Following Trends in Florida Law

Archive for May, 2009

No Third Party Claim for Contribution Among Tortfeasors Post-2006 Amendment to F.S. 768.81

Sunday, May 31st, 2009

Can you still third party in a non-party tort feasor since the 2006 statutory abolishment of joint and several liability in Florida?

It appears not, according to T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair Inc. et al.

In this case, an employee of Wink was injured when he was working for Wink at T & S’ property.  The employee sued T & S, which promptly third party’ed in Wink claiming contribution.

Since 2006, however, Florida Statute 768.81 abolished joint and several liability.  Under the current law, the trial court can only enter judgment on the basis of a party’s percentage of fault.  Contribution can only be claimed by a party who has been made to pay more than its fair share.  So what happens with a contribution claim post-2006?

According to the Second DCA (Dakan, Altenbernd, and Fulmer), contribution claims were only allowed before because Rule 1.180 allowed third party actions against anyone who “is or may be liable.”  Courts were allowing contribution to be plead in the “main” tort case under this concept.

Not so now.  ”It is unlikely that T & S will be required to pay more than its pro  rata share” since F.S. 768.81(3) limits the trial court to judgment based upon a party’s fair share.  Thus, there’s no contribution claim — all pre-2006 cases are “not… overruled” but “they appear to have been rendered obsolete.”

“The Jewish Clause” — A Potentially Incindiery Discussion of “Partial Restraints” or “Incentive Trusts”

Wednesday, May 27th, 2009

We typically do not turn to the world of trusts and estates for zesty legal and religious discussions until our colleagues at the Florida Probate & Trust Litigation Blog dug up the story of The Jewish Clause.

The issue stems from an Illinois decision from last year where a trust was written with the so-called “Jewish Clause”: namely, if one of the descendents married a non-Jewish person, they were cut out of the trust.  More specifically, they would be treated as deceased.

While our co-legal blogger’s post is informative and includes some links to coverage in other legal publications, the opinion itself is both the primary source and, well, pretty self-explanatory.  

In Estate of Feinberg, the Illinois court went through the procedural (family) history and then focused on the key question: can such a “partial restraint” or “incentive trust” work as a matter of law?

In that state, the public policy is that probate documents cannot discourage marriage or encourage divorce.  The majority came to the conclusion that “posthumous meddling” of this kind was against public policy.  

The concurring opinion dug in a little deeper, concluding that the court was being asked to “enforce the worst bigotry imaginable.”  That same opinion even went after a set of parents in the action, noting that they were trying to exclude their own children from inheritance based upon religion: “If Michael and Leila’s actions in instituting this suit and prosecuting this appeal is any indication of their future intentions toward their children, this potential inheritance does not rise to the level of even a forlorn hope.”  A jab was also thrown at the dissenter, making what appeared to be an oblique reference to citations to World War II era case law.

The dissent came at the issue from a different angle and probably opened the door for an accusation of partiality.  But that would be a superficial view as there was scholarship in there — even if you disagree with the conclusion.  

The dissenting opinion began with the favorable overview, “Max and Erla Feinberg seek to preserve their 4,000-year-old heritage…”  But it was not an emotionally-driven, legally-blind opinion.  Contrary decisions were distinguished because the intent was to provoke divorce; favorable decisions from other states were noted.  In the instant case, the trustee did not even have to keep the property for descendents — and, prior to this opinion, there was no precedent to follow.

The Florida Probate blog concluded that Florida court would rule the same way.  I’ll have to bounce that off other probate lawyers.  You are welcome to comment below — its pretty anonymous so fire away (responsibly).  

We see their point, resting primarily on the Restatement of Trusts sect 29.  That said, we wholly endorse their take away message: you likely can only go so far with incentive trusts.

Fifth DCA Rules on Defamation Inside a Company

Tuesday, May 26th, 2009

What happens when an employee is allegedly fired and defamed to other employees?

The Fifth District (Cobb, Monaco, and Evander) recently issued an opinion in Luz Angela Lackner v. Central Florida Investments, Inc. (CFI).  You had to be fast to see it since it was withdrawn the same day — although selected and circulated by Florida Law Weekly in their daily electronic blast.  The opinion was held pending a question about whether a magistrate could preside over a jury trial.  Nonetheless, we discuss the substantive decision which apparently is not going to change regardless of the ruling on the presiding judge.

The Plaintiff was a time share salesperson who was paid on commission.  In one sale, she claimed she wasn’t paid enough commission; her employer felt she was unjustified in claiming any portion of the commission and terminated her for dishonesty.  The opinion suggests that termination-for-dishonesty was shared with at least one other employee.  There apparently was no tangible claim for actual damages.

Before we get into the case, which lacks background law, here’s a very basic primer.  

“Defamation” is a tort which includes both slander (spoken) and libel (written).  In this instance, the subject person is a private individual and not a public figure.   As for elements, there needs to be a false statement, published/shared with a third party, requisite intent (negligence or malce), and damages.  

Florida Statute 768.095 provides that employers have a qualified immunity for statements about former employees.  The qualified immunity is limited to audiences of prospective new employer(s) for the former employee and current employees.  There also is a heightened standard to prove fault: “clear and convincing” evidence that the information was knowingly false or violated civil rights under Chapter 760.

Back to our case.  The Fifth DCA found that the trial court had erred in granting the defendant’s motion for directed verdict based upon the evidence that one current employee had heard something about termination due to dishonesty.  The court held that statements made with malice to current employees could overcome the qualified immunity/privilege (if it existed).

Although the issue of damages was not fully explained, the court held that “even in the absence of actual damages, a defamatory allegation in respect to a person’s profession is actionable per se.”

As a side note, we noticed that oral argument was mid-March and the opinion was scooted out within three weeks.

Again, the opinion was formally withdrawn the same day it was issued; you can track the developments of the case here.

Fourth DCA Sets Out Steps to Collect on 57.105 Motion

Thursday, May 21st, 2009

Need a quick outline on what steps need to be taken to collect on a Florida Statute 57.105 “frivolous” claim motion? The Fourth DCA has a short explanation in Law Offices of Ainslee R. Ferdie, Ferdie and Lones, Chartered, et al. v. Lawrence and Lori Isaacson; Promises 10, 11 & 12 d/b/a Your Salon et al.

In this case, there was a contract dispute between a hair salon and manager. In a termination letter, the owners wrote that depositing the last checks would release all claims. The checks were cashed but suit was filed. The owners won summary judgment relying upon accord and satisfaction. They also filed a Motion for Sanctions Under F.S. 57.105.

The way it was handled below was bungled so we’ll simply focus on what the Fourth District wanted to happen:

1. Timely serve/file motion and prevail;
2. Trial court shall make (a) an express finding that the claim was frivolous AND (b) an express finding that the attorney was not acting in good faith;
3. Trial court’s findings must be supported by competent substantive evidence and, therefore, there has to be a full evidentiary hearing on both issues (resulting in those express findings);
4. Florida Statute 57.105 does not have a mechanism to force the attorney to pay costs — only fees. That does not stop a party from seeking fees as the prevailing party, just not out of opposing counsel.

Lawyers Continue to Be Focused on Twitter (Let it Go..!)

Saturday, May 16th, 2009

While lawyers are typically slow to adopt any new technology, there is a peculiar love affair between lawyers and Twitter.  ”New” by the way is a relative term.  Twitter’s been around since 2006.  How many people had heard of it before 2008?  Hmm?

Even on this site, we’ve found ourselves blogging about Twitter (seems like it should be the other way around).  Admittedly, even this writer has put fingertips to keyboard to crank out an article, Internet Social Networking Sites for Lawyers.  But, as Twitter explodes into the mainstream, it’s getting a little overdone.  So recognizing we’re a bit bogged down with Twitter-oversaturation, let’s turn our weary eye to… one more article on the darn thing.

The New York Bar chimed in with this piece, Look Who’s Talking: Legal Implications of Twitter Social Networking Technology.  Fortunately, it is not the usual lawyer-handwringing over how internet technology is going to affect discovery.  That said, everything stated in the article applies to non-digital communications.  If lawyers just took a step back and made the critical assessment that “watch what you say” applies at all times, there would be no need for these kinds of articles.  However, in fairness, since lawyers still are slow technology adopters, perhaps this article is a good, broad introduction.  Our apologies to the author for our beleaguered tone, we’re just oversaturated with Twitter.

We do give the author credit for raising the question of whether Twitter implicates the Electronically Stored Information provisions of the 2006 Federal Rules of Civil Procedure (”e-discovery” rules).  Unfortunately, the point is made in a hit and run fashion and there is no legal nor technical analysis of how it could be tracked/stored.  Then again, Twitter as an entity lacks a business model and, until recently, lacked a solid search engine.  Moreover, techies use Twitter in varying platforms (not just smart phones, but suites of software) and that within itself is getting complex.

What Do Environmental Activists and Loan Guarantors Have in Common? Not Personal Jurisdiction in Florida

Thursday, May 14th, 2009

The First and Fourth Districts have handed down strong opinions this month on Florida personal jurisdiction, indicating that non-Floridians cannot be haled into court here if there sole minimum contacts involve (1) guaranteeing bank loans made here, (2) infrequent emails/phone calls into Florida, (3) schools having alumni groups in Florida, and (4) correspondence school/distance learning students in Florida.

In Ed Labry, Bill Benton and Kevin Adams v. Whitney National Bank, AB9G, LLC, Steven R. Bradley, Jon D. Laplante, and Brad Zeitlin, non-Florida guarantors of a defaulted Florida bank loan were not subject to personal jurisdiction since the guarantors lacked the sufficient minimum contacts with the state of Florida, despite it being a Florida contract.

In the companion cases of Diana Reiss, Ph.D. v. Ocean World, S.A. and The Trustees of Columbia University in New York City et al. v. Ocean World, S.A. Earth Island Institute, Emory University, et al., personal jurisdiction kept an environmental activist and a major university out of a Florida lawsuit over the sale of Japanese dolphins to a Dominican Republic amusement park.

In Reiss v. Ocean World, the appellant disputed personal jurisdiction because she was not a resident in Florida and did not do business in the State. The Plaintiffs tried to use emails and phone calls to people in Florida and involvement in Florida activist organizations as a basis for personal jurisdiction. The court held there was no tortious act which occurred within Florida; likewise, the communications into Florida were not tortious and therefore there was no jurisdiction.

In the second case, Columbia University v. Ocean World, the school objected to jurisdiction as well. The claim was that Columbia was subject to Florida jurisdiction because it owned property in Florida, had an alumni group in Florida, had “distance learning” students in Florida, and had filed lawsuits in Florida. Here too, the court held that the “minimum contacts” were not satisfied because the school’s Florida actions were not connected to the plaintiff’s cause of action.

For a refresher on the Florida Long Arm Statue (F.S. 48.193), in personam jurisdiction, and infamous cases like Venetian Salami, International Shoe, and Worldwide Volkswagen, feel free to take these three cases for a spin.

Amendment 7 Trumps Work Product In Tug-of-War Over Medical Incident Reports

Tuesday, May 12th, 2009

Before the November 2004 elections, there was a battle between plaintiff lawyers groups and physician groups — each side seeking to convince the voting public to tack on amendments to the state constitution which would sting the other side.  The plaintiff lawyers won and “Amendment 7″ (access to adverse medical incident reports) became Article X, section 25 of the Florida Constitution.

The plaintiff lawyers again struck gold with the 2008 Florida Supreme Court decision in Florida Hospital Waterman, Inc. v. Buster, which essentially upheld a broad interpretation of Amendment 7 to allow plaintiffs access to gobs of previously privileged documents in the health care field.

Prior to Buster, plaintiff and defense counsel were making a fortune developing keen arguments in trial and appellate courts across the state trying to etch some new area of discovery.  After Buster, things began to grow fairly quiet.

The only health care related group to win an Amendment 7 battle were nursing homes and ALFs, which were deemed not to be health care providers — consistent with a prior battle over pre-suit requirements when plaintiff lawyers were arguing that they did not have to comply with Medical Negligence Chapter 766 requirements in long term care cases.

On May 8, the Second District (Altenbernd, Casanueva, and Silberman) handed down a decision in Lakeland Regional Medical Center v. Neely which re-affirmed Buster and confirmed, at least in one intermediate appellate court, that the work product doctrine was trumped by Amendment 7 and Buster.

The Court reasoned it was “constrained” by Buster and posed a question to the Florida Supreme Court as a matter of great public importance.  Our guess: it is unlikely the Court will take it and, if they do, look for the “final word” confirming the viability and breadth of Amendment 7 OR… an unexpected change of course.

Jesus Christ We’re Worried About License Plates in Florida!

Sunday, May 10th, 2009

The Orlando Sentinel said it best:

The education budget may be cut. Taxes may be raised. Our state is in economic crisis. And what are our legislators talking about? License plates. And the comments from the Miami Herald

and St. Pete Ti

mes aren’t far behind.

But let’s tiptoe through this carefully: more carefully than the mainstream press, but less detailed — at this point — than true constitutional scholars.  First, note in all three news articles only ONE gives you the link to the actual bill text.  So let’s get that out of the way:  you can find Senate Bill 642 here.  Note how much goddamn time is spent on this bill.  There have been votes, committee meetings, versions, amendments, floor amendments, and three sets of staff analysis.  Yes, all for license plates.

According to the March 2009 analysis, the issue started, humbly enough, with the proposal to make an Autism license plate.  No Jesus in sight.  My how times have changed in a month.

In the current bill version, not only do we have a Christian license plate BUT we also have the money going to… Toomey Foundation for the Natural Sciences, Inc. Sounds benign enough, right?  Except it is religious based — including a bible quote on their scientific? home page.  Don’t think someone is playing fast and loose?  How about the bills prior version which gave the money to… Faith in Teaching.  Curiously, their website is down.  Some scant information about that group is here.

Constitutionally, there are two issues: can a State have the plate and, if so, can the State take the money and give it to a religious group… we’ll see.

Wrinkles v. Jury Duty: You Be the Judge

Friday, May 8th, 2009

According to the Chicago Sun Times, Mr. T is good enough to show up for jury duty.  Even a group of citizens in Tampa got a moment on their soapbox after serving on a jury.

On the other hand, the Chicago Tribune recently posted a dozen ways to AVOID jury duty.  

But the good folks at the SmokingGun.com found someone who was really not so interested.  Here’s his affidavit as to why, uh, he is a bit occupied at the moment.  Namely, he would “rather count the wrinkles on my dogs balls than sit on a jury.”

You want to count what??

To find out what happened, here’s the story, A New Wrinkle on Avoiding Jury Duty.  Damn, wish we thought of that title.  

For 500 or more other pithy comments on the story, flip over to our friends at Digg.com.

Airport Escalators versus Crocs Shoes, From Denver to Florida

Tuesday, May 5th, 2009

If there is a “swarm” of bees, a “herd” of cows, and a “pack” of dogs… then we must note the recent “congregation” of Croc lawsuits.  No, not like the gators, but the shoes.

The Orlando Sentinel broke the story of Sanjay and Marisela Prakash, the parents of a 4-year old who was injured when his Croc shoe was caught in the Miami International Airport escalator.  Hello… Miami Herald? That probably should have been YOUR scoop. A Colorado website indicates the suit alleges punitive damages and seeks $3-6 million dollars.

Apparently the soft shoe can get smooshed into the sides of the escalator and, because Crocs are so soft, the whole shoe can get tugged into the mechanism.  Our friends at The Consumerist pulled out a nice illustration of the type damage for us here.

A quick Google search suggests Croc-sportin’-children have been besieged in airports from Denver to New York to Miami.  According to this CBS report, the Croc company had sent a 16-page report to the U.S. Consumer Product Safety Commission (CPSC) .  The Commission had already known of 77 Croc incidents — to everyone’s surprise, the company admitted to another 109 more incidents.

Meanwhile, the CPSC estimated that there were 90 billion escalator riders in 2007, resulting in 11,000 injuries.  Most of those injuries are falls while 10% involve SOMETHING getting stuck in the machine.  See May 18, 2008 press release, Know the Steps to Safety When Using Escalators, Some shoes more likely than others to pose risk.

The Orlando Sentinel article mentioned that Crocs had issued a news release that it would put warnings on the shoes as of Spring 2009; our informal peek at Crocs.com didn’t reveal that announcement.  Hmm.

Step lightly.

“Paralegal Ethics” Presentation at PAF 2009 Seminar

Sunday, May 3rd, 2009

A special thank you to the Paralegal Association of Florida for their very kind invitation to speak at their 2009 Spring Seminar.  The topic was “Paralegal Ethics” and, after a brief discussion of Florida Rule Regulating the Bar 20-7, we dove into 10 different ethical scenarios.

The Powerpoint used during the presentation can be found under “Materials” to the right side of this page.  Clicking on “2009 Paralegal Ethics” will allow you to save it on your computer.

These materials are free to use but, if you reproduce them, please give an acknowledgment.

If you have a comment from the presentation or on these paralegal ethic issues, please click on “Comment” below.

“The Complete Lawyer” on Four Trends To Change Paralegal Profession

Saturday, May 2nd, 2009

In preparing for an ethics presentation to the Paralegal Association of Florida this Saturday for their 2009 Spring Seminar, we came across the interesting article, Four Trends Will Change the Face of the Paralegal Profession, at The Complete Lawyer.

Since there may not be time to discuss the article at the seminar, we might as well open the forum to the Net.  To summarize, the four trends are social networking websites, offshore outsourcing, paralegal regulation, and e-discovery.

First stop, however, is our dissent on the issue of outsourcing legal/paralegal work.  This is pure opinion, since I do not use offshore paralegals.  But even in the face of clients reportedly asking law firms to send out work (which I can’t imagine), I just don’t see this being an industry changing trend.

The rest of the article is dead-on.  A paralegal who does not know Web 2.0 skills has a dim future.  Lawyers can get away with it, since, after all, we have paralegals to do our internetting.  But even the lawyers are feeling the tech pinch.  I recall, over 10 years ago, a lawyer questioning whether “in the future” it would be malpractice to not have Westlaw.  I reminded him, even at that time, that the compentency and diligence requirements mandated good research, no matter what the source.  Depending upon the situation, if it is reasonably accessible information, a court might find it to be malpractice not to know it is out there/get it.

Regulation of paralegals is probably here to stay — and hopefully will get more efficient.  Researching “paralegal ethics” on the Internet leads to multiple model rules and association “opinions” with many inconsistencies…  paralegals need more structure to know right/wrong.

e-Discovery is here to stay also and, for the next 5-10 years, will be a boon to lawyers and paralegals since the e-Discovery rules overdo quite a bit, thus generating a lot of work.  At some point, after everyone finishes going e-frantic, the e-Discovery term will be an annoying cliche and massive data-dumping discovery requests will be passe.  Until then, bill your time.

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