Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

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.


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, 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 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.

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.

Florida Murder Convictions Overturned Because of Illegally Obtained Confession

Posted: April 21, 2016 Filed under: Case Law

Today, in State v. McAdams, No. 14-826 (Fla. April 21, 2016), the Supreme Court of Florida held:

[W]hen a person is questioned in a location that is not open to the public, and an attorney retained on his or her behalf appears at the location, the Due Process Clause of the Florida Constitution requires that law enforcement notify the person with regard to the presence and purpose of the attorney, regardless of whether he or she is in custody.

Two justices concurred in part and dissented in part because the majority applied the rule to voluntary interactions with law enforcement officers. The concurring justices would limit the rule to confessions obtained only after the suspect is in custody.

According to the opinion, “compelling evidence of McAdams’s guilt was presented to the jury through his confession, in which he admitted that after being berated by his estranged wife and her new boyfriend at the Palomino Lake Drive residence, he became outraged, retrieved a gun from outside the residence, fatally shot them, buried the bodies in a rural area, and disposed of the weapon.” Because the unlawfully obtained confession contributed to the convictions, the court overturned the convictions.

Florida Civil Rights Act Bans Pregnancy Discrimination

Posted: April 17, 2014 Filed under: Case Law, Employment Law

The notion that laws banning sex discrimination also ban pregnancy discrimination seems obvious to many. Others, however, note that gender and pregnancy are not the same thing and, therefore, that language prohibiting gender discrimination prohibits just that and not pregnancy discrimination. After all, The United States Supreme Court held in 1976 that discrimination on the basis of pregnancy was not sex discrimination. General Electric Company v. Gilbert, 429 U.S. 125 (1976). (Note: Following the Gilbert decision, Congress amended federal anti-discrimination laws to specifically make pregnancy discrimination illegal.)

Today, in Delva v. The Continental Group, Inc., No. SC12-2315 (Fla. April 17, 2014), the Florida Supreme Court declared that gender discrimination includes pregnancy discrimination under Florida state law because pregnancy “is a natural condition and primary characteristic unique to the female sex.”

In reaching its 6-1 decision, the Florida court looked to prior decisions by the supreme courts of Massachusetts and Minnesota. The Massachusetts court determined in 1978 that a “classification which relies on pregnancy as the determinative criterion is a distinction based on sex” and is, therefore, illegal. Similarly, the Minnesota court concluded a year later that “[a] woman should be no more burdened than a man if she chooses to combine the roles of parent and employee, simply because the woman must bear the child.”

Before Delva, state and federal courts in Florida were divided over the question of whether the ban against gender discrimination also banned pregnancy discrimination. In overturning a decision of the Third District Court of Appeal holding that gender did not include pregnancy, the Supreme Court of Florida finally settled an issue that had been festering for years:  “[A] liberal construction of the [Florida Civil Rights Act] to effectuate its purposes, as specifically provided for in the statute itself, makes clear that discrimination based on pregnancy, a natural condition unique to females and a primary characteristic of the female sex, is subsumed within the prohibition in the FCRA against sex discrimination in employment practices.”

Florida Supreme Court Punts to Legislature

Posted: March 6, 2014 Filed under: Case Law

Today, the Supreme Court of Florida unanimously ruled that applicants seeking admission to The Florida Bar must “demonstrate that they are legally present in the United States” and that unauthorized immigrants are ineligible for admission. The court grounded its ruling in federal law.

In a concurring opinion, two justices emphasized that “the Florida Legislature is in the unique position to act on this integral policy question and remedy the inequities that the unfortunate decision of this Court will bring to bear.” Justice Jorge Labarga, himself an immigrant, compared his family’s escape from a communist regime to the bar applicant’s escape from poverty, then wrote that he could not justify the distinctions between the two families insofar as admission to The Florida Bar is concerned. Still, Justice Labarga reluctantly concurred with the other justices because existing federal and state law required him to do so.

The case is Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to The Florida Bar.

New Lawyer Advertising Rules Adopted

Posted: January 31, 2013 Filed under: Case Law, Law-Related News

Today, the Supreme Court of Florida released the long-anticipated decision on The Florida Bar’s proposed advertising rules. If you have not read the court’s opinion, you should. You’ll find it HERE. Justices Pariente and Canady dissented separately; they feel the new rules go to far. In a substantial departure from the prior rules, lawyer websites and information provided upon request are now subject to the advertising rules. They are, at least, exempt from the filing and review requirements.

Agree or not, the fact of the matter is that the rules have been adopted. Noncompliance carries the risk of a grievance and disciplinary proceedings.

Overhaul of FRS Deemed Consitutional

Posted: January 17, 2013 Filed under: Case Law, Employment Law, Law-Related News, Legislation

Today, the Supreme Court of Florida overturned a trial court order that had declared a 2011 law overhauling the Florida Retirement System (FRS) unconstitutional. By a margin of 4 to 3, the supreme court ruled that the Florida Legislature had the constitutional authority to pass Chapter 2011-68, Laws of Florida, which “converted the FRS from noncontributory by employees to contributory, required all current FRS members to contribute 3% of their salaries to the retirement system, and eliminated the retirement cost-of-living adjustment for creditable service after the effective date of the act.” According to a footnote, the changes affect “55 state agencies; 396 county agencies; 67 school boards; 28 community colleges; 185 cities, 6 independent hospitals, 243 special districts (these last three categories include the 26 cities, 5 independent hospitals, and 12 independent districts that are closed to new members as of January 1, 1996); and 12 other public employers not specifically designated.”

The changes, which one of the majority justices described as “a 3% pay-cut in addition to years without cost-of-living adjustments,” were described more dimly by a dissenting justice as “an insufferable and unconstitutional ‘bait and switch’ at the expense of public employees who were members of the [FRS] prior to July 1, 2011.”

Decide for yourself which side has the better descriptor by reading the opinion in Scott v. Williams HERE.



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