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Tuesday, February 8, 2011

First District: Class Actions

Class action fans should be interested in this decision. The First District affirmed orders certifying classes while indicating that the propriety of certification would turn on a legal issue not yet decided.

Monday, February 7, 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.

Friday, February 4, 2011

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.

Thursday, February 3, 2011

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.

Monday, January 31, 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.

Friday, January 28, 2011

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.

Thursday, January 27, 2011

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.

Wednesday, January 26, 2011

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.

Tuesday, January 25, 2011

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.

Monday, January 24, 2011

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.

Saturday, January 22, 2011

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.