Monday brought opinions from the First DCA and ten more Hitchcock orders from the Florida Supreme Court. The FSC gave us ten more on Tuesday.
Hitchcock orders keep coming
The Florida Supreme Court released ten Hitchcock orders on Friday, ten on Monday, and ten on Tuesday. (Officially, the court calls these “opinions” and not “orders,” but we’re calling them orders because they are boilerplate messages with the names and dates changed.) Recall that a Hitchcock order applies to death row inmates whose sentences were final before June 24, 2002, when SCOTUS decided Ring v. Arizona. Under Hitchcock, It doesn’t matter whether or not there was a unanimous jury recommendation for the death sentence, Hurst doesn’t apply to cases that were final before Ring. Now that SCOTUS denied review in Hitchcock, the Florida Supreme Court is churning out orders denying relief under Hitchcock, to the tune of ten-a-day.
In one case, the jury’s recommendation vote isn’t even on the record. That sentence became final in 1984. We’re up to 60 Hitchcock orders since last Monday, January 22.
This porridge is just right
The First DCA had a tobacco case in which the trial judge awarded nearly $1M in attorneys’ fees and costs to the plaintiff after trial because the tobacco companies denied the plaintiff’s requests for admissions during discovery and the court agreed with the plaintiff that they lacked a “good reason” for failing to admit facts that were (presumably) detrimental to their defense. The First DCA reversed, explaining that this would turn Rule 1.380 of the Florida Rules of Civil Procedure into a substantive prevailing party fee provision. That’s not what the rule’s designed to do, according to the court.
Judge Bilbrey concurred, writing separately to describe the fog surrounding when and how Rule 1.380 applies:
[F]or an improperly denied request for admission to be sanctionable, it must fall into a Goldilocks zone of being germane to an issue being litigated, but not so important as to be a central issue. In my view, the caselaw and rule do not give sufficient boundaries of what is sanctionable.
Bilbrey asked that the Florida Bar’s rules committee clarify the issue. Will they call this the Goldilocks Rule in the comments?
Dissent in the Districts!
Also at the First DCA on Monday, Judge Winsor dissented in Bank of America v. Mirabella Owners’ Association, a case (actually, two cases) involving a drawn-out mortgage foreclosure with an intervening condominium lien foreclosure. Winsor would have found that the lis pendens from the mortgage foreclosure case barred the association from recording a claim of lien and filing a lien foreclosure lawsuit during the bank’s case (lis pendens = fancy Latin term for a document filed in the county records putting everyone on notice that a lawsuit is pending against real property). That would have conflicted with last year’s Fourth DCA case, Jallali v. Knightsbridge Village HOA. But the majority followed Jallali, avoiding the conflict.
We’ll spare you the details, but folks in the Real Property Probate and Trust Law section of the Florida Bar will be interested in reading it. We’ll keep an eye out for a Second, Third, or Fifth DCA decision that picks up on Judge Winsor’s dissent and certifies conflict with Jallali and yesterday’s case.
Wednesday opinion watch
Today we expect opinions from the Second, Third, and Fourth DCAs. Don’t be surprised to see more out-of-calendar opinions (Hitchcock orders) from the FSC, or opinions from the First DCA. We’ll tweet what we see, @fla_ct_rev.