Review Of Illegally Obtained Evidence Justified The Disqualification Of Counsel

In Castellano v. Winthrop (5D09-2978), the Fifth District denied a petition for certiorari seeking to reverse a trial court's order disqualifying the petitioner's counsel.  The court described the facts as follows:

The disqualification was based on the Firm's receipt, review, and use of respondent, Marc Winthrop's ("the Father") USB flash drive that contained electronic files including, inter alia, attorney/client communications, client litigation notes, and attorney work product.

***

In February 2009, the Mother came into possession of a USB drive that belonged to the Father. It is not necessary to detail the manner in which the Father's USB drive came into the Mother's possession. It is sufficient to state that after the Mother's version of the events was rejected by the court, the trial court could properly find that the USB drive was illegally obtained by the Mother without the knowledge or consent of the Father.

In addition to a number of other things, the trial court entered an order disqualifying the petitioner's trial counsel.

While recognizing that disqualification of a party's chosen counsel is an extraordinary remedy that should be resorted to sparingly, disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party's counsel....Given the nature of the information obtained by the Firm from the USB drive, it cannot be reasonably disputed that an informational and tactical advantage was obtained by the Mother.

Finally, the court gave some advice to attorneys who might face similar issues:

For the benefit of other attorneys facing a similar dilemma, we note that the Florida Bar Commission on Professional Ethics has opined that when an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue. If the client refuses to consent to disclosure, the attorney must withdraw from further representation.5 Fla. Bar Prof'l Ethics Comm., Formal Op. 07-1.

5- The attorney may also be required to advise his client to consult a criminal defense attorney.

Southern District of Florida Amends Local Rules - Effective 4/15/2010 - Administrative Order 2010-05

On January 26, 2010, Southern District of Florida Chief Judge Federico A. Moreno entered Administrative Order 2010-05.  The order amends the Local Rules of the Southern District of Florida, effective April 15, 2010. The order with the amended rules is below:

S.D. Fla. Admin Order 2010-05 -- Amendments to Local Rules

Florida Supreme Court's February 2010 Oral Argument Schedule

The Florida Supreme Court's February 2010 oral argument schedule can be viewed HERE.

Obama Critical Of Supreme Court Duing State Of The Union

There is a significant amount of attention being given to President Obama's criticism of the Supreme Court during last nights state of the union speech.  The President criticized the Court's recent decision in Citizens United which was discussed HERE.  As the President made the remarks, Justice Alito appeared to mouth "not true." As the New York Times discusses below, Alito may have been correct.  The text of this portion of the speech, from Yahoo News, is below:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

A couple of interesting points and stories:

*Supreme Court reporter Jess Bravin, who writes for the Wall Street Journal, noted that the President added the line "With all due deference to separation of powers" at the podium as the text was not in the released version of the speech [HERE];

*The New York Times notes that the President was not correct abou the impact on foreign corporations.  The Times stated "But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies."  [HERE];

*The Blog of Legal Times, giving credit to a University of California Santa Barbara database and editor David Brown, notes that the Supreme Court has been mentioned only nine times since President Wilson's state of the union in 1913 [HERE];

*Read the Volokh Conspiracy's discussion HERE;

*Politico's discussion can be viewed HERE;

*Linda Greenhouse's opinion piece in the New York Times can be viewed HERE;

*Above the Law's story can be viewed HERE;

*ABC News has an article HERE titled "Biden defends Obama's criticism of high court";

*The NPR Blog, HERE, has a post titled "If Alito Did Say 'Not True' About Obama's Claim, He May Have Had A Point."

Order Compelling Arbitration Over Mold Claim Against Builder Affirmed

In Rodriguez v. Builders Firstsource-Florida, LLC (4D09-1716), the Fourth District affirmed Palm Beach County Circuit Court Judge Edward A. Garrison's order compelling arbitration.  The court stated:

The appellants assert that their personal injury claims for mold exposure are based on duties of care imposed by common law—and not on the purchase agreement containing the arbitration clause—and therefore are not arbitrable.....The appellants allege that the damages were caused by the negligent design and construction of the home by GL Associates, GL Corp., and GL Florida, and the window contractor, Builders. In fourteen counts, the appellants claimed property damages as well as substantial adverse health consequences caused by th e mold infestation.

***

“Whether a particular issue is subject to arbitration is generally considered a matter of contract interpretation, and, therefore, the standard of review is de novo.” Hirshenson v. Spaccio, 800 So. 2d 670, 674 (Fla. 5th DCA 2001).

“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). Appellants dispute the second element. “[T]he determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.” Id. at 638.

***

Our decision in Engle Homes, Inc. v. Jones, 870 So. 2d 908, 909 (Fla. 4th DCA 2004) controls this issue. In Engle, the plaintiffs sued their builders for damages arising from mold infestation of their home due to alleged negligent design and construction of the home. Based on the purchase agreement, the builders moved to compel arbitration and stay litigation. An arbitration clause in the purchase agreement provided, in part, that “[a]ny and all unsettled claims or disputes regarding the construction of Residence arising after closing shall be settled by binding arbitration.” Id. at 909 (emphasis added in original).

***

The language of the Purchase Contract clearly and unambiguously requires submission to binding arbitration for the claims stated in the amended complaint. “A court is not empowered to rewrite a clear and unambiguous provision, nor should it attempt to make an otherwise valid contract more reasonable for one of the parties.” N. Am. Van Lines v. Collyer, 616 So. 2d 177, 179 (Fla. 5th DCA 1993); see also Barakat v. Broward County Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th DCA 2000) (“It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”). “The general rule is that competent parties shall have the utmost liberty of contracting and their agreements voluntarily and fairly made will be upheld and sustained by the courts. . . . The fact that one of the parties to a contract made a hard bargain will not alone avoid a contract.” Pierce v. Isaac, 184 So. 509, 513 (Fla. 1938).

Late Filing Of Claim, Failure to Comply With EUO & Policy Requirements, RCV Coverage And More

In the decision below, originally posted by Dennis Wall at the Insurance Claims Issues Blog, which can be viewed at THIS link, the post notes "a Federal Judge in Florida held that a "Late Notice" Defense presented questions of Fact to be resolved by a Jury"...the "alleged failure to comply with Policy Conditions respecting Examinations Under Oath ("EUOs") was likewise held to present a question of Fact"...."However, Aspen Specialty was granted Summary Judgment on its contention that the Policyholder in this case, a Homeowners Association, did not comply with "the clear language of the policy provisions" which would have entitled it to Replacement Cost Coverage ("RCV")."

Vision I v. Aspen

A second interesting decision from the same source is below and the Insurance Claims Issues Blog noted: "a Federal Judge held that the collateral source rule does not preclude evidence regarding an Other Insurance Policy, issued by one USPlate Glass Insurance."  The opinion also addresses other issues.

King Cole v. QBE

Supreme Court Declines To Review Eleventh Circuit's Decision On Manuel Noriega Extradition

The Supreme Court issued an order today denying the petition for certioari filed by General Manuel Noriega, the former head ofthe Panamanian Defense Forces.  Justice Thomas wrote a dissent and was joined by Justice Scalia.  The dissent can be found HERE and stated:

“[I]n our tripartite system of government,” it is the dutyof this Court to “say ‘what the law is.’ ” Boumediene v. Bush, 553 U. S. ___ (2008) (slip op., at 36) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This duty isparticularly compelling in cases that present an opportu-nity to decide the constitutionality or enforceability of federal statutes in a manner “insulated from the pressures of the moment,” and in time to guide courts and the political branches in resolving difficult questions concerning the proper “exercise of governmental power.” Hamdan v. Rumsfeld, 548 U. S. 557, 637 (2006) (KENNEDY, J., concurring in part); see generally Sanchez-Llamas v. Oregon, 548 U. S. 331, 353–354 (2006); Hamdan, supra, at 588 (quot-ing Ex parte Quirin, 317 U. S. 1, 19 (1942)). This is such a case.

The Eleventh Circuit's decision was previously discussed HERE.  Articles about the Supreme Court's decision can be found at the following links: BBC News,  MSNBC, and UPI.com.

Order Denying Attempt To Set Aside Settlement Agreement Affirmed

In Rachid v. Perez (3D08-1210), the Third District affirmed the trial court's "order denying her motion for rehearing and her motion to set aside the order granting the motion to enforce the mediated settlement agreement."  The court stated:

Rachid seeks rescission of the settlement agreement based upon unilateral mistake. Because her appeal is directed to the order denying her motion for rehearing and a denial of her motion to set aside the order granting the motion to enforce the mediated settlement, the standard of review is gross abuse of discretion.  LPP Mortgage Ltd. v. Bank of Am., N.A., 826 So. 2d 462, 463-64 (Fla. 3d DCA 2002) (holding that “whether relief should be granted . . . is a fact specific question and the trial court’s ruling should not be disturbed on appeal absent a gross abuse of discretion”). We additionally note that “[t]here is a more stringent standard of review, however, when the final judgment to be vacated follows a mediated settlement agreement.” Tilden Groves Holding Corp. v. Orlando/Orange County Expressway, 816 So. 2d 658, 660 (Fla. 5th DCA 2002).

With regard to the specific issue in the appeal:

Even if Rachid had preserved the issue of unilateral mistake, we would affirm. First, Rachid’s burden when seeking rescission of a settlement agreement on this legal theory is a particularly difficult one.....Second, Rachid’s argument is without merit as the record does not support the legal remedy of rescission on the basis that the settlement agreement was the product of a unilateral mistake. Under Florida law, the party seeking rescission based on unilateral mistake must establish that:

(1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust.

Here, Rachid does not claim that any party misled or induced her to enter into the settlement agreement. Rather, she contends that her attorney misled or induced her. Thus, her claim fails as a matter of law.

Certiorari Cannot Be Used To Circumvent The Deadlines In The Rules Of Appellate Procedure

In Parks v. Citizens Property Insurance Corporation (3D09-2590), the Third District dismissed a petition for certiorari seeking review of an "order in which the trial court denied Parks’ motion to set aside an order that granted the umpire’s Motion to Protect Special Master/Umpire’s Fee and Creation of Lien on October 6, 2008."  The court stated:

We note that certiorari review indeed lies to review final orders such as the order now before us, as provided for in rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure. Certiorari review, however, cannot be used to circumvent the Florida Rules of Appellate Procedure that mandate compliance with the time period limitations imposed for the filing of notices of appeal. See Fla. R. App. P. 9.110(b).