Wednesday, November 28, 2012

3d DCA Watch -- Conform or Be Cast Out!



Hi kids, perhaps it was a bad batch of Thanksgiving stuffing, but this week the bunker-dwellers are a decidedly disagreeable bunch.

Four civil opinions, and half are dissents.

The first one involves a terrible crime committed at The Naked Truth, and whether or not the establishment provided negligent security.

Here in dissent is Judge Rothenberg's description of the security in place at this "pleasure emporium":
It is undisputed that the establishment is well-lit, with regular and neon lighting throughout the store; there were sixteen cameras in operation at the time of the assault (some of the cameras record continuously, twenty-four hours a day, while others record when triggered by a motion sensor); there were signs inside the store informing patrons that they were being videotaped by cameras on the premises; the store utilized “drop safes” to limit the cash being held in the registers to an amount of less than $200; the sales clerks were able to view twelve of the sixteen cameras simultaneously via a monitor from a slightly elevated platform that also provided greater visibility of the store and its patrons; there was only one door (except for an emergency exit) which was locked; and patrons were only able to enter if the sales clerk “buzzed” them in. The store also contained several alarm systems, including a perimeter alarm, a fire alarm, a burglar alarm, police alarms, and panic alarms that could be triggered by pressing a fixed alarm button or activated remotely.
What does it say about us as a society that a local porn shop needs to go to these lengths to keep their employees safe?

The second one involves a purported oral loan modification that occurred "in open court" after a foreclosure judgment.

Judge Rothenberg thinks there is a slight problem with the majority opinion:
I also disagree with the majority’s decision to affirm on grounds not relied on by the trial court or argued on appeal—that the statute of frauds, section 687.0304(2), Florida Statutes (2012), requires that “an agreement to lend or forbear repayment of money . . . , to otherwise extend credit, or to make any formal financial accommodation” must be in writing. Because this issue was not relied on below, nor argued on appeal, we are in no position to consider the merits of such an argument, especially since the loan modification offered by Deutsche Bank was in writing, and was accepted by and executed by the Vargases, and the posture of the proceedings was a motion by the Vargases to compel Deutsche Bank to execute the agreement it allegedly agreed to honor.
Aren't there some rules about deciding on grounds no relied on below or argued on appeal?

In other news, Marc Randazza speaks out on Judge Leesfield's preliminary injunction banning his client, a formerly anonymous blogger, from publishing future defamatory blog posts about a local developer.

What are the odds that order will stand up on appeal?

8 comments:

Anonymous said...

You just used a RUSH lyric (Subdivisions) in the title of a post. This is my favorite blog now.

Anonymous said...

Ignore the haters SFL.

Rumpole said...

Anonymous bloggers are ruining society.

Anonymous said...

No chance Leesfield's order survives appellate scrutiny. She screwed the pooch on that one.

Anonymous said...

Leesfield is better than this but sadly has gone out in a fashion that tarnishes her good work on the bench.

Clearly, she did this to start trolling for cases as she readies to enter private practice and has ruled in a favor of a person she perceives is relevant in the legal community and capable of send her cases.

What she doesnt realize is, we all get it. And if she is going to rule like that fromt eh bench, why on earth would you ever want ehr to mediate a case for example.

I can think of two state court judges who have left the bench in the last 10 years and has been good lawyers and done well.

Anonymous said...

LAME.

Anonymous said...

Rumpole, you and your ugly face are ruining society.

Anonymous said...

I WILL WRITE IN BOLD ALL OVER YOUR BLOG.