C-SPAN Asks Supreme Court To Broadcast Health Care Oral Argument

Today, Brian P. Lamb, the Chairman and Chief Executive Officer of C-SPAN sent a letter to Chief Justice Roberts, and a copy to each Justice, asking the Court to broadcast the five and a half hours of oral argument the Court has scheduled in the various cases relating to the Patient Protection and Affordable Care Act (prior post HERE). The request is copied below and you can click on it to make it larger:

I am sure the request will be denied as this is the same Court that entered a stay (see HERE) to prevent a California District Court from broadcasting its trial. The Court also denied THIS request from C-SPAN and CNN in 2000 asking to broadcast the Bush v. Gore oral argument (an article is available HERE). However, the Court did release the audio of the Bush v. Gore argument on an expedited basis and you can listen to the audio HERE and HERE. Of course, you could have watched the argument before the Florida Supreme Court live and can watch an archived copy HERE. 

Just last month THIS article references testimony by Justice Scalia and Justice Breyer that providing a video of oral argument is not important. You can view the actual testimony HERE. Justice Kagan, however, apparently supports the broadcast of oral arguments (according to THIS New York Times article). Assuming the request is denied, audio of the oral argument will be available on the Supreme Court's website (HERE), which states:

The audio recordings of all oral arguments heard by the Supreme Court of the United States is available to the public at the end of each argument week. The audio recordings are posted on Fridays after Conference. The public may either download the audio files or listen to the recordings on the Court’s Web site. The audio recordings are listed by case name, docket number, and the date of oral argument. The Court began audio recording oral arguments in 1955. The recordings are maintained at The National Archives and Records Administration.  Prior to the 2010 Term, the recordings from one Term of Court were not available until the beginning of the next Term. The Archives will continue to serve as the official repository for the Court’s audio recordings. 

The Supreme Court's September 28, 2010 press release about releasing the audio recordings of oral arguments is below: 

For Immediate Release	For Further Information Contact:
September 28, 2010	Kathleen Arberg (202) 479-3211

Beginning with October Term 2010, the audio recordings of all oral arguments heard by the Supreme Court of the United States will be available free to the public on the Court’s Web site, www.supremecourt.gov, at the end of each argument week.  The audio recordings will be posted on Fridays after Conference.

The public may either download the audio files or listen to the recordings on the Court’s Web site.  The MP3 files of the audio recordings may be accessed by clicking on the “Oral Arguments” prompt on the home page, and selecting “Argument Audio.”  The audio recordings will be listed by case name, docket number, and the date of oral argument.  The recordings will also be accessible by clicking on “What’s New” on the site’s home page.

The Court began audio recording oral arguments in 1955.  The recordings are maintained at The National Archives and Records Administration.  Prior to the 2010 Term, the recordings from one Term of Court were not available until the beginning of the next Term.  The Archives will continue to serve as the official repository for the Court’s audio recordings. 

Third DCA Streaming Live Oral Arguments

On November 7, 2011, the Third DCA began streaming live audio and video of oral arguments HERE. You can view the court's oral argument calendar HERE. As of today, I believe the Second DCA is the only appellate court in Florida not streaming oral arguments-although the Second DCA does record them. You can view the oral argument page at each of the courts by clicking on the following links: 

• Florida Supreme Court: Calendar, Live and Archived;
• First District Court of Appeal: Schedule, Live (Courtroom 1), Live (Courtroom 2), and Archives;
• Second District Court of Appeal: Calendar;
• Third District Court of Appeal: Calendar, and Live;
• Fourth District Court of Appeal: Calendar, and Live;
• Fifth District Court of Appeal: Calendar, Oral Argument Procedural Guidelines, Live, and Archived.

A post when the Fourth DCA began streaming arguments is copied below.

---

SATURDAY, APRIL 25, 2009

Fourth DCA Streaming Live Oral Arguments

The Fourth DCA is now streaming live audio and video of oral arguments here. The site indicates it has audio and video of oral arguments since September 2005, however, the archive feature is not yet active.

The First DCA and the Fifth DCA already offer live streaming video of oral arguments available for the First DCA here and the Fifth DCA here. The First DCA has archived oral arguments available starting in January 2004 and the Fifth DCA has archives available since 2005.

While the Third DCA does not yet have live streaming feeds of oral arguments, they do allow counsel from Tallahassee or Key West to argue at oral argument via video conference. The Key West order is here and the Tallahassee order is here.

It does not look like the Second DCA has a streaming feed at this time. If this is incorrect please let me know.

The Florida Supreme Court has oral arguments archived from 1997 to the present here.

Two State Supreme Court Opinions On Foreclosures And Assignments

On Friday, the high court in two states issued opinions relating to foreclosures.  

In JPMorgan Chase Bank v. Harp, the Maine Supreme Judicial Court held that lack of ownership of the mortgage at the time suit is filed is not a fatal defect if ownership is acquired before summary judgment is obtained.

Harp asserts that JPMorgan did not have standing to bring this action before it received assignment of the mortgage and therefore the complaint should be dismissed without prejudice....At the commencement of litigation, JPMorgan owned the note, but not the mortgage.   JPMorgan would  have been vulnerable to a motion by Harp challenging JPMorgan’s ability to foreclose at that time.  However, Harp did not raise this issue before JPMorgan cured the defect through the assignment of the mortgage from Nationwide Lending Corp.  At the time JPMorgan filed its motion for summary judgment,  it had satisfied the ownership prerequisites for standing.

The court concluded:

In summary, we hold that JPMorgan improperly filed the foreclosure complaint before it owned both the note and the mortgage, but this defect was cured when JPMorgan was assigned the mortgage.  Because Harp did not raise this issue until after the assignment, the court did not err in considering JPMorgan’s motion for summary judgment.

In U.S. Bank National Association v. Ibanzez, the Massachusetts Supreme Judicial Court affirmed a lower court's ruling voiding two foreclosure sales.  The opinion began:

After foreclosing on two properties and purchasing the properties back at the foreclosure sales, U.S. Bank National Association (U.S.Bank), as trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-Z; and Wells Fargo Bank, N.A. (Wells Fargo), as trustee for ABFC 2005-OPT 1 Trust, ABFC Asset Backed Certificates, Series 2005-OPT 1 (plaintiffs) filed separate complaints in the Land Court asking a judge to declare that they held clear title to the properties in fee simple. We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure. As a result, they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties, and their requests for a declaration of clear title were properly denied. 

The court described the foreclosure process in Massachusetts, which does not include judicial oversight, and stated:

Recognizing the substantial power that the statutory scheme affords to a mortgage holder to foreclose without immediate judicial oversight, we adhere to the familiar rule that "one who sells under a power [of sale] must follow strictly its terms. If he fails to do so there is no valid execution of the power, and the sale is wholly void."....

One of the terms of the power of sale that must be strictly adhered to is the restriction on who is entitled to foreclose. The "statutory power of sale" can be exercised by "the mortgagee or his executors, administrators, successors or assigns." G.L. c. 183, § 21. Under G.L. c. 244, § 14, "[t]he mortgagee or person having his estate in the land mortgaged, or a person authorized by the power of sale, or the attorney duly authorized by a writing under seal, or the legal guardian or conservator of such mortgagee or person acting in the name of such mortgagee or person" is empowered to exercise the statutory power of sale. Any effort to foreclose by a party lacking "jurisdiction and authority" to carry out a foreclosure under these statutes is void.... 

For the plaintiffs to obtain the judicial declaration of clear title that they seek, they had to prove their authority to foreclose under the power of sale and show their compliance with the requirements on which this authority rests. Here, the plaintiffs were not the original mortgagees to whom the power of sale was granted; rather, they claimed the authority to foreclose as the eventual assignees of the original mortgagees. Under the plain language of G.L. c. 183, § 21, and G.L. c. 244, § 14, the plaintiffs had the authority to exercise the power of sale contained in the Ibanez and LaRace mortgages only if they were the assignees of the mortgages at the time of the notice of sale and the subsequent foreclosure sale....

We do not suggest that an assignment must be in recordable form at the time of the notice of sale or the subsequent foreclosure sale, although recording is likely the better practice. Where a pool of mortgages is assigned to a securitized trust, the executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder. However, there must be proof that the assignment was made by a party that itself held the mortgage....

Third, the plaintiffs initially argued that postsale assignments were sufficient to establish their authority to foreclose, and now argue that these assignments are sufficient when taken in conjunction with the evidence of a presale assignment. They argue that the use of postsale assignments was customary in the industry, and point to Title Standard No. 58(3) issued by the Real Estate Bar Association for Massachusetts, which declares: "A title is not defective by reason of ... [t]he recording of an Assignment of Mortgage executed either prior, or subsequent, to foreclosure where said Mortgage has been foreclosed, of record, by the Assignee." [FN21] To the extent that the plaintiffs rely on this title standard for the proposition that an entity that does not hold a mortgage may foreclose on a property, and then cure the cloud on title by a later assignment of a mortgage, their reliance is misplaced because this proposition is contrary to G.L. c. 183, § 21, and G.L. c. 244, § 14. If the plaintiffs did not have their assignments to the Ibanez and LaRace mortgages at the time of the publication of the notices and the sales, they lacked authority to foreclose under G.L. c. 183, § 21, and G.L. c. 244, § 14, and their published claims to be the present holders of the mortgages were false. Nor may a postforeclosure assignment be treated as a pre-foreclosure assignment simply by declaring an "effective date" that precedes the notice of sale and foreclosure, as did Option One's assignment of the LaRace mortgage to Wells Fargo. Because an assignment of a mortgage is a transfer of legal title, it becomes effective with respect to the power of sale only on the transfer; it cannot become effective before the transfer. See In re Schwartz, supra at 269. 

However, we do not disagree with Title Standard No. 58(3) that, where an assignment is confirmatory of an earlier, valid assignment made prior to the publication of notice and execution of the sale, that confirmatory assignment may be executed and recorded after the foreclosure, and doing so will not make the title defective. A valid assignment of a mortgage gives the holder of that mortgage the statutory power to sell after a default regardless whether the assignment has been recorded. See G.L. c. 183, § 21; MacFarlane v. Thompson, 241 Mass. 486, 489 (1922). Where the earlier assignment is not in recordable form or bears some defect, a written assignment executed after foreclosure that confirms the earlier assignment may be properly recorded. See Bon v. Graves, 216 Mass. 440, 444-445 (1914). A confirmatory assignment, however, cannot confirm an assignment that was not validly made earlier or backdate an assignment being made for the first time.   

The briefs and oral argument in the Massachusetts case can be viewed below:

• Appellant US Bank Brief
• Appellees LaRace Brief
• Appellant US Bank Reply Brief
• Amicus Manson Brief
• Amicus McDonnell Brief
• Appellee Ibanez Brief
• Appellant Wells Fargo Reply Brief
• Amicus Attorney General Brief
• Amicus Real Estate Brief

Conflict Certified To Supreme Court On Interlocutory Jurisdiction To Consider Citizens Bad Faith Issue

In Citizens Property Insurance Corporation v. San Perdido Association, Inc. (1D09-6183), a divided panel of the First District both certified conflict and certified the case as one of great public importance.  The majority concluded:

Citizens’ petition for prohibition or certiorari is denied, and pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) and (vi) this court certifies conflict with the fifth district decisions in Garfinkel and La Mer Condominium Assoc., and further certifies the following question of great public importance:

Whether, in light of the supreme court’s ruling in Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?

The Garfinkel decision was discussed in a prior post at THIS link and the briefs and oral argument were posted at THIS link. 

In this First District action, Judge Clark wrote the majority opinion and was joined by Judge Davis. Judge Wetherell wrote a dissenting opinion.  The majority described the facts as follows:

This case arises from a claim by San Perdido under a windstorm insurance policy with Citizens, after Hurricane Ivan caused substantial property damage in 2004. Citizens persistently refused to fully pay its obligation under the terms of the insurance policy, requiring San Perdido to file a circuit court action to compel such payment, and then defend that award in Citizens’ appeal to this court. The circuit court ruling was upheld by this court, in Citizens Property Insurance v. San Perdido Assoc., 22 So. 3d 71 (Fla 1st DCA 2009), and San Perdido thereafter filed its section 624.155 bad faith action in the circuit court. Citizens responded with a motion to dismiss, asserting that the action is barred by the immunity conferred on Citizens in section 627.351(6), Florida Statutes. Citizens argued that this statutory provision grants it sovereign immunity.

***

In its section 624.155 action, San Perdido alleged that Citizens engaged in a series of bad faith practices in its handling of San Perdido’s insurance claim, and that such conduct was both a breach of contract and a willful tort under section 624.155. In denying Citizens’ motion to dismiss, the trial court reasoned that San Perdido’s section 627.155 lawsuit is within the section 627.351(6)(s)(1) exceptions to Citizens’ immunity. Although Citizens could challenge that ruling after an adverse judgment if San Perdido should prevail on the merits of its lawsuit at trial, Citizens now seeks an immediate writ of prohibition or certiorari, and asks this court to preclude any further proceedings in the trial court.

With regard to the legal issue, the court stated:

Contrary to the supreme court’s pronouncements in Roe, the fifth district has issued writs of prohibition where Citizens claimed sovereign immunity in response to a section 624.155 lawsuit for bad faith insurance practices. See Citizens Property Insurance v. Garfinkel, 25 So. 3d 62 (Fla. 5th DCA 2009); see also Citizens Property Insurance v. La Mer Condominium Assoc., 37 So. 3d 988 (Fla. 5th DCA 2010). Like the present case, in those instances Citizens’ motions to dismiss the section 624.155 action were denied by the trial court. In undertaking immediate review of those rulings, the fifth district referred to the supreme court’s earlier decision in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So. 2d 1113 (Fla. 1976), and treated the matter as a question of the trial court’s subject matter jurisdiction. But the fifth district did not refer to or otherwise acknowledge the supreme court’s more recent ruling in Roe, which characterized the jurisdictional theory in Circuit Court of Twelfth Judicial Circuit as an approach which pertained "at one time," but which no longer applied. As Roe suggested, there is no irreparable harm in requiring that appellate consideration of the sovereign immunity claim await the entry of a final judgment.

Without the irreparable harm required for certiorari, and given the supreme court’s repudiation of the Circuit Court of Twelfth Judicial Circuit theory of jurisdiction in Roe, Citizens is not entitled to immediate interlocutory review of the denial of its motion to dismiss San Perdido’s section 624.155 lawsuit.

The dissent began:

I respectfully dissent from the decision to dismiss Citizens’ "Petition for Writ of Prohibition, and Alternatively, Petition for Writ of Certiorari." I would grant the petition and quash the trial court’s order denying Citizens’ motion to dismiss because, as the Fifth District correctly held in Garfinkel, "Citizens is immune from first-party bad faith claims pursuant to Section 627.351(6)([s])1." See 25 So. 3d at 69.

I agree with the majority that prohibition is not the appropriate remedy in this case because Citizens’ claim of immunity does not implicate the trial court’s subject-matter jurisdiction. But I disagree that we lack jurisdiction to consider Citizens’ alternative petition for writ of certiorari. In my view, not only do we have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(3) and 9.100 to consider the petition, but it is incumbent upon us to do so at this time because the trial court’s erroneous order denying Citizens immunity from Respondent’s suit will cause material injury to Citizens that cannot be fully remedied upon plenary appeal. Nothing in Roe compels the decision reached by the majority.

***

I recognize that the injury that Citizens will suffer in this particular case is diminished somewhat by the likelihood that the merits of the immunity issue will be back before this court in relatively short order. Indeed, if and when the issue is raised again by Citizens at the trial court (either through a renewed motion to dismiss or a motion for summary judgment), the court will be obligated to follow the holding in Garfinkel and dismiss Respondent’s bad faith suit against Citizens.

(Emphasis added).  The oral argument in this case was held on May 19, 2010 and will be posted below later today:

Petitioner's Argument

Respondent's Argument

Petitioner's Rebuttal Argument

After the oral argument, the Court entered an order requiring supplemental briefing.  That order is copied below:

Supplemental briefing is hereby requested from the appellant on the question of whether this court may properly consider the merits of the appellant's petition for a writ of prohibition or certiorari, in light of the supreme court's reasoning in Dep't of Education v. Roe, 679 So. 2d 756 (Fla. 1996), and the approval in that case of this court's decision in Dep't of Education v. Roe, 656 So. 2d 507 (Fla. 1st DCA 1995). See also, e.g., School Board of Miami-Dade County v. Leyva, 975 So. 2d 576 (Fla. 3d DCA 2008). The appellant's supplemental brief should be filed within 15 days from the date of this order. The appellee may file a supplemental answer brief on this question, and if it does so that brief should be filed within 10 days of the appellant's service of its supplemental brief.

Denial of Motion To Vacate Foreclosure Sale Reversed

In U.S. Bank v. Bjeljac (5D09-2809), the Fifth District held that the trial court did not error when refusing to cancel a foreclosure sale, however, reversed the trial court's denial of the appellant's motion to set aside the foreclosure sale.  A prior appeal in the same case was discussed HERE.  

With regard to the motion to cancel foreclosure sale, the court stated:

U.S. Bank’s motion to cancel and reset the foreclosure sale alleged only that it “requests that the foreclosure sale . . . be cancelled and reset.” The trial court denied the motion, finding that it set forth no basis on which the court could intelligently exercise its discretion. Florida Rule of Civil Procedure 1.100(b) requires that motions “state with particularity the grounds therefor . . . .” U.S. Bank’s motion failed to satisfy this basic requirement.

However, with regard to the motion to set aside the sale the Court stated:

U.S. Bank next contends that the trial court erred in failing to set aside the foreclosure sale and vacate the certificate of title because the bid price was inadequate and it mistakenly failed to send a representative to the sale....The third party purchasers concede that the price they paid for the foreclosed property was grossly inadequate. Consequently, we need only determine if the inadequacy resulted from some mistake, fraud or other irregularity in the sale.

***

In Florida, “even a unilateral mistake which results in a grossly inadequate price is legally sufficient to invoke the trial court’s discretion to consider setting the sale aside.”...The sufficiency of the “mistake” is shown, if “the owner became deprived of an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent him there for that purpose was not present.”

***

Section 45.031(8), Florida Statutes (2009), provides that objections based on the amount of the bid may be filed within ten days after the clerk files a certificate of sale, and “[i]f timely objections to the bid are served, the objections shall be heard by the court.” (Emphasis added). 

 Ultimately, the court reversed because of the following:

We believe the question of whether U.S. Bank’s failure to have a representative present at the sale was the result of a mistake is inherently a factual question that requires a hearing before the court.

The oral argument in this appeal can be viewed below:

Appellant's Argument

Appellee's Argument

 Rebuttal

Summary Judgment Of Mortgage Assigned By MERS Affirmed

In Taylor v. Deutsche Bank National Trust Company, as Trustee (5D09-4035), the Fifth District affirmed the trial court's summary final judgment in favor of Deutsche Bank. The court began the opinion by stating "This is yet another in the nationwide series of cases dealing with the processing of mortgages, such as the one given by Mr. Taylor on his residential real property, by use of the system operated by a corporation known as Mortgage Electronic Registration Systems, Inc. ("MERS")."  The court then noted:

The mortgage defines 'Lender' as First Franklin, and MERS as a separate corporation acting solely as a nominee for Lender and Lender's successors and assigns. MERS is specifically described (in bold print) as the 'mortgagee under the Security Instrument.'...The mortgage then specifies that the borrower, Mr. Taylor, 'does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, the following described property. . . .'

***

[Taylor's] amended answer denied that the note was assigned by MERS to Deutsche Bank and denied that the mortgage was properly assigned to it. The affirmative defenses, among other things, alleged that Deutsche Bank did not have standing to enforce the note because the exhibits attached to the complaint were insufficient to demonstrate standing and inconsistent with Deutsche Bank's assertion that it owned the note and mortgage....Mr. Taylor argued before the trial court, as he does before this court, that because the note was not indorsed and contained neither an allonge nor a specific assignment, it was payable only to First Franklin, and that Deutsche Bank, therefore, had no standing to attempt to enforce it.

The court concluded:

Because a promissory note is a negotiable instrument, and because a mortgage provides the security for the repayment of the note, this statute leads to the conclusion that the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder....Thus, Mr. Taylor's foundational argument -- that only a holder in due course can enforce the note by foreclosing the mortgage -- is flawed in a significant way. The statute allows a nonholder with certain specific characteristics to foreclose as well.

In the present case MERS is identified in the mortgage as a corporation that 'is acting solely as a nominee for Lender,' and as 'the mortgagee under this Security Agreement.'  The mortgage also contains the following provision:

Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property, and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

(Emphasis added). It appears, consequently, that the mortgage document, reciting the explicit agreement of Mr. Taylor, grants to MERS the status of a nonholder in possession as that position is defined by section 673.3011.

MERS, however, is not the party that foreclosed the subject note and mortgage.  Rather, Deutsche Bank is.....The written assignment filed as part of the summary judgment documents in the case before us specifically recites that MERS assigned to the appellee, Deutsche Bank.....We conclude, accordingly, that the written assignment of the note and mortgage from MERS to Deutsche Bank properly transferred the note and mortgage to Deutsche Bank. The transfer, moreover, was not defective by reason of the fact that MERS lacked a beneficial ownership interest in the note at the time of the assignment, because MERS was lawfully acting in the place of the holder and was given explicit and agreed upon authority to make just such an assignment.

Citing to the Second District, the court also noted:

that 'the Florida real party in interest rule, Fla. R. Civ. P. 1.210(a), permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest.'

Oral argument in this case was held on July 15, 2010 and can be viewed below:

Appellant's Argument

Appellee's Argument

Appellant's Rebuttal

You can view the briefs at the following links:

• Initial Brief;
• Answer Brief;
• Reply Brief;
• Motion for Rehearing;
• Motion for Certification to Florida Supreme Court;
• Response to Rehearing Motion;
• Reply in support of rehearing.

The docket indicates that a reply was permitted in support of the rehearing motion.  However, I do not have a copy.  The rehearing motion and motion for certification were denied.

Jury Verdict Affirmed, Oral Argument

In Monaco Beach Club v. Citizens Prop. Ins. Corp., 2D09-2083, 2010 WL 2520166 (Fla. 2d DCA June 18, 2010), the Second District affirmed a jury verdict. The decision was a PCA and I am only posting this  because I obtained the oral argument video:

The Answer Brief can be viewed HERE.  The Appendix to the Answer Brief can be viewed HERE.  If anyone has a copy of the Initial Brief and/or Reply Brief please send them to me.

Retroactive Application Of Statute By OIR Reversed

In Coventry First, LLC v. Florida, Office of Insurance Regulation, 30 So. 3d 552 (Fla. 1st DCA 2010),  the First District held that the trial court erred as a matter of law when it retroactively applied a statute.  The court stated:

“The general rule is that a substantive statute will not operate restrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.”  Tracking the constitutional reasoning  used by the United States Supreme Court in Ruckelshaus v. Monsanto Company, 467 U.S. 986, 1001-14 (1984), and Landgraf v. USI Film Products., 511 U.S. 244, 280-86 (1994), the Florida Supreme Court has described the proper  two-pronged analysis  for determining whether an enactment such as the 2007 amendment should have retroactive application.  “The first inquiry is one of statutory construction:  whether there is clear evidence of legislative intent to apply the statute retrospectively.”...“The general rule is that in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively.”...“If the legislation clearly expresses an intent that [an act] apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible.” 

***

Coventry correctly notes the trial court erred in failing to address and adjudicate this required second prong of the  legal analysis....We do not find the legislative consideration, mandated by law, anywhere in the 2007 amendment. Instead, we conclude that retroactive application of the 2007 amendment improperly deprived Coventry of vested property rights in the continuing confidentiality and exemption of its trade secrets and other work papers already submitted to the OIR pursuant to  the agency’s regulatory duties....We hold that the amendments here at issue are not retroactive as to Coventry’s work papers.

The oral argument in the case can be viewed below.

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

The Florida Supreme Court released its opinion today in Menendez v. Progressive Express Insurance Co., Inc. (SC08-789) and concluded that "the Third District erred in holding that requiring the insureds to comply with the presuit notice requirements of the statute did not 'violate the general rule against retrospective operation'.”  Because “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract,”  the Third District's decision was quashed.  The Florida Supreme Court stated:

In holding that the statutory presuit notice provision could be applied retroactively to the insured’s claim because it was "merely procedural" and did not unconstitutionally alter any existing rights, the decision of the Third District expressly and directly conflicts with the decisions of this Court in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55 (Fla. 1995), and Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985), and the decisions of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437 (Fla. 1st DCA 2004). Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.

The briefs, oral argument and the Third District's opinion are linked below.

Florida Supreme Court

*Brief on Jurisdiction

*Answer Brief on Jurisdiction

*Initial Brief on the Merits

*Answer Brief on the Merits

*Reply Brief on the Merits

*Oral Argument at the Florida Supreme Court:

*Transcript of Oral Argument at the Florida Supreme Court

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

Third District Court of Appeal

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

*Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008) (on rehearing)

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

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

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

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

  

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

Oral Argument and Briefs In Citizens v. Garfinkel - Citizens Is Immune From Bad Faith Claims

Previously I had a post titled "Citizens Property Insurance Corporation Is Immune From Bad Faith Claims."  The post related to the decision by the Fifth District in Citizens Property Insurance Corporation v. Garfinkel, - So. 3d, -No. 5D09-1641, 2009 WL 4874789 (Fla. 5th DCA Dec. 18, 2009) in which the court held:

that Citizens is immune from first-party bad faith claims pursuant to section 627.351(6)(r)1. Likewise, we hold that Citizens is not subject to bad faith liability under section 624.155(1)(b)(1), as that statute is not applicable to it. Finally, we quash the discovery order dated April 15, 2009, and remand for further proceedings not inconsistent with this opinion. Prohibition, of course, applies only to the count seeking bad faith liability.

Below are the various briefs filed in the case:

Petition for Writ of Certiorari and/or Prohibition;

Show Cause Order;

Response to Petition;

Reply in Support of Petition.

Video of the oral argument, which took place on October 6, 2009, is below:

Petitioner's Argument

Respondent's Argument

Petitioner's Rebuttal

Third District Reverses Order That Quashed Service of Process

In Sun Trust Bank v. Electronic Wireless and Fabian Pesantes (3D09-1952), the Third District reversed the trial court's order quashing service of process.  The Court's six page opinion, writted by Judge Rothenberg, began:

SunTrust Bank seeks reversal of a non-final order quashing service of process on Electronic Wireless Corp. and Fabian Pesantes, contending that they “concocted a hodgepodge of both actual and fictional requirements” for service of process and that “SunTrust duly complied” with each of the actual requirements. We agree and reverse and remand for proceedings consistent with this opinion.

The opinion is below:

Suntrust Bank v. Electronic Wireless, Et Al (3d09-1952) - Opinion

The briefs and oral argument in this case can be viewed below.

BRIEFS

*Appellees Motion to Dismiss Appeal

*Appellant's Response in Opposition to Motion to Dismiss Appeal

*Order Denying Motion to Dismiss Appeal

*Appellant's Initial Brief

*Appellees' Answer Brief

*Appellant's Reply Brief

* Appendix to Appellant's Initial Brief on Appeal

ORAL ARGUMENT

Part I:


Part II:

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.