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|Any Remark Found On Abstract Appeal Should Be Attributed Solely To Its Author|
I have seen many cases substantially affected -- sometimes fatally affected -- by incredibly broad discovery requests that somehow give rise to equally incredible discovery orders. Historically, the appellate courts have been loathe to address such discovery matters through the extraordinary writ of certiorari.Just weeks later, we have another discovery order being quashed as overly broad. This time the certiorari-issuing court is the Fifth District. The decision is available here.
But perhaps that reluctance is diminishing. Or perhaps patently opprobrious requests are becoming more common. Perhaps both.
The final phase of this scheme is the most important. It is essential to be precise in the arbitration provision about exactly what arbitration is required. Specify who the arbitrator will be and what rules will apply. Find a for-profit arbitration service with a serious-sounding name suggesting expertise in whatever product you have produced, and a good acronym. What their actual qualifications are, or are not, will be none of the buyer's business, and the case law across the country suggests that unless the president of such arbitration service actually perjures himself, their role as arbitrator and their power based on the arbitration "agreement" to determine both technical and legal issues will usually be enforced. Because you refer many matters to this arbitration service and specify them by name in the printed form contract, they will know that you admire their decision making. If you cease to include them in your contracts or refer matters to them, they will understand that you no longer admire their decision making. This provides the economic incentive to rule in favor of the seller that is so woefully lacking in judicial proceedings. As a fail-safe device, include a provision that the seller, at his sole discretion, can select any other arbitration service he chooses.Judge Griffin is concerned the arbitration provision being enforced was contained not in the construction contract but the warranty agreement. She would have held that the provision relied upon by the majority gave the arbitrator the power to decide only what is within the scope of warranty arbitration, and since the claim in the case was not a warranty claim, she would have affirmed the trial court's decision.
What we have begun to see is that virtually all consumer transactions, no matter the size or type, now contain an arbitration clause. And with every reinforcing decision, these clauses become ever more brazenly loaded to the detriment of the consumer -- who gets to be the arbitrator; when, where, how much it costs; what claims are excluded; what damages are excluded; what statutory remedies are excluded; what discovery is allowed; what notice provisions are required; what shortened statutes of limitation apply; what prerequisites even to the right to arbitrate are thrown up -- not to mention the fairness or accuracy of the decision itself. The drafters have every incentive to load these arbitration clauses with such onerous provisions in favor of the seller because the worst that ever happens, if the consumer has the resources to go to court, is that the offending provisions are severed.She is also concerned with how the agreement in that case required the parties to split equally the costs of arbitration, saying "This provision alone may discourage or even prevent the consumer from pursuing any claim, warranty or non-warranty."
The decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child. The decision to allow a minor to participate in an activity is properly left to the parents or natural guardian. . . . The effect of the parent's decision in signing a pre-injury release impacts the minor's estate and the property rights personal to the minor. These rights cannot be waived by the parent absent a basis in common law or statute.The court then determined no basis for a parental release exists in the common law or in a state statute.
WHETHER A PARENT MAY BIND A MINOR'S ESTATE BY THE PRE-INJURY EXECUTION OF A RELEASE.Expect a full ensemble of amici at the state supreme court. If the decision is approved, and presently in the Fourth District's territory unless the decision is quashed, parental releases on behalf of minors are invalid, and only the state legislature can authorize such agreements.
Where a high standard of living is met during marriage, the purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce.
Absent any legitimate basis for the ordinances, what remains is that the City Parents disapprove of a perhaps unorthodox vehicle and the possibly diverse taste and lifestyle which may be reflected by its ownership. . . .(footnotes and citations omitted). Some of you may recognize the pen of Judge Schwartz.
For a governmental decision to be based on such considerations is more than wrong; it is frightening. Perhaps Coral Gables can require that all its houses be made of ticky-tacky and that they all look just the same, but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld.
In June 2002, Thomas stole $95,000 from Bernard Johnson, a drug dealer in St. Petersburg. It was an inside job planned with one of Johnson's girlfriends. The girlfriend did not receive her share, however, and she advised Johnson that Thomas was the culprit. As might be expected, Johnson refrained from calling the police, opting instead to put out a $25,000 hit on Thomas.
I fully concur in Judge Wallace's opinion for the court. I write only to suggest that there is a need for statutes, rules, and forms to facilitate the process of returning personal property to defendants in criminal cases once the cases have been resolved. As things stand, the courts resolve these issues using their "inherent authority." See Stevens v. State, 929 So. 2d 1197, 1198 (Fla. 2d DCA 2006). This process is slow, expensive, and somewhat haphazard.
We further note that these "small scale" amendments, when viewed together as a whole, are changing the character of the Miami River waterfront without proper long range planning or input from appropriate agencies, departments, and citizen groups. Because the Miami River is such an important asset to the City, County, and State, such piecemeal, haphazard changes are not only ill-advised, they are contrary to the goals and objectives of those who worked together, debated, and determined how the Miami River waterfront should be developed. If the City’s vision for the Miami River has changed, then that change should be clearly reflected in its Comprehensive Plan to provide industries and land owners along the Miami River with fair notice.Land use fans and locals might find the entire opinion of much interest.
It defies any bounds of ethical decency to view class counsel's actions as anything but a flagrant breach of fiduciary duty.Judge Cortiñas authored a concurrence. To the extent the court's opinion impugned, the concurrence raged. Judge Cortiñas explained that the original plaintiffs' claims totaled less than $84,000 and that Adorno & Yoss was to receive $2 million of the $7 million settlement. Addressing whether the firm improperly presented the settlement as if it was a class settlement, though all the money went only to the firm and the named plaintiffs, and specifically referencing a May 2004 statement attorney Hank Adorno made to the trial judge saying the city would consider the settlement no earlier than October 2004, Judge Cortiñas wrote:
* * *
The amount the original plaintiffs settled upon bears no relation to the extent of any damages they paid in the form of assessments during prior years. The original plaintiffs admitted that they received a windfall from the settlement. The original plaintiffs, together with Adorno & Yoss, then conspired to keep silent about the settlement terms, to the detriment of the other taxpayers.
Adorno & Yoss' conduct further solidified the compromise of the class claims. The firm oversaw the settlement of $7 million which the parties agree could have otherwise resulted in a refund of $24 million to $70 million for the class. Additionally, Adorno & Yoss failed to move the class refund claims along, allowing the City to raise statute of limitations issues that were not otherwise available prior to the inequitable settlement. The language of the settlement actually called for a standstill of the litigation. Furthermore, at no time did Adorno & Yoss exercise candor before the trial court to explain the nature of the settlement. This reprehensible conduct alone is more than sufficient to establish a breach of fiduciary duty.
The trial judge was not advised that this was an individual settlement or given the terms of the settlement. Adorno later testified that the settling parties did not discuss the statute of limitations and that the $7 million settlement amount was "pulled out of thin air." However, in order to find Adorno's testimony regarding the statute of limitations credible, one would have to believe that his reference to October 2004 was coincidental, and that, in the real world, $84,000 in claims are settled for $7 million with $2 million going to Adorno's law firm. Even if one were so gullibly inclined, it is difficult to ignore the fact that the settling parties also entered into a non-disclosure agreement, which would keep the facts surrounding their scheme private, despite Adorno's testimony that "the City, under normal terms, entering into a non-disclosure agreement would probably violate . . . the public records law, sunshine law." Apparently, these were not normal circumstances. Not coincidentally, it was not until November 18, 2004, after the supposed expiration of the statute of limitations, that the City Commission was presented with the settlement proposal, which they approved.Judge Cortiñas then laid down the proverbial hammer:
In a transparent attempt to legitimize their reprehensible conduct, appellants contend that it is not uncommon for class members of an uncertified class to settle their claims without prejudicing the claims of unnamed class members. They also maintain that they fully intended to pursue the claims of the unnamed class members despite the fact they never did so and, instead, vigorously opposed their intervention in this lawsuit. Moreover, appellants' position is entirely belied by the testimony of Charles Mays, an attorney for the City of Miami, who testified that this settlement was surreptitiously conditioned on the supposed expiration of the statute of limitations and the concomitant extinguishment of the unnamed class members' claims.
Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients' interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine.The decision quickly made news. The Miami Herald ran this story entitled, "Judges: Miami fire-fee attorney acted reprehensibly." Miami's Daily Business Review ran this similarly-titled story, which Law.com circulated across the Internet, and which opened with the words, "The 3rd District Court of Appeal took Coral Gables, Fla.-based Adorno & Yoss to the woodshed Wednesday . . . ." The latter story quotes an Adorno & Yoss representative as saying, "We believe that we properly represented both the individual plaintiffs and the class as a whole."
If the Legislature wishes as a matter of public policy to qualify a particular child rearing risk as a ground for adjudication, we are confident that it is able to do so. We appreciate the Department's entreaty to us. However, it is our duty to say what the law is, and not what it should be.
In sum, given that Dr. Rupp was sanctioned for a failure to take actions which were admittedly impossible to take, we reverse the Department of Health, Board of Medicine’s Final Order and remand the case for entry of judgment in Dr. Rupp's favor, thereby disposing of this matter in its entirety and avoiding another hearing. We further comment that this case has been a shocking waste of everyone's resources. Dr. Rupp is a physician with an unblemished record providing services to the poor, who took the step of hiring a firm to keep her licenses current, and yet was disciplined for not doing the impossible. The Florida Department of Health, Board of Medicine, should be encouraging other physicians to do what Dr. Rupp has been doing. The Department, after all, has the traditional mandate of providing primary medical care for the poor. It should exercise better judgment in deciding whether to file such a frivolous case and instead focus its energies on tracking down and disciplining those physicians who truly deserve punishment.Ouch.
We recognize that the practical effect of our ruling is that, because the plaintiff has received the policy limits she "demanded" (although obviously with the hope that they would not in fact be forthcoming), no bad faith action for amounts beyond the $10,000 may be maintained. We are not uncomfortable with this result. See Berges v. Infinity Ins. Co., 896 So. 2d 665, 685 (Fla. 2004)(Wells, J., dissenting).
For a marriage not longer than ten years, the trial judge awarded permanent periodic alimony to a 34-year old spouse with a college degree and no health or employment problems. We conclude that the award is an abuse of discretion.
If a seller breaches a real estate sales contract, does the law require the buyer to file a lis pendens to protect the remedy of specific performance against the seller? We hold that the filing of a lis pendens is a tactical decision of the buyer alone. Without such a filing, the buyer may pursue a timely filed specific performance action; if the seller frustrates the remedy by selling the property to another, the buyer may recover the profits the seller realized from the sale.
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