Friday, November 21, 2014

Easley again recognized among legal leaders in 2014

Congratulations to Dorothy Easley of Easley Appellate Practice for being recognized as a top appellate lawyer in the 2014 Super Lawyers Business Edition just released.  Ms. Easley is recognized as an attorney selected to the Super Lawyers list in 2014 within specific business-related practice areas, in this case, business appeals.


Saturday, November 15, 2014

The general rules on contract enforceability in Florida and recent contract decisions



To determine a contract’s enforceability, the Florida Supreme Court has long-established that Florida uses the objective (as opposed to the subjective) test (first expressed by the late Supreme Court Justice Oliver Wendell Holmes):

The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing, but on their having said the same thing.

Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (quoting Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So. 2d 404 (Fla. 1974)); see also, Oliver Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (quoted in Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957)).

The Florida Supreme Court also holds in Blackhawk Heating and Plumbing Co. Inc. v. Data Lease Fin. Corp., 302 So. 2d 404 (Fla. 1974), that nonessential terms left for future negotiations do not render a contract unenforceable.   Where an Agreement consists of “two sets of external signs”, “says the same thing”, and on the same day, it is generally enforceable. 

Below are some recent decisions of interest on CONTRACTS:
Contracts -- Error to enter summary judgment for plaintiff in breach of contract action where there was a lack of evidence to establish that plaintiff had standing at time action was filed, and an incorrect cardmember agreement was attached to complaint
DETELINA Y.A. MITEVA, Appellant, vs. AMERICAN EXPRESS BANK, FSB, Appellee. 3rd District.



Contracts -- Real property sale -- Specific performance -- Trial court erred in dismissing purchaser's complaint for specific performance, concluding an action for specific performance could not be asserted, where contract does not limit the remedies available to the purchaser in the event of default by the seller

REGENTS PARK INVESTMENTS, LLC., A FLORIDA LIMITED LIABILITY COMPANY, Appellant, vs. KAI PROPERTIES, LTD, A FLORIDA LIMITED PARTNERSHIP, Appellee. 3rd District.


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Saturday, November 1, 2014

Five stars for Easley's federal appellate treatise


We are proud and so honored to announce that Board certified appellate specialist Dorothy F. Easley's 2014 treatise, Successful Federal Appeals in all Circuit Courts: a Practical Guide for Busy Lawyers, has earned five stars by reviewers. More.

Monday, October 27, 2014

FDCPA, FCCPA, copyrights and academic works, and eggplant, black olive, roasted garlic, and heirloom tomatoes over angel hair pasta




Consumer law -- Debt collection -- Action alleging that defendant debt collector violated Florida Consumer Collection Practices Act and Fair Debt Collection Practices Act by sending plaintiff a letter stating that “Unless you, within 30 days of receipt of this notice, dispute the validity of the debt, or any portion thereof, the debt will be assumed to be owed” -- Complaint stated claim that letter violated FDCPA because it did not state that if plaintiff did not dispute the debt within 30 days the only entity to assume the debt to be valid is the debt collector -- Defendant's substitution of the word “owed” for the word “valid” in the letter is not a basis for FDCPA claim -- Complaint stated claim that letter violated FCCPA provision that a person shall not assert the existence of a legal right when such person knows that the right does not exist by asserting the misleading communication regarding who could assume that the debt was owed -- Complaint stated claim that letter violated provision of FDCPA that debt collector shall not use any false representations or deceptive means to attempt to collect any debt by stating that if federal bankruptcy discharge has been entered, an In Rem judgment will be entered -- Language could be perceived by the least sophisticated consumer to mean that the consumer will not be allowed to contest an In Rem judgment before it is entered -- Plaintiff may seek declaratory and injunctive relief
ERICA MARTIN, on behalf of herself and others similarly situated, Plaintiff, v. BUTLER & HOSCH, P.A., Defendant. U.S. District Court, Middle District of Florida, Tampa Division.


Copyrights -- Infringement -- Academic works -- Three publishing houses brought copyright infringement action alleging members of the Board of Regents and officials at state university infringed plaintiffs' copyrights by maintaining a policy which allows professors to make digital copies of excerpts of plaintiffs' books available to students without paying plaintiffs -- Immunity -- Argument that defendants are immune from suit pursuant to Eleventh Amendment, which was not raised on cross-appeal, is not properly raised -- Fair use -- District court abused discretion in granting declaratory and injunctive relief to plaintiffs where court's grant of injunctive relief was predicated on its finding of infringement, which was in turn based on court's legally flawed methodology in balancing four fair use factors and erroneous application of factors two and three -- District court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief -- However, district court did err by giving each of four fair use factors equal weight, and by treating the four factors mechanistically, rather than undertaking a holistic analysis which carefully balanced the four factors -- District court did not err in holding that first fair use factor, the purpose and character of the use, favors a finding of fair use, notwithstanding nontransformative nature of the use, where defendant's use was for nonprofit educational purposes, which are favored under fair use statute -- District court erred in holding that second fair use factor, the nature of the copyrighted work, favors fair use in every case -- Because the digital copies of excerpts in question contained evaluative, analytical, or subjectively descriptive material that surpasses the facts, or derives from the owner's own experiences or opinions, district court should have held that second factor was neutral or even weighted against fair use where such material dominated -- In analyzing the third fair use factor, the amount used in relation to the copyrighted work as a whole, district court erred in setting a 10 percent-or-one-chapter benchmark, rather than performing this analysis on a work-by-work basis, taking into account whether the amount taken, qualitatively and quantitatively, was reasonable in light of the pedagogical purpose of the use and threat of market substitution -- District court did not err in its application of fourth fair use factor, the effect of defendants' use on potential market for or value of copyrighted work -- District court erred by not affording fourth factor more significant weight in overall fair use analysis, where defendants' unpaid copying was nontransformative and plaintiffs' works were used for one of purposes for which the works were marketed and threat of market substitution was severe -- District court erred by separating two additional considerations from its analysis of first and fourth fair use factors -- Although it is within district court's discretion to go beyond considerations set forth in four factors, district court's supplemental considerations of whether limited unpaid copying of excerpts will deter authors from creating new academic works and whether slight limitation of permissions income caused by defendants' fair use would promote spread of knowledge and would not appreciably diminish plaintiffs' ability to publish scholarly works, were not actually supplemental, and as such should have been considered within existing statutory framework -- Attorney's fees -- Prevailing party -- Because district court's designation of defendants as prevailing party and consequent award of attorney's fees and costs were predicated on its erroneous fair use analysis, reversal of award of attorney's fees and costs to defendants is appropriate
CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., SAGE PUBLICATIONS, INC., Plaintiffs-Appellants, v. CARL V. PATTON, et al., Defendants, J. L. ALBERT, in his official capacity as Georgia State University Associate Provost for Information System and Technology, MARK P. BECKER, in his official capacity as President of Georgia State University, KENNETH R. BERNARD, JR., in his official capacity as member of the Board of Regents of the University System of Georgia., ROBERT F. HATCHER, in his official capacity as Vice Chair of the Board of Regents of the University System of Georgia, W. MANSFIELD JENNINGS, JR., in his official capacity as member of the Board of Regents of the University System of Georgia, JAMES R. JOLLY, in his official capacity as member of the Board of Regents of the University System of Georgia, et al., Defendants-Appellees. 11th Circuit.


Creditors' rights -- Collection efforts under Terrorism Risk Insurance Act by victims of kidnapping by terrorist organization against agencies or organizations of terrorist organization (claimants) to recover default judgment entered in favor of victims against terrorist organization -- Due process -- Claimants were entitled to actual notice and to be heard before execution, though not necessarily before attachment -- TRIA does not preempt Florida law, and judgment creditors seeking to satisfy judgments under it must follow notice requirements of Florida law -- District court used proper standard to find claimants to be agencies or instrumentalities of terrorist organization -- Assets of claimants were blocked when Office of Foreign Assets Control designated claimants as Special Designated Narcotics Traffickers -- OFAC's de-listing of claimants did not operate retroactively to put their assets out of plaintiffs' reach because they were no longer blocked -- There is no merit to contention that means by which plaintiffs moved against claimants' assets constituted fraud -- Reassignment to different district court judge on remand is unnecessary -- Turnover judgment against one claimant reversed, as writ of garnishment was filed after claimant's de-listing by OFAC, so that claimant's assets were not blocked -- District court judgment as to other claimants affirmed
KEITH STANSELL, MARC GONSALVES, THOMAS HOWES, JUDITH G. JANIS, CHRISTOPHER T. JANIS, GREER C. JANIS, MICHAEL I. JANIS, JONATHAN N. JANIS, Plaintiffs-Appellees, v. REVOLUTIONARY ARMED FORCES OF COLOMBIA, (FARC), et al., Defendants, JOSE RICUARTE DIAZ HERRERA, Claimant-Appellant, WACHOVIA BANK, a Division of Wells Fargo Bank, N.A., et al., Garnishees, MERCURIO INTERNATIONAL S.A., et al., Claimants. 11th Circuit.


Wrongful death -- Product liability -- Tobacco -- Evidence -- In wrongful death action against cigarette manufacturer, district court abused discretion by excluding evidence of decedent's alcohol abuse -- District court improperly shifted burden of proof by forcing defendant to prove that decedent's death was caused by something other than smoking -- District court applied wrong legal standard in requiring testimony offered by defendant regarding alternative causes be to a reasonable degree of medical certainty, rather than the “more likely than not” standard, and placed the burden of proof as to causation on the wrong party -- Decedent's alcohol abuse was an essential part of defendant's attempt to show that something other than his smoking could have caused his death -- Decedent's alcohol abuse was relevant to cause of death, to determination of comparative fault, and to damages -- Prejudicial effect of evidence of alcohol abuse did not outweigh probative value
THELMA AYCOCK, as Personal Representative of the Estate of Richard Aycock, Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, Defendant-Appellant, PHILIP MORRIS USA, INC., et al, Defendants. 11th Circuit.


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