FSC Issues Important First-Party Bad Faith Decision!

The Supreme Rulers of Tally have issued a very interesting opinion on bad faith actions in the first-party insurance context, with a lengthy and well-written history of the doctrine and its development in Florida.

The Court finds that there is no independent cause of action for breach of implied duty of good faith and fair dealing outside the statutory framework:

Specifically, we conclude that under Florida law (1) first-party claims are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes; (2) an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established by section 627.701(4)(a) of the Florida Statutes; (3) an insurer‟s failure to comply with the language and type-size requirements established in section 627.701(4)(a) does not render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable as the Legislature has not provided for this penalty; and (4) a contractual provision mandating payment of benefits upon “entry of a final judgment” does not waive the insurer‟s procedural right to post a bond and stay the execution of a money judgment pending resolution of appeal.

Congrats Raoul!

Trial Court Reversed by Third District for Exercising UCCJEA Jurisdiction

The Third District Court of Appeal ruled yesterday in Durham v. Butler, a case in which the lower court exercised its jurisdiction under the UCCJEA to modify another state’s custody decree.  While the Third District found that Florida did, in fact, have jurisdiction to modify the foreign decree, it reversed the lower tribunal on the basis that this jurisdiction should not have been exercised.  At the time of the application for modification, there was a related action pending in the foreign tribunal, requiring reversal pursuant to Florida Statute section 61.519(1) (2011).

Second District Reverses Finding Under UCCJEA

The Second District Court of Appeal reversed yesterday in M.A.C. v. M.D.H. as to the lower court’s order finding that North Carolina, and not Florida, was the home state of the child in that paternity action.  However, it was undisputed that, while North Carolina may have been the home state as of the date of the hearing, Florida was the home state for six consecutive months prior to the date of filing.  As the lower court applied the former date rather than the latter, the Second District reversed its ruling.

Fourth District Reverses Unequal Distribution

The Fourth District Court of Appeal reversed in part yesterday in Gilbert v. Katz-Gilbert, a case in which the lower tribunal attributed over $200,000.00 in liabilities to one party and less than $2,500.00 to the other.  The lower court did not allocate the assets to make up for the unequal distribution of liabilities, or make findings justifying an unequal distribution as required by statute.  On remand the court was instructed to either reallocate the debt or else make findings justifying the unequal distribution.

3d DCA Watch -- Well Well Well?

Well well well let's first wish Judge Ramirez congratulations again for his service and best wishes in his new role as JAMS mediator.

It was a very nice retirement party -- Rudy Sorondo told a few tales, Chief Judge Wells quoted John Lennon (hey, so did I!), Judge R thanked his family, clerks, JAs and colleagues, in all it was a very lovely event.

Oh, and the Judge's portrait was revealed, very striking:

(Oops, wrong photo!)

I kid -- it was a very nice ceremony and we wish the Judge much continued success.

Speaking of Rudy Sorondo, here he is arguing for the appellants in a case where Judge Manno-Shurr struck the defendants' pleadings based on fraud on the court:

On August 13, 2010, the Bank filed its Motion to Strike, alleging the defendants schemed to defraud the trial court by submitting perjured deposition testimony, suborning and attempting to suborn perjury, and forging corporate documents, all in an effort to conceal the Cohens’ ownership interests in the Corporate Defendants and Offshore Entities. On October 1, 2010, the trial court commenced an evidentiary hearing on the Motion to Strike, and received evidence over a three-day period. After the hearing, the trial court concluded the defendants intended to defraud the Florida court, and struck their pleadings. Upon review of the case law and the voluminous record, we affirm in part, and reverse in part.

Basically, Judge Rothenberg's opinion goes into exquisite detail and upholds the lower court ruling, except as to one defendant (not represented by Rudy).  It ends this way:

While we are mindful of Florida’s strong public policy favoring the resolution of cases on their merits, the judiciary cannot be, and is not, impotent against those wishing to corrupt the litigation process by employing fraud and deception at every turn. Accordingly, we affirm the default judgment as it pertains to the Cohens and the Corporate Defendants because the record evidence establishes, clearly and convincingly, that these litigants have engaged in a massive and unprecedented scheme to defraud the trial court below.

Not a pretty picture (I don't mean the hot tub -- I love that picture!).

If Your Secretary Becomes Indispensable, Fire Her!

 
That's the sage wisdom offered by Englewood(?) attorney Charles Diez, Jr. in the latest edition of the beloved Florida Bar News:

When I joined the firm, he said, “Son, I’m going to give you some good advice.” That advice has stuck with me all these years, and I quote, “Never lie to another lawyer; never even think of lying to a judge; and never have a secretary you can’t fire.”

Ok, the first two I definitely agree with, but Charlie, on the last one -- does your secretary know this?

I'd offer a few more:

"Son, never follow your father into a restroom; when on a plane always sit to the left of Ervin Gonzalez (long story); and never give in. Never give in. Never, never, never, never--in nothing, great or small, large or petty--never give in, except to convictions of honor and good sense."

(Alright, that last one was Winston Churchill -- I modified it to conform to our local discovery practice).

In fact, here's what I believe:

Anyone have any others?

Judge Scola Allows SEC Suit against BankAtlantic to Proceed!

Is this not the most litigious client in Florida?

(Hooray!)

Read on BankAtlantic junkies (or stockholders) and various and sundry securities fraud lawyers/hobbyists.

Sean Kingston Sued By Miami Landlord!

Hi there dear timewasters, did you survive the weekend?

Avoid the naked flesh-eating MacArthur causeway zombies?

(Then you did better than than some former 1300+ attorney law firms.)

Question -- do you know who Miami-born Sean Kingston is?

Well, according to his landlord, Kingston skipped out on his $25k a month Miami mansion, leading to what is known in our business as a "lawsuit":

But according to a new lawsuit, filed in Miami, Sean and his mother -- who was also living in the house -- left behind a trail of destruction ... broken landscaping lights, sprinkler heads, holes in the wall, and broken railing around the waterfront dock.

The landlord claims Sean and his mother caused $21,397 in damages to the property -- but that's just the tip of the iceberg ... because when they suddenly left the house in October, they allegedly breached the rental agreement by taking off before the lease was up.

Wonder who the hip-hop star will hire to handle the defense?

(BTW, his "Beautiful Girls" video has been viewed more than 72 million times!)

"Our files on these matters have been closed."

Nice bureaucratic passive-speak, but the result is the same:

The Florida Bar has cleared prominent Miami litigators Michael Tein and Guy Lewis of wrongdoing in a dispute over alleged discovery violations in their representation of two members of the Miccosukee Tribe.

A Miami-Dade Circuit grievance committee found no probable cause Wednesday for disciplinary proceedings against Tein and Lewis, partners at Miami-based Lewis Tein. Lewis is a former U.S. attorney for the Southern District of Florida. Tein is a former federal prosecutor.

Have a great holiday weekend!

Wait, let me rephrase -- It is hoped that your weekend on this holiday is one of enjoyment!

Florida Supreme Court Amends Family Forms

The Florida Supreme Court issued a 201 page opinion amending the approved family law forms yesterday, the full text of which is located here.  Virtually all of the forms have been updated to conform with recent changes in the law, but the changes appear to be very minor.

Fifth District Examines Standard of Review

The Fifth District Court of Appeal issued an opinion today in Schwieterman v. Schwieterman, first spending time to address the appropriate standard of review as to the lower tribunal’s adoption of a parenting plan.  The Former Wife contended that, as the lower court mistakenly believed there was a presumption in favor of equal timesharing, the ruling constituted an error in the application of law, requiring a de novo review.  The Former Husband, on the other hand, argued that abuse of discretion was the more appropriate standard.  The District Court found no evidence that the lower court had applied a presumption in favor of equal timesharing when it granted that relief, and as such found that a de novo review would be inappropriate.  In reviewing the judgment only under the abuse of discretion standard, the Fifth District affirmed the timesharing provisions.  However, as to provisions in the parenting plan which essentially appointed the Former Husband’s parents as decision-makers in the event of an emergency or deadlock, the Fifth District agreed with the Former Wife that these provisions interfered with her parental rights, and that in the event of a deadlock the dispute must be presented to the trial court.  The Fifth District also found error in a requirement that the Former Wife provide notification of medical appointments not to the parents of the Former Husband.  The Court reversed as to these issues alone.

This Is Wrong For 40,000 Reasons.

 
Hey it's a long holiday weekend -- is anyone even around today?

First District Court Reverses Equitable Distribution

The First District Court of Appeal reversed today in Vanetten v. Vanetten, a case in which the lower tribunal only valued the parties’ liabilities and one of their assets due to the limited evidence provided for that purpose.  The lower court divided the asset equally, and the liabilities unequally, without any finding supporting an unequal distribution.  This mandated reversal.

Is it Rolling, Bob?

Happy Birthday Bobby D!!

Ho Hum. So Cincinnati Reds Pitcher Aroldis Chapman Allegedly Turned Cuban Informant to Throw Someone in Cuban Prison.

Cincinnati Red Aroldis Chapman will have plenty to talk about when he comes to Marlins Stadium -- this new suit before Judge Altonaga that accuses him of collaborating with the Cuban government to put the plaintiff in a Cuban jail, where he has been badly mistreated and even tortured.

Here's the opening paragraph:

Plaintiff CURBELO GARCIA is a Cuban citizen, who is serving a 10-year prison sentence in Cuba, under inhumane conditions, for a crime he did not commit because of Defendants’ false denunciation to officials from the repressive Cuban Departamento de Seguridad del Estado, Departament of Security of the State, (herein after “DCSE”) and because of the false testimony Defendants presented against Plaintiff at a sham trial, which followed no rules of evidence or due process, and which was deliberately skewed against Plaintiff. Plaintiff’s treatment in prison is cruel, degrading, unsanitary, and tortuous.

Ok, that sounds kinda bad.

Chapman's agent had no comment (the guy's busy, what with Chapman's recent arrest and now this).

Second District Affirms Denial of Alimony

The Second District Court of Appeal ruled yesterday in Payne v. Payne, a case in which the parties sought dissolution of a seventeen year marriage, and the Husband appealed the denial of his request for permanent alimony.  The Court found that, while the presumption in favor of permanent alimony was certainly invoked, this was insufficient without a showing of need on the Husband’s part beyond his own capacity to earn.  The Court did, however, rely on the parties’ disparity in earning power and assets to reverse the denial of attorneys’ fees to the Husband.

3d DCA Watch -- For Those Not Paying Attention, Here is the Summary Judgment Standard.

Hi there, no time for chit-chat let's get to it:

Judge Shepherd, the king of understatement:

As we have stated on more than one occasion, on a motion for summary judgment the burden of proof is on the moving party to show there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.

At least three times, for sure!

Miccosukee Tribe v. Bermudez:

This is a permutation of the underlying case before Judge Dresnick in which Lewis Tein and the parties are battling over whether there are collectable assets and who is truly paying for the two tribal members' defense.

At issue is whether the Tribe's GC can be deposed because he injected himself into the litigation by providing checks that allegedly show the Tribe has been paying for the defense of the tribal members all along, which may be contrary to certain representations made in the trial court.  The defendants deny this and have affidavits from Billy Cypress and others saying these funds were charged against their distributions or are advances on future distributions.

Regardless, here is Judge Shepherd's general summary of the proceedings:

There have been no fewer than twenty post-judgment motions for sanctions since the judgment was rendered, including criminal contempt, slung by the parties’ counsel against each other under the guise of the parties themselves.

That's interesting -- what accounts for the "under the guise of the parties themselves" language -- isn't everything a lawyer does in court on behalf of her client?

The bottom line here is the GC will be deposed and my only question is this -- can I get a video?

Please?

"Jury Deflates Penis Implant Claim!"

 Hmm, not a bad headline but we could probably do better:

"Lost Penis Leads to Lost Case!"

"Damaged Penis = No Damages!"

"Doc Escapes from Mangled Schmeckel!"

Come on people, help me out here -- there's gotta be more.

Actually, the anesthesiologist defendant may have put it best:

"The only cow to milk was me."

Note to Spence -- hard case (seriously, no pun intended!).  Clients were deported, this D was the last doc standing etc....

You did your best, this is why you became a lawyer, and now you move on and live to try another case.

Congrats to Jay Chimpoulis for a big victory for his client.

Can the Bar Regulate Private Lawyer Referral Services?

That's the question raised by this interesting complaint filed by Greenspoon Marder senior partner Richard Epstein on behalf of the The Center for Legal Justice, and pending before Judge Middlebrooks:

What does explain The Florida Bar’s action against TCFLJ is a publicly aired animus by the State of Florida Chief Financial Officer Jeff Atwater against for-profit LRS and his intent to “ban the [private, for-profit] services.”

a. In other words, The Florida Bar has made a conscious decision to regulate where it has no authority to regulate, by targeting businesses it (and the State of Florida) views unfavorably, such as TCFLJ, for annihilation, all in blatant disregard of TCFLJ’s constitutionally protected commercial free speech rights and contractual relations.

b. In fact, The Florida Bar News reported that The President of the Bar publicly announced his intention to reign in private referral services, in favor of nonprofit lawyer referral services administered by local bar associations. That is, The Florida Bar is promoting its own lawyer referral services at the expense of legitimate commercial services such as TCFLJ.

BTW, the Center may or may not operate at 866bank.com, which is currently unavailable.

Our Taj Mahal Beats Their Hawaiian Junket!

So the 9th Circuit wants to play that game:

Two senior Senate Republicans on Monday blasted plans by judges in the 9th Circuit to hold a conference in Hawaii this August that they said could run up a tab of $1 million or more, and includes a schedule of sport fishing, yoga, surfing lessons and Zumba dancing lessons.

 Pikers!

A measly million, and some yoga and surfing -- that's nothing.

Call me when you've got miles of African Sapele wood, 60 inch flat screens and Italian granite -- then you can play in our "sandbox," as the lawyers down here like to say.

I actually think the room rates are quite modest for Hawaii in the summer -- deluxe ocean rooms at the Hyatt Regency Maui for $250 a night?

(Note to Adam Rabin -- I hope you haven't booked our next Bench and Bar meeting yet!)

 Now this is what I call real networking:

First District Court Reviews Challenge to Adoption

The First District Court of Appeal ruled today in F.R. v. Adoption of Baby Boy Born November 2, 2010, a case in which the lower tribunal had dismissed the birth mother’s challenge to an adoption with prejudice on the grounds that she failed to show fraud, lacked any support for her allegations of duress, and that she lacked any allegation that her consent was involuntary.  In reversing, the First District found that the mother’s allegations were properly before the Court, and that there had been sufficient showing of fraud and misrepresentation by the mother, and that an evidentiary hearing was required.

How Can You Mend a Broken Heart?

Hi kids and welcome to Monday!

The Heat won, Magistrate Judge Vitunac retires in style, and it rained all night.

How can you stop the rain from falling down?

RIP Robin Gibb.

The Robin Hood Law Firm

One of the coolest things we get to do as a foreclosure defense lawyers is write checks to clients.  Most clients hire our firm under an arrangement in which they pay us a flat fee each month for the first hour we work on the case and any additional hours are worked on a pure contingency basis.  Under such an arrangement if we want to get paid for the rest of our time we need to win the case and recover attorney’s fees from the bank.  When we get foreclosure cases dismissed or win cases on summary judgment or at trial, we go after the banks and servicers to get paid for the rest of our time and to obtain reimbursement for our clients for the attorney's fees they previously paid. 

Redacted check issued to client after firm obtained dismissal of Wells Fargo's foreclosure case and obtained a judgment against the bank for attorney's fees.

If you scroll though our blog you will find quite a few attorney fee judgments that order banks and loan servicers to pay attorney’s fees to our firm.   One of our clients asked why we put fee judgments and fee checks up on our blog.  The reason is to let homeowners know that that some of the time homeowners win and that when they go shopping for a lawyer what law firm they choose makes a difference.  Some lawyers who represent homeowners confuse foreclosure delay with foreclosure defense.  To us foreclosure defense means fighting foreclosure cases with a goal of winning a significant portion of our cases and finding solutions through settlement, loan modification, short sale or deed in lieu for the rest of the cases when possible.  Our sophisticated clients want more than knee-jerk, cookie-cutter, stall tactics.  We evaluate our clients' cases with an big picture view that considers asset protection and tax consequences. 

When we win cases and recover fees from the bank our fee judgments are usually sufficient to return to the client a substantial portion for the fees the client previously paid.  This past week, I got to write a check for $2,651.00 to a foreclosure defense client of our Melbourne office.  We obtained a dismissal without prejudice of the client’s case after Wells Fargo’s lawyers failed to timely comply with a Court order.  For the past five months there has been no pending foreclosure case against our client ( the bank has not re-filed), our client has made no mortgage payments, and he has had no legal expenses.  Now the client has received a check to reimburse him for more than half of his prior legal expenses.

To see a redacted copy of the check to our client full size in a separate window click the link below:
Redacted Check 

First District Reverses Judgment of Arrearages

The First District Court reversed today in Gilbert v. Cole, a case in which the parties’ divorce decree allocated support for each child, but their mediated modification agreement did not.  Because of this, the Appellee argued, she was entitled to seek judgment as to arrearages accruing after the older child’s emancipation but prior to the filing of a petition for modification.  The lower court agreed, and awarded arrearages through the date of filing of the petition for modification.  The First District, however, found first that the parties’ mediated agreement changed only the amount of support to be paid, and that the final judgment controlled as to all other support issues.  Next, the First District found that  the final judgment created an allocated support award, 50% to each child.  In addition, the First District pointed out that if there was a miscalculation in the arrearages, the obligor would have been entitled to a retroactive modification prior to the filing of the petition.  The case was as such remanded for the lower court to determine the correct arrearages based on these findings.

First District Court Reverses Denial of Injunction Modification

The First District Court of Appeal reversed today in Ramirez v. Teutsch, in so doing finding that the lower tribunal erred when it summarily denied a motion to dissolve a domestic violence injunction on the grounds of changed circumstances.  The First District found that on a showing of changed circumstances and a showing that the scenario giving rise to the injunction no longer exists, modification may be warranted, and as such an evidentiary hearing was required.

See Jane Work. See Jane Get Fired. See Jane Sue.

Judge Carnes is at it again, starting his opinion with this short declarative grade-school-style "grabber":

A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal.

Good thing the school said it fired her because of the premarital sex, not because she was pregnant.

Wait -- the school's "defense" is it fired her for having premarital sex???

On Sunday, April 5, 2009, Hamilton met with John and Julie Ennis, Southland’s administrator and assistant administrator, to tell them that she was pregnant and to ask for maternity leave during the next school year. During that meeting, she admitted that she had conceived the child before getting married. Southland fired Hamilton the following Thursday, purportedly because she had sinned by engaging in premarital sex and, as John Ennis put it, “there are consequences for disobeying the word of  God.”

Was this 2009 or 1859?

(BTW, most children born in the U.S. are born out of wedlock.)

Unfortunately for the school, discrimination based on a woman's pregnancy is (still) against the law, and there were disputed issues of fact that should have gone to a jury:

Hamilton also presented evidence vitiating the veracity of Southland’s purported reason for firing her—that she had premarital sex. John Ennis testified at deposition that, even though Hamilton committed the sin of premarital sex, “[i]f, in fact, she would have said to us I’m sorry that I’ve sinned against the Lord and this school, we would not be here. We could have gone in another total direction.. . . [But] I never heard her say she was sorry.” But Hamilton testified that after she told the Ennises about her pregnancy:

I became afraid that I had done something horrible. And I went to God in prayer, and my husband and I both together, and asked for forgiveness. And I expressed that to Mr. Ennis. Hopefully, you know, letting him know that I, you know, was remorseful for what had—you know, if I’ve done something so horrible against God. And that God had forgiven me, and I just wanted him to, if, you know, it was such a horrible thing. But it didn’t make a difference.

So, her testimony contradicted John Ennis’ testimony that he had never heard her say she was sorry and that he would not have fired her if she had. For that and the other reasons we have discussed, Hamilton has established a genuine issue of material fact about the reason that Southland fired her. The ultimate issue is one for a jury to decide.

Seems like a nice place to work, and at least the school did everything possible to make this wonderful event in this woman's life a joyous occasion.

I hope the jury remembers that.

"Yes Your Honor, I Scheduled a Deposition at a Donut Shop, Wore T-Shirts and Shorts, and Drew Pictures of Opposing Counsel as a Penis -- Is There a Problem?"

 What does "zealous advocacy" look like?

(See above illustration.)

I like to think this blog can have a salutary purpose on occasion, by shining light on what we do as lawyers, and sometimes encouraging us to live up to the highest ideals of our profession.

That, plus dick jokes.

Luckily, this order from Judge Altonaga disqualifying two attorneys and their firm Morgan & Morgan has all of the above, wrapped in a pretty penis-shaped bow:

Tinkler testified that during depositions he witnessed “Mr. Celler . . . drawing photos of — pictures of male genitalia and showing them to Ms. Schulman, describing Mr. Coupal. I told Mr. Coupal after that was occurring and he made mention about it.” (Apr. 2, 2012 Hearing Tr. 17:2–5). Sorci testified that he observed Schulman “laugh[ing] quite a few times” at Celler’s drawings, and that on break Schulman made a comment that “this is typical Richard [Celler], this is what he does at these sort of things.” (Id. 85:5–10). Tinkler further stated that “during Mr. Schatt’s deposition Mr. Celler was playing the game Angry Birds. He admitted it aloud and was bragging that he had just beaten somebody in Minnesota at the game during the deposition.” (Id. 17:6–9). Moreover, Celler would wear a t-shirt and shorts to proceedings to gain “a psychological advantage.” (Id. 17:11–15). Celler chose Dunkin’ Donuts as the site of depositions against Coupal’s wishes.

According to the order, plaintiff's counsel also wrote a few scorching emails to opposing in-house counsel:

The Court finds multiple instances in which Plaintiff’s counsel have violated this Rule. For example, the email exchange regarding the Tinkler communication contained such choice statements from Celler to Coupal as “you are not a trial lawyer;” “We are not interested, nor are our clients, in settlement discussions with you as long as you are the lawyer on the other side. You are causing your client a great disservice;” and “Nobody on this side of the internet cares.” (Jan. 30, 2012 Email Exchange). Celler himself acknowledges the utter lack of professionalism and impropriety of his emails to Coupal, expressing “remorse and disappointment” (Pl.’s Post-Hearing Br. 2 n.2), but chalks his behavior up to “zealousness on his client’s behalf” and “vigorous[]” advocacy. (Resp. 8–9). Needless to say, Celler’s emails are far beyond (and at the same time, far short of) what zealous advocacy would require.

Good point -- which side of the internet truly cares about this stuff?

3d DCA Watch -- Are You Ready for the Summer?

Yes kids, the bunker-bods are back!

By that I mean the Resplendently Robed Ones are nearly summer-ready, after grueling hours toiling in the mechanical room/gym, performing isometric exercises by attempting to remove sinks and toilets bolted to the bunker walls, and of course shot put, lots and lots of shot put.

CAPTION CONTEST!

1.  "The chicks at FIU call that 'bunker-butt!'"

2.   "Now THAT's what I call Venetian Salami!"

One more?

3.   "All those in favor of reversal please signify by a show of....well, just signify."

So let's get out of the Resplendently Buffed Ones way and move right on to this week's meager civil offerings (hey, you can't develop both your pecs and precedent at the same time):

Portales v. ABC:

Practitioners' note -- if you want to object to a procedure on appeal, you should probably object to the procedure below.

Now let's hit the beach!

Second DCA Reverses Dependency Finding

The Second District Court of Appeal ruled today in S.T. v. Department of Children & Family Services, a case in which the finding of dependency as to the father was upheld without opinion in December of last year, and in which the Court now reviewed the finding that the parties’ children were dependent as to their mother.  The lower tribunal had made this finding primarily on the basis that the mother was in denial as to the father’s drinking and resulting endangerment of the children.  The Second District, however, found that there was no competent evidence to reflect that the Mother had knowledge of any such endangerment, and that her motion for judgment of dismissal should have been granted, and the dependency finding not made.  Judge Altenbernd, specially concurring, made clear that he was not suggesting the prior affirmation of the finding of dependency to the father was in any way incorrect, and made the point that the lower tribunal would still require the mother to take certain actions via the case plan, and that if she did not comply that court still had recourse.

FL Bar Report: Some Lawyers Are Old and Others Have Major Problems.

 The Intrepid One™ reports on the results of a FL Bar commission, empaneled in the wake of the Rothstein debacle, which found -- surprise(!) -- that some lawyers are up to no good:

"Cases like The Florida Bar v. Scott W. Rothstein or the myriad of cases involving mortgage fraud, loan modifications and foreclosure fraud illustrate a changing profession and the need for a lawyer regulation system able to adapt to such cases," stated the report. "Additionally, these types of cases demonstrate a need to provide information to the public about the steps that The Bar already has taken, currently is taking and is planning to take to handle these cases in order to continue to ensure public confidence."

Zzzzzz.

Was the writing of this report outsourced to the Miami Herald editorial board?

There's gotta be something more substantive in there:

But Miami attorney Brian Tannebaum, who frequently represents lawyers under investigation by The Bar, criticized the report as overly focused on public relations.

"The report says to me, 'the Scott Rothstein debacle hurt The Bar. How do we convince the public that we care?' " he said. "The Florida Bar has become more of a consumer protection agency than an agency designed to regulate lawyers."

Probably true but hey, what's wrong with that -- we could use a nice PR agency.

Then there's this:

 "There are many instances where some lawyers work past their point of effectiveness to a period of life where they develop mental and physical problems," stated the report. "This can lead a lawyer who has had a stellar career to lose his or her reputation, practice and resources during the twilight years of his or her career."

Ok, you've just described every senior partner I've ever worked for.

Plus down here nobody ever really loses their reputation -- we've given them too many awards and honors for that.

The Rise of the Russomanno (Part III)

 OFFICERS: 

President Elect - Mary Leslie Smith

Vice President - Herman J. Russomanno, III

Secretary - Jason M. Murray

Treasurer - Jeffrey A. Rynor 

DIRECTORS

Group I:    Eric P. Hockman

Group II:   Monica F. Rossbach, Adam J. Shapiro

Group III:  Stephanie L. Carman, Katie S. Phang

Group IV:  Robert B. Boyers, Steven E. Eisenberg

Group V:    Jerome J. Kavulich, Glenn B. Kritzer

The results have arrived via raven from Westeros, and once again a mighty Russomanno is in the leadership mix -- all is well with the world.

Congrats to the new officers and directors!

(Sheesh, somebody send me some tips.)

First District Reverses Fee Award for Lack of Hearing

The First District Court reversed today in Giovanini v. Giovanini, a case in which the lower tribunal issued an order granting temporary appellate attorneys’ fees based on the parties’ respective memoranda, without a hearing.  The First District Court found that the trial court should not have determined the amount of the attorneys’ fee award when a previous order made clear that determination would be made at a hearing, and that the court was required, absent a stipulation by the parties, to hold a hearing to determine the reasonableness and necessity of the fee.

Hey, It's Just "Bad Luck" My Penis Got Amputated!

 
I have a feeling it's going to be a good day.

Why?

Because the blogger gods have blessed us with this:

An unusual medical malpractice trial opens in a Miami court Monday, one in which a jury will have to decide whether an anesthesiologist can be held liable for a patient losing his penis.

The plaintiff, former Miami resident Enrique Milla, will be testifying at the trial via Skype because American authorities deported him and his family back to Peru last year.

“Mr. Milla lived in Miami for 40 years and worked in the medical supply business and paid taxes,” said Spencer Aronfeld, Milla’s Coral Gables attorney. “It shouldn’t make a difference that he was deported.

“At the end of the day, he has to sit down to pee through a tube.”

In Peru.

He has to sit down to pee through a tube, it's just now he has to do that in Peru.

Oy veh, a deported client testifying by Skype about his amputated penis.

But he did have his penis amputated, for goodness sake!

Still, defense attorney Jay Chimpoulis says bad luck just happens to unlucky people:

“What happened to Mr. Milla was just bad luck,” said Boeru’s attorney, Jay Chimpoulis. “But filing frivolous lawsuits won’t change his bad luck.”

I agree!

BTW, what's "frivolous" about the lawsuit, specifically?

In other news, your wait time to evict that deadbeat tenant is about to get longer:

“It’s awful. They only answer the telephone now a couple of days a week; things take a week or more to get into the official records; judges don’t get files for hearings; the whole thing is a mess,” said Miami civil attorney Michael Feiler. “Overall service has declined drastically — not because of the clerks, who work hard — but because of the lack of staff and the ridiculous workload.”

On the other hand, the cafecito at the courthouse coffee shop is delicious, so it all kinda balances out, right?

Read more here: http://www.miamiherald.com/2012/05/12/2796705/online-hed.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/05/12/2796705/online-hed.html#storylink=cpy

Oral Argument on Appeal -- A Total Waste of Time?

I love the letters page of the Florida Bar News -- it's the only part of the paper where there is an actual voice or opinion being expressed amid the robo-copy of endless announcements, seminars, and proposed rule changes.

In the current issue local appellate attorney Albert W. Guffanti basically says oral arguments are a "charade":

 As regards oral argument, it is my belief that most appellate panels have made their decisions prior to oral argument, reducing oral argument to a charade. Indeed, if the panel has read the briefs and researched the law (i.e., at least reviewed the law clerks’ assessments), there should be no argument, for nothing at the appellate level can change the facts of the case. Similarly, seldom does the applicable case law change just prior to oral argument, in which case a motion to supplement may be filed.

The better practice would have the appellate court request counsel to provide additional development of a particular issue, or brief an issue not presented but of interest to the panel. The court would then receive better-researched, more thoughtful and even, perhaps, enlightened responses, something which is usually impossible at oral argument.

He also laments the increasing reliance on PCAs: 

Also applicable here is the issue of proper use of judicial resources. If the argument that there are too many cases for appeals courts to handle adequately has any validity, then an “adequate” use of resources would result in dispensing with oral argument almost altogether, and spending that time writing opinions, instead of issuing PCAs in over 60 percent of the cases.

Our society, litigants, and our judicial system would be better served by the writing of real opinions, no matter how brief, but citing at least one authority for every issue presented.

I agree with him on PCAs -- the parties deserve an explanation of the ruling, however minimal, and bedrock common law principles of "precedent" and "stare decisis" demand that we provide reasons for our decisions so that those reasons can be applied to future cases.

On oral argument I'm not so sure, what do you think?

You always like to believe your brilliant oratory and silver tongue swayed a judge's mind, but is that more vanity than reality?

Hey Baby, Do You "Meet and Confer" Here Often?

In Miami, back in the old days, lawyers used to meet and confer over drinks at Sally Russell's and inevitably wind up going home with each other's wives.

Hey, it was the 70s!

But like our President we evolved, and by the 80s we had teams of waiting "faxers" who would instantly (well, it took about 25 minutes) send late-Friday nastygrams to opposing counsel, designed to ruin the weekend and necessitate a faxed response on Sunday.

Aah such pleasant memories....

But now we can "meet and confer" by having a Twitterwar, or by pinning mean things about each other on Pinterest, or via my personal favorite -- assembling a guild of World of Warcraft characters who simultaneously attack and destroy opposing counsel in a dungeon.

Either way, the one thing we NEVER do is actually speak with each other face to face.
 
But there's a new Sheriff federal judge in town, and he kicks it old-school:

Apparently, the parties disagree as to whether the Court’s Initial Order requires them to meet and confer in person or whether a telephone conference will do. The Court’s Order provided that, within the time prescribed, “the parties shall meet and confer regarding discovery and scheduling issues, as set out in Federal Rule of Civil Procedure 26(f) and Local Rule 16.1(b).” See Initial Order ¶ 2 [ECF No. 2]. This District’s Local Rule 16.1(b) expressly states that the parties shall meet and confer “in person, by telephone, or by other comparable means[.]”  See S.D. Fla. L. R. 16.1(b)(1). This Court has not ordered otherwise. Accordingly, the parties are free to meet by telephone, if they prefer. The Court has no preference, as long as the conference is conducted in timely fashion and the parties comply with their obligations set forth in the Rules and the Court’s Initial Order.

So WoW dungeon-war it is!!

But then there is this:

This Court is not in the business of babysitting the parties.

Such bright-eyed optimism, and I certainly hope he's correct -- but has he seen how our Bar behaves?

Magistrate Judge Goodman Cites Fat(ter) Elvis!

Actually, I think "fat" Elvis is quite unfair to the Big Man --  I prefer "sweaty" Elvis, "drugged out" Elvis, "velvet oil" painting Elvis, "bizarre Karate-chopping" Elvis, "huge pork chops on your face" Elvis, "crying-at-any-moment onstage" Elvis, these are all much more affectionate terms in my opinion.

Ok, let's get to it.

Question is whether incident reports prepared by a cruise ship vendor operating a bobsled ride.......

STOP -- never go on a bobsled ride.

If you are above the age of 10, you have no business being on a "bobsled ride" in Jamaica or anywhere else.

Sheesh, what is with people!

Anyway, the reports were prepared at the direction of the bobsled vendor's general counsel, and therefore are work product, according to Judge Goodman:

Moreover, Gentry cannot show a substantial need for these documents. Counsel often assume that when opponents withhold documents upon a claim of privilege, that they do so because they are in fact sitting on a smoking gun. Consequently, counsel propounding discovery often suspect automatically that the opponent is asserting the work product doctrine because the adversary is trying to hide significant, adverse evidence3 .

But based on its in camera review, the Court can report that this is not the case here. In fact, despite all the argument on this issue, these documents are not particularly helpful to proving Gentry's allegations. To the contrary, the two incident reports and one email are comparatively innocuous documents which simply report the basic information about the incident -- information which Gentry either already knows or will likely soon know based on deposition testimony obtained during discovery.

Umm, hey judge, didn't you just sustain the privilege?  Then why disclose your opinion about the hum-drum nature of the contents of the reports?  I mean, how much more is there to disclose?

And then there's footnote three:

For a musical reference to this attitude, see "Suspicious Minds,'' a song sung by Elvis Presley. Recorded at American Sound Studios in Memphis, the song was written by Mark James and reached the #1 position on the U.S. music charts on November 1, 1969. http://oldies.about.coe od/elvispresleyhistog/isuspicious minds.htm (last visited May 2, 2012). The song contains the following lyric: "We can't go on together with suspicious minds, and we can't build our dreams on suspicious minds.'' http://- .elyrics.nevreaie/elvis-presley-lyrics/suspicious-minds-lyrics.html (last visited May 2, 2012).

Yes, the location where it was recorded (Memphis), the particular recording facility (American Sound Studios), the songwriter (Mark James), and the highest chart position and date of same (#1, 11/1/69) are integral to any effective musical reference.

BTW, what did the producer that day -- Chips Moman -- have for lunch?

(Answer -- slow-roasted Memphis BBQ!)

Second District Rejects Modification of Timesharing

The Second District Court of Appeal today reversed in Mayo v. Mayo, in so doing finding error in the lower court’s ruling which modified timesharing while professing that the best interests of the child could not be reached.  Without reviewing the best interests of the minor child, the modification was improper, according to the Second District.

Fourth District Reverses Life Insurance Security

The Fourth District Court of Appeal affirmed on all issues today in Elbaum v. Elbaum, reversing only as to the issue of life insurance ordered as security for alimony, in that the requisite findings for such an award were not made.  The Court also addressed the issue of alimony, argued by the Former Husband to be excessive, only in order to point out an apparent misunderstanding by the Former Husband of his alimony obligation.

Fourth District Court Affirms Child Support Credit

The Fourth District Court of Appeal affirmed today in Randazzo v. Randazzo, in so doing finding that there was no error apparent on the face of an order granting a child support credit to the Former Husband as a result of overpayment, despite the trial court’s use of a different figure for the Former Husband’s income than the Magistrate found to be appropriate.  Largely the ruling had to be affirmed in that there was no transcript provided to the Appellate Court.

3d DCA Watch -- The One Where Good Lawyers "Forget" a Whole Statute?

 Hi there, it's that time again so let's see whether the bunker denizens did anything to deserve your hard-earned tax dollars this week:

Taplin v. Taplin:

Wealthy muckety-mucks fighting over trust funds.

Sounds like the premise for a good movie, except Judge Shepherd says GT and Victor Diaz "forgot" something:

The trustees argue by eliminating section 95.02 of the Florida Statutes while simultaneously creating an express subsection of Chapter 95 to cover “intentional torts,” the Legislature sub silencio must have intended the newly minted section 95.11(3)(o) to apply unconditionally to all cases brought against a trustee for breach of trust.

The trustees forget, however, that in the same legislative session in which section 95.02 was repealed, section 737.307, Florida Statutes, was created.

Ooh ooh -- I knew I forgot something this morning -- it was a whole statute!

Or is that "too thin a reed" for a ruling?

Suarez v. Benihana:

Never get into a fight at a Benihana.

Why did I even need to write that sentence?

Valasquez v. Ettenheim:

Don't blame newly retired and now Broad and Cassel attorney Judge Donner for this reversal -- "simply stated, the appellee led the trial court into error."

That was simply stated.

Are Roofers "Professionals"?

As anyone who has ever hired one knows, the question is a very good one.

Here's what the 11th says in response to the roofer's argument that you look to whether some schmuck on the street acted reasonably under the circumstances, as opposed to a "professional" standard of care:

ICW contends the district court erred by applying a “professional” standard of care in this case. Specifically, it argues that roofers are not “professionals” under Florida law, and, thus, the roofing company should be held only to the standard of an ordinary person, rather than to the standard of a professional. ICW argues that the jury should have been able to determine if the roofers acted as a reasonably prudent person would have acted under similar circumstances. The problem with this argument is that the roofers were not ordinary people who happened to be working on a roof. They were trained roofers, and therefore, the question is what a reasonably prudent roofer would do under similar circumstances. Without reaching the issue of whether roofers are “professionals” under Florida law, we hold that ICW was required to put forth some evidence of the standard of care in the roofing industry in order to meet its burden.

Oh no -- roofers are expected to have some minimal level of professional competency in their work performance.

But this is Florida -- our workers are simply not used to that kind of thing!

Fat File Lawyers vs. Thin File Lawyers

Pictured Above:  Actual Shuster & Saben Case file from case where firm defeated 

U.S. Bank and their counsel Doug Zahm, P.A. 

In April a foreclosure case our firm had been defending for well over two years was scheduled for summary judgment hearing in Brevard County, Florida.  Generally if a bank files a motion for summary judgment and “wins” the hearing on their motion, the case is for all practical purposes is over and all that is left is for the Court to administratively set a sale date, sell the property, transfer title to winning bidder at the foreclosure auction, and issue a writ of possession to remove the home’s former owner.

Summary judgment hearings are either “special set” meaning a hearing usually fifteen minutes in length is scheduled for a specific time before a specific judge or set on a “cattle-call” mass docket where thirty to one hundred cases have summary judgment hearings set for the same time and the court goes through all of the cases set in an hour or two.  Our case was set on a cattle call docket with ninety seven cases.  When I arrived at 9:00 for the haring, I learned our case was number eighty-eight  on the judge’s list of cases set for the morning.  Thankfully, I bought something to read.  It was going to be a long morning.  While re-reading the case law I would present to the Court when our case was called, I watched the hearings of other lawyers and unrepresented homeowners.  In most of the cases nobody showed up for the homeowner.  In every case where there was no homeowner present and no lawyer present for the homeowner, the bank’s motion for summary judgment was granted and a sale date was set. 

When the first contested case where the homeowner actually had a lawyer present was called,  I looked up from what I was reading to see a confident colleague walk to the lectern with a file as thick as a telephone book. The homeowner's attorney explained “ Judge we have rescheduled the bank representative’s deposition three times at their request but the deposition has not happened yet.  The case is not ripe for summary judgment because discovery is not compete. “    After a brief rebuttal from the bank’s lawyer the Court denied the bank’s motion.

After a half dozen absent homeowner cases was another case with lawyers on both sides.  “Judge we have worked everything out said the bank’s lawyer.  We are agreeing to an extended sale date in ninety days and they are not contesting summary judgment. “  The judge looked at the homeowner’s lawyer who just nodded his head.  Motion granted, set sale for third week in July.  I looked up, feeling a little nauseous for a homeowner whose lawyer apparently went down without a fight.  No mention of a waiver of deficiency.  Then I saw it.  The homeowner’s lawyer’s file was as thick as my pinky.  From the look of things no discovery was ever conducted by the homeowner’s lawyer. 

In my opinion discovery is a very important part of a foreclosure lawyer’s job.  A lawyer needs to conduct discovery to find out if the company that filed the foreclosure action owns the note, has standing to foreclosure, and has the evidence necessary to prove their case.  Without discovery the homeowner’s lawyer will have little idea if the homeowner has a winnable case. 

Twenty minutes later came another contested case.  Another lawyer walked up with a fat file, presented case law to the Court and an articulate argument why the bank’s motion should be denied.  After a brief rebuttal the Court denied the bank’s motion.

Next came two more lawyers with thin files.  The first just wanted an extended sale date but offered no reason why the Court should deny the motion.  The Court split the difference between the sale date suggested by the bank and the date requested by the homeowner.  The next thin file lawyer had worked out an extended sale with the bank.

Soon, I realized the pattern.  Thick file lawyers in almost every case succeeded in stopping the bank from obtaining summary judgment.  Against thin file lawyers the bank obtained summary judgment in most but not all of the cases. 

In some of the cases materials obtained in discovery helped stop the bank’s motion.  In other cases it was the argument, answer, or tactics that won the day.  To me a thick file suggests that the homeowner’s lawyer has requested discovery and most likely has been to court a few times to obtain documents that stonewalling banks like to withhold.  Lawyers who put in the time and work to build a file are more likely to put in the time and effort to FIGHT a motion for summary judgment.  Lawyers who think foreclosure litigation is about motions for extension of time and continuances and other obvious methods of stalling think they have done a good job when the lose slowly. 

Thankfully when my client’s case was called I was ready.  After the judge heard argument from both sides and reviewed the controlling case law I presented the judge denied the bank's motion.  Five minutes later, I was in the courthouse staircase to call the client and let him know the result.  While walking the rest of the way down I realized…if you want to size up a foreclosure defense lawyer, don’t check out the lawyer’s suit or shoes, look at the lawyer’s files.  

First District Finds Appeal Moot in International Custody Dispute

The First District Court of Appeal today found the appeals filed in Garces v. Legarda to be moot.  In short, the Appellant moved to Florida from Ecuador with the parties’ children, allegedly under false pretenses and without leave to do so.  The Appellee filed petitions for the return of the children, and there was no request for affirmative relief filed by the Appellant in Florida.  The Court ordered the children returned to the Appellee, who returned to Ecuador and dismissed his pending petition, leaving the Appellant with no legally cognizable interest remaining in the outcome of the appeal, as even reversal would grant her no relief.

No Good Can Come of This.

In other news, the Miami Breakfast Attorneys' Club has met again (apparently in an art gallery of some kind) and the video evidence is here:

Yes, Judge Carnes Went There.

Ok, so you have an ERISA case involving Home Depot.

You're an appellate judge well-known for crafting stories in your opinions, filled with historical references, and for starting those opinions with "a grabber."

Home Depot is about building things.  And the lawsuit involves a retirement plan.

Ergo:

People build many things over the course of their lives. Throughout the time allotted them, they build houses and homes, character and careers, relationships and reputations. And if they’re wise like Aesop’s ant, during the summer and autumn of their lives they store up something for the winter.  Although the ant in the fable did well enough without its savings plan being protected by ERISA, the plaintiffs in this case seek the protections of that statute. They claim that the fiduciaries of their retirement plan violated ERISA in ways that damaged their efforts to stockpile savings for their winter years.

Alright, it's a bit of a stretch but I see the connection, however tenuous.

Still, I've come up with my own introduction -- see what you think:

People frequently grow murderous when they can't find the nail aisle and no one in an orange blazer seems to even know what a "nail" is.  Though all they want to do is fix the shutter their spouse keeps complaining about, they also wanted to catch the game and now their kid is getting cranky and maybe it's time to buy a new grill and forget all about the friggin' nail.  And if they're lazy and fat like Aesop's pig, they may never live long enough to see the ass later that evening.  Although the pig in the fable did well enough with the free meal right up until he was slaughtered , the plaintiffs in this case have acted like proverbial asses in suing Home Depot over their retirement plan.

I don't know, they both have that whimsical, "old-school" charm!

Magistrate Judge Goodman Advises Parties to Follow Rules!

 I've take the liberty of annotating Magistrate Judge Goodman's notice to the parties that he will be enforcing the rules when it comes to discovery:

All parties are advised that [In the Court of the Crimson King] the Court's practice is to follow [Follow You Follow Me] Federal Rule of Civil Procedure 37(a)(5),  which requires the Court to award attorney's fees to the prevailing party [Party All the Time] on a [ELO's Discovery] motion unless one of the enumerated exceptions is met [You Can't Always Get What You Want]. All parties are further advised that their failure to engage in a reasonable pre-filing conference [Life in the Fast Lane] is grounds for granting or denying the motion by default under Local Rule 7.I(a). [I Guess That's Why They Call It the Blues]

Man the judge really digs this stuff!

Code Red Code Red -- App Does Away with "Briefcase," "Office" and "Lawyer"!

Where's Brian Tannebaum when you need him:

They started with an iPad app, LegalFile, which is already on the market. “It’s essentially a virtual office to enable lawyers to practice without absorbing the cost of a secretary or a filing clerk,” said Kuznetsova, the 24-year-old president and CEO of Miami-based Esenem, the parent company of LegalFileIt. “This app replaces a traditional briefcase. It’s your calendar keeper and it provides startup forms in all different areas of law.” 

If you don't need a secretary, filing clerk, briefcase, or office, maybe you don't need an attorney either:

There are plenty of lawyers out there who are willing to represent you if you find yourself either being sued or having to sue someone. But do you really need a lawyer?

Gary Zeidwig doesn’t think so, at least not all the time. Zeidwig, an award-winning lawyer, reveals that there are some cases where an individual can move forward pro se, (for oneself) that is, advocating without an attorney and defending or fighting for their rights on their own behalf, and that it’s not only acceptable but relatively safe to do so.

But who needs to buy a whole book to learn you don't need a lawyer?

There's probably an app for that.

Read more here: http://www.miamiherald.com/2012/05/06/2784090/case-closed-mobility-rules-in.html#storylink=cpy