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Saturday, January 22, 2011

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.


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.

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.

Friday, January 21, 2011

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.

Tuesday, January 18, 2011

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.

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