Tuesday, February 23, 2010

Miami-Dade Judge Rules Red-Light Cameras Violate State Law

Miami-Dade Circuit Court Judge Jerald Bagley ruled that Aventura use of red-light cameras is in violation of state law.  An article in the Miami Herald states:
The ruling came in a lawsuit filed by a motorist who argued that only the state Legislature can pass laws regarding traffic violations. Cities have gotten around the lack of authorization by citing red light runners with a code violation, rather than a traffic ticket.
I personally experienced being cited for such a "code violation" after a short visit to Naples.  The SunSentinel stated:
Invoking opinions issued by the state attorney general in 1997 and 2005, Miami-Dade Circuit Judge Jerald Bagley said traffic laws are the purview of the state and that police officers should witness — and then issue tickets to — red-light runners.
Attorney General Opinion AGO 97-06, released on January 24, 1997 and titled "Traffic citations, use of unmanned cameras" can be found HERE.  Attorney General Opinion AGO 05-41, released on July 12, 2005 and titled "Traffic, use of unmanned cameras" can be found HERE.
Other articles can be found at the following links: Miami Herald, Miami Herald, NBC 2, SunSentinel, SunSentinel, First Coast News,  and The Ledger.

Third District Announces The Death Of Retired Judge John G. Fletcher

The Third District Court of Appeal is saddened to announce the death of retired Judge John G. Fletcher. Judge Fletcher died on Monday, February 22, 2010, in New Jersey. Governor Lawton Chiles appointed Judge Fletcher to the Third District Court in 1996 where he served more than ten years and until his retirement in 2007.

Corporate Principal Place Of Business Is Where Executives Are Located

In Hertz Corporation v. Friend (08-1107), the United States Supreme Court held that a corporation's principal place of business is where the corporations executives are located.  Writing for a unanimous Court, Justice Breyer stated:
The federal diversity jurisdiction statute provides that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U. S. C. §1332(c)(1) (emphasis added). We seek here to resolve different interpretations that the Circuits have given this phrase. In doing so, we place primary weight upon the need for judicial administration of a jurisdictional statute to remain as simple as possible. And we conclude that the phrase “principal place of business” refers to the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities. Lower federal courts have often metaphorically called that place the corporation’s “nerve center.” See, e.g., Wisconsin Knife Works v. National Metal Crafters, 781 F. 2d 1280, 1282 (CA7 1986); Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862, 865 (SDNY 1959) (Weinfeld, J.). We believe that the “nerve center” will typically be found at a corporation’s headquarters.
Articles can be found at: Reuters, ABC News, Wall Street Journal, and Business Week.

U.S. Supreme Court Reverses Florida Supreme Court In Miranda Warning Case

The United States Supreme Court released its opinion today in Florida v. Powell (08-1175)Powell was previously discussed on this blog HERE, HERE and HERE.  Writing for the Court, and reversing the Florida Supreme Court, Justice Ginsburg stated:
In a pathmarking decision, Miranda v. Arizona, 384 U. S. 436, 471 (1966), the Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.” The question presented in this case is whether advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’]questions,” and that he can invoke this right “at any time. . . during th[e] interview,” satisfies Miranda. We hold that it does.
The Washington Post has an article titled "Supreme Court OKs Florida Miranda rights warnings" which can be found HERE and the Tampa Tribune has an article titled "U.S. high court backs Tampa police over Miranda warning" which can be found HERE.

Friday, February 19, 2010

"Supreme Court Justice Barack Obama?"

How Appealing links to an interesting article that will run in Sunday's Washington Post.  The article "Supreme Court Justice Barack Obama?" is written by Jeffrey Rosen and is an interesting read.

Also from Jeffrey Rosen is THIS article in The New Republic titled "Roberts versus Roberts: Just how radical is the chief justice?"  [This was also from How Appealing].

Fifth Circuit Holds Louisiana Must Recognize New York Same-Sex Adoption

The Fifth Circuit released an opinion yesterday affirming the district court's entry of a mandatory injunction requiring the Louisiana State Registrar to issue a new original birth certificate to the "unmarried adult males who obtained a joint adoption decree for Infant J in a New York state court."  The decision in Adar, et al v. Smith (09-30036) stated:
This case poses an issue of first impression in this circuit; only one other circuit has addressed a similar one.7 The instant dispute implicates the questions (1) whether Louisiana owes full faith and credit to the subject New York adoption decree and (2) whether full faith and credit requires Louisiana, under the plain language of its own statute and under the constitutional requirement of “evenhanded” enforcement of that judgment, to issue a Certificate for Infant J that lists both Adoptive Parents as his parents.
The footnote cites to Finstuen v. Crutcher, 496 F. 3d 1139 (10th Cir. 2007).  While not cited in the opinion, Florida's Second District Court of Appeal previously reached the same result in Embry v. Ryan, 11 So. 3d 408 (Fla. 2d 2009).  Embry was previously discussed HERE and HERE.  Additionally, Florida's Third District Court of Appeal is currently considering whether Florida's ban against same-sex adoptions is unconstitutional.  See HERE.

The Fifth Circuit's decision provides a detailed analysis of the full faith and credit clause of the U.S. Constitution and standing.  While it is a 38 page decision, it does not appear the court has any doubts about its ruling and, at times, appears to indicate Louisiana's arguments were completely without merit.  The conclusion stated:
We hold that under the plain meaning of the statutes, Adar and Smith are the “adoptive parents” of the minor J. C. A.-S. for purposes of LA. REV. STAT. ANN. §§ 40:76 and 40:77, and that under the Full Faith and Credit Clause of the Constitution of the United States, Louisiana owes full faith and credit to the New York adoption decree that declares J .C. A.-S. to be the adopted child of Adar and Smith. We hold further that said § 40:76 does not vest the Registrar with discretion to refuse to make a new, correct birth certificate for a Louisiana born child when, as here, his out-of-state adoption decree is evidenced by documentation that indisputably satisfies the requirements of § 40:76(A) and (B). We also hold that § 40:76 mandates that the Registrar make a new record for J. C. A.-S. and issue a new, correct birth certificate for him containing all statutorily directed information.
We therefore LIFT our stay of the district court’s order; AFFIRM the district court’s grant of a mandatory injunction; and ORDER that the Registrar comply with the district court’s injunction forthwith.
Articles about the Fifth Circuit's decision can be found at the following links:  The Herald; NOLA.com; Jurist; and the Miami Herald.  Thanks to How Appealing.

Second District Affirms Conclusion That Bank Not Liable For Past Due Assessments

In Coral Lakes Community Association, Inc. v. Busey Bank, N.A. (2D08-5062), the Second District affirmed the trial court's conclusion that the bank was not required to pay delinquent assessments due to the homeowners association and affirmed the trial court's entry of a summary judgment in foreclosure.  The court stated:
At the hearing on the motion for summary judgment, the only contentious issue was whether the Bank was excused from paying the unpaid HOA assessments that had accrued. The Bank argued that at the time of the execution of its note and mortgage in 2006, the HOA's Declaration gave its lien a distinct and very advantageous priority position over any HOA lien for unpaid assessments. Moreover, the Bank, by virtue of being an intended third-party beneficiary of this paragraph of the Declaration, could not have this benefit removed by operation of the statute, which was not in existence at the time it entered into its contract with the homeowners.  Further, the Bank argued, citing to City of Sanford v. McClelland, 163 So. 513 (Fla. 1935), applying the new statutory language would impair the Bank's contractual right, i.e., its vested lien priority.
The court concluded:
We conclude that because of the Declaration's plain and unambiguous language subordinating any claim for unpaid HOA assessments to a first mortgagee's claim upon foreclosure or deed in lieu of foreclosure, it controls and absolves the Bank, as first mortgagee, from liability for any assessments accruing before it acquires the parcel. "Restrictions found within a Declaration are afforded a strong presumption of validity, and a reasonable unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms. . . ."
The HOA yielded any right to claim it had a superior lien position to the Bank's preexisting mortgage by virtue of the plain and unambiguous language of its Declaration, which the Bank had every right to rely upon when deciding to finance the homeowners' home in the Coral Lakes community. The trial court did not err in finding the Bank's first mortgage lien superior to the HOA's claim for unpaid assessments notwithstanding section 720.3085.

Florida Supreme Court March 2010 Oral Argument Calendar

The Florida Supreme Court's tentative March 2010 Oral Argument Calendar is below:

Thursday, February 18, 2010

"Supreme Power: Franklin Roosevelt vs. the Supreme Court" by Jeff Shesol

Seventh Circuit Judge Richard Posner wrote a book review titled "1937, 2010" about Jeff Shesol's new book "Supreme Power: Franklin Roosevelt vs. the Supreme Court."  The review can be found HERE.    You can buy the book at at the W. W. Norton & Company web site HERE or at Amazon.com HERE.  Both site also have comments from President Clinton, Jeffrey Toobin and Doris Kearns Goodwin.  The book will be released in March.  Mr. Shesol will be at the New York Historical Society, along with Jeffrey Toobin, to promote the book on March 23, 2010 [see HERE].  Mr. Shesol will be at the Westport Public Library on March 25, 2010 [see HERE]. 

Mr. Shesol previously wrote "Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade" which was also published by Norton [see HERE].

Thanks to How Appealing for the link to Judge Posner's review.

What A Party Must Prove To Win On Summary Judgment Before The Defendant Answers The Complaint

In BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacqueses, et al (2D08-3553), the Second District reversed a summary judgment and provided a good analysis of what a party must establish to prevail on a motion for summary judgment when the defendant has moved to dismiss the compaint or not yet answered the complaint. 
U.S. Bank filed an unverified mortgage foreclosure complaint naming the Jean-Jacqueses and BAC as defendants....U.S. Bank attached a copy of the mortgage it sought to foreclose to the complaint; however, this document identified Fremont Investment and Loan as the "lender" and Mortgage Electronic Registrations Systems, Inc., as the "mortgagee."
After the defendants moved to dismiss, "U.S. Bank filed a written response to BAC's motion to dismiss. Attached as Exhibit A to this response was an 'Assignment of Mortgage.' However, the space for the name of the assignee on this 'assignment' was blank, and the 'assignment' was neither signed nor notarized."
Subsequently, U.S. Bank filed a motion for summary judgment. At the same time...it filed the "Original Mortgage and Note" with the court. However, neither of these documents identified U.S. Bank as the holder of the note or mortgage in any manner. U.S. Bank did not file the original of the purported "assignment" or any other document to establish that it had standing to foreclose on the note or mortgage.
After explaining the general summary judgment standard, the court stated:
When a plaintiff moves for summary judgment before the defendant has filed an answer, "the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact."  As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.
The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder's representative....While U.S. Bank alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists "Fremont Investment & Loan" as the "lender" and "MERS" as the "mortgagee." When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.  Because the exhibit to U.S. Bank's complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.
Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage.
In this appeal, U.S. Bank contends that it was not required to file an assignment of the note or mortgage or otherwise prove that it validly held them in order to be entitled to summary judgment in its favor. We disagree for two reasons. First, because BAC had not yet answered the complaint, it was incumbent on U.S. Bank to establish that no answer that BAC could properly serve or affirmative defense that it might allege could raise an issue of material fact....Second, regardless of whether BAC answered the complaint, U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose.
Essentially, U.S. Bank's argument in favor of affirmance rests on two assumptions: a) that a valid assignment or transfer of the note and mortgage exists, and b) that a valid defense to this action does not. However, summary judgment is appropriate only upon record proof—not assumptions. Given the vastly increased number of foreclosure filings in Florida's courts over the past two years, which volume has taxed both litigants and the judicial system and increased the risk of paperwork errors, it is especially important that trial courts abide by the proper standards and apply the proper burdens of proof when considering a summary judgment motion in a foreclosure proceeding.

Receipt Of Funds By Insurer's Bank Binds Policy Even When Not Yet Credited To Insurer

In Nationwide Mutual Fire Insurance Company v. Smith (1D08-4761), the First District applied the “tipsy coachman” rule to affirm a summary judgment against Nationwide.  Nationwide provided a grace period for the payment of overdue premiums, in this case until 12:01 a.m. on Sunday, September 25, 2005.  The trial court concluded that since the deadline fell on a Sunday it was automatically extended until Monday "by operation of Florida Rule of Civil Procedure 1.090(a)."  The First District stated:
The only applicable statute in this case is section 627.728(3)(a), Florida Statutes (2005), which requires an insurer to give its insured 10 days’ notice before cancelling a policy for nonpayment of premium. Because the statute does not require the insurer to allow the insured to make an overdue premium payment before the cancellation date in order to avoid cancellation of the policy for nonpayment of premium, the time computation provisions of rule 1.090(a) are not applicable in this case.
By extending the payment deadline to the next business day, the trial court stacked “grace” upon “grace,” which cannot be done by implication under contract law.
However, the trial court's decision was still affirmed.  While the opinion does not provide the facts, it appears prior to the deadline the insured had transferred funds from its bank account to the bank of the insurer. Apparently, the insurer's bank had not credited the funds to the insurer by the deadline.  The court stated:
even if the payment deadline was not extended, the trial court properly entered summary judgment for the insured because appellant’s bank received the insured’s electronic payment file before the cancellation date and the delay in the deposit of the payment into appellant’s bank account was due to processing delays by appellant’s bank.
It would be interesting to know how the transfer was made and when it was made.  If it was an online payment, there are usually terms and conditions when you make the payment and, usually, those terms and conditions would prevent a result based upon a delay in crediting the funds.

Retroactive Application Of Statute By OIR Reversed

In Coventry First, LLC v. Florida, Office of Insurance Regulation30 So. 3d 552 (Fla. 1st DCA 2010),  the First District held that the trial court erred as a matter of law when it retroactively applied a statute.  The court stated:
“The general rule is that a substantive statute will not operate restrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.”  Tracking the constitutional reasoning  used by the United States Supreme Court in Ruckelshaus v. Monsanto Company, 467 U.S. 986, 1001-14 (1984), and Landgraf v. USI Film Products., 511 U.S. 244, 280-86 (1994), the Florida Supreme Court has described the proper  two-pronged analysis  for determining whether an enactment such as the 2007 amendment should have retroactive application.  “The first inquiry is one of statutory construction:  whether there is clear evidence of legislative intent to apply the statute retrospectively.”...“The general rule is that in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively.”...“If the legislation clearly expresses an intent that [an act] apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible.” 
Coventry correctly notes the trial court erred in failing to address and adjudicate this required second prong of the  legal analysis....We do not find the legislative consideration, mandated by law, anywhere in the 2007 amendment. Instead, we conclude that retroactive application of the 2007 amendment improperly deprived Coventry of vested property rights in the continuing confidentiality and exemption of its trade secrets and other work papers already submitted to the OIR pursuant to  the agency’s regulatory duties....We hold that the amendments here at issue are not retroactive as to Coventry’s work papers.
The oral argument in the case can be viewed below.

Wednesday, February 17, 2010

"What's in a Name? Insured Loses Coverage By Failing to Inform Insurer of Name Change"

David S. White has a post about a recent decision from the Northern District of Texas.  The first paragraph of the post, at the Law and Insurance Blog [HERE], is below:
What's in a Name? Insured Loses Coverage By Failing to Inform Insurer of Name Change

VRV Development, L.P. v. Mid-Continent Cas. Co., No. 09-cv-1382 (N.D. Tex. Feb. 3, 2010) see Decision

The insured in this case lost coverage because it changed its name in 2005 from VRV Development, Inc. to VRV Development, L.P. and failed to change the named-insured designation on its liability policy. Risk managers, take heed! On the named-insured designation, expect no tolerance with the identification of the business. A corporation is not a limited partnership. A miss is as good as a mile.
Click HERE to read the rest of his post.

Injunction Reversed For Failing To Meet Any Of The Required Elements

In Biscayne Park, LLC v. Wal-Mart Stores East, LP (3D08-3219), the Third District reversed the entry of a temporary injunction.  In a concurring opinion, with a little humor, Judge Schwartz stated:
A preliminary injunction must be based on four indispensable elements. See Wilson v. Sandstrom, 317 So. 2d 732, 736 (Fla. 1975). In my opinion, the one in this case is supported by none of them. Apart from that, it’s fine.
The court's opinion stated:
The well-established requirements for the issuance of a temporary injunction are: (1) the likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the petitioner outweighs any possible harm to the respondent; and, (4) the entry of the injunction will not disserve the public interest......A review of the proceedings below demonstrates that Wal-Mart’s alleged injury was its possible monetary liability resulting from possible future contamination to groundwater through the wells. “[T]his court has previously held that the granting of injunctive relief is improper when a plaintiff’s right to recover is based upon a future event,”.....Because the alleged injury is speculative, we conclude that it is insufficient to meet the irreparable injury standard.....Additionally, in the event that such an alleged event were to occur, Wal-Mart would have an adequate remedy at law, i.e., a claim for money damages.
While Judge Schwartz does not below the injunction satisfied any of the required elements, Judge Gersten disagreed.  In a dissent, he stated:
The trial court did not abuse its discretion in granting the temporary injunction because the requirements for issuing one were satisfied. Trial courts have wide discretion in granting or denying a temporary injunction, and appellate courts will not interfere with the exercise of such discretion unless the party challenging the grant or denial clearly shows an abuse of discretion....Therefore, the trial court properly and responsibly granted the temporary injunction on legal, apparent environmental concerns. The trial court was well within its discretion in protecting Wal-Mart from liability for the environmental damage. Moreover, the trial court acted responsibly to protect against further damage to our over-indulged, over-taxed, and under-protected environment. In fact, I feel that a reversal in these circumstances is a slap in the face to a hardworking trial judge who was only doing his job . . . well....Accordingly, because Wal-Mart satisfied the requirements for the temporary injunction and the issue is now moot, I respectfully dissent. On an end note, I regret the expenditure of paper resources used in the writing of both the majority and dissent, but reiterate that I would affirm the order granting Wal-Mart’s verified motion for temporary injunction.
(emphasis added).

Request To Ignore Florida Supreme Court Rejected As Insulting & Frivolous

Apparently, it was not clear that when the Florida Supreme Court decides an issue--the lower courts are bound.  In Lower Keys Medical Center v. Windisch (3D09-3082), the Third District cleared up the confusion.  The court stated:
The petitioner’s position in this case is directly contrary to Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008), and each of the other District Courts of Appeal. See West Fla. Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676) (Fla. 1st DCA 2009); Lakeland Reg’l Med. Ctr. v. Neely, 8 So. 3d 1268 (Fla. 2d DCA 2009); Columbia Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236 (Fla. 4th DCA 2009); Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044 (Fla. 5th DCA 2009).
Even if we were inclined, which we are not, we do not have the authority to rule otherwise. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). The petitioner’s suggestion that we might do so is insulting and frivolous.
(emphasis added).

Failure To Timely File Answer Brief Leads To Exclusion From Oral Argument

In Perez v. Deutsche Bank Trust Co. (3D09-504), the Third District highlighted one possible penalty for failing to timely file an appellate brief.  The Appellee was excluded from oral argument and lost the appeal.

Order Setting Aside Foreclosure Sale Based Upon "Victimhood" Reversed

In Phoenix Holding, LLC v. Martinez, et al (3D09-3365), reversed "an order denying its motion for a writ of possession and granting the mortgagors’motion to vacate the sale and the judgment upon which it was based."  The court noted that "The mortgagors had provided no true defense to the foreclosure but had merely pled their victimhood in various ways."  As explained below, victimhood is not a legal basis to set aside a mortgage sale. 
“It is established that a judicial sale may be set aside on the grounds of gross inadequacy of consideration, surprise, accident, mistake, or irregularity in the conduct of the sale.”  U-M Pub., Inc. v. Home News Pub. Co., 279 So. 2d 379, 381 (Fla. 3d DCA 1973) (citing Moran-Alleen Co. v. Brown, 123 So. 561 (Fla. 1929)). “However, even though a judicial sale will not be set aside due to ‘slight defects,’ or for ‘merely technical, formal, and unimportant irregularities,’ we must view the proceedings in their totality.” Id
For the first time on appeal, the mortgagors argue that because Rule 1.080(h)(2), Florida Rules of Civil Procedure, gives a mortgagor against whom a default judgment has been entered the right to be served with a copy of the judgment, and because the final judgment in this case was served to them at the wrong address, it was correctly reversed. However, Rule 1.080(h)(3) notes that subdivision (h) “is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action.”
The court then stated:
With no valid reason, the trial judge set aside the judgment and sale solely because he did not “think it [was] fair.” Unfortunately, neither the ground of fairness nor “the ‘ground’ of benevolence and compassion . . . constitute[s] a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.” Republic Fed. Bank, N.A. v. Doyle, 19 So. 3d 1053, 1054 (Fla. 3d DCA 2009).  Although the trial judge might believe otherwise, “[w]e cannot agree that courts of equity have any right or power under the law of Florida to issue such order it considers to be in the best interest of ‘social justice’ at the particular moment without regard to established law.” Flagler v. Flagler, 94 So. 2d 592, 594 (Fla. 1957).

Tuesday, February 16, 2010

Tenth Circuit Affirms 310 Year Sentence For Forty Million Dollar Ponzi Scheme

In Lewis v. U.S. and Schmidt v. U.S. (08-1170 & 08-1171), the Tenth Circuit affirmed the conviction (with a small exception) of two ponzi schemer's in Colorado.  The ponzi scheme lasted four years and resulted in a loss of forty million to the investors.  For the forty million dollar scheme, one was sentenced to 310 years in prison (reduced from 330 years) and the other 360 months in prison.  The court stated:
Norman Schmidt and Charles Lewis conducted a Ponzi scheme through a number of ostensible investment companies (the “scheme companies”). Prospective investors were told that they would be participating in an exclusive program that purchased high-yield notes whose principal was guaranteed by reputable insurers. But their money was never used to purchase such notes. Rather, funds from new clients were used to pay the operators of the scheme and to pay off earlier investors. The scheme, which lasted from April 1999 until late 2004, resulted in estimated losses to investors of more than $40 million....Schmidt was convicted on one count of conspiracy, five counts of mail fraud, six counts of wire fraud, twelve counts of securities fraud, and thirteen counts of money laundering (and acquitted on five counts). He was sentenced to 330 years’ imprisonment. Lewis was convicted on one count of conspiracy, two counts of mail fraud, one count of wire fraud, five counts of securities fraud, and one count of money laundering (and acquitted on 12 counts), and was sentenced to 360 months’ imprisonment.
The opinion can be viewed HERE.

Friday, February 12, 2010

Second District Explains When Payment By An Insurer Results In A Confession Of Judgment

In Clifton v. United Casualty Insurance Co. (2D09-971),  the Second District reversed the entry of summary judgment and, more importantly, explained when a confession of judgment is appropriate based upon payment from an insurer after a lawsuit is filed.  After an extensive analysis of the relevant case law, the court stated:
What can be gleaned from these cases is that an insurer that is aware of a dispute with its insured cannot simply ignore that dispute, wait until the insured files suit to demand appraisal, pay any subsequent appraisal award, and then maintain that the payment does not constitute a confession of judgment as a matter of law. On the other hand, if an insurer is not on notice that the claim or payment is disputed, the insured generally will be unable to show that he or she was "forced" to file suit, and a subsequent post-suit payment by the insurer may not constitute a confession of judgment. While this does not mean that the insured is required to invoke the appraisal clause prior to suit, it does mean that the insured must, at a minimum, clearly notify his or her insurer in a timely fashion of his or her dissatisfaction with the amounts paid.
Contrary to Clifton's argument here, the Goff opinion does not stand for the proposition that any post-suit payment automatically operates as a confession of judgment. Instead, when considered in its factual context, the Goff opinion held that State Farm's payment operated as a confession of judgment because State Farm was aware that the Goffs disputed the settlement of the claim but it took no steps to resolve that dispute. The Goffs' suit forced State Farm's hand, and thus the suit was "necessary" to obtain policy benefits. The Goff decision is also entirely consistent with the holdings of Myrick, Lewis, Wilson, and Meadows MRI that an insurer that knows of a dispute with its insured, takes no steps to resolve that dispute, and then makes a postsuit payment of additional policy proceeds confesses to judgment by that post-suit payment.
Finally, we reject United Casualty's argument that its payment should not operate as a confession of  judgment because it never denied Clifton's claim. When an insurer is aware that an insured disputes the settlement of a claim and the insurer fails to respond in any fashion to the insured's demands for further action, that failure has the legal effect of denying coverage. See Sanchez v. Am. Ambassador Cas. Co., 559 So. 2d 344, 346 (Fla. 2d DCA 1990) (holding that when an insurer was aware of its insured's demand for either payment or arbitration and it chose not to respond to the demand until after suit was filed, the insurer's actions amounted to a denial of coverage). While an insurer is clearly not required to pay any sum demanded by an insured to avoid a judgment for breach and award of attorney's fees, an insurer may not simply sit back and ignore its insured's demands for additional payments and then claim that its failure to respond does not operate as a denial of coverage.

Thursday, February 11, 2010

Florida Supreme Court Amends Residential Foreclosure Rules Of Civil Procedure

The Florida Supreme Court issued an opinion today amending the Florida Rules of Civil Procedure with regard to residential foreclosures.  The consolidated opinion in IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE (SC09-1460) and IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE - FORM 1.996 (FINAL JUDGMENT OF FORECLOSURE) (SC09-1579) can be viewed HERE.  The changes are below:

With regard to SCO9-1460, the first amendment was:
Rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded "lost note."
The new form is meant to help standardize affidavits of diligent search and inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant.
Third, the process server must now state:
I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results: ________.
Next, the court amended the form to incorporate the provisions of section 49.041, Florida Statutes which "sets forth the minimum requirements for an affidavit of diligent search and inquiry." 

For the final change,  the court stated:
Finally, we adopt the Task Force’s proposed Motion to Cancel and Reschedule Foreclosure Sale as new form 1.996(b). The Task Force recommended adoption of this new form in which the plaintiff would provide the court with an explanation of why the foreclosure sale needs to be cancelled and request that the court reschedule the sale."
With regard to case SC09-1579, the court stated:
First, to conform to current statutory requirements, a notice to lienholders and directions to property owners as to how to claim a right to funds remaining after public auction is added to the form. See § 45.031(1), Fla. Stat. (2009). Additionally, to conform to current statutory provisions allowing the clerk of court to conduct judicial sales via electronic means, the form is amended to accommodate this option. See § 45.031(10), Fla. Stat. (2009).
Other amendments are as follows: (1) in order to provide greater clarity and prevent errors, paragraph one of the form is amended to set out amounts due in a column format; (2) paragraph two is amended to allow for the possibility that there may be more than one defendant, and out of concern for privacy interests, the lines for an address and social security number are deleted; (3) paragraph four is amended to conform to existing practice and require a successful purchaser to pay the documentary stamps on the certificate of title; (4) paragraph six is amended to accommodate the possibility that there may be multiple defendants, to adapt to the requirements of section 45.0315, Florida Statutes (2009), stating that the right of redemption expires upon the filing of the certificate of sale, unless otherwise specified in the judgment, to recognize the potential survival of certain liens after foreclosure as provided in chapter 718 (the Condominium Act) and chapter 720 (Homeowners’ Association), Florida Statutes (2009), and to allow a purchaser to obtain a writ of possession from the clerk of court without further order of the court

Wednesday, February 10, 2010

Monday, February 8, 2010

Florida Supreme Court Denies Martin Grossman's Motion For Postconviction Relief - Execution Scheduled For Next Week

The Florida Supreme Court issued an opinion today denying Martin Edward Grossman's third successive motion for postconviction relief.  The opinion can be viewed HERE.  A Miami Herald article about the decision can be viewed HERE and an article in the Tampa Tribune HERE.  The execution is scheduled for February 16, 2010 at 6:00pm.  The court's summary is below:
Martin Edward Grossman, a prisoner under sentence of death and under an active death warrant, appeals from the trial court’s order summarily denying his motion to vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction over the appeal under article V, section 3(b)(1), of the Florida Constitution. In his successive motion filed after the death warrant was signed, the summary denial of which is the subject of the present appeal, Grossman raised claims that were either previously raised in his postconviction proceedings that concluded in 1997 or repeatedly rejected by this Court as legally without merit. Therefore, as more fully explained in this opinion, we affirm the trial court’s order.
Presumably, a petition for certiorari will be filed in the United States Supreme Court and a motion to stay execution will be filed with Justice Thomas.  As of now, there is nothing on the Supreme Court's docket to reflect any filings.

Prior opinions are in this case are: Grossman v. State, 525 So. 2d 833 (Fla. 1988), cert. denied, 489 U.S. 1071 (1989); Grossman v. Dugger, 708 So. 2d 249 (Fla. 1997); Grossman v. Crosby, 880 So. 2d 1211 (Fla. 2004); Grossman v. Crosby, 359 F. Supp. 2d 1233 (M.D. Fla. 2005), aff’d sub nom. Grossman v. McDonough, 466 F.3d 1325 (11th Cir. 2006), cert. denied, 550 U.S. 958 (2007); Grossman v. State, 932 So. 2d 192 (Fla. 2006); and Grossman v. State, 5 So. 3d 668 (Fla. 2009).

Florida Supreme Court Invokes All Writs Jurisdiction Over US Sugar Cases

In South Florida Water Management District v. Miccosukee Tribe of Indians of Florida, the Florida Supreme Court exercised its all writs jurisdiction, provided by the Florida Constitution, and took jurisdiction of two cases pending before the Third District.  The issues in the case as stated by the South Florida Water Management District are below:
The District and the United States Sugar Corporation (the "USSC") have entered into a contract pursuant to which the District will acquire from USSC farmland for purposes of Everglades restoration and preservation. Pursuant to Chapter 75, Florida Statutes, the District filed suit to validate the proposed issuance of certificates of participation (the "COPs") to South Florida Water Management District finance the acquisition.
The Miccosukee Tribe of Indians of Florida (the "Tribe") and New Hope Sugar Company and Okeelanta Corporation (collectively, "New Hope") appeared and actively opposed the bond validation.
The Court's order can be viewed HERE and is copied below:
Petitioner's petition to invoke all writs jurisdiction is hereby granted and the Third District Court of Appeal is hereby directed to transfer forthwith to this Court the consolidated cases styled New Hope Sugar Company, et al. v. South Florida Water Management District, Case No. 3D09-2357, and Miccosukee Tribe of Indians of Florida v. South Florida Water Management District, Case No. 3D09-1960. Because we are confident that the district court will act in a manner consistent with this order, we withhold issuance of the writ.
The Petition to Invoke All Writ's Jurisdiction can be viewed HERE and the Appendix HERE. The Respondent's Suggestion of Lack of Jurisdiction can be viewed HERE.  The Supreme Court's Order to Show Cause as to why it should not accept jurisdiction can be viewed HERE.  All filings can be viewed HERE.

Florida Supreme Court To Review Powers Of Clerks Of Court

The Florida Supreme Court entered an order today accepting jurisdiction in the case of Board of County Commisssioners of Collier County v. Brock, et al (SC09-2190).  The order can be viewed HERE.  The Supreme Court also entered THIS order which stayed the entry of the mandate by the Second District.  Justice Labarga dissented from the Court's order staying the Second District's mandate, however, the decision to accept jurisdiction was unanimous.  The summary of the argument in the brief on jurisdiction is copied below:
This Court has jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution because it expressly affects two classes of constitutional officers in all 67 Florida counties -- the Florida boards of county commissioners and the Florida clerks of court. The decision expressly expands the scope of powers that the Clerk has and expressly limits the scope of powers that the Board has. The decision also conflicts with this Court's opinion in Alachua County v. Powers, 351 So. 2d 32 (Fla. 1977).
This ruling is one of first impression and uses a statutory public banking scheme under Fla. Stat. Chapter 136.01 et seq. to enlarge the power of county clerks to include post-audit power as to discretionary spending decisions made by boards of county commissioners and does not appear to limit the types of audits that may be performed. No limits have been set as to this power, nor has “postpayment audit” been defined by the decision. The District Court justifies this decision, A-6, as being needed to “tests existing internal controls;” however, what is patently unclear is who’s internal controls need to be tested; the Board’s or the Clerk’s?
This Court should exercise its discretion to accept jurisdiction and review the Second District's decision because that decision significantly impacts boards of county commissioners and clerks across the state, conflicts with the historical constitutionally and statutorily authorized functions and powers of boards and clerks, and creates a considerable conflict of interest for clerks. Indeed, the danger of that conflict of interest has been emphasized by the U.S. Supreme Court. 
The relevant documents in this case are below:

Sunday, February 7, 2010

Supreme Court Decision Renders Previously Timely Notice Of Appeal Untimely

The Ninth Circuit's decision in Haight v. Catholic Healthcare West is an interesting one.  The notice of appeal was timely filed based upon the existing law in the circuit.  However, the Supreme Court issued an opinion stating that the circuit was wrong with regard to the law.  Therefore, the notice of appeal was untimely.  The court stated:
Plaintiffs filed a notice of appeal in this qui tam action 51 days after the district court granted summary judgment in favor of Defendants. We must dismiss this appeal for lack of jurisdiction because Plaintiffs filed the notice of appeal more than 30 days after the entry of judgment. Fed. R. App. P. 4(a)(1)(A). When the notice of appeal was filed, this appeal was timely under then-controlling circuit law that gave Plaintiffs 60 days to file an appeal, but dismissal is now required by an intervening Supreme Court decision ruling that the allowable time is 30 days.
It is a serious understatement to call this result “inequitable,” Bowles, 551 U.S. at 214. Plaintiffs reasonably relied on Ninth Circuit precedent that gave them 60 days to file a notice of appeal. But the Supreme Court has instructed us that concerns of equity must give way before the “rigorous rules” of statutory jurisdiction. Id.
Thanks to How Appealing.

"Why (and When) Judges Dissent: A Theoretical and Empirical Analysis"

Three law professors released an interesting article about why Judge's dissent.  The article "Why (and When) Judges Dissent: A Theoretical and Empirical Analysis" was written by Lee Epstein, Northwestern University - School of Law; William M. Landes, University of Chicago Law School; National Bureau of Economic Research (NBER); and Richard A. Posner, University of Chicago Law School; National Bureau of Economic Research (NBER) (also a Seventh Circuit Judge).

The article abstract states:
This paper develops and tests a model of self-interested judicial behavior to explore the pheno-menon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court.
The suggested citation is: Epstein, Lee, Landes, William M. and Posner, Richard A., Why (and When) Judges Dissent: A Theoretical and Empirical Analysis (January 20, 2010). U of Chicago Law & Economics, Olin Working Paper No. 510. Available at SSRN: http://ssrn.com/abstract=1542834

Thanks to How Appealing.

Eleventh Circuit Affirms Judgment Based Upon Statute of Limitations In ERISA LTD Case

The Eleventh Circuit had two decisions relating to the statute of limitation in claims for long term disability benefits under ERISA. In Knight v. Unum Provident Insurance Co. (09-13653), the Eleventh Circuit affirmed the entry of a summary judgment against Unum based upon the plaintiff's failure to file her lawsuit within the controlling statute of limitation. The brief facts were provided by the court as follows:
The policy stated that a policyholder could commence “legal action regarding [a] claim 60 days after proof of claim has been given and up to 3 years from the time proof of claim is required, unless otherwise provided under federal law.” Knight received short term disability benefits for her absences from work caused byallergic reactions to latex between October 2001 and May 2002. In June 2002, Knight’s claim was transferred to Unum’s long term disability division. On September 30, 2002, Unum denied Knight long term disability benefits beyond June 25, 2002. Knight appealed and, on December 13, 2002, Unum extended Knight’s benefits to December 5, 2002. Knight did not challenge Unum’s decision.
In 2005, Unum notified Knight that she could fill out a form for a reassessment of her long term disability claim.  "On October 17, 2006, Unum notified Knight that she was entitled to long term disability benefits between December 6, 2002, and July 24, 2003."....."On September 17, 2008, Knight filed a complaint that Unum had “breach[ed] [its] fiduciary duty and impair[ed] the obligation of contract under the Employment Retirement Income Security Act” by denying her long term disability benefits after July 24, 2003."

The Eleventh Circuit agreed with the district court that the complaint was untimely:
The district court ruled that Knight commenced her action to recover unpaid benefits after the period of limitation had expired.
Knight argues that her complaint was timely, but we disagree. Knight’s policy imposed a three-year statute of limitation for her to file an a complaint about the denial of disability benefits, and Knight does not argue that period of time is unreasonable. See Northlake Reg’l Med. Ctr. v. Waffle House Sys. Employee Benefit Plan, 160 F.3d 1301, 1303–04 (11th Cir. 1998). Knight commenced her action after the statute of limitation expired.
In Ehmann v. Continental Casualty Company (09-11615), the Eleventh Circuit reversed the grant of summary judgment to Ehmann because the statute of limitation had expired when the suit was filed.  The court noted that it did not matter if the contractual language controlled or a longer statutory limitatio period.  Either way, the deadline had been missed.

Fee Award Reversed Because Underlying Judgment Previously Reversed

In Morton, et al v. Boyd, et al (2D08-5207), the Second District reversed the award of attorneys fees based upon a proposal for settlement because the court had previously reversed the underlying judgment.

Florida Supreme Court Releases 2008-2009 Foreclosure Statistics

The Florida Supreme Court released foreclosure statistics for 2008-2009.  The document can be viewed HEREPaul Brinkmann at the South Florida Business Journal wrote an article about the report titled "Florida high court issues foreclosure report."  The South Florida Business Journal article notes:
In Miami-Dade County, foreclosures rose 13.2 percent, to 63,522 in 2009 from 56,100 in 2008. In Broward County, they were up 8 percent, to 49,640 from 45,923. And in Palm Beach County, foreclosures rose 3 percent, to 30,304 from 29,411.
Other articles can be found at the following links: Palm Beach Post; SunSentinel; Jackonville Observer; and TampaBay.com

Previously, on December 29, 2009, the Florida Supreme Court entered an orde requiring mediation prior to the entry of a final judgment in residential foreclosure cases.  That was discussed HERE.  The Task Force that led to the entry of the Administrative Order was discussed HERE.  Some of the mandatory foreclosure programs throughout the state were discussed on April 25, 2009 HERE.

Friday, February 5, 2010

Prohibition Granted And Trial Judge Recused Based Upon Allegations Of Favorable Interest Rates From Lender

In Mines v. Countrywide Home Loan, Inc. (1D09-5669), the First District granted a writ of prohibition and ordered the Chief Circuit Judge to appoint a new trial judge.  The Petitioner alleged the trial judge should be recused "based upon an alleged financial interest in the form of favorable interest rates not available to the public in the judge’s own dealings with a lender with a close corporate affiliation to the plaintiff in the instant cause."  The First District held that:
This court finds that these facts, taken as true as they must be, would prompt a reasonably prudent person to fear that he or she will not obtain a fair and impartial hearing. We therefore grant the petition and direct the trial judge to enter an order of recusal, requesting that the chief circuit judge appoint a new judge to preside over the cause.
The docket from the trial court can be viewed HERE and the First District's docket for the case can be viewed HERE. The Petitioner's Petition can be viewed HERE, the Respondent's Answer Brief HERE and the Petitioner's Reply Brief HERE.  The Petition is also below:
Mines v. Countrywide - Petition

Florida Supreme Court February 2010 Oral Argument Summaries

Summaries of the cases being argued before the Florida Supreme Court in February 2010 are below:

Thursday, February 4, 2010

Application of Presuit Notice To Insurance Policy Is A Substantive Right, Cannot Be Retroactively Applied

The Florida Supreme Court released its opinion today in Menendez v. Progressive Express Insurance Co., Inc. (SC08-789) and concluded that "the Third District erred in holding that requiring the insureds to comply with the presuit notice requirements of the statute did not 'violate the general rule against retrospective operation'.”  Because “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract,”  the Third District's decision was quashed.  The Florida Supreme Court stated:
In holding that the statutory presuit notice provision could be applied retroactively to the insured’s claim because it was "merely procedural" and did not unconstitutionally alter any existing rights, the decision of the Third District expressly and directly conflicts with the decisions of this Court in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55 (Fla. 1995), and Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985), and the decisions of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437 (Fla. 1st DCA 2004). Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.
The briefs, oral argument and the Third District's opinion are linked below.

Florida Supreme Court

*Florida Supreme Court's Opinion (2/4/2010)

Third District Court of Appeal

*Third District's Opinion, 2007 WL 4245385 (12/05/2007)

Wednesday, February 3, 2010

Florida Supreme Court Enters Order Accepting Oral Argument In Nine Cases

The Florida Supreme Court entered orders scheduling oral argument  in the following cases which it had previously accepted jurisdiction:

Order Compelling Appraisal Of Hurricane Damage Reversed As Premature

In Sunshine State Insurance Company v. Corridori (4D09-2502), the Fourth District reversed the trial court's order compelling appraisal of a Hurricane Wilma claim because the court "concluded that the appraisal was premature." 

After an initial claim for damages was paid, the insurer closed the claim.  However, "two years later, appellees submitted a 'supplemental claim' for damages discovered by a public adjuster."  After demanding certain documents (and claiming the insured did not comply, the insurer "denied the claim, concluding that the damages claimed were not in fact 'supplemental' to the original damages. Appellants further claimed that appellees breached the contract by failing to comply with the proof of loss requirement, and appellees materially breached the policy."

Because the insurer denied coverage, appraisal is not yet appropriate.  According to the opinion, "Issues of coverage are 'for judicial determination by a court,' not the appraisal panel. Id. [Johnson v. Nationwide Mutual Insurance Co., 828 So. 2d 1021, 1026 (Fla. 2002)]. Once the court establishes that the losses are covered by a policy, then those losses may be appraised."  The court then stated:
The parties dispute whether the claimed losses are covered by the policy and whether appellees complied with the policy requirements. Specifically, appellees claim that their compliance with the policy requirements was not necessary because appellant previously admitted coverage....By contrast, appellant claims it never admitted coverage and maintains that appellees’ compliance with the policy demands was insufficient....Whether appellees’ compliance with the policy terms was necessary or sufficient is a dispute of fact. The trial court, without taking any evidence, did not resolve this dispute of fact with competent evidence to support its determination of coverage. Because the trial court must resolve all underlying coverage disputes prior to ordering an appraisal, we reverse and remand for further proceedings consistent with this opinion.

First District Oral Arguments Relating To Bad Faith, Insurable Interest and Equitable Estoppel

There were (at least) two interesting oral arguments before the First District last week.  As is explained at the bottom of the post, the court did not find either interesting and affirmed both within days of the respective arguments.

This first case involved a number of issues including bad faith and equitable estoppel.  The case style is Cessna Aircraft Co. v. Certain Underwriters at Lloyd's, London, et al (1D09-2497) and the video is below:

The second was in the case of First Protective Insurance Company v. Mitchell (1D08-5727).  The issue before the court was whether the insured had an insurable interest in the property.  The insured did not own the property at the time of loss, however, was under contract to purchase the property (with the option to back out).  The video is below:


The court did not find either the First Protective or the Cessna case as interesting and issued a per curiam affirmance in both cases two days after the respective arguments.  The First Protective decision can be viewed HERE and the decision in Cessna can be viewed HERE.

Monday, February 1, 2010

Test To Apply When Party Seeking DNA In Paternity/Probate Dispute

In Doe v. SunTrust Bank, et al (2D08-1239), the Second District granted a petition for certiorari and reversed a trial court order that required the petitioners submit to DNA testing.  The court concluded the movant below failed to comply with the requirement of rule 1.360 that "the movant must make an affirmative showing that the 'condition as to which the examination is sought is really and genuinely in controversy' and that good cause exists for ordering the examination."  Judge Kelly wrote the opinion and Judge Altenbernd concurred.  Judge Silberman concurred in part and dissented in part.  After quashing the order below, the majority stated:
Because it seems likely that Madelin will again attempt to obtain discovery to assist her in establishing that she is a beneficiary of Doe's trusts, and because a request to test the relatives of a deceased putative father in the context of an action to determine the beneficiaries of a trust presents some unique issues, we believe it is appropriate to offer the parties and the court some guidance should this issue arise again.
First, we note that the issue of whether Madelin is Doe's child, and thus a beneficiary of his trusts, is clearly at the heart of this litigation. However, thus far, it appears that the only pleadings suggesting she may be his child are the Trustee's verified complaint, which simply attests to the Trustee's knowledge that Madelin claims to be Doe's child and her verified motion to compel testing which states only that she "maintains she is a child born out of wedlock" to Doe. We believe something more is required, for example, an affidavit from Madelin's mother alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact with Doe.  See § 742.12(2) (requiring a sworn statement or declaration under penalty of perjury alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties as a perquisite to obtaining an order for scientific testing). Such an affidavit would satisfy the requirement that the subject matter of the test be "really and genuinely" in controversy. See Schlagenhauf, 379 U.S. at 119. 
Madelin will also have to demonstrate "good cause" for her request that Adrian and Evelyn be required to provide a buccal swab sample for testing. In the typical paternity action, a compelled DNA test is dispositive of the issue in controversy, and thus good cause for the test is established. See Wicky, 34 Fla. L. Weekly at D1613. This case is not, however, a typical paternity case because it is the legitimate children of the deceased putative father who are being asked to submit a sample of their DNA for testing. Under these circumstances, we believe two considerations are important in determining the existence of good cause. First, it would seem appropriate that Madelin provide some evidence that a comparison of her DNA with the DNA of Doe's legitimate children could produce a result that would tend to prove or disprove the existence of a genetic link between Doe and Madelin. Second, it would also seem appropriate to require that she make some showing of need. For example, in the arguments presented to this court, Madelin and the Trustee have indicated that Doe was cremated, thus eliminating the possibility of any comparison with a sample derived from his remains. As far as we can tell, this fact was not presented as evidence in the trial court. Likewise, while the Trustee's verified complaint suggests that no official documentation exists that would allow Madelin to establish that Doe is her father, it seems reasonable to require a more definitive statement to that effect, perhaps from Madelin's guardian ad litem.
Finally, as we explained in Wicky, in all discovery matters the competing interests of the parties must be balanced. 34 Fla. L. Weekly at D1613. Doe did not name specific beneficiaries in his trusts; instead he instructed that the assets in the trusts be divided among his children. Other language in the trusts indicates he contemplated the possibility of having children other than Adrian and Evelyn. Given that this is an action to determine the beneficiaries of his trusts, consideration should be given to effectuating his intent as expressed in the trusts. As for Madelin, if she is in fact Doe's child, her rights with respect to the trusts are equal to those of Evelyn and Adrian. Further, her interests are akin to those of an out of wedlock child seeking to share in the intestate estate of a parent. Florida recognizes the right of an out-ofwedlock child to share in a parent's estate. See § 732.108(2). Florida also recognizes the right of a child born out of wedlock to establish paternity after the death of the father.  See § 732.108(2)(b). For that right to be meaningful, the child must have a fair opportunity to prove that the deceased is her father. What is fair may vary from case to case, but any evaluation should take into account the heightened burden of proof imposed on out-of-wedlock children who seek to establish paternity after the death of the putative father. See Berkey v. Odom (In re Estate of Odom), 397 So. 2d 420 (Fla. 2d DCA 1981) (holding that in an action to establish paternity after the death of the father, proof of paternity shall be by clear and convincing evidence), disapproved on other grounds, Wilson v. Scruggs (In re Estate of Smith), 685 So. 2d 1206 (Fla. 1996). 
On the other hand, Adrian and Evelyn have a privacy interest they seek to protect. In considering the weight to afford that interest, several factors are important. First, the intrusion is minimal—the test Madelin seeks is noninvasive, and the purpose of the test is limited to comparing her DNA to theirs. Second, rule 1.360(a)(3) provides that the court, upon request, may establish protective rules governing an examination. Thus far, Adrian and Evelyn have only asserted a generalized complaint that submitting a DNA sample invades their privacy, however, if they are able to articulate any specific privacy concern, they have the ability to ask the court to fashion protective rules to address that concern. Third, Adrian and Evelyn have affirmatively denied that Madelin is Doe's child, and they have actively opposed all efforts by her or Maria to prove that they are his children. Having taken that position, it is questionable whether they should be permitted to withhold the evidence that may put Madelin's claim and their defense to rest once and for all. They have the alternative of conceding that Madelin is a beneficiary should they wish to avoid the test.