3d DCA Watch -- Judicial Wheelspinning Time!

If you are reading this, then you are already guilty of spinning your wheels this morning.

But you know who else is also guilty, of even more egregious "judicial wheelspinning"? -- yes, our treasured bunker inhabitants.

Read on.

Motors v. Miami Medley:

So are the Kozel factors -- which must be applied when sanctioning counsel or parties -- to be articulated and set forth in any sanctions order, or are they completely superfluous when everybody really knows what happened, wink wink:

Contrary to the position taken by Miami Medley, the order granting the motion for sanctions for defendant’s failure to attend mediation contains no acknowledgment, discussion or analysis of any of the Kozel factors. The order states merely that the motion is granted because defendants failed to appear at a duly scheduled mediation, of which defendants’ counsel was given notice. When presented with defendants’ sworn motion, alleging that the failure to attend mediation was the fault of the attorney and that the client was never made aware mediation had been ordered and scheduled, the trial court grossly abused its discretion in denying the motion to set aside the default without considering whether the default was improvidently granted and without addressing the Kozel factors.

Come on! -- sayeth Judge Schwartz in dissent, don't waste my time with these bright-line rules, they just cloud the swift imposition of justice (I'm paraphrasing):

Returning the case to the court below for the purely formulaic purpose of expressing in writing what we already know to be true is no more than judicial “wheel spinning” which we should avoid, not encourage.

But shouldn't we encourage the straightforward application of the law?  Is there no jurisprudential purpose served by requiring trial judges to set forth in writing the Kozel factors?

Can the exception for "what we already know to be true" be fairly applied?

Oh well, let's all get back to our timewasters.

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!

A Life, Summarized?

Did Judge Schwartz just summarize my entire legal career, here:

In essence, therefore, everything in the circuitous legal journey which followed was an exercise in superfluousness and futility.

Well stated, Your Honor!

3d DCA Watch -- Let It Rain?

Hey sugar, are your tomatoes wet enough?

What dirty minds you all have!

That's not a sexual innuendo, that's how people in old My-am-Ma used to refer to a heavy rain.

Sheesh.

Onward:

Miami Automotive Retail v. Baldwin:

A somewhat messed-up class action case returns for a second bite at the apple.

Vives v. Wells Fargo:

A somewhat messed-up foreclosure case gets reversed and remanded, but Judge Shepherd delivers a blistering dissent:

SHEPHERD, J., dissenting.
 
I dissent.

Was the rest of it cut off in the uploading process?

Lloyd's v. Pitu:

$700k in water damage, $25k aggregate water damage endorsement.

Guess who won?

Miami Beach v. City Pension Fund Boards:

Judge Schwartz adopts a footnote from another case thanking the lawyers involved for their briefs and excellent presentations.

Who's becoming such a softie all of a sudden??

Let it rain:

3d DCA Watch -- Schwartz/Shepherd Double Team Time!

I like it when the 3d gets all "hand of God" and starts instructing lawyers on how they should behave as professionals.

I say that because the profession is infused with jerky obnoxious blowhards who frequently misuse their limited power to make life difficult for opposing counsel, their clients, and sometimes even the judges before whom they practice.

And that's just at my law firm!

So let's see what the great tag-team duo of Schwartz and Shepherd have to say about about a local insurance company lawyer who went a little too far at a deposition of the insured (who was not represented by counsel at the time):

De Leon v. Great American:

This guy sure knows how to take a depo:

The controversy began when someone stole a truck owned by De Leon and insured by Great American. When it was recovered, it had been damaged and, most significantly, was missing nine large, valuable tires. As shown by Great American’s payment of the entire claim, there was never a legitimate defense under the personal property section of his policy. Unfortunately, however, the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it. At the statement, where De Leon appeared without counsel, Great American’s lawyer, Luis A. Diz, did not even get to the truck and the tires. Instead, he insisted on probing into the details of, among other things, a prior, totally unrelated criminal conviction, and the person with whom the claimant was then living.

 Judge Schwartz quotes at length from the deposition, which is indeed as bad as it sounds.

I've often said I can take a seven-hour depo about literally nothing, but it seems that is exactly what happened here.

Judge Schwartz no likey:

This is completely wrong; because De Leon “refused” to respond to wholly impertinent and improper questions which had nothing to do with the merits of the claim. And we think he was right to do so. To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head. What actually happened is that De Leon took Diz up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid. So far from being improperly employed, the statute was enacted for the very purpose presented by this case—to discourage the games insurance companies play.

In walks Judge Shepherd, to deliver the final knock-out punch and to plead with lawyers to start acting like lawyers (the good kind):

This court recently admonished “all counsel” who practice in the courts of this state that “improper conduct” in the courtroom “will not be condoned by this court.” Chin v. Caiaffa, 42 So. 3d 300, 311-12 (Fla. 3d DCA 2010) (emphasis added). This case involves conduct outside the courtroom, stemming from the theft of a 2000 Freightliner “eighteen wheeler” commercial truck from the premises of an interstate trucking company where it was parked. The police found the vehicle the next day. The insured’s principal claim is that the thieves took ten expensive tires from the truck and replaced them with then-inferior tires. After suit was filed, the trial court abated the action and ordered completion of the previously begun examination under oath (EUO). The same lawyer who conducted the first aborted EUO conducted the second. It lasted over seven hours. It strains credulity to assert—as the insurer does in this case—that a seven-hour sworn statement of a single individual is necessary to the investigation of an $8000 tire loss claim, whatever might be the insurer’s suspicions. “Over-lawyering” is a frequent affliction found in the legal profession. If there is any question concerning whether the insured’s instincts about the interrogator’s purpose was any different in the second EUO than in the first, the doubt can be dispelled easily by reviewing the transcript of the latter EUO.

An attorney is an officer of the court, and he plays his role badly, even outside the courtroom, if he trespasses against the obligations of his professional responsibilities. See Georgopoulos v. Int’l Bhd. of Teamsters, AFL-CIO, 942 F. Supp. 883, 905 (S.D.N.Y. 1996). A careful review of the transcript of the second EUO reveals the role played by counsel during that EUO was performed just like the first—badly. As in the first EUO, counsel’s misunderstanding of the permissible range of inquiry in a sworn statement taken to verify a simple theft loss, whatever might have been the insurer’s suspicions, was palpable. Upon a review of the entire record, it now is undeniable, in my estimation, that—although it should have been—the insured’s claim in this case was not resolvable absent judicial intervention.

I said Good Day, Sir!

Intrepid Insurance v. Prestige:

I note this only because it's kinda cool to see Judge Schwartz grant a summary judgment motion that was never filed below (see footnote 1).

3d DCA Watch -- "Super Technical" Adverb Modifying Adjective Edition!

I get this confused, but an adverb can modify an adjective too, right?

Let's study Judge Schwartz' dissent in Stock Building v. Soares and see if we can find any examples:

With respect, I believe the Court’s analysis to the contrary embodies a super technical approach to the statutory scheme and gives binding effect to the utterly immaterial variances from the ordinary which had no effect upon the substantial rights of the parties.

So Judge Lagoa's approach is not merely technical, but "super" technical -- that's an adverb modifying an adjective, correct?

And the variances are not merely immaterial, but "utterly" immaterial -- is that another adverb modifying an adjective?

Or is this discussion too technical?

Portuondo v. Farm Stores:

You're kidding -- there is confusion over how to apply the offer of judgment statute?

Who knew?

But Judge Shepherd's pithy dissent really leaves a mark:

SHEPHERD, J., dissenting.

I dissent.

This is the judicial equivalent of when I screwed up as a teen and my Dad gave me the dreaded "silent treatment."

It still stings!

3d DCA Watch -- May the Schwartz Be With You!

Oh happy day, the bunker denizens have a new occupant, which of course means it's time to polish the used equipment in the mechanical room/gym, retighten the bolts so the sinks are securely fastened to the walls, and wax down the concrete -- it's party time!

 Oops!  That's the Bilzen shot put lunch club, sorry.

Here's the right image:

What?

It's just some friendly locals enjoying a bonfire -- gotta love those old-fashioned values, I always say.

Ok, seriously now, here's the correct photograph of the bunker party planning committee:

You know what, I'm gonna quit while I'm ahead -- let's get right to the written utterances:

Robles-Martinez v. Diaz, Reus:

Ahh, what a heartwarming bedtime story:

Appellee law firm Diaz, Reus sued its client, Cesar Lindo Hoyos, for unpaid fees.

How could something like that go wrong?

Ramirez v. United Auto:

Dear United Auto, you are about to receive Maximum Schwartz:

The insurance company makes no defense, as it could not, of the merits of the order under review. Indeed, its lawyer has what some may call the candor∗ to agree that

[i]f [the insured’s attorney] had contacted undersigned prior to filing his petition in this Court, Respondent would likely have agreed to a motion for rehearing in the circuit court because the denial of his appellate attorney’s fees was legally erroneous.

Rather than confessing error, however, as this concession would seem to require, see Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571-73 (Fla. 2005), United has what some may call the courage* to contend that, having sought judicial, rather than telephonic relief, by filing this completely appropriate petition, the plaintiff is out of luck. This is because, it says, the case does not meet the requirements for second tier review most recently articulated by Custer Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010).

To put it mildly, we disagree.

Here is Judge Schwartz' starred footnote:

∗ The reader, if any, is invited to substitute her own preferred equivalent expression. See, e.g., Hayes v. Guardianship of Thompson, 952 So. 2d 498, 509 n.14 (Fla. 2006) (chutzpah); Zabrani v. Riveron, 495 So. 2d 1195, 1197 n.2 (Fla. 3d DCA 1986) (same); Price v. Gray's Guard Service, Inc., 298 So. 2d 461, 464 (Fla. 1st DCA 1974) (intestinal fortitude).

Oooh, oooh, can I play?

Cajones?  S#^t-for-brains?  Extraordinarily-poor-legal-judgment?

Come on kids, you can play too!

Let's Hear It for Chief Judge Wells!

Oh boy were there good times in the bunker yesterday as Judge Linda Ann Wells became the first female Chief Judge of the 3d DCA.

Much like we'll be looking back at the gay marriage wars twenty years from now, the investiture included remembering a time when there were very few woman lawyers (it wasn't that long ago) and a partial reading from Bradwell v. Illinois, the lamentable 1873 Supreme Court decision upholding the right of Illinois to exclude women from the Bar because admitting them to practice would surely destroy their "femininity."

Doesn't it feel good to be on the right side of history?

Judge Emas also led a raucous "Happy Birthday, Mr. President" to Judge Schwartz, who officially turned 39 the other day.

Congrats all around!

BREAKING -- 3d DCA To Disclose Oral Panelists Before Next Week's Calendar!

It's true I was absolutely mesmerized to learn of the intricate details of the 3d DCA's construction in the riveting lecture "Appreciating Concrete:  An Hour-By-Hour Account of How the Bunker Was Born!" during the recent Third DCA Historical Society luncheon, so I may have missed something minor in what was an otherwise highly informative event.

That's why I was surprised to hear from a tipster that Chief Judge Ramirez apparently also said something about the 3d now disclosing who will sit on its oral argument panels starting the Wednesday before the next week’s calendar.

The first panel up for May 16 arguments is Schwartz, Schwartz, and Schwartz.

Good luck all.

I kid, I kid!

Actually, it will be Suarez, Lagoa and Emas.

See, this is what happened when you get caught up in a debate over whether it's more important to have a relatively high compressive strength, or a lower tensile strength, and what is the proper coefficient of thermal expansion.

For gosh sakes, will that argument ever end?

3d DCA Watch -- 420 Day in the Bunker!

It's 420 day so let's get hydroponically situated and take a deep whiff of what the bunker is smoking swilling:

Simon v. Maldonado:

Interesting opinion dealing with standards for post-verdict juror interviews.  Court reverses Judge Platzer order granting new trial after concluding there was an insufficient basis to conduct the interview in the first place. 

Anderson v. Upper Keys Business Group:

Two groups battling over the right to hold a nonsense event "celebrating" the nonexistent birth of the Conch Republic.

I say they take two cheeseburgers in paradise and settle this dispute the way any self-respecting Parrot Head would -- by opening a garish, soul-sucking corporate tourist trap designed to weakly mirror any kind of authentic dining experience.

TBOM Mortgage v. Brown:

Judge Schwartz gets into the "dismissive quote marks" trend and chastises the unnamed trial judge for the "personal disinclination" that apparently led to the trial court's refusal to foreclose on some lady's house.

Although the plaintiff mortgagee in this “routine” home foreclosure case clearly established its right to a default against the mortgagor, the trial court refused to enter one, giving only what must be called the spurious reason that the non-military affidavit was in some unspecified (because non-existent) way “insufficient.” In fact and in law, the affidavit, which was in the universally accepted form, and was supported by evidence which clearly established that the defendant, who was personally served at his home in Miami-Dade County, was not in the military service, was legally impeccable....[I]t is established and we repeat that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise.

Not so fast, or should I say "so fast," sayeth Judge Salter:

First, the petition was untimely. The essence of the petition is a claim that the trial court departed from the essential requirements of law in its ruling—not that it has failed to rule despite a clear legal duty to do so.  The petitioner’s claim thus should be treated as a petition for certiorari rather than a petition for mandamus. Judicial notice of the circuit court docket in this case reveals that the order denying the motion for default was docketed the day it was signed by the trial court, October 26, 2010. The petition was not filed within thirty days of the order as required by Florida Rule of Appellate Procedure 9.100(c).

I love that -- bringing out the fancy-pants "rules" governing this appeal, citing one that would arguably go to the Court's "jurisdiction" to even hear the case!

The Judge goes on to point out that the word "may" is in the rule, and thus it's not mandatory but in fact "discretionary":

As the creations of lawyers, judges, rules committees, and Justices, rules should be presumed to appropriately differentiate “may” from “shall” and to record in the published comments any thoughts or inferences to the contrary.

Finally, Judge Salter addresses the "personal disinclination" issue:

Finally, the petitioner’s assumptions regarding the trial judge’s thought processes are not supported by a transcript and are, in my view at least, unprofessional.

Hold on -- was it only the petitioner who wrote about the trial judge's "personal disinclination"?

Check out footnote 5 -- it's a "doozy."

Pick on Your Favorite Senior Judge!

Well, I suppose you could also pen a deeply-felt and tenderly expressed tome, professing unabiding and undying love, admiration, and respect.

But I know you guys too well for that.

Anyhoo, here's the list of usual suspects:

Philip Cook, Robert M. Deehl, Charles D. Edelstein, Eugene J. Fierro, Seymour Gelber, Marvin H. Gillman, William E. Gladstone, Leonard E. Glick, Jon I. Gordon, Edward S. Klein, Judith L. Kreeger, Thomas K. Petersen, Jeffrey Rosinek, Alan R. Schwartz, Martin Shapiro, Roger A. Silver, Stuart M. Simons, Raphael Steinhardt, Herbert Stettin, Sandra Taylor and David L. Tobin.

You can send your comments via email to seniorjudge@flcourts.org, or snail mail to Thomas D. Hall, Clerk, Florida Supreme Court, 500 South Duval Street, Tallahassee 32399.

You can also make actual, real live human contact by calling our very own Judge Juan Ramirez, Jr., chair of the Review Board, at (305) 229-3200, ext. 3216.

Get 'em in by tax day!

3d DCA Watch -- Judge Schwartz Kicks Off the New Year With a Bang!

Our favorite Senior Judge had a big week to kick off 2011. 

Let's take a look:

Tahiti Beach v. Pfeffer:

Here the good judge just sits on the panel as Judge Salter, in his usual efficient and logical way, disposes of Andy Hall's appeal on behalf of swanky Tahiti Beach, which had imposed a $285k fine on a homeowner for not completing their construction or landscaping within 24 months.

The cretins!

Higginbotham v. Higginbotham:

Here Judge Schwartz reduces a spouse's $305k fee award as excessive, noting that the husband's counsel's fees were only $138k for pretty much doing the same work.

Miami-Dade County v. Eghbal:

Finally, here Judge Schwartz dissents from an affirmance of an age discrimination and retaliation claim against the County, saying there just was not enough evidence:

I do not believe the evidence is sufficient to demonstrate an indispensible element of a retaliation claim: that is, that the decision makers actually knew of the employee’s complaint so that their adverse action could have been causally related to that protected activity.....In this regard, it is undisputed that (a) Eghbal never told any of the three panel members, either specifically or impliedly, that he had made such a complaint and (b) two of the three stated, in unimpeached and uncontradicted testimony, that they were not aware of it.

Ok, but what about the third one?

3d DCA Watch -- Lolly Lolly Lolly Edition!

YES!!

Alright kidzzzzz, let's do this:

Liebherr-America v. McCollum:

This case arises from an unfortunate accident at the Port of Miami where a sleeping longshoreman was crushed to death by a huge mobile crane.

The question presented involves the potential apportioned liability of one of the defendants, an entity that sold the crane and had a service contract to maintain it.

In a well-reasoned opinion by Judge Schwartz, the Court found there was no basis for any apportioned liability against this defendant:

We consider and reject each of the even arguable bases upon which the appellant may be held liable....

Got that? "Even arguable" bases.

I notice that Judge Schwartz has a way with adverbs.

How arguable are the bases? They are even arguable, those bases they are!

The Judge continues:

There was much conflicting evidence in the case on that issue, but it fell completely out of the case when the jury found that the crane was not defective at the time of the sale.

How far did the evidence fall out of the case?

Completely!

Kids, how exuberant is Judge Schwartz in his opinions?

Extremely.

3d DCA Watch -- Worth The Wait.

I got into a debate with someone at the courthouse the other day over which bunker is more secure -- Scott Rothstein's padlocked and elaborately secure Fort Lauderdale lair, or the newly reinforced and fortified judicial bunker by the highway.

In many ways they are similar:

** armed guards -- check;
** intercom and/or pneumatic tube messaging system -- check;
** inhabitants garbed in resplendent robes when preparing court orders -- check;
** miles of concrete poured for no apparent aesthetic purpose -- check.

But hold on -- only one has free coffee, right?

Sorry Scotty, I have to go with my heart (and stomach) on this one.

So let's see what word tea our master brewers have prepared for us (one day late) this week:

Cohn v. The Grand:

Anyone remember that Phil Collins song from the 80s, Pom-Pom-ponio?

(Man, what the hail were we thinking?)

Well Judge Cope does, and he pulls out that old chestnut to do a "substantial impairment" analysis of a condo regulation.

I've never been a fan of the "substantial impairment" test -- haven't we all been substantially impaired at least once in life -- maybe in college at least?

Even a statute deserves a second chance.

But it is what it is, and under the Pomponio analysis that dumb legislature went ahead and impaired contractual relations for no good reason -- just because they think they can, that's why.

But then that's why we have courts, right?

Right?

Bell Care Nurses v. Continental Casualty:

See, this is why I do this blog.

Here's Judge Schwartz referencing a classic Alan King comedy bit (sorry Judge, I couldn't find it on YouTube):

An ever-diminishing few of us remember Alan King’s story about a homeowner with a fire and theft policy who made a claim when his house burned down. He was met with the company’s denial of coverage on the ground that he needed instead a fire or theft policy and that, as written, the policy applied only if he were robbed while his house was on fire.

This case shows that things never really change.

And there's more:

We now revert to a traditional, formulaic, non-discursive discussion of the case before us.

Hey -- why so soon?

Don't do it on our account, we like nontraditional, wildly unformulaic, discursive opinions much better.

(And sorry about the ruling, Laura).

That was great of the Judge to bring up Alan King. Alan was a great stand up, fine actor, and wrote some really superb books, including Is Salami and Eggs Better Than Sex? and his reflections on growing up, Matzo Balls For Breakfast

My personal favorite is I believe his first book, Help! I'm A Prisoner in a Chinese Bakery -- a skewering of the newly emerging Mad Men-era suburbia that still holds up today -- and sadly out of print, just like Alan.

RIP old man.

3d DCA Watch -- Judge Schwartz Explains The "Ground" of Benevolence And Compassion.

Hi kids!

I just started R. Crumb's newly published book -- four years in the making -- which is an illustrated word-for-word graphic retelling of the entire Book of Genesis.

Here is Amazon's blurb on it:

This eagerly awaited graphic work retells the first book of the Bible in a profoundly honest way. Peeling away the theological and scholarly interpretations that have often obscured its most dramatic stories, R. Crumb—using the actual text word for word—has imagined the Bible as it really was. Now, readers of every persuasion—Crumb fans, comic book lovers, history buffs, and believers—can gain astonishing new insights from these harrowing, visceral, and even juicy stories. Crumb’s The Book of Genesis reintroduces readers to Adam and Eve’s Eden, Noah’s Ark, Sodom and Gomorrah, and the Pharaoh’s Egypt. Using clues from the text, Crumb fleshes out the parade of biblical originals: from the sensitive dreamer Joseph to the crafty Jacob, to the still-fetching Sarah, to God Himself. The result, four years in the making, is a tapestry of extraordinary detail, the finest work of Crumb’s legendary career.

So far I have to agree with Amazon -- it's as good as they say -- with lots and lots of Biblical canoodling and plenty of God's wrath.

The reason I mention it now is because Judge Schwartz drops some wrath of his own on Judge Valerie Manno Schurr.

Her crime? Showing unwarranted judicial compassion by routinely granting continuances to homeowners facing foreclosure sales.

Here's what Judge Schurr said that got her in trouble:

I was trying to make everybody happy.
. . . .
We have so many foreclosures here and I give
continuances on these sales. I just do.
. . . .
Unless it is so abundantly clear to me that it is just an
abuse of the process, I give extensions on these because I
don’t want anybody to lose their house. If there is any
chance that he can do this deal, get the money and try to
save this home, you know, people are having a hard time
now. They are having a difficult time. Everybody
knows it. Businesses are failing. People are losing
money in the stock market. You know, unemployment is
high. It’s just everybody knows that we are in a bad time
right now and I hate to see anybody lose their home.

Oy.

Ok, I agree this could have been better worded (or not expressed on the record) and perhaps a more suitable basis can be found for the discretionary extension of a foreclosure sale under certain circumstances.

And guess what -- Judge Schwartz didn't like this speech either:

Although granting continuances and postponements are, generally speaking, within the discretion of the trial court, the “ground” of benevolence and compassion (or the claim asserted below that the defendants might be able to arrange a sale of the property during the extended period until the sale) does not constitute a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.

For good measure the Judge cites Canakaris, a case that pleases me almost as much as Venetian Salami.

Indeed, that Justice Cardozo language never grows old:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.

B. Cardozo, The Nature of the Judicial Process 141 (1921).

Maybe it's all that Book of Genesis imagery swirling around in my head, but I actually agree with Judge Schwartz here -- there has to be a better articulation of the grounds for exercising discretion than simply "people are hurting."

Oh boy.

3d DCA Watch -- Through A Glass, Obversely Edition

Hi kiddies!

Is it kismet, fate, or simple indigestion that I happened to glance at my DCBA Bulletin and, after reflecting on the full-color beauty that is my friend Timothy Ravitch (what, no color for Gisela Munoz?), noticed that the DCBA plans to honor Judge Schwartz with a Judicial Excellence Award.

Hey, I just report this stuff.

But alas it is hump day, and my job here is not done. Yes, I must read the scribblings! Or magnificent examples of legal scholarship, you decide.

Whatever you call it, the Resplendently Robed Ones have issued Important Utterances, and damn you, WE WILL NOT BE IGNORED.

Ok ok, we're interested, really, even all you Fancy Pants federal court practitioners, because sometimes those judges (at least the Catholic ones) also try to figure out Florida law.

And good luck with that whole thing.

So onward we go, through the coffee-swilled landscape of beautiful South Dade, and on to this week's patently, patiently, I mean patented 3d DCA Watch:

Hall, Lamb v. Sherlon:

Oh this is a fine South Florida story. Poor Andy Hall, nice guy and good lawyer. Has a client, tries to settle case, client fires him and hires a suspended attorney. Andy then files charging lien, the parties settle, and the suspended lawyer steals all the settlement proceeds.

Just another day in paradise, folks.

Trial court refuses to adjudicate lien against settling defendant. Court reverses, finding that there may be joint and several liability against the appellee/defendant:

Here, it is undisputed that upon being terminated, the law firm notified the parties of its interest in recouping the fees earned during the course of representing the former client. Such a perfected lien is “chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future.” Hutchins v. Hutchins, 522 So. 2d 547, 549 (Fla. 4th DCA 1988) (emphasis added). See also Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574, 580-81 (Fla. 1st DCA 1993) (holding that if a party has notice of an attorney’s charging lien, pays out a settlement to the attorney’s client, and fails to protect the attorney’s interest, the paying party may be held jointly and severally liable for the attorney’s fees along with the attorney’s client to the extent of the settlement proceeds or other funds held). Accordingly, the law firm argues that Sherlon, along with the former client and Blumstein, may be held jointly and severally liable for the fees earned during the law firm’s representation of the former client. We agree.

There is no question that as a party to the settlement, Sherlon had an affirmative duty to notify the law firm of the settlement and to protect the law firm’s lien interest in the settlement proceeds. Zaldivar v. Okeelanta Corp., 877 So. 2d 927, 930 (Fla. 1st DCA 2004). Similarly, the record now before us indicates that although Sherlon and the former client reached a settlement by the end of September 2006, Sherlon failed to notify the law firm of the settlement in any way until November 2006—when the parties obtained a dismissal of the action with prejudice from the trial court. Furthermore, Sherlon took no other steps to protect the law firm’s interest. Sherlon did not ask the trial court to prevent the direct payment of the law firm’s fee to Blumstein and the former client or to set those funds aside. Instead, Sherlon paid the entire settlement to the former client (through Blumstein) without providing safeguards for the law firm’s lien interest. And regardless of Sherlon’s intent, by doing so, Sherlon may have committed a fraud upon the law firm. Heller v. Held, 817 So. 2d 1023, 1025 (Fla. 4th DCA 2002).

But no, says Judge Schwartz in dissent. In fact, Judge Schwartz grants the appellee a phantom summary judgment, absolving them from all potential liability:

While I agree that Sherlon did not appropriately alert the appellant law firm of the settlement, I dissent from reversal because that failure was not a legal cause of the firm’s failure to recover.

The reason for informing the lawyer of a settlement is to permit him to take steps to protect his charging lien. See Zaldivar v. Okeelanta Corp., 877 So. 2d 927 (Fla. 1st DCA 2004). In this case, however, the Hall firm, by other means, actually learned not only of the settlement but of the location of the proceeds: in “escrow” with the plaintiff’s representative, a person who stated he was an attorney, but was not. Indeed, the firm succeeded in imposing a charging lien on the fund – just as it would have had the defendant given appropriate notice. Hall did not get its fee, however, only because the “escrow agent” eloped with the entire settlement. Putting it in legalese, the theft was the sole proximate cause of Hall’s damages. Obversely, the appellee’s missteps were immaterial to and were thus not a legal cause of the loss.

First of all, that's not the issue on appeal but umm, how do you know this, Judge? The majority opinion specifically states that "Sherlon did not notify the law firm of the settlement or that it had transferred the total amount to Blumstein."

Maybe if Andy was aware of the pending transfer, before it went to Blumstein, he could have moved to have it placed in a different escrow account or maybe the registry of the court?

Or is that question too obverse?

Teachers, Masseurs And Other Non-Responsible Positions.

Careful readers know I adore Judge Schwartz.

And it's not just the ticky-tacky, gloriously large nature of his opinions, it's what he says sometimes too!

Here he is patiently explaining the proposed rule change so that convicted felons can't ever become lawyers, ever:

“We just felt it was inappropriate to have convicted felons barred from being on the Game and Fresh Water Fish Commission and being teachers and masseurs, and a whole slew of what would seem to be non-responsible positions, and not have it impossible to be a felon for a lawyer,” said Third District Court of Appeal Senior Judge Alan Schwartz, who chaired the 15-member commission.

Exactly --a whole slew!

Teachers, masseurs, hot dog vendors, cosmonauts, law professors, you know, meaningless non-responsible dead-end jobs nobody gives a hail about.