Archive for January, 2011

Health Care Litigation: The Insurance Mandate Is Unconstitutional

The 2010 health care legislation is unconstitutional. So declared a Northern District of Florida court today in a case pitting dozens of states against the federal government in a challenge to the high-profile legislation’s validity.

The district court ruled that the act unconstitutionally mandates citizens to purchase health insurance or face a penalty.

You can read today’s order here.

You may recall that, back in October, the same court issued this ruling, which determined that only counts I and IV of the complaint would go forward. Count I challenges the health insurance mandate, with its accompanying penalty, as unauthorized under Congress’s Commerce Clause power. Count IV challenges the act’s expansion of the Medicaid program as an improper expenditure under the Spending Clause, essentially arguing that states are being coerced to participate in a program that is becoming destructively expensive.

Today the court resolved the two pending claims and entered final judgment in favor of the plaintiffs.

As to count IV, the coercion claim involving Medicaid, the court ruled that Congress has acted within its spending power.

As to count I, however, the court ruled that the insurance requirement and accompanying penalty are not within Congress’s commerce power. The court explained:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce,” it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power,” and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

(citations omitted).

The court determined that under existing U.S. Supreme Court case law, the Commerce Clause permits Congress to regulate economic activity, not economic inactivity such as the decision not to purchase health insurance. The court further ruled that the law cannot be upheld under the Necessary and Proper Clause, which merely authorizes Congress to adopt laws that carry out Congress’s otherwise enumerated powers.

Finally, the court determined that the mandate cannot be severed from the act, and that as the mandate is unconstitutional, the entire health care law is as well. The court declined to enter an injunction, finding that a declaration the act is unconstitutional should suffice.

From here, the case will move to the Eleventh Circuit before wending its way to the nation’s high court.

Fifth District: Attorney’s Fees Lost, Employment Case

Counsel who seek to collect fees for prevailing on one of multiple claims in a case may wish to note this decision.

The plaintiffs in the case brought numerous claims against their former employer but prevailed only on a claim for unpaid overtime. That claim entitled them to attorney’s fees, which they sought and obtained without differentiating the work performed on the overtime claim from the work performed on their other claims.

The Fifth District reversed the original award and remanded for specific findings on the overtime claim. On remand, however, the plaintiffs’ counsel successfully maintained that nearly all hours spent on the case related to the overtime claim.

In a second appeal, the district court found that position untenable and, frustrated with the attorneys’ refusal to follow the appellate court’s earlier directive, reversed and remanded for entry of an order denying the attorney’s fees motion.

Fifth District: A Reason To Attend Compulsory Medical Exams

An insured who won a judgment based on underinsured motorist coverage lost that judgment in this appeal. The Fifth District held that the insured’s failure to attend a compulsory medical examination amounted to the failure of a condition precedent to coverage.

Fifth District: Certiorari, Indispensable Parties, Tenants

This unusual decision may be of interest to real property fans and extraordinary writ fans. The Fifth District held that a tenant was an indispensable party to an injunction proceeding that sought to force compliance with a property’s restrictive covenants. The tenant moved to set aside the injunction on grounds it was an indispensable party to the proceeding, but the trial court denied the motion and instead entered an amended judgment. The tenant then attempted to appeal the order denying its motion and the amended judgment.

The district court construed the tenant’s appeal as a petition for writ of certiorari and, concluding that the tenant was an indispensable party, granted the petition.

First District: Easements

How many rights accompany an easement for ingress and egress? A bank operating in a shopping center brought an injunction claim against the owner of the shopping center’s main parcel to require the owner to remove a sign. The bank claimed that the sign interfered with its easement rights. A trial court granted a permanent injunction but, in this decision, the First District reversed. The appellate court held that the bank failed to demonstrate that the sign’s placement substantially interfered with the bank’s ingress and egress rights.

Certified Questions, Conflict: Attempted Manslaughter

The district courts are in conflict over whether the standard jury instructions’ use of an intent-to-kill element in an attempted manslaughter instruction constitutes fundamental error. In this decision, the First District held that fundamental error exists, certified conflict, and certified the following to the state supreme court as questions of great public importance:

(1) Does the standard jury instruction on attempted manslaughter constitute fundamental error?
(2) Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So. 3d 252 (Fla. 2010)?

Certified Conflict: Sexual Battery

In this capital sexual battery decision, the Fifth District acknowledged conflict with a 1999 Second District decision regarding how the term vaginal should be interpreted when used in this statute. The Second District construed the term in what the Fifth District considered its “technical, medical sense,” while the Fifth District construed the term in a way the Second District described as more akin to “private part.”

Judge Torpy wrote a concurrence explaining his view that dictionary definitions do not always provide reliable meanings for statutory terms.

Third District: Homestead, And Other Rewards

Real property fans may also be interested in this decision. The Third District decided that an adult son who spent decades caring for his disabled father was not “legally or naturally dependent” on the father for purposes of retaining a homestead cap after the father’s property passed to the son. The court found the son’s arguments creative but, rejecting them, observed that the “reward for his two-decade sacrifice in the name of his father lies with a higher authority.”

Fifth District: Municipal Superpriority Invalid

Real property fans may be interested in this decision. The Fifth District considered whether a municipality can adopt an ordinance that gives code enforcement liens a superpriority over previously recorded mortgages. The answer? No.

Third District: Dismissal as Sanction, Findings

This decision from the Third District reminds trial courts that sanctioning a party by dismissal requires findings on six particular concerns.

Fourth District: One Little Word

Polygraph is “one little word,” and its mention by one of the state’s witnesses in a criminal trial did not require the trial court to declare a mistrial. So held the Fourth District in this case.

The defendant was charged with murder. She claimed that the actual killer was an acquaintance named Dutch, and though the defendant wanted to introduce evidence that Dutch had failed a polygraph examination, the trial court excluded it. The state called Dutch as a witness, and when he was asked on cross-examination about his visit to the state attorney’s office, he stated, “Yeah, I came to do a polygraph.” The defendant argued that the statement implied Dutch had passed the polygraph exam. The trial court gave a curative instruction and denied the defendant’s mistrial motion. The jury found the defendant guilty, and she appealed. The district court affirmed, focusing on other evidence in the case and the fact Dutch said only that he went to take a polygraph–not that he did take one or what the results were.

Fourth District: Material Terms

If a contract for the sale of land provides that the seller will provide financing under terms to be negotiated during the due diligence period, is there an agreement on all essential elements?

No, said the Fourth District in this decision.

Fourth District: Valuing Theft, Televisions

In this prosecution for grand theft, the state’s valuation evidence consisted of testimony that the victim’s mother purchased the stolen television for $1400 six months before the theft. Did the state prove the stolen television’s value?

No, said the Fourth District. The court explained that electrical components like televisions, computers, and stereo systems are subject to accelerated obsolescence because manufacturers are constantly releasing new improved technology at lower prices, and so purchase price alone is generally insufficient to establish value in a theft case.

Fourth District: Judgments Go To Counsel

Rule 1.080(h)(1) requires conformed copies of judgments to be transmitted to parties, but that does not mean the court must be sent to a party’s counsel and the party. As the Fourth District explained in this decision, parties are generally served through their counsel.

Chief Judge Ramirez: Anything Goes, But It Shouldn’t

Chief Judge Ramirez began his dissent to this per curiam affirmance with these words:

This case can go down under the “anything goes” department when it comes to a criminal prosecution of an unsympathetic defendant. All you need is a trial judge with a flexible outlook on what constitutes relevant evidence and an appellate panel with a bountiful view of trial court discretion.

The case involved a man, Torres, charged with sexual battery on a young girl, N.R. During his trial, the state presented Williams rule testimony from a 20-year-old woman who asserted that Torres sexually abused her when she was 7. Most important to Chief Judge Ramirez, the witness testified not only to the abuse but to how the abuse traumatically impacted her life–including how she did not trust men and would not be alone with them.

Finding no basis for the admission of such testimony, Chief Judge Ramirez stated:

I have no sympathy for Torres. He is an admitted sex offender who preyed upon a seven year old girl. He probably also abused N.R. If we, as a society, decide that sex offenders are not entitled to a fair trial, let’s come out and say so. But if the rules of evidence apply equally to all, as we profess they do, this victim impact evidence was clearly inadmissible. The only issue should be whether the admission of this evidence constituted harmless error. And I cannot say beyond a reasonable doubt that the admission of this evidence did not contribute to the jury verdict.

Second District: Actions Against Qualifying Agents

The homeowners’ association for a recently built townhome community brought a construction defects lawsuit against the qualifying agent of the community’s general contractor. The association obtained a judgment for over a million dollars, and the qualifying agent appealed.

The qualifying agent argued that a cause of action could not lie against him personally. In this decision, the Second District agreed.

Third District: Construction Liens For Services

Can a provider of cleaning, maintenance, concierge, and security services utilize what some still call Florida’s “Mechanic’s Lien Statute”–chapter 713–to impose a lien for unpaid services?

No, answered the Third District in this case.

Third District: Subject Matter Jurisdiction

Trial lawyers, can a declaratory judgment action involving less than $15,000 be filed in the circuit court, the county court, or both? The Third District gives the answer here.

Third District: Certiorari, Irrelevant Personal Information

For yet another example of the district courts’ willingness to utilize certiorari to block the production of irrelevant personal information, check out this decision from the Third District.

U.S. Supreme Court: An Important Summary Judgment Lesson

This decision, released yesterday by the U.S. Supreme Court, could affect federal and state practice at both the trial and appellate levels.

Longtime Abstract Appeal readers may have noticed that I occasionally make somewhat awkward mention of the fact an appellate court reversed a summary judgment denial after the case proceeded to trial. Coincidentally, I did so just last Tuesday, in this post involving a recent Second District decision. I never delve further, with Florida law not being clear on the point, but those paying close attention may observe my skepticism regarding whether a summary judgment decision can be reviewed after a case proceeds to trial.

The Supreme Court’s decision from yesterday holds that it cannot. Whether the court’s broad language is as comprehensive as it appears is not certain.

The case involved a section 1983 claim against prison officials who sought summary judgment based on qualified immunity. The district court denied the motion and the case proceeded to trial. There, the defendants lost, and without filing a post-trial Rule 50(b) motion, they appealed. The Sixth Circuit reversed, holding that while summary judgment decisions are not ordinarily reviewable after a trial on the merits, qualified immunity presents an exception. The plaintiff then petitioned for review by the Supreme Court, which reversed the circuit court decision.

The Supreme Court spoke in broad terms:

We granted review to decide a threshold question on which the Circuits are split: May a party, as the Sixth Circuit believed, appeal an order denying summary judgment after a full trial on the merits? Our answer is no. The order retains its interlocutory character as simply a step along the route to final judgment. Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary judgment motion. A qualified immunity defense, of course, does not vanish when a district court declines to rule on the plea summarily. The plea remains available to the defending officials at trial; but at that stage, the defense must be evaluated in light of the character and quality of the evidence received in court.

(footnote and citations omitted).

The prison officials argued that a distinction exists between summary judgment motions that turn on the sufficiency of the evidence and those that present purely legal issues capable of resolution with reference to undisputed facts. The Court characterized the latter as usually involving “disputes about the substance and clarity of pre-existing law” and decided that it need not address the argument because the case involved not a dispute over pre-existing law but the facts that could render the prison officials liable.

The court went further and held that, to the extent the prison officials disputed that the plaintiff proved her case, they were required to raise that issue through a Rule 50(b) motion. Because they did not do so, the circuit court could not consider that matter.

How broadly this decision will be applied, and whether such a pronouncement by the nation’s highest court will affect state court practice, remains to be seen.

Eleventh Circuit: Peek-A-Boo

First Amendment fans should be interested in the Eleventh Circuit’s latest decision involving Bradenton’s Peek-A-Boo Lounge. It’s available here. The court affirmed a summary judgment in favor of Manatee County, upholding the county’s ordinance regulating sexually oriented businesses. The court held that the County demonstrated the evidence it relied upon to determine that the ordinance would reduce adult establishments’ secondary effects and that Peek-A-Boo failed to cast “direct doubt” on the county’s rationale.

First District, Welcome Home

This post is late in coming, but let me offer a belated welcome home to the First District Court of Appeal. The court moved into its new Tallahassee home in late December and began hearing oral arguments there in early January.

Florida First District Court of Appeal

First District Court of Appeal

To say that the First District has made some headlines in the last several months would be a considerable understatement. From the start, I chose not to discuss the topic here, though it would have been a natural fit. My largest concern was that too many details seemed unclear, and as the story unfolded during an election cycle, the phrase “moving target” kept coming to mind. I did not have the time to do the personal legwork I would have liked to do to add what I thought was important perspective.

This past week, I broached the subject while giving a CLE presentation for the Appellate Practice Section on the appellate-related events of 2010. Having done that, and having caught up on my First District posts, the time seems right to discuss the matter here, such as it still bears being addressed.

It does, a little. For instance, last week, Chief Justice Canady issued this administrative order, which provides that all future district court construction projects will be reviewed and overseen by the supreme court through the Office of the State Courts Administrator. Also, yesterday’s St. Pete Times offered this column casting blame in all directions.

As an appellate specialist who appreciates a number of the challenges presented by our appellate courts’ facilities, I am glad to see the First District operating in a modern building that should support the district through this century. I am certainly not alone in wishing that the transition had been a less controversial affair.

I also hope that positive lessons will become the focus as future construction for the judiciary is examined, as it inevitably will. There can be no doubt that facility- and staffing-related troubles plague some of Florida’s other appellate courts, and recent events involving the First District do not change that fact.

First District: Search and Seizure, pre-Gant

In this decision, the First District considered whether to suppress evidence obtained in an automobile search conducted incident to an occupant’s arrest when the search was consistent with prior U.S. Supreme Court case law but inconsistent with that court’s recent decision in Arizona v. Gant. The district court held that a search in violation of Gant but consistent with pre-Gant law came within the exclusionary rule’s good faith exception.

Chief Judge Benton authored a brief dissent.

First District: Linked In

Perhaps the internal bench memoranda at the First District use hotlinks to Westlaw statutes and cases. If so, then that might explain how Westlaw hotlinks crept their way into this decision, which at one point links statutes, as well as this decision and this one, which contain Westlaw links to cases.

I suspect that Florida courts will eventually require appellate briefs to include hotlinks, though perhaps not links to Westlaw. I will share a few more thoughts like this soon, when I get around to discussing that coming presentation on the future of appellate practice…

First District: Commercial Speech

This Florida statute provides that a public adjuster “may not directly or indirectly through any other person or entity initiate contact or engage in face-to-face or telephonic solicitation or enter into a contract with any insured or claimant under an insurance policy until at least 48 hours after the occurrence of an event that may be the subject of a claim . . . .” Does that prohibition violate public adjusters’ right to free speech?

The answer may depend on whether the language is interpreted to prohibit all public adjuster-initiated contact in a 48-hour period or merely face-to-face or telephonic contact during that period. A trial court adopted the latter interpretation after finding the statute ambiguous. The First District reversed. This decision held that the statute unambiguously prohibits all public-adjuster initiated contact in a 48-hour period and fails the constitutional test for restrictions on commercial speech.

Notably, the court held the statute unconstitutional under Article I, section 4 of the Florida Constitution — Florida’s free speech provision. Throughout the case, though, the court relied on Central Hudson and federal law standards for restricting commercial speech.

First District: Declaratory Statements

The appellant in this case petitioned the Department of Agriculture and Consumer Services for a declaratory statement regarding Florida’s price gouging law. The department declined to address the issue and dismissed the petition. On appeal, the First District reversed.

The case offers some insight into the tension between a system of government that, on the whole, does not like providing the public with legal advice outside a traditional dispute with a winner and loser, and citizens’ occasional need for clarification of how the laws will be enforced, particularly in the regulatory context. After all, the best way to avoid breaking the law is to understand what it prohibits or requires.

First District: Mandamus

Just a reminder here from the First District: a mandamus petition to reassign a case after a trial judge fails to rule timely on a disqualification motion must be preceded by a request that the trial court direct the clerk to make the reassignment.

First District: ADA, Public Accommodations

This decision presents an interesting situation. A hospital patient filed a complaint against the hospital with the Florida Human Relations Commission, asserting that the hospital discriminated against her under the Americans With Disabilities Act and Florida law by refusing her request for a sign language interpreter.

Whether the complaint could proceed turned on whether the hospital qualified as a public accommodation. Generally, hospitals are not public accommodations, but the hospital had a cafeteria, and if the hospital held itself out as serving patrons of the cafeteria, it would qualify as a public accommodation.

The Commission dismissed the complaint, without any fact finding, based on its conclusion that the hospital was not a public accommodation. The First District reversed and directed the Commission to undertake a factual examination.

First District: Paternity and Legitimacy

Family law fans may be interested in this decision, where the First District reviewed a trial court’s decision dismissing a paternity action for a lack of standing. After exploring the role legitimacy plays in modern paternity proceedings, the court reversed under the facts of the case. The decision ends with brief reference to the difficulties of addressing such policy-laden matters through case law.

First District: Prescription Defense

Subsection (6)(a) of this statute makes it unlawful to possess a controlled substance “unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice . . . .”

The exception clearly applies if the possessor has a valid prescription, but does it also apply if the possessor is holding the substance on behalf of someone else who has a valid prescription for it?

The First District confronted that question in this case. The answer? Yes, the exception includes possession on behalf of another.

First District: Warrantless Luggage Searches

The First District characterized the issue in this case as one of first impression: whether an administrative search of checked luggage violates the Fourth Amendment.

The case involved a defendant whose checked baggage contained an accordion folder with a stack of papers, among which were pornographic pictures of children. A federal agent randomly selected the bag, opened it, thumbed through the contents for potentially dangerous materials, and spotted the pictures.

The defendant asserted a Fourth Amendment violation and moved to exclude the evidence. A trial court rejected the argument, holding that the search came within a recognized exception to the warrant requirement — administrative searches in airports. The district court agreed and affirmed.

First District: Plaintiffs’ Directed Verdict Motions

In many if not most civil trials, the defendant moves for a directed verdict against the plaintiff, at least in part, at the close of the plaintiff’s case-in-chief.

Less often, the plaintiff moves for a directed verdict in the plaintiff’s own favor at the close of the defendant’s case.

This case demonstrates the importance of the latter type of motion. The First District applied the rear-end collision rule to reverse a defense verdict, holding that the rear car driver in a collision was negligent as a matter of law.

By the way, does anyone know which Florida judge was the first to use the term “rear-end collision rule,” and when?

Hint: A good judge, and a good year.

UPDATE: The court withdrew its original opinion and released this revised one.

First District: Children Neglecting Children, Criminally

The Florida statute criminalizing a caregiver’s neglect of a child defines a caregiver as “a parent, adult household member, or other person responsible for a child’s welfare.” Is is reasonable to read the last portion of that definition as applying only to adults?

If you think so, then you would agree with Judge Padovano’s dissent in this case. He viewed the last phrase to be ambiguous because of the words preceding it, and, applying the rule of lenity, would have held that a minor cannot be an “other person” under the statute.

The majority disagreed and held the language to be plain and unambiguous. The court held that a minor can be charged with criminal neglect of a child.

First District: Exculpatory Clauses

This decision from the First District offers an interesting discussion of factors courts have examined when considering whether an exculpatory clause is void as a matter of public policy.

First District: Let ‘Em In

Evidence fans, for an interesting discussion on what inadmissible evidence may become admissible when someone opens the door, check out this decision from the First District.

Original Authority

Justice can be peculiar at times, especially when it seeks to be efficient.

Take, for instance, this decision. A prisoner filed a mandamus petition with the First District to compel a ruling on a habeas corpus matter in the circuit court. The district court denied the petition after observing that the petitioner’s habeas petition had never been filed in the circuit court.

Then, in an original jurisdiction case where the petition was denied, the district court directed the petitioner to file a copy of his date-stamped version of his petition within 30 days.

First District: Unemployment Appeals, Missing Postmark Information

Unemployment appeals permit a party to initiate an appeal by mail. By this administrative rule, appeals filed by mail are considered filed when postmarked by the United States Postal Service.

What happens if someone initiates an appeal by mail and the papers arrive after the deadline without a dated postmark?

It happened in this case. The UAC dismissed the appeal as untimely, but the First District reversed and remanded for an evidentiary hearing.

First District: Surnames

The difficulties a parent faces in seeking to change a child’s surname over another parent’s objection are shown by this decision. The First District reversed a trial court’s order granting a father’s petition to change his son’s surname from the mother’s surname to the father’s surname. The district court explained that the child’s best interests must support such a change, and the court held that the father’s reasons for the change — such as wanting the son to carry on his father’s family name — did not satisfy the best interests test.

First District: No Second Bites At The Apple — Well, Just Once More

This interesting decision held that the claimant in a workers’ compensation proceeding failed to prove that numerous medical bills represented compensable damages.

Okay, that is not very interesting. The interesting part involved how the court disposed of the case. The court observed that, generally, a party that fails to prove an element of a claim is not given a second chance to do so. The court further stated that the same is true in workers’ compensation cases, but because prior workers’ compensation cases had reversed and remanded for additional proofs, the court decided it would do so again in this case.

Judge Marstiller dissented on this point.

First District: More Collateral Source Rule

This decision further explores the collateral source rule and offers a look at how a rule stated in terms of evidentiary exclusion can seemingly operate as a rule of evidentiary admission. The court held that a plaintiff whose private medical insurance satisfied her medical bills with reduced payments could introduce the original bill amounts as evidence of her damages. The court distinguished cases where a plaintiff’s bills were reduced and satisfied by Medicare.

The court also pointed out that, post-trial, the plaintiff’s damages were reduced in accordance with the reductions obtained by her private health insurer.

First District: Insurance, Collateral Source Rule

This decision invites a thorough look into the workings of the collateral source rule. How does it apply to damages? How does it limit evidence affecting liability? Does it apply in contract actions? Or only tort actions?

The First District wended its way along those paths in a case involving an insured seeking windstorm coverage for his home. The trial court excluded evidence that the insured had previously claimed and recovered benefits under a separate flood insurance policy. The district court reversed that ruling, holding that the collateral source rule did not bar the introduction of evidence the insured claimed and received flood insurance benefits except for the dollar amount recovered.

Judge Van Nortwick dissented on this point. In his view, the collateral source rule should preclude the introduction of all such evidence.

If I did not need to move quickly through so many cases to catch up here, I would pause to offer some thoughts on the rule and its application. The rule is a fascinating topic, and it is a bit odd that Florida has not yet firmly staked out its position on how it should be applied in such cases.

First District: Forfeiting Retirement Benefits

Both the Florida Constitution and Florida Statutes provide for the forfeiture of retirement benefits where a public servant is convicted of certain felonies. Can a public servant avoid forfeiture simply by retiring before forfeiture is ordered?

No, said the First District in this decision.

Uncertified Disagreement: Challenging Expired Rules

In this decision, the First District heard an appeal from an administrative order determining that an expired rule was an invalid exercise of authority. The appellee filed its rule challenge after the rule’s expiration, and the appellant agencies argued that the challenge came too late. The district court agreed and reversed the order.

The court expressly recognized that an earlier Fourth District decision held that an expired rule could be challenged so long as it was still being applied to the petitioner. The First District expressly disagreed but did not certify conflict.

Immunity Wrap-up

Let’s sum up the three extraordinary writ immunity decisions discussed below. According to the First District, prohibition is not at all available to review immunity issues. Certiorari, on the other hand, is unavailable to review sovereign immunity claims or state employee immunity claims but is available to review a judicial immunity claim.

Ok.

As noted below, the Fifth District disagrees with regard to prohibition, and Judge Wetherell disagrees regarding certiorari’s unavailability.

First District: Certiorari, Judicial Immunity

In this third of three recent cases involving extraordinary writ petitions and immunity claims, the First District considered whether it could review, by certiorari, a trial court’s refusal to dismiss a class action claim against a circuit court clerk despite the clerk’s judicial immunity. The district court held that such an order qualified for certiorari review and ultimately granted the clerk’s petition.

Certified Question: Certiorari, State Employee Immunity

In this decision, the First District continued its recent trend of declining to review immunity decisions by certiorari. Judge Wetherell continued his trend of dissenting from those decisions.

In the process, the court certified the following to the state supreme court as a question of great public importance:

Whether review of the denial of a motion for summary judgment, based on a claim of individual immunity under section 768.28(9)(a) without implicating the discretionary functions of public officials, should await the entry of a final judgment in the trial court?

Certified Question, Conflict: Writs, Sovereign Immunity

When Citizens asserts sovereign immunity in defense to a bad faith claim and the trial court refuses to dismiss the claim, can the district court review the decision by an extraordinary writ petition?

The Fifth District has utilized prohibition to address the immunity issue on its merits.

In this case, however, the First District disagreed. All three judges concluded that prohibition is not available because, in their view, Citizens’ sovereign immunity is not a matter of subject matter jurisdiction. Judge Wetherell dissented in part on grounds that certiorari should be available.

The First District certified conflict and certified the following to the state supreme court as a question of great public importance:

Whether, in light of the supreme court’s ruling in Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?

First District: The Importance of Transcripts

This decision offers good support for the notion that a court reporter should be present at any hearing involving sanctions and a transcript from that hearing should be supplied to the appellate court in any challenge to the trial court’s ruling. The First District affirmed a sanctions order based on an inadequate record.

First District: Venue, Bad Faith Claims

Where does a bad faith claim accrue for venue purposes? In this decision involving an alleged bad faith failure to settle, the First District affirmed a trial court’s order transferring venue to the county where the underlying accident occurred, a decedent’s estate was opened, and any settlement would have been paid.

First District: Elections

This decision made much news at the time. A losing candidate in a primary for the state legislature sued the winning primary candidate one week after the primary election, asserting that the winner falsified his financial disclosure forms and consequently was not a qualified candidate. A trial court agreed and ordered the winner removed from the general election ballot.

The First District reversed. The court expressed considerable concern with the losing candidate’s decision to wait until after the primary to raise any challenge regarding his opponent’s financial disclosures. The court suggested that administrative remedies were available both before and after the primary election. Furthermore, the court held that any shortcomings regarding financial disclosures did not render the candidate ineligible to be nominated in the primary election.