We Don't Give Up! |
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We don't give up! Judges are not infallible. Some cases are loaded with complex fact patterns and laws that are not easy to understand. Other times, the case scenario is such that it presents issues that have never been decided upon by a court - so what is correct and what is not may not be clear. Incorrect decisions by trial court judges are not uncommon. If in our opinion you are being subjected to an incorrect decision, we will inform you of your appellate rights and remedies, as well as the anticipated chances of success on appeal.
Sometimes the opposing side takes an appeal. If you are faced with such a scenario we will discuss the merits of your case and represent you in defending the trial court judge's decision. |
Whether your appeal is to a Florida Circuit Court, a Florida District Court of Appeal, the Florida Supreme Court, the U.S. District Court for the Southern District, the U.S. Circuit Court of Appeal for the 11th Circuit, or to the United States Supreme Court, we are qualified to represent you every step of the way.
With over 30 years of experience as a Florida attorney, Mr. Russo has been involved in cases that have re-written the law. Listed below are some of the many cases in which Mr. Russo has appeared before appellate courts, as well as some cases before trial level courts that issued written opinions. Links (blue text) may be available to view the entire case or references to the case by others. |
Our Cases
Value Is Reasonable
McHenry v. Dillworth, No. 16-15786 (U.S.C.A. 11th Cir., June 22, 2017) (unpublished). In the course of renting his luxury property McHenry received payment directly from the debtor corporation, which together with the husband and wife principals thereof, was a named tenant under the lease. The trustee in bankruptcy sued to recover the rental income asserting that transfer of the rent payments was constructively fraudulent because the debtor corporation did not receive “reasonably equivalent value” in exchange for the rent payments. The bankruptcy court agreed with the trustee and entered judgment against McHenry for the amount of rental payments that came from the debtor. On appeal the judgment was reversed because the wrong legal standard had been used to measure “reasonably equivalent value.” Following the argument made on behalf of McHenry, the appellate court agreed that the proper measure of “reasonable equivalent value” is not the benefit derived from the transfer (a subjective test) but rather the market value of what was given in exchange (an objective test). The appellate court stated that judgment should have been entered for McHenry.
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A Good Flip-Flop
Swortz v. Southern Rainbow Corp., 603 So. 2d 107 (Fla. 3d DCA 1992). After losing a case to her tenant and having a judgment entered against her for attorney's fees, the landlord retained Mr. Russo to appeal. At first, the appellate court agreed with the trial judge and entered a per curiam affirmance (meaning without giving an opinion as to why they agreed). Undaunted, Mr. Russo filed a motion for rehearing, which was granted - a rarity. On rehearing the appellate court realized that the award of attorney fees was excessive because applying a "contingency risk multiplier" made no sense where the award of fees was based on conduct the trial court considered to be "patently frivolous." The appellate court then reversed, vacated the judgment, and instructed the trial court judge to lower the award.
This case has been cited in at least one brief on appeal to the Florida Supreme Court and by at least one Florida District Court. |
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Beating the FDICSmith v. F.D.I.C., 61 F.3d 1552 (11th Cir. 1995). This case demonstrates the importance of delving into every important issue from which an appeal may be taken. Smith held a second mortgage to property against which the FDIC held the first mortgage, having acquired their interest as the receiver for a failed bank. Some years later, Smith filed a quiet title action in state court to remove any possible remaining cloud on the title resulting from the first mortgage lien that terminated according to Florida law (i.e. more than five years had passed since the time the last scheduled payment on the mortgage came due).
The case was removed to the Federal District Court where the FDIC successfully convinced the trial judge, and later the Federal Appellate Court that a federal law, extending the limitation period for the FDIC to take action on contracts to six years, preempted the state statute that otherwise exhausted the lien of the mortgage. Astutely, among Mr. Russo’s arguments was that the federal statute upon which the FDIC relied had expired anyway because an acceleration provision within the note and mortgage had previously been invoked, thus shortening the federal statute. The appellate court agreed with Mr. Russo’s final argument and reversed the lower court finding that material issues of fact precluded entry of summary judgment. |
In the Shoes of the Judgment CreditorRadio South Dade, Inc. v. Marrero, 572 So. 2d 3 (Fla. 3d DCA 1990). A third party prevailed in acquiring a judgment against Marrero on a promissory note, electing to proceed on the note instead of property secured by the note. Radio South Dade (RSD) then purchased the judgment from the third party as part of a settlement and attempted to enforce the judgment. Marrero's attorney successfully convinced the trial court judge that there was something improper about the assignment of the judgment to RSD because RSD had a separate promissory note that secured the same property. On appeal Mr. Russo prevailed in convincing the appellate court that there was no improper conduct attributable to either RSD or the assignor of the judgment. The appellate court found that RSD stood "in the shoes of the judgment creditor" and had a right to execute upon the judgment.
This case is cited in 1 AM.Jur.2d Executions and Enforcement of Judgments s. 68, Effect of Assignment of Judgment (2007), and in 2 CJS Executions s. 20, Persons Entited to Execution (2008). |
Due Process Requires Adequate NoticeIn re Cuevas, 2007 WL 397006 (Bkrtcy.S.D.Fla.); 20 Fla. L Weekly Fed. B 417. Although bankruptcy court judge found adversary action to be procedurally incorrect, favoring instead to act upon the issues in the context of a contested motion, court acknowledged that there were serious issues presented regarding the nature and adequacy of service upon our client - a mortgage holder seeking to reestablish her mortgage which had previously been stripped by an order of the bankruptcy court.
Case was then settled and client received payment on her mortgage. |
Winning Without an OpinionDentico v. City of Miami, No. 15-217 AP (Fla. 11th Cir.).
Dentico was found guilty of a zoning violation by the city’s enforcement board and fined $150 per day since the date of the first notice of violation, leading to a total lien in excess of $68,000, and additional daily fines were mounting. No time to comply with the enforcement board’s findings, and thus avoid a fine, was allowed despite statements to that effect contained in the Notice of Violation, in the Summons to Appear before the board, and in the disclosure by the chairman at the commencement of the enforcement board hearing. An appeal was taken to the appellate division of the 11th Judicial Circuit in and for Miami-Dade County arguing that the enforcement board had not complied with procedural due process or essential requirements of law. The City’s attorneys then agreed to vacate the fine against Dentico and released the lien. Dentico, who was then in code compliance, obtained the relief sought and thus dismissed the appeal. |
Defending the Win!Strong defense on appeal of the trial judge's rulings most often results in the appellate court affirming the trial court without an opinion. Following are some cases we defended where no opinion was written by the court (per curiam affirmed):
Mallarino v. Mallarino, 638 So. 2d 95 (Fla. 3d DCA 1994) (in course of successful action to collect a 22 year old judgment awarding alimony, convinced appellate court that the doctrine of laches was not applicable against the wife.) Fernandez v. Rodriguez, 723 So. 2d 897 (Fla. 3d DCA 1998) (defended a corporation accused of failing to provide notice to shareholders prior to the sale of sole asset real estate). Casaca, N.V. v. Waked, 761 So. 2d 1115 (Fla. 3d DCA 2000) (prevented client's property boundaries from being replaced by those of an incorrectly applied survey). Casaca, N.V. v. de Nasser, 838 So. 2d 1163 (Fla. 3d DCA 2003) (prevented loss of client's property that might have resulted from bogus legal argument misinterpreting court's decision). Ferguson v. Parrish, 959 So. 2d 1197 (Fla. 3d DCA 2007) (convinced trial court and appellate court that lis pendens recorded against clients' properties could not withstand the constitution). Feghali -v- Waked, 139 So. 3d 898 (Fla. 3d DCA 2012) (successfully argued that Florida's courts lack jurisdiction to settle issues of marital property among foreign residents - husband resident in Colombia and client wife in Lebanon). Fo Fo Transp., Inc. v. Fertil, 151 So. 3d 1255 (Fla. 3d DCA 2014) (showed that judgment debtor and 3rd party defendant were alter egos, preserved post-judgment collection even though lack of actual service on 3rd party defendant). Blohm v. Sommers, Case No. 3D15-951 (Fla. 3d DCA, December 23rd 2015) (landlord's right to immediate possession affirmed pursuant to §83.60(2), Fla. Stat. (2013) because tenant failed to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days). |