Comments on: Irreconcilable Differences: The Stein v. Paradigm Court Divorces Itself From Precedent on the Interstate Land Sales Full Disclosure Act http://lawandequity.com/2009/10/22/irreconcilable-differences-the-stein-v-paradigm-court-divorces-itself-from-precedent-on-the-interstate-land-sales-full-disclosure-act/ A review of real estate and intellectual property matters Mon, 02 Apr 2012 12:04:29 +0000 hourly 1 http://wordpress.com/ By: Timothy Powers O'Neill http://lawandequity.com/2009/10/22/irreconcilable-differences-the-stein-v-paradigm-court-divorces-itself-from-precedent-on-the-interstate-land-sales-full-disclosure-act/#comment-44 Thu, 22 Oct 2009 19:42:04 +0000 http://timothypowersoneill.wordpress.com/2009/10/22/irreconcilable-differences-the-stein-v-paradigm-court-divorces-itself-from-precedent-on-the-interstate-land-sales-full-disclosure-act/#comment-44 Initially, I did not take the flippant tone well either. Although Judge Carnes is known for his “folksy” style, and the writing style is consistent with other opinions. http://en.wikipedia.org/wiki/Edward_Earl_Carnes

I have not read the undelrying briefs, but the individuals running the Eleventh Circuit are the best and the brightest the country has to offer. Much smarter than me.

That being said, I would find it a virtual impossibility that they were not aware of Kamel and Plaza Court. Although the Home Devco opinion came out seven days prior, I would bet they were aware of that as well. Why did they not cite them? I can only speculate. It does seem that they don’t favor these cases, and don’t want to see any more of them. But that is only speculation.

]]> By: Marc http://lawandequity.com/2009/10/22/irreconcilable-differences-the-stein-v-paradigm-court-divorces-itself-from-precedent-on-the-interstate-land-sales-full-disclosure-act/#comment-43 Thu, 22 Oct 2009 19:07:37 +0000 http://timothypowersoneill.wordpress.com/2009/10/22/irreconcilable-differences-the-stein-v-paradigm-court-divorces-itself-from-precedent-on-the-interstate-land-sales-full-disclosure-act/#comment-43 “In fact, you won’t see a mention of either the Plaza Court case or the Home Devco case anywhere in the Eleventh Circuit’s opinion in Paradigm Mirasol, LLC.”

Tim, I really liked your earlier post on the issue of Plaza Court being definitive as to Florida state law and thus binding on the federal courts. Thus, I was especially disappointed with the new Stein decision. My recollection is that not only did the 11th Cir. panel in Stein fail to reference the Plaza Court or the Home Devco opinions, it never even mentioned the Kamel v. Kenco-Oaks opinion either. Thus, it either simply ignored the Kamel court’s implicit decision (if not perfectly explicit) to require an impossibility standard for force majeure clauses or it wasn’t briefed about Kamel. I haven’t read the underlying briefing in the Stein appeal but if the Kamel opinion was not presented to the Stein panel, that would help explain the Stein panel’s failure to address Kamel. If that’s the case, I can’t help but wonder what would have happened if it had been aware of Kamel v. Kenco-Oaks.

At a minimum I doubt it would have taken such a flippant tone. I, for one, certainly don’t appreciate the court taking such a disrespectful approach to the buyers’ case. They have every right to vigorously defend their legal rights and the last thing we need is a judge who editorializes from the bench.

Hopefully, Joe Stern and the Steins will have better luck with the entire panel on his motion for rehearing en banc.

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