Thursday, December 5, 2013

3d DCA Watch -- All Hail Manny Crespo!

Let's get the day off right by wishing hearty congratulations to CABA's new Imperial Overlord:
Manny Crespo Jr. was elected president-elect of the powerful Cuban American Bar Association in what appears to have been one of the closest races in the group's history.

While CABA does not reveal vote counts, both Crespo and his opponent, Nelson Bellido, said they heard the vote was extremely close, and Bellido said he was told he lost by 30 votes out of nearly 700 cast.
 Also, is it just me or has CABA ascended in stature and prominence at the same time DCBA has a lot a bit of its luster?

Onward to the written utterances, which I have decided to frame in a concrete bunker-like box:

Default obtained by Chris Korge based on discovery violations reversed and remanded for evidentiary hearing:
While the record certainly establishes a persistent pattern of foot-dragging and failure to comply with court orders, we are compelled to conclude the trial court abused its discretion in striking Toll’s pleadings and granting a default judgment against him in the absence of compliance with the requisite procedures outlined in Ham and Kozel, in order to justify the extreme sanction imposed. The trial court failed to hold an evidentiary hearing and failed to make the necessary findings under Kozel, rendering it impossible to determine whether the Defendants’ collective dilatory conduct was personally attributable to Toll, to another defendant, or to Toll’s counsel.
Those Kozel factors again!

Here is Judge Shepherd in dissent:
The majority opinion portrays one reading of the facts of this case. The detailed and thorough eleven-page order rendered by the trial court portrays another. Utilizing the pertinent standard set forth in Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983) — which, as opposed to the standard in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), applies when the discovery misconduct is attributable to the litigant rather than his attorney — I conclude the trial court properly exercised its discretion in finding that Craig Toll had demonstrated a deliberate and contumacious disregard of the authority of the court. Mercer, 443 So. 2d at 946.
So which is it -- Kozel or Mercer?


Anonymous said...

Shepherd is as Shepherd does.

Anonymous said...

On the topic of appeals, am I still required to serve motions and briefs etc or does the electronic filing and then acknowledgment and link from the third dca suffice. I have heard some say yes and some say no. Why can't we have a system like the feds where filing means service.

Anonymous said...

Read the fing rules

Anonymous said...

The answer is not in a rule but in an administrative order from the Fla. Sup. Ct. from October.

No. AOSC13-49
The Florida Supreme Court's Revised Opinion in In re: Amendments to the Florida Rules of Judicial Administration, the Florida Rules of Civil Procedure, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Rules of Traffic Court, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure—E–Mail Service Rule, 102 So. 3d 505 (Fla. 2012), established the requirement for electronic mail (hereinafter “e-mail”) service as the required attorney-to-attorney service of specific court pleadings. Additionally, rule 2.516(a), Florida Rules of Judicial Administration, requires such e-mail service “[u]nless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service.”
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E-mail service is now available to users within the Florida Courts E-Filing Portal (hereinafter “Portal”). This administrative order is issued to authorize use of the Portal as a means of complying with the rule 2.516(a) service requirements.
1. On September 28, 2013, the Portal was updated to provide the ability for registered participants who are filing documents within the Portal to identify the name and up to three e-mail addresses of other attorneys or parties participating in that particular case to receive service of that document electronically in conjunction with the Portal filing.
2. Effective immediately, any registered participant who uses the Portal for electronic filing (hereinafter “e-filing”) in any court for any type of case and in conjunction with that e-filing uses the Portal as a means of service is deemed to have complied with service requirements, in accordance with rule 2.516, Florida Rules of Judicial Administration.
3. Additional administrative orders may be issued, as necessary, with regard to the implementation of e-filing and will be posted on the Florida Supreme Court's web site.1 Therefore, members of The Florida Bar and all others who use the court system are requested to
1. This webpage is located at
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remain diligent in keeping track of updated requirements regarding e-filing through the Portal.
DONE AND ORDERED at Tallahassee, Florida, on October 9, 2013.
Ricky Polston, Chief Justice
Thomas D. Hall, Clerk of Court

Anonymous said...

Is crespo's installation going to be like victor diaz's quince?