Vacating A Judgment/Order Requires Sworn Testimony Or Evidence--Not A Lawyers Argument

In Chase Home Loans v. Sosa (3D12-1783), the Third District reversed an order vacating a foreclosure sale. The motion was filed by a husband who asserted that his wife, a co-signatory on the mortgage, "'actively concealed' the proceeding by hiding all notifications under the family sofa." The trial court vacated the sale, presumably "inspired by benevolence and compassion for the family." However, there was no issue of service of process and there was no sworn evidence or testimony submitted in favor of vacating the foreclosure sale. 

The court stated that:

The husband’s motion was brought under Florida Rule of Civil Procedure 1.540(b), which permits a trial court to relieve a party or a party’s legal representative from a final judgment, decree or order based upon mistake, inadvertence, surprise or excusable neglect. However, as we often have said, unsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation....“It is of no moment in establishing facts that attorneys are ‘officers of the court’ as we often read when an unsworn representation is made.”...Nor is the fact that the wife may have been the subject of some undetected “degree of mental incapacity” during the course of the foreclosure action. Even if true, this does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant vacating a final judgment.

A motion to vacate requires the submission of actual sworn evidence in order to be considered on the merits. The motion in this case did not even have that. Because the attorneys mere legal argument was not sufficient, the court reversed the order vacating the foreclosure sale. 

Florida Supreme Court: Certification of Need for Additional Judges

In In re: Certification of Need for Additional Judges, the Florida Supreme Court fulfilled its constitutional obligation and sent a report to the Legislature regarding the various needs of the judiciary.

The Court noted the following regarding the circuit & county courts: "Several of our chief judges note, in particular, the long waits associated with obtaining hearing times. In some jurisdictions, dockets are so full that it takes several weeks to schedule a hearing." I imagine many lawyers in South Florida would be thrilled if it only took several weeks to obtain a hearing time. But, the Court's point is certainly correct.

With regard to the appellate courts, I found the following to be particularly interesting: "The Second District also notes that despite high caseloads and a reduction in resources including personnel, the judges and staff have made every effort to properly execute their responsibilities. However, they do so knowing that trying to absorb this increased workload limits the time available for the consideration of each case and the writing of opinions. This Court shares the concerns of the chief judge of the Second District and remains concerned about a diminished quality of justice resulting from high workload and a loss of resources." (emphasis supplied).

The Court certified the need for one additional Second District judge. The needs of the circuit and county court were included in an appendix to the opinion, which is copied at the bottom of this post. In what is a somewhat sad concluding statement, given the real need for new judges, the Court said: "To the extent funding is available, we urge the Legislature also to consider our certified need for additional judges."

​

Funds Not Property Of ERISA Plan Until Remitted To Plan

In Pantoja v. Zengel (12-11036), the Eleventh Circuit affirmed the trial court's judgment that the money at issue was not an asset of the ERISA plan where the money had never been given to the ERISA plan. The court held:

Upon examination of the Plan documents, we find no clear and specific language indicating the fringe benefits are “plan assets” before they are actually remitted to the Plan. Indeed, unlike the plan documents in ITPE Pension Fund, this contract is not even susceptible to such a reading. See 334 F.3d at 1016. Without clear language or any evidence indicating otherwise, we conclude that the unpaid funds cannot be construed as plan assets; therefore, the Appellees did not breach a fiduciary duty as a matter of law.

"Possession of the Note Determines Standing to Foreclose"

In Everhome Mortgage Co. v. Janssen (2D11-4592), the Second District reversed the trial court's order vacating a judgment and dismissing a complaint for lack of jurisdiction. The court stated:

We are compelled to point out that possession of the note determines standing to foreclose. See Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1117 (Fla. 2d DCA 2011). The holder of the original note endorsed in blank has standing. Id. "[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt . . . ." WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004)(quoting Johns v. Gillian, 184 So. 140, 143 (Fla. 1938)). More fundamentally, however,"[e]ven if [the plaintiff] lacked standing when it filed suit, the final judgment is merely voidable, not void." Dage v. Deutsche Bank Nat'l Trust Co., 95 So. 3d 1021, 1024 (Fla. 2d DCA 2012) (citing Phadael v. Deutsche Bank Trust Co. Americas, 83 So. 3d 893, 895 (Fla. 4th DCA 2012)).

As a result, the trial court's order was reversed.

Miccosukee Tribe Not Entitled To Immunity For Summones Issued to Banks

In Miccosukee Tribe of Indians of Florida v. United States (No. 11-14825), the Eleventh Circuit released a published opinion and affirmed the trial court's order determining the Tribe could not invoke sovereign immunity to quash the subpoenas served on various financial institutions. The court's introduction, in part, stated:

In 2010, the Commissioner issued four summonses to third-party financial institutions to determine whether the Tribe had complied with its federal withholding requirements during the period from 2006 to 2009.  The Tribe petitioned to quash  the summonses on the grounds of sovereign immunity, improper purpose, relevance, bad faith, and overbreadth.  The district court denied those petitions.  Because we conclude that tribal sovereign immunity does not bar the issuance of these third-party summonses, the district court did not clearly err when it found that the summonses were issued for a proper purpose, and the Tribe lacks standing to challenge the summonses for overbreadth, we affirm.

"Indian tribes are required by law to deduct and withhold income taxes from gambling revenues paid to Indian tribe members.  26 U.S.C. § 3402(r)(1).  Indian tribes are also subject to backup withholding, id. § 3406(a), and reporting requirements, id. § 6041(a).  In 2005, the Commissioner of the Internal Revenue Service began to investigate the Miccosukee Tribe to determine whether the Tribe had complied with its reporting and withholding requirements."

"After finding that the Tribe had failed to comply with its tax obligations from 2000 to 2005, the Commissioner extended his investigation to the period from 2006 to 2009." As part of its investigation, "the Commissioner issued summonses to American Express, Citibank, Morgan Stanley, and Wachovia Bank to produce documents associated with the bank and brokerage accounts maintained by the Tribe at those institutions." The Tribe sought to quash the summonses. The Eleventh Circuit held:

We recognize that Indian tribes ordinarily enjoy sovereign immunity....But the Supreme Court has also explained that tribal sovereign immunity “is not congruent with that which the Federal Government, or the States, enjoy” and “is subject to plenary federal control and definition.”

The claim to tribal sovereign immunity here fails for two reasons. First, the summonses are not suits against the Tribe. Second, tribal sovereign immunity cannot bar a suit by the United States.

Issue Relating To Collection Of Judgment Against The State Certified To Florida Supreme Court

In Florida Department of Agriculture And Consumer Services v. David Mendez (4D11-4644), the Fourth District stated: "Pursuant to Florida Rule of Appellate Procedure 9.125, we certify the following question to be of great public importance:

Are property owners who have recovered final judgments against  the  State  of  Florida  in  inverse  condemnation proceedings  constitutionally  entitled to invoke the  remedies provided  in  section  74.091,  Florida  Statutes,  without  first petitioning  the  Legislature  to  appropriate  such funds pursuant to section 11.066, Florida Statutes?

The court's opinion in the case, released on July 25, 2012, can be viewed HERE. In the July 25th opinion, the court held: "We  reverse  that  portion  of  the  Palm  Beach  County  order  allowing execution against the Department and remand to the  circuit  courts for further  proceedings  consistent  with this  opinion.   We  also  reverse that portion of the Broward County order holding that section 11.066(3) was constitutional as applied, because the issue was not yet ripe."

Appeal Of Order Only Determining Entitlement to Fees Is Premature

In Low Key Limited Inc., et al v. Annsser, et al (3D12-261), the Third District affirmed the trial court affirmed the trial court and dismissed the appeal to the extent it related to the trial court's order finding entitlement to attorneys fees but deferring a ruling on the amount.

As to the portion of the final judgment determining that the parties are entitled to attorney’s fees and costs but reserving jurisdiction to set the amount of the fees, we dismiss the appeal and cross-appeal of that issue in case number 3D12-2611 as a non-final determination not yet ripe for appellate review.  E.g., Rhodes v. Newport Bldg. & Constr., Inc., 86 So. 3d 1245, 1247 (Fla. 2d DCA 2012) (“Because the order determines that [the appellee] is entitled to fees but does not determine the amount, it is a nonfinal order not yet ripe for appellate review.” (citing Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA 2010))).

Motion For Stay Must Be Presented To Trial Court Before Appellate Court

In Sunbeam Television v. Clear Channel Metroplex (3D12-2138), the Third District denied a motion for stay because the trial court had not ruled on the motion. The limited circumstances that would allow the appellate court to rule in the first instance did not exist in this case. The court did enter a temporary thirty day stay to allow the trial court to rule on the stay motion.

Summary Judgment Should Not Be Entered With Reservation To Consider Defenses

In Bertha Sanchez and International Restaurants Corp. v. Soleil Builders, Inc., the Fifth District reversed the trial court's summary judgment order. The trial court  entered judgment when affirmative defenses raised by Ms. Sanchez were not considered.  The court stated:

Soleil Builders filed a Motion for Summary Final Judgment.  Several months later, the parties convened for the hearing on the Motion, which resulted in a Partial Summary Final Judgment in favor of Soleil Builders for the total amount it sought.  This judgment is the first reference to Soleil Builders’ motion as having sought only a partial summary judgment:  the court reserved jurisdiction to determine pre-judgment interest and attorney’s fees and “all issues that remain pending before the Court, including deciding the issues raised in the counterclaim filed by the SANCHEZES.”  Sanchez subsequently filed for rehearing of the Partial Summary Final Judgment, contending, among other things, that her affirmative defenses had not been considered at the hearing; Sanchez wanted her defenses heard and the counterclaims considered.  Sanchez argued that since Soleil Builders had failed to refute  her affirmative defenses or address the counterclaims, summary judgment was improper.  Shortly thereafter, Soleil Builders filed its Motion for Summary Final Judgment on Sanchez’s counterclaims.  

When the hearing was held on the second motion for summary judgment, "Soleil Builders essentially contended that the issues  raised in the affirmative defenses and counterclaims had been resolved in the Partial Summary Final Judgment when the court found in favor of Soleil Builders for the total sum it had sought. The trial court entered a Final Summary Judgment on all affirmative defenses and counterclaims without comment." The court continued:

A troubling aspect of this case is the bifurcation of the claims raised in the Complaint from those asserted in Sanchez’s affirmative defenses.  The record does not provide any clue as to how it came to pass that the court rendered only a partial summary final judgment when there was nothing in Soleil Builders’ Motion that would have restricted its Motion to only the counts of its Complaint. Nothing occurred at the summary judgment hearing that suggested that it was agreed or understood that only the claims of the Complaint would be decided and, given the interwoven nature of all of the issues in the Complaint and affirmative defenses, they all should have been decided before summary judgment was entered.  It is well settled that, “[i]n order to be entitled to summary judgment as a matter of law, the party seeking summary judgment must not only establish that no genuine issues of material fact exist as to the party's claims but must also either factually refute the affirmative defenses or establish that they are legally insufficient.” 

Finally, the court concluded:

The problem in entering the Partial  Summary Final Judgment and leaving for another day the issues raised in the affirmative defenses and counterclaims was made all the more apparent when Soleil Builders used the entry of the Partial Summary Final Judgment to successfully argue at the subsequent hearing that the affirmative defenses and counterclaims had already been decided adversely to Sanchez.  In short, the case below was a muddle and reversal is required because of the error that occurred when the trial court entered the two summary judgments without properly addressing the issues raised by the affirmative defenses and counterclaims filed by Sanchez.  Accordingly, the judgments  under review are reversed and this case is remanded for further proceedings.  

5th DCA Opinion Regarding Attempt To Require Appellant To Pay To Supplement Record

In Fay v. Craig (5D12-3224), the Fifth District released an opinion denying the Appellee's "Motion To Compel Appellant To Order A Complete Trial Transcript." The court stated that "She purports  to base her motion  on Florida Rule of Appellate Procedure 9.200(f)(2), contending that the partial transcript designated by Appellant is insufficient to address the issues on appeal.  Because we have recently experienced an increased number of similar  motions, and in an effort to curb this particular practice and conserve this Court’s resources, we have determined that a published opinion is warranted."

Rule 9.200(f)(2) was promulgated in 1977 with the avowed intent to ameliorate the harsh consequences to an appellant when the court’s decision to affirm is based on an incomplete record or transcript...This rule prohibits a court from disposing of a case based on an incomplete record “until an opportunity to supplement the record has been given.” The relief Appellee seeks—to compel Appellant to designate the entire transcript for inclusion in the record—is not available under this rule, especially at this procedural juncture before the briefing period ends.  

***

The appellate rules do not require the filing of the entire trial transcript; rather, the appellant need only file portions of the transcript “deemed necessary.”....Indeed, depending on the issue(s), an appeal may proceed on the merits with a partial transcript or no transcript at all....

Our decision to deny the motion should not be viewed as a determination that Appellant has met his burden  to furnish the necessary record.  To a large extent appellants proceed at their peril when they furnish a partial transcript. ...Courts often conclude that the “opportunity” to supplement the record afforded by rule 9.200(f) (2) is waived or deemed satisfied when a litigant fails to promptly seek to supplement the record after notice is given of a perceived deficiency.

Judgment In Favor Of Insurer For Late Reported Loss Affirmed

In Slominski v. Citizens Property Insurance Corporation (4D10-4372), the Fourth District affirmed the circuit court's summary judgment in favor of the appellee.​ The appellant's filed a lawsuit claiming their property was damaged by Hurricane Wilma on October 24, 2005. Three and a half years after the hurricane, the appellant's filed their claim with Citizens. 

Citizens then  investigated and made a  final  determination that “the  damages  reported  cannot  be attributed  to  Hurricane  Wilma  due to  the  amount  of  time  that  has transpired since the purported date of loss to the present date.” Citizens also  cited  the  Slominskis’  failure  to  comply  with  post-loss  duties,  a condition precedent to reimbursement of a claim, pursuant to the policy. The  contractual  post-loss  duties  required  the  Slominskis,  in  a case  of loss to their property, to “[g]ive prompt notice to [Citizens].”

Citizens filed a motion for summary judgment alleging the appellants breached their duty by failing to timely report the claim. ​In support of the motion, Citizens filed various affidavits and depositions including a transcript of the contractor that performed work for the insured. In the deposition of the contractor:

the  contractor  concluded  that  the  wind  damage would not have occurred “without hurricane-force[] winds,” but admitted that he could not be “100% sure” that the wind damage was caused by Hurricane  Wilma,  as  opposed to  Hurricane  Frances  in  2004.  On  the other  hand, he  testified  that  the  direction  from  which  the  respective storms hit varied, which formed the basis for his opinion.  He admitted that,  with  regard to  water  damage, there  was “no  way to  differentiate” one storm from another.  However, in his affidavit, the contractor stated: “Based on my expertise and personal knowledge of the Slominski home, I am able to determine that the damages as alleged in the lawsuit against Citizens occurred to the property as a result of Hurricane Wilma." 

Additionally, "in  deposition  testimony,  the  engineer  admitted  that  he was  unable  to  determine  exactly  when  the  interior  staining  or  roof damage occurred, but opined only that it was caused by a hurricane."

The Fourth District stated: "In delayed notice cases, “while prejudice to the insurer is presumed, if the insured  can demonstrate that the  insurer has not been  prejudiced thereby,  then the insurer  will not be relieved of  liability merely  by a showing that notice was not given ‘as soon as practicable.’” (citations omitted). In this case, the only evidence submitted to rebut the prejudice to the insurer was the affidavit submitted by the contractor and the affidavit submitted by the engineer. However, in both cases, the affidavits conflicted with deposition testimony by the same person stating they could not determine when the damage to the property occurred  Therefore, the insurer was prejudiced and the judgment was affirmed.

​

Unanimous Supreme Court On One Person One Vote

In Tennant v. West Virginia Secretary of State, a unanimous Supreme Court reversed a three judge district court's decision that agreed with the plaintiff's "claim that West Virginia’s 2011 congressional redistricting plan violates the “one person, one vote” principle that we have held to be embodied in Article I, §2, of the United States Constitution."

11th Circuit Sends Bad Faith Case Back To District Court After Certified Questions Answered

In Chalfonte Condominium Apartment Association v. QBE Insurance Corporation (No. 08-10009), based upon THIS opinion from the Florida Supreme Court answering certified questions, the Eleventh Circuit released a published opinion holding:

Accordingly, based on the Florida Supreme Court’s answers to our certified questions, attached hereto as an appendix, we affirm in part and reverse in part the district court’s judgment. We affirm the district court’s judgment of dismissal of Chalfonte’s claim under Section 627.701(4)(a) of the Florida Statutes, because an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established under that statutory provision, and we instruct the district court on remand to disallow any evidence of the policy’s failure to comply with these requirements. We reverse the district court’s order denying QBE a new trial and instruct the court on remand to bifurcate the contract claim from the bad faith claim and to apply the deductible to any judgment Chalfonte may obtain on retrial.

The Chalfonte case was previously discussed on this blog HERE and HERE.​

Order Denying Fees Based On Flat Fee Agreement With Foreclosure Attorney Affirmed

In Raza v. Deutsche Bank National Trust Company, the Second District determined that the borrower had properly preserved a claim for attorneys fees by pleading entitlement in his answer and filing a motion for fees within thirty days of the involuntary dismissal. However, the borrower did not sufficiently establish the fees incurred. ​

Deutsche Bank argues that Mr. Raza failed to prove a reasonable fee under Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Principally, it argues that the record contains no information regarding the number of hours spent by Mr. Raza's counsel and the amount of work performed. Mr. Raza responds that the flat fee satisfies any evidentiary burden. We cannot agree.

Emphasis supplied.​ The court later stated that "We do not hold that the absence of time records is fatal to an effort to recover fees under a flat fee arrangement." The flat fee may be sufficient when "combined with expert testimony...if it accounts for all matters addressed in Florida Patient's Compensation Fund." In this case, the fee expert's affidavit "was facially inadequate" Finally, "Even if Mr. Raza did present sufficient evidence, the amount of fees remains in the trial court's discretion"

Sanctions For Filing Motion to Vacate Reversed Due To Colorable Claim

​In Swan Landing Development LLC v. First Tennessee Bank National Association (2D11-3410),  the Second District reviewed the trial court's  imposition of sanctions against the Appellant and its attorneys. Ultimately,  the sanctions order was reversed because the organization had a colorable claim and basis to file a motion seeking relief they sought.

​The court stated that "[a] finding that a party is entitled to recover attorney's fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney's fees or otherwise before the court and in the record." That being said, in this case, the Court stated:

We are compelled to conclude based on the facts of this case that the trial court abused its discretion in awarding fees under section 57.105.  Rule 1.540(b) permits a trial court to relieve a party from a final judgment based, in part, on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing, . . . fraud . . . , misrepresentation, or other misconduct of an adverse party . . . ."  Here, the Bank's audit inquiry letter, which was sent after entry of the final judgment of foreclosure, facially contradicted the Bank's position at trial that the parties had agreed to a concession.  And because Swan Landing's efforts seeking an explanation of this contradiction proved unsuccessful, we conclude it was reasonable under these circumstances for Swan Landing and its attorneys to pursue the 1.540(b) motion. 

​

Trademark Infringement Claims By Catholic Order Against Florida Priory

​THIS published opinion released by the Eleventh Circuit last week had a Da Vinci Code feel to it. 

The Plaintiff/Appellant was a religious order of the Roman Catholic Church. The Defendant/Appellee was "The Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (The Florida Priory) is also a charitable organization, having an expressly ecumenical, rather than Catholic, association." The two organizations have similar roots that the opinion discusses in some detail. The dispute related to allegedly confusingly similar marks used by both organizations. 

The district court cancelled four of the Plaintiff's marks for fraud on the Patent and Trademark Office. The district court found the only remaining service mark visually dismissal to the defendants mark and rejected the Lanham Act claims for that remaining mark. Finding no likelihood of confusion, the district court also denied the Plaintiff's state law claims. 

Fraud on the PTO

The Eleventh Circuit noted that "The district court explained that Pace was personally unaware of the existence of The Ecumenical Order at the time he signed the applications and the accompanying oath." The Eleventh Circuit discussed its prior law on the issue and held that "Pace had no awareness that any other organization was using the marks for which Plaintiff Order sought federal protection.  This fact alone compels reversal of the fraud finding, as Pace could not have intended to deceive the PTO in attesting to an oath that he believed was entirely accurate." 

The Eleventh Circuit also rejected the District Court's basis to support its finding of fraud. "To support its finding of fraud, the district court analogized to the Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. ___, 131 S. Ct. 2060 (2011).  Global-Tech considered whether knowledge of infringement was required to sustain a claim that a party actively induced infringement of a patent under 35 U.S.C. § 271(b).  Id. at 2063." …. "It was error to look to this case for the applicable standard to analyze a claim for fraud on the PTO.  We have been admonished to exercise caution before importing standards from one area of intellectual-property law into another….The Florida Priory has not pointed to any authority to establish the sort of 'historic kinship' that may justify translation of a patent-infringement standard into the mark-application context."

For its final note on the fraud claim, the Eleventh Circuit stated "[t]here is one additional aspect of the fraud analysis that the district court did not address. If the declarant subjectively believes the applicant has a superior right to use the mark, there is no fraud, even if the declarant was mistaken."

Lanham Act Infringement Claim

"The Lanham Act prohibits the unauthorized use of a mark in commerce that is confusingly similar to a registered service mark. 15 U.S.C. § 1114(1)(a). To prevail on a civil infringement claim brought under 15 U.S.C. § 1125, a plaintiff must establish that (1) its mark is entitled to protection and (2) the defendant 'adopted an identical or similar mark such that consumers were likely to confuse the two.' Int’l Stamp Art, Inc. v. United States Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006) (per curiam)."  

After describing the test it applies, the court held: "Here, because the district court did not make any additional factual findings to aid us in evaluating whether it committed clear error, we have an “insufficient basis” to evaluate its ultimate conclusion.  Id. As a result, we remand the infringement claim so the district court may conduct the proper, multi-factor infringement analysis for the design marks. The district court should also conduct this analysis for Plaintiff Order’s word marks, which were improperly canceled for fraud."

Lanham Act False Advertising Claim

"Under the Lanham Act, an entity that misrepresents the 'nature, characteristics, qualities, or geographic origin' of its services in commercial advertising or promotion is liable to the persons damaged by the false or misleading representation. 15 U.S.C. § 1125(a)(1)." ... "The district court essentially agreed with the version of history as presented by The Florida Priory and, specifically, by Papanicolaou.  On appeal, Plaintiff Order argues that its witnesses, rather than those of The Florida Priory, accurately recited the relevant history.  It attributes error to the district court’s reliance on the testimony of Papanicolaou—who did not hold himself out to be an expert in history—over the testimonies of Gamble and Dr. Vann—only one of whom was qualified as an expert in the history of the Order of Malta.  We conclude that the district court did not clearly err in its factual findings and therefore affirm its disposition of the false advertising claim."

​State Law Claims

​"The success of Plaintiff Order’s state unfair competition and FDUTPA claims is tied to the federal Lanham Act claims for infringement and false advertising.  See Natural Answers, Inc. v. Smithkline Beecham Corp., 529 F.3d 1325, 1333 (11th Cir. 2008).  Because we vacate the ruling on the infringement claim as related to the design mark and remand for reconsideration utilizing the multifactor test, we likewise vacate the district court’s conclusions with regard to the analogous state claims.  

Next, because we reverse the district court’s cancellation of the registered word marks, we also vacate the portion of the district court’s order disposing of the state claims based on these word marks so it has the opportunity to revisit them based on a complete analysis under the correct standard."

Petition for Writ of Mandamus To Obtain Purported Public Records Denied

In Harvard v. City of Palm Springs, the Fourth District affirmed the Circuit Court's denial of a petition for writ of mandamus. The mother of a minor involved in an altercation sought the police report and video interview of the other minor. The city agreed it could provide the information, however, argued that the decision to provide the material was discretionary. The court stated:

The Village concedes that Harvard, as the representative of her son, qualifies as a "victim." However, the Village emphasizes that although section 985.04(3) permits the release of a juvenile offense report to a victim, such a release is discretionary, not mandatory. In support of its argument, the Village emphasizes the presence of the word "may" in the statute.

First, we address whether the Village was required to produce the requested juvenile offense report to Harvard under section 985.04(3). Our analysis begins by applying accepted rules of statutory construction. "Legislative intent is the polestar that guides a court?s statutory construction analysis." Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003). In attempting to discern legislative intent, we first look to the actual language used in the statute. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000). If the statute is clear and unambiguous, we will not look behind its plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002). In such an instance, “the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.” State v. Burris, 875 So. 2d 408, 410 (Fla. 2004). Here, the issue is whether the term “may” as used in section 985.04(3) is permissive or mandatory. We hold that the plain language of section 985.04(3) is unambiguous, and thus interpret the word “may” as a permissive term. Noel v. Sheldon J. Schlesinger, P.A., 984 So. 2d 1265, 1267 (Fla. 4th DCA 2008) (“The word ‘may’ denotes a permissive term rather than the mandatory connotation of the word ‘shall.’”) (citations and quotations omitted). Accordingly, we affirm the trial court’s ruling that the Village was not required to produce the requested juvenile offense report to Harvard.

The court also rejected the mother's attempt to obtain a copy of the video interview of her son. The public records request fell into an exemption.

Post Loss Insurance Claim Can Be Assigned, But The Insured Still Must Cooperate With Loss Investigation

​In Citizens Property Insurance Corporation v. Ifergane (3D10-1195 & 3D09-3293), the Third District affirmed the trial court in part and reversed in part. Because post-loss insurance claims are freely assignable in Florida, the trial court correctly dismissed the former spouse who had assigned her interest in the claim. However, that did not relieve the former spouse of her obligations to cooperate pursuant to the contract (insurance policy). The court stated:

Because we find there were genuine issues of material fact as to whether Haim was a resident spouse on the date of loss, and because the Assignment did not relieve Alexandra of her post-loss obligations as a named insured under the policy, we reverse.

Unsigned Opinion From Divided Federal Circuit

The Federal Circuit released an en banc opinion today in Akamai Technologies v. Limelight Networks. The decision was an unsigned per curiam opinion joined by six members of the court. The other five members of the court dissented. The unsigned, divided, en banc opinion is what caught my attention (those facts, not the contents of the opinion). That aside, the majority stated:

In the two cases before us, we address the question whether a defendantmay be held liable for induced infringement if the defendant has performed some of the steps of a claimed method and has induced other parties to commit the remainingsteps (as in the Akamai case), or if the defendant hasinduced other parties to collectively perform all the stepsof the claimed method, but no single party has performedall of the steps itself (as in the McKesson case).

***

Much of the briefing in these cases has been directedto the question whether direct infringement can be foundwhen no single entity performs all of the claimed steps ofthe patent. It is not necessary for us to resolve that issuetoday because we find that these cases and cases likethem can be resolved through an application of the doc-trine of induced infringement. In doing so, we reconsiderand overrule the 2007 decision of this court in which weheld that in order for a party to be liable for inducedinfringement, some other single entity must be liable fordirect infringement. BMC Resources, Inc. v. Paymentech,L.P., 498 F.3d 1373 (Fed. Cir. 2007). To be clear, we holdthat all the steps of a claimed method must be performedin order to find induced infringement, but that it is notnecessary to prove that all the steps were committed by asingle entity.

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Foreclosure Judgment Reversed With Instructions To Enter Judgment In Favor Of Defendant Due To Lack of Prosecution

In Spencer v. EMC Mortgage Corp. (3D11-0136), the Third District reversed a judgment with instructions to enter judgment against the Plaintiff/Appellee for lack of prosecution. In July 1997, Spencer stopped making payments on her mortgage. In 2002, a foreclosure complaint was filed that, after a number of motions were filed, "the case languished for thirteen months. The trial court issued a notice of lack of prosecution (order to show cause why the case should not be dismissed), docketed on March 5, 2009, and it scheduled a hearing for the matter for May 29, 2009. There was no record activity in the case during the sixty-day period following the notice of lack of prosecution." Nothing was filed until three days before the hearing, when an unsworn document was filed that "advised the court that the order to show cause had been sent to the offices of prior counsel—not EMC’s successor counsel—and that he had only learned of the notice two weeks earlier by checking the docket." 

The Third DCA noted that "EMC’s brief is more candid. EMC’s counsel actually became aware of the notice of lack of prosecution (docketed March 5, 2009) in “late March or April, during a review of the lower court docket.” EMC’s attorney’s fee affidavit and billing records are even more definitive: a March 30, 2009, time entry narrative states “Review and analyze docket re order entered to show cause why case should not be dismissed for lack of prosecution.” EMC thus had ample time, over a month, within the sixty-day window allowed for record activity that would defeat dismissal. That fact, without more, takes this case out of the 'no notice received' exceptions detailed in Deutsche Bank National Trust Co. v. Basanta, 88 So. 3d 216 (Fla. 3d DCA 2011), and Boosinger v. Davis, 46 So. 3d 152, 154 n.2 (Fla. 2d DCA 2010)."

The court also determined further prosecution would be barred by the statute of limitations. In conclusion, the court stated:

The final summary judgment is reversed. The order denying the motion to dismiss for failure to prosecute the second, 2002 foreclosure case is reversed and vacated. The case is remanded to the trial court for dismissal and for an award of trial and appellate attorney’s fees and costs to Ms. Spencer.

As a footnote the conclusion quoted above, the Third District addressed an interesting issue regarding the availability of fees. The court stated: "In view of the likelihood that this action is barred by the applicable statute of limitations, a party may question whether any motion for attorney’s fees and costs may now be pursued. We conclude that such a motion may proceed based on the analysis in Katz v. Van Der Noord, 546 So. 2d 1047, 1049 (Fla. 1989) (holding that attorney’s fees may be recovered under a prevailing party provision even though the contract itself is determined to be unenforceable)."

In a special concurrence, Judge Schwartz began:

Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997. While it therefore pains me deeply to do so, I concur in the reversal of the summary judgment of foreclosure against her. I do so for two reasons.

His entire special occurrence begins on page 10 of the opinion.

Mandatory E-Mail Service In All Florida Civil Cases & eserve.cc

Last month, the Florida Supreme Court issued an opinion requiring email service of all filings in all civil cases effective September 1, 2012. The opinion, available HERE, includes specific requirements for the service of all pleadings and filings and what must be included in the email. Generally, service of documents is now governed by Florida Rule of Judicial Administration Rule 2.516. The subject of the email must contain certain words in all capital letters; the attached filed cannot be over 5mb; and the body of the e-mail is required to contain specific information.

[Update: I have not removed the post below but the domain is no longer active.]

To try and make it a bit easier, with the guidance of a friend, I created a simple website for users to insert information which will open up a new email in the preferred email editor (Outlook, etc.) including the required subject and text. If you go to www.eserve.cc you will see the first page copied below. It is not an extremely difficult process but look below for an explanation of the two step process.

Florida Legal Blog's E-mail Service Form - www.eserve.cc

The first page asks for the information below (the email addresses are created by me as an example---hopefully not real):

The second page simply asks you to click the "Open Email" prompt shown below:

Finally, an email that look something like the image below will open in your preferred email editor:


Don't forget to attach the file you are serving….

Supreme Court's Health Care Opinion & "Who Joined What"

The opinion is below. If you are reading the opinion, here is a guide:

• 1-6: Syllabus;
• 7-21: Chief Justice Roberts joined by Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan  (labeled pages 1-15 in the opinion);
• 22-38: Chief Justice Roberts alone (labeled pages 16-32 in the opinion);
• 
  

  39-50: Chief Justice Roberts joined by Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan  (labeled pages 33-44 in the opinion);
• 50-51: Chief Justice Roberts alone (labeled pages 44-45 in the opinion);
• 51-65: Chief Justice Roberts joined by Justice Breyer and Justice Kagan (labeled pages 45-59 in the opinion);
• 
  

  66-103: Justice Ginsburg joined by Justice Breyer, Justice Kagan, and Justice Sotomayor;
• 103-126: Justice Ginsburg joined by Justice Sotomayor;
• 127-191: Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito; and
• 191-192: Justice Thomas dissenting.

All of the page numbers refer to the page number in the .pdf and the red page numbers are clearly added by me.
HCA Opinion 11-393c3a2