The Florida Legal Blog

Court Cannot Read More Into Statute Than Plain Language Dictates (In This Case Verification Requirements)

2013-04-11T15:17:00.000-04:00

In U.S. Bank v. Wanio-Moore (5D12-1746), the Fifth District reversed a trial court's order dismissing a complaint. The trial court dismissed the foreclosure complaint because the verification on the complaint did not provide the position of the person that signed the verification. However, the Fifth District reversed and held that "the rule does not require any information about the signer’s positional authority, and a court cannot “read more into [rule 1.110(b)] than its plain language dictates."

The opinion can be viewed HERE.

Florida Supreme Court Clarifies You Do Not Get Five Extra Days When Responding To A Proposal For Settlement

2013-04-11T11:44:00.000-04:00

The Florida Supreme Court issued THIS opinion today and amended the Florida Rules of Civil Procedure to clarify that the additional five days allowed to respond to a filing/pleading served by email or mail does not apply when the pleading/email is a proposal for settlement. Therefore, a party has thirty days to respond to a proposal for settlement (not thirty-five).

Florida Supreme Court Reverses Decision That Found Class Action Waivers Unconscionable

2013-04-11T11:38:00.001-04:00

In McKenzie Check Advance of Florida, LLC v. Betts (SC11-514), the Florida Supreme Court reversed a decision of the Fourth District Court of Appeal that determined a class action waiver provision violated Florida public policy.

After the Fourth District published its opinion, "the United States Supreme Court issued its decision in AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 1744 (2011), addressing the issue of whether the Federal Arbitration Act (FAA) 'prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.'” In Concepcion, the Supreme Court concluded the California public policy prohibiting class action waivers was preempted by the Federal Arbitration Act.

In McKenzie, the Florida Supreme Court stated

Applying the rationale of Concepcion to the facts set forth by the Fourth District in McKenzie, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of it being void as against public policy. Accordingly, we quash the Fourth District’s decision below. We decline to answer the certified question because it is moot in light of Concepcion. In other words, even if the Fourth District is correct that the class action waiver in this case is void under state public policy, this Court is without authority to invalidate the class action waiver on that basis because federal law and the authoritative decision of the United States Supreme Court in Concepcion preclude us from doing so.

Justice Pariente wrote the opinion for the court. Justice Quince, Justice Canady, Justice Labarga, and Justice Perry concurred. Chief Justice Polston and Justice Lewis concurred in result only.

The Florida Supreme Court's opinion can be viewed HERE. The Fourth District's opinion, that is now quashed, can be viewed HERE.

Apostrophe-Challenged

2013-04-10T13:52:00.000-04:00

In Bradshaw v. Boynton-JCP Associates (4D11-4242), the court reversed an order awarding attorneys fees based upon an offer of judgment because the terms of the offer were not clear. Specifically, the court stated that the offer was "apostrophe-challenged." Regarding the offer in this case, the court stated:

The offer, entitled “Defendant’s Joint Proposal for Settlement,” also appears to have been adopted from a form without sufficient editing; it requires “Plaintiff’(s)” to “execute a stipulation,” and “Plaintiff(s)” to “execute a general release of “Defendant(s).”

The rule requires that “the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” Therefore, the order awarding fees in this case was reversed.

The opinion can be viewed HERE.

Order Striking Pleadings Requires Express Factual Findings

2013-04-10T11:47:00.001-04:00

In a short opinion, the Fourth District reversed an order striking pleadings for failure to make express factual findings. The opinion stated:

[Appellant] seeks reversal of the trial court’s order striking its pleadings and dismissing the case as a sanction for discovery violations. The Bank asserts that the trial court abused its discretion by failing to make express factual findings demonstrating that such a severe sanction was warranted, as required by Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). We agree and reverse.

The opinion, Deutsche Bank v. Sela (4D11-3093), can be viewed HERE.

Judgment On Appraisal Award Reversed Due To Coverage Issues

2013-04-10T11:38:00.000-04:00

In Citizens Property Insurance Corporation v. River Manor Condominium Association (4D12-901), the Fourth District reversed a trial court's judgment entered after an appraisal award. In the appeal, Citizens argued "...that the final judgment improperly awarded the appellee damages for: (a) property excluded under its policies, and (b) amounts that should have been deducted from the award by application of defenses the trial court refused to consider."

The Fourth District agreed, at least with regard to the first part of Citizens argument. The Court's twelve page opinion provides the details about the facts, arguments, and reasons for the holding. The ultimate conclusion is copied below:

For the reasons discussed above, we reverse the trial court’s final judgment and remand this cause with directions that the trial court enter a revised final judgment for the amounts set forth in the appraisal award less:

(i) amounts previously paid;

(ii) amounts allocated to exterior common elements excluded by the terms of the applicable insurance policies; and

(iii) amounts awarded in excess of any amount agreed upon by the parties for roof repairs and water extraction for Buildings A and C if, and only if, the trial court concludes – after an evidentiary hearing – that the parties reached a binding pre-appraisal agreement stipulating to the amount owed.

To the extent the trial court refused to adjudicate Citizens’ claims that amounts awarded were duplicative or represent losses to property the unit owners – as opposed to River Manor – were obligated to insure, the judgment is affirmed.

The opinion can be viewed HERE.

Justice Souter on Recusal - In re Bulger

2013-03-18T22:46:00.001-04:00

Writing for the First Circuit in In re Bulger, Justice Souter's opinion provides a good discussion about recusal. You can view the opinion at THIS link. At issue was the defendant's petition for writ of mandamus seeking an order requiring the district court judge to recuse himself based upon allegations the judge had been invoked in the case (due to his role as an assistant US Attorney). Notably, the defendant was previously on the FBI's Ten Most Wanted list. After an analysis of what recusal is and isn't, and applying that analysis to the facts in this case, the opinion concluded:

In sum, despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim. The other mandamus conditions being satisfied, the petition is granted, and the case shall be reassigned to a judge whose curriculum vitae does not implicate the same level of institutional responsibility described here.

Breach of Fiduciary Duty Claim Can Be Waived

2013-03-13T12:27:00.001-04:00

In Band v. Libby (2D11-4942), the Second District held (in addition to addressing other issues) that a claim for breach of fiduciary duty can be waived. The court stated:

We hold that a party may waive a claim based on the breach of a fiduciary duty. "Parties, by their own knowledge and conduct, can waive or be estopped to raise a wide array of constitutional, statutory, and common law rights . . . ." Ruggio v. Vining, 755 So. 2d 792, 795 (Fla. 2d DCA 2000). Indeed, "[a] party may waive any rights to which he or she is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished." Torres v. K-Site 500 Assocs., 632 So. 2d 110, 112 (Fla. 3d DCA 1994) (emphasis added). It follows that a claim based on a breach of fiduciary duty, like any other claim, may be waived.

Trial Court Erred In Refusing To Vacate Judgment When Borrower Cured Default Prior To Foreclosure Sale

2013-03-13T11:04:00.002-04:00

In Wells Fargo Bank, N.A. v. Giglio (4D12-418), the Fourth District held that the trial court erred in refusing to grant a motion to vacate a foreclosure judgment. In this case, on the eve of the foreclosure sale, the borrower tendered funds to the lender sufficient to bring the loan current. Based upon that tender of funds, Wells Fargo sought to cancel the foreclosure sale and ultimately to vacate the sale that did occur. The trial court granted the motion to vacate the sale but refused to vacate the judgment.

The Fourth District stated that "Put simply, Giglio cured the default and the parties settled their dispute, an outcome the law favors." Therefore, the court ultimately held that:

We hold that the trial court, having vacated the foreclosure sale, abused its discretion in refusing to grant the related collateral relief requested by Wells Fargo, which refusal prevented the parties from concluding their settlement. See Toler, 78 So. 3d at 701 (“An order denying a motion for relief from judgment is reviewed for an abuse of discretion.”). The trial court clearly had jurisdiction to consider Wells Fargo’s Rule 1.540(b)(5) motion; and in light of the parties’ settlement --a result the law seeks to encourage -- the relief requested should have been granted. See Wells Fargo Bank, N.A. v. Lupica, 36 So. 3d 875 (Fla. 5th DCA 2010).

In a footnote the court noted that they were not holding that a trial court was always required to vacate a judgment based upon the settlement of the parties and that there may be circumstances when other influences would support denying such a motion. However, there were no other influences in this case.

Material Outside Complaint Can Be Considered In Motion Relating To Contractual Forum Selection Clause

2013-03-13T10:54:00.001-04:00

In Steiner Transocean Limited v. Efremova (3D12-2390), the Third District decided that there is no reason a motion to dismiss based upon a contractual forum selection clause should be treated differently than a motion to dismiss for improper venue. Therefore, the trial court erred in refusing to consider evidence outside the four corners of the complaint for purposes of determining the validity of the motion to dismiss.

Involuntary Dismissal Improper Before Party Rests Case

2013-03-13T10:50:00.001-04:00

In Deutsche Bank Nat. Trust Co. v. Santiago (3D11-2805), the Third District held that it is premature to sua sponte enter an order for involuntary dismissal before the plaintiff has rested its case.

Florida Supreme Court: Economic Loss Rule Abolished Outside Of Products Liability Cases

2013-03-07T11:19:00.000-05:00

In Tiara Condominium Assoc. v. Marsh & McClennan Companies, Inc. (SC10-1022), the Florida Supreme Court answered a certified question from the 11th Circuit, analyzed the origins of the economic loss rule and abolished application of the rule outside of product liability cases. The court stated: "[w]e answer this question in the negative and hold that the application of the economic loss rule is limited to products liability cases."

The majority opinion concluded by stating:

Having reviewed the origin and original purpose of the economic loss rule, and what has been described as the unprincipled extension of the rule, we now take this final step and hold that the economic loss rule applies only in the products liability context. We thus recede from our prior rulings to the extent that they have applied the economic loss rule to cases other than products liability. The Court will depart from precedent as it does here “when such departure is ‘necessary to vindicate other principles of law or to remedy continued injustice.’ ” Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1131 (Fla. 2005) (quoting Haag v. State, 591 So. 2d 614, 618 (Fla. 1992)). Stare decisis will also yield when an established rule has proven unacceptable or unworkable in practice. See Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So. 3d 576, 574 (Fla. 2010). Our experience with the economic loss rule over time, which led to the creation of the exceptions to the rule, now demonstrates that expansion of the rule beyond its origins was unwise and unworkable in practice. Thus, today we return the economic loss rule to its origin in products liability.

CONCLUSION

Because we now limit the application of the economic loss rule to cases involving products liability, it is not necessary for us to decide whether the economic loss rule exception for professionals applies to insurance brokers. Based on the foregoing, we answer the rephrased certified question in the negative and hold that the application of the economic loss rule is limited to products liability cases. Having answered the rephrased certified question, we return this case to the Eleventh Circuit Court of Appeals.

Justice Labarga wrote the opinion for the court, and was joined by Justice Pariente, Justice Lewis, Justice Quince, and Justice Perry. Justice Pariente wrote a concurring opinion that begins on page 19 of the .pdf and was joined by Justice Lewis and Justice Labarga. Chief Justice Polston wrote a dissenting opinion that begins on page 26 of the .pdf and was joined by Justice Canady. Justice Canady wrote a dissenting opinion that begins on page 28 of the .pdf and was joined by Chief Justice Polston.

Second District Certifies Conflict Regarding Jurisdiction To Review Partial Final Judgments

2013-02-22T11:31:00.001-05:00

In Universal Underwriters Insurance Co. v. Stathopoulos (2D12-2412, 2D12-3606), the Second District granted a motion to dismiss, concluding that review of the partial final judgment appealed would constitute improper piecemeal review. The court certified conflict to the Florida Supreme Court.

In the case, an underlying lawsuit relating to a car accident had been resolved. The second lawsuit ws described as follows:

In the subsequent lawsuit underlying this appeal, Ms.Stathopoulos and Western General filed a three-count amended complaint againstUniversal for declaratory relief and for breach of contract and bad faith for Universal'sfailure to defend and indemnify the driver in the wrongful death lawsuit. The order onappeal declares that the driver was an insured under Universal's policy and notes thatthe other two counts remain pending.

After discussing its jurisdiction and the various rules, the Second District stated:

Because the amended complaint reflects that the three counts are based on the samefacts and are intertwined, we conclude that allowing an appeal of the declaratory countat this stage would foster impermissible piecemeal review. See Mendez v. W. FlaglerFamily Ass'n, 303 So. 2d 1, 5 (Fla. 1974).

After concluding jurisdiction as a final order or non-final order was inappropriate and that it did not have certiorari jurisdiction, the Second District dismissed the consolidated appeals. However, they also certified conflict to the Florida Supreme Court which was included in a footnote. The issue certified is below:

We note that other courts have resolved appeals in similar postures under rule 9.110(m) or Reed, albeit without explicit jurisdictional analysis. See, e.g., Wilshire Ins. Co. v. Birch Crest Apartments, Inc., 69 So. 3d 975 (Fla. 4th DCA 2011); Am. Reliance Ins. Co. v. Perez, 712 So. 2d 1211 (Fla. 3d DCA 1998). To the extent that the present case is in conflict with these decisions, we certify the conflict. We reach the same conclusion as did the First District in Mercury Insurance Co. of Florida v. Markham, 938 So. 2d 607 (Fla. 1st DCA 2006), although by a somewhat different analysis.

Ultimate Ponzi - Book About The Rothstein Ponzi Scheme

2013-01-22T22:02:00.001-05:00

A new book is coming out about the Scott Rothstein Ponzi Scheme. The book is titled Ultimate Ponzi and can be Pre-ordered from Amazon.com at the following link: Ultimate Ponzi, The: The Scott Rothstein Story (as of this time it is not available for Pre-order from Apple).

While on the subject of some of Broward County's better moments, apparently, there is a discussion about changing the name Broward County to Fort Lauderdale. Looking at some of these stories, maybe a name change wouldn't hurt.

Southern District of Florida to Participate In Electronic Records on Appeal Program

2013-01-20T23:18:00.001-05:00

On Friday, the Southern District of Florida sent the following email to registered CM/ECF users:

Effective February 1, 2013, the United States Court of Appeals for the Eleventh Circuit has approved the Southern District of Florida's participation in the Electronic Records on Appeal program (EROA). For information about how this may impact your future filings with the United States Court of Appeals for the Eleventh Circuit, please refer to their website

Facebook Friends With The Judge? Fourth DCA Certifies Question

2013-01-16T20:57:00.000-05:00

In Domville v. Florida (4D12-556), the Fourth District addressed the issue of a judge being Facebook friends with a lawyer appearing before the Judge (see below as Florida's Judicial Ethics Advisory Committee issued an opinion on the issue in 2009). The court certified the following question to the Florida Supreme Court:

Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?

In a special concurrence, Judge Gross stated that "recognize that the ability to participate in social media is of great importance to many and there are disagreements between reasonable persons about the way that a judge may take part in social media sites such as Facebook...[but]Judges do not have the unfettered social freedom of teenagers." (emphasis is mine).

Judge Gerber dissented as to certification and stated:

The majority does not provide its reasoning for its conclusion that the certified question is one of great public importance. The only reasoning for its conclusion appears to be stated in the concurring opinion. I disagree with the concurring opinion’s reasoning.
The concurring opinion reasons that the ability of judges to participate in social media with attorneys who appear before them “is of great importance to many.” However, the concurring opinion does not cite any authority for that statement. On the contrary, as the concurring opinion recognizes, common sense suggests that the public, without question, would appear to desire otherwise: “Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance . . . [A] person who accepts the responsibility of being a judge must also accept limitations on personal freedom.”

Related, but not discussed, is a 2009 Florida's Judicial Ethics Advisory Committee opinion that addresses this exact issue and concludes the answer is NO. A judge cannot be Facebook friends with the lawyers that practice before that Judge. See a prior post on the issue HERE. That opinions summary of issues stated, in part:

Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."
ANSWER: No.

"My Beloved World" by Supreme Court Justice Sonia Sotomayor

2013-01-12T23:22:00.000-05:00

Supreme Court Justice Sonia Sotomayor is releasing a book this week titled "My Beloved World." You can buy the book from Amazon at the following links: Kindle Version OR Hardcover. If you prefer Apple's iBooks, HERE is a link to purchase it from Apple. There are a number of reviews available including by Andrew Cohen for The Atlantic, Jay Wexler for The Boston Globe, Dahlia Lithwick for The Washington Post, and Nina Totenberg for NPR.

Insurer Not Required To Provide Claims File When Coverage At Issue

2013-01-02T22:09:00.000-05:00

In State Farm Florida Insurance Company v. Desai (3D12-2586), the Third District granted certiorari and quashed the trial court's order compelling the production of certain documents. The court stated that "prior to a determination as to coverage, the trial court entered a discovery order requiring State Farm to (1) produce claim manuals and/or guidelines relating to certain policy language and (2) provide a representative to testify as to the claims manual, guidelines, and insurance policy." The court noted that "in seeking certiorari review of the discovery order, State Farm contends Florida law 'prohibits insureds from obtaining discovery into an insurer’s claims files and claims handling materials until contract/coverage litigation has been concluded.'” Agreeing with State Farm, the court stated that "as State Farm’s argument is well taken, we grant the petition for writ of certiorari and quash the discovery order under review."

Citizens Appraisal Clause Requires Agreement Of Parties

2013-01-02T21:59:00.000-05:00

In Citizens Property Insurance Corp. v. Casar (3D11-2843), the Third District reversed the trial court's order compelling appraisal because the insurance policy at issuer required the agreement of the parties before appraisal could be invoked. Specifically, the court stated we "reverse as there was no agreement between the parties to appraise the loss as required by the appraisal provision of the Citizens policy." The court stated that "appraisals are creatures of contract" and "what is appraised and whether a party can be compelled to appraisal depend on the contract provisions." In this case, "Citizens complied with the appraisal provisions of the Policy. Citizens forwarded an Agreement for Appraisal. The Casars would not agree to the terms. Therefore, appraisal could not take place. Citizens complied with the policy provisions and, as such, the trial court had no basis to compel Citizens to appraisal." Therefore, the order compelling appraisal was reversed.

Vacating A Judgment/Order Requires Sworn Testimony Or Evidence--Not A Lawyers Argument

2012-12-27T09:48:00.000-05:00

In Chase Home Loans v. Sosa (3D12-1783), the Third District reversed an order vacating a foreclosure sale. The motion was filed by a husband who asserted that his wife, a co-signatory on the mortgage, "'actively concealed' the proceeding by hiding all notifications under the family sofa." The trial court vacated the sale, presumably "inspired by benevolence and compassion for the family." However, there was no issue of service of process and there was no sworn evidence or testimony submitted in favor of vacating the foreclosure sale.

The court stated that:

The husband’s motion was brought under Florida Rule of Civil Procedure 1.540(b), which permits a trial court to relieve a party or a party’s legal representative from a final judgment, decree or order based upon mistake, inadvertence, surprise or excusable neglect. However, as we often have said, unsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation....“It is of no moment in establishing facts that attorneys are ‘officers of the court’ as we often read when an unsworn representation is made.”...Nor is the fact that the wife may have been the subject of some undetected “degree of mental incapacity” during the course of the foreclosure action. Even if true, this does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant vacating a final judgment.

A motion to vacate requires the submission of actual sworn evidence in order to be considered on the merits. The motion in this case did not even have that. Because the attorneys mere legal argument was not sufficient, the court reversed the order vacating the foreclosure sale.

Florida Supreme Court: Certification of Need for Additional Judges

2012-12-26T11:39:00.000-05:00

In In re: Certification of Need for Additional Judges, the Florida Supreme Court fulfilled its constitutional obligation and sent a report to the Legislature regarding the various needs of the judiciary.

The Court noted the following regarding the circuit & county courts: "Several of our chief judges note, in particular, the long waits associated with obtaining hearing times. In some jurisdictions, dockets are so full that it takes several weeks to schedule a hearing." I imagine many lawyers in South Florida would be thrilled if it only took several weeks to obtain a hearing time. But, the Court's point is certainly correct.

With regard to the appellate courts, I found the following to be particularly interesting: "The Second District also notes that despite high caseloads and a reduction in resources including personnel, the judges and staff have made every effort to properly execute their responsibilities. However, they do so knowing that trying to absorb this increased workload limits the time available for the consideration of each case and the writing of opinions. This Court shares the concerns of the chief judge of the Second District and remains concerned about a diminished quality of justice resulting from high workload and a loss of resources." (emphasis supplied).

The Court certified the need for one additional Second District judge. The needs of the circuit and county court were included in an appendix to the opinion, which is copied at the bottom of this post. In what is a somewhat sad concluding statement, given the real need for new judges, the Court said: "To the extent funding is available, we urge the Legislature also to consider our certified need for additional judges."

Funds Not Property Of ERISA Plan Until Remitted To Plan

2012-12-12T11:15:00.000-05:00

In Pantoja v. Zengel (12-11036), the Eleventh Circuit affirmed the trial court's judgment that the money at issue was not an asset of the ERISA plan where the money had never been given to the ERISA plan. The court held:

Upon examination of the Plan documents, we find no clear and specific language indicating the fringe benefits are “plan assets” before they are actually remitted to the Plan. Indeed, unlike the plan documents in ITPE Pension Fund, this contract is not even susceptible to such a reading. See 334 F.3d at 1016. Without clear language or any evidence indicating otherwise, we conclude that the unpaid funds cannot be construed as plan assets; therefore, the Appellees did not breach a fiduciary duty as a matter of law.

"Possession of the Note Determines Standing to Foreclose"

2012-11-14T12:14:00.000-05:00

In Everhome Mortgage Co. v. Janssen (2D11-4592), the Second District reversed the trial court's order vacating a judgment and dismissing a complaint for lack of jurisdiction. The court stated:

We are compelled to point out that possession of the note determines standing to foreclose. See Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1117 (Fla. 2d DCA 2011). The holder of the original note endorsed in blank has standing. Id. "[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt . . . ." WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004)(quoting Johns v. Gillian, 184 So. 140, 143 (Fla. 1938)). More fundamentally, however,"[e]ven if [the plaintiff] lacked standing when it filed suit, the final judgment is merely voidable, not void." Dage v. Deutsche Bank Nat'l Trust Co., 95 So. 3d 1021, 1024 (Fla. 2d DCA 2012) (citing Phadael v. Deutsche Bank Trust Co. Americas, 83 So. 3d 893, 895 (Fla. 4th DCA 2012)).

As a result, the trial court's order was reversed.

Miccosukee Tribe Not Entitled To Immunity For Summones Issued to Banks

2012-10-15T11:11:00.000-04:00

In Miccosukee Tribe of Indians of Florida v. United States (No. 11-14825), the Eleventh Circuit released a published opinion and affirmed the trial court's order determining the Tribe could not invoke sovereign immunity to quash the subpoenas served on various financial institutions. The court's introduction, in part, stated:

In 2010, the Commissioner issued four summonses to third-party financial institutions to determine whether the Tribe had complied with its federal withholding requirements during the period from 2006 to 2009. The Tribe petitioned to quash the summonses on the grounds of sovereign immunity, improper purpose, relevance, bad faith, and overbreadth. The district court denied those petitions. Because we conclude that tribal sovereign immunity does not bar the issuance of these third-party summonses, the district court did not clearly err when it found that the summonses were issued for a proper purpose, and the Tribe lacks standing to challenge the summonses for overbreadth, we affirm.

"Indian tribes are required by law to deduct and withhold income taxes from gambling revenues paid to Indian tribe members. 26 U.S.C. § 3402(r)(1). Indian tribes are also subject to backup withholding, id. § 3406(a), and reporting requirements, id. § 6041(a). In 2005, the Commissioner of the Internal Revenue Service began to investigate the Miccosukee Tribe to determine whether the Tribe had complied with its reporting and withholding requirements."

"After finding that the Tribe had failed to comply with its tax obligations from 2000 to 2005, the Commissioner extended his investigation to the period from 2006 to 2009." As part of its investigation, "the Commissioner issued summonses to American Express, Citibank, Morgan Stanley, and Wachovia Bank to produce documents associated with the bank and brokerage accounts maintained by the Tribe at those institutions." The Tribe sought to quash the summonses. The Eleventh Circuit held:

We recognize that Indian tribes ordinarily enjoy sovereign immunity....But the Supreme Court has also explained that tribal sovereign immunity “is not congruent with that which the Federal Government, or the States, enjoy” and “is subject to plenary federal control and definition.”

The claim to tribal sovereign immunity here fails for two reasons. First, the summonses are not suits against the Tribe. Second, tribal sovereign immunity cannot bar a suit by the United States.

Issue Relating To Collection Of Judgment Against The State Certified To Florida Supreme Court

2012-10-10T10:50:00.000-04:00

In Florida Department of Agriculture And Consumer Services v. David Mendez (4D11-4644), the Fourth District stated: "Pursuant to Florida Rule of Appellate Procedure 9.125, we certify the following question to be of great public importance:

Are property owners who have recovered final judgments against the State of Florida in inverse condemnation proceedings constitutionally entitled to invoke the remedies provided in section 74.091, Florida Statutes, without first petitioning the Legislature to appropriate such funds pursuant to section 11.066, Florida Statutes?

The court's opinion in the case, released on July 25, 2012, can be viewed HERE. In the July 25th opinion, the court held: "We reverse that portion of the Palm Beach County order allowing execution against the Department and remand to the circuit courts for further proceedings consistent with this opinion. We also reverse that portion of the Broward County order holding that section 11.066(3) was constitutional as applied, because the issue was not yet ripe."