New York Governor's Appointment of Lieutenant Governor Held Illegal

As reported in the New York Times, a New York appellate court ruled New York Governor David Paterson's appointment of a lieutenant governor "illegal" because the court "deemed Mr. Paterson had violated the State Constitution." The article can be found here and the decision from New York's Appellate Division, Second Judicial Department, can be found here.

"Law firm linked to Erin Brockovich investigates possible contamination in The Acreage"

The Palm Beach Post has a story titled "Law firm linked to Erin Brockovich investigates possible contamination in The Acreage" which can be found here. The story begins "A law firm that Hollywood-haloed environmental crusader Erin Brockovich works with is investigating whether contamination could have caused cancer in The Acreage."

United States Supreme Court, Florida Supreme Court and Eleventh Circuit Deny Relief Sought By John Richard Marek - Execution Scheduled for 6 pm

[The original post was made at 11:10am. The post was edited as indicated below]

This morning, a unanimous Florida Supreme Court entered an order denying John Marek's request for relief. The order can be found here. The court stated:

We affirm the denial. We agree that the affidavit attached to Marek's fifth successive motion, when considered cumulatively with the newly discovered evidence presented in support of his third successive postconviction motion, does not meet the standard for relief set out in Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)...The evidence would not probably result in an acquittal or a life sentence on retrial. Because Marek's claim is legally insufficient, the circuit court did not err in summarily denying the motion.

See here for an article on the Palm Beach Post's blog. Previous posts on Mr. Marek's case can be found here and here.

Additionally, the state filed its response brief in the United States Supreme Court in one of the two appeals pending in that Court. The docket for that case can be found here. I will update this post when the United States Supreme Court enters an order OR if the Eleventh Circuit enters an order in the case pending in that court.

UPDATE (4:15pm)

The Eleventh Circuit denied the request for relief and another petition has been filed in the United States Supreme Court and the petition for stay of execution has been submitted to Justice Thomas. The docket can be found here.

UPDATE (6:45pm)

At 6:36 pm the Houston Chronicle first filed the AP story which is titled "Fla. man executed for '83 murder of abducted woman" and can be found here. The Ledger ran its own story titled "Man Convicted of Murder, Rape, Torture Is Executed" which can be found here.

At somepoint after 6:30 pm, the United States Supreme Court posted three orders entered today which can be found here, here an here. Each order states: "The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied. The petition for a writ of certiorari is denied." According to an article in the Gainesville Sun found here: "The execution took place after a short, 20-minute delay, during which time Florida State Prison officials were waiting for the go-ahead either from the governor's office or the U.S. Supreme Court."

This article from the St. Petersburg Times which can be found here states: "Jesus, remember us sinners," Marek said in his final statement about 6:20 p.m. Then he said the Lord's Prayer as the execution process began."

UPDATE (11:30pm)

Brendan Farrington of the Associated Press has an interesting article posted on the Miami Herald web site here. Mr. Farrington was with the Governor during the exexeution and writes that Florida Governor Charlie "Crist allowed The Associated Press to observe him during the last 48 minutes of Marek's life." The article continues:

At 5:45, 15 minutes before the execution was set to begin, Crist sat at his desk...Crist's top lawyer, Rob Wheeler, arrived and told Crist that McCollum's office was sending faxes confirming Marek's three final appeals had been denied...After Crist reviewed them, Wheeler contacted Florida State Prison, where one visiting warden carried out the sentence and another gave Crist every detail. "The governor has received the denials and has asked you to proceed," Wheeler said...At 6:19, the medical team signed the final paperwork that the lethal injections could begin. Crist asked if McCollum was reporting any last minute stays. Atkinson told him no. "Is there anything from the Supreme Court?" Crist asked. Again, the answer was no. "You may carry out the sentence," Crist said.

"Deadly force OK in Florida against retreating attackers"

In Hair v. Florida (1D09-2501), the First District issued its full opinion after previoulsy entering an order granting prohibition and directing the trial cour to release the defendant. An article in the SunSentinel which can be found here begins "says Florida's 'stand-your-ground' law allows the use of deadly force for self-protection even if an attacker or intruder is in retreat." The article continues that "The unanimous opinion may conflict with a 2nd District Court of Appeal decision in 2007. It denied "stand-your-ground" immunity to a Valrico resident because he shot a man who had retreated from his garage after an argument.

Review of Arbitration Awards and Prejudgment Interest

In The Keyes Company v. Spencer (4D07-3837), the Fourth District discussed the review of arbitration awards.

With respect to the award of attorney’s fees to Spencer, Spencer waived her right to have the court modify the arbitration award and award fees. She had three opportunities to seek modification or clarification of the award...She filed a timely motion to correct the award in which she asked the arbitrator to award her prevailing party fees and costs. § 682.10, Fla. Stat. (2007). The arbitrator denied that motion on the ground that he had properly decided those issues. The trial court then confirmed the award, and Spencer did not file motions to vacate or modify the award within ninety days of its entry, as required by sections 682.13(2) and 682.14(1), Florida Statutes (2007). As a result, the trial court erred in later granting Spencer fees against appellant Keyes. We reverse that portion of the award.

As this court has explained, “[r]eview of arbitration proceedings is extremely limited. A high degree of conclusiveness attaches to an arbitration award because the parties themselves have chosen to go this route in order to avoid the expense and delay of litigation.” Davenport v. Dimitrijevic, 857 So. 2d 957, 961 (Fla. 4th DCA 2003) (citations omitted).

***

On cross-appeal, we also reverse the denial of prejudgment interest to Spencer.

Spencer argues that she is entitled to interest on the amount of the deposit that she recovered in the arbitration award from the date of the arbitration award, which was September 5, 2006. We agree. The law governing this issue was set out in Okun v. Litwin Securities, Inc., 652 So. 2d 387, 388-89 (Fla. 3d DCA 1995), as follows:

Prejudgment interest must be awarded, where the claim is liquidated, from the date when payment of the claim is due. Metropolitan Dade County v. Bouterse, Perez, & Fabregas Architects, Inc., 463 So. 2d 526 (Fla. 3d DCA 1985). An arbitration award is akin to a verdict, see U.S.A.A. v. Smith, 527 So. 2d 281 (Fla. 1st DCA 1988), and once an arbitration award is confirmed by the court it becomes, like a verdict, the judgment of that court and interest on that judgment runs from date of its entry until satisfaction of same. The trial court may not award interest which predates an arbitration award. . . . The arbitration award liquidated the amount owed the Okuns and Braunstein from the date of its entry until that award was reduced to judgment, thus prejudgment interest was not only proper but was required.

Accordingly, we hold the trial court erred in its order denying Spencer prejudgment interest as well as in its award of attorney’s fees to Spencer. We reverse as to those issues and affirm as to all other issues raised.

Eleventh Circuit Affirms Modification of Judgment After the Confirmation of An Arbitration Award

In AIG Baker Sterling Heights, LLC v. American Multi-Cinema, Inc. (08-14600), the Eleventh Circuit affirmed the district court's order and rejected the claim that "the district court violated the mandate in Baker I and went beyond the exclusive grounds for modifying an arbitration award under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–16." [Baker I is AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 508 F.3d 995 (11th Cir. 2007)] .

The dispute in both Baker I and this decision related to a claim that a portion of the arbitration award had been satisfied prior to the entry of the award. On remand from Baker I, the district court confirmed the arbitration award but amended the judgment to indicate a portion had been satisfied.

The law of the case doctrine and the mandate rule ban courts from revisiting matters decided expressly or by necessary implication in an earlier appeal of the same case...But neither principle applies “when the issue in question was outside the scope of the prior appeal.”...In Baker I, we spoke in pertinent part about the power of courts to correct an “evident material mistake” in an arbitration award.

***

On remand, the district court entered a judgment entirely confirming the award. Then the district court granted American relief from the district court’s judgment (not the award) to reflect the earlier payment to the taxing authority. Baker argues that this latter decision violated the law of the case and the mandate from the earlier appeal. But as we have pointed out, we discussed in Baker I only modification of the award; we decided nothing expressly or by necessary implication about the district court’s power to grant American relief from a district court judgment or to consider evidence of the payment to the taxing authority. Baker I, therefore, has no decisive role to play here. The district court did not violate the law of the case doctrine or the mandate rule on remand.

***

The FAA severely limits judicial vacatur and modification of an arbitration award. As the Supreme Court recently confirmed, sections 10 and 11 of the FAA offer the exclusive grounds for expedited vacatur or modification of an award under the statute...We do not see, though, how those FAA sections control in the circumstances of this appeal: the district court neither vacated nor modified the arbitration award. Instead, the district court entered a judgment confirming the award and about two months after that granted American some relief from the judgment under Rule 60(b)(5). 3 Sections 10 and 11 say nothing about court judgments and do not control this appeal.

We instead turn our attention to section 13 of the FAA. That provision says that a judgment confirming an arbitration award, once entered, has the same force and effect as a judgment in a standard civil action and is subject to all the provisions of law relating to those judgments...Under Rule 60(b), a court may relieve a party from a judgment if “the judgment has been satisfied, released, or discharged . . . .” Fed. R. Civ. P. 60(b)(5). This authority encompasses the power to declare a judgment satisfied “when damages are paid before trial or a tortfeasor or obligor has paid the judgment debt.”

Fourth District Upholds Dismissal of Declaratory Relief Claim - With a Dissent From Judge Warner

In N & D Holding, Inc. v. Town of Davie (4D08-2809), the Fourth District affirmed the dismissal of a complaint for declaratory relief. Senior Judge Shahood wrote the opinion, which Judge Hazouri joined. Judge Warner filed a dissenting opinion.

The majority stated:

The standard of review of a trial court’s ruling dismissing a complaint for declaratory judgment is whether the trial court abused its discretion. S. Riverwalk Invs., LLC v. City of Ft. Lauderdale, 934 So. 2d 620, 622 (Fla. 4th DCA 2006). “‘A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts.’” Id. (quoting Palumbo v. Moore, 777 So. 2d 1177, 1178 (Fla. 5th DCA 2001)). “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” Id. (citations omitted).

***

However, the record contains no transcript of the hearing on the motion to dismiss, and, thus, we are without any evidence that the trial court considered outside allegations or evidence in the course of the proceedings. It is the appellant’s duty to point out where in the record the alleged error can be substantiated.

The dissent stated:

The complaint stated a cause of action for declaratory judgment. “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.”...The allegations of N & D show that it is entitled to a declaration of its rights to the zoning in question.

Forum Selection Clause Upheld

In Krenkel v. Kerzner International Hotels Limited (08-15971), the Eleventh Circuit upheld a dismissal based upon a forum selection clause. The court stated:

Forum-selection clauses are presumptively valid and enforceable unless the plaintiff makes a “strong showing” that enforcement would be unfair or unreasonable under the circumstances. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-95, 111 S. Ct. 1522, 1527-28 (1991); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 1913 (1972). A forum-selection clause will be invalidated when: (1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.

Action On Prior Judgment Is Continuation Of Original Action

In Petersen v. Whitson (2D09-877), the Second District reviewed an action upon a judgment. A judgment was obtained in Florida against a Florida resident. After the entry of the judgment, the resident moved to Georgia. The judgment creditor filed an action on the judgment and the judgment debtor moved to dismiss for lack of personal jurisdiction.

The court held:

In our view, an action on a judgment, whether under a new complaint or by a writ of scire facias, is a continuation of the original action. See McGraw v. Parsons, 369 N.W.2d 251, 252 (Mich. Ct. App. 1985). From this premise, it follows that the court that rendered the judgment in the original action has continuing jurisdiction over the defendant in an action to renew the judgment. See Huff v. Pharr, 748 F.2d 1553, 1555 (11th Cir. 1984); Cadle Co. II, Inc. v. Fiscus, 78 Cal. Rptr. 3d 238, 244 (Cal. Ct. App. 2008); Kaylor v. Turner, 435 S.E.2d 233, 235 (Ga. Ct. App. 1993), disapproved on other grounds by Okekpe v. Commerce Funding Corp., 463 S.E.2d 23, 25 (Ga. Ct. App. 1995); Bank of Edwardsville v. Raffaelle, 45 N.E.2d 651, 653 (Ill. 1942); Bahan v. Youngstown Sheet & Tube Co., 191 So. 2d 668, 671-72 (La. Ct. App. 1966); Ewing v. Bolden, 486 N.W.2d 96, 101 (Mich. Ct. App. 1992); McGraw, 369 N.W.2d at 252; Duffy v. Hartsock, 46 S.E.2d 570, 574 (Va. 1948). Thus the circuit court had continuing jurisdiction over the judgment debtor and properly denied his motion to dismiss.