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Separation of Powers
Tuesday, May 24, 2005
2:30 PM
Judicial Branch What is its role? FL Stat 20.02 - Declaration of Policy - Contemplates separation of powers among branches and defines role of judicial branch - "... Determining propriety of policies and program and of adjudicating any conflicts arising from interpretation or application of the laws" Separation of Power Doctrine contemplates 2 goals No branch many encroach upon power of another branch No branch may delegate to another branch its constitutionally assigned power Legislature may delegate some power, but not w/o unbridled discretion (Schiavo) NOTE: Congressional acts / statutes deemed constitutional - great deference (but recently moving away from it) Role of judiciary is not just to review cases, but issue a final order regarding a particular case or controversy When prescribed procedures are followed according to rules of court and statutes, and a final judgment is issued and all post-judgment procedures are followed, invasion of judiciary's authority for Legislature to pass a law that interests w/ final judicial determination of a case. (Schiavo) FL Constitution, 5,1 - "Judicial Power shall be vested in Superior Court, district court of appeals, circuit and county courts. No other courts may be established by the state" FL Constitution, 5,2 - Supreme court shall promulgate rules of court, not the legislature
Sources of FL Procedural Law US Constitution - Due Process considerations FL Constitution FL Statutes / Pre-emptive US Statutes Rules (Trans-substantive (apply across different contexts) v content specific) Local (circuit court rules) Court (rules of that specific court - usually about courtroom decorum) Common Law (not as much now as most rules are codified)
Bush v Schiavo - 10/21/2004 - Supreme Court of FL Facts / History Court had found by CCE That Schiavo was in a persistent vegetative state That Schiavo, herself, if competent, would elect to cease life prolonging procedures Parents had sought relief from court's judgment (See FL Rule 1.540 - Relief from Judgment) since they had standing as interested parties, and had tried to show that she would regain consciousness Denied Court said: This case is about Schiavo's right to make her own decision and when she cannot, and her loved ones don't agree, a judge is in the best position to make a decision Tubes were removed Bush issued executive order and tubes were reinserted Schiavo's husband filed for declaratory judgment Issue Constitutionality of Ch 2003-417 which gave governor power to stay (delay) a court order requiring removal of Shiavo's tubes Held: Unconstitutional On its face - b/c it delegates legislative power to Governor (executive branch) w/o any guidelines - allows for unrestricted discretion Under Art 2, S1 of FL Constitution: " Legislature may not delegate power to enact a law or the right to exercise unrestricted discretion in applying the law ." (Non-Delegation Doctrine) As Applied - " When all procedures are followed according to rules of court and statutes, a final judgment is issued and all post-judgment procedures are followed, it is w/o question an invasion of judiciary's authority for Legislature to pass a law that allows the executive branch to interfere with the final judicial determination in a case. That is precisely what occurred here and for that reason the Act is unconstitutional as applied to Schiavo." Analysis of the Act Doesn't apply directly to Schiavo, but it really targeted toward her Encroaches upon power of judiciary Delegates power to another branch w/o any guidelines
No guidelines b/c "Act does not suggest what constitutes a 'change in condition' that could 'warrant revocation' and even when such an undefined change occurs, Governor is not compelled to act." Governor tried to argue that his discretion was limited by CH 765 - Proxy Statute Court: However, Act doesn't refer to 765 nor does it require that he conform to 765, nor does it provide for a review of the Governor's decision (as 765 does for a proxy). Doesn’t even provide that he consider the patient's wishes. Nothing in 765 to guide or limit Governor's power under the Act Technically, Legislature can delegate power to other branches, but must provide specific guidelines - no unbridled discretion allowed Guidelines must also be set by the Legislature only, not the executive branch Policy judgments are for Legislature to make - See FL Stat. 20.02 - ".. Determining policies and programs and reviewing program performance." Proxy Statute - CH 765 Instead court was to ask to determine what Schiavo would have done? Bush's arguments The Act is limited by the CH 765 The act provides an additional layer of due process protection Court rejected it saying that this case has already been given heightened due process protection
5/25/2005, 2:30 PM
RELIEF FROM JUDGMENT
FEDERAL GOV NOT SUPPOSED TO SET ASIDE STATE JUDGMENTS - FELDMAN DOCTRINE
Have limited jurisdiction, as assigned by Congress
In re Guardianship of Schiavo - 03/16/2005 - FL 2nd DCA Criteria for voiding a prior judgment Voidness = lack of SMJ or PJ - judgment is not binding or enforceable The fact that TC judge, not a guardian, made the decision by CCE on evidence presented that Schiavo would have chosen to remove tubes does not indicate lack of due process as parents argued nor that Schiavo was not given a full and fair trial Facts Parents of Schiavo filed motion saying prior judgment is void (FL Rule 1.540) Precedent in FL is that a void judgment is one where court lacks PJ / SMJ Parents argued that judgment is void b/c trial court judge was also the appointed guardian, suggesting that judgment is void if it lacked something that is vital for due process Court rejected argument - Judge can make a decision on what the patient would have chosen for herself (according to FL Stat) Concerns w/ Collateral Attacks Judge / Court Shopping not good for system Motion for Stay Denied FL Rule 1.540 - Relief from Judgment Clerical Errors Mistakes, Inadvertence, Excusable Neglect, New Evidence, Fraud About justice, discretionary Court may relieve a party from final judgment for following reasons Mistake, inadvertence, surprise, excusable neglect New evidence by which due diligence could not discover Due diligence of lawyer Fraud Misrepresentation of Schiavo's beliefs Judgment is void or has been satisfied/released
TEMPORARY INJUNCTIONS
Schindler v Schiavo - 3/22/2005 - US Fed Crt Definitions Temporary Injunction - Pub L No 109-3 - Act of Congress Temporary Restraining Order - is of limited duration - ex parte proceeding (w/o notice of the other party) Preliminary Injunction - Where relief sought is an injunction, may ask for preliminary injunction to preserve status quo during injunction Temporary v Permanent Injunctions
Majority says that dissent misses the point when it says that the bottom line is that a federal court wouldn’t have heard the case They have heard it and in the context of issuing injunctions have decided that it will not succeed in a federal court Dissent: "de novo" review = must not look at state's findings Argument: but the issue is whether the state court erred! Standard of review is whether federal trial court in issuing the TRO abused its discretion Court will ask Whether trial court applied an incorrect legal standard? Whether trial court applied an improper procedure? Whether trial court relied on clearly erroneous facts? Whether trial court reached a clearly unreasonable or erroneous conclusion? Legislative History Argument P: Congressional intent to have a fresh set of federal eyes to evaluate the case, including facts calls for de novo review Congress did not change the TRO law... It meant for the settled TRO law to apply Expression of 1 thing is exclusion of others When congress explicitly modifies some preexisting rules of law applicable to a subject, but says nothing about other rules of law, reasonable to assume that Congress meant no change in rules it didn't mention All Writs Act Injunction Protection of federal court's jurisdc No, all Writs Act not available when a traditional remedy is - here is a regular TRO is available Dissent and Majority disagree on what precedent required on this issue Separation of Powers This case reiterates Separation of Powers / Rule of Law theme "... We are a nation of laws. .. Preexisting / well established federal laws governing injunctions as well as Congressional Acts... Must be applied" Dissent: Court didn't have power to issue injunction under its power or under All Writs Act Probability of Success on Merits (low) Dissent: look at it in light of how strongly the other factors point to in favor of an issuance of TRO Litigant must show only possibility of success, not a probability Majority's argument: Substantial likelihood, not a mere possibility
Schindler v Schiavo - US Court of Appeals - 11th Circuit - En Banc Hearing - 3/30/ Petition for rehearing denied Jurisdiction - this is an unconstitutional attempt to confer jurisdiction when it should have been denied Activist Judges Legislative / Executive branches have violated separation of powers and Act is unconstitutional Therefore, Court is w/o jurisdiction Feldman Doctrine - prohibits federal court from reviewing state court decisions This is jurisdictional - Congress is w/o power to alter the doctrine and give federal court jurisdiction to review Violates separation of powers not b/c it confers jurisdiction, but b/c it sets a standard for a rule of decision (de novo review?) and sacrifices the independence of the judiciary Congress cannot prescribe a rule of decision, but they do it anyway Dissent DP clause requires by CCE to determine individual's wishes b4 life support can be terminated Majority's argument: CCE met regarding her wishes
Declaratory Judgments
Tuesday, May 31, 2005
3:30 PM
FL Stat 86.021 - Declaratory Judgments "Any person who is in doubt of his rights under deed, will, K, memo.. .may have determined any question of construction or validity... and obtain a declaration"" Goal of DJ is to relieve litigants of CL rule that declaration of rights cannot be adjudicated unless a right has been violated and to render practical help in controversies which have not ripened as long as litigation appears inevitable unless DJ is granted - not a mere curiosity (Hollywood) Even though anticipatory and preventative, is liberally construed (X Corp)
Right to Jury Trial issue? Depends on nature of relief sought Injunction (Equitable) - no jury trial Declaratory reliefs generally seen as equitable relief - therefore no jury trial Damages (Legal) - jury trial
Hollywood v FL Power & Light Co - 4th DCA - 1993 Facts City alleged issue about construction of franchise agreement w/ FL Power under city ordinance (City thought that prior government entered into an unconstitutional agreement that allowed FPL complete exemption for taxes) City wants to know whether such an agreement / ordinance is lawful History TC said that declaratory judgment improper b/c TC's interpretation of ordinance is contrary to City's allegations Holding Appellate court said that TC's approach improper Test: There must a bona fide, actual and present need for declaration and declaration should deal with recent ascertainable facts and litigation must be inevitable Issue cannot be purely factual - there must be some legal question in dispute Litigation must appear inevitable Test is NOT whether P will succeed in obtaining decree favoring his position but whether he is entitled to a declaration of his rights
Britamco Underwriters Central Jersey Investments - 4th DCA - 1994 Facts / History Bar employee shot gun and employer failed to intervene Bar is sued for negligence under theory of respondeat superior Employer's insurance policy has exemptions where bar is not covered in the event of Certain intentional or other unintentional conduct Duty to defend Insurance co defended bar w/ a reservation of rights Insurance co filed declaratory judgment while liability suit was still pending TC stayed it until other suit was complete Insurance co appealed Findings Declaratory Action states COA b/c there is a bona fide issue <> parties and an actual present need for declaration Policy considerations: The insurance needs to know whether it is required to cover the case in order to defend properly P in liability suit also benefits b/c if no coverage, then P has less reason to sue - "Hollow Victory" RULE: Declaratory Judgment proper when factual issues in declaratory judgment are not the same as in the other action, no reason for requiring insurer to be precluded from litigating coverage dispute Here, insurer entitled to DJ b/c has bona fide coverage issue while simultaneously defending insured under reservation of rights in liability action as long as issues of coverage in DJ are not dependent on resolution of fact issues common in liability action NOTE: Abatement rule unnecessary b/c no shared facts here - it's not the focus here However, allegations of negligence made in liability suit that he shot in self defense, which is an intentional act (which is an issue in liability suit and as well in coverage suit?)
X Corporation v Y Corporation Facts Employer seeking to determine his rights and duties under FL law prohibiting discrimination in employment based on HIV Employer wanted to transfer HIV positive employee Employee has HIV, is violent and has threatened other coworkers with biting Employer wants to know whether a transfer w/o employee's permission is lawful Is absence of HIV a bona fide occupational qualification of the job in question and whether requiring testing and wearing protective clothing is OK? History TC said that no bona fide need for such a declaratory judgment b/c it gives off the flavor of companies liability- proofing their actions Finding Declaratory Judgment, though anticipatory/preventative in nature should be liberally construed Test for Sufficiency if whether one is entitled to a declaration of rights: Litigation must appear inevitable
Rule: Court may determine public policy in absence of legislative pronouncement; however, it must yield to a valid, contrary legislative pronouncement Here, court's prior public policy of simultaneous joinder of an insurance co can no longer prevail Statute is substantive, and b/c no clear intent to make it retroactive, it is prospective online - therefore prior cases control this suit Dissent Says b/c of retroactive ruling, rest of majority's opinion is dicta Just b/c legislature declares something as a public policy doesn't necessarily mean that its substantive Liberal joinder rules are necessary for litigants to get access to courts - procedural due process
Watson v First FL Leasing Inc. - Supreme Court of FL 1989 Facts Statute required a written notice in probate court when filing a claim - clearly procedural and unconstitutional, but adopted by courts as an emergency rule Shows Supreme Court's willingness to effectuate will of legislature by adopting its rules as its own 'emergency rules" Later had made up its own rules, but said that rules don't contradict each other b/c presuit notice requirement is not jurisdictional b/c notice to court is not required, but notice to D is required B/c Estate had notice of the action, OK to let P sue Finding Statute declared unconstitutional though S Court adopted it as its own emergency rules - shows willingness to effectuate will of Legislature Dissent It is jurisdictional - Majority said nothing about noncompliance not resulting in dismissal and no evidence that this was the Court's intent when it adopted the temporary rule If notice is required, then statute is rendered meaningless
Caple v Tuttle - Supreme Court of FL - 2000 Statute permits mortgagee suing to foreclose against a non-resident mortgage w/o bond to get prejudgment order to get mortgagor to pay interest (protected mortgagee) Issues: Does it violate DP? Test Private interest (mortgagor) Value of additional procedures to prevent erroneous depravation No exigent circumstances proven here (only a commercial lease) NOTE: Mashburn unsure whether this is really constitutional b/c it doesn't require any bond Argued that b/c statute lacks a creditor's bond payment, it fails to adequately protect mortgagor from erroneous depravation. Court said that the fact that mortgagor has right to appear and testify at hearing + req that court is only authorized to order continued payment after finding that mortgagee would likely prevail on merits minimize possibility of erroneous depravation Creditor's interest (mortgagee) Does it constitute impermissible rule making by legislature? Is it substantive or procedural? Tells step by step how to do something, but also gives creditor some rights Designed to protect property rights of commercial creditors and debtors during litigated foreclosure proceedings Substantive - anything procedural in it is intertwined w/ substantive rights and court has consistently rejected constitutional challenges to it
Precedent
Wednesday, June 01, 2005
3:30 PM
Sheradsky v Basadre - 3rd DCA - 1984 Federal case law construes federal rule in a particular way FL rule is patterned after federal law, so federal interpretation may be considered in interpreting the FL rule, since it must be assumed that in adopting an identical rule, FL Supreme Court intended to reach the same results as the federal rule
Pardo v State of FL - Supreme Court of FL - 1992 Decisions of DCAs represent law of FL unless overruled by FL Supreme Court In absence of interdistrict conflict , a DCA decision binds all FL trial courts Logical / necessary to preserve stability / predictability Hierarchy of decision making demands that trial courts follow DCA If DCA in which trial court sits has decided it contrarily to another DCA, trial court must follow decision of its own DCA <> DCAs, a sister DCA's opinion is merely persuasive If a trial court sits in 3rd DCA and 4th and 5th DCAs are in conflict, TC generally must follow one of those two decisions, not follow a 3rd path If federal court is interpreting a FL law that FL has not decided, that decision made in the federal court regarding FL law is persuasive in FL, especially for trial courts
Malu v Security Insurance Co - Supreme Court of FL - 2005 If TC are found to follow a lone DCA opinion until there is a conflicting decision, then that DCA's decision becomes the settled law of FL Legislature is presumed to be acquainted w/ judicial construction of a statute Thus, when it revises a statute and doesn't explicitly or implicitly reject the court's analysis, FL Supreme Court will assume legislative approval of the DCA's construction of the statute until DCA acts otherwise Long term legislative inaction after a court construes a statute = legislative approval and acceptance Example: Statute created by legislature Judicial interpretation of the statute Statute revised by legislature w/o explicit/implicit rejection of interpretation Judiciary assumes approval of their prior interpretation Tipsy Coachman Rule (FL only) Appellate court, in deciding whether to uphold lower court's decision, not limited to only reasons TC gives, but much affirm it if it is a legally correct judgment (according to reasons given by it) regardless of reasons given by TC On appeal, parties may present any argument supported by record even if not grounds relied upon by lower court Issues about lack of jury trial finding? 2nd bite at the apple - thought it wasn't allowed? - yes, but can do so as long as arguments supported by record - can't bring up new arguments on appeal
Conflicts Jurisdiction and Certiorari
Thursday, June 02, 2005
2:30 PM
Structure of FL Judiciary FL Supreme Court District Courts of Appeal Circuit Courts - can hear all claims County Courts - can hear exclusively some issues, especially small claims (to appeal from this court --> go to circuit court of appeal, which is also known as 2nd tier appeal)
Rules Interlocutory appeals - take place during litigation - require Writ of Certiorari Extraordinary remedy (Fassy) Granted only when Lower court deviates from essential requirements of law or didn't afford proper procedural due process Material injury must have resulted That cannot be corrected on appeal Harmless error rule - Appellate Court won't do anything to reverse unless can prove that procedural error was harmful
FL Constitution - Art 5 S3(b) - Jurisdiction of FL Supreme Court
Where an order after judgment is dispositive of any Q, it becomes a final decision even when some additional judicial labor is possible (Caufield) Plenary Appeal After final judgment As a matter of right Certiorari Appeal Interlocutory appeal Discretionary
Caufield v Cantele - Supreme Court of FL - 2002 Issue: Do Ds have right to appeal denial of claim for attorney's fees after voluntary dismissal of complaint by P? Depends on whether order denying fees is a final order - Did DCA have final order jurisdiction? Generally, voluntary dismissal is done w/o prejudice unless done too many times Facts Ds sold house to Ps Ds had included a general claim for attorney's fees in motion to dismiss - must be done or its waived Did they have to specify whether asking for fees under prevailing party provision in K or statute? K called for fees arising out of the K - here suit was for intentional misrepresentation (fraud is not based on a K unlike break of K) History Ds appealed to 5th DCA which said: Ds did not properly plead fees and litigation didn't arise out of K --> judgment denying fees after voluntary dismissal is properly reviewed on plenary appeal Findings Agreed that voluntary dismissal is properly reviewed on plenary appeal Disagreed that Ds did not properly plead fees Need only plead generally for attorney's fees (need not specify whether its contractual or statutory) Disagreed that litigation didn't arise out of K Fraudulent misrepresentation arises out of K if that was the parties' intent Under FL Constitution, DCA has jurisdiction to hear plenary appeals as a matter of right only from final judgments and orders of TC Attorney's fees order must have been a final judgment (was it?) Final judgment is one which ends litigation <> parties and disposes of all issues involved such that no further action by court is necessary Where an order after judgment is dispositive of any Q, it becomes a final decision even when some additional judicial labor is possible Problems w/ Attorney's fees Order Incidental to merits of lawsuit If nonsuit was w/o prejudice b/c of voluntary dismissal and no costs awarded, and if P sues D again, 1st court has costs/fees jurisdiction Not truly final b/c subsequently prevailing in another suit may entitle party who paid costs to recover those costs back again in 2nd suit NOTE: These above arguments were rejected by the court (p4) "No further juridical labor required.. .. Final and appealable"
Fassy v Crowley - 2nd DCA - 2004 Facts Representative for estate of deceased sued doctor / PMA under FL Stat 393.13 (Rights of Mentally Disabled Persons) for giving deceased too much pain mediation that killed him Ds argued that this is a medical malpractice claim and should be under FL Stat 766.16 (Med Mal Prac Act) which requires presuit notice History D's motion to dismiss denied Rulings on Motion to Dismiss are nonfinal and generally do not meet requirements for certiorari review TC agreed w/ P that the FL Stat 393.13 authorized suit w/o presuit notice/screening This seems wrong b/c P's complaint didn't allege P was a 'client' but seemed to be relying on ??? of 393.13 which required this status Findings RULE: Test for Certiorari Review of Non Final Orders (p4) Some FL courts have held that med mal prac stat is different from certiorari review and must be available b/c it's express purpose is to avoid filing lawsuit (going through trial is the material injury it sought to avoid) Test Depart from essential requirements of law Resulting in material injury That cannot be corrected on post judgment appeal*
Court finds that there could be material injury that cannot be corrected on post judgment appeal Issue: 1 - Whether there is a departure from essential requirements of law? Even tho Ivey said misapplication of correct law or erroneous interpretation of correct law doesn't rise to this level, this Court finds out nature of lower court's interpretive error and then concludes that this error rises to the level of egregiousness required for 2 reasons No need to read rules of statute's construction in order to determine error, plain reading suffices Error was gregarious / fundamental Dissent Agrees that TC erred, but doesn't believe error met certiorari requirements No procedural error - TC made motion to dismiss decision according to form of law and rules prescribed for rendering it Answer to legal question here is not clearly established law (whether pre-screening / notice requirement apply to FL Stat 393. but in Allstate is distinguishable b/c it was a 2nd tier certiorari review of a Circuit Crt's appellate decision! Here, this is just a garden variety nonfinal order
Venue
Tuesday, June 07, 2005
2:30 PM
FL Stat 47. Actions shall be brought only in county where D resides OR Where COA arises OR Where property is located Doesn't apply to non-residents
Bernhart v Barrs - Supreme Court of FL - 1943 Issue: Whether a non-resident may claim privilege of being sued in county where COA accrued No, non-resident cannot avail of this privilege b/c at common law, venue of a transitory action can be in any county where court could secure jurisdiction over D. Also, b/c last sentence of the FL Stat 47. excludes non-resident, then common law applies This statute is a limitation on the common law right to bring an action in any county where a resident D may be found, so a non-resident can still be sued wherever he may be found What does "found" mean? - generally interpreted to be physical summons / service of process
Kauffman v King - Supreme Court of FL - 1956 Issue: What effect does the last sentence have on a case where defendants are both residents and non-residents? 1 option is to split the suit but that is not efficient History TC: Another option - this statute doesn't apply to non-residents, this suit has non-residents, so it doesn't apply to them Finding TC's reasoning is wrong b/c (see Legislative intent - intent is to protect residents even when being sued together w/ a non-resident) FL 47.021 - Actions against 2 defendants residing in different counties may be brought in any one county where any defendant resides
Tucker v Fianson - 3rd DCA - 1986 Issue: Where does COA accrue? In a tort claims, COA is the place where the last event necessary to make D liable took place (last place of the injury) Facts Legal malpractice suit regarding sale of condo in Dade County Lawyer resides / practices in Broward County P argued that lawyer's negligence impacted economic interests in Dade County Finding Last place of injury rule applies not only in tort claims, but also to those relating to economic / intangible losses alone
Whether a mechanic's lien (equitable interest in land - foreclosure process converts it to a legal interest) is an action In Rem Yes, mechanic's lien is an action In Rem b/c it affects title Action in a county other than where land is, is ineffective b/c no juridiction Parties can contract to venue, but not to SMJ, so a mechanic's lien action must be brought where property is located regardless of venue selection clause In Rem is a special type of SMJ - but its really not, the court meant to say it’s a special type of PJ Land owner is not 3d party beneficiary in K <> contractor and subcontractor Every court where land is in dispute requires court to have jurisdiction over land to action on it Venue is about the geographic location of land In Rem actions are different from actions that indirectly affect property, such as suits for recession of a K for sale of land or deed 2 land or suit for specific performance to convey land Local action rule - certain actions are local in character and must be brought in the county where the property is located Venue statute doesn't confer extraterrestrial jurisdiction on court or alter the location action rule Venue shouldn't be confused w/ jurisdiction Rationale for venue may be tied to location / convenience - However, rationale for PJ may have some of the same considerations Venue may be created via K or waiver, but SMJ may not be (Q: doesn’t the court confuse PJ w/ SMJ?) Mashburn: Perhaps these distinctions aren't practically relevant in actions affecting title of land
Goedmaker v Goedmaker - Supreme Court of FL - 1988 Issue Whether a divorce case that includes a property issue should follow local action rule No, property refers to "real property" and not to marital dissolution assests, even if they may involve real property Facts Had anticipated division of business interests - but not in the complaint, which only asked for divorce Here issue is only whether marriage was irretrievably broken Would it have been different if there was an issue included about property division? Don't know Property was located in Dade C Marriage was last in Broward C Finding Provision in venue statute that says where property is located doesn't apply to marital dissolution cases This court found that marriage dissolution is transitory - default rule If payment of $ is the focus, then no property issue for litigation Issue in petition was whether marriage was irretrievably broken Would it have been decided differently if property action was included in prayer? In marriage, proper venue is where marriage was last intact In Personam action involving real property doesn't necessarily make it a local action - depends on underlying Q in case Incidental or ancillary issues regarding property not local action Convenience considerations - relevant to whether action may be transferred to a venue where it might have been brought, but not for a motion to dismiss b/c venue is improper JUST B/C BETTER FORUM EXISTS, DOESN'T MAKE P'S CHOICE OF FORUM IMPROPER Technically not OK to sue where property is located when marriage was last in another county However venue can be created by failing to object
HOME VENUE PRIVILEGE
Applies to state departments and agencies Have privilege of being sued in the county where they are located
Ringling Bros v State of FL - 1st DCA - 1974 Facts P sought declaration of its rights and responsibilities of parties to an indefinite "loan agreement" where P lent Ringling Bros some circus equipment items Government wanted the case tried in a county other than where it was located - wanted it in Sarasota County There can be 2 types of actions against the government Judicial interpretation of a party's rights Judicial protection from unlawful invasion of constitutional rights by state Known as sword wielder exception Venue statutes do not confer jurisdiction, but presuppose that court has jurisdiction and venue may be waived Issue: Can government waive the privilege? Is it a question of venue or jurisdiction?
Venue, so it can be waived Finding RULE: A party having a venue privilege may waive it by commencing action elsewhere Here, not dispute that Sarasota C is a better more convenient location However, P could not have initiated suit in Sarasota C due to the home privilege rule (could have Xfered it where it might have been brought) Courts ruling makes Sarasota C a venue where it might have been brought But it can wherever D may consent or waive it? Does it render "might have been brought" meaningless? Policies behind government's privilege - pg 5 (uniform interpretation of rules/statutes where they were promulgated) "a fortiorai" Privilege belongs to state, is not jurisdictional and may be waived Q: P can bring suit in D's residence and D can xfer it where P lives?
FL Dept of Children and Families Lawsuit by newspaper 2 obtain public records regarding criminal child neglect charges against a couple - initiated in Leon County Motion made to xfer case in Palm Beach County where records r located 3 issues Does motion to xfer venue made simultaneously w/ an assertion of lack of PJ waive PJ defense NO! FL Civ Pro Rule 1.140(b) works like the federal rule 12(b) RULE: If motion to xfer venue is made prior to assertion of PJ defense, then PJ defense is waived b/c the defendant has sought affirmative relief from the court b/c that is form of request for affirmative relief (according to crt) RULE: If however, the motion is simultaneously w/ the PJ defense, then no waiver occurs Other actions that would waive a PJ defense include filing a permissive counterclaim, 3d party claim, counter-petition
- these r all requests for affirmative relief Was newspaper req to effect proper service for PJ or was faxing copy of complaint to newspaper sufficient - not necessary to know about service of process here
Should court recognize a new exception to home venue priv? Already has 3 recognized exceptions Statutory waiver, sword wielder and gov as jointfeasor This case is an illustration of development of CL Lawyers arged that policies behind the home venue privilege (a matter of CL) do not support its application to instant case, and court adopts a new exception: Where a party petitions court for an order to gain access to public records where records sought are by law confidential and a court ruling is necessary to make them public New exception is discretionary - if gov makes motion to xfer , it may be granted if policies supporting the priv r implicated Must be interpreted to suit interest of justice Must be used only when facts involve obtaining the court order to access information located in a specific county
Venue Transfer
Wednesday, June 08, 2005
2:30 PM
FL 47.101 - Change of Venue Parties can change only if he believes that he will not receive fair trial b/c Adverse party has undue influence on inhabitants of county or B/c movant is somehow odious to the inhabitants of county Note that P's choice of venue must not be disturbed unless (see above criteria)
FL 47.122 - Convenience of parties and interest of justice Judge may xfer upon motion May xfer sua sponte but only w/ notice to parties and an opportunity to be heard
Doesn’t cause of change of law , just change of geography (Ira Mex) FL Courts need not do the federal choice of law inquiry prior to deciding FNC, FL courts can go directly to FNC analysis (Tananta)
Government Employees Insurance Co v Burns - 3rd DCA - 1996 Does TC have authority to sua sponte xfer case on FNC Yes, but must give parties notice and an opportunity to be heard on the issue Used to be: At first blush, convenience refers to that of parties, not that of the court FL Stat 48.122 - Convenience of parties and interests of justice Court doesn't have power to xfer to another sovereign's court (GA), but only to its own sovereign's alternative court FL Rule 1.061 - allows for dismissal for FNC when alt forum is another sovereign's court
Kinney NH Corp licensed to do business in FL, ppb in BJ --> DL Corp w/ ppb in NY also licensed to do business in FL Worker's comp Ins. Case K was negotiated in NY to cover Kinney's employees in various states, including FL Continental also registered to do business in FL and operates Ft. Lauderdale claims office Kinney had a regional office and operates parking garages in Dade County Issue: Is TC precluded from dismissing action for FNC where one of the parties is a foreign corporation that is doing business in FL, is registered to do business in FL or has its ppb in FL FL's common law rule at the time was FNC doesn’t apply where one of the corp. Parties to the action is licensed to do business in FL w/ ppb in FL Goal of FNC is to reduce forum shopping - FNC was reaching abusing levels in FL American Courts and Laws generally more favorable to P: Liberal discovery, generous juries, contingency fee arrangements, strict liability law What problem does crt id w/ the greater avail of FNC in federal court? If non FL defendant removes to federal court, FNC dismissal more likely to be granted - and therefore FL's residents r disadvantaged FL crt sys is over burdened and taxpayers must pay for judges, courthouses, administrative personnel and more juries Crt says: this is a proper concern for us to address due to our authority to modify CL when demanded by fundamental rt or public necessity. Legislature has not attempted to react in this area. Could it? If FNC is procedural for federal purposes, is it procedural for FL Const. purposes? What abt concerns abt multinat'l corps going unpunished for marketg dangerous products abroad? Crt doesn't agree that FNC favors business interests No particular state has an obligation to police the foreign actions of US corps however - What if all crts took this approach? What abt Union Carbide's negligence in Bhopal, India - issue is should those indiv be able to sue UC in US? Under FNC, it would be very difficult FL's access to crt's Const. guarantee does not provide a forum for the world at large - there must be some nexus to FL FL cts exist to judge matters w/ a significant impact upon FL's interests and those of its taxpayers Crt says its now immaterial how 'corporate residence is determined b/c a corp's various connection w/ FL
- if any - will be the only factors to be weighed in the balance of conveniences Holding generally applies only to certain actions - Concern abt reliance interests of litigates under prior doctrine Crt describes federal approach to public and priv interests Notes appropriateness of cases going forward in forum at home w/ applicable state law, rather than having some other court go through a conflicts analysis Be familiar w/ the FL Rule 1.061 - Choice of Forum - 4 part test Availability of adequate alt. forum Forum not inadequate merely b/c avail legal theories or recovery there will b e less generous Not avail only if no remedy at all Effect on priv interests Balance of priv conveniences Practical concerns: access to evidence and sites, witnesses, enforcement of judgments and practicalities and expenses associated with litigation - not procedural nuances Strong presumption favors P's choice of forum - overcome only if "relative disadvantages to D's private interests are of sufficient weight to overcome the presumption " Public Factors Come into play only if opposing party's private interests factors, crt finds them to be at or near equipoise , after taking into account the presumption favoring the P's choice of forum. Equipoise simply refers to adv or disadv of alt forum will not significantly undermine or favor the private interest of any particular party as compared to forum in which suit was filed If public interests factors themselves are at or near equipoise, then 3rd step will provide no basis for defeating the presumption favoring P's choice of forum Ensure that Alt Forum is actually available
If alt forum is illusory, court must retain jurisdiction and reopen case Crt promulgates FL Rule 1.061 in the opinion and explains methodology This case is remanded for further proceeding consistent w/ opinion
Kinney Headnotes Trial court is not precluded from dismissing an action on basis of forum non conveniens when one of parties is foreign corporation that does business in Florida, is registered to do business in Florida or has its principal place of business in Florida. Action may be dismissed on forum non conveniens grounds that satisfactory remedy may be more conveniently sought in jurisdiction other than Florida when (1) trial court finds that an adequate alternative forum exists which possesses jurisdiction over whole case, (2) trial court finds that all relevant factors of private interest favor alternate forum, weighing in balance strong presumption against disturbing plaintiffs' initial forum choice, (3) if balance of private interests is at or near equipoise, court further finds that factors of public interest balance in favor of trial in alternate forum and (4) trial court ensures that plaintiff can reinstate suit in alternative forum without undue inconvenience or prejudice, with decision to grant or deny motion resting in sound discretion of trial court reviewable only for abuse of discretion
Bacardi Read only for dissent Concern over abuse of discretion to dismiss action based on FNC when to do so would require a P to refile interrelated claims in more than 1 alt foreign jurisdiction Here claims were unrelated - majority and dissent disagree abt how much the claims r related Majority said not abuse of discretion to dismiss for FNC even if it requires P to split COA into 2 separate suits in a foreign jurisdiction as long as the claims aren't related.
Ira Mex Facts Appeal of an order dismissing a case on FNC grounds Underlying suit based on action to collect a worthless check Stat provides for attorney's fees, damages and other relief Check delivered by drawer to payee in Broward C, allegations that pmt was improperly stopped D had employed P as a subcontractor on a commercial construction project to perform interior work and P claimed that they had paid twice D says GA a more appropriate forum b/c D is a GA corp w/ ppb in GA K <> P and D was entered in GA Majority of work for which the check was pmt for performed in GA Check was drawn in GA bank which refused pmt Majority of witnesses in GA Finding Crt says this isn't a breach of K claim - its for statutory treble damages and allowing virtually no defenses P would have to hire GA counsel which it would call only 1 D witness Crt's decision is discretionary FNC is not a change of law, just courtrooms GA crt should apply FL law so the fact that it doesn’t have such a law is not dispositive Alt forum not inadequate just b/c the law is less generous Inadequate only when no remedy at all in alt forum TC found private interests favored dismissal b/c stat required intent to defraud which would require D calling a GA witness Dissent Not inconvenient to ask D to defend stop-pmt based claim in the place where check was delivered Majority not deferential to P's choice of forum
6/14/2005, 2:30 PM
Tananta Facts Foreign nationals brought actions under Jones Act (federal worker's comp for seamen) Had various COAs against Cruise ship catering service and Costa Cruise corporate owner dealing w/ injuries during employment Ps had few ties to FL, D had some ties, not the majority of crt deems these to be unrelated to COA So does FNC analysis deal w/ AOO analysis? Majority seems to suggest this
Court said "yes" and dissent disagrees Dissent's disagreement focuses almost exclusively on PJ
Personal Jurisdiction
Tuesday, June 14, 2005
3:13 PM
FL Long Arm Statute - 48. What is the difference <> 1 and 2? Specific (1) v General (2) jurisdiction MC requirements not built in - MC analysis must be done after LA analysis for both specific and general jurisdiction (Venetian)
When pleading jurisdictional facts to bring D in LA jurisdiction of state, need plead only basis of service in stat w/o pleading supporting facts Defense of PJ dismissed if not raised immediately on motion to dismiss or answer (Golden State) Filing a m2 dismiss merely raises legal sufficiency of pleadings D does so by pleading facts that support he's not under LA jurisdiction Transfers BOP 2 P Then affidavits hearing if P's affidavit conflicts w/ Ds
Forum Selection clauses Cannot confer PJ in a neutral jurisdiction where court wouldn't have it already It only gives a court w/ proper jurisdiction to decline from exercising it (Manrique) Could be enforced absent showing that enforcement would be unreasonable or unjust (McRae) Test Forum was not chosen due to a party's overwhelming bargaining power Enforcement wouldn't contravene public policy Purpose of clause isn't to alienate or inconvenience parties
Venetian v Parthenais - Supreme Court of FL - 1989 Facts P wanted to establish PJ over V under (g) of LA statute - "breaching a K in this state by failing to perform acts required by K to be performed in the state" P was contacted by V at its place of business in Gainesville to obtain assistance w/ a large # of receivables owed to V Had an oral K to investigate collection of receivables in FL, NY and Canada Pmt to P due in FL D had different story Said Canadian Co, all negotiations not in FL, and there was no agreement! If judge believed D, then prolly no jurisdiction b/c would have to analyze COA to see if there is jurisdiction What if the case continued for a while and then realized that there is no legal COA? Issue May PJ be obtained by meeting statutory requirement of LA Stat w/o necessity of showing minimum contacts Are minimum contacts built into the LA Stat? History V's motion to dismiss granted Filing of a motion to dismiss on grounds of lack of jurisdiction does nothing more than raise legal sufficiency of pleadings Regarding jurisdiction, V's affidavit directly conflicted w/ P's affidavit - this is a factual dispute Holding Jurisdictional Affidavit Conflict Court must hold limited evidentiary hearing in order to determine jurisdiction Fact finder is the judge RULE: Use this PJ Test Does complaint allege sufficient jurisdictional facts to bring action w/in reach of LA Statute and Does it demonstrate sufficient minimum contacts w/ FL to meet the constitutional due process requirement So What?
What misunderstanding of the relationship <> state's LA Stat and US Constitution's Due Process clause does this conceptualize of the issue evidence? FL legislature can say whatever it wants in its statute, but must still meet Supreme Court's requirement of constitutional due process FL legislature may have meant to build in minimum contacts, but may have gotten it wrong - Supreme Court is also always changing Does this case stand for notion that failing to pay $ in FL would meet G in LA Stat? No, this case did not enter judgment for dismissal for that reason
6/15/2005, 2:29 PM
48.193 - Jurisdiction (Whether or not a citizen) (1) Any COA AOO the doing of any of the following acts (AOO also related to MC Analysis) A - Doing business in the state B - Committing a tortious act in the state F - Causing injury in state for actions outside the state if engaged in (qualifications) G - Breaking K by failing to perform acts required in the state (2) General Jurisdiction
Banco PJ issue P wants jurisdiction under oral K breach (failure to pay $ that are due in FL)- already have 3 torts Pleaded jurisdictional facts sufficiently 1G - They failed to meet contractual terms MC Analysis - P spent a lot of time doing work for them Banco made initial contact and maintained a relationship w/ Celtic
Wendt v Horowitz - Supreme Court of FL - 2002 Facts / History Investors (FL residents) sued broker (FL) for sale of worthless notes, who pleaded 3d D - Horowitz and his law firm (MI) 3d D never set foot in FL, never solicited business in FL, never knowingly received compensation knowingly from a FL resident, however had telephone contacts based on representation for clients Broker's complaint must allege exactly what acts by 3d D would make him liable Negligent response to investigatory letter sent by FL authorities to Broker Negligent drafting of loan agreements knowing it was for FL residents 3d D filed motion to dismiss based on lack of PJ Denied by TC, appealed DCA reversed / remanded - for 3d D - no jurisdiction b/c not physically present in FL Issue Whether acts by 3d D constitute committing a tortious act in the state (1b of LA Stat) Finding "On behalf of client" his communications were directed to FL and were w/ FL residents Making phone calls and letters to FL from outside of state constitutes committing tortious act if COA arises from those communications. Interpreted letters coming into FL as "an act in FL" Physical presence is not necessarily required for 1b of this Stat Can occur through phone, e-mail, but COA must AOO from this contact and this connection is necessary Do not expressly determine whether there is jurisdiction in this case (remanded to DCA to find whether this complaint states a COA) Dissent Tortious acts were not committed in FL Doesn't find a conflict - "I read nothing in the opinion to prevent 5th DCA to reach same result on remand" Other case was about libel/slander over phone and here its about malpractice So What? Whether injury alone in state satisfies "committing a tortious act in the state" 2nd DCA has contradicted itself on it - maybe its based on facts Although we hold that telephonic, electronic, or written communications into Florida may form the basis for personal jurisdiction under section 48.193(1)(b) if the alleged cause of action arises from the communications, we expressly do not determine whether personal jurisdiction under section 48.193(1)(b) has been established in this case
Travel Opp v Walter Karl - 4th DCA - 1999 Facts Buyer sues seller and infomercial broadcaster for breach of K (G)
