3d DCA Watch -- Turns Out Miamians Aren't Very Nice Edition!

This is a classic headline from today's dead tree delivery portal:

Miamians don’t care about each other, report says

Ya think?

Speaking of delivery portals, I smell that familiar smell, those wafting utterances, freshly expressed:

Have you guys ever hear of this?
However, on a motion for summary judgment, the trial court must not weigh
material conflicting evidence or pass upon the credibility of the witness.

Hernandez v. United Auto. Ins. Co., 730 So. 2d 344, 345 (Fla. 3d DCA 1999). See
Jones v. Stoutenburgh, 91 So. 2d 299, 302 (Fla. 1956) (holding that the trial court
should not weigh evidence on the motion for summary judgment and should
construe any evidence in controversy in favor of the non-movant). Only a trier of
fact may weigh evidence and determine credibility—the court was without
authority to weigh the evidentiary value of the conflicting estimates.
Seems simple enough.

But in walked Big Shep:
I believe the lender met its burden on both of these grounds in this case.  In addition, I believe the undisputed fact that the borrower was in default in this case long before the date of loss and has remained so constitutes a separate basis for affirmance.
And the departing Judge was not done:
Finally, in a fashion very similar to the Vongohrens in their case, Alvarez
Mejia, in the case before us, defaulted on her mortgage loan long before the fire
loss occurred to property, and there is no evidence in the record that she has
brought the loan current.  Although not raised by the parties or considered below, I
would find this alone is sufficient,
as a matter of law, to make repair economically
unfeasible in this case.
Happy (almost) New Year!


  1. Judge Shepherd was a bad judge and perhaps even a worse person. I was always amused by the thought that a man who beat his eight-year-old son with a baseball bat at a Little League game preached about civility.


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