Friday, January 28, 2011

Fifth District Grant Certiorari, Vacates Order That Impacted Rights Of Non-Party

In Generation Investments v. Al-Jumaa (5D09-2933), the Fifth District vacated an order "denying in part, and granting in part" a motion for relief from judgment.  Generation Investments, a non-party in the trial court, "contends that it was error to enter  the injunction because Generation was an indispensable party to the action, but was not joined as a party."  The Fifth District:
elect[ed] to treat the notice of appeal as a petition for writ of certiorari.  An appellate court has certiorari jurisdiction where a nonparty seeks relief from an order and its nonparty status would otherwise deprive the nonparty of an adequate remedy by direct appeal.
The court stated:
The record reveals that Generation, as the tenant of the  property, painted the building, displayed signs, flags, banners, and balloons on the property, and sold timeshares from the property.  Al-Jumaa, as the owner of the property, is required under the injunction to repaint the building, to stop the sale of timeshares from the property, and to remove the signs, flags, banner, and balloons from the property.  Because the injunction requires Al-Jumaa to take steps to change the way in which the property is being used, and Generation is the entity using the property in a way that will be altered by the injunction, the injunction cannot be carried out without affecting Generation's use of the property. 
Generation relies on several authorities, including Alger v. Peters, 88 So. 2d 903 (Fla. 1956), Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579 (Fla. 5th DCA 2003) and Stevens v. Tarpon Bay Moorings Homeowners Ass'n Inc., 15 So. 3d 753 (Fla. 4th DCA 2009), for the proposition that the impact of the  injunction makes them an indispensible party to the action.   
The court agreed with Generation and the authority it cited and held: "Because we conclude Generation was an indispensable party to the action, we vacate the order."

Thursday, January 20, 2011

11th Circuit Grants En Banc Review To Consider Jurisdiction & Sanctions In Securities Case

The Eleventh Circuit entered an order granting en banc review in Ledford v. Peeples.  In addition to published opinions from the Georgia courts, the case has two prior published opinions in the Eleventh Circuit which can be found at the following links: Ledford v. Peeples, 568 F.3d 1258 (11th Cir. 2009); amended in part on rehearing 605 F.3d 871 (11th Cir. 2010); vacated by order granting en banc review - F.3d - (11th Cir. Jan. 19, 2011).  On rehearing, the Court described the first opinion as follows:
In our original disposition of the appeal and cross-appeal in this federal securities fraud case, Ledford v. Peeples, 568 F.3d 1258 (11th Cir. 2009), we affirmed the district court’s dismissal of plaintiffs’ claims on summary judgment and reversed the court’s refusal to grant the defendants sanctions against plaintiffs’ attorneys under the Private Securities Litigation Reform Act, directing that sanctions be imposed by the district court on remand. Plaintiffs have petitioned the court for rehearing, contending that we applied the wrong standard in reviewing the district court’s sanctions decision and erred in mandating that sanctions be imposed. After considering the plaintiffs’ petition for rehearing and the parties’subsequent submissions, we grant the petition in part and deny it in part.
The second opinion, the now vacated opinion on rehearing, stated:
For the reasons set out herein, we AFFIRM the district court’s judgment granting defendants’ motion for summary judgment. We AFFIRM the district court’s sanctions order to the extent that it denies PSLRA sanctions against plaintiffs. We VACATE the sanctions order regarding the imposition of sanctions against plaintiffs’ attorneys, however, and REMAND the case with the following instructions: (1) the court shall impose sanctions against plaintiffs’ attorneys for filing and prosecuting the Count One claims on behalf of co-plaintiffs; and (2) the court shall determine whether plaintiffs’ attorneys should be sanctioned for filing and prosecuting the Count One Rule 10b-5(a) and (b) and 20(a) claims on behalf of DynaVision in accordance with part VI of this opinion.
Both the original opinion and the opinion on rehearing were written by Judge Tjoflat.  In both opinions, Judge Edmondson concurred in part and dissented in part.  Eighth Circuit Judge Gibson concurred in both the original opinion and the opinion on rehearing.

Wednesday, January 19, 2011

"It is not the responsibility of an appellate court to make an appellant’s arguments for him"

In Tacher v. Helm Bank (4D092931), the Fourth District affirmed the trial court's entry of summary judgment.  The appellant sought review of a trial court order granting summary judgment and rejecting challenges based upon various affirmative defenses.  In response to a foreclosure complaint, the appellant filed "a 19 paragraph laundry list of affirmative defenses; some are legally insufficient o n their face and others state general legal conclusions without any facts."  Subsequently:
The bank moved for summary judgment and its motion was accompanied by an affidavit. It also filed the original of the note, showing that it was the payee when the loan was made....The circuit court entered a summary final judgment. Tacher filed a one-and-one-half page motion for rehearing contending only that each of his affirmative defenses had not been “conclusively refuted on the record.” The circuit court denied the motion.
The Fourth District held:
The legal argument in Tacher’s short brief does nothing more than generally state that affirmative defenses were not refuted and that genuine issues of material fact remain. Plainly, the bank’s affidavit disproves the affirmative defenses of payment, tender, and accord and satisfaction. On its face, the note is not unconscionable. The brief does not specifically discuss a single affirmative defense, nor does it describe what issues of fact need to be tried. It is not the responsibility of an appellate court to make an appellant’s arguments for him, “to sift through the pleadings and affidavits to determine whether there are material issues of fact.”

Tuesday, January 18, 2011

The Use Of "See" In A Legal Citation

What does "See" mean when used in a legal citation? As pointed out by Rick Hasen at the Election Law Blog, that issue has been referenced in a merits brief filed in the United States Supreme Court. The use of "See" was cited based upon the Supreme Court's inclusion of that word before a cite in a prior opinion. Specifically, page 48 of THIS brief states:
The Court used the signal "See" to introduce Day as “clearly” supporting the proposition for which it was cited. Id.; see THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 46 (18th ed. 2006). And in citing Day, the Court specifically pinpointed the Eighth Circuit's holding at 34 F.3d at 1359-60, which states...

Friday, January 14, 2011

Fifth District Orders Counsel To Appear Regarding Possible Sanctions For Frivolous Rehearing Motion

In Marion v. Orlando Pain & Medical Rehabilitation (5D06-4243), the Fifth District denied a motion for rehearing, and entered an order to show cause as to why the attorney that filed the motion should not be sanctioned.  The motion for rehearing included statements such as:
1.  Oh.
2.  Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I  cannot overcome my indignation engendered by this Honorable Court's per curiam affirmance of the lower court's order.  I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason.  However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue.  I assume that I failed in my obligation in the initial briefs. 
[and]
6.  In short, [Appellees] ran a con,  using the (now, surprisingly, defunct) clinic as a shell.  And now the Court seems to be saying this is OK in the Fifth District.  If so, I have lived too long.  (I am sorry -- I am screaming again.) 
The appellees "addressed the impropriety of Appellant’s motion in considerable detail and sought sanctions."  In response to the motion for sanctions, the "Appellant pressed on, albeit with a somewhat more conciliatory tone.  Appellant nevertheless delivered a “tit for tat” by demanding that Appellees’ counsel be caused to appear before the court to “explain  in detail” his assertion that Appellant’s statement of facts was improper."

The Court was not amused.  The court stated:
We have repeatedly admonished the bar regarding the impropriety of motions such as this.  See Amador v. Walker, 862 So. 2d 729 (Fla. 5th DCA 2003), and cases cited therein.  Motions for rehearing are not to be used  for the purpose of venting counsel’s frustrations with the form or substance of the court’s decision.  Id.  They are rarely, if ever, warranted when the decision is without opinion.  See Snell v. State, 522 So. 2d 407 (Fla. 5th DCA 1988) (absent a written opinion, motion for rehearing cannot direct court to matters overlooked).
In this motion, not only does counsel  violate this admonition, he does so unabashedly -- by admitting that it was his primary purpose in filing the motion.  The motion itself completely fails to satisfy any  of the requisites of a  proper motion of this nature or of any other pleading filed by a professional lawyer for that matter.  It fails to tell us what “fact” we overlooked.  It contains assertions that have no support in the record, are scandalous and are legally irrelevant........
Based upon the apparent violations of  numerous rules of court and the rules governing the conduct of attorneys, counsel for Appellant, [], is directed to appear before this Court on February 17, 2011, at 11:30 a.m., to show cause why monetary or other sanctions should not be imposed pursuant to Florida Rule of Appellate Procedure 9.410 (a) and (b), and section 57.105, Florida Statutes (2010).  The Court reserves jurisdiction for this and other proper purposes. 

Sunday, January 9, 2011

Service Of Process On Distributor Quashed

In Sunseeker International Limited v. Devers (4D10-2997), the Fourth District reversed the trial court's ruling  that refused to quash service of process.
The underlying dispute arose over a buyer’s dissatisfaction with a boat purchased from the manufacturer. The plaintiff filed a complaint against the manufacturer, Sunseeker International Limited, the authorized distributor, Sunseeker USA, Inc., and Jefferson Beach Yacht Sales, Inc., a Michigan broker/dealer. The manufacturer is a corporation organized under the laws of the United Kingdom with its principal office and factory in Poole,  Dorest, England.  All yachts are manufactured in the United Kingdom.
The plaintiff served a distributor with the complaint and told the trial court that the manufacturer was authorized to do business in Florida but did not have a registered agent in Florida.  Therefore, according to the plaintiff, service could be accomplished by serving the distributor.  The manufacturer responded that it had not been authorized to do business in Florida since 2004 and, therefore, service could not be accomplished on the distributor.  The Fourth District agreed with the manufacturer, quashed service of process and remanded the case.  The court stated:
Here, the buyer failed to allege that the distributor was a business agent of the manufacturer or an agent transacting business for it.
The buyer also failed to prove the distributor was the business agent of  the manufacturer.  The buyer provided the trial court with only a printout from the Secretary of  State’s website.  Significantly, that printout revealed that the manufacturer  had withdrawn its registration in 2004.  The buyer therefore failed to sustain its burden of proof.
The buyer having failed to establish compliance with Florida’s statutory requirements for  service of  process, the trial court erred  in denying the motion to quash service of process.  The case is reversed and remanded.
On remand, after proper service is accomplished, the trial court will be able to deal with personal jurisdiction issues.  One other point was made in a footnote.  The court stated:
The buyer argues that the manufacturer waived personal jurisdiction because it first filed a motion for extension of time in which it advised it would contest personal jurisdiction.  We disagree.  The motion for extension of  time did not waive personal jurisdiction because it did not go to the merits of the case.  Moo Young v. Air Canada, 445 So. 2d 1102 (Fla. 4th DCA 1984).
 [emphasis supplied].

Follow Up: Is It Proper To Cite To A Shortened URL In An Appellate Brief?

A few weeks ago I had a post titled "Is It Proper To Cite To A Shortened URL In An Appellate Brief?"  Woodrow Pollock made a good point in the comments.  He stated that "It also permits someone (the author of the brief, for instance) to keep track of how often the court views the cited link (if at all)."

A great feature with shortened url's is that you can track the usage for the short url.  However, that might not be a great feature if you are using it to monitor the number of times a court views a citation in a brief.  At least with the google url shortener, anyone can monitor the statistics for a shortened url and not just the author.  The Google help page for the url shortener states:

The Google URL Shortener provides analytics tracking for all short URLs. To access your short URL’s analytics, just add ".info" after any short URL. For example, detailed analytics for http://goo.gl/l6MS is available at http://goo.gl/l6MS.info.
The Google URL Shortener currently reports short URL click analytics across various categories. The different analytics categories currently available include the raw click counts, and their distribution across referrers, browsers, platforms, and geographical locations. Additionally, you can slice this data across different time periods.
Just add ".info" to the end of the shortened url and you can view the analytics for that shortened url (of course, not for the longer original url where you end up after entering the shortened url).  

Jim Dedman at the Abnormal Use blog had the following to say on the subject:
Jeffrey Kuntz of The Florida Legal Blog asks an interesting question: "Is It Proper To Cite To A Shortened URL in An Appellate Brief?" As Kuntz notes, there is a risk inherent in such citations, as the abbreviated link may itself expire, and if it does, there is no way to ascertain the nature or domain of the original link. Best to use the full URL, we think.
Until there is some clarification in the appellate rules or in the Bluebook, I agree with Dedman. 

Two State Supreme Court Opinions On Foreclosures And Assignments

On Friday, the high court in two states issued opinions relating to foreclosures.  

In JPMorgan Chase Bank v. Harp, the Maine Supreme Judicial Court held that lack of ownership of the mortgage at the time suit is filed is not a fatal defect if ownership is acquired before summary judgment is obtained.
Harp asserts that JPMorgan did not have standing to bring this action before it received assignment of the mortgage and therefore the complaint should be dismissed without prejudice....At the commencement of litigation, JPMorgan owned the note, but not the mortgage.   JPMorgan would  have been vulnerable to a motion by Harp challenging JPMorgan’s ability to foreclose at that time.  However, Harp did not raise this issue before JPMorgan cured the defect through the assignment of the mortgage from Nationwide Lending Corp.  At the time JPMorgan filed its motion for summary judgment,  it had satisfied the ownership prerequisites for standing.
The court concluded:
In summary, we hold that JPMorgan improperly filed the foreclosure complaint before it owned both the note and the mortgage, but this defect was cured when JPMorgan was assigned the mortgage.  Because Harp did not raise this issue until after the assignment, the court did not err in considering JPMorgan’s motion for summary judgment.
In U.S. Bank National Association v. Ibanzez, the Massachusetts Supreme Judicial Court affirmed a lower court's ruling voiding two foreclosure sales.  The opinion began:
After foreclosing on two properties and purchasing the properties back at the foreclosure sales, U.S. Bank National Association (U.S.Bank), as trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-Z; and Wells Fargo Bank, N.A. (Wells Fargo), as trustee for ABFC 2005-OPT 1 Trust, ABFC Asset Backed Certificates, Series 2005-OPT 1 (plaintiffs) filed separate complaints in the Land Court asking a judge to declare that they held clear title to the properties in fee simple. We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure. As a result, they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties, and their requests for a declaration of clear title were properly denied. 
The court described the foreclosure process in Massachusetts, which does not include judicial oversight, and stated:
Recognizing the substantial power that the statutory scheme affords to a mortgage holder to foreclose without immediate judicial oversight, we adhere to the familiar rule that "one who sells under a power [of sale] must follow strictly its terms. If he fails to do so there is no valid execution of the power, and the sale is wholly void."....
One of the terms of the power of sale that must be strictly adhered to is the restriction on who is entitled to foreclose. The "statutory power of sale" can be exercised by "the mortgagee or his executors, administrators, successors or assigns." G.L. c. 183, § 21. Under G.L. c. 244, § 14, "[t]he mortgagee or person having his estate in the land mortgaged, or a person authorized by the power of sale, or the attorney duly authorized by a writing under seal, or the legal guardian or conservator of such mortgagee or person acting in the name of such mortgagee or person" is empowered to exercise the statutory power of sale. Any effort to foreclose by a party lacking "jurisdiction and authority" to carry out a foreclosure under these statutes is void.... 
For the plaintiffs to obtain the judicial declaration of clear title that they seek, they had to prove their authority to foreclose under the power of sale and show their compliance with the requirements on which this authority rests. Here, the plaintiffs were not the original mortgagees to whom the power of sale was granted; rather, they claimed the authority to foreclose as the eventual assignees of the original mortgagees. Under the plain language of G.L. c. 183, § 21, and G.L. c. 244, § 14, the plaintiffs had the authority to exercise the power of sale contained in the Ibanez and LaRace mortgages only if they were the assignees of the mortgages at the time of the notice of sale and the subsequent foreclosure sale....
We do not suggest that an assignment must be in recordable form at the time of the notice of sale or the subsequent foreclosure sale, although recording is likely the better practice. Where a pool of mortgages is assigned to a securitized trust, the executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder. However, there must be proof that the assignment was made by a party that itself held the mortgage....
Third, the plaintiffs initially argued that postsale assignments were sufficient to establish their authority to foreclose, and now argue that these assignments are sufficient when taken in conjunction with the evidence of a presale assignment. They argue that the use of postsale assignments was customary in the industry, and point to Title Standard No. 58(3) issued by the Real Estate Bar Association for Massachusetts, which declares: "A title is not defective by reason of ... [t]he recording of an Assignment of Mortgage executed either prior, or subsequent, to foreclosure where said Mortgage has been foreclosed, of record, by the Assignee." [FN21] To the extent that the plaintiffs rely on this title standard for the proposition that an entity that does not hold a mortgage may foreclose on a property, and then cure the cloud on title by a later assignment of a mortgage, their reliance is misplaced because this proposition is contrary to G.L. c. 183, § 21, and G.L. c. 244, § 14. If the plaintiffs did not have their assignments to the Ibanez and LaRace mortgages at the time of the publication of the notices and the sales, they lacked authority to foreclose under G.L. c. 183, § 21, and G.L. c. 244, § 14, and their published claims to be the present holders of the mortgages were false. Nor may a postforeclosure assignment be treated as a pre-foreclosure assignment simply by declaring an "effective date" that precedes the notice of sale and foreclosure, as did Option One's assignment of the LaRace mortgage to Wells Fargo. Because an assignment of a mortgage is a transfer of legal title, it becomes effective with respect to the power of sale only on the transfer; it cannot become effective before the transfer. See In re Schwartz, supra at 269. 
However, we do not disagree with Title Standard No. 58(3) that, where an assignment is confirmatory of an earlier, valid assignment made prior to the publication of notice and execution of the sale, that confirmatory assignment may be executed and recorded after the foreclosure, and doing so will not make the title defective. A valid assignment of a mortgage gives the holder of that mortgage the statutory power to sell after a default regardless whether the assignment has been recorded. See G.L. c. 183, § 21; MacFarlane v. Thompson, 241 Mass. 486, 489 (1922). Where the earlier assignment is not in recordable form or bears some defect, a written assignment executed after foreclosure that confirms the earlier assignment may be properly recorded. See Bon v. Graves, 216 Mass. 440, 444-445 (1914). A confirmatory assignment, however, cannot confirm an assignment that was not validly made earlier or backdate an assignment being made for the first time.   
The briefs and oral argument in the Massachusetts case can be viewed below:
video

Saturday, January 8, 2011

Order Compelling Appraisal Reversed To Determine If Post-Loss Obligations Complied With

In Citizens Property Insurance Corporation v. Maytin (3D10-693), the Third District reversed the trial court's ruling compelling appraisal.  The insured filed a lawsuit seeking to compel appraisal.  In response, Citizens answered that the insured had "failed to comply with post-loss conditions and prevented Citizens from fully inspecting  his property, thereby, precluding the invocation of the appraisal clause under the insurance policy."  The court:
reverse[d] the trial court’s grant of the motion to compel appraisal and remand for an evidentiary hearing to determine if Maytin complied with the post-loss conditions under the policy.

Third District Dismisses Appeal Of Order Dismissing Case With Prejudice As Premature

In U.S. Bank, N.A. v. Torres (3D10-3386), the Third District dismissed an appeal for lack of jurisdiction.  The case involved an appeal of "the trial court’s December 9, 2010 Order striking U.S. Bank’s pleadings, dismissing U.S. Bank’s case with prejudice, and requiring the appearance of U.S. Bank and its counsel to surrender the Note on January 3, 2011."  The court stated:
We agree with Torres that the appeal is premature and as such, we grant Torres’ motion to dismiss U.S. Bank’s appeal.  In addition, we deny U.S. Bank’s motion for stay pending review, with the  understanding that once the trial court rules at the hearing on January 3, 2011, U.S. Bank will  have the opportunity to appeal the trial court’s decision if it chooses to do so and seek a stay from the trial court’s order at that point. 

E-Filing In Florida's Trial Courts

The Florida Bar News has an article titled "E-filing Open for Business."  You can register to be an e-filer at THIS site and after you register you can e-file at THIS site in the following counties: Columbia, Duval, Gulf, Holmes, Lake, Miami-Dade, Putnam,Walton. Every county is expected to be using e-filing soon. Note that you are required to also file the original signed document for the first ninety days.  I am not certain if it is ninety days after the e-filing portal opened on January 1, 2011 or ninety days after the specific county you are filing in begins accepting e-filing.  The Florida Bar News had an article dated January 1, 2011, titled "Phasing in E-filing."

"Ethics And Professionalism On Appeal"

Judge Webster wrote THIS article in the Florida Bar Journal titled "Ethics and Professionalism on Appeal."

Tuesday, January 4, 2011

Fifth District Holds Attorney Contract Relating To Client Representation Not Against Public Policy

UPDATE: On November 7, 2011, the Florida Supreme Court issued THIS order and declined to review the Fifth District's Opinion discussed below.



In Garfinkel v. Mager (5D09-1991 & 3273), the Fifth District reversed the trial court's order and held that a provision in a contract that Mager would not represent any party that initiated a claim against Garfinkel was not against public policy.  The court held that:
We conclude that the contract would not violate public policy where if, as alleged in the complaint, Mager possessed confidential information as the result of his prior employment and fiduciary relationship with Garfinkel and appellees would be able to use that information to the detriment of Garfinkel if they provided representation or assistance to a party who had initiated or maintained a lawsuit or claim against Garfinkel.
The facts were described as follows:
From October 2006 to July 2, 2007, attorney Mager was employed by Garfinkel, a law firm, and served as  the firm's managing partner. On July 2, 2007, Garfinkel terminated Mager's employment. Mager subsequently sued Garfinkel for monies allegedly owed as a result of his contributions to the firm. That lawsuit was dismissed when the parties entered into a global settlement agreement in February 2008.
Pursuant to the terms of the settlement agreement, Garfinkel paid Mager $175,000 (in addition to $100,000 previously paid to Mager), Mager dismissed the lawsuit against Garfinkel, and the parties released each other from any past or present claims. The agreement provided that appellees would not render any assistance nor give advice to any party who initiated, maintained, or prosecuted any lawsuit or claim against Garfinkel. 
***
In October 2008, Garfinkel filed a complaint against Mager seeking damages, injunctive relief, and a declaratory judgment that the settlement agreement provisions were valid and enforceable. The complaint alleged that appellees breached the contract by, among other things, representing clients in actions brought against Garfinkel. Appellees filed a motion to dismiss the complaint arguing that the settlement agreement was against public policy because it improperly limited the freedom of potential clients to choose Mager as their lawyer and limited Mager's freedom to accept future clients. The trial court granted appellees' motion, finding first that the agreement violated Rule 4-5.6 of the Rules Regulating the Florida Bar. 
With regard to the legal analysis, the court stated:
In determining whether paragraph 8(c) contravenes public policy, it is appropriate to consider the intent behind the adoption of Rule 4-5.6. The rule is intended to protect the ability of future clients to retain a lawyer of their choosing and to prohibit attorneys and their present clients and adversaries from limiting that ability by private agreement.  See Fla. Ethics Op. 93-4 ("The prohibition contained in rule 4-5.6 seeks to protect the professional autonomy of lawyers as well as clients' access to the lawyer of their choosing."). While the right of a party to chose his or her attorney is deeply engrained in our jurisprudence, that right is not unlimited. A party does not have the right to an attorney possessing confidential information of the adversary so as to provide the party with an unfair informational or tactical advantage....The Rules Regulating the Florida Bar affirmatively restrict attorneys with "inside" knowledge from using it for the gain of other clients. See generally, R. Regulating Fla. Bar 4-1.6 (confidentiality of client information); 4-1.7 (conflict of interest; current client) 4-1.8 (conflict of interest; prohibiting use of client information to disadvantage of client); 4-1.9 (conflict of interest; former client).
In the present case, it was alleged that Mager had not only been the managing partner for Garfinkel, P.A., but had also served as personal counsel for Alan Garfinkel, individually. Furthermore, appellees expressly acknowledged in the settlement agreement that Mager's services to Garfinkel had been "special, unique and extraordinary" and that he had acquired confidential information concerning Garfinkel's operations -- "the use or disclosure of which could cause Garfinkel substantial losses and damages which could not be readily calculated and for which no remedy at law would be adequate." The confidential information alleged to be possessed by Mager included financial data, accounting information, legal strategies, business plans, dealings with expert witnesses, and other information that potentially would give an adversary an unfair tactical advantage in litigation.
The court concluded that "If the allegations of the complaint and second amended complaint are accepted as true, then the parties' agreement reflects a reasoned effort to balance the aforesaid competing public interests and would not be injurious to the public good or otherwise contrary to public policy."  Additionally, the court rejected a cross-appeal in a footnote by stating "We further find appellees' cross-appeal to be without merit."

The oral argument can be viewed below:

Part I

video

Part II

video


Prior disputes involving these parties, as previously discussed HERE, are linked below:

Sunday, January 2, 2011

Florida Supreme Court Issues Order To Show Cause Relating To Assignment Of Judges In Orange County

On December 21, 2010, the Florida Supreme Court issued an order to show cause directing the Circuit Court for the Ninth Judicial Circuit to explain the legality of judicial assignment orders entered by the circuit court.  The Supreme Court's order states:
Petitioner has filed a petition for prohibition. The Circuit Court for the Ninth Judicial Circuit is requested to serve a response to the above-referenced petition on on or before January 6, 2011, pursuant to Florida Rule of Appellate Procedure 9.100(e)(3). The circuit court shall discuss/address how Administrative Order 2007-03-17 and its successors are in compliance with the Court's rule on the limitations of judicial assignments made by the chief judge of the circuit court. See Wild v. Dozier, 672 So. 2d 16 (Fla. 1996); Holsman v. Cohen, 667 So. 2d 769 (Fla. 1996). The petitioner may serve his reply on or before January 18, 2011.
The administrative order at issue assigned each of the Circuit Court judges to hear County Court cases and each of the County Court judges to hear Circuit Court cases.  The order can be viewed HERE and as amended HERE, HERE and HERE.  Unfortunately, the briefs are not available on the Florida Supreme Court's website at this time.  

The Orlando Sentinel has an article about the order HERE.  Jeff Weiner wrote the article for the Orlando Sentinel and indicated the dispute relates to whether an Orange County Circuit Court Judge has jurisdiction to preside over political consultant Doug Guetzloe's campaign flyer case which is pending in the County Court.