Blog of law articles

Do you ever open up your office window on a late Wednesday morning and just scream "HOORAY!!!" because you know the 3d DCA has released another set of brilliant opinions?

I don't know about you, but I'm swooning this morning as the latest missives are released from the fortified concrete bunker of justice, where coffee-swilling robed ones frolic amid apodictic affirmances, at the only place in America where you can both obtain a reversal and also see an FIU football game, yes it's our one and only, patented 3d DCA Watch:

Eastern Atlantic v. GSOMR:

Oh boy, here we go again, another screwed-up area of the law, this time offers of judgment.

The Rule, the statute, the case law -- who the hail knows? How hard would it be to make these things consistent?

Here the mighty Jack Reiter convinces Judge Lagoa that the offer was not ambiguous:

While Rule 1.442 requires a proposal for settlement to state with particularity any relevant conditions and all non-monetary terms, the Rule “merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008), review denied, 5 So. 3d 669 (Fla. 2009) (quoting Nichols, 932 So. 2d at 1079). Moreover, a proposal for settlement does not require more than “a summary of the proposed release.” Nichols, 932 So. 2d at 1079.

Yeah, exactly -- the Rule says you need to state the conditions and nonmonetary terms with particularity, but case law says it just needs to be sufficiently clear and can merely be a summary of the proposed release.

How much clearer can you get?

City of Sweetwater v. Alvarez:

Like Moses and the burning bush, or Mickey Mantle and the bottom of the 9th, Judge Shepherd has been "called upon" and is "required to" interpret the statute governing when police officers can hire their own counsel to defend against criminal charges brought by a municipality:

Interpreting the statute holistically, as we must, it is clear a fee applicant must first request the employing agency to “designate[]” an attorney to represent the officer. § 111.065(4)(a), Fla. Stat. (2004). If the law enforcement officer is unsatisfied with the employer’s choice, then he may either “1. Select from a list of attorneys provided by the employing agency; or 2. Choose his or her own attorney.” § 111.065(4)(a)1, 2, Fla. Stat. (2004). This reading of the statute is consistent with section 111.065(3)’s admonition that “[t]he employing agency shall provide an attorney and pay the reasonable attorney’s fees and costs for any officer in a criminal action commenced against the officer in any court.” § 111.065(3). The first clause of this sentence would be superfluous if the only obligation of the employing agency is to “pay.” See Am. Home Assurance Co. v. Plaza Materials Corp., 908 So. 2d 360, 366 (Fla. 2005) (quoting Hechtman, 840 So. 2d at 996) (“‘[S]ignificance and effect must be given to every word, phrase, sentence, and part of the statute[,] if possible, and words in a statute should not be construed as mere surplusage.’”).

The statute is thus a legislative compromise between protecting law enforcement officers from being impoverished and the employer’s need to protect the public fisc. Balancing these interests, the Florida legislature has determined that police and correction officers in this state must afford the governmental entity the opportunity to provide legal representation before seeking reimbursement of attorney fees and costs under the statute.

I happen to agree with the Judge on this one, though he seems a wee bit defensive in performing the perfectly normal judicial exercise of interpreting a statute.

It's ok, Judge, that's what appellate courts do -- just ask Judge Sotomayor!

(Or Justice O'Connor, for that matter.)

Infante v. Vantage:

Oh man, here comes another perpetually messed-up area of the law -- this time it's default judgments again:

The standard of review of an order that vacates a final judgment by default as void for a complaint’s failure to state a cause of action is de novo. See Rubenstein v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th DCA 2000). As this Court stated in Cruz v. Domenech, 905 So. 2d 938, 940 (Fla. 3d DCA 2005), “[i]n determining whether [the trial court’s] jurisdiction to grant a particular form of relief has been properly invoked by the pleadings, the trial court must be guided by whether the pleadings provided the parties with sufficient notice that matters related to such relief would be at issue.”

We disagree with the trial court that count I failed to state a cause of action for an accounting based upon certain technical deficiencies of the complaint. Count I stated a cause of action for accounting. Infante detailed at length the nature of the claim filed against the defendants, stated the relief she sought, and she alleged that the defendants had failed and refused to give her the accounting she requested. The complaint thus placed the defendants on sufficient notice of Infante’s demand for an accounting. The trial court thus should have upheld the final judgment by default on this basis.

Does anyone else think it's a dumb standard that the trial court basically has to conduct a motion to dismiss analysis in determining whether to vacate a final judgment by default? And the whole thing goes up de novo to the appellate court anyway?

Guess it guarantees a steady caseload before the 3d, if nothing else.

Arvelo v. Park Finance:

Ahhh Judge Salter, the voice of calm cool reason:

Statutes of limitation are intended to encourage the enforcement of legal remedies before time dilutes memories, witnesses move to greener pastures, and parties pitch out (or “delete,” in the electronic age) old records. Under Park Finance’s theory, the statute of limitations applicable to a secured loan in Florida would be almost ten years rather than five years. A creditor could hold collateral for almost five years after default, then liquidate it, and then wait another five years to sue for a deficiency.

Yeah, so? She bought a crappy used Daewoo, didn't she? What's wrong with the debt outlasting the car by at least 10 years?

Sheesh, in this edition we have judges interpreting statutes AND showing empathy.

Now you know why I'm so darn happy.