Wednesday, January 19, 2011

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.


Anonymous said...

i'm coining "aprodickheh"

adj: apropos of dickheads

Anonymous said...

Good for the Court putting at least a few teeth (or a tooth) back into the lack of prosecution rule. Filing a "motion for leave to take a dump" will constitute record activity within the 60 days.

If some plaintiff's attorney is so dumb that after having received a "FWOP" notice, as I've heard them called in Court, and doesn't file ANYTHING in the record then blows the 5-day deadline to file a showing of good cause, he deserves to get his case dismissed and deserves to probably put his carrier on notice.

CAPTAIN said...

One Correction SFL. Not "same as it ever was". There's a New Judge in Town: Kevin Emas.

Any word on whether he has sat on a panel yet?

Kissimmee Kid said...

His carrier?

You Miami guys are so funny, you have people carry you to court.

South Florida Lawyers said...

Interesting question, Cap. Haven't looked for it, but I'll go back and see.

Anonymous said...

I love bunker justice!