the site’s left column for links to the new feed. Thanks.

Fourth District: Business Records

It is not every day that an appellate court issues a decision holding that a party properly used an expert witness to admit business records as evidence. It is today, though, as seen by this decision from the Fourth District.

Third District: Injunctions By Any Other Name…

The Third District’s decision in this case suggests that if you have an order that stays proceedings to maintain the status quo, then you have a temporary injunction and, thus, an appealable nonfinal order.

Eleventh Circuit: Remittitur and Appellate Jurisdiction

This decision from the Eleventh Circuit came out as I was rebuilding this site, and I tucked it away for when I returned. The decisions offers two “noteworthy” discussions.

One concerns remittitur motions. In footnote 22, which incidentally comes on page 20, the court reminds folks that a remittitur motion cannot stand alone but must be part of a motion for new trial. The court goes on to question the appellant’s failure to identify a specific figure to which the judgment should arguably have been remitted, stating:

Because Advanced did not indicate the amount of the remittitur or judgment reduction the district court should have ordered–put another way, since Advanced did not point the district court to a dollar amount that would not be excessive–it is unclear how the district court could have divined such amount.

I suppose there may be a tip to practitioners in there.

The second noteworthy point concerns jurisdiction. In footnote 14, which comes on page 12, the court explains how the district court’s order extending the time in which the appellant could file post-trial motions was ineffective to alter the jurisdictional consequence of taking more than the 10 days previously allowed by the rules to file such motions. Thus, the notice of appeal, filed after the trial court resolved the post-trial motions, was ineffective to confer jurisdiction on the appellate court to review the judgment. However, because the appellee failed to object to the district court’s extension order, the order was effective to extend the due date for purposes of ruling on the post-trial motions themselves, and since the notice of appeal was filed within 30 days of their denial, the appellate court had jurisdiction to review the denial order.

To sum that up: the appellate court had jurisdiction to review the denial of the post-trial motions but not the judgment itself.

A Twitter

After some debate, I have decided to utilize Twitter — with @AbstractAppeal, of course.

I will be the first to admit that not every post to this blog is worthy of a tweet. In fact, nearly every post is not. Only a rare post will mention something so noteworthy that I would pass it along by Twitter.

So, with the caveat that tweets will be extremely rare, but hopefully meaningful, feel free to head over to Twitter and sign up to receive Abstract Appeal Twitter updates.

Abstract tweets, I suppose I’ll call them.

A Little Tech Talk

The best way I can say it goes like this: I hope this thing works.

Abstract Appeal may look pretty much the same, but it is actually rebuilt from scratch. The application I previously used to manage my blog posts announced earlier this year that it would no longer support ftp transfer to the primary domains of web sites not hosted by Google. That change ended my seven-year relationship with Blogger, the tool that got this blog, and millions of others, running on the net.

After a good deal of research, I settled on WordPress as my new tool to manage posts. WordPress is very different from Blogger. It builds pages and dynamically serves them using PHP, and it took me time to learn how to make it work for me. Most significantly, since I did not want to use one of the ready-made WordPress themes, I had to get out the Dummies manuals and learn how to code what you see here so it looks the way I originally coded Blogger. Then I learned that my web host did not give me access to certain important server files, making it incompatible with how I wanted to use WordPress. So I needed to change web hosting companies, with all the foofaraw such things involve.

Along the way, I got to fix up scores of tiny details that I never took the time to fix in the past. I created an updated left-column link set that matches what I really use in practice, touched up a number of details in the graphics layouts, reconfigured the various syndication feeds, added boxes near the top of the main page to allow me to feature some recent case law and discussion posts, and more.

The fun part is that I got a small glimpse of how the web-based world works. To be sure, there is nothing fancy going on around here, and sort of like early Abba with English, I know only what I needed to know to do what I wanted to do.

So if you spot anything around here that looks wrong or acts odd, please let me know. This site is far from perfect. I just hope it works.

Almost There

The process took more work than one can probably tell from glancing around here, but the behind-the-scenes transitioning is now over. Whew.

So, tonight, I’m back to posting. I wonder if anyone will come by to read what I write. Perhaps. Unlike many bloggers, and “blawgers,” I have never been much of a marketer for Abstract Appeal. Its readers have been people who happened upon the site for whatever reason. When I first started this blog, I used to think that the hits came from just me and my mother. Well, and Debbie’s mom. This time, I have not even told them that I am restarting things. Maybe it will just be me.

That’s ok.

Now, if only I knew where to begin…