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

Estate Tax Update

Posted: December 17, 2010 Filed under: Uncategorized

As this article and other news reports explain, Congress has passed an $858 billion tax cuts package that includes provisions reinstating the estate tax at a rate of 35 percent for individuals with estates worth more than $5 million ($10 million for couples). The legislation now goes to President Obama for his signature.

Segway Lawsuit Returns to District Court

Posted: December 15, 2010 Filed under: Case Law, Law-Related News, Uncategorized

In this two page Order, the U.S. Court of Appeals for the Eleventh Circuit vacated a district court order dismissing a class-action lawsuit originally filed against Disney by three disabled individuals. Readers can find news of the 2009 dismissal here. The Eleventh Circuit’s decision sends the case back to the district court for, among other things, “a determination as to whether the claims of the named plaintiffs are typical of the claims of the class and whether they are adequate representatives of the class.”

Court Controls Date of Foreclosure Sale

Posted: December 10, 2010 Filed under: Case Law, Uncategorized

LR5A-JV v. Little House, LLC, No. 5D09-3857 (Fla. 5th DCA Dec. 10, 2010) is yet another case emanating from Florida’s foreclosure crisis. Little House involved the judgment holder’s claim that it alone had “the right to control when, if at all, a foreclosure sale takes place under section 45.031, Florida Statutes (2010).” Because the trial court scheduled a sale on the motion of the owner’s association (which was harmed by a delay in the sale because it could not collect assessments from the judgment holder until the sale concluded), the judgment holder contended “that the trial court was not authorized to order a post-judgment, judicial sale of the mortgaged property, or, if the trial court possessed such authority, it abused its discretion in ordering the sale.”

The Fifth District Court of Appeal flatly rejected the judgment holder’s argument. Relying on the plain language of section 45.031(1)(a), the equitable nature of foreclosure proceedings, and the report of the Task Force on Residential Mortgage Foreclosure Cases, the court of appeal held that the “trial court’s order setting the judicial sale fully comports with the statute,” which “clearly required the trial court to set a judicial sale date between 20 to 35 days after entry of the final judgment or order directing a judicial sale, but allows an extension with the plaintiff’s consent.”

Estate Tax Update

Posted: December 9, 2010 Filed under: Law-Related News, Legislation, Uncategorized

Followers of the estate tax, also known as the “death tax,” will recall that, in 2001, Congress voted to gradually raise the estate tax exemption (the value of an estate exempt from taxation) until 2010, when the estate tax would end. Before 2010, many estate-tax watchers believed that Congress step in before the full expiration of the estate tax and reinstate it. But that did not happen.

Consequently, like the Bush administration’s income tax cuts, the reduction in the estate tax was on course to expire at the end of 2010. In other words, 2010 was shaping up to be a year of no estate taxes followed by reinstatement of the estate tax on January 1, 2011, at levels that could have imposed taxes of up to 55% on estates valued at more than $1 million. By comparison, the tax rate in 2009 topped out at 45% for estates worth more than $3.5 million.

This past Monday, as part of his announced compromise with congressional Republicans, President Obama announced a planned 35 percent estate tax and a $5 million exemption (he had previously advocated for return to the 2009 rate and exemption). President Obama’s mere announcement of the compromise does not carry the force of law, so we will have to stay tuned to see what actually becomes the law. Also, other important details remain to be worked out, such as:

Whether the estate tax will be retroactive to January 1, 2010, or will begin January 1, 2011;

Whether the lifetime gift tax exclusion and estate tax exemption amounts will be adjusted for inflation.

Whether surviving spouses will be allowed to use their deceased spouse’s unused portion of the lifetime gift tax exclusion amount; and

Whether the lifetime gift tax exclusion amount will be reunified with the estate tax exemption amount as it was prior to 2001.

Stay tuned. This post does not represent the final word on the estate tax changes – good or bad – that lie ahead.

Sanctions Awarded for Failure to Appear at Appellate Mediation

Posted: December 3, 2010 Filed under: Case Law, Uncategorized

In Mash v. Lugo, No. 5D10-2256 (Fla. 5th DCA Dec. 3, 2010), Florida’s Fifth District Court of Appeal reaffirmed the understanding that a party’s actual presence at mediation is often critical to the success of mediation. In Mash, the parties did not appear because they claimed they lacked authority to bind their insurance company to any settlement and that the insurer’s attorney had full settlement authority. That was not good enough, said the court. Citing Florida Rule of Appellate Procedure 9.720(a)(3), the court noted, “By its express terms, subsection (a)(3) excludes an insurer’s outside counsel from being considered the insurance carrier’s representative.”

The Court ordered the absent parties to pay “all fees charged by the mediator in connection with this appellate mediation” and the the reasonable attorney’s fees to opposing counsel in connection with “preparing for and attending the appellate mediation and filing the motion for sanctions.”

Admitted: Florida, Kansas, New Mexico (inactive)