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

Florida Ban on Adoptions by Lesbians and Gays Declared Unconstitutional

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

In an opinion that took more than one year to write following argument of the case, the Florida Third District Court of Appeal has concluded that the state’s categorical ban against adoptions by lesbian and gay individuals is unconstitutional.

The court began with three observations: “First, there does not appear to be any disagreement between the parties regarding the facts of the case. The parties entered into a lengthy list of stipulated facts. The stipulated facts are attached as an appendix to this opinion. Second, the parties agree that the father is a fit parent and that the adoption is in the best interest of the children. Appendix ¶¶ 44-56. Third, the Department of Children and Families [“Department”] “agrees that gay people and heterosexuals make equally good parents.” Appendix ¶ 31.”

The adoptive father had fostered the children since 2004. “The children arrived with medical problems and other needs. X.X.G. arrived wearing a dirty adult-sized t-shirt and sneakers four sizes too small. Both children were suffering from ringworm and the four-month-old suffered from an untreated ear infection. X.X.G., the four-year-old, did not speak and his main concern was changing, feeding and caring for his baby brother.”

The court concluded, “We affirm the judgment of adoption, which holds subsection 63.042(3), Florida Statutes, violates the equal protection provision found in article I, section 2, of the Florida Constitution.” It declined to decide whether the Florida ban violated the children’s constitutional right to equal protection of the law or the children’s statutory right, under federal law, to a permanent home.

The Department of Children and Families has the right to seek further review in the Florida Supreme Court.

The case is Florida Department of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G., and the court’s opinion contains a detailed and fascinating review of scientific data.

Fifth DCA Addresses Bank’s Failure to Attend Foreclosure Sale

Posted: September 6, 2010 Filed under: Case Law, Law-Related News

U.S. Bank, N.A. v. Bjeljac involved a foreclosure gone awry. U.S. Bank obtained a judgment of foreclosure and properly noticed the foreclosure sale but forgot to send a representative to the sale. As a result, the Clerk of Court sold the property to a third party for a “grossly inadequate” price. U.S. Bank immediately realized its mistake and, the day after the sale, filed an objection and a motion to return third-party funds, vacate the certificate of sale and set aside the sale. The trial court denied the bank’s motion twice, both times without a hearing.

On appeal, U.S. Bank contended the trial judge erred in denying its motion. Florida’s Fifth District Court of Appeal affirmed in part and reversed in part. In affirming the trial court, the court of appeal determined that U.S. Bank failed to satisfy the “basic requirement” that its motion to cancel and reset the foreclosure sale “state with particularity the grounds therefore….”

The appellate court reversed the trial court’s order overruling the bank’s objections to the sale price and refusing to set aside the sale, however. In doing so, the Fifth District pointed to section 45.031(8), Florida Statutes (2009), which required that “…objections shall be heard by the court.”

Addressing what it means to be “heard,” the court stopped short of saying that all motions require “an in-court proceeding with counsel physically present.” Being heard does, however, require that the objections not be summarily denied “ex parte and without notice to all interested parties,” wrote the court. Thus the court of appeal sent the case back to the trial court for a hearing on the question whether the bank’s failure to have a representative present at the sale was the result of a mistake. In Florida, a judicial sale may be set aside where a grossly inadequate price results from “mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party.”

Admitted: Florida, Kansas, New Mexico (inactive)