Blog Dormant - November 4, 2016

As of November 4, 2016, this blog is dormant. See http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html

Foreclosure Sale Cannot Go Forward When Timely Filed Motion for Rehearing Is Pending

In 944 CWELT-2007 LLC v. Bank of America (3D15-2091), the Third District granted a petition for certiorari that sought to quash an order denying a motion to cancel a foreclosure sale. On the date of the scheduled foreclosure sale, a motion for rehearing directed to the final judgment remained pending. The court stated that "it is well settled that a foreclosure sale cannot be held while a timely motion for rehearing is pending because enforcement of a final judgment is suspended by the filing of the rehearing motion."

One other procedural issue was included in the opinion. The court stated that it "consider[ed] the Bank’s decision not to file a response to the petition as the equivalent of a confession of error."

Fourth District: Clerk Has Judicial Immunity In Suit To Recover Payment for Fines in Unauthorized School Zone

In Zoba v. Coral Springs (4D14-1182), the "boundaries of judicial immunity are challenged." The Fourth District's majority opinion, written by Judge May and joined by Judge Gillen, explained that the plaintiff/appellant argued "that the clerk of court (“clerk”) is not entitled to judicial immunity for collecting, apportioning, distributing, and retaining monies, in conjunction with alleged illegal traffic fines." 

The facts are simple: "The plaintiff received a $600 traffic ticket for speeding in the school zone. He paid his fine in full because failure to comply would result in the suspension of his driver’s license." Later, "Plaintiff’s counsel received a ticket for the same violation on a different date. He fought the ticket arguing that the school zone was illegal because it was established in violation of county ordinance 23-6(d). He was acquitted." The plaintiff sought a return of the money collected by the clerk for fines issued and paid in what was later determined to be an illegal school zone. 

The question in the case was whether the clerk of court was entitled to judicial immunity for collecting the fines before the school zone was found to be illegal. 

The Fourth District explained judicial immunity as follows:

"[J]udicial immunity ‘insures that judges are immune from liability for damages for acts committed within their judicial jurisdiction [and] is essential to the preservation of an independent judiciary.’” Fong v.Forman, 105 So. 3d 650, 652 (Fla. 4th DCA 2013) (second alteration in original) (quoting Berry v. State, 400 So. 2d 80, 82–83 (Fla. 4th DCA 1981)). “This doctrine has been extended to quasi-judicial officials, such as a clerk of court, performing judicial acts.” Id. (citations omitted). “The reason for extending immunity to quasi-judicial officers is because a strict guarantee of immunity is necessary to preserve the[ir] effectiveness and impartiality.” Fuller v. Truncale, 50 So. 3d 25, 27–28 (Fla. 1st DCA 2010) (alteration in original) (citation omitted) (internal quotation marks omitted).

Further, the court explained that "[t]wo prerequisites must be met for judicial immunity to apply: '(1) the ruling in question [must be] a ‘judicial act;’ and (2) there [must be] jurisdiction to issue the ruling.' Fuller, 50 So. 3d at 28 (citations omitted). 'When these two prongs can be shown, the judge or quasi-judicial official may claim judicial immunity, even if the ruling in question was unwise, reckless, or malicious.” Id. (citation omitted)."

After analyzing the statutory authorization for the fines and the collection by the clerk, the court stated that:

These statutes and rules read together support the clerk’s argument that his collection, apportionment, and disbursement of traffic fines is part and parcel of the overall judicial process. Prior to the fine collection, the person who has received the noncriminal traffic infraction may appear before a court, or may waive that right and simply pay the ticket or enter into a payment plan. Either way, the person participates in the adjudicatory process or waives it. The clerk’s act of collection, apportionment, and disbursement is part of that judicial process—it is a judicial act entitling the clerk to immunity. And no one disputes the jurisdiction of the court and the clerk to perform their respective statutory duties.

***

Because the clerk’s collection, apportionment, and distribution of the fines are both statutorily and judicially ordered, they fall within the protection afforded by judicial immunity. 

Having resolved the issue of judicial immunity, the court addressed "the elephant in the room," which was whether the clerk could be required to refund the money. The court stated that "Here, if the school zone is found to be illegal, then a traffic fine for an infraction committed in the school zone is unconstitutional, but the administrative costs the clerk earned by statutorily collecting the fine are not. The clerk earned the costs for performing his statutorily and judicially directed job. Judicial immunity bars the clerk from having to defend against the plaintiff’s claim and incur attorney’s fees. We therefore affirm the dismissal of the clerk."

The majority opinion concluded by stating:

In the complaint, the plaintiff alleged an unjust enrichment claim against the clerk seeking to recoup all monies paid and retained. Today, we hold the clerk immune from the underlying suit and defense of the suit, and affirm the trial court’s decision on immunity. What has yet to be litigated is whether the plaintiff can recoup monies paid to the clerk should he succeed in obtaining a favorable final judgment. There are several hurdles the plaintiff must first overcome: (1) proving the school zone was illegally created; (2) defending the voluntary payment waiver defense; and (3) whether the clerk must refund monies beyond the administrative fees authorized by statute. Wisely, the trial court foresaw the issue, but the case was not yet in the procedural posture for the trial court to rule on it. See, e.g., State v. Barber, 301 So. 2d 7, 9– 10 (Fla. 1974). We save that issue for another day.

Judge Warner wrote a dissenting opinion that began: "Although I agree that the clerk of court can assert judicial immunity for the acts of collecting and distributing the traffic fines, including the administrative fee, I cannot agree that there is any judicial immunity for the retention of the portion of the fine which the clerk is allowed to keep in a fine and forfeiture fund pursuant to statute. That is directed by statute, not judicial discretion. See §§ 28.246(3); 318.21, Fla. Stat. (2010). In fact, pursuant to section 28.246(3), as quoted by the majority, such funds are disbursed “in accordance with authorizations and procedures as established by general law,” not judicial authority. § 28.246(3), Fla. Stat. (emphasis added). The ultimate action is not judicial, but statutory. The clerk was not acting as an arm of the court in retaining the funds; he was retaining a portion of the funds at the legislative directive to help fund the clerk’s office, the funding of which is a legislatively controlled action."

Fourth District: New Notice to Attorneys/Parties & New Administrative Order re: Agreed Extensions of Time

Last week the Fourth District issued a new Administrative Order regarding agreed extensions of time and an updated Notice to Attorneys and Parties. 

The Administrative Order regarding agreed extensions of time, Administrative Order 2016-01, can be downloaded HERE. The Fourth District's updated Notice to Attorneys and Parties can be downloaded HERE. 

The First District does not have an agreed extension procedure but the Second District, Third District, Fourth District (see above), and Fifth District do. The Second District's administrative order can be downloaded HERE (June 3, 2013); the Third District's administrative order can be downloaded HERE (amended June 30, 2015); and the Fifth District's administrative order can be downloaded HERE (March 8, 2013). 

Court Where Lis Pendens Filed Obtains Exclusive Jurisdiction Over All Liens Until Judgment

In Jallali v. Knightsbridge Village Homeowners Association, Inc. (4D15-2036), the Fourth District again held that the court where a mortgagee files a lis pendens obtains exclusive jurisdiction over all liens on the property until final judgment. Therefore, the judgment entered in a case filed after the original lis pendens must be vacated.

The court stated:

In the present case, when the mortgagee filed its foreclosure action and recorded its notice of lis pendens in May 2007, the association had not yet recorded a notice of lis pendens with regard to its 2011 lien and 2012 foreclosure action....... 

Accordingly, based on section 48.23, Florida Statutes (2015), Quadomain, and the cases cited therein, we conclude that the final foreclosure judgment which the association obtained in the 2012 case was void because the trial court lacked jurisdiction at that time. Exclusive jurisdiction to foreclose on Jallali’s property was in the circuit court conducting the mortgagee’s foreclosure action in the 2007 case. Accordingly, we reverse the order denying Jallali’s motion to vacate final judgment of foreclosure.

Failure To Make Payment In Florida Does Not (Without More) Allow Court to Exercise Personal Jurisdiction

In Cornerstone Investment Funding v. Painted Post Group (4D15-1907), the Fourth District reviewed a trial court's order denying a motion to dismiss for lack of personal jurisdiction. The procedural history is somewhat unique but the holding is not. After conducting an evidentiary hearing, the trial judge "concluded that Post Group had established both jurisdictional facts and minimum contacts between Cornerstone and Florida sufficient to assert personal jurisdiction over Cornerstone."

The Fourth District noted that to satisfy the requirements of personal jurisdiction, you must satisfy a two-pronged test. Specifically, personal jurisdiction may be exercised only when:

(1) the complaint alleges facts that would subject the defendant to Florida’s “long- arm” statute, and (2) the defendant has sufficient “minimum contacts” to meet traditional notions of fair play and substantial justice such that the defendant could ‘“reasonably anticipate being haled into court’” due to its actions. Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 501 (Fla. 1989) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)); Henderson v. Elias, 56 So. 3d 86 (Fla. 4th DCA 2011). 

In this case, the plaintiff satisfied the first prong because "failure to pay on a contract requiring payment in Florida has been found sufficient to satisfy Florida’s long-arm statute conferring jurisdiction over breach of contract actions. Smith Architectural Grp., Inc. v. Dehaan, 867 So. 2d 434, 436 (Fla. 4th DCA 2004)."

However, the plaintiff failed to satisfy the second prong. The court stated:

The mere fact, however, that Cornerstone allegedly breached a contract by failing to make payments on the contract in Florida would not constitute sufficient minimum contacts with this state to satisfy due process. Taskey v. Burtis, 785 So. 2d 557, 559 (Fla. 4th DCA 2001) (“Factors that go into determining whether sufficient minimum contacts exist include the foreseeability that the defendant’s conduct will result in suit in the forum state and the defendant’s purposeful availment of the forum’s privileges and protections.”); Labry v. Whitney Nat’l Bank, 8 So. 3d 1239, 1241 (Fla. 1st DCA 2009); Ganiko v. Ganiko, 826 So. 2d 391, 394- 95 (Fla. 1st DCA 2002). As neither Post Group’s amended complaint nor Goldin’s hearing testimony showed that any act beyond repayment of the promissory note was required to be performed in Florida, Cornerstone does not have sufficient minimum contacts with this state to support the assertion of personal jurisdiction over it. 

Petition For Certiorari Denied Due to District Conflict

In The First Liberty Insurance Corp. v. O’Neill (4D14–2895), the Fourth District denied a petition for certiorari because the Fourth District had not decided the issue at the time of the trial court’s decision.

In this case, when the trial court entered the order the First District and the Fifth District had released conflicting decisions on the same issue. However, “at the time of the circuit court’s decisions, we had not addressed the issue of whether an insured, after obtaining a favorable result on its benefits claim, may amend the complaint to add a first-party bad faith claim instead of filing a new action on the bad faith claim.”

Therefore, because there was no clearly established law, the petition was denied. The court stated:

Given the lack of binding authority from this court on the underlying issue, and given the split of authority between our sister courts on the underlying issue, we cannot say that the circuit court’s apparent decision to follow the First District’s authority was a departure from the essential requirements of the law at the time of its decision. Thus, because of that procedural posture, we are compelled to deny the petition for writ of certiorari and not decide the underlying issue until a final appealable judgment is entered.

The First Amendment Protections Afforded To A "Tattoo Establishment"

Is a city allowed to limit the number of tattoo establishments in a certain area? In Buehrle v. City of Key West (No. 14–15354), the Eleventh Circuit agreed with the district court that “tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction.”

The opinion, written by Judge Jill Pryor, includes a discussion about the protection to be afforded tattoos under the First Amendment and rejects an argument by the City that relied on “a number of district and state court decisions drawing a distinction between the process of creating a tattoo and the tattoo itself.” The court stated that “consistent with the Supreme Court’s teaching, the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place.” Therefore, the district court’s holding that tattoos are protected speech was affirmed.

However, the court reversed the district court’s holding that the regulation was constitutional. Citing the Supreme Court, the Eleventh Circuit stated that “a municipality may regulate protected artistic expression only if the regulation (1) is justified without reference to the content of the regulated speech, (2) is narrowly tailored to serve a significant governmental interest, and (3) leaves open ample alternative channels for communication of the information.” The City is required to satisfy this test, and present evidence that does so.

In trying to meet that burden, Jimmy Buffet was referenced twice in the record to support the ordinance. The court stated:

Jimmy Buffett’s song “Margaritaville” was referenced twice in the record, once by Mr. Craig in his deposition and once by the City’s attorney in oral argument before the district court, to support the claim that inebriated tourists are likely to get and then regret tattoos if more tattoo establishments operate in the historic district. But the singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.” Jimmy Buffett, “Margaritaville,” on Songs You Know by Heart (Geffen Records 1985).

Clearly, the reference to Jimmy Buffett did not sway the Eleventh Circuit. In this case, the court stated that it did not doubt the legitimate government interest expressed by the city, but stated that the city had failed to meet its burden to show that the regulation would serve that interest.

Motion for Attorneys Fees in Original Proceeding Must Be Filed Before Disposition

In Geico General Insurance Company v. Moultrop (4D15-2772, Nov. 12, 2015), the Fourth District wrote an opinion on a motion for attorneys fees filed after a petition for writ of certiorari was denied. The court stated:

Rule 9.400(b)(2) provides that “in original proceedings” a motion for attorney’s fees “shall be served not later than . . . the time for service of the petitioner’s reply to the response to the petition.” Here, the court denied the petition without requiring a response to the petition or, obviously, a reply to a response. Having been first filed after the petition had been denied, the motion for appellate attorney’s fees is denied as untimely. 

Sanction Over Not Removing Prior Counsel From E-Service List Reversed

In Houston v. McKnought-Smith (4D14-4927), the Fourth District reversed a trial court's order sanctioning counsel and requiring the "former wife’s attorney to pay attorney’s fees to the former husband’s previous attorney."

The court "the previous attorney claimed that he had to file a motion requesting that the wife’s attorney be ordered not to serve him, and requesting attorney’s fees. In granting the motion and ordering the payment of fees at a non-evidentiary hearing, the court failed to make the necessary finding that the wife’s attorney acted in bad faith in serving the husband’s previous attorney." Therefore, the order was reversed in order to allow for an evidentiary hearing. 

There were also two footnotes in the opinion. The second footnote stated that "it is difficult to believe that any Moakley bad faith can be shown by the wife’s attorney’s service of two pleadings on the previous attorney (who had not withdrawn on the record). However, because there was no evidentiary hearing, all of the facts are not present. Nevertheless, it appears that professionalism has eluded these attorneys, burdening both the trial court and this court."

The first footnote indicates there was a question without an answer regarding e-filing. The court stated that "it is unclear whether the wife’s attorney could have prevented service through the electronic filing portal on an attorney that the portal had listed for service."  

I do not think the answer would impact the "it is difficult to believe" portion of the second footnote quoted above, because I think the court was indicating that it is difficult to believe that the conduct is sanctionable regardless of the ability to deselect a recipient. However, as shown below, page 6 of the Florida Court's E-Filing Portal Handbook shows that it is possible to deselect a recipient: 

The entire handbook can be viewed HERE. It is also possible to remove yourself from a service list:

See page 21 of the handbook.

The Length of Briefs

Regarding the appropriate length for appellate briefs, Judge Marstiller (First Distrct Court of Appeal) noted on Twitter that the "sizematters":

Not too short or simple though, exactly as short as possible.

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Product Hunt (@ProductHunt) December 13, 2015

Florida Appellate Practice and Advocacy, 7th Ed., by Raymond Elligett Jr. and John Scheb

A couple of new books have been released recently that are related to Florida law and the Florida courts, and I am linking to them in separate posts.

The Seventh Edition of Florida Appellate Practice and Advocacy, by Raymond T. Elligett, Jr. and John M. Scheb, was released on June 1, 2015. Previous editions were (and might still be) available exclusively through Stetson Law School, and this edition is available exclusively from Amazon.com at the link below:

Fifty Years of Justice: A History of the U.S. District Court for the Middle District of Florida, by James M. Denham

A couple of books have been released recently that are related to Florida law and the Florida courts, and I am linking to them in separate posts.

At the beginning of June, James M. Denham, a professor at Florida Southern College, released his book Fifty Years of Justice: A History of the U.S. District Court for the Middle District of Florida. The court, the United States District Court for the Middle District of Florida, issued a press release about the book which may be viewed HERE. The book is available from Amazon.com in print and Kindle versions at the link below:

Question As To Whether Legislature Can Limit Attorneys Fees in Claims Bill Sent To Florida Supreme Court

In July, the Fourth District issued an opinion discussed HERE in a post titled "Fourth District: Legislature Entitled To Limit Payment of Attorney's Fees In Claims Bill." Today, in THIS opinion, the court granted the Appellant's motion for certification as a question of great public importance and certified the following question to the Florida Supreme Court:

AFTER THE ENACTMENT OF SECTION 768.28, FLORIDA STATUTES, AND THE ADOPTION OF FLORIDA SENATE RULE 4.81(6), IS IT CONSTITUTIONALLY PERMISSIBLE FOR THE FLORIDA LEGISLATURE TO LIMIT THE AMOUNT OF ATTORNEYS’ FEES PAID FROM A GUARDIANSHIP TRUST ESTABLISHED BY A LEGISLATIVE CLAIMS BILL?

 All three members of the panel concurred in the certification order.

Fourth District: Medical Examination of Defendant Not Seeking Relief Must Occur Where Defendant Lives

In Bodzin v. Leviter (4D15-2122), the Fourth District held that the trial court departed from the essential requirements of the law when it entered an order requiring the non-resident defendant "to appear for an independent medical examination in Florida. See Youngblood v. Michaud, 593 So. 2d 568 (Fla. 4th DCA 1992) (independent medical examination of defendant should occur only in county of defendant’s residence)."

The majority opinion relied upon the Youngblood case cited above, and held that the "Respondent’s reliance on McKenney v. Airport Rent-A-Car, Inc., 686 So. 2d 771 (Fla. 4th DCA 1997), is misplaced." In McKenney, "the trial court required a plaintiff to appear for an independent medical examination in the county where the plaintiff filed suit, and our court concluded that the trial court did not abuse its discretion."

In this case, it was the plaintiff seeking an IME of the defendant, a defendant that was not seeking affirmative relief. Therefore, the court stated that "here, the gravamen of the cause of action in this case─investment fraud─has nothing to do with defendant’s condition. Thus, Youngblood, and not McKenney, is on point."

The court's majority opinion concluded as follows:

There is no rule or statute which requires the defendant to testify at the trial. See Graber v. Gassman, 321 So. 2d 82, 83 (Fla. 3d DCA 1975). Obviously, petitioner does not intend to testify at trial, and there is nothing in this record to show that respondent has subpoenaed him and intends to call him as a witness. Although petitioner does not object to the examination, he objects to an examination outside of his state of residence. If respondent still wishes to obtain an examination, she must schedule one there. 

The majority opinion was written by Judge Warner, and Judge Levine concurred. Judge Conner wrote a dissenting opinion. Judge Conner's dissent stated, in part, as follows:

I respectfully disagree with the majority. Florida Rule of Civil Procedure 1.360 does not limit its application to a party seeking affirmative relief. Instead, the rule allows for the examination of a party “when the condition that is the subject of the requested examination is in controversy.” Fla. R. Civ. Proc. 1.360(a)(1) (emphasis added). I disagree that the rule works differently depending on whether it is a plaintiff or defendant being examined. I have found no case law in Florida that holds the rule works differently, depending on which party is being examined.

Fourth District: Legislature Entitled To Limit Payment of Attorney's Fees In Claims Bill

In Searcy Denney Scarola Barnhart& Shipley, P.A. v. State (4D13-3497), a divided panel of the Fourth District held that the "guardianship court’s decision to recognize the Legislature’s prerogative of limiting the payment of fees and costs [in this case] to $100,000." The opinion was written by Judge Forst.  Judge Conner joined the majority opinion and also wrote a concurring opinion. Chief Judge Ciklin wrote a 19-page dissenting opinion. The majority opinion described the facts as follows:

The law firm "represented the family in a five-week jury trial in 2007. The jury found that Lee Memorial Health System’s employees had been negligent and that their negligence had resulted in damages to Aaron and his parents. The jury awarded Aaron over $28.3 million. His mother was awarded $1,340,000 in damages, and his father was awarded $1,000,000. However, the trial court found that Lee Memorial was an independent special district of the State of Florida and, pursuant to the sovereign immunity damage limitations in section 768.28(5), Florida Statutes (2007), entered a judgment against the hospital in the amount of $200,000. The trial court rulings were affirmed by the Second District Court of Appeal. Lee Mem’l Health Sys. v. Edwards, 22 So. 3d 81 (Fla. 2d DCA 2009).

In an attempt to recover additional funds beyond the $200,000 limit, the law firm submitted a claims bill to the Florida legislature. 

In 2012, after a public campaign in support of the bill, the Legislature passed Claims Bill 2012-249, directing Lee Memorial to appropriate $10 million, with an additional $5 million payable in annual installments, “to the Guardianship of Aaron Edwards, to be placed in a special needs trust for the exclusive use and benefit of Aaron Edwards, a minor.” Ch. 2012-249, § 2, Laws of Fla. No monies were appropriated for the use and/or benefit of either parent for their damages. The claims bill also included a stipulation stating “[t]he total amount paid for attorney’s fees, lobbying fees, costs, and other similar expenses relating to this claim may not exceed $100,000.” Id. § 3. It is this provision that is the focus of the matter before us.

After the $10 million had been paid into a trust for Aaron Edwards's needs, the lawyers ("with support from the Edwards family"), asked the court to allocate $2.5 million for attorney's fees. "The petition premised this request on a 25% fee cap provision in section 768.28(8) and on the argument that the fees and costs limitation in the claims bill was unconstitutional." 

On the merits of the issue presented, the court began with an analysis of sovereign immunity. 

The doctrine of sovereign immunity stretches back to the foundations of Anglo-American common law. Espousing the maxim that “the King can do no wrong,” Blackstone explained that “no suit or action can be brought against the King, even in civil matters, because no court can have jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *235. However, should a subject of the Crown have “a just demand upon the King, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion.” Id. at *236.  

When the common law was exported to the American continent, sovereign immunity came with it.  

***

Section 768.28, Florida Statutes, is the codification of the state’s limited waiver of sovereign immunity in tort actions. A plaintiff’s recovery against the state and its agencies or subdivisions is limited to no more than $200,000 per incident. § 768.28(5), Fla. Stat. (2007). Moreover, in cases where a judgment exceeds $200,000, “that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.” Id.  

After an analysis of the legal opinions regarding the statute and its application when the legislature limited compensation to lawyers, the court turned to the case before it. The court stated that "in the instant case, as in Gamble and Noel, the Legislature passed a claims bill that provided a specific amount of attorneys’ fees that was significantly less than the amount contracted for between the Edwards family and their law firm, Searcy Denney." Addressing the ultimate conclusion, and the dissenting opinion, the court stated:

Notwithstanding Appellants’ (and the dissenting opinion’s) arguments to the contrary, Gamble and Noel, and the reasoning therein, support the guardianship court’s decision to recognize the Legislature’s prerogative of limiting the payment of fees and costs to $100,000. A claims bill, both before and after the enactment of section 768.28, is a “voluntary recognition of its moral obligation by the legislature” and, as such, is firmly entrenched in the sphere of legislative discretion. Noel, 984 So. 2d at 1267 (quoting Gamble, 450 So. 2d at 853). “Parties cannot enter into a contract to bind the state in the exercise of its sovereign power. . . . The legislature was in no way bound to pass legislation conforming with the provisions of the prior contingent fee contract.” Gamble, 450 So. 2d at 853. “That the claim[s] bill is separate and apart from the constraints of an earlier lawsuit is demonstrated by the supreme court’s recognition that [the] legislature has the power to limit attorney’s fees in a claims bill, no matter what the underlying fee contract provides[.]” Noel, 984 So. 2d at 1267. “A claim[s] bill is not obtainable by right upon the claimant’s proof of entitlement, but rather is granted strictly as a matter of legislative grace.” Wagner v. Orange Cnty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007); see also United Servs.Auto Ass’n v. Phillips, 740 So.2d 1205, 1209 (Fla. 2d DCA 1999).

In conclusion, the court stated: "Appellants’ (and the dissenting opinion’s) dissatisfaction with the limitation on attorneys’ fees and costs imposed in Aaron’s claims bill is understandable, and the possibility of such a restriction in a claims bill posits an additional factor to be considered by counsel in deciding whether to take on representation in a case in this state involving a sovereign entity defendant. Appellants’ reply brief states, 'If there is no reasonable financial incentive for lawyers to take these type cases, the injured will go unrepresented.' To what extent this is true is beyond our focus. Therefore, we affirm the guardianship court’s ruling."

As noted above, there were three opinions in this appeal. Judge Forst wrote the opinion, and was joined by Judge Conner who also wrote a concurring opinion. Chief Judge Ciklin wrote a dissenting opinion.

Judge Conner's concurrence states:

Anytime legal analysis traces back to Blackstone and the foundations of Anglo-American law, one knows core legal values are being addressed. I write to further explain why I cannot agree with the reasoning of the dissent, although the dissent makes very cogent arguments as to why Gamble and Noel should not control the outcome of this case. 

The premise of the dissent is that by enacting section 768.28, Florida Statutes, the legislature altered the “legislative grace” attribute of its monetary awards by making a judicial or administrative award a precondition for initiating the claims bill process. The argument is that you can’t even try to pass through the doors of the legislature until you successfully pass through the doors of the courthouse. Thus, the two processes are welded; this means the “act of grace” analysis has been “transcended” because the weld now raises the specter of “a chilling effect upon the sacrosanct and fundamental constitutional right to access to our courts.” 

The fly in the ointment regarding the dissent’s argument is the failure to recognize that seeking redress from the legislature is fundamentally different from seeking redress from the court. Every citizen has a fundamental right to seek redress from the court because that is a core function of the judicial branch of government. There is no fundamental right to seek redress from the legislature because such is not a core function of that branch.

***

Therefore, I agree with the majority opinion that unless our supreme court changes course in its legal analysis regarding separation of powers, arguments regarding impairment of contract, unconstitutional taking, denial of due process and equal protection and all variations on those themes are unpersuasive. 

Finally, the 19-page dissenting opinion by Chief Judge Ciklin begins, in part, as follows:

I respectfully dissent and offer my overall assessment of the crucially important issues involved in this case, the ultimate resolution of which will have deep and profound ramifications for many Floridians—and for many years to come.

*** 

Because the claim bill’s limitation on attorneys’ fees and costs is an unconstitutional impairment on the Edwards family and firm’s right to contract, I would reverse. I have taken the liberty to also write to remind the readers of this dissent and all Florida lawyers, that contingency fee agreements are directly connected to every citizen’s right to access to our courts. I cite to the Florida Code of Professional Responsibility which contemplates the ethical and moral obligation of “us lawyers” licensed to practice in this state, to always consider the contingency fee agreement as the “poor man’s key to the courthouse.” Because of the enactment of section 768.28, which now requires that aggrieved individuals first invoke the civil process of law before even approaching the Legislature for sovereign immunity relief, the “key” should be easily accessible. The right to this key is rich and deeply rooted in American history and it is a judicial time-honored duty and responsibility to protect the inalienable rights of our people in this regard. 

Fourth District: Legislative Cap On Non-Ecomomic Damages In Personal Injury Cases Violates the Florida Constitution

In North Broward Hospital District et al v. Kalitan (4D11-4806), a panel of the Fourth District Court of Appeal concluded that a 2014 decision of the Florida Supreme Court required it to conclude that the legislative caps on non-economic damages in personal injury cases violates the equal protection clause of the Florida Constitution. The Fourth District's decision began as follows:

In Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court determined that the caps on noneconomic damages awards in wrongful death cases, imposed by section 766.118, Florida Statutes (2005), violated the equal protection clause of the Florida Constitution. Art. I, § 2, Fla. Const. The instant case consolidates three appeals from a single medical malpractice incident with a final judgment finding Appellants, defendants below (“Defendants”), liable for the injuries and damages suffered by Appellee Susan Kalitan (“Plaintiff”). Plaintiff’s jury-awarded damages were limited by the trial court’s application of section 766.118, and Plaintiff’s cross-appeal challenges the constitutionality of those caps.

Accordingly, this appeal presents an issue of first impression in the post-McCall legal environment—whether the opinion (or, more accurately, opinions) of the Florida Supreme Court in McCall dictates our holding that the caps on noneconomic damage awards in personal injury medical malpractice cases are similarly unconstitutional. Although Defendants attempt to distinguish the caps in wrongful death cases from those in personal injury cases, and there are clear distinctions, McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional. To conclude otherwise would be disingenuous. Consequently, we reverse the trial court’s decision below insofar as it reduced the jury’s award of noneconomic damages based on the caps in section 766.118. 

Note that it is the 2014 version of section 766.118 linked throughout the quote above. Section 766.118, Florida Statutes (2005), cited in the quote above, can be viewed HERE. The 2005 version was apparently amended twice. See  s. 204, ch. 2007-230; and s. 28, ch. 2011-135.

Next, the opinion explained the multiple decisions that make up the Florida Supreme Court's decision in McCall, and why the panel determined that the supreme court's plurality opinion in McCall must be followed in this case. The court seems to make it clear that whether or not you agree with the conclusion regarding the constitutionality of the caps is an issue to be taken up with the Florida Supreme Court - and therefore an issue this appellate court need not independently address. In conclusion, the court stated:

CONCLUSION

Per McCall, Plaintiff’s noneconomic damages were improperly limited by the application of the caps in section 766.118 and, accordingly, we reverse the noneconomic damages award in the final judgment. Defendants have asked this court to distinguish single claimant personal injury cases from the multiple claimant wrongful death situation addressed in McCall. However, we have found no basis to do so that would not conflict with the reasoning of the Florida Supreme Court’s plurality and concurring opinions, which strike at the underpinning of the Legislature’s caps on noneconomic damages in general. So long as the caps discriminate between classes of medical malpractice victims, as they do in the personal injury context (where the claimants with little noneconomic damage can be awarded all of their damages, in contrast to those claimants whose noneconomic damages are deemed to exceed the level to which the caps apply), they are rendered unconstitutional by McCall, notwithstanding the Legislature’s intentions.

The trial court is directed to reinstate the total damages award as found by the jury, though these damages may still be limited by the doctrine of sovereign immunity. Also, in the corrected final judgment, the University is not to be held liable for the damages attributable to the Nurse. As no challenge was raised as to liability in any other context, nor was a challenge raised regarding Plaintiff’s economic damages award, those portions of the final judgment are affirmed.

The 14-page opinion was written by Judge Forst, and the opinion was joined by Chief Judge Ciklin and Judge Stevenson. Some of the briefs filed in this appeal are available at the links below:

• Appellee's Answer Brief/Cross-Appellant's Initial Brief (filed July 22, 2013);
• Appellant's Reply Brief/Cross-Appellee's Answer Brief (filed December 2, 2013);
• Appellant's Reply Brief/Cross-Appellee's Answer Brief (filed December 3, 2013);
• Appellant/Cross-Appellee's Supplemental Brief (filed May 12, 2014); and
• Appellee/Cross-Appellant's Supplemental Brief (filed May 23, 2014).

Florida Statute That Taxed Cable And Satellite Service At Different Rate Violates Dormant Commerce Clause

In Directv Inc., et al v. Florida Department of Revenue, et al (1D13-5444 & 1D14-0292), a divided three judge panel of the First District Court of Appeal held that Florida's imposition of a higher tax on satellite customers than on cable customers violates the dormant Commerce Clause. The court began its opinion as follows:

This appeal arises from a final summary judgment finding that section 202.12(1), Florida Statutes, which imposes a higher tax rate on satellite services than on cable services, is constitutional. The Appellants, Directv, Inc. and Echostar, L.L.C. (“the satellite companies”), contend that the statute unconstitutionally discriminates against interstate commerce in both effect and purpose, which is in violation of the Commerce Clause. We agree and reverse.

Generally, the complaint arises from a legislative change, "the Communications Services Tax Simplification Law (“the CST”), which imposed a differential tax rate for cable and satellite services." When that law was enacted, codified at § 202.12(1), Fla. Stat. (2001), cable service began being taxed at 6.8 percent and satellite service at 10.8 percent. " (taxing cable service at 6.8 percent and satellite service at 10.8 percent). Currently, cable service is taxed at a rate of 6.65 percent, and satellite service is taxed at a rate of 10.8 percent."

"It is this difference in taxation rates that the satellite companies allege[d] violates the dormant Commerce Clause," and the court agreed.

The court first addressed the state's argument that "the satellite companies cannot seek a tax refund because they failed to exhaust the available administrative remedies." The court agreed that the satellite companies had failed to exhaust their administrative remedies but noted that "[i]f a taxpayer is seeking a refund pursuant to section 215.26, Florida Statutes, and the sole basis for the refund is that the statute imposing the tax is facially unconstitutional, the circuit court will have jurisdiction despite the taxpayer’s failure to exhaust administrative remedies. Sarnoff v. Fla. Dep’t of Highway Safety & Motor Vehicles, 825 So. 2d 351, 357 (Fla. 2002). This exception is known as the direct-file exception. Id."

The state argued that the direct-file exception, discussed above, did not apply because "this is not a facial challenge to the statute." The court disagreed, concluding that "[a] party can pose a facial challenge to a statute by arguing that there is no set of circumstances where it could apply constitutionally because of its discriminatory purpose or its discriminatory effect on interstate commerce."

To the merits of the dispute, the court stated that the "The Commerce Clause states, 'The Congress shall have power to . . . regulate Commerce with foreign Nations, and among the several states.' Article I, § 8, cl. 3, U.S. Const. Attendant with this grant of authority to Congress, the United States Supreme Court has recognized a dormant Commerce Clause, which limits the states’ power to regulate interstate commerce. Simmons v. State, 944 So. 2d 317, 329 (Fla. 2006). A state or local regulation violates the dormant Commerce Clause if the regulation treats out-of-state commerce differently from in-state commerce. Reinish v. Clark, 765 So. 2d 197, 211 (Fla. 1st DCA 2000)."

"There are three ways in which a statute can discriminate against out-of-state interests: (1) it may be facially discriminatory; (2) it may discriminate in its practical effect; or (3) it may have a discriminatory intent." Citing Amerada Hess Corp. v. Dir., Div. of Taxation, N.J. Dep’t of Treasury, 490 U.S. 66, 75 (1989).

Applying this test, the court disagreed with the trial court and concluded that the cable and satellite providers, stating:

Here, cable and satellite companies provide multichannel television programming to Florida subscribers. As such, they operate in the same market and are direct competitors within that market. They differ in the deployment of technology, the need for local infrastructure, and the additional services offered. However, mere differences in how a service is provided is not enough to overcome the fact that the companies compete in the same market and sell virtually identical products at retail. 

Next, the court turned to whether there were "in-state interests," stating that "[i]n addition to a finding the companies at issue are similarly-situated entities, courts must also find in-state interests to be present in order for the Commerce Clause to be implicated." The court stated that the "Commerce Clause analysis focuses not on the domiciles of particular corporations, but on whether a law results in differential treatment of in-state and out-of-state economic interests." In this case, "[b]ecause the sales tax portion of the CST burdens interstate commerce by imposing a higher tax rate on those communication companies that do not invest in local economies, it violates the Commerce Clause."

The court then turned to "effect case law," arguments concerning the "aggregate tax rate," and the state's arguments regarding operational differences. All three arguments made by the state were rejected, and the court concluded that "[b]ecause the CST has a discriminatory effect on satellite companies, it violates the Commerce Clause, and the trial court erred in finding otherwise."

After concluding that the legislation had a discriminatory effect, the court next analyzed whether the statute had a discriminatory purpose. "To determine whether there is discriminatory purpose, courts look to the language and the legislative history of the statute in question." Concluding that the trial court correctly limited its review to information in the actual legislative history, the court affirmed the conclusion that the record did not support a finding of discriminatory intent.

Based upon the finding of discriminatory effect, the court reversed the judgment of the trial court. The court's opinion was written by Judge Roberts, and Judge Swanson concurred. A dissenting opinion was filed by Judge Marstiller.

Judge Marstiller's dissenting opinion stated, in part, as follows:

I do not agree the satellite and cable providers are similarly situated entities for purposes of dormant Commerce Clause analysis; in my view, the majority opinion fails to fully consider all the differences between the two.3 Mainly, however, I disagree with the majority’s characterizing the cable providers’ use of local infrastructure, reliance on local rights-of-way and employment of Florida workers as in-state economic interests giving rise to the proscriptions of the dormant Commerce Clause. As the trial court found based on the undisputed facts brought out below, “[t]he cable companies may have more of a presence in the state because of the nature of the technology they utilize in providing their services, but the satellite companies have a significant presence in the state as well.” Indeed, DirecTV and Echostar filed verified statements below averring that each has employees based in Florida—DirecTV has independent contractors here, as well—who are responsible for “sale of its services and installation, servicing, and/or maintenance of its property.” I do not believe we can properly ignore or discount these facts. Inasmuch as the cable providers and the satellite providers both have human and physical assets in Florida which they use to provide services to their customers, they both have significant in-state economic interests. I fail to see how, under these facts, the cable providers have local economic interests, but the satellite providers do not. And I find nothing in dormant Commerce Clause jurisprudence that would justify invalidating Florida’s CST based on one group’s comparatively greater economic investment in the state where both groups have economic investment here.

***

I also believe the majority opinion, in focusing solely on the extent of instate economic investment by cable providers and disregarding in-state investment by satellite providers, misapprehends the purpose of the dormant Commerce Clause. Relying primarily on the fact that the cable providers use local rights-of way, the majority opinion discounts the decisions of the Sixth Circuit Court of Appeals, the Ohio Supreme Court and the North Carolina Court of Appeals holding that the pertinent distinction between satellite providers and cable providers is operational and not geographical. 

***

The bottom line is that the dormant Commerce Clause does not protect satellite TV providers from differential tax treatment simply because their technology is not land based. It does not protect “the particular structure or methods of operation in a retail market.” Exxon Corp., 437 U.S. at 127. The majority’s decision to invalidate Florida’s CST is inconsistent with this principle and contrary to dormant Commerce Clause jurisprudence. I understand the concern over a taxing scheme that appears to favor one group of industry competitors over another. But “‘applying the dormant Commerce Clause in cases that do not present the equivalent of a protective tariff’—i.e., where the tax does not draw geographic lines, favor local products, or promote local companies—[ ] ‘dramatically increase[s] the clause’s scope.’” Levin, 941 N.E.2d at 1194 (quoting Treesh, 487 F.3d at 481). The majority’s decision takes that dramatic step, and I  am not prepared to follow.

2015 Amendments to the Federal Rules and Potential Changes in 2016

Last month, the Supreme Court sent to Congress amendments to the Federal Rules of Bankruptcy Procedure and Federal Rules of Civil Procedure. These Amendments will become effective on December 1, 2015, absent Congressional action blocking the changes. The Bankruptcy Rule change only impacts Rule 1007. The Civil Rule changes relate to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84, and the Appendix of Forms.

Much more interesting, in my opinion, will be the rule changes submitted next year and that will be effective on December 1, 2016. The entirety of the changes proposed for December 1, 2016, may be viewed HERE. The proposed changes include a reduction in the length of appellate briefs and the elimination of the 3 mailing days provided by the rules. 

The comments period has closed for the changes proposed for 2016. There are 61 comments to the proposed appellate rule changes, and much has been written on the subject. With regard to the proposed civil rule changes, there are only 13 comments.  I link to two specific comments, one from the United States Department of Justice and the other from the Solicitor General of the United States, but all are available at the following links: Civil; Appellate; Bankruptcy; and Criminal.

After Merger, Claim May Be Continued As If Merger Did Not Occur

In Fiorentino v BAC Home Loans Servicing, LP (5D13-3250), the Fifth District reversed the foreclosure judgment. However, in a footnote the court cited to section 607.1106(d), Florida Statutes. That statutory section is titled "effect of merger or share exchange," and the cited provision states that "Any claim existing or action or proceeding pending by or against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation which ceased existence."

Applied to the case before the court, the court noted the following:

The record reflects that BAC merged into Bank of America effective July 1, 2011, and did not survive the merger. Pursuant to section 607.1106(1)(d), Florida Statutes, the claim may be continued as if the merger did not occur, or the surviving corporation, Bank of America, may be substituted in the proceeding.

While not a new law, it is a statutory provision that isn't referenced often.