An Actual Heartwarming Story!

Lately we've been covering a lot of crazy cases, sanction motions, judges going wild and other assorted South Florida daily atrocities, so it's nice to see lawyers and judges doing something nice for a change:

Miami-Dade County Teen Court Program, under the administrative leadership of the Miami-Dade Economic Advocacy Trust, trained a new wave of volunteer lawyers, bailiffs, clerks, and jurors during its annual summer Youth Volunteer Attorney Training Program and second annual Mock Trial Competition.

The training was spread over three days in July and August in the Moot Courtroom at St. Thomas University School of Law, 16401 N.W. 37 Ave. 

The students, from area middle and high schools, were greeted the first day by Douglas E. Ray, St. Thomas University School of Law dean and law professor. The students received training for courtroom trials sanctioned by the program’s volunteer training guidelines, which educated them in various facets of the judicial process.

The mission of Miami-Dade County Teen Court is to advocate and create opportunities for youth to develop into responsible citizens.
 

The judges helped the students sharpen their courtroom techniques, etiquette and other skills, as well as learn law terminology and courtroom decorum. 

Participants received 24 hours of community service credit for attending the classroom training sessions.

And let's single out some of the folks who committed their time and energy to the success of this project:

Kelly Charles-Collins, Stacy Cleveland and Ray McGee. Volunteer attorney coaches included Olanike Adebayo, Todd Bass, Miesha Darrough, Marcus Griggs, Sherria Williams and Jennie Wingad, as well as state Rep. Cynthia Stafford, who participated as one of the volunteer judges for the first half of the competition. 

See, we're not all bad!

Inquiry Concerning a Judge.

Boy that's an ominous title for a Florida Supreme Court opinion, and this one issued today deals with Broward County Judge Dale Cohen.

If you don't recall the charges, here's a refresher:

The charges arose out of a hearing on a motion for disqualification that was filed on August 6, 2009, by an attorney appearing before Judge Cohen. The motion alleged the existence of a conflict between the attorney and Judge Cohen‘s wife. At a hearing on the motion, Judge Cohen called his wife as a witness to refute the allegations in the motion. Judge Cohen later held additional hearings in which he questioned the attorney‘s clients and threatened to file a complaint against the attorney with The Florida Bar.

Ok, so holding a hearing on a recusal motion and calling your wife as a witness -- pretty pedestrian for Broward -- what exactly did the Judge do wrong?

Pursuant to rule 2.330(f), Judge Cohen was required to either grant the motion for disqualification or to deny it as legally insufficient. Judge Cohen testified before the Investigative Panel that he believed the allegations in the motion were exaggerated. During lunch, he asked his wife to come to the courtroom with the intent of calling her as a witness. When court resumed, Judge Cohen called his wife to the witness stand over counsel‘s objections and questioned her regarding the facts set forth in the recusal motion. In doing so, Judge Cohen forced counsel to place his own credibility against the credibility of the judge‘s wife. Judge Cohen acknowledged in his testimony that he violated the canons by allowing his wife to testify as a witness and in not following the law.

I love the explanation by Judge Cohen -- I was just trying to keep things buddy-buddy, we're talking Broward here:

Judge Cohen explained that he held the hearing in order to remain on friendly terms with Melnick and to resolve what he believed to be a misunderstanding between Melnick and his wife. Judge Cohen thus allowed his conduct on the bench to be influenced by social and family relationships, in violation of Canon 2B.

Well if that's now illegal we're all screwed.

3d DCA -- If You Screw Up, Screw Up Big!

Time to bunker dive:

Tricam Industries v. Coba:

Judge Rothenberg reverses a plaintiff jury verdict in a negligence action and orders the trial court to enter judgment for the defendants, all based on an "inconsistent verdict."

Problem was, the defendants never objected to the inconsistent verdict below, and the jury was discharged.

Problem solved -- if the inconsistent verdict is so fundamentally screwed up, so glaring and so obvious you'd have to be a complete idiot to miss it (my paraphrase), then it's ok you screwed up as a lawyer and completely missed it.

Au contraire, says Judge Schwartz:

While I agree with the rest of the opinion, I disagree in two fundamental respects with the court’s treatment of the “inconsistent verdict” question. In my view:
a) The appellant waived the right to complain of any inconsistent verdict because of its failure to request that the conflict be resolved by the jury after its alleged flawed verdict was returned.
b) Even if this were not so, the appropriate remedy is not, like the majority does, to resolve the conflict in favor of appellant but a new trial so that a jury and not the court may decide the question.

So go big or go home!

Spencer v. EMC Mortgage:

Is it pretty normal for a bank to wait thirteen years to foreclose on a defaulted mortgage?

Not really, and Judge Salter dismisses for lack of prosecution among other procedural deficiencies.

Judge Schwartz has a hold-your-nose special concurrence:

Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997. While it therefore pains me deeply to do so, I concur in the reversal5 of the summary judgment of foreclosure against her.

And here's footnote five:

In the first incarnation, this passage read “I feel that I must dissent from the affirmance. . . .” See De Leon v. Great Am. Assurance Co., 78 So. 3d 585, 586 n.1 (Fla. 3d DCA 2011)

You say dissent from the affirmance, I say concur in the reversal, let's call the whole thing off!

Once More Unto the Settlement Offer Breach, My Friends!

Did you know settlement offer law in Florida is hopelessly screwed up and has been for a long time?

Then you haven't been paying attention!

Today's installment is an effort by the mighty 11th to clarify a common defense tactic -- picking off a statutory claim by offering one dollar more than the maximum statutory damages, hah hah you don't have standing anymore because we offered to make you whole.

Anyway, it was before Judge Ryskamp, involves FDCPA, and here is how it was framed:

Appellants Anthony W. Zinni, Blanche Dellapietro, and Naomi Desty appeal the district court’s dismissal of their complaints for lack of subject matter jurisdiction. In each case, an Appellee2 sent an e-mail offering to settle an Appellant’s FDCPA case for $1,001—an amount exceeding by $1 the maximum statutory damages available for an individual plaintiff under the FDCPA.3  Appellees also offered attorneys’ fees and costs in each case, but did not specify the amount of fees and costs to be paid. Appellants did not accept the settlement offers. The district court subsequently granted Appellees’ motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), holding that the offers left Appellants with “no remaining stake” in the litigation. The district court then dismissed Appellants’ complaints with prejudice. We conclude the settlement offers did not divest the district court of subject matter jurisdiction.

The reason?

Simple, kids -- you need to include an offer to have judgment entered against your client, too:

The district court erred in finding Appellees’ settlement offers rendered moot Appellants’ FDCPA claims because the settlement offers did not offer full relief. See id. Each of the Appellants requested that the district court enter judgment in his or her favor and against an Appellee as part of the prayer for relief in the complaint. Appellees’ settlement offers, however, did not offer to have judgment entered against them. Because the settlement offers were not for the full relief requested, a live controversy remained over the issue of a judgment, and the cases were not moot. See Friends of Everglades, 570 F.3d at 1216. 

A judgment is important to Appellants because the district court can enforce it. Instead, with no offer of judgment accompanying Appellees’ settlement offers, Appellants were left with a mere promise to pay. If Appellees did not pay, Appellants faced the prospect of filing a breach of contract suit in state court with its attendant filing fees–resulting in two lawsuits instead of just one.

BTW, the 11ith noted that the Appellants' argument -- successfully adopted by the 11th -- was dismissed by the district judge as "nonsensical."

Guess that's why they have appellate courts?

"If It Bends, It's Funny. If It Breaks, It's Not Funny!"

I'm a huge fan of Judge Altonaga and this order is an example why.

I love her understated yet very logical and pointed way of explaining basic principles of law to the parties.

Here she is on how you prepare a statement of facts, or dispute same, for an sj motion:

The Court notes that in responding to Plaintiffs’ Statement of Undisputed Material Facts, Defendants do not expressly admit or deny any of Plaintiffs’ statements, but rather provide the Court with a list of facts through which the Court must sift. (See generally Defs.’ Resp. SMF). To the extent any listed fact does not expressly oppose Plaintiffs’ corresponding fact, Plaintiffs’ fact will be deemed undisputed. Additionally, the parties include several facts within each numbered paragraph of their respective statements of facts. (See generally Defs.’ SMF [ECF No. 57]; Plf.’s Resp. SMF [ECF No. 75]). To the extent that any party fails to direct the Court to the record evidence in support of its asserted facts (or its reasons for disputing an opposing party’s asserted facts) contained in each sentence, the Court does not consider those assertions in deciding these motions. See FED. R. CIV. P. 56(e)(4).

And here she is explaining why the defendants can't prevail on a motion for summary judgment based on a "frivolity" standard:

Defendants first argue that summary judgment should be granted in their favor because the suit is frivolous. . . . As an initial matter, Defendants fail to identify what standard the Court should apply to determine frivolity, which they must do to prevail on their summary judgment motion.

Wait wait I know:

Or maybe this is a better example?

Now that's funny!

"Deep Cuts" With Judge Fay!

Sure we've seen our learned friend Magistrate Judge Goodman reference Tom Petty, Elvis, Keith Urban and others in the course of issuing opinions, and even Judge Carnes gave it a try, but Judge Fay takes it to another level by going deep, way deep and way back with this musical reference:

On July 23, 2009, Connie Strickland had been “working on the railroad / All the live-long day.” 1 In fact, he claims he was working his customary twelve-hour shift when, towards the end of that shift, he suffered a massive shoulder injury as a result of a faulty handbrake.

And here's Judge's Fay citation (note to the wordy):

1 A popular American folk song, the first published version of “I’ve Been Working on the Railroad” seems to have been in a 1894 Princeton University songbook. See James J. Fuld, The Book of World-Famous Music 309 (Dover, 4th ed. 1996).

What, nothing about the recording studio where it was first cut?  What about how high it charted in the UK?  Who played bass on the original version? Where can I find John Denver's cover of this classic?

Come on, these are basic musical reference questions we expected answered down here.

Stormwatch!

It's true the storm will have passed us by 6 today but no matter -- everyone now has another day to kill:

During inclement weather periods, the safety of jurors, the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close. In light of the announced closures of public schools in Monroe, Miami-Dade and Broward Counties, the federal courthouses in Key West, Miami and Fort Lauderdale will be closed on Monday, August 27, 2012. Those courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge Federico A. Moreno.

In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:

- The Court's website: www.flsd.uscourts.gov
- Recorded telephone messages at each courthouse
- Broadcast messages sent to CM/ECF e-filers
- Television announcements

Please note that if the Court's website is unavailable, the Administrative Office of the U. S. Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

 Stay safe and dry everyone!

Second District Reverses Split of Medical Expenses

The Second District Court of Appeal reversed today in Weaver v. Weaver, a case in which the lower court had ruled that each party to the divorce would pay 50% of uncovered medical expenses as incident to child support.  The Appellant argued that the law in fact requires the court to divide those expenses according to each party’s pro rata share of the total income available for support, and the Second District Court agreed.

Fifth District Reverses Modification of Arrearages

The Fifth District Court of Appeal reversed today in Cortina v. Lorie, a case in which the lower court issued an order reducing the amount of child support arrearages due from the former husband.  The former husband alleged that he had been unable to pay support while in prison, that he had made some payments, and that there was a verbal modification of his obligation to pay while he was in prison.  The Fifth District, however, found that the inability to pay argument was waived by his failure to seek modification at the time of his incarceration, that he offered no evidence of payment while he was in prison, and that the trial court rejected the verbal modification argument.  None of these grounds were sufficient to warrant a reduction in arrearages.  The trial court, in fact, had ordered the reduction on the theory that only the Former Wife, and not the children, would benefit from repayment of the already vested arrearages.  The appellate court ruled that, even if this were a reason for modification, it was outside the scope of the pleadings or any matter tried by consent.

5th DCA Overturns Finding of Res Judicata

The Fifth District Court of Appeal ruled today in Fabre v. Fabre, reversing the lower court’s dismissal of a petition for paternity.  The petition had been dismissed as the child’s mother and her then husband’s final judgment of dissolution of marriage established paternity, and the lower tribunal found this to be res judicata as to any new request for determination of paternity.  The Fifth District found this was error, in that the purported father was not a party to that original divorce suit.  While the Appellee argued that the pleading was insufficient to state a case, the Fifth District pointed out that the Appellee was attempting to correct that error by amendment, and his action was dismissed instead.  The dismissal was reversed, and on remand, the lower court is mandated to permit the amendment.

"It's a Procedural Thing."

I think we've all had to say that at least once in our life, I mean, it happens to everyone, right?

But this time it's from the lips of Guy Spiegelman, attorney for WBA junior featherweight titleholder Guillermo Rigondeaux, who has filed an emergency motion before Judge David Miller to allow his client to fight Robert Marroquin on September 15th: 

Rigondeaux-Marroquin has been targeted for the undercard of an HBO Pay Per View-televised main between Julio Cesar Chavez Jr. and Sergio Martinez at the Thomas and Mack Center in Las Vegas, but is in jeopardy, according to Pat English, an attorney for Rigondeaux's Irish promoter, Gary Hyde.

English said he received the written order from Miami-Dade County judge David Miller on Thursday which forbids Rigondeaux (10-0, 8 knockouts) from facing Marroquin (22-1, 15 KOs) because the bout was not approved by Hyde.

"The original hearing was on our motion to strike [Hyde's contract,] so now we have a motion for a rehearing that is pending," said Guy Spiegelman, Rigondeaux's attorney. "It's a procedural thing. The court will probably consider it. I don't know if the court will reverse itself, but this thing is far from over."

I've heard that said many times too.

More on Judge Miller's ruling here.

REMINDER: Your SD FL Inclement Weather Policy!

Are you looking to get out of work tomorrow or Monday -- then pray that the schools close, as set forth by Chief Judge Moreno in 2007 when he issued the new SD FL inclement weather policy:

IT IS ORDERED that as of the date of this order, in the event of hazardous weather that causes the local public schools within a particular county to close, the Federal Courthouses in that county will also close. Thus, if Miami-Dade County public schools close, so will the Miami Federal Courthouses. If Broward County public schools close, so will the Broward Federal Courthouse. If Palm Beach County public schools close, so will the West Palm Beach Federal Courthouse. If St.Lucie County public schools close, so will the Ft. Pierce Federal Courthouse. If Monroe County public schools close, so will the Key West Federal Courthouse.

Are you following, people? 

If XXXXX County public schools close, so will the YYYYY Federal Courthouse.

What do I have to do, repeat the same exact mantra for every single county in the district??

(I guess so.)

So "Rick" Yabor Is Representing Suspected Rivera Ringer?

 There's something entirely strange and yet entirely familiar about this story investigating whether Congressman Rivera sponsored or funded a part-time night auditor to run in the Dem primary against Joe Garcia.

As fantastical as the allegations seem, they also are so Miami that I would be disappointed if they turn out not to be true.

I also can't understand how recently defeated county court candidate Enrique "Rick" Yabor wound up representing the suspected ringer.

I guess this must be part of his practice?

Federal law required Sternad to quickly report any contributions — including loans —just before the Aug. 14 primary, which he lost to Democrat Joe Garcia, a longtime Rivera rival who Sternad bashed in one of his 11 mailers.

Rivera, investigators suspect, was behind the sophisticated mail campaign run by Sternad, who was an unknown political newcomer and hotel night auditor.

John Borrero, the owner of Rapid Mail and Computer Services in Hialeah, said he and his employees have met with investigators.

“I have been truthful with you, and I have been truthful with them,” said Borrero, referring all questions to police.

But Rivera strenuously denied the allegation Wednesday night in a televised interview on Spanish-language América Tevé’s (Channel 41) A Mano Limpia, insisting that he has no connection to the Sternad campaign, claiming Borrero lied and that The Miami Herald and El Nuevo Herald produced "nonsense and slander" in league with Garcia’s campaign.

“I’m going to move forward, focused on my work," Rivera said.

Rivera — who denies ever knowing Sternad — also produced a copy of a new campaign report for Sternad that purported to show, for the first time, that the Democrat’s campaign had paid Rapid Mail. 

Earlier in the day, a reporter for América Tevé said the congressman called her and told her to go to see Sternad’s lawyer, where she would get a scoop on the new campaign report. The lawyer never gave it to her.

Rivera didn’t explain how he got the report and Federal Elections Commission officials told The Miami Herald and El Nuevo Herald on Wednesday that the document had not been received yet by the FEC.

Even if Sternad amended his report, however, it might not be enough to avoid more questions from investigators.

Sternad referred all calls to attorney Enrique “Rick” Yabor, who refused to comment.

 Only in Miami, kids, only in Miami.

d more here: http://www.miamiherald.com/2012/08/22/2963954/fbi-dade-police-probe-democrats.html#storylink=cpy

Third DCA Reverses Order Granting Relief

The Third District Court of Appeal reversed today in Murphy v. Evans, a case in which the former husband’s counsel was repeatedly held in contempt and required to deposit fines into the court registry, but then granted relief from those orders and refunded his monies at a non-evidentiary hearing in response to an ex parte motion.  The Third District Court reviewed the attorney’s conduct and found that granting him relief from the fines was an abuse of the court’s discretion.

Fourth DCA Reverses Contempt Finding

The Fourth District Court of Appeal reversed the lower tribunal’s finding of contempt today in Holtz v. Holtz.  First and foremost, the Court found error in the lower court’s use of its contempt power to enforce an equitable distribution payment.  Second, as to the finding of contempt related to payment of support, the lower court made no finding that the alleged contemnor had the present ability to pay, and had willfully refused to comply with the prior order of the court.  Each of these required reversal.

3d DCA Watch -- Turnabout Is Fair Play?

We all know the bunker loves a good confession of error, but what if the bunker itself (a panel, anyway) kinda wants to also, sorta in a nice way without really saying so but really that old opinion sucks who the hail wrote that thing but anyway maybe an en banc panel can correct our longstanding screw up boy we really messed up  let's see if someone gets the message:

A three-judge panel of this Court, however, cannot “impliedly” recede from or overrule Modesto. See In re Rule 9.331, 416 So. 2d 1127, 1128 (Fla. 1982) (“We would expect that, in most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing.”); Wood, 677 So. 2d at 18 (holding that a three-judge panel would not have receded from earlier case and would have suggested en banc consideration); McBride v. State, 604 So. 2d 1291, 1292 n.1 (Fla. 3d DCA 1992) (noting that there appears to be no authority for a court’s departure from an earlier panel decision “without the intervention of an en banc court”). Thus, even assuming that the cases previously discussed may appear to have “impliedly” receded from or overruled Modesto, we remain bound to follow Modesto until this Court expressly recedes en banc from this precedent.

Can I get a en banc motion already?

Let's go back to law school with this final exam statute of frauds question:

In applying these principles to the instant case, it is clear that the trial court correctly determined that LaRue’s claims were barred by the statute of frauds. It is undisputed that LaRue’s complaint was based on an alleged oral employment agreement, and the agreement and the intent of the parties was that LaRue would receive a 25% ownership interest in the company if she worked for the company for three years. Because the alleged agreement was incapable of being performed in one year, her claim is barred by the statute of frauds.

A Plus Plus, Judge Rothenberg!

Sherman v. Deutsche Bank:

Judge Schwartz in dissent gets his sarcasm on:

I am nonplussed by the appellant’s argument for doing so: that the bank somehow acted  inequitably by lending the mortgagor an additional amount at interest, apparently because he was, surprisingly enough, required to pay it back. But I had thought that the ability to secure a loan was good for the borrower, and surely that it did not place him, much less the second mortgagee, at some kind of disadvantage.

This guy would make a great blogger!

Moriber v. Dreiling:

Oh boy, any opinion that starts off this way has got to be good:

The events that transpired in this case are not attributable to unethical conduct. Instead, they illustrate some of the adverse consequences resulting from the injection of technology into today’s modern and busy law practice.

Hey, that's because we all practice at Starbucks now!

On October 9, 2009, the petitioner, as the personal representative of her mother’s estate, filed a four count complaint against her siblings, the respondents. Over the course of almost two years, the parties engaged in significant discovery and motion practice. Then, on September 30, 2011, counsel for the petitioner served a motion for partial summary judgment on the respondents by having his assistant (1) deliver an electronic copy by e-mail and (2) send a hard copy by regular U.S. mail to Heller Waldman.

The assistant to petitioner’s counsel thereafter realized that the initial e-mail to Heller Waldman did not mention that a hard copy also had been sent. She therefore sent a follow up e-mail, including the same text contained in the initial email, and adding the statement, “I have also mailed you a hard copy today.” Unfortunately, while the assistant intended to reattach the electronic copy of the motion for summary judgment to the follow up e-mail, she inadvertently attached a confidential mediation statement instead. The e-mails were sent to two attorneys at Heller Waldman, Glen Waldman and Eleanor Barnett, as well as their assistant, Nancy Curiel. Additionally, petitioner’s own counsel was copied on both e-mails.

Oy vez meir gut em himmel!

Ok, to make a long story short, only Ms. Barnett skimmed the mediation statement, assumed it was a courtesy copy which is not uncommon, and wrote a note later in the day to opposing counsel disputing the scheduling of a motion that was referenced in the confidential mediation statement.

The other side then realized the error, objected and asked all copies of the mediation statement to be destroyed, which immediately was done.

So, problem solved?

Of course not -- the petitioner who sent the mediation statement in error moved to disqualify Heller Waldman.

What a fine howdoyadoo!

Come on!  It's just a mediation statement, it was your screw up, they did what you asked by destroying all copies, and you still moved to disqualify?

Here's what the Special Master who reviewed the issue held:

The special master, after conducting a hearing and reviewing the mediation statement, motions for summary judgment, and the affidavits filed by the Heller Waldman attorneys and their assistant,  concluded that “there is nothing within [the mediation statement] that gives rise to any possibility that Defendants gained an unfair advantage—or any advantage—by receiving it.” Specifically, the special master stated:

I reach this conclusion after comparing the contents of the Confidential Mediation Statement to the contents of the parties [sic] Motions for Summary Judgment . . . . At this late stage and given the arguments made in open court by the parties through their competing motions on the merits, there is nothing in the Confidential Mediation Statement that would give the Defendants any possibility of an unfair advantage. For the most part, the statement outlines undisputed facts, makes passing comments on the obvious motivations of the parties and otherwise fairly tracks the legal issues now of record. There is nothing in the Confidential Mediation Statement that hints of any weakness in the Plaintiff’s case or which, in the hands of Defendants, would afford any tactical, strategic or legal advantage. If I had to briefly capture the essence of the submission, I would say it is a well crafted position paper which states the obvious and disclosed well established positions of each side.

Based on this reasoning, the special master recommended that the trial court deny the petitioner’s motion to disqualify. The trial court reviewed the special master’s recommendation, and on January 6, 2012, entered a written order denying the petitioner’s motion to disqualify. This petition followed.

The 3d affirmed, and rightfully so.

Nicely reasoned opinion by Judge Rothenberg btw.

First DCA Affirms Finding of Laches

In its ruling today in Martin v. Schmidth, the First District Court of Appeal affirmed the lower court’s finding of laches preventing the Former Wife from being held in contempt.  The Court affirmed in that the Former Husband had not preserved his arguments against the existence of a laches defense at the hearing below or in a motion for rehearing.

Your Tuesday Morning Digital Dump.

Hi kids, day two of the school year -- is it almost over yet?

Let's take a peek around the South Florida legal landscape:

1.  Melanie Damian channels her inner Donald Rumsfeld:

"What we don't know at this point is what we don't know," Damian said, indicating that there may be assets Price did not disclose.

Hmm, somehow seems much more reasonable when Melanie says it.

2.  The 11th Circuit affirms Judge Seitz and enforces another arbitration clause against a cell phone provider -- hey, I'm sure no one has ever had a problem with that industry's business practices:

The Supreme Court in Concepcion expressly rejected the notion that the state law should not be preempted because the class action waiver would effectively shield the defendant from liability. See Concepcion, 131 S. Ct. at 1753 (“The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for other reasons.” (citation omitted)). Pendergast’s attempts to distinguish Concepcion are unavailing.13

For the reasons set forth above, we conclude that we need not reach the questions of whether Florida law would invalidate the class action waiver in the parties’ contract because, to the extent it does, it would be preempted by the FAA. Under Concepcion, both the class action waiver and the arbitration clause must be enforced according to their terms.

State's rights anyone?

3.  In Philly prosecutors are taking second jobs:

CARLOS VEGA is a veteran homicide prosecutor, putting scumbags behind bars, sometimes for life.

His latest high-profile case: Antonio Rodriguez, the so-called Kensington Strangler, who was convicted Thursday of three counts of first-degree murder, rape and related offenses in the deaths of three women.

With his high-pressure job and a daughter who lives at home, you'd think Vega wouldn't have time for anything else.

But his city salary hasn't been enough to give his daughter and son the schooling he wanted for them. So, for 14 years, he's been juggling two jobs. His second gig? He's a UPS supervisor.

In fact, Vega is one of several prosecutors in the city who have taken on second jobs to make ends meet. Others have been bartenders or waiters. One assistant district attorney recently moved back into her parents' house.

"Although we're attorneys, we work for the city," Vega said. "We don't make the money that people think lawyers make."

Note to Carlos -- don't move to South Florida!

4.  Andrew Hall files an odd case:

When Andre Frings returned to his South Beach apartment from a trip to New York last December, his jaw dropped at what had happened to the historic building next door. The 1926 art deco edifice was completely gutted, the graceful façade gone. Frings suspected the developer had broken the Beach's historic preservation codes, so he filed a complaint. The city investigated and, sure enough, found that demolition had exceeded the scope of permits. The developer spent months making fixes.

Democracy at its finest, right? Not for Frings. Last month, the developer -- Brickell-based Jeffrey Schottenstein -- filed a lawsuit against the SoBe resident, seeking more than $15,000 for the egregious crime of reporting his problems to the city.

"It's ridiculous because I don't have any influence. I'm just a resident," Frings says. "All I did was write to the city about my concerns."

Andrew Hall, Schottenstein's attorney, says Frings was wrong to air his grievances when work was already underway. "Guys like this, they think they're smarter than everyone else," he says. "He doesn't care about the consequences of his actions."

Frings's attorney, Michael Schlesinger, has a different take on the suit. "It's a frivolous action brought solely to intimidate and punish [Frings]," he says.

 WTF?

As someone smart once said, what we don't know at this point is what we don't know.

Yes Virginia, the Twombly/Iqbal Pleading Standard Applies to FLSA Cases Too!

I see Judge Moreno had to explain -- again -- that the Supreme Court's imprecise pleading standard revision in Twombly/Iqbal (discussed or perhaps overdiscussed at length on this blog) cuts across all civil cases, even FLSA suits:

As they did with their response to the first motion to dismiss, Plaintiffs begin their present response by attempting to differentiate the heightened pleading requirements of Twombly and Iqbal from the FLSA context.  Relying on language from a pre-Iqbal Eleventh Circuit decision, they maintain that the requirements to state an FLSA claim are "quite straightforward" in comparison to the complexity of the pleadings involved in Twombly.....As the Supreme Court has stressed, Twombly "expounded the pleading standard for all civil actions.''' Iqbal, 556 U.S. at 684 (emphasis added). Courts in the Eleventh Circuit have affirmed this holding in FLSA cases, specifically distinguishing past contrary case law.

Now, should I repeat this holding one more time?

Oh well, the Court denied the motion to dismiss anyway.

Judge Moreno also denied a motion to stay all discovery pending disposition of the motion to dismiss.

(Given this was the second time around for the plaintiff I can perhaps see the reasoning, but in general I'm no fan of such motions because they can tick off the judge, are rarely warranted, even more rarely granted, and are often filed reflexively.)

Turns Out You DO Work for the Firm!

Morning!

Did you know you work in a soul-sucking business environment that encourages risk-taking on behalf of clients because your firm can make more money delaying resolution, bickering over stupid discovery disputes, and litigating everything until there's nothing left no matter how picayune?

And that's coming from a fancy-dancy UM perfesser of ethics:

He said large, multinational law firms like Greenberg are driven by an "eat-what-you-kill compensation system that incentivizes risk-taking in transactions and litigation."

Greenberg started in 1967 as a Miami transactional boutique. After 10 high growth years, it now has 1,750 lawyers in 35 offices around the world.

Referring to the sanctions in the TD Bank case, Alfieri said, "This kind of institutional failure raises hard questions of culture, compliance and institutional regulation for Greenberg and hundreds of other Big Law firms and likewise for regulatory bodies like The Florida Bar and the American Bar Association."

On the other hand, no associate at this firm has ever failed the Bar exam!

On a happier note, Judge Bailey has done as fine a job as possible under dire budgetary restraints in dealing with the foreclosure crisis plaguing our State.

Here she answers questions by email for the Herald and concludes thusly:

Q. From your vantage point, who is responsible for the foreclosure crisis?

I deal with the cases that are in front of me. Moral judgment gets you nowhere. There is plenty of blame to go around. The banks shouldn’t have made the loans. The borrowers shouldn’t have taken them. It was a huge shell game with loans getting sold and repackaged into securities, with no responsibility. Everyone thought that somebody else should be the one to say ‘no.’’’ 

Smart judge.

Finally, Herald political reporter Marc Caputo, who is improving, wrote an article over the weekend in which he repeatedly used the phrase "Obamacare" as a neutral term for the Patient Protection and Affordable Care Act.

When I asked Marc about it, he kindly referred to a recent Obama ad as evidence the phrase is now the MSM consensus term of choice -- completely neutral, purely descriptive.

Now I recognize there has been much debate over how to deal with what began as a schoolyard pejorative.

And some Obamaites and even Obama himself have attempted to defiantly reframe the word.

I'm ok with all that, though for me "Obamacare" reeks of Frank Luntz focus-grouped "HillaryCare" and represents a further slide into collective Idiocracy.

But Marc, did you miss that whole debate?

Or are you saying the debate is over?

Homophobe No Longer Above The Law

Heck, if Judge Turnoff can talk about assholes in open court, I figure its open season.

Back in 2010, we covered the story of fired Michigan assistant attorney general Andrew Shrivel here. Andy, pictured above, abused his power and basically stalked, harassed and defamed a college kid. Or so found a jury yesterday, to the tune of 4.5 million. Read about it here.

Defamation, Stalking, Intentional Infliction of Emotional Distress, Invasion of Privacy - Shrivel loses all around.

His retort? "The jury trampled on my First Amendment rights, and I'll take this all the way to the Supreme Court!" (I'd like to lock you in a room with Godwhacker for 30 minutes you little shit, and see what gets trampled.)

First Amendment litigation and Supreme Court Practice require the very best, so you might want to choose a Harvard grad like David Lat. Heck, even if David is not capable of appellate work and is not a litigator and has never handled First Amendment Jurisprudence and doesn't even practice law, he may be familiar with the underlying subject matter.

Check out this article Davie wrote while at Harvard.

For those of you who don't access the links below is a highlight of Mr. Lat's article.

"Maybe the suicide rate among gay teenagers would be lower if more of them read the Catechism of the Catholic Church. The Church, mistakenly viewed by many as an enemy of homosexuals, in fact states that they "must be accepted with respect, compassion and sensitivity."

Dude, you went to Harvard: what's your cite for that?

Anyhoo, below is a picture of David from his wiki page.

Looking at the pictures of Andrew and David, don't you think they'd have a lot to talk about?

There Is a Giant Statue of the Ten Commandments Outside the Dixie County Courthouse!

 There is so much wrong with this fact scenario I don't know where to begin:

The dispute underlying this appeal concerns the constitutionality of a large religious statue that is located directly outside the courthouse in Dixie County, Florida (the “County”). The American Civil Liberties Union of Florida, Inc. (“ACLU”) brought suit against the County, arguing that such a monument violates the First Amendment’s Establishment Clause. The County moved for summary judgment on the ground that John Doe, the ACLU member through whom the ACLU claimed standing, could not demonstrate an actual injury that he had suffered as a result of the display. The district court denied the motion. The ACLU later moved for summary judgment, which the district court granted. We find that due to a material conflict in the evidence, an evidentiary hearing on the issue of standing was merited. We therefore remand so that such a hearing can be conducted.
. . . .

In Dixie County, Florida, a five-foot tall statue of the Ten Commandments flanks one entrance to the County courthouse. The statue is centrally situated on top of the courthouse steps and is clearly visible from the road. It was donated and erected by a private citizen in 2006 with the approval of the County Board of Commissioners.

Ok, first of all can the ACLU move to change the name of the County?

"Dixie County"?  Seriously?

I also would like it noted that the County seat is in "Cross City."

(I'm not making that up.)

Finally, take a look at the design of the courthouse -- remind you of anything?

 No wonder the ACLU had trouble finding someone with standing!

Spencer Aronfeld Brings You the Worst!

Ron Worst, that is.

In other news, GB points out this gem from the Emmanuel Roy/Peter Mayas contempt proceedings before Magistrate Judge Turnoff:

Then Mayas skipped a court hearing last week, in part he said, because he got sick after undergoing a colonoscopy. But the judge wasn't buying it .

"There's simply no excuse'' for his failure to show up in court last week, Turnoff told Mayas.

When Coulton's lawyer, Paul Petruzzi, told the judge Mayas had not handed over the keys to his vehicle and his Monarch Lakes home, the judge demanded he turn over the keys in court.

As Mayas fumbled with his briefcase and his keyring for what seemed an unnecessarily long time, the judge cracked: "I bet the colonoscopy was easier than this."

Seriously, you can't make this stuff up.

I'm Going to Graceland....

Yes, today marks the anniversary of Elvis' death and what better to mourn than with a free CLE on Elvis and the law:

Legal Aid of East Tennessee will be offering a free continuing legal education course on Tuesday on Elvis Law. The state and federal cases dealing with the late king of rock 'n' roll.
It will be held in a courtroom at the McMinn County Courthouse in Chattanooga, where a 10-foot cutout of the legendary entertainer will reportedly greet attendees, according to a press release.

It turns out there's actually quite a bit of interesting law related to Presley, the Associated Press reports.

"Elvis was fascinating," said Russell Fowler, the associate director of LAET. "He was not liitigious, never sued anybody. He'd fire someone and then give them $50,000 to be nice. But when he died, litigation sprang from everywhere."

Of course there are those who claim Elvii never really died and is hanging somewhere with Jim Morrison and Bruce Lee, as The Probate Lawyer Blog summarizes in some detail here.

Me, I'm remembering the King in the usual manner, by dying my hair jet black, adorning huge pork chops, and requiring my staff to help apply a new-fangled miracle substance ("GOOP") to my beat-up old speed boat so I can finally defeat Bill Bixby and win the Orange Bowl Regatta.

(I assume I'm not alone on this.)

Scene starts at 11:27 in!

First DCA Reverses Modification in Part

The First District Court of Appeal ruled today in Wiesenfeld v. Wiesenfeld, a case in which the Former Husband sought termination of alimony based on the Former Wife’s inheritance of sufficient monies to become self-supporting.  The First District affirmed the lower court’s granting of that petition, finding that the Former Husband had met his burden under Pimm.  However, as the lower court ordered retroactive termination of alimony payments received prior to the Former Wife achieving the ability to support herself, the First DCA reversed in that part only.

Fourth DCA Reverses Denial of Alimony Modification

The Fourth District ruled today in Cook v. Cook, reversing the lower court’s denial of modification of alimony sought by the Former Wife.  The lower court ruled that the parties’ Marital Settlement Agreement provided a modification of alimony unless custody was first modified.  The Fourth District found that the relevant clause in fact guaranteed a modification in the event of a custody change, but did not affect a modification in the absence of one.  As such, the matter was remanded.

Fourth District Discusses Alimony

The Fourth District Court of Appeal affirmed today in Nousari v. Nousari, but first discussed the alimony award under appeal.  The Court noted that the marriage was moderate in term, the parties’ were young in age and in good health, and each party left the marriage with over a million dollars in assets.  While the Court awarded nine years of durational alimony, the Wife argued that the alimony should have been permanent in nature.  Citing Donoff v. Donoff, the Fourth District found that the lower court had acted correctly in not attributing the standard of living superfactor status, and found that all appropriate determinations were made in the lack of clear and convincing evidence requiring permanent alimony in a moderate term marriage.

Fourth District Reverses Denial of Fees

The Fourth District Court of Appeal ruled today in Reilly v. Reilly, in so doing reversing the lower court’s finding that the Former Wife bore sole liability for roofing expenses and the court’s ruling on fees.  Specifically as to fees, the Court found that, the Former Wife having eventually prevailed on all issues, she was entitled to recover her fees and remanded for that result.

Fourth District Affirms Denial of Modification

The Fourth District Court ruled today in Maher v. Maher, in so doing affirming the lower court’s denial of a more substantial modification of child support as requested.  The trial court relied on the fact that the child support was set by a marital settlement agreement executed by the parties, resulting in a higher than normal burden for the party seeking downward modification, and on the finding that the Former Husband’s reduction in income was neither permanent nor involuntary.

3d DCA Watch -- Confess Your Errors, My Son!

Boy we are really in the dog days of summer when the most exciting thing to come from the bunker is a confession of error:

Based on Coconut Grove Bank’s proper and commendable confession of error, we reverse the order on appeal and remand with instructions to vacate the certificate of sale and direct that the Clerk of the Court republish and reset the foreclosure sale, pursuant to section 45.031(3), Florida Statutes (2010).

"Proper and commendable" confession of error -- I like that.

Good bank (pats head), good bank (hands bank a TARP biscuit).

It would have been even more proper and commendable if the bank had confessed error sometime before forcing opposing counsel to waste time and money briefing the appeal.

Vote, You Plebes!

 For Melanie Damian to always appear on the front page of the DBR!

What a glorious way to start the morning.

She's going to be a very tough receiver -- she already hired a locksmith to open a safety deposit box and found lots of valuable rare coins, but unfortunately no whole wheat pasta bolognese.

GAME ON!

Oh yeah, there are also judicial elections.

I suppose we should probably take a peek, especially given how much money we've donated this cycle.

In general I echo Rump's recommendations, as follows:

 In no particular order, we like Judge Wolfson, Judge Don Cohn, Kathy Fernandez-Rundle, Robert Copel, Alex Jimenz-Labora, Mauricio Padilla, Michelle Alvarez, Judge Teretha Lundy-Thomas. Best of luck to all.

Except I voted for Judge David Miller, as well as Teresa Pooler, Judge Marino-Pedraza, Judge Lobree, Ivonne Cuesta, and the great Tanya Brinkley.

And yes the pit bull law is stupid and needs to be repealed.

Your Monday Morning Digital Dump!

I need a dump truck baby to, unload my head....

Hi there, raise your hand if you thought bringing Chad Johnson to the Dolphins was a bad idea?

Well now he has a lawyer instead of a job:

Just after 8:30 a.m., Johnson appeared live via video feed in front a judge and was issued a $2,500 bond and a no contact order, instructing him to stay away from his new wife, Evelyn Lozada, the alleged victim.

Johnson later emerged outside the doors of the jail where he hugged his brother, Chauncey, and was accompanied by his lawyer. They did not speak to reporters as he descended down a stairway and walked to a black SUV.

Johnson got in the car, closed the door and the driver sped off with a couple of reporters chasing after them.

His lawyer, Adam B. Swickle said Johnson has not been charged. The state attorney's office will collect all the evidence and make a decision on whether or not to charge within 21 days.

It's Swickle time!

The Herald's Frances Robles takes a look at KFR's San Juan lawyer friend: 

What the attack doesn’t say: a good bulk of the Puerto Rico contributions came from corporations controlled by Fernandez’s boyfriend, wealthy lawyer David Efron. The mailer was sent by A Vote For Justice, a PAC funded by the top prosecutor’s longtime nemesis, the Police Benevolent Association.

Efron is a Cuba-born attorney whose personal injury and medical malpractice law practice is based in San Juan. Records show he controls 26 corporations, most of them real estate developers on the island.

At least 12 of Efron’s companies donated $500 each to Fernandez’s campaign in the past year, according to state campaign finance reports.

And it’s perfectly legal. Although campaign finance law caps donations in state primary races to $500, separate donations can be submitted under the names of individual corporations. Even if they are owned by the same person.

If it's legal and there is no hint of impropriety over it, what's the problem?

In the realm of Souh Florida election shenanigans, this barely registers a blip.

How about that -- UM Law sent students to London to study the Olympics:

UM law student Alicia Lopiccolo is never regretful of her summer in school. One minute, she's laughing, the next, she's leery.

“We're presented with the opportunity to study abroad this summer and the program involved the 2012 Olympics,” Lopiccolo said. “So, that is something that I just couldn't pass up.”

About two dozen Miami law students couldn't either.

They made the trip of more than 4,000 miles from Coral Gables to London to study how the Olympics, and the law, work together.

Not sure of the real-world implications of studying "Olympic Law" but on the other hand when I was at UM the farthest I went for research was Biscayne Baby's (though it definitely felt like another world).

Finally,  the Florida Bar says being an undocumented immigrant does not disqualify you from the practice of law:

The Florida Bar has not found “good moral character and fitness issues” that would disqualify an undocumented immigrant from being admitted to practice law in Florida, but is still waiting for an opinion from the Florida Supreme Court before making a decision.

In a court filing on Tuesday, the Florida Board of Bar Examiners notified the Supreme Court that it determined last month that there were no such character issues that would automatically disqualify Jose Godinez-Samperio from practicing law, though it cautioned that it’s possible, though unlikely, something could still come to light.

But, the board also notified lawyers representing Godinez-Samperio that a final decision will wait until the state Supreme Court weighs in.

“It is anticipated that you will be notified of the board’s final action after the Supreme Court decision on the pending Request for Advisory Opinion,” the Bar board said in its letter to Godinez-Samperio’s main lawyer, Talbot “Sandy” D’Alemberte back on July 20. “If additional adverse information is received, the board will reopen its investigation.”

The letter was made public when it was sent Tuesday to the Supreme Court to be added to the record in the case.

Initially, the Bar had denied Godinez-Samperio’s application to the Bar, even though he graduated from a Florida law school and passed the Bar exam.

Read more here: http://www.miamiherald.com/2012/08/09/2947363/florida-bar-immigrant-not-disqualify.html#storylink=cpy

Yeah, what's that worth nowadays -- heavy in debt, poor job prospects, hail maybe the applicant will do what Romney says and just self-deport?

Hey, it's his official policy position!

The Markus Fights Back!

Dr. Ali Shaygan and David Markus (pictured above) have petitioned the Supreme Court to review the 11th Circuit's reversal of sanctions in a prosecution so marred by allegations of prosecutorial misconduct that Judge Gold awarded over $600k in fees.

BLT has the latest:

More than 50 former federal judges and prosecutors are urging the U.S. Supreme Court to hear a dispute over alleged government misconduct, taking a position in the case against the Justice Department.

The coalition, which includes retired district and appellate judges, and former U.S. attorneys, is advocating for a doctor in Miami whom the government unsuccessfully prosecuted in a drug case. The statute in question allows defendants to recoup fees if the government's stance in a criminal case was "vexatious, frivolous or in bad faith."

The doctor, Ali Shaygan, was awarded nearly $602,000 in legal fees following the botched prosecution, marred by claims of prosecutorial misconduct. The trial judge sanctioned the government for, among other things, a witness tampering probe against Shaygan's attorney and the prosecutors' alleged violation of disclosure requirements.

But an appeals court overturned the fee award, saying that the prosecution was objectively reasonable. The divided ruling set up the appeal in the Supreme Court, which has not acted on the petition that Shaygan's lawyer, David Markus of Miami's Markus & Markus, filed this summer.

Thomas Goldstein of Washington's Goldstein & Russell is representing the former judges and prosecutors in support of Shaygan. Click here for a copy of the brief, filed August 9.

Wilmer Cutler Pickering Hale and Dorr filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers. Mark Srere of Bryan Cave is counsel of record for The Constitution Project on its amicus brief.

I don't know much about this stuff, but I do know Judge Gold rarely gets things like this wrong.
 
I'm partial to the amicus filed by the physicians' group AAPS, which has this:

Notably absent from the overzealous prosecution of Dr. Ali Shaygan – and from the panel opinion below – is attention to the fundamental requirement of mens rea. Such omission is common now, as the requirement of proving criminal intent in federal court for convictions and sentencing is disappearing, while state courts still take it seriously. Federal court prosecutions are becoming more utilitarian in nature, as unconscionably long prison sentences are increasingly the goal regardless of whether mens rea exists or is commensurate with such punishment.

In light of this trend, the deterrence against prosecutorial wrongdoing provided by the Hyde Amendment is even more important. As emphasis on proof in federal court of mens rea at trial and sentencing declines, the risk of unjustified prosecutorial actions increases. And with that growing risk comes the enhanced possibility of prosecutorial misconduct in quest of the utilitarian goal. If the Hyde Amendment loses its meaning, then there will be no meaningful restraints on a utilitarian, “end justifies the means” approach to prosecution. Engaging in wrongdoing to convict an innocent man, in order to deter future crimes, can even be rationalized under a utilitarian approach to justice. See Stephanos Bibas, “Bring Moral Values into a Flawed Plea-Bargaining System,” 88 Cornell L. Rev. 1425, 1428 (July 2003) (observing, and criticizing, the view that “guilty pleas by innocent defendants [is] a great utilitarian boon”).

Guess I'm a sucker for philosophy in a legal brief.

Also, footnote 2 is a must-read!

Another Reason to Not Check Emails at Lunch.

How'd you like to get this order come across your fancy iPhone while you are enjoying lunch?

It's an order from Magistrate Judge Goodman, scheduling a sanctions hearing against plaintiff QBE Insurance and its attorneys stemming from a summary judgment in favor of the defendant that Judge Gold granted (the sj order is here and the motion for sanctions is here):

First, without ruling on whether an evidentiary hearing is required, the Undersigned believes it is appropriate, given the potential consequences to the Plaintiff and its attorneys, to schedule one, similar to the evidentiary hearing used in Amlong & Amlong, P.A. v. Denny’s Inc., 500 F.3d 1230 (11th Cir. 2006).

Second, QBE and its counsel shall submit a notice by August 15, 2012, listing all the witnesses they intend to have testify at the evidentiary hearing, along with a reasonable estimate of the amount of time each witness is expected to testify for on direct.  The Court anticipates that no witness will testify on direct for more than an hour. In fact, the Court perceives that most, if not all, of the witness will complete their direct testimony in half an hour or less. If counsel believe additional time (i.e., more than one hour on direct, per witness) is required, then they shall explain why.

Third, Jorda shall have until August 20, 2012 to submit a list of additional witnesses it intends to call at the hearing. Jorda will also provide an estimate of the anticipated length of the direct testimony.

Fourth, the Court anticipates that the witnesses will be either current and/or former employees of QBE, current and/or former attorneys and other employees of the law firm representing QBE in this case up through the entry of summary judgment, current and/or former residents of the condominium involved in the underlying litigation surrounding property damage to the complex and any investigators or consultants used by QBE and/or its counsel. The Court suggests that counsel cooperate and facilitate the attendance of witnesses through acceptance of subpoenas, agreements to produce witnesses at the evidentiary hearing, and otherwise.

Fifth, I think somebody could be in deep doo doo! (I added that last part). 

Reading the sj order and sanctions motion, I'm not sure what probative testimony the witnesses could provide -- the sanctions motion appears to be based on pure legal grounds (which Judge Gold accepted).

Your SD FL Affirmative Defense Class is Back in Session!

 
Continuing our series of instructive orders from SD FL judges on affirmative defenses, here is one by Judge Marra granting partial summary judgment on a few truly lame-o ones.

Yes, kids, you can move for summary judgment on affirmative defenses:

Defendant’s First Affirmative Defense states: “Defendant would show unto the Court that at the approximate times and places alleged, the Plaintiff was guilty of negligence materially and proximately contributing to the accidents and/or the injuries complained of and any recovery by the Plaintiff is diminished or extinguished thereby.” In support of her motion for summary judgment relative to this defense, Plaintiff has provided evidence that she was stopped when she was rear-ended [DE 53-1, p. 33]. Plaintiff also noted that the Defendant did not address this affirmative defense in its answers to interrogatories [DE 53-2, No. 6]. At the deposition of the Defendant, the corporate designee refused to answer questions relative to this affirmative defense [DE 39, pp. 67-68]. Plaintiff thus discharged her burden to demonstrate to this Court that there is an absence of evidence to support the Defendant’s First Affirmative Defense. See Celotex Corp., 477 U.S. at 325.

The burden of presenting evidence in support of its First Affirmative Defense thus shifted to the Defendant. Defendant concedes in its Response to Plaintiff’s Motion for Partial Summary Judgment that “at this time there is no evidence to suggest that RIOS was negligent in causing the accident” [DE 54, pg. 2], and withdraws that portion of its affirmative defense. Defendant continues to state:

However, STATE FARM maintains, as is part of its First Affirmative Defense that RIOS’ actions did contribute to her injuries complained of and therefore any recovery by RIOS is diminished or extinguished thereby. STATE FARM continues to contest that accident on July 13, 2008 was the cause of RIOS’ alleged injuries. Further, as made evident in STATE FARM’S Motion for Final Summary Judgment, RIOS’ actions prejudiced STATE FARM’S ability to fully evaluate her claims. . . [T]he only issue left relating to RIOS’ Motion for Partial Summary Judgment would be whether or not SANDRA RIOS was a proximate cause to the injuries complained of, in which there exists a genuine issue of material fact, which can be seen in the pleadings alone.

[DE 54, pg. 2]. Defendant cites no evidence whatsoever in support of this argument, and has, therefore, failed to meet its burden. Plaintiff’s motion as to Defendant’s First Affirmative Defense will be granted.

See how that works?

Note to litigants -- if you have more than ten affirmative defenses, you probably have two or three more than you really need.

Fourth District Reverses Finding of Divestment

Among other rulings in the opinion issued today by the Fourth District Court of Appeal in Walters v. Walters, that Court reversed the lower tribunal’s finding that the Former Husband had divested assets by purchasing vintage automobiles for his business.  As the Former Husband’s intent was to provide for income to pay support, the finding was in error.  In addition, the Fourth District affirmed the lower court’s denial of retroactive modification of alimony in light of the finding that the Former Husband had been able to pay the alimony during the period of time in question.  The Court also rejected the Former Husband’s claim that more than  60% of his income had been awarded in support, as they counted additional sources of income the Former Husband did not.  The lower court was reversed, however, for failing to consider the Former Wife’s current needs in its consideration of the modification petition.