Thursday, January 28, 2016

Court Where Lis Pendens Filed Obtains Exclusive Jurisdiction Over All Liens Until Judgment

In Jallali v. Knightsbridge Village Homeowners Association, Inc. (4D15-2036), the Fourth District again held that the court where a mortgagee files a lis pendens obtains exclusive jurisdiction over all liens on the property until final judgment. Therefore, the judgment entered in a case filed after the original lis pendens must be vacated.

The court stated:
In the present case, when the mortgagee filed its foreclosure action and recorded its notice of lis pendens in May 2007, the association had not yet recorded a notice of lis pendens with regard to its 2011 lien and 2012 foreclosure action....... 
Accordingly, based on section 48.23, Florida Statutes (2015), Quadomain, and the cases cited therein, we conclude that the final foreclosure judgment which the association obtained in the 2012 case was void because the trial court lacked jurisdiction at that time. Exclusive jurisdiction to foreclose on Jallali’s property was in the circuit court conducting the mortgagee’s foreclosure action in the 2007 case. Accordingly, we reverse the order denying Jallali’s motion to vacate final judgment of foreclosure.

Wednesday, January 27, 2016

Failure To Make Payment In Florida Does Not (Without More) Allow Court to Exercise Personal Jurisdiction

In Cornerstone Investment Funding v. Painted Post Group (4D15-1907), the Fourth District reviewed a trial court's order denying a motion to dismiss for lack of personal jurisdiction. The procedural history is somewhat unique but the holding is not. After conducting an evidentiary hearing, the trial judge "concluded that Post Group had established both jurisdictional facts and minimum contacts between Cornerstone and Florida sufficient to assert personal jurisdiction over Cornerstone."

The Fourth District noted that to satisfy the requirements of personal jurisdiction, you must satisfy a two-pronged test. Specifically, personal jurisdiction may be exercised only when:
(1) the complaint alleges facts that would subject the defendant to Florida’s “long- arm” statute, and (2) the defendant has sufficient “minimum contacts” to meet traditional notions of fair play and substantial justice such that the defendant could ‘“reasonably anticipate being haled into court’” due to its actions. Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 501 (Fla. 1989) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)); Henderson v. Elias, 56 So. 3d 86 (Fla. 4th DCA 2011). 
In this case, the plaintiff satisfied the first prong because "failure to pay on a contract requiring payment in Florida has been found sufficient to satisfy Florida’s long-arm statute conferring jurisdiction over breach of contract actions. Smith Architectural Grp., Inc. v. Dehaan, 867 So. 2d 434, 436 (Fla. 4th DCA 2004)."

However, the plaintiff failed to satisfy the second prong. The court stated:
The mere fact, however, that Cornerstone allegedly breached a contract by failing to make payments on the contract in Florida would not constitute sufficient minimum contacts with this state to satisfy due process. Taskey v. Burtis, 785 So. 2d 557, 559 (Fla. 4th DCA 2001) (“Factors that go into determining whether sufficient minimum contacts exist include the foreseeability that the defendant’s conduct will result in suit in the forum state and the defendant’s purposeful availment of the forum’s privileges and protections.”); Labry v. Whitney Nat’l Bank, 8 So. 3d 1239, 1241 (Fla. 1st DCA 2009); Ganiko v. Ganiko, 826 So. 2d 391, 394- 95 (Fla. 1st DCA 2002). As neither Post Group’s amended complaint nor Goldin’s hearing testimony showed that any act beyond repayment of the promissory note was required to be performed in Florida, Cornerstone does not have sufficient minimum contacts with this state to support the assertion of personal jurisdiction over it. 

Friday, January 22, 2016

Petition For Certiorari Denied Due to District Conflict

In The First Liberty Insurance Corp. v. O’Neill (4D14–2895), the Fourth District denied a petition for certiorari because the Fourth District had not decided the issue at the time of the trial court’s decision.

In this case, when the trial court entered the order the First District and the Fifth District had released conflicting decisions on the same issue. However, “at the time of the circuit court’s decisions, we had not addressed the issue of whether an insured, after obtaining a favorable result on its benefits claim, may amend the complaint to add a first-party bad faith claim instead of filing a new action on the bad faith claim.”

Therefore, because there was no clearly established law, the petition was denied. The court stated:
Given the lack of binding authority from this court on the underlying issue, and given the split of authority between our sister courts on the underlying issue, we cannot say that the circuit court’s apparent decision to follow the First District’s authority was a departure from the essential requirements of the law at the time of its decision. Thus, because of that procedural posture, we are compelled to deny the petition for writ of certiorari and not decide the underlying issue until a final appealable judgment is entered.

Thursday, December 31, 2015

The First Amendment Protections Afforded To A "Tattoo Establishment"

Is a city allowed to limit the number of tattoo establishments in a certain area? In Buehrle v. City of Key West (No. 14–15354), the Eleventh Circuit agreed with the district court that “tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction.”

The opinion, written by Judge Jill Pryor, includes a discussion about the protection to be afforded tattoos under the First Amendment and rejects an argument by the City that relied on “a number of district and state court decisions drawing a distinction between the process of creating a tattoo and the tattoo itself.” The court stated that “consistent with the Supreme Court’s teaching, the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place.” Therefore, the district court’s holding that tattoos are protected speech was affirmed.

However, the court reversed the district court’s holding that the regulation was constitutional. Citing the Supreme Court, the Eleventh Circuit stated that “a municipality may regulate protected artistic expression only if the regulation (1) is justified without reference to the content of the regulated speech, (2) is narrowly tailored to serve a significant governmental interest, and (3) leaves open ample alternative channels for communication of the information.” The City is required to satisfy this test, and present evidence that does so.

In trying to meet that burden, Jimmy Buffet was referenced twice in the record to support the ordinance. The court stated:
Jimmy Buffett’s song “Margaritaville” was referenced twice in the record, once by Mr. Craig in his deposition and once by the City’s attorney in oral argument before the district court, to support the claim that inebriated tourists are likely to get and then regret tattoos if more tattoo establishments operate in the historic district. But the singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.” Jimmy Buffett, “Margaritaville,” on Songs You Know by Heart (Geffen Records 1985).
Clearly, the reference to Jimmy Buffett did not sway the Eleventh Circuit. In this case, the court stated that it did not doubt the legitimate government interest expressed by the city, but stated that the city had failed to meet its burden to show that the regulation would serve that interest.

Wednesday, December 23, 2015

Motion for Attorneys Fees in Original Proceeding Must Be Filed Before Disposition

In Geico General Insurance Company v. Moultrop (4D15-2772, Nov. 12, 2015), the Fourth District wrote an opinion on a motion for attorneys fees filed after a petition for writ of certiorari was denied. The court stated:
Rule 9.400(b)(2) provides that “in original proceedings” a motion for attorney’s fees “shall be served not later than . . . the time for service of the petitioner’s reply to the response to the petition.” Here, the court denied the petition without requiring a response to the petition or, obviously, a reply to a response. Having been first filed after the petition had been denied, the motion for appellate attorney’s fees is denied as untimely. 

Wednesday, December 16, 2015

Sanction Over Not Removing Prior Counsel From E-Service List Reversed

In Houston v. McKnought-Smith (4D14-4927), the Fourth District reversed a trial court's order sanctioning counsel and requiring the "former wife’s attorney to pay attorney’s fees to the former husband’s previous attorney."

The court "the previous attorney claimed that he had to file a motion requesting that the wife’s attorney be ordered not to serve him, and requesting attorney’s fees. In granting the motion and ordering the payment of fees at a non-evidentiary hearing, the court failed to make the necessary finding that the wife’s attorney acted in bad faith in serving the husband’s previous attorney." Therefore, the order was reversed in order to allow for an evidentiary hearing. 

There were also two footnotes in the opinion. The second footnote stated that "it is difficult to believe that any Moakley bad faith can be shown by the wife’s attorney’s service of two pleadings on the previous attorney (who had not withdrawn on the record). However, because there was no evidentiary hearing, all of the facts are not present. Nevertheless, it appears that professionalism has eluded these attorneys, burdening both the trial court and this court."

The first footnote indicates there was a question without an answer regarding e-filing. The court stated that "it is unclear whether the wife’s attorney could have prevented service through the electronic filing portal on an attorney that the portal had listed for service."  

I do not think the answer would impact the "it is difficult to believe" portion of the second footnote quoted above, because I think the court was indicating that it is difficult to believe that the conduct is sanctionable regardless of the ability to deselect a recipient. However, as shown below, page 6 of the Florida Court's E-Filing Portal Handbook shows that it is possible to deselect a recipient: 

The entire handbook can be viewed HERE. It is also possible to remove yourself from a service list:

See page 21 of the handbook.

Saturday, December 12, 2015

The Length of Briefs

Regarding the appropriate length for appellate briefs, Judge Marstiller (First Distrct Court of Appeal) noted on Twitter that the "sizematters":

Not too short or simple though, exactly as short as possible.

Thursday, September 17, 2015

Florida Appellate Practice and Advocacy, 7th Ed., by Raymond Elligett Jr. and John Scheb

A couple of new books have been released recently that are related to Florida law and the Florida courts, and I am linking to them in separate posts.

The Seventh Edition of Florida Appellate Practice and Advocacy, by Raymond T. Elligett, Jr. and John M. Scheb, was released on June 1, 2015. Previous editions were (and might still be) available exclusively through Stetson Law School, and this edition is available exclusively from at the link below:

Fifty Years of Justice: A History of the U.S. District Court for the Middle District of Florida, by James M. Denham

A couple of books have been released recently that are related to Florida law and the Florida courts, and I am linking to them in separate posts.

At the beginning of June, James M. Denham, a professor at Florida Southern College, released his book Fifty Years of Justice: A History of the U.S. District Court for the Middle District of Florida. The court, the United States District Court for the Middle District of Florida, issued a press release about the book which may be viewed HERE. The book is available from in print and Kindle versions at the link below: