InsideCounsel published an article I wrote. I am attaching the link. Let me know what you think.
http://www.insidecounsel.com/2012/09/07/technology-using-modern-methods-to-streamline-alte
Sunday, September 9, 2012
InsideCounsel Article
InsideCounsel published an article I wrote. I am attaching the link. Let me know what you think.
http://www.insidecounsel.com/2012/09/07/technology-using-modern-methods-to-streamline-alte
Wednesday, September 5, 2012
Decisions of interest from this week
JUROR INTERVIEWS
Borroto v.
Garcia, --- So. 3d --- (Fla. 3d DCA September 5, 2012) reversed the
denial of a motion to conduct juror interviews where the defendant showed that
certain jurors prior injuries and litigation history. In a concurring opinion, Judge Emas wrote on the
third prong of De La Rosa v.
Zequeira, 659 So. 2d 239 (Fla.
1995), which states that “[t]he failure to disclose the information was not
attributable to the complaining party’s lack of diligence.”
According to Judge Emas, De La Rosa rejected the
broad proposition that any motion for new trial based upon a juror’s concealment
of litigation history required (in order to satisfy the diligence prong) that
the search be conducted at the conclusion of jury selection rather than at the conclusion
of the trial.
“However, the supreme court did not prohibit a trial
court, in an individual case and in the proper exercise of its discretion, from
imposing a reasonable requirement of conducting a records check at the
conclusion of jury selection.”
Judge Emas suggests that the trial judge may issue a
specific pretrial order in an individual case directing the parties to conduct
such a search. “In light of the extraordinary amount of time, energy and expense that
is often required for the modern civil trial, giving trial judges the discretion
to impose these common-sense procedures, in the appropriate exercise of their
discretion, is not simply reasonable, but laudable.
PROHIBITION /
DISQUALIFICATION OF JUDGE
Phillip Morris v.
Brown, --- So. 3d --- (Fla. 1st DCA September 5, 2012) tells us that it
is not a good idea to compare a witness to
Dr. Josef Mengele, the infamous Nazi war criminal known as the “Angel of
Death.” That is what the trial judge
stated in ruling on the admissibility into evidence of a 1971 videotape of
Philip Morris’ former CEO, Joseph Cullman, in which Cullman suggests that lower
birth weights caused by smoking may actually be desirable to some women who
“might prefer having smaller babies.” The defendant immediately moved to disqualify
the judge. In granting the writ of
prohibition, the appellate court stated that the judge’s statements were so
inflammatory that a party would be placed in reasonable fear of judicial bias.
IMPROPER CLOSING ARGUMENT
Reffaie v.
Wal-Mart Stores, Inc., --- So. 3d --- (Fla. 4th DCA September 5, 2012)
reversed for a new trial on damages, stating:
- Here, appellant correctly argues that there was no evidence to support defense counsel’s argument in closing that law firms transported their clients to Dr. Gomez en mass, or that Dr. Gomez had any “business relationships” with personal injury law firms. At one point, defense counsel even suggested that it was Dr. Gomez who bused the clients “right back up for the purposes of litigation.” We agree that the improper comments at issue were intended to, and did, impugn the doctor’s credibility and objectivity in the eyes of the jurors. While we have little issue with the line of questioning, the problem here is that defense counsel did not obtain the desired answers but continued in closing argument as though he had.
Santiago v. Abramovitz, --- So. 3d --- (Fla. 4th DCA September
5, 2012) reversed the denial of plaintiff’s motion for a new trial on damages
due to the jury’s zero verdict. Here, the defendant stipulated before trial
that his negligence caused the accident and that the plaintiff sustained a permanent
injury because of the accident.
Finnegan v. Deutsche Bank Nat’l Trust Co., --- So. 3d --- (Fla.
4th DCA September 5, 2012) found that there was a genuine issue of material
fact where the defendant’s answer specifically denied that she had received
notice of the default in accordance with the terms of the mortgage. Deutsche
Bank then filed a motion for summary judgment. Its affidavit in support did not
mention the conditions precedent. Defendant filed an affidavit in opposition
again swearing that she had received no notice of default in accordance with the
mortgage provisions. The bank also filed copies of letters allegedly sent to defendant
but these were not sworn and could not be considered on a motion for summary
judgment.
BAD FAITH FAILURE TO SETTLE
Trafalgar at Greenacres, Ltd. v. Zurich Am. Ins. Co., --- So.
3d --- (Fla. 4th DCA September 5, 2012) held that obtaining an appraisal award
against the insurer satisfied the insured’s obligation to have the underlying
claim “resolved favorably” under Blanchard
v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291
(Fla. 1991)).
Tuesday, September 4, 2012
Opinions from the Eleventh Circuit
CLASS ACTIONS / TYPICALITY / SETTLEMENT OBJECTORS
Ault
v. Walt Disney World Co., 2012 U.S. App. LEXIS 18465 (11th Cir. Aug. 30, 2012)
rejected the class action objectors’ arguments that the class did not satisfy the
prerequisites to class certification set forth in Rule 23(a), because the class
representatives’ claims lacked the required typicality. While each class member may have a stronger
or weaker claim, the court concluded that this alone did not make class
representatives’ claims atypical of the class as a whole. Class members' claims
need not be identical to satisfy the typicality requirement; rather, there need
only exist “a sufficient nexus . . . between the legal claims of the named
class representatives and those of individual class members to warrant class
certification.” Prado-Steiman v. Bush, 221 F.3d
1266, 1278-79 (11th Cir. 2000). This nexus exists “if the claims or defenses of the class and the class representative
arise from the same event or pattern or practice and are based on the same
legal theory.” Kornberg v. Carnival Cruise Lines, Inc.,
741 F.2d 1332, 1337 (11th Cir. 1984). The district court did not abuse its
discretion by finding that the claims of the class representatives and class
members are typical and warrant class certification.
TRIBAL SOVEREIGN IMMUNITY
ROOKER-FELDMAN / RES JUDICATA / COLLATERAL ESTOPPEL
Vasquez v. YII
Shipping Company, Ltd., ---
F.3d --- (11th Cir. August 30, 2012) vacated an order dismissing a seaman’s complaint
alleging violations of the Jones Act, and federal maritime law of
unseaworthiness. Vasquez originally
filed his suit in Florida court, which dismissed his claims based on Florida’s
doctrine of forum non conveniens, and the dismissal was affirmed on appeal.
Vasquez then brought the same claims in federal district court, arguing that
federal maritime law applied to his case and that venue was not improper under
federal forum non conveniens principles. Although the Florida court never
decided whether federal maritime law was applicable to Vasquez’s case, the
district court ruled that under principles of res judicata and collateral
estoppel, Vasquez was precluded from litigating facts relevant to his federal
maritime claims. The district court then dismissed Vasquez’s complaint on the
grounds of federal forum non conveniens and the Rooker-Feldman doctrine based
on its application of collateral estoppel and res judicata. The appellate court
found that collateral estoppel applies only when identical issues are involved
and that was not the case here. Likewise, res judicata applies only to a final
judgment on the merits and, therefore, was not applicable here where there has
been no merits determination. Finally, the
Rooker-Feldman doctrine was a narrow doctrine that only applies to an attempt
to appeal a state court judgment. The doctrine holds that federal courts below
the Supreme Court must not become a court of appeals for state court decisions.
The state court appellant has to find a state court remedy, or obtain relief
from the U.S. Supreme Court. The Rooker-Feldman doctrine is “confined to cases”
that were “brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Exxon
Mobile Corp. v Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). In this case, Vasquez’s lawsuit does not seek
appellate review of the state court’s decision applying Florida’s forum non
conveniens rules to his claims. Instead, Vasquez seeks review of the district
court’s order that federal maritime law does not apply to his case, an issue not
resolved by the state court.
http://www.ca11.uscourts.gov/opinions/ops/201115141.pdf
TRIBAL SOVEREIGN IMMUNITY
Contour
Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 2012 U.S. App. LEXIS
18464 (11th Cir. Aug. 30, 2012) affirmed the dismissal of a breach of lease
agreement suit based on lack of subject matter jurisdiction based on the Tribe’s
sovereign immunity. In the lease the
Tribe expressly waived its sovereign immunity concerning any lawsuits Contour
might bring based on the Tribe's default or breach of the lease agreement, but
the entire lease’s validity was explicitly conditioned upon approval by the
Secretary of the Interior, and such approval was never obtained.
http://www.ca11.uscourts.gov/opinions/ops/201111997.pdfROOKER-FELDMAN / RES JUDICATA / COLLATERAL ESTOPPEL
http://www.ca11.uscourts.gov/opinions/ops/201115141.pdf
Monday, September 3, 2012
New DCA Opinions
PROPOSALS FOR
SETTLEMENT
Lyons
v. Chamoun, 2012 Fla. App. LEXIS 14493 (Fla. 4th DCA Aug. 29, 2012) held
that where the Proposal for Settlement was directed to the defendant owner and
offered to release the defendant, the proposal was ambiguous because the
plaintiff had sued both the owner and driver of the vehicle. The better practice is to attach the proposed
settlement rather than attempt to describe it.
See Juan Ramirez, Jr., Florida Civil Procedure, § 21-5, at n.415.2
(2d. ed.).
FORECLOSURE / MOTION
TO VACATE
Gascue
v. HSBC Bank, 2012 Fla. App. LEXIS 14491 (Fla. 4th DCA August 29, 2012)
reversed the denial of a motion to vacate summary judgment at a non-evidentiary
hearing. The motion alleged that the
defendant had retained counsel who did not appear at the hearing on the motion
for summary judgment. In addition,
defendant asserted a meritorious defense that the bank had no standing as it
was not the holder of the note and mortgage at the time suit was filed.
CERTIORARI / MOTION
FOR REDUCTION OF TRANSFER BOND / AFFIDAVITS
Bayview
Constr. Corp. v. Jomar Props., LLC, 2012 Fla. App. LEXIS 14505 (Fla. 4th DCA
Aug. 29, 2012) denied certiorari relief even though the trial court
may have erred in reducing the bond because petitioner had received notice of
the evidence that respondents would be presenting at the hearing, but petitioner
did not present any affidavits until the day of the hearing. Affidavits must be served a reasonable time
before the hearing. See Juan Ramirez,
Jr., Florida Civil Procedure, § 7-3(f), at n.161 (2d. ed.).
TORTIOUS INTERFERENCE
WITH A DEAD BODY / RECKLESS INFLICTION OF EMOTIONAL DISTRESS
Mellette
v. Trinity Mem. Cemetery, Inc., 2012 Fla. App. LEXIS 14477 (Fla. 2d DCA Aug.
29, 2012) reversed a summary judgment in favor of a cemetery that
disinterred a body at the request of the mother and sent it for reburial in
Texas against the widow’s express wishes.
“Certainly, a surviving spouse’s right to direct the disposition of her
deceased’s body is no less invaded when the party to whom she has entrusted the
body disinters it and ships it out of state without her knowledge and against
her expressed wishes.” The court also
reversed the summary judgment on the count for reckless infliction of emotional
distress, saying that “…we cannot say that as a matter of law Trinity’s conduct
did not reach the level of outrageousness required to support this tort.”
ATTORNEY'S FEES
Hall
v. White, 2012 Fla. App. LEXIS 14328 (Fla. 1st DCA August 29, 2012)
concluded that the trial court erroneously taxed $84,898.25 in attorney’s fees
against the defendant on the plaintiffs’ unpaid wage claim under Chapter 448, F.S.,
because the plaintiffs failed to meet their burden of proof and because the
trial court erred in concluding that the issues and claims in the case were
inextricably intertwined. Under F.S. § 448.08, attorney's fees and costs may be
awarded to the prevailing party in an action for unpaid wages, but F.S. § 448.08
does not apply to independent contractors. Here, the plaintiffs brought a claim
for unpaid wages, but also brought a claim concerning Dr. White’s service as an
independent contractor. The jury awarded plaintiffs $916.14 on their unpaid
wage claim and $23,707.94 in damages on the remaining claim. The issues in
the case were not inextricably intertwined because the claims could support
independent actions and were not simply alternative theories of liability for the
same wrong. As to the fees awarded under
F.S. § 57.105, the trial court erred in not splitting the fees between the defendant
and her attorney.
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