Archive for October, 2010

Second District: Marriage, Double Homestead Style

Somewhere between marriage and nonmarriage lies a middle state, a realm marked by a bona fide separation without financial connections that finds each spouse living permanently in a separate home. There, in that place, they can each receive…

a homestead exemption.

So said the Second District in this decision.

Fifth District: Election of Remedies, Construction Cases

Construction and surety fans may be interested in this case. A subcontractor ejected a sub-subcontractor in the middle of a construction project, without payment. The latter successfully brought a chapter 713 suit against the surety whose payment bond covered the project, collecting the value of the unpaid work. The ejected sub-subcontractor then sued the subcontractor in contract to recover lost profits for the work not performed. Is the second suit barred by the election of remedies doctrine? No, said the Fifth District.

Second District: Certiorari, Irrelevant or Nonexistent Materials

Can a petitioner seeking certiorari relief from a discovery order demonstrate irreparable harm by showing merely that the requested materials are irrelevant? What if the desired discovery does not even exist? The Second District addressed both situations in this case, and the answer in each respect was no.

Fifth District: Municipal User Fees

Local government lawyers, here is a case that may be up your alley.

In connection with wastewater services, Orange County imposes a “readiness-to-serve” user fee based on the size of a customer’s water meter. Customers who used 2.5-inch meters for their normal water use sued the county after the county assessed their fees based on their secondary 8-inch meters. The secondary meters were connected to the customers’ fire systems and were essentially unused except in the event of a fire or a sprinkler test.

The Fifth District explained that utility fees have been upheld for services regardless of whether an individual customer actually uses or desires a service, and finding this particular fee not arbitrary, unreasonable, or discriminatory, upheld it.

Florida Supreme Court: Bench Trial Evidentiary Error

In my experience, appellate counsel tend to discount the possibility that evidentiary rulings made during a bench trial can be the basis for reversible error. After all, there is case law holding that the judge presumptively relies on evidence properly admitted and ignores evidence improperly admitted.

(Some might say that such presumptions affect the very admission of evidence — courts sometimes seem to admit most anything in bench trials, characterizing the matter as merely one of the weight to be given to a particular piece of challenged evidence.)

No more. This decision from the Florida Supreme Court quashed a district court decision that presumed a trial judge ignored evidence erroneously admitted over objection.

After a lengthy discussion, the court set out three basic rules of review that apply regardless of whether improper evidence is brought to the trial court’s attention at a pre-trial hearing or during trial: (1) the trial court is presumed to rest its judgment on admissible evidence and disregard inadmissible evidence, (2) this presumption is rebutted where the trial court specifically finds the evidence admissible or otherwise demonstrates reliance on the evidence, and (3) even if the trial court erroneously admits evidence over objection, the presumption holds if the trial court expressly states on the record that the evidence did not contribute to the final determination. Of course, a harmless error analysis applies as well.

The court did not appear to limit its decision to criminal matters.

Trial courts, take note. Appellate counsel, enjoy.

Florida Supreme Court: Telling Jurors Why There’s An Electronic Research Ban

The Florida Supreme Court deserves a nod for this order, which revises even the newly revised jury instructions in civil and criminal cases with respect to electronic research by jurors.

The latest revisions not only tell jurors that they cannot conduct electronic research but tells them why they should not — namely, that when jurors conduct their own research, the parties have no way of knowing what was learned or responding to it, and this is contrary to the basic principles underlying our system of justice.

Jurors are far more likely to follow a rule when they understand why not following it would be unfair.

The new instructions also expressly reference “tweeting, texting, blogging, e-mailing, [and] posting information on a website or chat room.” Marvelous.

Fifth District: Second-Tier Certiorari

A second-tier certiorari petition focuses on whether the lower court afforded procedural due process and applied the correct law. The distinction between applying the correct law and applying the law correctly can at times be a bit murky. In that sense, check out this decision, where the Fifth District quashed a circuit court order that held a certain breathalyzer test unreliable. The district court concluded its opinion with a footnote that seemed to defend its use of certiorari.

Certified Question: Foster Care

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

Does the term “foster care” as used in Florida Statute section 409.1451(5)(b), concerning eligibility for the Road to Independence Program, encompass children placed with a non-relative court-approved guardian?

Interestingly, the court’s original decision, available here, unanimously answered this question in the negative. Thus, the certification represents the second time in recent weeks that the Fifth District has certified a question following a 3-0 decision. I mentioned the other instance below.

Second District: Absent Witnesses, Mary Carter Agreements

This case presented some interesting fact patterns. A defendant’s corporate representative — a former employee who lived out of state and who had previously testified in the case — elected not to attend a trial. He obtained a South Carolina court order quashing a local subpoena commanding his attendance. At trial, however, the court held the defendant responsible for the non-attendance and directed liability against it as a sanction. The trial court also prohibited the defense from introducing evidence of an agreement between the plaintiff and another defendant by which the plaintiff agreed not to hold other defendant liable in excess of his insurance coverage in return for admitting liability and not contesting damages.

The Second District reversed in both respects. The decision reminds us all that litigation over “Mary Carter” agreements originated here in Florida over 40 years ago.

Certified Question: Arbitration & Wrongful Death Claims

If a nursing home resident executes a broad agreement to arbitrate claims relating to the resident’s care at the home and the resident dies, is the resident’s estate bound by the agreement for purposes of a wrongful death claim?

The Fifth District confronted that question in this case. The court acknowledged that numerous Florida appellate opinions have ordered arbitration of wrongful death claims against nursing home operators, but none of them addressed this particular issue.

The court unanimously held that the arbitration agreement binds the estate. The court also certified the following to the Florida Supreme Court as a question of great public importance:


Arbitration fans, take note.

Fifth District: Intervention & Lis Pendens

The 2008 version of this statute barred holders of unrecorded interests in real property from enforcing those interests if they do not intervene in pending litigation within twenty days of the filing and recording of a notice of lis pendens, assuming the property is later sold at a judicial sale. Considering that rule 1.230 gives interested parties the right to intervene “at any time” during litigation, which provision controls in the context of a real property dispute — the 20-day limitation in the statute or the “any time” right provided by the rule?

The issue arose in this case. The appellant argued that the rule should control because the statute amounts to an unconstitutional infringement on the judiciary’s authority to adopt procedural rules. The Fifth District rejected that argument, holding that the statute is substantive and thus within the legislature’s purview.

It may be worth noting that the current version of the statute provides for a 30-day intervention period.

Certified Conflict: Speedy Trial

Rule 3.191 sets out a right to a speedy trial. For instance, a defendant charged with a felony who does not demand a speedy trial must be brought to trial within 175 days of being taken into custody. If charges are not brought within that period, the defendant cannot be prosecuted.

What happens if the state files an information at the end of the speedy trial period but does not notify the defendant of the charges until after, maybe long after, the period expires? Is the defendant entitled to discharge? Multiple districts have said yes, but in this case, the Fifth District said no and certified conflict.

Florida Supreme Court: The Persistence of Time Stamps, Or Not

What happens when you timely file a notice of appeal but the clerk’s office neglects to stamp the notice until the filing period has expired? Can you challenge the time stamp on the notice of appeal?

This decision from the Fourth District rejected the appellant’s efforts to overcome a supposedly untimely time stamp, holding:

[I]nterpreting rule 1.080(e) in a bright line fashion obviates the need to engage in any fact finding beyond the information stamped on the notice of appeal. Finite rules make sense. They are easy to follow, easier to apply, and remove doubt. And, while we are cognizant of the fact that it is within the realm of possibility that the clerk’s date stamp machine may, from time to time, produce an incorrect date, prudent attorneys and clerks always have the option of paying closer attention to such details before the jurisdictional time limit expires.

The result was considerable concern in the appellate community over what counsel must do to ensure that a timely filed notice is timely stamped by the clerk’s office. Appellate counsel with statewide, regional, and certainly national practices do not regularly file notices of appeal in person. They are sent by an overnight service or by courier. In some Florida circuit courts laboring under significant staffing constraints, a notice of appeal filed today might not appear on the court’s docket for many days, and the date indicated on the docket may not match the date actually stamped on the notice itself. It is one thing to confirm that a clerk’s office timely received a document — it is another thing to confirm what date is actually stamped on the original.

In this decision, the Florida Supreme Court reviewed the Fourth District’s decision and held that where an appellant asserts that the time stamp is incorrect, a district court may refer the matter to the lower court for an evidentiary hearing at which the appellant can attempt to overcome the time stamp’s presumptive correctness. The court rejected the Fourth District’s focus on certainty over accuracy, holding:

While a bright-line rule that the clerk’s stamp is dispositive of the filing date will certainly secure a speedy and inexpensive determination of the action, it will not necessarily secure a just determination. In those rare cases in which a paper is delivered to the clerk’s office within the jurisdictional time frame, but for some reason—through inadvertence or error—is not timely stamped by the clerk, the litigant will be denied a just determination of the action if the litigant is precluded from presenting competent, substantial evidence to prove that the deadline was met. We stated long ago that “[w]hile our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.”


Florida Supreme Court: Interesting

The Florida Supreme Court was almost brusque in this decision on prejudgment interest. The court quashed a district court ruling disallowing prejudgment interest for lost profits. The district court viewed the loss as unliquidated, and therefore not appropriate for prejudgment interest, because the amount was uncertain until fixed at trial. The supreme court rejected that analysis, holding that under clear supreme court precedent, whenever losses are wholly economic, and a verdict liquidates their amount and the date of loss, the plaintiff is entitled to prejudgment interest from that date.

The supreme court maintained a significant exception for personal injury cases. The court stated that the “speculative” and “indefinite” nature of some damages in personal injury cases, such as pain and suffering, justifies precluding prejudgment interest for the plaintiff’s recovery.

In my view, that exception’s rationale has led to confusion and perhaps to decisions like the one the supreme court quashed. By some measure, lost profits damages may be less speculative than pain and suffering damages, but that does not mean the former are more knowable than the latter until a trial resolves the matter.

Florida Supreme Court: Amendment 8 Moves Forward

This year’s proposed constitutional amendment 8 seeks to revise Florida’s constitutional limits on school class sizes. The proposed amendment’s ballot summary states that the limits will be reduced and that the legislature must fund the amendment’s requirements. Challengers to the proposal brought a lawsuit against the state, arguing that the summary does not explain that the amendment would reduce the amount of money required to be spent on education and incorrectly suggests that the funding obligation would be new.

A trial court rejected those arguments, and the First District passed the case directly to the Florida Supreme Court. In this decision, the supreme court affirmed the trial court’s ruling, holding that the ballot summary accurately represents the amendment’s chief purpose and does not affirmatively mislead voters.

Next week, I will post comments on all of this year’s proposed constitutional amendments.

Florida Supreme Court: More Equitable Distribution

Family law practitioners should be interested in this decision, where the Florida Supreme Court held that a nonmarital asset’s passive appreciation during a marriage can be subject to equitable distribution at the marriage’s end. The asset at issue was a home.

I Do Not Like Them With A Tweet

A few people have commented that I left the default green egg as the blog’s Twitter feed icon a little too long.

So, it may be a rudimentary quick fix, but here is the new pic:

Twitter Icon

Health Care Litigation: Motion to Dismiss Granted in Part, Denied in Part

If you are the Attorney General of Florida, two out of six may not be bad.

Six is the number of counts in Florida’s federal suit to declare the 2010 federal health care law unconstitutional. Yesterday, the federal judge hearing the dispute entered an order dismissing four of the claims but allowing two to proceed. Nineteen other states have joined the case as plaintiffs.

You can read the court’s 65-page order here.

I will offer an overview of what happened.

A primary and controversial feature of the healthcare law is its mandate that, beginning in 2014, nearly all citizens must purchase healthcare coverage or face a penalty. Florida’s challenge to the law is largely centered on the constitutionality of that mandate and, more particularly, the accompanying penalty used to enforce the mandate.

First, the court tackled the question of whether the penalty can be defended on grounds it is a tax adopted pursuant to Congress’s taxing authority. If it is a tax, then federal law precludes any challenge to it until the tax is paid, and thus the core challenge here would be premature by several years. The court determined that the penalty is not a tax, however, because Congress did not intend it to be one — a view the court reached based on the law’s language and the treatment it received during the legislative process.

Based on that ruling, the court permitted count I of the plaintiffs’ complaint to go forward and dismissed count III as moot. Count I asserts that Congress lacks power under the Commerce Clause to adopt the penalty, and count III is a similar challenge under Congress’s power to tax.

Count II challenges the penalty as violating substantive due process. The court dismissed that claim, holding that the law is subject only to rational basis scrutiny and that the law satisfies that standard.

Count IV challenges the law’s expansion of the Medicaid program as an improper expenditure under the Spending Clause, arguing that states are being coerced to participate in a program that is becoming destructively expensive. The court permitted this claim to proceed.

Finally, counts V and VI involve challenges to two additional provisions in the law. One requires states to provide state-operated health benefit exchanges or lose certain regulatory authority. The other requires states to provide health insurance for state employees. The court rejected both challenges, holding that Congress had the authority to adopt each provision and dismissing both claims.

In the end, the court permitted only two claims to proceed: the penalty challenge under count I, which the federal government must now defend only under its commerce powers; and the Medicaid expansion challenge under count IV, which will come down to whether the Medicaid system now amounts to unconstitutional economic coercion.

The court’s order is also notable for its discussion concerning what the court viewed as a material difference between the manner in which Congress debated the law and the manner in which the government now attempts to defend it. The court described the federal government’s positions as including an Alice In Wonderland-like quality:

In Virginia v. Sebelius, one of the twenty or so other lawsuits challenging the Act, the federal government’s lead counsel (who is lead defense counsel in this litigation, as well) urged during oral argument in that case that the penalty is proper and sustainable under the taxing power. Although that power is broad and does not easily lend itself to judicial review, counsel stated, “there is a check. It’s called Congress. And taxes are scrutinized. And the reason we don’t have all sorts of crazy taxes is because taxes are among the most scrutinized things we have. And the elected representatives in Congress are held accountable for taxes that they impose.”

This foregoing statement highlights one of the more troubling aspects of the defendants’ “newfound” tax argument. As noted at the outset of this order, and as anyone who paid attention to the healthcare reform debate already knew, the Act was very controversial at the time of passage. Irrespective of the merits of the arguments for or against it, the legislation required lawmakers in favor of the bill to cast politically difficult and tough votes. As it turned out, the voting was extremely close. Because by far the most publicized and controversial part of the Act was the individual mandate and penalty, it would no doubt have been even more difficult to pass the penalty as a tax. Not only are taxes always unpopular, but to do so at that time would have arguably violated pledges by politicians (including the President) to not raise taxes, which could have made it that much more difficult to secure the necessary votes for passage. One could reasonably infer that Congress proceeded as it did specifically because it did not want the penalty to be “scrutinized” as a $4 billion annual tax increase, and it did not want at that time to be “held accountable for taxes that they imposed.” In other words, to the extent that the defendants are correct and the penalty was intended to be a tax, it seems likely that the members of Congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.

Regardless of whether the members of Congress had this specific motivation and intent (which, once again, is not my place to say), it is obvious that Congress did not pass the penalty, in the version of the legislation that is now “the Act,” as a tax under its taxing authority, but rather as a penalty pursuant to its Commerce Clause power. Those two exactions, as previously noted, are not interchangeable. And, now that it has passed into law on that basis, government attorneys have come into this court and argued that it was a tax after all. This rather significant shift in position, if permitted, could have the consequence of allowing Congress to avoid the very same accountability that was identified by the government’s counsel in the Virginia case as a check on Congress’s broad taxing power in the first place. In other words, the members of Congress would have reaped a political advantage by calling and treating it as a penalty while the Act was being debated, and then reap a legal advantage by calling it a tax in court once it passed into law. This should not be allowed, and I am not aware of any reported case where it ever has been.

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check. If Congress intended for the penalty to be a tax, it should go back and make that intent clear (for example, by calling it a tax, relying on Congress’s Constitutional taxing power, allowing it to be collected and enforced as a tax, or identifying revenue to be raised) so it can be “scrutinized” as a tax and Congress can accordingly be held accountable. They cannot, however, use a different linguistic with a perhaps secret understanding between themselves that the word, in fact, means something else entirely.

In the preceding quote, citations are omitted but the emphasis shown is the court’s.

Fourth District: Privacy and In Camera Review

Many folks are aware of the budgetary and staffing crisis that currently plagues Florida’s trial courts, a crisis that includes burgeoning dockets and often a complete absence of staff attorneys. In this certiorari decision, though, the Fourth District explained that workload concerns did not overcome the need for an in camera inspection of medical records:

The trial court denied petitioner’s request for an in camera inspection, mainly because of the burden it would place on the court, whose exploding docket provides little time for such review. We can sympathize with the difficulty that such reviews pose for busy trial judges. Nevertheless, the protection of privacy interests is a significant constitutional issue, and despite the burden, it appears that it is the only way to protect a needless invasion of privacy.

The district court suggested that the trial court attempt to limit the need for in camera review by requiring the party trying to obtain the privileged materials to make certain relevancy showings in advance.

Fourth District: Certiorari, Public Records

Is a sheriff’s recording of an inmate’s jailhouse telephone conversation a public record? The Fourth District considered that issue in this case, where a trial court granted news media access to such recordings during a high-profile criminal prosecution. The district court granted a petition for writ of certiorari and quashed the order.

The district court explained that public records are those records made or received pursuant to law or in connection with the transaction of official business. The court held that the Broward County Sheriff’s Office monitored calls for security purposes but that maintaining the recordings had no connection to the sheriff’s official business.

The court’s discussion is interesting and seems to focus more on the recordings’ retention than their creation. The court appeared greatly concerned that arrested persons may expect deputies to monitor their calls but do not expect that any citizen could simply obtain a recording of their conversations by making a public records request.

Fourth District: Interlocutory Orders to Pay Money

Suppose a plaintiff wins a summary judgment on count I of a multi-count complaint and the relief requested on that count is the payment of money. Can the trial court enter an order requiring the immediate payment of the amount owed, despite the fact that other, related claims remain pending?

In this case, the Fourth District said no.

Fourth District: Medical Negligence

If a disoriented man enters an emergency room and is injured when he falls off a stretcher not secured by guardrails, is the potential negligence claim against the hospital one for medical negligence? Yes, said the Fourth District in this case.

Fourth District: Confusion Doctrine

In this case of first impression, the Fourth District considered the “confusion doctrine” — a legal rule invoked to avoid license suspensions for refusing a breath test where the licensee mistakenly believed he or she had the right to consult with counsel prior to submitting to the test. The district court recognized that Florida circuit courts and at least nine other states have recognized the doctrine in various circumstances, but in this case, where the officer did nothing to cause confusion, the court held the doctrine does not apply. The court stated that confusion could be used as a fact defense before a jury and left open whether the doctrine would apply where the officer causes the licensee’s confusion.

Fourth District: Certiorari and Divorce

In this case, the Fourth District used certiorari to quash an order denying a husband’s motion to dismiss his wife’s divorce petition. The husband successfully argued that the trial court had failed to address his argument that Florida’s residency requirement for dissolution matters (one of the parties must live in Florida for at least 6 months prior to filing) had not been met.

Certified Conflict: Evidence

Can a victim be impeached with a prior false accusation against someone other than the defendant? The districts are currently split on the question, and the supreme court is reviewing it, as explained by this decision from the Fourth District.

Fourth District: Foreclosures

Just a reminder here from the Fourth District that a summary judgment should not be entered in a foreclosure proceeding if the defendant has unresolved affirmative defenses.

Fourth District: Arbitration

Arbitration fans should be interested in this decision, where the Fourth District held that a trial court erred in addressing a plaintiff’s unconscionability and public policy challenges involving an arbitration agreement. The court held that the plaintiff’s challenges were directed at the parties’ overall agreement, not the arbitration provision, and so the challenges were issues for the arbitrator, not the trial court.

The decision demonstrates the continuing evolution of arbitration law. Not long ago, courts routinely held that all unconscionability challenges involving an arbitration agreement were issues for the trial courts to resolve.

Fourth District: Equitable Distribution

Family law fans may be interested in this decision, where the Fourth District explained it is error to include in an equitable distribution scheme assets that have been depleted during the dissolution proceedings unless the depletion was the result of misconduct.

Third District: Tipsy Coachman

A rose by any other name may still be a rose, but is the tipsy coachman rule still the same if its name devolves to the “drunken cabbie” rule?

Arguably not. “Tipsy coachman” is obscure enough to fit the bill of being both sufficiently archaic-sounding as to suggest a phrase with legal import and sufficiently obtuse-sounding as not to belie its rather poetic origins.

The Third District apparently disagrees.

(For an explanation of why Florida lawyers refer to the tipsy coachman rule as such, check out this old Abstract Appeal post.)

Third District: Punitive Damages, New Judge On Remand

The trial judge in this case took the somewhat unusual step of admitting that he nearly always grants motions to add punitive damages claims. The judge also granted leave to amend without analyzing the plaintiff’s factual proffer. The Third District quashed that order on a certiorari petition.

Interestingly, the appellate court directed that the case be assigned to a different judge on remand. Appellate practitioners can tuck that nugget away for future use, and longtime readers of this web log can probably guess what I am thinking

Third District: Appellate Standing

This decision appears to be a good example of the advantages of intervening in an original proceeding prior to entry of a final order. The Third District dismissed the appeal of a non-party to an agency proceeding who claimed to be adversely affected by the proceeding’s result.

Third District: Manifest Weight

Are motions for new trial based on the manifest weight of the evidence ever granted? Sure. Are they affirmed on appeal? Yes again, as this decision from the Third District shows.

Third District: Legislative History, By Affidavit

Can someone with inside knowledge of the legislative process supply an affidavit that attempts to explain a particular law’s legislative history? In this decision, the Third District rejected such an effort. See footnote 8.

Third District: Striking Defenses

When can a trial judge sua sponte strike a party’s affirmative defenses? Not when they merely lack specificity and support, as the Third District explained in this decision.

Third District: Arbitration and Collateral Estoppel

Litigation over arbitration agreements usually involves an agreement that predates the litigation. Not always. In this case, parties litigating in court agreed to arbitrate “with respect to the allegations in the complaint.” During the arbitration, the plaintiff filed an amended complaint. The defendants asserted that doing so breached the arbitration agreement and that the amended complaint was not within the agreement’s scope. After the arbitration panel rejected that argument, the defendants raised it with the trial court, which ordered the arbitration terminated.

On appeal, the Third District reversed. The court held that the amended complaint presented claims with respect to the allegations in the original complaint and that, in any event, the arbitration panel’s original ruling on the issue gave rise to collateral estoppel.

Third District: Foreclosure Remedies

This decision from the Third District tells us that, in a mortgage foreclosure action, permitting execution on the foreclosed amount is error. The court ordered the words “for [which] let execution issue” stricken from a final judgment.

Second District: Self-Incrimination

Trial judges might appreciate the guidance this opinion offers on how to analyze a defendant’s invocation of the privilege against self-incrimination. The Second District analyzed inquiries being made of a defendant being sued for wrongful death while facing DUI manslaughter and other criminal charges.

Second District: Writ Fix

I spoke this morning at The Florida Bar’s Basic Appellate Practice CLE on the subject of what orders are appealable. It was very fun, and it has me a bit focused on jurisdiction at the moment. In that spirit, this decision caught my eye.

The plaintiff in the case filed a notice of voluntary dismissal. The defendant responded by filing a motion to strike the notice, arguing that the plaintiff had previously submitted fraudulent affidavits and should not be permitted to abandon the case. After considering the motion to strike, the trial court gave the plaintiff the option of proceeding to trial or going forward with an evidentiary hearing on the defendant’s fraud allegations. The plaintiff filed a notice of appeal.

The point I find worth discussing is not how the Second District resolved the case (the plaintiff prevailed) but how the appellate court addressed the matter of its jurisdiction. The plaintiff viewed the motion to strike as a motion to set aside the voluntary dismissal and viewed the order on that motion as an appealable nonfinal order entered under rule 1.540. The appellate court disagreed but determined the appeal should proceed as a petition for writ of prohibition, to prohibit the trial court from acting in excess of its jurisdiction by allowing the litigation to continue in court.

Notably, the opinion suggested that, while the district court was considering the matter, an evidentiary hearing on the fraud allegations was held and the plaintiff prevailed. The district court did not make clear what further proceedings remained to be conducted below.

Second District: Nondelegable Duties

Duty fans will appreciate this slip-and-fall decision from the Second District. The court explained that a negligence claim based on a nondelegable duty theory is sufficiently connected to an active negligence claim that an amendment alleging the former relates back to a complaint alleging the latter.

The decision includes an interesting discussion concerning the nature of nondelegable duty claims and how they differ from vicarious liability claims. As the court explained, nondelegable duty and vicarious liability claims are distinct from one another, even though they share some common characteristics and have occasionally been lumped together. Breaching a nondelegable duty is a form of active negligence.

The case involved a slip-and-fall on a business’s premises, and the court explained that the person in possession and control of such premises has a nondelegable statutory duty to maintain them in a reasonably safe condition. Hiring an independent contractor to maintain the premises does not eliminate this duty, the court held, and the owner’s “liability, if any, for the alleged breach of its nondelegable duty of care [i]s not dependent on the acts or omissions of” the independent contractor. Perhaps the key word there is “dependent” — the owner’s liability may well turn on the independent contractor’s alleged acts, just as if the contractor had been a mere agent.

Glancing at the counsel list, I am happy to see one of my former firm colleagues making her way. Nice win, Laura.

Second District: Adopting Proposed Judgments Verbatim

Proposed judgments are a difficult subject. Trial judges often request them and often sign them without making any changes. When is that error?

In this case, the Second District largely reversed a final judgment in a dissolution matter. The trial judge had given the parties no rulings or direction. Both sides simply submitted proposed judgments. The trial judge then entered the appellee’s proposal verbatim. It consisted of 17 pages of findings and conclusions, as well as over 20 mistakes — too much proof the judge did not exercise independent decisionmaking in reviewing the order for the appellate court to ignore.

Independent decisionmaking by the trial judge is the key to whether it is proper to adopt a proposed judgment. Being able to show the absence of such decisionmaking requires a bit of happenstance. As you might guess, overreaching by the other side helps.

Though my practice focuses on appeals, the trial support side of my work has involved me in countless battles over the contents of judgments and other orders. It can be an odd experience. In the end, it is peculiar that a litigation system so careful to level advantages throughout a trial court’s proceedings can allow for extreme one-sidedness when it comes to ending the case with a final judgment prepared by the victor, especially when the judge has given no advance direction regarding findings and conclusions.

The system depends on attentive trial judges. If only the system would offer them more resources.

Second District: Evidentiary Foundations

This decision examined whether a criminal defendant’s lack of objection to the state’s chain of custody evidence waived the right to require a more complete preliminary presentation. Answering that question in the affirmative, the court carefully distinguished between a failure of proof on an essential element, which would entitle a defendant to a judgment of acquittal, and a failure to make a preliminary evidentiary showing, which can simply be waived — at least where the showing is not incurably defective.

Certified Conflict: FIGA Claims

In this decision, the Second District certified conflict in holding that fee awards against insurers do not constitute covered claims for purposes of payment by the Florida Insurance Guaranty Association. By statute, covered claims must be within the underlying policy’s coverage, and the Second District concluded that the fee award at issue did not meet this requirement.

More Nominating News

The Judicial Nominating Commission for the Third District has nominated three persons to fill the seat being vacated by Judge Cope. They are: Judge Kevin Emas and Judge Ivan Fernandez, both of the Miami-Dade County circuit bench, and Key West practitioner Edwin Scales.

Notably, the commission has the power to nominate as many as six persons.

To view the JNC’s press release, look here.

Nominating News

Governor Crist this week announced the appointment of three new members to the Second District’s Judicial Nominating Commission: Theodore C. Eastmoore, of Sarasota; Mitchell Dean Franks, of Lakeland; and James T. Humphrey, of Ft. Myers.

To read the Governor’s press release, look here.

Judge Villanti: Hey, Legislature

Judge Villanti’s concurring opinion in this case laments how current law requires trial courts to hold evidentiary hearings on all petitions for injunctions against repeat violence — even if a petition fails to set forth facts that support relief. As he explains, “the repeat violence statute would require a full evidentiary hearing before a circuit court judge even if the petitioner simply signed his or her name to a blank form petition and filed it.”

Judge Villanti recommends that the Legislature revise the statutory scheme to give trial judges appropriate discretion to prevent wholly unnecessary hearings.

The facts of the underlying case involved an appellee who had some uncivil run-ins with the appellant. The trial court entered an injunction, and the appellate court reversed.

Second District: Indispensable Parties

This decision from the Second District reminds us that one cannot attack the validity of a deed without joining, as parties, all holders of legal title to the property.

Second District: Sua Sponte Fee Orders

We know a trial court can enter a fee order under section 57.105(1) on its own motion, and we know that the statute’s 21-day notice provision is inapplicable when a court does so. Now suppose the party to be awarded fees has filed a fee motion but it failed to comply with applicable procedural requirements. Is the trial court precluded from awarding fees on its own motion?

A few years ago, in this case, the Third District answered that question in the affirmative. The court reversed a fee award, holding that the trial court had effectively, and improperly, adopted the party’s untimely motion as its own. In the district court’s words, “It would frustrate the legislative intent to avoid the twenty-one-day notice by allowing the court to adopt the party-filed motion as the court’s own.”

Now, the Second District has released this decision. A divided court affirmed an order granting the appellee fees under somewhat similar but not identical circumstances. The majority opinion distinguished the case from the Third District’s earlier decision. The dissent found the majority’s distinctions unpersuasive.

At their core, these cases seem to present an interesting question: does a trial court lose its authority to enter an attorney’s fees sanction under section 57.105 when the party that would receive the fee award has filed a procedurally deficient fee motion?

Abstract Pause

Motions, responses, multiple speaking events, and a brief that took a surprising bit of time all recently combined to keep me away. Today, I’m back. I will have a series of posts up later this morning.

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