Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

11th Circuit Dismisses Corbitt v. Home Depot U.S.A., Inc.

Posted: July 28, 2010 Filed under: Law-Related News, Uncategorized

Earlier posts on this blog (July 20, 2009, and March 14, 2010) discussed the split decision by a panel of the Eleventh Circuit Court of Appeals in Corbitt v. Home Depot U.S.A., Inc. and that same court’s later decision to rehear the case en banc (hearing by all of the judges on the court rather than the original panel of only three judges).

An order released earlier this week suggests the parties have now settled their differences. In this order released July 27, 2010, the Eleventh Circuit granted a “a Joint Motion to Dismiss Appeal with Prejudice.” Perhaps more importantly, the original panel decision in favor of Home Depot has no value as precedent because that decision had been vacated by the order for rehearing en banc:

The panel opinion, published in 589 F.3d 1136, had already been vacated by our order granting rehearing en banc. Corbitt v. Home Depot U.S.A., Inc., 598 F.3d 1259, 1259 (11th Cir. 2010) (en banc). The judgment of the district court is vacated and the case is remanded to the district court with instructions that the case be dismissed.

Fifth DCA Resolves Lemon Law Claim in Favor of Consumer

Posted: July 25, 2010 Filed under: Case Law, Law-Related News

Concluding that the evidence presented by a Mustang owner and his expert was sufficient to create a conflict with the evidence presented by Ford Motor Company, Florida’s Fifth District Court of Appeal reversed a trial judge’s order granting directed verdict in favor of Ford (in other words, the trial court had taken away a jury’s finding in favor of the consumer).

Medina v. Ford Motor Co. involved a 2006 Mustang purchased from a Seminole County Ford dealership. Soon after the purchase, the car’s owner noticed that “the engine would rev when he stopped at a stop light and would idle at 3000 rpms or above. Each episode lasted approximately 20 seconds. In addition, the gas tank did not fill properly.”

In reaching its decision reinstating the jury’s verdict in favor of the consumer, the Court of Appeal summarized the Florida Lemon Law as follows:

By enacting the Florida Lemon Law, the Legislature created a procedure by which consumers could either receive a replacement vehicle or a full refund for a vehicle that cannot be brought into conformity with the warranty provided in the act. § 681.101, Fla. Stat. (2009). A “nonconformity” is defined as “a defect or condition that substantially impairs the use, value, or safety of a motor vehicle, but does not include a defect or condition that results from an accident, abuse, neglect, modification, or alteration of the motor vehicle by persons other than the manufacturer or its authorized service agent.” § 681.102(16), Fla. Stat. (2009). Under the Florida Lemon Law, a manufacturer is liable if a motor vehicle:

[d]oes not conform to the warranty and the consumer first reports the problem to the manufacturer or its authorized service agent during the Lemon Law rights period, the manufacturer or its authorized service agent shall make such repairs as are necessary to conform the vehicle to the warranty, irrespective of whether such repairs are made after the expiration of the Lemon Law rights period. Such repairs shall be at no cost to the consumer if made during the term of the manufacturer’s written express warranty. § 681.103(1), Fla. Stat. (2009).

After three attempts to repair the nonconformity, the consumer is required to give the manufacturer written notification of the need to repair the nonconformity and a final opportunity to cure it. The manufacturer must respond and give the consumer the opportunity to have the vehicle repaired. § 681.104(1)(a), Fla. Stat. (2009). If the manufacturer or service agent is unable to fix the nonconformity after a reasonable number of attempts, it must repurchase the motor vehicle and refund the full purchase price to the consumer or provide the consumer with an acceptable replacement vehicle. § 681.104(2)(a), Fla. Stat. (2009).

Reminder: One Should Understand a Contract Before Signing It

Posted: July 22, 2010 Filed under: Case Law, Commentary, Law-Related News

In a short opinion released July 21, 2010, Florida’s Second District Court of Appeal held that a contract means what it says and that the president of the corporate tenant was personally liable for rent payments his corporation failed to pay. The clause that tripped up the corporation’s owner and president was contained in the 36th paragraph of the lease agreement. That clause read:

If the Tenant is a coporation [sic], limited liability company or limited partnership, the undersigned officer, manager or representative of the Tenant hereby certifies and warrants that said Tenant is in good standing and authorized to do business in the state of Florida and the individual executing this Lease on behalf of said corporation, limited liability company or limited partnership, guarantees the obligations of Tenant hereunder. (Emphasis added.)

One moral to be taken from the court’s opinion in Coleman v. 688 Skate Park, Inc. and Jay Turner is this: Individuals participating in business transactions should read and understand all provisions of a contract before signing the contract.


Posted: July 15, 2010 Filed under: Case Law, Commentary, Law-Related News

The U.S. Supreme Court decided Doe No. 1 v. Reed, No. 09-559 (June 24, 2010) in an 8 to 1 opinion holding that disclosure of referendum petitions containing the names and addresses of signers generally does not impermissibly burden free speech: “We conclude that such disclosure does not as a general matter violate the First Amendment, and we therefore affirm the judgment of the Court of Appeals.”

The case gained public attention because the underlying referendum involved a Washington state law that “‘expand[ed] the rights and responsibilities” of state-registered domestic partners, including same-sex domestic partners.’” An organization called Protect marriage Washington collected 137,000 signatures in order to put the law before the general electorate. Individuals and entities requested copies of the petitions under the Washington public records law, and two organizations, and, announced that they would the names of the petition signers online, in searchable format.

The petition sponsor and some signers filed a complaint seeking to declare the Washington public records law unconstitutional to the extent it permitted revelation of their names and contact information. The trial court ruled that the law “burdened core political speech” and ruled the petitions confidential. The Ninth Circuit Court of Appeals reversed, and the Supreme Court affirmed the Ninth Circuit’s decision.

Of note, the decision did not resolve the dispute in Washington. Writing for the Court, Chief Justice Roberts was careful to point out that the issue it decided was general rather than specific – “not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so.” The Court answered the general question instead of the specific question because the trial court and the court of appeals had ruled only on the broader issue. So, now, the trial court must determine whether releasing the specific petitions would unconstitutionally burden free speech by subjecting signers to threats, harassment, or reprisals if their names were disclosed.

At this point, the purpose for seeking the identity of the signers is moot: Washington voters approved the domestic partner law by a margin of 53% to 47%.

Probable Cause in Florida Seizure Proceedings Does Not Require Showing of Actual or Constructive Knowledge

Posted: July 11, 2010 Filed under: Case Law, Law-Related News

Interpreting the Florida Contraband Forfeiture Act, a unanimous Florida Supreme Court decided on July 8, 2010, that an agency seizing property used in criminal activity does not have to prove at the initial seizure stage that the owner of the property knew or should have known the property was being, or was likely to be, employed in criminal activity. “Rather, at the seizure stage, the seizing agency is required to establish only that there is probable cause to believe that the property was being employed or likely to be employed in criminal activity—establishing the owner’s actual or constructive knowledge is not required until the forfeiture stage.” Forfeiture proceedings in Florida are a two-stage process in which the first stage addresses seizure of the property and provides for an adversarial preliminary hearing. The second stage is the actual forfeiture proceeding in which the court or jury determines whether the property will be forfeited.

In reaching its decision, the Court noted that the statute “clearly focuses on the property” rather than the owner’s actual or constructive knowledge. Thus, the Court approved the decision by the Third District Court of Appeal that was under review and disapproved earlier decisions by the First and Fifth District Courts of Appeal that had held probable cause required, among other things, a preliminary showing of the owner’s actual or constructive knowledge of criminal activity.

The Florida Supreme Court’s opinion is Gomez v. Village of Pinecrest, No. SC09-1401 (Fla. July 8, 2010) and can be found HERE.

Admitted: Florida, Kansas, New Mexico (inactive)