| Date issued: 07/05/2011 | |
| 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 2011-11
July 5, 2011
United Stated Supreme Court
Turner v. Rogers 10-10
6/20/11
Although defendant was not entitled to representation in a civil contempt hearing, he was entitled to some alternative procedure to protect his due process rights.
A South Carolina family court held Turner in contempt for failing to pay child support. He was sentenced to jail time. Turner challenged the contempt order on the basis of due process because he was unrepresented by counsel. After he completed his sentence, the South Carolina Supreme Court determined that Turner was not entitled to counsel at a civil contempt hearing.
The United States Supreme Court determined that even though Turner did not have an automatic right to counsel, he was at least entitled to some alternative procedure where he was notified that ability to pay would be a critical issue at the hearing. He was also entitled to a mechanism for eliciting his financial information such as a completed financial disclosure form.
10-10 UScv Turner v Rogers.pdf
Florida Supreme Court
Wendt v. LaCosta Beach Resort Condominium Association, Inc. SC09-1914
6/9/11
Section 607.0850, Florida Statutes, authorizes corporate directors to seek indemnification from the corporation for actions brought against the directors by the corporation itself.
LaCosta Beach Club Resort brought suit against two of its directors for breach of fiduciary duty. After a verdict in favor of LaCosta, the directors moved for a new trial and also brought an action for indemnification pursuant to F. S. 607.0850 which governs when corporate directors and agents are entitled to indemnification. The trial court dismissed the indemnification action with prejudice. The Fourth District affirmed the trial court decision.
The question before the Florida Supreme Court was whether the indemnification statute applies to cases where the corporation sues its directors. After reviewing the plain meaning of the statute, the Court found that section 607.0850 “does not prevent indemnification of directors when the underlying proceeding is between the corporation and its directors.” The Court concluded by quashing the Fourth District opinion and remanding for further proceedings.
SC09-1914 FSCcv Wendt v La Costa.doc
Second District Court of Appeal
Department of Revenue v. School Board of Hillsborough County 2D10-3882
6/10/11
The Court applied the basic rules of statutory interpretation to determine that when the County made an untimely request for refund for motor fuel taxes, it was not entitled to the refund.
The School Board of Hillsborough County sued the Department of Revenue when it was denied a refund for motor fuel taxes pursuant to section 206.41, Florida Statutes. The Department denied the refund requests because they were not filed in a timely fashion. The circuit court found that the time requirements of section 206.41 did not apply to the School Board and then granted a summary judgment in favor of the School Board.
The Second District found that the circuit court had erred in its interpretation of section 206.41 when the circuit court made an artificial distinction to distinguish between the “return” of funds from the “refund” of funds. The Court said, “The phrases "shall be returned" and "is entitled to a refund" are used interchangeably throughout section 206.41.” The Court went on to say, “A ‘basic rule of statutory construction requires a court to avoid a literal interpretation that would result in an absurd or ridiculous conclusion.’… Here, the circuit court's interpretation of subsections 206.41(4)-(5) would allow for an automatic return of the funds to the School Board at any time whatsoever. This interpretation is not plausible given the plain meaning of the statute.”
2D10-3882 2dcacv DOR v School Board.doc
Christopher Forrest and the Forrest Law Group v. Citi Residential Lending, Inc. 2D10-5667
6/29/11
Party could not post information received strictly from the discovery process on YouTube.
The parties in this case were in a dispute over a mortgage disclosure. During discovery the Forrest Law Group took the video depositions employees of the plaintiff title company. The depositions were taken to ascertain if the mortgages had been properly assigned to the plaintiffs. Forrest later posted the videotapes on the YouTube before trial and the title company moved for a temporary injunction. The trial court granted the temporary injunction.
Forrest appealed, arguing that the injunction was an unconstitutional prior restraint on their right to free speech. The Second District rejected Forrest’s argument. Relying on U. S. Supreme Court precedent, the Court said, “Significantly, the Appellants used the discovery process and the subpoena power of the court to obtain the video depositions at issue here. And the individual Appellees have demonstrated that the posting of those depositions on the Internet infringes upon their privacy rights and has already subjected them to harassment. We acknowledge that the Appellees sought to block the depositions entirely rather than seeking a protective order against the posting of the depositions on the Internet and other dissemination of the depositions. However, the transcript of the hearing on the motion for protective order leaves little doubt that the circuit court allowed the depositions to go forward without restriction based on representations that gave the conscientious and experienced circuit judge an incomplete account of Mr. Forrest's intended use of them. In our view, these disquieting circumstances invoke the same substantial interest in preventing the abuse of the circuit court's processes that the United States Supreme Court recognized in Seattle Times.”
2D10-5667 2dcacv Forrest v Citi.doc
Fourth District Court of Appeal
Florida Department of Revenue v. Seminole Tribe of Florida 4D10-456
6/22/11
The Seminole Tribe is required to pay taxes on fuel bought outside of the reservation.
The Seminole Tribe sued the Department of Revenue for sales and excise taxes for fuel purchased off the reservation and tribal lands but used for the performance of Tribal functions. The Department filed an answer with a number of affirmative defenses. The trial court eventually granted the Seminole motion for summary judgment.
The Fourth District reversed the trial court saying, “Off-reservation transactions, even by tribal members, are susceptible of taxation without running afoul of the Indian Commerce Clause…We find the off-reservation purchase is taxable notwithstanding that the legal incidence of the tax falls on a tribal purchaser. As DOR argues, it would be impossible to track the use of the fuel on and off the tribal lands. The Tribe reaps the benefit of untaxed fuel when it is purchased on tribal lands even if the fuel is used off of tribal lands. Common sense suggests that the tax should correspondingly be imposed if the fuel is purchased off the reservation regardless of where it is consumed.
4D10-456 4dcacv DOR v Seminole.doc
North Ridge Electric, Inc v. City of Sunrise 4D10-2059
6/29/11
When a declaratory judgment for an individual plaintiff will provide a sufficient remedy to other plaintiffs, class certification is not necessary.
Contractors brought a declaratory action against the City for excessive building permits and excessive fees. They also moved for class certification. The trial court denied class certification.
The Fourth District affirmed stating, “We affirm, concluding that the court did not abuse its discretion in determining that class action status was not necessary to effectuate the relief to which plaintiffs might be entitled under the statute, as relief by one declaratory judgment action would entitle all others similarly situated to relief also.”
4D10-2059 4dcacv North Ridge v Sunrise.doc
Brown v. City of Vero Beach 4D10-1903
6/29/11
The liability for cities and counties for injury resulting from a rip tide is limited by statute.
A fourteen year old died in a rip current while he was trying to save his friend. His parents brought a wrongful death suit against the City of Vero Beach for failure to warn of a dangerous condition. The trial court dismissed the action pursuant to section 380.276(6) which limits the liability of cities and counties for deaths caused by rip tides.
The Fourth District affirmed the trial court on appeal. The Court said, “The language of this subsection is clear and unambiguous, such that the plain meaning should be used to determine legislative intent. This subsection begins by acknowledging the legislature’s awareness that Florida’s coast is subjected to constantly changing surf and other naturally occurring conditions that constitute an inherent danger in the coastal areas of the state. Because of this inherent danger, the statute protects government entities and their employees and agents from liability for injuries or death caused by changing surf or any other naturally occurring conditions along Florida’s coastal areas. This protection from liability is given to government entities regardless of whether or not there are warning flags or notification signs displayed. Thus, on its face, the statute clearly and unambiguously shows the legislature’s intent to limit the statutory waiver of sovereign immunity it created in section 768.28, Florida Statutes.”
4D10-1903 4dcacr Brown.docx
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