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3d DCA Watch -- In re Vigo Edition

Hi kids, it's a crazy hump day out there and I have an FBA luncheon to get to, but no worries -- the Resplendent Ones, the Robed Ones, the Swillers of the Judicial Coffee -- yes the inhabitors of that very concrete bunker of sorta-justice by the highway -- have spoken!

And they say to us that all is well, that all is right with the world.

Amen.

Oh yeah, I almost forgot the opinions.....

Beltran v. Rodriguez:

This is a trucking accident negligence case in which Judge Areces granted a DV to defendant, and the 3d upholds.

The plaintiff's expert probably didn't help much:

Daniel Melcher, the accident reconstruction expert hired by the Plaintiff, testified that although he observed several defects, none of the truck?s defects contributed to the accident because, inter alia, there was no evidence that the Truck Driver took any measures to avoid the collision, including reducing his speed, braking, or swerving.

Hernandez v. City of Miami:

Imagine that -- a defective storm drain in the City of Miami?

Shocking!

But the plaintiff apparently gave inconsistent and contradictory answers so the trial judge struck his pleadings and dismissed with prejudice.

Not so fast:

A trial court?s decision on whether to dismiss a case for fraud on the court is reviewed under a narrow abuse of discretion standard. See Cherubino v. Fenstersheib & Fox, P.A., 925 So. 2d 1066 (Fla. 4th DCA 2006). For the trial court to properly exercise its discretion, there must be an evidentiary basis to dismiss the case. See Ramey, 993 So. 2d at 1018.

Here, the trial court did not have a clear and convincing evidentiary basis to dismiss the case for fraud on the court. Therefore, we find that the trial court abused its discretion in striking the pleadings and dismissing with prejudice Hernandez?s claim.

Invego v. Rodriguez:

This case presents a very interesting fact pattern:

Vigo was born in 1505 in the small country of Carpathia in Hungary, near Italy. He soon rose to power and ruled his country with an iron fist. Because of his evil ways he wasn't well liked by his people and subjects & killed hundreds of them. He was also known as Vigo the Cruel, Vigo the Torturer, Vigo the Despised, and Vigo the Unholy. Peter Venkman jokingly adds Vigo the Butch to the list of aliases.

He eventually died at the age of 105 in 1610, but not because of his old age. His people had led a rebellion and they tried and executed him in a manner that they sought fit for his rule. He was poisoned, shot, stabbed, stretched, disembowled, hung, and drawn and quartered. Just after they removed his head, he uttered this prophetic warning: "Death is but a door. Time is but a window. I'll be back. According to the movie, Vigo was a powerful magician, a tyrant, a genius in many ways, also a lunatic and a genocidal madman.

Ooops, got hung up on the Vigo part.

(Hey, it's a slow week!)

Full post as published by South Florida Lawyers on April 14, 2010 (boomark / email).