Monday, July 9, 2018

Cotton marketing agreements, consumer law, fair credit reporting act, bankruptcy and pork tenderloin medallions with a sage-mustard cream sauce over red bell pepper-porcini mushroom, rosemary garlic risotto

Weakley v. Eagle Logistics
Dockets: 17-14022, 17-14023
Opinion Date: June 29, 2018
Judge: Per Curiam

Areas of Law: Bankruptcy, Civil Procedure
In this consolidated appeal, plaintiff alleged that the district court abused its discretion by dismissing his two lawsuits based on the doctrine of judicial estoppel as a result of his failure to disclose them in his bankruptcy proceeding. Applying a two-part test to guide district courts in applying judicial estoppel, the court held that plaintiff took an inconsistent position under oath in a separate proceeding and the inconsistent positions were calculated to make a mockery of the judicial system. In this case, plaintiff not only failed to include the two lawsuits in his initial bankruptcy filings but he also failed to include them in any of the six separate amendments that he made to his schedules and filings during the bankruptcy proceeding. Plaintiff only disclosed the lawsuits after defendants had relied on plaintiff's failure to disclose as grounds for dismissal.

Wilcox v. corrections Corp of America
Docket: 17-11919
Opinion Date: June 25, 2018

Areas of Law: Civil rights, Employment discrimination, Sexual harassment
Employer could not be held directly liable for harassing acts of co-employee who was not plaintiff's supervisor where evidence established that company took prompt remedial action against the harassing employee -- District court did not err in granting judgment as matter of law for employer notwithstanding jury's favorable verdict and award of damages to plaintiff

Felts v. Wells Fargo Bank, N.A.
Docket: 16-16314
Opinion Date: June 27, 2018
Judges: TJOFLAT and WILSON, Circuit Judges, and ROBRENO

Areas of Law: Consumer law, Fair Credit Reporting Act
Mortgagor brought action against mortgage servicer, as furnisher of information to credit reporting agencies regarding her compliance with her payment obligations under her mortgage loan, claiming that furnisher failed to conduct a reasonable investigation into the accuracy of its credit reporting of her mortgage loan in violation of FCRA -- District court did not err in finding that mortgagor's FCRA claim failed as matter of law because the undisputed material facts demonstrated that furnisher's reporting of mortgage account as past due and delinquent during a forbearance plan was neither inaccurate nor materially misleading, and thus mortgagor failed to make the threshold showing that a reasonable investigation could have uncovered an inaccuracy -- Information reported regarding mortgagor's compliance with the terms of Note was not inaccurate where furnisher reported that scheduled monthly payment amount was full amount due under the Note and that mortgagor's payments were “past due” and “delinquent” for months that she did not make full payments required under the Note -- Apparent compliance with terms of forbearance plan mortgagor entered into with furnisher has no bearing on accuracy of information reported to CRAs regarding compliance with terms of original Note, unless plan legally modified terms of Note, and mortgagor has not identified any facts in record establishing that the forbearance plan legally modified the Note -- Consumer Data Industry Association's guidelines regarding credit reporting do not demonstrate that information reported was inaccurate -- Where mortgagor owed payments under Note, it was not misleading for furnisher to report that payments were not being made under Note as agreed, particularly in light of furnisher's additional statement that she was paying under a partial payment agreement -- Omission of lower payment amount mortgagor agreed to pay under forbearance plan did not render credit reporting misleading.

Autauga Quality Cotton Ass’n v. Crosby
Docket: 17-12092
Opinion Date: June 25, 2018

Areas of Law: Contracts, Cotton marketing agreement, Breach by grower, Damages
Liquidated damages clause in agreement between grower and cooperative that pooled and marketed grower's cotton amounted to an impermissible penalty under Alabama law and is unenforceable -- Provision did not satisfy second or third prong of three-part test set forth by Alabama court in Camelot Music, Inc. v. Marx Realty & Imp. Co. where evidence indicated that intent was to provide for penalty, not damages, and the agreement's liquidated-damages formula did not remotely prescribe a “reasonable pre-breach [estimate] of the probable loss” -- Cooperative organized under article 4 of Alabama's Agricultural Code not entitled to avail itself of Article 3 liquidated-damages authorization.

Everglades College, Inc. v. Nat’l Labor Relations Board
Docket: 16-10341
Opinion Date: June 26, 2018
Judges: MARTIN and HULL, Circuit Judges, and RESTANI

Areas of Law: Labor relations, Unfair labor practices
Employer did not violate National Labor Relations Act by maintaining and enforcing employment agreement that required employees to individually arbitrate employment-related claims and that waived employees' rights to file class or collective action lawsuits against employer -- Whether employer violated NLRA by maintaining and enforcing employment agreement that caused employees to reasonably believe that they were prohibited from filing unfair labor charges with National Labor Relations Board must be re-evaluated in light of NLRB's recent refashioning of its test for determining whether an employer's allegedly facially neutral policy would reasonably lead an employee to believe that she could not file an unfair labor charge with NLRB -- Unlawful discharge -- Whether employer unlawfully discharged employee for refusing to sign an unlawful employment agreement which could reasonably be construed as prohibiting the filing of unfair labor charges with NLRB must also be reconsidered in light of NLRB's new standard, which applies retroactively.

Llorca v. Sheriff, Collier county, Florida
Docket: 17-10616; 17-11377
Opinion Date: June 27, 2018

Areas of Law: Labor relations, Fair Labor Standards Act, Overtime
Sheriff deputies are not entitled to compensation under FLSA or Florida Minimum Wage Act for time spent donning and doffing police gear at home or time spent driving to and from work in marked patrol vehicles -- Even though donning and doffing protective gear arguably may be “indispensable,” it is not “integral” to deputies' principal activities of law enforcement duties and therefore such time is not compensable -- Donning and doffing is an entirely separate activity from deputies' principal law enforcement duties, and therefore donning and doffing is a preliminary and postliminary activity as contemplated by Portal-to-Portal Act -- Time deputies spent commuting in marked patrol vehicle is excluded from compensable work time by plain language of Portal-to-Portal Act -- Monitoring roads for traffic violations and other incidents during the deputies' commutes are incidental to use of marked patrol vehicle and not part of employee's principal activities -- Performance of general traffic law enforcement during deputies' commutes is not integral and indispensable to deputies' performance of their principal activities

Rodriguez Asalde v. First Class Parking Systems LLC
Docket: 16-16814
Opinion Date: June 29, 2018
Judge: Jordan

Areas of Law: Labor & Employment Law
Plaintiffs, who are valets, filed a putative class action against FCPS, alleging claims under the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA). The Eleventh Circuit held that, although the district court correctly ruled that the vehicles parked by plaintiffs were "goods" subject to the ultimate consumer exception, and not "materials" under the FLSA, FCPS was not entitled to summary judgment on the FLSA claims. Viewing the evidence in the light most favorable to plaintiffs, a jury could reasonably find that the uniforms they had to wear as valets for FCPS constituted "materials" under 29 U.S.C. 203(s)(1)(A). Furthermore, the labels on the uniforms, which reflect foreign manufacture, similarly created a jury issue as to whether the uniforms moved in international or interstate commerce under section 203(s)(1)(A)(ii). Accordingly, the court affirmed in part, reversed in part, and remanded.

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Saturday, March 31, 2018

Bill toughening penalties for harm and threats to family lawyers heads to Wisconsin governor

"A bill that would make it a felony to harm or threaten lawyers for their work in family law cases is heading to Wisconsin Gov. Scott Walker.

The Wisconsin Senate approved the bill known as Sara’s Law on Tuesday evening, WSAW reports. The bill is named for lawyer Sara Quirt Sann, who was one of four people killed in a shooting spree by a divorce litigant who was later shot and killed by police. Sann represented the wife of shooter Nengmy Vang.
The bill makes it a felony to harm or threaten a lawyer, corporation counsel or guardian ad litem for work on a family law case,. . ."  More.   
Originally from the ABAJournal News by Debra Cassens Weiss

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Friday, March 23, 2018

Three Reasons To Hire An Appellate Lawyer

This is a great, short explanation of what appellate lawyers bring to the litigation table and how they help you and trial counsel:

"Three Reasons To Hire An Appellate Lawyer" post by Bona Law PC

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Saturday, March 10, 2018

Portabella mushrooms, arugula, and bison pizza with garlic, rosemary and olive oil drizzle, with jurisdiction, contracts, arbitration recent decisions

Arbitration -- Employee severance payment -- Condition of approval -- Final judgment confirming payment of severance package awarded in arbitration is reversed and vacatur of order of dismissal is affirmed where trial court's final judgment confirming payment did not include the condition of approval set forth in the arbitration award -- Remand for trial court to enter final judgment in conformity with the award as made, including conditioning payment upon the required approval.  FLORIDA CAPITAL GROUP, INC., Appellant, vs. BART S. BISHOP, Appellee. 3rd District.

Appeals -- Order granting summary judgment was appealable where order contained language establishing finality -- Opposing party failed to meet burden of demonstrating existence of genuine issue of material fact.  CHARLES DAVIS, Appellant, v. BAY COUNTY JAIL, RICK ANGLIN, et al., Appellees. 1st District.

Attorney's fees -- Proposal for settlement -- Proposal for settlement was untimely where it was served later than forty-five days before the first day of the docket on which the case was set for trial -- Trial court erred in awarding attorney's fees pursuant to offer of judgment rule.  SCOTT B. MEYROWITZ, Appellant, v. ANDREW M. SCHWARTZ, P.A., Appellee. 4th District.

Contempt -- Direct criminal -- Trial court improperly classified defendant's failure to appear as direct contempt and failed to comply with procedural requirements for indirect contempt proceedings, including adequate notice, a reasonable time to prepare defense, and compulsory process for attendance of witnesses.  NICHOLAS P. SANDELIER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Contracts -- Settlement agreement -- Meeting of the minds -- Record contained competent substantial evidence to support trial court's determination that parties entered into enforceable agreement where plaintiff's counsel tendered offer to insurer, insurer accepted the offer and provided plaintiff with all requested documents, and insurer enclosed proposed release but stated in its letter that execution of the proposed release was not a condition of settlement or intended to constitute a counter-offer.  ANIBAL TOVAR, Appellant, v. JENNIKA RUSSELL, Appellee. 4th District.

Jurisdiction -- Non-residents -- Torts -- Action by airline against corporate entities that performed major repairs and alterations on engine which exploded shortly after take-off from Texas airport -- Trial court erred in denying motion to dismiss for lack of personal jurisdiction over foreign corporation where corporation filed two affidavits that created disputed issues of fact as to whether court could exercise specific personal jurisdiction over it -- Remand for evidentiary hearing -- Although plaintiff first alleged that defendant engaged in substantial and non-isolated business activities in state, it later withdrew its claim that defendant was subject to general jurisdiction of Florida courts, limiting plaintiff to its assertion that defendant committed tortious act within state -- Accordingly, if court concludes defendant did not commit tortious act within state, motion to dismiss must be granted.  ROLLS-ROYCE, PLC, a foreign profit corporation, Appellant, v. SPIRIT AIRLINES, INC., a Florida Corporation, ROLLS-ROYCE CORPORATION, a foreign corporation, ROLLS-ROYCE NORTH AMERICA, INC., a foreign profit corporation, IAE INTERNATIONAL AERO ENGINES AG, a foreign profit entity, PRATT & WHITNEY, a division of UNITED TECHNOLOGIES CORPORATION, a foreign profit corporation, Appellees. 4th District.

Limited liability companies -- Operating agreement -- Transfer of membership interest in LLC in violation of provision prohibiting transfer without consent of majority of members -- Non-member's transfer of his interest in an LLC which was a member of the LLC in question to another member did not violate prohibition against transfer of membership interest without notice, consent, and compliance with right of first offer provision -- Trial court erred in entering summary judgment for plaintiffs on their complaint claiming that transfer violated operating agreement and alleging breach of contract, breach of fiduciary duty, and specific performance -- Removal of party from Board of Management -- Trial court erred in construing operating agreement to permit the removal of a manager by 75% of managers rather than a vote of 60% of the members -- Under provisions of operating agreement member of LLC was permitted to bring direct action against other members for breach of agreement, and trial court erred in finding that action was required to be brought as a derivative action -- Notwithstanding erroneous construction of operating agreement, trial court properly entered judgment for defendants on counterclaims and third-party claims alleging breach of agreement, including claim arising out of removal of manager, as such claims were barred by business judgment rule.  FERK FAMILY, LP, Appellant, v. GAIL FRANK, etc., et al., Appellees. 3rd District.

Mortgage foreclosure -- Standing -- Where endorsement on note attached to complaint was different from endorsements on original note filed with court, genuine issue of material fact existed as to plaintiff's standing at inception of action -- Error to enter final judgment of foreclosure following summary judgment.  LESLINE RUSSELL, Appellant, v. BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING LP, Appellee. 4th District.

Torts -- Discovery -- Trade secrets -- Circuit court departed from essential requirements of law by ordering disclosure of trade secrets where party requesting the disclosure failed to present any evidence that production of privileged information was reasonably necessary.  NIAGARA INDUSTRIES, INC. and RHEEM SALES COMPANY, Petitioners, v. GIAQUINTO ELECTRIC LLC, a Florida Limited Liability Company, GUARDIAN AMERICAN PROPERTIES, LLC, f/k/a GUARDIAN AMERICAN RESIDENTIAL PROPERTIES OF BROWARD COUNTY, LLC, a Florida Limited Liability Company, H20 PLUMBING SERVICES, INC., a Florida Corporation, FUENMAYOR & LINDA ENTERPRISES, LLC, d/b/a ACE FLOOD & INSPECTIONS, LLC, a Florida Limited Liability Company, MARK BECKERMAN, individually, and SCOTT WESLEY FRANK, Sr., individually, Respondents. 4th District.Torts -- Nursing homes -- Arbitration -- Trial court did not err in compelling arbitration of resident's negligence claims against nursing home based on arbitration and limitation of liability agreement which contained express severability clause worded in such a way that the essence of the arbitration provision would survive the severance of any illegal arbitration provisions.  ANNE OBOLENSKY, Appellant, v. CHATSWORTH AT WELLINGTON GREEN, LLC d/b/a NUVISTA LIVING AT WELLINGTON GREEN, Appellee. 4th District.

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