Monday, December 15, 2014

Supreme Court: Notice of Removal Requires Only A Short and Plain Statement Regarding the Basis for Jurisdiction

In Dart Cherokee Basin Operating Co. v. Owens, a divided United States Supreme Court answered one question regarding the evidence needed to sustain a removal to federal court. The question was stated by the Court as follows:
To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? 
"That is the single question argued here and below by the parties and the issue on which we granted review,” and to answer that question the Court stated:
The answer, we hold, is supplied by the removal statute itself.  A statement “short and plain” need not contain evidentiary submissions.
(emphasis supplied). 

As for the comment above regarding it being a divided Court, the concurring and dissenting justices are shown below:
  • GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, and SOTOMAYOR, JJ., joined.
  • SCALIA, J., filed a dissenting opinion, in which KENNEDY and KAGAN, JJ., joined, and in which THOMAS, J., joined as to all but the final sentence.
  • THOMAS, J., filed a dissenting opinion.

Wednesday, November 26, 2014

Fourth District Sanctions Counsel For Failing To Confess Error on Appeal

In Lieberman v. Lieberman (4D14-509), the Fourth District again explained what should be obvious: you have an obligation to concede error if controlling caselaw requires a reversal. In this case that did not happen. The court first discussed the merits of the petition for writ of certiorari. Relying upon “Rule Regulating the Florida Bar 4-3.7(a) which states that ‘[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client . . . .’”, the trial court disqualified the former husbands new counsel, which also happened to be his new wife. 

After noting that “certiorari jurisdiction lies to review an order disqualifying counsel from representing a client at trial,” the court concluded "that the order of disqualification departs from the essential requirements of law because it is not limited to Ferrer’s participation during the contempt hearing. As is well established by numerous Florida courts, the fact that Ferrer was a potentially necessary witness at the contempt hearing would not prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings.”

In this case, that holding did not end the court’s opinion. The court continued as follows:
Under normal circumstances, we would conclude this opinion by simply granting the petition and quashing the trial court’s order of disqualification and therein recognize that the order of disqualification was impermissibly overbroad. However, the actions of counsel for the former wife, Kenneth Kaplan, have transformed this “simple” matter into an unnecessary and protracted controversy by the failure of Kaplan to acknowledge clear and unambiguous controlling law directly adverse to his client’s position. As such, we are compelled to take the extraordinary but not unprecedented step of awarding appellate attorney’s fees as a sanction. See Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 40-41 (Fla. 4th DCA 2011) (awarding appellate attorney’s fees as a sanction for a frivolous defense of a patently erroneoustrial court order), review denied, 90 So. 3d 272 (Fla. 2012); see also Crowley v. Crowley, 678 So. 2d 435, 440 (Fla. 4th DCA 1996) (recognizing that “attorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous . . . claims that contribute to unnecessary legal expenses, costs and a delay of the proceedings).  
Although the former husband did not cite KMS, Graves, or Cerillo, either here or in the trial court, Kaplan had an obligation to concede error based on those cases and the plain language of the rule.  
[A]ppellate counsel . . . has an independent [] obligation to present . . . the applicable law accurately and forthrightly. This will sometimes require appellate counsel to concede error where . . . the law is clearly contrary to the appellee’s position and no good-faith basis exists to argue that it should be changed.” 

Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005). The trial court’s order of disqualification did not just prohibit Ferrer from representing the former husband at the contempt hearing; it generally prohibited her from any further representation of the former husband. The disqualification order is contrary to the plain terms of rule 4-3.7(a), titled “When Lawyer May Testify,” which prohibits the lawyer from acting “as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.” R. Regulating Fla. Bar 4-3.7(a) (emphasis added). The rule does not support general disqualification of counsel. 


In this case, there was no legal basis for disqualifying Ferrer from representing the former husband in any proceedings subsequent to the contempt hearing. Therefore, the former wife’s counsel, Mr. Kaplan, should have confessed error as to the trial court’s general order of disqualification. Failure to do so was a self-evident violation of counsel’s duty to disclose legal authority adverse to his client’s legal position and argument. R. Regulating Fla. Bar 4-3.3(a)(3); Dilallo ex rel. Dilallo v. Riding Safely, Inc., 687 So. 2d 353, 355 (Fla. 4th DCA 1997) (holding that rule 4-3.3(3) implies a duty to know and disclose adverse legal authority to the courts); see also R. Regulating Fla. Bar 4-3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”). 

Accordingly, we remand this matter to the trial court to assess the amount of appellate attorney’s fees to be imposed as sanction on the former wife for her counsel’s baseless defense in this proceeding. Santini, 65 So. 3d at 41.

Wednesday, November 19, 2014

Certiorari Requires Irreparable Harm

In Stockinger, et al v. Zeilberger, et al (3D14-550), the Third District dismissed a petition for writ of certiorari for lack of jurisdiction. The court stated explained the requirements for certiorari jurisdiction as follows:
To invoke this court’s power to issue a writ of certiorari, a petitioner for the writ must show that the challenged non-final order (1) departs from the essential requirements of law, (2) results in material injury for the remainder of the case, and (3) such injury is incapable of correction on post judgment appeal. [ ] These last two elements are sometimes referred to as irreparable harm. 
Internal citations have been removed. 

With regard to those requirements, the court stated that “there is a serious legal impediment to granting the writ in this case: Stockinger, Haider, and Kuhtreiber have not and cannot show irreparable harm at this stage of the proceeding.” 

"Certiorari review of non-final orders is a narrow remedy to be used in extraordinary circumstances. Certiorari is not a general license for appellate courts to closely supervise the day-to-day decision making of trial courts.” In this case, the court concluded that the petitioner had failed to establish (or allege) the existence of any irreparable harm.

In fact, “the order actually resolves with finality absolutely nothing. It forecloses nothing, terminates nothing, dismisses nothing, and sanctions no one.” Therefore, the petitioner had failed to establish irreparable harm which deprived the court of jurisdiction to grant the petition and issue the writ. 

Thursday, October 30, 2014

Trust Account Wire Receipts Are Not Privileged

In Sweetapple, Broeker & Varkas, P.L. v. Simmon (3D14-1543), the Third District addressed whether trust account wire receipts showing transfers to Sweetapple, Broeker & Varkas, P.L. (“the Firm”) are protected by the attorney-client privilege. The court described the general facts as follows:
After obtaining two judgments against one of the Firm’s clients, the Judgment Creditor discovered that the client transferred money to the Firm. The Judgment Creditor subpoenaed the Firm requesting documents reflecting any payment of sums into and out of the Firm’s trust account for the benefit of its client.  
The trial court held an in camera inspection and ordered the law firm to produce the records. The Third District agreed and concluded that "because this financial information is not privileged in the hands of the client, it is not privileged in the hands of the attorney." Therefore, the judgment creditor prevailed. 

On a procedural note, the court dismissed the petition as opposed to denying it, stating:
Because the records are not privileged, the Firm has failed to demonstrate that production of the documents would constitute irreparable harm. We therefore dismiss the petition for lack of jurisdiction. Bd. of Trs. of Internal ImprovementTrust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012) (“A finding that the petitioning party has suffered an irreparable harm that cannot be remedied on direct appeal is a condition precedent to invoking a district court’s certiorari jurisdiction.”) (citation and internal quotations omitted). 
Judge Logue wrote the opinion and was joined by Chief Judge Shepherd and Judge Emas. 

Florida Supreme Court Removes County Court Judge From Bench

Today in Inquiry Concerning a Judge, No. 11-550 RE: Judith W. Hawkins (No. SC12-2495), the Florida Supreme Court considered the recommendations of the Judicial Qualifications Commission with regard to "alleged violations of the Code of Judicial Conduct, Canons 1, 2A, 2B, 3A, 3B(2), 3B(4), 3B(7), 3B(8), 3C(1), 4D(1), and 5D(1), and violation of article V, section 13, of the Florida Constitution." The charges were described as follows:
The charges comprised five categories: I. use of judicial office to promote a private business, Gaza Road Ministries, in which Judge Hawkins was a speaker and a writer, having written and published a book titled “Old Stories, New Insights” based on biblical stories; II. failure to respect and comply with the law; III. failure to act in a manner promoting public confidence in the judiciary; IV. failure to devote full attention to her judicial office; and V. lack of candor with the Judicial Qualifications Commission (the Commission). 
The court gave "the findings and recommendations of the JQC great weight," but rejected the JQC's recommendation of serious sanctions short of removal. Noting the court's "constitutional responsibility ... to determine the appropriate sanction" and reminding of "the utmost importance of maintaining the integrity of the justice system," the court stated: 
For the reasons we explain, based on the violations found by the Hearing Panel which were supported by clear and convincing evidence, we conclude that removal from the bench is the only appropriate sanction in this case.
For the reasons set forth herein, we find, based on clear and convincing evidence, that Judge Judith W. Hawkins violated Canons 1, 2A, and 5D of the Code of Judicial Conduct, and that those violations cumulatively warrant the most severe sanction that we impose today. Accordingly, we hereby remove Leon County Judge Judith W. Hawkins from the office of county judge, effective when this decision becomes final. It is our hope that this decision will serve as a reminder to judges of their continuing obligation to personally observe the high standards of conduct mandated by the Code of Judicial Conduct, and to conduct themselves in all things in a manner that will demonstrate candor and preserve the integrity and independence of the judiciary.
As with any grouping of people, most won't need the reminder included at the end of the opinion.

The decision was unanimous, however, Justice Quince was recused.

Thursday, April 17, 2014

Florida Supreme Court: Pregnancy Discrimination Covered by Florida Civil Rights Act

In Delva v. The Continental Group, Inc. (SC12-2315), the Florida Supreme Court held that pregnancy discrimination is covered by the Florida Civil Rights Act. Justice Pariente wrote the majority opinion and was joined by Justices Quince, Canady, Labarga, and Perry. Justice Lewis concurred in the result. Chief Justice Polston wrote a dissenting opinion.

The fact that pregnancy discrimination is covered by a discrimination statute, on its face, is not a surprise. However, as noted by the majority opinion, an earlier opinion from the First District pointed out that: "In General Electric Company v. Gilbert, 429 U.S. 125 (1976), the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII [of the federal Civil Rights Act of 1964, upon which the FCRA was patterned]."

After the United States Supreme Court's decision in Gilbert, the United States Congress amended the federal civil rights act to specifically include pregnancy discrimination. The Florida Legislature also considered the issue after Gilbert but chose not to amend the statute. Therefore, two courts have held that pregnancy discrimination is not covered by the Florida Civil Rights Act (but, of course, still covered under the federal act). Delva v. Continental Group, Inc., 96 So. 3d 956, 957-958 (Fla. 3d DCA 2012); O’Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991). After O'Loughlin, but before Delva, the Fourth District had reached the opposite result. Carsillo v. City of Lake Worth, 995 So. 2d 1118, 1120 (Fla. 4th DCA 2008) 

In the opinion released today, the Florida Supreme Court rejected the interpretation by the First and Third District (and, I guess, also rejected the view of the United States Supreme Court), and agreed with the Fourth District's decision in Carsillo. The Florida Supreme Court held that we "embrace the common-sense reasoning of the Supreme Court of Massachusetts" [technically, the Supreme Judicial Court] in that court's 1978 opinion titled Mass. Elec. Co. v. Mass. Comm’n Against Discrimination, 375 N.E.2d 1192, 1198 (Mass. 1978), and agreed with the Fourth District's view that the intent of the legislature was that the statute be broadly interpreted. The majority stated that a contrary conclusion would "be plainly inconsistent with legislative intent, as expressed in the FCRA itself, that the FCRA 'shall be liberally construed' to further its purpose 'to secure for all individuals within the state freedom from discrimination because of . . . sex.' § 760.01(2)-(3), Fla. Stat."

Wednesday, March 26, 2014

Dismissal With Prejudice for Discovery Violations Reversed

In PNC Bank, N.A. v. Duque (4D12-1799), the Fourth District reversed a trial court's order dismissing a complaint with prejudice as a result of discovery violations. In this foreclosure action, the defendant served numerous discovery requests to which the plaintiff, allegedly, failed to respond. As a result, the defendant sought sanctions and the trial court dismissed the case with prejudice. The plaintiff filed a motion for rehearing directed to the dismissal, however, that motion was denied and the plaintiff appealed. On appeal, the court held:
We have reviewed the trial court’s order. While indicating that the court considered the six Kozel factors, the order lacked specific findings as to each. We do not condone the bank’s failure to comply with discovery and court orders; we feel the trial court’s frustration. But, as the bank argues, the homeowners made numerous confusing and cumulative discovery requests while failing to file a responsive pleading for two years. There was no evidence that the violations were caused by the bank itself. The homeowners suffered no prejudice, and the bank’s violations did not cause any significant problem with judicial administration.  

The law does not always provide a good roadmap for trial courts. In this area of sanctioning non-compliant parties, however, our supreme court has done just that. See Kozel, 629 So. 2d at 818. When the trial court fails to follow that roadmap, reversal is warranted. See Bank One, 873 So. 2d at 521–22. 

Tuesday, March 18, 2014

Fifth District Affirms and Issues Sanctions Order On Own Motion

In Badgley v. SunTrust Mortgage (5D13-2500), the Fifth District affirmed the trial court's sanction order and, sua sponte, ordered "order Badgley and her attorney to pay, in equal amounts, the reasonable attorneys' fees and costs incurred by Appellees in this appeal, pursuant to section 57.105(1), Florida Statutes." There were a number of issues raised on appeal and are generally described below:
In her first issue, she baldly asserts that dismissing a complaint prior to discovery violates due process of law. The law is to the contrary.
In her second and third issues, Badgley argues that the dismissal of her complaint with prejudice was error even though she had already amended the complaint once as a matter of right and her quiet title theory was legally unsupportable based on the alleged facts. She claimed her lenders created a cloud on her title by refusing to respond to her absurd demand of them to "prove" that she owed them money. Not only is there no legal basis to support such a claim, the attachments to the complaint clearly demonstrate, as Badgley later admitted, that she 'took a mortgage and got the money.'
In her fourth issue, Badgley claims Appellees' fee motion below was untimely filed after the dismissal judgment even though Appellees' motion for sanctions was timely filed before the judgment awarding fees.
Finally, Badgley disputes the sanction award even though similar complaints by plaintiffs represented by her attorney have been dismissed and have been the basis for sanctions.
In a footnote to the discussion of the second and third issue, the court described the claim that the lender created a cloud on title as follows: "Badgley sent Appellees a written demand to 'validate that an actual debt exists' by producing twenty-three separate categories of documents. The demand stated that if Appellees failed to produce the information requested in their next correspondence, they would 'be accepting my offer to provide pen pal services at $100,000.00 per correspondence.' It further notified Appellees that by 'failure to validate the alleged debt,"as demanded, they would tacitly agree to waive any and all claims against Badgley, would release her from any encumbrances clouding title to her property, and would be subject to a quiet title action.'" (Emphasis is mine).

Thursday, March 6, 2014

Florida Supreme Court: Unauthorized Immigrants Are Ineligible For Admission To the Florida Bar

In Florida Board of Bar Examiners Re: Questions as to Whether Undocumented Immigrants are Eligible for Admissions to the Florida Bar (SC11-2568), the Florida Supreme Court issued an opinion today holding that an unauthorized alien residing in the United States is not authorized to obtain a license to practice law. 

The court stated that the Florida Board of Bar Examiners "asks the Court whether Applicant and any future similarly situated applicants are eligible for admission to The Florida Bar. As explained below, we answer the question by holding that unauthorized immigrants are ineligible for admission to The Florida Bar." 

Notably, the Department of Justice filed briefs in the case and argued that federal law prohibited the issuance of a law license to an unlawful alien. The court stated that "the United States Department of Justice argues that federal statutes prohibit this Court from issuing a law license to an unlawfully present alien, citing 8 U.S.C. § 1621 (2012). The Department of Justice also cites the Personal Responsibility and Work Opportunity Reconciliation Act of 1996....." 

Justice Labarga filed a concurring opinion and stated: "I reluctantly concur with the majority decision rendering an otherwise qualified class of applicants ineligible to practice law in Florida simply on the basis of their immigration status, but I do so only because the present state of federal and Florida law compels me to reach such an inequitable conclusion." Justice Labarga also noted that:
Indeed, in many respects, Applicant’s life in the United States parallels my own. He and I were brought to this great nation as young children by our hardworking immigrant parents. We both learned to read, write, and speak the English language within a short period of time. We excelled scholastically and graduated from college and law school—Applicant from Florida State University and I from the University of Florida. Both of us were driven by the opportunities this great nation offered to realize the American dream. Sadly, however, here the similarities end and the perceptions of our accomplishments begin. When I arrived in the United States from Cuba in 1963, soon after the Cuban Missile Crisis—the height of the Cold War—my parents and I were perceived as defectors from a tyrannical communist regime. Thus, we were received with open arms, our arrival celebrated, and my path to citizenship and the legal profession unimpeded by public policy decisions. Applicant, however, who is perceived to be a defector from poverty, is viewed negatively because his family sought an opportunity for economic prosperity. It is this distinction of perception, a distinction that I cannot justify regarding admission to The Florida Bar, that is at the root of Applicant’s situation. Applicant is so near to realizing his goals yet so agonizingly far because, regrettably, unlike the California Legislature, the Florida Legislature has not exercised its considerable authority on this important question. Thus, only reluctantly do I concur with the majority decision. 
Justice Pariente concurred with Justice Labarga's concurring opinion.