3d DCA -- If You Screw Up, Screw Up Big!

Time to bunker dive:

Tricam Industries v. Coba:

Judge Rothenberg reverses a plaintiff jury verdict in a negligence action and orders the trial court to enter judgment for the defendants, all based on an "inconsistent verdict."

Problem was, the defendants never objected to the inconsistent verdict below, and the jury was discharged.

Problem solved -- if the inconsistent verdict is so fundamentally screwed up, so glaring and so obvious you'd have to be a complete idiot to miss it (my paraphrase), then it's ok you screwed up as a lawyer and completely missed it.

Au contraire, says Judge Schwartz:
While I agree with the rest of the opinion, I disagree in two fundamental respects with the court’s treatment of the “inconsistent verdict” question. In my view:
a) The appellant waived the right to complain of any inconsistent verdict because of its failure to request that the conflict be resolved by the jury after its alleged flawed verdict was returned.
b) Even if this were not so, the appropriate remedy is not, like the majority does, to resolve the conflict in favor of appellant but a new trial so that a jury and not the court may decide the question.
So go big or go home!

Spencer v. EMC Mortgage:

Is it pretty normal for a bank to wait thirteen years to foreclose on a defaulted mortgage?

Not really, and Judge Salter dismisses for lack of prosecution among other procedural deficiencies.

Judge Schwartz has a hold-your-nose special concurrence:
Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997. While it therefore pains me deeply to do so, I concur in the reversal5 of the summary judgment of foreclosure against her.
And here's footnote five:
In the first incarnation, this passage read “I feel that I must dissent from the affirmance. . . .” See De Leon v. Great Am. Assurance Co., 78 So. 3d 585, 586 n.1 (Fla. 3d DCA 2011)
You say dissent from the affirmance, I say concur in the reversal, let's call the whole thing off!


  1. Terrible precedent.

  2. You missed the last line of Schwartz's concurrence. His first official cite to George Costanza.

  3. Can't believe I read this blog everyday for a year or more, and the day I win an appeal and make the bunker opinions I get nary a mention on the world-famous South Florida Lawyers Blog. $10.5 million dollar judgment vacated and not a peep. I tell ya I get no respect.

  4. I just finished reading Tricam and I'm sitting here shaking my head thinking that the trial judge was recently shortlisted for a federal district court position. Unbelievable.

  5. Feeling even better now about my "do not retain" vote in the Bar survey re Judge Rothenberg. Confused jury=defense verdict. Nice.

  6. No real surprise from Rothenburg, but I am deeply disappointed in Kevin Emas. Hopefuly the Supreme Court can correct this abomination.

  7. Yeah, that trial judge was certainly a dummy. What a state court hack, not to correct an error nobody complained about. Sheesh, what a loser, waiting for a party to make a request before taking action.

  8. the attack on judge rothenberg is unwarranted. she has a compelling basis to conclude that the jury's verdict on the first question moots, as a matter of law, their inconsistent answer to the second question. even if you disagree, this is a much closer call than people are saying. it does not warrant her ouster, and it does not warrant review. she, like judge quince, is owed the benefit of deference to a reasoned analysis, disagree with her or not.

  9. ...and yes, the judge did screw up because having a facially inconsistent verdict form, from the get go, is a judge's responsibility to correct - objection or not. a good judge would not have allowed this situation to occur.

  10. .... not a good opinion for judge thomas while his pre-nomination is being vetted. ok. that's it. back to work.

  11. Rothenberg also wrote the ridiculous Trinidad opinion re property damage claims which is about to be reversed at the FSSC.

  12. Here's the Costanza reference by Judge Schwartz:

    As someone – probably either St. Thomas More or George Costanza – must
    have said, the law is the law. Notwithstanding the distasteful consequences of applying it in this case, it must be served.

    That's three "hold-your-nose" exculpations in a single opinion!

  13. What does Justice Quince have to do with this?

    Judges Rothenburg and Emas have violated the first principle of appellate review--preservation of error is necessary to raise the error.End of story.

  14. well that is the simplistic way of looking at it. but this was NOT an evidentiary issue. nor was it a jury instruction. it was the jury's verdict! the defendant is entitled to judgment on that verdict. that is why the result of that judgment, at least arguably, requires judgment for the defendant notwithstanding the second answer on the same verdict form. so your smug end of story point misses the point. there was no waiver, in effect, because the jury's verdict entitles the defendant to relief. end of story.

  15. A verdict form agreed to by the parties, which, last I checked, includes the now complaining party.

    End of discussion with you.

  16. I can't believe both counsel approved that verdict form and the trial judge robotically (and lazily) approved it. From the opinion: "We note that this issue could and should have been easily avoided had proper attention been paid to the need to revise the verdict form to reflect the
    narrower issues for the jury’s consideration based on the change in the plaintiff’s case".

  17. This opinion is so wrong on so many levels. First, you cannot grant a motion for directed verdict based on a FINDING BY THE JURY! Whether a directed verdict is proper depends on the evidence introduced and the applicable law. The jury's findings are irrelevant! The only way a court can enter a directed verdict after a verdict is if it concludes the CASE SHOULD NEVER HAVE GONE TO THE JURY! Not to mention there is no objective or even rational basis for defining what constitutes "fundamental." Unbelievable!

  18. Reminds me of Judge Schwartz's observation about "with all due respect" in Gordon v. State, 585 So.2d 1033

  19. Why was it not remanded for a new trial?

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