Parade of Horribles: 11th Circuit Side Steps Swire Pacific Holdings


“Language is the apparel in which your thoughts parade before the public. Never clothe them in vulgar or shoddy attire.”

 ~George Crane

Old-time celebrations are to be held tomorrow at Littleton, Lancaster, Colebrook, and Conway, with all the usual features of street parades of horribles and grotesques, brass bands, decorated automobiles and vehicles, exhibitions by fire departments, basket picnics in convenient groves.

~ Mountain Season Early. Camp and Stream Bring Many Visitors to New Hampshire Despite Coolness”. The New York Times, July 4, 1926, p. X8

 In my last blog entry you will recall I made several predictions regarding the future of the case known as Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc., __ F. Supp. 2d __, 2009 WL 4825097 (S.D. Fla. Dec. 15, 2009) wherein I stated:

I would not be surprised to see the Florida Legislature or an administrative agency turning cartwheels to undo this opinion, as development has historically been a center of Florida’s economy.  That is if the Eleventh Circuit does not give it the “Stein” treatment first.

One could view such a statement as a logical fallacy known as the parade of horribles, (the original meaning is indeed a parade) whereby I listed a number of undesirable events which will ostensibly result from the Swire opinion.  The power of such an argument relies on the emotional impact of the unpleasant predictions; however, a parade of horribles is usually seen as a logical fallacy to the extent that: (1) the events are not likely to occur as a result of the action; (2) the argument relies solely on the emotional impact; and (3) The “horribles” are not actually bad.  The Eleventh Circuit summed up the events occurring after the Swire opinion succinctly in foot note 2 of the opinion.

Since there was no separate accounting, we need not and do not reach the issues regarding the statutory construction of § 718.202, the effect of the Department of Business and Professional Regulation’s informal legal opinion, or the new amendment to § 718.202.

 After Swire, the parade was in full swing as the legislature amended § 718.202 as follows:

(11) All funds deposited into escrow pursuant to subsection (1) or subsection (2) may be held in one or more escrow accounts by the escrow agent. If only one escrow account is used, the escrow agent must maintain separate accounting records for each purchaser and for amounts separately covered under subsections (1) and (2) and, if applicable, released to the developer pursuant to subsection (3). Separate accounting by the escrow agent of the escrow funds constitutes compliance with this section even if the funds are held by the escrow agent in a single escrow account. It is the intent of this subsection to clarify existing law.

This last sentence is an attempt by the legislature to make the change retroactive, which affects all cases pending at the time it was passed.  In the recent case of Ramcharitar v. Derosins, 35 So. 3d 94 (Fla. 3d DCA 2010) the Court expressed its opinion on an attempt of the current legislature to “clarify” a statute that had been passed nearly thirty years prior.

We disagree, given that the 2003 revision to section 440.10 occurred twenty years after the Court decided Abernathy and some twenty-nine years after the 1974 amendment to section 440.10. As was held by the Court in similar circumstances, given that the membership between the 1974 and 2003 Legislatures was substantially different, it would be absurd to consider the 2003 revision as a clarification of the Legislature’s original intent in 1974:

The affected section of 718.202 at issue was originally added to the statute in 1984 and “clarified” in 2010.  The Florida case law states that this is not permissible.  The Swire court found for the buyer on the basis that the escrow agent failed to account for deposit monies at all.  They did not address the “clarification” issue or the construction of the statute section prior to the 2010 amendment.  This leaves all of the other pending cases that rely on a 718.202 argument in a long line of grotesque figures marching forward.  Sometimes predicted events do occur, and the “horribles” really are that bad.

About Timothy Powers O'Neill

Timothy O’Neill, an attorney with the firm of Cohen Norris practices in the areas of business litigation, real estate litigation, and intellectual property litigation. Timothy received his Bachelor of Science Degree from the University of Evansville and graduated from the University of Missouri-Columbia School of Law in 1997. Following law school, Timothy clerked for two years in the State of Florida's Fifteenth Judicial Circuit in Palm Beach County, and served as a law clerk in the United States District Court for the Southern District of Florida. Timothy serves as an executive board member of the Busch Wildlife Sanctuary, a non-profit entity dedicated to preserving Florida’s wildlife through rehabilitation and education. Timothy is admitted to practice before all of the state courts of Florida as well as: The Supreme Court of the United States; United States Court of Appeals, Eleventh Circuit; United States Court of Appeals, Ninth Circuit; United States District Court, Southern District of Florida; United States District Court for the Middle District of Florida, United States District Court of Colorado, and is a member of the Palm Beach County, Florida, and Federal Bar Associations.

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