Hail, I have enough trouble getting through the doom and gloom of the morning paper and stock reports; additional distractions I do not need. I guess the more interesting news is that in that small rural town in Maine over 150 applicants showed up for only a couple of positions. Things are tough, people (unless you operate an online dating site).
That lesson, for me anyways -- coffee is for closers.
What else -- Akerman's Michael Goldberg states the obvious, and I see that Judge Eig got reprimanded over some strong remarks he made to a teenager. Personally they don't seem that out of line, but I guess I would want to see more context.
Sheesh, is that all you ever think about? I meant this list of Hands On Miami projects so you can keep yourself busy and help others over the weekend, too.
Don't be surprised, but I'm checking out to do some early Friday windsurfing -- be good folks and have a great weekend!
But buried deep inside the hundreds of pages that make up the pending stadium deal are nine easy-to-miss words that form a stipulation quickly becoming known as The Death Clause.
It says if Loria dies in those seven years and the team is sold, the public's equity in the team is wiped out.
That means if Loria, 68, left the team to a relative, who then sold the ball club, the heir would get the money otherwise destined for government coffers. The amount could be in the tens of millions of dollars.
In that case, taxpayers would lose the only direct financial return on their 81 percent investment in the estimated $634 million stadium, parking and public-works project.
Hmm, that seems pretty bad. Let's hear from Hizzoner:
Through a spokeswoman, Miami Mayor Manny Diaz called the clause a ''technicality'' -- and pointed out that even if Loria dies, it doesn't necessarily mean the team would be sold within seven years.
Yeah, it's really just a bunch of letters, which form into a series of words. Who the hail cares? Besides, everyone knows mumbo-jumbo "technicalities" are totally unenforceable!
Enjoy this pretzel logic from the Roger Ebert of baseball, Dave Samson:
Loria insisted on the clause, Samson said. But the debate is much ado about nothing, he added, because he expects Loria to outlive the clause's term.
Well, if it's much ado about nothing, why insist on the clause? And if Samson's now doing Loria's actuarial tables and is so sure he's going to live more than seven years, then he should have no problem dropping the clause?
You can read Linda Carroll's lawsuit challenging the deal on Sunshine Act grounds here.
Though he now lives in a red-brick mini-mansion down a silent, frostbitten cul-de-sac in the Virginia suburbs of Washington, D.C., Alberto Mora is at heart a Miami Cuban. Among the clues are a voracious appetite for debate and the Bustelo espresso he brews for visitors to his sparsely decorated home.
And until recently, you could tell by his politics. When U.S. soldiers invaded Iraq in 2003, he was general counsel for the U.S. Navy, the equivalent of a four-star general. He was a die-hard right-winger who had earned appointments to both Bush administrations.
But this past fall, he voted for Barack Obama.
A pivotal reason: He found the Bush administration’s inattention to human rights law “offensive . . . I’m elated and hopeful,” he says during an interview at his home two days before the inauguration, “that this new administration will lead other countries in establishing global prisoner-treatment guidelines that are even more stringent than those in effect before Bush mangled them.”
You could say this is Mora’s thing. Perhaps more than any other American, he’s responsible for turning the tide on prisoner abuse at Guantánamo Bay. For two years, with memos and heavyweight legal arguments, he waged a quietly vicious inner-Pentagon campaign to stop the torture.
“Mora’s an American hero,” says Michael Gelles, a Navy psychologist who also helped bring prisoner abuse to light. “He created a debate that led to a full reversal.”
Hey, General Counsel for the Navy?
That position sounds familiar....I wonder if the person who eventually succeeded Mora similarly fought just as hard, and put his career on the line, to stop prisoner abuse at Gitmo?
Last year Chief Justice John Roberts Jr. won praise for quoting Bob Dylan in an opinion (a dissent, actually, in Spring Communications Co. v. APCC Services.) Not to be outdone, apparently, Justice Samuel Alito Jr. today quoted at length from John Lennon.
It came in Alito's major ruling in Pleasant Grove City, Utah v. Summum, which redefined monuments placed on public land -- such as a Ten Commandments monument -- as a form of government speech, rather than private speech that can run afoul of the First Amendment's Establishment Clause. Some briefs had argued that if a memorial was to be regarded as a message conveyed by government, the government ought to be forced to embrace the message through a formal resolution.
In knocking down that argument, Alito, 58, makes the point that public monuments can convey multiple messages, or messages that change over time. The Statue of Liberty, for example, came to New York as a symbol of friendship between France and the United States, Alito said, and only later became viewed as a beacon welcoming immigrants.
Similarly -- and here's where Lennon comes in -- the mosaic in Central Park in New York City that displays the word "Imagine" as part of the memorial to John Lennon conveys several messages. "Some observers may 'imagine' the musical contributions that John Lennon would have made if he had not been killed," Alito said, while others might think of Lennon's song by that name, which imagined "a world without religion, countries, possessions, greed or hunger."
Alito then drops a footnote that offers the full text of Lennon's lyrics to the song "Imagine."
You've got to be kidding me! Can't you leave our treasured heroes alone? It was bad enough when Glenn Garvin suddenly became a book critic too when the Herald allowed him to trash Lennon a few months ago, now we have Justice Alito quoting "Imagine" at length? And Roberts quoting Bobby Dylan?
Please, stick to the musical icons that speak to you and the judges and lawyers you travel with -- you know, like Pat Boone and Celine Dion.
Or maybe that great singer/songwriter, John Ashcroft.
Hi kiddies, well that was some speech last night, huh?
Well it was, right up until -- oh god -- that Jindal guy came on my teevee and said he wants to give back all the taxpayer-funded New Orleans reconstruction money, or something like that.
Anyways, our coffee-swilling judicial scribes have been busy. Very very busy. So resplendently busy in their judicial vestments, in fact, they had to have the very senior Judge Schwartz write yet another opinion this week -- perhaps anticipating the DBR's official pronouncement that 80 is now the new 40, at least when it applies to judges.
Speaking of Judge Stettin, he also happens to be in this action-packed edition of 3d DCA Watch:
A bunch of heirs with annoyingly similar names fight over a rich dead guy's trust proceeds. Case gets tried before the eminently senior Judge Stettin and is completely reversed with instructions to enter verdict for opposing side.
Listen, if that teaser gets you excited to know more of this backbreakingly dull opinion, have fun because you're on your own.
Now we're cooking -- Judge Schwartz is in da house!
And by "house," I mean "uncompensated storm sewer":
The County’s justification for the contrary result, which was accepted by the appellate division notwithstanding its acknowledgement that the outcome “seems unfair,” was the desire to preserve the property’s present status as an area into which excess rain water which would otherwise accumulate on the surrounding land is drained onto the petitioner’s. Richard Road’s property is thus forced to act, as it were, as an uncompensated storm sewer for the neighborhood. As a matter of constitutional law, however, a policy such as this one, which is unrelated to appropriate zoning principles, cannot support the action below.
Footnote two is the best part of the opinion:
It may be observed that in this case, as probably in every case, what seems (because it is) unfair also turns out to be wrong.
Hey -- I should have never switched fortune cookies with him last week at New Chinatown!
Imagine if he had used the one I wound up with:
He who laughs last is laughing at you.
So true.
Still, it just doesn't have the same ring, does it?
Galazz, 34 FLW 335, 3rd DCA, suspended sentence, standing alone, is an illegal sentence - power to suspend sentence can be exercised only as incident to probation - trial court properly vacated the plea - to render suspended sentence illegal, it would be necessary to add term of probation
Chen and Fifnje, 34 FLW 339, 2nd DCA, Anticipatory warrant - U.S. v. Grubbs, 547 U.S. 90(2006), long opinion for your review, ruled for the state that anticipatory warrant need not specify the triggering condition but need only id the place to be searched and the persons or things to be seized, and supporting affidavit must give the magistrate with sufficient info to evaluate where there exists a fair probability that contraband will be found at the place to be searched if the triggering condition occurs and if there is pc that the triggering condition occurs - Controlled delivery case
Wright, 34 FLW 344, 2nd DCA, motel room - exigent circumstances - although def was suspect in domestic violence case and was believed to be violent and armed, there were at least five officers at the motel and another two plain clothes units monitoring the area, no indication that the def was aware of the police presence outside the hotel, and state did not show there was insufficient time to secure the warrant before the officers opened the door and ordered the def out of the room to effectuate his arrest
Almond, 34 FLW 372, 1st DCA, failure to register as a sex offender after change of address - hearsay - error to admit registration forms and def application for a driver's license where none of the documents were self-authenticating business records, records custodian was not present to testify as to their authenticity and not public records exception to the hearsay rule - error to admit testimony of the deputy that he verified that the def did not reside at his address after speaking to a resident at that address, he located the def after speaking to his girlfriend, that the def was residing at a different address based on info he gathered, knew he was required to register based on info he received from FDLE - hearsay by inescapable inference
“He came to town referred by a prominent Texas law firm in the late ’80s, early ’90s,” said Bowman Brown, an international banking attorney with Shutts & Bowen. “He was referred to me initially and I met with him.” Stanford wanted to set up an offshore operation with an on-shore presence to sell into Latin America. “He had just been thrown out of Montserrat — he didn’t tell me that — but researching that I see that he has and he wanted to set up in Antigua, which received sort of the refuse from Montserrat, which was a pirate banking community until Britain closed it down,” Brown recalled. “He had a bank chartered there and when Britain closed it down, they closed him down.” Then Antigua opened up. “What he wanted to do was just not workable in my view, it was not anything I wanted to be near,” Brown said. “I told him that I couldn’t help him, so he went across the street and found somebody who could and set up in Miami.”
Well, come on now, tell us!
What nudnick lawyer "across the street" was desperate enough to be retained by this patently obvious two-bit huckster?
But Bowman's once-sealed lips are now sealed again....sort of:
“I saw him [Stanford] in the elevator maybe nine months ago and as he got off the elevator,” Brown said, “he said, ‘Hey, remember me?’ I said, ‘Yeah, sure I do. How are doing?’ He said, ‘Now we have $50 billion under management,’ sort of saying, ‘You dummy, look at all the fees you passed on.’ I thought to myself, ‘I’m sure I’ll see you in handcuffs some day.’ I’m so glad I didn’t get near that guy.” Brown and other international banking attorneys are getting deluged by Stanford clients fearing the worst and hoping that somehow their money can be recovered. “We’re working with maybe 40 or 50 clients at this point, and we’re just at the beginning,” Brown said. “I mean, I’m getting a call every 15 minutes, or people lining up at the door. This at a minimum will probably involve the $8 billion that supposedly was booked in the bank, but it will also involve all of the stuff that was booked in the broker dealer and whatever else he says, if half of it is to be believed — he has under advisement, which is $50 billion. Conceivably it could be in the range of the Madoff thing.”
Well, I guess there's nothing wrong with a little press to drum up some business, especially in this economy, and Bowman's a quality lawyer of course.
I particularly love any war story that burnishes your own reputation at the expense of the reputation of someone else. Like Gore Vidal says, it's not enough to win -- others must fail.
At a ceremony Tuesday, the Dade County Bar Association formally apologized for the two fountains -- stark reminders that the courthouse was once segregated, and that racism was woven into Miami-Dade's legal roots.
''One fountain was restricted to whites. One fountain was restricted to African Americans,'' said lawyer Joseph Serota, who helped lead a courthouse renovation that focused fresh attention on the water fountains.
`THE LAW'
As part of the apology, the Bar Association unveiled a plaque above the old water fountain. It says:
``When the Florida Bar was formed in 1950, there were less than 25 black lawyers in the state.
``These lawyers represented their clients in segregated courthouses at a time when justice was neither equal nor fair, and when racial discrimination was not only countenanced by the law -- it was the law.''
The ceremony, marking Black History Month and attended by dozens of lawyers and judges, was co-sponsored by the Gwen S. Cherry Black Women Lawyers Association, the Wilkie D. Ferguson Jr. Bar Association and the Haitian Lawyers Association.
No one is quite sure which of the two original fountains was for blacks, which for whites.
That's easy -- which one worked?
I'm running out to Court this morning but will be back, closely reviewing 3d DCA opinions, when I return.
From mid-2006 to mid-2007, about 35,000 civil cases were filed in Miami-Dade Circuit Court, according to the Office of State Courts Administrators, or OSCA. The number shot up to 65,000 the next year, and Bailey said the increase is attributable to the spike in foreclosures. “This is a bigger crisis than the 11th Circuit can solve,” she said. Bailey is planning to launch an ambitious pilot project in the next couple months aimed at softening the crunch by funneling foreclosures on homestead properties into mediation by the Collins Center, a nonprofit Tallahassee think tank specializing in dispute resolution. “At the end of the day you’ve still got a loan that’s not being paid, and what are we going to do with it?” Bailey asked. Other South Florida counties have seen a similar surge in filings. Broward’s civil case count went from 27,000 to 51,000 filings, and Palm Beach went from 18,000 to 34,000 filings in the same period. It’s impossible to tell exactly how many cases were foreclosures because OSCA doesn’t track foreclosures independently of civil cases. Judges everywhere have seen foreclosures crowd their dockets, and they’re looking for ways to grapple with the problem.
Actually, I am advised that Judge Bailey has been working with --- yes -- Kendall Coffey --- and a number of other lawyers and organizations to push through a rule change at the Florida Supreme Court level so that the courts can at least get some kind of handle on these filings.
There's no magic bullet here, but at least some form of early mediation with an actual live body from the bank might help alleviate the crisis.
Billy Shields' best line from this excellent article:
Law firms specializing in initiating and prosecuting foreclosure actions are notoriously difficult to reach by phone, even for a judge.....
Hi kids, I hope you have all bought or downloaded Van Morrison's latest -- a remarkable live performance of his first (and perhaps finest) record, Astral Weeks. It's number 4 in music at Amazon and for good reason. Give it a listen.
Okay, we already reported on the Herald's latest idea of a cost-cutting measure -- having its reliably conservative TV critic, Glenn Garvin, write a weekly column on the editorial page. His inaugural column, on the 11th Circuit panel decision on Vamos a Cuba, displayed a stunning ignorance of basic First Amendment law, somewhat surprising given that Glenn ostensibly is a journalist.
His latest column reveals Garvin to be as ignorant of financial matters as he is of the law. Ha ha, Glenn calls the President the "Predator-in-Chief" because he is promoting low-interest loans as a way for the banks to get out of the foreclosure crisis. And according to Glenn they are "adjustable rate," just like the ones offered by the banks that got so many homeowners in trouble:
Through a combination of government subsidies and arm-twisting of banks, the Obama plan will slash interest rates -- in some cases, probably to less than 3 percent -- until a borrower's payments are no more than 31 percent of his gross income . . . for the first five years. Then the interest rate jumps to market levels. A week ago, that was known as an ''exploding adjustable-rate mortgage,'' because so many of the people who took them got financially blown up.
Uh, no they're not. The ones offered by the banks were predatory -- like the credit cards -- because they offered low teaser rates but "balloon," grotesquely above-market rates when the introductory period ended.
But Glenn has never let facts get in the way of a good story.
Oh, and here's an article about (another) cocaine princess and federal court.
Hector A. Chichoni, attorney at Epstein Becker & Green, has been appointed national immigration counsel by ALTA, the Latin American and Caribbean Air Transport Association. In this role, he will advise the association on U.S. immigration and nationality law issues and legal trends affecting the aviation industry.
Hector's my buddy, and this is a nice gig.
So nice, in fact, that I am compelled to sing "Hector Chichoni" to the tune of "Hey Bo Diddley":
Hector Chichoni done had a firm, On that firm he had some cases, Cases here, cases there, Cases, cases, cases everywhere.
During the 1980s, Stanford came calling at the office of Miami attorney Bowman Brown, a respected banking lawyer with the Shutts & Bowen law firm. Stanford needed help setting up a new venture.
"He wanted to set up an offshore operation with an office in Miami that would not be regulated by U.S. regulators," Brown said.
Suspicious, Brown declined the job.
I don't know, the last time I checked isn't that an attorney-client conversation?
Who cares, the guy's sunk anyway:
"It was an open secret in the banking community that the business model wasn't right," Brown said. "If you're paying above market rates and have a small accounting firm in a jurisdiction where they don't heavily regulate banks, and the process involves putting money into a black box and it comes out enhanced ... something is wrong."
About nine months ago, Brown said he saw Stanford in the elevator of his building, and Stanford bragged about the billions of dollars under management. But Brown got the last laugh. Last week, the Securities and Exchange Commission charged Stanford with orchestrating an $8 billion fraud selling high-yield certificates of deposit in his Antiguan bank. The SEC froze the assets of three of the companies Stanford controls: the bank; Stanford Group Co., a broker-dealer; and Stanford Capital Management, an investment adviser.
All Brown can say now is: "I am so glad I took a pass."
See, everyone knew -- except the SEC (and Bowman's clients).
Mine was unexceptional -- windsurfing, food, wine, and Oscars. Yawn.
Don't forget to contribute to Mitch Widom's big fundraiser -- 2009 LexisNexis® Law Firm Challenge – for the 14th Annual Mellon United National Bank Keymorada Invitational Tournament.Make ANY donation to receive a $500 gift from LexisNexis – and your firm’s name will be added to the more than 250 lawfirms that participated in 2008.
You can donate here. Kick in a little for the bank too, they probably could use it as well.
Attorney Jeffrey M. Herman, who brought upwards of 50 negligence lawsuits against the archdiocese, must stop his involvement in the remaining cases and all other litigation after the state Supreme Court found him guilty of professional misconduct.
''Herman shall accept no new business until he is reinstated to the practice of law in Florida,'' the high court wrote in a 20-page opinion.
Herman violated the Florida Bar's conflict of interest rules when he started up an aviation company in the late 1990s that directly competed with a client in the same business -- without disclosing it.
U.S. Sen. Jim Bunning predicted over the weekend that U.S. Supreme Court Justice Ruth Bader Ginsburg would likely be dead from pancreatic cancer within nine months.
During a wide-ranging 30-minute speech on Saturday at the Hardin County Republican Party's Lincoln Day Dinner, Bunning said he supports conservative judges "and that's going to be in place very shortly because Ruth Bader Ginsburg … has cancer."
"Bad cancer. The kind that you don't get better from," he told a crowd of about 100 at the old State Theater.
"Even though she was operated on, usually, nine months is the longest that anybody would live after (being diagnosed) with pancreatic cancer," he said.
To further emphasize his point, Bunning then added:
"Yeah, you heard me -- CANCER! The kind you die from!! Could things get any better?!?"
Good thing he's just a United States Senator and not a legal blogger or a photographer, or he'd sure be in some trouble now!
Maurice Jay Kutner and Anthony Sabatino, listed in court records as Louise Sage Stanford’s lawyers in the Florida case, also were unavailable for comment late yesterday. Their law firm telephone didn’t have an answering machine.
"Their law firm telephone didn't have an answering machine"? Holy hail, did Bloomberg News just report that?
I hope many of you have volunteered to serve as judges in the various student mock trial competitions that we will soon be hosting -- both the ABA National Appellate Advocacy Competition (which will be held in a few weeks at Rump's joint) and Miami-Dade County High School Mock Trial Competition (which takes place next week at the Knight Center) need qualified volunteers.
Of course, some workplaces aren't keen on having dogs or private dance parties during the day, so office workers with online access find Internet distractions. Gretchen Doores, a senior account executive at Greenough Communications, lets herself check her social networking profiles and chat with friends for a few minutes. After she's had some virtual recreation, she's ready to go back to work.
You mean bored office workers sometimes fool around on this thing? You learn something new every day.
So I hope you all were at Uncle Miltie's judicial fundraiser last night. I thought it was a good showing for a good guy who will make a more than good judge.
That's why I was thrilled to read this DBR story by Alana Roberts on how some Florida firms are weathering the depression and in fact faring better than some national counterparts.
No, not because it contained partially good news for some South Florida lawyers, but mostly because it featured SunTrust's law firm private banker Laura Kaplan:
But the regional, mid-market firms such as Florida’s legal industry leaders are faring better than firms with headquarters in cities like New York, which relied more heavily on structured finance and other declining practice groups, said Laura Kaplan, Coral Gables-based managing director and head of SunTrust Banks’ private wealth management legal specialty group. “In this type of economic environment, you see the firms that are faring best are the ones that have diversified practice groups,” she said. “Because they’re less dependent on the large multinationals, they have a more diversified middle-market client base, and they have a much more diversified revenue stream not only in the type of work they do but also the type of clients they have in their portfolio. Their ability to diversify downstream with smaller clients is helping them fare better.”
Note to Scott Dimond -- review Laura's photo carefully, this is how you are supposed to get ready for a DBR photoshoot.
I see Judge Huck refused to enjoin Santander from contacting their Madoff-affected clients and offering individual resolutions:
About 70 percent of Banco Santander SA customers offered compensation for losses linked to Bernard Madoff have decided to accept it, lawyers for Spain’s biggest bank told a Miami court.
Clients of the Santander, Spain-based bank are agreeing to the offer because it gives them “something in hand, they are getting something today,” Sam Danon, a lawyer representing the company in a suit filed by investors in federal court in Miami, said at a hearing today.
. . . .
U.S. District Judge Paul C. Huck in Miami refused to order Santander officials to stop all “direct and indirect” contact with clients whose money was invested in products linked to Madoff while lawyers seek to organize investors’ cases against the bank.
Congrats Sam, nice win btw.
Here's the part I like. Contrast the two statements being made about this development from counsel for the putative class based in Madrid, Fernando Zunzunegui, and from Michael Hanzman:
Fernando Zunzunegui, a Madrid-based lawyer representing Santander customers considering claims against the bank over Madoff, is among lawyers and analysts who say the preferred shares it’s offering may only be worth a fifth of the value of the clients’ original investments.
And here's what Michael says:
“I’ve been advising people who call me about the settlement to weigh and decide if it’s a good deal for them,” said Michael Hanzman, a Miami-based lawyer representing investors who have sued the bank over Madoff losses.
Ramirez, 34 FLW 270, 4th DCA, Burden of proof-error for court to allow the state to shift burden of proof to def through its questions and comments implying that the def should have produced photographic evidence and medical records to support her version of events underlying the battery charge. Def did not assert affirmative defense and thereby voluntarily assume burden of proof, instead simply claimed that the battery never occurred, photos that state knew were available were subject to reciprocal discovery and therefore equally available to the state
Cox, 34 FLW 292, 2nd DCA, Agg child abuse - conviction based on incident in which def, while children were visiting, telephoned children's mother in their presence, launched into angry tirade against the mother and her new husband, rubbed blunt edge of pocket knife along child's leg and stabbed mattress several times, stating that this is what the def would do to the child's mother and her new husband. Insufficient to establish agg child abuse under malicious punishment theory where state presented no evidence that the def's actions were imposed as form of punishment against children - conduct did not involve level of brutality or extreme pain and suffering necessary to constitute agg child abuse by malicious torture - conviction was fundamentally erroneous
Barrientos, 34 FLW 304, 2nd DCA, Post 893.101 which eliminates "knowledge" that state has to prove that the def knew substances was cocaine as an element post 5/13/2002, court erred by eliminating word "knowingly" from the first element of trafficking jury instruction where issue of def's knowing possession of cocaine was a disputes issue at trial - new trial required
Curry, Jr., 34 FLW 313, 1st DCA. court erred in not having a Richardson hearing where the state failed to disclose that the witness gave a different prosecutor a tape recorded statement in which she stated the def had confessed the crime to her - entitled to hearing as a matter of law - fact that the ASA who tried the case was not aware of the tape is not a defense - timely disclosure of the tape may have changed defense strategy. Failure to hold hearing was not harmless error.
“They were out to wreck his reputation,” Wade’s attorney Joseph Power Jr. said. “What they put in that pleading is totally false. We’re suing to prevent people from wrecking his reputation and that’s what they did and that’s what they’re doing. That’s not fair play.”
Also named as defendants in the case were: Siohvaughn Wade’s lawyer, Michael Berger, his firm Berger Schatz, and attorney Dorene Marcus and her firm Davis, Friedman, Zavett, Kane, Macrae, Marcus & Rubens.
“I was somewhat surprised they filed the lawsuit,” Berger said “It brings Dwyane Wade’s social life into question. If I were Mr. Wade I would not want that. It will be interesting to know what Mr. Wade’s social life has really been all about.”
Berger said the reason Siohvaughn Wade withdrew the divorce pleading — which he said she has the right to re-file — to “calm matters” between the couple.
“I suppose this brings it back 180 degrees,” said Berger, who would not comment on whether his client will re-file the allegation Wade gave his wife an STD.
Can someone explain Dwayne's legal strategy here? These allegations are awfully difficult to prove, especially as to the lawyers, and now he has put all of this back and forth back on the media frontburner.
Maybe he doesn't know that lawyers buy a lot of the expensive seats at AAA.
DBR reporter Billy Shields does a nice job capturing the feel of this fun hearing before Judge Stettin yesterday:
“I’m not going to give this man a nickel,” the judge said. Wingate “went behind my back.” An angry Stettin repeatedly told Rivkind at the hearing. “I see Mr. Wingate peddling these cases in return for your firm signing up to pay him some money, that’s what I see.” Attorney Peter Sotolongo filed court papers Friday saying the three-way fee agreement “had been vetted, sanctioned and explicitly approved by Mr. McGrane and The Florida Bar” after Wingate’s departure. McGrane of McGrane Nosich & Ganz in Coral Gables said at the hearing that the first time he ever saw the agreement was when Stettin attached it to his order calling the hearing. After the hearing, McGrane said, “There is no provision in The Florida Bar to send up a fee agreement in advance and get approval for it. The Bar doesn’t do that, and that proves his statement is false.”
But then there's this:
Admiralty lawyer Ross Toyne of Toyne & Mayo in Miami offered Stettin a letter dated last March 24 from Rivkind to Wingate and McGrane. In the letter, Rivkind refers to a fee agreement signed by Wingate, Sotolongo and Rivkind, noting Royal Caribbean is entitled to know about the agreement but not its details. The attorneys who signed the agreement were named in the show-cause order. Toyne appeared on behalf of two of the 77 injured crew members whose claims have settled. Rivkind made no reference to Stettin’s order in the letter but said Wingate should file a charging lien with the court. McGrane repeated after Wednesday’s hearing that he saw the fee agreement for the first time when it was attached to Stettin’s order. . . . .
After Toyne handed out the letter, Royal Caribbean attorney Curtis Mase of Mase Lara & Eversole in Miami noted the letter was addressed to McGrane. That would appear to contradict his continued assertions that he had not seen the fee agreement until Stettin attached it to his Jan. 15 order. It remains unclear how Stettin became aware of the agreement.
Oy. Anyone have any idea what's going on here?
I have another court hearing this morning (no, not in front of Judge Stettin) but I'll be back in a little bit.
You know, that glorious moment of the week when the judiciary floodgates open, when the mighty storm systems of justice batter the hapless defenses of all you ham-and-schleppers seeking cover on Flagler Street -- yes get ready for some righteous rage, some Old Testament fury, because our resplendently robed scribes are swilling their coffee like a Category 5 Hurricane this week, oh man oh holy hail, oh....ahh enough already you know the drill:
This is an interesting piece of detritus from the real estate bust. Basically the defendant here bought a pre-construction condo for $271k at something called the "Bentley Bay Condominium development," laid out $52k as a deposit, then turned around and assigned it to the plaintiff for $87k.
HAHAHAHA....oh yeah, the condo went belly-up.
Plaintiff gets original deposit price back in bankruptcy from developer ($52k) but not so happy, so sues defendant for balance on a unjust enrichment(?) and civil theft theory. Defendant didn't respond, default judgment obtained, end of story.
Not so fast:
As we stated in Becerra v. Equity Imports, Inc., 551 So. 2d 486 (Fla. 3d DCA 1989), a default judgment should be set aside when the complaint pursuant to which it was entered on its face fails to state a cause of action. Id. at 488; Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 493 (Fla. 3d DCA 1994). We further noted in Becerra that a default judgment should be set aside where the complaint fails to state a cause of action even in the absence of good grounds for failing to respond to the complaint. Becerra, 551 So. 2d at 488. We stated: “This court, likewise, has held that a motion to set aside a default judgment requires no allegations or showing of excusable neglect where the basis for the motion is that the allegations in the complaint do not entitle the plaintiff to relief.”
Moral of the story: all you trial judges have to hold a mini motion to dismiss hearing before you decide not to set aside a default. Also -- haven't we said that before?
This is a tort action where the plaintiff missed the statute of limitations by three days. But no, says the plaintiff, what about all those emergency weather tolling orders entered by our Chief Judge during the statutory period:
Ramirez argued that certain Florida Supreme Court administrative orders, which were issued after his cause of action accrued, tolled the statute of limitations on his claim. In particular, he argued that the administrative orders, in the aggregate, by their very language operated to suspend the statute of limitations, giving him over thirty additional days to file his complaint. The six tolling orders in question all state that: “In Miami-Dade County, all time limits authorized by rule and statute applicable to civil (inclusive of circuit and county), family, domestic violence, probate, traffic, and small claims proceeding are tolled from 5:00 p.m. on . . . nunc pro tunc.” The orders were all triggered by weather emergencies: two in 2004 caused by Hurricanes Frances and Jeanne; three in 2005, attributable to Hurricanes Katrina, Rita and Wilma; and the last one in 2006, generated by Tropical Storm Ernesto. All the orders recited that weather conditions caused the closure of the courts of the Eleventh Judicial Circuit. All stated that “this danger also may have temporarily impeded the ability of attorneys, litigants . . . in the performance of their duties and obligations with respect to many legal processes .”
To make a long story short, the 3d concludes that the plaintiff never represented that his late filing was due to these emergencies or that he was impeded in any way by these weather systems. He also never alleged that he relied on these emergency weather tolling orders or that he was lulled into inaction by them.
Query: should that be the proper standard?
Also, the 3d holds that there is less or perhaps no authority to modify statutes, as opposed to court rules, so that piece of it must be strictly construed. (Even though the administrative tolling orders by the Chief Judge specifically reference any applicable "statute.")
Yet another example of that ancient legal maxim: Too badus, so sadus.
Wow, are you all following the case of the West Virginia Supreme Court judge who was elected with $3 million in campaign contributions from a coal mining executive who had a case pending before their Supreme Court? And the judge he helped elect promptly delivered the deciding vote that overturned a $50 million jury verdict against the coal company?
But what was interesting to me was the results of this poll cited in the article:
A USA TODAY/Gallup Poll this month found 89% of those surveyed believe the influence of campaign contributions on judges' rulings is a problem, and 52% deem it a "major" problem. More than 90% of the 1,027 adults surveyed said judges should be removed from a case if it involves an individual or group that contributed to the judge's election campaign.
HAHAHAHA. Oh that's rich.
Given those numbers, do you think there is a disconnect between how the public views such contributions, and how judges and lawyers perceive them? Do lawyers and judges even recognize that the public views this issue the way the poll indicates?
Who the hail knows?
Anyways, I look forward to seeing you all at the fundraiser on Thursday.
At the heart of the investigation are CDs issued by Stanford International Bank, which claims to have 30,000 clients in 131 countries. The CDs paid ''improbable and unsubstantiated high interest rates,'' ranging from 11.4 percent to 16.5 percent between 1993 and 2005, and were sold by a web of brokers who collected hefty commissions for touting them, federal regulators alleged. Stanford claimed to invest the CD proceeds to buy safe, liquid assets, but instead invested in real estate and private equity, according to the SEC.
''The Miami operation was an important focal point for international investors, especially from Latin America'' said Bowman Brown, a Miami attorney, who has several clients who bought CDs from the loosely regulated Antiguan bank. ``The consequences, particularly in Venezuela and also in Colombia and other Caribbean jurisdictions, will be significant.''
Stanford's Miami office, which occupies three floors at the Miami Center at 201 S. Biscayne Blvd., has 138 employees, down from about 500 in 2006. Operations include a private client group, corporate affairs and investment banking, Brian Bertsch, a Stanford spokesman, said last week. The company transferred its Latin American operations, which were formerly part of the Miami office, to Mexico City about two months ago, he said. On Tuesday, Bertsch referred requests for comment to the SEC.
Stanford, a U.S. citizen who became a citizen of Antigua & Barbuda 10 years ago, has other Miami ties. He bought the sprawling bayfront Tyecliffe Castle, formally the Wackenhut estate, in Gables Estates in 2003 for $10.5 million.
Finally -- a nice solid bank fraud that is not centered in New York. Take that, Bernie!
Florida is coping with the effects of a failed and expensive food-privatization venture of former Gov. Jeb Bush. In 2001, the state turned over most prison food operations to Aramark Corp., even after Ohio had scrapped a similar experiment, citing bad results.
After seven years marked by numerous irregularities, fines for sloppy service and a state report that flagged the vendor's ''windfall'' profits, Aramark pulled out of Florida prisons last month. The firm said it could no longer make money due to rising prices of bread, milk and other staples amid pressure from the state to cut costs.
A second, smaller company also left: Trinity Services Group of Oldsmar, Fla., had served meals at North Florida prisons, including Madison.
Now that the vendors are gone, the privatization experiment is officially dead, and the state must run an in-house meals program on less money amid the worst budget crisis in decades.
Valdes, 34 FLW 116, New dj test, 775.021(4) (b) (2) prohibits separate punishments for crimes arising from the same criminal transactions only when the statute itself provides for an offense with multiple degrees-, (4)(b)(2) offenses constitute different degree of same offenses with multiple degrees, discharging a firearm within 1000 feet of a person in violation of 790.15(2) and shooting into an occupied vehicle 790.10 same offense does not violate double jeopardy, State v. Paul, 934/1167(J. Cantero-concurrence)
E.A.R., 34 FLW 120, Juvenile case and departure from DJJ recommendation, standard for departures
Rigterink. 34 FLW 132, error to admit inculpatory videotape of police interrogation of def where right-to-counsel warning was defective, it stated that def only had a right to have an attorney present prior to questioning-def was in custody under four-part Ramirez test, long opinion in Murder case
District Court of Appeal
L.B.B., 34 FLW 261, 2nd DCA, error to deny motion to suppress marijuana found on juvenile after arrest for riding a bicycle without a bell, in violation of a city ordinance-traffic offenses related to bicycles are noncriminal violations subject to only civil penalties and individual cannot be arrested for violating a bicycle-related city ordinance-equivalent ordinance previously found unlawful by Florida Supreme Court
Sinquefield, 34 FLW 262, 2nd DCA, Lawful execution of legal duty-police not engaged in lawful execution of legal duty when he attempted to detain def at time when ofc was outside his jurisdiction and acting as private citizen-erroneously convicted of obstructing ofc without violence
Sheesh what a week. I hope you all survived. However, if you're in a morbid Friday the 13th frame of mind you can see a partial list of those attorneys that didn't here (thanks so much for the downer, Brian!).
Given the economic downturn, is passion too in recession? Or will couples fling themselves into each other's arms to compensate for their inability to spend, spend, spend?
Professor Helen Fisher, of Rutgers University, holds this latter theory.
The sheer stress of money worries in general, and fear of redundancy in particular will, she argues, elevate levels of the chemical dopamine in the brain - and dopamine is associated with romantic love.
"Times of stress can trigger feelings of attraction - quite simply, you're more susceptible," she said.
So go out and have some fun this weekend. Hail, you can even show someone you care by volunteering to help out -- there is no greater balm for the soul than that.
Well, it's nearly quitting time and I want to get out there and windsurf before all the amateurs show up and spoil my ride.
In other fun math news, I see how the planned expenditure of Miami-Dade taxes to build that spiffy new Marlins stadium will total $1.8 billion over 40 years. That's just what's planned.
This includes a whoppin' planned county bond repayment of $144 million in 2044.
So when this already obsolete stadium is 32 years old, taxpayers will still be shelling out $144 million for construction that occurred more than three decades ago.
Roberto, Roberto who can I turn to You give me something I can hold on to I know you'll think I'm like the others before Who saw your lawsuit in front of Judge Cohen Roberto I've got your number You need to save our town Roberto don't change your number 4 7 6-7 4 0 0 (4 7 6-7 4 0 0) 4 7 6-7 4 0 0 (4 7 6-7 4 0 0) Roberto, Roberto you're the only lawyer for me You don't know me but you make me so happy I tried to co-counsel with you before But I lost my nerve I tried negotiating with Bruce Greer But Judge Cohen wouldn't let me Roberto I've got your number You need to save this town Roberto don't change your number 4 7 6-7 4 0 0 (4 7 6-7 4 0 0) 4 7 6-7 4 0 0 (4 7 6-7 4 0 0) I got it (I got it), I got it I got your number on my phone I got it (I got it), I got it To save our county call Roberto don't change your number You need to save this town Roberto I've got your number 4 7 6-7 4 0 0 (4 7 6-7 4 0 0) 4 7 6-7 4 0 0 (4 7 6-7 4 0 0)
So, how many of you woke up this morning and found out you were a Super Lawyer? Ahhh, that packet is so cute!
I'm shocked -- shocked -- to learn that the County did not negotiate a very good deal to spend hundreds of millions of tax dollars building a new stadium for the Marlins:
''It's probably not the best deal that has ever been worked out between a community and a team,'' Miami-Dade Mayor Carlos Alvarez said after his State of the County speech on Tuesday.
You think?
Just ask this lady, after learning of an additional $56 million slashed from the schools budget, which has already suffered more than $300 million in cuts this year alone:
Linda Cohen, a 55-year-old reading teacher at North Miami Beach Senior High School, said the plan was ``insult to injury.''
''We're not just talking about two days,'' said Cohen, whose home was foreclosed on two weeks ago. ``We're talking about what it's doing to our families all over the county.''
Hi kiddies, it's that time of the week when our merry band of beloved jurists dispense their short stories of justice, that glorious day when the resplendently robed scribes by the highway swill their coffee, deny their writs, and occasionally wreak havoc with our entire system of equitable jurisprudence, as they do so in this action-packed edition of 3d DCA Watch:
Careful readers may recall we previously covered this holiday gift to FPL, wrapped in a nice bow by the sartorially-sharp Alvin Davis and tenderly placed under the corporate tree by Judge Rothenberg.
This time I want to focus on the unjust enrichment portion of this decision. Here's the factual summary:
Extraordinary Title Services, LLC (“Plaintiff”), on its behalf and on behalf of all Florida Power & Light Company (“FPL”) account holders in Florida, filed suit against FPL and FPL’s parent company, FPL Group, Inc. (“Group”) (collectively, “Defendants”), alleging in its second amended complaint as follows. FPL bills and collects monies from its customers for federal corporate taxes it expects to pay to the United States government. As FPL is included in Group’s consolidated federal tax returns along with Group’s other subsidiaries, FPL’s profits are offset by the losses of Group’s unprofitable subsidiaries, and therefore, the monies collected by FPL for federal corporate taxes are either not paid to the federal government or partially paid and then subsequently refunded to Group by the federal government.
So FPL collects more than it should from its customers for federal taxes, but immediately transfers the overcharged amounts to its corporate parent, Group, which then gets the money back from the feds and never returns any of it to FPL's customers.
Sounds like a plan! Let's see what Judge Rothenberg thinks of this scheme:
In the instant case, the second amended complaint indicates that Plaintiff has absolutely no relationship with Group and has not conferred a direct benefit upon Group. Plaintiff contracted with FPL, not Group, for electricity; Plaintiff paid FPL, not Group; and Group provided no services to Plaintiff. Based on these facts, which are not in dispute, the Plaintiff cannot allege nor establish that it conferred a direct benefit upon Group. Therefore, we conclude that the trial court properly dismissed with prejudice the unjust enrichment claim asserted against Group.
It's on America's tortured brow That Mickey Mouse has grown up a cow Now the workers have struck for fame 'Cause Lennon's on sale again See the mice in their million hordes From Ibiza to the Norfolk Broads Rule Britannia is out of bounds To my mother, my dog, and clowns But the film is a saddening bore 'Cause I wrote it ten times or more It's about to be writ again As I ask you to focus on
Sailors fighting in the dance hall Oh man! Look at those cavemen go It's the freakiest show Take a look at the Lawman Beating up the wrong guy Oh man! Wonder if he'll ever know He's in the best selling show Is there life on Mars?
So let me get this straight. You are advising corporate wrongdoers (and we know they exist -- hi Bernie!) to simply kick up any ill-gotten gains taken from a customer or client directly to its corporate parent, thereby completely insulating the sub and the parent from any liability to the customer whatsoever.
That sounds like a roadmap for how to escape corporate liability, not an analysis of one of the oldest and most flexible forms of equitable relief in all of jurisprudence. Remember, equitable claims -- unlike legal -- are intended to broadly address issues of simple justice not otherwise covered by more formal and rigid legal claims.
The 3d's reliance on that old warhorse, People's National, is similarly misplaced. In Peoples, Southeast was kicking the unjust gains out to completely independent participating banks, not upward to its own parent that owns and controls the sub's balance sheet. The analogy might be apt if the banks were all corporate parents of Southeast, which of course they were not. And if they were -- the decision would have been different!
Judge, can we try this all over again? Pretty please?
