Happy Halloween, Plebes!

Stay safe (and dry!).

What an Awesome Idea for a Halloween Party!

So I'm sure your firm is throwing a big Halloween party, just like this foreclosure mill in upstate New York:

The party is the firm’s big annual bash. Employees wear Halloween costumes to the office, where they party until around noon, and then return to work, still in costume. I can’t tell you how people dressed for this year’s party, but I can tell you about last year’s.

That’s because a former employee of Steven J. Baum recently sent me snapshots of last year’s party. In an e-mail, she said that she wanted me to see them because they showed an appalling lack of compassion toward the homeowners — invariably poor and down on their luck — that the Baum firm had brought foreclosure proceedings against.

When we spoke later, she added that the snapshots are an accurate representation of the firm’s mind-set. “There is this really cavalier attitude,” she said. “It doesn’t matter that people are going to lose their homes.” Nor does the firm try to help people get mortgage modifications; the pressure, always, is to foreclose. I told her I wanted to post the photos on The Times’s Web site so that readers could see them. She agreed, but asked to remain anonymous because she said she fears retaliation.

Let me describe a few of the photos. In one, two Baum employees are dressed like homeless people. One is holding a bottle of liquor. The other has a sign around her neck that reads: “3rd party squatter. I lost my home and I was never served.” My source said that “I was never served” is meant to mock “the typical excuse” of the homeowner trying to evade a foreclosure proceeding.

A second picture shows a coffin with a picture of a woman whose eyes have been cut out. A sign on the coffin reads: “Rest in Peace. Crazy Susie.” The reference is to Susan Chana Lask, a lawyer who had filed a class-action suit against Steven J. Baum — and had posted a YouTube video denouncing the firm’s foreclosure practices. “She was a thorn in their side,” said my source.

A third photograph shows a corner of Baum’s office decorated to look like a row of foreclosed homes. Another shows a sign that reads, “Baum Estates” — needless to say, it’s also full of foreclosed houses. Most of the other pictures show either mock homeless camps or mock foreclosure signs — or both. My source told me that not every Baum department used the party to make fun of the troubled homeowners they made their living suing. But some clearly did. The adjective she’d used when she sent them to me — “appalling” — struck me as exactly right. 

Oh lawyers are so funny!

Yet consider the mindset of the lawyers and staff who would think decorating the senior partner's office with foreclosed homes is tasteful let alone humorous.

We often talk about a "war" mentality and the need for group cohesiveness, particularly when engaged in a process that is otherwise difficult either mentally or physically.

And in this case we have a perfect example of that, a culture where the foreclosed homeowners or their counsel are the "enemy," where they are viewed as irresponsible debtors who broke contracts, freeloaders who don't deserve to live in their homes, bottom-feeders who are victimizing the banks and thus deserve little pity and even less justice.

But then how else to justify the soul-numbing nature of the work they are asked to perform day after day?

Your Friday Morning Digital Dump!

Hi kids, let's see what's happening around town this morning:

1.  Kathy Williams investiture.

2.  Poor David Boden.

3.  Republicans don't like the federal courts anymore (related -- happy 10th birthday, Patriot Act!).

4.  Good federal judges matter.

5.  More Jeremy Alters.

(Of course he has to file suit first!)

Law Updates for October 21, 2011

McElroy, 36 FLW 2232, 2nd DCA, Hearsay - Trial Court erred in denying defendant's Motion in Limine to exclude hearsay statements, ruling improperly that statements made by CI were verbal acts.  CI statement here served only to prove the truth of defendant's participation in cocaine purchase rather to explain the nature of the transaction or the defendant's actions, and were hearsay and not verbal acts.

Molina, 36 FLW 2235, 2nd DCA, Trial Court committed harmful error in ruling that the CI was available to both parties and therefore the Defense was not permitted to call CI as a witness at trial.  No in-camera hearing, therefore court could only speculate where CI's testimony would warrant disclosure of CI's identity, and erred in ruling CI was equally available to the Defense for comment on State's failure to call at trial.

Hamilton, 36 FLW 2242, 4th DCA, Conviction of robbery with a weapon is reversed.  State presented evidence that weapon was a toy not used to strike the victim, can be brought up for first time on appeal as fundamental error legally insufficient as a matter of law.

A.H., 36 FLW 2243, 4th DCA,Juveniles - Possession of weapon at school bus stop - Evidence was insufficient to prove that unloaded BB gun seen on juvenile's person was "weapon" under Florida law.  No evidence that the juvenile used, or threatened to use, the BB gun in blunt fashion, consistent with being pistol whipped.

Deluise, 36 FLW 2244, 4th DCA, Trial court violated defendant's equal protection by proposing to consider a reduction in prison sentence if defendant paid at least $100,000 in restitution within 60 days of the sentence.

Davis, 36 FLW 2266, 1st DCA, Discovery - Defendant who sought to depose the victim on issue of consent after plea, prior to sentencing, was incorrect in claiming that he was entitled to depose the victim since the victim was a Category "A" witness.  Category was irrelevant after guilt is determined, since language of 3.220 does not prohibit rule's application to sentencing hearings, and new evidentiary issues may arise at sentencing.  Defendants have a right to conduct discovery at any crucial stage of criminal proceeding and trial court should treat discovery disputes at such stage in the same manner as those brought at trial.  Court erred in weighing the merits before granting protective order.  Error was harmless where issue of victims consent was fully addressed in victim's police report and testimony at sentencing hearing.


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

Does This Remind You of Anyone You Know?

These lyrics seem so apt for some reason this morning:

Now he worships at an altar of a stagnant pool
And when he sees his reflection, he's fulfilled
Oh, man is opposed to fair play
He wants it all and he wants it his way.

Gotta love opposing counsel!

3d DCA Watch -- Romantic Candlelight Edition!

Hi kids, it's a bright and sun-shiny day everywhere except inside the bunker, where government cut backs now require that all illumination be entirely by pitchfork and candlelight.

But that's ok -- Judge Fernandez already had his from circuit court!

Onward:

Cuccarini v. Rosenfeld:

New 3d DCA Judge Fernandez explains that you can't grant judgments on the pleadings where there are disputed factual issues:

We conclude that the sellers were not entitled to judgment on the pleadings. A review of the pleadings reveals a glaring question of fact: namely, whether the Wachovia letter satisfies the financing contingency requirements. Had the pleadings from both sides indicated that no letter was ever sent or that the Wachovia letter was not meant to be an approval letter, then there would be no factual dispute and the judgment would be correct as a matter of law. But those are not the facts in this case. Here, the sellers allege that the buyer’s letter was nothing more than a pre-approval letter, and therefore the buyer forfeited his deposit. The buyer, on the other hand, claims that the letter tendered to the sellers was an approval letter.

Nice, simple, easy-to-understand style -- welcome Judge!

Mejias v. Shelbourne Hotel:

Here's something you may want to remember -- if your case has been pending for 10 years, your motion for continuance may properly be denied.

Good to know, practitioners!

Proof Blogging Makes You Famous!

My pal Francisco Ramos, who writes the informative and entertaining Tips for Young Lawyers, gets a nice Florida Trend profile here.

An excerpt:

When Francisco Ramos Jr. became a lawyer 14 years ago, some of the more experienced attorneys at his firm often spent time advising him and other young lawyers.
"There was a little more time for senior attorneys to spend with younger attorneys, and I find that's less the case now," Ramos says. "There are more lawyers chasing fewer clients, and there's more of a focus on the bottom line, so things that don't translate directly to money — i.e. trying to mentor somebody — kind of go by the wayside. I think most young lawyers are looking for a mentor and, unfortunately, a lot of them don't have one."

Now, they have Ramos.

Wait a second -- 14 years ago?

So Ramos is 39!

Does he even qualify to be a member of the Young Lawyers Division of the DCBA anymore?

Regardless, wisdom comes with age (or so I hear).

The other salient point -- Frank blogs to help others.

Think about that.

That makes him a rarity in the blogging world (but then you already knew that).

Rick Scott's War on "Evidence-Based" Policymaking.

It's a bad day for social policymakers in Tally, as Rick Scott's signature "test the welfare deadbeats for drugs" policy initiative takes a blow thanks to MD FL Judge Scriven, who entered an injunction and found the policy unconstitutional.

One big problem, she noted, was that Rick Scott's evidence-free belief that drug use is "much higher" among welfare recipients than the population at large just wasn't true:

However, these stated goals can be found nowhere in the legislation, and with good reason: the State’s commissioned study undercuts each of these rationales as a likely feature of the proposed legislation. As noted, researchers found a lower rate of drug usage among TANF applicants than among current estimates of the population of Florida as a whole.This would suggest that TANF funds are no more likely to be diverted to drug use or used in a manner that would expose children to drugs or fund the “drug epidemic” than funds provided to any other recipient of government benefits. The researchers also found no evidence that TANF recipients who screened and tested positive for the use of illicit substances were any less likely to find work than those who screened and tested negative.The Florida Legislature, in fact, enacted the Section 414.0652 over the express recommendation of its own researchers not to expand the Demonstration Project statewide because it was not shown to meet these goals.

So empirical evidence does not support Rick Scott's personal "belief" about deadbeat welfare drug users, that's not surprising.

But what does it say about the intellectual honesty of a public servant when those "beliefs" are seemingly immutable and his position on this remains unchanged in the face of that evidence?

Judge Moore Presiding Over Florida Tuition Lawsuit!

Are you following the lawsuit recently filed by the Southern Poverty Law Center over US citizens and Florida residents who are children of undocumented immigrants being charged out-of-state tuition fees at Florida universities?

This may be one of the more stupider actions taken up in Tally in recent memory:

Born and raised in Miami, Ruiz is a U.S. citizen. But in the eyes of Florida’s higher education system, she’s a dependent student whose parents are undocumented immigrants — and not considered legal Florida residents.

As such, Ruiz is charged higher-priced out-of-state tuition, even though she has a Florida birth certificate, Florida driver’s license and is a registered Florida voter. One semester of in-state tuition at Miami Dade College costs about $1,200, while out-of-state students pay roughly $4,500.

Many students are simply unable to absorb the increased cost. Ruiz has been attending Miami Dade College and, so far, has a 3.7 GPA but must work multiple part-time jobs just to pay for one class. Other similarly-affected students have completely given up on college.

“As an American, and a lifelong Florida resident, I deserve the same opportunities,” Ruiz said. “I know that I will be successful because I have never wanted something so bad in my life like I want this.”

 Here's an excerpt from the lawsuit, now before Judge Moore:

Florida’s public colleges and universities classify applicants and students who are unable to show that their parents have lawful immigration status as “non-residents,” even though the applicants are United States citizens who reside in Florida. Being classified as a non-resident more than triples the cost of tuition. As a result, many talented American students must either forego higher education or incur extraordinary costs, in both money and time, in order to obtain the same education made available to other Florida residents at a small fraction of the cost.

The individuals who bring this action were born in the United States, graduated from Florida high schools, and have lived in Florida for many years. Some have lived in Florida all of their lives. They went to the same high schools, held down the same part-time jobs, and participated in the same after-school activities as their counterparts who are granted in-state tuition status. The only difference between the plaintiffs and the students granted in-state tuition is that the plaintiffs cannot prove that their parents have lawful immigration status.

Forcing children to carry the status or non-status of their parents seems inherently un-American, or is that too quaint a notion nowadays?

Live Footage From FBA Installation Dinner!

Among the many highlights on Thursday was Judge Gold's presentation to Judge Hoeveler of the NED award in honor of Judge Davis.

One thing I didn't know was how accomplished Judge Hoeveler was as a musician, regaling the law students at Harvard with his boogie-woogie, tickling the ivories as they say.

It was at that point the curtain behind Judge Gold dramatically opened, revealing a full band and stage set up, at which point Judges Marra, Martinez,and new Judge Bobby Scola suddenly appeared onstage and they all performed a rousing musical tribute.

I'm telling you Brett keeps raising the bar higher and higher......

Special Report: Inside the Occupy FBA Installation Dinner Protests!

[Ed. note -- I received this front line transmission late last night from one of the #OFBAID protesters who converged on the Biltmore to protest Brett Barfield's continuing and successful efforts to improve, modernize, and upgrade the South Florida chapter of the Federal Bar Association.  His/her unedited report follows.....]

I write this from deep inside the belly of the beast, having endured hours of lovely cocktail conversation, fantastic tributes to newly confirmed judges Kathy Williams and Bob Scola, and a very moving and deeply affecting Judge Edward Davis award (the "Ned") presentation by Judge Gold to Judge Hoeveler.

That is not to say I did not suffer for the cause.

For example, in a clear act of self-abnegation, I purposely sat next to Scott Dimond.

Additionally, rather than eat all three of the delightful tortellini appetizers I only ate two (and half of one that Judge Moreno left on his plate).  My filet was undercooked yet I did not complain.  My will remains strong.

Conditions here are dire.  I have asked repeatedly for another glass of merlot but instead keep receiving cabernet.  I have not returned the seven glasses of clearly inferior swill offered; rather I have drunk them in solidarity as my injustice indigestion continues to build.

I have been forced to send this message from a secret underground location the beautiful courtyard overlooking the golf course using the free hotel wifi.  Although the riot squad has not pepper-sprayed me yet, I am sitting next to Scott Dimond.  Repeat:  I am sitting next to Scott Dimond.  He is discussing proposed rule amendments and GOOD LORD!!!...crackle...ack!....[]

[ed. -- transmission ended abruptly at 11:37 p.m.; no further communications were received]

Second District Reverses Equitable Distribution

In Fotinos v. Fotinos, the Second District Court of Appeal released an opinion Wednesday which affirmed on all issues, but reversed the equitable distribution award.  This was in light of the Court’s failure to make findings supporting an unequal distribution of assets and debts, its finding that a home was marital, but essential grant of that property only to the Husband through exclusive use and possession, as well as the Court’s permitting the Husband eighteen years to pay back his share of equitable distribution to the Wife.

Scott Rothstein....Yawn.....

He's so 2008, come on!

What with the watches, cars, Kimmie, cigars, idiot hangers-on, massive law firm implosion.....who the hail cares anymore?

I guess the investors who lost everything.

So for them the Rothstein saga rolls on, including this sj order by Judge Cook on investor Coquina Investments' case against TD Bank.

The Court dismisses two of the key RICO counts, but allows two lesser tort claims to proceed.

Read it if you want to get all nostalgic for life way back then -- there's a fairly good summary of the "structured settlement" scheme drawn from undisputed facts.

Law Updates for October 14, 2011

A.S.F., 36 FLW 2182, 4th DCA, Trial court improperly denied motion for dismissal where the State presented no evidence that the juvenile had any participation in the attack.  He was present and might have, at some point been aware that the attack was going to occur, but such knowledge would not have been enough to establish the required criminal intent.

Williams v. Lamberti, 36 FLW 2223, 4th DCA, Recusal granted by Appellate Court after third time granting Habeas Corpus based on an excessive bond. At the emergency motion to grant bond the Court based its findings on the unsworn statements of a prior lawyer who had previously withdrawn, and would not listen to testimony of the Defendant, i.e., that he had complied with the previously imposed flight conditions, and had not received notice of a hearing he missed to determine that the Defendant was a flight risk for a third degree felony.



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

Schmear Some Sugar On Me!

Spencer's Breakfast Club spreads north.....

3d DCA Watch -- Dark and Stormy Edition.

Here's hoping the Resplendent Ones have added a little Gosling's Black Seal -- pre-swill, of course -- to their coffee this morning as it must feel especially dark and stormy inside the bunker today.

So let's cheer up the concrete denizens and take a look at what they've been up to this week:

Del Monte v. Net Results:

Bye-bye $15.7 million dollar verdict -- that whole pesky "damages" part of the trial can be very tricky:

We affirm the jury’s and trial court’s determinations that Del Monte breached the parties’ consulting contract, but we reverse the jury’s $10,000,000 consequential damages award and the prejudgment interest and attorney’s fees and costs subsequently added by the trial court. This is a business damages case in which the computation of Net Results’ “benefit of the bargain” losses requires grade-school arithmetic rather than a “damages model” long on assumptions and short on facts. The jury’s award is neither reasonably certain nor supported by substantial competent evidence.

 Question to plaintiffs -- you went with the owner of the business as your damages expert?

Judge Salter gives us a nice refresher on basic contract damages in FL:

Florida law and the Restatement (Second) of Contracts10 are aligned regarding the remedies available following a party’s repudiation of the contract and prevention of performance by the non-breaching party. The non-breaching party, here Net Results, may elect between reliance damages (those costs and expenses of preparing to perform, the recovery of which will place the recipient in the position it occupied before entering into the contract) or lost profits (the benefit of the bargain or “expectation interest”). Pathway Fin. v. Miami Int’l Realty Co., 588 So. 2d 1000, 1005 (Fla. 3d DCA 1991). Having elected in this instance to claim lost profits, Net Results can recover only those prospective profits “which would have been possible only if the contract would have been fully performed by the [non-breaching party].” Id.

 Incarnacion v. Thomas:

Judge Lagoa thinks Judge Bailey went a little to far in sanctioning a party for her lawyer's failure to show at a CMC:

While a trial court’s decision to impose sanctions is discretionary, that discretion is not absolute. The imposition of sanctions requires wrongdoing by the party being sanctioned, and the sanction must be commensurate with the offense. See Mercer v. Raine, 443 So. 2d 944 (Fla. 1983); Cossio v. Arrondo, 53 So. 3d 1141 (Fla. 3d DCA 2011); Taylor v. Mazda Motor of Am., Inc., 934 So. 2d 518 (Fla. 3d DCA 2005).

Here, dismissal of Incarnacion’s action for her counsel’s failure to follow the trial court’s pre-trial order constitutes an abuse of discretion. While it is appropriate to strike a party’s pleading “where the offending conduct is flagrant, willful or persistent,” evidence must exist to justify this severest of sanctions. Cossio, 53 So. 3d at 1144 (quoting Kamhi v. Waterview Towers Condo. Ass’n, 793 So. 2d 1033, 1036 (Fla. 4th DCA 2001)). “Absent evidence of a willful failure to comply or extensive prejudice to the opposition, however, the granting of such an order constitutes an abuse of discretion.” Id. The record does not show that Incarnacion was in any manner responsible for her attorney’s non-compliance.

LatAm v. Holland & Knight:

Litigation privilege serves as absolute bar to abuse of process action (but you knew that already).

 Phillips v. Centennial Bank:

Judge Ramirez, dissenting, is not too happy with the bank's counsel or with Monroe County Circuit Judge Taylor:

I dissent because I cannot condone the unprofessional and unethical means used by the bank’s counsel, with the trial court’s complicity, to obtain an amended final judgment in this case. Counsel for Centennial Bank admitted at oral argument that the amended final judgment, which more than doubled the amount of the deficiency judgment, was obtained after an ex parte communication with the judge’s chambers. Either the judge or her staff then advised counsel on how to proceed. Not only was it improper for the trial court to give legal advice, but the advice was wrong—directing counsel to send a letter with a proposed amended final judgment, rather than to file a motion seeking appropriate relief. This was then followed by another ex parte communication—a letter from the bank’s counsel to the judge, that then resulted in a new final judgment two and half times larger than the previous final judgment. The bank did not even send a copy of the letter to the appellant. Incredibly, the majority of this panel is willing to condone and reward such behavior.

Ouch -- better reverse the Goslings to coffee ratio!

But the judge is not done: 

In my view, to affirm what happened here requires that we turn a blind eye to the Florida Rules of Civil Procedure, the Florida Bar Rules of Professional Conduct, and the Code of Judicial Conduct, to say nothing of the Constitutions of the United States and the State of Florida.

Ok, but no traffic safety rules were violated, so it's not all bad.

Attention Toe-Tappers: I Bring You News!

As Magistrate Judge Brown continues to weigh the evidence and come to a ruling in the epic broken yacht saga, pro se plaintiff Peter Halmos seeks to be (re)heard over a long-simmering document sanctions issue.

Here are some choice snippets from his reply:

Plaintiffs have been sanctioned and, among others, denied their rights to fully and fàirly present their case due to their alleged inability to rebut ACE et al's Fed R Civ. P 60(b)(3) prevarications.2

 And here's footnote 2:

About 50% of the 1,400 docket entries in this case relate to ACE et al.'s Rule 60(b)(3) planned and carefully executed schemes "directed at the judicial machinery itself . . . where the impartial function of the court have been directly corrupted.'' (Id. 4) See Motion for Relief, pp. 17-19.

The "impartial function of the court have been directly corrupted"?

Oh boy -- you better be careful before whom you file something like that.

Law Updates for October 7, 2011

Davila, 36 FLW 579, Sup. Ct , A parent can be convicted of kidnapping of one's own child even if no court order involved.

Parker, 36 FLW 1245, 2nd DCA, Possession of child pornography - Defendant's conviction and sentence is reversed for possessing photographs depicting child's heads on bodies of adult females engaged in sex acts (not computer generated). 827.071 requires that the depicted sexual conduct be that of a child and photographs which leave no doubt that child engaged in a sexual act, actual or simulated and a reasonable viewer must believe the actors actually engaged in the conduct on camera, it must involve actual children.

Lester, Jr., 36 FLW 2157, 4th DCA, Hearsay, dying declaration.  No error in admitting out-of-court identification made by deceased victim by blinking once for no and twice for yes in identifying the defendant.

Williams, 36 FLW 2163, 5th DCA, Husband-wife privilege.  Trial court erred in admitting wife's statement that defendant needed money in order to pay his attorney (robbery case).  Covered by privilege - not waive objection by not objecting in her deposition - statement regarding defendant's street name was not protected because it was information generally known in the community.  Harmful error.

J.H., 36 FLW 2165, 5th DCA, Where trial court had orally announced juvenile's sentence of probation at initial disposition hearing, juvenile had begun serving his sentence when juvenile left the courtroom.  Summoning juvenile back in courtroom and sentence to 3 years in residential treatment violates double jeopardy. Fact that PDR was missing a comprehensive evaluation and report had DJJ'S probation plan, in error, was not fault of the juvenile causing him to be allowed to be sentenced again.

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

Who'll Stop the Rain?

Hi kids, it's still soggy, dark, and gloomy -- and that's just inside my law office.

Glenn Garvin finally explains what motivates almost everything he ever writes -- the "feminists" in college thought he was a total dweeb.

(I knew it was Maude all along.)

I love the simplicity of these short, declarative statements on the 11th Circuit website:

Published Opinions are binding precedent.
Unpublished Opinions are not binding precedent.

 If only life could be so easy!

Judge King grants sj to Stiefel Labs in case brought by former employees, upholding general releases.

Finally, things are tough all over -- BoA made $6 billion this quarter and Citigroup limped by on only $3.8 billion -- but every cent well earned you can be sure!

Second District Reverses Order a Second Time

During the appeal in Hunter, Jr. v. Hunter, the lower tribunal issued a second order disposing of the modification action in substantially the same fashion as the Order reversed by the Second District Court in the first appeal.  On Friday, the Second District Court issued another opinion in Hunter, Jr. v. Hunter, again reversing, in that Florida Rule of Appellate Procedure 9.130(f) divested the lower tribunal of jurisdiction to enter an order disposing of the case while it was on appeal.  However, the Second District was unable to address the contempt finding added to the order on appeal, as it was not briefed, and the issue was thereby waived by Mr. Hunter on appeal.

Special Concurrence from 5th DCA Regarding 12.407

In Calloway v. Tawil, an opinion released Friday by the Fifth District Court of Appeal, the Court affirmed, per curiam, on all issues raised as to this modification of timesharing.  However, in a special concurrence, Judge Kerry I. Evander gave his consideration to the lower tribunal’s ruling that, as the minor child was not testifying, he was “a member of the public just like anybody else,” and permitting that child to remain in the Court during his mother’s testimony and that of an expert witness.  As Judge Evander pointed out, Florida Family Law Rule of Procedure 12.407 attaches special considerations and public policy to the presence of a minor child in the courtroom, and suggested that it should be the rare situation where a minor child is permitted to listen in on testimony of this type.

Fifth District Reverses Credit Given for Mortgage Payments

The Fifth District Court of Appeal ruled Friday in Cortese v. Cortese, and reversed as to the credit given to the Husband for mortgage payments made during the pendency of that dissolution of marriage action.  The reversal was based on the failure of the Husband to request any such setoff in his pleadings, the Court’s finding that the Husband had traditionally paid such expenses during the marriage, and the lower tribunal’s use of these payments elsewhere in its judgment as temporary alimony paid by the Husband.

"Penny Per Pound" Issue Still Dogging Burger King?

What with all the protests in the streets this may be an opportune time to revisit the "penny-per-pound" movement, which had folks demonstrating in front of Burger King corporate headquarters in an effort to get the company to pay migrants workers something closer to a living wage.

Those protests were successful, and to its credit Burger King (and other fast food giants) agreed to up the prices paid for their tomatoes.

So it's all over and good?  Not so fast:

But there was a catch. The growers balked at the deal until last November, meaning the companies had no mechanism for passing on the extra money.

In the lawsuit filed Wednesday in Miami-Dade Circuit Court, the 16 workers are asking for unspecified wages based on the number of tomatoes they picked that were bought by Burger King ( BKC - news - people ) and Subway.

Their attorney Greg Schell says now that the growers are on board, it should be simple for the chains to provide back pay from 2008, or to explain why they don't owe the money. But he says the companies have refused to discuss the issue. He said he is also planning to file suit against several other fast-food chains.

 Ok, I actually think BK has a point -- how are you going to find these seasonal workers and pay them?

The coalition, which is not connected to the Justice Project, does not support the lawsuit.

The coalition said the companies had put the money in escrow until the growers were willing to participate in the deal. On Thursday, the group provided copies of a 2011 farmworker pay stub to The Associated Press showing larger than normal bonus distributions from McDonald's and Subway it said represented the money accrued in the escrow accounts.

Julia Perkins of the coalition said some current workers have received the escrow funds even if they weren't part of the past harvests, but she said it was unrealistic to try and track down workers from several seasons ago, many of whom have returned to Mexico and other countries.

"This seemed like the fairest way to distribute the money," she said.

Schell insists that if those workers in Mexico want to claim the money, it should be theirs.

Regardless of how this issue pans out, the penny-per-pound movement rolls on.

Their next target:  your friendly neighborhood Publix!

Love is the Seventh Wave.

Can't argue with Der Stingle.

SFL Friday -- Really Bored Edition.

Hi kids, that was a nice event last night for the law library, wasn't it?

Not too much happening otherwise....

Jeff Feiler has a new website!

Oh man, see what I mean?

Here's a NYT editorial on the latest arbitration case before the Supremes.

Something about "secret evidence" rubs me the wrong way.

How many judicial fundraisers do I have to attend this month?

Judge Jordan voice vote -- the document.

Come on, people, help out!

Judge Jordan One Step Closer to Confirmation!

Fly, Judge, fly (with bipartisan support)!

3d DCA Watch -- Schwartz/Shepherd Double Team Time!

I like it when the 3d gets all "hand of God" and starts instructing lawyers on how they should behave as professionals.

I say that because the profession is infused with jerky obnoxious blowhards who frequently misuse their limited power to make life difficult for opposing counsel, their clients, and sometimes even the judges before whom they practice.

And that's just at my law firm!

So let's see what the great tag-team duo of Schwartz and Shepherd have to say about about a local insurance company lawyer who went a little too far at a deposition of the insured (who was not represented by counsel at the time):

De Leon v. Great American:

This guy sure knows how to take a depo:

The controversy began when someone stole a truck owned by De Leon and insured by Great American. When it was recovered, it had been damaged and, most significantly, was missing nine large, valuable tires. As shown by Great American’s payment of the entire claim, there was never a legitimate defense under the personal property section of his policy. Unfortunately, however, the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it. At the statement, where De Leon appeared without counsel, Great American’s lawyer, Luis A. Diz, did not even get to the truck and the tires. Instead, he insisted on probing into the details of, among other things, a prior, totally unrelated criminal conviction, and the person with whom the claimant was then living.

 Judge Schwartz quotes at length from the deposition, which is indeed as bad as it sounds.

I've often said I can take a seven-hour depo about literally nothing, but it seems that is exactly what happened here.

Judge Schwartz no likey:

This is completely wrong; because De Leon “refused” to respond to wholly impertinent and improper questions which had nothing to do with the merits of the claim. And we think he was right to do so. To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head. What actually happened is that De Leon took Diz up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid. So far from being improperly employed, the statute was enacted for the very purpose presented by this case—to discourage the games insurance companies play.

In walks Judge Shepherd, to deliver the final knock-out punch and to plead with lawyers to start acting like lawyers (the good kind):

This court recently admonished “all counsel” who practice in the courts of this state that “improper conduct” in the courtroom “will not be condoned by this court.” Chin v. Caiaffa, 42 So. 3d 300, 311-12 (Fla. 3d DCA 2010) (emphasis added). This case involves conduct outside the courtroom, stemming from the theft of a 2000 Freightliner “eighteen wheeler” commercial truck from the premises of an interstate trucking company where it was parked. The police found the vehicle the next day. The insured’s principal claim is that the thieves took ten expensive tires from the truck and replaced them with then-inferior tires. After suit was filed, the trial court abated the action and ordered completion of the previously begun examination under oath (EUO). The same lawyer who conducted the first aborted EUO conducted the second. It lasted over seven hours. It strains credulity to assert—as the insurer does in this case—that a seven-hour sworn statement of a single individual is necessary to the investigation of an $8000 tire loss claim, whatever might be the insurer’s suspicions. “Over-lawyering” is a frequent affliction found in the legal profession. If there is any question concerning whether the insured’s instincts about the interrogator’s purpose was any different in the second EUO than in the first, the doubt can be dispelled easily by reviewing the transcript of the latter EUO.

An attorney is an officer of the court, and he plays his role badly, even outside the courtroom, if he trespasses against the obligations of his professional responsibilities. See Georgopoulos v. Int’l Bhd. of Teamsters, AFL-CIO, 942 F. Supp. 883, 905 (S.D.N.Y. 1996). A careful review of the transcript of the second EUO reveals the role played by counsel during that EUO was performed just like the first—badly. As in the first EUO, counsel’s misunderstanding of the permissible range of inquiry in a sworn statement taken to verify a simple theft loss, whatever might have been the insurer’s suspicions, was palpable. Upon a review of the entire record, it now is undeniable, in my estimation, that—although it should have been—the insured’s claim in this case was not resolvable absent judicial intervention.

I said Good Day, Sir!

Intrepid Insurance v. Prestige:

I note this only because it's kinda cool to see Judge Schwartz grant a summary judgment motion that was never filed below (see footnote 1).

"We Have a Supreme Court that wants to decide what the law is."

That is everyone's favorite village idiot, Rick Scott, in comments to Bob Harden on Monday, according to the DBR (story not online).

When can this guy go away?

It appears Scott is evading compliance with the Florida Supreme Court's ruling anyways:

Less than two months after the Florida Supreme Court ruled that Gov. Rick Scott could not require agencies to get his formal approval for rules they wanted to enact, a spokesperson said Wednesday the office is still reviewing the proposals — informally.

But a few House Democrats said such action may violate at least the spirit of justices’ 5-2 decision.

“Isn’t this like an end run around the court decision, that you”re subverting the court ruling?” Rep. Franklin Sands, D-Weston, asked Patricia Nelson, deputy director of Scott’s Office of Fiscal Accountability and Regulatory Reform.

 Also, Big Rick has absolutely no contingency plans for Florida in the event the US Supreme Court does not "repeal" Obamacare:

Do you have a plan for the state if the Supreme Court says Obamacare is constitutional?
I am hopeful it will get repealed. If it doesn’t get repealed, it will devastate jobs in our state. Our biggest businesses are hospitality and agriculture, and neither of those industries can afford it. It would also devastate small employers.

 That's comforting!

International Lawyers to Descend Upon South Florida!

Are you ready for more than one thousand(!) international lawyers to descend upon us on Halloween?

You better be:

Proud to return to the USA fourteen years after the congress in Philadelphia, the UIA expects more than 1,000 lawyers for its 55^th annual congress from 31 October to 4 November 2011 taking place in Miami South Beach.

During the event hosted in the Loews Miami Beach Hotel, lawyers from around the world are expected to discuss the challenges facing the profession. The programme for this congress includes three main sessions, numerous specific sessions and more than forty working groups which will focus on various aspects of business law, human rights and general legal practice.

The three main sessions will aim to provide answers to the following topics:

-          Is the trial of suspected terrorists just another criminal case?

-       How far should we go concerning life sciences and the biotechnology economy?

-          What are the global issues surrounding professional sports?

Experts from around the world will initiate debates and outline possible solutions. Simultaneous translation will be provided in French, English and Spanish, which are the three official working languages of the UIA.

 Ok, we're very happy to have a bunch of well-heeled foreigners here on the equivalent of a legal Spring Break, getting caught in our unmanned red-light ticket traps, sleeping with our young folk (that's what Uncle Luke says!), and spending lots of "professional development" dough, so I want to make your work easy and answer your very thoughtful questions in advance:

-          Is the trial of suspected terrorists just another criminal case?

Not if he's a very bad American!

-       How far should we go concerning life sciences and the biotechnology economy?

Just far enough to create Kelly LeBrock!

-          What are the global issues surrounding professional sports?

They call soccer football everywhere else!

Now go have some fun, you crazy international lawyers of mystery.

Gerry Spence Gave Legal Birth to Spencer Aronfeld!

But where's the birth certificate:

Aronfeld is also a graduate of the Trial Lawyer's College, a not-for-profit institution created by legendary trial lawyer, Gerry Spence. "I spent a month in Gerry's barn in Wyoming with other lawyers learning how to represent people against big businesses," Aronfeld says.

Spence became a huge influence in Aronfeld's life and career and even hired Aronfeld to travel around the country with him on several of his book tours.

"I credit him with my career, my book and my practice," Aronfeld says. "Gerry taught me to be me. He gets a lot of people trying to be him. I'm not him. I am authentically myself."

According to Spence, the respect and appreciation is mutual. He recalls Aronfeld as a promising new lawyer. "He was young. He was adventurous. He wanted to know what was going on in the world," Spence says. "He was intelligent. He seemed to care about people."

Spence has enjoyed watching Aronfeld grow as a person and as a businessman over the years. "He has very good business judgment. He has made himself available to many different kinds of people. He has grown as a person and as a lawyer," he says. "It's very satisfying to have one of your children succeed."

I kid Spence (a lot) but this is a fantastic overview of his career and a well-deserved honor -- just don't let him hold any sharp knives at the banquet.

New Math: Joe Klock + Notice of Appearance = Judge Seitz Recusal.

We've been tracking the sanction proceedings before Judge Seitz triggered by counsel's filing of an emergency motion to stay one of the Judge's orders.

Since then Receiver David Mandel filed an order to show cause and motion to disqualify the subject law firm, and on October 5th none other than Joseph P. himself entered an appearance to handle the disqualification motion only.

Joe's notice directly led to Judge Seitz' recusal:

Last night attorney Joseph P. Klock, Jr. entered his appearance in this matter on behalf of the law firm and attorneys of Ivy, Miller & Walker, P.A. Klock's clients are presently subject to a motion to disqualify counsel and may also be called as witnesses in this case. Klock is the former law partner and father of the goddaughter of the undersigned Judge. The undersigned Judge is currently planning a bridal shower for Klock's daughter scheduled for next month.

Mazel tov on the wedding Joe!

(Sorry about that, Judge Cooke.)

Judge Cooke Goes to the 11th Circuit!

Did you know the judiciary is now the "feeblest branch"?

(Shh, don't tell some of our judicial brethren).

But yes, apparently there can be a problem with equal access to the courts when you gut funding and fail to fill judicial vacancies:

This means that the courts are limiting access just when Americans need more adjudication. The recession left a vast legacy of foreclosures, personal and business bankruptcies, debt-collection and credit-card disputes. In Florida in 2009, according to the Washington Economics Group, the backlog in civil courts is costing the state some $9.8 billion in GDP a year, a staggering achievement for a court system that costs just $1.2 billion in its entirety. To make up the funding shortfall, courts are imposing higher filing fees on litigants. This threatens the idea of the equal right to justice, says Rebecca Love Kourlis of the Institute for the Advancement of the American Legal System.

Oh well -- I'm sure the Florida legislature will do the right thing.

In other news, Judge Cooke pays a visit to the 11th Circuit and sits on a very interesting securities fraud case:

We hold that the securities laws prohibit corporate representatives from knowingly peddling material misrepresentations to the public -- regardless of whether the statements introduce a new falsehood to the market or merely confirm misinformation already in the marketplace. In other words, a defendant may be liable for fraudulent statements intentionally made that have the purpose and effect of propping up an already inflated stock price in an efficient market.

Now good luck finding a judge to hear your case -- or just pay Paul Siegal to adjudicate the darn thing.

Fourth District Reverses Contempt Finding Lacking Finding of Ability to Comply

The Fourth District Court issued its opinion Wednesday in Harris v. Hampton, reversing a finding of contempt against the mother for failure to enroll the minor child in a particular school, on the basis that there was no finding of ability to comply on the part of the mother, and that the underlying order was insufficiently explicit as to the conduct required.

First DCA Approves Dismissal of Petition to Disestablish Paternity

The First District Court of Appeal ruled Wednesday in Hooks v. Quaintance, and approved the lower tribunal’s dismissal of the Appellant’s Petition to Disestablish Paternity.  The Appellant had suggested that DNA testing constituted “newly discovered evidence” for purposes of Florida Statute 742.18(1), but the Court affirmed the dismissal on the basis that the Appellant was aware that his paternity was in question, and failed to exercise due diligence to obtain proof of same.  The Court also found that 742.18 clearly requires newly discovered evidence in addition to DNA test results.

First District Reverses Finding of Limitation

The First District Court issued its opinion Wednesday in Jackmore v. Jackmore, an unusual case of a foreign decree for alimony sought to be enforced after decades against the estate of the Former Husband.  The lower tribunal found that the statute of limitations applied, which the First District reversed on the basis that Florida’s lack of any such statute was controlling under UIFSA.  The Court pointed out that laches might apply, but required an evidentiary hearing for such a determination, as mere passage of time is insufficient to prove that affirmative defense.

3d DCA Watch -- "Super Technical" Adverb Modifying Adjective Edition!

I get this confused, but an adverb can modify an adjective too, right?

Let's study Judge Schwartz' dissent in Stock Building v. Soares and see if we can find any examples:

With respect, I believe the Court’s analysis to the contrary embodies a super technical approach to the statutory scheme and gives binding effect to the utterly immaterial variances from the ordinary which had no effect upon the substantial rights of the parties.

So Judge Lagoa's approach is not merely technical, but "super" technical -- that's an adverb modifying an adjective, correct?

And the variances are not merely immaterial, but "utterly" immaterial -- is that another adverb modifying an adjective?

Or is this discussion too technical?

Portuondo v. Farm Stores:

You're kidding -- there is confusion over how to apply the offer of judgment statute?

Who knew?

But Judge Shepherd's pithy dissent really leaves a mark:

SHEPHERD, J., dissenting.

I dissent.

This is the judicial equivalent of when I screwed up as a teen and my Dad gave me the dreaded "silent treatment."

It still stings!

How Many "Surs" Are in a Reply?

Good morning!

Let's see what's happening this a.m.

1.  Magistrate Judge Turnoff denies unopposed motion for leave to file "Sur-Sur-Reply" in anonymous blogging case before Judge Cooke.

You know what they say:  replies are like Martinis -- one is not enough and three is too many.

2.  Watch your favorite or most detested Supreme Court Justice actually deign to testify before the rubes in Congress.  Details here.

3.  Cecil B. DeMille-like hearing scheduled in Checking Overdraft this afternoon before Judge King.

DeMille-like is better than Hitchcockian (I think?).

Law Updates for September 30, 2011

Theophile, 36 FLW 2090, 4th DCA, Mere presence - To deny defendant's JOA was error that there was insufficient evidence to be convict defendant as a principal to a robbery.  Questionable behavior is not enough to establish participation, facts presented did not prove or rebut defendant's explanation that he came into possession of a gun unwittingly took it from one of the co-defendant's when asked to do so.  Argument that he was a lookout based on testimony of the victim is rejected where victim said the defendant did not do or say anything to indicate he was a participant and only believed defendant was involved as he rode his bike with the co-defendant before and after the robbery.

Jones, 36 FLW 2120, 1st DCA, Criminal Punishment Code - Record did not support the finding that non state prison sanction would present danger to the public.  Defendant's history of driving  without a license arguably  supports the court's finding that he would continue to do so.  Court did not make sufficient findings and record does not establish that imprisonment in prison rather than county jail would better deter the defendant from continued unlicensed driving.  Trial court findings were speculative.  Remand for imposition of non state instead of prison (8 points).

Bush, Jr. 36 FLW 2123, 1st DCA, No legal justification to later modify bond from 60,000 set by magistrate judge to No Bond by a circuit court judge.  Only with good cause which is by change of circumstances or information not known to first appearance judge.  Information received by circuit court judge was substantially the same as heard by the first appearance judge.  Info was asst state attorney at first appearance did not know to ask for no bond, since armed robbery with firearm, and not agreed to the numerical amount.


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

Herald Writes Interesting Editorial!

Not only that, but they actually express a firm opinion:

Clearly, the Senate is not fulfilling its constitutional duty to confirm judges. Some 58 Obama administration nominees are pending in the Senate to fill the 95 vacancies. Republican senators have complained that there should be a nominee for every vacancy — fair enough — but that does not explain why so many of the nominations have been stalled for so long.

The Senate, of course, has a duty to ensure that nominees are qualified. No one wants a “fast-tracked” judge hearing cases. But it’s hard to escape the conclusion that partisan politics rather than the quality of the nominees is the root of the problem when even consensus candidates must wait for prolonged periods.

This Monday, for example, the Senate is expected to fill some of those vacancies when six of the nominations go to the floor for a vote, meaning there has been a preceding agreement not to block the vote.

That generally leads to confirmation. Of those six, five have been pending since May and June — and all of them were approved with a unanimous vote by Democratic and Republican members of the Senate Judiciary Committee. In other words, there is no question that the nominees have the qualifications to do the job — so why the delay?

Good question -- why the delay?

Here's a list of the six nominees confirmed.

(One good thing -- at least we're not Mississippi.)

FIrst Monday in Yada Yada.....

Hi kids it's Monday so start paying attention to work again.

What did you miss during your weekend-long frolic and detour?

Take a gander at Judge Zloch's PSLRA-based dismissal of the securities case against David Stern's "processing" company.

Six Supreme Court Justices attended Red Mass (one was a Jew!) so that probably means health care is dead.

Actually I liked this part:

The archbishop did not follow in the fiery footsteps of clerics presiding in the past who took the opportunity to lecture the high-profile audience on the evils of abortion, gay marriage and humanism. He dwelt instead on “the importance of the perfection and integration which self-forgetfulness, generosity and humility bring to a life of Christian service.” 

"Self-forgetfulness, generosity and humility" -- probably the top three attributes that come to mind when I think of the South Florida bar!

SD FL CM/ECF to go dark in honor of John Lennon's birthday (that's what they are calling "system maintenance" nowadays).

Talk to me -- what else did I miss?

Vote David Markus Off Survivor Island!

I love that Harvard Law kid but enough is enough.