3d DCA Watch — Judge Shepherd Recounts Facts With Certainty.

Well kids it got a little crazy, and much mirth, madness and mayhem was to be had.But at the end of it all the coffee has been swilled, the robes worn, and all that’s left are the written remainders and our own fragile, precious memories……

Naranja Princeton v. Cornerstone:

Tip for practitioners — if you want a jury trial, put the demand in your complaint:

In its cover sheet, NPCDC asserted that in its complaint NPCDC made a demand for a jury trial. However, a review of the complaint reflects that no such demand was made. Additionally, NPCDC failed to comply with rule 1.430(b), and therefore, waived its right to a jury trial. See Fla. R. Civ. Proc. 1.430(d) (“Providing that a party who fails to serve a demand as required by this rule waives trial by jury . . . .”). We also conclude that even if NPCDC had made a proper demand for jury trial, NPCDC waived its right to argue on appeal that the trial court erred by setting the cause for a non-jury trial because it failed to object to the several orders setting the cause for a non-jury trial.

Oy, better call the carrier.

Bosem v. C&I:

Judge Shepherd lowers the boom on a licensed attorney for alleged insurance fraud — double oy kids:

Sanford Bosem, a licensed Florida attorney, contends the trial court erred in disposing of this case on summary judgment where allegations of fraud were at issue. Ordinarily, we would agree with Bosem that cases centering on allegations of fraud are unsuitable for summary judgment, see Burton v. Linotype Co., 556 So. 2d 1126, 1128 (Fla. 3d DCA 1989); however, we have before us the extraordinary case where the facts evidencing fraud are so clear from the record that entry of summary judgment is not only appropriate, but compelled. See Stephens v. Kies Oil Co., Inc., 386 So. 2d 1289, 1290 (Fla. 3d DCA 1980).

Despite Bosem’s eleventh-hour attempts to alter his position in response to Appellee’s affirmative defenses, counterclaims and motion for summary judgment, the facts of this case are clear. Appellant sought insurance benefits under the guise of “lost wages,” despite full compensation by his employer for a year’s worth of income. Furthermore, his calculation of weekly earnings was immensely exaggerated.1 It also was not until his suit was threatened by allegations of fraud that he began re-characterizing his claim as one of “loss of earning capacity,” as opposed to “lost wages,” notwithstanding the absence of any plausible evidence in support of this position.

“So let it be written, so let it be done,” the Judge added.BTW, I love the certainty with which Judge Shepherd lays all that out.There’s also some social policy thrown in for good measure:

Fraud provisions are enacted to provide a disincentive to individuals considering the commission of such misrepresentations.

Ahh, the old “rational crook.”

Still, it’s very true and — given the headlines recently, I have to hope this applies to corporations in addition to individuals.