Archive for November, 2010

Second District: Mailing Days For The Court?

Many years ago, I used to post a Florida law trivia question on Fridays. Perhaps it is time to bring that feature back. Meanwhile, here is a question for trial and appellate experts:

Does the court ever get mail days?

More specifically, if a motion to disqualify is served on a judge by mail, and knowing that rule 2.330(j) requires a ruling within 30 days of service or the motion is deemed granted, does the judge get rule 1.090(e)’s benefit of five additional days to respond following service by mail?

The Second District answered that question in the affirmative in this decision. The court held that the trial judge has 35 days to rule if the motion to disqualify is served by mail.

A look at rule 1.090(e) may be useful. It provides:

Additional Time after Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.

In a footnote, the Second District pointed out that the judge is not a party to the underlying proceeding. That being the case, the court did not explain how the judge can qualify for additional time under rule 1.090.

Perhaps the court meant that the disqualification matter is distinct from the underlying proceeding and the judge is a party for purposes of what the court considered that collateral matter. Appellate specialists might wonder if such is a new — and different — way of treating disqualification rulings.

Second District: Long-Arm Jurisdiction, and Negligent What?

This decision will probably be best known for its holdings that a defendant’s motion for attorney’s fees as a sanction under section 57.105 does not waive the defendant’s personal jurisdiction challenge and that the corporate shield doctrine can preclude personal jurisdiction over a nonresident defendant in the context of allegedly defamatory Internet publications.

The decision caught my eye for another reason. Without further elaboration, the court labeled one of the plaintiff’s claims “negligent blogging.”

Oh, the possibilities.

Judge Villanti: On Law and Justice

Troubled that the majority’s application of general principles leads to an exceptionally unjust result, Judge Villanti’s dissent in this case invokes the following line:

In civil jurisprudence it too often happens that there is so much law, that there is no room for justice, and that the claimant expires of wrong in the midst of right, as mariners die of thirst in the midst of water.

The quote is attributed to Caleb Charles Colton.

Second District: Pick-up Orders

Criminal law fans may be interested in this decision. The Second District observed that pick-up orders authorized by section 901.19 are inconsistent with the Fourth Amendment when such orders are used in lieu of a warrant to effect a routine felony arrest in a private residence.

Second District: Defendant’s Presence At Resentencing

Just a quick reminder here from the Second District that a criminal defendant has a right to be present at any resentencing except one that is purely ministerial in nature. So, if the court has discretion regarding the sentence to be imposed, the right applies.

Second District: Wrongful Incarceration, Internet Links In Opinions

This decision caught my eye for a number of reasons.

It is apparently the first published decision addressing 2008’s Victims of Wrongful Incarceration Compensation Act.

The Second District affirmed a decision holding that a man whose conviction was overturned on appeal did not qualify for relief under the Act because he was not a “wrongfully incarcerated person,” as the Act uses that term. To qualify as wrongfully incarcerated, a person must establish that the sentence at issue was vacated “based upon exonerating evidence.” The petitioner’s convictions were reversed not because of exonerating evidence but because the events proved by the state did not legally constitute the crimes charged against him. So he did not qualify for relief.

The court likened the Act to a waiver of sovereign immunity and held that, like such waivers, the Act should be strictly construed.

In a footnote, the court mentioned that the author of this most recent opinion also participated in the petitioner’s earlier appeals, and the court explained that these panel assignments were random. The overlap is hardly surprising, given the court’s size, but what did intrigue me was that, in support, the court cited to its internal operating procedures manual and provided an Internet link to that manual’s 2007 version. The link reads like this:

As someone who tries to keep track of links to court documents, I believe that this particular link, named as it is to refer to the manual’s year, is new. The link used by the court just a couple of months ago no longer works. Its link name ( did not include a reference to the manual’s date.

From all this, it appears that the court has decided to keep its IOP manuals online and to name them by their dates. Presumably, then, when the current manual is updated, the 2007 version will remain online, and future readers of this recent opinion will be able to access the 2007 version’s contents using the opinion’s link. Otherwise, the authority cited by the opinion would not be verifiable, and the opinion would contain a link that is not only somewhat visually awkward (try typing that link from a printed copy of the opinion) but defunct.

The Second District is hardly alone in this area. Many appellate decisions have begun including Internet links in their opinions for points that, in the past, would have been received much the same had no citation been included. Surely no one would have doubted the court’s statement had it simply referenced its internal operating procedures without an Internet link.

What expectations follow a court’s decision to include an Internet link in a decision? Because the Second District linked a document on the court’s own servers, one may expect that the court is undertaking to maintain that link — permanently. Such an expectation cannot exist, however, where a court links a page or a document contained on someone else’s server. An important example might be opinions that link to Wikipedia, the online encyclopedia that, true to its wiki origins and structure, can be modified by almost anyone, anytime.

When judicial decisions include links to Internet resources, what responsibility, if any, do courts have to choose links with some degree of permanency? Little on the Internet is truly permanent, in the sense that sites can be taken down or content can change at any moment, but, that said, some sites clearly present a more permanent quality than others.

I will suggest that this is a topic worthy of discussion, more so within the judiciary than among practitioners, but to some extent among all of our courts’ constituents.

Meanwhile, I have updated my own link to the Second District’s IOP’s in the left sidebar.

Second District: Relinquishment Limits

This decision from the Second District reminds counsel and courts that when an appellate court relinquishes its jurisdiction for a lower court to perform some act during a fixed period of time, the time period is indeed fixed. Orders entered after the period expires are nullities.

Third District: New Appointment

Congratulations to Eleventh Judicial Circuit Judge Kevin Emas. Today, the Governor appointed Judge Emas to the Third District Court of Appeal.

You can read the Governor’s press release announcing the appointment here.

Second District: Minor Life Sentence

This past year, the U.S. Supreme Court’s Graham v. Florida decision held that a life sentence without the possibility of parole constitutes cruel and unusual punishment under the Eighth Amendment when imposed on a juvenile for a nonhomicide crime.

Does that constitutional limitation apply where a juvenile is convicted of and sentenced to life in prison for attempted first-degree murder with a firearm? Or does that conviction constitute a homicide offense, which would make the limitation inapplicable?

The Second District faced those questions in this case. The court recognized that “death is different” and held that attempted murder is a nonhomicide offense “because death, by definition, has not occurred.”

The limitation thus applied, and the court vacated the sentence.

Second District: No Reply

This happened once before…

In the last decade, a substantial body of district court case law has developed that quashes orders dismissing or refusing to reinstate circuit court appeals for failure to file timely briefs.

Here is what happens: A party loses a county court case and appeals, but the appeal is not heard on its merits because the circuit court, sitting in its appellate capacity, bounces the case for some perceived noncompliance. The party then petitions the district court to quash the order by certiorari, and the district court does so, relying on Florida’s strong policy of deciding appeals on their merits and, on occasion, the circuit court’s failure to follow the rules of judicial administration with regard to sanctions.

This decision from the Second District is the latest such case. The circuit court dismissed an appeal, and refused to reinstate it, on grounds the appellant failed to file a reply brief and took no action for seven months after the appellee filed an answer brief. The district court held that, under Florida’s appellate rules, no reply brief is necessary, and the parties were not required to take further action.

Second District: Storm Remnants

The hyperactive hurricane seasons of 2004 and 2005 continue to leave remnants in our jurisprudence.

Most recently, we see this decision from the Second District. The court reversed a summary judgment favoring an insurer, holding that issues of fact remain over whether the insurer wrongfully caused its insureds to file suit to resolve their Hurricane Charley claim. The insureds in the case first sued the insurer in 2004, six weeks after the storm.

Everyone knows hurricanes pack a punch. The length of their tails is less appreciated.

Second District: Rule 1.442, Proposals For Settlement

This decision from the Second District shows us, yet again, that conditioning a proposal for settlement on execution of a release without attaching or accurately summarizing the required release may well invalidate the proposal for purposes of shifting attorney’s fees later in the litigation.

Third District: Closing Arguments

Just a reminder here from the Third District that a party cannot obtain the exclusion of the other side’s evidence and then, in closing arguments, criticize the other side for failing to produce that very evidence.

Judge Salter: The Benefits of Counsel

This per curiam affirmance let stand a Florida Unemployment Appeals Commission order denying benefits to a claimant. Judge Salter authored a concurrence that explained how the claimant might have carried the day had he been represented by counsel in the proceedings below and not just on appeal. Judge Salter then offered the following suggestion:

Unemployment compensation benefits are a safety net in a time of high unemployment such as this. The importance of the benefits to a claimant (and often, his or her family) cannot be overstated. The purpose of this concurrence, then, is to encourage unemployment compensation law specialists, pro bono attorney volunteers, and non-profit legal services providers to make their availability and services well known to claimants and the Agency for Workforce Innovation so that claimants like Mr. Alvarez can get the help they need when it matters most, and not when it is too late.

Third District: Telephonic Testimony

Rule 2.530(d)(1) permits a trial judge to allow the use of telephonic testimony, but only if all parties consent.

In this case, the trial court allowed a witness in Israel to testify telephonically, despite a party’s objection. The Third District held that the ruling was error, but the appellate court also held the error harmless.

Third District: Certiorari, Irrelevant Psych Evaluation

This decision from the Third District quashed an order requiring the production of a psychological evaluation. Notably, the court held that the psychotherapist-patient privilege did not apply but that report was nonetheless not relevant to the plaintiff’s claims.

Once again, we see certiorari being used to quash orders requiring the production of sensitive but irrelevant documents.

Third District: Certiorari, Financial Documents

As the modern world makes public materials more accessible, the appellate courts appear to be giving greater credence to the notion that the erroneous disclosure of financial records constitutes irreparable harm.

This decision from the Third District is the latest example. The court granted a certiorari petition, quashing an order requiring disclosure of financial documents in a commercial case. The court determined that the requests were overbroad with respect to their time frame and their lack of relevance to the issues in the case.

Third District: Certiorari, Unfair Translations

In a dependency case, a trial court ordered the Guardian ad Litem Program to provide the father with Spanish translations of certain motions before the court would consider them. The Third District granted a certiorari petition and quashed that order. The district court held a trial court may not effectively restrict a litigant’s access to the court “just because she thinks it is a good idea or the ‘fair’ thing to do.”

You can read the decision here.

Third District: Certiorari, Stays

The writ of certiorari has many established uses, one of which is to review an order denying a motion to stay a proceeding.

The Third District recently granted such a certiorari petition. In this case, the court relied on the first in time principle to hold that a later-filed case should be stayed pending resolution of an earlier-filed case involving similar parties and issues.

Third District: Insurance, Attorney’s Fees

Insurance fans may be interested in this decision, where the Third District held that an insured was entitled to attorney’s fees with respect to litigation over whether an appraisal should be itemized. The appellate court remanded for a “modest” fee award on that issue.

Third District: Workers’ Compensation Immunity

Those interested in workers’ compensation immunity, and in particular the intentional tort exception to that immunity, should take a look at this decision from the Third District. The court reversed a summary judgment favoring an employer, holding that issues of fact existed as to whether construction work at a bank’s facility was substantially certain to result in respiratory-based injuries to employees.

In a footnote, the court observed that its former case law focusing on whether the employer concealed any danger is no longer good law.

Third District: Noneconomic Damages Caps

When the parties to a medical malpractice action agree to voluntary binding arbitration, and this statute limits non-economic damages to $250,000 per incident, does that limitation apply to each incident or each separate defendant?

In this case, the Third District held that the cap applies to each incident, regardless of the number of defendants.

Third District: Arbitration, Family Matters

In this vaguely worded opinion — likely so to protect the litigants’ privacy — the Third District held that two former spouses’ post-judgment financial dispute was not subject to arbitration under Florida law. The court explained that Florida’s statutory limitation on arbitration involving child support, visitation, and custody extends to all “actions” involving such issues, regardless of whether the dispute to be arbitrated involves such issues.

Back In Blog

I did not plan this recent absence — I took a trip somewhere that had promised high speed Internet access but actually had none, and no cellular service for aircard use either. While that made for a nicer trip in some ways, I was unable to get things done that needed doing, and upon returning it took me until now to catch up and allow a return to blogging. So, as of today, I am back in blog. Thanks for stopping by.

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