Wednesday, February 10, 2010

3d DCA Watch -- Evening of Revelry Edition!



Well folks, it's hump day and you know what that means.....

Hermitage v. Oxygen In the Grove:

So you're partying in the Grove, it's closing time, and of course you left your wallet back in the club.

Who hasn't done that before?

But here the poor schmuck knocked on the door one too many times and got the crap beat out of him (allegedly) -- Judge Shepherd understands:
The complaint alleges after an evening of revelry, Rivera left the premises and then returned for his wallet, which he thought he left inside. Because the club had closed for the night, Rivera knocked on the door and was greeted by a bouncer, who said he would look for the wallet. After what seemed to Rivera to be an inordinate time, Rivera again knocked on the door. At that point, Rivera alleges the bouncer reappeared and, without provocation, assaulted and battered him.
Oh well, so you settled against the club but it turns out there might be insurance covering negligent acts?

Too bad too sad:
However, the rule is not intended to spare counsel from his own tactical errors or mistakes. See Fla. High Sch. Activities, Inc. v. Latimer, 750 So. 2d 762, 763 (Fla. 3d DCA 2000) (“This rule is not intended to relieve a party from its own tactical mistakes.” (citing State Farm Mut. Auto. Ins. Co. v. Isom, 681 So. 2d 1170, 1172 (Fla. 5th DCA 1996) (“[R]ule 1.540 does not provide relief for judgmental mistakes nor tactical errors of counsel nor from mistakes of law. This rule merely provides relief from judgments based on mistakes which result from oversight, neglect or accident.”)). That is the nature of the error pled in this case.
On to more revelry.....

Archbishop Colman F. Carroll High School v. Maynoldi:

This case involves a tragic single car alcohol-fueled accident arising from an end-of-year high school party. The question is whether the school has any liability.

Judge Salter grapples with some unusual facts (including a "skit" about the party on the morning announcements and a visit to the party by the school principal) but ultimately says no:
No conscientious juror or judge could (or can now) feel anything but the deepest sympathy for the tragic results of Gabriel’s accident. But our legal system requires more than heartfelt sympathy and demonstrable damages as predicates for the compensation of injured persons. Although this case involves three novel aspects that were not considered in Concepcion—the school’s interception of the “praty” invitations and “skit” in response, the parent and student handbook provisions, and the visit by the principal and employee to the residence where the party was underway—we conclude that these circumstances were insufficient as a matter of law to impose upon the school a duty to supervise, or a duty under the undertaker’s doctrine, regarding Gabriel’s acquisition and consumption of alcohol, attendance at the party, and fatal decision to get behind the wheel.
Ramle Int. v. The Greens Condo:

So you get an entitlement to fees and you wait 11 months to file your fee motion?

What's the big deal? There's all that juicy statutory interest, right?

Judge Salter says it's no big deal, and Rule 1.525 doesn't apply:
In the instant case, as in Amerus, the prevailing party’s entitlement to attorneys’ fees had already been determined, and the trial court merely reserved jurisdiction to determine the amounts. Although the eleven-month delay in this case exceeds the eight-month delay in Amerus, we do not believe that distinction makes a difference in the analysis or outcome.
Ok, I agree that once you have a determination, being surprised and/or prejudiced isn't as much of a factor.

But 11 months? At some point shouldn't these factors reemerge as legitimate issues -- is there no reasonable end point?

Perez v. Deutsche Bank:

John Ruiz won reversal of a foreclosure, with David Stern on the other side.

Was it John's silver-tongued oral argument? His brilliant research and case citation?
Deutsche Bank was precluded from participating at oral argument in this case for failure to timely file an answer brief.
Alrighty then!

And finally we have Judge Schwartz in Lower Keys Medical v. Windisch:

How contrary is the petitioner's position to some controlling case?

Directly:
The petitioner’s position in this case is directly contrary to Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008), and each of the other District Courts of Appeal.
Ooh, that doesn't sound too good.

Anything else?
Even if we were inclined, which we are not, we do not have the authority to rule otherwise. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). The petitioner’s suggestion that we might do so is insulting and frivolous.
I said GOOD DAY, SIR!

6 comments:

  1. Insulting and FrivolousFebruary 10, 2010 at 3:33 PM

    A simple no would have sufficed.

    ReplyDelete
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  3. jesus christ. somebody please explain what "Shumie" is

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  4. you are all losers; get a life!!!!

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