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See There's This Rule in Appellate Practice....


Something about "raising it below and/or before" -- no, that's not a legalistic sex term (but it should be!):
We deny the petition because Collins did not raise the argument contained in his petition for rehearing in his initial brief on appeal....Collins premises his entire argument on one sentence he did not cite, as interpreted through three circuit court cases he did not cite.  We did not decide the issue presented in Collins' petition for rehearing, and neither do we decide the issue now.
In a footnote, they grind it in just a little bit more:
Nor did he raise it in his reply brief.
Ouch -- even if these three circuit courts are right?

Comments

  1. In the Eleventh Circuit, it's probably the strongest argument an appellee can use, if available. This decision bears that out.

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  2. I was hoping we'd hear from P. Guyotat this week. I like his contributions.

    Where's the right winger been who tries to torment Godfucker?

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  3. Problem with those rules is courts apply them when they want and disregard when they want.

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  4. Happy Friday, SFL!!

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  5. I successfully cited Cudahy v. Quirk twice this week!

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  6. Facts: Quirk (D) was opposed to a proposal to fluoridate the public water supply by the Cudahy Junior Chamber of Commerce (P). Quirk offered to pay the plaintiff $1,000 if it could be shown that Quirk had misrepresented his claims that consuming fluoridated water could cause dermatologic, gastrointestinal and neurological disorders.

    After some investigation plaintiff demanded payment and Quirk refused. Plaintiff brought suit and the jury found misrepresentation by Quirk and entered judgment for plaintiff. Quirk appealed.

    Issue: May parties use the courts to settle a dispute over a wager?

    Holding and Rule: No. Parties may not use the courts to settle a dispute over a wager.

    Whether a transaction is a wager is determined by its essential nature rather than the label attached to it by the parties. Participants in a wager may not use the court to settle their dispute because gambling debts cannot be established or collected through the courts. Quirk effectively wagered $1,000 against the Chamber of Commerce’s efforts to prove him wrong.

    It is not the duty of a court to enforce a wager nor is a court to be used as a public forum to pass judgment or to act as a referee on every matter that comes before the public upon which an opinion may be stated.

    Public Policy: In this case the claimed misrepresentation by Quirk was made in the course of a public debate on a public issue affecting a public referendum. The political process is subject to wide latitude and it is not the duty and function of a court to determine whose side is right on such issues.

    Disposition: Reversed and remanded.

    ReplyDelete
  7. Miss my weekly Spencer update. What gives?

    ReplyDelete

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