Wednesday, March 2, 2011

3d DCA Watch -- Duly Noticed, Judge Rothenberg.



Dear Judge Rothenberg:

If you want us to highlight one of your opinions, simply send us a note.

We're always happy to oblige Your Honor and would be delighted to facilitate the Bar's understanding of the intricacies of appellate practice and the nuances of contractor/subcontractor law.

So next time, you don't have to be so obvious:
“Case closed,” it seemed, and as the trial court noted, the moving parties appeared destined for certain victory. “But,” in the immortal words of Phil Collins, “something happened on the way to heaven.”2
Sussudio!!

And here's the citation:
2 Phil Collins, Something Happened on the Way to Heaven, on . . . But Seriously (Atlantic Records 1989).
Nicely done, Judge.

I like the opinion too, which deals with whether you can get out of contracts with unlicensed subcontractors:
In other words, all violations of licensing statutes are not created equally, and the courts faced with whether to add the penalty of non-enforceability to a violation of a licensing provision, where the statute or ordinance does not provide for such a penalty, must take a flexible approach. The violation of a licensing provision does implicate concerns over whether the other party and the public at large are sufficiently protected from shoddy workmanship. However, the mere existence of a violation, standing alone, is insufficient to automatically trigger the judicial penalty of unenforceability.
The judge stresses that flexibility and balancing is required to prevent the rote application of a rule that would result in substantial injustice.

Imagine that.

7 comments:

  1. That song sucks!!!

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  2. Talk about legislating from the bench. Am I missing something? Shouldn't Rothenberg and the panel have simply reversed Jeri Cohen because the legislature DID NOT provide for enforceability as a penalty? Why spend 18 pages coming up with standards for the trial court to apply? This is cut and dry. A court shouldn't invalidate a contract where the statute does not provide invalidation as a remedy.

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  3. Good ruling, bad song.

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  4. This is a fair point. Maybe she should have stopped right there.

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  5. She did have to get around the caselaw rule which says a contract that violates a law with criminal penalties=unenforceable...

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  6. I second that fact that the song need some work...

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  7. Judge Rothenberg rocks.

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