Case studies: Some of last year's highest-visibility legal cases
Bartram v. U.S. Bank
In 2005, a Ponte Vedra Beach homeowner named Lewis Bartram took out a $650,000 mortgage to buy out his ex-wife in a divorce settlement. In 2006, he stopped making payments on that mortgage, and the law firm of David Stern filed a foreclosure suit against him on behalf of U.S. Bank.
Stern, who ran what was once considered Florida’s biggest foreclosure “mill,” eventually went out of business amid allegations of mismanagement and fraud. Among the tens of thousands of foreclosure cases left in limbo was Bartram’s.
In 2011, a judge dismissed the 2006 foreclosure action against Bartram when the bank failed to appear at a case management conference.
A year later, Bartram tried to get a judgment against the bank to prevent it from making any future claims on the property. The basis for his cross-claim? That Florida’s fi ve-year statute of limitations for foreclosure cases had run out.
A trial court ruled in Bartram’s favor, which canceled the mortgage and removed the bank’s lien on the property. But U.S. Bank appealed, and in 2014, Florida’s 5th District Court of Appeal reversed the lower court’s ruling.
With courts around Florida inundated with foreclosure cases, Bartram v. U.S. Bank raised a timely question: Given the statute of limitations, can a lender that had a foreclosure suit dismissed more than five years after demanding to be paid in full still seek to foreclose on a delinquent mortgage?
Bartram’s attorneys argued that when U.S. Bank filed for foreclosure and demanded full payment, the statute of limitations began running on the entire amount owed. By that reasoning, the bank could not come after him again once the fi ve-year statute of limitations ran out. The bank countered that Bartram’s mortgage remained an installment loan, and that each missed monthly payment formed the basis for a new foreclosure suit after the first effort to foreclose failed.
The case ended up before the Florida Supreme Court, which ruled in the bank’s favor last November. The Supreme Court said that the dismissal of the initial foreclosure lawsuit simply returned the parties to their pre-foreclosure relationship. Bartram then had an opportunity to make mortgage payments, and the bank retained the right to file a new suit based on any default that occurred within the past five years, the court said.
Attorneys for banks declared it the end to “free houses” for defaulted borrowers in Florida.
Michele Stocker, a Fort Lauderdale lawyer who represents lenders, says the ruling provides much-needed clarity in the foreclosure arena, where the statute-of-limitations issue became a popular defense strategy as cases slowly ground their way through the courts in the years following the recession.
After the Supreme Court’s decision, “you had consumers withdrawing their defenses or calling you up because now they wanted to reach a resolution,” says Stocker, a Greenberg Traurig shareholder and co-chair of the firm’s consumer financial services litigation practice.
Meanwhile, some predict a shortterm uptick in foreclosure activity as lenders resurrect dismissed foreclosures dating back to the financial crisis. “The banks now feel confident they can move forward with some of those foreclosures that were in question,” says Daren Blomquist, senior vice president at ATTOM Data Solutions, a real estate research firm. “The market is strong enough to absorb that uptick, so it’s not going to be a major shock.”
Eventually, Bartram sold his home and moved out. His former attorney, Kendall Coffey, says he died recently “after a long and heroic battle with cancer. He was a remarkable man.”
Westphal v. City of St. Petersburg
In 2009, Brad Westphal, then a 53-year-old St. Petersburg fi refi ghter, injured his back while moving furniture in a house fire. He began receiving temporary disability benefi ts, but those, by state law, stopped after 104 weeks. In week 105, Westphal went into limbo. He was getting better, but hadn’t fully recovered. Doctors wouldn’t declare him permanently disabled, but they wouldn’t clear him to return to work, either. Meanwhile, he had no income. In a 5-2 decision, the Florida Supreme Court ruled that disability payments can’t be capped at 104 weeks for an injured worker who is not yet fully recovered but might eventually improve enough to return to work. The court reinstated the previous limit of 260 weeks for temporary total disability benefits.
The court’s opinion, written by Justice Barbara Pariente, says the state’s 104-week cap was unconstitutional because it amounted to denying a worker access to courts. “The statute cuts off a severely injured worker from disability benefi ts at a critical time, when the worker cannot return to work and is totally disabled but the worker’s doctors — chosen by the employer — deem that the worker may still continue to medically improve,” Pariente wrote.
By depriving an injured worker of benefi ts “for an indefinite amount of time,” she said, the statute created “a system of redress that no longer functions as a reasonable alternative to tort litigation.”
The ruling came on the heels of a 2016 state Supreme Court decision that overturned a statutory limit on legal fees that employers must pay when injured workers successfully sue. Insurers say the rulings have led to higher worker’s comp premiums for businesses in Florida, and in May, a state appeals court upheld a 14.5% rate increase approved by regulators last fall.
Eventually, Westphal was declared permanently disabled. He now receives full benefiTS.
Asay v. Florida
In January 2016, the U.S. Supreme Court declared the state’s death penalty system unconstitutional because it gave too much power to judges to decide whether to sentence defendants to death. In response, the Legislature overhauled the state’s death penalty law but didn’t require that all members of a jury vote in favor of imposing the death penalty.
In a pair of rulings last October, the state Supreme Court said the new law was still unconstitutional because it allowed a 10-2 jury verdict to sentence someone to death, “as opposed to the constitutionally required unanimous, 12-member jury.” It then fell to the justices to determine what should happen to the nearly 390 inmates on Florida’s death row under old sentencing rules.
Mark James Asay had been convicted in 1988 of killing two men in Jacksonville in 1987. A jury voted 9-3 to recommend death, but the judge made the final decision to impose capital punishment. After the U.S. Supreme Court’s 2016 decision, Asay’s attorneys argued that his sentence was unconstitutional under the higher court’s ruling.
Florida Attorney General Pam Bondi countered that the ruling should not be applied retroactively to longdecided cases.
The state Supreme Court postponed Asay’s execution, but then voted last December to lift the stay — and to leave death sentences intact for nearly 200 inmates whose cases were finalized before 2002, when the U.S. Supreme Court ruled that juries must find aggravating factors to impose the death penalty.
Until recently, Florida was one of only three states that allowed judges to impose death after nonunanimous jury recommendations. In March, the Legislature passed a bill requiring unanimity for death sentences, bringing state law into line with last year’s court rulings. The Asay decision could pave the way for some executions to begin again in Florida after more than a year’s hiatus. As of May, the state had yet to set a new execution date for Asay.
Dale Lee Norman v. State of Florida
RULING: A Florida law that prohibits people from openly carrying guns in public does not violate the Second Amendment and can remain in effect, the state Supreme Court ruled.
DETAILS: In 2012, Dale Lee Norman, a Fort Pierce resident, received his concealed carry license and used the opportunity to take a walk along U.S. 1, openly carrying a .38-caliber handgun in a holster on the outside of a “tight-fitting tank top,” according to police. Norman, who was arrested and charged with a second-degree misdemeanor, argued that the Second Amendment gave him the right to carry his gun in the open just as it allowed him to keep a gun at home for self-defense.
The court disagreed, saying Florida’s open carry ban “does not severely burden” the right to selfdefense because it regulates “only how firearms are borne in public,” and the state’s concealed-carry licensing system still allows people to have a gun outside the home.
Gun-rights activists saw the 4-2 ruling as a blow, saying Florida is one of only five states that require firearms to be hidden. “Florida’s generally applicable ban on the open carrying of firearms is unjustifi ed on any ground that can withstand even intermediate scrutiny,” Justice Charles Canady wrote in his dissent. A bill to legalize open carry failed to pass through the Legislature this year.
Gainesville Woman Care v. The State of Florida
RULING: A state law imposing a mandatory 24-hour waiting period for abortions remains suspended as a result of a 4-2 Florida Supreme Court decision.
DETAILS: In 2015, the Legislature passed the Mandatory Delay Law, which would require women to wait 24 hours after consulting with a doctor about an abortion before having the procedure. A day after Gov. Rick Scott signed the law, the American Civil Liberties Union of Florida sued on behalf of a Gainesville women’s health clinic, saying the waiting period violates fundamental privacy rights.
A lower court struck down the law, but Florida’s 1st District Court of Appeal overruled that decision. The state Supreme Court then granted a temporary injunction halting enforcement of the law, and justices heard arguments in the fall.
In February, Justice Barbara Pariente, writing for the majority, noted that no other medical procedure, “even those with greater health consequences, requires a 24- hour waiting period in the informed consent process.” She also said that by requiring at least two visits to an abortion provider, the law increased the chances that a woman’s decision to end her pregnancy would not remain confidential.
Nancy Abudu, legal director for the ACLU of Florida, praised the ruling. “This law had one purpose: To limit a woman’s access to her constitutionally guaranteed medical care.”
In a dissenting opinion, Justice Charles Canady argued that the plaintiffs had failed to prove the waiting period imposed “a significant restriction on the right to an abortion.”
Florida Family Policy Council President John Stemberger, in criticizing the ruling, told the Orlando Sentinel that the decision to have an abortion is an “irreversible, life-changing” one, and a waiting period “to make sure a woman knows what she’s doing is not a substantial burden.”
SIGNIFICANCE: The high court sent the case back to the 1st District Court for more discussion. The temporary injunction remains in place until that court weighs in on the law’s constitutionality. Last summer, a federal judge issued a permanent injunction against another Florida law that would have prohibited public funds from going to health clinics where abortions are performed.
Joanne McCall v. Rick Scott
In 2001, the Florida Legislature began allowing businesses to take dollar-for-dollar tax credits for contributions to a fund that pays for low-income children to choose a private school education. Since then, children in the program have taken advantage of some 579,000 scholarships to attend private schools, including religiously affiliated schools.
In 2014, the Legislature passed a bill that expanded the program by offering partial scholarships to middle-income children — those with family incomes up to 2.6 times the federal poverty level (about $63,180 for a family of four). The Florida Education Association, the state’s main teachers union, opposed the bill, then sued to try to have the program declared unconstitutional.
The union’s suit argued that the Florida Tax Credit Scholarship Program violates the state’s constitution by diverting state funds from public schools to religious organizations and by using taxpayer money to create a parallel education system. School choice advocates countered that the program actually saves the state money because the amount of each voucher is less than what the state spends in per-student public school funding.
Two lower courts ruled the teachers union did not have legal standing to challenge the program, and the 1st District Court of Appeal found no proof of “concrete harm.” The appeals court’s opinion also noted that the program does not violate the separation of church and state rule because it involves the Legislature’s taxing power rather than spending. The union appealed to the state Supreme Court, which declined to hear the case in January, effectively ending the lawsuit.
Today, the program continues to expand. The state’s annual cap on tax credits for private school scholarships is set to increase to nearly $700 million for the coming school year, up from about $560 million last year. The program serves nearly 100,000 children statewide, making it the largest K-12 voucher program in the U.S.
Trump Endeavor 12 v. Fernich d/b/a The Paint Spot
In 2013, a subcontractor working on the renovation of the Trump National Doral golf resort ordered $142,000 worth of paint from The Paint Spot in Doral. The paint was delivered and used, but the subcontractor walked off the job after not getting paid. Trump Endeavor, the resort’s owner, had paid part of the store’s paint bill but refused to pay a balance of $32,535 after the subcontractor quit.
The store filed a lien against the property to recover the debt, and the resort mounted a defense on technical grounds, pointing to an alien document that store owner Juan Carlos Enriquez filed naming the wrong contractor. Trump lawyers argued that although a Trump executive initially provided the wrong information, Enriquez had submitted the error and the lien was thus invalid.
A Miami-Dade Circuit Court sided with the store, and Trump’s lawyers appealed. In April, Florida’s 3rd District Court of Appeal upheld the lower court’s decision, saying the resort had failed to prove that it was hurt by the error and had to pay for the paint, plus nearly $300,000 in legal fees.
The appeals court’s opinion, written by Judge Kevin Emas, cited trial testimony from a general contractor’s project manager indicating the decision to not pay the paint store had nothing to do with the paperwork error. “They weren’t paid because Mr. Trump had already paid (the subcontractor) a decent amount of money of the contract … and there was still a lot of work that needed to be completed, so we used the money, (the subcontractor’s) remaining balance, plus additional funds to get the work done,” the project manager testifi ed.
During last year’s presidential election campaign, now-President Donald Trump was heavily criticized for his litigious nature and alleged history of stiffi ng contractors. The Paint Spot dispute played into that narrative. In May, the resort paid the store for the paint, plus $1,634.06 in interest.
Flo & Eddie v. Sirius XM Radio
Fifty years after releasing their hit tune “Happy Together,” singers Mark Volman and Howard Kaylan — better known as Flo and Eddie — are waging a legal battle in Florida over oldies royalties.
In 2013, Volman and Kaylan, the former lead singers of the Turtles, sued satellite radio giant Sirius XM in federal court seeking digital royalties for their pre-1972 recordings. Sirius had not been paying royalties on “Happy Together” — or any other songs from the early ‘70s or before — because only recordings made after February 1972 are copyright-protected under federal law. Volman and Kaylan, who brought the suit as Flo and Eddie, asserted copyright protection under Florida common law.
A federal judge in Miami sided with Sirius, but the musicians appealed, and a three-judge panel with the 11th Circuit chose to seek input from Florida’s Supreme Court, which heard arguments in April.
Meanwhile, the musicians have fi led parallel class-action suits against Sirius in California and New York. Last November, Sirius agreed to pay at least $25 million to settle the California suit. In December, however, a New York appeals court handed Sirius a victory, fi nding that state common law does not protect the public performance of pre-‘72 sound recordings.
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