Sunday, November 30, 2014

Slain woman's family alleges AA meetings point 'financial, sexual, and violent predators' to victims

A California wrongful death lawsuit claims that AA, a nonprofit organization known for its 12-step program, attracts some "who find it a convenient place to meet targets for a so-called “13th step”–exploiting troubled women sexually and financially...The suit was filed by the parents of a woman who was allegedly killed by a fellow [AA] participant, Eric Allen Earle. His ex-wife and others close to him said he repeatedly relapsed and became violent when drinking, and court records show he had been the subject of six restraining orders."  More.

Originally posted by Martha Neil in ABA Journal News.

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Monday, November 24, 2014

Trademarks, civil rights, and rib roast with green peppercorn-coffee-rosemary-garlic rub over sweet potato mash

Civil rights -- Due process -- Colleges and universities -- Former tenured university professor brought complaint under 42 U.S.C. section1983 alleging his termination failed to comport with procedural due process -- District court did not err in granting defendants' motion to dismiss on ground that plaintiff could not state a plausible claim for relief under Section 1983 with respect to his procedural due process claim -- Plaintiff was afforded adequate procedural due process prior to revocation of his tenure and termination of his employment where he received prior, written notice of charges against him; was represented by counsel at formal hearing before an unbiased faculty committee; presented argument and evidence on his own behalf, including cross-examination of witnesses against him; had a right to appeal his termination to Board of Regents; and submitted a written appeal to Board of Regents -- Lack of a requirement that plaintiff also receive a hearing before university president, that president review and rely on findings of faculty hearing committee or evidence presented at such hearing before making a final decision, or that plaintiff receive an in-person meeting with Board of Regents prior to his termination did not deprive plaintiff of a meaningful opportunity to be heard -- Jurisdiction -- District court had jurisdiction to consider plaintiff's procedural due process claim because plaintiff's federal action under Section 1983 was not barred by doctrine of res judicata and his procedural due process claim was actionable under Section 1983
JOY LASKAR, Ph.D., Plaintiff-Appellant, v. G.P. “BUD” PETERSON, individually and in his official capacity as President of the Georgia Institute of Technology, a Unit of the University System of Georgia, et al., Defendants-Appellants. 11th Circuit.

Contracts -- Real property sale -- Failure to consummate contract -- Purchaser's contract claims for damages and specific performance based on failure to consummate contract for purchase of residential property are barred by remedies limitation provision of the residential contract -- Remedies limitation provision does not contain an unreasonable disparity in remedy alternatives available to parties and thus does not lack mutuality and is enforceable -- Parties' respective remedies are not unreasonably disparate, as pertaining to the failure to consummate sale of residential property, where remedies provision limits purchasing party's remedies for seller's failure to consummate the sale to return of its deposit and out-of-pocket expenses and seller's sole and exclusive remedy for purchaser's failure to consummate the contract was terminating the contract and retaining the earnest money, thus foregoing option of enforcing contract and seeking actual damages or specific performance
INLET BEACH CAPITAL INVESTMENTS, LLC, US 98 CAPITAL INVESTMENTS, LLC, DAVID R. PEARSON, Plaintiffs-Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for Peoples First Community Bank Panama City, Florida, a.k.a. FDIC, Defendant-Appellee. 11th Circuit.

Contracts -- Sales -- Accounting -- A Saudi Arabian company that contracted with a Florida-based aircraft parts dealer to sell aircraft parts on consignment sued its contracting party for breach of contract and conversion and requested an accounting -- District court abused discretion when it refused to grant plaintiff an accounting to determine amount, if any, due from defendant -- District court failed to recognize that the fiduciary nature of relationship between parties alone constituted sufficient grounds for an accounting under Florida law and erroneously concluded that an action for damages afforded an adequate remedy at law -- A court-directed accounting was appropriate remedy where defendant, as a consignee, had a fiduciary obligation to account for its handling of plaintiff's parts, parties' contracts explicitly spelled out defendant's duty to keep complete and accurate records and plaintiff's right to review those records, and defendant concededly failed to comply with its accounting and reporting obligations -- A court-directed accounting was proper remedy because plaintiff's breach of contract claim did not constitute an adequate remedy at law where discovery could not provide the means to force defendant, who possessed all relevant details regarding disposition of goods and who had substantial motivation to frustrate discovery process, to disgorge the requisite information for plaintiff to prove damages
ZAKI KULAIBEE ESTABLISHMENT, a company formed under the laws of the Kingdom of Saudi Arabia, Plaintiff-Appellant, v. HENRY H. MCFLIKER, a natural person, a.k.a. Harris H. McFliker, a.k.a. Harold McFliker, AYODH PERSAUD, a natural person, a.k.a. Joe Persaud, SHAMMIE PERSAUD, a.k.a. Bebe Nafessa Persaud, a.k.a. Be Be N. Persaud, a.k.a. Bi Bi N. Persaud, AIRSPARES NETWORK, INC., a Florida corporation, DAYTONA AEROSPACE, INC., a Florida corporation, et al., Defendants-Appellees. 11th Circuit.

Elections -- National Voter Registration Act -- Florida violated section 8(c)(2)(A) of NVRA, which requires state to “complete not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters,” by conducting a program to systematically remove suspected non-citizens from voter rolls within 90 days of a federal election -- Remand with instructions to district court to enter order declaring that Florida Secretary of State's actions were in violation of 90-day provision of NVRA and to grant such relief as needs and interests of justice require -- Standing -- Individual plaintiffs who had been wrongly identified as non-citizens in a prior program had standing to challenge that prior program, although they were ultimately not prevented from voting in prior election -- These individuals also had standing to prospectively challenge second attempt to remove non-citizens from voter roles because there was a realistic probability that they would be misidentified due to unintentional mistakes in data-matching process -- Organizational plaintiffs had standing to challenge program based on both a diversion-of-resources and an associational standing theory -- Mootness -- Claims related to 2012 elections are not moot because dispute is capable of repetition yet evading review
KARLA VANESSA ARCIA, MELANDE ANTOINE, et al., Plaintiffs-Appellants, v. FLORIDA SECRETARY OF STATE, Defendant-Appellee, LUIS I. GARCIA, et al., Intervenor Defendants. 11th Circuit.

Labor relations -- Fair Labor Standards Act -- Overtime -- Former employees of Florida construction contractor brought suit claiming contractor failed to pay wages, including overtime, that they were entitled to receive under FLSA -- Jurisdiction -- District court had subject matter jurisdiction where face of complaint alleged federal claim for unpaid, overtime hours -- Statement of claim that plaintiffs filed under the local practices did not amend that jurisdictional basis out of the complaint -- Plaintiffs' failure to reiterate their unpaid-overtime-hours claim in statement of claim document is not controlling -- Statement of claim document does not have status of a pleading and is not an amendment of complaint under Rule 15 of Federal Rules of Civil Procedure
ARLE CALDERON, MANNY FERNANDEZ, ADALBERTO GALO, LUIS MOLINA, ANDY W. DEL TORO, SERGIO D. HERNANDEZ, PEDRO JOSE MARTINEZ, WILLIAMS ARIELLO GALANTINO, JOSE DE LA CRUZ CARDENAS, on their own behalf and others similarly situated, Plaintiffs-Appellants, v. BAKER CONCRETE CONSTRUCTION, INC., a Florida profit corporation, et al., Defendants, FORM WORKS/bAKER JV, LLC., a foreign profit corporation, Defendant-Appellee. 11th Circuit.

Trademarks -- Infringement -- Online education -- Standing -- Florida Virtual School, a Florida state agency established for development and delivery of online education, appeals from dismissal of its trademark infringement suit against a national online education provider for lack of standing based on conclusion that only Department of State has standing to sue for infringement of plaintiff's trademarks -- Florida Virtual School has authority, and standing, to file action to protect its trademarks
FLORIDA VIRTUALSCHOOL, a Florida Educational Institution, Plaintiff-Appellant, v. K12, INC., a Delaware Corporation, K12 FLORIDA, LLC, a Florida Limited Liability Company, Defendants-Appellees. 11th Circuit.

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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


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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.