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3d DCA Watch -- Promises Promises Edition

Kids, it's that time again -- admit it, it feels like Christmas comes every Wednesday -- when the resplendently robed ones appear to communicate with the faithful masses, the ham and schleppers, the poets and the dreamers, and all four of the sons from Passover.

(Hmm, that pretty much describes my law firm.)

Yes, a very slight fissure has emerged on an outer retaining wall at the Concrete Bunker of Justice, conveniently located so far south you might as well just keep on heading straight down to the Keys, and written utterances (known to some as "orders") are slowly wafting their way north to where all the lawyers actually live and practice, so kids let's get right to what the mighty coffee-swillers are up to this week in our patented 3d DCA Watch:

United Auto v. Salgado:

Ok, I'm going to close my eyes and predict what is in this opinion:

1. Trial court rules against United.
2. 11th Circuit sitting in its appellate capacity affirms trial court.
3. 3d DCA reverses.

Was I right?

See, I don't even need to read them anymore.....

Salinas v. Medina:

Should lawyers have to keep their promises?

I know it's a ridiculous question, so let me amend it slightly -- should lawyers who make promises in open court have to stick to their promises?

This, btw, is a terrific fact pattern:

According to the plaintiff, an issue arose as to whether the plaintiff had properly pled his claim for treble damages pursuant to section 768.0425. The plaintiff interpreted the court's remarks as meaning that his damages claim would be stricken by the court.

At that point, the plaintiff's counsel requested leave to confer with his client about whether to voluntarily dismiss the action. Upon returning to the hearing, the plaintiff?s attorney stated ?The plaintiff will - - or I guess through this act is filing a voluntary dismissal without prejudice.? Then, in response to a question from defense counsel, the plaintiff?s counsel said ?[a]nd I?ll file a pleading to this effect.? The proceedings terminated at that point.

Thereafter, the defendants filed a motion for attorneys? fees and costs. Upon receiving the motion, rather than filing the notice of voluntary dismissal as promised to the court and to counsel, the plaintiff filed his ?Motion for Relief from Purported Voluntary Dismissal.? The plaintiff argued that his dismissal in open court was ineffective, that he did not file a written notice of voluntary dismissal, and therefore he should be relieved of any dismissal of the action. The court declined to grant relief from the voluntary dismissal and the plaintiff has appealed.

I love how the lawyer argues that oral dismissals are not effective. True, but you kinda look like a schmuck arguing that your own promise in open court was a legal nullity.

"But my fingers were crossed, Your Honor!!"

Judge Cope, as usual, gets to the heart of the matter:

In this case, defense counsel specifically asked plaintiff?s counsel if he would file a pleading voluntarily dismissing his action and plaintiff's counsel stated that he would. That representation was made on the record both to opposing counsel and the court. The assurance was given after plaintiff?s counsel had obtained his client's consent. We conclude that the plaintiff is bound thereby.

Now really folks, is that so hard?

Full post as published by South Florida Lawyers on August 05, 2009 (boomark / email).