3d DCA Watch -- No Exit (With Palm Trees).

I was talking to a prominent appellate lawyer the other day, when all of sudden the conversation took an odd turn...

Can I confess something? I tell you this as an artist, I think you'll understand. Sometimes when I'm driving... on the road at night... I see two headlights coming toward me. Fast. I have this sudden impulse to turn the wheel quickly, head-on into the oncoming car. I can anticipate the explosion. The sound of shattering glass. The... flames rising out of the flowing gasoline.

Right. Well, I have to - I have to go now, because I, I'm due back on the planet Earth.

With that let's get right to the robed ones and their weekly dispatches from the supercooled, super-swilled, all-terra firma bunker of justice:

Hair v. Morton:

Oh Ruby Hair.

Can you come up with a better name for a plaintiff than Ruby Hair?

Anyways, poor Ruby Hair (that's Ms. Hair, to you!) maybe missed a thing or two in responding to some discovery on her medical history, and BOOM -- the defendant moved to dismiss her whole case as a sanction and BOOM -- evidently Judge Cardonne agreed, and then everybody high-fived each other and/or otherwise forgot about it and then one day in band camp:

It cannot be overstated that dismissal of an action is a severe sanction, and should only be employed in extreme circumstances.

Oh oh:

While Hair’s discovery responses might preclude some of her claimed damages regarding her lower back, they do not address the issue of liability, nor address all of Hair’s claimed damages so as to justify dismissal of her action.

Indeed, any allegations against Hair regarding inconsistencies, non-disclosure or even falseness are more appropriately dealt with through cross-examination or impeachment before a jury – not through dismissal of her action.

Wild, cross-examination and impeachment -- what will they think of next?

Jacobson v. Sklair:

I'm pretty sure this was the plot of an old Three Stooges short:

Mr. Levitt informed the co-trustees’ counsel that the original Order signed by the trial court on April 13, 2009 had been lost and never placed “of record” and that he had decided to proceed ex-parte to obtain a replacement Order in order to be in a position to obtain a post-judgment Writ of Garnishment and execute upon the judgments. Indeed, Mr. Levitt relied exclusively on the May 5, 2009 Order in order to obtain a Writ of Garnishment to execute against the co-trustees’ assets.

On June 3, 2009, the co-trustees’ counsel filed a notice of appeal of the May 5 order. Jacobson v. Sklaire, Case No. 3D09-1528 (Fla. 3d DCA June 3, 2009). At the time that the notice of appeal was filed, the May 5 order was the only order filed of record or docketed in the trial court below.

In August, while examining the record prepared by the clerk for the appeal in 3D09-1528, the co-trustees’ counsel found that the April 13 order purportedly had been filed of record on April 16. A trial court clerk informed counsel that on July 10 the clerk’s office located the original April 13 order, which was stamped “filed for record” on April 16, and proceeded to docket the order as of April 16 based on the date stamp. Shortly thereafter, the co-trustees filed a verified motion to vacate the April 13 order pursuant to Florida Rules of Civil Procedure 1.540(a) and (b) based on clerical mistake and mistake, inadvertence, surprise or excusable neglect. Following a hearing, the trial court denied the motion.

Wow.

Seriously?

What can I say, gotta love state court!