Informative CLE on How to Choose a DUI Attorney in Miami!

I totally agree with the YouTube comment that this video provides "great information."

Sheesh, is it Friday yet?

First DCA Reverses Contempt Ruling

The First District Court of Appeal reversed today in Hardman v. Koslowski.  In that case, the lower court found the Former Wife in contempt for violating a contempt order despite evidently providing the full timesharing ordered.  In question was aspirational language contained in the order suggesting a hope that the Former Husband’s timesharing would return to routine and normal timesharing, and the Former Wife’s alleged failure to negotiate with the Former Husband to achieve that state.  On review, the First District reversed in that the order in question does not specifically instruct the Former Wife to engage in any conduct in line with the aspirational comments in the order.  As such, the contempt finding was reversed, with its accompanying sanction.  The First District also found that sanction improper on the basis of the lack of any finding of need or ability to pay, and the lack of any purge provision.

Fourth District Reverses Relocation

The Fourth District Court of Appeal ruled today in Eckert v. Eckert, a case in which the lower court granted the Mother’s request for relocation without making any findings, including even a finding that relocation was in the child’s best interest.  The Mother had testified that other than the use of a home belonging to her son in the new location, she had no reason to move.  The Fourth District reversed the grant of relocation.  In addition, the lower court declined to impute income to the Mother on the basis that the Court believed the parties agreed that she would not work while the child was still young, despite the lack of any reference to any such agreement in the record, and evidence that the Mother returned to work immediately after the birth of the child.  This ruling was also reversed, as was an order that the Father secure child support with two million dollars in insurance and no findings made as to the cost or availability of such insurance.

3d DCA Watch -- Soak the Rich (In a Nice Plunge Pool on a Private Island)!

Hi kids!

It is very slim pickings today as the Robed Ones -- never to be outdone by the Vatican -- prepare for their own judicial conclave, where they will solemnly debate for hours a decision of great import.

Once the final tally has been taken, white smoke will slowly waft from the bunker, indicating to the huddled masses that either (1) a new Insanity Workout DVD has been purchased; or (2) they decided to fix the old glute-ham developer, all in an effort to "revitalize" the official Court mechanical room/gym for the 21st Century.

ARE YOU READY TO DIG DEEP?

Carbon Capital v. Estate of Tutt:

Rich people fight over a private island in the Bahamas.

Demida Gardens v. Master Excavators:

Hey, does anyone know if this case involves THE David Paul?

(He probably once owned a private island in the Bahamas too.)

GO HARD OR GO HOME.

Glenn Garvin Presents Exactly Half of the Story!

I admit to having no preexisting knowledge of the "golden rice" controversy used by The Garvinator in his column today to bludgeon "the Left" generally and "the luddite shock troops of progressivism like Greenpeace" specifically regarding their supposed "liberal resistance to science."

But I was certainly skeptical of this broad statement by Glenn:

What role does science play in the left-wing opposition to golden rice and other genetically modified crops? None.

Turns out -- surprise -- this is not exactly true.

In fact, it is not hard to find scientists concerned about the lack of adequate scientific testing and the paucity of reliable evidence that so-called "golden rice" is safe:

In February 2009 a group of 22 international scientists and experts addressed an open letter to Prof Robert Russell at Tufts University School of Medicine, who is in charge of clinical trials on GM Golden Rice, protesting at clinical trials of GM Golden Rice being conducted on adults and children.[1]

The authors say that the trials breach the Nuremberg Code, brought in at the end of World War II to prevent any repetition of the experiments conducted on people by Nazi scientists.

The authors say that Golden Rice:

* is inadequately described in terms of biological and biochemical makeup

* has not been shown to be stable over time – GM crops have been found to be unstable in that their genetic makeup as revealed in tests has differed from that described by the company and scrambling of the genome at the site of insertion sometimes occurs[2]

* has never been through a regulatory /approvals process anywhere in the world. 

The authors’ concerns are backed by a large body of evidence showing that GM crop/food production produces unintended effects, which can result in damage to health when GM foods are fed to animals.[3] There is no evidence to suggest that Golden Rice is any safer than these GM foods.

So, regardless of how you land on this issue, it's not as simple as Garvin portrays.

Further, it appears that Greenpeace's concerns -- whether you agree with them or not -- are not just based on an alleged lack of scientific evidence, but are also philosophical and tied to comprehensive global efforts to address chronic malnutrition that they contend are more effective and longer-lasting than genetically modifying one particular food source.

Garvin's next "anti-science" leftist bugaboo is vaccination/autism concerns, yet it is not hard to find passionate experts routinely debunking these concerns on right-wing websites such as HuffPost or Salon.

Finally Garvin drops a whopper about nuclear power:

 • Virtually no nuclear-power plants have been built in the United States during the past four decades, the result of continuous left-wing scare stories.

First of all, this is not true -- there are more than a dozen planned or under construction --but the other issue is cost:  it is really expensive to build these generators, and lower gas and coal prices make them poor investments compared to other power sources.

Then there's also what happened in Japan, which of course Garvin entirely neglects to mention.

But other than that -- well done, Sir!

Read more here: http://www.miamiherald.com/2013/02/25/3253577/glenn-garvin-the-lefts-science.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/02/25/3253577/glenn-garvin-the-lefts-science.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/02/25/3253577/glenn-garvin-the-lefts-science.html#storylink=cpy

"The Situation" vs. A&F -- Trial in August!

Incredibly, The Situation's case against Abercrombie and Fitch rolls on, with the parties having consented to trial in August before Magistrate Judge O'Sullivan.

The defendant has brought on Gerry Houlihan as counsel, and there is a sj motion pending, but it's hard to believe the parties have not been able to resolve this one already.

(A whole bunch of documents filed in the case remain under seal, but this may change after the Magistrate Judge asked the parties to address that issue.)

Dirty Work.....

What's with all these alleged "patsy" stories -- David Rivera/Justin Sternad, the whole Nevin Shapiro thing, sheesh.

In other news, more trouble at U.S. Century Bank,  and what do you know -- something positive -- Judge Cooke to be honored:

Trailblazing U.S. District Judge Marcia G. Cooke will be honored as part of Black History Month observances during a celebration being hosted Feb. 28 by the delancyhill law firm and the Little Haiti Cultural Center.

Cooke will be recognized for her “trailblazing legal career and her unwavering upliftment of black history and cultural awareness in the federal judicial system,” according to a statement from Marlon Hill, principal of the law firm.

The reception will host clients, firm partners, and community leaders from 6:30-8:30 p.m. and will include cultural presentations by the Little Haiti Cultural Center, 212 N.E. 59th Ter., Miami.  

Hey, maybe we can end the week on a good note after all....

SCOTUS Reverses Dismissal of Appeal of Return Order Under Hague Convention

Chief Justice Roberts delivered the opinion of a unanimous Supreme Court of the United States this week in the case of Chafin v. Chafin.  In that case, the Petitioner was a U.S. citizen and member of the armed forces, and the Respondent was a citizen of the U.K., living in Germany, where the parties later had a child.  During the Petitioner’s deployment in Afghanistan, the Respondent moved with the child to Scotland.  When the Petitioner was later transferred to Alabama, the Respondent traveled there with the child, and soon after the Petitioner filed for divorce and custody of the child in that state.  The Respondent was subsequently deported, at which point the minor child stayed with the Petitioner.  Several months later, however, the Respondent filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act seeking the child’s return to Scotland.  The District Court for the Northern District of Alabama ordered the child’s return to Scotland, and the Respondent immediately took the child to that country and initiated child custody proceedings in that jurisdiction.  Scotland granted interim custody and an injunction against removal of the child prohibiting the Petitioner from removing the child from Scotland.  While Petitioner appealed the District Court’s return order to the Eleventh Circuit Court of Appeals, that Court ruled that the appeal was moot in that U.S. Courts lack authority to act once a child has been returned to a foreign country, and dismissed the appeal. SCOTUS reversed this week, however, and found that the return of a child to a foreign country under the Hague Convention does not render an appeal of that return order moot. 

First Class Action Filed in Carnival Triumph Debacle!

It is pending before Judge Graham, and you can read the complaint here.

The Miami class-action suit is filed by Matt and Melissa Crusan of Oklahoma and on behalf of all other similarly-situated Triumph passengers.

It says the cruise line allowed a hazardous condition to exist on the ship and that officials “knew or should have known that the vessel Triumph was likely to experience mechanical and/or engine issues because of prior similar issues.”

The suit says that after the fire Carnival officials decided to head to the closest port, Progreso, Mexico, 150 miles away. Later the plan changed and officials decided instead to tow the ship – and its passengers – 500 miles to Mobile.

“This decision was motivated solely by financial gain and Carnival’s convenience,” the suit says. “Were [the disabled ship] to have been towed back to Mexico, Carnival would have needed a second tow back to the United States at significant additional expense.”

Although the cruise left from Galveston, Carnival towed the ship to Mobile, the location of a ship repair facility.

Lawyers say the decision to tow the ship to Alabama rather than a closer port intentionally exposed their clients to “many more days on the vessel than was reasonable and necessary.”

The suit was filed by Michael Winkleman.

Bosley Was The Best

Sorry for the late post. SFL was at the 1800 Club until sunrise again, broke into my boat to sleep and didn't ask me to fill in until he woke up after lunch.



Did you read the DBR's piece on the corruption of all integrity of the entire NCAA investigation of UM, secret engagement of attorney Maria Elena Perez by senior executive NCCA enforcement personnel in violation of Bar Ethics rules, unholy partnership between executive NCAA enforcement personnel and attorney Maria Elena Perez to denigrate the legal system law practice of our home-grown Maria Elena Perez, Esquire, pictured below.



What? Don't have time to read the article? OK, here goes:

Emails between Perez and the top of the Ministry of TruthEnforcement executives "show they squabbled over money, found ways around the association's legal objections to paying her and likened her to a character in the television show Charlie's Angels." Uh, come again?

"Perez billed the NCAA $57,000 and received $18,000, according to an NCAA report released Monday. It details how the organization governing college athletics broke its rules in engaging Perez to intervene in the bankruptcy proceeding..."

The head of the NCAA's enforcement department, Julie Roe Lach, was fired because of the violation. Remember her? She was the tough-talker during the investigation of Auburn and Cam Newton. As DOM and Rumpole would observe - schadenfreude.

But seriously - what hypocrites. Lack of institutional control, indeed.

Perez' defense?

"The NCAA duped me into believing this was OK." Uh huh. With what, Scooby snacks?

"If you don't give all the emails, then obviously you are not given the whole story." Who is giving what to whom?

"I'm running a business here, not a charity. It's nothing wrong getting paid for my work," Perez told the Review on Wednesday.

Absolutely, its nothing wrong. Or its something wrong?

N.B. Where has the Herald been on this critical aspect of this important National story rooted locally ?

3d DCA Watch -- Welcome to the New Frontier!

 The key word is survival.....

UM v. Great American Ins.

Where there is a conflict between co-defendants, you have to pay for more than one counsel:

In the case before us, there exists a conflict in the co-defendants’ legal defenses, based on the allegations of the complaint, that each defendant is directly liable, and the allegations in the answer and affirmative defenses set forth by MagiCamp and UM. MagiCamp answered and asserted the affirmative defense that, as alleged, through no fault of its own, but through the fault of another entity, UM, the minor camper was injured, for which it was entitled to indemnification and contribution; and conversely, UM presented its position by way of letter, that, through no fault of its own, but through the fault of MagiCamp, the camper was injured. These allegations create diverse legal positions that are inherently adverse. These conflicting legal positions presented in defense to individual active negligence claims against MagiCamp and UM exist separate and apart from issues of coverage or excess policy limits.  In this case, single defense counsel was provided by Great American to defend both MagiCamp and UM and to present adverse legal theories. There exists no factual dispute, as evidenced by the record, that, in defense of both co-defendants, Great American’s counsel would have had to argue conflicting legal positions, that each of its clients was not at fault, and the other was, even to the extent of claiming indemnification and contribution for the other’s fault. In so doing, legal counsel would have had to necessarily imply blame to one co-defendant to the detriment of the other. On these facts, we believe this legal dilemma clearly created a conflict of interest between the legal defenses of the common insureds sufficient to qualify for indemnification for attorney’s fees and costs for independent counsel.

But Judge Shepherd in dissent sees something else:

 The court today opens a new frontier in insurance litigation of benefit only to the legal profession.

Ok, he says that like it's a bad thing!

Sunshine State v. Davide:

Speaking of fees, Judge Adrien affirmed on a fee award after an evidentiary hearing.

Here's an oldie but a goodie:

As with other discretionary decisions, we must affirm the order of the trial court if reasonable people could differ as to the propriety of the action taken. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).

But why oh why can't we just substitute our judgment for that of the trial court?

D'Amico v. Ferrera:

Stopped in its tracks:

 Affirmed on the authority of Florida Rule of Appellate Procedure 9.315(a).  Fla. R. App. P. 9.315(a) (“After service of the initial brief . . . the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.”).

Ouch!  That's like losing a boxing match before your opponent even steps into the ring.

Prepare to meet the challenge of the new frontier....

Your Tuesday Morning Digital Dump!

Hi kids, I hope everyone had a nice and restful President's Day weekend.

So let's see what is happening around town:

1.  Yes, that guy also filed a Carnival Triumph lawsuit (pending before Judge Moore).

2.  Florida Supreme Court declines to hear judge/Facebook "friends" case.

3.  You know you want to hire Casey Anthony as your next paralegal:

The lack of a high school diploma and formalized education will not prevent a career in law as a paralegal. Neither will misdemeanor convictions for lying to police, felony convictions for felony bad check charges or even allegations of kidnapping and murder.

Why should it -- welcome to the South Florida job pool!

First District Rejects Collateral Attack on MSA Post-Judgment

The First District Court of Appeal affirmed yesterday in Palmer v. Palmer, a case in which the Former Husband sought review of the lower court’s enforcement of the parties’ Marital Settlement Agreement.  Specifically, that agreement contained a provision requiring the Former Husband to pay a set penalty for failure to obtain refinancing on the former marital home within the agreed time.  The Former Husband argued that the provision was not a valid liquidated damages clause, but rather a punitive damage for delay in performance, and therefore was void.  The First District Court found that, in fact, such a provision would at most make for a voidable, not void, contract, thus barring a collateral attack after the incorporation of the agreement into the Court’s Final Judgment per Wells v. Wells, 832 So.2d 266 (Fla. 4th DCA 2002) and Miller v. Preefer, 1 So.3d 1278 (Fla. 4th DCA 2009).

First Carnival Triumph Lawsuit on File!

It was filed in the SD FL (of course) and is pending before Judge Graham.

Check it out here.

The lawyer on the pleading is Marcus R. Spagnoletti.

Now Your Hotel Wants to Hurt You!

After learning about dangerous kids' parties and cruise ships, I decided to hole myself up in a hermetically sealed room at the Ritz.

Big mistake:

Video - Wish I Had Not Pled Guilty - Madoff Email

Madoff wishes he had not pled guilty to a life sentence. Madoff email says, "From the day of my arrest I offered to assist in recovering the investment principal of my customers. I stated that I was confident that I would be able to convince those parties that were complicit in creating my financial problems, to return the money they withdrew from the investment advisory side of my firm. Those parties were well aware of the incriminating evidence I possessed about their complicit activity and wisely came forward with settlements. It was my belief that it was more important to use the evidence I had to pressure the complicit parties to settle, rather than to use this information for a lesser prison sentence for myself. As remorseful as I am for the pain and suffering I have shamefully caused, I take some comfort in the fact that my assistance will in fact accomplish what I have originally claimed, that with my assistance all of my customers will recover their original investment principal."

 

So What Happens if You Allegedly Defame Someone While Defending a Defamation Action?

It's Valentine's Day, so of course let's discuss whether Levin Middlebrooks should be extended to an attorney's ex parte out of court interviews of potential third-party witnesses.

Should we use the usual absolute immunity analysis, or create a new qualified privilege to cover this particular circumstance?

Answers Justice Pariente:

We hold that Florida’s absolute privilege, as this Court has developed the common law doctrine, was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit. In this narrow scenario, we conclude that a qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.

But Justice Lewis, in dissent, no likey:

I would not begin constructing qualified privileges (as the majority does here) and I would not superimpose the law of express malice into this area of the law. I would analyze the present case within our current legal framework and address whether the conduct is within the litigation privilege. Next, I would evaluate whether the alleged statements were inherently related to or connected with the underlying litigation.

Hey, I think Justice Lewis is on the right side of this one.

What say you?

In other news, the elusive butterfly himself, Richard Brodsky, has a new blog, Splendid Spitter, which contains an eclectic collection of erudite and well-informed opinions on a variety of interesting topics -- in other words, the exact opposite of this crappy space!

Good luck Richard (and keep after those auditing firms in the Miami Beach Community Health Center matter).

Oh, and a happy happy Valentine's Day -- enjoy the evening with someone you love.

3d DCA Watch -- Holy Repentance Edition!

Hi kids, it's that time of year but the bunker continues to roll on, as we take a reverent peep at their special Ash Wednesday opinions:

Velazquez v. Rosen:

Did you know that partial summary judgments are non-final orders not subject to appeal?

You didn't?

Yale Mortgage v. Blot:

Did you know you need to show "excusable neglect" if you fail to respond to a complaint for foreclosure and your house winds up getting sold?

You didn't?

The appellee had hired her attorney two whole weeks after default had been entered -- not good enough, evidently.

Oh well, isn't this day about repentance?

Shocker: State Loses Yet Another Citrus Canker Case!

It's actually not a surprise that the State of Florida has lost yet another ferociously-litigated citrus canker trial, this time in Lee County, but I did find this number eye-opening even to our jaded peepers:

Williams said that the canker-related litigation is the longest and most expensive litigation the state has ever been involved in as a defendant.

Documents filed during the Broward trial in 2011 showed the state had paid its attorneys $9.2 million. Gilbert estimates the state has spent at least $1 million more in legal fees since then.

However, the state does not plan to settle the two remaining lawsuits.

“The department’s position has not changed,” said Florida Department of Agriculture and Consumer Services spokeswoman Amanda Bevis.

Wes Parsons, a Miami attorney representing the state, said the homeowners’ attorneys are seeking roughly $500 million for the tree payments and their fees and costs.

“The state of Florida does not have half a billion to pay the plaintiffs,” Parsons said.

Ok, I call bullcrap.

While I have no doubt taxpayers have spent $10 million+ to lose repeatedly in court defending a half-baked program that was poorly designed and even more poorly executed,  I have to believe the half billion number is a bogey man.

Are there not any competent mediators available to put this case to bed?

BTW, if you keep losing these cases, the number will rightly go up (or has no one thought of that?).

Accept Bing's exciting offer!

Your Tuesday News and Notes!

So the Intrepid One™ is reporting on Greenberg Traurig's declining revenues, Danny Ponce is now a Seminole at Berger Singerman, and this is definitely only a business dispute between two business partners, and that's all:

“There was a degree of trust here, and that I thought she was going to commit on her part and, obviously, she didn’t.”

Definitely just a business dispute.

It feels kinda quiet -- anything else happening in town?

Read more here: http://www.miamiherald.com/2013/02/11/3228941_p2/melgen-lawsuit-a-glimpse-at-intersection.html#storylink=cpy

Did NCAA Approve $20k+ Payment to Nevin Shapiro's Attorney?

That's what CBSSports.com is reporting:

The NCAA's vice president of enforcement approved a five-figure payment to the attorney of Miami booster Nevin Shapiro in order to obtain information in its ongoing Miami infractions investigation, two sources with knowledge of the arrangement told CBSSports.com.

The sources said enforcement director Julie Roe Lach discussed and approved the disbursement of at least $20,000 in October-November 2011. The NCAA is already conducting an external review investigating what it called "improper conduct" by its enforcement arm.

The NCAA claimed former enforcement staff members improperly gained information from a deposition conducted by Shapiro's attorney, Maria Elena Perez. The NCAA never named the attorney directly. Two men with ties to Shapiro were deposed by the attorney in a bankruptcy proceeding in December 2011, CBSSports.com has learned.

Now let's assume the attorney would have deposed these individuals anyway and the evidence she adduced was useful to her client's case:

The NCAA does not have subpoena power and cannot compel witnesses outside of its jurisdiction (current coaches, administrators, athletes) to testify. Elena Perez told CBSSports.com she was not being used to give the NCAA access to subpoena power.

"There is nothing wrong," she said.

Question:  who is in the wrong here?

Certainly seems like a lucky break for UM, which should be able to get out of this investigation without much in the way of meaningful sanctions.

Honor Your Parents, All Three of Them!

If the country is sliding towards greater acceptance for gays and lesbians, Florida is the guy with his fingers dug into the nail, holding on to the bigotry. When I look for progress for the LGBTQ community I usually have to go out of state but here's a heartwarming story set right here in Florida. What happens when 3 people decide to have a baby, achieve pregnancy, and then have different ideas about what this all means? Something like this.

A Miami-Dade circuit judge has approved a private adoption allowing three people — a gay man and a married lesbian couple — to be listed on the birth certificate of their 23-month-old daughter.

“We’re creating entirely new concepts of families. If you have two women seeking to be listed as Parent One and Parent Two, that does not exclude listing a man as father,” said Miami family lawyer Karyn J. Begin, who represented dad Massimiliano “Massimo” Gerina in a two-year paternity case involving lesbian friends who had his baby.

Maria Italiano and Cher Filippazzo, who married in Connecticut, asked that their attorney, Kenneth Kaplan, speak on their behalf.

"There are three parties involved. I agree that makes the case unique," Kaplan said Thursday.

"People have to understand, the case is really a second-parent adoption, meaning that there are not three equal parents. There are three involved but there are two people who have sole parental responsibility," Kaplan said. "Under Florida law, they make all the decisions for the child. This is an adoption by two women, with him receiving certain rights."

So the moms get full custody, but dad gets visitation rights! Nothing better than spending time with a child you can return to it's parents! All mutually agreed upon and a happy ending for all involved, until you get to the comments section!

One kind soul writes:

Sick! It's child abuse that the poor girl wont have a normal family to grow up in.

Another says:

This judge should be impeached for aiding the abuse of this child. He is also violating the law by forging a birth certificate and forcing a child into an unlawful situation. These people might get their moment of fame but it will soon be undone and the cild [sic] rescued from this abusive situation.

But this lady really lays it on the line:

I was born into and grew up in a "normal" family. My highly respected father never bothered to hide his affairs, beat up on my mother and older sister, molested me, and turned me over to his friends for sex. My sister killed herself. Tell me, then, how exactly is this child's situation sick?

Anyway this whole story reminds me of the days when I had two Cuban husbands and a Nicaraguan wife. "Those were the days my friend, we thought they'd never end, we'd sing and dance forever and a day!"


Hat tip to Steve Rothaus' Gay South Florida

Read more here: http://miamiherald.typepad.com/gaysouthflorida/2013/02/miami-dade-circuit-judge-oks-plan-for-gay-man-lesbian-couple-to-be-legal-parents-of-young-daughter.html#storylink=cpy

Second District Court Reverses Alimony Award

The Second District Court of Appeal reversed yesterday in Doganiero v. Doganiero, finding merit in only one of the issues raised.  The lower court granted the Former Wife a sixteen year period of alimony, but made no finding despite facts suggesting the propriety of permanent alimony that made clear why only durational alimony was given.  On remand the lower court was instructed to explore permanent periodic alimony, and to set forth its rationale for any award of alimony.  In addition, the alimony awarded was for $100.00 per month, and the lower court was instructed on remand that any type of alimony awarded “must be of a legally sufficient amount.”

Fourth District Court Reverses for Failure to Address Holiday Timesharing

The Fourth District Court issued a ruling yesterday in Moforis v. Moforis, in so doing again reversing a Final Judgment yesterday due to the trial court’s failure to address holiday or vacation timesharing in that decree, as they previously had in Todd v. Guillaume-Todd.  In that case, the Court ruled, even in the absence of a transcript of the pertinent hearing, that the lower court’s failure, where visitation is ordered, to permit holiday timesharing contradicts such a routine practice as to be error.  The same case also addressed, and rejected, provisions for the forfeiture of timesharing after a certain period of lateness.

How Not to Draft a Complaint.

I don't know, but I'd pay attention if a federal judge politely critiques your complaint-drafting skills like this:

There are 12 counts in the Amended Complaint, but they are not numbered consecutively.  Furthermore, it appears that Plaintiff has merged several different complaints into one, one brought against both Defendants and two complaints brought against each Defendant. While all the counts read as if they are brought pursuant to FDUPTA, numerous other statutes are referred to, including RICO and Florida’s Telemarketing Act (Am. Compl. pgs. 3, 18-19.) While the Amended Complaint appears to be a FDUTPA claim, it is repetitive and rambling at times.  Several counts appear to be cut-off mid-count. (Am Compl. pgs. 18-21, 24, 26.) Moreover, specific facts are not related to specific counts and the allegations are not consecutively numbered nor organized. Hence, Plaintiff is directed to plead each legal claim in a separate count with special attention paid to each element of each count. Although other numbered paragraphs may be incorporated by reference, this must be done with particular care so that only relevant paragraphs are referenced. Each count must state with specificity both the factual and legal basis for the claim it sets forth. Finally, several of the numerous exhibits attached to the Complaint provide unnecessary copies of statutes and regulations and should not be attached to any amended pleading.

Other than that, though, not too shabby!

Federal Criminal Prosecutions on the Rise - By the Numbers

Federal Criminal Prosecutions are up for 2012 in the Middle District of Florida says a United States Department of Justice report. USDOJ  national statistics reveal in 2012, there were 84,307 criminal filings in the nation. In the Middle District of Florida for 2012 there were 1,505 Filings and 2011 had 1,290 filings.

Sadly, drug cases, including marijuana, remained by far the largest category  with 593  of the 1505 total (39%) cases. The next largest number of case filings - Immigration (241 cases) (16%) , then Fraud offenses right behind it at 227 (15%) ; Firearms (Alcohol Tobacco and Firearms -  ATF) Gun cases were next at 171 filings (11%).  In the 11th Circuit there were 2,064 criminal appeals filed in 2012 compared to 1,433 filed in 2011.

3d DCA Watch -- I Dubitante, Do You Dubitante?

Oh happy day, the bunker is back baby, so let's see dig right in to this week's tasty morsels:

Suzlon v. Ventas:

Judges Fernandez and Salter disagree over whether an arbitration was properly authorized.

From Judge Salter's dissent:

I respectfully dissent. We should not engage in the very judicial proceedings that these international companies sought to avoid when they specified in their commission agreement that “[a]ny dispute or controversy arising in connection with this Agreement shall be subject to (and settled by) final and binding arbitration.” The threshold or “gatekeeper” determination regarding Mr. Rondon’s authority to initiate Ventus’s demand for arbitration, made here and now by the majority (after, and contrary to, the International Centre for Dispute Resolution Tribunal’s ruling on that very point), was a “controversy arising in connection with the agreement” that was properly heard and ruled upon by the tribunal and should not be revisited, much less nullified, by a Florida appellate court. The circuit court ruled in accordance with the deferential and extremely limited scope of review specified by the Florida and counterpart federal arbitration statutes (as interpreted by the Florida Supreme Court), such that the order confirming the Tribunal’s detailed and closely-reasoned award should be affirmed.

Albelo v. Southern Oaks Insurance:

Insurance company gets hit with 57.105 sanctions for fighting an octogenarian's premises liability claim.

Barnes v. Castle Beach:

Here it is kids, your word of the day:

SHEPHERD, J., concurring dubitante.

"Dubitante"?

i placet!!!

Lewis Tein Update: This Happened.

They say the best defense is a good offense, so take a look at this pleading filed in the underlying state court action and see if it qualifies for that maxim.

Good News -- Divorce Filings Are Up!

So, Super Bowl.

Also, Beyoncé, Clydesdales, and a 34 minute power outage.

There, my work here is done!

In other news, time to get happy because divorce work is up, up, up:

‘It’s frenetic. I don’t know what happened. Literally, the phones are ringing every day and people are coming in, if not daily, than every other day,” said Jeffrey Fisher, a West Palm Beach attorney.

People who see Fisher mean business, too. His rate is a lofty $675 an hour, so casual talks with Fisher about a marital split aren’t likely.

Fisher thinks divorce calls are up because the economy has improved. The stock market is up, real estate prices are recovering and assets, in general, are more liquid.

I agree with Jeff -- nothing says the good times are back better than serving your loser spouse with papers.

And how was your weekend?

The State is Still Paying to Defend Citrus Canker Suits!

It's hard to believe, but the State continues to defend at all co$t$ -- literally -- its disastrous citrus canker program.

Incredibly, they just completed yet another trial, this time a bench trial on liability in Lee County:

The concluding arguments were heard Thursday. If the plaintiffs prevail, a jury trial will be held to determine the amount of compensation owed the homeowners for their trees.

Plaintiffs’ attorney Robert Gilbert of Miami said he expects the judge’s decision would take about two weeks.

The canker program was really a charade meant to save trees in the commercial citrus industry from the spread of canker at the expense of private homeowners, he told the judge. In effect, the residents whose trees were cut down had to shoulder the burden of a problem that should have been shared by the public as a whole, Gilbert said.

Wes Parsons, attorney for the Agriculture Department, retorted that there was no conspiracy by the state in implementing an eradication program for citrus canker, and that the state was not out to hurt residents.

Why doesn't the State stop the legal bleeding and put these cases to bed already? 

Let's admit it -- the program was flawed, of dubious value, resulted in the permanent alteration of our landscape and neighborhoods, and engendered tremendous bad will.

Hasn't the legal strategy of fighting these things to the death "hurt residents" enough?