Archive for February, 2011

Welcome Back, Robert

It is good to see Robert Lincoln back at his Florida law blog, Florida Land Use Law.

He and I were two of the earliest Florida law bloggers. We both did it for years, took some time off, and — it would seem — are both enjoying getting back in stride.

Judge Kahn To The Federal Bench?

Judge Kahn

Judge Kahn

The Buzz reports here that Judge Kahn has been “nominated” for a federal magistrate position in the Northern District of Florida.

The report suggests that the district court judges have selected Judge Kahn for the Pensacola position and he is currently undergoing a background check.

Many years have passed since a Florida appellate judge left for a federal position. If I recall correctly, the last was Judge Covington.

Certified Question: Ineffective Assistance, Now or Then?

Should a court declare your attorney ineffective, constitutionally speaking, if raising a point during your representation would have entitled you to relief but the law on which that relief would have been based has now been rejected as incorrect?

In this decision, the Second District said no, but it certified the following to the state supreme court as a question of great public importance:

WHEN A PETITIONER CLEARLY ALLEGES DEFICIENT PERFORMANCE ON THE PART OF APPELLATE COUNSEL BASED ON CASE LAW IN EFFECT AT THE TIME OF THE APPEAL THAT WOULD HAVE RESULTED IN RELIEF HAD APPELLATE COUNSEL RAISED THE ISSUE ON APPEAL BUT THE CASE LAW UPON WHICH THE PETITIONER BASES THE CLAIM IS SUBSEQUENTLY DISAPPROVED, IS THE PETITIONER STILL PREJUDICED BY APPELLATE COUNSEL’S DEFICIENT PERFORMANCE AND THUS ENTITLED TO RELIEF THROUGH A PETITION ALLEGING INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL?

Fifth District: Abating Bad Faith Claims

This certiorari decision from the Fifth District reminds us that a bad faith claim’s abatement should continue, even though an underlying breach of contract has been found, if the breach of contract decision is on appeal.

Certified Question: Manslaughter By Act Instruction

The flawed manslaughter by act standard instruction continues to work mischief. It did so again in this case, where the Second District certified the following to the state supreme court as a question of great public importance:

IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN A CASE WHERE THE EVIDENCE DOES NOT SUPPORT A THEORY OF CULPABLE NEGLIGENCE, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY GIVING A FLAWED MANSLAUGHTER BY ACT INSTRUCTION WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER BY CULPABLE NEGLIGENCE?

Relying on its own precedent, the district court answered the question in the negative, but the court expressed concern with whether the result comports with last year’s decision in State v. Montgomery.

Fifth District: NICA

Those who follow NICA case law should be interested in this decision. The Fifth District explained that NICA immunity applies only to claims that fall within the act, and since the only attending obstetrician during the delivery at issue was not a participating physician under NICA, then neither NICA nor its immunity applies — even though the defendant timely notified the plaintiffs of its participation in NICA.

Certified Question: Class Action Waivers

This decision arguably invites more questions than it answers, but the Fourth District does give one very clear answer: in a case involving various consumer protection statutes, the court held that a class action waiver contained in a check cashing company’s arbitration agreement violated Florida’s public policy and resulted in the denial of the company’s motion to compel arbitration.

The court nonetheless certified the following to the state supreme court as a question of great public importance:

WHEN ASSERTED IN A CLAIM INVOLVING A VIOLATION OF FDUTPA OR ANOTHER REMEDIAL STATUTE, DOES A CLASS ACTION WAIVER IN AN ARBITRATION AGREEMENT VIOLATE PUBLIC POLICY WHEN THE TRIAL COURT IS PERSUADED BY EVIDENCE THAT SUCH A WAIVER PREVENTS CONSUMERS FROM OBTAINING COMPETENT COUNSEL?

Certified Question: Vacating Voluntary Dismissals For Fraud

Sitting en banc in this case, the Fourth District considered whether a former defendant in a case the plaintiff voluntarily dismissed could set aside the dismissal to raise fraud on the court issues even if the plaintiff received no affirmative relief prior to the dismissal.

Perhaps not surprisingly, the case involved a mortgage foreclosure.

The en banc court affirmed an order refusing to set aside the dismissal but certified the following to the state supreme court as a question of great public importance:

DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Judge Polen dissented with an opinion that he noted was written by Judge Farmer before his retirement at the end of 2010.

Appellate Discretion

Two decisions released yesterday show that the appellate courts are taking a serious interest in not revealing the names of nonparties involved with, or accused of, questionable or perhaps just highly personal activities.

In this decision, the Third District did not give the names of a juror asserted to be intoxicated during trial or another juror who claimed his own severe hypertension led him to vote a particular way. In this separate decision, the Second District repeatedly referenced only the victim’s “girlfriend” when discussing a woman who had sex with three men in a hotel room shortly before two of the men ended up in a fight that resulted in aggravated battery charges.

Credit to the courts for recognizing the potential impact of including names in written opinions. Hopefully that same sensitivity will carry over to counsel once all Florida appellate briefs are readily available online and included within the major search engines’ databases. That day is coming soon…

Second District: Certiorari, Obtaining Settlement Documents

Extraordinary writ fans are surely noticing the district courts’ increasing use of certiorari to quash orders denying discovery. I am the author of an extensive chapter on pre-trial writs in this bar publication, and I like to write on the subject, so I have a particular interest in the area.

This case caught my eye. It involved settlement agreements with nonparties. A trial court denied a motion to compel their discovery, and the Second District, finding irreparable harm, quashed the order. The district court determined that the discovery denial eviscerated the petitioner’s setoff defense and that proving harmful error post-trial would have been nearly impossible.

Third District: Bad Settlement Binding, Despite Bad Market

A party in this case tried to avoid a settlement agreement because changes in the real estate market allegedly made performance impossible. The trial court agreed, but the Third District reversed. The appellate court explained:

In this case, the decline in the real estate market shortly after the Former Husband signed the marital settlement agreement, while marked and unfortunate, was not the sort of unanticipated circumstance that falls within the purview of the doctrine of impossibility. Economic downturns and other market shifts do not truly constitute unanticipated circumstances in a market-based economy. The assignment of this risk before a final closing of the transaction between the parties was therefore among those for which a reasonably prudent person, represented by counsel, might have provided. A trial court is not authorized to intervene to ameliorate a hardship that a promisor, such as the former husband in this case, could have thus avoided.

The court also observed that, while not ambiguous, the agreement was “not a candidate for a future style manual.”

Second District: Speaking With Hospitals’ Employed Physicians

This highly significant case involved parents who sued a hospital on their child’s behalf for medical malpractice. The hospital sought a protective order to block the parents’ attorneys from speaking with the child’s current treating physicians, who were hospital employees, without the hospital’s counsel present. The trial court denied the motion and the hospital petitioned for a writ of certiorari.

The Second District denied the petition. The court examined the ethics rules involving communications with represented persons and determined that the communications at issue would not be unethical because, at the risk of oversimplifying, the employee physicians were not shown to be involved with the underlying incident or the litigation or to have the authority to bind the hospital with respect to the incident.

The decision implies that the physician employees could not bind the hospital with regard to the litigation, but what it means to bind someone was not clear.

Fourth District: Contingency Fee Agreements

This decision centered on the arbitrability of a fee dispute between counsel and a former client. The case is interesting, however, not so much for its arbitration issues as it is for its discussion of when and how contingency fee agreements may be enforced, particularly following the adoption of rule 4-1.5(i). Anyone interested in contingency fee agreements may wish to give the case a look.

Second District: Emotional Damages, Lost Wages from Discrimination

In this age discrimination case, the Second District held that the trial court abused its discretion in not granting a motion to remit the jury’s $3.5 million award for noneconomic damages. The district court relied on a decision holding that, in a typical age discrimination case without actual physical injuries, emotional distress awards should not exceed the “the $5000 to $30,000 range,” and another decision reducing a $200,000 award to $50,000.

The appellate court also held that the trial court abused its discretion in not reducing the jury’s lost wages award, where the award was $300,000 higher than the amount requested.

Second District: Engagement Rings, Heirlooms

This dissolution decision recognized the general rule that a married woman’s engagement ring is her nonmarital property. The trial court in the case directed that such a ring, a family heirloom, be returned to the husband and given to the parties’ children as the husband saw fit. The Second District reversed that decision, holding that Florida law does not authorize special treatment of heirloom property and that, under the circumstances (which included the husband listing the ring as the wife’s nonmarital property), the wife should receive the ring.

Second District: Homestead Property

Real property fans may be interested in this decision. The Second District held that the constitutional proscription on devising homestead property where the owner is survived by a spouse or minor children does not apply when an owner with minor children simply acquires property held by a joint tenancy. The court explained that the proscription prevents the devise of homestead property under certain conditions — it does not prohibit persons with minor children from owning property that is not homestead.

Certified Question: Lies at Plea Hearings

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

MAY PRISONERS IN POSTCONVICTION PROCEEDINGS PREVENT THE ANSWERS THEY GAVE UNDER OATH AT PLEA OR SENTENCING HEARINGS FROM CONCLUSIVELY REFUTING THEIR CLAIM BY ALLEGING THAT THEIR ATTORNEY INSTRUCTED THEM TO LIE ABOUT WHETHER THE ATTORNEY MADE ANY PROMISES BEFORE THEY ENTERED THEIR PLEAS?

The district court’s answer? No — the defendant is estopped to change stories.

Second District: Loss of Consortium

In this case, a divided Second District held that a trial court erred in denying a spouse’s new trial motion after a jury awarded him nothing on his loss of consortium claim. The majority held that the spouse should have received at least nominal damages, while Judge Black dissented on grounds that issues of fact existed and that the jury could have resolved them against the spouse.

Third District: Sanctioning Parties, Witnesses

After declaring a mistrial based on an expert witness’s gratuitous statements from the stand, the trial court in this case imposed over $20,000 in sanctions against State Farm, the party that presented the expert. The Third District reversed, holding that an expert’s misconduct cannot predicate an award of sanctions against a party or its counsel without some bad faith or egregious conduct on the part of the party or counsel.

Fourth District: Upward Departures

In this decision, the Fourth District reminds trial judges that when imposing a sentence after a probation revocation, an upward departure cannot be based on factors relating to the violation of probation.

Fourth District: Service of Process, Time Notation

This decision from the Fourth District held service of process defective because the server did not note the time of service on the process.

















































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