Monday, November 29, 2010

Justice Stevens on the Death Penalty

Justice Stevens wrote a book review about the death penalty and was interviewed by 60 Minutes.  The book review was published by The New York Review of Books, is titled "On the Death Sentence" and can be viewed HERE.  The interview can be viewed HERE and HERE

Sunday, November 28, 2010

Order Allowing Discovery Of Claim File Prior To Determination On Liability Quashed

In State Farm Mutual Automobile Insurance Co. v. Tranchese (4D10-2940), the Fourth District granted a petition for certiorari and quashed a trial court's order relating to a bad faith claim prior to the adjudication of the underlying claim.  The court stated:
We grant the petition as to the abatement, because the final determination of coverage and damages for the underlying claim has not been made, which must precede a statutory bad faith action...Where causes of action for both the underlying damages and bad faith are brought in the same action, the appropriate step is to abate the bad faith action until coverage and damages have been determined.
With regard to the discovery the trial court allowed, the Fourth District stated:
As to the requests for admissions regarding business practices and claims policy procedures, we grant the petition, holding that until the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to the claims filed or to the insurer’s business policies or practices regarding handling of claims.  

Wednesday, November 24, 2010

Order Compelling Appraisal Reversed Because Insured Did Not Cooperate In Claim Investigation

In Citizens Property Ins. Corp. v. Galeria Villas Condominium Association, Inc. (3D10-0807), the Third District reversed an order compelling appraisal and remanded the case to the trial court "to require Galeria to establish that it has (a) provided certain records requested by Citizens as it considered Galeria’s claim and (b) provided Citizens’ adjuster or “loss consultant” reasonable  rights of access to, and inspection of, the property damage detailed in Galeria’s claim."

After Galeria sustained damage from Hurricane Wilma:
Galeria submitted a sworn proof of loss that was investigated by a Citizens adjuster.  Citizens’ estimate of damages did not exceed the deductible for the property, and therefore Citizens made no payment to Galeria.  Citizens did not dispute that a covered loss had occurred....Thereafter, Galeria retained a public adjuster, Preferred Claim Solutions, Inc., and Preferred prepared detailed construction cost estimates broken out by building, line item, quantities, and unit costs.  Contractor’s overhead and profit and sales tax were also itemized for each of the 16 buildings, and a separate total for all of the repairs was included.  The total  estimate for repairs for the October 24, 2005, windstorm loss was $1,886,054.86.  These detailed cost estimates, all dated April 8, 2009, were provided to Citizens with an initial demand for appraisal in May 2009.  
In a letter of May 28, 2009, Citizens acknowledged receipt of the Preferred repair estimates, reserved various rights, and requested a final, signed and sworn proof of loss as well as copies of 13 categories of documents.  Galeria provided the signed and sworn proof of loss in July 2009.  On August 10, 2009, Citizens acknowledged receipt of the proof of loss but claimed there were inconsistencies with the earlier estimates prepared by Preferred.  Citizens also renewed its request for the 13 categories of documents identified in its May 28 letter and complained that Citizens’ loss consultant “has not been provided an opportunity to inspect this property since the initial inspection in 2005.”
With regard to the law, the court addressed the a number of issues.  First, the court addressed Citizens requests for documents:
While Citizens’ requests may seem broad, the types of documents that were not provided by Galeria may (and typically do) contain information bearing directly on the claim and the respective obligations of the insurer, the insured, and the homeowners living within the insured units....All such records may identify individuals with pertinent knowledge so that they can be contacted during the investigation of the claim.  And these records were and are required to be kept by Galeria as a matter of Florida law.
The court next addressed Galeria's refusal to allow Citizens to inspect the property:
Nor may an insured refuse access to the damaged properties to an insurer’s “loss consultant,” insisting instead that the insurer send in an “adjuster.”  The postloss duty in section E.3.a.(6) of the policy obligated Galeria to, “[a]s often as may be reasonably required, permit [Citizens] to inspect the property proving the loss or damage.”  Citizens acts through employees and agents, and an insured ordinarily recognizes that the sooner the insurer’s  representative (irrespective of title) is allowed to inspect the areas of claimed damage, the sooner the claim will be adjusted, appraised, or otherwise brought to resolution.  Finally, and as we observed in Romay, “[t]hese obligations are not unduly burdensome or arbitrary.”
Based upon the issue relating to the documents and access to the property, the court stated:
Until these conditions are met and the  insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of the appraisal provision in the policy) regarding the value of the property or the amount of loss.  Only when there is a “real difference in fact, arising out of an actual and honest effort to reach an agreement  between the insured and the insurer,” is an appraisal warranted.  We therefore reverse the order compelling appraisal and remand for what we anticipate will be complete and immediate cooperation by Galeria in affording access to the property and the remaining records, and a prompt response to the claim by Citizens after its prompt investigation.
(emphasis from opinion).  Finally, the court addressed trial court's order staying the case pending appraisal:
Citizens also argued that the appraisal order was in error because it failed to reserve jurisdiction on any coverage issues.  Although this issue is moot because of our determination that the order compelling appraisal was premature, this court has  previously addressed Citizens’ argument.  Once the trial court determines that a demand for appraisal is ripe, the court has the discretion to control the order in which an appraisal and coverage determinations proceed.

Eleventh Circuit Holds Claims Against NFL & NFLPA By Former Player Preempted

In Atwater v. National Football League (09-12556), the Eleventh Circuit released a published decision finding the plaintiff/appellant's claims to be preempted by the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185.  Tenth Circuit Judge David M. Ebel, sitting by designation, wrote the opinion for the Court.  The court described the background facts as follows:
Plaintiffs include several former NFL players, the spouse of one of the players, and several investment entities controlled by them. During 2004 and 2005, Plaintiffs invested approximately $20 million with Kirk Wright and Nelson “Keith” Bond, who along with others operated an investment company, International Management Associates (“IMA”). Unbeknownst to Plaintiffs, Wright was actually conducting a Ponzi scheme through which he stole most of the money Plaintiffs invested with IMA. IMA eventually sought bankruptcy relief. Wright was convicted on a number of federal felony charges and thereafter killed himself.
In this litigation, Plaintiffs sued the NFL and the NFLPA, alleging Plaintiffs would not have invested money with IMA had Defendants given them accurate information about Wright, Bond and IMA. More specifically, Plaintiffs complained that the NFLPA listed Wright and Bond with the NFLPA’s Financial Advisors Program without first conducting a proper investigation. As for the NFL, Plaintiffs asserted that several Plaintiffs requested, and the NFL provided, background checks on Wright, Bond and IMA that were inadequate. Based upon these allegations, Plaintiffs invoked the federal courts’ diversity jurisdiction, see 28 U.S.C. § 1332, asserting claims against the NFL and NFLPA under Georgia law for negligence, negligent misrepresentation, and breach of fiduciary duty.
The NFL and the NFLPA argued that § 301 of the LMRA preempted Plaintiffs’ state-law claims because these claims arose from, or were substantially dependent upon an interpretation of, the CBA between the NFL’s Management Council (“NFLMC”) and the NFLPA.

With regard to the law, the court stated that "in order to insure the uniform interpretation of collective bargaining agreements throughout the nation, § 301(a) completely preempts state-law claims, including state tort claims, that require the interpretation or application of a CBA."  The court continued:
If the state-law claim either arises out of a CBA or is dependent upon the meaning of a CBA, “the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal laborlaw principles—necessarily uniform throughout the Nation—must be employed to resolve the dispute.”
In determining whether § 301 preempts Plaintiffs’ state-law claims, we consider the elements of each of those claims in turn.....
For these reasons, we uphold the district court’s determination that § 301 preempts Plaintiffs’ state-law claims. We, therefore, affirm the district court’s decision granting the NFL and NFLPA summary judgment on those claims. In light of that determination, we need not consider Plaintiffs’ challenge on appeal to the alternate basis on which the district court granted the NFLPA summary judgment—that the disclaimer contained in the NFLPA’s Financial Advisors Program regulations precluded Plaintiffs’ claims against it.

Monday, November 22, 2010

Michigan Supreme Court Issues Rebuke To Former Justice For Allegedly Recording Judicial Deliberations

The Michigan Supreme Court issued a public rebuke, via a letter, directed to a former justice.  The former justice allegedly secretly recorded the justices during the deliberation process and has selectively released transcripts of the conversations.  Thanks to How Appealing for the story.  Articles can be viewed at the following links:  
The letter was signed by five justices.  A sixth justice did not sign the letter because she felt it inappropriate to do so without a formal proceeding.  The letter is below:

Massachusetts High Court Quashes Warrantless Dorm Search

The Massachusetts Supreme Judicial Court issued an opinion in Commonwealth v. Carr, affirming the trial court's order suppressing evidence because the Boston College Police Department failed to get sufficient permission from the students prior to conducting the on-campus search.  The court stated that the prosecutors "failed to satisfy its burden to prove that consent was freely and voluntarily given."  Quoting the trial court's order, the court noted that even if consent had been given, there were also questions about whether the consent could have been voluntary given the "coercive aspects to the officers' exercise of authority."  The Boston Globe has two articles about the decision: "SJC ruling tosses out evidence in BC students’ drug case" and "Court: BC police didn't get OK for dorm search."  Inside Higher Ed has a story "Warrantless Dorm Search Rejected."  

Last year, the Supreme Judicial Court quashed a different search conducted by the Boston College Police Department which was discussed in a prior post "Massachusetts High Courts Quashes Unconstitutional Search Of Boston College Dorm Room."

Wednesday, November 17, 2010

Order Allowing Deposition After Withdrawn Affidavit Quashed

In Urbanek v. Urbanek (4D10-3478), the Fourth District granted a petition for certiorari and quashed the trial court's order allowing the deposition of a person after that persons affidavit had been withdrawn from the case.  The petitioner had asserted the "psychotherapist-patient  privilege  to  prevent respondent(s)  from  deposing  his  psychologist  who  had previously furnished  the  court with  an affidavit."  The court stated that:
Petitioner subsequently withdrew the affidavit.  Respondent’s position is that the any privilege was waived and the waiver cannot be revoked.
We grant the petition and quash  the order.  We hold  that any  initial waiver  of  the privilege was  revoked when petitioner withdrew the affidavit..... Petitioner submitted the affidavit in response to an affidavit submitted by Gerald Urbanek in connection with issues which were, and remain,  collateral to the underlying indemnification claim.  Also, respondent has not demonstrated that the substance of the affidavit is tied to petitioner’s answer, affirmative defenses or counterclaim.

Fourth District Denies Petition Seeking to Prevent Post-Judgment Discovery Sought From Counsel

In Neiman v. Naseer, et al (4D10-2091), the Fourth District denied a petition for certiorari seeking to quash the trial court's order that had refused to grant protection from a subpoena, served on the appellant's attorneys, that "sought  information  about settlement  funds  paid  to  one of  the  judgment  debtors  in  an  unrelated lawsuit."  Review was sought of the trial court's non-final order.  The Fourth District first noted that the order was not reviewable "as a non-final order under Florida Rule of Appellate Procedure 9.130(a)(4)."  The court concluded:
Treating  the appeal as a petition  for writ of certiorari, we agree with the  circuit  court  that  the  information  sought was not  protected  by  the  attorney-client privilege.  The information was known  to  the other party to the settlement agreement in the unrelated lawsuit.  We also agree that “[w]hile  confidentiality  agreements  are  necessary  in  some  instances,  to facilitate  settlement,  they  may  not  be  subsequently  employed  by a litigant to . . . thwart an opponent’s discovery.”  Smith v. TIB Bank of the Keys, 687 So. 2d 895, 896  (Fla. 3d DCA 1997).  We reject the  judgment debtors’ other arguments without further comment.

Friday, November 12, 2010

Discovery Of Insurers Claim File Not Proper When Coverage Issues Are Pending

In United Services Automobile Association v. Kind (5D10-1722),  the Fifth District granted a petition for certiorari and stated:
The petitioner, United Services Automobile Association, seeks certiorari relief to quash an order compelling discovery of its claim file.  We grant the petition and quash the order because discovery of an insurer’s claim file, while a coverage issue is pending, is improper.

Wednesday, November 10, 2010

Eleventh Circuit Grants En Banc Review In Three Cases

Since November 3, 2010, the Eleventh Circuit has granted en banc review in three cases.  The three cases are:
  • Gilbert v. U.S. which vacates the panel opinion published at 609 F.3d 1159 (11th June 21, 2010).  The panel decision had vacated a district court order denying a motion to vacate sentence.;
  • Warren Lee Hill, Jr. v. Schoefield which vacates the panel opinion published at 608 F.3d 1272 (11th Cir. June 18, 2010).  The panel had reversed the district court's denial of a habeas petition because "we  conclude that because Georgia’s requirement of proof beyond a reasonable doubt necessarily will result in the execution of the mentally retarded, the Georgia Supreme Court’s decision is contrary to the clearly established rule of Atkins; and
  • Childers v. Floyd which vacates the panel opinion published at 608 F.3d 776 (11th Cir. June 8, 2010). The panel had reversed and ordered the district court to grant the habeas corpus petition.
UPDATE: For related articles see the following links:

Order Denying Motion To Dismiss For Alleged Fraud On Court Affirmed

In JVA Enterprises, I, LLC v. Prentice (4D08-4661, 4D08-5013, 4D09-1686), the Fourth District affirmed the trial court's order denying a motion to dismiss for alleged fraud on the court.  The court reversed the trial court's order excluding certain evidence and reversed the trial court's decision to award pre-judgment interest.

The facts, as described in the opinion, are that:
Prentice sued JVA and Enterprise for injuries allegedly suffered in December 2003 and March 2004. He asserted claims for unseaworthiness against Enterprise, maintenance and cure under admiralty law against both of the defendants, and negligence against JVA....
In answers to interrogatories, Prentice denied that he was seeking compensation for exacerbation of any pre-existing injury. He did, however, disclose that he had filed a workers’ compensation claim and a personal injury suit in California in the 1980s.
Prior to Prentice’s deposition, a paralegal at the law firm representing JVA and Enterprise discovered that Prentice’s name and social security number appeared three times in workers’ compensation files in California. At his deposition....Prentice admitted to one prior workers’ compensation claim, but did not remember the other two....
Approximately one month prior to trial, in May of 2008, JVA and Enterprise filed a motion for sanctions, including dismissal, against Prentice for concealing his 1991 injuries.....The trial court denied JVA and Enterprise’s motion for sanctions, finding the temporal distance of the 1991 injury to the 2008 trial to be compelling. In denying the motion, the trial court indicated this might be an appropriate area for cross-examination or impeachment.
The trial court also entered an order stating that the defendants "could not 'bring up this California injury in any way shape, or form during trial'.” 

The Fourth District affirmed the trial court's order denying the defendants motion for the sanction of dismissal for fraud on the court. 
In Arzuman v. Saud, 843 So. 2d 950, 952 (Fla. 4th DCA 2003), this court held the trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court. The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Id. (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)). “Because ‘dismissal sounds the death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.’”  Arzuman, 843 So. 2d at 952 (citations omitted). While a trial court has discretion to dismiss an action for fraud on the court, it should exercise this severe sanction “only in extreme circumstances.” Id.

When imposing this harshest of sanctions, trial courts should weigh the “policy favoring adjudication on the merits” with the need to “maintain the integrity of the judicial system.” Id.; Bass v. City of Pembroke Pines, 991 So. 2d 1008, 1011 (Fla. 4th DCA 2008).  While it appears Prentice may have a selective memory regarding his medical history, the issue is not whether any member of this panel would make the same decision as the trial judge given the facts of this case. Bass, 991 So. 2d at 1011. The ultimate question is “whether reasonable minds could differ as to the propriety of that decision.” Id. We find that reasonable minds could differ under the facts of this case....
As noted by the court in Bologna v. Schlanger, 995 So. 2d 526, 529 (Fla. 5th DCA 2008), rev. denied, 7 So. 3d 1098 (Fla. 2009), in reversing a dismissal for alleged fraud, the fact that the plaintiff’s answers to interrogatories were adequate for the defense to learn of her treatment for back pain prior to her deposition, was “relevant to whether there existed a scheme to defraud.”
The court reversed the trial court's order excluding the evidence of the prior injury from the trial.  The court stated "A plaintiff may properly be cross-examined as to his previous injuries, physical condition, claims or actions for injuries similar to those constituting the basis for the present action for the purpose of showing that his present physical condition is not the result of the injury presently sued for, but was caused wholly or partially by an earlier injury or pre-existing condition."  The court also noted that the defendant was clearly prejudiced by the exclusion because the plaintiff's attorney used the lack of evidence to his advantage.  The court stated that "Case law indicates it is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented."

Denial Of Motion To Set Aside Foreclosure Judgment Based Upon Knowledge Of Affiant Affirmed

In Freemon v. Deutsche Bank Trust Co. (4D09-4275), the Fourth District affirmed the trial court's denial of a motion to set aside a final judgment of foreclosure.  Deutsche Bank filed a foreclosure lawsuit against the appellant.  The appellant did not file any responsive pleadings and a default was entered.  Deutsche Bank filed a motion for summary judgment which was granted.  Prior to the sale date, the appellant appeared and filed a motion to set aside the judgment.  The trial court cancelled the sale and six months later, after the parties had not reached an agreement, the trial court rescheduled the foreclosure sale.  

On appeal, the appellant "claimed that the affidavit of indebtedness attesting to the amounts due on the mortgage and note was not made on the personal knowledge of the affiant."  After providing the standard of review, the court stated that in order to be entitled to an evidentiary hearing on a motion to set aside a judgment "[t]he matter alleged must affect the outcome of the case and not merely be 'de minimis... Thus, to obtain a hearing on a rule 1.540(b)(3) motion, the law requires a movant “to demonstrate a prima facie case of fraud, not just nibble at the edges of the concept.” Hembd v. Dauria, 859 So. 2d 1238, 1240 (Fla. 4th DCA 2003).  As to the merits, the court stated:
Freemon’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment. Freemon nowhere contends that she did not default on her mortgage, nor does she allege that the amounts due and owing, set forth in the affidavit and incorporated in the final judgment, are incorrect.  Indeed, Freemon has not specifically alleged any fraud in connection with Ms. Bailey’s statements in this affidavit regarding the amount due. Freemon merely alleges that Bailey claimed personal knowledge of the matters in the affidavit, even though Bailey admitted in her deposition in different case that she did not know who inputted information into the computer regarding the loan in question in that case.
Emphasis from opinion.  The court continued that:
We disagree with Freemon’s characterization of Bailey’s affidavit and of Bailey’s testimony. In her affidavit, she attested that she was familiar with the books, records, and accounts kept by Litton, and those books, records, and accounts are kept in the regular course of business of Litton. Those records “are made at or near the time by, and from information transmitted by, persons with personal knowledge of the facts, such as your Affiant.” She did not attest that she personally made all the entries for any particular mortgage. Specifically, she attested that she had personal knowledge of the amounts and charges due. In her deposition in another case, she testified that she was the records custodian for Litton Loan. In signing the affidavits of indebtedness, she acquires her knowledge of the amounts due by inputting the mortgagor’s name into the computer which contains all of the mortgage information. The computer then provides her with the amount of the outstanding mortgage, interest, and charges. Bailey’s affidavit in this case is not inconsistent with her testimony in the other case. Freemon has not shown any fraud, nor has she shown that the information about this loan, i.e., the amounts due and the default, are in any way incorrect.

Monday, November 8, 2010

Must Order Sanctioning Attorneys Find Bad Faith? Question Certified To Florida Supreme Court

In Rivero v. Meister (4D09-2555), the Fourth District reversed a trial court order finding that the attorneys acted negligently and requiring the attorneys to pay the appellee's attorneys fees.  Judge Gerber wrote the opinion for the Court and Judge Damoorgian wrote an opinion concurring specially with the majority. After counsel for the appellee failed to appear for trial, the trial court continued the trial and counsel for the appellee filed a motion for sanctions.  The motion stated:
The failure of an attorney to appear at a scheduled trial date amounts to disregard of a Court Order, jeopardizes the rights of his own client, damages the rights of his opponent and damages the efficient administration of justice. No claim is made by undersigned counsel that opposing counsel did this knowingly or with intent.
(emphasis in opinion).  The trial court held a hearing on the motion and stated that "The issue here this morning is not whether sanctions are going to be imposed, just the amount.”  The opinion states:
The court issued a written order granting the plaintiff’s motion. The court noted that under Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002), it had the “inherent authority to impose sanctions” for the defendants’ attorneys’ conduct. The court then stated:
This situation was caused by the negligence of [the defendants’ attorneys]. Therefore, the Court imposes sanctions against [the defendants’ attorneys] in the amount of $10,750.00. The Court further determines that this is not a “taxable cost” to be assessed at the end of this litigation but rather is due and payable immediately. 
The court noted:
The defendants’ attorneys acknowledge that their failure to appear was an embarrassing and regrettable event. However, they contend that the trial court abused its discretion when it imposed the monetary sanctions for their failure to appear at trial. They primarily argue that, under Moakley, a court must find an attorney’s conduct to have been in bad faith, and the record establishes that their conduct was not in bad faith. They rely on the plaintiff’s motion, which recognized that they did not fail to appear “knowingly or with intent.” They also rely on the court’s order, which found that the matter was caused by their “negligence.”
The Fourth District stated that because the trial court did not make an express finding that the attorneys had acted in bad faith, they are required to reverse the sanction order.  However, the court noted that the result is unfair (at least in certain cirumstances).  The court stated that:
Given the unfairness of this result, we believe that our supreme court may wish to re-examine Moakley’s requirement of bad faith. As Justice Wells pointed out in his concurring opinion in Moakley, “bad faith is not defined” in the majority opinion. 826 So. 2d at 228 (Wells, J., concurring). In our view, “bad faith” should be defined to include at least both intentional misconduct and reckless misconduct. “[T]o act ‘recklessly’ is to act ‘in disregard of a risk so obvious’ that the ‘actor must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” Dean Witter Reynolds, Inc. v. Hammock, 489 So. 2d 761, 766 (Fla. 1st DCA 1986) (quoting W. Prosser, Law of Torts 185 (4th ed. 1971) (internal citation omitted)).
Finally, the court certified a question of great public importance to the Florida Supreme Court.
If Moakley’s definition of “bad faith” included reckless misconduct, then the trial court would have been justified in granting the plaintiff’s motion for sanctions. Thus, we certify the following question of great public importance: 

Order Allowing Receiver To Sell Property Before Judgment Reversed

In Shubh Hotels Boca, LLC v. Federal Deposit Insurance Corp. (4D10-2821), the Fourth District reviewed a trial court's order allowing a receiver to sell a hotel.  The lender provided a mortgage to the hotel and the hotel defaulted on the mortgage.  The court stated:
Lender filed its complaint to foreclose the mortgage in mid May 2009. All of its claims relate to liability under the debt created by the loan. Along with its initial pleading the lender moved for the appointment of a receiver. The mortgage provided for the appointment of a receiver upon default for the purpose of preserving the real property and appurtenances, to protect the property during foreclosure proceedings, and to collect rents. The trial court appointed the receiver and placed him in control of all assets of the owner wherever located. The order did not authorize the receiver to sell the mortgaged property before a final judgment of foreclosure.  In January 2010 the receiver reported to the court that the property was in a distressed condition, the operation of the hotel was losing $28,000 monthly, and that he was unable to raise borrowed funds to continue operation. That led to lender’s motion to sell the property as soon as a buyer could be found.
Thereafter, the receiver found a buyer willing to purchase the property for $9 million.  The trial court approved the sale and the hotel appealed.

The Court first stated that the lender did not cite any statute that would have authorized the receiver to sell the property. Therefore, the court stated that it was required to look to the terms of the actual mortgage documents and after quoting the documents the Court stated:
It is plain to us that this receivership provision does not purport to give the receiver any power of sale of mortgaged property before the entry of judgment foreclosing the mortgage. Indeed, it explicitly limits the receiver’s powers to a caretaker role — “to protect and preserve the Mortgaged Property” — which includes the authority only to operate the property and collect rents....The manifest intent of their agreement excluding such a power of sale similarly leads us to reject as inapposite those cases recognizing broad general powers in equity that could allow such a receiver to sell mortgaged property before foreclosure.
The court then reviewed Florida common law relating to the power of a receiver.  "The general Florida rule is

that the mere appointment of a receiver does not itself confer any of the owner’s power or authority to sell such property. Also the general Florida rule is that the role of a receiver in a foreclosure action is only to preserve the property’s value."

The court concluded "In light of the foregoing we hold that the trial court order allowing and approving a sale by the receiver before final judgment was error."

Sunday, November 7, 2010

Term Limits For Broward County Commissioners Held Unconstitutional

Update: On August 10, 2011, the Fourth District released its opinion in Snipes v. Telli (4D10-4687) that reversed the trial court's opinion discussed below. The Fourth District held: For  these reasons, we decline  to extend  the holding  in Cook to apply to members of a county’s governing body under article VIII, section 1(e), Florida  Constitution,  a n d   hold  that  the  voters  may  amend  a   county’s charter,  if  they choose,  to  impose  term  limits on county commissioners.  We choose not to certify a question to the Florida Supreme Court.   If we have incorrectly delineated the scope of Cook, our failure to apply it here would be in conflict with that opinion, so that the Supreme Court could take  discretionary  jurisdiction  of  this  case.  See  Fla.  R.  A p p .   P. 9.030(a)(2)(iii),(iv)."

The original post is below:

On election day, Broward County Circuit Judge Carol-Lisa Phillips entered an order finding the three term limit for Broward County commissioners unconstitutional.  Judge Phillips relied upon the Florida Supreme Court's decision in Cook v. City of Jacksonville and DeBlaker v. Eight is Enough in Pinellas, 823 So. 2d 86 (Fla. 2002) as controlling authority.  In Cook, the Florida Supreme Court stated:
We hold that a term limit provision is a disqualification from election to office and that article VI, section 4(a), Florida Constitution, provides the exclusive roster of those disqualifications which may be permissibly imposed.  We also hold that article VI, section 4(b), Florida Constitution, provides those positions authorized by the constitution upon which a term limit provision may be permissibly imposed.
According to THIS Sun Sentinel article, there are six other Florida counties with term limits for commissioners: Palm Beach, Orange, Hillsborough, Volusia, Brevard and Clay. 

There have been a number of articles on the Broward term limit decision which are linked below:
Judge Phillips order is below:
Telli v Snipes, 10-7095, Term Limit Order

Prior to the ruling, there were articles relating to the lawsuit which are linked below:

Foreclosure Judgment Reversed Because Lender Did Not File Note-Not Even A Copy-Prior To SMJ Hearing

In Servedio v. US Bank National Assoc. (4D10-1898), the Fourth District reviewed a trial court’s summary judgment order. The plaintiff filed an unverified foreclosure complaint and later filed a motion for summary judgment. The trial court held a hearing and granted the motion for summary judgment.

The sole issue on appeal was whether the summary judgment order should be reversed because the lender did not file “a copy of the original note and mortgage prior to the entry of judgment the original mortgage note with the trial court.”  The court stated that:
“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.”…A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes. State St. Bank & Trust Co. v. Lord, 851 So. 2d 790, 791 (Fla. 4th DCA 2003).
In this case, there was nothing in the record to show that the original note was filed. In fact, it appears that the plaintiff had neither filed the original nor a copy of the note. The court noted that the “Appellee argues on appeal that it presented to the trial court a copy of the original note and an affidavit of ownership at the summary judgment hearing.” However, the appellee conceded “that the documents were not filed with the clerk of the court until several days after the entry of summary judgment.” The appellee argued the trial court considered the original note at the summary judgment hearing. The appellee filed two motions to supplement the record with the note. The court denied both motions with leave to seek permission to relinquish jurisdiction to allow the trial court to recreate a record establishing that it did look at the original notes. However, the appellee never sought permission as suggested by the court. Therefore, the court held:

The documents were not part of the record at the time the motion for summary judgment was granted, so we cannot determine whether the trial court considered those documents in rendering its decision. See Poteat v. Guardianship of Poteat, 771 So. 2d 569 (Fla. 4th DCA 2000) (noting that an appellate court may review only items considered by the trial court).  Because appellant does not stipulate that the documents were considered at the hearing, and because appellee has not sought relief in the trial court to recreate the record, we must reverse the order granting summary judgment.
The court also noted that if the plaintiff is not named as the payee on the note, as in the Servedio case, there are four options for the plaintiff to establish ownership:
  1. The note must bear a special indorsement; or
  2. The note must bear a blank indorsement; or
  3. The plaintiff must submit evidence of an assignment; or
  4. The plaintiff must submit an affidavit of ownership.
In this case, the original note did not name the plaintiff as payee and the court stated that the plaintiff did not do any of the four options.