Abstract Appeal -- by Matt Conigliaro

Wednesday, October 01, 2008

Another Supreme Selection: Judge Ricky Polston

I've come out of my briefwriting shell to note that Governor Crist has just announced his appointment of First District Court of Appeal Judge Ricky Polston to the Florida Supreme Court. This selection fills the vacancy created by the resignation of Justice Bell.

The Governor's press release is available here.

Congratulations to Judge, now Justice, Polston.

...posted by ⊥ 10:02 AM ⊥ #

Thursday, August 28, 2008

Supreme Selection: Judge Charles Canady

The Governor is currently holding two lists of nominees for the Florida Supreme Court.

This morning, just minutes ago, he held a press conference and announced that he has appointed Judge Charles Canady, currently of the Second District Court of Appeal, to the at-large seat made vacant by Justice Cantero's resignation.

Congratulations to Judge, now Justice, Canady.

...posted by ⊥ 9:50 AM ⊥ #

Tuesday, August 26, 2008

Supreme Landing

Today, White & Case announced that Justice Raoul Cantero will be joining the firm's Miami office upon his September resignation from the Florida Supreme Court.

Congratulations are in order.

You can read the firm's press release here.

...posted by ⊥ 4:52 PM ⊥ #

Friday, August 15, 2008

Judicial Nominating Omissions?

Today's St. Pete Times includes a story about yesterday's state supreme court nominations.

Its headline varies.

The printed article carries the following top headline on the front page of the local and state section: "Court list frustrates Crist," with the subheading, "No women or blacks are nominated for the high court. He could ask for more names."

Online, the story carried the following headline early this morning: "Crist not happy with list of court choices." There was no subheading.

At the time I am publishing this post, the headline and subheading from the printed paper are not online. Nor is the "not happy" language. The online headline now reads: "Crist upset by list for state Supreme Court seats."

The online story can be found here.

The story's only reference to the Governor or his staff states:

He has 60 days to appoint two justices, and he can ask the commission for more names, advisors said.

"I've got several concerns about it, so I'm looking at what my options are," Crist said.

In its final paragraph, the story mentions that eight of the 50 applicants were women. The same paragraph also mentions that only 12 of the 50 were minorities, but that must include Hispanic applicants (two of whom were nominated) and does not state that only two of the 50 applicants were black.

The short lists are interesting. My inboxes buzzed yesterday as the nominees' names were announced. In my opinion, qualified people made the short lists, and other qualified people were left off.

The aspect of the lists that I found most intriguing is that the JNC nominated only three persons for the First District-area seat. The JNC is required to nominate at least three but no more than six persons for a vacancy. The commission went with the fewest possible names, despite the fact 21 persons applied for the seat currently occupied by Justice Bell, who is from Pensacola.

Another story on the nominees can be found online at Tallahassee.com.

...posted by ⊥ 11:00 AM ⊥ #

Thursday, August 14, 2008

Supreme Nominees

The Judicial Nominating Commission for the Florida Supreme Court has forwarded the following lists of names to the Governor. The Governor may appoint one person from each list to the supreme court:

For Justice Cantero's (at large) seat:

Judge Charles Canady
Judge Kevin Emas
Edward Guedes
Judge Jorge Labarga
Judge Vincent Torpy

For Justice Bell's (First District) seat:

Judge Ricky Polston
Judge Waddell Wallace
Judge Peter Webster

A press release on the nominees is available here.

...posted by ⊥ 10:19 AM ⊥ #

Monday, August 11, 2008

Fourth District: Time To Rule!

At what point has an appeal been pending too long without a decision?

In this decision from the Fourth District, one year was too long. The district court granted a mandamus petition asking that a circuit court be directed to rule on a county-to-circuit court appeal that had been pending for one year.

From my personal experience, well, let's just say this decision left me with a smile.

...posted by ⊥ 9:12 AM ⊥ #

Fourth District: Incorporation By Reference

Does referencing a document in a complaint allow a trial court to consider that document for purposes of a motion to dismiss if the document is not actually attached to the complaint as an exhibit?

In federal court, the answer is usually yes.

In this decision from the Fourth District, the answer was no.

The case involved a false light claim and, by certified question, is now a tag-along to the Jews for Jesus case still pending at the state supreme court.

...posted by ⊥ 9:08 AM ⊥ #

Fourth District: Search and Seizure

Is a police officer who wishes to search a shared residence constitutionally required to secure consent from a physically absent, but nearby, tenant after that officer has already obtained a valid consent from a co-tenant who is on the premises?

No, said the Fourth District in this case.

Notably, the tenant at issue was not at the residence because, at the time, he was handcuffed in the back seat of a patrol car.

...posted by ⊥ 9:05 AM ⊥ #

Tuesday, July 29, 2008

Fourth District: Appealing From Consolidated Cases

Is an order appealable as a final judgment if it completely disposes of one of two cases consolidated "for all matters" in the trial court? The Fourth District assumed so in this decision.

...posted by ⊥ 8:26 AM ⊥ #

Fourth District: Slips and Falls, and Ethical Calls

This decision from the Fourth District demonstrates the usefulness to a plaintiff of the "mode of operation" negligence theory in a slip and fall case. In short, the theory asserts that a breach of duty lies in how a business chooses to run its operation, ultimately leading to a condition that injures the plaintiff.

The case involved a slip and fall at a restaurant. The district court held that the trial court erred in not allowing the plaintiff to present mode of operation evidence. In the context of this slip and fall case, that theory would allow the plaintiff to challenge how the defendant restaurant operated, leading to a slippery condition, without having to prove that employees had actual or constructive notice of the substance's presence on the floor as in a traditional premises liability negligence claim.

The decision is also notable for openly criticizing -- and naming -- a trial attorney who improperly injected a fact about another case into cross-examination of an expert. The attorney was examining the plaintiff's expert, who over 10 years earlier had testified in another case against the same defendant. Over objection, the attorney asked the witness if he knew the jury in that case returned a defense verdict in 20 minutes. The district court held that injecting that irrelevant, highly prejudicial information into the trial violated Rule of Professional Conduct 4-3.4(e), which provides in part:

A lawyer shall not knowingly:
*** in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.

...posted by ⊥ 8:23 AM ⊥ #

Fourth District: Arbitration Stays

In this decision, the Fourth District explained that the Florida Arbitration Code mandates a stay while a motion to compel arbitration is pending but not while an order denying such a motion is on appeal.

The appellate court denied the appellant's motion for review of a stay denial order.

...posted by ⊥ 8:20 AM ⊥ #

Fourth District: Pure Bill of Discovery -- Rare, Not Dead

The chances of obtaining a pure bill of discovery -- that rarely used device that allows discovery of information without the filing of claims in a lawsuit -- seem to improve if the prospective plaintiff is impaired and cannot provide important details on the incident in question. So it would seem from this divided decision from the Fourth District.

Acknowledging the court's own precedents stating how rarely a pure bill of discovery should be needed, the majority opinion stated:

Maybe so, but rare does not mean dead.

Perhaps a time will come when I will find occasion to use that quote.

...posted by ⊥ 8:18 AM ⊥ #

Fourth District: Disqualification?

Should you have a reasonable fear of partiality, supporting a trial judge's disqualification, if you are a criminal defendant being represented by an attorney who is campaigning for a circuit judge position and you suspect, or even know, that the judge's spouse has contributed to your attorney's opponent?

No, said the Fourth District in this case.

...posted by ⊥ 8:15 AM ⊥ #

Wednesday, July 23, 2008

Eleventh Circuit: Pledging Allegiance, Or Not

Pound for pound -- or should I say, page for page -- this is one of the most interesting decisions I have read in a while. Today, in just over 13 pages (with one of them being all caption), the Eleventh Circuit tackled the facial constitutionality of Florida's statute on reciting the Pledge of Allegiance in public schools, kindergarten through 12th grade.

Here is what happened.

A student in a Palm Beach County public high school sued the State of Florida to declare unconstitutional a statute that generally requires students to stand and recite the Pledge of Allegiance at the start of each school day. The statute allows students to be excused from reciting the Pledge if their parents request such in writing. The statute also requires all civilians to stand during the Pledge and does not provide an exception for students whose parents excuse them from the stand-and-recite requirement.

The case proceeded on a facial challenge to the law's asserted overbreadth. The student apparently settled with county officials regarding whether he, personally, based on his own level of maturity and other circumstances, could decide to excuse himself from standing for and reciting the pledge. The overbreadth challenge that went forward asserted that the statute was facially unconstitutional for everyone because it impairs, and substantially so, students' free speech rights -- or so the student argued.

The student won in part and lost in part.

Regarding the requirement that all civilians stand for the Pledge, the student won. The court held that students have a constitutional right to remain seated and silent during the Pledge and the lack of an appropriate exception doomed this provision. The court also determined that the sentence regarding all civilians standing could be severed from the statute.

Regarding the requirement that all students recite the Pledge unless excused by a parent, the student lost. Focusing on the fact the student brought a facial challenge based on overbreadth, the court held that whatever right students have to choose not to recite the Pledge is overcome by parents' right to raise their children as they see fit and choose for their children whether they should recite the Pledge.

That is a rather fascinating ruling. The court did not weigh the students' free speech interest in not reciting the Pledge against the state's interest in requiring the Pledge to be spoken. Instead, the court weighed the students' free speech interest in not reciting the Pledge against parents' right to choose how to raise their children, finding the latter comes out on top in the broad, nonspecific context of a facial overbreath challenge.

Does this mean that Florida's public students must stand and recite the Pledge even if their parents refuse to sign a paper excusing them from doing so? No. Individual students have individual rights, and whether in a given case the student's maturity and other circumstances give rise to a free speech right that overcomes the parental interest in child-rearing must be taken up by individuals in their own cases, or perhaps by groups of individuals more narrowly defined than all public school students. The court simply ruled that the stand-and-recite requirement is not, in its overall application to students in kindergarten through 12th grade, a violation of students' free speech rights.

You can find the law at issue here. See subsection (1).

...posted by ⊥ 5:46 PM ⊥ #

Tuesday, July 22, 2008

Questions, questions: Nursing Homes & Amendment 7

Does Article X, section 25 of the Florida Constitution, which provides for a right to review health care providers' adverse incident records, apply to nursing homes? In this decision, the Fourth District said no but certified the following to the Florida Supreme Court as a question of great public importance:

WHETHER "NURSING HOMES" OR "SKILLED NURSING FACILITIES" FALL WITHIN THE DEFINITION OF "HEALTH CARE FACILITY" OR "HEALTH CARE PROVIDER" AS CONTEMPLATED BY AMENDMENT 7 TO THE FLORIDA CONSTITUTION?

The First District previously addressed the same question and came to the same conclusion.

...posted by ⊥ 8:38 AM ⊥ #

Fourth District: Payment Bonds

Can a subcontractor on a public project state a claim against a payment bond when the materials at issue were neither delivered to the site nor incorporated into the project but were nevertheless "specially fabricated" for the job? In this decision, the Fourth District said yes.

...posted by ⊥ 8:32 AM ⊥ #

Fourth District: Spoliation and Workers' Compensation

Spoliation fans may be interested in this case, where the Fourth District held that a special employer for workers' compensation purposes has a statutory duty to preserve evidence. Breach of that duty can support a spoliation claim.

...posted by ⊥ 8:30 AM ⊥ #

Fourth District: More Arbitration

Can a person who signed an arbitration agreement solely in his capacity as a company's chief executive officer be forced to arbitrate under the agreement when he is sued in his personal capacity? No, said the Fourth District in this case. The court expressly held that while the CEO could enforce the arbitration agreement, arbitration could not be forced upon him.

...posted by ⊥ 8:28 AM ⊥ #

Fourth District: Arbitration

This arbitration decision from the Fourth District demonstrates how a person can be bound to an unexecuted arbitration agreement. The decision also shows how difficult it is to show that the panel called for by an arbitration agreement will be unconscionably constituted. Finally, the decision shows how expansively Florida's courts construe the nonfinal appeal rule with respect to arbitration decisions.

...posted by ⊥ 8:25 AM ⊥ #

First and Fourth Districts: State Sandwich Unconstitutional

In 2006, the legislature repealed Florida Rule of Civil Procedure 3.250, which provided criminal defendants whose only evidence is no more than their own testimony with the first and last closing arguments. The legislature also enacted a statute that provided the state with the first and last closing argument in criminal cases.

Can the legislature do those things?

Yes and no.

Yes, with a two-thirds vote, the legislature can repeal the state supreme court's rules of procedure.

No, the legislature cannot enact wholly procedural court rules. In this decision the First District, and in this decision the Fourth District held that the statute is unconstitutional because it violates the separation of powers and intrudes upon the supreme court's rulemaking authority.

The Fourth District's analysis of what happens next is a bit more intricate than the First District's, but both courts ultimately concluded that the net result of the situation was -- nothing. Ultimately, the proper rule to apply was the common law rule, which also gave the state the so-called sandwich. Also, the state supreme court has now adopted rule 3.381, which calls for the same result in non-capital cases. The defense sandwich is thus history.

...posted by ⊥ 8:25 AM ⊥ #

Fourth District: Arbitration

In this case, the Fourth District held that an employment contract calling for arbitration of "any controversy or claim arising out of or related to this Agreement, or any breach thereof" required the employee to arbitrate his statutory whistle-blower claim. The court rejected the notion that the whistle-blower claim arose out of the employment but not the agreement.

...posted by ⊥ 8:22 AM ⊥ #

Monday, July 21, 2008

JQC Recommends Reprimand For Judge Allen

On Friday, the Judicial Qualifications Commission released its findings, conclusions, and recommendations regarding the ethics charges it previously brought against Judge Allen of the First District.

The JQC found Judge Allen guilty of not maintaining high standards of conduct so as to preserve the integrity and independence of the judiciary, not acting in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and not performing judicial duties without bias or prejudice. The JQC found Judge Allen not guilty of violating judicial canons that require faithfulness to the law and professional competence as well as patience, dignity, and courteousness.

The commission recommended a public reprimand.

You can read the JQC's report and recommendation here.

There is no good resolution to this situation, which has pitted the judges of a district court of appeal against each other. I have no comment and simply pass along a few excerpts to summarize the JQC's resolution:

Critical remarks from the Bar have impact on the judgment of citizens because attorneys are perceived to possess special knowledge of the judicial branch. Florida Bar v. Ray, 797 So. 2d at 560. Critical remarks from the bench are even more elevated. A judge is a consummate insider; his claim that corruption is afoot may well-nigh be considered by the average citizen to be unimpeachable and unassailable. See generally In re Graham, 620 So. 2d 1273, 1274 (Fla. 1993) (allegations of corruption against a colleague pose an even greater threat to public confidence in the fairness and impartiality of the judiciary).

* * *
By all accounts, Judge Allen is an excellent, hard-working judge, with an otherwise unblemished reputation, who has rendered extraordinary service to the State of Florida. (T. 599; 605; 609). There were no cases directly on point for Judge Allen to look for guidance, but he solicited the opinions of others before he published. (T. 92; 209; Ex. 18). Otherwise, a more severe sanction might be warranted. The Hearing Panel has confidence that Judge Allen has learned from this experience, and that nothing like it will ever occur again. Judge Allen has also been able to fulfill the duties of his office without incident, despite these proceedings, and is otherwise presently fit to hold office. Accordingly, the Hearing Panel recommends to the Supreme Court that it administer a public reprimand.

The state supreme court will act on the recommendation, accepting it or not, at a later date.

...posted by ⊥ 9:20 AM ⊥ #

Fourth District: Attorney's Fees, English Style

As this decision from the Fourth District shows, where an agreement provides it is governed by English law, the losing litigant had better be prepared to pay the other side's attorney's fees. Applying English law to a case includes applying the English rule on fees, which requires fee-shifting from the loser to the winner.

...posted by ⊥ 8:38 AM ⊥ #

Fourth District: Voir Dire

This is an unusual decision, if only in the sense that few jury verdicts are reversed on grounds that a juror should have been stricken for cause during jury selection based on bias.

The case involved a slip and fall and the juror at issue admitted to a predisposition toward thinking persons who trip are responsible for being aware of their surroundings and so carry a percentage of fault. Opposing counsel then attempted to rehabilitate the juror by asking if he would decide make decisions based on the evidence presented in court and be fair. The trial court denied a motion to strike for cause.

The case went forward and the jury returned a verdict of no liability against the defendant. The plaintiff then appealed based on the voir dire ruling, and the Fourth District reversed, holding the juror expressed bias and never recanted or receded from that view.

Trial courts have broad discretion to determine whether a prospective juror is in fact biased and should be stricken for cause. That the district court held an abuse of discretion occurred here is somewhat of a surprise, based on similar arguments I have seen brought without success in other cases. If this decision signals that the district courts will be more receptive to voir dire bias arguments on appeal, then that may be a positive step. Consistency in how the district courts react to such arguments is important, not only to the parties in a given case but to the judicial system as a whole.

Perhaps most intriguing about the case is the fact the district court never discussed why it found the error not to be harmless. If the jury found no liability, and assuming the verdict form followed the approach prescribed by the standard jury instructions, then the jury never reached the question of whether the plaintiff shared any percentage of the overall fault in the accident. The decision thus appears to stand for the notion that harmful, reversible error occurs where a juror expresses unrecanted bias on an issue that the jury never reaches.

Very interesting.

...posted by ⊥ 8:31 AM ⊥ #

Fourth District: Rule 1.525, Ambiguous Proposals

This offer of judgment case is notable for two reasons.

First, the Fourth District held a plaintiff's proposal for settlement to an insurance company invalid because in one portion of the proposal the plaintiff said it would resolve all claims and in another portion the plaintiff said the proposal would resolve all raised in the suit. The insurer argued, and the court agreed, that it was unclear whether the proposal included the bad faith claim the plaintiff intended to file against the insurer.

Second, the trial court held the proposal invalid on the additional ground that it did not provide, as a non-monetary term, exactly how the litigation would be concluded, such as through a voluntary dismissal, dismissal for lack of prosecution, release, etc. The district court never reached this ground.

...posted by ⊥ 8:27 AM ⊥ #

Fourth District: Absolute Immunity

The trial court in this case dismissed a defamation and tortious interference complaint against employees of The Florida Bar because their positions as bar employees gave them absolute immunity for statements made during disciplinary proceedings. The Fourth District affirmed.

...posted by ⊥ 8:25 AM ⊥ #

Fourth District: Construction

Construction fans should be very interested in this brief decision from the Fourth District. The court held that chapter 558, which provides a dispute resolution mechanism for construction cases, does not apply where the claimant is both property owner and contractor.

...posted by ⊥ 8:22 AM ⊥ #

Fourth District: Arbitration

Arbitration fans may wish to check out the Fourth District's decision in this case. The court explained the standard for determining when a contract containing an arbitration clause can be found incorporated into another contract.

...posted by ⊥ 8:19 AM ⊥ #

Fourth District: Privileged Witnesses

A court does not abuse its discretion in excluding testimony when cross-examination on material issues raised on direct examination is curtailed because of a witness’s valid claim of privilege. So held the Fourth District in this case, which involved a defendant who claimed error after the trial court excluded the defendant's son. The son had invoked his Fifth Amendment right not to incriminate himself.

...posted by ⊥ 8:17 AM ⊥ #

Thursday, July 17, 2008

Fourth District: Remittitur Reminder

This decision from the Fourth District helps show why Florida's appellate courts may never again have to consider the sufficiency, or insufficiency, of orders granting a remittitur or additur.

Simply put, unless the parties agree to the amount of an additur or remittitur, a new trial on damages is to be ordered.

It follows that, if the parties agree, then there is nothing to appeal; if the parties do not agree, then a new damages trial is held. Either way, there is no appeal regarding the propriety of the amount chosen.

...posted by ⊥ 9:28 AM ⊥ #

Fourth District: Loss of Consortium

Can a loss of consortium claim be proved solely through evidence the married couple fought as a result of the tort against the spouse?

Yes, said the Fourth District in this decision.

...posted by ⊥ 9:25 AM ⊥ #

Fourth District: Relinquishment Practice Pointer

Attention, those filing motions in the Fourth District to relinquish jurisdiction and allow the trial court to resolve a rule 1.540 motion.

This order explains that the court will ordinarily not grant such motions unless the appellate court is furnished with a copy of the rule 1.540 motion.

...posted by ⊥ 9:22 AM ⊥ #

Fourth District: Bailiffs and Jury Questions

If deliberating jurors ask the trial judge a substantive question and the judge directs a bailiff to communicate the answer ex parte, does that constitute reversible error?

Yes, and per se reversible error at that.

But does it constitute fundamental error, if no one objects?

No, said the Fourth District in this case. The court discussed the distinction between per se reversible error and fundamental error.

...posted by ⊥ 9:20 AM ⊥ #

Fourth District: False Light

In Florida, the false light tort is the legal equivalent of a work in progress. The last few years have seen the district courts of appeal release a few false light decisions that, by their rather extraordinary facts, have allowed the tort to take shape.

Here we have a decision that furthers the false light tort's evolution, but it does so through the case's rather unremarkable facts.

The plaintiff was a member of a homeowner's association's board of directors. The defendant sent association members a letter seeking their proxy to vote for a select slate of directors. The letter complained about prior increases in fees and the likelihood of future increases and at least suggested that not all increases were necessary. The letter did not name or otherwise identify the plaintiff.

The trial court dismissed the false light claim. The Fourth District affirmed. The appellate court held that the letter did not place the plaintiff in a false light and was not highly offensive to a reasonable person.

...posted by ⊥ 9:14 AM ⊥ #

Fourth District: Spoliation

The notion that a spoliation claim cannot be brought simultaneously with the underlying action (the one allegedly compromised by the spoliation) applies to a statutory spoliation claim under the workers' compensation statutes, the Fourth District explained in this decision.

The district court also explained that the proper course for a trial court faced with premature spoliation claims is to abate them, not dismiss them.

...posted by ⊥ 9:13 AM ⊥ #

Fourth District: Sovereign Immunity

Does the $100,000 sovereign immunity cap on claims against the state include attorney's fees? Yes, said the Fourth District in this decision.

...posted by ⊥ 9:12 AM ⊥ #

Fourth District: Crime-Fraud Exception

Finding the attorney-client privilege waived under the crime-fraud exception without first conducting an evidentiary hearing was grounds for certiorari relief in this decision from the Fourth District.

...posted by ⊥ 9:08 AM ⊥ #

Fourth District: Insurance Declaratory Judgments

Noninsureds who seek declaratory judgments against insurers without first obtaining a judgment against the insurer's insured may find their claims dismissed, as the Fourth District explained in this case.

...posted by ⊥ 9:06 AM ⊥ #

Monday, July 14, 2008

Fourth District: Wrongful Conduct, and An Advocacy Tip

This decision is notable in two respects.

First, the Fourth District applied the oft-unused and not well developed wrongful conduct rule to hold that the estate of a person who allegedly died from ingesting illegally obtained prescription drugs could not sue a pharmacy that was allegedly negligent in allowing them to be stolen. This holding is quite significant and deserves attention.

On a lighter note, though still an important one, the court's decision included the following note, which highlights the important appellate skill of making appropriate concessions:

Lawyers who are candid with the court, and understand when concessions are necessary in order to maintain any semblance of credibility, are much more effective advocates than those who are unwilling to give an inch. When counsel takes a position that is patently absurd, it can provoke further questions and take an oral argument off on a tangent which can only benefit the opponent.

Making appropriate concessions is a form of art. It is practiced far too infrequently in trial courts, though to some extent understandably so, since concessions sometimes bring significant and unintended consequences in the unpredictable world of trial litigation. On appeal, though, where the universe of outcomes is significantly more limited, concessions are not only powerful but necessary advocacy tools.

...posted by ⊥ 8:58 AM ⊥ #

Questions, questions: Risk-Utility Test

Products liability fans are surely much interested in this decision from the Fourth District. Addressing a negligence claim against a cigarette manufacturer, the court reached some significant holdings.

The court held that there can be no tort claim against a cigarette manufacturer for continuing to manufacture cigarettes after learning of the dangers they present. Any such claim is preempted by federal law.

The court held that cigarettes are not subject to the risk-utility test used by the Restatement (Third) of Torts to identify defective products. The court based this holding, too, on preemption.

Next, while the court appeared to accept that a plaintiff cannot satisfy the risk-utility test in the absence of evidence of a safer product design, the court held that only the consumer expectations test was at issue for these purposes and, under that test, evidence of a safer design is not required for a plaintiff to establish a product's defective nature.

I note a certain strangeness in the discussion surrounding the risk-utility test, not only in the court's lead opinion but in the two concurrences also filed in the case. Two years ago, the Fourth District took the position that the risk-utility test is not the law of Florida, despite its supreme court-approved presence in the standard jury instruction on defective products, the supreme court's embrace of risk-utility factors in the 1983 decision Radiation Technology, Inc. v. Ware Construction Co., and the use of the test in a number of published Florida appellate opinions. The Fourth District is now bound by that ruling, making cases like the present one -- where the risk-utility test is a feature of the case -- awkward to discuss.

In her concurrence in the present case, Judge Warner stated she would certify to the state supreme court the question of whether Florida should adopt the risk-utility test.

That view apparently carried some weight, as the court later entered this order certifying the following to the Florida Supreme Court as questions of great public importance:

1. Is a plaintiff required to establish an alternative safer design in order to prevail on a design defect claim for an inherently dangerous product?

2. Should Florida adopt the Restatement (Third) of Torts for design defect cases?

Hopefully the court's certification will help clear up what has become a confusing area in Florida law.

...posted by ⊥ 8:50 AM ⊥ #

Fourth District: Initiatives, Mandamus, and Laches

This decision by the en banc Fourth District is rather interesting. When a group of West Palm Beach citizens disagreed with the city's efforts to relocate some key public buildings, they followed the initiative procedure to propose ordinances to block the relocation. The city refused to place their proposed measures on the ballot.

The citizens then pursued a writ of mandamus from the circuit court. If granted, the writ would have required the city to place the proposals on the ballot. The court denied that petition on grounds of laches, based on the delay involved in presenting the initiatives relative to the entire project.

On appeal, a much-divided en banc district court reversed that decision, holding laches relating to the effects of the initiatives to be an insufficient basis to keep them off the ballot. The court did not rule whether, if passed, the initiatives would be effective. The court simply ruled that laches had no place in the analysis of whether the initiatives should be on the ballot.

...posted by ⊥ 8:48 AM ⊥ #

Fourth District: Ineffective Assistance

In the post-conviction context, whether a trial strategy was reasonable is a matter of law, not a question of fact, as the Fourth District explained in this decision.

...posted by ⊥ 8:42 AM ⊥ #

Fourth District: Class Certification

Class action fans may wish to check out this decision from the Fourth District, which discussed the procedural requirements applicable to certification orders.

...posted by ⊥ 8:38 AM ⊥ #

Friday, July 11, 2008

Judge Scriven

Congratulations are in order for U.S. Magistrate Judge Mary Scriven, whom the President nominated yesterday for an Article III district court judgeship for the Middle District of Florida.

You can read more about the nomination in this story from the St. Pete Times.

Judge Scriven left Carlton Fields for her current magistrate position the same year I first joined the firm -- 1997. Folks in CF's Tampa office still speak kindly of her time with the firm.

...posted by ⊥ 11:43 AM ⊥ #

Fourth District: Insurance Settlements

Insurance fans will be interested in this decision, where a divided Fourth District held that the good faith/best interests standard for settlements contained in section 627.4147(1) does not require insurers to consider an insured's best interests with respect to "collateral" consequences of settlement.

The insured in the case sued his insurer after it quickly settled a claim against him. The insured asserted that the claim was completely defensible and that the settlement caused him damages, including the insurer's nonrenewal of his policy. The trial court dismissed the claim on grounds neither section 627.4147 nor Florida's law regarding insurer's presuit investigations afforded the insured a cause of action. The appellate court affirmed the dismissal.

...posted by ⊥ 8:58 AM ⊥ #

Fourth District: Future Pain and Suffering

For an example of where a jury inadequately awarded no future pain and suffering damages although liability and future pain and suffering were undisputed, check out this decision from the Fourth District. After an interesting discussion of the law in this area, the court directed that a new trial be held on the issue of future non-economic damages.

...posted by ⊥ 8:57 AM ⊥ #

Fourth District: Cassisi Inference

Products liability fans should be very interested in this decision from the Fourth District. Over a dissent, the court rejected the application of a Cassisi inference where a plaintiff wished to use expert testimony to establish not only that a ladder from which the plaintiff fell was defective but that the fall was caused by a malfunction.

Judge Farmer's dissenting opinion opened with a fictional story apparently meant to capture what he viewed as the Lewis Carroll-like aspects of the case and the majority's decision.

Notably, the plaintiff sought review in the state supreme court, which in this order recently decided 4-3 not to review the decision.

...posted by ⊥ 8:56 AM ⊥ #

Fourth District: Notice of Trial

Even a defaulted party is entitled to notice that an action is to proceed to trial. Is the notice requirement satisfied if a trial court order setting a case for trial is not sent to a defaulted defendant but the plaintiff then forwards the defendant a copy of the order?

Yes, said a divided Fourth District in this decision.

...posted by ⊥ 8:54 AM ⊥ #

Fourth District: Fiduciary Duties

This decision from the Fourth District followed a line of Florida decisions and held that the delayed discovery doctrine did not apply to a breach of fiduciary duty claim.

...posted by ⊥ 8:53 AM ⊥ #

Thursday, July 10, 2008

Fourth District: Paternity

This decision, which reflects a change on rehearing from the Fourth District's earlier decision in the same case, exemplifies the difficulties faced by the judiciary when it tries to apply to modern persons, who are capable of arming themselves with the scientific certainty of DNA testing, a common law system rooted in rigid rules to compensate for a lack of such science.

The case involved a plaintiff who attempted to establish himself as the father of a child born to a woman married to another man. The woman allegedly had an affair with the plaintiff. When the plaintiff filed his complaint to establish paternity, the married pair were engaged in dissolution proceedings. They reconciled, however, and dismissed the dissolution action. They then moved to dismiss the paternity action. The trial court denied the motion to dismiss, and the married couple sought a writ of certiorari to block the paternity case from going forward.

On rehearing, the Fourth District held that the married couple's marriage was intact at the time the trial court heard the motion to dismiss. Applying longstanding common law that refuses to allow a third person to challenge paternity of a married couple's child where the husband has accepted the child as his own, the court granted the petition.

...posted by ⊥ 9:30 AM ⊥ #

Fourth District: School Duties

The Fourth District's decision in this case includes a very interesting discussion explaining why a school board did not have a legal duty to a student to prevent her from skipping classes during the day, leaving the campus, and ultimately getting in a fatal car wreck.

...posted by ⊥ 9:28 AM ⊥ #

Fourth District: Retroactivity

Is the twenty-one day safe harbor provision added to section 57.105 in 2002 retroactive? No, said the Fourth District in this case, agreeing with a similar decision from another district. The court's decision included a discussion of how statutes that contain procedural aspects may have substantive components, requiring such statutes to be given only prospective effect absent clear legislative direction to the contrary.

...posted by ⊥ 9:26 AM ⊥ #

Fourth District: Trusts, Conflict of Interest

Trusts fans may be interested in this decision, in which the Fourth District affirmed an order finding a trustee had a conflict of interest that should have precluded it from paying its attorneys from trust assets without court approval. The conflict arose based on interrogatory responses in litigation, and the principal issue was whether such responses should have placed the trustee on notice of a conflict.

...posted by ⊥ 9:24 AM ⊥ #

Fourth District: FDUTPA Attorney's Fees

This decision from the Fourth District involved an in-depth look at how attorney's fees are shifted following a successful claim under the Florida Deceptive and Unfair Trade Practices Act. Most notable may be the court's discussion of how out-of-town counsel are generally not to be reimbursed for travel expenses that local counsel would not incur.

...posted by ⊥ 9:22 AM ⊥ #

Fourth District: Sham v. Mistake

In this case, the Fourth District explored the difference between a sham pleading and a mistaken pleading. Finding the complaint at issue to be of the latter sort, the court reversed a lower court's order striking the appellant's complaint.

...posted by ⊥ 9:20 AM ⊥ #

Fourth District: Tax Deed Sales

Those interested in tax deed sales, and the efforts the government must make to notify property owners of such sales, may wish to check out the Fourth District's decision in this case. The court held that a county's notice efforts were constitutionally insufficient.

UPDATE: On rehearing, the court withdrew the decision linked above and replaced it with this one. The new opinion simply reverses a grant of summary judgment on the notice issue.

...posted by ⊥ 9:19 AM ⊥ #

Monday, July 07, 2008

Supreme Court Review, Tougher

This past Thursday, the Florida Supreme Court released three orders discharging jurisdiction in cases where the court had previously accepted jurisdiction.

In one of those orders -- this one, which involved a decision that construed a provision of the federal constitution -- the court discharged jurisdiction as improvidently granted.

In the other two orders -- this one involving certified conflict and this one involving certified questions of great public importance -- the court exercised its discretion not to review the decisions below.

Notably, Justice Cantero did not participate in any of these decisions.

Given Justice Cantero's pending resignation in September, with three other justices leaving soon thereafter, it might appear that the court is taking a careful look at the discretionary portion of its case load and trimming accordingly.

...posted by ⊥ 9:07 AM ⊥ #

Catching Up

Catching up is going to be a long process, but I will get there. Soon I will be up to date with our friends at the Fourth District.

...posted by ⊥ 9:04 AM ⊥ #

Fourth District: Racing

In this decision, the Fourth District held that Florida's law against racing on highways is unconstitutionally vague because it defines "racing" in a way that encompasses a multitude of routinely employed driving activities. However, because the law does not impair a fundamental right, the court declined to find the law overbroad.

...posted by ⊥ 8:55 AM ⊥ #

Fourth District: Arbitration

Where an arbitration agreement required that the arbitration filing fee be advanced by the party seeking relief, the Fourth District held it was reversible error to require the defendant to pay the fee as a condition of granting the defendant's motion to compel arbitration. You can read the court's decision here.

...posted by ⊥ 8:52 AM ⊥ #

Fourth District: Vexatious Litigants

This decision from the Fourth District upheld the constitutionality of portions of Florida's Vexatious Litigant Law. The case involved an inmate at a state prison who sued the prison's physician regarding a prescription. When the plaintiff failed to furnish $600 in security for the case, his claim was dismissed.

The plaintiff challenged the Vexatious Litigant Law under Florida's constitutional provision ensuring access to courts. The district court found the law to be narrowly tailored to serve the compelling state interest of preventing vexatious litigation from interfering with the business of the court system. The court equated that test with the "overwhelming public necessity" and "no alternative method" prong of the test famously set forth by the state's high court in Kluger v. White.

In a footnote, the court noted that it was not reaching the constitutionality of the law's provision authorizing the dismissal of actions with prejudice.

...posted by ⊥ 8:49 AM ⊥ #

Thursday, July 03, 2008

Gambling Loss

Big news today from the Florida Supreme Court, which released this decision holding that the Governor lacked authority to enter a November 2007 compact with the Seminole Indian Tribe of Florida.

The compact expanded the forms of gambling permitted on tribal lands, including blackjack card tables.

Expect a lot of reaction very soon.

...posted by ⊥ 12:10 PM ⊥ #

Tuesday, July 01, 2008

New Law Day

July 1 is one of two dates when new Florida laws traditionally take effect. (The other is October 1.)

Today's Sun-Sentinel has this Associated Press story on Florida's new laws.

The Tallahassee Democrat has this story on the Ethics in Education Act that takes effect today and which may require education employees to be fired based on new background checks.

Today's Palm Beach Post has this short piece on some newly effective laws.

Today's St. Pete Times has this story on new increases in court costs and fees.

The Times also ran this story on a new law that makes feeding pelicans a second-degree misdemeanor.

...posted by ⊥ 9:01 AM ⊥ #

Monday, June 30, 2008

Chief Justice Quince

The news page at the Florida State Courts site recounts this past Friday's ceremony for Florida's new Chief Justice: Peggy Quince. Congratulations to her not only as an individual but as the first African-American wo