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The trustees forget, however, that in the same legislative session in which section 95.02 was repealed, section 737.307, Florida Statutes, was created.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

Ervin Gonzalez Objects to Victor Diaz Chinese Drywall Settlement?

Hmm, there is undoubtedly a huge back story here:

Miami-Dade Circuit Judge Joseph Farina has overruled objections and approved a $1.8 million settlement in a Chinese drywall class action with Homestead homeowners.

Farina approved more than $2.9 million in attorney fees and costs to close the case.

Ervin Gonzalez of Colson Hicks Eidson in Coral Gables tried at a Feb. 4 hearing to scuttle the settlement on behalf of 29 of the 79 members in the suit between Keys Gate homeowners and Banner Supply, distributor of the defective drywall.

Farina recognized in the order that many homeowners wanted to opt out of the settlement because personal injury, bodily injury and medical-monitoring claims were never asserted in the complaint.

However, he said the settlement language defined released claims as "any and all causes of action, damages or injuries arising from or related to defective drywall."

This was the exact language used in a separate settlement involving other defendants in the same class action, Farina noted. South Kendall Construction, Palm Isles Holdings and Keys Gate Realty worked out their $6.6 million settlement first, and Farina said the appropriate time to raise an objection on illness claims was at that settlement hearing last July.

"Objecting to this principle now, for the first time, is not timely — particularly when counsel for the objectors was among those attorneys who signed" the initial settlement, Farina stated in the order.

Gonzalez said that while he appreciated the judge's willingness to hear homeowners' concerns, they would appeal.

"We feel it's a matter of great importance that should be decided by a court of higher authority," he said. "We think it's a matter of first impression in the state of Florida."

Farina noted homeowner concerns about bodily injury are prospective and unconfirmed at this time because no scientific proof has been produced showing the tainted drywall causes illness.

The judge did suggest homeowners still have recourse to pursue bodily injury claims. Banner Supply is suing Knauf Plasterboard, the Chinese manufacturer, and homeowners could attach their claims to that suit.

He said health claims also could be made before a New Orleans federal judge presiding over multi-district litigation.

A couple things -- it's pretty unusual to see a release of personal injury claims in a suit for economic injury arising out of property damage.

And of course the Judge is right that class members could assert personal injury claims in other forums, such as in New Orleans, but to do so they would have to opt out of the settlement and therefore not receive any of the benefits for a case that had been only about property damage.

It's also interesting that the Court apparently certified a class -- for settlement purposes only -- that presumably included individual personal injury claims.  I wonder whether those claims were valued in the settlement and, if so, how much?

(That doesn't mean the settlement is not proper btw).

As for lateness, the Judge notes Ervin was a signatory to a prior settlement with other defendants that also included an identical release of personal injury claims.

Now that's where it gets interesting -- perhaps the back story begins right there?

Things That Make You Go "Hmmm."

Let's see....wake up South Florida!

John Pacenti is a fantastic reporter, and I've certainly had my fun with Big Lew, but I sort of agree with Joe DeMaria regarding the Lew Freeman emails that appear on the front page of today's DBR.

They're entertaining as you would expect -- and naturally involve food and bowel movements -- but where's the newsworthiness?

They seem private to me and I feel somewhat uneasy reading them.  That doesn't mean they shouldn't be published if there's some larger point to them, but I guess I'm not seeing it at the moment.

Or maybe I'm missing something -- what do you all think?

Other exciting news -- the guy in charge of handling US renditions to Egypt is now Mubarak's new VP -- that definitely makes me go "hmmm."  And even Dr. Zhivago says it is time for regime change.

Hmmm.

But this is my favorite "hmmm" moment of the morning (from today's DBR but not online):

Robert C. Josefsberg, a partner with Podhurst Orseck in Miami, has been named to the steering committee in the Chinese Drywall multidistrict litigation in New Orleans, replacing outgoing partner Victor Diaz.

Double hmmm.

Young Vic Diaz To Start Own Law Firm!

We're really happy for him:

Attorney Victor M. Diaz Jr., a partner at Podhurst Orseck, is leaving the firm for a Miami Beach startup with three other lawyers from the firm.

Diaz has spent his whole law career at the Miami-based plaintiff-and-appellate law firm since graduating from Yale Law School in 1985.

“Victor is a great friend and an exceptional attorney,” Aaron Podhurst, founding partner of Podhurst Orseck said in a joint statement issued by Diaz and the firm. “While his departure is bittersweet, I am proud to see him fulfill a dream of building a firm on his own.”

Also, I found an old high school photo of Victor which also still happens to appear on the Podhurst firm website:

I sure hope he tries out for track next year!

Victor Diaz Is A "Disgruntled Taxpayer" And Other News.

Victor Diaz is many things.

Bright, handsome, impeccably groomed -- sure.

Hail of a trial lawyer -- of course.

Now add one I haven't heard before:

"I point out as a disgruntled taxpayer . . . the taxpayers will pay for the write off of those loans through the TARP process,'' Diaz said, referring to a federal bailout of major banks in 2008.

Victor continued, 

"I mean, take a look at my 1099s.  Does anyone know the latest on extending the Bush tax cuts?  Don't even get me started on the luxury tax.  Boy does this crap really hack me off!  Umm, where was I"?

It's ok Victor, I'm worried too.

In other news, Joel Perwin scores a big win before the Florida Supremes, reversing the 4th DCA on whether "lost profits" damages are subject to pre-judgment interest.

This seems like a no-brainer to me, but then again there's only a century of uninterrupted precedent on the issue (i.e., enough to get it screwed up in state court):

In order to resolve the conflict between these cases, this Court must do nothing more than reassert its established precedent. For the reasons expressed below, we conclude that this Court's precedent has remained unchanged for over one century, and that prejudgment interest is a matter of right under the prevailing “loss theory” of recovery for pecuniary damages, i.e., damages for economic or tangible losses.

Ouch.

Chinese Drywall Plaintiffs Testify

So I see that the representative plaintiffs in the Chinese Drywall trial have testified:

"We loved being there,'' said Armin Seifart, who works as senior counsel for Chevron. ``It turned into a nightmare.''

I have to assume Ervin and Victor know what they are doing, but does it strike anyone else as odd that the test plaintiffs they put up are wealthy professionals who purchased a $1.6 million home in Coconut Grove?

The husband is a senior in-house attorney at Chevron, which last I checked is AN OIL COMPANY, and the wife is a clinical psychologist.

These are the best victims to present to a Miami-Dade jury?

(Good thing I don't do this for a living.)

SFL Friday -- Memorial Day Edition!

So if you just must read Judge Farina's recent Chinese Drywall class certification order, I created a Scribd thingy-dingy for your eyes only, right here.

Boy Victor's a good writer!

(I kid, I kid)

Whoa -- Gary Coleman, RIP.

This may not surprise anyone, but I was more upset when we lost Dana Plato.

Alright let's move on to something pleasant, like a nice long All-American three day weekend.

I hope you have something spectacular scheduled.

My plans are fairly conventional -- I intend to commiserate with my Indian brothers, consider what exactly is wrong with Nicholas Cage, and what do I always say -- it does in fact always come back to the Germans.

BTW, there's a reason you can sleep in Monday morning, show up way late at the office for a few hours, bill 9.4 hours, and cut out by two. Try to fit that in if you can, ok?

Have a great Memorial Day weekend!

Miami: It's All About The Fruit.

Is it Friday yet?

South Florida celebrity divorce attorney Raymond Rafool, who boasts clients such as Hulk Hogan's wife Linda, said Miami can be one seductive mistress.

The Miami scene -- the unique nightlife, culture and the scantily clad hotties -- can offer relationship-ending temptations that aren't as easily available in other parts of the country, he said.

"If you are from an area that doesn't have a nightlife, the beautiful people, the spending that's all around you and everything else, I think that's where you have the difference," said Rafool, senior attorney and managing member of Raymond J. Rafool, LLC. "When you're in a city like Miami, you have the opportunities that don't exist in other areas of the U.S."

He added, "It is sort of like in Miami there is much more fruit to pick than other areas."

I'm not sure The Hulkster's wife is technically a celebrity, but whatever.

Shorter Victor Diaz: Can you believe companies sometimes lie?

What else -- oh yeah, Broweird.

Got a hearing this morning, wish me luck!

First Contested Chinese Drywall Case Goes to Trial

Checking Overdraft

Well that was a glorious weekend, huh?

But it's back to work as the first contested Chinese Drywall case gets underway in New Orleans:

"This will be the first contested trial," said Steve Herman, an attorney representing the Hernandez family.

That leaves the Hernandez family standing in for the 2,100 others around the country involved in the litigation. Big court cases involving lots of parties often use "test trials" or "bellwether trials" to try to work through the issues without trying every individual case.

While the Hernandez case doesn't have any direct legal influence on the other cases, what the court decides about what needs to be done to fix the Hernandez home and how much it will cost to make those repairs could help establish values that will guide settlement discussions in the rest of the cases.

"Their significance is magnified because there are so many similar cases with common elements," Herman said of test cases. "It's something that facilitates settlement, because it gives the parties and the court guidance on what the cases are worth."

The trial is expected to last a week.

In other MDL news, Julie Kay reports on Judge King's denial of several motions to dismiss in the checking overdraft cases:

“It’s a really important decision because these banks fought long and hard to get this knocked out at the dismissal stage,” said Bobby Gilbert, a partner at Alters Boldt Brown Rash Culmo in Miami and co-lead counsel on the case with Bruce Rogow, “The entire order is a major step forward for us ... allowing us to proceed to the discovery stage.”

Miami attorney Barry Davidson of Hunton & Williams, who represents Wachovia, declined comment, as did Aaron Schur of Aaron & Porter in San Francisco, who represents Bank of America.

I posted the order above.

Hey, that's weird -- I just wrote an entirely snark-free post!

The "Stealth War on Judges" And Paul Begala.

So I see the Senate finally confirmed Joseph Greenaway Jr. to the 3d Circuit, unanimously, after being nominated back in June 2009:

Joseph Greenaway Jr. is the latest example of a delayed nominee with no opposition. Nominated in June for the 3rd U.S. Circuit Court of Appeals, he won the unanimous backing of the Senate Judiciary Committee in October. The Senate could have confirmed him immediately, without even a formal vote, but it took until Feb. 9, when Greenaway was confirmed, 84-0.

"He should have been confirmed last year, and he would have but for Republican objection," said Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, in remarks prepared for the Senate floor.

Seven other nominees for district or appellate judgeships had similar experiences before getting confirmed unanimously. Ten nominees are awaiting votes, and many of them face no opposition.

Republicans say the delays are warranted, given the rigorous vetting involved for lifetime appointments to the federal bench. "We need to do our homework. Do our background. See what the bar association says. See what the FBI says," said Sen. Jeff Sessions, R-Ala., the top Republican on the Judiciary Committee, at a Feb. 11 hearing.

That is just disgraceful.

Regardless of your politics, there is no reason to hold up judicial nominations where the nominee is not controversial, there is no public opposition, and no red flags have been raised.

Speaking of politics, it felt like 1998 all over again last night as Ira Leesfield received the AJC's Judge Learned Hand Award.

Bill Clinton, Bob Graham, Bill Nelson, ok.

But Paul Begala?

Finally, the first federal drywall trial, where Ervin and Victor are co-lead counsel, is set to commence Monday in New Orleans, but without key Chinese defendants:

The proceedings will be conducted without Taishan's participation, so there was no one to contact for comment. On Thursday, Knauf Plasterboard Tianjin Co. Ltd., another drywall manufacturer from China which had intervened in the Taishan proceedings because of its interest in any precedents that could come out of the case, abruptly dropped out, leaving no defense witnesses and no one to cross-examine the plaintiffs' witnesses.

Should make the Daubert hearing a bit easier, don't you think?

Young Whippersnapper Writes Letter!

That fresh-faced kid over at the Podhurst firm wrote a letter to the Herald:

The April 19 story Famous architect Frank Gehry feuding with Miami Beach over New World Symphony project omitted the role of the New World Symphony's leadership in contributing to this problem. Though I disagreed with a majority of the Miami Beach City Commission that voted to remove Gehry from this project, there is no question that the Symphony did not actively resist that decision, signaling that it had ``Gehry fatigue.''

In addition, the Symphony's mishandling of its dealings with Gehry and its mismanagement of the design and cost estimation of the garage project are significant contributing factors. The Symphony is a first-class cultural institution, but its leaders have used secretive and hardball political tactics on this issue.

How does that young man find the time?

Victor Diaz Probably Doesn't Like "Dogs Playing Cards" Much Either.

Hi kids!

Is it me, or is Podhurst partner Victor Diaz looking better and better? The sharp clothes, the funky glasses, the man is just rockin' it lately.

But you won't see him buying any Velvet Elvis oil paintings:

Commissioner Victor Diaz, who has been outspoken in his desire to keep Gehry at all costs, said the city has mismanaged the project -- and mishandled the famed architect.

He said Gehry was right to be offended by the tone of comments by city officials during public meetings, including suggestions he was hard to work with and a ''prima donna.'' And he said commissioners should hardly be surprised that Gehry would prove expensive.

'It's like saying I want to buy a Picasso and when you get the price, saying, `I'll buy from the guy at the Coconut Grove arts festival, he is just as good,' '' Diaz said. ``I'm not sure that certain individuals on the City Commission understood the genius we were dealing with and treated him with sufficient deference.''

Miami Beach, carefully run by a bunch of hacks since 1915. Thank goodness Victor is there to provide a modicum of reason and dignity to that hopeless crew.

BTW, Victor you need to update your firm photo. You look great nowadays, no need to use that pic from 1985, ok?