State of Florida
Office of Attorney General Ashley Moody

Appellate Alert

Date issued: 11/19/2013
Editor: Betsy Stupski

Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.

Appellate Alert 2013-13
November 19, 2013

Florida Supreme Court
D.M.T. v. T. M. H. SC12-261
11/7/13

Women who were partners and showed intentions of parenting a child together both had constitutional rights to continue parenting the child even though they were no longer in a committed relationship.

The custody dispute in this case involved two women who were partners in a long term relationship and decided to have a child. One woman provided the egg for invitro fertilization. The other woman carried the egg and gave birth to a child. Several years later when their relationship disintegrated, they became involved in a custody dispute. The woman who had given birth to the child had left with the child and claimed that the other partner had no parental rights. After noting that the women had been in a committed relationship and showed intentions of parenting the child together, the Florida Supreme Court found that both women had a constitutional right to parent the child. The Court said, “The due process guarantees in the Florida and United States Constitutions and the privacy provision of the Florida Constitution do not permit the State to deprive this biological mother of parental rights where she was an intended parent and actually established a parental relationship with the child.”
SC12-261
FSCcv DMT v TMH.doc FSCcv DMT v TMH.doc

Friedrich v. Fetterman and Assc. SC11-2188
10/24/13

Since both parties presented expert testimony, the district court impermissibly reweighed the evidence when it found that the trial court should have directed a verdict.

Friedrich, the Plaintiff sat in a chair owned by the Defendant law firm of Fetterman and Associates. When the char collapsed Friedrich was injured. And the law firm for negligence. At trial both parties presented experts. Friedrich’s expert stated that the defect in the chair would have been discovered with a proper inspection. Fetterman’s expert testified that the only way to test the chair was to sit in it. At the end of the trial Fetterman moved for a directed verdict but was denied. The jury eventually found for Friedrich and Fetterman was ordered to pay a substantial amount to compensate for Friedrich’s injuries. Fetterman appealed and the Fourth District found that the trial court had erred by not granting Fetterman’s motion for a directed verdict. The Court found that Friedrich had failed to demonstrate that his injuries were caused by Fetterman’s negligence The Fourth District remanded with instructions for a directed verdict in favor of Fetterman.

Friedrich then appealed to the Florida Supreme Court. In its analysis the Supreme Court noted that both parties had presented expert testimony regarding causation and whether or not defendant’s negligence most likely caused the plaintiff’s injuries. The Court went on to say that a directed verdict is improper when there is conflicting testimony. The Supreme Court reversed the Fourth District stating that the Fourth District had impermissibly reweighed the evidence.
SC11-2188FSCcv Friedrich v Fetterman and Associates.doc FSCcv Friedrich v Fetterman and Associates.doc

First District Court of Appeal

Office of Insurance Regulation v. Secure Enterprises 1D12-5521
10/11/13

Commercial vendor did not have standing to challenge rule because loss of sales did not qualify as an injury in fact resulting from the rule. In addition vendor’s interest was not in the zone of interest that the statute was intended to protect.

Plaintiff challenged the authority of the Office of Insurance Regulation (OIR) to create a rule and forms that regulated insurance credits for wind damage resistant improvements. They claimed that OIR exceeded their authority given in section 627.0629, Florida Statutes. OIR moved to dismiss, arguing that Plaintiffs lacked standing to challenge the rule and forms. In turn Plaintiffs argued that they had suffered economic damage as a result of the rule and forms that addressed improvements to windows and doors but did include not garage door glazes. As a result of omitting garage door glazes, Plaintiff's sales decreased significantly. The ALJ found that the Plaintiff had standing to bring the rule challenge and ultimately found that the rule was an invalid exercise of authority.

OIR challenged the ALJ order before the First District. The First District issued a thorough and instructive opinion on when economic damages qualify as injury in fact. The Court acknowledged that sometimes economic injury would qualify as injury in fact. However in this case the Court found that the rules themselves did not result in immediate injury to the Plaintiff. The Court also said that the Plaintiffs interest was not within the zone of interest that the statute was intended to protect. The statute was intended to provide savings consumers who install wind damage mitigation improvements. There was nothing in the statute regarding increase of sales to commercial vendors.
1D12-5521
1dcacv Office of Insurance Regulation v Secure Enterprises.pdf 1dcacv Office of Insurance Regulation v Secure Enterprises.pdf

Morris Publishing v. Florida Department of Education 1D13-1376
11/12/13

Although teachers’ “valued added scores” were used as a component of teachers’ evaluations, the scores themselves were subject to disclosure pursuant to Florida public records law.

The Department of Education (DOE) uses, among other items, student FCAT scores to assess teachers. The Department reviews expected FCAT scores and actual scores to give teachers a “vale added score” When the actual FCAT score exceeds the expected score, a teacher has a positive ‘value added measurement” (VAM). Morris Publishing made a public records request for VAM scores. DOE denied the request, arguing that the scores were exempt under the Florida Statute that exempted teacher evaluations until the end of the school year. Morris Publishing then filed an emergency petition in the circuit court. , Finding that the records were exempt, the trial court denied the petition, and Morris Publishing appealed.

The First District reversed the trial court’s finding. The Court said, “Furthermore, the VAM data, collected and collated by DOE, is not part of a given teacher’s evaluation until the data is sent to a teacher’s school system, which by statute is the agency which prepares the evaluation. Subsection 1012.34(3) (a) provides that a classroom teacher’s evaluation must be conducted at least once a year. This statute also provides that the assessment criteria in the evaluation additionally must include assessment of a teacher’s instructional practice based on evaluation criteria to be used when observing classroom teachers, instructional leadership, and professional and job responsibilities as adopted by the State Board of Education and local school boards. The VAM data is thus only one part of a larger spectrum of criteria by which a public school teacher is evaluated; it is not, by itself, the ‘employee evaluation.’ Had the Legislature wanted any matter material to a teacher’s evaluation to be exempt from disclosure, the Legislature would have exempted personnel files as a whole.”
1dcacv Morris Publishing Group v Department of Education.pdf 1dcacv Morris Publishing Group v Department of Education.pdf

Second District Court of Appeal

Florida Department of Revenue v. S.B. 2D12-1278
10/23/13

A cause of action should not be dismissed with prejudice for the failure to join an indispensable party.

The Department of Revenue brought action to establish paternity and child support. The trial court dismissed the action with prejudice because the Department failed to join the child's legal father as an indispensable party. The Department then appealed.

On appeal the Department argued that the case should not have been dismissed with prejudice because the failure to add an indispensable party is a procedural error and not one on the merits. Second District reversed the trial court. In its analysis the Court stated, "Further, an order dismissing a pleading for lack of an indispensable party is not merits adjudication...A dismissal for failing to join an indispensable party should be without prejudice, unless the pleader refuses to amend to add a party necessary for a determination on the merits."
2D12-1278
2dcacv Fl Department of Revenue v SB.doc 2dcacv Fl Department of Revenue v SB.doc
Fourth District Court of Appeal

McClure v. Publix Super Markets, Inc. 4D13-1220
11/6/13

Trial court did not err when it found that super market could wait until after it had deposed the slip and fall Plaintiff to produce the store security tape.

The Plaintiff slipped and fell in Publix. Subsequently she filed a negligence action against the super market. During discovery Plaintiff requested a copy of the store security video. Publix responded that they would not produce it until after they deposed the Plaintiff. The Plaintiff moved to compel but the trial court denied the motion. Plaintiff then sought certiorari relief from the Fourth District.

The Fourth District found that the trial court did not abuse its discretion in allowing Publix to wait until after they had deposed Plaintiff to produce the store video.
4D13-1220
4dcacv McClure v Publix Super Markets.docx 4dcacv McClure v Publix Super Markets.docx

Davis v. National Collegiate Student Loan Trust 2004-2 4D12-4503
10/30/13

Trial court should have conducted an evidentiary hearing to determine whether service of process had been conducted properly.

Defendant Davis moved to quash service of process, arguing that service was not conducted properly and the summons was irregular on its face. The trial court denied her motion without an evidentiary hearing.

The Fourth District determined that the trial court should have conducted an evidentiary hearing. The Court said, “we explained that ‘neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing’… Where the allegations contained in the motion to quash service of process and the supporting affidavit would establish a failure to effect valid service, an evidentiary hearing is required…Here, Davis alleged in her affidavit that the summons and complaint were left on the doorstep of her apartment and that neither she nor a person residing in her home was served. Although there are exceptions, service is generally improper where the summons and complaint are left at the defendant’s door. Because Davis contested the veracity of the statements in the return of service, an evidentiary hearing was required. Because Davis contested the veracity of the statements in the return of service, an evidentiary hearing was required.”
4D12-4503
4dcacv Davis v National Collegiate Student Loan Trust.docx 4dcacv Davis v National Collegiate Student Loan Trust.docx

 
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