Tom Appeals Blog

News and Observations About Law and Society

"Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today." --The Federalist, No. 78

Constitution Revision Commission Begins Public Hearings

Posted: March 22, 2017 Filed under: Commentary, Law-Related News, Uncategorized

I cannot overemphasize the significance and power of the Florida Constitution Revision Commission. It can initiate fundamental restructuring of state government and, in the process, deal far-reaching setbacks to the integrity of the judicial branch (court system) and to individual rights. Watch for public hearings in your area, attend, and speak up. You are the best guardian of your personal rights and interests.

The Commission will be meeting in Orange County on the UCF campus March 29th. The official notice of that public hearing and of other hearings scheduled around the state through April 12, 2017, is HERE.

I will post additional updates as I find them on my Facebook page and on Twitter, both @TomAppeals.

Floridians can also follow news of the Florida Constitution Revision Commission’s activities on its OFFICIAL WEBSITE and on THIS page maintained by The Florida Bar.

Conflict Over Stays and Bond Amounts Under Rule 9.310

Posted: March 3, 2017 Filed under: Case Law

Silver Beach Towers Property Owners Association, Inc. v. Silver Beach Investments of Destin, L.C., No. 1D16-4555, 42 Fla. L. Weekly D442c (Fla 1st DCA February 21, 2017) involved a judgment awarding $1,827,372.18 plus pre-judgment interest of $292,497.34. The trial court granted a stay of execution conditioned on the posting of only a $175,000 bond. The holders of the judgment argued that the trial judge erred in setting such a low bond amount because the automatic bond procedure outlined in Florida Rule of Appellate Procedure 9.310(b)(1) was the sole method of obtaining a stay of a money judgment. Rule 9.310(b)(1) would have required the posting of the full amount of the judgment plus twice the statutory rate of interest on judgments.

The First District Court of Appeal rejected the argument, explaining that subdivision (b)(1) is merely an alternative available to parties to want to obtain an automatic stay without following the procedure in subdivision (a), which requires the filing of a motion to stay. The court of appeal said a trial judge lacks discretion to alter the bond amount required by the rule only when a party uses the automatic stay option afforded under subdivision (b)(1). Said another way, the First District held that trial judges have discretion to determine the amount of a bond if a stay is requested by motion under Rule 9.310(a).

The First District’s opinion conflicts with the Third District Court of Appeal’s opinion in Mellon United National Bank v. Cochran, 776 So. 2d 964 (Fla. 3d DCA 2000). Accordingly, the court certified conflict. Stay tuned to see whether the Silver Beach parties seek review by the Florida Supreme Court and, if so, whether the supreme court accepts jurisdiction.


 

Tom Quoted as a “Pro Bono Pro”

Posted: February 25, 2017 Filed under: Commentary, Law-Related News, Uncategorized

The March 2017 of The Florida Bar Journal features several stories about the significant pro bono work lawyers do. Read about Tom’s pro bono contributions in The Pro Bono Pros: And How You Can Become One and Hamilton’s Final Act Leaves a Legacy in Florida Law.

Fourth DCA Addresses Browsewrap Arbitration Agreements

Posted: February 21, 2017 Filed under: Case Law

Web-based sales businesses and the attorneys advising them should be aware of the Florida Fourth District Court of Appeal’s decision in Vitacost.com, Inc. v. McCants, No. 4D16-3384 (Fla. 4th DCA Feb. 15, 2016). Although arbitration agreements are favored and normally enforced, a different analysis applies to agreements formed through internet “browsewrap” agreements. In Vitacost, the court noted the purchaser must have actual knowledge of the terms and conditions of sale, or a hyperlink to the terms and conditions of sale must be conspicuous enough to put a reasonably prudent person on inquiry notice. “Uniformly, courts have declined to enforce “browsewrap” agreements when the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them.”

Florida Supreme Court Rejects Daubert Standard

Posted: February 16, 2017 Filed under: Case Law

A divided Florida Supreme Court declined to adopt the Legislature’s Daubert Amendment concerning opinions of expert witnesses. Justices Canady and Polston would have adopted the Daubert standard, as have the federal courts and most other states. All of the justices agreed, however, to reject a legislative amendment that would require standard-of-care expert witnesses in medical malpractice cases to specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered. The court also unanimously agreed not to adopt a legislative change to the hearsay exception relating to reports of abuse concerning elderly and disabled adults. The court’s opinion is available HERE.

Florida Supreme Court Increases Discipline

Posted: February 16, 2017 Filed under: Disciplinary Cases

Although the justices of the Supreme Court of Florida often disagree, their approach to disciplinary cases is more uniform. In The Florida Bar v. Wynn, the court unanimously rejected a referee’s recommendation of a ninety day suspension and instead imposed a one year suspension followed by two years of rehabilitative probation. The sanction is significant not only because the suspension is nine months longer but also because the process of returning to practice is more difficult for suspensions of more than ninety days. The fact the lawyer’s conduct involved $500 earmarked as trust funds played a key part in the court’s decision:

Respondent converted client funds for his own use and repaid the funds at a later time. In addition . . . he attempted to condition the repayment upon the client’s agreement not to complain to the Bar about his misconduct. Based on the existing case law, we conclude that the Bar is correct that a one-year suspension, followed by two years’ probation with the conditions recommended by the referee, is warranted. As we have noted many times, misuse or misappropriation of client funds is one of the most serious offenses a lawyer can commit, and disbarment is presumed to be the appropriate punishment.

Florida Third DCA Upholds PIP Statute as Applied to Chiropractors

Posted: February 16, 2017 Filed under: Case Law

THIS Facebook page, discusses and links the Third District Court of Appeal’s decision yesterday upholding the constitutionality of Florida’s 2012 PIP Act as it applies to chiropractors. The court not only upheld the exclusion of chiropractors from the list of professionals who can make an Emergency Medical Condition diagnosis but also limited benefits to $2,500 where the insured has no diagnosis concerning the presence or absence of an emergency medical condition.

I’m Back!

Posted: February 3, 2017 Filed under: Commentary, Law-Related News

My firm’s social media activities went dark during the second half of 2016 as I spent most of that time engaged in the political process. Suffice it to say the experiences and new friendships formed during that time were rewarding and invigorating.

I am now back in the saddle. Keep an eye out for the upcoming launch of my firm’s updated website. I make a point of staying abreast of developments in the law and developments affecting the practice of law and will be sharing items of interest here and on Facebook and Twitter.

From the earliest days of my career I have believed clients deserve value on top of the best representation we lawyers have to offer. Now, clients expect value. An article I read last week referenced a recent survey of more than 70,000 consumers. The survey yielded a big surprise: customer satisfaction is a weak predictor of long-term loyalty. The take away was that lawyers must provide quality representation in ways that make the client’s experience effortless. That’s no small order, especially in litigation matters. But–ready or not–that is the new reality.

Another recent study involving more than 800 law firms and corporations revealed that more than half of the firms and sixty percent of companies already use “alternative legal service providers” to lower fees and costs and to access special skills. The message again is that lawyers must provide value, even if that means bringing in an outsider.

Whether you are a potential client looking for experience and value or a lawyer looking to create value by bringing in specialized knowledge, let’s talk. I’m here to help.

Florida Supreme Court Disciplines 24 Lawyers

Posted: May 3, 2016 Filed under: Uncategorized

According to THIS press release, the Supreme Court of Florida recently disciplined 24 lawyers — “disbarring four, revoking the licenses of four, suspending nine and publicly reprimanding seven. Five attorneys were also placed on probation.”

Florida Supreme Court overturns mandatory attorney’s fee schedule for workers’ compensation cases

Posted: April 28, 2016 Filed under: Case Law, Law-Related News

By a vote of 5 to 2, the Supreme Court of Florida today declared the  mandatory fee schedule in section 440.34, Florida Statutes, unconstitutional in Castellanos v. Next Door Company

This case asks us to evaluate the constitutionality of the mandatory fee schedule in section 440.34, Florida Statutes (2009), which eliminates the requirement of a reasonable attorney’s fee to the successful claimant. Considering that the right of a claimant to obtain a reasonable attorney’s fee has been a critical feature of the workers’ compensation law, we conclude that the mandatory fee schedule in section 440.34, which creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and United States Constitutions as a violation of due process.

Justices Canady and Polston dissented. Justice Canady began by stating “the majority fail[ed] to directly address the actual policy of the statute,” which he described as a “determination by the Legislature that there should be a reasonable relationship between the value of the benefits obtained in litigating a workers’ compensation claim and the amount of attorney’s fees the employer or carrier is required to pay to the claimant.” Justice Polston believes the majority opinion “has rewritten the statute to avoid the standard governing facial challenges.”

The opinion is available HERE.

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