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Tuesday, January 18, 2011

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.

Monday, January 10, 2011

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.

Saturday, January 8, 2011

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.

Tuesday, January 4, 2011

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.

Sunday, January 2, 2011

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.

Florida Supreme Court: Knock and Announce

Florida’s statutory law has a knock and announce requirement. It is codified here. Is its violation a basis for excluding evidence?

Before you answer, consider that federal law now holds that a mere knock and announce violation is insufficient to require exclusion under the Fourth Amendment.

The answer is yes. The Florida Supreme Court held in this decision that the exclusionary rule applies to violations of Florida’s knock and announce statute, regardless of how the United States Supreme Court construes the Fourth Amendment.

Justice Polston dissented. He pointed out that the federal and Florida constitutions do not call for exclusion based on a failure to knock and announce and that neither does the statute on which the majority based its decision. Justice Polston observed that, because the majority relied on the statute, the legislature could eliminate the exclusionary rule.

Florida Supreme Court: Second-Tier Review, And A Message?

This decision caught my eye for a number of reasons.

The Florida Supreme Court exercised its discretionary review authority to quash a district court decision that, on second-tier review, quashed a circuit court appellate decision. The supreme court faulted the district court for not analyzing and developing how the circuit court departed from the essential requirements of law. The court stressed that, on second-tier review, a district court may not simply disagree with the manner in which the circuit court applied the correct law.

The decision cites a need for finality, and, frowning on higher court review merely to correct error, the high court emphasized the importance of not permitting a second appeal in the district court after a circuit court makes a decision in its appellate capacity.

Why did the supreme court choose to review this particular district court decision? Perhaps the supreme court was troubled by what it saw as too many second-tier review decisions simply correcting circuit court errors.

Particularly noteworthy is the decision’s tone. For a Supreme Court of Florida decision, it is strangely harsh in rebuking the district court not only for improperly disagreeing with the circuit court decision but also for the district court’s substantive position. The high court liberally used underlining and some pointed adjectives to deliver its message. The court’s tone is remarkable in any context but more so considering that, beyond the parties involved, the decision’s primary audience consists of district court of appeal judges.

Saturday, January 1, 2011

Happy New Year

A happy new year to everyone who happens by here. Thanks for stopping by.

Thursday, December 30, 2010

Fourth District: Stern Class Certification Affirmed

Yesterday, in this brief decision, the Fourth District affirmed an order certifying a class action against well known foreclosure counsel David Stern and his firm. The class is made up of property owners who, while in default on their mortgages, received reinstatement letters from Stern’s office. The letters demanded payment of fees and costs that were allegedly improper or not owed, in violation of Florida’s consumer protection laws.

Second District: Economic Loss Doctrine

With the year’s end nearing, we see this economic loss rule case from the Second District. Economic loss decisions have gone from being plentiful to downright sparse. A few state supreme court decisions disparaging the “rule” are no doubt the cause, but that is a fun discussion for another day.

In this case, a plaintiff asserted that three corporate officials misrepresented the nature of costs the plaintiff had agreed to pay their corporation.

The officials relied on the economic loss rule to argue that any claim against them was barred, but the court held the rule inapplicable for two reasons. First, “[t]he economic loss rule does not bar tort actions based on fraud if the fraud alleged does not relate to an act of performance under the contract but instead relates to a term in the agreement.” So if someone is fraudulently induced to agree to certain terms in a contract, that inducement is actionable. Second, the court held that the rule did not apply because the plaintiff had no contract with the officials and thus “the action against them is for intentional or negligent acts independent of any contract.”

The second reason is far less developed in the case law than the first. As someone who really enjoys this area of the law, I look forward to watching it develop — even if that development will be a bit slow.

Second District: Rule 1.442, Settlement Proposals

Those who keep track of Florida’s proposal for settlement case law, not to mention those interested in dog bite cases, will be interested in this decision. A defendant made a $1500 proposal for settlement and, later obtaining a defense verdict from a jury, sought attorney’s fees based on the proposal. The trial court denied that motion because the proposal was predicated on a credibility battle as well as a legal position that the defendant lost.

The Second District reversed. The district court explained that the defendant was entitled to fees unless the offer was not made in good faith, and the trial court never stated that the offer was not made in good faith. The district court further explained that focusing on the credibility battle improperly placed the inquiry’s focus on the recipient’s reasons for rejecting the offer, which are not relevant. In the district court’s view, the defendant established she could reasonably conclude her exposure to liability at trial was nominal, and thus the court held she was entitled to fees.

The decision ends with an apparent expression of agreement with an observation Judge Klein made long ago that the opportunity to make nominal settlement offers gives defendants an unfair advantage over plaintiffs.

Tuesday, December 28, 2010

Judge Schwartz: Thankfully Respecting The Fifth’s Turf

A couple of months ago, in this post, I expressed some concern with the Third District’s efforts to rename the “tipsy coachman” rule as the “drunken cabbie” rule. Judge Schwartz has been the champion of those efforts. He recently authored this decision for the Fifth District, but, although he had occasion to mention the rule, he notably declined to continue his revisionist nomenclature pursuits.

I mean “notably” quite literally. Judge Schwartz used a footnote to discuss his reticence to steer the Fifth District down the “drunken cabbie” way.

Certified Conflict: Elegant, If The Court Does Say So Itself

This decision from the Fifth District is the first in Florida to hold that a homeowners association can bring a cause of action against a developer for breach of implied warranties of fitness and merchantability with respect to private roads, drainage systems, retention ponds and underground pipes in a residential subdivision.

An earlier decision from the Fourth District held that a homeowners association could not bring such claims. That case involved a subdivision’s roads and drainage areas.

Both cases relied on the Florida Supreme Court’s 1983 decision in Conklin v. Hurley. There, purchasers of a vacant land attempted to sue a developer regarding the land’s only improvement — a seawall that collapsed. The high court held that implied warranties do not extend to first purchasers of residential real estate for improvements to land, other than the construction of a home and other improvements “immediately supporting the residence thereon, such as water wells and septic tanks.”

So implied warranties of fitness and merchantability (well, habitability, for a home) exist for first purchasers of homes and improvements “immediately supporting the residence thereon.”

In the Fourth District’s case, the court determined that the roads and drainage areas at issue did not immediately support the residences.

The Fifth District disagreed. It announced “a test that is elegant in its simplicity: in the absence of the service, is the home inhabitable, that is, is it an improvement providing a service essential to the habitability of the home?” Applying this “elegant” test and answering its question in the affirmative, the court held that warranties ran from the developer to the homeowners for the roads and other areas at issue. Citing judicial efficiency, the court further held that a breach of warranty claim could be brought by a homeowners association.

The decision is fascinating in many respects. If you enjoy decisions that focus on common law doctrines and how they continue to evolve, this decision is one to read. The court clearly saw itself as expanding the law. It relied on what it characterized as the complexities surrounding modern permitting and site development to support the expansion.

The case also raises some questions. For instance, while the Fifth District placed great reliance on the implied warranty cause of action recognized in Conklin, one might wonder if Conklin really applies in homeowners association litigation. Conklin involved a seawall present on the purchased property, whereas homeowners in a private subdivision are unlikely to hold any direct ownership of the subdivision’s roads, drainage systems, retention ponds, and underground pipes. Their ownership is more likely to be indirect, as members of an association that succeeded to the developer’s ownership interests in those areas. Yet the Fifth District held that individual homeowners can bring implied warranty claims relating to roads and drainage systems, and of course the court expanded that notion to apply to associations. Under this decision, how would things work out if a homeowners association decided not to bring a claim but an individual homeowner went forward? Would the court have reached the same conclusion if the issue had been framed as whether an association that succeeds to a developer’s interest in common areas can bring a common law implied warranty claim against the developer for defects?

Forging Order Dates

Perhaps there was a time when someone who had missed the 30-day deadline to file a notice of appeal could get away with altering an order’s date to make a notice appear timely. Perhaps not. Either way, it is not likely to work now, this decision shows.

Fifth District: Attorney Disqualification By Agreement

Attorneys may be interested in this decision involving an agreement not to represent clients adverse to an attorney’s former employer. The case involved Scott Mager, a well known attorney who allegedly breached such an agreement. A trial court agreed with Scott that the agreement was contrary to public policy and therefore unenforceable. The Fifth District reversed. The district court held that an agreement not to represent clients against a former employer would not violate public policy if the attorney possessed confidential information as a result of the employment and a fiduciary relationship and if the attorney could use that information to the former employer’s detriment in representing or assisting a party with a claim against the former employer.

By the way, I took a look at Scott’s current listing of published articles and speeches.

Now I feel lazy.

Certified Conflict: What Makes A Dwelling

If a defendant is charged with burglary of a dwelling, must the state prove that the structure was habitable as a dwelling on the date of the offense? The Fifth District said no in this decision, which certified conflict with this decision from the Second District.

Fifth District: The Ultimate Sanction

If you read this 2008 decision by the Fifth District, you might wonder exactly how bad someone’s conduct must be to justify dismissing a complaint as a sanction. This new decision gives us an answer.

Fifth District: Time Limits on Fee Motions

Is a party dropped from an ongoing lawsuit bound by rule 1.525’s 30-day time requirement, and, if so, does that period commence with service of the notice? The Fifth District answered both questions in the affirmative in this decision.

Fifth District: Consolidation, Certiorari

Extraordinary writ fans may appreciate the unusual nature of this decision. The Fifth District granted a certiorari petition and quashed an order refusing to consolidate two highly related circuit court cases.

Fifth District: Timing of Foreclosure Sales

Does the holder of a foreclosure judgment have the right to control when, if ever, a foreclosure sale takes place? The Fifth District answered that question with a clear no in this decision.

Fifth District: Expert Testimony

Can a jury reject expert testimony that is not contradicted by other expert testimony? Of course, as the Fifth District observed in this decision.

Certified Conflict: Certiorari Appeals

Where one of multiple parties to a local zoning proceeding appeals by certiorari to a circuit court, are the other parties to that proceeding entitled to be parties in the appeal? In this case, the Fifth District said yes and certified conflict with this (and an earlier) decision from the Second District.

Certified Conflict: Termination of Parental Rights

In this termination of parental rights case, the Fifth District certified conflict with a First District decision over whether a motion for judgment of dismissal at the end of the state’s case is necessary to preserve a challenge to the sufficiency of the evidence. The First District holds a motion is necessary, while the Fourth and Fifth Districts hold it is not.

Fifth District: Claims Files

This very brief Fifth District decision reminds us that an insurer’s claim file cannot be discovered while coverage remains at issue.

Fifth District: Re-Recorded Judgments

Real property fans should be interested in this decision, where the Fifth District answered the following question in the affirmative: “Does the re-recording of a certified copy of a judgment after the expiration of the original judgment lien impose a new lien on real property held by the judgment debtor?”

Fifth District: Medical Malpractice Pre-Suit

Medmal fans may be interested in this case, where a divided Fifth District held that a proferred expert’s affidavits, read together, showed she was qualified to give a malpractice opinion in the case. Judge Lawson dissented on the qualification issue. His dissent included an interesting discussion (on what the majority characterized as an unpreserved issue) regarding whether a trial court can consider facts regarding qualifications that appear in an affidavit served after the limitations period expires.

Fifth District: Contract Damages

Contract fans should be interested in this opinion, where the Fifth District explained that damages for breach of contract are not always measured as of the time of the breach.

Fifth District: General Magistrates, Exceptions

Just a reminder here from the Fifth District that, when exceptions are made to a general magistrate’s report in a family law case, rule 12.490 requires a hearing on the exceptions to be held.

Monday, December 27, 2010

Abstract School

I know that a number of universities and colleges still use the Schiavo Infopage as a resource, but spotting this link surprised me a bit. Abstract Appeal is listed as #4 in this list of resources for students attending online paralegal schools.

There can be topics here that matter for paralegals. I will keep a watch out.

Friday, December 24, 2010

Fourth District: Hearsay

“[O]nly statements made by persons fall within the definition of hearsay,” said the Fourth District in this case, quoting a 2001 decision. The court rejected an argument that a trial court erred by permitting a witness to testify to information reported by a hotel’s key management lock system.

Some might wonder whether that squares with the case discussed recently in this Abstract Appeal post…

Fourth District: Harsh Example of Second-Tier Certiorari’s Limits

All around, this may be one of the year’s most dissatisfying opinions. But it’s a great one to examine.

An insurer determined that a chiropractic center no longer needed to treat a person entitled to PIP coverage. The insurer notified the center of its determination and sent a check for outstanding payments. The check included a clear notation that it was tendered in full and final payment for all benefits due the person. The center deposited the check, continued to provide the person with treatments, and then sued the insurer for additional payments.

The insurer defended based on accord and satisfaction, but a county court entered a summary judgment for the center. The insurer appealed to the local circuit court, which affirmed. The insurer then sought second-tier certiorari review from the Fourth District.

The Fourth District explained that the circuit court (and, by extension, the county court) misapplied the law. The insurer correctly relied on the earlier check and an accord and satisfaction defense. However, on second-tier certiorari review, mere legal error is not a sufficient basis to grant relief. The circuit court must have failed to afford due process or failed to apply the correct law — the latter not being the same as applying the correct law incorrectly. Here, the circuit court misapplied the law but did not depart from the essential requirements of law, amounting to a miscarriage of justice, by failing to afford due process or applying the wrong law.

The district court acknowledged that the insurer had suffered an erroneous monetary judgment, but the court explained that “something more is required for there to be a miscarriage of justice.”

So the county court’s judgment was affirmed by the circuit court, and the circuit court’s judgment was left undisturbed, but both courts misapplied the law and gave the victory to the wrong party.

The chiropractic center won, but it did so only by two courts failing to follow the law correctly.

The insurer was vindicated that it was correct all along, but the vindication came only in principle. The insurer still lost.

The district court deserves credit for explaining its analysis.

Fourth District: Class Actions

This decision involves a peculiar class action.

A plaintiff filed a class action complaint against an insurer who, five years ago, shorted a medical reimbursement by $2.38. The plaintiff did not send a statutorily required notice of intent to sue, thus foreclosing any claim to damages, but the plaintiff asserted it was seeking only a declaratory judgment as to the correct reimbursement formula. The defendant admitted it had made a miscalculation but fought the certification on grounds that, having failed to serve a notice of intent, the plaintiff was not an adequate representative.

The trial court certified the class and the defendant appealed. The defendant’s arguments seemed to center around its belief that certification must be an effort to obtain damages. The Fourth District affirmed the certification but emphasized it was holding the plaintiff to its representation that no damages would be sought in the class action, including supplementary relief.

Judge Warner wrote a concurrence questioning why the class action was being pursued at all. She explained that the plaintiff sought a declaration for a class but that “not one member of the class can collect based upon that declaration.” She further observed that any new claim by class members would be time-barred.

Perhaps there is more to the story.

Fourth District: Frye

As all Florida trial lawyers will tell you, Florida utilizes the Frye standard to govern the admissibility of new or novel scientific evidence. Nearly two decades ago, the federal courts abandoned that standard in favor of a more focused, court-based examination into the reliability of expert testimony. Florida has stuck with Frye, more or less.

The potential for different outcomes under the two standards is highlighted by this decision from the Fourth District. The underlying case is a products liability action asserting that Zicam nasal gel caused the plaintiff to lose his sense of smell. The trial court entered a summary judgment for the defendants, and the plaintiff appealed. He argued that the trial court erred in excluding his expert’s testimony under Frye. The district court reversed. It essentially held that the expert’s testimony was largely opinion not subject to Frye, and with the exception of some personal experimentation the expert had performed, was not “new or novel” so as to be subject to Frye.

The district court acknowledged that numerous federal courts had considered the same expert’s testimony under the federal standard and had uniformly excluded it. Florida law differs.

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