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." 

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.