Monday, October 15, 2012

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.

Wednesday, October 10, 2012

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.

Friday, October 5, 2012

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.

Wednesday, October 3, 2012

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.