By Michael J. Gelfand, Esq. / Published January 2018
What happens when the time to respond to an email has passed? Will the excuse “my spam folder ate the email” work? Unlikely!
As communities increasingly rely on email, the seriousness of email communications to everyone was reinforced in the litigation context, where a Florida appellate court ruled that because a law firm maintained neither email logs nor archive or backup emails, the law firm was unable to show that the firm’s email server did not receive an email copy of a court order. The facts in Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC, 42 Fla. L. Weekly D 2131 (Fla. 1st DCA, October 6, 2017), reveal that the court clerk served an order by email to the email addresses designated by Emerald Coast’s counsel.
Emerald Coast did not respond in a timely manner or appeal, but instead filed a motion to allow Emerald Coast additional time to appeal, claiming the law firm did not receive a copy of the order until after the time to appeal expired. Evidence presented at the hearing indicated that emails were sent by the clerk’s office and that no message was received by the clerk that the email had not been delivered. Evidence was also presented that the law firm rejected advice to obtain an online backup system but instead relied on a paralegal to check the court’s website every three weeks to see if the court had taken any action. The trial court denied Emerald Coast’s motion, concluding that the order was in fact received by the law firm’s server.
Agreeing with the decision of the trial court, the Florida appellate court noted that Florida Rules of Civil Procedure provide that a trial court can set aside a court order based on “mistake, inadvertence, surprise, or excusable neglect.” The court noted that testimony was presented that the email server was configured in a way that it could delete legitimate emails as spam without notifying the recipient. Recommendations to fix this problem were rejected because the firm did not want to spend the additional money.
In a warning to all, the court concluded with, “In short, there was an absence of ‘any meaningful procedure in place that, if followed, would have avoided the unfortunate events that resulted in a significant judgment against’ appellant.” The court reinforced its directive that an email system to receive court notices must be designed to do more than just deliver most email. The message seems to be that there can be no more reliance on the same methods of snail mail.
In other words, the unsupported assertion that my spam folder ate my important emails will no longer fly! It is time to get up to speed with the electronic age.
Although this case is directed to those involved in court proceedings, the decision should be a learning point for associations, managers, and directors. Email is increasingly relied upon for transmission of information. As we approach 2018, it is time to join the electronic age before the old methods of communication are considered below the standard of care.
Some associations may have surveillance cameras for which the associations have paid a lot of money. Can the tape from a surveillance camera be admitted into evidence in a trial, or was the investment in cameras a waste? It depends on whether the tape can be properly authenticated, not on how much you paid for the camera or what you were promised.
In a decision that will have Florida community associations checking their video systems, a Florida appellate court recently ruled that a videotape from a camera in a shop located near a store which was robbed was admissible at the defendant’s trial for armed robbery. The facts in Richardson v. State of Florida, 42 Fla. L. Weekly D 2058 (Fla. 4th DCA, September 27, 2017), reflect that Richardson was arrested for the armed robbery of a cell phone store. Overruling Richardson’s objection, the trial court allowed into evidence a videotape from a nearby doughnut shop showing Richardson at the doughnut shop just before the robbery. Richardson was found guilty by the jury and sentenced to 15 years in prison.
The Florida appellate court affirmed the trial court’s ruling admitting the videotape into evidence. Here, the videotape was authenticated through the “silent witness” theory after the judge considered the following:
The court noted that the doughnut shop, which was a few doors down from the store that was robbed, had no incentive to fabricate evidence, and there was no evidence that the tape had been tampered with.
If your association has a camera, will its tapes be helpful to pursue a perpetrator in a criminal or civil court? Can the tape help recover money that was stolen or help protect against an improper claim of damages? In order to preserve the admissibility of cameras in a lawsuit that an association may find itself involved in, an association should contact its attorney to review contract specifications regarding cameras and taping equipment.
Michael J. Gelfand, Esq.
Senior Partner of Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a Florida Bar Board-Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at firstname.lastname@example.org or (561) 655-6224.