| Date issued: 01/25/2011 | |
| Editor: Betsy Stupski |  |
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.
Appellate Alert 2011-2
January 25, 2011
United States Supreme Court
Thompson v. North American Stainless 09-291
1/24/2011
Employee who was fired allegedly in retaliation for his fiancée’s sex discrimination suit was allowed to pursue his own Title VII claim.
Miriam Regalado filed a sex discrimination charge with the EEOC against her employer. Sometime later the employer fired her fiancée, who was an employee of the same company. The fiancée then filed his own claim for retaliation. The District Court granted a summary judgment to the defendant employer because a third-party retaliation claim was not allowed under Title VII. The Sixth Circuit affirmed the District Court.
The United States Supreme Court found that Title VII should be construed more broadly to cover the fiancée’s retaliation claim. However, the Court cautioned that Title VII standing should not be construed as broadly as Article III standing.
09-291 USSCcv Thompson v N.American.pdf Eleventh Circuit Court of Appeals
Zisser v. The Florida Bar 10-11974
1/19/11
The Florida Bar’s certification procedures are upheld.
Zisser was certified as a marital and family law specialist by the Florida Bar but upon reapplication she was denied recertification. The recertification was denied because of negative peer review by a number of colleagues. Zisser appealed to the Committee but was again denied recertification. She then appealed to the Florida Bar Board of Legal Specialization and Education which affirmed the Committee’s decision. After filing two more unsuccessful appeals within the Florida Bar, Zisser eventually sought review in the Florida Supreme Court. When the Florida Supreme Court denied her petition for review, Zisser filed an action in federal district court challenging the constitutionality the peer review components to the certification process as applied. She also challenged the action of the Committee and the Florida Bar on due process grounds. The district court dismissed the action pursuant to the Rooker-Feldman doctrine on the as applied constitutional challenges. The court also found that Zisser did not meet the test for a due process violation because she was not being deprived of a constitutionally protected property or liberty interest.
The Eleventh Circuit affirmed.
10-11974 11circv Zisser v FlaBar.pdf
First District Court of Appeal
Tallahassee Memorial Healthcare, Inc. v. Alexander 1D10-6377
1/24/11
Judge’s comment implying lack of faith in one of the parties justified disqualification.
The trial judge made a statement that she had faith “as long as my fingernail” that the defendant had produced documents sought by the plaintiff. The Plaintiff then moved to disqualify the judge but the motion was denied.
The First District remanded with directions that the motion for disqualification be granted and a new judge be assigned.
1D10-6377 1dcacv TMH v Alexander.pdf
Fifth District Court of Appeal
City of Palm Bay v. Wells Fargo Bank, N. A. 5D09-1810
1/21/11
County ordinance which gave superpriority to code enforcement liens was in conflict with state law.
City of Palm passed an ordinance which gave its code enforcement liens superpriority over a prior recorded mortgage. The ordinance incorporated by reference the provisions of Chapter 162, Florida Statutes. However, the ordinance also altered some of the provisions of Chapter 162. When Palm Bay was named as a defendant in an action for foreclosure, the city asserted the priority of its two code enforcement liens over an earlier recorded mortgage held by Wells Fargo. Wells Fargo objected and moved for summary judgment. The trial court granted the motion for summary judgment in favor of Wells Fargo.
The question on appeal was whether the City of Palm Bay could grant superpriority to its enforcement liens over a prior recorded mortgage. The Fifth District affirmed the trial court stating, “In relevant part, section 695.11, Florida Statutes, provides that any instruments required to be recorded pursuant to section 28.222, Florida Statutes, will be deemed recorded once an official register number is affixed. It further provides that recorded instruments with a lower official number will have priority over one with a higher number. This statute codifies, as Palm Bay recognized at oral argument, the common law rule of first in time, first in right. Thus, the Legislature has decided that priority for instruments such as mortgages and liens will generally follow the first in time rule. Ordinance 97-07 conflicts with this mandate by granting Palm Bay's code enforcement liens priority over a mortgage, even when the mortgage was recorded before the lien. The only way ordinance 97-07 can be effective is by violating the terms of section 695.11. Consequently, ordinance 97-07 must yield to the statute.”
5D09-1810 5dcacv Palm Bay v Wells Fargo.doc
Marion v. Orlando Pain & Medical Rehabilitation 5D06-4243
1/12/11
Counsel was required to show cause when he filed an improper motion for rehearing.
Appellant’s counsel moved for rehearing on a per curiam opinion. In his motion counsel expressed his indignance over the per curiam affirmance of the trial court’s order. Counsel then tried to go over the facts again but his statement of facts was supported by the record. Opposing counsel moved for sanctions. The Fifth District noted that the issues of law in the case were not novel and ordered Appellant’s counsel to show cause why he should not be sanctioned.
5D06-4243 5dcacv Marion v Pain.doc
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