Celebrate Life

It's precious and fragile and your good fortune can change in a New York minute.

Steve Chaykin, RIP. The Aspen Daily News has a more complete account here.

3d DCA Watch -- The One In Which Judge Cope Becomes "Judicially Aware."

Well if you thought last week's edition was a little thin, you better take a pass on this week. You have your usual one-noter cert opinion from Judge Schwartz, as well as an economic-loss rule snoozer from Judge Wells. (Dear Judge Wells, the economic loss rule is confusing enough, is it too much to ask for some background facts before affirming with a string citation? Then your opinion could be useful to practitioners down the road. Just askin'.)

But it was this permanent alimony ruling from Judge Cope that caught my eye:

The husband is correct in saying that the wife should not have based her budget for housing on an assumed purchase of a home in the Florida Keys, when her actual plan was to relocate to Montgomery. Evidence was presented that costs are significantly lower in Montgomery, and we are judicially aware that the housing market in the Florida Keys is extremely expensive. The effect was to overstate the amount the wife needed for housing.

That's a neat trick, huh? It sure saves everyone time and money if you don't actually have to submit evidence at trial in order to prove a point on appeal, it simply is a sub silencio part of the "judicially aware" record. For example, the Court is "judicially aware" that attorney so and so is a complete butthead. Works for me!

Darn those judicial budget cuts really have affected everything.

"I Don't Want a Piece of You, I Want the Whole Thing!"

How about that? Scott Sheftall channels his inner Happy Gilmore:

Scott Sheftall calls himself the ''ultimate Cinderella story'' at this week's U.S. Senior Open.

A decent college golfer, Sheftall's best golf moments since then have come while on hand to see best friend Mark McCumber win two Doral titles and the 1988 Players Championship. He counts Fuzzy Zoeller as a client.

Now, though, the Miami attorney's own swing goes on display.

''This time, I'll get a little taste of it myself,'' said Sheftall, who tees it up Thursday alongside the likes of Zoeller, Tom Watson, Hale Irwin and Bernhard Langer at The Broadmoor in Colorado.

At 57, Sheftall is 10th-oldest among the 30 amateurs in the field. Only one, Dallas' Charles Palmer, is older among those making their Senior Open debuts.

''I figured at some time I might be able to put it all together,'' Sheftall said before he left for Colorado. ``Somehow, it all happened for me.''

Three decades ago, Sheftall helped Davidson College place second at the 1973 Southern Conference tournament. Eventually, he stopped playing competitively to focus on his law career. It wasn't until two years ago that he started entering tournaments again.

He earned his way to The Broadmoor by fighting off severe leg cramps to get into a three-man playoff for the last of two spots from a June 27 qualifier at Delray Dunes Golf Club. A birdie on the third extra hole punched his ticket.

''I don't know how I got through it,'' Sheftall said. ``I tried to be conscientious and drink a lot of Gatorade and eat a lot of bananas, but I still had [cramping] very bad.''

The pain got so intense that at one point, Sheftall was ready to lie down in the fairway between shots. It was then that his wife, Regina, reminded him of Tiger Woods' U.S. Open triumph on a bum leg two weeks earlier.

''If Tiger [Woods] can do it,'' she told him, ``you can do it.''

''It was a slap of reality,'' Sheftall recalled.

Scott's always been involved in charity golfing events, but who knew? Send the ball home, Scotty!

Smiles, Everyone, Smiles!

Boy it's another crappy day in paradise. I open up the paper and learn that Michael Putney thinks the Marlins stadium giveaway is a ridiculous joke, then I read how our schools chief was just named National Superintendent of the Year but he's about to be fired for no good reason.

Ok, that's business-as-usual in the Magic City. But here's the tragic news -- Ashley Dupre dropped her Girls Gone Wild lawsuit:

The call girl associated with former New York Gov. Eliot Spitzer has dropped a Miami lawsuit against "Girls Gone Wild" founder Joe Francis.

Court documents show Ashley Dupre voluntarily dismissed the $10 million federal lawsuit Thursday accusing Francis of exploiting her image and name on the Internet, The Associated Press reported. She said she was only 17 when she signed a binding contract giving permission to appear in the "Girls Gone Wild" video.

Come on! Gone is our chance for a really interesting 3d DCA Watch, one where Judge Schwartz could finally opine on the sanctity of contract law in the context of underage, drunken displays of public nudity. That would have made slogging through those opinions week after week worthwhile.....

Fake Eliot Spitzer, the tribe awaits your comments.

Sex, Lies, and Willie Gary?

Once again I ask -- why can't I ever get a case like this? This time Michael Pike gets to have all the fun:

West Palm lawyer Michael Pike included in his filing two X-rated homemade DVDs of Gary's single adult son, Kenneth, having sex with Nedd. The second DVD, according to Pike, was filmed a week after Nedd and Gary met in a Stuart Best Western, where Nedd claims he sexually assaulted her.

"She claims she was assaulted by the father yet, a week later, she's making an amateur sex video with the son," said Pike.

Stuart police investigated both the rape and extortion claims but declined to seek charges in either case.

Earlier this year, Gary's attorneys accepted a settlement agreement that required the Nedds to pay $100 to resolve the extortion suit. A judge at one point dismissed Jillian Nedd's suit against the Gary firm, but her attorneys refiled it soon afterward with more information.

Nedd and Kenneth Gary met through the woman's husband, Kelvin Nedd. He was Kenneth's physical fitness trainer.

Exhibits accompanying the documents to be filed in Martin County court Monday afternoon also include: Allegations of heavy drug use by Nedd; allegations of assault by Nedd against Kelvin Nedd; witness accounts that, the day before Nedd and Gary met at the Best Western, she bragged to stranger at the bar at Stuart Ale House of being "Willie Gary's mistress" and that she would soon "celebrate" Gary's birthday in a hotel. There's also a police report in the Miami area that indicates Nedd may have accused someone else of sexual assault.

Let's see:

Stuart Ale House? Check.
Best Western? Check.
Meeting Gary's son through fitness coach husband? Check.

Stuff of Carl Hiaasen novel? Most definitely.

Late 3d DCA Watch -- Waiting For The Man

Well, there's slim pickings in 3d DCA Watch, we probably should have just skipped the whole darn week. But let's take a looksy anyways at those wacky, wily bunch of robed troublemakers, yes it's 3d DCA Watch:

United Auto v. Garrido:

Wait a minute; do my eyes deceive me? Did United Auto actually win an appeal? On a writ no less? It does appear that way.

In this case the provider submitted untimely bills for reimbursement, which for some reason United Auto decided not to pay. The Circuit Court Appellate Division decided that United Auto waived its right to contest that these bills were untimely. No no Circuit Court Appellate Division, you've been a bad boy:

Under section 627.736(5)(c)(1), an insurer has no obligation to pay late-filed bills. See Coral Imaging Servs. v. Geico Indem. Ins. Co., 955 So. 2d 11 (Fla. 3d DCA 2006). Neither submitting untimely bills along with timely bills to an independent medical examiner for a determination of medical necessity, nor failing to check “late billing” as a reason for denying payment of untimely bills on an explanation of benefits form, constitutes a waiver of this provision. We therefore grant the writ because the Appellate Division’s decision to the contrary amounts to a violation of a clearly established principle of law resulting in a miscarriage of justice. Because the ruling potentially affects large numbers of claimants and large numbers of claims processed by insurers under personal injury protection (“PIP”) coverage, exercise of certiorari jurisdiction is appropriate.

Now maybe my English ain't too good, to paraphrase Rocky, but I think Judge Wells is saying you guys got this wrong, real bad. Super bad.

Related question for United Auto: Can you win a battle but lose the war?

On The Road Again

Hi folks! I'm traveling for the next few days, so I promise a belated 3d DCA Watch when I return, probably sometime over the weekend, weather permitting.

Be good and play nice.

Note to Sandy Bohrer -- Tom Petty Was Right.

The waiting is the hardest part:

After an exhaustive genealogical search, Judge Cohen has been unable to conclude that she, too, is distantly related to Bob Martinez. Not only that, her efforts to get the parties to settle informally have been a bust. Then the defense had the nerve to rest. And she's got a tough reelection battle looming, with a vote on August 26. What to do, what to do:

Cohen said she'll wait to make a decision on a key remaining count until the Florida Supreme Court finishes work on a case involving the use of public money without a vote. The justices are on break until the end of August.

The announcement enraged the defense, which had won every key ruling until now but fears a delay could doom the team's long-sought dream stadium.

"My client's finances are hanging by a thread, we may not be able to hold on to August," bellowed Sandy Bohrer outside the courtroom.

I'm kidding, of course. Here's what he really said:

When Marlins attorney Sandy Bohrer told the judge she had an obligation to rule and city of Miami attorney Henry Hunnefeld said there was no guarantee the Supreme Court would rule anytime soon with three members set to retire by year's end, Cohen said she resented the pressure.

''This is about me doing what is intellectually honest. They're going to make this opinion before these justices leave. I have an obligation to wait,'' she said.

Sandy, if you think waiting a month for a ruling is an unaccountable outrage, don't try practicing in federal court.

But let's try to understand exactly what poor Judge Cohen is thinking here:

In an Escambia County case, the Supreme Court initially overturned almost 30 years of precedent by ruling that property-tax money used to pay off bonds needs to go to a public vote. Later, they agreed to rehear a motion and have yet to issue a final order. Cohen said she fears the justices may change their minds, and that she's trying to avoid having her decision overturned.

''The law is unclear; there's a lot at stake,'' said the judge. ``I think they're going to recede from it -- but they haven't done it yet.''

Ok folks, that case does seem kinda relevant. What's the harm in waiting a month so as to be guided by directly applicable precedent? Plus, Judge Cohen and Justice Quince are about to be pen pals:

Cohen said she will send a letter asking Supreme Court Justice Peggy Quince when the court will rule.

Aww! And there's more:

For about 90 minutes before she announced her decision Tuesday, Cohen had the court watch video of the Supreme Court wrangling over their ruling. ''What I hear is in fact the court may have gotten itself into a quagmire here,'' she said.

God I love Miami.

Attractive Nuisance, Defined.

Color me skeptical, but I find it hard to believe our MIA workers will use this technology strictly as intended, and that all scans will be completely random:

As passengers step inside the machine, they extend their arms and legs for several seconds, as millimeter wave technology creates an image. About 25 feet away, in a covered booth, a security officer in radio contact, views the ghostly silhouette -- with the face blurred -- on a screen. The officer determines if a concealed weapon, such as a ceramic knife, or explosive detonation cord, exists, Hatfield said.

''The image projected is more humanoid than human,'' he said. ``What's important is providing a clear view of a threat object. And the person going through the machine will never see the operator.''

`RANDOM SELECTION'

So far, the technology has been used for five days at two MIA checkpoints, at Concourses G and J, replacing the machines that emitted puffs of air. At least two more body-imaging machines will be deployed in the next few months, one at J and one at an interim checkpoint at C/D, Hatfield said. Each machine costs $170,000. To date, no explosives have been detected, he said.

At least for now, the TSA is using ''continuous, random selection'' to choose passengers for the machines, and it is optional. Travelers who decline will be physically patted down. All passengers must still go through metal detectors.

''For our travelers, through this airport, this machine adds even an additional layer of security,'' said Miami-Dade Aviation spokesman Marc Henderson.

`STRIP SEARCH'

Full body imaging technology has been in the works for at least five years, as the government grappled with issues of privacy and civil liberties, Hatfield said.

''It is tantamount to, essentially an electronic strip search, and that is our concern,'' said Howard Simon, executive director of the American Civil Liberties Union of Florida. ``The most intrusive technology that intrudes upon personal privacy should not be the first line of our security.''

Hatfield said that the TSA has mitigated those concerns by having the security officer located in a remote booth, where he or she never sees the passenger. Furthermore, the passenger's face is blurred on the screen. And the image is permanently deleted immediately after viewing and cannot be stored, printed or transmitted, Hatfield said.

Sure. I feel much better now, there's no way this technology could be misused or perverted to less benign ends. Question: how long before these images start cropping up on MySpace or -- if you are a celebrity -- egotastic, etc.?

New Epstein Becker Florida Employment Law Blog

I know there are a few dear readers who actually follow legal trends and whatnot, so for you obsessives (and you know who you are), there's a new, well-designed employment law blog from our Epstein Becker friends Richard D. Tuschman and Hector A. Chichoni.

Good luck gentlemen. Since you have big Mike and JPK looking over your shoulder, I know you will be circumspect and utterly professional on your blog. That's ok, you can cut loose and get all goofy here.

Quoting Bob Dylan?

Hey, maybe Richard Strafer is a ranter too:

Quoting Bob Dylan and a legal treatise, attorneys for indicted Miami attorney Ben Kuehne and two co-defendants maintain the “unprecedented” money laundering indictment is ideologically motivated by the Justice Department.

Very interesting. Now let's get to the quote:

Miami attorney Richard Strafer, representing Saldarriaga, contends the government doesn’t have a case.

He makes the point in his filing with flair, quoting folk rock legend Dylan’s song “Like a Rolling Stone” in his motion to dismiss a wire fraud conspiracy count, writing, “When you [ain’t] got nothing, you got nothing to lose.”

Okay, Richard could have went a little deeper into the Bard's song book but the quote works, I think.

BTW John, good story and all but get your editors an updated style book. "Folk rock" legend? The dude went electric in 1966.

3d DCA Watch -- United Auto and the Pips

Hi kiddies, in this action-packed edition, Judge Freeman easily justifies her business court, William K. Hill suffers a rare loss, and United Auto acts inexplicably, yes it's that time to peek at that lovable wack-pack of robed coffee-drinkers, 3d DCA Watch:


Solari v. Zublin:

This opinion alone justifies Gill Freeman's excellent division. Your basic South American fraud case, also involving our local TotalBank, in which Judge Freeman denied a forum non motion based on TotalBank's failure to stipulate under Rule 1.061. A stinker of a case that surely would have gotten messed up in another division, the Judge ruled properly and the 3d affirmed.

Lennar Homes v. V Ventures:

A rare loss for Bilzin's William K. Hill. I'm speechless.

Hollywood Injury v. United Auto:

This one is my favorite. Can anyone explain United Auto's strategy here:

Hollywood Center filed suit against the respondent, United Automobile Insurance Company (“United Auto”), for recovery of personal injury protection benefits. The county court entered summary judgment in Hollywood Center’s favor, and United Auto appealed. The circuit court sitting in its appellate capacity affirmed the trial court’s order. As the prevailing party, Hollywood Center, pursuant to section 627.428, Florida Statutes (2007), filed a motion for attorney’s fees. The circuit court appellate division, however, denied Hollywood Center’s motion for fees and this petition followed.

United Auto properly concedes that attorney’s fees should have been awarded to Hollywood Center as the prevailing party. “Section 627.428 mandates that an insured be awarded attorneys’ fees when he is the prevailing party on appeal in an action against his insurer.” Arango v. United Auto. Ins. Co., 901 So. 2d 320, 321 (Fla. 3d DCA 2005). It is undisputed that Hollywood Center was the prevailing party on appeal in an action against its insurer. As such, Hollywood Center is entitled to appellate attorney’s fees pursuant to section 627.428.

Umm, a couple of questions. Did United Auto present any opposition to summary judgment below? If not, what was the basis for the appeal in the first place?

Second, if United Auto conceded fees should have been awarded, and it was "undisputed" that Hollywood Center was the prevailing party, what exactly was the point of opposing the fee request, or this appeal? Was it just so Judge Lagoa could write this opinion?

Nicely done, United Auto, nicely done.

Smoke and Mirrors?

Reports are dribbling in regarding the Marlins case currently being tried before Judge Cohen. I've heard that Bob has been a bit scattershot but is improving, and that Sandy is playing to a nonexistent jury. Oy.

This report of yesterday's proceedings gave me a chuckle:

After a brief appearance by Jim Villacorta, executive director of Miami's Community Redevelopment Agencies, University of South Florida economics professor and author Philip Porter took the stand as a witness for Braman.

Porter detailed how studies he's conducted show the limited impact that sports facilities have on the public -- disputing the county's contention that a facility adds to local residents' quality of life.

But that was quickly questioned by attorneys for the county and the Marlins. ''Your honor, smoke and mirrors. He's an economist. He doesn't live here. He hasn't lived here for years,'' said Marlins attorney Sandy Bohrer, who represents The Miami Herald in unrelated matters.

With the witness seated, Braman attorney Bob Martinez began a slide show taken by Porter of two Tampa-area professional stadiums -- one for baseball, another for football -- showing poor conditions in the surrounding area.

PURPOSE OF SLIDES

It was meant to show how building a ballpark in Little Havana would offer little for the community.

But the pictures were quickly dismissed as evidence after strenuous objections from Assistant County Attorney David Hope and Bohrer -- when it was discovered they were shot after Porter's deposition was taken.

What the hail is happening here? First, there's no rule that an economist needs to "live" in a particular area before rendering an expert opinion on the potential impact of an economic development on that area. Good lord, Sandy, if that's the best you've got on this guy you better keep trying.

Second, why the hail were these photos not part of this guy's expert report? And btw you don't have to go to Tampa to prove his point -- look at how the "quality of life" improved after they built the Miami Arena, or look at the quality of life in Miami Gardens after Joe Robbie got built. What a crock.

I remember taking the Metromover after work to see the Panthers play, throwing fake rats, all that crap. Now it feels like a distant, forgotten memory of the future, a Jetsons vision of what downtown could have been.

"Yeah, Lots of Space in This Mall."

I know many of you have abandoned downtown and now practice in Coral Gables, Coconut Grove and elsewhere, but for those of us schleppers who still commute to Miami these new express lanes are a disaster. Are they purposely trying to choke off the City? I've already hit three of those stupid plastic poles in protest:

Since last week, drivers have smacked into the row of plastic poles that now divide the new express lanes from local traffic on an 8-mile stretch of northbound I-95 in Miami-Dade County.

On Friday, the first rush hour after all the poles were installed, troopers responded to three times the normal number of wrecks on I-95.

On Monday, a tractor-trailer collided with a Toyota SUV trying to exit the express lanes in the wrong place by cutting through the poles. The express lanes were blocked for more than two hours.

"The [poles] caught people by surprise," said Lt. Pat Santangelo of the Florida Highway Patrol. "People who ended up in the left lanes didn't realize they wouldn't be able to exit. Some people were smart and stayed through all the way to the end. Some people decided to take a chance and go between the poles. Some people made it and some people didn't."

It's not just poles drivers have to contend with. Lanes are narrower, too.

The state is building express toll lanes between Miami and Fort Lauderdale by converting the existing carpool lanes and adding another lane in each direction.

With no room to widen I-95, the state is shaving off a foot from the existing lanes and shoulders and re-striping the highway. The lanes won't come to Broward until 2010.

The first phase on northbound I-95 in Miami-Dade is mostly completed, but tolls won't be collected until sometime in August.

You can enter the express lanes only where they begin just north of the Interstate 195 exit to Miami Beach. You can't get out until just south of the Golden Glades interchange ramp for Florida's Turnpike and the Palmetto Expressway.

Swerving into the lanes beyond the entrance or bailing out before the end is a moving violation that could get you three points on your license.

But the odds of getting caught aren't good.

More than 250,000 vehicles a day jam I-95 in Miami-Dade, a volatile mix of aging retirees, impatient youngsters, tourists and transplants from other states and countries who aren't familiar with local roads and laws. Two troopers cover the same stretch of road.

"It's a little hard to control," said FHP's Santangelo, adding enforcement details and plans for additional troopers are still being ironed out.

State officials say concrete barriers separating the express lanes weren't an option because they would have required widening I-95. That's why they're using plastic poles.

The state has tried herding I-95 drivers with plastic poles before without success.

In the '90s, plastic poles divided the entrance to the southbound I-95 carpool flyover at the Golden Glades interchange from the regular lanes. But after hundreds of crashes occurred, mostly because drivers mistook the flyover for an exit ramp, officials scrapped the battered poles.

The poles are flexible but can damage the undercarriage of a car if you drive over them. About 50 of the new poles have been snapped from their bases and countless others are bent, and blackened with tire marks.

I predict by November those poles will be long-gone, along with a lot of mufflers and tie rods.

Another Day in Paradise

Let's let good ole' J.B. Harris explain what it's like to practice in Miami-Dade County nowadays:

The flood of cases and reduction in judicial personnel are being felt in other ways as well, giving new meaning to the old adage, “Justice delayed is justice denied.”

First, despite its enormous budget and size, the clerk’s office in the civil division cannot handle the flood of paper generated by foreclosure filings. Hence, court papers are frequently misplaced or take months to find their way into court files.

As evidence of this problem, in one matter I found an amended pleading missing from the court file on the day of trial, even though I had filed it nearly three months before. While in another, I found someone else’s submissions in my client’s case file.

Second, the Legislature in its infinite wisdom reassigned some of the clerk’s duties, like calendaring motions for hearing, to judges’ judicial assistants, often creating a system of “who’s on first” between the clerks and the assistants.

By statute, the clerk is charged with docketing all case filings, while the JA’s are assigned the task of calendaring all hearings. In the past, the clerk handled both, with attorneys having the luxury of simply faxing to a calendaring clerk their hearing notices.

Recently, I waited more than three weeks to attend a hearing on a simple discovery motion, only to find the day before the hearing it did not make the calendar.

In this instance, I discovered that the clerk who was delivering motions and hearing notices to the JA for calendaring, was doing so in reverse order of filing, meaning the earlier ones filed on any given day ended up at the bottom of the stack, rather than on top.

Since the JA scheduled hearings from the top of the pile down, the first motions filed were the last to make the calendar, rather than the other way around, leaving my motion off the agenda. A Catch-22 made worse by a calendar limited to 30 motions, the majority of which were uncontested summary judgment foreclosure motions.

Let's face it, the system was always broken -- scheduling meaningful hearings took months, getting a ruling even longer, getting to trial always a distant dream. But it does seem palpably worse in recent months, doesn't it?

And imagine being a judge in circuit court with these cuts, dealing day after day with ministerial motions, uncontested summary judgments, files lost and misplaced, overworked support staff, ham-and-eggers coming in with half-arsed pleadings and bullcrap discovery disputes. And these elections are contested?

BTW J.B., your web address gave me the first chuckle of the morning: "They're Rich. You're Dead."

Bruce Greer to the Rescue?

I told you no one wants to try a case in July. It seems Judge Cohen is urging the parties to mediate and settle the Marlins stadium case, and is postponing the trial in order to get a deal done:

Instead, she ordered the parties to try to reach a settlement out of court.

''We will resume Monday morning,'' Cohen said.

With those words, attorneys for Miami, Miami-Dade County and the Florida Marlins -- and their courtroom foe, auto dealer Norman Braman -- left the courthouse in a bid to resolve the impasse.

Hanging in the balance is the future of a plan to build a new baseball stadium in Little Havana and spur billions of dollars in other urban projects in Miami.

''If we can work something out for the community, that's my goal,'' said Braman, the 75-year-old billionaire who is fighting the plan to build the Marlins a $609 million baseball stadium and parking garage using mostly tourist tax dollars.

His contention: Government is planning to improperly use public dollars targeted for slum and blight. Officials counter that the so-called megaplan will spark a vital economic rebirth that will benefit Overtown as well as build a new stadium.

County Manager George Burgess had been expecting to take the stand Friday. Now, with a judicial nudge to settle, Burgess was asked whether he's hopeful a deal will come.

''You always want to remain optimistic,'' he said.

He said a settlement would save the community time and money, as local government and Marlins officials are racing to complete a new 37,000-seat stadium to open for the 2011 season. Braman's lawsuit is the biggest roadblock remaining to that vision.

Cohen's Thursday afternoon order may indicate an accord is in sight.

Some close to the mediation said items being discussed included the possibility of building a community center near the planned ballpark, or awarding more public access to the facility. Such moves may help satisfy Braman's quest for more public benefit from the megaplan.

Others said the standoff -- being mediated by former judge Bruce Greer -- hangs on whether the Marlins will give back some of the concessions the team received in December's Baseball Stadium Agreement engineered by Burgess.

Though the county would own the stadium, the Marlins would receive all monies from its naming rights, which to some teams is worth hundreds of millions of dollars.

This is a smart move all around. Poor Judge Cohen got stuck with this summer turkey, thanks to an attenuated conflict issue, and surely does not want to deal with this if she doesn't have to.

Bruce is a great choice for mediator -- a respected lawyer, businessman, developer etc. Is there any reason this man was not made a federal judge?

The community owes a thanks to Braman and his attorneys. It's just another example of how, in the absence of a motivated multimillionaire willing to put up huge amounts of cash (or where appropriate, the class action device), the government cuts deals that routinely go unexamined and business continues as usual in this corrupt, mismanaged town.

Dave, you'll soon be back to your weekly crappy movie reviews, and all will be right with the world.

3d DCA Watch -- War of the Roses, Tolstoy Edition

Boy for a judge subject to mandatory retirement Senior Judge Schwartz stays pretty active. That's the main lesson learned here in today's installment of our regular feature, 3d DCA Watch:

Braswell v. Ryan Investments and Goldstein v. Braswell:

These opinions both authored by Senior Judge Schwartz deal with aspects of the divorce of the mega-rich Braswells, and efforts by the ex-wife to collect on the former husband's assets, which were mostly placed in various corporate entities. In Ryan Investments, Judge Schwartz finds that there could be no piercing of the corporate veil to reach the marital house because the corporation preexisted the debt sought to be hid, or something like that:

Mrs. Braswell correctly states that, under Estudios, it does not matter that the corporation itself was formed, as here, prior to, rather than at the time of its alleged improper use. See Dania Jai-Alai Palace, Inc., 450 So. 2d at 1120-21. This contention, however, addresses nothing but straw because, contrary to her representations, the trial court made no ruling to the contrary. Neither do we. Finally, there is nothing in the statement of the rule or any authority, to support the strange proposition for which Mrs. Braswell argues, that the improper use of the corporation need only “preexist” the subsequent attempt, as here, to reach the secreted asset, no matter how many years subsequent or how unrelated to that misconduct.

Ah yes, "strange propositions," "nothing but straw," the soothing tones of getting your hat handed to you by the 3d DCA. That never gets old.

In the related Goldstein matter, Judge Schwartz drops this amusing footnote:

This is at least the twentieth appellate chapter of the Tolstoyan saga which began with Braswell v. Braswell, 763 So. 2d 331 (Fla. 3d DCA 2000) (table). Only just now, the end may be in distant sight.

What sweet, charming dicta! Given how plainly relevant and necessary that footnote is, I know who I want ruling on the twenty first appellate chapter, particularly where the relief demanded is reversal and remand for further proceedings....

Congrats BTW to Bert and Rebecca Ocariz at SHB, assisted by the very able Danny Rogers.

Gone Troppo

Hi hump-dayers, or should I say those of you still around this hot humid playground. Half of my opposing counsel and most of the judges have left for the mountains, be they Telluride, Maine, North Carolina, Montana, anywhere there are hills to climb I guess. So what are you waiting for?

I've been following the weather reports, and conditions are looking pretty favorable this morning, so you'll have to play nice for a few hours while I go hit the Key and get some windsurfing in. Don't worry I'll be back later to check in on our favorite coffee-swilling, big-chair sitting, robed judges down south.....

Trial in July

Not quite "Moonlight in Vermont," in fact does anyone really likes the sound of that phrase -- "trial in July," sorta like "prostate is enlarged" -- something you just don't want to hear. Anyways, our boy Billy Shields does a smart curtain-raiser on the Marlins trial set for bench trial before poor Judge Cohen on Thursday:

What will happen in the highly publicized trial set to start Thursday is anyone’s guess, but most of it will center on the baseball stadium.

Cohen devised an interlocking burden of proof for the bench trial.

Braman bats first.

Oh Billy, Billy oh Billy, say it ain't so -- a trial about a baseball team and you're going for the "at bat" imagery. I hope your editors made you put that one in. He continues:

His battery of lawyers, which include Coral Gables solo practitioner Gonzalo Dorta and Colson Hicks Eidson partners Roberto Martinez and Paul C. Huck Jr., must convince the judge that the private interest served by the stadium deal would serve a substantial private commercial interest.

If Braman can prove that, the onus shifts to the governments and the Marlins, who must prove to Cohen that the stadium deal was approved with the interest of a “paramount public purpose” in mind.

This doesn't make all that much sense, but assuming these burdens of proof are accurate, I'm betting Braman sustains his burden and Sandy and his bullpen does not. BTW, when is Scott Ponce finally going to get some ink? Sandy, step aside and let your star slugger take a turn at bat (there I can do it too Billy)!

Those involved or those observing, please send your reports my way -- anonymity guaranteed.

Maurice Kutner Lands a Big One

All you naysayers take note -- this one could be very big:

Capping a week of rumors about her husband's alleged infidelities, the wife of New York Yankee superstar Alex ''A-Rod'' Rodriguez is expected to file for divorce in Miami-Dade Circuit Court on Monday, The Miami Herald has learned.

Cynthia Rodriguez, 35, who wed the Miami-bred slugger in 2002, claims the marriage is over because of Rodriguez's extramarital affairs. The couple own a waterfront home in Coral Gables.

In recent days, Rodriguez, 32, had been linked to Madonna, 49, by New York papers, which said Rodriguez was spotted leaving the Material Girl's Park Avenue apartment late at night. Madonna's own union to director Guy Ritchie has also been reported to be on the rocks.

Madonna vehemently denied a romance with the All-Star in a statement released to People magazine on Sunday.

In the divorce, Cynthia Rodriguez is represented by attorneys Maurice Kutner and Anthony Sabatino, both of Miami, and Earle Lilly and John Van Ness of Houston.

''She feels that she has exhausted every opportunity to salvage the marriage, and that Alex has emotionally abandoned her and the children and has left her with no choice but to divorce him,'' Kutner said Sunday.

The former Cynthia Scurtis married the third-baseman, a Miami-Dade Westminster Christian High School graduate, on Nov. 2, 2002 in Dallas, Tx. They have two children, Natasha, 3, and Ella, who is 3-months-old.

The couple is said to have a prenuptial agreement, drawn up on Oct. 3, 2002, a month before their marriage.

Late last year, Alex Rodriguez, the son of Dominican parents, signed baseball's highest contract - a 10-year, $275 million deal with the Yankees.

Prenup, eh? I wonder who prepared that document? If they did like Big Ira -- with the videos, witnesses, all the bells and whistles, A-Rod should be in good shape. Otherwise, get ready for WWIII.

3d DCA Watch -- Man Smart (Woman Smarter)

Hi kiddies, it's a special pre-4th of July edition of those wacky folks down south, drinking coffee, wearing robes, making rulings and taking names, yes, it's 3d DCA Watch:

The Event Firm v. Augustin:

Ok, say you're a trial judge. You have an LLC consisting of three managing members, and the organizational documents for the LLC were prepared by Adorno & Yoss, in particular none other than Alan Rosenthal. The LLC gets sued, and is again represented by Adorno & Yoss.

Now, a dispute arises among the members and the LLC sues one of the three. Guess who represents the LLC in its suit against the one member on the outs -- yes, Adorno & Yoss.

The odd guy out files a motion to disqualify, saying there is a conflict of interest between representing the LLC and suing one of its members. Does the motion hold water? Yes, holds Judge Sigler, who granted the motion without an evidentiary hearing.

Wrong, says a PCA opinion by a troika that includes Senior Judge Schwartz.

First, the 3d holds that pretty much every disqualification order should be reviewed by a writ of cert. More work for everyone!

Second, Judge Sigler committed a "procedural misstep" by ruling without an evidentiary hearing:

Here, there was a clear dispute as to whether the attorneys represented Augustin. TEF claimed the attorneys represented only the business. Augustin alleged that he was led to believe otherwise. The trial court relied on the court file and the parties’ argument, which were insufficient to resolve the attorney-client relationship dispute. Thus, the trial court should have held an evidentiary hearing before disqualifying TEF’s counsel.

OK, I understand that and probably think that's the right ruling. But should the issue be simply the state of mind of the member being sued, or rather whether representing a closely-held LLC against one of its members gives rise to a per se perception of a conflict of interest? It will be interesting to see Judge Sigler does with this on remand.

I'm off to parts unknown for the long weekend -- have a safe and happy 4th everyone!

Florida Cybercrime Unit Tampa

A new CyberCrime Unit was officially opened in the Bay area Wednesday. The Jacksonville unit opened last year. The Tampa unit will perform online investigations of potential child predators. Other offices are in Orlando and Fort Lauderdale. The unit will expand to 56 people throughout the state. The program hopes to provide support for local law enforcement agencies for investigating, arresting and prosecuting Internet predators and child pornographers.

Fort Myers, Tallahassee and Pensacola are also scheduled to open in the next several months.

W.F. "Casey" Ebsary, Jr. is a Board Certified Criminal Trial Lawyer, an expert, available to help in these complex computer cases at 1-877-793-9290.

Skip Campbell Represents Clients Who Actually Attended A Rob Thomas Concert

I love Joan Fleischman's column in the Miami Herald. She always finds some interesting nugget out there, usually involving the law or some local yokle. I didn't understand it when they moved and bumped her column to make room for Ana whatever-her-name-is, although I have to admit Ana turned out better than I thought.

Today Joan discovers that Rob Thomas, the punky lead singer for Matchbox Twenty, is actually a dangerous drumstick-thrower:

Lisa Gelbard, wife of Broward neurosurgeon Dr. Steven Gelbard, is suing rock singer Rob Thomas of Matchbox Twenty fame.

Lisa, 43, says she was hurt at a December '05 concert at the Seminole Hard Rock Hotel & Casino. Thomas was on tour -- without MB 20 -- to promote his first solo album. A member of Thomas' band threw a drumstick into the audience, and it hit ''about her face,'' says Lisa's complaint, filed by attorney Walter ''Skip'' Campbell Jr. She suffered a cervical herniated disk, Campbell says.

Steve, 51, who attended the concert with Lisa, is party to the suit, filed against Thomas' company, Bidnis. He suffered ''the loss of his wife's services, support, consortium and the care and comfort of her society.'' They have been married since '02.

My first question is why the hail a couple their age is at this concert in the first place? Rob Thomas? Oy. And they got seats close enough to the stage to get hit by a drumstick?

Please, people of a certain age, do me a favor and stick to the Styx and REO Speedwagon moldy oldie shows, where there's no danger of anything dramatic or even particularly interesting happening on stage.

Everyone Loves a Good Poll!

Well, not everyone.

What do you make of the results? Personally, I don't put much stock in polls that are generated by returning mail-in ballots, given the propensity for error that can creep in.

(Former Chief Judge Alan Schwartz' results over the last several decades may be an exception.)