The document discusses a legal issue regarding a bank's potential liability for payment on a fraudulent check that did not bear an authorized signature but was mistakenly ratified by the client over the phone. Under Florida law, for a check with an unauthorized signature to be considered properly payable, the signature must be effectively ratified by a party with authority. However, for ratification to be valid, the ratifying party must have had full knowledge of all material facts relating to the unauthorized signature. In this case, it appears the bank may have failed to provide the client with adequate knowledge since the client was unaware the check being presented was different than the originally written check. The bank could be liable unless it can show the client had full knowledge
Taiwanese Exoneree Chen Long-Qi (陳龍綺): Name Cleared by DNA Evidence冤獄平反協會 社團法人中華民國
In December 2013, Taiwan High Court granted Chen Long-Qi a retrial based on new DNA evidence. Chen became the first person to be granted retrial since the Taiwan Association for Innocence (TAI) was founded in 2012.
Chen sought TAI’s help right after his conviction. He refused to serve his time. He told his lawyers that “Unless they drag me in, I will not voluntarily walk into jail for something I did not do.” He divorced his wife, worrying that his daughters would have to go through psychological consultation and labeled as “daughters of the rapist” in schools. He sold his seafood stall and hid in a small apartment that his wife rented. “For many times, I looked down the street from the window of the apartment, thinking that I could have jumped down to end this nightmare”.
Anyone who has experienced difficulties with either Costco or the law firm of Sheppard, Mullin, Richter & Hampton LLP please respond and/or refer this matter to an attorney that can help me. Why? Costco's recent illegal actions relate to MICHAEL KARR the famous (purse) designer where Costco advertized a purse on Mother's Day Costco never carried. It was aired on Good Morning America. I'M STARTING A CAMPAING TO SUPPORT MICHAEL KARR, TIFFINY'S, SONY AND OTHER TO WITHDRAW THERE SUPPORT FROM COSTCO. I was an employee at Costco and they locked me in a room for and hour and ten minutes while they interogiated without legal and or union representtion. Please support this effort to expose Costco and the law firm of Sheppard, Mullin, Richter & Hampton for what they are.....
Aquinas’ Theory of Perception
Talk presented at the 19th International Interdisciplinary Seminar What differentiates human persons from animals and machines? Netherhall House, London, 3-1-2017
CONTENT
Introduction
Hylomorphism: matter and form
Acquisition and dealing with information
Isomorphism of mind and reality
Conclusions
Lisska 2016
distinction between esse naturale and esse intentionale
It is through the sense impression in the faculty that the sense faculty ‘becomes’ the sense object in the external world, but immaterially or intentionally. The same form is exemplified ‘intentionally’ in the faculty and ‘existentionally’ in the object; this is the Aristotelian insight further enhanced by Aquinas. There is an identity of form, one in esse intentionale and the other in esse naturale, indicating the two modes of exemplification utilized. Without this identity of structure rendered possible by the two modes of exemplification, the isomorphism of mind and reality in Aristotelian ontology and philosophy of mind would be impossible.
CONCLUSIONS
Hylomorphism is a powerful approach for understanding the full richness of human intellectual capacity.
The definition of truth of Aquinas becomes evident
truth: adaequatio rei et intellectus
truth is the conformity of the intellect to the things.
The non-material dimension of the human mind is fully acknowledged.
The application of concepts of the metaphysics of Aristotle and Aquinas is a adequate starting point for the study of philosophical issues of modern science.
Colorado Supreme Court Opinions May 18, 2015Colorado Su.docxclarebernice
Colorado Supreme Court Opinions || May 18, 2015
Colorado Supreme Court -- May 18, 2015
2015 CO 31. No. 13SC9. Pena-Rodriguez v. People.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2015 CO 31
Supreme Court Case No. 13SC9
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 11CA34
Petitioner:
Miguel Angel Pena-Rodriguez,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
May 18, 2015
Attorneys for Petitioner:
The Law Office of Jonathan D. Rosen, PC
Jonathan D. Rosen
Denver, Colorado
Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Majid Yazdi, Assistant Attorney General
Denver, Colorado
CHIEF JUSTICE RICE delivered the Opinion of the Court.
JUSTICE MÁRQUEZ dissents, and JUSTICE EID and JUSTICE HOOD join in the dissent.
¶1 This case involves the interplay between two fundamental tenets of the justice system: protecting the
secrecy of jury deliberations and ensuring a defendant’s constitutional right to an impartial jury. After entry of a guilty
verdict, defense counsel obtained juror affidavits suggesting that one of the jurors exhibited racial bias against the
defendant during deliberations. The trial court refused to consider these affidavits, finding that Colorado Rule of
Evidence (“CRE”) 606(b) barred their admission, and the court of appeals affirmed. People v. Pena-Rodriguez, 2012
COA 193, ¶ 3, __ P.3d __. We granted certiorari to consider whether CRE 606(b) applies to such affidavits and, if so,
whether the Sixth Amendment nevertheless requires their admission.1
¶2 We hold that the affidavits regarding the juror’s biased statements fall within the broad sweep of CRE 606(b)
and that they do not satisfy the rule’s “extraneous prejudicial information” exception. We further hold that the trial
court’s application of CRE 606(b) did not violate the defendant’s Sixth Amendment right to an impartial jury.
Accordingly, we affirm the judgment of the court of appeals.
I. Facts and Procedural History
¶3 In May 2007, a man made sexual advances toward two teenage girls in the bathroom of the horse-racing
facility where Petitioner Miguel Angel Pena-Rodriguez worked. Shortly thereafter, the girls identified Petitioner as the
assailant during a one-on-one showup. The People subsequently charged Petitioner with one count of sexual assault
on a child—victim less than fifteen; one count of unlawful sexual contact—no consent; and two counts of harassment
—strike, shove, or kick. After a preliminary hearing, the court bound over the first count as attempted sexual assault
on a child— victim less than fifteen.2
¶4 At the start of a three-day trial, the jury venire received a written questionnaire, which inquired, “Is there
http://www.cobar.org/opinions/index.cfm?courtid=2
http://www.cobar.org/opinions/opinionlist.cfm?casedate=5/18/2015&courtid=2
anything about you that you feel would make it diffic ...
Taiwanese Exoneree Chen Long-Qi (陳龍綺): Name Cleared by DNA Evidence冤獄平反協會 社團法人中華民國
In December 2013, Taiwan High Court granted Chen Long-Qi a retrial based on new DNA evidence. Chen became the first person to be granted retrial since the Taiwan Association for Innocence (TAI) was founded in 2012.
Chen sought TAI’s help right after his conviction. He refused to serve his time. He told his lawyers that “Unless they drag me in, I will not voluntarily walk into jail for something I did not do.” He divorced his wife, worrying that his daughters would have to go through psychological consultation and labeled as “daughters of the rapist” in schools. He sold his seafood stall and hid in a small apartment that his wife rented. “For many times, I looked down the street from the window of the apartment, thinking that I could have jumped down to end this nightmare”.
Anyone who has experienced difficulties with either Costco or the law firm of Sheppard, Mullin, Richter & Hampton LLP please respond and/or refer this matter to an attorney that can help me. Why? Costco's recent illegal actions relate to MICHAEL KARR the famous (purse) designer where Costco advertized a purse on Mother's Day Costco never carried. It was aired on Good Morning America. I'M STARTING A CAMPAING TO SUPPORT MICHAEL KARR, TIFFINY'S, SONY AND OTHER TO WITHDRAW THERE SUPPORT FROM COSTCO. I was an employee at Costco and they locked me in a room for and hour and ten minutes while they interogiated without legal and or union representtion. Please support this effort to expose Costco and the law firm of Sheppard, Mullin, Richter & Hampton for what they are.....
Aquinas’ Theory of Perception
Talk presented at the 19th International Interdisciplinary Seminar What differentiates human persons from animals and machines? Netherhall House, London, 3-1-2017
CONTENT
Introduction
Hylomorphism: matter and form
Acquisition and dealing with information
Isomorphism of mind and reality
Conclusions
Lisska 2016
distinction between esse naturale and esse intentionale
It is through the sense impression in the faculty that the sense faculty ‘becomes’ the sense object in the external world, but immaterially or intentionally. The same form is exemplified ‘intentionally’ in the faculty and ‘existentionally’ in the object; this is the Aristotelian insight further enhanced by Aquinas. There is an identity of form, one in esse intentionale and the other in esse naturale, indicating the two modes of exemplification utilized. Without this identity of structure rendered possible by the two modes of exemplification, the isomorphism of mind and reality in Aristotelian ontology and philosophy of mind would be impossible.
CONCLUSIONS
Hylomorphism is a powerful approach for understanding the full richness of human intellectual capacity.
The definition of truth of Aquinas becomes evident
truth: adaequatio rei et intellectus
truth is the conformity of the intellect to the things.
The non-material dimension of the human mind is fully acknowledged.
The application of concepts of the metaphysics of Aristotle and Aquinas is a adequate starting point for the study of philosophical issues of modern science.
Colorado Supreme Court Opinions May 18, 2015Colorado Su.docxclarebernice
Colorado Supreme Court Opinions || May 18, 2015
Colorado Supreme Court -- May 18, 2015
2015 CO 31. No. 13SC9. Pena-Rodriguez v. People.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2015 CO 31
Supreme Court Case No. 13SC9
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 11CA34
Petitioner:
Miguel Angel Pena-Rodriguez,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
May 18, 2015
Attorneys for Petitioner:
The Law Office of Jonathan D. Rosen, PC
Jonathan D. Rosen
Denver, Colorado
Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Majid Yazdi, Assistant Attorney General
Denver, Colorado
CHIEF JUSTICE RICE delivered the Opinion of the Court.
JUSTICE MÁRQUEZ dissents, and JUSTICE EID and JUSTICE HOOD join in the dissent.
¶1 This case involves the interplay between two fundamental tenets of the justice system: protecting the
secrecy of jury deliberations and ensuring a defendant’s constitutional right to an impartial jury. After entry of a guilty
verdict, defense counsel obtained juror affidavits suggesting that one of the jurors exhibited racial bias against the
defendant during deliberations. The trial court refused to consider these affidavits, finding that Colorado Rule of
Evidence (“CRE”) 606(b) barred their admission, and the court of appeals affirmed. People v. Pena-Rodriguez, 2012
COA 193, ¶ 3, __ P.3d __. We granted certiorari to consider whether CRE 606(b) applies to such affidavits and, if so,
whether the Sixth Amendment nevertheless requires their admission.1
¶2 We hold that the affidavits regarding the juror’s biased statements fall within the broad sweep of CRE 606(b)
and that they do not satisfy the rule’s “extraneous prejudicial information” exception. We further hold that the trial
court’s application of CRE 606(b) did not violate the defendant’s Sixth Amendment right to an impartial jury.
Accordingly, we affirm the judgment of the court of appeals.
I. Facts and Procedural History
¶3 In May 2007, a man made sexual advances toward two teenage girls in the bathroom of the horse-racing
facility where Petitioner Miguel Angel Pena-Rodriguez worked. Shortly thereafter, the girls identified Petitioner as the
assailant during a one-on-one showup. The People subsequently charged Petitioner with one count of sexual assault
on a child—victim less than fifteen; one count of unlawful sexual contact—no consent; and two counts of harassment
—strike, shove, or kick. After a preliminary hearing, the court bound over the first count as attempted sexual assault
on a child— victim less than fifteen.2
¶4 At the start of a three-day trial, the jury venire received a written questionnaire, which inquired, “Is there
http://www.cobar.org/opinions/index.cfm?courtid=2
http://www.cobar.org/opinions/opinionlist.cfm?casedate=5/18/2015&courtid=2
anything about you that you feel would make it diffic ...
CRJ 550Legal Issues in Criminal Justice AdministrationCase B.docxannettsparrow
CRJ 550
Legal Issues in Criminal Justice Administration
Case Brief ExampleThis is an example of a well-written case brief. Note the compliance with the required format and how the student gets right to the important points in plain language. If legal terms are encounter which are not understood, chances are that other students will not understand them, so it is best not to use them unless defined within the brief.
Assignment sub-heading: Sixth Amendment Right to Counsel
TITLE AND CITATION: Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984)
TYPE OF ACTION: Review by the U.S. Supreme Court of a lower court ruling that evidence should be suppressed as a result of a violation of the Sixth Amendment right to counsel. The state (Nix) sought to overturn the motion to suppress that was upheld by the U.S. District Court of Appeals.
FACTS OF THE CASE:
On December 24, 1968, ten year old Pamela Powers was kidnapped from an Iowa YMCA and her body was later found in a ditch, which was within an extensive area that was being searched by volunteers and law enforcement. The defendant was observed “carrying a large bundle wrapped in a blanket…two legs in it and they were skinny and white.” Williams’ car, which contained clothing items belonging to the victim, was found the next day approximately 160 miles from the incident. Based on this information, an extensive search was started that extended from Des Moines to Davenport, Iowa.
Law enforcement obtained a warrant for Williams’ arrest, and he subsequently turned himself into the authorities in Davenport. Williams was arraigned and had obtained and spoken with an attorney. Des Moines police detectives agreed to transport Williams and not interview him during the drive between Davenport and Des Moines. During the drive, one of the detectives on the case began to speak to Williams regarding the need to find the child’s body before it snowed so that her parents could give her a proper, “Christian” burial. The detective did not ask Williams any specific questions during this conversation. At that point, Williams provided statements to the detectives that led them to the child’s body.
Williams was then tried in state court and was found guilty of first degree murder. Williams filed a motion to suppress the evidence of the body and all related evidence concerning the body’s location based on illegally obtained testimony. When the conviction was affirmed by the Iowa state Supreme Court, Williams sought relief in the U.S. District Court for the Southern District of Iowa. The U.S. District Court, U.S. Court of Appeals, and the U.S. Supreme Court agreed with Williams and determined that he was denied the right to counsel and his statements, which led to the child’s body, could not be introduced into evidence.
Williams was tried in state court a second time, without the use by the prosecution of the statements he had given to detectives. Prosecutors introduced evidence of the child’s body under the premise.
Running head DISCIPLINARY ASSIGNMENTDISCIPLINARY ASSIGNME.docxtodd271
Running head: DISCIPLINARY ASSIGNMENT
DISCIPLINARY ASSIGNMENT
Prosecutorial Discretion and Retroactive Review
Part one
MEMORANDUM
To: Professor: Judge Scott W. Naus
From: Andrade Olliver II
Date: 5/23/ 2020
Subject: Prosecutorial Discretion and Retroactive Review
The United States judicial system is considered one of the best and most effective court systems in the world. Despite this, the U.S. prosecutors have been faced with series discriminations where they failed or violated various defendants' rights in one way or another. The significant issues in most of the cases include suppression of any favorable evidence to the defendant case, avoiding putting on stand witnesses who may support defendants, use of unreliable and consistent information, and other criminal discoveries that act against defendant constitutional rights (Green & Yaroshefsky, 2016).
Case Law I: Brandy V. Maryland, 373 U.S. 83 (1963)
According to the jury, Charles Boblit and John Brady were found to be guilty of murder. However, Brandy went further to admit in the participation of robbery but did not kill anyone in the process. Later, after both sentenced for murder, it came to Brandy's attention that despite Boblit's confession to the murder, the prosecutor still went ahead to indict both of them to the same sentence. Due to this, the Maryland Court approved considering reviewing the extent of punishment that Brandy should have been charged earlier (Clafton, 2020).
With this, the case against Brandy the prosecution can be directly accused of violation of the Fourteenth Amendment, which describes the due process of any case on trial. The suppression of evidence indicted Brandy of a crime he did not commit, but it disqualified him from a fair trial.
Case Law II: Giglio v. United States, 405 U.S. 150 (1972)
The court sentenced John Giglio guilty of forgery and passing fake money orders. It was during his appeal in the U.S. Court of Appeal where it was discovered that the prosecutor failed to avail the information of offering immunity to key a witness to the Giglio trial. Despite the discovery of this new evidence, Giglio was denied the retrial on the basis that the court could not find any final influence decision rested upon by the court (Green & Yaroshefsky, 2016). Though the retrial was denied, Giglio retrial should have been accepted on the grounds of the witness's credibility. Therefore, the testimony against Giglio could have been clouded by the judgment of crucial witnesses trying to save himself.
At the time of the trial, Giglio's cross-examination on witness could have been a great significance on his side and maybe swinging the entire case direction. Also, if the entire conviction was based on the witness testimony, it was right for Giglio to have retrial judging on the availability of the new evidence.
Case Law III: United States v. Agurs, 427 U.S. 97 (1976)
In the case, United States V. Agurs, Agurs (prostitute) was found guilty of killing Sewell (c.
362017 Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2.docxtamicawaysmith
3/6/2017 Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
https://scholar.google.com/scholar_case?case=13096571268307866226&q=Castle+Rock+v.+Gonzales,+545+US+748+(2005)&hl=en&as_sdt=1006 1/17
545 U.S. 748 (2005)
TOWN OF CASTLE ROCK, COLORADO
v.
GONZALES, INDIVIDUALLY AND AS NEXT BEST FRIEND OF HER DECEASED MINOR CHILDREN,
GONZALES ET AL.
No. 04-278.
Argued March 21, 2005.
Decided June 27, 2005.
Supreme Court of United States.
*750 John C. Eastman argued the cause for petitioner. With him on the briefs were Thomas S. Rice, Eric M. Ziporin, and Erik S.
Jaffe.
750
John P. Elwood argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting
Solicitor General Clement, Assistant Attorney General Keisler, Michael Jay Singer, and Howard S. Scher.
Brian J. Reichel argued the cause and filed a brief for respondent.[*]
JUSTICE SCALIA delivered the opinion of the Court.
We decide in this case whether an individual who has obtained a state-law restraining order has a constitutionally *751 protected
property interest in having the police enforce the restraining order when they have probable cause to believe it has been
violated.
751
I
The horrible facts of this case are contained in the complaint that respondent Jessica Gonzales filed in Federal District Court.
(Because the case comes to us on appeal from a dismissal of the complaint, we assume its allegations are true. See
Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002).) Respondent alleges that petitioner, the town of Castle Rock,
Colorado, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution when its police
officers, acting pursuant to official policy or custom, failed to respond properly to her repeated reports that her estranged husband
was violating the terms of a restraining order.[1]
The restraining order had been issued by a state trial court several weeks earlier in conjunction with respondent's divorce
proceedings. The original form order, issued on May 21, 1999, and served on respondent's husband on June 4, 1999,
commanded him not to "molest or disturb the peace of [respondent] or of any child," and to remain at least 100 yards from the
family home at all times. 366 F. 3d 1093, 1143 (CA10 2004) (en banc) (appendix to dissenting opinion of O'Brien, J.). The bottom
of the preprinted form noted that the reverse side contained "IMPORTANT NOTICES FOR RESTRAINED PARTIES AND LAW
ENFORCEMENT OFFICIALS." Ibid. (emphasis deleted). The preprinted *752 text on the back of the form included the following
"WARNING":
752
"A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CRIME . . . . A VIOLATION WILL ALSO CONSTITUTE
CONTEMPT OF COURT. YOU MAY BE ARRESTED WITHOUT NOTICE IF A LAW ENFORCEMENT OFFICER HAS
PROBABLE CAUSE TO BELIEVE THAT YOU HAVE KNOWINGLY VIOLATED THIS ORDER." Id., at 1144
(emphasis in original).
The preprinted text on the back of th ...
NCSTL briefs and Unauthorized Signature with cover pages
1. Andrew M. Wellman
1833 York Street South—Gulfport, FL 33707
awellman@law.stetson.edu--941-586-1688
WRITING SAMPLE #1
The first writing sample consists of two case briefs I prepared for the National Clearinghouse of
Science, Technology and the Law in the spring of 2013. Costanzo v. Gray was taken from a
series of cases on Expert Witnesses; Hawkins v. State relates to issues of Digital Evidence.
Background facts:
The NCSTL is a public forensic research database, based at Stetson, which can be found at
http://www.ncstl.org/
WRITING SAMPLE #2
This writing sample is an excerpt from a legal memorandum I prepared last year for a local
attorney. It is being used with permission, although both names and certain facts have been
redacted.
Background facts:
The attorney was representing a client who had written a large, company check, and who had
given the check to a family member before leaving Florida on a business trip. The check was
payable to a third party, and the family member was instructed to give the check to that party.
Unbeknownst to the client, the family member (who was not authorized to sign company checks)
acquired a second, blank company check, wrote it out for the same amount as the first check, but
making it payable to himself.
When the family member presented the check to the bank, a bank representative, seeking
ratification of the check, called the client long-distance for ratification. Via telephone, the client
authorized the check based on the amount of the check, not realizing that the check being
presented was a different check, payable to a different party, than the check originally written for
the same amount of money.
The question presented by the client was whether the bank could be held liable for payment on
this second, fraudulent check, which did not bear an authorized signature, and which was
mistakenly ratified by the client.
2. Costanzo v. Gray, 963 A.2d 1039 (Conn. App. 2009)
Costanzo sued Gray for negligence in Danbury (Connecticut) Superior Court, alleging medical
malpractice and battery. Gray, an orthopedic surgeon, had treated Costanzo for his lower back
pain, determining that Costanzo had a left side disc herniation. After “conservative treatments
proved unsuccessful,” Costanzo consented to surgery on the disc, “using the METRx retractor
system,” performed by Gray. However, Gray allegedly operated on the wrong side—the right
side instead of the left side—of Costanzo’s herniated disc.
At trial, Costanzo’s export testified that operating on the right side of the disc for a left disc
herniation “did not meet the applicable standard of care.” Gray’s expert testified that Gray had
“perform[ed] a left microdiscectomy but that he used a right sided approach, also called a
contralateral approach” and that such an approach was “within the applicable standard of care.
The jury found in favor of Gray, and Costanzo appealed on three separate grounds. First, when
asked about the pamphlet that he had used to describe the METRx procedure to Costanzo, Gray
testified at that he had used a pamphlet depicting the contralateral approach, and that he did not
recall ever providing a pamphlet describing a “same sided approach” and not a contralateral
approach, to any patients. When Costanzo attempted to ask Gray about a prior patient to whom
Gray had allegedly shown the same-sided pamphlet, the defense objected, as this prior patient
was also involved in “a separate malpractice action against Gray,” and that the same-sided
pamphlet was unfairly prejudicial as the jury might conclude that the lack of any contralateral
description in that pamphlet “as evidence of the proper approach.” Costanzo argued that the
same-sided pamphlet was relevant to Gray’s credibility, and asked to have it admitted “as a full
exhibit,” but the court declined, although “specifically [leaving] open the possibility that the
plaintiff could attack Gray’s credibility by calling a witness to testify that Gray had utilized the
Medtronic pamphlet during prior consultations.”
The Appellate Court of Connecticut agreed with the trial court and its reasoning, balancing the
same-sided pamphlet’s credibility purpose against concerns of undue prejudice, noting that
Costanzo had been permitted “to question Gray about the existence of the [same-sided]
pamphlet” and that Costanzo never called a witness to testify to being given the same-sided
pamphlet, despite being granted permission to do so.
Costanzo next claimed that he was wrongfully precluded from questioning Gray and Dr.
Murphy, an expert for the defense, about the standard of care for medical record keeping.
Constanzo had presented evidence that before the surgery, Gray had “submitted a medical
history form” which described Costanzo’s disc herniation as “right-sided” and that Costanzo’s
“symptoms were on the right side.” Gray would admit at trial that Costanzo had never reported
“any right sided symptoms,” and that he did not “have a right sided herniation.” However, when
Costanzo attempted to pose questions that tied the inaccuracy of these records to a breach of the
standard of care, Gray objected “on the grounds that the standard of care was beyond the scope
of the allegations in the complaint,” and because neither Gray nor Murphy had been recognized
by the court as a record keeping expert.
The Appellate Court again agreed with the analysis of the trial court, holding that Costanzo’s
“operative complaint made specific allegations” and that none of them “pertain[ed] to improper
record keeping,” but were “specific to the surgery.” In addition, the Appellate Court noted
several occasions in which the trial court had permitted the jury to hear evidence about “the
3. importance of keeping accurate medical records” and of instances where Gray had entered
erroneous and inaccurate information into Costanzo’s records.
Costanzo’s next ground for appeal was that “his motion to set aside the verdict on the battery
count” was improperly denied because Murphy had stated in his deposition that Gray “did not
‘technically’ perform a “left L4-L5 microdiscectomy,” the procedure to which the plaintiff
consented.” When asked about this at trial, Murphy testified that “I think that he did perform a
left sided microdiscectomy but through a different approach. Technically, I think the term would
indicate that he did the approach from the left side and that would not be accurate, because
obviously, he did it from the right side.” Coztanzo argued that this provided a valid basis for the
battery charge, as a “left sided L4-L5 microdiscectomy” was different that the “left L4-L5
microdiscectomy” to which he had consented, and that Gray had thus committed battery.
After indicating that it found Murphy’s testimony “somewhat confusing,” the Appellate Court
upheld the jury’s finding, holding that “even if the plaintiff’s interpretation of this statement is
accurate,” the jury still heard “ample evidence” that Gray had in fact performed the left L4-L5
microdiscectomy to which Costanzo had consented, including Murphy’s testimony that Gray
“attempted to do a left sided microdiscectomy . . . through a right sided approach, instead of a
left sided approach,” and pointing out that Murphy “did not draw any distinction between” the
two terms, and “appeared to use [them] interchangeably.”
Costanzo’s final ground for appeal was that “his motion to set aside the verdict on the medical
negligence count” was wrongly denied. Murphy had testified that if Gray had been “even
suspicious of the presence of a free fragment on the left,” employing the contralateral approach
would be a breach of the standard of care. Prior to the surgery, Gray had written that the “disc
herniation was ‘probably in part free fragment,’” but that he “spoke with a radiologist and
eventually agreed with the radiologist’s report” that did not show a free fragment. Also, no
evidence of a free fragment was ever submitted into evidence. Costanzo argued that as that
radiology report made no mention of free fragments, and that “it was unreasonable for the jury”
to conclude that the radiologist could have persuaded Gray to alter his original “probably in part
free fragment” notation. Gray argued that it was, in fact, a reasonable conclusion, and the
appellate court agreed that there was sufficient evidence from which the jury could have made
this conclusion, remarking that “[e]ssentially the plaintiff is asking this court to determine that
Gray and Murphy were not credible. That is not the province of this court.”
Having found for the appellee on all four issues, the Appellate Court affirmed the judgment.
Hawkins v. State, 704 S.E.2d 886 (Ga. App. 2010) aff'd, 723 S.E.2d 924 (Ga. 2012)
Hawkins, facing drug charges, appealed a trial court’s denial of her motion to suppress evidence
of text messages obtained from two cell phones, including her own, claiming that “the seizure
and search of her cell phone were unreasonable,” and that the Lowndes County (Georgia)
Sheriff’s Office lacked the authority to use the cell phone of another individual to send and
receive text messages from her.
Hawkins had sent cell phone text messages in which she allegedly arranged to meet with an
unidentified young man to purchase “certain controlled substances” in pill form. Unbeknownst
to her, the young man’s mother, suspecting his involvement with narcotics, had given her son’s
cell phone to the police, and Hawkins had actually been exchanging text messages with a police
officer. When she arrived at the arranged destination (a restaurant) to purchase the pills, an
4. officer witnessed her “entering data into her phone,” just before receiving a text message from
Hawkins “on the son’s cell phone, in which Hawkins announced her arrival at the restaurant.”
Shortly thereafter, Hawkins was placed under arrest. She admitted to sending the text messages
arranging the meeting, and consented to a search of her vehicle. Finding her cell phone inside
her purse, an officer then “searched for, and found . . . the text messages” arranging the meeting,
and “downloaded and printed them.” No warrant was obtained for the arrest, the search of the
vehicle, or the search of the phone.
In her motion, Hawkins argued that the warrantless seizure and search of her cell phone violated
her Fourth Amendment rights. The Georgia Court of Appeals disagreed, pointing out that “a
search incident to a lawful arrest” is an exception “to the warrant requirement,” and that Hawkins
did not dispute that her arrest had been lawful. The court also cited the Supreme Court decision
in U.S. v. Gant, a “narrow reading” of which provided that a warrantless search of the vehicle
was reasonable following the arrest of “the occupant or recent occupant” of the vehicle, and,
citing the facts of the case, held that police had “every reason to believe” that the text messages,
as “evidence of the crime for which Hawkins was arrested,” could be recovered from the vehicle
upon her arrest, allowing a search for them “in any place in the vehicle in which the text
messages reasonably might be found.”
Addressing issues relating to the plain view of the text messages, the Court of Appeals also
pointed to opinions finding that a “cell phone is roughly analogous to an electronic ‘container’
that properly can be ‘opened’ and searched” for data. As the record indicated police “found or
looked for” no other data on the cellphone besides the specific text messages sought, the search
was thus sufficiently limited in scope.
Hawkins also argued that police “did not have the authority” to use the second cellphone to
either read her text messages or to reply to her text messages without consent from the owner of
the cell phone. The court rejected the claim that the conduct of police was “comparable to
wiretap interception of a telephone conversation,” pointing out that the relevant Georgia statute
excludes individuals who are “a party to the communication,” and found that Hawkins had no
standing “to claim a violation of the constitutional rights of the son.”
Concurring with the majority, Chief Judge Miller however disagreed with their analysis of Gant,
stating that “warrantless search of the cell phone’s data was properly allowed for the purpose of
evidence preservation” for use at trial. Judge Phipps wrote a partial dissent, finding the search
unreasonable under the Fourth Amendment, pointing to testimony that the cell phone was not
found during the search of Hawkins’s vehicle, but during a search of her purse, and disagreeing
with the analogy of a cell phone as a “closed container”
Upon further appeal, the Georgia Supreme Court agreed with the Court of Appeals and the
majority opinion analysis of Gant. The Court also agreed with the finding that a cell phone is
“similar to a traditional container that can be opened” and searched, pointing out that the
“potentially high volume of information stored in the cell phone should not control the question
of whether that electronic container may be searched,” and concluding that “reviewing the
reasonable scope of the search will largely be a fact-specific inquiry.”
5. To: XX
From: Andrew Wellman
Date: September 2014
Re: Unauthorized signature on corporate check
Below I have condensed my findings which attempt to summarize material included
under the three subheadings beginning on page four. I also attached the full version of UCC § 4-
406, with comments, as those official comments contained background which I found helpful
[NOTE—not included here].
GENERAL SUMMARY
If a corporate check is signed by an individual not authorized to sign checks on behalf of
that corporation, that check is not properly payable under Florida statute unless a party with the
authority to make such an authorization effectively ratifies the signature. Under Florida law,
banks owe no fiduciary duty to customers, and customers who are themselves defrauded into
ratifying otherwise unauthorized transactions typically may only seek relief from the defrauding
party. Here, however, it appears that the bank failed to get adequate ratification of the
unauthorized signature from the customer, by failing to provide the customer with full
knowledge of all material facts relating to the unauthorized signature.
The UCC states that ratification “may be found from conduct as well as express
statements.” Florida courts have held that such affirming conduct may include:
“[C]onduct which can be rationally explained only if there were an election to treat a
supposedly unauthorized act as in fact authorized.” Fulka v. Florida Commercial Banks,
Inc., 371 So. 2d 521, 524 (Fla. Dist. Ct. App. 1979)
“If a party knows of the wrongful conduct at issue, does not reject it, and takes any
material act inconsistent with an intent to avoid it or delays in asserting any remedial
rights, then the party ratifies the transaction.” Citron v. Wachovia Mortgage Corp., 922 F.
Supp. 2d 1309, 1321 (M.D. Fla. 2013)
6. Other Florida decisions have expanded on the knowledge requirement:
“The principal must have full knowledge of the initially unauthorized agents' conduct and
approve of that conduct.” Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330,
1355 (11th Cir. 2011)
“Before ratification will be implied of an act of an unauthorized agent it must be made to
appear that the principal has been fully informed and that he has approved.” Ball v.
Yates, 158 Fla. 521, 527, 29 So. 2d 729, 732 (1946).
Although Florida case law has only addressed the issue of ratification in decisions
involving contract and agency, and not negotiable instruments, other states have acknowledged
identical ratification requirements for unauthorized or forged signatures on negotiable
instruments.
Defenses available to the bank arise from the UCC, and relate to the account agreement.
Florida statute provides for 180 days during which the customer must discover and report an
unauthorized signature, although this window may be shortened via the written account
agreement. Florida’s bank statement rule mirrors the UCC in that a bank statement is not
required to provide the name of the payee, but merely the check number, amount, and date.
Depending on what information the bank did provide to this customer, and the amount of time
which elapsed before the customer reported the unauthorized signature, the finding of fact will
involve a determination of whether the customer should reasonably have discovered the
unauthorized transaction.
Beyond that, defenses available to the bank include (again) showing that the customer
had full knowledge of all material facts, or that the customer, through negligence, substantially
contributed to bank’s decision to accept the unauthorized check. Such a defense often invokes
the customer’s duty to keep blank checks secure, often incorporated in the account agreement.
Final note: Although certain changes have been made to UCC provisions regarding
unauthorized signatures, these changes do not relate to ratification; rather, they reflect the
7. elimination of an unintentional statutory distinction between “forged” signatures and
“unauthorized” signatures.
1. The check was not properly payable because the signature was unauthorized.
Florida statute § 671.201(44) defines an unauthorized signature as “a signature made
without actual, implied, or apparent authority.” This definition is based upon the definition
provided by the Uniform Commercial Code.
Fla. Stat. § 673.4031(1) states that “Unless otherwise provided in this chapter or chapter
674, an unauthorized signature is ineffective except as the signature of the unauthorized signer in
favor of a person who in good faith pays the instrument or takes it for value. An unauthorized
signature may be ratified for all purposes of this chapter.”
UCC Official Comment 3, referring to the final sentence of that subsection, states that
“Ratification is a retroactive adoption of the unauthorized signature by the person whose name is
signed and may be found from conduct as well as from express statements. For example, it may
be found from the retention of benefits received in the transaction with knowledge of the
unauthorized signature.”
Two Florida decisions discussing effective ratification of unauthorized signatures on a
negotiable instrument:
“The “affirmance” thus required to create a ratification may arise from conduct which
can be rationally explained only if there were an election to treat a supposedly
unauthorized act as in fact authorized. Restatement of Agency, 2d s 83 (1958); see
Thermo Contracting Corp. v. Bank of New Jersey, 69 N.J. 352, 354 A.2d 291, 296
(1976); Atlas Building Supply Co., Inc. v. First Independent Bank of Vancouver, 15
Wash.App. 367, 550 P.2d 26, 28 (1976); Common Wealth Ins. Systems, Inc. v. Kersten,
40 Cal.App.3d 1014, 115 Cal.Rptr. 653 (1974); cf. G & M Restaurants Corp. v. Tropical
Music Service, Inc., 161 So.2d 556 (Fla. 2d DCA 1964). That principle is directly
applicable here. Mrs. Fulka's actions can be fairly viewed only as evincing her intention
to approve and agree to the results of the bank's action in letting Okum have the money.”
Fulka v. Florida Commercial Banks, Inc., 371 So. 2d 521, 524 (Fla. Dist. Ct. App. 1979)
8. and
“An “unauthorized signature” is code-defined as “one made without actual, implied or
apparent authority and includes a forgery.” Fla.Stats. s 671.1-201(43), UCC s 1-201(43).
In substance, section 3-404 permits the unauthorized signature to bind the person whose
name is signed in favor of anyone who in good faith and for value takes “The instrument
” (as defined), where the person whose name is signed “ratifies” the unauthorized
signature or “is precluded from denying” it. For purposes of this section, a person may
ratify his unauthorized signature if he knowingly assents to it by express statement or
conduct (such as retaining benefits accruing from the signature), and he may be precluded
from denying *567 it not only by estoppel but also by negligence in permitting or failing
to disavow it. 2 Anderson, Uniform Commercial Code ss 3-404.4-.7 (1971); White and
Summers, Uniform Commercial Code 402 (1972); UCC Official Code Comment s 3-404,
quoted at 2 White, pp. 919-920.” European Am. Bank & Trust Co. v. Starcrete Int'l Ind.,
Inc., 613 F.2d 564, 566-67 (5th Cir. 1980)
2. The unauthorized signature was not effectively ratified by the person with the
authority to do so.
In Florida, there has not yet been much case law specifically discussing ineffective
ratification of unauthorized signatures on negotiable instruments; such decisions have instead
arisen under agency law, and involve other types of transactions. Molinos Valle Del Cibao, C.
por A. v. Lama, involved contracts, and cited two earlier decisions, both of which are also
excepted below
“Ratification of an agreement occurs where a person expressly or impliedly adopts an act
or contract entered into in his or her behalf by another without authority.” Deutsche
Credit Corp. v. Peninger, 603 So.2d 57, 58 (Fla. 5th Dist.Ct.App.1992) (citations
omitted). The principal must have full knowledge of the initially unauthorized agents'
conduct and approve of that conduct. Frankenmuth Mut. Ins. Co. v. Magaha, 769 So.2d
1012, 1021–22 (Fla.2000).” Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330,
1355 (11th Cir. 2011)
Deutsche Credit Corp. v. Peninger also involved an unauthorized signature on a contract:
“Ratification of an agreement occurs where a person expressly or impliedly adopts an act
or contract entered into in his or her behalf by another without authority. Carolina
Georgia Carpet & Textiles, Inc. v. Pelloni, 370 So.2d 450 (Fla. 4th DCA 1979). See also
Port Largo Club, Inc. v. Warren, 476 So.2d 1330 (Fla. 3d DCA 1985); G & M
Restaurants Corp. v. Tropical Music Service, Inc., 161 So.2d 556 (Fla. 2d DCA 1964).
An agreement is deemed ratified where the principal has full knowledge of all material
9. facts and circumstances relating to the unauthorized act or transaction at the time of the
ratification. G & M, 161 So.2d at 558. See also Ball v. Yates, 158 Fla. 521, 29 So.2d 729
(1946), cert. den., 332 U.S. 774, 68 S.Ct. 66, 92 L.Ed. 359 (1947); Pedro Realty Inc. v.
Silva, 399 So.2d 367 (Fla. 3d DCA 1981); Bach v. Florida State Bd. of Dentistry, 378
So.2d 34 (Fla. 1st DCA 1979). An affirmative showing of the principal's intent to ratify
the act in question is required. Pelloni, 370 So.2d at 452. Moreover, the issue of whether
an agent's act has been ratified *59 by the principal is a question of fact. One Hour Valet
of America, Inc. v. Keck, 157 So.2d 83 (Fla. 2d DCA 1963).” Deutsche Credit Corp. v.
Peninger, 603 So. 2d 57, 58-59 (Fla. Dist. Ct. App. 1992)
Finally, Frankenmuth Mut. Ins. Co. v. Magaha dealt with the issue of whether a county
commission had effectively ratified a lease purchase agreement, and the court took the
opportunity to fairly extensively cite other previous cases:
“Second, in addition to the requirement that a subsequent approval in the form of
ratification be made “in the sunshine” in the same manner that a formal approval would
have required, there are several other general principles undergirding the concept of
ratification warranting our attention. In the vintage opinion of Ball v. Yates, 158 Fla. 521,
527, 29 So.2d 729, 732 (1946), this Court stated, “Before ratification will be implied of
an act of an unauthorized agent it must be made to appear that the principal has been fully
informed and that he has approved.” In Peninger, 603 So.2d at 58, the Fifth District
Court of Appeal expounded upon the general pronouncement made by this Court in Ball:
‘An agreement is deemed ratified where the principal has full knowledge of all
material facts and circumstances relating to the unauthorized act or transaction at
the time of the ratification. G & M [Restaurants v. Tropical Music Service], 161
So.2d [556] at 558 [Fla. 2d DCA 1964]. See also Ball v. Yates, 158 Fla. 521, 29
So.2d 729 (1946), cert. den., 332 U.S. 774, 68 S.Ct. 66, 92 L.Ed. 359 (1947);
Pedro Realty Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981); Bach v. Florida
State Bd. of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979). An affirmative showing
of the principal's intent to ratify the act in question is required. [Carolina–Georgia
Carpet & Textiles v.] Pelloni, 370 So.2d [450] at 452 [Fla. 4th DCA 1979].
Moreover, the issue of whether an agent's act has been ratified by the principal is
a question of fact. One Hour Valet of America, Inc. v. Keck, 157 So.2d 83 (Fla. 2d
DCA 1963).
“Regarding the “full knowledge” requirement discussed in Peninger, the First District
stated the following in Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36–37
(Fla. 1st DCA 1979):
‘Before one may infer that a principal ratified an unauthorized act of his agent, the
evidence must demonstrate that the principal was fully informed and that he
approved of the act. Ball v. Yates, 158 Fla. 521, 29 So.2d 729, 732 (1946). It is
generally the rule that the doctrine of constructive knowledge does not apply to
10. bring about ratification. The principal is charged only upon a showing of full
knowledge, and not because he had notice which should have caused him to make
inquiry, which in turn would have brought to his attention the knowledge of the
unauthorized act of the employee. 2 Fla.Jur.2d, Agency and Employment, § 52 at
page 204 (1977).... There is no duty imposed upon the principal to make inquiries
as to whether his agent has carried out his responsibilities. The principal “has a
right to presume that his agent has followed instructions, and has not exceeded his
authority.” Oxford Lake Line v. First Nat. Bank, 40 Fla. 349, 24 So. 480, 483
(1898). And,
‘[w]henever he is sought to be held liable on the ground of ratification,
either express or implied, it must be shown that he ratified upon full
knowledge of all material facts, or that he was willfully ignorant, or
purposely refrained from seeking information, or that he intended to adopt
the unauthorized act at all events, under whatever circumstances. Id.’”
Frankenmuth Mut. Ins. Co. v. Magaha, 769 So. 2d 1012, 1021-22 (Fla.
2000)
Elsewhere, a New York district court discussed ratification as it applied to the U.C.C.
ratification provision for unauthorized signatures on a negotiable instrument. The facts in
Zambia Nat. Commercial Bank Ltd. v. Fid. Int'l Bank closely parallel the question presented, as
Zambia sought to recover on two forged checks written and paid from its account at the
Defendant’s bank. As the Defendant claimed a defense of ratification under the aforementioned
UCC provision, the court found that:
Although the court's research reveals a dearth of caselaw in New York on the subject of
ratification under U.C.C. § 3–404, we take notice of the decisions of other courts
construing the same provision of the U.C.C. in their respective jurisdictions. The essence
of a ratification pursuant to § 3–404 is that the drawer has full knowledge of all the
material facts and manifests an intent to ratify the unauthorized signature. See Thermo
*1391 Contracting Corp. v. Bank of New Jersey, 69 N.J. 352, 354 A.2d 291, 295–296
(1976); Thieme v. Seattle–First Nat'l Bank, 7 Wash.App. 845, 502 P.2d 1240, 1242
(1972) (cited in Thomas M. Quinn, Uniform Commercial Code Commentary and Law
Digest, § 3–404 at 3–161 (1987 & 1991 Supp.)). Zambia Nat. Commercial Bank Ltd. v.
Fid. Int'l Bank, 855 F. Supp. 1377, 1390-91 (S.D.N.Y. 1994) amended in part, 91 CIV.
8747 (BN), 1994 WL 440717 (S.D.N.Y. Aug. 12, 1994) and amended, 91 CIV. 8747
(BN), 1994 WL 557050 (S.D.N.Y. Oct. 7, 1994)
Thermo Contracting Corp. v. Bank of New Jersey dealt with unauthorized indorsments:
11. “Approval of these principles is found in Goldfarb v. Reicher, 112 N.J.L. 413, 171 A. 149
(Sup.Ct.1934), aff'd o.b. 113 N.J.L. 399, 174 A. 507 (E. & A.1934). Ratification requires
intent to ratify plus full knowledge of all the material facts. Passaic-Bergen Lumber Co.
v. United States Trust Co., 110 N.J.L. 315, 164 A. 580 (E. & A.1933); 2 Anderson,
U.C.C. s 3-404:7, p. 924 (2d Ed.1971). Ratification may be express or implied, and intent
may be inferred from the failure to repudiate an unauthorized act, East Orange v. Bd. of
Water Comm'rs. of East Orange, 73 N.J.Super. 440, 180 A.2d 185 (Law Div.1962), aff'd
40 N.J. 334, 191 A.2d 747 (1963); Johnson v. Hospital Service Plan of N.J., 25 N.J. 134,
135 A.2d 483 (1957); from inaction, Vogt v. Borough of Belmar, 14 N.J. 195, 101 A.2d
849 (1954); or from conduct on the part of the principal which is inconsistent with any
other position than intent to adopt the act. Common Wealth Ins. Systems, Inc. v. Kersten,
40 Cal.App.3d 1014, 115 Cal.Rptr. 653 (Ct. of App.1974).” Thermo Contracting Corp. v.
Bank of New Jersey, 69 N.J. 352, 361, 354 A.2d 291, 296 (1976)
3. Possible defenses by the bank:
a. That the customer substantially contributed to the making of the unauthorized
signature, but not that the customer substantially contributed to the bank’s acceptance of the
check
i. “Neither section 673.406 of Florida's Uniform Commercial Code,
however, nor Florida case law construing it impose explicitly, or imply
factually, the requirement that the type of negligence involved be such as
to have contributed to the bank's acceptance of the check. See, e.g., First
National Bank v. Keshishian, 427 So.2d 313 (Fla. 5th DCA 1983). The
statute only requires that the negligent conduct be of a type to have
substantially contributed to the making of the unauthorized signature.”
Key Bank of Florida v. First United Land Title Co., 502 So. 2d 1280, 1283
(Fla. Dist. Ct. App. 1987)
b. Florida’s Bank statement rule:
i. “ If a bank sends or makes available a statement of account or items
pursuant to subsection (1), the customer must exercise reasonable promptness in
examining the statement or the items to determine whether any payment was not
authorized because of an alteration of an item or because a purported signature by
or on behalf of the customer was not authorized. If, based on the statement or
items provided, the customer should reasonably have discovered the unauthorized
payment, the customer must promptly notify the bank of the relevant facts.” Fla.
Stat. § 674.406(3)
12. Fla. Stat. § 674.406(6) provides that the customer has 180 days to discover and report an
unauthorized signature. However, this statutory period may be shortened via the account
agreement.
Important note: The bank is not required to provide, as part of the bank statement rule,
the name of the payee on the check. “The statement of account provides sufficient information if
the item is described by item number, amount, and date of payment.” Fla. Stat. § 674.406(1).
Official Comment 1 under the UCC states that an image of the check also complies with this
rule.