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Craig

I contacted Mr. Roper and asked him about how he could dismiss the Florida decisions cited by Cabinetmaniac which seemed to show that standing is an affirmative defense in New York.  Mr. Roper said I was the fifth person that contacted him about this thread.  See:

"Is Standing Jurisdictional-N.J."
http://ssgoldstar.websitetoolbox.com/post/Is-Standing-JurisdictionalN.J.-6140822

Just as e, Lucky and others have stated, Mr. Roper explained that the cited decisions were actually not holdings in support of Cabinetmaniac's assertions.  Rather, he said these were obiter dicta, were not actually holdings of the Florida court and afforded no authority whatsoever in support of Cabinetmaniac's assertion!

When I asked him to further explain, he told me to look up "dicta" or "obiter dicta" in a legal encylopedia.  He said that Bouvier's legal dictionary and older versions of Black's Legal Dictionary are available online, including at Google Scholar.  He also right off the top of his head cited two U.S. Supreme Court decisions that explained the concept:

Carroll v. Lessee of Carroll, 57 U.S. 275, 16 How. 275, 287 (1854)
http://scholar.google.com/scholar_case?case=16266822264469357151

St. Louis Railroad v. Terre Haute Railroad, 145 U.S. 393, 12 S.Ct. 953, 36 L.Ed. 748 (1892).
http://scholar.google.com/scholar_case?case=12801665560381810396


Here is what Black's Legal Dictionary, 2nd ed (1910) says:

"Dicta are opinions of a judge which do not
embody the resolution or determination of the
couit, and made without argument, or full consideration
of the point, are not the professed deliberate
determinations of the judge himself.
Obiter dicta are such opinions uttered by the
way, not upon the point or question pending, as
if turning aside for the time from the main topic
of the case to collateral subjects.  Rohrbach v.
Insurance Co., 62 N. Y. 47, 58, 20 Am. Rep.
451."

I have to say that I have always been impressed by Mr. Roper's posts at the Forum, but actually speaking to him is really amazing.  His total understanding and control of the law and legal principles is just remarkable.

He basically said that unless the cited case actually held that a defendant bore the burden of proof on a defense, that by definition the defense couldn't possilby be an affirmative defense.

I looked again at Cabinetmaniac's cases and Mr. Roper, once again, is clearly right, as even Cabinetmaniac seems to now concede.

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Lucky
Craig wrote:

I have to say that I have always been impressed by Mr. Roper's posts at the Forum, but actually speaking to him is really amazing.  His total understanding and control of the law and legal principles is just remarkable.



I was confused by the seeming contradiction between some of the court opinions, and the rules and other court opinions. I was often taking the courts' decisions at face value and granting them too much authority. It appears I was not the only one. Now that I am aware of "dicta" I will try to be more discerning. I remember other opinions I have read that seemed at the time to be contradictory. Now I know why.

Mr. Roper is a wealth of knowledge. He is also kind enough to share it with us. He was willing and able to get right to the heart of the issue.




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!
The Florida Supreme Court discusses dicta:

"The sole holding in Permenter was a finding that this Court lacked jurisdiction.  We do not know its facts and any statements beyond the simple finding of no jurisdiction were obiter dicta.  E.g., Myers v. Atlantic Coast Line Railroad, 112 So.2d 263 (Fla. 1959); State v. Florida State Improvement Commission, 60 So.2d 747 (Fla. 1952); Bunn v. Bunn, 311 So.2d 387 (Fla. 4th DCA 1975); Dobson v. Crews, 164 So.2d 252 (Fla. 1st DCA 1964), aff'd, 177 So.2d 202 (Fla. 1965).  Such dicta is at most persuasive and cannot function as ground-breaking precedent.  Improvement Commission, 60 So.2d at 750; Town of Lantana v. Pelczynski, 290 So.2d 566 (Fla. 4th DCA), aff'd, 303 So.2d 326 (Fla. 1974); Weisenberg v. Carlton, 233 So.2d 659 (Fla. 2d DCA), cert. denied, 240 So.2d 643 (Fla. 1970); O'Sullivan v. City of Deerfield Beach, 232 So.2d 33 (Fla. 4th DCA 1970).  Shiflett, therefore, remains as the binding precedent in this state."
Continental Assur. Co. v. Carroll, No. 66324, 485 So. 2d 406, 408-9 (Fla. 1986)
http://scholar.google.com/scholar_case?case=2848208316812561505

"We take this opportunity to expressly state that this Court does not intentionally overrule itself sub silentio.  Where a court encounters an express holding from this Court on a specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to apply our express holding in the former decision until such time as this Court recedes from the express holding.  Where this Court's decisions create this type of disharmony within the case law, the district courts may utilize their authority to certify a question of great public importance to grant this Court jurisdiction to settle the law."
Puryear v. State, No. SC01-183, 810 So. 2d 901, 905-6 (Fla. 2002)
http://scholar.google.com/scholar_case?case=13953271906711981717
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$&?!
On the issue of whether conditions precedent is an affirmative defense in Florida, this holding is not dicta and reflects a correct statement of Florida law, which is the same as the law everywhere else:

"The requirement in that rule that a denial of performance or occurrence shall be made specifically and with particularity does not make failure of performance or occurrence of conditions precedent an affirmative defense."
Plowden & Roberts, Inc. v. Conway, 192 So. 2d 528 (Fla. 4th DCA 1966)
http://scholar.google.com/scholar_case?case=8644166506026309380
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