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.

Posted with Blogsy

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.