Dismissal Of Compulsory Couterclaim Not Appealable Until Original Action Finally Disposed

In The Haven Center, Inc. v. Meruelo (3D09-407), the Third District reversed an appeal of an order granting summary judgment of compulsory counterclaims that included the words of finality because the appellee's original and related action remained pending.  The summary judgment was not reversed and the decision was without prejudice to appeal the granting of the summary judgment after the adjudication of the counterclaims. The court stated:

The adjudication of compulsory counterclaims such as these is “not appealable until a final disposition of the original cause has obtained on the merits.”...Meruelo nevertheless encouraged the trial court to add the words of finality, that Haven Center “take nothing on its counterclaim and go hence without day,” over Haven Center’s objection. We reverse the judgment because it is not, in fact, a final judgment, but we do so without prejudice to the right of the parties to appeal when both the claims and the counterclaims have been fully adjudicated.

Third District Affirms 2007 Order Denying Motion To Set Aside Default Entered In 1993

In Robert Whitney, D.C. d/b/a 127th Street Intracoastal Chiropractic Center v. A Aventura Chiropractic Care Center, Inc., and Pembroke Pines Chiropractic Care Center, Inc. (3D08-2546), the Third District affirmed a trial court's 2007 order denying a motion to set aside a default final judgment entered in 1993.  "The appellant argued below and here that he never received various pleadings and the default final judgment in 1992 and 1993...Moreover, the final judgment was recorded among the public records in 1993. The appellant has advanced no reason for simply ignoring, for so many years, a lawsuit he knew had been filed and served upon him in 1990. And although an amended complaint apparently1 was filed after appellant’s counsel withdrew, there was no obligation to serve it by process upon appellant if that pleading did not contain “new or additional claims.” 

The Court then gave a warning to pro se parties and stated:

The cautionary message to parties who have been sued and then elect to proceed without legal representation is this: keep a watchful eye on the case, whether by inspecting the court file or checking the on-line docket. The fact that a self-represented person does not receive further mailings regarding the case does not itself protect her or him from an adverse judgment, because certificates of service by counsel are presumptively valid. Ignoring a lawsuit after service of the original complaint (and absent dismissal with prejudice of all claims) is the legal equivalent of ignoring the dashboard signal for “no brakes” in a rapidly-moving automobile.

"An Attorney Who Seeks 'Emergency' Review Immediately Loses Credibility If This Court Discovers There Is No True Emergency"

In USAA Casualty Insurance Company v. Pembroke Pines MRI, Inc. (4D09-3832), the Fourth District denied a petition for certiorari relating to bad faith discovery and also gave some guidance about "emergency" petitions:

The court system is overloaded. See In re Certification of Need for Additional Judges, 3 So. 3d 1177 (Fla. 2009). As a result of budget cuts in recent years, the courts have lost staff, which has increased the workload of judges and remaining personnel and slowed the disposition of pending cases. Meanwhile, civil and criminal filings have increased.

To safeguard the rights of litigants and assure meaningful review in time sensitive cases, certain types of cases, such as the termination of parental rights and the denial of pretrial bond, are reviewed on an expedited basis. To help identify other cases that need prompt review, this court requires litigants who seek emergency review to include a certificate certifying the existence and nature of the emergency. In Re: Emergency Filings, Fla. Admin. Order No. 4D02-08 (Feb. 11, 2008).

Pleadings filed as emergencies disrupt court procedures and interrupt work on cases that were already pending. Consequently, an attorney who seeks “emergency” review immediately loses credibility if this court discovers there is no true emergency.

Parties Should "Cull Out The Rulings Of A Court From Hearing" In Proposed Order

In Prosser v. Proudfoot Consulting Company (4D09-2907), the Fourth District denied a petition for certiorari but also made the following statement:

We note that our review of this case was immensely complicated by the form of the trial court’s order, which is a one-page order that adopts a 194-page transcript of the hearing on the underlying motions. We understand the pressures on a trial judge in a busy civil division. Here, the judge made clear and precise rulings. Professionalism dictates that the lawyers for the parties should be able to cull out the rulings of a court from a hearing and present them to the court in a one or two page proposed order.  Orders taking the form of the one in this case are difficult to review and enforce. An order in a lawsuit should be worth at least as much as the paper it is printed on.

Winged Foot Foot Notes - August 2009

This has nothing to do with the law and will hopefully be the only personal thing that ever appears on this blog.  The story is about my grandfather and his brother, who hit a combined 27 hole-in-one during their lifetime including one hit by my grandfather in the 1956 US Open.

Winged Foot Footnotes - August 2009

Hearing On Constitutionality Of Ohio's Execution Methods Postponed

The hearing scheduled before a federal district court Judge in Ohio on the constitutionality of Ohio's execution process has been postponed.  10tv.com has a story stating "In an order filed Monday, U.S. Southern District Court of Ohio Judge Gregory Frost said both sides need more time before bringing the battle over the state's lethal injection system to court, 10TV's Andy Hirsch reported."  A subsequent story stated "Broom has a Dec. 9 hearing regarding the stay of execution originally granted by Judge Gregory Frost."

As discussed here, the Sixth Circuit has recognized the importance of the upcoming hearing and held:

Broom’s arguments about these very issues will be heard before the Honorable Gregory Frost of the United States District Court of the Southern District of Ohio; to permit this, his execution has been stayed until at least November 30, 2009. Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration. Judge Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds and Broom.

Other posts relating to Mr. Broom's execution can be found here and here.

Federal Judge Indefinitely Stays Ohio Executon Of Kenneth Biros

United States District Court Judge Gregory Frost has indefinitely delayed the execution of Kenneth Biros.  The New York Times has an article which can be found here.  The New York Times articles states:

The execution of Kenneth Biros, 51, convicted of a 1991 murder and attempted rape, was stayed on Monday to allow the state attorney general and defense lawyers to gather more information about Ohio’s lethal injection protocol. The protocol has come under question since the failed execution of Romell Broom on Sept. 15.

An AFP article can be found here and an article by the Associated Press can be found here.

Eighth Circuit Affirms FDIC's Unilateral Removal Right And HOLA Preemption

In Casey, et al. v. North American Savings (09-1096), the Eighth Circuit reached two conclusions: 1) As soon as the FDIC becomes involved in an action the case arises under federal law and the FDIC can remove the case without the consent of any other party; and (2) the Home Owners’ Loan Act (HOLA), 12 U.S.C. §§ 1461–1468 preempted the state law claims against the federal thrift institutions. [the case style is Casey, et al v. Federal Deposit Insurance Corporation, et al., however, Casey v. North American is how the court listed the decision on its opinion list.].

The case took an interesting road to get to the Eighth Circuit.  The Missouri state court initially concluded HOLA preempted the claims.  The plaintiff's appealed the decision to the Missouri Court of Appeals.  While the case was pending in the Missouri Court of Appeals, the FDIC was named the receiver for Washington Mutual Bank.  After being substituted as a party, the FDIC removed the appeal in the Missouri Court of Appeals to the United States District Court for the Eastern District of Missouri.

Once the case was in the federal district court, the plaintiffs sought to (1) dismiss the FDIC as a party;  (2) have the action remanded to the state appellate court; and (3) again argued the action was not preempted by HOLA.  The district court denied the motion to dismiss without prejudice, adopted the state court's decision finding the action preempted and transferred the case to the Eighth Circuit for the completion of the appellate review originally started in the Missouri Court of Appeals.

DENIAL OF MOTION TO REMAND

The Eighth Circuit first denied the plaintiff's motion to remand to the state appellate court.  "Section 1447(c) requires that a case removed to federal court be remanded if at any time it is determined that subject matter jurisdiction is lacking...Because we retain subject matter jurisdiction under 12 U.S.C. § 1819(b)(2)(A), however, remand is not required by § 1447(c)."  Relying upon a RTS case, Kansas Pub. Emples. Retirement Sys. v. Reimer & Koger Assocs., 77 F.3d 1063, 1067 (8th Cir. 1996),  the court held: "We find our holding in KPERS persuasive here and conclude that all claims in a case to which the FDIC is a party have "arising under" federal subject matter jurisdiction. The subsequent dismissal of the claim against the FDIC did not defeat that jurisdiction or withdraw the court's jurisdiction over the state law claims filed against the other FSA lenders. Because we retain jurisdiction over the latter claims, section 1447(c) does not require that they be remanded to the Missouri Court of Appeals."

The court then rejected the plaintiff's argument that the case should be remanded because the FDIC failed to get the consent of the other defendants prior to removal.  The court stated: "This case was removed under § 1819(b)(2)(B), however, and that statute allows the FDIC to remove any case to which it is a party from state to federal court within ninety days of its becoming a party. The FDIC’s authority to remove under the statute is unilateral: it does not depend upon the consent of other defendants." 

The final remand argument was also rejected. 

When a case arising under federal law is removed from state court, § 1441(c) affords the federal court discretion to 'remand all [otherwise nonremovable] matters in which State law predominates.'  The question of predominance is informed by the precept that “[p]re-emption, the practical manifestation of the Supremacy Clause, is always a federal question.” Int’l Longshoreman’s Ass’n v. Davis, 476 U.S. 380, 388 (1986).

The homeowners urge us to exercise our statutory discretion to remand because Missouri law governing the practice of law allegedly predominates over the question of the preemptive effect of 12 C.F.R. § 560.2. With the exception of their renewed motion to remand, however, the sole issue on appeal is whether § 560.2 preempts the Missouri laws upon which the homeowners base their claims. And since “[p]reemption . . . is always a federal question,” Missouri law is not even at issue, let alone predominant. Davis, 476 U.S. at 388. Remand under § 1441(c) would be inappropriate because the requirement that state law predominate is unmet.

FEDERAL PREEMPTION

The court also affirmed the Missouri state court's decision concluding that state law claims were preempted by HOLA.

The Missouri Circuit Court dismissed the homeowners’ claims against the FSA lenders because it found the predicate state laws preempted by 12 C.F.R. § 560.2, a federal regulation issued by the Office of Thrift Supervision (OTS) under the authority of the Home Owners’ Loan Act (HOLA) of 1933, 12 U.S.C. §§ 1461–1468.

***

We begin with the regulation itself, which declares unequivocally the OTS’ intent “[to] occupy the entire field of lending regulation for [FSAs].” § 560.2(a). Paragraph (a) of § 560.2 defines the extent to which state law is preempted: “[FSAs] may extend credit . . . without regard to state laws purporting to regulate or otherwise affect their credit activities.” Id. Paragraph (b) provides a nonexhaustive list of the types of state laws that are preempted by paragraph (a). § 560.2(b). Paragraph (c) provides the exception, sheltering from the regulation’s preemptive scope state contract, commercial, real property, homestead, tort, and criminal law “to the extent that they only incidentally affect the lending operations of [FSAs] or are otherwise consistent with the purposes of paragraph (a).” § 560.2(c).

***

Our analysis thus begins by determining whether the state laws in question fall within the scope of § 560.2(b). “If so, . . . the law[s] [are] preempted.” 61 Fed. Reg. at 50966.

***

The conclusion that § 560.2(b) contemplates an “as applied” analysis finds further support in an amicus curiae brief filed by the OTS in Jenkins v. Concorde Acceptance Corp., 802 N.E. 2d 1270 (Ill. App. 2003)—a case factually similar to the case before the court. As here, the Jenkins plaintiffs sought to enforce against FSA lenders a state statute prohibiting the imposition of fees for the preparation of legal documents by nonlawyers. Id. at 1270. And as here, the statute was facially neutral. It did not mention lending and thus was not a type of law listed in § 560.2(b). The OTS maintained that the statute was nevertheless preempted because, as applied, it imposed requirements regarding loan related fees—making it one of the types of laws enumerated in § 560.2(b). Brief of the Office of Thrift Supervision as Amicus Curiae Supporting Defendant Cititbank, F.S.B. and Similarly Situated Defendants at 10, Jenkins, 802 N.E. 2d 1270 (No. 02-2738).

In sum, the OTS adheres to the analytic approach advocated by the FSA lenders. That approach is not only sensible, it is owed deference. See Auer v. Robbins, 519 U.S. 452, 461 (1997). We conclude that a state law that either on its face or as applied3 imposes requirements regarding the examples listed in § 560.2(b) is preempted. A generally applicable state law that imposes no such requirements will not be preempted if, as applied, it “only incidentally affect[s] the lending operations of [FSAs] or [is] otherwise consistent with the purposes of [§ 560.2(a)].” § 560.2(c).

CONCLUSION

We deny the homeowners' renewed motion to remand to the Missouri Court of Appeals because we retain arising under jurisdiction over the remaining state law claims lodged against the FSA lenders, the FDIC's removal power under 12 U.S.C. § 1891(b)(2)(B) is undiminished by the rule of unanimity, the requirement under 28 U.S.C. § 1441(c) that state law predominate is not met, and Burford abstention would be inappropriate. Furthermore, we conclude that the Missouri laws upon which the homeowners base their claims are, as applied, types of laws identified in 12 C.F.R. § 560.2(b). As a result federal law preempts their enforcement here, and the homeowners' claims fail to state causes of action. We therefore affirm the dismissal of the homeowner claims on grounds of preemption.

Unlicensed Marriage Not Invalid In Florida According To First District

In Hall v. Maal (08-4776), the First District held that an unlicensed marriage is not invalid in the state of Florida.

The procedures for contracting a valid marriage in Florida are regulated by Chapter 741, Florida Statutes....The Legislature does not, however, expressly state anywhere in Chapter 741 that marriages conducted without a license are invalid or prohibited. In contrast, same-sex and incestuous marriages are prohibited. §§ 741.21, 741.212, Fla. Stat. (2002).

***

As noted above, common-law marriages are void. § 741.211, Fla. Stat. (2002). A common-law marriage is defined as “[a] marriage that takes legal effect, without license or ceremony, when a couple live together as husband and wife, intend to be married, and hold themselves out to others as a married couple.” Lowe v. Broward County, 766 So. 2d 1199, 1210-1211 (Fla. 4th DCA 2000) (citing Black’s Law Dictionary, 986 (7th ed. 1999)). Under the facts of this case, the parties’ relationship was not a common-law marriage; rather, in light of the wedding ceremony, it was an unlicensed marriage.

***

It is clear that the Legislature has prohibited and invalidated same-sex and incestuous marriages, but it has not invalidated unlicensed marriages. The absence of an express invalidation of unlicensed marriages may be considered an expression of legislative intent under the canon of statutory construction known as expressio unius est exclusio alterius.

***

We note that the Legislature is quite capable of writing a strict statute that allows no exception for unlicensed marriages. The Legislature has done just that regarding unlicensed drivers, unlicensed lawyers, unlicensed doctors, and various other activities too numerous to mention.

***

We decline to hold that a solemnized marriage without a marriage license is per se invalid. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

Judge Roberts wrote a dissent. 

Since 1967, when the Florida Legislature abolished common law marriage, there has been only one method of producing a legally cognizable marriage in Florida. See generally §§ 741.01-.212, Fla. Stat. (2002). Persons desiring to be married are required to apply for a marriage license which can be issued by a county court judge or the clerk of the circuit court. § 741.01, Fla. Stat. (2002).