Archive for January, 2011

Judge Wetherell: Rule 3.800(c) Orders

Orders denying rule 3.800(c) motions are not appealable. Accordingly, in a concurrence to this per curiam dismissal, Judge Wetherell reminds trial courts not to include a statement of appellate rights in such orders.

First District: Tortious Interference

If a potential employer lures an employee away from a current employer, and does so knowing that a non-compete agreement exists, can the current employer bring suit for tortious interference before the employee actually leaves?

Yes, explained the First District in this case, where the employee informed the employer she was quitting and the employer’s tortious interference claim alleged an anticipatory breach of contract.

First District: Prevailing Parties

Where an appellate court reverses a judgment and remands for further proceedings, is there a prevailing party at that point for purposes of attorney’s fees?

No, explained the First District in this decision.

I will add, though, that a conditional award may still be appropriate under certain circumstances.

First District: Appellate Jurisdiction, No Extensions

In this decision, the First District reminds us that Florida’s trial courts cannot extend the time in which to file a notice of appeal.

First District: Effectively A Confession

This decision from the First District construed a joint motion to relinquish jurisdiction as a confession of error. The court reversed the order on appeal.

First District: Mandamus, Stand Your Ground

Florida’s “stand your ground” law provides immunity from prosecution, not just an affirmative defense. In this decision, the First District granted a mandamus petition and required a trial court to hold a separate, pretrial hearing on the defense’s applicability, even though the defendant raised the defense only seven weeks before trial.

First District: Certiorari, Amendment 7

This case considered whether a health care provider subject to Amendment 7 can determine that a record does not cover an adverse medical incident. The trial court refused to require the defendant to produce the documents at issue, but the First District quashed that order. The district court held that Amendment 7 is not limited to incidents of medical negligence.

Also significant was the court’s willingness to utilize certiorari to review the trial court’s decision. The body of case law permitting discovery denials to be reviewed by certiorari is growing fast.

First District: Partial Reversal

Appellate folks may occasionally find themselves in need of authority for the notion that a new trial should be limited to the single issue affected by an error. This decision from the First District may be a good one to tuck away.

First District: Appellate Standing

We see a reminder here from the First District that a party has standing to appeal an agency’s order only if the order adversely affects that party.

Nomination Time: Fourth District JNC Stays With Four

If you attended the Appellate Practice Section’s monthly CLE call this past Tuesday, you heard me give a presentation on the past year’s notable events from an appellate perspective. Among them was this item, which I will finally post here.

To fill the appellate vacancy created by Judge Farmer, the Fourth District Court of Appeal Judicial Nominating Commission met last year and, on November 2, nominated four trial judges for appointment to the Fourth District. The JNC’s letter, available here named the following:

Judge Peter D. Blanc
Judge Burton Conner
Judge Jack Schramm Cox
Judge Elizabeth T. Maass

Governor Crist could have made an appointment from that list, but he did not. After Governor Scott took office, he sent this letter to the JNC. The letter observed that the JNC had nominated only four persons and expressed the Governor’s strong preference that the maximum number of nominations be made for any judicial vacancy. The letter requested that the JNC reconvene and certify a list of six nominees.

The JNC met last Friday and afterward released this statement saying it has certified four nominees to the Governor. The same four.

Eleventh Circuit: Board Certified People Are Somebodies

My fellow board certified specialists should be very interested in this decision from the Eleventh Circuit.

It opens with the following:

This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.” The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that field. The easier it is to be certified, the less that certification means.

You may recognize the inimitable writing of Judge Carnes.

In the case, a Florida attorney applied for board certification in marital and family law. The certification committee recommended that the Board of Legal Specialization and Education deny the application due to adverse peer review. The attorney challenged the recommendation, but the board accepted it. After a series of additional challenges, all unsuccessful, the attorney sought review in the Florida Supreme Court, which denied her petition.

The attorney then filed a federal lawsuit against The Florida Bar. Her claims included a due process challenge to the bar’s rules requiring confidentiality in the peer review process. She argued that the bar’s use of undisclosed peer review comments failed to inform her of the information adverse to her and prevented her from meaningfully challenging an adverse decision.

The Eleventh Circuit framed the issue as whether the attorney had a constitutionally protected liberty or property interest in board certification. The court’s answer was no.

The court suggested that the answer might be different with respect to property interests if board certification were required to practice law.

With respect to the attorney’s claim of a liberty interest, the court explained:

The lack of certification in a field of specialty simply means that an attorney is, like the vast majority of attorneys, not certified in that field. The failure to convey a badge of distinction is not stigmatizing.

The court also observed that the bar does not publish information about who is denied certification or why. Notably, the court decided to publish its decision.

Try, Try, Try

Despite some serious efforts, I have not been able to post a comprehensive catch-up regarding the First District. It remains under construction. Meanwhile, I have delayed posting on other things, and I do not want to let this week end without mentioning at least two that deserve attention. I will discuss them now.

Fifth District: Sanctionable Rehearing Motion. Oh.

After the Fifth District entered a per curiam affirmance without an opinion, the appellant in this case moved for rehearing.

The motion’s first paragraph simply stated, “Oh.”

The remainder of the motion requested rehearing and certification without explaining what the court overlooked and included scandalous, legally irrelevant assertions without record support. The appellees responded by moving for sanctions, to which the appellant responded by demanding that the appellees’ counsel be directed to appear before the court to explain how the appellant’s fact statements were improper.

The appellate court was not pleased. It issued a show cause order. The court emphasized that rehearing motions are not to be used to vent counsel’s frustrations with the form or substance of the court’s decision. The court also explained that rehearing motions are rarely warranted with respect to decisions without written opinions.

Note that the court denied the appellees’ motion for sanctions.

Fifth District: Jaywalking

If no crosswalk is available, is it legal to cross the street diagonally? As the Fifth District explained in this decision, where no crosswalk is available, Florida’s jaywalking law requires an individual to cross the street at a right angle to the curb or the shortest possible route.

Fourth District: Curious Consent A Cause For Concern

As a young law clerk, I recall being surprised by the number of search and seizure cases involving defendants who were found to have implicated themselves — either by agreeing to a search that revealed contraband or somehow dispossessing themselves of contraband in an officer’s plain view. The officer’s testimony inevitably constituted substantial competent evidence, and if the trial court relied on that testimony and believed the officer, then the appellate court would affirm the order denying the defendant’s motion to suppress.

After all, trial courts weigh testimony, and appellate courts cannot reweigh it.

In this decision, the Fourth District offered some more expansive observations along these lines. The court affirmed a trial court’s denial of a motion to suppress under circumstances that were, in the appellate court’s view, “unbelievable.”

The court explained that the burden here falls on trial judges to protect the integrity of the judiciary and the criminal justice system.

The decision was not openly critical of the trial court’s ruling but used the occasion to urge trial judges to perform “an unbiased and objective evaluation of testimony” so judges will not “devolve into rubber stamps for law enforcement.”

The court ended its decision by emphasizing its concern with the number of cases involving consent findings under “curious circumstances.”

Second District: MRTA

I know that somewhere out there are some big fans of Florida’s Marketable Record Titles to Real Property Act. You folks will be interested in this decision, where the Second District held that the act extinguished various restrictions and the amendments to those restrictions.

Interestingly, the appeal followed a trial that reached an opposite conclusion, and the appellate court framed its ultimate decision as holding that the trial court erred in denying the appellants’ motion for summary judgment.

Second District: Undertaker’s Doctrine

In this case, a technician tending to an implanted spinal cord stimulator observed a discharge and informed a physician of the circumstances. The technician had a nursing background but was not employed to provide nursing services. The condition deteriorated and the patient became paralyzed. He then sued the technician and her employer for nursing negligence, asserting that her actions in observing and assessing the plaintiff’s condition constituted the practice of nursing and, based on the undertaker’s doctrine, obligated her to do more.

Was the technician obligated to do more? A trial court granted a summary judgment in the defendants’ favor. On appeal, the Second District affirmed. The appellate court explained that the technician’s actions did not increase the risk of harm or cause other people to refrain from rendering aid.

Fourth District: Affirmance With Remand For Better Findings

This decision may interest those involved with injunctions. The Fourth District affirmed a temporary injunction but remanded the case to the trial court “to amend the injunction so that the order will contain specific factual findings to support the conclusions required to grant injunctive relief.”

In reaching its holding, the court observed that the record contained “an adequate showing justifying injunctive relief.”

If you are defending an injunction on appeal, should you do so based on the trial court’s findings? Or the record?

Fifth District: Certiorari, Striking Experts

This decision from the Fifth District granted a certiorari petition and quashed a trial court’s order striking an expert witness.

The district court found irreparable harm because “it is difficult to understand how striking the testimony of a material witness can be remedied on appeal since there is no meaningful way to determine, after judgment, what the testimony would have been or how it would have affected the result.”

The court also offered a general rule concerning striking an expert witness as a sanction: “As a general rule, before striking an expert witness, the trial court should ‘find that someone is in contempt of court or has violated an appropriate court order.'”

Hey, Legislature: Termination of Parental Rights

Those involved with termination of parental rights cases should be interested in this decision from the Second District. A trial court terminated a father’s parental rights because he breached a case plan term requiring him not to commit further legal violations. He had been convicted of aggravated assault on a pregnant woman. The district court determined that case plans may not contain a term prohibiting new legal violations because including such a requirement conflicts with the statutory scheme and violates the principle that termination cannot be predicated on incarceration alone or noncompliance caused by incarceration. The district court accordingly reversed the termination order.

In short, the court invalidated case plan terms that require a parent not to commit any new legal violations.

Judge Altenbernd concurred in the decision and wrote separately to encourage the legislature to revisit the statutory scheme. He explained:

I recognize that the termination of a parent’s rights to a child implicates a fundamental liberty interest of the parent under existing case law, but it seems to me that, at some point, children ought to have a fundamental right to a safe, secure, and permanent home. In this case, there is little question that we are providing the Father with his constitutional rights at the expense of the children. An improved statute might allow us to avoid such outcomes in the future.

Fifth District: Recording Statutes

Real property fans, would you characterize Florida’s real property recording statutes as utilizing a race recording scheme, a notice recording scheme, or a race-notice recording scheme? The Fifth District considered the matter in this case and held that Florida remains a notice recording state.

Second District: Better Late…

The defendant in this case received thirty-eights months’ probation for third degree grand theft. Three years later, the Second District reversed the judgment and ordered a new trial because the trial court failed to conduct a preliminary Nelson inquiry. The court noted the delay and discussed how the defendant’s original counsel failed to advance the appeal.

Fifth District: Entering Proposed Judgments

The Fifth District saw no problem with a trial court’s entry of a proposed judgment in this case, where both parties submitted proposals and the trial court waited six days before entering one of them.

Second District: Resign To Run Law

We know that, under Florida’s resign to run law, most elected officials must resign their positions to qualify to run for another position. Does filing an oath of candidate form in connection with an application to run for another position constitute an automatic resignation from the person’s current office?

The Second District addressed that question in this decision. The answer was no.

Certified Conflict: Automobile Driver Blood Draws

State troopers arrived at the scene of an accident. The men involved in the accident did not appear intoxicated or smell of alcohol, but the troopers nonetheless requested that they voluntarily provide blood samples. The men did so and signed written consent forms.

They later argued they should have been informed that Florida’s implied consent law requires submission only to a breath or urine test, and that a blood test is offered only as an alternative. A trial court agreed and suppressed the test results.

The Fifth District reversed. The court held that the implied consent law’s limitations are not applicable where officers are not attempting to utilize the implied consent law and seek only a voluntary blood test.

The court stated that if an earlier Fourth District decision “is read to require a contrary result, we acknowledge our direct and express conflict with it.”

I have given this post a “Certified Conflict” title, which will later make it easier to track what happens with this case, but is that a certification of conflict?

The Fifth District’s decision is available here.

Certified Conflict: Water Quality Assurance Act, Workers’ Compensation

Florida’s Water Quality Assurance Act provides those damaged by surface or ground water contamination with a strict liability cause of action against the property’s owner. The act expressly limits defenses to such claims to those described in the act, and the listing does not include immunity under the Workers’ Compensation Act.

Can workers’ compensation immunity be raised as a defense to a Water Quality Assurance Act claim?

In this decision, the Fifth District addressed that question and answered it in the affirmative. The court certified conflict with a 1990 First District decision that refused to permit a workers’ compensation immunity defense to be raised in response to a water quality claim. The Fifth District acknowledged that the First District case involved an allegedly intentional tort which would not have come within workers’ compensation immunity.

Second District: Fellow Officer Rule

Can a school administrator qualify as a fellow officer for purposes of imputing the administrator’s knowledge of an offense to an arresting officer? No, said the Second District in this case.

Fourth District: Habeas, Interrupted

When can a court with habeas corpus jurisdiction (based on the inmate’s location) essentially reconsider a sentencing challenge already rejected by the extraterritorial sentencing court? This decision reversed an order granting habeas relief under such circumstances. The inmate did not claim that the sentence was void or illegal.

The Fourth District was somewhat critical of this decision from the Second District, which granted habeas relief in an original proceeding under different circumstances.

Second District: Reminder On Departures

In this opinion, the Second District reminds trial courts that sentences should depart from the guidelines only when the court has articulated a valid legal ground to do so, and dissatisfaction with the guidelines is not a valid ground.

Second District: Biased Jurors

The jury selection process brings out all kinds of interesting comments. In this case, a prospective juror in a criminal case asked the defendant’s counsel why a person would not want to testify in his defense. The prospective juror then offered his own answer: “Unless they are guilty.” The defendant moved to strike the prospective juror for cause but the trial court denied the challenge. Did the trial court err?

The Second District said yes, explaining that the prospective juror’s remarks created a reasonable doubt about her ability to be fair and impartial and that she was not thereafter rehabilitated.

Second District: Personal Jurisdiction Waivers

Does a motion to stay a trial court case pending resolution of an out-of-state proceeding constitute the sort of request for affirmative relief that waives a personal jurisdiction defense? Not in this case, where the Second District considered that issue in the context of a motion that raised the jurisdictional and stay issues.

Fifth District: Check Cashing Fees

As this decision from the Fifth District explains, federal law authorizes banks to charge check cashing fees even where a check is drawn on the same bank that cashes the check. That federal law supersedes Florida’s statute requiring banks to settle their own checks at par.

Third District: Homeowners Association Fines

This statute regulates fines imposed by homeowners’ associations. Does it control fines made by a homeowners association under documents that predate the statute’s adoption?

The Third District considered that question in this case. The court held that the statute governs matters of procedure and remedy and so applies.

Second District: Appealability

If an order denies a postconviction motion without prejudice, allows 60 days to file an amended motion, and provides that any appeal must be taken within 30 days, is the order a final appealable order?

No, explained the Second District in this decision.

Fourth District: Replevin and Conversion

Can the replevin of an item through judicial proceedings lead to a conversion claim against the plaintiff? In a way, yes, as shown by this interesting decision from the Fourth District.

Fourth District: Self-Representation, Retroactive Competency Determinations

This decision from the Fourth District reminds criminal law fans that those representing themselves in criminal trials should receive renewed offers for counsel at each critical stage of trial, including sentencing.

Interestingly, the district court remanded this case for a retroactive determination of the defendant’s competency. Experts conducted multiple pre-trial evaluations, but no hearing had been held.

Almost There

I mentioned last week that by the end of the week I hoped to be caught up with every court. I have a lot of posts to publish, and I’m almost there. The First DCA blitz will be tomorrow. Today will be most everything else.

Oyez, Tom

Under unfortunate circumstances, Tom Hall, the Clerk of the Florida Supreme Court, has also taken on the role of the court’s acting marshal. The St. Pete Times explained the situation here.

Perhaps Tom will now deliver the marshal’s traditional oyez at the start of the court’s sessions:


For fun, the quote above is linked to a clip of Wilson Barnes delivering the oyez. Marshal Barnes retired in 2005.

First Blitz

Has anyone noticed that I fell behind with the First District’s cases at the end of the year? A dose of catch-up is in order. By week’s end, I will be fully current with every court, and I hope to stay there.

Run Done

I am back in St Pete after a fun day at the Disney Marathon. I kept on pace for a 3:35 through mile 21, when the lack of training bit me and I had to slow. In the end, I came in at 3:47. It was a good day and a great event. Disney knows how to host a first class marathon.

Run For Your Life

Well, the Times spotted me out on a training run and I ended up pictured in this story about the marathon group I help train, Tampa Bay Fit. Unfortunately, this season has been an awkward one — not enough running. So, along with a lot of running pals, and unthinkably undertrained, I’m off to Disney today for tomorrow’s marathon.

I have run eight marathons, and I’ve never been so unprepared for one. At the same time, I’ve never been so uninjured. Maybe with the perfect weather we’re having, it will all work out.

Just finish. There is no feeling like crossing that finish line. Me and about 17,000 new friends.

Top 10 for 2010

Which decisions in 2010 really mattered? Sylvia Walbolt and I decided to compile a list of the ten Florida Supreme Court decisions from 2010 that, in our humble opinion, have had or will have the greatest impact.

The list is available here.

DRI Appellate Seminar — What Is The Future Of Appellate Practice?

The folks at DRI have invited me to speak at their coming annual appellate advocacy seminar. I will have the fun of participating in a presentation on the future of appellate practice. I have a few ideas.

The seminar will be held March 10-11, in Orlando. The program is available here and looks absolutely fantastic. Information on registration is available here.

I thoroughly enjoy giving presentations and speeches, but I rarely mention them on this web site. Maybe I should do it more often.

Second District: Reluctant But Faithful

Some members of the public, and a considerable number of lawyers, believe that judges will always do whatever they must to reach the result they believe is fair in a particular case.

That isn’t true. Sometimes the law requires results that, under a given set of circumstances, seem unfair.

This case involves a developmentally disabled man who lives in a neighborhood that views him as abusive, threatening, and angry. The neighborhood association sued him to enforce the area’s covenants and obtained an injunction against him. The trial court entered an injunction. He appealed, and “with considerable reluctance,” the Second District affirmed.

The man has not been declared incompetent, but he does have a court-appointed guardian advocate under this statute.

The district court appeared concerned that the man may be incompetent, and the court stressed that in any enforcement action, the association should have to prove any violation was willful and intentional.

The district court also expressed doubt that an injunction was the proper way to handle the situation. A $47,000 judgment had already been entered against the guardian advocate for the trial court proceedings and the association was entitled to fees for the appeal.

Second District: Family Law Scraps

A former spouse in this dissolution case sought $400 a month in scrapbooking expenses. The trial court rejected that professed need, but the Second District pointed out that the trial court had no authority to do so. The other spouse did not challenge that expense. The district court explained that “the trial court was not free to impose its own apparent disbelief of this expense because it was supported by the parties’ unrefuted standard of living evidence.”

Second District: Searching Riders

If a police officer transports someone whom the officer suspects to be runaway child in need of services, can the officer search the child before the ride as a matter of course?

No, said the Second District in this decision, where an officer searched a child and found a controlled substance concealed in his key chain.

The court distinguished between a search and a pat-down.

Second District: Certiorari and Financial Information

Can the discovery of personal financial information create irreparable harm? It can where the information is not relevant. For the latest example of a court granting a certiorari petition under such circumstances, check out this decision from the Second District. The court emphasized that relevance must be tied to the pleadings.

Third District: Personal Jurisdiction Over Alter Egos

Personal jurisdiction can be obtained in Florida over a nonresident corporation by alleging the defendant was a resident corporation’s alter ego. This decision from the Third District includes an interesting discussion on what proofs are necessary to make an alter ego demonstration. Notably, with respect to the improper conduct requirement, the court explained that directing a company to breach an agreement is not, by itself, sufficient to establish improper conduct.

Florida Supreme Court: Preserving New Trial Arguments

Here is a question for trial lawyers and appellate lawyers: is there a difference between the steps necessary to preserve a sustained objection for appellate review and the steps necessary to preserve a sustained objection for a new trial motion? This decision from the Florida Supreme Court says no. Both require a contemporaneous motion for mistrial.

Florida Supreme Court: Rewriting The Rules On Prejudgment Interest

Earlier this year, in this case, the Florida Supreme Court held that prejudgment interest is generally available for pecuniary losses, whether liquidated or unliquidated, because prejudgment interest is “merely another element of pecuniary damages.”

The supreme court being supreme, it can amend that statement. The court effectively did so just three months later. This decision receded from prior case law holding that, as an element of damages, prejudgment interest must be specifically awarded in a final judgment or it is waived. The new decision holds that prejudgment interest may be addressed post-judgment, similar to attorney’s fees and costs.

Perhaps most interesting about the new decision is that the court chose to depart from stare decisis based on the court’s perception that, too often, the right to prejudgment interest was being waived inadvertently because attorneys who recovered judgments for their clients did not know the law. The new approach avoids that situation.

The new approach may spur further changes. For instance, attorney’s fees and costs are governed by rule 1.525, which requires that motions for fees or costs be served no later than 30 days after entry of a final judgment. Perhaps prejudgment interest will eventually be subject to the same requirement.

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