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.

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 -- Judge Shepherd Is Happy To Not Question Judge Learned Hand.

I pretty much think any judge named "Learned Hand" should get a wide berth and be entitled to do whatever the hail he wants.

I mean, the judge is literally named "Learned Hand."

Well, in today's bunker watch, we peer at the delicate dance between our very apodicticly-minded Judge Shepherd and the Hand of Learning:

In fairness to the parties, I note that the doctrine, first articulated by Judge Learned Hand in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772, 773 (2d Cir. 1952), appears to have fragmented into several divergent versions. See Shaul Serban, Evolution of a Defense in Maritime Law: A Survey of the Primary Duty Rule, 18 U.S.F. Mar. L.J. 253, 282-283 (2006). Some courts in the Second Circuit—where Judge Hand sat for more than ten years—have questioned its continuing viability. See, e.g., Borges v. Seabulk Int’l, Inc., 456 F. Supp. 2d 387, 393 (D. Conn. 2006); Lombas v. Moran Towing & Transp. Co., 899 F. Supp. 1089, 1096 (S.D.N.Y. 1995); see also Dunbar v. DuBois’ Sons Co., 275 F.2d 304, 306 (2d Cir. 1960). Happily, I need not question Judge Hand for purposes of this opinion.

Question -- then why go there?

Either take the primary duty doctrine straight on, or defer to it, but why note "several fragmented divergent versions," and then move on?

Actually, I think Judge Shepherd has a point on his dissent.  He dissented on a sailor's award of future medical care costs when, at the last minute, the plaintiff had his expert opine not just on future medical costs in Nicaragua, where the sailor lived most of his life(?), but also in the United States, which is dramatically more expensive:

As to the second issue, I find the trial court reversibly erred by permitting the plaintiff’s vocational rehabilitation expert, Pedro Roman, to amend, four days before trial, his life care plan for Cox to include future medical care costs. Roman estimated future medical care, if performed in Nicaragua, at approximately $5000 and $241,398.20, if provided in the United States. Royal Caribbean’s vocational rehabilitation expert earlier had estimated Cox’s future medical care only in Nicaragua, where Cox was born and has lived for almost all of his forty-nine years.

Hold on -- the same future medical care in Nicaragua would cost $5k, but in the US would be a staggering $241k?

Hmm, I wonder what the difference is between the two countries in how they administer health care to their citizens?  (Hint:  poorly funded but improving public health care system)

In any event, where does the sailor live?  Does he have the right to reside in the United States?  I would have challenged the US future medicals as speculative unless there was a basis to believe he could incur those expenses here.

Oh well, tell it to the (Learned) Hand.

3d DCA Watch -- Judge Shepherd Appeals to a Higher Authority!

Does the 3d feel like it's in a funk these days?

Not too many opinions being released, fewer dissents, the swagger seems to be gone or dissipated, it's as if the 3d is barely talking to us.

Is it something I said?

Anyways, let's roll tide:

Morton's of Chicago v. Bermudez:

Old man falls in restaurant -- and it's not even captured on YouTube or anything!

Turns out the temporary obstructions need to be near where the guy fell, who knew?

Arkiteknic v. United Glass Laminating:

Note to judges who are planning to sanction lawyers for blowing deadlines -- there are these little things called the "Kozel factors" -- please try to familiarize yourself with them first.

It's not Venetian Salami, but it's close.

Willens v. Garcia:

Son takes continual care of invalid father for 20 years -- gets repaid with huge property tax reassessment on Dad's house once father dies.

Judge Shepherd channels his inner Hebrew National:

Mr. Willens’ reward for his two-decade sacrifice in the name of his father lies with a higher authority.

Ok, I'll play -- the Florida Supreme Court?

(What, there's something higher?)

3d DCA Watch -- Same As It Ever Was (Apodictic).

Hi kids, it's a New Year, a fresh start, so let's swill the lukewarm coffee and see what turns up (besides week-old coffee grinds):

Parc Central v. Victoria Group:

Hmm, it's Judge Shepherd, I'm guessing he made one big resolution for 2011:

It is apodictic that the fundamental purpose of Chapter 713 of the Florida Statutes, commonly known as this state’s “Mechanics’ Lien Statute” or by its short title, the “Construction Lien Law,” is “to protect those who have provided labor and materials for the improvement of real property.”

 Alright, apparently not.

Question -- when is it not apodictic?

I mean, in the analysis of any legal question, even unsettled ones, you usually start with established first principles and work your way from there to application of those principles to the fact pattern at hand.  Thus, just like the Sun is shining somewhere on Earth at any given moment, there is always something that could be said to be apodictic in every single legal opinion.

It's the legal equivalent of saying "we're here" -- it's always true, though it offers little more than that.

Turner v. FIA Card:

I like how Judge Ramirez thinks:

The Florida Supreme Court in Wilson v. Salamon, 923 So. 2d 363, 368 (Fla. 2005), created a bright-line rule that any filing would prevent dismissal pursuant to this rule. Likewise, any filing in the 60-day period following the notice or motion for lack of prosecution would qualify as record activity and would keep the case from being dismissed. The rule likewise specifies a bright line for providing good cause—“at least five days before the hearing.” The rule does not read more or less five days, or around five days. By filing the showing of good cause on February 1, FIA Card Services did so four days before the hearing. If this is close enough,what about February 2, three days before? We believe that, just as the Florida Supreme Court sought to impose a bright line for keeping a case from being dismissed for lack of prosecution, we should impose a bright line for showing good cause, and if the rule states “5 days,” we can require no less.

 Now that, my friends, is apodictic.