Magistrate Judge Brown and the "Full Circle" Game.

JudgeBrownScottOrth

Once again Magistrate Judge Brown has issued an order that I cannot do justice by simply summarizing or excerpting, though this perhaps gives a taste:

Orth confirms rather than calls into question that he continues to misunderstand his responsibilities to the Court. They are not what he wants them to be, but what the Court's management of its calendar dictates. He completely ignores the exceptional circumstances that led to the setting of this hearing and the reasons for same. Some hearings may be considered "routine" - those set when there are serious discovery matters pending, a rapidly approaching trial date, and a discovery deadline that has passed, are not.

Not without notice, this motion comes "full circle" in that the first reason for Orth's unavailability was because of travel for Chanukah (see D.E. 95). The second was for travel related to his fiftieth birthday, with no mention at all of Chanukah (D.E. 108). The third now incorporates the first and second (see 73c). This motion now states, for the first time, that Judge Martinez' Order striking Orth's Notice of Unavailability was "inexplicably misplaced" (73d). This was not mentioned in response to the Order to Show Cause (D.E. 108) and was never mentioned at the hearing Orth has already been given on the matter. While his staff "insists that the facts ... were communicated to the Court ",)Id., they apparently don't even know which Court they communicated with! The affidavits filed reflect the substance of conversations with Judge Martinez' chambers ... however it was the chambers of the undersigned that advised that the Notice of Unavailability was stricken and that a motion for continuance should be filed.

The situation, unfortunately, gets more egregious. Paragragh 3e of the instant motion indicates that a motion was filed in this Court under the signature of Orth by someone who is not authorized to practice law, because some else "completely trusted to communicate with courts when necessary" (but who is also not authorized to practice law) was unavailable, which motion admittedly was not approved or authorized or reviewed by any attorney! What, exactly, would Orth have this Court do with regard to this "revelation" ... shrug its shoulders and disregard same ... or forward same for criminal prosecution? See, e.g, Fla. Stat. $454.23; Jay M. Zitter, What Constitutes Unauthorized Practice of Law by Paralegal, 109 A.L.R. 5th 275(2003). However, Orth's attempt to "throw someone else under the bus," doesn't change his duties and responsibilities as an officer of the court.

You know, I'm going to start using exclamation points more in my own brief-writing....oh wait...in my own brief-writing!!!

3d DCA Watch -- The One Where Judge Cope's Law Clerk Outlawyers The Lawyers. Oh Yeah, and Kenny Nachwalter Gets Disqualified (Yawn).

Ok kiddies, it's that time again so let's jump right in and see what our coffee-swilling, Technicolor-robed brethren down south have been up to in this topsy-turvy, action-packed edition of 3d DCA Watch:

Skylake v. NMB Plaza:

Whoah -- holy great-research-by-Judge-Cope's-clerk, Batman!

This case has to do with a ten-year lease signed by landlord NMB Plaza, an LLC, which was repudiated for whatever reason by the landlord. The tenant sued, and the landlord's defense was that the lease was not valid because it did not have the two signatures required under Fl. Stat. 689.01.

The tenant, represented by Scott Orth, countered that there is an exception for corporations. Too bad so sad, Judge Cope noted (I'm paraphrasing), the landlord is an LLC, not a corporation, so that exception does not apply.

It's right there that Judge Cope's clerk heroically swings into action:

Our independent research discloses the existence of another exception. Chapter 608 contains its own provisions regarding the disposition of limited liability company property, including real estate. “Instruments and documents providing for the acquisition, mortgage, or disposition of property of the limited liability company shall be valid and binding upon the limited liability company, if they are executed in accordance with this chapter [608].” § 608.425(3), Fla. Stat. (2003). A lease qualifies as a “disposition” of property of the limited liability company.

Section 608.4235, Florida Statutes (2003), addresses the authority of limited liability company members, managing members, and managers. Subsection (3) provides:
(3) Unless the articles of organization or operating agreement limit the authority of a member, any member of a member-managed company or manager of a manager-managed company may sign and deliver any instrument transferring or affecting the limited liability company’s interest in real property. The instrument is conclusive in favor of a person who gives value without knowledge of the lack of the authority of the person signing and delivering the instrument.
(Emphasis added).

The lease bears the signature of Eli Hadad on behalf of NMB Plaza LLC as lessor. The lessor’s answer admits that the lease was signed and raises no claim that the lessor’s signature was unauthorized.

As already stated, subsection 608.425(3) provides that the disposition of property of a limited liability company is “valid and binding upon the limited liability company, if . . . executed in accordance with this chapter [608].” Thus it is only necessary that a conveyance by a limited liability company (in this case a lease) comply with chapter 608. It is not necessary that the document contain the signatures of witnesses required under section 689.01. For the stated reasons, we conclude that the lease should not have been held to violate section 689.01.2.

Now that raises some interesting questions. First, why not make that argument? I admit it's not immediately obvious to check the conveyance parameters of a member of an LLC in the LLC statutory section, but on the other hand I guess it turned out to be pretty useful for someone to have done so. Maybe there's another reason, who knows?

Also, isn't there a possible contradiction between the two statutes, where one is more general and one more specific?

Finally, did the landlord, represented by Bennett Feldman, have an obligation to raise that section if he knew about it, either at the trial or appellate level? Or did he not know?

Let's see what else.....

Bauknight v. Monroe County:

This is a takings case involving some property on Big Pine Key that is notable mostly because the appellant was represented by the Richard Scaife-funded Pacific Legal Foundation.

Guess which Judge (not sitting on this case) used to be counsel to that group? Oh well, the appellant lost here anyway.

Let's see, anything else...

Default Proof v. Niro:

Oy -- Arbitration, choice of law, FAA, Leslie Lott. If you find any of the foregoing interesting, you can read the darn thing yourself.

The rest of these opinions are pretty dry, let me see if there's anything else....

Atlas Air v. Greenberg Traurig:

BINGO! From what I can tell, in a suit by Atlas Air against GT, some confidential attorney-client documents were inadvertently delivered to GT's counsel, Kenny Nachwalter.

Now of course we all know what to do in that situation, being good professionals and knowing that we are all colleagues in the same Bar. Kiddies, what do you think happened?

According to the opinion, Atlas moved to disqualify Kenny Nachwalter. Although the trial court disqualified the Kenny partner who first received the docs, it did not disqualify the entire firm.

Wrong, in a PCA by a panel that included polite and always gracious SFL fave Judge Schwartz. In fact, the petition was granted and Kenny Nachwalter disqualified because:

This determination is based upon our finding that the Kenny Nachwalter firm fell far short of satisfying the requirements of the controlling case of Abamar Housing & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 724 So. 2d 572 (Fla. 3d DCA 1998), rev. dismissed, 729 So. 2d 918 (Fla. 1999) (Abamar II); see Abamar Housing & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA), rev. denied, 704 So. 2d 520 (Fla. 1997) (Abamar I); Marcus & Marcus, P.A. v. Sinclair, 731 So. 2d 845 (Fla. 3d DCA 1999); and, of particular significance, that it took an unfair, “informational” advantage of its adversary in the process. Abamar II, 724 So. 2d 572; Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505 (Fla. 4th DCA 1986); Double T Corp. v. Jalis Dev., Inc., 682 So. 2d 1160 (Fla. 5th DCA 1996); Zarco Supply Co. v. Bonnell, 658 So. 2d 151 (Fla. 1st DCA 1995). Disqualification of the firm as a whole is therefore required.

"Unfair, 'informational' advantage." Sounds more like the name of a European punk rock band than a proper legal standard, but whatever it is you don't want to be found to have engaged in it. There has got to be a good story or two behind this opinion.

Phil Allen, my hat's off to you, buddy, another well-earned notch for that lovely boat of yours.