SFL Friday -- Labor Day Edition

So that was some speech last night, huh? I mean the power, the intensity, the enthusiasm, the stagecraft, I think good people from both sides of the aisle can agree that Senator Dick Durbin quite simply NAILED IT.

Oh, you mean someone else spoke, too? He wasn't bad either, I guess.

Anyways on to a fruitful and exciting weekend. Thanks to that little Kraut Hurricane now swirling to our southwest, conditions do indeed look positive for a simply spectacular weekend, windsurfing-wise.

I do hope you all have a safe, peaceful, and enjoyable holiday, wherever the winds may take you.

BREAKING -- Charles Canady Newest Florida Supreme Court Justice

Charles T. Canady gets the nod:

Canady, 54, is Crist’s first appointment to the state’s high court. He will fill the vacancy left by Justice Raoul G. Cantero III, who resigned earlier this year.

“I consider this to be one of the most important decisions I will make as governor, because the Supreme Court justices make precedent-setting decisions that affect the lives of all Floridians for generations to come,” Crist said.

Canady has served on the 2nd District Court of Appeal since 2002. He also served in the Florida House of Representatives from 1984 to 1990. He was general counsel to Gov. Jeb Bush from 2001 to 2002.

“It is an honor to be appointed to such an important post,” Canady said. “I am grateful to have the confidence and support of Gov. Crist, and I will work to uphold the Florida Constitution and our justice system.”

Let's look at some of the highlights. He helped lead the impeachment proceedings against President Clinton. He voted yes to ban gay adoptions in DC. He voted against implementing the Kyoto greenhouse gas environmental accords. Here's his record on crime:

• Voted NO on funding for alternative sentencing instead of more prisons. (Jun 2000)
• Voted YES on more prosecution and sentencing for juvenile crime. (Jun 1999)
• Voted NO on maintaining right of habeas corpus in Death Penalty Appeals. (Mar 1996)
• Voted YES on making federal death penalty appeals harder. (Feb 1995)
• Voted NO on replacing death penalty with life imprisonment. (Apr 1994)
• Life imprisonment for repeat sexual predators. (Mar 1994)
• More prisons, more enforcement, effective death penalty. (Sep 1994)

He voted no on banning soft money and issue ads. He voted to decrease the gun waiting period from three days to one. Significantly for us lawyers, he voted to limit "excessive" punitive damages and to institute "loser pay" legal reforms.

Umm, congratulations Florida?

DMX Engages in Sexy Pillow Talk With Judge Schwartz

They say the guy has a way with words, and he sure did show it at his bond hearing in front of Judge Schwartz yesterday:

On Wednesday (August 27), X (real name: Earl Simmons) pleaded guilty to his Florida charges of attempted purchase of cocaine and marijuana and was sentenced to time served and a $483 court fine, lawyer Bradford Cohen told MTV News. Had the case gone to trial, he could have faced six years in prison.

But because X's most recent arrest was for missing a pretrial hearing for an Arizona drug case, he will remain behind bars while Arizona authorities have 15 days to extradite DMX to their state, where he'll post bond and be released. If Arizona officials fail to pick him up within that time, he will be released, Cohen explained.

Prior to the plea deal, Judge Lawrence Schwartz denied the rapper's request for bond on Tuesday. When Schwartz set an October 3 court date for the now-closed case, the rapper curtly replied, "I ain't coming back on f---ing October 3."

While X was being led away, Schwartz scolded him. "Oh, that just ingratiated you to me — I've never heard the F-word before," he said, before turning to Cohen and saying, "You need to tell your client that I've heard the F-word before. ... He can send it to me anytime he wants to come in, if that's what makes him happy, but he certainly didn't help his stature any with what he mumbled as he left the podium."

What an f***ing dope.

3d DCA Watch -- When Granny Gets Mad, Run for the Hills!

Hi folks, it's that time of the week, so let's dive right in and see what our merry band of appellate judges to the south are up to in this week's edition of 3d DCA Watch:

Weiss v. Courshon

Hooray! Judge Salter is back, he's sick of crappy pro se pleadings, and he's not afraid to say so in the utmost polite, classy and professional manner that stands in stark contrast to certain cranky more senior judges that shall remain nameless but which have last names that rhyme with "warts."

Specifically, in a longstanding estate battle that SSD's Alvin Davis has been handling since he put on his first bow tie several decades ago, Judge Salter removed the pro se appellant's case from the oral calendar, found her arguments to be frivolous, and affirmed the lower court's dismissal for lack of prosecution with this lovely send off:

Weiss’s intemperate briefs in this case, as in prior cases, urge us to believe her and not the record. She expects this Court to believe, for example, that the circuit court clerk’s office docketed a non-existent notice to show cause why the case should not be dismissed for failure to prosecute; that only the on-line docket, and not the notice itself, alerted her to correspond with the court (over a week before the hearing) and send a local attorney to review the court file for a docketed notice that was not in the file; that opposing counsel somehow tricked the trial judge’s judicial assistant and a court reporter on the morning of the scheduled hearing; that a highly-respected trial judge made an incorrect notation on the order of dismissal regarding a telephone call to a number that Weiss supplied; and that, given another decade or so, Weiss might ultimately come to Florida to prosecute her inflammatory complaint launched so many years ago. Suffice it to say that none of these suggestions is grounded in the record.

As Judge Winifred Sharp noted several years ago in another case involving a “frequent applicant” to her court: “This case reminds me of my grandmother’s final warning and admonition to me and my siblings as children, when we had exhausted her patience with our doings. ‘Enough is enough,’ she would say. And that was the end of it.”

I guess it was better to end that tender and heartwarming anecdote right there, because if I recall that opinion correctly here's what happened next:

"Then Granny would take out her jug of triple-x moonshine, make us get some switches from the cellar, and chase us around the cee-ment pond swigging her white lightning and smacking our behinds until she done nearly whacked our entire backsides back to Tennessee! Sooeee Granny, you're one ornery son of a gun!"

Congratulations Laurie!!

Uber-appellate lawyer Laurie Waldman Ross has been appointed to the 3d DCA Judicial Nominating Commission.

Hey, whaddaya know, sometimes they do get things right!

Vote, You Plebs!

Being high-information consumers, and given that there are judges up for election today, I hope you all don't need to be reminded to vote.

But remember to let your employees out early so they can get to the polling precinct, and maybe all you smart lawyers can even become part of the polling process for November to help make sure the election runs as smoothly as possible -- given the reality that the election is ultimately in the hands of Miami-Dade County officials.

On the various judicial candidates, I take the long view. There are always qualified and less-qualified candidates, and as a practitioner it seems change comes in increments, and even then only in spurts, and that all assumes the change is positive. Can you turn a cruise ship on a dime?

To paraphrase my pal Rummy, you go to the polls with the candidates you have, not necessarily the candidate you want. Either way, go to the polls.

Costly Arbitration Is Cheap and Efficient

That seems to be the message from the continuing money pit that is the Americatel arbitration debacle:

Americatel El Salvador won an arbitration against Compañía de Telecommunicaciones de El Salvador -- or CTE -- to allow greater access to the Salvadoran market. It also got the green light from a federal judge in Miami to collect some $12 million in compensation.

But CTE didn't stop fighting. The company has appealed the arbitration decision all the way to the Supreme Court in El Salvador and is taking the U.S. bout to the federal appeals court in Atlanta.

Riding on the outcome is more than just prying open lucrative Central American telecommunications markets.

The CTE-Americatel matchup is a test of the growing practice of binding arbitration, the very purpose of which is avoiding lengthy and costly litigation. Contracts increasingly contain clauses pledging parties to submit to binding arbitration. Americatel versus CTE is not the first arbitration case to drag on in regular courts, but it has gained widespread attention and could set a precedent for many more pending cases.

But don't worry, says former Greenberger Pedro Martinez-Fraga, now toiling for some out-of-staters at SSD:

''The Americatel case is an aberration in its complexity and not the rule,'' said Pedro Martinez-Fraga, coordinator of the international dispute resolution practice in Florida and Latin America at Squires Sanders & Dempsey.

''There's an effort by courts universally to insure that appellate recourse is minimized,'' said Martinez-Fraga, who is not involved in the case. ``That's just the way the world is heading.''

Nice try, Pedro, but the trends say otherwise. Business-to-business arbitration is increasingly as costly, in some cases more so, than an efficiently managed federal suit.

In Americatel it appears we have the worst of both worlds.

Richard Williams Needs to Speak With His "Electronic Billing System" Manufacturer.

I assume everyone saw the fire fee ruling by Judge Rodriguez, right? The DBR story is here. But the real meat is in the Court's order, which you can review here.

In summary the Court reduced the requested multiplier (which was five) to two, and slashed attorney Richard Williams' lodestar by more than half, finding that many of the verified time entries were not supported by competent evidence. Here's what the Court said:

In addition, during his testimony Mr. Williams testified that the program he was using to enter his time spent on this matter, which he referred to as "an electronic billing system, did not contain any of the data that he had put into it." Therefore, as stated by Mr. Williams, "my fee statement is based on, for the most part, my reconstruction." It should be noted that this fact is not mentioned on any page of the verified fee statement or the affidavit filed by Mr. Williams nor is this fact mentioned to the Court in CLASS COUNSEL'S Supplemental Motion for Award of Fees nor was the fact mentioned to either of the experts brought in by CLASS COUNSEL to testify on their behalf.

Alrighty then! Wow, what does Richard think of having a statement like that in a Court order where you are seeking to be paid five million dollars:

“Everybody connected with it has to be gratified,” he said. “Do I think I should have gotten more money? Of course. But I’m not the decision maker, and you wouldn’t want me to be the decision maker.” . . . .

“My hours were real,” Williams said, adding he didn’t think keeping records as the work was being done would have affected the outcome much.

Let's see, this is a case that was notorious to begin with, and involved highly noxious allegations against Hank Adorno and the City and already generated one scathing 3d DCA opinion. On top of that much of lead counsel's time was reconstructed after the fact.

Why seek a multiplier of five in such circumstances? Oy.

3d DCA Watch -- Wishing and Hoping

I just can't quit you, 3d DCA!

Even though the cupboard has grown increasingly bare over the last few weeks, I turn instinctively to your significantly improved website each Wednesday, hoping for something -- anything -- that could be construed as mildly entertaining or even informative. Alas, the pickings are slim. There have been fewer well-reasoned Judge Salter opinions, less slightly off base Judge Shepherd bon mots, and almost no intemperate outbursts from you-know-who. What fun is that?

So it is with no small amount of sadness that I must regretfully announce that we have finally hit bottom. Yes kiddies, those coffee-slurping silver-tongued robed devils have finally produced a week with not a single meaningful opinion on any topic. Flatline central.

How is that possible, you ask? Well as you know I make it a rule to ignore any opinions with the word "State" in them, so that takes out three opinions right there. Well, four if you count the glorified PCA that involved the Department of Revenue. Not only that, all the actual PCAs also involve the State, making this week a total zero for us civil practitioners.

Oh well, I guess we've finally figured out how to practice error-free law. BTW, is North Carolina really that nice? (Don't answer that.)

Don't worry, though, like a mouse in need of a fix, I will be pressing that lever again next week, just wishing and hoping and thinking and praying and -- oh hail -- you know the rest.

DMX Likes to Shop At NMB Wal-Mart, Apparently Is Also Handicapped.

Well, that was fun!

I guess now we have to go back to our practices, listen to other lawyers, judges, clients, witnesses, actually talk to people in business settings, you know, all that crap. If you all have any good stories about what your firms did during the storm, pass them on.

Still, things could be worse.

Can someone tell me what DMX was doing at aWal-Mart, I guess the one in North Miami Beach:

The twisted saga of DMX's legal woes continues to get more bizarre and impossible to follow as the days go on. But even as multiple law-enforcement jurisdictions across the country vie to get the first shot at the rapper (born Earl Simmons), one thing seems certain: The next few months, and possibly years, of DMX's life will likely find him either sitting in a cell or putting in hard time to get his once-multiplatinum career and chaotic personal life back on track.

The rapper missed another court date on Tuesday (August 19) in Arizona, where attorney Charles Kozelka, the public defender appointed to try his multiple drug and animal-cruelty cases, heard some bad news from the trial judge. Unlike last week, when DMX did not show up to court because of a reported hospitalization, this time he was absent because he is being held in a Miami jail cell following his arrest last Thursday, Kozelka told MTV News.

That arrest was a result of a felony fugitive warrant put out by Arizona authorities following DMX's failure to appear in court last Tuesday to face a marijuana-possession charge from earlier this year. Officials in Miami nabbed X outside a Wal-Mart when they spotted him sitting in the passenger seat of a vehicle that had no license plates and was parked in a handicap spot. A routine check revealed the outstanding warrant.

Because it was a felony fugitive of justice warrant, a spokesperson for the Miami-Dade Police Department said his jurisdiction is not allowed to offer DMX bond. That means the rapper will either sit in jail until October 2, when he will face drug charges in Miami for an arrest in June, or be extradited to Arizona, where he will go in front of Judge Michael Kemp on charges that could land him in prison for five years.

"At this point, no one is taking responsibility for which law is holding him there," Kozelka said, adding that he has had a hard time getting Florida and Arizona law-enforcement officials to explain to him which state's laws are keeping X locked up. "Now I understand that there's a Florida law on fugitives that allows them to give no bond, and the Florida judge said he won't give bond unless the prosecutor here [in Arizona] says it's OK, which is not happening."

Captain Paul Chagolla of the Maricopa County Sheriff's Office said he "certainly" plans to try to extradite DMX to Arizona, but at press time he was not sure when that would happen. "He will sit in jail until he adjudicates the charges there [in Miami], and then we'll pick him up," he said, adding that it's also possible X will be brought back to Arizona first, if the process of trying him in Miami stretches out and causes further delays in the timetable for the Arizona cases.

"I went to the judge with a compromise solution where he could set aside the [fugitive of justice] warrant from last week, and I asked for one week so we can get the ball rolling and get his [Arizona] cases back on track," Kozelka said. "The judge said the bond was reasonable, and if Florida holds him, they hold him. I can tell you one thing: I've never seen this process before on a marijuana case."

Ok, let's review. DMX is outside of a Wal-Mart, allegedly sitting in a car with no plates parked in a handicapped spot. Well it's true parking is awful at that Wal-Mart, so I can understand his frustration. And he's got a public defender in Arizona trying to get out of Miami.

What, he can't afford private counsel? I guess that explains the Wal-Mart. Does anyone know who is representing him here in South Florida?

Only in Miami, folks.

And I'm Not Missing A Thing. Watching The Full Moon Crossing The Range....

Hi kiddies, well Tropical Storm Fay is upon us like some wet juicy French Kiss, shutting downtown office buildings completely, closing the courthouses, messing up depositions, court filings, travel plans, schools, you pretty much name it. She's like that!

I hope you all are ridin' the storm out safe and sound, snuggled in and hunkered down.

Me, I suddenly found some free time and excellent surf conditions on my hands, I think you can pretty much take it from there....

Ed Moss and Metrorail. What Am I Missing Here?

I guess those commie-loving Greenpeacers over at SHB want everyone to go to work in some kind of Ed Begley-styled vegetable car or, worse yet, by public transportation:

Nearly 350 employees at Shook, Hardy & Bacon have signed up for bonuses under a program that encourages use of alternative transportation. But most are support workers rather than associates.

Employees who participate in the new program get an extra $25, $30 or $45 a month, based on their level of involvement, ABAJournal.com previously reported. Bonuses are paid to those who walk, cycle, carpool or take public transportation to work.

Shook chairman John Murphy tells the AmLaw Daily that nearly 350 employees in eight U.S. offices are participating in the program--and 92 percent are support staff. The rest are associates. Partners are not eligible for the program. “They can afford to take care of it themselves," Murphy told the publication.

The firm estimates that the program reduced employee driving by about 180,000 miles in July alone. Shook Hardy hopes to encourage greater participation with some small changes to the program.

Wait a minute -- partners are excluded? So I guess that wasn't Ed Moss riding the rails at Dadeland North yesterday.

Alright then, but I can still treasure the image.

Scott Salomon Not "Evil" Or "Wicked," According to Scott Salomon

They say all news is good news, so by that standard Scott Salomon, Coral Springs attorney and former lawyer for Backstreeter Nick Carter, must be thrilled:

The state Supreme Court issued an emergency suspension. The Florida bar declared that Salomon "has caused and continues to cause great public harm."

"Have you told all your clients that you've been suspended as required by the state supreme court?" Burnside asked Salomon."We've done what was needed to be done, and other than that I have no comment," Salomon said.

"But the state supreme court said that you had to immediately notify all your clients. Have you done that yet Mr. Salomon?" Burnside asked."I have no comment," he said.

Salomon did comment in court papers, saying his suspension is "unconscionable," based on "trivial matters," "frivolous" and a vendetta by the bar. Clients need him, he said.

Clients who talked to NBC 6 said they remained mystified by one thing:"Mr. Salomon, your clients just want to know one thing. Why? Why have you treated them like this?" Burnside asked."I have no comment, but I've spoken to many of my clients and we'll just leave it at that," Salomon said.

"But they say that you've taken their money with almost no work, and in many cases, left some of their lives in ruin," Burnside said."I believe I've answered your questions," Salomon said.

In a later e-mail, Salomon hurled venomous insults at his clients but expressed mild remorse and said he's not "evil" and "wicked," Burnside reported.

Ok then, case closed! You can read more about Scott's colorful press coverage here, including a run-in with intrepid reporter and SFL fave Julie Kay.

Breaking -- Florida Supreme Court Nominees Announced! World Yawns.

OK this list made me weep and not in a good way, but again all I can say is it could have been a whole lot worse:

For Cantero's vacancy, the commission choose: Judge Charles Canady, 54, Lakeland, Second District Court of Appeal; Judge Kevin Emas, 50, Miami, 11th Judicial Circuit; Edward G. Guedes, 44, Miami, attorney; Judge Jorge Labarga, 55, West Palm Beach, 15th Judicial Circuit; and Judge Vincent G. Torpy Jr., 52, Daytona Beach, Fifth District Court of Appeal.

For Bell's vacancy, the commission choose: Judge Ricky L. Polston, 52, Tallahassee, First District Court of Appeal; Judge Waddell A. Wallace, III, 55, Jacksonville, Fourth Judicial Circuit; Judge Peter D. Webster, 59, Tallahassee, First District Court of Appeal.

So all women applicants were rejected, and Frank Jimenez.

Ok, that didn't come out right, but you know what I mean.

3d DCA Watch -- You Say Apodictic, I Say Apoplectic, Let's Call The Whole Thing Off

I was tempted to skip this week's Third DCA Watch simply because the pickings were so slim and because I'm bored out of my wits. Still, because I am dedicated to you, dear readers, I put in the long, hard slog and actually read this week's opinions.

Four or so cafecitos later, amidst a dreary discussion of the standards and differences applicable to a petition for administration of a will and a petition to establish a lost or destroyed will in probate, I was jolted in my chair by this sterling example of legal writing from none other than Judge Shepherd:

As to the former, it is apodictic that matters dehors the four corners of a complaint or petition may not be considered on a motion to dismiss.

Do tell --why you sweet-talking robed jurist, you! It is axiomatic that a judge who can interject both "apodictic" and "dehors" into a single sentence deserves a modicum of a priori praise.

Great Minds Etc.

Hey it's weird how great minds sometimes come up with great ideas around the same time, isn't it? Like whoever independently came up with the idea of a lovable monster family sitcom, hence we had both The Munsters and The Addams Family.

Reading today's paper brought to mind those wacky 1950s monsters with hearts of gold:

Attorney General Michael Mukasey conceded Tuesday that high-ranking Justice Department officials failed to stop illegal hiring practices that favored conservatives over liberals because of what he described as a ''systemic'' problem within the department.

Two recent Justice Department watchdog reports found that department officials under Mukasey's predecessor, Alberto Gonzales, intentionally weeded out liberal-leaning applicants in favor of conservative ones for various jobs ranging from internships to prosecutor slots and immigration judgeships.

Here's a bit more detail on that lovely tale:

An internal investigation concluded last month that for nearly two years, top advisers to Gonzales discriminated against applicants for career jobs who weren't Republican or conservative loyalists.

The federal government makes a distinction between "career" and "political" appointees, and it's a violation of civil service laws and Justice Department policy to hire career employees on the basis of political affiliation or allegiance.

Yet Monica Goodling, who served as Gonzales' counselor and White House liaison, routinely asked career job applicants about politics, the report concluded.

Now Mr. Peabody, let's go back in the WABAC time machine:

A Florida Supreme Court candidate will spend this afternoon being interviewed by the same state panel he attempted to circumvent while serving as a top aide to Gov. Jeb Bush.

Frank Jimenez, who served as Bush’s assistant general counsel, is one of 50 attorneys being interviewed by the Judicial Nominating Commission to fill two openings created by the resignations of Bush appointees Raoul Cantero III and Kenneth B. Bell.

In 1999, the St. Petersburg Times reported Jimenez helped hatch a plan to recruit judicial applicants who were “ideologically compatible” with Bush.

The plan to ramp up the role of politics in the judicial selection process called for a “shadow system of ‘unofficial regional panels’ ” made up of Bush supporters to recruit people interested in becoming judges.

Recruits were not guaranteed a judicial post, but they had to be ideologically in line with Bush. The Times reported Bush seemed to like the idea and sent Jimenez a one-sentence e-mail in response: “Come by and visit with me on this.”

Jimenez, now general counsel to the U.S. Navy, did not return a call for comment by deadline. He is among the high-profile applicants for the openings as Bush’s former deputy chief of staff and brother of former Miami U.S. Attorney Marcos Jimenez, a Miami partner with Kenny Nachwalter.

At the time, Frank Jimenez said the plan was not designed to influence the JNCs.

“This was merely an attempt to bring qualified candidates to the attention of the JNCs,” Jimenez told the St. Petersburg Times in 1999. “There was never any discussion of trying to influence the JNC members.”

Naaah! What kind of idiot would think that?

Well, to be fair, it looks like maybe Frank had the idea first. And one dealt with judicial nominees, the other with Justice Department employees. So they are totally different, really.

You can read more about other great ideas attributed to Frank during the 2000 election here, here and here.

Less Gin, More Coffee?

Sure we drink lots of coffee over here at SFL because we're bored, it makes us "edgy" at depositions, and because many judges and senior partners prattle on and we would fall asleep otherwise, but apparently it has other positive attributes as well:

Probably the most important effects of caffeine are its ability to enhance mood and mental and physical performance. At consumption levels up to 200 milligrams (the amount in about 16 ounces of ordinary brewed coffee), consumers report an improved sense of well-being, happiness, energy, alertness and sociability . . . .

Millions of sleep-deprived Americans depend on caffeine to help them make it through their day and drive safely. The drug improves alertness and reaction time. In the sleep-deprived, it improves memory and the ability to perform complex tasks.

For the active, caffeine enhances endurance in aerobic activities and performance in anaerobic ones, perhaps because it blunts the perception of pain and aids the ability to burn fat for fuel instead of its carbohydrates.

Hmm, I can't say much about enhanced endurance but "an improved sense of well-being, happiness, energy, alertness, and sociability" are all the things I currently drink gin for.

To those of you on your ninth cup, I say "drink up"! I'm ordering a cafecito as we speak....

Welcome, Contestants!

And here they are. Some good, some bad, some in between:

Applicants to replace Justice Raoul Cantero III include three judges from the 3rd District Court of Appeal in Miami: Angel Cortinas, Juan Ramirez Jr. and Leslie Rothenberg. Applications also arrived from Miami-Dade Circuit Judges Gisela Cardonne Ely, Kevin Emas and Israel Reyes.

Other applicants from South Florida are Palm Beach Circuit Judge Jorge Labarga, who blocked a recount in the 2000 presidential election; Frank R. Jimenez of Miami, general counsel of the Department of the Navy and former deputy chief of staff to Gov. Jeb Bush; Manuel Farach, former Palm Beach County Bar Association president; Greenberg Traurig shareholder Edward Guedes of Miami Beach; Florida International University law professor H. Scott Fingerhut of Miami; Paul C. Regensdorf, a Fort Lauderdale shareholder with Stearns Weaver Weisler Miller & Sitterson; and Fort Lauderdale solo practitioner Michael D. Gelety.

Leave your potshots and comments after the jump.

They Write Letters

Carlos Concepcion explains how you can be a hero:

Why pay my employees to take time off from work to assist voters? Because poll workers do not work for political parties or candidates. They take an oath to leave their political opinions and partisan leanings at home.

A poll worker serves all of the voters of our community to make sure that they can exercise their right to vote. Poll-worker service, like jury duty, is the highest form of civic service.

With the change in voting technology that has been receiving so much media attention, business owners, and particularly attorneys, have a responsibility to share their wealth. We have talented employees who read and speak more than one language; energetic people who are accustomed to dealing with the public; people who are computer literate and technology savvy, who can handle stressful situations. These are precisely the people who make the best poll workers.

Carlos, great letter and I completely agree. It's about time you sent Frank Sexton out to get some real work done.

Back in the Blog

Not many land use cases in the last six months, but a few good ones. Still waiting for the Supreme Court decision in the beach/erosion control line case. Good to be back.

Best to all -
Robert

2d DCA - Standing for Cert Review Must Be Established at Hearing

In an opinion certain to create further chaos before local commissions, the Second District in City of Ft. Myers v. Splitt et al, held that certain citizens and citizens groups had not established sufficient standing to maintain a certiorari challenge to the approval of a PUD ordinance.

The City approved a PUD. Neighbors and activist groups opposed it at the hearing, then brought both a certiorari challenge and a 163.3215 consistency challenge, which was later dropped.

The City claimed before the circuit court that the various petitioners had not demonstrated facts sufficient to establish standing under Renard v. Dade County for determining whether special damages are present. The Petitioners disagreed. The Circuit court found that the 163.3215 definitions of affected parties governed and ruled for the Petitioners.

The Second DCA found that once the consistency challenge was dropped, the Renard standing test applied, and that the facts in the record could not establish standing per Renard. The Court found:

We reject any suggestion that Mrs. Splitt et al. had standing even under
the more restrictive requirements of Renard and that the circuit court's failure to
apply the correct law therefore was harmless error. Standing under the Renard
special damages test is typically based on some impact on the litigant's
interest as an owner of property. See, e.g., Kagan v. West, 677 So. 2d 905,
908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So. 2d 1165,
1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306
So. 2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that
if the circuit court had applied the correct law, it would have determined
that Mrs. Splitt et al. established their standing under the special damages test

Emphasis added.

Two critical problems will be accentuated by this decision as written. First, where a local ordinance does not specify who is a party and who has standing to appeal, a bunch of time will have to be spent establishing standing facts before the local commission. You can just see the issues - neighbors will quite properly start demanding 20-30 minutes so that they can enter sufficient facts to establish standing/party status.

Second, the Second District was clearly led into mis-stating or mis-interpreting the Renard rule as being somehow tied to "ownership" when it clearly was not. The Renard test turns on whether the complaining party can establish an interest that is protected by the ordinance involved, and affected by the decision, to a different extent than the community at large. Renters and frequent users of property (or roads, etc.) affected by a decision could establish such interests. Furthermore, nothing in Renard would prevent associational standing as otherwise established in Florida law.

2d DCA - Code Enforcement Costs/Liens - Strictly Construed

In Stratton v. Sarasota County, (which is a partial end to a long sad story), the 2d DCA held that the costs that the County could recover pursuant to Code Enforcement proceedings under Chapter 162 were strictly limited to the costs described in the statute. Essentially, the County tried to collect for administrative management/overhead costs in excess of the actual costs involved and the Court said no.

But the important issue is that the Court upheld the meaning of Article I, Section 18 by limiting Sarasota County's ability to levy fines in the code enforcement process to those expressly permitted by the statute.

A Totally Useless Annexation Decision

While the participants surely understand the impact of the followign opinion, I'm sure that the rest of us don't.

Presumably, Hernando County lost before the circuit court and then won before the Fifth on the basis of the McBride case - which dealt with "compactness" as a criterion for annexation (not "pockets"), but without much explanation.

Here's the entire opinion:

Petitioner is challenging two annexation ordinances on the basis that they
create an impermissible “pocket” of unincorporated area within the municipal
boundaries. Concluding that the lower court departed from the essential
requirements of the law, we grant the petition and quash the lower court’s
order. See City of Center Hill v. McBryde, 952 So. 2d 599, 603 (Fla. 5th DCA
2007).
PETITION GRANTED; ORDER QUASHED.

The Fifth keeps behaving in very unpredictable ways in these cases. Compare its treatment in the City of Cocoa case. One can only conclude that the treatment one of these cases gets in this District is totally dependant on the panel you pull rather than the facts of the case.

Fifth District: Finder of Fact Bound by Stipulations to Facts

In an opinion that may be important to attorneys settling disputes over land use issues, the Fifth District in Seminole Electric Co-op v. Dep't of Envt'l Prot. remanded a final order denying an electric plant siting permit to the Secretary with directions to enter an order approving it.

The long and short is that pursuant to certain provisions of the Siting Act, all the parties to an administrative proceeding entered stipulated facts that covered all of the relevant criteria set forth in the Act. The Secretary (whether for political or policy reasons, we don't get to know) tried to remand it to DOAH to get "more facts". When it was pointed out that the Act didn't permit this, the Secretary denied the permit, claiming that the "sparse record" didn't allow the required findings.

The Fifth reversed. The Court found that the stipulations were binding and were complete as to all the required findings. The Secretary could not reject the stipulated facts as insufficient or incomplete when the agency below and the other parties had found them complete, and based on the stipulated facts, there was no basis not to grant the permit.

This is a roadmap for settling other cases that end up in quasi-judicial hearings. While under Chung and other "contracting away the police power" cases, the local government can't enter a settlement agreement that promises that a permit will be granted, it CAN enter a settlement as to all the stipulated facts that will govern a decision (including statements, for example, that the staff finds the application consistent with all elements of the comprehensive plan). This effectively leaves the decision making body with no discretion to deny the permit.

Decision -Maker Can't Testify in Matter

In Verizon Bus. Svcs et all ve Dep't of Corrections et al, the First District reiterated a simple proposition that seems to escape courts reviewing local government decisions: it is a fundamental violation of due process for an administrative decision maker to also provide testimony (evidence) in the matter decided.

This case involved a bid dispute in a matter where the Secretary made the bid determination. The challenger (disappointed bidder) took the Secretary's deposition. The ALJ recommended dismissal, and the Secretary (rather than an appointee) issued the final order of dismissal. The aggreived vendor appealed and the First District reversed and remanded for a decision by a neutral appointee, noting that there is no no way that a decision maker can impartially reveiw a decision based on in any part on his or her own testimony (this is the Ridgewood Properties principle). The Court also noted that this was a violation that survived the failure to raise it before the tribunal, because it is fundamental.

How basic. How simple and obvious. How lost on courts reviewing local government decisions, where the commissioners chime in with their own views of a matter or statements of fact regarding the petition - often after the record is closed - in making decisions. This case should be cited when challenging decisions where a commissioner makes prejudicial or other statements on the record that are relied on for the decision later.

Fla Supremes - The Governor Can't Sign "Compacts" - Separation of Powers Still Rules in Fla.

In Florida House of Representatives v. Hon. Charles Crist, the Florida Supreme Court exercised original jurisdiction (writ of quo waranto) to hold that the Governor's approval of a gambling compact with various tribes was outside his constitutional authority because the compact permitted violations of state law.

The Court held that even under the apparent federal authority, the gambling permitted bythe compact was prohibitted by legislation, and the governor therefore had no power to enter such a compact. The Court did not reach the question of whether or when the Governor could sign a compact that did not otherwise directly violate state law; or whether such a compact would have to be ratified first.

On one hand, this is a fairly bread and butter separation of powers case. On the other, it demonstrates that we all need to become way more familiar with the writ of quo waranto - I suspect that we will be seeing it more often as a way to challenge the authority of executive actors to take certain actions (as beyond their delegated authority, when the APA doesn't control it), and perhaps against local governments to prevent actions that violate state law.

Fla Supremes - Administrative Officers Can't Challenge Constitutionality of Statutes

In The Crossings at Fleming Island CDD v. Lisa Reinhardt Echevarria et al, the Florida Supreme Court issued a well-reasoned opinion that Property Appraisers can't challenge the constitutionality of provisions of state law governing appraisal of property. The problem: understanding the scope of the decision in other contexts.

It has long been held - mostly in cases involving taxation statutes - that a "ministerial officer" cannot challenge the constitutionality of a statute that the officer must implement. The reason - to avoid chaos and executive nullification of legislative acts. Some question had been raised whether a tax appraiser could raise the constitutionality of a provision "defensively" - as a defense to a challenge to a decision by the Appraiser or Value Adjustment Board. Here, the Court put those cases to bed.

The problem: what about a city/county commission challenging the application of a charter provision? a proposed charter provision? an ordinance proposed by initiative? What about "as applied" challenges rather than facial? And can a local government - which is not a "ministerial officer" of the state -- challenge a state statute as violative of the home rule or other provisions of the state constitution?

These issues are not addressed - but I suspect that they will be in the future.

Fla Supremes: State Agencies Can't Hide from Contract Liability

In Dep't of Envt'l Prot. v. ContractPoint, the Florida Supreme Court held that where an agency is found to have breached a contract, it may not hide behind a statutory provision requiring legislative authorization to pay the judgment.

As the Court handles it, this is a legislative interpretation question involving conflicting statutory intents (the dissent disagrees).

This is very important to anyone who contracts with state agencies (including, perhaps, development-type agreements, easement agreements and negotiated sales) and should be read by all.

I'm also guessing that this will result in a bunch of cases where folks try to find ways to frame cases as being based in contract rather than tort.

Please Governor, Don't Pick A Whack Job. Is That Too Much To Ask?

Now that Charlie Crist is getting everything in order in case new BFF John McCain decides to make him his number two, I'm starting to get a little worried about his Florida Supreme Court picks.

Before Charlie made his swoon, I actually thought he's been a pretty good Governor. And I still think that.

But then he starts having BBQ with McCain in Sedona, taking that wrinkly old dude out to the Everglades, and the next thing you know he reverses himself and now supports drilling off our beaches. Worse yet, he's even getting married! Talk about desperate.

I don't mind a middle-of-the-road Republican, just not some nasty partisan pick to prove yourself to Poppa McCain. The DBR has more on the selection process:

Applicants for the two high court vacancies include some with obvious political connections, starting with 1st District Court of Appeal Judge Clay Roberts.

He was Crist's chief deputy in the attorney general's office and one of his first judicial appointments after becoming governor. Roberts ! also was the top legal adviser to then-Secretary of State Katherine Harris during the 2000 presidential election recount.

Another is 2nd District Court of Appeal Judge Charles Canady, a former Republican legislator and congressman who was a House manager in ex-President Bill Clinton's impeachment trial. He later served as Jeb Bush's legal adviser.

Then there's former Republican state Rep. Dudley Goodlette, who was legal adviser to the Taxation and Budget Reform Commission, and another former Jeb Bush legal adviser, Frank R. Jimenez, who also was on President Bush's recount team during the 2000 election dispute. Jimenez most recently was the Navy's top civilian lawyer.

Most of Crist's appointments to the Supreme Court Judicial Nominating Commission have solid Republican credentials.

They include State Board of Education member Kathleen Shanahan, a former chief of staff for Jeb Bush when he was governor; commission chairman Robert Hackleman, who served! on Crist's transition team; Jason Unger, once a lawyer for the Florid a Republican Party and husband of Jeb Bush's 2002 re-election campaign manager; and Howard Coker, an early Crist campaign supporter.

Crist delayed accepting the Cantero and Bell resignations until June when the terms of three Bush-appointed commissioners expired.

He then named Shanahan, a non-lawyer, and two attorneys, Martin Garcia and Katherine Ezell. That brought Crist's appointees to six, a clear majority.

Ok, it could be worse. Keep your fingers crossed.

SFL Friday -- Bring On the Pain.

So it's Friday, the Dolphins start up tomorrow, and apparently we found an old Jets quarterback to save our team. Welcome back, Ray Lucas!

Meanwhile, although our County can afford to hand over hundreds of millions in taxpayer money to the failing Marlins organization, we apparently can't afford a decent school system, court system, road system -- hail, with gas prices going through the roof it's apparently the perfect time to cut one of the few successful examples of mass transit in South Florida:

If you take the shuttle to get to Miami Dolphins games, you’re going to have to find another way to get there.

After 30 years, Miami-Dade Transit announced Wednesday it will no longer provide park-and-ride shuttle services to Dolphins football games, starting with Saturday’s game.

MDT blames the decision on budget constraints and a new Federal Transit Administration rule that prohibits transit agencies from charging special fares for shuttle services to local events.

Makes sense to me!

Anyways, ever get a tune in your head that won't leave for no apparent reason? "Earworms," they are called. I've had Chris Cornell playing in my head all morning:

Feel the rhythm with your hands
Steal the rhythm while you can, spoonman
Speak the rhythm on your own
Speak the rhythm all alone, spoonman

Spoonman, come together with your hands
Save me, Im together with your plan
Save me

So much to save, so little time. See you all at the game tomorrow, where I'll be wearing my treasured game day jersey. Have a great weekend everyone!

Akerman Lawyers Ponder World Free of Milk, Other Partners

The indignities keep on piling up. First, possibly forced to drink coffee using some type of non-dairy creamer! Oh the sorrow.

Now this:

Merger talks between Wolf Block and Florida-based Akerman Senterfitt have hit a snag, according to a statement Wednesday by leadership at the two firms.

"The chairmen acknowledged that there are issues under continued discussion in this process and that, among them is a client conflict that cannot be discussed publicly, because of client confidentiality," according to the statement issued on behalf of Wolf Block Chairman Mark Alderman and Akerman Senterfitt Chairman Andrew Smulian.

"They said that in business prudence, this was all that the firms were prepared to say about the matter at this time, and that when there was something concrete to say, an appropriate announcement would be made."

Alderman wouldn't comment on the extent of any client conflicts or on any other rumors surrounding why a vote by both firms' partnerships has yet to take place.

Oh no, Akerman is using a late-90s software that writes its statements in Latin! If any of you can figure out what they are saying here, let me know.

I understand intrepid reporter Julie Kay is on the case, and that means we'll know more about this soon. In the meantime, feel free to email any info -- confidentiality assured.

UPDATE: Here is Ms. Kay's article, with more fun statements in some as-yet undetermined language:

Akerman chairman Andrew Smulian and WolfBlock chairman Mark Alderman said they issued the statement reluctantly to head off "rumors."

"While it continues to be the policy of both firms not to comment on rumors, under the circumstance of information finding its way into the media, the firms wanted to ensure that there were no misperceptions of reality."

Uhh, ok.

3d DCA Watch -- "I'll Take A Recusal on Rye, Your Honor."

Isn't state court a hoot? Motion practice can be like waiting in line at the old Corky's or Pumpernik's, lawyers and court reporters stuffed in and around the small hallways, fighting to be heard, listening for your number, hoping/praying the judge has read your brief or at a minimum has the file on her desk.

This opinion today from our coffee-drinking robed brethren to the south epitomizes the sometimes surreal world down on Flagler, in this week's nostalgic edition of 3d DCA Watch:

The trial judge denied the petitioners’ motion to disqualify as legally insufficient, and we agree that the grounds asserted in the motion did not require the trial judge’s disqualification. However, after ruling on the petitioners’ motion to disqualify, the trial judge addressed the merits of the motion and stated her reasons for the ruling. Accordingly, prohibition disqualifying the trial judge is required. See Fla. R. Jud. Admin. 2.330(f) (stating that after deeming the motion to disqualify insufficient, “[n]o other reason for denial shall be stated”); Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) (“When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and has attempted to refute the charges of partiality, he [or she] has then exceeded the proper scope of his [or her] inquiry and on that basis alone established grounds for his [or her] disqualification.”).

So the grounds for disqualification were legally insufficient, but then the judge pipes off on the motion, thus mandating immediate recusal? "Your Honor, can you cut my brisket any leaner"?

Ahh, memories....

Welcome to 1905 -- Bakers' Right to Contract Protected!

This is an old-fashioned Lochner-era beatdown:

No matter how beautiful a condominium complex looks in the brochure, it might behoove any buyer to look at the fine print in the contract based on a ruling by a federal judge.

The brochure showed a 56-story elliptical-shaped building on the water with a nearby marina. The illustration omitted surrounding high-rise buildings. The one- and two-bedroom units were priced from $200,000 to $800,000.

“It is well settled that a contracting party may not as matter of law reasonably rely upon prior written or oral misrepresentations expressly contradicted by a subsequent written agreement,” Seitz wrote in her 10-page order.

The decision is a victory for developer Tibor Hollo and may influence hundreds of similar lawsuits against other condominium builders. Most of the lawsuits aim to recover condo unit deposits under the federal Interstate Land Sales Act and the Florida False Advertising Statute.

Both laws were passed to fight fraudulent Florida swampland sales to out-of-state buyers.

Listen, our South Florida history is precious and we should all work to protect it. Who knew that includes our inglorious past bilking out-of-towners on dubious South Florida land sales? You can read the Court's order here.

It is really quite stunning the apparent view expressed here of how consumers act or make purchasing decisions in the real world. For example, although the promotional brochure used to sell the units touted an "Olympic-sized" swimming pool, the actual contract document specified a pool of exactly 2530 feet.

Also, although the brochure talked about wide vistas and panoramic views, the actual contract language says that buyers are not guaranteed any view whatsoever. Plus, although the brochure has the condo pictured immediately adjacent to the bay with a marina, the actual legal description is of a property one block away from the water. What suckers these buyers are!

Of course when 35 percent of the American public believes that Saddam was behind 9/11 and that Obama is a secret madrassa Muslim, it is perfectly reasonable for these chumps to see somewhere in their contract that 2530 feet is pretty small for a pool or that by pulling out a legal plat description it is quite obvious that their condo unit isn't anywhere near the water and has a beautiful view not of Biscayne Bay, but of Camillus House.

You'd have to be a moron to miss that.

"His Was A Life Well Lived."

What a moving and deeply affecting service today at Temple Beth Sholom in loving memory of Steve Chaykin. Several hundred legal glitterati were in attendance to mourn, grieve, and celebrate the larger than life personality that was Steve. I saw judges, lawyers, lawmakers, and other leaders of our community, all in solidarity at the untimely passing of a great lawyer, father, brother, son, husband, and community leader.

Steve's younger brother Robert shared tearful remembrances of growing up in North Miami Beach, and running away at age 9 to the nearby Royal Castle and 163rd Street Mall, playing in a local band, and even getting into a sibling squabble or two.

Steve's younger sister Robin perhaps is a secret Dylan ranter, as she quoted the lyrics from "You're Gonna Make Me Lonesome When You Go":

But I'll see you in the sky above,
In the tall grass, in the ones I love,
Yer gonna make me lonesome when you go.

UM President Donna Shalala ended her eloquent tribute to a huge UM booster with an invitation to Steve's ten-year old daughter Sydney -- the door is always open for you at the University of Miami.

Sam Rabin -- still shocked as are we all -- told old stories, funny stories, and gave us a picture of a man that he described as a total "mensch."

David Mandel choked back tears as he quietly remembered a dear friend and mentor.

Dan Gelber was funny, quick, and to the point as usual, and ended with some beautiful words to Steve's daughter about a man that he said "took him under his wing and never left."

Bruce Udolf shared several remarkable stories of "Diamond Steve" Chaykin and the heyday of the US Attorney's Office in the 80s and early 90s. He even said that Steve and Bruce were perhaps planning to assist in restoring public trust in the US Attorney's office, and of course everyone in Steve's orbit shared his passion for politics and for a change in the direction of the country.

Steve lived large, packed more into those 57 years than many of us could do in several lifetimes. He will be missed.

One takeaway is to be more professional -- grant a colleague an extension, tone down the smirking, mocking rhetoric, grant the other side a point or two and try to debate matters on the merits if possible. Respect the other side even if the feeling is not mutual. Spend more time, better time, quality time with your family, your friends, and give back some to the community. Make every second count.

RIP

Sue Me, Sue You Blues

What's the cure for lawsuit blues? Sue your attorneys:

Now filling dozens of boxes stacked in the dining room and garage of their suburban Boca Raton home, the legal fight has destroyed the Lansons' lives.

Meryl Lanson wants to prove the legal system -- attorneys, judges and other professionals -- conspired against them.

She sued her former attorneys for malpractice. She filed complaints with the Florida Bar and the Judicial Qualifications Commission. She wrote letters to former Gov. Jeb Bush and Gov. Charlie Crist and copied the missives to the entire Florida Legislature. She has created websites, decrying the legal system and what it has done to her family.

Last month, she filed another federal lawsuit, accusing Miami-Dade Circuit Judge Jeri Beth Cohen of violating her rights to represent herself in a still-unresolved lawsuit that was initially filed in 1999.

`A HORROR'

''Get on with your life? How do you get on with your life?'' she asks, mocking the advice many have given her. ``This is a horror. They destroyed our business. They destroyed our reputation. They took our money and used it to destroy us. They're going to put me back to where I'm entitled to be.''

Those who think she's suffering from psychological problems are partially right. It's just one of the many scars of the prolonged litigation. And, she says, she has a medical diagnosis to prove it.

It's called legal-abuse syndrome.

Oy. Where to start? Although I sympathize with the situation of the Barons, and we all know the strain and stress of lengthy legal proceedings, from what I can tell the bankruptcy court and others in the legal system acted as they should:

While working to help Lanson for years, she has recently entered the legal arena with her. Using the Americans With Disabilities Act, Huffer has asked that Lanson receive accommodations so representing herself in court is less traumatic.

U.S. Bankruptcy Judge Paul Hyman this year approved most of the requests, which included taking frequent breaks, giving Lanson extra time to file court briefs and having an advocate beside her in the courtroom. He rejected her request for videotaping, explaining it's not allowed in federal courts.

At one tense hearing, Miami-Dade's Cohen was equally obliging.

Cohen, having handled drug court for many years, said she is accustomed to dealing with people who have psychological problems, including PTSD, and making accommodations for them.

''There's nothing here that's offensive to me,'' she said of the requests. But it might be difficult to ensure that ``all misinformation [be] immediately corrected on the record.''

WANTS NEW JUDGE

Lanson left the hearing before most of Cohen's comments were made.

Still upset over remarks Cohen made at a previous hearing, in which the judge said litigation was Lanson's ''raison d'tre,'' Lanson insisted she needed a new judge.

She also presented Cohen with the lawsuit she filed against her in federal court in West Palm Beach.

''I don't trust this judge. This judge is biased,'' Lanson said, choking back tears. She then fled the hearing.

Initially, she said, the man who embezzled millions from Baron's was offered a plea deal that would get him probation. When she made an impassioned plea in court, the judge rejected the deal.

David Peterson pleaded guilty and served about 3 ½ years in prison. The Lansons also got about $400,000 in property Peterson bought with the money.

A lawsuit she and her husband filed against their accounting firm for failing to catch Peterson's thievery ended badly, Lanson said. The accounting firm's insurer agreed to settle the suit by paying $2.4 million -- far less than Lanson said they were promised. The attorneys got $600,000 and court costs came to $146,327. After creditors were paid, Lanson and her husband received less than $100,000, she said.

Naturally Judge Cohen is somehow involved. I certainly would grant this recusal motion.

But "ended badly"? What am I missing here? When all else fails, sue your lawyers:

The conclusion of the bankruptcy was equally unsatisfying. Filed as a Chapter 11 reorganization, the Lansons expected to be able to save their retail chain. When the bankruptcy process was over, they were forced to sell what was left of the business.

Convinced their attorneys bungled both cases, the couple in 1999 sued lawyers Marc Cooper, Ron Kopplow and Sonya Salkin. That is the case pending before Cohen.

In April 2007, Hyman said he found no evidence of fraud. ''The court is not without sympathy for the Lansons, who have clearly suffered losses,'' he wrote in a 39-page ruling.

Like Hyman, those representing the attorneys say they sympathize with the Lansons. ''It's sad. It's unfortunate,'' said attorney Robert Klein, who represents Kopplow. ``They went from being the toast of the town to nothing. They thought they would come out with extraordinary sums of money.''

Klein is skeptical about the existence of legal abuse syndrome, but after nearly a decade of litigation, he suspects the attorneys Lanson is suing are starting to experience some of the symptoms.

Pending since 1999? Hit it, Georgie:

Hold the block on money flow
Move it into joint escrow
Court receiver, laughs, and thrills
But in the end we just pay those
lawyers their bills

When you serve me
And I serve you
Swing your partners, all get screwed
Bring your lawyer
And I'll bring mine
Get together, and we could have
a bad time

We're gonna play the sue me, sue
you blues

Swingers and Alan Kluger -- SFL Friday

So it's a slow news day, it's Friday and I'm bored. Is this thing on? Where the hail is everybody -- the roads are clear, the usual nutjobs at the circuit courthouse don't seem to be around, and I can almost walk down Flagler without having to see anybody that I dislike or think is a jerk.

Almost.

A-Rod fanatics, you can see Alan Kluger's "she signed a prenup" filing here. Pretty clean, I think, but what happened to Ira? A haimisher mensch like Ira you want in your corner, believe me. Just ask Shaq. Of course, those who like a different type of swinging will be here.

I know what I'll be doing, how about you? Whatever it is, have a great weekend.