3d DCA Watch -- Rules Are Stubborn Things Edition.

Did you realize that standing up, raising your hands and exclaiming "IF YOU KNOW" in a loud, really obvious way after a question is posed to your client at a deposition could somehow be construed as coaching?

What, little 'ole me?  I was just clearing my throat.

But PA attorney Max Kennerly in a fine article here thinks obstructing the deposition any way you can in order to save your client from telling the truth may not be permissible after all:

Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” If an attorney has an objection to a question, then what they must do is also quite clear under Fed. R. Civ. P. 30(c)(2):

An objection at the time of the examination–whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition–must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

That is to say, the defending attorney is indeed a “potted plant” with only two exceptions: they can raise objections in a concise, nonargumentative and nonsuggestive manner, and they can instruct a deponent not to answer a question when necessary to preserve a privilege or enforce a court order.

Could you imagine how depositions in South Florida would proceed if everyone simply abided by these rules?

(Then again, what fun would that be?)

Speaking of rules, our bunker buddies remind us this week that -- yes, they exist; and yes, you should probably follow them:

Clarke v. Henderson:

For all you fine jurists taking notes at home, here is the correct legal standard for reviewing a motion for judgment on the pleadings:

It is well settled that a Rule 1.140(c) motion for a judgment on the pleadings must be decided wholly on the pleadings—which includes consideration of exhibits attached thereto—and may only be granted if the moving party is clearly entitled to a judgment as a matter of law....In making this determination, all material allegations of the opposing party’s pleadings must be taken as true, and all those of the movants, which have been denied, must be taken as false.

It's that second part you have to watch out for.

940 Lincoln Road v. Hernandez:

This is an unemployment appeals commission appeal in which the employee testified that she was sexually harassed and the employer did not participate:

Employer did not participate in the hearing; consequently, Claimant’s testimony was unrebutted. Nevertheless, the appeals referee concluded that Claimant was disqualified from receipt of benefits because she left voluntarily without good cause attributable to Employer. Apparently, the appeals referee rejected the claim because Claimant did not complain to the police or seek medical or psychological attention as a result of the harassment.

What's that rule on unrebutted testimony again?

Oh yeah:

Uncontroverted testimony which is not illegal, inherently improbable or unreasonable, opposed to common knowledge, or contradictory within itself, should not be disregarded by the trier of facts.

Duly noted!

3d DCA Watch -- May the Schwartz Be With You!

Oh happy day, the bunker denizens have a new occupant, which of course means it's time to polish the used equipment in the mechanical room/gym, retighten the bolts so the sinks are securely fastened to the walls, and wax down the concrete -- it's party time!

 Oops!  That's the Bilzen shot put lunch club, sorry.

Here's the right image:

What?

It's just some friendly locals enjoying a bonfire -- gotta love those old-fashioned values, I always say.

Ok, seriously now, here's the correct photograph of the bunker party planning committee:

You know what, I'm gonna quit while I'm ahead -- let's get right to the written utterances:

Robles-Martinez v. Diaz, Reus:

Ahh, what a heartwarming bedtime story:

Appellee law firm Diaz, Reus sued its client, Cesar Lindo Hoyos, for unpaid fees.

How could something like that go wrong?

Ramirez v. United Auto:

Dear United Auto, you are about to receive Maximum Schwartz:

The insurance company makes no defense, as it could not, of the merits of the order under review. Indeed, its lawyer has what some may call the candor∗ to agree that

[i]f [the insured’s attorney] had contacted undersigned prior to filing his petition in this Court, Respondent would likely have agreed to a motion for rehearing in the circuit court because the denial of his appellate attorney’s fees was legally erroneous.

Rather than confessing error, however, as this concession would seem to require, see Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571-73 (Fla. 2005), United has what some may call the courage* to contend that, having sought judicial, rather than telephonic relief, by filing this completely appropriate petition, the plaintiff is out of luck. This is because, it says, the case does not meet the requirements for second tier review most recently articulated by Custer Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010).

To put it mildly, we disagree.

Here is Judge Schwartz' starred footnote:

∗ The reader, if any, is invited to substitute her own preferred equivalent expression. See, e.g., Hayes v. Guardianship of Thompson, 952 So. 2d 498, 509 n.14 (Fla. 2006) (chutzpah); Zabrani v. Riveron, 495 So. 2d 1195, 1197 n.2 (Fla. 3d DCA 1986) (same); Price v. Gray's Guard Service, Inc., 298 So. 2d 461, 464 (Fla. 1st DCA 1974) (intestinal fortitude).

Oooh, oooh, can I play?

Cajones?  S#^t-for-brains?  Extraordinarily-poor-legal-judgment?

Come on kids, you can play too!

3d DCA Watch -- Please Block Bill For This.

Gather round, children, the janitorial staff must have put a little something extra in the lukewarm warmed over cold bitter bad free coffee because we have a fully bunkerized Meaty Beaty Big and Bouncy edition of 3d DCA Watch coming your way right now:

Alvarado v. Bayshore Grove:

It has long been my contention that the only appropriate usage of the word "pretermit" is while playing Scrabble.

In footnote three, Judge Schwartz proves me right!

Hotel 71 v. Tutt:

Raise your hands if you believe (a) a non-moving party can be granted summary judgment; and (b) a non-moving party can be granted summary judgment without any advance notice to the party against whom summary judgment is entered.

Judge Ramirez, tell us who's right:

On appeal, Hotel 71 contends that the trial court erred when it granted summary judgment in favor of Tutt because Tutt had not moved for summary judgment. We agree.

Florida Rule of Civil Procedure 1.510(c) provides that a summary judgment motion must “state with particularity the grounds upon which it is based” and must be served at least twenty days from the date on which the hearing is scheduled. The motion must also “specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence . . . on which the movant relies.”

Rule 1.510(c) prevents ambush by allowing the nonmoving party to be prepared for issues that will be argued at the summary judgment hearing. See Casa Inv. Co., v. Nestor, 8 So. 3d 1219 (Fla. 3d DCA 2009). Failure to comply with the rule deprives the opposing party “of the ability to both adequately respond and prepare for the summary judgment hearing.” Id. at 1221.

Ok Judge Schwartz, dissenting, you can put your hand down now.

Claridge H v. Claridge Hotel:

This is like studying for the Bar -- raise your hands if you think a court can grant directed verdict to the plaintiff at the close of her case, without any evidence introduced into the record by the defendant?

We find that the trial court’s determination of the disputed issues in plaintiff’s favor—without first giving the defendant any opportunity to present its case—was error. Numerous cases hold that a directed verdict cannot be entered until each party has an opportunity to present relevant evidence in its case in chief.

(Bigfirmers, I hope you guys are billing for this.)

BTW, it took me .9 hours to prepare today's 3d DCA Watch.

By the 24/7 jetset calculations utilized by "premium-rate lawyers who work at large high-powered law firms" that also employ Georgetown grads, that means you should bill at least 6.7 hrs to review, analyze, and research this crappy blog post.

Don't worry -- Coke's shareholders are dying to pay for this!

3d DCA Watch -- Literally, I've Got Nothing.

PER CURIAM.

Affirmed.  See cite from a few years ago that I won't provide any context about, won't care to explain its relevance (if any) to the legal dispute at hand, and won't even bother to do a parenthetical over because its meaning and plain applicability should be exceedingly obvious to any moron with a law degree.

Hey, the Robed Ones are artists too!

3d DCA Watch -- We Recede, We Recede.

Yes kids, it's that time of the week when the waters recede but the Resplendent Robes fly, when the coffee is swilled but the concrete abides, when the petitioners cry but the (old) thigh master lies, yes it's a good old-fashioned 3d DCA Watch:

State Farm v. Seville Place:

Rehearing en banc!

The Court recedes, in recession, then recedes some more:

To the extent that we previously have granted such a petition when irreparable harm seems possible rather than imminent, we recede from such decisions. . . .Similarly, we recede from the broad holding that “certiorari is available to challenge a premature bad faith claim or premature bad faith discovery.”

 The Court winds up "denying" the petition, rather than dismissing it, which of course brings us Judge Shepherd concurring at his wonky best:

I write to clarify my view that the more appropriate disposition of this case is a dismissal of the petition. The point is more than just academic.

Oh boy.

As previously discussed, that law in this State, as it relates to the petition before us, requires that we dismiss the petition.  The distinction made is not one without a difference.

Didn't he just say that?

Let's Hear It for Chief Judge Wells!

Oh boy were there good times in the bunker yesterday as Judge Linda Ann Wells became the first female Chief Judge of the 3d DCA.

Much like we'll be looking back at the gay marriage wars twenty years from now, the investiture included remembering a time when there were very few woman lawyers (it wasn't that long ago) and a partial reading from Bradwell v. Illinois, the lamentable 1873 Supreme Court decision upholding the right of Illinois to exclude women from the Bar because admitting them to practice would surely destroy their "femininity."

Doesn't it feel good to be on the right side of history?

Judge Emas also led a raucous "Happy Birthday, Mr. President" to Judge Schwartz, who officially turned 39 the other day.

Congrats all around!

Florida Supreme Court Reverses 3d DCA on Abestos Suit.

The 3d has had an unlucky string recently when it comes to certified conflicts with other districts, and today brings us yet another reversal in a situation where the 3d ruled in a manner eliminating the vested rights of victims exposed to asbestos.

Today the Florida Supreme Court sided with the 4th DCA in an action arising from the retroactive application of the Asbestos and Silica Compensation Fairness Act:

Based on the foregoing, we affirm the holding of the Fourth District in Williams v. American Optical Corp., 985 So. 2d 23 (Fla. 4th DCA 2008), that retroactive application of the Act to the Appellees, and other claimants who had accrued causes of action for asbestos-related disease pending on the effective date of the Act, is impermissible because it violates the due process clause of the Florida Constitution. We disapprove the decision of the Third District in DaimlerChrysler Corporation v. Hurst, 949 So. 2d 279 (Fla. 3d DCA 2007), to the extent it is inconsistent with this opinion.

Hey, if the Marlins can turn it around so can the bunker!

3d DCA Watch -- Your Summer PCAs Have Arrived!

Hey it's the summer and no one wants to work, especially the coffee-swillers, who per their summer ritual convert the central courtroom into an old movie palace where they play Where the Boys Are on endless loop until everyone accepts that George Hamilton should really be the bunker's next Chief Justice.

(We know who the hold out this year was, but we're not going to say!)

Oh yeah, after four or so apodictic days of continuous Connie Francis exposure, the bunker releases a few glorified PCAs and then they are on to their next summer flick, the delightful yet underappreciated Love at First Bite.

(Not often considered a summer movie, but you have to give the bunker a little leeway, it is the summer after all.....)

Speaking of the 3d DCA and Class Actions.....

It's almost as if the Florida Supreme Court read today's 3d DCA Watch and decided to weigh in with a definitive beat down.

It's true the beat down deals with an earlier, equally tragic 3d DCA opinion (which led to a brawl between Judges Shepherd and Gersten that I wrote about here) but the unusually pointed language directed to the bunker dwellers should certainly give them pause before they dink another consumer class.

A few observations:

The FSC's discussion of how the 3d went off and did their own fact-finding, totally ignoring the trial court's actual findings of fact and giving them no deference at all, is especially ironic given that certain judges purport to really hold the proper standard of review and limited role of the appellate court to be sacrosanct:

In this matter, the Third District erred by not applying the abuse of discretion standard of review to the trial court‟s grant of class certification. See Sosa, 15 So. 3d at 9-11. Rather, the Third District conducted a de novo review, as it gave no deference to the trial court‟s factual findings and made its own independent determination as to whether Sosa satisfied the requirements of rule 1.220. See id. More specifically, in lieu of pointing to the lack of competent, substantial evidence supporting the trial court‟s order, or stating why the trial court‟s conclusions of law were erroneous, the Third District made its own findings that Sosa and the putative class members did not satisfy the commonality and predominance elements of rule 1.220, and that Sosa failed to meet section 627.835‟s “knowingly” requirement. Then, the Third District held that the trial court erred because it did not find the same. This constituted a de novo review and error.

On top of that, the FSC gives a basic jurisprudence lesson to the 3d in how to handle the easily-met "commonality" element in the class action analysis, which the 3d hung its hat on in reversing the Tire Kingdom class yesterday:

 The approach of the Third District was erroneous and conflicted with the proper application of the commonality requirement articulated in Glen Cove and Olen Properties, because it diverted the proper focus from the common and routine course of conduct and billing practice of Safeway overcharging its customers to the mere factual differences surrounding each putative class member‟s claim. The Third District did not even consider that Safeway‟s common course of conduct and routine billing practice served as the basis for Sosa‟s and the putative class members‟ claims. Rather, to negate commonality, the Third District focused only on the possibility of mere factual differences in the individual circumstances surrounding each of the putative class members‟ claims and the variances in defenses to them. This was error, as the focus of a court in reviewing a finding of the commonality requirement is on whether the class members predicated their claims on the same common course of conduct by the defendant and the same legal theory.

Finally, in another irony given yesterday's Tire Kingdom opinion, the FSC held that the 3d got totally wrong whether or not you should examine the merits at the class certification stage:

The Third District in Sosa erred when it held that the trial court improperly granted Sosa‟s motion for class certification on the basis that Sosa failed to demonstrate that Safeway knowingly overcharged him in contravention of sections 627.840 and 627.835. See Sosa, 15 So. 3d at 11. The Third District erred because whether Safeway “knowingly” overcharged Sosa is a question of fact for a jury, and, therefore, Sosa was not required to prove that element in his pretrial motion for class certification. See Lynch v. Brown, 489 So. 2d 65, 66-67 (Fla. 1st DCA 1986). When it determined that Sosa could not serve as class representative because he failed to demonstrate that Safeway “knowingly” overcharged him, the Third District improperly conflated rule 1.220‟s class certification requirements with a question for the trier of fact. Rather, at issue during Sosa‟s motion for class certification was whether Sosa and the putative class members, based on the parties‟ arguments, pleadings, and discovery, met the requirements for class certification—an inquiry that restricted the trial court‟s examination to the substance of the motion and not the merits of the cause of action or questions of fact for a jury.

This was precisely what Judge Shepherd complained that the trial court got horribly wrong in Tire Kingdom:

First, not only are the trial court’s impressions not supported by the record, but also they constitute improper incursion by the trial court into the merits of the case. Controlling precedent makes clear that a trial court considering whether an action may be maintained is not to focus on the merits of the case, but only on the requirements of the rule....

Pot, meet my friend Kettle!

3d DCA Watch -- Order Has Been Restored Edition.

 It's that time of the week folks, so let's see what's a happenin, hotstuff, in the bunker of resplendently robed love:

Tire Kingdom v. Dishkin:

Judge Shepherd on class actions.

How do you think he ruled?

In other news, it was only a matter of time before the inevitable happened -- Kendall Coffey has an opinion on Casey Anthony.

See, everything is back to normal again.

Phil Parrish Strikes Back!

 Appellee's Motion for Rehearing en Banc


The Brickell Honda motion for rehearing en banc has arrived!

The Brickell Honda motion for rehearing en banc has arrived!

The Brickell Honda motion for rehearing en banc has arrived!

(I get excited by things like this.)

Notably, if Phil's brief is to be believed, the bizarre issue of class counsel's inability to fund the litigation was raised sua sponte by the Court, and was not identified as error by the Appellant or even mentioned in the briefs.

Isn't there some sort of appellate rule about that kind of thing?

Special Judge Gersten Holiday Edition of 3d DCA Watch!

In honor of Judge Gersten's retirement, we bring you a special Fourth of July holiday edition of 3d DCA watch:

Whipple v. D&D Tree Farms:

I'm sure it's entirely coincidental that on Judge Gersten's retirement the Court has elected to issue an opinion on the "undertaker's doctrine."

Oh well, let's read on:

Whipple admits that the defendants did not have a duty to erect a fence, but he argues that according to the undertaker’s doctrine, once the fence was built, the defendants had a duty to use reasonable care to maintain that fence. We agree.

Shh, don't tell Glenn Garvin but this is called a "tort" which is an ancient concept rooted in the fundamental duty of care that one person owes to somebody else.

It's part of the glue that binds us together as a civilized society, and Glenn doesn't even have to understand or agree with the system of interlocking obligations we owe to each other to be a beneficiary.

BTW, good luck with the Mexican fireworks!

3d DCA Watch -- Opinions Spring From Brows Edition!

 The 3d will have one less bunker inhabitant as Judge Gersten enters the world of non-recycled gym equipment and finds that not every bathroom sink in every major commercial law firm is bolted to the wall.

(On the other hand, he's going to Bilzin so you just never know.)

In any event, say farewell and best wishes to the good Judge tomorrow -- event details here.

In other news, Judge Shepherd gets pretty pointed in a dissent from a withdrawn motion for rehearing en banc and tosses around big words and important concepts like stare decisis and brows out of which legal opinions spring fully formed.

Opinions from brows, a perfect image for a comic book -- isn't it about time the 3d starts issuing illustrated orders?

Read all about it here.

LoCascio v. LoCascio:

Judge Schwartz thinks the proceedings below have been "over-protracted."

For those keeping score, that is one grade worse than just plain "protracted."

Your Monday Morning Glenn Garvin Sift.

Hi folks, do you know which summer camp to take your kids to this morning?

I don't know about you, but I can feel the summer exodus beginning, as the work load slows down, lawyers arrive later at work, judges cancel their hearings, and Joe Zumpano reflects on the value of humility.

Ahh, the rhythm of the seasons.

Comparing Glenn Garvin's review of Hot Coffee with the NYT's review is like, well, comparing the Miami Herald to the New York Times.

Hey, look at how nice the Washington Times is to Miami labor lawyer Patricia Ireland, who "infested" DC with NOW and their feminist claptrap (I'm paraphrasing):

Analysis: She gets paid to call Governor Rick Scott the devil while exploiting the proletariat. How liberal.

Wait a second -- I thought that's what I did.

Finally, congratulations to Justin Sayfie, now try to reign in the bald one please.

See?

3d DCA Watch -- A Bright Shining Lie?

As we get ready for the President's Afghanistan speech tonight, let's remember history instructs us that all governments -- including the United States -- routinely distort and in fact sometimes lie for political expediency when it comes to war and peace.

In that we are most decidedly not exceptional.

Speaking of lies, get a load of this blistering Judge Rothenberg dissent in a sexual assault case that occurred in Mexico but involved Florida defendants and which was dismissed on Kinney grounds and affirmed by the majority.

In addressing the jurisdictional affidavit of the defendants which was accepted by the trial court Judge Rothenberg notes a slight problem with credibility:

The Florida Defendants and Ms. Rodriguez now admit that each and every one of these statements was false.

The record in this case reflects that the Florida Defendants and Ms. Rodriguez have a long history of deceiving or attempting to deceive the courts of this State by submitting affidavits with similar false statements, but which they now admit were false. See Weiss v. Palace Resorts, Inc., No. 07-03385 CA 11; Discipio v. Operadora Palace Resorts, S. de R.L. de C.V., No. 06-26242 CA 10; Shapiro v. Palace Resorts, Inc., No. 06-23603 CA 8; Kobryn v. Palace Resorts, Inc., No. 06-06555.

Hmm, this could be a problem.

She concludes:

The trial court erred, and its order granting the Florida Defendants’ motion to dismiss the lawsuit and send Cortez to Mexico to litigate her claims against the Florida Defendants, must be reversed because it is based on conclusions, not evidence, and the evidence does not support the conclusions made by the trial court. The trial court’s adequacy determination cannot be upheld where the trial court relied on an affidavit submitted by one defense witness who admitted that material representations in the affidavit were false, and another defense witness who subsequently modified the statements in his affidavit when he was deposed, and where material adequacy factors mitigating against Quintana Roo as an adequate forum were admittedly not considered by the trial court when making its determination.

Oh well, crap happens!

JP Morgan Chase v. Hernandez:

Judge Adrien gets one badly wrong --

Finding no basis whatsoever for the entry of the April 2010 Order, we reverse. We further grant Washington Mutual’s motion for appellate attorneys’ fees and sanctions against the Debtors and their counsel for abusing the legal process, resulting in a drain of judicial resources and unnecessary litigation expenses.

The Court's history of the proceedings in this case is a must-read, describing certain events as "mind-boggling" and actions taken as "nonsensical" and "essentially fraudulent."

For good measure they refer the debtor's attorney to the Florida Bar due to "potentially unethical conduct."

Diaz Reus v. Wingate:

How's this for absurd procedural gamesmanship:

Wingate filed a complaint against Redfield in the circuit court in and for Miami Dade County for breach of contract, specific performance and tortious interference with a contract entered into between the parties for the purchase and sale of real property in Pinecrest, Florida. The day after filing the complaint, Wingate filed an identical complaint in the same circuit receiving a new case number and a new judge. At the same time, Wingate filed a voluntary dismissal with prejudice of the first filed complaint. Redfield was served with the second filed complaint. Redfield removed the case to federal court. Once in federal court, Redfield moved for summary judgment on the ground that the voluntary dismissal with prejudice taken in state court was an adjudication on the merits and, therefore, the complaint was barred by the doctrine of res judicata. Realizing the problem, Wingate filed a motion in state court to vacate the voluntary dismissal with prejudice and to convert it to a dismissal without prejudice. This motion to vacate was filed ex-parte under Wingate’s questionable theory that, as Redfield had not been served with the first filed complaint, Redfield was not required to have notice of this hearing, even though it was a party to the second filed identical complaint.

Come on!

What ever happened to just adjudicating a complaint on the merits?

Judge Shepherd in a special concurrence both uses the word "legerdemain" and also makes a horsey reference involving somebody mounting a wild steed, or something:

The dissent’s emphasis on the plaintiff’s motive for seeking to expunge the language “with prejudice” from its dismissal filing in this case is misplaced, as even it concedes the right of a litigant to “switch horses” to obtain a different “mount” midstream “is a strategy [] not prohibited by the rules or the case law.”

Personally, I always like a different "mount" midstream.

Judge Ramirez' dissent, however, basically just calls bullcrap on the whole enterprise, midstream horse mounting or not:

Our decision then hinges on whether what happened here was a tactical mistake or a secretarial error. I believe it was a tactical mistake. The whole scheme of filing two suits and dismissing the one falling before the less desirable judge was a quintessential tactical scheme. Admittedly, the scheme was botched, as the trial court found, through excusable neglect. But it was the direct result of the attorney’s stratagem of filing two suits to engage in what was nothing other than judge-shopping.

Judge Ramirez concludes:

I would reverse the trial court because I believe the dismissal with prejudice was nothing more than a botched tactical ploy.

So it appears what we have here is a "botched tactical ploy" that occurred while attempting "a different 'mount' midstream."

To which I can only say -- been there, done that.

3d DCA Watch -- New Trial Granted! (Hmm, Did I Forget Something?)

 Well la dee dah!

I guess you Fancy Pants appellate judges can issue content-free PCAs all day and night, but God forbid my new trial order lacks the specificity Your Highness demands:

Elena Casines appeals from the trial court’s May 12, 2010, “Order Granting Defendant’s Motion for New Trial.” Because the order does not contain specific grounds, we relinquish jurisdiction to the trial court for sixty days for entry of an order specifying the grounds upon which the trial court relied to grant a new trial.

Question -- could you be more specific?

Seriously, what specificity is the Court looking for, and can some guidance be provided for future cases in which this situation may arise?

You know, precedent and all that.

Miami Automotive Retail v. Baldwin:

Specific oral misrepresentations usually make tough class certification cases.

Ok, and I agree.

But Phil Parrish needs to establish a record that he can fund the litigation?

Now that's just plain odd.

3d DCA Watch -- No More Filings For You!

Hi kids, the bunker is entering summer hibernation mode just like the rest of us but before it does let's take a peek at what the swillers have been swilling this week:

Jenkins v. Motorola:

Poor pro se litigant Oza B. Jenkins.

All she wants to do is file lots and lots of paper against Motorola in court.

I'm sure it's good paper, quality paper, perhaps even "white-bond" paper (youngsters, ask your senior partners -- when they show up -- about this).

But NOOOOOO, says Judge Shepherd:

In Jenkins v. Motorola, Inc., 36 Fla. L. Weekly D832 (Fla. 3d DCA Apr. 20, 2011), this court ordered Oza B. Jenkins to show cause why she should not be precluded from filing further pro se appeals in this court, arising out of lower tribunal number 04-1420. Ms. Jenkins timely filed her response, and Motorola, Inc. its reply.

Upon consideration of Ms. Jenkins’ response, the reply of Motorola, Inc., and this court’s independent review of the many filings made by Ms. Jenkins in this court, Ms. Jenkins hereby is barred from filing further pro se proceedings in this court arising out of lower tribunal number 04-1420. See Sibley v. Sibley, 885 So. 2d 980, 985 (Fla. 3d DCA 2004). We direct the clerk of this court to reject any further filings on Ms. Jenkins’ behalf, arising out of lower tribunal number 04-1420, unless signed by a member of the Florida Bar.

Well that should solve everything, don't you agree?

3d DCA Watch -- 57.105 Day!

I'm pretty sure every lawyer loves to threaten another lawyer with section 57.105 sanctions, especially by email or letter.

Nothing is more momentarily satisfying yet ultimately devoid of any real significance whatsoever.

But when you go ahead and serve the motion, then your lasting feelings of superiority and Domineering Overlord Type-A Top Dogness kick in, at least for a day or two until you get a nasty response and a countermotion for fees and sanctions.

Which brings us to today's 3d DCA Watch and a fundamental rule of 57.105, the 21 day safe harbor period.

Who could possibly be unaware of this rule?

On appeal, the City argues that the trial court erred in granting the motion for attorney’s fees and costs because the claimant failed to follow the twenty-one day “safe harbor” provision of subsection 57.105(4). See generally Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008); Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007); O’Daniel v. Bd. of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2005). The City points to the undisputed fact that the claimant failed to serve his motion for fees on the City twenty-one days prior to filing the motion with the clerk and presenting it to the trial court. The City also argues that the claimant failed to adhere to the requirements of subsection 57.105(4) by filing its motion on September 11, 2009, one month after the trial court entered the order granting the claimant’s motion for summary judgment. See O’Daniel, 916 So. 2d at 41 (holding that motion for attorney’s fees was untimely under subsection 57.105(4) where motion was served and filed following the conclusion of the trial).

Based on the authority of Davidson v. Ramirez, 970 So. 2d 855 (Fla. 3d DCA 2007), we agree with the City that the trial court erred in granting the claimant’s motion for attorney’s fees and costs.

Come on, the 21 day period wasn't observed, seriously?

Yes, Virginia, this is why we have appellate courts.

Wonder Who Wrote This Order?

Here's how oral argument went in front of the 3d on that Carona/Suarez thing:

At Thursday’s hearing, the three appeals judges grilled Corona’s lawyer, William Petros, who could not get a word in edgewise before the sharp questions began.

“Is there any basis whatsoever” for withholding the results? Judge Alan Schwartz asked.

“How is [Corona] possibly harmed if the votes are released?” added Judge Frank Shepherd.

“The public would have knowledge that could later be disavowed,” Petros responded.

“So what?” Shepherd replied. Later, he added: “Does your client not have confidence in the electorate of this county?”

“Yes,” Petros answered.

Ouch.

 

And poor Judge Thomas, I don't think the 3d liked his injunction very much:

The injunctive order under review is totally deficient in form....and entirely unsupported by substantive law.

Hmm, so the order is not just deficient, it's "totally deficient."

 

And it's not just unsupported, it's "entirely unsupported."

Wonder which judge on the panel writes like that?

3d DCA Watch -- Yawn.

I'm starting to get bored by the lack of hot civil legal matters to talk about recently.

It's true there's a certain toe-tapping trial ongoing in the SD FL, but nearly every darned thing is being filed under seal.

Wonder why that is?

So onward to the bunker.....

Affirmed.  See random case cited for no apparent reason.

That's pretty much what you're looking at this week.

Oh yeah, there's your typical case where the insurer is trying to take advantage of a poorly-drafted statute to screw an insured, but that's a dog-bites-man story.

Surely someone, somewhere, can help out with something interesting going on in this town?