Tuesday, May 26, 2015

2015 Amendments to the Federal Rules and Potential Changes in 2016

Last month, the Supreme Court sent to Congress amendments to the Federal Rules of Bankruptcy Procedure and Federal Rules of Civil Procedure. These Amendments will become effective on December 1, 2015, absent Congressional action blocking the changes. The Bankruptcy Rule change only impacts Rule 1007. The Civil Rule changes relate to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84, and the Appendix of Forms.

Much more interesting, in my opinion, will be the rule changes submitted next year and that will be effective on December 1, 2016. The entirety of the changes proposed for December 1, 2016, may be viewed HERE. The proposed changes include a reduction in the length of appellate briefs and the elimination of the 3 mailing days provided by the rules. 

The comments period has closed for the changes proposed for 2016. There are 61 comments to the proposed appellate rule changes, and much has been written on the subject. With regard to the proposed civil rule changes, there are only 13 comments.  I link to two specific comments, one from the United States Department of Justice and the other from the Solicitor General of the United States, but all are available at the following links: CivilAppellateBankruptcy; and Criminal.

Wednesday, May 13, 2015

After Merger, Claim May Be Continued As If Merger Did Not Occur

In Fiorentino v BAC Home Loans Servicing, LP (5D13-3250), the Fifth District reversed the foreclosure judgment. However, in a footnote the court cited to section 607.1106(d), Florida Statutes. That statutory section is titled "effect of merger or share exchange," and the cited provision states that "Any claim existing or action or proceeding pending by or against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation which ceased existence."

Applied to the case before the court, the court noted the following:
The record reflects that BAC merged into Bank of America effective July 1, 2011, and did not survive the merger. Pursuant to section 607.1106(1)(d), Florida Statutes, the claim may be continued as if the merger did not occur, or the surviving corporation, Bank of America, may be substituted in the proceeding.
While not a new law, it is a statutory provision that isn't referenced often.

Wednesday, April 29, 2015

U.S. Supreme Court Upholds Florida Ban on Judges Soliciting Campaign Contributions

Today, in Williams-Yulee v. Florida Bar, the United States Supreme Court affirmed Florida Supreme Court's opinion upholding the Florida Bar's ban on judicial candidates soliciting campaign contribution. The opinion is broken into numerous parts, as described by the Court below:

ROBERTS, C. J., delivered the opinion of the Court, except as to Part II. BREYER, SOTOMAYOR, and KAGAN, JJ., joined that opinion in full, and GINSBURG, J., joined except as to Part II. BREYER, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined as to Part II. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. KENNEDY, J., and ALITO, J., filed dissenting opinions.

The majority opinion began as follows:

CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part II.

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.

 We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.

And, the majority opinion concluded:

The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public’s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004).

It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.

The judgment of the Florida Supreme Court is Affirmed.

Justice Breyer’s concurrence is found on page 29. Justice Ginsburg’s opinion concurring in part and concurring in judgment, an opinion joined by Justice Breyer as to Part II, begins on page 28. Justice Scalia’s dissent, joined by Justice Thomas, begins on page 33. Justice Kennedy’s dissent begins on page 46. Finally, Justice Alito’s dissent begins on page 52.

Wednesday, April 15, 2015

First District Explains New Mailbox Rule for Incarcerated Litigants

If you happen to be an incarcerated litigant, you should read the First District's opinion issued today in Roberto Rivera, M.D. v. Department of Health (1D15-0287). In that opinion, the First District states as follows:
We are concerned that incarcerated litigants may fail to understand the effect of the amendment and write to ensure that incarcerated litigants filing documents with the courts of this state are familiar with the recent amendment to rule 9.420(a)(2), and that they understand the burden the rule places on them to demonstrate timely filing. 
With regard to the amended rule, which is quoted in the opinion, the court stated:
As amended, the rule provides that when the institution has a system designed for legal mail that records the date a document is placed in the hands of an institution official for mailing and the inmate uses that system, then the date of filing will be presumed to be the date recorded by the institution’s legal mail system. If the inmate does not use the system designed for legal mail, the date of filing shall be presumed to be the date it is stamped for filing by the clerk of the court. If the institution does not have a legal mail system, or it has a legal mail system that does not record the date a document is placed in the hands of an institution official for mailing, then the date contained in the certificate of service is presumed to be the date of filing. 

Thursday, March 19, 2015

Florida Supreme Court: U.S. Supreme Court's 2012 Ban On Life Sentences To Juveniles Applies Retroactively

In Falcon v. Florida (SC13-865), the Florida Supreme Court unanimously answered a question that the state and federal courts have addressed with differing results. Justice Pariente wrote the unanimous opinion which began by stating the question presented to the court:
The issue in this case is whether the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012)—which “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders”—applies to juvenile offenders whose convictions and sentences were already final at the time Miller was decided. 
The Florida Supreme Court noted that it would reach the same result "[a]pplying this Court’s test for retroactivity, as articulated in Witt v. State, 387 So. 2d 922, 931 (Fla. 1980)," and applying "the test for retroactivity set forth in Teague v. Lane, 489 U.S. 288, 307 (1989)." 

The court held as follows:
we conclude that the rule set forth in Miller constitutes a 'development of fundamental significance' and therefore must be given retroactive effect....Accordingly, we answer the certified question in the affirmative and hold that the Supreme Court’s decision in Miller applies retroactively to juvenile offenders whose convictions and sentences were final at the time Miller was decided. Under Florida Rule of Criminal Procedure 3.850(b)(2), any affected juvenile offender shall have two years from the time the mandate issues in this case to file a motion for postconviction relief in the trial court seeking to correct his or her sentence pursuant to Miller. 
Based on our decision in Horsley v. State, No. SC13-1938, slip op. at 3 (Fla. Mar. 19, 2015), we conclude that the appropriate remedy for any juvenile offender whose sentence is now unconstitutional under Miller is a resentencing pursuant to the framework established in legislation enacted by the Florida Legislature in 2014. See ch. 2014-220, Laws of Fla.  

Thursday, February 26, 2015

Judgment Cannot Be Corrected To Clarify Status Of Parties Years After Entry

In Lorant v. Whitney National Bank (1D14-2757), the First District "consider[ed] whether Florida’s Rule of Civil Procedure allowing for corrections of 'clerical mistakes,' encompasses authorization to supplement a final deficiency judgment by clarifying the party defendants’ status in the litigation almost three years after the entry of the initial judgment."

After a foreclosure judgment was entered:
the court entered a final deficiency judgment as to Mr. Lorant and two other named defendants in favor of the bank. The bank then sought to domesticate the final deficiency judgment in Alabama against Mr. Lorant, but the Alabama courts did not allow it. Under Alabama law, the deficiency judgment had to reflect that Mr. Lorant was the sole remaining defendant and that all claims, rights, or liabilities of the other parties had been adjudicated. See Whitney Bank v. Lorant, 148 So. 3d 1077, 1078 n. 1 (Ala. 2014) (Moore, C.J., dissenting).
After the Alabama court's refused to domesticate the judgment, the lender "filed a motion to correct a final deficiency judgment pursuant to Rule 1.540(a)’s allowance for the correction of 'clerical mistakes.' The bank asked the court to modify its 2011 deficiency judgment to reflect that Mr. Lorant was the sole remaining defendant and that all claims, rights, or liabilities of the other parties had been adjudicated."

The court stated that:
Rule 1.540(a) specifically allows for the correction of “clerical mistakes” and “errors” in judgments “arising from oversight or omission” for an indefinite period of time. Rule 1.540(b), on the other hand, allows for the correction of other mistakes or inadvertence in a final judgment for “a reasonable time . . . not more than 1 year after the judgment[.]” The bank in this case filed its motion under Rule 1.540(a), requiring a “clerical mistake” as opposed to some other kind of mistake. Our court has recognized clerical mistakes include “only ‘errors or mistakes arising from an accidental slip or omission, and not errors or mistakes in the substance of what is decided by the judgment or order,’ the latter of which must be corrected pursuant to Rule 1.540(b).” .... A trial court “has no authority under Rule 1.540(a) to make substantive changes.” .... And relief under Rule 1.540(a) may not be appropriate where “[t]he proposed amendment of the judgment substantially change[s] its impact and effect.” 
Therefore, the court held that "[t]he mistake involved in this case resulted in the trial court 'supplementing' its initial final deficiency judgment in order to more definitively address the litigation status of the three party defendants. This correction and supplement to the previous final judgment represented a substantive change, not the sort of accidental slip or omission permitted to be corrected under Rule 1.540(a). In fact, nothing in the record indicates that a 'mistake' existed at all in the initial judgment; rather the bank’s issue was that Alabama required these matters to be addressed in a substantively different manner."

Thursday, February 19, 2015

Be Specific: Order Vacating Judgment Pursuant to Rule 1.540 Reversed Because Motion Only Relied Upon Rehearing Rule (1.530)

In Foche Mortgage, LLC v. CitiMortgage, Inc. (3D14-521), the Third District reversed a trial court's order vacating a judgment pursuant to Rule 1.540. The Third District stated that the movant only referenced Rule 1.530 in the motion filed in the trial court and did not reference or make argument relating to Rule 1.540. Therefore, the motion could only be construed pursuant to Rule 1.530, which  requires a motion to be filed within fifteen days.* 

Because the movant only sought relief pursuant to Rule 1.530, and didn't reference or rely upon Rule 1.540, the motion was required to be filed within fifteen days of the entry of the order. Since it was not filed within that time period, the trial court lacked jurisdiction to enter the order appealed. 

* Rule 1.530 was recently amended to allow fifteen days. The prior version of the rule, and the version applicable to the motion at issue in the opinion, was ten days.

Wednesday, January 28, 2015

Error In Legal Description Renders Judgment Voidable, and Cannot Be Corrected More Than A Year After Issuance

Epstein v. Bank of America (4D13-4066), released today, involves a borrower’s challenge to a trial court’s order vacating a judgment that had been entered in favor of the plaintiff/lender. Three years after the judgment was entered in its favor, the plaintiff/lender sought to vacate the judgment due to an error in the legal description of the property on the mortgage, complaint, and ultimately the judgment. Ultimately, the court reversed the trial court's order vacating the judgment. As is shown below, the error relating to the property description was a voidable error, meaning the trial court lost jurisdiction to correct the error one year after the judgment was entered. 

The court outlined the facts at issue as follows:

The problem began when the mortgage was signed using an incorrect legal description for the real property. Subsequently, the bank filed a foreclosure complaint. In December 2009, a final summary judgment of foreclosure was entered using the incorrect legal description. The foreclosure sale was conducted the following August with the bank as the highest bidder. Shortly thereafter, a certificate of title containing the incorrect legal description was issued to the bank.

Two years later, in September 2012, the bank filed its first motion to vacate the final summary judgment, sale, and certificate of title. The motion was filed pursuant to Florida Rule of Civil Procedure 1.540(b)(1), alleging that, “due to an inadvertent mistake,” the legal description of the property in the mortgage was incorrect, and therefore, the bank needed to amend the complaint to add a reformation count. It also alleged that the incorrect legal description in the foreclosure judgment prevented the bank from obtaining clear title to the property. In October 2012, the trial court entered an order denying the bank’s motion, “without prejudice.”

In January 2013, the bank filed its second motion to vacate. This second motion was also filed pursuant to Florida Rule of Civil Procedure 1.540(b)(1), but, additionally, pursuant to rule 1.540(b)(4), on the added grounds that the final judgment was void. In this motion, the bank admitted that it was made aware of the error in the legal description in the mortgage and final judgment in October 2010, ten months after the judgment was entered. The motion alleged that the error in the legal description in the final judgment was clouding the title to property owned by a third party.

A hearing was held on the bank’s second motion. At the hearing, the homeowner objected to the bank’s second motion, arguing that the trial court did not have jurisdiction to hear the motion because rule 1.540(b)(1) has a one-year time limit for vacating a judgment, and the bank’s motion was filed more than a year after the judgment was entered. The bank renewed its argument that the incorrect legal description rendered the judgment void, making the one-year time limitation inapplicable. The trial court granted the bank’s second motion.

On appeal, the issue was whether the three-year old judgment was void or merely voidable. The court noted that “‘[i]f a judgment is ‘void’ then under rule 1.540(b) it can be attacked at any time, but if it is only ‘voidable’ then it must be attacked within a year of entry of the judgment.’ Condo. Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp., 137 So. 3d 396, 398 (Fla. 4th DCA 2014). Thus, the determining factor in this case is whether the final judgment was void due to an error in the legal description in the mortgage and judgment.”

In this case, the “bank argues that the judgment was void ‘because the owner of the property identified in the judgment was not made a party to the underlying case.’” The court explained that:

The bank argues that the instant case is similar to Wright, and that the final summary judgment in this case is void because the due process rights of the owner of the described property in the mortgage and judgment were violated in that the actual owner was never made a party to the action. However, there are two problems with the argument. First, there is no evidence in the record that there is an owner of the described property other than the homeowner named in the complaint, or that the property, as described in the mortgage and judgment, even exists. Second, if the property described in the mortgage and final judgment does exist, and if there is an owner of the property other than the homeowner named in the complaint, that owner was not the party challenging the final summary judgment. “[C]onstitutional rights are personal and may not be asserted vicariously.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). This also holds true specifically for due process challenges. See State v. Muller, 693 So. 2d 976, 978 (Fla. 1997) (holding that a defendant lacked standing to challenge a violation of the due process rights of the non-defendant owners of a vehicle). Therefore, the due process argument that the judgment is void is not applicable in this case.


Although not cited by either party, we agree with the analysis of the Second District regarding the authority of the court to correct errors in the legal descriptions in mortgages and foreclosure judgments: 
When a mortgage contains an incorrect legal description, a court may correct the mistake before foreclosure. If, however, the mistaken legal description is not corrected before final judgment of foreclosure, and the mistake is carried into the advertisement for sale and the foreclosure deed, a court cannot reform the mistake in the deed and judgment; rather, the foreclosure process must begin anew. Lucas v. Barnett Bank of Lee Cnty., 705 So. 2d 115, 116 (Fla. 2d DCA 1998) (citing Fisher v. Villamil, 62 Fla. 472, 56 So. 559 (1911)).  
As the Second District noted, “[w]hile the mortgagee who bid its mortgage at the sale might have understood exactly what property was being offered, other potential bidders at the sale might not have had the same understanding.” Id.

In conclusion, the court stated: "As to the named parties in this proceeding, there is no issue of subject matter jurisdiction or personal jurisdiction. We therefore determine that the final summary judgment was voidable, not void, and the bank’s motion to vacate was time-barred under rule 1.540(b)."

Wednesday, December 24, 2014

Third District: Dismissal of Same-Sex Divorce Affirmed On Standing Grounds Where Parties Did Not Raise Constitutional Issues

In Oliver v. Stufflebeam (3D12-2159), the Third District addressed an issue that at first glance might appear to be the Court addressing the issue of same-sex marriage in Florida. However, in the end it is merely about standing as the parties did not challenge the constitutionality of Florida's constitutional ban on same-sex marriage. 

This case involves "an appeal by a same-sex couple from a sua sponte order entered in the court below, dismissing their petition for dissolution of their out-of-state marriage on the authority of section 741.212 of the Florida Statutes which states that same-sex marriages 'are not recognized for any purpose in this state.'” 

However, the parties "do not challenge the validity of the statute...[and] it is quite apparent on the face of the record in this case that there is no controversy over the point on appeal between these parties. For this reason, we affirm the dismissal of this case in that the petition for dissolution of marriage lacks a case or controversy requiring the expenditure of judicial labor."  
The facts of this case are undisputed and can be succinctly stated. Sarah Oliver and Heather Stufflebeam, both female, were married under the laws of Iowa on August 17, 2009. Sometime thereafter, they moved to Florida, where on May 29, 2012, Oliver filed an uncontested petition in the family court of the Eleventh Judicial Circuit, alleging their marriage was irretrievably broken and praying for a decree of dissolution. On July 12, 2012, after a hearing on the petition, the trial court sua sponte dismissed the petition with prejudice on the authority of section 741.212 of the Florida Statutes, which prohibits the recognition of a marriage between persons of the same-sex entered into in any jurisdiction “for any purpose.” Oliver, in an appeal in which her appellee partner joins, challenges that decision
The court "begin[s] by stating what this case is not about. This case is not about the constitutionality or merits of same-sex marriage. The parties did not raise the constitutionality of section 741.212 in the trial court or as a point on appeal before us. In fact, they urge us to reverse the decision below in order to avoid constitutional issues." In a footnote, the court stated:
This position is legally puzzling. It would be a disingenuous court indeed that would “avoid” an issue to reach a particular result. We have no difficulty deciding a constitutional issue when properly raised. The parties did not raise the constitutionality of the statute either before this court or the trial court; thus, we do not reach any constitutional issues here. 
The court continued by stating that "given Florida’s exclusive right, subject only to the confines of our Federal Constitution, to define both marriage and its dissolution within this state and Florida’s recognition of marriage as only between a man and a woman, samesex couples do not have standing to seek in our courts the dissolution of a marriage that by Florida law does not exist." Finally, the court noted that "Oliver and Stufflebeam reply that our decision traps them into the very marriage Florida seeks to prohibit. That is not so. An action for annulment of their marriage may well lie in the trial court."

The Court also "acknowledge[d] that the nation is presently engaged in a great national conversation on the subject of same-sex marriage. However, this is neither the time nor the place for this court to insert itself into that discussion."