Easley appointed President of the Rosemary Barkett Appellate Inn of Court

Congratulations to Dorothy F. Easley on her recent appointment as President of the Rosemary Barkett Appellate Inn of Court, 2015-16. The RBIC, named in honor of former Florida Supreme Court Justice and Eleventh Circuit Judge Rosemary Barkett, was established by Florida Third District Court of Appeal Judge Vance Salter in 2011. It serves to advance current appellate issues, professionalism, ethics, and mentoring.

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Consumer rights, constitutional law, and grilled salmon topped with freshly grated wasabi-ginger-honey paste

Third Circuit:

Witasick v. Minn. Mut. Life Ins, Co.

Court: U.S. Court of Appeals for the Third Circuit Docket: 14-1150 Opinion Date: October 1, 2015

Areas of Law: Contracts, Insurance Law, White Collar Crime

Witasick was covered by a disability policy and a business overhead expense policy. His claims against both policies were honored. A dispute arose concerning coverage of some claimed business expenses. After years of negotiation, the parties settled: the insurer agreed to pay more than $4 million and Witasick agreed to release known, unknown, and future claims. The settlement contained a covenant not to sue, based on “any conduct prior to the date the Parties sign this document, or which is related to, or arises out of” the policies. During negotiations, the U.S. Government notified Witasick that he was the target of a grand jury investigation related to fraud and business expense claims on his income tax returns. Witasick was indicted in 2007. To support its charge of mail fraud, the government relied on information and documents Witasick had submitted to the insurer. An employee of the insurer testified before the Grand Jury and at Witasick’s trial. Witasick was convicted on most counts, but acquitted of mail fraud, and was sentenced to 15 months’ imprisonment. In 2011, Witasick sued the insurer based on the policies and cooperation with the prosecution. The Third Circuit affirmed dismissal, finding the claims prohibited by the settlement agreement.

http://j.st/4s69

Fifth Circuit:

Ferguson v. Bank of New York Mellon

Docket: 14-20585             Opinion Date: October 1, 2015

Areas of Law: Banking, Real Estate & Property Law

 After plaintiffs defaulted on their residential mortgage loan, they sought to enjoin BNY from foreclosing by claiming that the assignment of the deed of trust (DOT) to BNY was void. Plaintiffs also filed a false-lien claim under Texas Civil Practice and Remedies Code 12.002 against BNY and MERS. The district court granted BNY's motion to dismiss. The court concluded that plaintiffs lack standing to challenge BNY’s efforts to foreclose on the ground that MERS’s assignment to BNY was void for violating the PSA. Because plaintiffs have failed to plead facts showing BNY’s lien was in fact fraudulent, plaintiffs have failed to state a false lien claim under Texas Civil Practice and Remedies Code 12.002. Accordingly, the court affirmed the district court's judgment.

http://j.st/4suP

Fifth Circuit:

Cole v. Hunter

Court: U.S. Court of Appeals for the Fifth Circuit Docket: 14-10228, Docket: 15-10045           Opinion Date: September 25, 2015

Areas of Law: Civil Rights, Constitutional Law

After Ryan Cole, a seventeen-year-old, was severely injured in an armed encounter with police, he and his parents filed suit against the officers for, among other things, use of excessive force in violation of Ryan's Fourth Amendment rights. The district court denied Defendant Carson’s motion to dismiss and Defendants Hunter and Cassidy’s motion for summary judgment, rejecting the officers’ immunity defense at the motion stage of the case. Under plaintiffs’ version of the facts, the court concluded that it was objectively unreasonable under clearly established law to shoot Ryan. Consequently, the fact disputes identified by the district court - including the central issue of whether Ryan pointed his gun at an officer - are material, and the court dismissed the appeal for lack of jurisdiction. However, the court affirmed the district court’s refusal to dismiss the due process claim relating to fabrication of evidence. Finally, the court concluded that the district court erred in allowing all other claims to proceed.

http://j.st/4s7W

Seventh Circuit:

Defender Sec. Co. v. First Mercury Ins. Co.

Court: U.S. Court of Appeals for the Seventh Circuit Docket: 14-1805            Opinion Date: September 29, 2015

Areas of Law: Communications Law, Consumer Law, Contracts, Insurance Law

Brown filed a class action complaint, alleging that she contacted Defender by telephone in response to its advertisement for a home security system; that, during several calls, she provided Defender with personal information; and that Defender recorded those calls without her permission and without notifying her of the recording. Brown claimed violations of California Penal Code 632, which prohibits the recording of confidential telephone communications without the consent of all parties. Defender owned a commercial general liability insurance policy issued by First Mercury, covering “personal injury” and “advertising injury.” In a separate definitions section, the policy defined both “advertising injuries” and “personal injuries” as those “arising out of … [o]ral or written publication of material that violates a person’s right of privacy.” The parties eventually reached a settlement. Defender provided First Mercury with timely notice of the Brown suit. First Mercury denied coverage and refused to defend. The Seventh Circuit affirmed dismissal of Defender’s suit against First Mercury. Defender’s Policy requires “publication,” which was neither alleged nor proven.

http://j.st/4s8V

Ninth Circuit:

Bradford v. Scherschligt

Court: U.S. Court of Appeals for the Ninth Circuit Docket: 14-35651              Opinion Date: September 25, 2015

Areas of Law: Civil Rights, Constitutional Law

After plaintiff served his full ten-year sentence, the State of Washington vacated his residential burglary and rape conviction based largely on newly-available DNA testing. Plaintiff subsequently filed suit under 42 U.S.C. 1983 against defendant, a police detective, alleging the deliberate fabrication of evidence. The district court found that plaintiff's claim was time-barred and granted summary judgment for defendant. The court held that plaintiff’s claim did not accrue until he was acquitted of all charges on February 10, 2010. Therefore, the court concluded that plaintiff filed the underlying action within the three-year statute of limitations period, and it was error to dismiss his deliberate fabrication of evidence claim as time-barred. The court declined to address defendant’s qualified immunity defense, and remanded for the district court to consider it in the first instance.

http://j.st/4s8T

11th Circuit:

Bankruptcy -- Confirmation -- Chapter 13 plan -- Modification -- Modified plan which proposes plan payments to creditors that escalate over time, with two step-up payments to a fixed payment in months 10-59 and a balloon payment in month 60 of plan, is not confirmable -- Even if, because of the failed mortgage modification mediation, the two step-ups do not violate requirements of 11 U.S.C. section 1325(a)(5), modified plan is not confirmable because debtors have failed to prove the plan is feasible by providing any evidence that would support their ability to make the balloon payment in month 60 of plan -- Because the modified plan is not confirmable and debtors have not been paying the real estate taxes on property, creditor is entitled to complete relief from stay

In re GENE C. LENTZ and MARIA LENTZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida. Case No. 14-15585-BKC-LMI, Chapter 13. January 16, 2015. Laurel M. Isicoff, Judge.

11th Circuit:

Bankruptcy -- Exempt property -- Homestead -- Chapter 7 debtor, who believed he had conveyed his interest in a home by quit-claim deed prior to bankruptcy filing, cannot claim the homestead exemption on property he did not believe he owned at time of his original bankruptcy filing -- To qualify for homestead protection under Florida law, an individual must occupy the property and have actual intent to permanently live in that property, and based on undisputed facts debtor could not have legally intended to permanently reside in the home at time he filed for bankruptcy when he unequivocally stated that he did not believe that he had an ownership interest in home at that time after either conveying or attempting to convey his interest to his son and daughter-in-law

Reopening of proceeding -- Notice -- Debtor failed to properly provide notice to creditor of reopening of case and his intent not only to schedule previously undisclosed property, but also to avoid creditor's properly perfected judgment on that property by claiming a homestead exemption -- Because of debtor's failure to properly serve the Motion to Reopen on creditor in accordance with local rules and bankruptcy rules, creditor's objection to debtor's new homestead exemption claim and creditor's objection to the Motion to Avoid Lien are deemed timely

In re: PYARALI R. CHARANIA, Debtor. U.S. Bankruptcy Court, Southern District of Florida. Case No. 07-14000-RAM, Chapter 7. December 8, 2014. Robert A. Mark, Judge.

11th Circuit:

Bankruptcy -- Judges -- Recusal -- Where Chapter 11 debtor appealed both fee order granting in part fee applications submitted by debtor's counsel and directing counsel to account for all trust account transactions involving debtor as well as order denying counsel's motion for reconsideration, and debtor subsequently filed motion for recusal of bankruptcy judge, the appropriate action for the bankruptcy court, under the circumstances, was to defer ruling on the recusal motion until such time as it was clear that the court had jurisdiction over the singular issue remaining to be determined in the case -- Under the controlling “flexible finality” standard, the bankruptcy court's fee order, reconsideration order, and order setting evidentiary hearing on accounting matter did not appear to be “final,” but if those orders were properly before the district court, the bankruptcy court was at least arguably divested of jurisdiction to proceed further on any matters fairly within ambit of appeal, and it would be inappropriate for bankruptcy court to proceed on any substantive matter until recusal motion had been ruled upon

In re: ANNA MARIA SANDERS, Debtor. U.S. Bankruptcy Court, Southern District of Florida, Ft. Lauderdale Division. Case No. 13-11065-JKO, Chapter 11. February 26, 2015. John K. Olson, Judge.

11th Circuit:

Civil rights -- Public employees -- Speech -- Retaliation -- Political affiliation -- Gender discrimination -- Deputy sheriff appeals grant of summary judgment to city-county government and its sheriff on claims under 42 U.S.C. §1983 alleging that, upon taking office after winning his election, sheriff transferred her to less prestigious position in sheriff's office with less responsibility and authority because she supported his opponent in the election -- District court properly granted summary judgment to consolidated government on First Amendment claim alleging transfer violated plaintiff's rights against employer retaliation based on political affiliation on ground that claim was foreclosed as matter of law by Eleventh Circuit precedent, despite fact that consolidated government's civil service system prohibits employment decisions based on political patronage -- Under Eleventh Circuit precedent, a deputy sheriff fails as a matter of law to plead a First Amendment Claim for an adverse employment decision based on patronage wherever the duties and powers of deputy sheriff and sheriff are the same -- Political loyalty is appropriate requirement for job of deputy sheriff in Georgia -- District court properly granted summary judgment to defendants on plaintiff's Fourteenth Amendment gender discrimination claim where no genuine dispute existed over whether sheriff's proffered reason for plaintiff's transfer were a pretext for discrimination -- Plaintiff failed to create a genuine issue for trial with regard to pretext by failing to cast sufficient doubt on reasoning behind sheriff's reorganization plan for part of sheriff's officer over which plaintiff formerly had control, such that a reasonable juror could find that sheriff's explanation was not believable

TERRI EZELL, Plaintiff-Appellant, v. JOAN B. WYNN, et al., Defendants, JOHN DARR, Individually and in his Capacity as Sheriff of Muscogee County, COLUMBUS CONSOLIDATED GOVERNMENT, Defendants-Appellees. 11th Circuit.

11th Circuit:

Civil rights -- Prisoners -- Prison conditions -- Exhaustion of administrative remedies -- District court reversibly erred in dismissing prisoner's 42 U.S.C. §1983 prison-conditions suit for failure to exhaust administrative remedies established by prison -- In holding that prisoner's informal grievance did not exhaust administrative remedies, district court erred by not following two-step process created by Eleventh Circuit precedent for deciding exhaustion challenges -- District court neither took the first step of accepting plaintiff's facts as true and asking whether, given those facts, plaintiff's grievance exhausted his administrative remedies nor proceeded to second step of identifying particular factual disputes and then making specific findings to resolve those disputes and decide whether the grievance exhausted administrative remedies -- In holding that plaintiff's grievance did not exhaust administrative remedies, district court erred by enforcing a procedural bar that prison itself may have waived -- District courts may not enforce a prison's procedural rule to find a lack of exhaustion after prison itself declined to enforce the rule -- A prisoner has exhausted his administrative remedies when prison officials decide a procedurally flawed grievance on the merits

SHAWN WAYNE WHATLEY, Plaintiff-Appellant, v. WARDEN, WARE STATE PRISON, RODNEY SMITH, Corrections Officer (C.E.R.T. Team) Telfair State Prison, EXAM NURSE, Ware State Prison, MICHAEL GRIFFIN, Supervisor of Lock Down Unit & Tactical Squad Commander, Ware State Prison, Defendants-Appellees. 11th Circuit.

11th Circuit:

Wrongful death -- Medical malpractice -- Federal Tort Claims Act -- Action alleging negligent conduct of medical providers and failure to adequately credential, train, and supervise medical providers arising from allegedly negligent treatment decedent received from medical providers at Veteran's Affairs Medical Center -- Damages -- Statutory cap -- Waiver -- 24 L.P.R.A. § 10035 imposes a cap on medical malpractice liability for regional academic medical centers and “the students, physicians in postgraduate training and the faculty members thereof, for the medical procedures practiced in said Centers in the exercise of their teaching duties” -- This cap on damages is an affirmative defense -- United States waived its defense that facility at issue in this case was an RAMC, making statutory cap on damages applicable, where it failed to raise damages cap as an affirmative defense in its pleadings and engaged in discovery tactics which resulted in unfair prejudice to plaintiffs which could not be cured -- Motion for summary judgment premised on application of 24 L.P.R.A. section 10035 denied

JOSEFA QUINONES, JESSICA MARTINEZ, JUAN QUINONES and ALEXA QUINONES, Plaintiffs, v. USA, Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:14-cv-164-T-36MAP. June 29, 2015. Charlene Edwards Honeywell, Judge.

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One of America’s best-known sheriffs has admittedly violated a federal judge’s order to stop racially profiling Latinos

"One of America’s best-known sheriffs has admittedly violated a federal judge’s order to stop racially profiling Latinos.  But did Sheriff Joe Arpaio of Maricopa County, Arizona, do so inadvertently or intentionally? That is the question to be answered by a contempt hearing at which he testified on Thursday, the Los Angeles Times (sub. req.) reports."  More

Originally posted in ABA Journal Oct 01, 2015 By Martha Neil

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