Monday, March 18, 2013

Justice Souter on Recusal - In re Bulger

Writing for the First Circuit in In re Bulger, Justice Souter's opinion provides a good discussion about recusal. You can view the opinion at THIS link. At issue was the defendant's petition for writ of mandamus seeking an order requiring the district court judge to recuse himself based upon allegations the judge had been invoked in the case (due to his role as an assistant US Attorney). Notably, the defendant was previously on the FBI's Ten Most Wanted list. After an analysis of what recusal is and isn't, and applying that analysis to the facts in this case, the opinion concluded:

In sum, despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim. Footnote The other mandamus conditions being satisfied, the petition is granted, and the case shall be reassigned to a judge whose curriculum vitae does not implicate the same level of institutional responsibility described here.


Wednesday, March 13, 2013

Breach of Fiduciary Duty Claim Can Be Waived

In Band v. Libby (2D11-4942), the Second District held (in addition to addressing other issues) that a claim for breach of fiduciary duty can be waived. The court stated:

We hold that a party may waive a claim based on the breach of a fiduciary duty. "Parties, by their own knowledge and conduct, can waive or be estopped to raise a wide array of constitutional, statutory, and common law rights . . . ." Ruggio v. Vining, 755 So. 2d 792, 795 (Fla. 2d DCA 2000). Indeed, "[a] party may waive any rights to which he or she is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished." Torres v. K-Site 500 Assocs., 632 So. 2d 110, 112 (Fla. 3d DCA 1994) (emphasis added). It follows that a claim based on a breach of fiduciary duty, like any other claim, may be waived.


Trial Court Erred In Refusing To Vacate Judgment When Borrower Cured Default Prior To Foreclosure Sale

In Wells Fargo Bank, N.A. v. Giglio (4D12-418), the Fourth District held that the trial court erred in refusing to grant a motion to vacate a foreclosure judgment. In this case, on the eve of the foreclosure sale, the borrower tendered funds to the lender sufficient to bring the loan current. Based upon that tender of funds, Wells Fargo sought to cancel the foreclosure sale and ultimately to vacate the sale that did occur. The trial court granted the motion to vacate the sale but refused to vacate the judgment. 

The Fourth District stated that "Put simply, Giglio cured the default and the parties settled their dispute, an outcome the law favors." Therefore, the court ultimately held that:
We hold that the trial court, having vacated the foreclosure sale, abused its discretion in refusing to grant the related collateral relief requested by Wells Fargo, which refusal prevented the parties from concluding their settlement. See Toler, 78 So. 3d at 701 (“An order denying a motion for relief from judgment is reviewed for an abuse of discretion.”). The trial court clearly had jurisdiction to consider Wells Fargo’s Rule 1.540(b)(5) motion; and in light of the parties’ settlement --a result the law seeks to encourage -- the relief requested should have been granted. See Wells Fargo Bank, N.A. v. Lupica, 36 So. 3d 875 (Fla. 5th DCA 2010).
In a footnote the court noted that they were not holding that a trial court was always required to vacate a judgment based upon the settlement of the parties and that there may be circumstances when other influences would support denying such a motion. However, there were no other influences in this case.

Material Outside Complaint Can Be Considered In Motion Relating To Contractual Forum Selection Clause

In Steiner Transocean Limited v. Efremova (3D12-2390), the Third District decided that there is no reason a motion to dismiss based upon a contractual forum selection clause should be treated differently than a motion to dismiss for improper venue. Therefore, the trial court erred in refusing to consider evidence outside the four corners of the complaint for purposes of determining the validity of the motion to dismiss.

Involuntary Dismissal Improper Before Party Rests Case

In Deutsche Bank Nat. Trust Co. v. Santiago (3D11-2805), the Third District held that it is premature to sua sponte enter an order for involuntary dismissal before the plaintiff has rested its case.

Thursday, March 7, 2013

Florida Supreme Court: Economic Loss Rule Abolished Outside Of Products Liability Cases

In Tiara Condominium Assoc. v. Marsh & McClennan Companies, Inc. (SC10-1022), the Florida Supreme Court answered a certified question from the 11th Circuit, analyzed the origins of the economic loss rule and abolished application of the rule outside of product liability cases. The court stated: "[w]e answer this question in the negative and hold that the application of the economic loss rule is limited to products liability cases."

The majority opinion concluded by stating:
Having reviewed the origin and original purpose of the economic loss rule, and what has been described as the unprincipled extension of the rule, we now take this final step and hold that the economic loss rule applies only in the products liability context. We thus recede from our prior rulings to the extent that they have applied the economic loss rule to cases other than products liability. The Court will depart from precedent as it does here “when such departure is ‘necessary to vindicate other principles of law or to remedy continued injustice.’ ” Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1131 (Fla. 2005) (quoting Haag v. State, 591 So. 2d 614, 618 (Fla. 1992)). Stare decisis will also yield when an established rule has proven unacceptable or unworkable in practice. See Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So. 3d 576, 574 (Fla. 2010). Our experience with the economic loss rule over time, which led to the creation of the exceptions to the rule, now demonstrates that expansion of the rule beyond its origins was unwise and unworkable in practice. Thus, today we return the economic loss rule to its origin in products liability. 
Because we now limit the application of the economic loss rule to cases involving products liability, it is not necessary for us to decide whether the economic loss rule exception for professionals applies to insurance brokers. Based on the foregoing, we answer the rephrased certified question in the negative and hold that the application of the economic loss rule is limited to products liability cases. Having answered the rephrased certified question, we return this case to the Eleventh Circuit Court of Appeals.  
Justice Labarga wrote the opinion for the court, and was joined by Justice Pariente, Justice Lewis, Justice Quince, and Justice Perry. Justice Pariente wrote a concurring opinion that begins on page 19 of the .pdf and was joined by Justice Lewis and Justice Labarga. Chief Justice Polston wrote a dissenting opinion  that begins on page 26 of the .pdf and was joined by Justice Canady. Justice Canady wrote a dissenting opinion that begins on page 28 of the .pdf and was joined by Chief Justice Polston.