Office of Attorney General Pam Bondi
Appellate Alert
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Date issued: 03/31/2015
Editor: Betsy Stupski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
Appellate Alert 2015-3
March 31, 2015
Eleventh Circuit Court of Appeals
Florida Supreme Court
Koster v. Lance SC13-1592/5/15
Proper service is governed by section 48.21, Florida Statute; therefore, Plaintiff was not required to include specific language from section 48.31, Florida Statutes.
The Plaintiff Lance filed a complaint and served the Defendant Koster. After a default judgment Koster sought to set aside the default and sought to quash the service and return of service as defective on its face. The trial court determined that Koster did not meet the clear and convincing standard necessary to rebut the presumption that service was proper and denied his motion.
On appeal Koster argued that the return of service was defective because it did not list the elements of “manner of service” laid out in Section 48.031(a)(1). The Second District rejected Koster’s argument, stating “But the determination that a return is regular on its face, no matter what type of service, is governed only by the language of section 48.21.
The Florida Supreme Court affirmed the Second District, stating, “ However the language in section 48.21 does not expressly incorporate section 48.31, nor does it refer to the factors contained within section 48.031(1)(a). Section 48.21 clearly states the information that shall be included in a return or service. Thus, section 48.21 cannot be strictly read to require that the factors in section 48.031(1)(a) be specified.”
SC13-159
Sanislo v. Give Kids the World SC12-2409
2/12/15
If otherwise clearly stated, an exculpatory clause is not required to use the terms “negligence” or “negligent acts” in order to be valid.
Sanislo attended an event sponsored by Give Kids the World with her sick child. She signed two documents containing an exculpatory clauses which released Give the Kids the World from liability. During the course of the event, Sanislo was injured when a platform designed for wheel chairs collapsed. Sanislo sued the organization for negligence. Give the Kids the World filed a motion for summary judgment, arguing that they could not be held liable because of the exculpatory clauses. The trial court denied the motion and the case went to trial. Eventually a jury awarded significant damages to Sanislo.
Give Kids the World appealed and the Fifth District reversed, finding that the exculpatory clause barred the negligence action even though the clause did not expressly reference “negligent acts of the Defendant”.
The Florida Supreme Court agreed with the Fifth District overturning decisions in the First, Second, Third and Fourth Districts. The Court said, “… we conclude that the absence of the terms ‘negligence’ or ‘negligent act” in an exculpatory clause does not render the agreement per se ineffective to bar negligence action.”
SC12-2409
First District Court of Appeal
Apthorp v. Detzner 1D14-3592
2/23/15
Since no public official had filed for a blind trust, Plaintiff could not proceed with his action regarding public officials and blind trusts because there was no justiciable controversy.
The trial court did not have jurisdiction because there was no actual controversy.
Apthorp brought a declaratory to challenge Florida’s blind trust law which permits public officials to put their assets in a blind trust in order to avoid conflict of interest situations as they make decisions for the State. Apthorp argued that the statute violated the public disclosure provisions on the Florida Constitution but at the time of his challenge no public official had filed papers to use a blind trust. The trial court entered a decretory judgment finding that the blind trust law was constitutional.
The First District reversed and remanded the trial court decision, finding that because there was no public official’s blind trust at issue, there was no actual controversy. The Court said, “Here Apthorp fails to present or even allege a justiciable controversy sufficient to maintain an action for a declaratory judgment. Not only has no public official officer ever used the type of qualified blind trust authorized by the statute Apthorp is challenging, but his brief concedes that he knows of no constitutional officer or candidate who incorporated a blind trust in the most recent financial statements” The Court concluded by saying, “ Because Apthorp failed to present a justiciable controversy and because the trial court lacked jurisdiction to issue the declaratory judgment, we dismiss the appeal, vacate the final judgment below, and remand to the trial court with directions to dismiss Apthorp’s complaint with prejudice.
1D14-3592
United Faculty of Florida v. Florida State Board of Education 1D14-188
2/16/188
Rule governing tenure contracts was properly promulgated.
Statutory framework authorizing the Florida Board of Education to promulgate rules contained sufficient standards and guidelines to satisfy the nondelegation doctrine.
The United Faculty of Florida (UFF) appealed a final administrative order that dismissed its petition to challenge a FAC rule promulgated by the Florida Board of Education. The UFF argued that the rule which addressed faculty continuing contracts (tenure) was an invalid exercise of delegated authority. They also argued that the statutory framework violated the nondelegation provisions of the Florida Constitution.
The First District referenced two sections in Chapter 1012 and one section in Chapter 1001 to find that the Florida Legislature did make a specific grant of authority to engage in rule-making for faculty contracts. The Court also found that the statutory framework did not violate the non delegation doctrine. The Court said, “Here, the ‘statutory framework’ pursuant to which the challenged rule was adopted reflects that the Legislature made the fundamental policy decision that college instructional employees are entitled to contracts, subject to terms and conditions established by the Board concerning ‘tenure’ and other matters. See §§ 1012.83(1), 1012.855(1)(a), Fla. Stat. And, contrary to UFF’s argument, the ‘statutory framework’ contains sufficient standards and guidelines to satisfy the nondelegation doctrine.”
1D14-3592
Second District Court of Appeal
Atwater v. Brito 2D12-32863/13/15
The trial court did not have the authority to order CFO Atwater to appear.
This case involved unclaimed funds that were moved from the court’s registry to the unclaimed property division of the CFO. The Plaintiff, a recovery service company, brought an action to require the CFO to disperse funds but did not follow procedures set out in the Florida Statutes. The circuit court ordered the CFO to release the funds and also ordered him to be held in contempt for failing to do so. The CFO in turn filed a writ of prohibition and argued that the circuit court had exceeded its jurisdiction.
The Court explained the statutes governing the release of unclaimed property and concluded that the court had exceeded its authority in requiring the CFO to appear. The Court said, “Our reading of section 43.19 and chapter 717 corresponds with the directive of Article IV, section 4(c) of the Florida Constitution that the CFO ‘shall settle and approve accounts against the state’ and ‘keep all state funds and securities.”
2D12-3286
Third District Court of Appeal
Gaberlavage v. Miami-Dade County 3D12-13
2/25/15
Terminated employee was precluded from bringing a second circuit court action because he could have brought up the claims in his administrative proceeding.
Gaberlavage, a correctional officer, brought an administrative action under the County’s civil service rules, challenging his termination. During the proceeding his attorney took testimony from female officers who received lighter discipline for similar conduct. However the Gaberlavage’s attorney never asked the hearing officer to consider the disparate treatment between Gaberlavage and his female co-workers. The hearing officer ultimately recommended upholding the discharge. Then the County Manager approved the hearing officer’s recommendation. Gaberlavage appealed the administrative decision to the appellate division of the circuit court. Soon after the circuit court affirmed the termination decision, Gaberlavage filed a new action in circuit claiming gender discrimination because two female officers received suspensions instead of termination for similar conduct. The circuit court issued a summary judgment in favor of the County. Gaberlavage appealed.
The Third District affirmed the circuit court. The Court found that Gaberlage should have brought up his claim of disparate treatment in the administrative proceeding. The Court said, “ A later determination by a different factfinder that the sanction of termination was unduly harsh, constituting unlawful discrimination on the basis of gender; would squarely inconsistent with the rulings by the first factfinder and the appellate division of the circuit court. That is why the doctrine of res judicata ‘bars relitigation in a subsequent cause of action not only of claims raised, but also claims that could have been raised.’”
3D12-13
Fifth District Court of Appeal
Oleckna v. Daytona Discount Pharmacy 5D13-30572/6/13
Pharmacist owed a duty greater than just filling unusually frequent prescriptions accurately.
Dr. Owen Hunt treated Steven Porter and issued a number of prescriptions Oxycodone, Xanax and other narcotics. Eventually Steven Porter died of an overdose. His personal representative brought a negligence action against the pharmacy that filled all of the prescriptions. The Defendant pharmacy brought a motion to dismiss, arguing that the pharmacist did not owe a duty to customers beyond accurately filling prescriptions that came from physicians. The trial court found in favor of the pharmacy.
The Fifth District reversed the trial court, , a pharmacist’s duty to use due and proper care in filling a prescription extends beyond simply following the prescribing physician’s directions. In the instant case, accepting the allegations of the amended complaint as true, Pharmacy filled without question, numerous prescriptions that were so close together that Pharmacy should have been put on notice that Mr. Porter was getting too many pills within too short a period…”
5D13-3057