3d DCA Watch -- Confess Your Errors, My Son!

Boy we are really in the dog days of summer when the most exciting thing to come from the bunker is a confession of error:

Based on Coconut Grove Bank’s proper and commendable confession of error, we reverse the order on appeal and remand with instructions to vacate the certificate of sale and direct that the Clerk of the Court republish and reset the foreclosure sale, pursuant to section 45.031(3), Florida Statutes (2010).

"Proper and commendable" confession of error -- I like that.

Good bank (pats head), good bank (hands bank a TARP biscuit).

It would have been even more proper and commendable if the bank had confessed error sometime before forcing opposing counsel to waste time and money briefing the appeal.

Vote, You Plebes!

 For Melanie Damian to always appear on the front page of the DBR!

What a glorious way to start the morning.

She's going to be a very tough receiver -- she already hired a locksmith to open a safety deposit box and found lots of valuable rare coins, but unfortunately no whole wheat pasta bolognese.

GAME ON!

Oh yeah, there are also judicial elections.

I suppose we should probably take a peek, especially given how much money we've donated this cycle.

In general I echo Rump's recommendations, as follows:

 In no particular order, we like Judge Wolfson, Judge Don Cohn, Kathy Fernandez-Rundle, Robert Copel, Alex Jimenz-Labora, Mauricio Padilla, Michelle Alvarez, Judge Teretha Lundy-Thomas. Best of luck to all.

Except I voted for Judge David Miller, as well as Teresa Pooler, Judge Marino-Pedraza, Judge Lobree, Ivonne Cuesta, and the great Tanya Brinkley.

And yes the pit bull law is stupid and needs to be repealed.

Your Monday Morning Digital Dump!

I need a dump truck baby to, unload my head....

Hi there, raise your hand if you thought bringing Chad Johnson to the Dolphins was a bad idea?

Well now he has a lawyer instead of a job:

Just after 8:30 a.m., Johnson appeared live via video feed in front a judge and was issued a $2,500 bond and a no contact order, instructing him to stay away from his new wife, Evelyn Lozada, the alleged victim.

Johnson later emerged outside the doors of the jail where he hugged his brother, Chauncey, and was accompanied by his lawyer. They did not speak to reporters as he descended down a stairway and walked to a black SUV.

Johnson got in the car, closed the door and the driver sped off with a couple of reporters chasing after them.

His lawyer, Adam B. Swickle said Johnson has not been charged. The state attorney's office will collect all the evidence and make a decision on whether or not to charge within 21 days.

It's Swickle time!

The Herald's Frances Robles takes a look at KFR's San Juan lawyer friend: 

What the attack doesn’t say: a good bulk of the Puerto Rico contributions came from corporations controlled by Fernandez’s boyfriend, wealthy lawyer David Efron. The mailer was sent by A Vote For Justice, a PAC funded by the top prosecutor’s longtime nemesis, the Police Benevolent Association.

Efron is a Cuba-born attorney whose personal injury and medical malpractice law practice is based in San Juan. Records show he controls 26 corporations, most of them real estate developers on the island.

At least 12 of Efron’s companies donated $500 each to Fernandez’s campaign in the past year, according to state campaign finance reports.

And it’s perfectly legal. Although campaign finance law caps donations in state primary races to $500, separate donations can be submitted under the names of individual corporations. Even if they are owned by the same person.

If it's legal and there is no hint of impropriety over it, what's the problem?

In the realm of Souh Florida election shenanigans, this barely registers a blip.

How about that -- UM Law sent students to London to study the Olympics:

UM law student Alicia Lopiccolo is never regretful of her summer in school. One minute, she's laughing, the next, she's leery.

“We're presented with the opportunity to study abroad this summer and the program involved the 2012 Olympics,” Lopiccolo said. “So, that is something that I just couldn't pass up.”

About two dozen Miami law students couldn't either.

They made the trip of more than 4,000 miles from Coral Gables to London to study how the Olympics, and the law, work together.

Not sure of the real-world implications of studying "Olympic Law" but on the other hand when I was at UM the farthest I went for research was Biscayne Baby's (though it definitely felt like another world).

Finally,  the Florida Bar says being an undocumented immigrant does not disqualify you from the practice of law:

The Florida Bar has not found “good moral character and fitness issues” that would disqualify an undocumented immigrant from being admitted to practice law in Florida, but is still waiting for an opinion from the Florida Supreme Court before making a decision.

In a court filing on Tuesday, the Florida Board of Bar Examiners notified the Supreme Court that it determined last month that there were no such character issues that would automatically disqualify Jose Godinez-Samperio from practicing law, though it cautioned that it’s possible, though unlikely, something could still come to light.

But, the board also notified lawyers representing Godinez-Samperio that a final decision will wait until the state Supreme Court weighs in.

“It is anticipated that you will be notified of the board’s final action after the Supreme Court decision on the pending Request for Advisory Opinion,” the Bar board said in its letter to Godinez-Samperio’s main lawyer, Talbot “Sandy” D’Alemberte back on July 20. “If additional adverse information is received, the board will reopen its investigation.”

The letter was made public when it was sent Tuesday to the Supreme Court to be added to the record in the case.

Initially, the Bar had denied Godinez-Samperio’s application to the Bar, even though he graduated from a Florida law school and passed the Bar exam.

Read more here: http://www.miamiherald.com/2012/08/09/2947363/florida-bar-immigrant-not-disqualify.html#storylink=cpy

Yeah, what's that worth nowadays -- heavy in debt, poor job prospects, hail maybe the applicant will do what Romney says and just self-deport?

Hey, it's his official policy position!

The Markus Fights Back!

Dr. Ali Shaygan and David Markus (pictured above) have petitioned the Supreme Court to review the 11th Circuit's reversal of sanctions in a prosecution so marred by allegations of prosecutorial misconduct that Judge Gold awarded over $600k in fees.

BLT has the latest:

More than 50 former federal judges and prosecutors are urging the U.S. Supreme Court to hear a dispute over alleged government misconduct, taking a position in the case against the Justice Department.

The coalition, which includes retired district and appellate judges, and former U.S. attorneys, is advocating for a doctor in Miami whom the government unsuccessfully prosecuted in a drug case. The statute in question allows defendants to recoup fees if the government's stance in a criminal case was "vexatious, frivolous or in bad faith."

The doctor, Ali Shaygan, was awarded nearly $602,000 in legal fees following the botched prosecution, marred by claims of prosecutorial misconduct. The trial judge sanctioned the government for, among other things, a witness tampering probe against Shaygan's attorney and the prosecutors' alleged violation of disclosure requirements.

But an appeals court overturned the fee award, saying that the prosecution was objectively reasonable. The divided ruling set up the appeal in the Supreme Court, which has not acted on the petition that Shaygan's lawyer, David Markus of Miami's Markus & Markus, filed this summer.

Thomas Goldstein of Washington's Goldstein & Russell is representing the former judges and prosecutors in support of Shaygan. Click here for a copy of the brief, filed August 9.

Wilmer Cutler Pickering Hale and Dorr filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers. Mark Srere of Bryan Cave is counsel of record for The Constitution Project on its amicus brief.

I don't know much about this stuff, but I do know Judge Gold rarely gets things like this wrong.
 
I'm partial to the amicus filed by the physicians' group AAPS, which has this:

Notably absent from the overzealous prosecution of Dr. Ali Shaygan – and from the panel opinion below – is attention to the fundamental requirement of mens rea. Such omission is common now, as the requirement of proving criminal intent in federal court for convictions and sentencing is disappearing, while state courts still take it seriously. Federal court prosecutions are becoming more utilitarian in nature, as unconscionably long prison sentences are increasingly the goal regardless of whether mens rea exists or is commensurate with such punishment.

In light of this trend, the deterrence against prosecutorial wrongdoing provided by the Hyde Amendment is even more important. As emphasis on proof in federal court of mens rea at trial and sentencing declines, the risk of unjustified prosecutorial actions increases. And with that growing risk comes the enhanced possibility of prosecutorial misconduct in quest of the utilitarian goal. If the Hyde Amendment loses its meaning, then there will be no meaningful restraints on a utilitarian, “end justifies the means” approach to prosecution. Engaging in wrongdoing to convict an innocent man, in order to deter future crimes, can even be rationalized under a utilitarian approach to justice. See Stephanos Bibas, “Bring Moral Values into a Flawed Plea-Bargaining System,” 88 Cornell L. Rev. 1425, 1428 (July 2003) (observing, and criticizing, the view that “guilty pleas by innocent defendants [is] a great utilitarian boon”).

Guess I'm a sucker for philosophy in a legal brief.

Also, footnote 2 is a must-read!

Another Reason to Not Check Emails at Lunch.

How'd you like to get this order come across your fancy iPhone while you are enjoying lunch?

It's an order from Magistrate Judge Goodman, scheduling a sanctions hearing against plaintiff QBE Insurance and its attorneys stemming from a summary judgment in favor of the defendant that Judge Gold granted (the sj order is here and the motion for sanctions is here):

First, without ruling on whether an evidentiary hearing is required, the Undersigned believes it is appropriate, given the potential consequences to the Plaintiff and its attorneys, to schedule one, similar to the evidentiary hearing used in Amlong & Amlong, P.A. v. Denny’s Inc., 500 F.3d 1230 (11th Cir. 2006).

Second, QBE and its counsel shall submit a notice by August 15, 2012, listing all the witnesses they intend to have testify at the evidentiary hearing, along with a reasonable estimate of the amount of time each witness is expected to testify for on direct.  The Court anticipates that no witness will testify on direct for more than an hour. In fact, the Court perceives that most, if not all, of the witness will complete their direct testimony in half an hour or less. If counsel believe additional time (i.e., more than one hour on direct, per witness) is required, then they shall explain why.

Third, Jorda shall have until August 20, 2012 to submit a list of additional witnesses it intends to call at the hearing. Jorda will also provide an estimate of the anticipated length of the direct testimony.

Fourth, the Court anticipates that the witnesses will be either current and/or former employees of QBE, current and/or former attorneys and other employees of the law firm representing QBE in this case up through the entry of summary judgment, current and/or former residents of the condominium involved in the underlying litigation surrounding property damage to the complex and any investigators or consultants used by QBE and/or its counsel. The Court suggests that counsel cooperate and facilitate the attendance of witnesses through acceptance of subpoenas, agreements to produce witnesses at the evidentiary hearing, and otherwise.

Fifth, I think somebody could be in deep doo doo! (I added that last part). 

Reading the sj order and sanctions motion, I'm not sure what probative testimony the witnesses could provide -- the sanctions motion appears to be based on pure legal grounds (which Judge Gold accepted).

Your SD FL Affirmative Defense Class is Back in Session!

 
Continuing our series of instructive orders from SD FL judges on affirmative defenses, here is one by Judge Marra granting partial summary judgment on a few truly lame-o ones.

Yes, kids, you can move for summary judgment on affirmative defenses:

Defendant’s First Affirmative Defense states: “Defendant would show unto the Court that at the approximate times and places alleged, the Plaintiff was guilty of negligence materially and proximately contributing to the accidents and/or the injuries complained of and any recovery by the Plaintiff is diminished or extinguished thereby.” In support of her motion for summary judgment relative to this defense, Plaintiff has provided evidence that she was stopped when she was rear-ended [DE 53-1, p. 33]. Plaintiff also noted that the Defendant did not address this affirmative defense in its answers to interrogatories [DE 53-2, No. 6]. At the deposition of the Defendant, the corporate designee refused to answer questions relative to this affirmative defense [DE 39, pp. 67-68]. Plaintiff thus discharged her burden to demonstrate to this Court that there is an absence of evidence to support the Defendant’s First Affirmative Defense. See Celotex Corp., 477 U.S. at 325.

The burden of presenting evidence in support of its First Affirmative Defense thus shifted to the Defendant. Defendant concedes in its Response to Plaintiff’s Motion for Partial Summary Judgment that “at this time there is no evidence to suggest that RIOS was negligent in causing the accident” [DE 54, pg. 2], and withdraws that portion of its affirmative defense. Defendant continues to state:

However, STATE FARM maintains, as is part of its First Affirmative Defense that RIOS’ actions did contribute to her injuries complained of and therefore any recovery by RIOS is diminished or extinguished thereby. STATE FARM continues to contest that accident on July 13, 2008 was the cause of RIOS’ alleged injuries. Further, as made evident in STATE FARM’S Motion for Final Summary Judgment, RIOS’ actions prejudiced STATE FARM’S ability to fully evaluate her claims. . . [T]he only issue left relating to RIOS’ Motion for Partial Summary Judgment would be whether or not SANDRA RIOS was a proximate cause to the injuries complained of, in which there exists a genuine issue of material fact, which can be seen in the pleadings alone.

[DE 54, pg. 2]. Defendant cites no evidence whatsoever in support of this argument, and has, therefore, failed to meet its burden. Plaintiff’s motion as to Defendant’s First Affirmative Defense will be granted.

See how that works?

Note to litigants -- if you have more than ten affirmative defenses, you probably have two or three more than you really need.

Fourth District Reverses Finding of Divestment

Among other rulings in the opinion issued today by the Fourth District Court of Appeal in Walters v. Walters, that Court reversed the lower tribunal’s finding that the Former Husband had divested assets by purchasing vintage automobiles for his business.  As the Former Husband’s intent was to provide for income to pay support, the finding was in error.  In addition, the Fourth District affirmed the lower court’s denial of retroactive modification of alimony in light of the finding that the Former Husband had been able to pay the alimony during the period of time in question.  The Court also rejected the Former Husband’s claim that more than  60% of his income had been awarded in support, as they counted additional sources of income the Former Husband did not.  The lower court was reversed, however, for failing to consider the Former Wife’s current needs in its consideration of the modification petition.