Wednesday, June 22, 2011

3d DCA Watch -- A Bright Shining Lie?

As we get ready for the President's Afghanistan speech tonight, let's remember history instructs us that all governments -- including the United States -- routinely distort and in fact sometimes lie for political expediency when it comes to war and peace.

In that we are most decidedly not exceptional.

Speaking of lies, get a load of this blistering Judge Rothenberg dissent in a sexual assault case that occurred in Mexico but involved Florida defendants and which was dismissed on Kinney grounds and affirmed by the majority.

In addressing the jurisdictional affidavit of the defendants which was accepted by the trial court Judge Rothenberg notes a slight problem with credibility:
The Florida Defendants and Ms. Rodriguez now admit that each and every one of these statements was false.

The record in this case reflects that the Florida Defendants and Ms. Rodriguez have a long history of deceiving or attempting to deceive the courts of this State by submitting affidavits with similar false statements, but which they now admit were false. See Weiss v. Palace Resorts, Inc., No. 07-03385 CA 11; Discipio v. Operadora Palace Resorts, S. de R.L. de C.V., No. 06-26242 CA 10; Shapiro v. Palace Resorts, Inc., No. 06-23603 CA 8; Kobryn v. Palace Resorts, Inc., No. 06-06555.
Hmm, this could be a problem.

She concludes:
The trial court erred, and its order granting the Florida Defendants’ motion to dismiss the lawsuit and send Cortez to Mexico to litigate her claims against the Florida Defendants, must be reversed because it is based on conclusions, not evidence, and the evidence does not support the conclusions made by the trial court. The trial court’s adequacy determination cannot be upheld where the trial court relied on an affidavit submitted by one defense witness who admitted that material representations in the affidavit were false, and another defense witness who subsequently modified the statements in his affidavit when he was deposed, and where material adequacy factors mitigating against Quintana Roo as an adequate forum were admittedly not considered by the trial court when making its determination.
Oh well, crap happens!

JP Morgan Chase v. Hernandez:

Judge Adrien gets one badly wrong --
Finding no basis whatsoever for the entry of the April 2010 Order, we reverse. We further grant Washington Mutual’s motion for appellate attorneys’ fees and sanctions against the Debtors and their counsel for abusing the legal process, resulting in a drain of judicial resources and unnecessary litigation expenses.
The Court's history of the proceedings in this case is a must-read, describing certain events as "mind-boggling" and actions taken as "nonsensical" and "essentially fraudulent."

For good measure they refer the debtor's attorney to the Florida Bar due to "potentially unethical conduct."

Diaz Reus v. Wingate:

How's this for absurd procedural gamesmanship:
Wingate filed a complaint against Redfield in the circuit court in and for Miami Dade County for breach of contract, specific performance and tortious interference with a contract entered into between the parties for the purchase and sale of real property in Pinecrest, Florida. The day after filing the complaint, Wingate filed an identical complaint in the same circuit receiving a new case number and a new judge. At the same time, Wingate filed a voluntary dismissal with prejudice of the first filed complaint. Redfield was served with the second filed complaint. Redfield removed the case to federal court. Once in federal court, Redfield moved for summary judgment on the ground that the voluntary dismissal with prejudice taken in state court was an adjudication on the merits and, therefore, the complaint was barred by the doctrine of res judicata. Realizing the problem, Wingate filed a motion in state court to vacate the voluntary dismissal with prejudice and to convert it to a dismissal without prejudice. This motion to vacate was filed ex-parte under Wingate’s questionable theory that, as Redfield had not been served with the first filed complaint, Redfield was not required to have notice of this hearing, even though it was a party to the second filed identical complaint.
Come on!

What ever happened to just adjudicating a complaint on the merits?

Judge Shepherd in a special concurrence both uses the word "legerdemain" and also makes a horsey reference involving somebody mounting a wild steed, or something:
The dissent’s emphasis on the plaintiff’s motive for seeking to expunge the language “with prejudice” from its dismissal filing in this case is misplaced, as even it concedes the right of a litigant to “switch horses” to obtain a different “mount” midstream “is a strategy [] not prohibited by the rules or the case law.”
Personally, I always like a different "mount" midstream.

Judge Ramirez' dissent, however, basically just calls bullcrap on the whole enterprise, midstream horse mounting or not:
Our decision then hinges on whether what happened here was a tactical mistake or a secretarial error. I believe it was a tactical mistake. The whole scheme of filing two suits and dismissing the one falling before the less desirable judge was a quintessential tactical scheme. Admittedly, the scheme was botched, as the trial court found, through excusable neglect. But it was the direct result of the attorney’s stratagem of filing two suits to engage in what was nothing other than judge-shopping.
Judge Ramirez concludes:
I would reverse the trial court because I believe the dismissal with prejudice was nothing more than a botched tactical ploy.
So it appears what we have here is a "botched tactical ploy" that occurred while attempting "a different 'mount' midstream."

To which I can only say -- been there, done that.


Anonymous said...

The Hernandez case is a good read. While my trigger reaction is to say "Judge Adrien reversed--no surprise there," it actually appears that the appellee (and possibly their lawyer, who the 3d referred to the Bar), pulled a fast one on the lower court.

Anonymous said...

Home run.

Anonymous said...

"Simply put, the majority affirms the trial court’s order transferring [sic] a lawsuit
filed by a United States citizen, who resides in California, against several Florida
defendants on the basis of forum non conveniens."

Um, does she mean, "dismissing"? I didn't think one could obtain an order "transferring" a case from Florida state court to Mexico. Just saying.

Godwhacker said...

So President Obama is going to talk about leaving troops in Afghanistan indefinitely while making peripheral noises about this being a drawdown.

Yep, Bush's third term.

Shoot The Lawyers said...

The Hernandez case a "good read?" If true, the facts outlined are almost criminal. How in the world did this get past Adrien? I would love to see the transcript of that hearing. The oral argument on this one must have been a doozy. It is bad enough that you have a loser of a case. But to stand in front of three judges and also be the architect of the fraud complained of is even worse. I am surprised this case has not gotten more attention in the press and legal community. If I were around Woods after the argument, I would have offered this consolation: at least you did not get Schwartz on your panel.

Shoot The Lawyers said...

I stand corrected. Woods' explanation makes the case even more bizarre.

Anonymous said...

@7:18: It was a good read then, wasn't it?

Anonymous said...

That DBR article makes it sound much worse for Woods. He should hire counsel and stop speaking to the press.

Anonymous said...

"I was caught off guard."

Your Honors, I'm here to talk about procedure, not my clients' fraudulent scheme.

Anonymous said...

Hey, 2:53, just sayin, but I guess you never paid attention in civ pro. An order dismissing for forum non transfers the case to the more convenient forum, and people sometimes call that the "transferee court." Filing a "forum non" motion tells the court that there is a better place that can and will take the case. It's not a misuse of the word. If, for convenience reasons, you decide you want to get the same education at a lower price, or you want to watch football on campus, and "transfer" across town from UM to FIU, UM doesn't "order" you to go to FIU, but your eduction is "transfered" to FIU.