| Date issued: 05/10/2011 | |
| 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 2011-9
May 10, 2011
United States Supreme Court
AT&T Mobility v. Concepcion 09-893
4/27/11
The Federal Arbitration Act preempts California law addressing unconscionable arbitration clauses.
The Concepcions took advantage of a “free” phone offer from AT&T but were surprised when they were charged a sales tax on their “free” phone. They sued AT&T in federal district court for false advertising. AT&T moved to compel arbitration. The District Court denied the motion under California law, finding that the arbitration clause was unconscionable because it did not allow for class arbitration. The Ninth Circuit affirmed.
The United States Supreme Court reversed the Ninth Circuit. Finding that the Federal Arbitration Act pre-empted California law, the Court said, “Because it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ California’s Discover Bank rule is preempted by the FAA. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.”
 USSCTcv AT&T Mobility LLC v. Concepcion.pdf Florida Supreme Court Williams v. Oken SC10-92
5/5/11
Certiorari review is appropriate to determine whether a court has conducted an evidentiary inquiry required for malpractice suits but is not appropriate to determine the sufficiency of the evidence. Courts should avoid allowing common law certiorari to be used as a second appeal.
Williams visited an emergency room for chest pain, was treated by Dr. Oken, a cardiologist, but then soon after suffered a heart attack. Williams sued Dr. Oken for malpractice. In compliance with the presuit requirements of the Florida Statutes, Williams submitted the affidavit and also a second supplemental affidavit of Dr. Foster, an emergency room physician, opining that malpractice had occurred. Dr. Oken challenged the sufficiency of Dr. Foster’s credentials to evaluate whether the cardiologist had acted properly. The trial court determined that Dr. Foster was qualified. Dr. Oken file a petition for certiorari in the First District. Finding that the trial court had failed to follow the essential requirements of law, the First District granted certiorari and quashed the trial court order.
The Florida Supreme Court determined that the First District had granted certiorari inappropriately. The Court said, “While ensuring that an expert meets the statutory presuit requirements is clearly an important consideration in medical malpractice cases, in the instant case, the First District exceeded its authority by granting certiorari to review whether Williams’ expert met those qualifications. Florida courts have permitted certiorari review solely to ensure that the procedural aspects of the presuit requirements are met. The First District would have been correct in granting certiorari review to determine whether Williams complied with the procedural presuit requirements in terms of submitting a corroborating affidavit. However, we conclude that the First District exceeded the scope of certiorari review when it granted the petition to determine whether Dr. Foster was a qualified expert. As articulated in the dissent, the First District should have instead dismissed the petition and remanded the case to the trial court for an evidentiary hearing on whether Dr. Foster was qualified as an expert because it appears that ‘there is no doubt that Appellee complied with the presuit requirements of chapter 766; not one step was omitted.’”
 FSCcv Williams v Oken.doc
First District Court of Appeal
Atwater v. City of Weston 1D10-5094
5/2/11
The President of the Senate, the Speaker of the House, and the Governor were not proper defendants to a constitutional challenge because they were not the public official responsible for enforcing the law.
Cities and counties brought an action to have a growth management law declared unconstitutional. The defendants, including Governor Crist, the President of the Senate and the Speaker of the House, moved to dismiss, arguing that they were not the proper parties. The trial court denied the motion to dismiss and found the law to be unconstitutional.
The First District reversed the trial court. The Court found that the Department of Community Affairs was the only proper defendant because it was the agency responsible for enforcing the growth management laws. The Court said, “But the declaratory action at issue here does not involve a broad constitutional duty of the State implicating specific responsibilities of the defendants. Nor does the lawsuit involve any issue in which the defendants have an actual, cognizable interest. Rather, the lawsuit simply challenges the constitutionality of a piece of legislation governing growth management. As such, the Senate President, the Speaker of the House of Representatives and the Governor clearly are not proper parties to the action.
 1dcacv Atwater v Weston.pdf
See also Haridopolis v. Alachua County 1D10-6433
5/9/11
 1dcacv Haridoplos v Alachua.pdf
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