Fifth District Affirms Child Support Award for Couple Living Together

The Fifth District Court released its opinion today in McKee v. Sinco, in so doing affirming the lower court’s award of support despite the fact that the child’s parents had not separated and were still living together, on the basis that the support, rather than set by the guidelines, was merely a proportionate division of daycare, health insurance, and extracurricular costs.  The appeal of this award was specifically found to be frivolous by the Fifth District Court of Appeals.

SFL Friday -- I Hope You're Happy Now.

Boy what a week -- what a year for that matter!

I can only tell you when I did Tashlich yesterday I took two suitcases of torn-up scraps of paper, forty seven loaves of bread, and 375 rose petals (I wanted to cover my bases).

Good thing the Miami River is already hopelessly polluted with many decades of preexisting sins (and very little in the way of forgiveness, purification or redemption).

But that's why we love it here!

Have a great weekend and a very sweet New Year.

11th Circuit Affirms Judge King in Cruise Line Arbitration Decision.

From what I've seen, Judge King has been one of the more exacting SD FL judges when considering the scope and validity of arbitration provisions.

In a significant decision involving horrific allegations on a Princess cruise ship, Judge Carnes has for the most part affirmed Judge King's decision that the claims fall outside the scope of the arbitration clause and thus may proceed publicly in federal court.

As usual, Judge Carnes begins with a snazzy introduction:

On its website, Princess Cruise Lines proclaims to the world, as one of its “core values,” that: “The safety and security of our passengers and employees is our most important responsibility.”  The cruise line says that it recognizes crew members as its “greatest asset,” and shows its appreciation to them by making their “life onboard the best it can be.”  It boasts of making “every effort possible to offer its crew members an enjoyable environment and a rewarding career.”

All of those statements are but empty words, and cynical ones at that, if the allegations in the complaint that is before us are to be believed.

See kids, this is why you have to add this type of flavor to a well-pled complaint.

I also like Judge Carnes' discussion of "invited error":

Princess Cruise Lines contends that we should reverse the district court’s denial of its motion to compel arbitration for two reasons. One of those reasons is its contention that the district court should not have decided the arbitrability issue but instead should have sent that issue, along with the others, to an arbitrator for decision. This contention is a non-starter because, as the cruise line concedes, it asked the district court to decide for itself whether the dispute was subject to arbitration. Only when the matter was illuminated by the light of an unfavorable decision from the district court did the cruise line suddenly see that the court ought not have answered the question after all.

The invited error doctrine stands for the common sense proposition that someone who invites a court down the primrose path to error should not be heard to complain that the court accepted its invitation and went down that path.

In other words -- chutzpah. 

BTW the Arbitration Fairness Act, introduced in 2009 and reintroduced earlier this year, remains stalled in Congress (what else is new?).

Gene Stearns Moves to Reconsider Rosh Hashanah Sanctions Motion!

Our post yesterday on Judge Freeman's sanctioning of Stearns Weaver for refusing to move a deposition scheduled for Rosh Hashanah was picked up by ATL (thanks Staci!).

Now Gene Stearns is back before Judge Freeman, asking her to reconsider baby:

The Court should reconsider and vacate the portion of its September 27,2011 Order Granting Dupont's Motion for Protective Order, to the extent that it awards attomeys' fees against Plaintiffs' counsel, without permitting Plaintiffls counsel to explain the circumstances that led to its position. In his entire career, Plaintiff's counsel has never been sanctioned. A finding of sanctions here, without even hearing Plaintiff s explanation of the circumstances, is not consistent with Florida law.

Read it and decide for yourself. 

If the judge grants this someone please let me know.

Second District Reverses Imputation for Insufficient Findings

In Torres v. Torres the Second District Court reversed the lower court’s imputation of income on Tuesday, finding that there were insufficient findings to support the imputation of income to the Husband in that case.  While the Wife testified that the Husband could work for his previous employer, the Court cited Burkley v. Burkley, 911 So.2d 262, 269 (Fla. 5th DCA 2005) for the proposition that “[M]ere allegations of employability do not constitute competent, substantial evidence for imputing income.”  Of note is the fact that, while no exception was taken to the Magistrate’s imputation, the error was found to be evident on the face of the ruling, and thus subject to appeal.

3d DCA Watch -- How Big Are Your Congeries?

Hi kids, we have a bunker-bustin' load of opinions to get through today, so swill your coffee excitedly just like the Robed Ones and let's dig in:

Flueras v. Royal Caribbean:

A "congeries of negligent acts" may render the Explorer of the Seas unseaworthy.

(I thought that was a curse word in Spanish?)

Harris v. Grunow:

Senior Judge Payne's new trial order is reversed, and jury verdict reinstated.

Judge Salter fees the heat:

The normally-cold record on appeal in this case reflects considerable heat. The parties were neighbors disputing civil liability for the consequences of repugnant environmental violations. The witnesses allegedly involved in the mangrove decimation had obvious reasons to prefer to be somewhere other than the courtroom.

The heat of the battle is also reflected in the strident findings warranting a new trial as submitted by counsel for Grunow and O.R. Golf and entered by the trial court. But applying even the strict standard we impose upon ourselves for the review of a trial court’s exercise of discretion in ordering a new trial, those findings are not supported by the record. The Harrises obtained a verdict without violating the order in limine regarding settlements, without engaging in prohibited impeachment, and without improper “empty chair” commentary regarding witnesses not called. Counsel for Grunow and O.R. Golf estimated that the jury took less than an hour to reach their verdict after a two week trial, and that is its own commentary on the weight of the evidence. The parties did not receive a perfect trial, but the record demonstrates unequivocally that they received a fair trial.

Two out of three ain't bad?

Public Health Trust v. Rolle:

Judge Shepherd pulls out his Palsgraf:

Based on Wallace, just days ago in Miami Dade County v. Rodriguez, No. 3D10-856, slip op. at 5 (Fla. 3d DCA Aug. 31, 2011), we clarified our own decisional law in this area, stating we “will no longer exercise our certiorari jurisdiction to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not liable as alleged because no duty can be demonstrated.” As Professor Prosser succinctly stated, “Duty is only a word with which we state our conclusion that there is or is not to be liability.” William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953).

 Ahh yes, Rodriguez is already an instant classic!

Rey v. Philip Morris:

SJ in favor of Big Tobacco reversed in Engle-progeny case:

In this appeal, we are asked to review the trial court’s determination that summary judgment in favor of those three companies was also appropriate under Engle on the “civil conspiracy to fraudulently conceal” claim asserted by Mrs. Rey against all defendants. We reverse the final summary judgment in favor of the three tobacco companies as to that claim and only that claim (Count IV of the Amended Complaint), based on our reconciliation of the holdings by this Court and our Supreme Court in Engle.

Interesting cause of action -- is there still room for innovation in tobacco litigation?

Fourth District Affirms Dismissal of Determination of Paternity Under UCCJEA

The Fourth District Court ruled today in Schaffer v. Ling that the lower court properly dismissed that action for determination of paternity, despite the child’s conception in Florida, as Florida was not the child’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act.  This was the case, the Court ruled, because the putative father had sought timesharing and parental responsibility in addition to the determination of paternity.  The Fourth District distinguished this case from Sanchez v. Fernandez, 915 So.2d 192 (Fla. 4th DCA 2005), in which the custody of and timesharing with the child was not at issue.

L'Shana Tova, Plebes!

To my many fellow Jewish brethren, you now have two weeks to undo everything you did wrong last year -- better hurry!

All kidding aside, thank you readers, tipsters and commenters for making this occasionally fun and every now and again even mildly informative.

If I offended any of you it certainly was not intended and I do sincerely apologize.

And if you can't make it to shul tonight but you must have your Shofar fix -- of course there's an app for that!

Who's cutting out of temple early tomorrow with me to go see Bryan Ferry?

Oy with the Jews.

UPDATE -- What kind of lawyer insists on a deposition going forward on Rosh Hashanah?

Check out this motion, which Judge Freeman just granted, imposing sanctions to boot.

The book stays open only two weeks folks!

Corporations Don't Like When Their Lawyers Switch Sides?

Corporations are so "in" these days.

Mitt Romney thinks they are people, the Supreme Court thinks they can vote, and Rick Perry thinks Texas should be able to execute one.

(Unfortunately, only one of the above is a joke.)

Even worse, according to Miami attorney and non-legendary comedian Robert Klein, corporations don't like it much when their lawyers switch sides:

Klein represents lawyers who faced resistance from former clients when they switched sides. In recent years he's witnessed a dramatic increase in suits and disqualification motions by corporations against former lawyers. He says the complaints are often strategic, and many are lodged by insurance companies.

Klein recently represented a medical malpractice defense lawyer who changed allegiance after representing doctors—through their insurance companies—for more than 25 years. When the work dried up as a result of tort reform, he decided to apply his expertise to plaintiffs cases. The first one he filed was met with a motion to disqualify from the insurance company. "They basically said to him, 'You can't do this line of work,' " Klein explains.

Efforts to prevent switching sides aren't limited to the insurance industry. In the past year, Klein has represented several lawyers who have been challenged by former corporate clients. Last year Klein was hired by Jonathan Aronson to defend him in three separate cases on motions to disqualify filed by Royal Caribbean Cruises Ltd.

 In Aronson's case, the cruise line apparently forgot that once they rolled up all their cases in-house, their former counsel would still need to "make a living."

So corporations can be mean-spirited, neglectful, and insensitive jerks -- in other words, they really are just like us!

"Move and Shake" With Spencer Aronfeld!

At the upcoming 2011 Movers and Shakers dinner, where Spence is the Keynote Speaker:

A Coral Gables attorney who won one of the largest ever settlements against Walt Disney World will be the keynote speaker at Business Leader's Movers and Shakers Award Dinner on Oct. 13.

Spencer Aronfeld founded and has led Aronfeld Trial Lawyers since 1991. He garnered Business Leader's Movers and Shakers award in 2010. He has appeared on the NBC's Today Show, Court TV, Primer Impacto, Montel, Tyra, Dateline NBC, America's Most Wanted, The Insider, CNN and HLN.

Aronfeld earned international recognition after his first jury trial, when an Orlando jury awarded his Uruguayan clients a $100,000 verdict against Walt Disney World. Before trial, Disney had offered his clients $1,200. That verdict remains one of the largest in a personal injury case against the Mouse. Aronfeld's legal battle was recounted in the book, "Disney, the Mouse Betrayed."

The Business Leader's Movers and Shakers Award Dinner will be held 6-9 p.m. at The Bankers Club, One Biscayne Tower, 14th Floor, Miami. Reservations for the dinner can be made online.

And don't worry -- if the speech doesn't do it, Spence personally guarantees to move and shake each one of you with a demonstration of his patented, truly unforgettable "Sushi Lawyer" litigation technique.

(Sorry, it just doesn't get old.)

Your Monday Morning Digital Dump.

Good morning!

Let's get your strap-on you strapped on and ready to hit the ground running this week:

1.  We're just like New York, only cheaper:

Longtime international attorney, George Rocky Harper of Harper Meyer, believes the perception of Miami’s legal market has changed. “Miami is viewed as a lower-priced alternative to New York with equally as sophisticated lawyers.”

2.   Mike Kosnitzky suggests that all that glitters may not be Asian casino mega gold:

I was troubled to learn that several South Florida business leaders were taken on junkets to see other Genting properties in Asia without full disclosure of who attended, what they saw and the cost of these trips paid for by Genting. I am not suggesting that these trips are improper. However, in our rush to love the proposal and Genting we must not lose sight off the public’s need to know who is influencing the process and why.

Come on, Mike -- this is Miami we're talking about.

3.  Magistrate Judge Goodman is a better researcher than the lawyers who appear in his courtroom:

Both parties provided the Court with citations to a variety of federal circuit and district court opinions at the hearing in support of their positions. But no party provided the Court with a case from either the Eleventh Circuit or any district herein that specifically addresses this question (i.e., whether a treating physician may provide opinion testimony on causation, future treatment, and extent of a disability without the submission of an expert witness report). Nonetheless, this Court was able to find authority from within this circuit that squarely addresses the issue presented here.

Way to rub it in, Judge.

Shuster & Saben Defaults Bank of America

Banks win most of their cases by default, the legal equivalent of a forfeit in sports. For a bank to win a case by default the homeowner must bury their head in the sand and fail to respond to the lawsuit filed by the bank. When Shuster & Saben, LLC sued Bank of America subsidiary BAC Home Loan Servicing, the shoe was on the other foot, when Bank of America failed to show up for a mandatory pretrial hearing. At the hearing the Court entered a default against Bank of America. A few days later after submission of an affidavit as to damages the Court entered a default final judgment against the bank. The law suit filed on behalf of a foreclosure defense client sought damages for violation of RESPA ( Real Estate Settlement Procedures Act ) and FCCPA (Florida Consumer Collection Practices Act ). Bank of America as the losing party in the litigation will also have to pay all of the homeowner’s legal fees, in addition to the amount of the judgment for damages. Since the bank will have to pay our client’s attorney’s fees the entire judgment amount will go to the client.

To review a redacted copy of the default final judgment please click the link below:
Redacted Default Final Judgment

UPDATE: NEW POST - We Collected on the Judgment

About Shuster & Saben: Shuster & Saben believes the ultimate result of many foreclosure cases can be improved by going on offense and bringing a separate lawsuit for any bank violations of consumer protection laws. Shuster & Saben accepts referrals from other law firms whose foreclosure clients’ rights have been violated where the referring firm does not wish to handle the file alone or would prefer to refer the case to a firm with greater experience suing banks and loan servicers.

Law Updates for September 16, 2011.

Witchard, 36 FLW 1959, 4th DCA, sex offender probation - Jessica Lunsford Act's mandatory electronic monitoring  went into effect 9-1-05.  Defendant's case was before, then violated ex post facto clause when given a monitor after violating probation subsequent to 9-1-05.  Florida courts have treated wearing the monitor as an enhancement or increase in punishment.

Tracey, 36 FLW 1961, 4th DCA, Violation of F.S. 934- By tracking location of the defendant by using real time cell site information, where it sought court order for pen-register and trap-and-trace information, and where its application failed to show real and articulable facts to show cell site location information  relevant to ongoing investigation, trial court correctly denied motion to suppress where the exclusionary rule does not apply to FS 934 (only criminal and civil penalties).

Canady, 36 FLW 1972, 4th DCA, Evidence of purchase of stolen property not sufficient to convict of dealing in stolen property if there no intent to sell to another the purchased stolen property. No evidence here to lead to an inference that the defendant intended to sell the property later, as arrested right after the purchase of the stolen property.  Remand for JOA on this charge.

Gil, 36 FLW 1977, 3rd DCA, Driving with a revoked driver's license (H.O. traffic violation) and Driving with a suspended driver's license does not violate double jeopardy.

Barcomb, 36 FLW 1983, 4th DCA, State cannot impeach with a NCIC about defendant's prior conviction. No attempt to get certified convictions.  Harmful error as credibility of the defendantwas an issue here.

Moncus,  36 FLW 1986, 4th DCA, Trial court did not err in allowing State to obtain certified copies of past convictions without requiring the State to provide additional evidence of prior convictions.  Although defendant raised the issue of identity, copies were introduced solely for impeachment of defendant character and not to establish an essential element of the offense  or sentence enhancement, only have to prove by preponderance of evidence.  Although slight variations in name, DOB, or SSN identical to the defendant, the defendant declined to issue evidence of identity.  Court was able to rely on the strong inference of all the similarities.

Enix, 36 FLW 2010, 2nd DCA, Error to deny motion for JOA for attempted kidnapping -  Evidence insufficient that the defendant committed an overt act and that the defendant was only in the preparatory stage to kidnap the wife of the supermarket manager and hold her for ransom.

Mullis, 36 FLW 2013,  2nd DCA, Obtaining controlled substance by withholding information: search and seizure, pharmacy records - Pharmacy records obtained by law enforcement officers without a warrant, subpoena, or prior notice to the defendant is allowed.  Trial court erred in denying motion to suppress statements from defendant's doctors, because detectives conduct in obtaining the statement without the patients authorization, subpoena, or notice to the defendant violated his right to privacy.  Statements to the detective by the doctor that they had issued a prescription for a controlled substance, that defendant did not tell the doctors that he had received a prescription for a controlled substance from another provider within 30 days, and that they would not have prescribed a controlled substance to defendant if defendant disclosed a prior prescription, constituted reports and records relating to the treatment of the defendant. Detective did not have good faith in obtaining the statements from doctors and their employees.  These Statements should be suppressed.

Freeman, 36 FLW 2016, 1st DCA, Impeachment - Prior convictions may be admitted as impeachment evidence where non-testifying defendant introduces his own out-of-court exculpatory statements through another witness. Defendant opened door to impeachment with three prior convictions by eliciting testimony from prosecution witness indicating that defendant denied his involvement in drug sale, limiting instruction to the jury.



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

Lower Tribunal Reversed for Lack of Findings as to Pension

The Fifth District Court issued an opinion yesterday in Coleman v. Bland in which the majority of issues raised were affirmed, but reversal was required due to the Court’s failure to make findings as to the marital or non-marital nature of a pension plan which, per the record, appeared to have at least some marital portion.

Rare Footage of SFL!

I was thinking back to some of the crazy things I did in the 70s and came across this somewhat rare footage of me joining in with the band Starbuck.

(In case you didn't guess, that's me in the brown jumpsuit about 1:49 in, working the pipes.)

Ahhh, good times.

Have a great weekend!

"Did You Get a Cease and Desist Letter"? Click.

Much like a certain peg-legged captain, The Intrepid One™ has been doggedly hunting an angry white sperm whale reporting on the recent travails of prominent attorney Jeremy Alters.

In today's DBR Julie reports on what happens when you ask the wrong question:

Plaskett of Duane Morris said he sent a cease-and-desist letter to Alters ordering him to remove Taylor's photos and any mention of him from No Ceilings' website several weeks ago. The website was out of commission today with a notice saying, "Updated site coming soon!"

Alters denied ever claiming Taylor was a client.

"He's represented by CAA," Alters said today. "He's a friend of mine."

Alters hung up when asked whether he received a cease-and-desist letter from Plaskett.

Hung up?  On Julie?

Now that's just wrong.

Use your sweet tongue, your gifts of subtle persuasion, the art of misdirection, ply her with roses -- anything -- but to simply pull the rip cord on the entire conversation?

Do you really want to make Julie mad?

First District Reverses Non-Support IDO

The First District Court today reversed a lower tribunal’s non-final order entered in a dissolution of marriage action in Achurra v. Achurra, an income deduction order which required the Husband to replenish the children’s pre-paid college accounts by deductions from his income.  In short, the IDO was not for support, and as such was not statutorily justified.

I Don't Feel Like Working Today.

Do you?

Judge Seitz Spares Robert Ingham Further Sanctions.

In the very long saga of Fort Lauderdale attorney Robert Ingham's doomed representation of MCS against Essent Healthcare, Judge Seitz has elected to not award Essent the $87k in fees recommended by Magistrate Judge O'Sullivan as an additional sanction for vexatious litigation conduct.

Judge Seitz' order is instructive and worth quoting at length:

Considering all of the record evidence, the Court believes the proper exercise of both restraint and discretion requires no monetary sanctions against lngham under the Court's inherent powers or section 1927. While not awarding monetary sanctions, the record reflects that the questionable litigation tactics Ingham employed during the course of this litigation have resulted in adverse consequences to him . The Court referred Ingham to The Florida Bar for a psychological and competency evaluation because his conduct evidenced a fundamental incompetence and questionable connection with reality that can best be addressed through the pending discipline process. The Court also referred him to the Chief Judge of this Court and the peer review committee to determine whether Ingham should be removed from the Bar of the Southern District of Florida. MCS terminated lngham and filed a complaint with The Florida Bar against him. And while the words of this Order might not constitute a formal sanction, harsh words that reflect adversely on a lawyer's professionalism always should be treated as a form of punishment for attorney misconduct.

Can't argue with that.

Fourth District Details Nature of Separate Acts of Violence

The Fourth District Court today issued an opinion in Levy v. Jacobs in which the issue appealed centered around whether a five minute break in between two acts of violence constituted one act or two.  The Court made clear that separation in time and place was all that was necessary, and affirmed the injunction.

3d DCA Watch -- Mad as a Hatter Edition.

Hi kids, in order to help the Post Office from going bankrupt, the bunker is requiring you to cover their postage and actually mail things just like your grandpappy used to:

Counsel are to provide self-addressed, stamped envelopes with all motions filed with the Court. In addition, when filing a motion for extension of time to file a brief, counsel are to provide copies of the motion for all parties involved in the appeal.

If counsel does not provide copies of the motion for extension of time to file a brief and self-addressed, stamped envelopes, the Clerk will not notify counsel whether the extension of time for the filing of the brief has been granted. However, if the extension of time has been granted, the extension will be posted on the Court’s on-line docket.

A little practice tip:  go for the Mad Hatter matching stamp and envelope collection -- it really sends opposing counsel a message (that one of you is a crazy loon).

 Keep 'em guessing, I always say!

Onward:

Optimum Nutrition v. Performance Trading:

Judge Suarez gives a math lesson in how to calculate time deadlines when mailing Mad Hatter stationery.

Roberts v. Nine Island:

Judge Shepherd invites you to take a "sojourn through the interstices....."

Me and my girlfriend did that once in college, and eight hours later all I could remember was the girl's voice from Dark Side of the Moon and thinking that the ceiling tiles in my bedroom looked exactly like Gaudi's Sagrada Familia cathedral.

(But that's a story for another time....)

To the Moon, Gleason!

Well, for at least 60 days.

Judge Jordan Completes Senate Testimony!

Here is the Senate Judiciary Committee agenda (there was a live webcast too).

From a well-placed source:

He finished – no hard questions- both FL senators spoke very strongly in favor and Sen. Hatch on the Committee said “I am certainly going to support you” and that the Committee is doing a good job in moving judicial nominees and “should do even better.”

  

After Pleadings Are Struck as a Sanction, Can You Recover Costs?

This is a situation you don't want to find yourself in:

1.  Your pleadings are struck as a sanction.
2.  Court refuses to award fees and costs as part of the sanction.
3.  Nonetheless, Defendant seeks award of costs as "prevailing party."

Are they recoverable?

Judge Seitz says yes:

Plaintiff first argues that the Sanctions Order precludes an award of costs. Plaintiff relies on the Court's conclusion, in the Sanctions Order, that "assessing attorneys' fees and costs against Aguiar in addition to the dismissal of his claims and pleadings would amount to an abuse of the Court's discretion and would not be an appropriate sanction under the circumstances." See DE-301 at 28. Plaintiff argues that to impose costs would violate the Court's previous ruling and would add additional monetary sanctions to the Sanctions Order. Despite Plaintiffs Objection, the Sanctions Order does not foreclose the awarding of costs pursuant to Federal Rule of Civil Procedure 54(d)(I) and 28 U.S.c. § 1920. The Sanctions Order specifically declined to award costs as a sanction; it did not address awarding costs to the prevailing party. Plaintiff has not objected to the finding that Katten was a prevailing party. Thus, this objection is overruled and Katten is entitled to costs as a prevailing party.

On a positive note, however, the plaintiff was not assessed costs for bates-numbering, so you could look at it as a partial-victory.

SEC Loses Summary Judgment Motion Against Pro Se Defendant?

How does the SEC lose an sj motion against a pro se defendant?

It's like shooting fraudulent fish in a barrel!

Actually it's not, as Judge Marra explains:

[CENSORED]

I'm sorry I'd like to quote from the opinion but I see it makes repeated reference to the "risk-enhancing" features of an "Inverse Floater" -- which apparently is a defined term(!).

Ahh, thanks but no thanks.

(No wonder this guy had to proceed pro se.)

Lender dismisses case rather than going to trial against firm attorney Thomas Willis.

On Friday, September 16, 2011, Shuster & Saben foreclosure defense attorney Thomas Willis arrived at the Miami-Dade courthouse long before 9:00 A.M. for a foreclosure trial again GMAC, a lender that has since changed its name to Ally Bank. The trial was set before Judge Victoria Sigler. Representing the GMAC was Albertelli Law who took over the case from Florida Default Law Group, P. L. who had previously taken over the file the law firm that filed the case David Stern, P.A. ( David Stern, P.A. was one of the largest foreclosure firms in Florida before in imploded following an investigation into the firm by the Florida Attorney General ).

While Mr. Willis was ready with the firm’s client and the evidence, discovery, and legal research he would need to try the case, when the case was called for trial, Albertelli Law announced that GMAC was not in a position to try the case and dismissed the foreclosure case against the firm’s client. The subject lawsuit against our Cutler Bay, Florida client was filed in 2009. Shuster & Saben began defending the case in early 2010 after David Stern, P.A. set the client for deposition. The lawsuit sought to foreclosure on rental property owned by the firm’s client. While the case was pending the client used a portion of the rental income from the property to pay her legal expenses. The firm successfully stopped the efforts of the bank’s lawyers to win the case by summary judgment. Since the dismissal of the case was without prejudice it is possible that GMAC might refile the foreclosure action in the future. Our firm will now file a motion for attorney’s fees, to force GMAC to reimburse our client’s legal expenses. The firm congratulates our client who had the persistence to fight her case for over two year, and welcomes her to our winners circle of clients who won their cases and have received or will receive money back when the firm assists them in recovering prevailing party attorneys fees from the banks they defeated.

About Shuster & Saben, LLC: Shuster & Saben, LLC is a litigation firm that tries cases against banks and insurance companies. A homeowner who merely wants foreclosure delay, probably does not need an attorney. A homeowner who wants foreclosure defense, should seek out a firm that is winning cases at summary judgment and trial. Our firm’s goal is to prepare each case for summary judgment and trial while negotiating to see if we can obtain a deal that meets our client’s objectives. For more information about our firm and our track record handling foreclosure cases, please e-mail foreclosuredefenselaw@gmail.com or call any of our four office ( Miami, Doral, Fort Lauderdale, and Melboune ). Homeowners in foreclosure may request a free, no-obligation consultation with an attorney.

About Thomas Willis: Thomas Willis is a 1996 graduate of Stetson law school where he was a member of Stetson’s nation championship winning trial team. Mr. Willis has been defending foreclosure for Shuster & Saben, LLC since 2008. Mr. Willis is fluent in Spanish and lived in South America for several years. He has appeared on Univision news casts and talk shows as an expert and panelist on foreclosure law issues.

Not Exactly How You Should Be Practicing Law.

I hate to be all Debbie Downer today but when you read an order like this your mouth goes agape and pretty much stays that way until you obtain and down a shot of whiskey to help forget what you just read.

Can't anyone ever send over some good news?

(Don't) Teach Your Children.

I received a message this morning from the otherwise always-delightful CABA President Victoria Mendez:

It has come to our attention that The Florida Department of Education is scheduled to eliminate all Law Electives from the course code directory in the near future.  The elimination of these codes means that any student with an interest in any legal, judicial or law enforcement career will not be able to take classes or participate in programs like the Florida Mock Trial Competition and the local/state We the People Competition -- programs which our members have assisted in coaching and judging and that our local Miami Dade County schools have been recognized for their achievement at the local, state and national levels.

The elimination of these courses/programs would significantly affect the Social Studies curriculum at our local schools.  CABA encourages you to contact Trinity Colson.

This really sucks.

As anyone who has ever volunteered to coach or judge the Florida Mock Trial Competition or the fantastic We the People programs know, this is a major blow to education in our public schools.  These programs -- made possible through the hard work of selfless educators and local judges and attorneys -- provide fundamental advocacy training in core American democratic values -- minor things like the Constitution, the justice system, and the rule of law.

Not that any of that seems very important anymore.

Take a moment to email Trinity Colson and let her know how vital these programs are to producing educated, engaged citizens, and thank you to all who have helped make these programs such a tremendous success over so many years.

Florida Cyberstalking - Attorney's Legal Issues for Lawyers

To prove the crime of Cyber Stalking, § 784.048(2), Fla. Stat. the State must prove beyond a reasonable doubt: The Defendant willfully, maliciously, and repeatedly cyberstalked the alleged victim.

Under Florida Cyberstalking law, "Harass" means engage in a course of conduct directed at a specific person that causes substantial emotional distress and serves no legitimate purpose.

Under Florida Cyberstalking law, "Cyberstalk" means engage in a course of conduct to communicate, by or through the use of electronic mail or electronic communication, causing substantial emotional distress and serving no legitimate purpose.

Under Florida Cyberstalking law, "Course of conduct" means a pattern of conduct, a series of acts over a period of time, evincing a continuity of purpose. Constitutionally protected speech is not included within the meaning of "course of conduct."

Under Florida Cyberstalking law,, "Credible threat" means a threat made with intent to cause the target of the threat to reasonably fear for safety. The threat must be against the life of, or a threat to cause bodily injury.

Under Florida Cyberstalking law, "Cyberstalk" means to engage in a course of conduct to communicate, words, images, or language by or through the use of electronic mail or electronic communication, causing substantial emotional distress and serving no legitimate purpose.

Under Florida Cyberstalking law the penalties are: Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.

Under Florida Cyberstalking law the crimes are: Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person's child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree.

Under Florida Cyberstalking law the crimes can be: Any person who, after an injunction for protection against repeat violence, sexual violence, or dating violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person's property, knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of aggravated stalking, a felony of the third degree.

Under Florida Cyberstalking law the crime can be: Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a minor under 16 years of age commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Under Florida Cyberstalking law the government can: Arrest, without a warrant, any person he or she has probable cause to believe has violated the provisions of this section.

Under Florida Cyberstalking law the penalties can be enhanced for: Any person who, after having been sentenced for a violation of s. 794.011, s. 800.04, or s. 847.0135(5) and prohibited from contacting the victim of the offense under s. 921.244, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks the victim commits the offense of aggravated stalking, a felony of the third degree.

Under Florida Cyberstalking law the punishment imposed under this section shall run consecutive to any former sentence imposed for a conviction for any offense under s. 794.011, s. 800.04, or s. 847.0135(5).

Cyberstalking - Attorney Legal Issues for Lawyers

Board Certified Criminal Trial Lawyer W.F. "Casey" Ebsary Jr. has experience in litigating cyberstalking issues. Call him Toll Free at 1-877-793-9290.

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We have hundreds of pages of information on Technology, Cybercrime, Federal Fraud claims and recent developments in Federal Courts and News. Search Centrallaw.com

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Spencer Aronfeld Offers His "Recipe for Disaster"!

Our own knife-wielding Spencer Aronfeld gets front-page USA Today coverage on his botched-surgery cases:

"They've created these kind of fast food courts where people go in, pick from a menu of what they want done and the physician who meets with them is not necessarily the doctor who operates on them and he's not the one who follows up with them," says Soto's lawyer here, Spencer Aronfeld, who is representing other Strax patients. "This is a recipe for disaster."

 Great article Spence, but why so much food imagery?

I recall reading a fantastic essay once on why so many of Paul Mazursky's films have scenes that center around food -- the pot brownies from I Love You, Alice B. Toklas; the dinner scenes from Moscow on the Hudson or the bagels and lox from  Down and Out in Beverly Hills -- the list goes on.

This essay from Nathan Abrams (starts on page 87) offers a clue.

Good luck with the cases!

W.F. ''Casey'' Ebsary Jr. 813-222-2220 Attorney Lawyer 27.949840,-82.445210

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Law Updates for September 9, 2011

Gartner, 36 FLW 9145, 5th DCA, Other crimes, wrongs or acts - Error to allow the State to introduce evidence regarding defendant's alleged commission of two other robberies as relevant to the issue of identity where there were no identifiable points of similarity between the two prior robberies and the charged robbery that had some special character so unusual as to point to the defendant.  Several dissimilar facts in the three robberies also support the conclusion that it was error to admit evidence of the collateral crimes - harmful error.  State took a day to admit evidence of the collateral crimes and failed to establish there was no reasonable possibility that the error contributed to the verdict.  Cites facts in opinion.

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

Don't Blink -- Your PACER Costs Just Went Up!

If you're like me and you like to waste hours reading about broken yacht cases and whether you need to "meet and confer" before telling a federal judge that opposing counsel is a big fat liar, the costs of entertaining yourself just went up:

The judicial conference, Sentelle said, today also increased miscellaneous fees for federal courts, a move designed to create an estimated $10.5 million in additional revenue for fiscal year 2012.

The panel approved a fee increase for electronic public access to court records, from $.08 to $.10 a page. The fee for the Public Access to Court Electronic Records (PACER) system had not been increased since 2005. Sentelle said local, state and federal government agencies will be exempted from the fee increase for three years.

I remember 2005 --  that was the year Ghost Whisperer made its debut!

(I'm sure something else happened that year but that's all I can think of right now.)

Darn I really have TV on the brain today....

3d DCA Watch -- I Hate Dicta.

Dicta is like judicial gossip -- interesting sometimes but legally irrelevant and prone to subsequent misunderstandings, mistaken assumptions, and outright misinterpretations -- just like a good Three's Company episode!

Did you know...Oscar-nominated actress Sally Kirkland appeared in the 1977 episode "Jack Looks for a Job", shocking audiences by revealing more skin than had ever been seen on a prime time television sitcom at the time. 

I did not know that!

Anyways, someone dropped a big chunk of chocolate dicta into the coffee-swillers' brew this week in our patented 3d DCA Watch -- let's take a look:

Stand Up for Animals v. Monroe County:

A "prejudgment, ex parte injunction freezing the assets" of the defendant before any adjudication on the merits at all?

That's just not cool.

It's also really hard to obtain and the standard is pretty high (but you knew that):

The County’s claims in this case, while sounding in equity, are no more than a claim for damages stemming from a breach of contract: Count I of the complaint seeks a declaration determining whether SUFA charged and collected fees in excess of that allowed by the parties’ contract and, if so, whether the County is entitled to any portion of the excess collected; Count II seeks an accounting to determine whether any fees collected by SUFA should have been paid to the County; and Count III seeks only to freeze SUFA’s bank accounts because “[o]n information and belief,” SUFA had been collecting fees in excess of that allowed and had been either misusing these funds or failing to remit them to the County as alleged in Counts I and II of the complaint. Because the allegations assert no more than a breach of contract compensable by a damage award, no irreparable harm essential to secure injunctive relief freezing SUFA’s bank accounts could be demonstrated.

Eidessen v. Royal Caribbean:

This is a cert review of an order granting a motion to amend to add punis, let's see what the 3d has to say:

Royal Caribbean Cruises, Ltd. seeks certiorari review of an order granting Bjoern Eidisson’s motion to amend his complaint to add a claim for punitive damages. While we agree that the evidence adduced and proffered is legally insufficient to support a punitive damages claim, we deny the petition as we are without jurisdiction to address this determination on the merits.

Hmm, Chief Judge Wells -- does the first part of the sentence know what the second part of the sentence is saying?

Because I'm pretty sure you just determined the merits of the punitive damages claim somewhere in there?

Oh hail let's let Judge Ramirez explain what just happened:

I concur with the majority that the petition should be denied. In my view, the trial court followed the procedure required under Globe Newspaper Company v. King, 658 So. 2d 518, 519-20 (Fla. 1995) and Solis v. Calvo, 689 So. 2d 366, 368 (Fla. 3d DCA 1997). We should stop there, without commenting on whether we agree or disagree that the evidence proffered was insufficient to support a claim for punitive damages. That is not the function of a certiorari petition at this stage, and furthermore, it is a comment with which I disagree.

That was perfect, I mean he's so....wait a second -- why didn't you stop after the word "stage" -- didn't you also just pass judgment on the merits?

Forget it, I'm headed back to the Regal Beagle -- don't you think Jack and Janet always belonged together?

Alan Kluger Further Explains the "Meet and Confer" Requirement.

The parties in the anonymous blogging case could have had ten thousand "meet and confers" in the amount of time (not to mention money) they have spent debating the finer points of the Local Rule.

In our latest installment, The Kluginator further elucidates the difference between a "motion" and a "request" for purposes of the governmental mandate to actually communicate with opposing counsel:

Defendant argues that Plaintiffs failed to comply with the local rules regarding pre-filing conferences for not only the Request, but also for their Request for Oral Argument on Defendant’s Motion to Dismiss [D.E. 27] and their Request for Oral Argument on  Plaintiff’s Motion to Remand [D.E. 29] (collectively, the “Requests for Oral Argument”). This is incorrect. Plaintiffs filed the Requests for Oral Argument pursuant to Local Rule 7.1(b)(1), and they are not subject to the provisions of Local Rule 7.1(a)(3). Moreover, the Request is merely a supplement to Plaintiffs’ Motion to Remand. Accordingly, Plaintiffs’ Requests for Oral Arguments and the Request are proper, and this Court should reject Defendant’s argument to the contrary.

Ok, stop:  what exactly is a "supplement" to a motion for remand?

Is that what happens when you forget to ask for fees in the actual remand motion, and then you have to file another document later asking for fees should the remand be granted?

Given the precarious nature of the "supplement" in the first place, how would it have hurt to get an angry polite response (ed. -- new oath and all) email from opposing counsel advising you to go to hail?

Now let's talk "requests" for oral argument.

Again, what if opposing counsel also wanted a hearing?  Wouldn't your request be stronger if the parties were united in their view that Judge Cooke should hold a hearing?

How would it have hurt to conferred?

Say Hello to the New Head of the PSC!

 Wow what a weekend.

A lot going on today -- first, the Tannebaum Express cogently explains why Judge Gold was right and the 11th Circuit was wrong wrong wrong in reversing the sanctions order David O obtained on behalf of Dr. Shaygan.

Note to social marketers -- amazingly, this intelligent piece of legal advocacy does not once mention the words "iPad"; "social media"; "cloud computing"; or "Joseph Rakofsky."

Next --the attorney currently in Judge Seitz' cross-hairs explains herself here, and Robert Kain explains himself here.

OK, once more, but only to appease the many requests:

Finally, Rick Scott has appointed Miami attorney Braulio Baez to head the PSC:

Baez, an attorney for a private law firm, has a law degree from Nova Southeastern University in Fort Lauderdale. He was a commissioner until January 2006 and a chief policy aide for a commissioner before that. He worked for the Akerman Senterfitt law firm for less than a year with clients that included companies in the energy and telecommunications and water industries. He spent nearly four years before that at Holland & Knight law firm where, among other things, he shaped strategies for a Fortune 500 electric utility.

He was fined a $1,170 in 2007 for allegedly accepting gifts from regulated companies during a 2002 utility conference in Miami when he was a commissioner.

That's what troubled Graham, who said he's concerned about "the big battle we're going to have to fight to having to justify a decision like this."

The PSC has been criticized in the past few years for its ties to utilities.

Now why in the world would anyone say that?

UPDATE -- On top of everything else we have to worry about, now the Florida Supreme Court wants us to actually, you know -- gulp -- be nice to each other:

To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;

 Change starts one email at a time.

Law Updates for September 2, 2011

Coleman, 36 FLW 1874, 4th DCA, Resisting officer with Violence - Trial court did not abuse discretion in admitting defendant's threats, made at hospital after arrest, that he intended to kill the arresting officers, and statement after arrest that he hated white people.  Probative to reveal to jury defendant's intent to harm LEO and not prejudicial under 403.

Hyden, 36 FLW 1879, DUI Felony - State not establish predicate convictions where of one the priors was with counsel and State presented no evidence that defendant waived his right to counsel before he entered plea of guilty.  The form signed waiving counsel was six weeks before the plea.  The Court is required to renew the offer for counsel at the time of the plea.  This is a critical stage of the proceedings as long as the defendant is unrepresented.

Marshall, 36 FLW 1905, 5th DCA, Prior inconsistent statement - The trial court erred in precluding defendant from impeaching the victim where victim told prosecutor prior to the trial that the defendant was not the driver of the suspect vehicle during drive-by shooting.  When questioned at trial, victim claim he did not recall telling prosecutor that defendant was not the driver.  Not hearsay for impeachment purposes.  The fact that the defendant did not call prosecutor at trial to proffer his testimony was not an error as it would have been futile based on the court's ruling, where prosecutor confirmed the statement not necessary to call the prosecutor for  a proffer.  Not harmless error other inconsistencies in the victim's account and fact.  State cased based mostly on victim's eyewitness testimony.


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

Gaze Upon Judge Ungaro's Fair Districts Order!

I had the pleasure at lunch to catch the always intrepid Julie Kay on the airwaves today, on the publicly-funded radio station that has single-handedly brought America to her economic knees (you know, the same one that airs "Wait Wait Don't Tell Me").

Julie was informative and knowledgeable as always.

But during the course of the discussion Jim DeFede made a good point -- why is it that the Florida legislature is overwhelmingly Republican, often by lopsided majorities and populated with quite conservative lawmakers, yet in the Florida general elections (President, Senator etc.) the splits are more 50/50 and the majorities typically razor-thin?

Short answer: gerrymandering.

That's a nice segue for Judge Ungaro's order upholding on summary judgment the Fair Districts constitutional amendment, which starts off pretty old-school (as in The Framers old-school):

Both sides agree that the case turns on the Elections Clause, and both make passing references to the intent of the Framers. Yet absent in the briefs of both sides is any true attempt to analyze the origins of the Elections Clause. It is as if the proceedings of the Constitutional Convention, the state ratification debates, and the First Congress lay somehow beyond the reach of these litigants.

The Judge then jumps into the old Constitutional Convention time machine, determines that Smiley Smiley was a pretty good Beach Boys album after all (read the order!), and concludes that Florida voters can pretty much screw around with their own Constitution however the hail they like.

Have a great weekend!

Fifth District Refuses to Substitute Judgment for Trial Court’s In Domestic Violence Petition

In Deale v. Deale the Fifth District Court issued an opinion today affirming the lower court’s refusal to issue an injunction against domestic violence in a case where allegations were made including over 100 phone calls a day and a stolen car.  While the Fifth District agreed with the Appellant that evidence was presented, the lower tribunal was not persuaded, and the Fifth DCA refused to substitute its own judgment for that of the lower court.

Your Friday Morning Digital Dump.

Hi kids, are you interested in watching Alvin Davis masticate flagellate lay prostate orate?

(Ok, let's go with the last one.)

You can see the red-glassed Jedi at work -- actually traveling to (ick!) Tallahassee -- to deliver a master class before the Florida Supremes on the various forms of equitable estoppel, promissory included.

And he did it all for Don King!

(Oral argument transcript here, and the well-written briefs are here.)

In other news, the 11th Circuit finds that filing an amended complaint that expands the class definition revives an otherwise waived right to arbitrate; and Judge King is reversed because he excluded plaintiff's expert testimony in a cruise passenger injury case.

Finally, more bad news for the lawyer whose response to Judge Seitz' order to show cause is due today -- apparently David Mandel thinks she may have a conflict of interest and her law firm possibly disqualified.

When it rains it rains.....

Oh hail it's Friday, let's misbehave:

Florida Law Weekly Supplement Publishes Firm Foreclosure Win

The Florida Law Weekly supplement has published an order granting a motion to dismiss obtained for a Saint Lucie County foreclosure defense client. The Florida Law Weekly Supplement publishes legally significant rulings of Florida’s county and circuit courts. The publication is available to Florida Lawyers on a subscription basis. This was the fourth published foreclosure opinion obtained by the firm and the third published foreclosure opinion for firm attorney Richard Shuster. Mr. Shuster has over twenty published opinions in a wide range of civil litigation matters.

In this case the firm filed a motion to dismiss Citibank’s foreclosure complaint for failure to comply with Florida Rule of Civil Procedure 1.110(b) which requires foreclosure complaints to be verified. Shuster asserted that the Citibank’s verification of the complaint on a separate document was improper and that verification must be made on the complaint itself. The rationale for this argument is that if a bank can verify a complaint on a separate piece of paper, such papers can be robosigned in advance and then just stapled to complaints as needed. If the person verifying the complaint signs the complaint itself, the Court knows that at a minimum the person verifying the complaint had possession of the complaint at the time they signed it.

Judge James Midelis, agreed with the firm’s arguments and granted the motion to dismiss the foreclosure case. The Court also ordered Citiabank to pay the homeowner’s attorneys fees. For the hearing on this case firm attorney Richard Shuster traveled from the firm’s Melbourne office to St. Lucie, Florida where the hearing was held. To download a copy of the order in Adobe Acrobat (pdf) format please click the link below. Homeowners who have questions about whether the foreclosure complaint against their home was properly verified may E-mail the firm at foreclosuredefenselaw@gmail.com.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

About Shuster & Saben: Shuster & Saben, LLC is a litigation firm of seven attorneys with offices in Miami, Fort Lauderdale, and Melbourne Florida. The firm passionately defends foreclosure cases in those parts of the state that are within two hours of the firm's three offices. The firm also sues banks and loan servicers that violations of the Fair Debt Collection Practices Act, Truth In Lending Act and other consumer protection laws. Our goal is to deliver superior representation at a cost that is affordable, predictable, and an excellent value. Homeowners in foreclosure are welcome call or e-mail to obtain a free, no-obligation consultation with a firm attorney.

First District Court Upholds Prospective Modification of Administrative Support Order

This week the First District Court of Appeal upheld the lower tribunal’s decision in DOR ex rel Proveaue v. Williams, a case in which the Court prospectively modified an administrative support order, and the Department of Revenue claimed they alone had the right to do so.  The Department claimed that the circuit court had no right to modify administrative support orders, which argument was rejected by the First.

Third District Reverses Reimbursement Award

In Edge v. Edge, the Third District Court of Appeal reversed the lower court’s ruling yesterday which granted the Former Wife reimbursement for taxes paid on alimony over a period of seven years.  While the Former Wife successfully took exception to the Magistrate’s finding of laches, she did not take exception to the finding of unclean hands.  As this was a separate ground for denial, and was not the subject of the Former Wife’s exceptions, the Former Husband was found to be entitled to judgment based on unclean hands.