Happy New Year, Plebes!

 Here's hoping you all have a safe, healthy, happy and prosperous 2012 -- thanks for reading!

First District Court Reverses Child Support Modification

The First District Court of Appeal reversed the lower court today in Nabinger v. Nabinger, in so doing finding that the lower court erred in offsetting the Former Husband’s adjusted child support obligation by the amount of an adoption subsidy received by the Former Wife.  As the Final Judgment provided for the Former Wife to receive that subsidy without credit to the Former Husband, the First District found that the unrequested credit given to the Former Husband constituted a modification in his favor not requested in the pleadings.

First District Reverses Fee Award with no Factors

The First District Court ruled today in Luke v. Luke and both affirmed the reduction of alimony and reversed the fee award issued by the trial court.  The alimony reduction was not as substantial as the one sought by the appellant, but the trial court made sufficient findings, in the view of the First DCA, to justify the limited reduction.  The fee award, however, was not made with any indication of what factors were reviewed to determine whether the fees and hours were reasonable, and so it was remanded to the trial court to make those findings.

First DCA Reverses Modification and Fee Award

In Galligar v. Galligar, the First District Court of Appeal reversed a modification of alimony which reduced the former husband’s support obligation on the grounds that the modified amount still exceeded the former husband’s ability to pay, as it amounted to 81% of his net monthly income, and on the ground that the order that he pay a portion of his former wife’s attorney’s fees was improper due to her own ability to pay.  While the trial court directed that the appellant could pay the alimony and attorneys’ fees from his assets, the First District rejected “the suggestion by the trial court that a party who is meeting a current alimony obligation is required to set aside additional funds to meet future alimony obligations, in anticipation of a potential loss of income.  The First District also found that, as each party was equally able to pay fees, it was error to make any award from one party to the other.

First District Court Affirms Modification of Support for Respite Care

The First District Court ruled today in Koslowski v. Koslowski, in so doing distinguishing that ruling from the Second District’s prior ruling in Kuttas v. Ritter, 879 So.2d 3 (Fla. 2d DCA 2004).  In that older case, the Second District allowed a modification of child support to provide for respite care expenses caused by the non-custodial parent’s move out of state and the need for child care for the parties’ teenage children as a result.  In Koslowski, the father argued that because he had not ceased exercising his timesharing, he could not be liable for such additional expenses.  The First DCA found that, as the expenses in this case were medical in nature, and as the exercise of timesharing was only one of many factors considered in Kuttas, the modification was appropriate.

Nothing But Flowers!

The Intrepid One™ breaks the bad news:

The court, in a 4-3 opinion, approved a petition for emergency suspension filed by The Florida Bar Dec. 22. The suspension means that Alters cannot accept new clients, must cease representing his current clients after 30 days and must freeze his trust accounts. The Supreme Court also appointed Joel Brown, chief judge of the Eleventh Judicial Circuit, to referee Alters' disciplinary case and trial.

 But Alters says it is not his fault -- it is the fault of his ex-partners:

In responses filed with The Bar on Dec. 22 and Dec. 27, Berman states that Sullivan's allegations are "demonstrably false," however he acknowledges issues with the firm's trust account. In a 100-page response to The Bar, he lays out his explanations, which include detailed financial records, canceled checks, a CPA's report and a polygraph report.

Alters turned over management of the firm to a former partner, Kimberly Boldt, in July 2009 because he was overwhelmed handling litigation and with personal problems related to his mother becoming ill and his 12-year marriage falling apart. He also blames another former partner, Thomas Culmo, for failing to deliver a $1 million fee, throwing accounts into disarray.

Neither Boldt nor Culmo returned calls for comment. Both have sued Alters, claiming he owes them money.

In other happy holiday news, Rothstein says his ex-partners were "willing puppets":

In the seven days of testimony for which transcripts have been made public to date, Rothstein painted former law partners Stuart Rosenfeldt and Russell Adler as his willing puppets. When Rosenfeldt once asked about the firm's finances, Rothstein said he stopped his law partner's questioning by asking: "Are you happy with the amount of money you're making?"
As for Adler, he "wasn't the sharpest pencil in the box," Rothstein said, but added that Adler allegedly helped persuade several outside attorneys to meet with investors and lie to them about having referred big-dollar cases to Rothstein's firm.

Attorneys for Rosenfeldt and Adler flatly rejected Rothstein's claims, calling him a desperate imprisoned felon willing to say anything to reduce his punishment.

Having ex-partners -- the gift that keeps on giving.

Does anyone have any positive news to share?

3d DCA Watch -- Special Holiday Edition!

Wow, who knew the hardest working bunker in the law biz would keep on swilling right through the holidays, very impressive when you consider the holiday party got a little out of hand (again) -- let's not discuss what happened when the Bilzin shot put lunch club made an unannounced appearance and hung the mistletoe in a strategically awkward location -- say no more, as they say.

Onward:

Goldblatt v. C.P. Motion:

Nice holiday present -- a $5 million liquidated damages award reversed:

We thus conclude that the liquidated damages clause was unenforceable because the damages were readily ascertainable, and it constituted a penalty.  Accordingly, we reverse the judgment award of $4,969,339 and remand for a proper determination of the actual damages.

American Safety v. Mijares:

Trial court reversed for applying limited exception to enforcement of mandatory forum selection clauses:

 Mijares asserts that litigation in Georgia might produce results inconsistent with the litigation remaining in Miami and that this constitutes a compelling reason to keep the litigation in Miami. While we agree that inconsistent and simultaneous interstate litigation is an applicable compelling reason, see McWane, Inc. v. Water Mgmt. Servs., Inc., 967 So. 2d 1006 (Fla. 1st DCA 2007), we do not agree it applies in this case to override Florida law’s presumption in favor of enforcing forum selection clauses. Mijares’ arguments regarding the possible impractical or inconsistent litigation it may have to pursue against other defendants who need not litigate in Georgia, do not overcome the certainty that Mijares freely agreed to the mandatory forum selection clause as to its claims against American.

Have fun in Georgia, Mijares!

Giordano v. Romeo:

Get ready kids, it's time to hold your nose and apply the law:

The business practices of Xcentric, as presented by the evidence before this Court, are appalling. Xcentric appears to pride itself on having created a forum for defamation. No checks are in place to ensure that only reliable information is publicized. Xcentric retains no general counsel to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct.  Even when, as here, a user regrets what she has posted and takes every effort to retract it, Xcentric refuses to allow it. Moreover, Xcentric insists in its brief that its policy is never to remove a post.1 It will not entertain any scenario in which, despite the clear damage that a defamatory or illegal post would continue to cause so long as it remains on the website, Xcentric would remove an offending post.

However much as this Court may disapprove of business practices like those embraced by Xcentric, the law on this issue is clear. Xcentric enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.

 Who knew the application of the law could bring such sorrow?

Second District Reverses Default Disestablishment of Paternity

In Department of Revenue, o/b/o M.J.W. v. G.A.T., Jr., the lower tribunal granted a petition to disestablish paternity filed under Florida Statute 742.18 on the grounds that the Mother failed to produce the child for scientific paternity testing.  The Second District Court reversed that finding yesterday in an opinion published here, however, on the grounds that the lower court did not make a finding that the failure to produce the child was willful in nature.  While Section 742.18(7)(b) does in fact permit the lower court to grant the disestablishment of paternity based on a failure to appear for testing, that failure must be willful, and in the case on review the Mother was not provided with an opportunity to explain that failure.

Florida Website Immunity From Injunction - Defamation

Florida website receives Immunity From Injunction based upon user generated content where Defamation was alleged.  Here is part of the opinion just issued.

Excerpts from Opinion filed December 28, 2011.

"The Florida Supreme Court has held that the CDA provides absolute immunity to interactive computer services like XXX (Name Omitted). In Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001), an internet service provider that had allowed third parties to publish allegedly illegal postings on the internet was deemed immune from suit. Relying on the Fourth Circuit decision in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the Florida Supreme Court held that “section 230 expressly bars ‘any actions’ and we are compelled to give the language of this preemptive law its plain meaning.” Doe, 783 So. 2d at 1018. Further, the Court adopted the reasoning of Zeran unambiguously, stating that it was accepting Zeran’s account of the scope and purpose of the CDA “as a basis for our reading of section 230.” Doe, 783 So. 2d at 1015. That account included the statement that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” Zeran, 129 F.3d at 330. Consequently, under Florida law, section 230 of the CDA “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Id."

Scott Rothstein: "I am Large, I Contain Multitudes" (I'm Paraphrasing)

Oy I'm sick to death of this story but the hits just keep on coming:

The convicted con man said he tried to stop his employees from selling marijuana, but that he had no problem with prostitutes gallivanting around the Las Olas Boulevard offices of Rothstein Rosenfeldt Adler — because he felt protected on that front.

“The police also were sleeping with my escorts,” Rothstein said. “Broward Sheriff’s Office, Fort Lauderdale Police Department weren’t going to bother me, okay, I could have had all the escorts I wanted.”

Then there were the organized-crime figures who would pop in to visit, Rothstein said.

“Mob guys, law enforcement, even judges from time to time, not federal judges, would show up,” he said.

 So prostitutes and mobsters are fine, but lawyers dealing weed -- that's where Scott draws the line:

While Rothstein condoned recreational, weekend marijuana use, he said he had to worry about RRA employees using marijuana in the office and parking garage: He was afraid it would draw law-enforcement attention.

He said some law partners couldn’t come to work without first smoking pot. Some employees were reportedly selling it as well.

“You don’t want to have marijuana dealing from the middle of your law office because I was running a giant Ponzi scheme out of there,” Rothstein said.

Exactly -- just what kind of joint do you think he's running?

Rothstein Trustee "Forgot" Pledge of Confidentiality.

Frankly I'm bored by the Rothstein "revelations" -- about his partners' alleged involvement, the slush funds, the hookers etc. -- but I did find Judge Cohn's order regarding the Trustee sharing confidential information gleaned from an earlier Rothstein interview to be pretty interesting:

In opposition to this cross-motion, counsel for the Trustee explains that the disclosure made to counsel for the Coquina plaintiffs was part of the settlement between the Trustee and Coquina of an adversary action. Counsel states that in the rush to expedite approval of this settlement by the bankruptcy court, he “forgot” the pledge he made to the Court not to disclose the information, and while sincerely apologizing to the Court, further defends the disclosure under the joint interest doctrine.  The Trustee contends that the legal basis for non-disclosure of the interview, the work product privilege, is subject to the joint interest doctrine exception, in that once the settlement occurred, the Trustee and Coquina’s interests were aligned against TD Bank.

Ok, that's pretty lame -- I think he should have stopped after "I forgot."

Why apologize if you did nothing wrong?

On the other hand, if you did something wrong, and you have apologized (for which you get much credit in my book), why diminish the apology by trying to defend your actions?

Fifth District Court of Appeal Issues Monumental Opinion

The Fifth District Court of Appeal issued a 76 page opinion on Friday in the case of T.M.H. v. D.M.T..  In this landscape altering decision, the Court was presented with a case of first impression where two lesbian partners were the mothers of and joined in the raising of a minor child, who was borne by one after in vitro fertilization of the eggs of the other.  The lower court, in granting summary judgment finding that the Appellant had no legal rights to the child whatsoever, actually made clear that it was hoped that the ruling would be overturned.  And, despite a 43 page dissent offered by Judge C. Alan Lawson supporting the idea that the birth mother was the sole legal mother of the child in question, the Fifth District Court, Judge Sawaya’s detailed opinion found that both parents had legal rights to the child.  Not surprisingly, the Fifth District also certified to the Supreme Court as a question of great importance the following: 

Does application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?

However you respond to this ruling, there can be no question that it will require the Courts of this State to address issues of first impression that will shape the way the law is applied for years to come.

And the Beat Goes On!

All the way to the Eleventh Circuit, with Mark Hicks now manning the controls:

Notice is hereby given that Peter Halmos, International Yachting Charters, Inc., and High Plains Capital Corporation, plaintiffs in the above named case, hereby appeal to the United States Court of Appeals for the Eleventh Circuit from the Findings of Fact and Conclusions of Law entered in this action on November 22, 201 1 (D.E. 1431) (Ex. 1).

I wonder if there are any appellate issues?

Paul Calli and Steve Bronis Score Big!

After 12 weeks of grueling trial before Judge Leon in DC, he tosses the conspiracy charges:

A federal judge presiding over a landmark foreign bribery case in Washington, D.C., dismissed conspiracy charges against six defendants Thursday, exonerating one of them entirely.
The ruling is a major setback for the Department of Justice, which has touted the case as an example of its efforts to get tough on foreign corruption. The trial, which began in September, is the second in a series of criminal trials to arise from a Federal Bureau of Investigation sting operation targeting corruption in the military equipment industry.

In an unusual procedural move, U.S. District Judge Richard Leon on Thursday threw out the conspiracy counts after 12 weeks of trial, saying there wasn't enough evidence to justify sending the charges to the jury to decide, according to court transcripts seen by Dow Jones Newswires.
Leon's ruling meant that defendant Stephen G. Giordanella, who was accused only of conspiring to violate the U.S. Foreign Corrupt Practices Act, was exonerated entirely. The remaining five defendants still face counts of substantive violations of the FCPA, a 34-year-old law that prohibits bribes to foreign officials to win business.

The Department of Justice declined to comment. 

 But our man Calli certainly did:

Giordanella's lawyer, Paul Calli, said he was grateful the court had made the "correct and just ruling."

"Mr. Giordanella was innocent and should have never been accused in the conspiracy," Calli said. "In many respects, the DOJ's fake Gabon conspiracy represents a prosecution at its most dangerous. He's grateful to be exonerated and to begin putting this behind him."

 Congratulations!

3d DCA Watch -- Merry Christmas Edition!

 
What better way to say "Merry Christmas" then to reverse an order setting aside a foreclosure:

we reverse the nonfinal order granting the foreclosure defendants’ emergency motion to set aside summary judgment pursuant to Florida Rule of Civil Procedure 1.540(b) because, as in Carnero, “the motion seeking relief under this rule was unsworn as to the claim of excusable neglect and there was no sworn evidence of excusable negligence otherwise adduced at the hearing below.” Reversed and remanded with directions to reinstate the final summary judgment of foreclosure and for further proceedings in compliance therewith.

 In other holiday news, the 3d reverses a wrongful death action against the University of Miami because the cause of action was not clearly reserved in a settlement with another tortfeasor:

In its initial order granting summary judgment, the trial court properly concluded that the clear and unambiguous terms of the Release and Settlement Agreement failed to reserve a cause of action and barred Francois from pursuing a claim against the University of Miami. However, the trial court erred in granting rehearing and in considering the Addenda and the memorandum of settlement in an attempt to discern an intent which was already clearly expressed by the terms of the Release and Settlement Agreement. We therefore reverse the order granting rehearing and remand with directions to reinstate the order granting motion for summary judgment and final summary judgment in favor of University of Miami.

 Finally, the gift shop at the Intercontinental has been properly evicted despite making payment a day late due to a trial court service mishap:

Section 83.232(5), Florida Statutes (2011), provides, “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” In Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, 812 (Fla. 3d DCA 2010), this court confirmed that trial courts “have no discretion in entering an immediate default for possession under these circumstances. The trial court may not consider the reasons why the deposit was not timely made.” We further stated, “[T]he law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute.” Id. at 812 n.1.

As Newt Gingrich somebody once said, the law is a harsh mistress.

Merry Christmas!

Light It Up, South Florida!

Yes, bask in the warm glow of two measly-lit candles propped precariously near an obvious fire hazard -- that's what the holidays are all about!

Have a happy and healthy.

Now Glenn Garvin Wants to Be Dave Barry!

The Opinionator tries his hand at light, witty comedy, with disastrous results: 

The hundreds of complaints I got from lawyers after I wrote about frivolous lawsuits in pursuit of jackpot justice were so scatological that I’m now pretty certain law schools must offer elective courses in biology, because I have never heard so many richly descriptive references to such obscure corners of the digestive tract, nor such detailed instructions for how to insert my head into them.

Oh touche, Mr. Garvin, when do you pick up your next Pulitzer?

And the following passage is so mind-numbingly stupid I actually lost 42 neural receptors while simply cutting and pasting it: 

And even as the lawyers were proclaiming that in the majesty of the law, there is no such thing as a frivolous lawsuit, news broke out of a Chicago suburb of two children in their 20s suing their mother for serving them bad birthday cake and setting curfews for them in high school. The kids’ attorney is their divorced dad.

Ok, let's start with the first part --  no lawyer proclaims that "in the majesty of the law, there is no such thing as a frivolous lawsuit."

What the evidence shows -- particularly with the Hot Coffee documentary -- is that there is a large, well-funded corporate effort designed to "game" the system so false narratives are created and folks like Garvin lap it up and spit it right out.  Most judges and experienced lawyers, on the other hand, know that the current system works reasonably well and "frivolous" lawsuits rarely succeed and most often fail through proven procedural and substantive legal methods, such as motions to dismiss, summary judgment, contingency fee incentives, Rule 11, 57.105 and on and on and on.  That's what we do all day.

BTW, that doesn't mean that there is no such thing as a frivolous lawsuit, or that certain tweaks here and there might not be a bad idea -- but the criticism is often ideology-driven, overblown, ill-informed, and let's face it --  in Garvin's case he's just blowing smoke.

The second part is even more absurd -- "news broke out of a Chicago suburb of two children in their 20s suing their mother for serving them bad birthday cake and setting curfews for them in high school. The kids’ attorney is their divorced dad."

Glenn, this is not called a frivolous lawsuit -- it's called a "custody battle."

Does the Herald still have editors?

Happy Monday!

Let's see, I hope everyone is getting ready for the holidays and things are starting to slow down until the New Year.

A few items that caught my eye this morning:

1.  Spencer is lighting a giant Menorah (caution -- video is very hamish).

2.  Judge Jordan's nomination stalled at year end. 

Here's a portion of Senator Leahy's powerful 12/17/11 statement on this gridlock:

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hardworking Americans who are seeking their day in court to suffer unnecessary delays.  When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait for three years before a judge hears the case.  When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute. 

With one in ten Federal judgeships currently vacant, the Senate should have come together to address the serious judicial vacancies crisis on Federal courts around the country.  Bill Robinson, the president of the American Bar Association, warned recently in a letter to Senate leaders that excessive vacancies and high caseloads “deprive… our federal courts of the capacity to deliver timely justice in civil matters and has real consequences for the financial well-being of businesses and for individual litigants whose lives are put on hold pending resolution of their disputes.”  Justice Scalia, Justice Kennedy and Chief Justice Roberts have also warned of the serious problems created by persistent judicial vacancies.  This is an issue affecting hardworking Americans who are denied justice when their cases are delayed by overburdened courts.

If caseloads were really a concern of Republican Senators, as they contended when they filibustered the nomination last week of Caitlin Halligan to the D.C. Circuit, they would not have blocked us from voting to confirm consensus nominees to fill judicial emergency vacancies.  They would have consented to consider the nomination of Judge Adalberto Jordan of Florida which was reported unanimously on October to fill a judicial emergency vacancy on the Eleventh Circuit.  He is a well-respected Federal judge and his nomination is strongly supported by Florida’s Republican Senator, Senator Rubio.  Yet, despite the judicial emergency Republicans continue to delay consideration of that nomination.

 3.  Newt wants US Marshals to round up "activist" federal judges:

The former House speaker Sunday showed no sign of letting up on his assault on such judges. During an appearance on CBS’s “Face the Nation,” Gingrich suggested the president could send federal law enforcement authorities to arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings.

When host Bob Schieffer asked how he would force federal judges to comply with congressional subpoenas, Gingrich said he would send the U.S. Capitol Police or U.S. Marshals to arrest the judges and force them to testify.

How could this possibly go wrong?

Second District Reverses Alimony and Equitable Distribution Awards

The Second District Court of Appeal ruled yesterday in Zambuto v. Zambuto, reversing the lower court’s ruling on two grounds.  The District Court first reversed because, despite stating an intention to do so, the Court did not attribute any earning capacity to the Former Wife to offset the alimony award made to her.  In addition, that Court found error in the lower tribunal’s distribution of dissipated funds to the Former Husband without a finding of misconduct on his part, and for a time period prior to the inevitable breakdown of the marriage.

Second District Finds Appeal Untimely

The Second District Court of Appeal ruled yesterday in Gohary v. Gohary, dismissing the Former Husband’s appeal on the basis that it was untimely.  While the Former Husband argued that his Motion for Rehearing tolled the time for a Notice of Appeal to be filed, the Second District Court found that, as only temporary timesharing was ordered in the Final Judgment, it did not constitute a final order.  As the deadline for appealing a non-final order is not tolled by the filing of a Motion for Rehearing, the Former Husband’s appeal was not timely noticed, and was dismissed as a result.

Another "Teachable Moment."

What happens when a crucial affirmative defense of your client is "not reflected in the docket"?

What happens when it is your responsibility to make sure the affirmative defense is "reflected in the docket" -- i.e., filed?

What happens when this all takes place before Judge Seitz?

You've just bought yourself a "teachable moment":

Defendant moves for reconsideration on the grounds that Plaintiff has known about Defendant's intent to assert the Motor Carrier exemption since May 25, 2011.  At that time, Defendant sent Plaintiff an email with attachments containing a Motion for Leave to Amend its Answer and Affirmative Defenses and a Proposed Am ended Answer and Affirmative Defenses. Defendant, however, never filed the Motion for Leave to Amend. In the Motion for Reconsideration, Defendant states that the Motion for Leave to Amend and the Proposed Amended Answer and Affirmative Defenses "are not reflected in this Court's docket.'' There is only one reason for that - Defendant did not file them. In the Motion for Reconsideration, Defendant states that it has "discovered that its Motion for Leave to Amend and its proposed Amended Answer and Affirmative Defenses are not reflected in this Court's docket, and that there was never a ruling on the issue.'' See DE-75 (emphasis added). What Defendant fails to acknowledge is that it had a responsibility to monitor the docket in this matter and to be aware of the proceedings in this case. At the latest, Defendant should have discovered its failure to file the Motion to Amend when Defendant prepared its motion for summary judgment in August 201 1. If Defendant discovered its failure then, it did nothing to correct it. Defendant's recent discovery of its failure to file a motion, that was to be filed in May, is inexcusable and Defendant has not offered any reason why it failed to discover this sooner.

 She wound up letting them amend their answer and assert the affirmative defense anyway.

Mars Needs More Judges!

Did I say Mars?

I meant South Florida.

Here's some of the bad news affecting civil:

Workload associated with the residential mortgage foreclosure crisis continues to impede disposition times and rates in our circuit civil division. The Court is grateful to the Legislature for funding the Foreclosure and Economic Recovery Initiative, which terminated on June 30, 2011. The case managers and senior judges used in the Foreclosure and Economic Recovery Initiative made a significant difference in reducing backlog throughout the state. Unfortunately, due to the severity and protracted nature of the crisis, our trial courts continue to struggle with heavy pending caseloads and the slow resurgence of foreclosure filings. The absence of additional case processing resources, such as case managers and senior judges, will continue to delay case processing times and pending caseloads in our civil divisions for the foreseeable future. Moreover, this crisis has a ripple effect on the workload of other court divisions as chief judges and administrative judges allocate limited court resources to address demand.

It's a disgrace that the courts have to go hat in hand every year and pretend to be servile and deferential to what is supposed to be a co-equal branch of government.

Indeed, there is no need for the Supremes to be overly "grateful" the Legislature decided to help with the foreclosure crisis in this State, given how large a crisis it is and how many Florida homeowners are affected.

But hey, thanks for providing minimal assistance and then terminating the program in the middle of the year, leaving everybody in a lurch.

Cell Phone and GPS Location Data in Criminal Prosecutions

Cell Phone and GPS Location Data

Board Certified Criminal Trial Lawyer at Law Office of W.F. ''Casey'' Ebsary, Jr. notes recent developments in Cell Phone Location Data used in Criminal Prosecutions. When the government wants to track an individual’s location through his or her cell phone, it submits an application to a judge seeking an order compelling a company to provide access to location data. Cell phones generate several types of data that can be used to track their users’ past or present locations with various degrees of precision. 

Not all Courts agree on tracking. "Courts are divided as to whether the government must show probable cause before it can obtain cell phone location data, as well as on related questions regarding warrantless GPS surveillance." "[W]ith respect to wiretapping Congress has balanced privacy interests with law enforcement needs by permitting the government to use that technique for only the more serious offenses, see 18 U.S.C. § 2516"

The court found the Feds must disclose certain Cell Phone Tracking Data under the Freedom of Information Act (FOIA). "We affirm that portion of the district court’s decision directing disclosure of docket information from criminal cases in which the government prosecuted individuals after judges granted applications for cell phone location data withoutdetermining probable cause, and in which those individuals were ultimately convicted or entered public guilty pleas."

We have posted a complete document on Cell Phone Location Data here as a free download.

One Court has reasoned, "In deciding whether the release of particular information constitutes an “unwarranted” invasion of privacy under Exemption 7(C), we “must balance the public interest in disclosure against the [privacy] interest Congress intended the Exemption to protect.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989); see Favish, 541 U.S. at 171; Ray, 502 U.S. at 175 (quoting Rose, 425 U.S. at 372)."

Even law enforcement agrees, "that disclosure of records revealing that an individual was involved or mentioned in a law enforcement investigation implicates a significant privacy interest." The Government has expressed concerns that defense attorney(s) may investigate usage of Cell Phone tracking Data by contacting "convicted 'defendants and/or their counsel to determine whether [the] defendants ever learned that they were the targets of warrantless cell phone tracking.'"

Other concerns include whether : "the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986), should be revised either to limit or to facilitate the practice." "The Supreme Court has recently granted certiorari to address the GPS issue. See United States v. Jones, 2011 WL 1456728 (June 27, 2011), granting cert. to Maynard, 615 F.3d 544."

Criminal Defense Attorneys argue that Cell Phone Tracking data records kept by the United States Department of Justice (DOJ) "would also provide information regarding how often prosecutions against people who have been tracked are successful, thus shedding some light on the efficacy of the technique and whether pursuing it is worthwhile in light of the privacy implications. Information from suppression hearings in these cases could provide further insight regarding the efficacy of the technique by revealing whether courts suppress its fruits, and would disclose the standard or standards the government uses to justify warrantless tracking. Information from suppression hearings would also provide facts regarding the duration of tracking and the quality of tracking data, facts that would inform the public discussion concerning the intrusiveness of this investigative tool."

A Federal Court of Appeals has just ruled: "In sum, because disclosure of the information considered in this Part would “shed[] light on [the government’s] performance of its statutory duties,” it “falls squarely within [FOIA’s] statutory purpose.” Reporters Comm., 489 U.S. at 773. And in light of the strength of the public interest in disclosure and the relative weakness of the privacy interests at stake, we conclude that production of the requested information will not constitute an “unwarranted” invasion of personal privacy under Exemption 7(C)."

The court found the Feds must disclose certain Cell Phone Tracking Data under the Freedom of Information Act (FOIA). "We affirm that portion of the district court’s decision directing disclosure of docket information from criminal cases in which the government prosecuted individuals after judges granted applications for cell phone location data withoutdetermining probable cause, and in which those individuals were ultimately convicted or entered public guilty pleas."

Source: ACLU v USDOJ Docket No. 10-5159 (DC Cir Sept 6, 2011).

Cell Phone Data Tracking in Your Case? Call Casey at 813-222-2220.

Cell Phone and GPS Location Data in Criminal Prosecutions

Parsing Judge Ramirez's New Blawg!

A happy development in South Florida Blawgerland:

One of our favorite bunker-dwellers, Judge Ramirez, has started a new blawg!

Judge Ramirez is a fantastic judge and a genuinely good guy, so we're very pleased he has decided to share his thoughts on the law in a more informal setting.

The blog is called "Florida Law Update" -- ok, not the catchiest title in the world, but let's give the Judge a chance.

Taking a look, the Judge has put up two posts about cases we have also covered.

Interestingly, the Judge has managed to discuss these cases without any obscure pop-cultural references, no obsessions with local attorneys, not a single mention of the Holocaust, no discussions of why Robert Palmer and Paul Rogers both fronted 80s supergroups at the exact same time, and no photos of lost starlets we are certain we can cure with our abiding love.

It's a unique approach but we wish the Judge great success!

Fourth District Reverses Paternity Determination Made at Case Management Conference

The Fourth District Court of Appeal ruled yesterday in Rodriguez v. Santana, in so doing reversing the lower tribunal’s ruling which made a final determination on a petition to determine paternity at a hearing noticed only for a case management conference.  In ruling that the Motion for Relief from Judgment directed to that determination should have been granted, the Fourth District Court cited Illanes v. Gutierrez, 972 So.2d 222 (Fla. 3d DCA 2007), which held that “Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.”

Third District Reverses Award of Private School Tuition

The Third District Court of Appeal ruled yesterday in Khutorsky v. Ilina, reversing as to one of the two issues raised on appeal.  In short, the District Court reversed an award which obligated the Former Husband to pay future private school tuition and related expenses in a case where the Former Wife had not sought that relief, or any affirmative relief whatsoever.  The Court cited McDonald v. McDonald, 732 So.2d 505, 506 (Fla. 4th DCA 1999) and Gelman v. Gelman, 24 So.3d 1281 (Fla. 4th DCA 2010) as support for this idea.

3d DCA Watch -- Hold Your Nose Edition (Again).

 Hi kids!

The bunker has arisen from its sleepy slumber, emitting the usual morning noises and -- since it's Wednesday -- also various orders!

Let's look in:

Rostrum v. FL Unemployment Appeals Comm:

Judge Salter holds his nose and "reluctantly" concurs in a case where claimants routinely get screwed on the time to appeal:

Although the majority is correct that section 443.151(4), Florida Statutes (2009), has no judicially-recognized, traditional “good cause” exception for a latefiled appeal,2 these cases should be addressed on the merits because of their importance. Unemployment compensation benefits are a safety net that should not be snatched away on a technicality that prejudices no one. The existing twenty-day statutory period for an administrative appeal includes the days the Agency’s adverse determination is in the mail. No allowance is made for intervening weekends and holidays after the mailing but before the twentieth day. Thus, in practice, the claimant may have two weeks from receipt of the Agency’s adverse ruling within which to seek assistance and prepare and file an appeal. There is no statutory or administrative procedure for seeking an extension of time for the claimant to further investigate the stated basis for the Agency’s adverse determination, to seek pro bono or other counsel, to actually write and file the appeal itself, or to “get through” to the Agency’s advertised help line.

 The Judge even asks for legislative relief (good luck):

While reluctantly concurring in the decision in this case, it is my hope that our Legislature will remedy this recurring elevation of a procedural deadline above an unemployed claimant’s right3 to present his or her evidence and to obtain a decision on the merits. The financial and emotional challenges of unemployment ought to be enough without compounding the effect by putting the claimants through a futile administrative and judicial labyrinth. I therefore urge the Agency to provide claimants with the documents and information provided to the Agency by the employer in support of a determination that the employee is not qualified for benefits, and I respectfully urge the Legislature to amend section 443.151(4), Florida Statutes (2011), to allow a longer period of time within which a party may appeal an adverse determination.

I'm sure they'll get right on that!

Spencer Aronfeld Hanging With Dr. Phil!

 
Check out Spencer's purposeful, sober head nod at the end!

Scott Rothstein Reverses Himself on Crucial Facial Hair Issue!

The biggest news coming out of the Scott Rothstein speed depos was of course broken by Julie Kay -- Scott has completely reversed himself on the merits of facial hair:

Rothstein, who was kept out of the public eye by U.S. Marshals deputies, was described as looking fit, sporting a goatee and talking animatedly.

Yet back in this space in September 2009, when Rothstein was just a wee scheming schmuck with a 70 lawyer firm, he said this:

He will only let his underlings grow facial hair, for example, if they have the right attitude. ``I had one young attorney who wanted to grow a goatee,'' Rothstein says. ``I allowed him to try. But it didn't work. It was patchy and scruffy. Another guy grew one that looked good. But he seemed embarrassed by it. You have to be a beard or goatee kind of guy, or the jury or the client will just think you didn't shave or you're trying to prove something.''

So is Scott now saying he has the requisite 'tude to rock a goat?

Or is he "just trying to prove something"?

First District Court Affirms Temporary Custody Change

The First District Court released its Order on Rehearing today in Delivorias v. Delivorias, in which it continued to affirm the ruling by the lower tribunal which granted the Former Husband’s Motion for Contempt and also provided temporary relief on his counter-petition for modification of primary residential custody.  The First District ruled that the temporary order which moved the minor child from Louisiana to Florida was appropriate despite the lack of specific findings of fact in that the Former Husband had set out the correct test for changing custody, alleged supporting facts, and the trial court accepted those allegations.  In other words, the failure to include the “magic words” regarding the child’s best interests does not require reversal.

Welcome to My New "Pop-Up" Restaurant!

It suddenly occurred to me -- much like my fledgling entry into the food truck craze -- that I should immediately open up a "pop-up" restaurant.

Here are the broad contours of my concept:

1.  Hip hop music will be banned.

2.  I plan to only serve food from Wisconsin.

(So I guess it's a pop-up lutefisk 'n cheese shop?)

3.  It will be located right next to my food truck.

Wish me luck kids, but then again -- how could it go wrong?

In other news, the talented Mr. and Mrs. Markus whooped it up on eighty-seven (or eight, but who's counting?) fed lawyers and scored a big win on behalf of his client before Magistrate Judge Torres.

Other than continually referring to himself in the plural ("our findings," "we" etc. -- it's ok, I do it too) it's a thorough and well-reasoned R&R.

Finally, we offer congrats (see?) to the Most Effective Lawyers in town -- if you did not win, that means you have a chance to be more effective next year -- that's what New Year's resolutions are all about.

Second District Reverses for Denial of Due Process

The Second District Court of Appeal reversed today in Miranda v. Munoz-Ortiz, a case in which the lower tribunal granted sole time-sharing and sole parental responsibility to the Mother.  The Father, in prison, was granted the right to appear at the final hearing via telephone, but alleged that he was denied that right by the Court’s proceeding with the hearing earlier than scheduled, and the prison officials returning him to his dorm instead of allowing him to participate.  The lower tribunal ruled on rehearing that the “limitations and/or restrictions imposed on the Father as a result of his incarceration” were not matters within that court’s jurisdiction.  The Second District reversed on the basis that, at the very least, an evidentiary hearing was required to determine whether the Father had made all efforts within his control to attend the final hearing, as he is still entitled to due process in that action.

Scott Rothstein to Face 30 Lawyers in Depo Equivalent of Speed Dating!

So Scott Rothstein will be brought back to Miami, to be deposed by as many as 30 lawyers who are slotted anywhere from several hours to several days for continuous "speed depos" right up until Christmas Eve?

Only in Scott Rothstein's world does something like this seem even plausible.

Totally unrelated, but anyone remember that old Twilight Zone episode, "Deaths-Head Revisited"?

Just asking.

Florida Supreme Court to Litigants: I've Got the Power!

Just because pesky litigants conclusively settle a matter pending before the Florida Supreme Court and prior to briefing being completed on the issue, don't think the Court can't hear and rule on the case anyway:

In the present case, it is true that the parties have filed a notice of stipulated dismissal pursuant to rule 9.350 notifying this Court that this matter has been settled. Although the issues underlying this litigation may be moot as to the parties involved, our precedent clearly establishes that mootness does not defeat appellate jurisdiction, and a reviewing court has the discretion to retain jurisdiction over a case to decide the merits notwithstanding a notice of dismissal filed by the parties denoting a settlement of their dispute.

Not so fast says Justice Canady, occupying his usual role as dissenting gadfly:

Although the issues underlying this litigation may be issues of great importance, it is no more proper for the Court to compel the parties to litigate those issues after they have jointly filed a notice of dismissal than it would be for the Court to compel a party to file a petition for discretionary review. The parties to this proceeding have rights. They should not be dragooned into litigating a matter that is no longer in controversy between them simply because this Court determines that an issue needs to be decided.

"Dragooned"?

Very nice -- the Judge could have also went with "conscripted" or my personal favorite, "impressment."

3d DCA Watch -- Note to Parties: Try Reading the Law.

I have very vivid memories of visiting the USS Arizona memorial as a kid.

Although I mostly viewed Hawaii through a Brady Bunch lens, I was also a WWII buff even at an early age and could not wait to board the shuttle that took us across the blue water and above the encased remains of the sailors lost that terrible day.

The drips of oil percolating to the surface, combined with the solemn location and quiet power of the memorial service, was overwhelming and unforgettable.

For those interested in the legal wranglings associated with this tragedy, I highly recommend John Toland's masterful Infamy, inexplicably now out of print but still widely available through Amazon.

In other news, the 3d DCA had to advise counsel how to file and defend against a lawsuit.

Turns out you should look at pre-existing law for guidance:

We urge the parties to review the Fourth District’s decision in Florida Insurance Guaranty Ass’n v. Olympus Ass’n, 34 So. 3d 791 (Fla. 4th DCA 2010), which illustrates the proper procedure when an insurance company fails to pay an appraisal award, and explains that coverage issues are to be determined by the trial court.

So you don't just file first and research later?

Magistrate Judge Torres Bonks Governor Scott on Intrusive Subpoena on ACLU.

Usually when you serve a subpoena to depose opposing counsel that means there is at least a fair chance you are a d$@k of a lawyer.

That's especially true when there's not even an arguable basis for how such a deposition fits within the broad discovery parameters of Rule 26.

But hey, that's our Governor:

We agree with the ACLU that the ACLU’s “knowledge and position” on employer drug testing, the prevalence of drug use, public opinion polls, and the effects of workplace drug use, have almost nothing to do with the claims or defenses in this case. Whatever the ACLU knows or believes about the frequency or propriety of employer drug testing or drug use simply has no relevance to the constitutional claim at issue – whether drug testing of these state employees in executive agencies is permissible under the Fourth Amendment. Neither does the ACLU’s knowledge or belief have any bearing on the Defendant’s affirmative defenses.

Oh yeah, one other thing -- the ACLU is counsel of record in the suit challenging the Governor's insipid drug-testing policy:

Finally, the most troubling aspect of these subpoenas is their impact on the ACLU’s role as counsel in the case on behalf of the Plaintiff. Obviously, such requests are generally disfavored. “Discovery was hardly intended to enable a learned profession to perfonn its functions . . . on wits borrowed from the adversary.” Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring). Both the attorney-client privilege and the work-product doctrine are implicated when an attorney deposes his or her adversary. If clients fear that their counsel may be deposed and forced to answer questions about the case, a chilling effect on clients’ candor with counsel may result. Similarly, knowing that they eventually may be deposed about their knowledge of documents and other facts connected with a case may lead attorneys to shield themselves from relevant facts, thereby resulting in less effective representation. 

Good thing we have the Governor to protect our constitutional liberties from the big bad ACLU.....

CABA Elections Tonight!

Of course the big happening is tonight's CABA elections -- be there or be square.

Good luck contestants!

Hmm, my guess is it would be pretty tough to be a transsexual employed at the Georgia General Assembly’s Office of Legislative Counsel, especially around Halloween.

Hey, according to Judge Barkett -- I was right!

Starting in 2005, Glenn began to take steps to transition from male to female under the supervision of health care providers. This process included living as a woman outside of the workplace, which is a prerequisite to sex reassignment surgery. In October 2005, then known as Glenn Morrison and presenting as a man, Glenn was hired as an editor by the Georgia General Assembly’s OLC. Sewell Brumby is the head of the OLC and is responsible for OLC personnel decisions, including the decision to fire Glenn.

In 2006, Glenn informed her direct supervisor, Beth Yinger, that she was a transsexual and was in the process of becoming a woman. On Halloween in 2006, when OLC employees were permitted to come to work wearing costumes, Glenn came to work presenting as a woman. When Brumby saw her, he told her that her appearance was not appropriate and asked her to leave the office. Brumby deemed her appearance inappropriate “[b]ecause he was a man dressed as a woman and made up as a woman.” Brumby stated that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and that a male in women’s clothing is “unnatural.” Following this incident, Brumby met with Yinger to discuss Glenn’s appearance on Halloween of 2006 and was informed by Yinger that Glenn intended to undergo a gender transition.

In the fall of 2007, Glenn informed Yinger that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name. Yinger notified Brumby, who subsequently terminated Glenn because “Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable.”

And here's the money shot ratio decidendi:

The question here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. For the reasons discussed below, we hold that it does.

I'm actually encouraged by this.

Would You Want to Work Here?

At a kiosk in the middle of a Boynton Beach mall?

Just south of the food court and past the $15 "designer style" jewelry stand is an unusual mall kiosk staffed not with vendors hawking holiday ware but attorneys offering legal advice.

The Law Booth at the Boynton Beach Mall was opened Nov. 1 by three Palm Beach County attorneys who said they saw a need for legal counseling outside normal business hours and the traditional office setting.

Founded by Melva Rozier, Richard Carey and Paul Burkhart, the stand, which sits outside American Eagle Outfitters, is typically open from about 10 a.m. to 8 p.m. with "Walmart"-priced advice on legal matters including foreclosure, bankruptcy, estate planning and family law.

They were even open at 4 a.m. on Nov. 25 for Black Friday shoppers.

Ok, at first blush I thought this was preposterous but now I think it's kinda genius.

It's true you're not at a large law firm on Brickell, getting paid a lot of money to service a client who would have no idea whether or not you got fired the next day.

You're where your clients are -- at the mall, shopping of course -- but you're providing immediate help to real people with real legal problems.

And you're working.

Could be worse, right?

Fifth District Reverses Retroactive Modification

The Fifth District Court of Appeal reversed today in Buhler v. Buhler, a case where the Former Wife sought retroactive modification of support beginning with the date that the Former Husband ceased taking additional visitation he was awarded under a previous decree.  The lower tribunal granted the modification, but retroactive only to the date of filing of the petition seeking the modification.  The Fifth District reversed on the basis that it was mandatory that the retroactive modification begin on the date when visitation was found to have ceased.

First DCA Reverses for Not Following Mandate

The First District Court of Appeal, having previously reversed in Sullivan v. Hoff-Sullivan on the basis that the interpretation of the parties’ divorce agreement could not be re-litigated after a Georgia Court of competent jurisdiction had already entered orders interpreting it, reversed again today in an opinion released here.  On remand, the trial court again interpreted the parties’ agreement, established a new child support amount and retroactive arrearage, and as such the First District found that the mandate barring reinterpretation of the parties’ agreement had not been followed.

SFL Friday Follies!

Hey, wasn't that a wonderful investiture for new County Court Judge Spencer Multack?

With the kids, and the best friend, and Judge Holmes -- all good stuff.

Congratulations!

In non-good stuff news, self-described "good deeds" creator (hey, he actually said that!) Stuart Rosenfeldt will have to put his public works projects on hold:

Stuart Rosenfeldt, Ponzi schemer Scott Rothstein's former partner and the second "R" in RRA, has been informed by the federal government that he will be indicted on criminal charges, says his attorney.

Rosenfeldt played a public role in representing the crumbling law firm in the aftermath of the implosion of Rothstein's billion-dollar Ponzi scheme. He is one of many former Rothstein law partners and business associates expected to be arrested by the feds prior to December 12, when Rothstein is scheduled to begin a grueling string of civil depositions that are expected to take 10 days to finish.

Several sources say that Russell Adler, the third named partner in the defunct Rothstein Rosenfeldt Adler firm, is among those expected to be charged. Adler's attorney, Fred Haddad, didn't dispel that idea, saying he expects more indictments soon and that the the filing of criminal charges Thursday against two Rothstein associates -- Marybeth Feiss and William Boockvor -- indicated "which way the wind was blowing."

Rosenfeldt's attorney, Bruce Lehr, said federal officials informed him a few months ago that his client was going to be charged criminally. Lehr said he has been given no time frame and has no information on what exactly Rosenfeldt will be charged with.

I don't know -- three guesses, anyone?

Finally, congrats to Big Mike Casey, who along with Richard Tuschman had a judgment vacated by Judge Lenard.

Not bad, kids.

And how was your week?

Our Long National Rosh Hashanah Nightmare is Over!

Way back in September we did a wee little post about Gene Stearns getting sanctioned by Judge Freeman for refusing to move a deposition scheduled for Rosh Hashanah, which got picked up by AboveTheLaw.

We followed that post with Gene's motion for reconsideration, which provided some context for what the parties were arguing about, and in the comments I even offered a solution.

Well Judge Greeman has granted the motion for reconsideration, which you can read here.

Well done!

(The Judge still would have required the deposition to be moved to another day.)

Of course I found this part interesting:

Shortly after this Court's order awarding sanctions was ordered, a story appeared in two blogs widely read by practicing attorneys both locally and nationally (ed. note -- thanks Judge!), interpreting the behavior of Plaintiff's counsel -- and this Court's apparent condemnation of it -- in a manner that grossly distorts the truth and reflects both badly and unfairly on the legal system in general and Plaintiff's counsel in particular.   Plaintiff's counsel says about the blog postings that it is difficult to say which was worse, being falsely described as anti-Semitic or being falsely supported for being anti-Semitic.  The Court is sympathetic to that view.

Hold on, Judge -- if you look at our two postings we tried to play it pretty fair and even posted Gene's motion for reconsideration in full.  And we don't let commenters go crazy like they do on ATL (or the Herald, for that matter).

Still, it's nice to be loved.

Criminal Defense Site Redesign and New Video

Tampa Criminal Defense Attorney Lawyer

Tampa Criminal Defense Attorney Lawyer W.F. "Casey" Ebsary, Jr. wishes to thank web designers Jodi Ann Baudean and Randy Kirk for their huge efforts in the redesign of our home page.

We also have just produced a New Criminal Defense Video and it is located  on the new Home Page and on Youtube here: 

Randy Kirk is  is an Expert on Google Places. Randy Kirk is available at 310-910-1848  and on his site here:

Thanks Gang!

This is a Real Ad.

In the Florida Bar Journal, no less!

If I were the dead guy pictured I wouldn't just start rolling in my grave, I would get up and throttle somebody.

And they're krepsing us over completely innocuous law firm websites....

Law Updates for November 24, 2011

L.M., 36 FLW 2467, 3rd DCA, CCW - Error to find juvenile guilty of CCW where weapon was BB gun which was not loaded with pellets and lacked a CO2 air cartridge and no testimony describing its operation of the nature and characteristics of injuries, if any, it was capable of inflicting, K.C.,49 So. 3d 841, 843(4th DCA 2010)

Ylomon, 36 FLW 2488, 4th DCA, Constructive possession - Court erred in denying JOA where State only proved that the defendant was sitting on a couch with a codefendant in close proximity to controlled substances and paraphernalia and no evidence was presented from which the State could infer that the defendant had the ability to exercise control over the drugs.

Jackson, 36 FLW 2499, 4th DCA, Conspiracy to traffic in oxycodone - No evidence to convict for conspiracy where there was no evidence of defendant's participation in any prior activity regarding drug transactions sufficient to establish an agreement to traffic in oxycodone.  Even if present at pre-arranged drug transaction and may have been a lookout is, insufficient to prove any implied agreement, maybe proof of trafficking but no proof of underlying understanding or agreement.

Gore, 36 FLW 2500, 4th DCA, Pharmacy and medical records - Trial Court properly denied motion to suppress pharmacy records which police obtained without a warrant or subpoena.  There is some expectation of privacy in pharmacy records.  Police may secure pharmacy records of Ch 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions.  Trial court erred in denying motion to suppress medical records and physician statement which police obtained without a subpoena or defendant's authorization.

The Law Offices of Roger P. Foley, P.A.

Criminal Defense Attorney | New 1101 Channelside Drive Office | Tampa FL 33602

1101 Channelside Dr
Tampa FL 33602

Tampa Criminal Defense Attorney has a New Office on the Fourth Floor at 1101 Channelside Dr Tampa FL 33602. W F Casey Ebsary, Jr. is a Board Certified Criminal Trial Lawyer. Serious charges deserve a serious defense. Discuss how he can help you or your family. 

Call Casey at 813-222-2220.

Office: Tampa, Florida 1101 Channelside Drive, Tampa, FL 33602. Licensed in Florida, Federal Middle District of Florida, and the 11th Federal Circuit. Call Casey Toll Free 813-222-2220.

Tampa criminal defense attorney

Third DCA Bars Spousal Recovery Based on Homestead Protection

In an unusual case, the Third District Court of Appeal ruled today in Kerzner v. Kerzner & Kerzner, and affirmed the lower tribunal’s ruling that a former spouse who had intervened in the divorce of her former spouse and his current wife could not recover on judgments for unpaid child support from the proceeds of a voluntarily sold home, on the basis that the Former Husband was entitled to homestead protection.

Second District Reverses Denial of Petition for Disestablishment of Paternity

The Second District Court of Appeal ruled today in P.G. v. E.W., in so doing reversing the lower tribunal’s denial of the Former Husband’s Petition to Disestablish Paternity.  In reversing, the Second District found first that a primary residential parent or a parent ordered to share in uncovered medical expenses qualifies as a “male ordered to pay child support” within the meaning of Florida Statute 742.18.  Next, the Court found that even a parent who perhaps should have suspected paternity was in question could raise DNA testing results as newly discovered evidence in support of a petition to disestablish.  And, in addition, the Court found that such a parent was not disqualified for any behavior suggested to violate F.S. 742.18(3) prior to receipt of the DNA results.  The Second District acknowledged the clear conflict as to this ruling between this case and Hooks v. Quaintance, 36 Fla. L. Weekly D2214 (Fla. 1st DCA October 6, 2011).  Finally, the Court rejected the idea that the primary residential parent continuing to exert parental authority was barred from seeking to disestablish that paternity.  The Second District expressly finds in closing that the 2006 statutory provisions permit a parent to seek this relief where it would have been barred in the past.

3d DCA Watch -- Eye in the Sky Edition.

Yes Virginia, Aventura can legally film you running red lights:

The Ordinance mandates that the Traffic Control Infraction Review Officer review and verify the recorded images prior to the issuance of a notice of violation which parallels the requirement that a traffic infraction enforcement officer under the Uniform Traffic Control Law observe the traffic violation and, does not conflict with the requirements of subsection 316.640(5)(a), Florida Statutes. Accordingly, we find the trial court erred in its determination that section 48-26 allowed the cameras to serve as the sole basis for issuing a notice of violation in direct conflict with section 316.007, Florida Statutes.

Ah yes, doesn't every hamlet have an Orwellian neighborly "Traffic Control Infraction Review Officer" -- just like Barney Fife!

But the dissent, well, dissents.

Sayeth The Rothenberg:

The City and the majority’s reliance on section 316.008(1)(w) as the statute’s express grant of authority is, however, misplaced. The City’s unmanned cameras placed at various intersections do not regulate nor restrict traffic, and Masone does not allege that the use of cameras to monitor traffic is preempted by or in conflict with Florida law. What Masone correctly argues is that section 316.008(1)(w) does not expressly grant municipalities the authority to: (1) enforce by ordinance, violations of traffic infractions, including red light violations, already being enforced under Florida’s uniform traffic laws; (2) punish alleged violators on an adjudication on the merits in a “court” unauthorized by the Florida Constitution or state statute; (3) create a different standard of proof and liability for red light violations than that which has been approved by the Legislature; and (4) establish penalties not authorized by chapters 316 or 318.

 She also helpfully identifies all the conflicts with state law -- the first two seem most pertinent:

(1) Whereas section 316.075 punishes drivers who commit traffic light infractions, the City’s ordinance punishes the owner of the vehicle which is observed committing a red light traffic infraction unless the owner submits an affidavit stating that at the time the infraction was being committed, his/her vehicle was being driven without his/her consent.
The affidavit must include the identity of the person who had care, custody or control of the vehicle, if known, or include a police report if the vehicle was stolen.

(2) Whereas section 316.640(5)(a) requires the traffic enforcement officer to personally observe the commission of the traffic infraction, the City’s ordinance only requires that a traffic enforcement officer review the recorded images taken by a camera installed by the City at the subject intersection.

Hmm -- "driver" vs. "owner of the vehicle"; and "personally observe" vs. "review recorded images" -- what am I missing here?

(Or are we in "meaningfully distinguishable" territory again?)

Judges Emas and Lagoa go at it over an arbitration provision.

Important PIP opinion here.

Wow, three dissenting opinions this week -- cut back on the egg nog, fellas!