Wednesday, May 12, 2010

3d DCA Watch -- No Exit (With Palm Trees).


I was talking to a prominent appellate lawyer the other day, when all of sudden the conversation took an odd turn...

Can I confess something? I tell you this as an artist, I think you'll understand. Sometimes when I'm driving... on the road at night... I see two headlights coming toward me. Fast. I have this sudden impulse to turn the wheel quickly, head-on into the oncoming car. I can anticipate the explosion. The sound of shattering glass. The... flames rising out of the flowing gasoline.


Right. Well, I have to - I have to go now, because I, I'm due back on the planet Earth.

With that let's get right to the robed ones and their weekly dispatches from the supercooled, super-swilled, all-terra firma bunker of justice:

Hair v. Morton:

Oh Ruby Hair.

Can you come up with a better name for a plaintiff than Ruby Hair?

Anyways, poor Ruby Hair (that's Ms. Hair, to you!) maybe missed a thing or two in responding to some discovery on her medical history, and BOOM -- the defendant moved to dismiss her whole case as a sanction and BOOM -- evidently Judge Cardonne agreed, and then everybody high-fived each other and/or otherwise forgot about it and then one day in band camp:
It cannot be overstated that dismissal of an action is a severe sanction, and should only be employed in extreme circumstances.
Oh oh:
While Hair’s discovery responses might preclude some of her claimed damages regarding her lower back, they do not address the issue of liability, nor address all of Hair’s claimed damages so as to justify dismissal of her action.

Indeed, any allegations against Hair regarding inconsistencies, non-disclosure or even falseness are more appropriately dealt with through cross-examination or impeachment before a jury – not through dismissal of her action.
Wild, cross-examination and impeachment -- what will they think of next?

Jacobson v. Sklair:

I'm pretty sure this was the plot of an old Three Stooges short:
Mr. Levitt informed the co-trustees’ counsel that the original Order signed by the trial court on April 13, 2009 had been lost and never placed “of record” and that he had decided to proceed ex-parte to obtain a replacement Order in order to be in a position to obtain a post-judgment Writ of Garnishment and execute upon the judgments. Indeed, Mr. Levitt relied exclusively on the May 5, 2009 Order in order to obtain a Writ of Garnishment to execute against the co-trustees’ assets.

On June 3, 2009, the co-trustees’ counsel filed a notice of appeal of the May 5 order. Jacobson v. Sklaire, Case No. 3D09-1528 (Fla. 3d DCA June 3, 2009). At the time that the notice of appeal was filed, the May 5 order was the only order filed of record or docketed in the trial court below.

In August, while examining the record prepared by the clerk for the appeal in 3D09-1528, the co-trustees’ counsel found that the April 13 order purportedly had been filed of record on April 16. A trial court clerk informed counsel that on July 10 the clerk’s office located the original April 13 order, which was stamped “filed for record” on April 16, and proceeded to docket the order as of April 16 based on the date stamp. Shortly thereafter, the co-trustees filed a verified motion to vacate the April 13 order pursuant to Florida Rules of Civil Procedure 1.540(a) and (b) based on clerical mistake and mistake, inadvertence, surprise or excusable neglect. Following a hearing, the trial court denied the motion.
Wow.

Seriously?

What can I say, gotta love state court!

11 comments:

  1. Nice round up.

    My exit.....SHUMIE TIME!!

    ReplyDelete
  2. shums been called!

    ReplyDelete
  3. Lost orders suprise you in state court!?! A foreclosure action I am defending is in limbo because teh clerk lost the whole damn file. Seriously.

    Home owner (allegedly) stops paying the mortgage for 2 years, bank gets summary judgment, sale date set for 3 months after summary judgment. I never got a copy of the order. I went down to the clerk after a hearing a few weeks later to get a copy of the file. No one could find the file! Three stinking departments all pointing to one another claimed that it wasn't their job to have the file and that it had been passed on to the next office.

    Now no one has the file, the order setting sale is missing, and the house hasn't been sold.

    As Don King would say, "only in [South Florida]!"

    ReplyDelete
  4. Fake Angry Bridge TenderMay 12, 2010 at 4:14 PM

    Has anybody ever scene SFL and Neil Rogers in the the same room? Oy. Just Sayin

    ReplyDelete
  5. "Nyuk Nyuk Nyuk!"

    ReplyDelete
  6. "I think 5000 cars should have to wait for one schmuck on a boat"!

    ReplyDelete
  7. It's time to put the people of Florida first.

    ReplyDelete
  8. As the schmuck on the boat, who leisurely drifts under the bridge at 5:30...or, sometimes 5:00, or even 4:30 on some weekdays, I want to confess something:

    I love to watch you stopped at the bridge - it is my pleasure!

    In truth, it may shock you to know that I even slow the boat down far more than necessary to prolong the time you have to wait.

    Usually, I am also sipping on a beer or a cocktail, thinking to myself how much better I have it than you.

    Once, a guy on the bridge even managed to honk his horn to try and make me hurry up! God that was a Great day. I turned, told the girls on the boat to waive and give him the finger...backed up (because of something floating in the water - or so the bridge tender was told) and made the jerk wait an extra minute for good measure.

    SFL - you have an open invitation to join me and the girls anytime you like, you can wear a mask and we will call you Dread Pirate Roberts.

    ReplyDelete
  9. The Frog - Jean-Baptiste: Gold would be your ruin, Captain. It would cost ous our heads.

    Captain Thomas Bartholomew Red: It's easier to live without a head than without gold, you numskull!

    The Frog - Jean-Baptiste: I fight for hatred of the spanish, I fight for glory not gold.

    Captain Thomas Bartholomew Red: Man fights for what he lacks the most!

    ReplyDelete