Michigan Supreme Court Issues Rebuke To Former Justice For Allegedly Recording Judicial Deliberations

The Michigan Supreme Court issued a public rebuke, via a letter, directed to a former justice.  The former justice allegedly secretly recorded the justices during the deliberation process and has selectively released transcripts of the conversations.  Thanks to How Appealing for the story.  Articles can be viewed at the following links:  

• Detroit News "Michigan Supreme Court criticizes ex-Justice Elizabeth Weaver"
• Detroit Free Press: "Former justice Elizabeth Weaver censured for airing deliberations"
• WJMN TV: "Mich. court criticizes ex-justice"
• Michigan Public Radio: "A "truly a sad day" - Michigan Supreme Court censures former justice" and HERE.

The letter was signed by five justices.  A sixth justice did not sign the letter because she felt it inappropriate to do so without a formal proceeding.  The letter is below:

Michigan Supreme Court Rebuke of Former Justice

Massachusetts High Court Quashes Warrantless Dorm Search

The Massachusetts Supreme Judicial Court issued an opinion in Commonwealth v. Carr, affirming the trial court's order suppressing evidence because the Boston College Police Department failed to get sufficient permission from the students prior to conducting the on-campus search.  The court stated that the prosecutors "failed to satisfy its burden to prove that consent was freely and voluntarily given."  Quoting the trial court's order, the court noted that even if consent had been given, there were also questions about whether the consent could have been voluntary given the "coercive aspects to the officers' exercise of authority."  The Boston Globe has two articles about the decision: "SJC ruling tosses out evidence in BC students’ drug case" and "Court: BC police didn't get OK for dorm search."  Inside Higher Ed has a story "Warrantless Dorm Search Rejected."  

Last year, the Supreme Judicial Court quashed a different search conducted by the Boston College Police Department which was discussed in a prior post "Massachusetts High Courts Quashes Unconstitutional Search Of Boston College Dorm Room."

Order Allowing Deposition After Withdrawn Affidavit Quashed

In Urbanek v. Urbanek (4D10-3478), the Fourth District granted a petition for certiorari and quashed the trial court's order allowing the deposition of a person after that persons affidavit had been withdrawn from the case.  The petitioner had asserted the "psychotherapist-patient  privilege  to  prevent respondent(s)  from  deposing  his  psychologist  who  had previously furnished  the  court with  an affidavit."  The court stated that:

Petitioner subsequently withdrew the affidavit.  Respondent’s position is that the any privilege was waived and the waiver cannot be revoked.

We grant the petition and quash  the order.  We hold  that any  initial waiver  of  the privilege was  revoked when petitioner withdrew the affidavit..... Petitioner submitted the affidavit in response to an affidavit submitted by Gerald Urbanek in connection with issues which were, and remain,  collateral to the underlying indemnification claim.  Also, respondent has not demonstrated that the substance of the affidavit is tied to petitioner’s answer, affirmative defenses or counterclaim.

Fourth District Denies Petition Seeking to Prevent Post-Judgment Discovery Sought From Counsel

In Neiman v. Naseer, et al (4D10-2091), the Fourth District denied a petition for certiorari seeking to quash the trial court's order that had refused to grant protection from a subpoena, served on the appellant's attorneys, that "sought  information  about settlement  funds  paid  to  one of  the  judgment  debtors  in  an  unrelated lawsuit."  Review was sought of the trial court's non-final order.  The Fourth District first noted that the order was not reviewable "as a non-final order under Florida Rule of Appellate Procedure 9.130(a)(4)."  The court concluded:

Treating  the appeal as a petition  for writ of certiorari, we agree with the  circuit  court  that  the  information  sought was not  protected  by  the  attorney-client privilege.  The information was known  to  the other party to the settlement agreement in the unrelated lawsuit.  We also agree that “[w]hile  confidentiality  agreements  are  necessary  in  some  instances,  to facilitate  settlement,  they  may  not  be  subsequently  employed  by a litigant to . . . thwart an opponent’s discovery.”  Smith v. TIB Bank of the Keys, 687 So. 2d 895, 896  (Fla. 3d DCA 1997).  We reject the  judgment debtors’ other arguments without further comment.

Discovery Of Insurers Claim File Not Proper When Coverage Issues Are Pending

In United Services Automobile Association v. Kind (5D10-1722),  the Fifth District granted a petition for certiorari and stated:

The petitioner, United Services Automobile Association, seeks certiorari relief to quash an order compelling discovery of its claim file.  We grant the petition and quash the order because discovery of an insurer’s claim file, while a coverage issue is pending, is improper.

Eleventh Circuit Grants En Banc Review In Three Cases

Since November 3, 2010, the Eleventh Circuit has granted en banc review in three cases.  The three cases are:

• Gilbert v. U.S. which vacates the panel opinion published at 609 F.3d 1159 (11th June 21, 2010).  The panel decision had vacated a district court order denying a motion to vacate sentence.;
• Warren Lee Hill, Jr. v. Schoefield which vacates the panel opinion published at 608 F.3d 1272 (11th Cir. June 18, 2010).  The panel had reversed the district court's denial of a habeas petition because "we  conclude that because Georgia’s requirement of proof beyond a reasonable doubt necessarily will result in the execution of the mentally retarded, the Georgia Supreme Court’s decision is contrary to the clearly established rule of Atkins; and
• Childers v. Floyd which vacates the panel opinion published at 608 F.3d 776 (11th Cir. June 8, 2010). The panel had reversed and ordered the district court to grant the habeas corpus petition.

UPDATE: For related articles see the following links:

• Miami Herald: "Ex-Fla. Senate Leader's appeal back in court"
• Pensacola News Journal: "W.D. Childer's case going to federal court"
• Atlanta Journal Constitution: "Appeals court vacates ruling on mental retardation"

Order Denying Motion To Dismiss For Alleged Fraud On Court Affirmed

In JVA Enterprises, I, LLC v. Prentice (4D08-4661, 4D08-5013, 4D09-1686), the Fourth District affirmed the trial court's order denying a motion to dismiss for alleged fraud on the court.  The court reversed the trial court's order excluding certain evidence and reversed the trial court's decision to award pre-judgment interest.


The facts, as described in the opinion, are that:

Prentice sued JVA and Enterprise for injuries allegedly suffered in December 2003 and March 2004. He asserted claims for unseaworthiness against Enterprise, maintenance and cure under admiralty law against both of the defendants, and negligence against JVA....

In answers to interrogatories, Prentice denied that he was seeking compensation for exacerbation of any pre-existing injury. He did, however, disclose that he had filed a workers’ compensation claim and a personal injury suit in California in the 1980s.

Prior to Prentice’s deposition, a paralegal at the law firm representing JVA and Enterprise discovered that Prentice’s name and social security number appeared three times in workers’ compensation files in California. At his deposition....Prentice admitted to one prior workers’ compensation claim, but did not remember the other two....

Approximately one month prior to trial, in May of 2008, JVA and Enterprise filed a motion for sanctions, including dismissal, against Prentice for concealing his 1991 injuries.....The trial court denied JVA and Enterprise’s motion for sanctions, finding the temporal distance of the 1991 injury to the 2008 trial to be compelling. In denying the motion, the trial court indicated this might be an appropriate area for cross-examination or impeachment.

The trial court also entered an order stating that the defendants "could not 'bring up this California injury in any way shape, or form during trial'.” 

The Fourth District affirmed the trial court's order denying the defendants motion for the sanction of dismissal for fraud on the court. 

In Arzuman v. Saud, 843 So. 2d 950, 952 (Fla. 4th DCA 2003), this court held the trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court. The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Id. (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)). “Because ‘dismissal sounds the death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.’”  Arzuman, 843 So. 2d at 952 (citations omitted). While a trial court has discretion to dismiss an action for fraud on the court, it should exercise this severe sanction “only in extreme circumstances.” Id.

When imposing this harshest of sanctions, trial courts should weigh the “policy favoring adjudication on the merits” with the need to “maintain the integrity of the judicial system.” Id.; Bass v. City of Pembroke Pines, 991 So. 2d 1008, 1011 (Fla. 4th DCA 2008).  While it appears Prentice may have a selective memory regarding his medical history, the issue is not whether any member of this panel would make the same decision as the trial judge given the facts of this case. Bass, 991 So. 2d at 1011. The ultimate question is “whether reasonable minds could differ as to the propriety of that decision.” Id. We find that reasonable minds could differ under the facts of this case....

As noted by the court in Bologna v. Schlanger, 995 So. 2d 526, 529 (Fla. 5th DCA 2008), rev. denied, 7 So. 3d 1098 (Fla. 2009), in reversing a dismissal for alleged fraud, the fact that the plaintiff’s answers to interrogatories were adequate for the defense to learn of her treatment for back pain prior to her deposition, was “relevant to whether there existed a scheme to defraud.”

The court reversed the trial court's order excluding the evidence of the prior injury from the trial.  The court stated "A plaintiff may properly be cross-examined as to his previous injuries, physical condition, claims or actions for injuries similar to those constituting the basis for the present action for the purpose of showing that his present physical condition is not the result of the injury presently sued for, but was caused wholly or partially by an earlier injury or pre-existing condition."  The court also noted that the defendant was clearly prejudiced by the exclusion because the plaintiff's attorney used the lack of evidence to his advantage.  The court stated that "Case law indicates it is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented."

Denial Of Motion To Set Aside Foreclosure Judgment Based Upon Knowledge Of Affiant Affirmed

In Freemon v. Deutsche Bank Trust Co. (4D09-4275), the Fourth District affirmed the trial court's denial of a motion to set aside a final judgment of foreclosure.  Deutsche Bank filed a foreclosure lawsuit against the appellant.  The appellant did not file any responsive pleadings and a default was entered.  Deutsche Bank filed a motion for summary judgment which was granted.  Prior to the sale date, the appellant appeared and filed a motion to set aside the judgment.  The trial court cancelled the sale and six months later, after the parties had not reached an agreement, the trial court rescheduled the foreclosure sale.  

On appeal, the appellant "claimed that the affidavit of indebtedness attesting to the amounts due on the mortgage and note was not made on the personal knowledge of the affiant."  After providing the standard of review, the court stated that in order to be entitled to an evidentiary hearing on a motion to set aside a judgment "[t]he matter alleged must affect the outcome of the case and not merely be 'de minimis... Thus, to obtain a hearing on a rule 1.540(b)(3) motion, the law requires a movant “to demonstrate a prima facie case of fraud, not just nibble at the edges of the concept.” Hembd v. Dauria, 859 So. 2d 1238, 1240 (Fla. 4th DCA 2003).  As to the merits, the court stated:

Freemon’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment. Freemon nowhere contends that she did not default on her mortgage, nor does she allege that the amounts due and owing, set forth in the affidavit and incorporated in the final judgment, are incorrect.  Indeed, Freemon has not specifically alleged any fraud in connection with Ms. Bailey’s statements in this affidavit regarding the amount due. Freemon merely alleges that Bailey claimed personal knowledge of the matters in the affidavit, even though Bailey admitted in her deposition in different case that she did not know who inputted information into the computer regarding the loan in question in that case.

Emphasis from opinion.  The court continued that:

We disagree with Freemon’s characterization of Bailey’s affidavit and of Bailey’s testimony. In her affidavit, she attested that she was familiar with the books, records, and accounts kept by Litton, and those books, records, and accounts are kept in the regular course of business of Litton. Those records “are made at or near the time by, and from information transmitted by, persons with personal knowledge of the facts, such as your Affiant.” She did not attest that she personally made all the entries for any particular mortgage. Specifically, she attested that she had personal knowledge of the amounts and charges due. In her deposition in another case, she testified that she was the records custodian for Litton Loan. In signing the affidavits of indebtedness, she acquires her knowledge of the amounts due by inputting the mortgagor’s name into the computer which contains all of the mortgage information. The computer then provides her with the amount of the outstanding mortgage, interest, and charges. Bailey’s affidavit in this case is not inconsistent with her testimony in the other case. Freemon has not shown any fraud, nor has she shown that the information about this loan, i.e., the amounts due and the default, are in any way incorrect.

Must Order Sanctioning Attorneys Find Bad Faith? Question Certified To Florida Supreme Court

In Rivero v. Meister (4D09-2555), the Fourth District reversed a trial court order finding that the attorneys acted negligently and requiring the attorneys to pay the appellee's attorneys fees.  Judge Gerber wrote the opinion for the Court and Judge Damoorgian wrote an opinion concurring specially with the majority. After counsel for the appellee failed to appear for trial, the trial court continued the trial and counsel for the appellee filed a motion for sanctions.  The motion stated:

The failure of an attorney to appear at a scheduled trial date amounts to disregard of a Court Order, jeopardizes the rights of his own client, damages the rights of his opponent and damages the efficient administration of justice. No claim is made by undersigned counsel that opposing counsel did this knowingly or with intent.

(emphasis in opinion).  The trial court held a hearing on the motion and stated that "The issue here this morning is not whether sanctions are going to be imposed, just the amount.”  The opinion states:

The court issued a written order granting the plaintiff’s motion. The court noted that under Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002), it had the “inherent authority to impose sanctions” for the defendants’ attorneys’ conduct. The court then stated:

This situation was caused by the negligence of [the defendants’ attorneys]. Therefore, the Court imposes sanctions against [the defendants’ attorneys] in the amount of $10,750.00. The Court further determines that this is not a “taxable cost” to be assessed at the end of this litigation but rather is due and payable immediately. 

The court noted:

The defendants’ attorneys acknowledge that their failure to appear was an embarrassing and regrettable event. However, they contend that the trial court abused its discretion when it imposed the monetary sanctions for their failure to appear at trial. They primarily argue that, under Moakley, a court must find an attorney’s conduct to have been in bad faith, and the record establishes that their conduct was not in bad faith. They rely on the plaintiff’s motion, which recognized that they did not fail to appear “knowingly or with intent.” They also rely on the court’s order, which found that the matter was caused by their “negligence.”

The Fourth District stated that because the trial court did not make an express finding that the attorneys had acted in bad faith, they are required to reverse the sanction order.  However, the court noted that the result is unfair (at least in certain cirumstances).  The court stated that:

Given the unfairness of this result, we believe that our supreme court may wish to re-examine Moakley’s requirement of bad faith. As Justice Wells pointed out in his concurring opinion in Moakley, “bad faith is not defined” in the majority opinion. 826 So. 2d at 228 (Wells, J., concurring). In our view, “bad faith” should be defined to include at least both intentional misconduct and reckless misconduct. “[T]o act ‘recklessly’ is to act ‘in disregard of a risk so obvious’ that the ‘actor must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” Dean Witter Reynolds, Inc. v. Hammock, 489 So. 2d 761, 766 (Fla. 1st DCA 1986) (quoting W. Prosser, Law of Torts 185 (4th ed. 1971) (internal citation omitted)).

Finally, the court certified a question of great public importance to the Florida Supreme Court.

If Moakley’s definition of “bad faith” included reckless misconduct, then the trial court would have been justified in granting the plaintiff’s motion for sanctions. Thus, we certify the following question of great public importance: 

DOES THE DEFINITION OF “BAD FAITH CONDUCT” IN MOAKLEY V. SMALLWOOD, 826 SO. 2D 221 (FLA. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCURRENCE OF ATTORNEYS’ FEES?