Wednesday, March 31, 2010

Federal Judge Finds N.S.A. Wiretapping Program Illegal

Published: March 31, 2010 New York Times
A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush. . . . .

Tuesday, March 30, 2010

New flavors of the week

Rules of Civil Procedure -- Amendments -- General Rules of Pleading -- Verification of mortgage foreclosure complaints involving residential real property -- Forms -- Affidavit of diligent search and inquiry -- Final judgment of foreclosure -- Motion to cancel and reschedule foreclosure sale
Reported at 35 Fla. L. Weekly S97b

Civil procedure -- Relief from judgment -- Insurance -- Where plaintiff's complaint alleged that bouncers at defendant's bar and club assaulted and battered him, defendant's liability insurer denied coverage on basis that complaint alleged an intentional tort, and trial court confirmed arbitration award which found that defendant was negligent and entered final judgment on the award, it was error to grant plaintiff's motion to vacate final judgment which asserted that due to inadvertence or error, the arbitration award should not have been entered because the liability insurance company should be made a party to the claim -- Although rule 1.540 authorizes trial court to vacate final judgment on basis of negligent mistake or error, rule is not intended to provide relief for judgmental mistakes or tactical errors of counsel
Reported at 35 Fla. L. Weekly D342a

Contracts -- Home construction -- Retention of purchase deposit after buyer cancelled due to delay that was neither party's fault -- Consumer law -- Section 501.1375, which requires a building contractor or developer to hold certain deposits of a prospective buyer of a one- or two-family residential dwelling unit in an escrow account unless the buyer waives the escrow requirements in writing, does not apply to general contractor who contracts to build single-family residence upon land owned by the consumer at the time the contract was signed
Reported at 35 Fla. L. Weekly D331a

Contracts -- Real property sale -- Specific performance -- Where purchasers brought action for specific performance of initial contract for sale of property, and court found that initial contract was superceded by subsequent contract in a novation, it was error for court to sua sponte amend pleadings to substitute later contract for contract specified in pleadings and to grant specific performance on the later contract without providing defendant opportunity to respond to the complaint as amended
Reported at 35 Fla. L. Weekly D320a

Contracts -- Real property sale -- Rescission of contract -- Violation of Interstate Land Sales Full Disclosure Act by failing to deliver copy of property report to purchaser before she signed purchase contract -- Exemptions -- Developer of residential community was exempted from ILSA's disclosure requirements because language in purchase and sale contract extending construction completion period for delays caused by specified events or “any other similar causes not within Seller's control” did not render developer's obligation to complete construction of residence within two years illusory
Reported at 35 Fla. L. Weekly D337c

Criminal law -- Conspiracy to commit home invasion robbery -- Jury instructions -- Uncharged act -- Where defendant was charged with conspiring with a named individual to commit crime of home invasion robbery, it was error to instruct jury that it could find defendant guilty if he conspired with the named individual “and/or another black male” -- It is fundamental error to instruct the jury that defendant may be convicted for uncharged acts
Reported at 35 Fla. L. Weekly D339b

Criminal law -- First degree murder -- Kidnapping -- Burglary of dwelling -- Aggravated stalking -- Argument -- Claim that prosecutor impermissibly shifted to defendant the burden of proving essential element of crime by misstating that if jury believed beyond a reasonable doubt that the victim was not dead, they should acquit defendant was not preserved for review by contemporaneous objection, and misstatement did not constitute fundamental error -- Misstatement occurred only once and was not intentional, and jury was repeatedly told that state had burden of proving that victim was dead
Reported at 35 Fla. L. Weekly D355b

Criminal law -- Jurors -- Peremptory challenge -- Gender discrimination -- State's explanation that it had a bad feeling about juror was not a valid gender-neutral explanation for strike of last male on panel -- Trial court erred in upholding strike based upon fact that state had struck an equal number of male and female jurors -- It is improper for court to consider overall makeup of jurors that have been seated in determining sufficiency of gender-neutral reason for peremptory strike -- Issue was properly preserved for appeal -- When court reconsidered defendant's objection to strike, it was not necessary for defendant to renew his objection
Reported at 35 Fla. L. Weekly D321a

Criminal law -- Murder -- Jury -- Questions -- Trial judge abused his discretion by responding to jury's question about the availability of transcripts in the negative, without advising the jury about the potential for read backs of witnesses' testimony, ignoring the request of both the state and defense -- Conflict certified -- Trial judge's apparent adoption of an ad hoc rule prohibiting read backs amounted to a failure to exercise the discretion granted to trial judges in this area -- Error was not harmless -- Evidence -- Confession -- State presented sufficient evidence to establish corpus delicti independently of defendant's confession
Reported at 35 Fla. L. Weekly D328a

Dissolution of marriage -- Child support -- Error to include in husband's income, for purpose of calculating child support, anticipated annual financial gifts which husband's mother had historically made to minor children for their education
Reported at 35 Fla. L. Weekly D327a

Criminal law -- Murder -- Death penalty -- Post conviction relief -- Ineffectiveness of counsel -- No error in denying claim that trial counsel was ineffective for failing to object to several allegedly improper prosecutorial statements made during closing argument -- Prosecutor's comments were insufficient to undermine confidence in outcome as required under Strickland prejudice standard -- No error in denying relief on claim that post conviction judge erred by not allowing defendant's expert to testify to prevailing norms of effective representation in capital cases relevant to defendant's proceeding -- No merit to claim that counsel was deficient in failing to timely discover and introduce testimony of witness that allegedly would have testified that defendant confided to him that defendant had been sexually abused as child, and that this testimony would have refuted claim that defendant recently fabricated his claims of abuse -- No error in denying claim of ineffectiveness in failing to convey negative impact on possible mitigation which resulted from plea agreement retraction and for failing to seek enforcement of plea offer -- By failing to demonstrate that additional witnesses would have testified and what those witnesses would have said, failing to explain how that testimony would improve on testimony that was given in case, and failing to explain how additional testimony would interact with other evidence and circumstances of case, defendant failed to establish that he suffered prejudice from counsel's alleged deficiencies -- Ring v. Arizona claim is procedurally barred as it was raised and rejected on direct appeal, and even if claim were not barred, it is rejected
Reported at 35 Fla. L. Weekly S106a

Criminal law -- Murder -- Death penalty -- Identification -- No error in denying motion to suppress photographic and live lineup identifications because law enforcement did not offer assistance of counsel -- Because photographic and live lineups occurred before any charges were filed against defendant, they were not critical stages of proceedings and did not trigger right to counsel -- Counsel -- Trial court made sufficient inquiry into defendant's complaint that counsel had been given names of alibi witnesses but had never spoken with these witnesses -- Defense counsel adequately explained her investigator's discussions with the alibi witnesses and her decision not to pursue their use as witnesses -- No error occurred in allowing defense counsel to respond to this issue in camera, out of earshot of defendant and state -- Sentencing -- No error in instructing jury on avoid arrest aggravator where state presented competent substantial evidence to support the aggravator, notwithstanding fact that trial court ultimately declined to find this aggravating circumstance -- Death penalty was proportionate -- Evidence was sufficient to support convictions
Reported at 35 Fla. L. Weekly S108a

Dissolution of marriage -- Trial court erred in denying wife's motion to enforce parties' consent final judgment -- Property settlement agreement that has been incorporated into final judgment of dissolution is non-modifiable, regardless of either party's financial position -- Where final judgment did not contain a reservation of jurisdiction, trial court lacked authority to change terms of contract parties had agreed to and the court had adopted -- Emails exchanged between parties' attorneys did not form a novation where there was no evidence that parties intended to form a new contract -- Where final judgment of dissolution provides for the transfer of assets, it is the responsibility of the spouse in possession of those assets to effectuate the transfer
Reported at 35 Fla. L. Weekly D340a

Insurance -- Subrogation -- Rental dwelling policy -- Subrogation action against tenant by insurer which had paid insured landlord for fire damage to leased premises, alleging that tenant's negligence caused the fire -- Error to enter summary judgment for defendant tenant on ground that tenant was an implied co-insured under landlord's insurance policy and that insurer cannot seek subrogation against its own insured or co-insured -- In order to determine whether landlord's insurer may bring a subrogation action against a negligent tenant, the lease as a whole is to be examined in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant's negligence -- Insurer should be allowed to proceed with its subrogation action against tenant because parties did not in unequivocal terms in the lease intend to limit tenant's liability for negligent acts
Reported at 35 Fla. L. Weekly D352a

Mortgage foreclosure -- Relief from judgment -- Trial court did not abuse discretion in denying motion to vacate default judgment and relief from final judgment of foreclosure -- Process server's affidavit of diligent search was facially sufficient to uphold service of process by publication -- There was sufficient competent evidence to conclude that diligent search was conducted to locate an address for defendant who resided at an undisclosed location in the Bahamas -- Foreclosure sale to bona fide purchaser cannot be set aside
Reported at 35 Fla. L. Weekly D348a

Torts -- Parochial high school was not liable for injuries suffered by student in automobile accident that occurred while student was driving automobile after consuming alcohol at an end-of-year party at a private residence -- Party at which student consumed alcohol was not a school sponsored or school related event -- Neither school principal's visit to private residence during party nor school's handbook regarding such parties created a duty on part of school pursuant to undertaker's doctrine -- Trial court erroneously struck defendant's affirmative alcohol or drug defense on the ground that the defense was not applicable because the student's parents, not the student, were the plaintiffs -- Trial court abused discretion in excluding records and testimony relating to student's treatment for alcohol abuse -- Judgment for plaintiffs reversed
Reported at 35 Fla. L. Weekly D344a

Torts -- Workers' compensation immunity -- Where defendant denied plaintiff's workers' compensation claim on the basis that plaintiff's condition was not the result of an injury by accident arising out of and in the course and scope of employment, defendant was estopped from raising workers' compensation exclusivity defense in plaintiff's negligence action -- Because defendant asserted irreconcilable positions as to whether plaintiff's injury occurred in the course and scope of his employment, trial court properly ruled that defendant was not entitled to workers' compensation exclusivity defense as a matter of law
Reported at 35 Fla. L. Weekly D342b

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Thursday, March 25, 2010

Supreme Court Rules for Student Seeking Discharge of Loan Debt

Posted on ABA Law News Now:
Posted Mar 23, 2010 10:00 AM CDT
By Debra Cassens Weiss
In a unanimous opinion, the court said the bankruptcy court could discharge the debt even though the former trade school student, Francisco Espinosa, had failed to allege undue hardship. . . .

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Thursday, March 18, 2010

Some interesting congressional developments in the health law and insurance areas

Some interesting developments in the health law and insurance areas:
H Res 1188 ( Griffith, D-AL), ensuring an up or down vote on certain health care legislation; to Rules. H1595, CR 3/17/10.

The Oversight and Investigations Subcommittee, House Energy and Commerce Committee, will hold a hearing titled “Pre-Existing Conditions in the Individual Health Insurance Market.” 3/23/10, 10 am, 2123 Rayburn.

HR 4803 (Barton, R-TX), to ensure health care consumer and provider access to certain health benefits plan information and to amend Title XIX of the Social Security Act to provide transparency in hospital price and quality information; to Energy and Commerce. H1322, CR 3/10/10.

HR 4808 (DeGette, D-CO), to amend the Public Health Service Act to provide for human stem cell research, including human embryonic stem cell research; to Energy and Commerce. H1323, CR 3/10/10.

HR 4813 (Berry, D-AR), to provide for insurance reform (including health insurance reform), to amend Title XVIII of the Social Security Act to reform Medicare Advantage and reduce disparities in the Medicare Program, and to regulate the importation of prescription drugs; to Energy and Commerce. H1323, CR 3/10/10.

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Tuesday, March 9, 2010

Arbitration, automobiles, coverage, mortgages al dente

Attorney's fees -- Contracts -- Prevailing defendant in collection action based on contract that provides for recovery of attorney's fees is entitled to award of fees -- Justiciable issues -- Motion seeking attorney's fees under section 57.105(1) on grounds that plaintiff could not recover because it is unlicensed contractor was not required to state that plaintiff has 21 days to withdraw complaint and avoid sanctions -- It was not necessary for defendant to re-file motion for attorney's fees after plaintiff amended complaint where amendment did not alter claim for breach of contract, which remained meritless -- Defendant is not entitled to award of section 57.105(1) attorney's fees where plaintiff and his attorney knew or should have known that plaintiff did not have general contractor's license, but evidence does not establish that they knew or should have known that general contractor's license was required

Contracts -- Automobile sale -- Arbitration clause -- Validity -- Arbitration clause that waives buyer's right to seek punitive damages or pursue action under consumer protection statutes with fee-shifting provisions and prohibits class relief is substantively unconscionable -- Clause is also procedurally unconscionable where contract is in English but buyer barely speaks English, salesman did not furnish buyer with copy of contract, salesman rushed buyer into signing contract without disclosing that buyer was purchasing older vehicle with substantially more mileage than vehicle buyer had originally selected, and buyer was confronted with “take it or leave it” proposition to take substituted car or forfeit deposit -- Arbitration clause is unenforceable

Contracts -- Shipping -- Action by carrier against shipper for unpaid transportation charges paid by shipper to now-insolvent trucking broker which did not forward payment to carrier -- Where there was no credible evidence that carrier agreed to look solely to now-insolvent trucking broker to be paid, shipper is not relieved of liability to pay carrier

Attorney's fees -- Arbitration -- Trial de novo following court-ordered nonbinding arbitration -- Trial court correctly refused to hold individual who controlled corporate plaintiff liable for fees incurred in trial de novo, which was requested by the corporate plaintiff which had received favorable arbitration award but which did not prevail in trial de novo, where, by stipulation, the individual had been voluntarily dismissed from the lawsuit before trial, so that, under applicable statute, he was not a “party” subject to a fee award -- Moreover, language of stipulated dismissal stated that parties agreed to bear their own attorney's fees and costs incurred with respect to the claim and the parties that were being dismissed with prejudice and, accordingly, circuit court was without jurisdiction to reconsider attorney's fees claim after trial against the plaintiffs who were dismissed from the lawsuit
Reported at 35 Fla. L. Weekly D250a

Contracts -- Resort Affiliation Agreement between developer of interval ownership resort and company in the business of providing time share exchange services that provided for the inclusion of the resort in an interval network, a vacation exchange service to facilitate the exchange of accommodations between owners of time share or other vacation ownership interests at participating resorts -- Trial court properly entered summary judgment for defendant in developer's action seeking declaration that contract is not in force or that defendant breached implied covenant of good faith and fair dealing -- Mutuality of obligations -- Agreement is not rendered illusory because of fact that defendant reserved right to modify terms and conditions of interval network in its sole discretion where agreement delineated specific contractual duties owed by defendant to plaintiff which did not comprise the terms and conditions of the interval network itself -- Defendant's modification of the interval network would not relieve it of its obligations to plaintiff -- Even if there were a lack of mutuality of obligation at the inception of the contract, the lack of mutuality was cured by the parties' subsequent performance according to the terms of the agreement -- Where agreement provided that it would automatically renew for a second term at the end of the initial term unless a party provided written notice of its intent not to renew, and plaintiff failed to provide such notice, the agreement did not expire by its own terms -- Defendant is not equitably estopped from asserting that the agreement automatically renewed where there was no representation by defendant that reasonably indicated to plaintiff that it was relieved of its obligation to give defendant timely written notice of its intent not to renew -- Defendant did not breach implied covenant of good faith and fair dealing by revoking plaintiff's Five Star resort rating where there was nothing in agreement which obligated defendant to confer such rating -- Trial court did not abuse discretion in granting defendant leave to amend its answer to assert claim for attorney's fees
Reported at 35 Fla. L. Weekly D252a

Mortgages -- Capacity to sue -- Where plaintiff has failed to plead or specify in what capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has not pled capacity to sue -- Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint -- Case dismissed without prejudice

Mortgages -- Foreclosure -- Standing -- Motion for final judgment of foreclosure denied -- Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action -- Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage -- Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge

Torts -- Arbitration -- Arbitrable issues -- Action by purchasers of home against contractors, alleging that personal injuries suffered by plaintiffs from mold exposure were caused by negligent design and construction of the home -- Trial court properly compelled arbitration where arbitration provision in purchase agreement mandated arbitration of claims of defects in the home and claims for personal injury
Reported at 35 Fla. L. Weekly D245a

Insurance -- Commercial general liability -- Coverage -- Insurance dispute arising out of state court slip-and-fall suit against underlying defendants that culminated in Coblentz agreement, which was subsequently reduced to consent judgment -- Duty to defend -- Insurer was relieved of its duty to defend, given the omission in underlying complaint of plaintiff's uncontroverted receipt of workers' compensation benefits and her employment status and the impairment of insurer's right to assess plaintiff's claims and exercise control over litigation before parties entered into Coblentz agreement -- Insurer is therefore entitled to judgment as matter of law that it has no obligation to reimburse plaintiff or insured for any defense costs or attorney's fees incurred in underlying litigation -- Duty to indemnify -- Even assuming, arguendo, that insurer had duty to defend, workers' compensation and employer's liability exclusions in CGL policy issued to underlying defendants preclude coverage for plaintiff's state law claims where plaintiff's injuries comprised “an obligation of the insured under a workers' compensation law” and “arose out of and in the course of her employment” by insured -- Insurer is entitled to judgment as matter of law that it has no duty to indemnify plaintiff or its insureds for plaintiff's injuries or for consent judgment entered in underlying tort action
Reported at 22 Fla. L. Weekly Fed. D137a

Contracts -- Motion for relief from default judgment entered in action by company providing sitework and fill material against contractor and owner of construction site -- Contract attached to complaint for foreclosure of mechanic's lien, breach of contract and quantum meruit is inadequate for failure to attach change orders that materially affect amount owed on contract, but not for failure to attach plan drawings -- Mechanic's lien -- Where exhibit attached to complaint contradicts statement in complaint that notice was provided within one year of date plaintiff first provided labor, services or material to defendant, exhibit controls and nullifies allegation that plaintiff complied with statutory prerequisites to impose and foreclose mechanic's lien -- Failure to state cause of action for foreclosure of mechanic's lien and breach of contract is fatal deficiency in complaint warranting setting aside judgment -- Where contract is not for fixed amount, and amount defendant owes plaintiff can only be determined by reference to evidence outside contract, plaintiff's damages were unliquidated when judgment was entered, and defendants were entitled to notice and opportunity to be heard on amount owed -- Judgment and all events that flowed from it are declared void ab initio

Civil rights -- Sexual discrimination -- Employment -- Hostile work environment -- District court erred in granting summary judgment in favor of employer where, in addition to evidence of general, indiscriminate vulgarity, plaintiff presented ample evidence of gender-specific, derogatory comments made about women on account of their sex to permit reasonable jury to find that workplace exposed plaintiff to disadvantageous terms or conditions of employment to which members of the other sex were not exposed -- Remand for further proceedings
Reported at 22 Fla. L. Weekly Fed. C477a

Racketeering -- City's action against company which sells cigarettes online to residents of city, alleging business failed to comply with federal law requiring out-of-state vendors to submit customer information to states into which they ship cigarettes, which information was forwarded by state to city for use in tracking down cigarette purchasers who do not pay their taxes, and thereby committed mail and wire fraud which ultimately caused city to lose revenue in form of unrecovered cigarette taxes -- Because city cannot show that it lost tax revenue “by reason of” defendant's alleged RICO violation, city cannot state claim under RICO -- City was required to show that predicate offense “not only was a ‘but for' cause of his injury, but that it was the proximate cause as well,” and proximate cause for RICO purposes requires some direct relation between injury asserted and injurious conduct alleged -- City's causal theory cannot satisfy RICO's direct relationship requirement
Reported at 22 Fla. L. Weekly Fed. S113a

Torts -- Death resulting from traffic collision in Iraq with truck operated by defendant, which was incorporated under Kuwaiti law and had its principal place of business in Kuwait -- Civil procedure -- Default -- Vacation -- No error in vacating default judgment, which was entered against foreign defendant for failure to appear or otherwise answer after service, after district court conducted evidentiary hearing on personal jurisdiction and concluded that the defendant lacked minimum contacts with Georgia sufficient to support jurisdiction under Georgia's long-arm statute -- Defendant did not waive challenge to personal jurisdiction by ignoring service, retaining counsel in the United States, monitoring court proceedings, and then filing motion to vacate judgment after default judgment was rendered against it -- Defendant did not waive personal jurisdiction defense by entering into contracts with U.S. government that contained section of Federal Acquisition Regulation requiring contractors to maintain liability insurance to indemnify and hold harmless the government against third-party injury and property loss claims
Reported at 22 Fla. L. Weekly Fed. C473a

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