Wednesday, April 20, 2011

3d DCA Watch -- 420 Day in the Bunker!



It's 420 day so let's get hydroponically situated and take a deep whiff of what the bunker is smoking swilling:

Simon v. Maldonado:

Interesting opinion dealing with standards for post-verdict juror interviews.  Court reverses Judge Platzer order granting new trial after concluding there was an insufficient basis to conduct the interview in the first place. 

Anderson v. Upper Keys Business Group:

Two groups battling over the right to hold a nonsense event "celebrating" the nonexistent birth of the Conch Republic.

I say they take two cheeseburgers in paradise and settle this dispute the way any self-respecting Parrot Head would -- by opening a garish, soul-sucking corporate tourist trap designed to weakly mirror any kind of authentic dining experience.

TBOM Mortgage v. Brown:

Judge Schwartz gets into the "dismissive quote marks" trend and chastises the unnamed trial judge for the "personal disinclination" that apparently led to the trial court's refusal to foreclose on some lady's house.
Although the plaintiff mortgagee in this “routine” home foreclosure case clearly established its right to a default against the mortgagor, the trial court refused to enter one, giving only what must be called the spurious reason that the non-military affidavit was in some unspecified (because non-existent) way “insufficient.” In fact and in law, the affidavit, which was in the universally accepted form, and was supported by evidence which clearly established that the defendant, who was personally served at his home in Miami-Dade County, was not in the military service, was legally impeccable....[I]t is established and we repeat that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise.
Not so fast, or should I say "so fast," sayeth Judge Salter:
First, the petition was untimely. The essence of the petition is a claim that the trial court departed from the essential requirements of law in its ruling—not that it has failed to rule despite a clear legal duty to do so.  The petitioner’s claim thus should be treated as a petition for certiorari rather than a petition for mandamus. Judicial notice of the circuit court docket in this case reveals that the order denying the motion for default was docketed the day it was signed by the trial court, October 26, 2010. The petition was not filed within thirty days of the order as required by Florida Rule of Appellate Procedure 9.100(c).
I love that -- bringing out the fancy-pants "rules" governing this appeal, citing one that would arguably go to the Court's "jurisdiction" to even hear the case!

The Judge goes on to point out that the word "may" is in the rule, and thus it's not mandatory but in fact "discretionary":
As the creations of lawyers, judges, rules committees, and Justices, rules should be presumed to appropriately differentiate “may” from “shall” and to record in the published comments any thoughts or inferences to the contrary.
Finally, Judge Salter addresses the "personal disinclination" issue:
Finally, the petitioner’s assumptions regarding the trial judge’s thought processes are not supported by a transcript and are, in my view at least, unprofessional.
Hold on -- was it only the petitioner who wrote about the trial judge's "personal disinclination"?

Check out footnote 5 -- it's a "doozy."

6 comments:

  1. Is there another judge in town, at any level, who knows what it means "to engage in verbal prestidigitation"?

    Is it apodictic that a judge should not so conduct him or herself?

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  2. That's a terrific case where Judge Schwartz issues a bunker 420-day smackdown on Judicial Section 13 (currently listed as Pedro Echarte). Vance Salter's dissent is weak and his "unprofessional" comment (a side slap to Schwartz, clearly) was weak.

    ReplyDelete
  3. If the cert petition is untimely, Schwartz "shall" dismiss.

    ReplyDelete