Introduction
Weidner Law Appeal Video
This oral argument video is on the case: 3DCA 11-2227 - Elsa Hinestrosa et al vs Richard J Diaz et al
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Content
So I feel at home for the formalities, Oscar sagar on behalf of LCD, no stress at GT, I export myself and my professional association.
I respectfully request two minutes to rebut to the arguments made by the appellant simply put they've conceded that what they stapled to a threatening letter is a draft motion.
That's their concession, a draft motion.
This Court does not recognize a draft motion as complying with the safe harbor requirements.
This court in Nathan versus Bates and Anchor towing, said we are going to strictly construe the safe harbor provision to require.
This is a motion with leather.
So it's not just a motion.
Correct below specifically refers to the motion.
It refers to an unsigned on baby's motion that accompanies the letter correct and the letter is something the letter is.
There's no question that this motion in the letter are sent together, and the letter refers to the motion and the motion puts you on notice, correct respectfully.
No, because why does it not put you on? This is no different than a threatening letter in Nathan or anchored tow a threatening letter with the motion, the motions there with an unsigned motion that also demanded a relief that is simply not afforded under 57 105 point 4.
They demanded a dismissal with prejudice, a dismissal with prejudice of the entire action, also not including attorneys fees, which is what this is all about, correct.
They demanded sanctions and the only way to alleviate the imposition of the sanctions.
Yes, you accepted the offer if I accepted a dismissal with prejudice which, whatever the offer, if I accepted their offer, but they're all sad.
You continue to litigate for four years on claims that you knew or should have known.
You could not prevail on I I respectfully, disagree in it well and, and then I'm gonna answer some other point about the defects in the motion and and the letter.
Why don't you? Why? Don't you get to the your disagreement with judge understood? This Court has already ruled that at worst, the litigation on the breach of fiduciary and legal malpractice claims was premature, not that it was meritless that action is proceeding now before judge dresnok.
With regard to the replevin, it was a he-said she-said as to whether or not a box of documents was furnished back on May 7th 2004.
Moreover, and and this is a critical point, their client admitted that the federal government had those documents and the federal government either lost or destroyed them, not all of them, and this is a very significant distinction.
I've never used.
The word fall.
The docket sheet below reflects that mr.
Diaz himself furnished document in that, if not worthy of lawyers who split hairs of that kind, it's not splitting hairs your honor.
This is a very salient distinction.
It would be one thing if characterized by the SD from the FLV that I said, did you go to trial? Did you go to trial four years after the author wanted to get back a replevin when you knew that, ten days before the ten days before and hours before that, the proper that the papers had been destroyed? No, your honor and- and this is the point there was a confiscation and then why did you? What did you expect if you had won the case? I would have expected what a return of the documents.
What expected the papers I would have expected a return of the documents that mr.
Diaz had in his possession, most notably proven I beg your pardon to what end.
How would that have helped mr.
Diaz, financially or miss he missed Rossa at that point in time, at the instruction of the suit had wanted to read revive the business that she had.
The documents also had some value in proving the merits.
The underlying case, I I, hope this will not learn.
The distinction really seeking was a return.
Of the forfeited funds correct that and the documents, the return of the forfeited funds were in the breaches, but in terms of the forfeited funds, there was a motion pending for reconsideration.
When the DA's law firm was was terminated in 2004, it was pending.
Well, I was new household was hired in 2005.
Did new counsel do anything to pursue that motion and have it heard in order to attempt to obtain the funds that were forfeited not at that point, but there was also an indication that at any point, until 2010, correct 2009, the file was closed.
For two years there had been no activity by three years by mr.
disremember.
The order.
How could the DA's firm be breached their fiduciary duty or be negligent in some way for not pursuing the return of those funds? When there was a motion for reconsideration filed during the pendency of the DA's firms, representation, and that subsequent counsel never did anything to pursue what your obligation that the DA's firm have to pursue, that was being terminated.
Mr.
Diaz was counseled for three years, while a pending motion for reconsideration said his client is losing the benefit of the interest.
Part then I, guess new counsel is even more negligent, also didn't pursue it and he'll add the file to close without filing a notice of rightness.
He was originally trusted to file motion, either administrative proceeding or judicial proceeding and did not do so.
What we're back to the merits again of the whole case well and- and unfortunately, we're way beyond that- and this is this- is now I- don't know what number appeal here this is now well now we're on fees, understood and and again this Court has demanded strict compliance with the safe harbor provisions.
This court and the Eleventh Circuit does not recognize dismissals with prejudice.
If I had dismissed prejudice, I would have forfeited appliance claim that has married.
It withstood a summary judgment motion.
It was stood motions to dismiss.
We are talking about $140,000 plus interest if you dismissed.
Of course, you dismiss it with prejudice because you accepted the offer.
If you didn't accept the offer, you don't want this, listen what you do and did that don't because I'm not obligated to effect a dismissal of a meritorious case if they offered you a million dollars and return for it, a dismissal with prejudice either you accept a million dollars or you don't.
But if you do, you have to dismissal with prejudice and if you don't and you don't get a million dollars, you have to pay attorneys fees, but here there was no inducement.
There was nothing of value offered to the client.
The meritorious case that was pursued was replevin for return of documents, for which a jury found already was not wrong.
With Miss stated testimony they never found that they weren't wrongfully retained and that was affirmed on appeal, correct.
The the finding of the jury was that mr.
Diaz never had those dodgy found that the Diaz firm did not unlawful, irritate or did not wrongfully retain the doctor.
The question that the jury answered was with these personal property.
Mr.
Diaz testified that he never had.
Mr.
Diaz was that believed mr.
Diaz was that believed.
Well, it was for I.
Think he was the one because they he was believed but admitted but under false testimony, but that's the only case.
That's over.
Then there was a motion to make a final judgment under laws there - right now, I'm answering the responses to whether or not that claim to let you say: you've got too many, let's say tomato robot good morning, your honors! May it please the court Jennifer Ruby's smile, don't smile.
My misery tell us why you're entitled to fees why we should affirm under an abuse of discretion standard, because the record in this case exam the thighs, the very purpose.
But under what basis do you get faced under under 57 for the legal malpractice portion of it? The finding of entitlement was twofold.
On the legal malpractice portion of the case, a proper motion was served on mr.
Seeger and the plaintiffs in the underlying case, delineating why the case had no merit specifically, why you get them on the replevin on the replevin after we conducted a trial and there was scorched earth litigation on these documents.
Once we figured out that the underlying case had be reopened and we read and printed all the documents that have been filed with the federal court, we discovered that months prior to the trial, appellant had made a representation to the federal court that the bulk, with all the documents that were confiscated in the investigation, had been lost or destroyed.
But while on discovering their session, these fees were not awarded below for malfeasance I'm, the malfeasance ground of nasty loitering, they were or was, or were they college honor? They were awarded on the offer or settlement right there.
None offers settlement the fees, the entitlement was twofold, so we had the legal level 100 50 cent 105 for the legal malpractice portion and the inequitable conduct doctrine, because the only remedy was the reputable cogsa.
The American continent was that in the order that's now under review.
Yes, it is it's in.
It goes through the specific.
The trial court actually made very specific findings of fact of the record before it.
The trial court judge in this case and actually presided over every portion of this case.
This is a judge that ruled in the initial motion to dismiss where we argued that the underlying case had not been reopened.
Sat through hearing after hearing motion after discovery motion with the documents sat through trial actually warned appellant prior to commencing trial that they weren't seeking any damages in the replevin case that the most they would get is a document that said give him back, give her back her documents, which mr.
Diaz testified again and again he did not have so you can imagine the trial court judges, surprise or shock and awe when we disclosed to him after the trial that, prior to the trial, appellant had represented in another judicial, proceeding before the federal court that those documents had been lost or destroyed, and because there was a no other applicable statutes to provide the fees at the time the trial was over.
It had been well past the verdict, the date of the verdict he relied upon his inherent authority into the inequitable conduct doctrine which locally stands for and provides the trial court without Authority and if I could just address the unsigned motion.
Part I think it's interesting that he, as your honors noted upon's, don't offer any explanation as to why they did not they waited until after they lost summary judgment to reopen the underlying case, and that's because the record provides only one explanation: bad faith, exactly the trial court finds in very specific findings and as far as the unsigned motion, counsel and accounts, don't offer a single case that says that an unsigned motion is fatal to the notice provision in the safe harbor section 57, 105, subsection 4, and that's because it would completely undermine the purpose of the statute, which is for the parties to police themselves.
Preserve judicial resources and reduce unnecessary litigation.
Costs continued for four more years exactly 21 days exactly this was he had a thousand seven hundred and ten days before that motion between the time that motion was served and that motion was filed.
He can't say now that the he was confused as to when that the defendants were going to be seeking fees against him for a meritless case.
So we request that your honors not disturb the trial court's specific findings of fact and affirm.
Thank you, I want address, judge versus point.
As far as the inequitable conduct, this Court is right.
There's a solitary award so on one level, there's a violation of Moakley, because the for daughter didn't differentiate out what fees were allegedly tied to the alleged bad faith.
Here's the bad faith that this court found I I received a false response to a one request to produce I filed two motions to compel both were granted and both produced additional documents and Ana certification that additional documents would be found.
How can the medicines that are granted? He considered vexing bad faith or meritless? The second thing- and this happens time and time again my colleague says the date that that occurred there, the date that what occurred your honor, that you got these additional documents in when I was June of 2008 and the second was June or July of 2009 and that's critical because in his affidavit filed one supported motion for summary judgment replevin.
He says I've already, given all the documents yes you've, given not not the documents that I asked for and replevin, but the ones called for in the request to produce.
But only after two quarters I want both motions to compel the second.
Nowhere in this record is there a statement that I use the word all or the universe of documents to describe what the government did they continually blur and impute the word all.
Obviously, some documents survived.
Those were the documents that mr.
Diaz had in his possession by his own admissions in the doctors in the federal court and what the assistant US attorney said.
I have a right to rely on that.
Those were the documents that I asked for in paragraph 31 of the replevin.
They haven't answered.
Why they're entitled to fees when and conclusion and one final water vacate the order in its entirety at a minimum remand to separate out what was bad faith since there was no bad faith from the 57 105.
Thank you your thank you.
Both.
FAQs
Attorneys Fees And Sanctions For Improper Conducts? ›
Under Section 271 of the Family Code, the court can order payment of attorney's fees and costs as a sanction for conduct that delays the case or disadvantages the other side financially.
Which of the following is the most severe attorney sanction for unethical conduct? ›Disbarment is the revocation of an attorney's state license, permanently rendering the attorney unqualified to practice law. Depending on the offense and the ethics board's rules, an attorney might be entitled to reapply for admission to a state bar following disbarment.
What are 271 sanctions? ›Family Code 271 allows for sanctions in the form of attorney's fees and costs when a family law litigant, or his or her attorney, violates its policy. For that reason, such issues usually end up in front of the family law judge.
What is the Federal Rule 11 sanction? ›Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support.
What is the rule 11 sanction in California? ›Federal Rule of Civil Procedure 11 is the federal rule that prohibits frivolous and unwarranted contentions in litigation and allows courts to sanction attorneys for violations. California's version appears in California Code of Civil Procedure §128.7, and California courts look at Rule 11 cases when they interpret § ...
What are the three 3 general categories of unethical and illegal behavior? ›Answer: The three general categories of unethical and illegal behavior that organizations and society should seek to eliminate are those arising from ignorance, those resulting from accident, and those that are intentional.
What are some examples of unethical behavior but legal? ›Answer and Explanation:
An example of something that is legal but unethical is paying employees minimum wage without any increase over time, which leads to them struggling to manage their living expenses. An example of something illegal but ethical is driving over the speed limit.
Sanctions measures can include: • Restrictions on trade in goods and services • Restrictions on engaging in commercial activities • Targeted financial sanctions (including asset freezes) on designated persons and entities • Travel bans on certain persons.
What are the two main types of sanctions? ›- Economic sanctions – typically a ban on trade, possibly limited to certain sectors such as armaments, or with certain exceptions (such as food and medicine)
- Diplomatic sanctions – the reduction or removal of diplomatic ties, such as embassies.
Examples may include economic-commercial measures (the arms embargo), financial measures, or individual sanctions such as the prohibition of entry into a State or the freezing of assets.
What are Rule 37 sanctions? ›
Rule 37-Failure to Make or Cooperate in Discovery: Sanctions. (a) Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows: (1) Appropriate Court.
What is Sua sponte in law? ›Latin for "of one's own accord; voluntarily." Used to indicate that a court has taken notice of an issue on its own motion without prompting or suggestion from either party.
What is the golden rule of pleading? ›Golden rule argument is an argument made by a lawyer during a jury trial to ask the jurors to put themselves in the place of the victim or the injured person and deliver the verdict that they would wish to receive if they were in that person's position.
What is Rule 56 in California Rules of court? ›In particular, Rule 56(d) provides that a court may deny a summary judgment motion and permit the opposing party to conduct discovery where it appears that the opposing party, in the absence of such discovery, is unable to present facts essential to opposing the motion.
What is Rule 3.36 in California? ›Rule 3.36 provides procedures for cases in which an attorney and a party notify the court and other parties of the limited scope representation. Rule 3.37 applies to cases in which the limited scope representation is not disclosed.
What is Rule 1.6 in California Rules of court? ›(a) A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent,* or the disclosure is permitted by paragraph (b) of this rule.
What are the legal consequences of unethical behavior? ›The range of penalties includes censure, removal from office, permanent disqualification from holding any state position, restitution, decades in prison, and fines up into the hundreds of thousands of dollars. Not all ethics violations are treated equally.
What are the five unethical acts? ›The ERC reported that employees most often observe the following five unethical behaviors in the workplace: 1) employees misusing company time, 2) supervisors abusing subordinates, 3) employees stealing from their employers, 4) employees lying to their employers, and 5) employees violating company internet policies.
What are two types of unethical misconduct? ›- Misuse of company time. Whether it is covering for someone who shows up late or altering a timesheet, misusing company time tops the list. ...
- Abusive Behavior. ...
- Employee Theft. ...
- Lying to employees. ...
- Violating Company Internet Policies.
Attorney misconduct may include: conflict of interest, overbilling, refusing to represent a client for political or professional motives, false or misleading statements, knowingly accepting worthless lawsuits, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while ...
What is an example of unethical conduct? ›
Asking for recognition for someone else's job, calling in sick to go to the hill station, sabotaging someone else's work, and, in sales, falsifying the product or service to fulfill the target are all examples of unethical behavior in the workplace.
What are the 10 unethical practices? ›We studied 10 types of unethical practice: abusive or intimidating behaviour, lying, conflict of interest, bribery, information technology, corporate intelligence, discrimination, sexual harassment, dual relationship and fraud.
What is the most severe sanction? ›The most severe sanction in a civil lawsuit is the involuntary dismissal, with prejudice, of a complaining party's cause of action, or of the responding party's answer.
What is the most common sanction? ›Monetary sanctions are the most common form of punishment imposed by criminal justice systems across the United States.
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Who handles sanctions? ›Office of Foreign Assets Control, Department of the Treasury – OFAC plays a primary role in administering and enforcing many U.S. sanctions programs.
Who and what can be targeted by sanctions? ›Targeted sanctions are intended to be directed at individuals, companies and organizations, or restrict trade with key commodities. The following instruments can be applied: Financial sanctions (freezing of funds and other financial assets, ban on transactions, investment restrictions)
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What are sanctions against negative behavior? ›
Positive sanctions provide rewards to encourage desired behaviors, while negative sanctions are the punishment to discourage undesirable behavior. What is this? Examples of positive sanctions include shaming people publicly, imprisonment, fines for infringements, and even a disapproving look from a parent.
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What are sanctions in legal terms? ›n. 1) a financial penalty imposed by a judge on a party or attorney for violation of a court rule, for receiving a special waiver of a rule, or as a fine for contempt of court.
What does de novo mean in law? ›For instance, a trial de novo means "trying the matter anew, the same as if it had not been heard before and as if no decision had previously been rendered." McDunn v.
What is writ of habeas corpus? ›A writ of habeas corpus orders the custodian of an individual in custody to produce the individual before the court to make an inquiry concerning his or her detention, to appear for prosecution (ad prosequendum) or to appear to testify (ad testificandum).
What is suo moto common law? ›A Latin legal term which means “on its own motion” and implies that an action was taken by a group or person on their own. Taking control over a matter is essentially “suo moto” defined in its simplest terms.
What is an example of the mischief rule? ›The defendants called the men into the street from the balconies and knocked on the windows. They said they were not guilty because they were not “on the street.” The judge applied the mischief rule to find that they were guilty because the intent of the act was to conceal the mischief of harassment by prostitutes.
What is the order 6 rule 17 CPC? ›Order 6 Rule 17 CPC allows for the amendment of pleadings. This provision grants the court the power to allow parties to modify or alter their pleadings, including the plaint or written statement, at any stage of the proceedings.
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What is Rule 3.400 of California Rules of court? ›
According to California Rules of Court, rule 3.400, a complex case is: “An action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties and counsel. ...
What is Rule 11 in California State court? ›Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.
What is rule 9.7 in California? ›In addition to the language required by Business and Professions Code section 6067, the oath to be taken by every person on admission to practice law is to conclude with the following: "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity."
What is rule 29 in California? ›Southern California Edison Company's (SCE's) Electric Vehicle infrastructure optional tariff, Rule 29, is designed to help you reduce cost and simplify the process to provide Electric Vehicle (EV) infrastructure for your commercial, industrial, and/or multi-family EV charging station project.
What is rule 25 in California? ›Rule 25 (“Substitution of Parties”) governs here. Rule 25 requires that a motion for substitution must be made within 90 days after service of the statement noting a death. “If a party dies and the claim is not extinguished, the court may order substitution of the proper party.
What is Rule 26 in California Rules of court? ›The Rule 26 provision regarding timing of the discovery conference requires that “the parties must confer as soon as practicable – and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).” (Fed. Rules Civ. Proc., rule 26(f)(1).)
What is Rule 8.75 of the California Rules of court? ›If a document requires a signature by a court or a judicial officer, the document may be electronically signed in any manner permitted by law.
What is Rule 1225 of the California Rules of court? ›(a) An executive officer, a judicial officer, and a Member of the Legislature may administer and certify oaths.
What is the most common form of legal sanction? ›Answer & Explanation. According to a report by the United Nations Office on Drugs and Crime, imprisonment is the most common form of criminal sanction around the world (UNODC, 2019).
What is the most serious disciplinary sanction imposed on a lawyer quizlet? ›A disbarment—A revocation of the attorney's license to practice law in the state (the most serious sanction).
What is the most common legal sanction? ›
Probation, the most frequently used criminal sanction, is a sentence that an offender serves in the community in lieu of incarceration.
What are the sanctions for violating the Code of Ethics? ›The range of penalties includes censure, removal from office, permanent disqualification from holding any state position, restitution, decades in prison, and fines up into the hundreds of thousands of dollars. Not all ethics violations are treated equally.
What are the 4 types of sanctions? ›- Reasons for sanctioning.
- Economic sanctions.
- Diplomatic sanctions.
- Military sanctions.
- Sport sanctions.
- Sanctions on the environment.
- Sanctions on individuals.
The most frequent sanctions regimes are those aimed at the non-proliferation of nuclear weapons, the fight against terrorism, conflict resolution or support of democratic regimes.
What are the four sanctions? ›Bentham, however, suggests there are four other types of sanction that may deter offenses: moral, sympathetic, religious, and physical.
What is the most common reason for an attorney to be disciplined? ›Professional misconduct is the most common reason for attorney discipline. Lawyers can also be disciplined for conduct in their personal lives.
What are three types of ethical violations that have been associated with prosecutors? ›- failure to disclose exculpatory evidence,
- introducing false evidence,
- using improper arguments, and.
- discriminating in jury selection.
At the conclusion of the judicial process, a judge may sentence an individual convicted of a crime to some type of penalty or sanction, such as a decree of imprisonment, a fine, or other punishments.
What happens if code of conduct is not followed? ›But it can and does serve as the moral code by which we can all judge what is right and appropriate. Not following the code could result in breaching laws and regulations and, of course, damage to our reputation. For individuals it could also mean disciplinary action or dismissal.
What are three violations of ethical conduct? ›Ethics violations such as discrimination, safety violations, poor working conditions and releasing proprietary information are other examples. Situations such as bribery, forgery and theft, while certainly ethically improper, cross over into criminal activity and are often dealt with outside the company.
What happens when you break code of conduct? ›
Some firms may only give a warning letter breach of code of conduct. In that letter, an employee may be given set targets to meet to ensure that it does not happen again. However, it may be, according to how serious the breach is, that there are grounds for dismissal from the company.