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

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

Taplin v. Taplin:

Wealthy muckety-mucks fighting over trust funds.

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

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

The trustees forget, however, that in the same legislative session in which section 95.02 was repealed, section 737.307, Florida Statutes, was created.

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

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

Suarez v. Benihana:

Never get into a fight at a Benihana.

Why did I even need to write that sentence?

Valasquez v. Ettenheim:

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

That was simply stated.

3d DCA Watch -- The Jews Are Restless Edition.

L'shana tova, kiddies!

God I miss Neil Rogers  (link goes to audio of classic "bridge tender" bit).

Don't you think he would have been all over this crazy story about the temple in Sunny Isles that wants to expand against the wishes of the city commissioners?

This rabbi is something else btw:

``Hitler tried to eradicate the Jewish nation,'' he added. ``As long as the synagogue keeps on going, we're defeating the Nazis. An action that is intended to minimize the growth, I calculate that as Nazism. . .

The biggest battle, however, was between the mayor and the rabbi.

Lankry refused to address the commission members in English and taunted, ``I forgot. I'm not in Germany,'' before launching into Yiddish.

``Do it in English, this is not a show,'' commanded Edelcup, a former member of the temple.

Oy.

Well now the Resplendent Ones have weighed in, at least on an ex parte order to show cause that Keith Poliakoff got from Judge Donner that would have stopped the City from moving forward until the parties mediate:

The Temple argues that the order was not a temporary injunction because the underlying proceeding was a petition for a writ of mandamus and therefore the order “simply impose[d] a brief ‘stay’ on the proceedings” to “preserve the status quo.” However, “[t]he very purpose of a temporary injunction is to preserve the status quo in order to prevent irreparable harm from occurring before a dispute is resolved. The Order in this case, by preserving the status quo . . . clearly constituted a temporary injunction.”

I agree.

I think it may have been too clever by half to go in on an order to show cause why a writ should not issue, as opposed to just seeking a TRO and attempting to satisfy that standard.

But what do I know -- it's state court, after all.

Happy Rosh Hashanah everybody!

Where Are My Loyal Tipsters?

I'm really ticked off someone shared braless crusader Brittney Horstman's FDC tale of woe with Miami Herald reporter Jay Weaver instead of yours truly -- didn't any FACDL list-serve lawyer recognize it as perfect material for this blog?

Come on people!

Actually, the story is beyond stupid -- what is the point of these rules? They strike me as sexist and vague (no "clothing that is tight and sexually suggestive or revealing").

Has this restriction ever been enforced against a man?

Also, why subject any lawyers seeing clients to these rules? Aren't we officers of the court, like judges and CSOs? Have there been prior incidents that would justify making lawyers take off their bras when seeing their clients?

If so -- tell me more.

In other news, the Federalist Society will be meeting tomorrow at the Four Seasons, hosting former FEC commissioner Hans von Spakovsky.

I've been following Spakovsky's legal writings on NRO, which have been strictly doctrinaire, uninspired and exceedingly partisan (here he is recently bashing a career Justice Department appellate attorney for receiving a commendation even though she wound up losing an appeal).

But I had no idea of the extent of it before reading about his background on Slate.

Let's just say he seems completely fair and balanced.

In other news, Judge Donner apparently needs a better internet connection:

She took offense at DuPont attorneys, who claimed her access problems were not due to the depository itself but the quality of her Internet connection, the court’s computer firewall and anti-virus software.

Company attorney Bert Ocariz of Shook Hardy & Bacon in Miami said Donner would fare better if she tried from a different location.

Dude, I'm not sure that's the best way to handle that issue.

Did you also complain about her fax machine and tell her the courtroom A/C's not working so hot?

Awkward!

3d DCA Watch -- Zager And Evans v. Du Pont Edition

I think it was in 1889 that Du Pont first pulled the fungicide Benlate off the market, leading to lots of claims and lots of headlines and lots and lots of South Florida lawsuits.

Well the bunker is still churning out Benlate opinions, and the Resplendently Robed Ones have today handed a solid rebuke to Judge Donner, who gets to do it all over again, and again, and again, and so on.

By this rate I'm pretty sure all Benlate litigation will conclude sometime in 2525, and you know I'm kinda wondering if Man will still be alive. He's taken everything this old Earth can give, and he ain't put back nothing, whoa-whoa...

Oops, sorry.

Here's the key holding:

We first [consider] Du Pont’s consolidation issue raised on cross-appeal. Du Pont argues that the trial court abused its discretion in consolidating the individual claims brought by the twenty-seven plaintiffs against Du Pont. We agree with Du Pont that the trial court erred when it consolidated the individual claims brought by the twenty-seven plaintiffs against Du Pont. Therefore, we reverse and remand for new, separate trials.

The Court also held that evidence of past settlements was improperly introduced, as were testimony by other growers who allegedly had substantially similar claims. Finally, the Court concluded that the new theory of liability presented at trial was not adequately covered by the general pleadings in the complaint.

Now it's been 10,000 years, Man has cried a billion tears, For what, he never knew. Now man's reign is through. But through eternal night, The twinkling of starlight. So very far away, Maybe it's only yesterday.....