Wednesday, September 18, 2013

3d DCA Watch -- Gettin' Geeky in the Bunker!



Hi kids, this week the bunker gets its geek on, with opinions that wade deep into the minutia of arcane and/or slightly obscure legal concepts.

It's just like being at Comic-Con and watching two nerds debate which of "Mudd's Women" is the hottest -- except here we have a legal issue of tremendous import:
Thus the question presented by this case is whether the Pitney-Bowes private postage-meter mark placed on the envelope is different in kind from a United States Postal Service postage cancellation mark, such that the former could be relied upon by the trial court as competent substantial evidence to rebut the prima facie proof of the certificate of service as the date of mailing. This appears to be an issue of first impression in Florida.
(I'm pretty sure I know why it's an issue of first impression.)

You want to get further into the weeds?

Ok, let's go there:
However, the date placed upon the envelope by a private postage meter is different in kind from a U.S. Postal Service postage cancellation mark. The private postage meter is in counsel’s office and is controlled by counsel. When the envelope is stamped by the private postage meter, it places both the postage and a date on the envelope. At this point, the envelope and its contents are still in the custody and control of counsel. The envelope has not yet been placed into the stream of postal commerce with the U.S. Postal Service. In this regard, the private postage meter mark is distinguishable from a U.S. Postal Service cancellation mark. In fact, the private postage meter mark (at least in theory) provides a more accurate date of mailing than does the date on the certificate of service. Common sense dictates that the envelope is stamped and dated by counsel’s private postage meter after the certificate of service has been dated and signed.
Unless there's a reason for counsel to backdate it!

Ok, now it feels like I'm in line at Starbucks and the person in front won't stop talking about something I have absolutely no interest in learning anything further about:
There is no evidence in the record below regarding the use and maintenance of the private postal meter, including the method by which the date on the postal meter was set or changed. For example, if the postal meter date was routinely changed each day at 5 p.m. (to the following business day) and the envelope in this case was run through the postage meter on February 6, but after 5 p.m., the envelope would be stamped February 7. Because the trial court did not hold an evidentiary hearing, and because this issue appears to be one of first impression in Florida, Chase did not have the opportunity to present evidence regarding the use and maintenance of the private postage meter, or to otherwise rebut the assertion that the motion was served by mail on February 7 rather than February 6. For this reason, we remand this cause to the trial court to conduct an evidentiary hearing to determine the date of service of the motion for reconsideration.
As much as I'd like a front-row seat to that riveting all-day evidentiary hearing, I'm afraid that I've scheduled a voluntary root canal and also plan to have my right arm chopped off.

Will someone please send me the transcript?

In other news, Judges Logue and Schwartz debate whether the "rescue doctrine" has to be specially pled or at least raised below, or whether  -- to quote Judge Schwartz, it is "simply a gloss on or an aspect of questions of legal causation and scope of duty which were raised, as in any negligence case, by the pleadings and arguments below."

So the rescue doctrine is always "in the air" and doesn't need to be pled or even referenced below?

Beam me up Scotty!
 

8 comments:

Anonymous said...

Two words:

Wargo French.

What mind numbing drudgery . Poor associate.

Anonymous said...

Best

Post

Ever

-GB

Godwhacker said...

Mudd's women?

Anonymous said...

Weren't both of these appeals caused by potential lawyer screw ups and/or pushing the envelope (pun intended)? In the Chase case, the attorney waited until the 10th day to mail a motion for rehearing, thus giving opposing counsel the always-classy argument that the postage meter stamps didn't add up. In the second case, the plaintiff relied on the rescue doctrine on appeal, yet it was never pled.

Anonymous said...

Stellar!!

Anonymous said...

@339 pm - get the F&$K out of the Starbucks line.

Your case is STOOPID.

SFL's Intellectual Translator said...

Like Mudd's women, the cases highlighted today appear beautiful but in fact are butt ugly.

Rumpole said...

What happened to the old days where you licked the stamp and then had an expert extract DNA and carbon date it? Seems like those older, simpler days, were much better.