Friday, January 21, 2011

Peppered shrimp with lemon, capers and criminal law

Attorney's fees -- Proposal for settlement -- Contracts -- Prevailing party -- Mutuality of obligation -- Action against seller of business and real property by broker and co-broker who alleged they had fully performed brokerage commission agreement with seller by producing ready, willing and able buyer -- Seller's proposals for settlement were not ambiguous in this case for failing to include language stating which side would pay the amount offered or failing to clarify, in one paragraph, whether proposals applied to claims “in this action” as opposed to claims which may have accrued in the future -- Good faith -- Offer of $500 on commission claim which plaintiffs claimed was worth $300,000 bore reasonable relationship to amount of damages and realistic assessment of liability where seller contended that brokerage commission contract was unenforceable because the contract with the potential buyer was unenforceable -- Seller was entitled to recover its attorney's fees against contracting broker pursuant to section 57.105(7), which provides for reciprocal recovery of attorney's fees under contractual prevailing party provision -- Seller was not entitled to recover its attorney's fees against co-broker as intended third-party beneficiary of broker agreement containing prevailing party attorney's fees provision where contract between seller and broker did not express an intent to primarily and directly benefit co-broker, but simply mentioned that broker could co-broker the listing -- Co-broker, which alleged in complaint that it was third-party beneficiary of contract between brokerage and seller, not judicially estopped from denying status as third-party beneficiary of contract where co-broker did not successfully maintain that position in circuit court -- Costs -- Error to deny prevailing seller's motion for taxable costs against brokers

LAND & SEA PETROLEUM, INC., Appellant, v. BUSINESS SPECIALISTS, INC. and CONTINENTAL BUSINESS, INC., Appellees. 4th District.


Baker Act -- Involuntary commitment under Baker Act of defendant who had been found incompetent to stand trial on criminal charges -- Although evidence supports finding that defendant suffers from psychotic disorder, evidence was insufficient to support finding that defendant is suffering from “ongoing” psychosis -- Trial court properly found that defendant meets criteria for involuntary inpatient placement under Baker Act where evidence showed that there is a substantial likelihood that defendant will inflict serious bodily harm on himself or others, that defendant is manifestly incapable of surviving alone, that without treatment, defendant is likely to suffer from neglect or refuse to care for himself which would pose a real threat of substantial harm to himself or others, and that placement with defendant's family was not appropriate -- Defendant's due process rights were violated when his counsel's request to present closing argument at evidentiary hearing was denied -- Remand to allow parties' attorneys to make closing arguments

EDWIN BURLEY, Appellant, v. THE STATE OF FLORIDA, Appellee. 3rd District.


Civil procedure -- Dismissal -- Failure to prosecute -- Good cause -- Plaintiff did not file timely showing of good cause where showing of good cause was filed four days before hearing on Notice of Lack of Prosecution -- Rule 1.420(e) provides that showing of good cause must be made “at least 5 days before the hearing,” and rule establishes a bright line for providing good cause -- Error to deny motion to dismiss for lack of prosecution

JAMES E. TURNER, Appellants, v. FIA CARD SERVICES, N.A., etc., Appellee. 3rd District.


Criminal law -- Conspiracy to commit first-degree murder -- Limitation of actions -- Where victim was killed, but defendant was acquitted of murder charge and convicted of conspiracy to commit murder, prosecution of defendant for conspiracy to commit murder could be brought at any time -- Because defendant was convicted of a felony that resulted in a death, amended statute of limitations, providing that such prosecutions may be brought at any time, is applicable -- Acquittal of defendant on substantive murder charge did not prevent a finding that the conspiracy resulted in a death -- Prosecution was not barred by statute of limitations

MANUEL CALDERON, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.


Criminal law -- Search and seizure -- Search of vehicle incident to arrest of driver -- Good faith exception to exclusionary rule -- Under precedent established by U.S. Supreme Court in Arizona v. Gant, several weeks after search in question, the search of defendant's vehicle incident to her arrest was unlawful where the search was conducted after defendant was handcuffed and in officers' patrol car -- Although trial court properly found that search was unlawful, it was error to grant motion to suppress where officers, in conducting search, relied in good faith on well-settled case law predating the decision in Arizona v. Gant in conducting the search

STATE OF FLORIDA, Appellant, v. KRISTY LYNN HARRIS, Appellee. 1st District.


Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Petitioner was not entitled to habeas relief ordered by Court of Appeals, where state-court decision concluding that defendant had not established ineffective assistance of counsel under Strickland was not unreasonable application of either part of Strickland rule -- Under 28 U.S.C. section 2254(d), federal habeas relief may not be granted with respect to any claim a state court has adjudicated on the merits, unless, among other exceptions, state-court decision denying relief involves “an unreasonable application” of “clearly established Federal law, as determined by” U.S. Supreme Court -- The relevant clearly established federal law is standard for ineffective assistance of counsel under Strickland, which requires a showing of “both deficient performance by counsel and prejudice”

JEFF PREMO, SUPERINTENDENT, OREGON STATE PENITENTIARY, Petitioner v. RANDY JOSEPH MOORE. U.S. Supreme Court.


Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Section 2254(d), which, as amended by Antiterrorism and Effective Death Penalty Act, limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court proceedings, applies to petition for federal habeas relief when state court's order denying relief is unaccompanied by an opinion explaining the court's reasoning -- Petitioner was not entitled to the habeas relief ordered by Court of Appeals, where that court failed to accord the required deference to decision of state court adjudicating same claims later presented in federal habeas petition, and Court of Appeals erred in concluding that petitioner demonstrated an unreasonable application of Strickland by the state court when state court summarily denied claim that counsel was ineffective for failing to present expert testimony on blood evidence

KELLY HARRINGTON, WARDEN, Petitioner v. JOSHUA RICHTER. U.S. Supreme Court.


Dissolution of marriage -- Child support -- Modification -- Error to find that each party should be responsible for half of child's unreimbursed medical expenses -- Where noncovered expenses were not factored into the child support guidelines calculations, responsibility for expenses should be apportioned based on parties' relative incomes

MICHELLE ROWE f/k/a MICHELLE BORYSEK-RODRIGUEZ, Appellant, v. JOSE A. RODRIGUEZ-SCHMIDT, Appellee. 2nd District.


In re Fidler ,(Bkrtcy.D.Nev.)

Bankruptcy - Debtor's discharge did not foreclose "bad check" prosecution.

While a bankruptcy court could not enjoin a prosecutor from pursuing "bad check" charges against a discharged debtor, for writing insufficient funds checks toward debts later discharged in bankruptcy, it could sanction the complaining witnesses to the extent that it found that they were attempting to do an end-run around the debtor's discharge by attempting to collect discharged debts as restitution. Thus, while denying the debtor's motion for injunctive relief to preclude the state criminal prosecution from proceeding, the court retained jurisdiction to consider possible sanctions against the complaining witnesses up to and including disgorgement of any restitution that might result from the debtor's conviction on the relevant charges.


Liens -- Mechanic's lien may not be imposed against condominium association encumbering condominium units for amount owed for cleaning, maintenance, concierge, and security services -- Mechanic's lien statute is to protect those who have provided labor and materials for the improvement of property, and services provided by plaintiff did not improve property -- Plaintiff does not have independent right to claim of lien under section 718.121, Florida Statutes

PARC CENTRAL AVENTURA EAST CONDOMINIUM, etc., Appellant, v. VICTORIA GROUP SERVICES, LLC, et al., Appellees. 3rd District.


Mortgage foreclosure -- Default -- Vacation -- Trial court erred in denying motion to vacate default against junior mortgagee which had been joined as defendant in foreclosure action where junior mortgagee demonstrated excusable neglect, due diligence, and a meritorious defense -- In order for a party moving to set aside a default to demonstrate a meritorious defense the movant need only show that the defense is meritorious, not that it is likely to succeed -- Affirmative defenses, even when pled with minimal specificity, can qualify as meritorious

HOUSEHOLD FINANCE CORPORATION, III, Appellant, v. HENRY FRED MITCHELL, SR., DAVID W. PADOT, SR., and MARY ANN PADOT, his wife; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, OR AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AS INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; JOHN DOE and JANE DOE as unknown tenants in possession, and ANNE BARNETT; UNITED STATES OF AMERICA; and THE RIVERWALK OF FANNING SPRINGS HOMEOWNERS ASSOCIATION, INC., Appellees. 1st District.


Torts -- Medical malpractice -- Action which, in part, alleged that defendant laboratory was negligent in handling plaintiff's malignant tissue sample which got mixed up with tissue sample that was not malignant from another patient, with result that plaintiff was informed incorrectly that tissue sample was not malignant until she was informed of mistake seven months later -- Discovery -- Appeals -- Certiorari -- Review denied with respect to portions of trial court's orders requiring defendant diagnostic lab to produce information from medical records of the other patient, while protecting that patient's identity, because discovery request could lead to discovery of admissible evidence which was relevant to mix-up of tissue samples -- Trial court departed from essential requirements of law by requiring production of names and last known addresses of all medical providers known by lab to have treated the other patient and by allowing plaintiff's attorney and photographer to enter onto lab's premises

QUEST DIAGNOSTICS INCORPORATED, Petitioner, v. MARIA RAPIO, Respondent. 3rd District.


Privacy -- Disclosure of personal information -- Action by contract employees at National Aeronautics and Space Administration facility challenging questions on standard background check relating to employee's drug involvement and drug treatment or counseling received by employee and also challenging questionnaire form sent to employee's references that asks open-ended questions about whether they have “any reason to question” employee's “honesty or trustworthiness” or have “adverse information” concerning a variety of other matters -- Assuming, without deciding, that Constitution protects privacy interest in avoiding disclosure of personal matters, portions of government's background check challenged in present case do not violate this right -- Government's interests as employer and proprietor in managing its internal operations, combined with protections against public dissemination provided by Privacy Act, satisfy any “interest in avoiding disclosure” that may “arguably ha its roots in the Constitution”

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, et al., Petitioners v. ROBERT M. NELSON et al. U.S. Supreme Court.


U.S. v. Hall,(D.Me.)

Writs - United States could garnish debtor's funds to enforce criminal judgment requiring payment of costs of prosecution.

The garnishment method chosen by the United States to enforce a valid criminal judgment against the debtor for tax evasion, which imposed as part of the sentence an order that he pay a particular amount as costs of prosecution, was an enforcement mechanism available and authorized under federal law and therefore a writ of garnishment could issue listing the state as garnishee of debtor's non-exempt funds, which had been seized pursuant to a search warrant and controlled by state.


U.S. v. Diaz ,(C.A.11 (Ga.))

Criminal Justice - Government bore burden of proof in seeking order requiring that schizophrenic defendant be involuntarily medicated.

Joining most of the other Circuits that have addressed the issue and disagreeing with a contrary Tenth Circuit decision, the Eleventh Circuit Court of Appeals held that a district court's finding, in support of an order requiring that a defendant be involuntarily medicated, that the government had an important interest in proceeding to trial on the armed bank robbery charges against him, was a conclusion of law reviewable de novo, while the district court's findings on the other Sell factors were factual findings reviewable for clear error. The Eleventh Circuit also held that the government, as the party seeking to involuntarily medicate the defendant to render him competent to stand trial, bore the burden of proof on the factual findings needed to support an involuntary medication order, and had to satisfy that burden by clear and convincing evidence.


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