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3d DCA Watch -- Turnabout Is Fair Play?

We all know the bunker loves a good confession of error, but what if the bunker itself (a panel, anyway) kinda wants to also, sorta in a nice way without really saying so but really that old opinion sucks who the hail wrote that thing but anyway maybe an en banc panel can correct our longstanding screw up boy we really messed up  let's see if someone gets the message:
A three-judge panel of this Court, however, cannot “impliedly” recede from or overrule Modesto. See In re Rule 9.331, 416 So. 2d 1127, 1128 (Fla. 1982) (“We would expect that, in most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing.”); Wood, 677 So. 2d at 18 (holding that a three-judge panel would not have receded from earlier case and would have suggested en banc consideration); McBride v. State, 604 So. 2d 1291, 1292 n.1 (Fla. 3d DCA 1992) (noting that there appears to be no authority for a court’s departure from an earlier panel decision “without the intervention of an en banc court”). Thus, even assuming that the cases previously discussed may appear to have “impliedly” receded from or overruled Modesto, we remain bound to follow Modesto until this Court expressly recedes en banc from this precedent.
Can I get a en banc motion already?

Let's go back to law school with this final exam statute of frauds question:
In applying these principles to the instant case, it is clear that the trial court correctly determined that LaRue’s claims were barred by the statute of frauds. It is undisputed that LaRue’s complaint was based on an alleged oral employment agreement, and the agreement and the intent of the parties was that LaRue would receive a 25% ownership interest in the company if she worked for the company for three years. Because the alleged agreement was incapable of being performed in one year, her claim is barred by the statute of frauds.
A Plus Plus, Judge Rothenberg!

Sherman v. Deutsche Bank:

Judge Schwartz in dissent gets his sarcasm on:
I am nonplussed by the appellant’s argument for doing so: that the bank somehow acted  inequitably by lending the mortgagor an additional amount at interest, apparently because he was, surprisingly enough, required to pay it back. But I had thought that the ability to secure a loan was good for the borrower, and surely that it did not place him, much less the second mortgagee, at some kind of disadvantage.
This guy would make a great blogger!

Moriber v. Dreiling:

Oh boy, any opinion that starts off this way has got to be good:
The events that transpired in this case are not attributable to unethical conduct. Instead, they illustrate some of the adverse consequences resulting from the injection of technology into today’s modern and busy law practice.
Hey, that's because we all practice at Starbucks now!

On October 9, 2009, the petitioner, as the personal representative of her mother’s estate, filed a four count complaint against her siblings, the respondents. Over the course of almost two years, the parties engaged in significant discovery and motion practice. Then, on September 30, 2011, counsel for the petitioner served a motion for partial summary judgment on the respondents by having his assistant (1) deliver an electronic copy by e-mail and (2) send a hard copy by regular U.S. mail to Heller Waldman.

The assistant to petitioner’s counsel thereafter realized that the initial e-mail to Heller Waldman did not mention that a hard copy also had been sent. She therefore sent a follow up e-mail, including the same text contained in the initial email, and adding the statement, “I have also mailed you a hard copy today.” Unfortunately, while the assistant intended to reattach the electronic copy of the motion for summary judgment to the follow up e-mail, she inadvertently attached a confidential mediation statement instead. The e-mails were sent to two attorneys at Heller Waldman, Glen Waldman and Eleanor Barnett, as well as their assistant, Nancy Curiel. Additionally, petitioner’s own counsel was copied on both e-mails.
Oy vez meir gut em himmel!

Ok, to make a long story short, only Ms. Barnett skimmed the mediation statement, assumed it was a courtesy copy which is not uncommon, and wrote a note later in the day to opposing counsel disputing the scheduling of a motion that was referenced in the confidential mediation statement.

The other side then realized the error, objected and asked all copies of the mediation statement to be destroyed, which immediately was done.

So, problem solved?

Of course not -- the petitioner who sent the mediation statement in error moved to disqualify Heller Waldman.

What a fine howdoyadoo!

Come on!  It's just a mediation statement, it was your screw up, they did what you asked by destroying all copies, and you still moved to disqualify?

Here's what the Special Master who reviewed the issue held:
The special master, after conducting a hearing and reviewing the mediation statement, motions for summary judgment, and the affidavits filed by the Heller Waldman attorneys and their assistant,  concluded that “there is nothing within [the mediation statement] that gives rise to any possibility that Defendants gained an unfair advantage—or any advantage—by receiving it.” Specifically, the special master stated:
I reach this conclusion after comparing the contents of the Confidential Mediation Statement to the contents of the parties [sic] Motions for Summary Judgment . . . . At this late stage and given the arguments made in open court by the parties through their competing motions on the merits, there is nothing in the Confidential Mediation Statement that would give the Defendants any possibility of an unfair advantage. For the most part, the statement outlines undisputed facts, makes passing comments on the obvious motivations of the parties and otherwise fairly tracks the legal issues now of record. There is nothing in the Confidential Mediation Statement that hints of any weakness in the Plaintiff’s case or which, in the hands of Defendants, would afford any tactical, strategic or legal advantage. If I had to briefly capture the essence of the submission, I would say it is a well crafted position paper which states the obvious and disclosed well established positions of each side.
Based on this reasoning, the special master recommended that the trial court deny the petitioner’s motion to disqualify. The trial court reviewed the special master’s recommendation, and on January 6, 2012, entered a written order denying the petitioner’s motion to disqualify. This petition followed.
The 3d affirmed, and rightfully so.

Nicely reasoned opinion by Judge Rothenberg btw.


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