Fifth District Roundup

    It was a busy week in Florida’s Fifth District.  Some litigants caught a break, others suffered punishing loses and justice appears to have been done.

    First up, PATRICK PALUMBO a sex offender.  Pervy Patrick got a break, the court granted his motion for an opinion.  Don’t expect this break to be long lasting as the purpose of the opinion is to give the Supreme Court jurisdiction to reverse what the Fifth thinks is a bad result in the Second District’s decision in Richards v. State, 738 So. 2d 415 (Fla. 2d DCA 1999).

    Torpy, J. breaks out the dictionary, riffs on Learned Hand, and explains the rule of lenity. “We need not isolate ourselves from the rest of the  world or ignore our experiences when we determine the meaning of a commonly used word.”

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    John Alpizar had a big P.I. verdict taken away forever when the District reversed  ROBIN CURRAN’s trial court victory.  State Farm contends that the benefits are not owed to Curran because she breached a condition precedent in the policy requiring her to attend a compulsory medical examination (CME).  What does the court say?  “We have thoroughly reviewed the record in this case and conclude that Curran refused to attend a scheduled CME and filed suit to recover the UM benefits under the policy without compliance with  this condition precedent.  Her refusal constitutes a breach of the policy that prohibits her recovery.” Ouch.

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    Two cases teach lawyer to pay attention to those effected by court orders.  GENERATION INVESTMENTS LLC occupied land under a lease it had entered into well before the land’s owners agreed to impose restrictive convenants on the property.  Generation runs an apparently garish timeshare sales business.  It painted the building, displayed signs, flags, banners, and balloons on the property, and sold timeshares.  (Hopefully enough to pay the fees of John M. Iriye and Don L. Brown.) Coincidentally, the restrictions prevent signs, flags, banners, and balloons on the property, and the sale of timeshares.  George Chen who controlled an association, the Formosa Gardens Master Property Owners’ Association, Inc, had sued Generation to enforce the restriction. There, the association discovered Generation could not be subject to the restrictive covenants because it was in possession of the land under a lease that predated the restrictive covenants.  Bummer.  Mr. Chen voluntarily dismissed his case after learning that he could not enforce the restrictive covenants against Generation.

    Mr. Chen the sued the landowner and left Generation out of the suit altogether and won an injunction.  Then, he wrote Generation.  The court would
hold Generation in contempt and fine Generation if it did not shut down.  Further, wrote Mr. Chen, the Sheriff would shut down Generation’s business, forcibly remove items from Generation’s property, and paint over Generation’s advertisements.  Kudos to Sheriff Bob Hansell, or as we call him, “Painter Bob.”

    Generation promptly moved to intervene in the suit between the landowner and Mr. Chen.  Generation said that an injunction which required it to do things it was not required to do, entered without notice or an opportunity to be heard was unfair.  Rather than reach the easy position that the rights vested in a party are unaffected by the subsequent actions of strangers, Judge John M. Kest ruled that Generation did not have to have the building painted, but that the landowner had to paint the building.  Huh? 

    Generation said it was an error to enter the injunction because Generation was an indispensable party to the action, but was not joined as a party.  Mr. Chen moved to dismiss the appeal, contending that Generation lacks standing because it was not a party to the action below.  “That’s some catch, that Catch-22.”

    The Fifth District quickly cut through this nonsense. “We elect to treat the notice of appeal as a petition for writ of certiorari.  An appellate court  has certiorari jurisdiction where a nonparty seeks relief from an order and its nonparty status would otherwise deprive the nonparty of an adequate remedy by direct appeal.”  Order Quashed.  Justice done.

    The same issue popped up when the successful bidder at a foreclosure sale went to occupy his newly purchased land. GIANTHONY HOMES, INC was the high bidder at a foreclosure sale, paid the price bid, and was issued a certificate of title.  U.S. Bank, who in the District Court was represented by the powerhouse firm, No Appearance for Appellee, filed an “Ex Parte Agreed Motion to Set Aside Foreclosure Sale, Not Issue Certificate of Title and Reset Foreclosure Sale.”  In the motion, U.S. Bank told Judge Jose  R. Rodriguez Gianthony had agreed to the granting of the motion.  The certificate of service reflected that a copy of the motion had been mailed to appellants.  Not surprisingly, the Judge entered the “Ex Parte Agreed Order Setting Aside Foreclosure Sale, Not Issue Certificate of Title and Reset Foreclosure Sale,” submitted by U.S. Bank’s counsel.

    Gianthony got the “Agreed” order after the 10 period for rehearing had passed.  Gianthony’s counsel did not mess around.  He created an appendix and filed his brief, and his record, a month after the notice of appeal.  After the time for reply passed the court looked at the issue briefed and, sui sponte, sent the action back to Judge Rodriguez to conduct an evidentiary hearing and enter an order determining whether or not the “Ex-parte Agreed Motion to Set Aside Foreclosure Sale” and the Order were, in fact, stipulated to.  When Judge Rodriguez found they had not, the Fifth District Reversed and Remanded.

    The question has to be asked; who was the bank’s lawyer?  Can we trust those whose occupation is law when “agreed” orders are not agreed to?

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