Third District Court Reverses Modification

The Third District Court of Appeal reversed today in Silverman v. Silverman, a case in which a 22 year old divorce decree was modified to increase the alimony originally awarded on the basis of a cost of living increase.  The Court reversed on the basis that, while an increase in the cost of living may be relevant to the amount of a modification, it does not prove that the modification is warranted in the first place. 

Seventeen Ruden McClosky Attorneys Named Among "The Best Lawyers in America" in 2012!

Says so right here.

After reading SFL's post regarding Judge Altonaga and swapping sides, I was inspired and working feverishly on a post better suited for Friday afternoon.

But Jules ran this story and it killed the mood.

I admit that like many, I don't really read the Daily Business Review I just look at the pictures and the headlines. My first thought, being the jaded South Florida civil litigator that I am, was "people can say whatever they want in a lawsuit." The eleven (ELEVEN!) malpractice lawsuits represent people seeking a payday from 20 million in malpractice coverage. Nothing more, right? You have to dig into this one. When I read the article, I couldn't believe what I was reading so I called my friend Johnny and I said Johnny, what the....

First, I've always been intrigued in a Scott Rothstein kind of way at the Ruden "investment banking division," Ruden Capital Partners, run by former Ruden lawyer Patrick Moran. The idea behind the division I guess was that Ruden's lawyers would approach clients about investing in the fund and collect investment banking fees as well as legal fees. It strikes me that there is temptation and mischief inherent in such a structure. Which is exactly the position of the Southeast Florida chapter of the Alzheimer's Disease and Related Disorders Association, as reported here. Seems Moran, then the Chairman of the Group, and his wife, the Board's secretary, used their check writing authority to borrow 1.1 million of the group's money and invest it in their daughter's start up company gogoddess.com, as well as - you guessed it! - Ruden Capital Partners. According to the article, "a month later Ruden and Bruce Bern­stein, a principal of the law firm's financial arm advised the board that they should invest in the fund. One of their selling points was that it had recently received a $1.1 million infusion of money. What they didn't say was that the money came from the association's account." Chutzpah! Bernstein apparently has folded up his tent and resurfaced in New Orleans as CEO of an emergency water purification company. Lawsuits? Where are the Bar complaints? The grand jury subpoenas? Wiffy, you there? Where is Mary Barzee Flores when you need her?

And that's just one of several malpractice suits charging that Ruden and Moran breached their fiduciary duties. "Another suit arose out of legal advice provided by Moran and other Ruden attorneys about a $2 million loan made to a South Florida man, Milton Pinder, to be secured by mortgages on undeveloped property in the Bahamas. According to the suit, it turned out the borrower had been declared incapacitated, was the subject of a guardianship proceeding and never held title to the Bahamian property, and a relative used fraudulent and invalid powers of attorney to enter into the loan agreements." Another day, another dollar in the South Florida legal community, right? I bet the amount of Ruden's fees for facilitating that investment were sizeable, eh?

Hey! Wait! Didn't Marc Nurik used to work at Ruden!?

Boy, oh Boy. If Judge Altonaga spanked Schleppin, can you imagine what would happen if someone pulled these Ruden shenanigans in a case pending before her. Or better still, before Judge Ungaro. If you have witnessed Judge Ungaro give a good spanking, you know it can be painful. (Sorry - I've been distracted since attending a book signing this weekend at Books and Books.)

3d DCA Watch -- Move Those Foreclosure Cases, or Else Something Short of Dismissal Without Prejudice Could Happen!

Do you really want to get a bank's attention when they slow-boat a foreclosure action and leave it dangling in the court system for years?

Then for heaven's sake don't dismiss without prejudice, that's too harsh a sanction:

The ultimate sanction is not called for in this particular case. U.S. Bank filed only one deficient packet in this matter. Lesser sanctions, such as the rejection notice prescribed by the administrative memorandum, would have sufficed.

But the only reason it's the ultimate sanction is because the statute of limitations has run as a result of the bank's own dilatory conduct, no?

Judge Salter, in concurrence, notes that the bank waited three years to file its foreclosure action, and then another two to file an sj motion.  There was also an incorrect "affidavit of indebtedness" and the sj motion failed to mention a prior recorded equitable lien, and a prior order from 2009 that directed that the property be sold.

On top of all that, the case was almost dismissed for lack of prosecution back in 2008, and when permitted to proceed the trial judge ordered the bank to "aggressively move" the action.

Judge Salter then writes:

Florida Rule of Judicial Administration 2.250(a)(1)(B) establishes a “presumptively reasonable” time period for completion of a non-jury civil case as 12 months from filing to final disposition. The circuit judges in this district work hard to comply with that objective (and regularly do better), but active, focused efforts by institutional lenders and their attorneys are also required.

This will surely send a message to the bank and its counsel, no doubt! 

(But is it the right one?)

First District Reverses Finding of Laches and Estoppel

The First District Court reversed yesterday in D.O.R. ex rel Thorman v. Holley, a case in which the lower tribunal’s findings of laches and estoppel excused the Father’s obligation to pay past-due child support.  While there was clearly a long period of delay involved, the District Court found that the lower tribunal applied laches and estoppel without sufficient evidence and erred in vacating a final order establishing arrearages due to a violation of due process.  In short, the Court found that there was insufficient evidence of prejudice to establish laches or estoppel, and that, in essence, as there was no evidence of prejudice there was no basis to remedy a violation of due process by relieving a parent of the obligation to pay support.

First DCA Reverses Modification Order

The First District Court of Appeal reversed yesterday in Hentze v. Denys, first affirming the lower court’s departure from its interim orders on the grounds that the Former Husband’s argument invoking the law of the case doctrine was misplaced, in that there was no appeal to have set the law of the case, and the lower court’s failure to grant interest on a judgment awarded, in that the issue was not raised in a motion for rehearing.  Merit was found, however, in the Former Husband’s arguments that the Court was required to impute income to the Former Wife, who voluntarily resigned her position, and in apparently granting child support beyond the age of nineteen.

Judge Altonaga Disqualifies Law Firm for "Switching Sides" in FLSA Action.

 
If you do such a good job prosecuting FLSA actions against a defendant, can the defendant hire you to represent it in subsequent FLSA actions involving the same alleged misclassification brought by a different lawyer?

Judge Altonaga, in a well-written and well-reasoned order, says NO WAY:

The Court cannot but agree with Plaintiff that Kleppin’s conduct has had every appearance of  impropriety — an unsurprising conclusion since the conduct is actually improper.

Don't you just love the economy of language in that sentence?

11th Circuit Says Plaintiffs' Choice of Forum Not Mere Verbiage.

I'm sure district court judges never like seeing foreign injury-while-on-vacation cases on their docket, but there may be circumstances where jurisdiction could conceivably lie in the SD FL.

The 11th Circuit in this opinion reminds us that you can't just say all the words in the recitation of relevant forum non factors, you actually have to apply all those factors to the analysis:

The district court mentioned the presumption against disturbing the plaintiffs’ forum
choice in its introduction to the order, but failed to mention the presumption at all in its application and balancing of the factors. We have held that a recitation of the law regarding the presumption is not sufficient; this presumption must be integrated into the balancing of the private factors.

I don't know about you, but I still think the case is going to be dismissed.