Blog of law articles

Hi kiddies, is it that time already?

You know, that glorious moment of the week when the judiciary floodgates open, when the mighty storm systems of justice batter the hapless defenses of all you ham-and-schleppers seeking cover on Flagler Street -- yes get ready for some righteous rage, some Old Testament fury, because our resplendently robed scribes are swilling their coffee like a Category 5 Hurricane this week, oh man oh holy hail, oh....ahh enough already you know the drill:

Moynet v. Courtois:

This is an interesting piece of detritus from the real estate bust. Basically the defendant here bought a pre-construction condo for $271k at something called the "Bentley Bay Condominium development," laid out $52k as a deposit, then turned around and assigned it to the plaintiff for $87k.

HAHAHAHA....oh yeah, the condo went belly-up.

Plaintiff gets original deposit price back in bankruptcy from developer ($52k) but not so happy, so sues defendant for balance on a unjust enrichment(?) and civil theft theory. Defendant didn't respond, default judgment obtained, end of story.

Not so fast:

As we stated in Becerra v. Equity Imports, Inc., 551 So. 2d 486 (Fla. 3d DCA 1989), a default judgment should be set aside when the complaint pursuant to which it was entered on its face fails to state a cause of action. Id. at 488; Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 493 (Fla. 3d DCA 1994). We further noted in Becerra that a default judgment should be set aside where the complaint fails to state a cause of action even in the absence of good grounds for failing to respond to the complaint. Becerra, 551 So. 2d at 488. We stated: “This court, likewise, has held that a motion to set aside a default judgment requires no allegations or showing of excusable neglect where the basis for the motion is that the allegations in the complaint do not entitle the plaintiff to relief.”

Moral of the story: all you trial judges have to hold a mini motion to dismiss hearing before you decide not to set aside a default. Also -- haven't we said that before?

Here's the opinion we really like:

Ramirez v. McCravy:

This is a tort action where the plaintiff missed the statute of limitations by three days. But no, says the plaintiff, what about all those emergency weather tolling orders entered by our Chief Judge during the statutory period:

Ramirez argued that certain Florida Supreme Court administrative orders, which were issued after his cause of action accrued, tolled the statute of limitations on his claim. In particular, he argued that the administrative orders, in the aggregate, by their very language operated to suspend the statute of limitations, giving him over thirty additional days to file his complaint. The six tolling orders in question all state that: “In Miami-Dade County, all time limits authorized by rule and statute applicable to civil (inclusive of circuit and county), family, domestic violence, probate, traffic, and small claims proceeding are tolled from 5:00 p.m. on . . . nunc pro tunc.” The orders were all triggered by weather emergencies: two in 2004 caused by Hurricanes Frances and Jeanne; three in 2005, attributable to Hurricanes Katrina, Rita and Wilma; and the last one in 2006, generated by Tropical Storm Ernesto. All the orders recited that weather conditions caused the closure of the courts of the Eleventh Judicial Circuit. All stated that “this danger also may have temporarily impeded the ability of attorneys, litigants . . . in the performance of their duties and obligations with respect to many legal processes .”

To make a long story short, the 3d concludes that the plaintiff never represented that his late filing was due to these emergencies or that he was impeded in any way by these weather systems. He also never alleged that he relied on these emergency weather tolling orders or that he was lulled into inaction by them.

Query: should that be the proper standard?

Also, the 3d holds that there is less or perhaps no authority to modify statutes, as opposed to court rules, so that piece of it must be strictly construed. (Even though the administrative tolling orders by the Chief Judge specifically reference any applicable "statute.")

Yet another example of that ancient legal maxim: Too badus, so sadus.