Friday, April 30, 2010
Well kids, it's off to Doral for an insightful and educational day of CLE -- oh hail, who are we kidding, it's a chance to schmooze with some bigshots -- but we might learn something while we're there anyways.
I'm not sure Judge Dubina can match Judge Fay's speech from last time, but I'm willing to help out any way I can.
I may or may not be back later, so if not have a great weekend!
Thursday, April 29, 2010
Yeah, you read right, restitution:
Investors in Paris Hilton's 2006 box-office bomb "Pledge This!" claim she owes $1 million in restitution for supposedly not promoting the movie enough.If you feel like blowing $2.40, you can read the trial brief on restitution damages here.
The investors asked a Miami federal judge Thursday to force Hilton to repay her fee from the film. They contend she ignored at least nine requests for interviews and other promotion events in violation of her contract.
BTW, I find it pretty amusing that Raoul Cantero was appointed by Judge Moreno to serve as a mediator in this case (Raoul declared an impasse on March 24th).
The order required both the receiver and Ms. Hilton to personally appear at the mediation.
I can just imagine how things went at the mediation. Luckily, a spy passed along a partial transcript:
Raoul Cantero: Did you know I used to be a Justice on the Florida Supreme Court?
Paris: [to assistant] tell that man with the glasses to shut up.
Raoul Cantero: I also chaired the Florida Supreme Court's Commission on Professionalism.
Paris: [to assistant] Did that person say something?
Raoul Cantero: I make lots of money at White & Case.
Paris: [looks directly at Cantero] That is so hawt!
You know how tea partiers/conservatives always rail about the UN, "foreign law," and that whole pesky New World Order thing?
Well, you better not tell them Florida is poised to adopt -- gasp! -- UN standards for international arbitration:
The Bar’s international law section, hopes the bill and new rule will prompt more companies to use Miami as their seat for arbitration because attorneys all over the world are familiar with the UNCITRAL model.Got it......commies!
With South Florida’s high concentration of bilingual professionals and easy access to Latin America, it’s a convenient spot to conduct international arbitration, he said.
“The whole vantage point here is an international one,” Palmer said. “You have to be very mindful of what someone in London thinks, what someone in Stockholm thinks. There’s no particular problem with the old law. Just nobody knows what it is. Everyone in international arbitration knows this law.”
Using that logic, we might as well start counting in grams or meters or whatever the hail they use to count cheese-eating surrender monkeys in France.
UNCITRAL -- that was the computer from 2001: A Space Odyssey?
BTW, I wonder what Marco Rubio thinks of this egregious international intrusion into our state's sovereignty?
Wednesday, April 28, 2010
Hi kids, what do you all think of those facacta Goldman Sachs emails? Seriously, what kind of intelligent professional puts that kind of stuff in writing?
I also love the secret code used for discussions too sensitive to put in writing -- "LDL."
Not exactly the Enigma Code, fellas.
On to the bunker, where the distressing lack of work product has caused this humble blog to cancel today's 3d DCA Watch.
LDL, you know what I mean?
Oh wait, there is one opinion worth noting:
Venezia Lakes v. Precious Homes:
Pure bills of discovery? Do those even exist anymore?
As this Court stated in Kirlin v. Green, 955 So. 2d 28, 29 (Fla. 3d DCA 2007), although a “pure bill of discovery remains part of our legal system, its use and usefulness diminished greatly when Florida relaxed its pleading requirements to authorize liberal discovery.” In the absence of an adequate legal remedy, it “may be used to identify potential defendants and theories of liability and to obtain information necessary for meeting a condition precedent to filing suit.” Mendez v. Cochran, 700 So. 2d 46, 47 (Fla. 4th DCA 1997); see also Debt Settlement Adm’rs, LLC v. Antigua & Barbuda, 950 So. 2d 464, 465 (Fla. 3d DCA 2007); JM Family Enters., Inc. v. Freeman, 758 So. 2d 1175, 1176 (Fla. 4th DCA 2000); Trak Microwave Corp. v. Culley, 728 So. 2d 1177, 1178 (Fla. 2d DCA 1998). However, a bill of discovery may not be used “as a fishing expedition to see if causes of action exist.” Publix Supermarkets, Inc. v. Frazier, 696 So .2d 1369, 1371 (Fla. 4th DCA 1997). Nor is it available simply to obtain a preview of discovery obtainable once suit is filed. Mendez, 700 So. 2d at 47.
Ok, that seems totally contradictory.
But they're not done:
As stated above, it is well established that a pure bill of discovery does not lie to see if a cause of action exists, nor has it ever been available to aid a potential plaintiff in determining the extent of its damages. Precious Homes’ claim that it cannot determine a theory of liability when it is claiming an overcharge in violation of the agreement is without merit.In other words, just file a lawsuit.
Tuesday, April 27, 2010
Here's an excellent roundup of the oral arguments (and related coverage) before the Supremes on the arbitration issues raised in the Rent-a-Center case by one of the co-counsel for the respondents.
Obviously there's a point of view being expressed here, but get a load of this comment by Justice Scalia:
Now I know why they don't want cameras recording Supreme Court arguments.
Justice Scalia's questions yesterday showed that he has little empathy for those who find themselves in the position of signing extremely one-sided arbitration agreements because of unequal bargaining power, often as a precondition of employment or the receipt of essential goods and services. Here's what he said:
JUSTICE SCALIA: you can be a stupid person who voluntarily signs an unconscionable contract. Now, the courts may protect you because you are stupid, but you haven't been coerced.
That's an actual quotation from the argument, not a caricature. I suppose this means that, in Justice Scalia's world, a person who takes a low-wage job as a dishwasher, say, or as a line worker at a chicken processing plant, because it's the only job he or she can get, is simply "stupid" if they sign an employment contract containing various unconscionably one-sided terms.
Speaking of the Supremes, none other than our recent visitor and former Justice Sandra Day O'Connor joined in a decision of the 11th Circuit yesterday that reversed the SD FL on a case involving the implosion of Colonial Bank.
Any way we can get her back?
We already know that former Miami budget chief Michael Boudreaux enjoys bad movies -- hail he was one of about 16 people in the nation who actually saw Cop Out in a movie theater -- but now the buddy cop genre aficionado has went ahead and filed a whistleblower suit -- just like Matt Damon in The Informant(!):
Boudreaux, through his blue-eyed lawyer Michael Pizzi, also contends that when he brought these concerns to the City, he was "targeted for ridicule."
Boudreaux's eight-page lawsuit said he intended to cooperate with the SEC inquiry -- but was punished for it.
Boudreaux says when he insisted on telling the truth about alleged ``malfeasance'' of former Miami Mayor Manny Diaz, current Mayor Tomás Regalado, former City Manager Pete Hernandez and other top managers, he was terminated to ``discredit him.''
``This complaint concerns the actions of city of Miami officials to punish, smear, and even concoct false allegations of criminal conduct against this dedicated city employee who dared to tell the truth,'' the lawsuit said.
That's just wrong.
You can gently tease him over his movie choices, sure, but when millions of dollars of lost taxpayer money is at stake, maybe you should take his concerns a little more seriously?
Now, if he is passionately defending the merits of Tango and Cash, I can understand a little attitude....
Monday, April 26, 2010
Oh boy, here we go:
This matter is before this Court as a result of the issuance of an Order Granting Motion to Compel Discovery (D.E. 37) wherein (paragraph 2) plaintiffs were allowed to show good cause, in writing, why sanctions should not be imposed for the necessity of the filing of the motion to compel. Plaintiffs responded (D.E. 42). The Court finds the response without merit and notes that it completely fails to address the issue at hand, andlor evinces a lack of knowledge ofthe Federal Rules of Civil Procedure.There really should be a handbook for all the "special laws of discovery" that seem to crop up in pleadings nowadays.
The first four (4) plus pages of the response extol the merits of plaintiffs' case ... wonderful except that this has nothing, whatsoever, to do with the issue of the necessity of the filing of themotion to compel. Then plaintiffs explain that their failure to respond in a timely matter (sic) "was not intentional" and that defendant "suffered no prejudice".
It is never explained just exactly how the failure to respond was not intentional. Nowhere in this response is it suggested that a clerical error was made, that a date was overlooked, that a paper was misplaced, or anything else "unintentional". What is explained is that: (1) the plaintiffs "are two elderly individuals, and a widow"; (2) that they "all live in a remote region of Venezuela"; (3) they "do not have e-mails or faxes"; (4) "the various documents need to be translated into Spanish" and (5) "[Clonditions in Venezuela are not ideal for the rapid transmission of information". The Court has looked far and wide for the special laws of discovery that apply in these instances and has discovered none... and none has been cited by plaintiffs. Conspicuously missing from this motion - and from the Court file - is anything related to why plaintiffs did not attempt to seek some relief from the Court BEFORE the filing of the motion to compel due to these alleged exceptional and extraordinary circumstances.
Feel free to use this space to list some of your favorites!
We've highlighted a few before, but this one tells you that screwed up with some local rule or professional rule of conduct -- and you can use it while you're in court about to be sanctioned!
Actually, when I think of potential apps, that was not the first thing that came to my mind (but I may be a special case).
The application features Southern District guidelines and local bar rules for Palm Beach, Broward, Miami-Dade and Duval counties. And since Hopkins updates it regularly, he’d like to eventually add local bar rules from other parts of the state.
“You used to see a lot of lawyers using BlackBerries at the courthouse, but now it’s moved more toward iPhones,” Hopkins says. “You can get e-mails and read documents very easily.
“And with the popularity of iPhone apps, having access to rules of civil procedure, rules of evidence, those types of things, right on your phone — as opposed to walking around with a book — makes a lot of sense. The first thing that came to mind was doing something that had the rules of professional conduct.”
Still, I thought you were not supposed to be texting or surfing the web while in the courtroom?
So, to summarize, you can use Chris' neat app to learn that you are at that moment inappropriately using his app.
On an unrelated note -- thanks IPKat for linking to one of my dumb posts in this week's Blawg Review -- you all did a great job!
Friday, April 23, 2010
Well kids it's just too darned nice out there, so I must head into the deep blue water and immerse myself completely, weightless and suspended in time, as wave after wave of tactile sensations wash over me.......
Oops -- was that out loud?
Yep, it's Friday and there are tons of outdoor activities to keep you busy so I hope you do something useful and productive as well as fun.
What the hail is wrong with ABC? (BTW, you can see the banned ad here).
While I'm at it, what the hail is wrong with the ND IL?
On Thursday, Blagojevich's lawyers asked a federal judge to subpoena the president to testify about questions surrounding the government's allegation that Blagojevich was selling or trading Obama's Senate seat after his election to the White House in November 2008.
"President Barack Obama has direct knowledge of the Senate seat allegation," reads Blagojevich's 11-page motion, filed with U.S. District Judge James B. Zagel.
The court erred when it posted the motion in a pdf file with redactions that could be revealed simply by copying and pasting the blacked-out portions to a plain text file.
Blagojevich attorney Sheldon Sorosky brushed off the error, telling Fox News that he didn't know how the redacted file became viewable, and blaming it on a "low tech guy."Some news outlets captured the file, which was later removed from the court's website.
This is beyond stupid -- how many times have we been warned about this, yet it manages to happen accidentally on a motion that relates to the President?
Who's in charge of CM/ECF over at the ND IL -- Justice Kennedy?
Before I leave, don't forget to do your part to fight earthquakes, try to act like your favorite married star, and of course get a good night's sleep.
Have a great weekend everybody!
Somehow Big Willie was able to break through the nomination gridlock:
The Senate voted unanimously Thursday for Ferrer, a one-time federal prosecutor in Miami and senior aide to former Attorney General Janet Reno. He most recently oversaw federal litigation for the Miami-Dade County Attorney's Office.
Oh oh -- the 3d DCA got "squashed."
Hold on, I meant to say an opinion of the 3d DCA got quashed:
Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.Actually, the 3d already got quashed, squashed, whatever once in this case back in February.
This new opinion is revised and clarified as to the attorney's fees on remand, but reaches the same conclusion.
Thursday, April 22, 2010
In a case involving discrimination against black Birmingham fire fighters that has been before the 11th Circuit innumerable times over its 30-year history, the Court name checks Charles Dickens:
see also CHARLES DICKENS, BLEAK HOUSE 4–5 (Pollard & Moss 1884) (“[The case] drones on. This . . . suit has, in course of time, become so complicated that no man alive knows what it means. . . . Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties . . . without knowing how or why . . . . [It] still drags its dreary length before the court . . . .”).I love this, but how can you bracket and insert "[The case]" and not actually reference Jarndyce and Jarndyce?
The case name has to be one of the more famous in all literature, no?
It's like replacing Atticus Finch with "[Counsel for Defendant]."
Otherwise nicely done.
I've often wondered whether federal judges are sometimes treated with too much deference.
Obviously by virtue of their position and authority, and sometimes even their achievement (I kid, I kid!), federal judges deserve significant respect from practitioners and the public at large.
But a few recent examples call to mind whether there can be negative institutional effects when respect crosses the line into outright obsequiousness.
I was struck by Chief Justice Roberts and Justice Scalia's shock and dismay over actually having a question thrown to them during oral argument by Solicitor General Elena Kagan:
Two weeks ago, Solicitor General Elena Kagan, a leading contender for appointment to the Supreme Court, presented her sixth argument there. She bantered easily with the justices, and she seemed to have a special rapport with Justice Antonin Scalia, at one point responding to a question from him with one of her own.Is this healthy?
Justice Scalia’s reply suggested she had crossed a line. “Well, I’m not making the argument,” he said, declining to answer her question.
Chief Justice John G. Roberts Jr., who has had some testy exchanges with Ms. Kagan over the last seven months, made the point more sharply.
“Usually we have the questions the other way,” he said.
“I apologize,” Ms. Kagan replied.
The American tradition -- unlike that in Europe or Japan or India, for example -- does not elevate people to position of kings or monarchs by their birth or fix them to classes by their social strata. We live in a fluid merits-based society where all are supposed to be equal and respect is typically earned, not awarded.
I wonder what effect there can be on cognitive thinking skills if you are never questioned or challenged on your viewpoints. I really can't think of another example where a public figure (in this case, a public servant) can expect never to be questioned or challenged publicly on their views. Certainly the President gets plenty of public pushback, hail he was even criticized for daring to condemn a Supreme Court decision in their presence.
The cocooning effect also seems to leave some judges out of touch with the real world or the lawyers who practice in it.
Recently we saw Supreme Court judges flummoxed by "texting" technology:
The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”
Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.
At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.
“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.
Justice Antonin Scalia wrangled a bit with the idea of a service provider.
“You mean (the text) doesn’t go right to me?” he asked.
Then he asked whether they can be printed out in hard copy.
“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.
And I love this footnote by Justice Alito in yesterday's decision overturning the 11th Circuit in a Section 1988 fee-shifting case:
How does the Judge know this (and why does it matter anyway)?
Justice Samuel Alito Jr., writing for the majority, said fee enhancements for superior attorney performance are permissible in exceptional cases. But in this case, he said, the judge did not provide "proper justification" for the enhancement under a series of factors he listed, aimed at proving that the lodestar fee alone would not have been adequate to attract competent counsel.
The federal fee-shifting law, Justice Alito wrote, "serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights. But unjustified enhancements that serve only to enrich attorneys are not consistent with the statute's aim."
In a footnote, Justice Alito added that if the $4.5 million fee enhancement had remained in place, the lawyers for the foster care plaintiffs "would earn as much as the attorneys at some of the richest law firms in the country."
Also, if you only compensate civil rights attorneys their lodestar when successful, how do you incentivize them to take cases and front all the costs and expenses when they may not, you know, win every time? How does that further the statute's aim?
(Lawyers who do this work, feel free to chime in.)
Then we have a recent incident that shows how contracts sometime operate in the real world:
A computer game retailer revealed that it legally owns the souls of thousands of online shoppers, thanks to a clause in the terms and conditions agreed to by online shoppers.
The retailer, British firm GameStation, added the "immortal soul clause" to the contract signed before making any online purchases earlier this month. It states that customers grant the company the right to claim their soul.
"By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions."
GameStation's form also points out that "we reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction."
The terms of service were updated on April Fool's Day as a gag, but the retailer did so to make a very real point: No one reads the online terms and conditions of shopping, and companies are free to insert whatever language they want into the documents.
Gee, I know of some precedent that would indicate this contract is valid and enforceable right here in the SD FL!
Wednesday, April 21, 2010
Well kids it got a little crazy, and much mirth, madness and mayhem was to be had.
But at the end of it all the coffee has been swilled, the robes worn, and all that's left are the written remainders and our own fragile, precious memories......
Naranja Princeton v. Cornerstone:
Tip for practitioners -- if you want a jury trial, put the demand in your complaint:
In its cover sheet, NPCDC asserted that in its complaint NPCDC made a demand for a jury trial. However, a review of the complaint reflects that no such demand was made. Additionally, NPCDC failed to comply with rule 1.430(b), and therefore, waived its right to a jury trial. See Fla. R. Civ. Proc. 1.430(d) (“Providing that a party who fails to serve a demand as required by this rule waives trial by jury . . . .”). We also conclude that even if NPCDC had made a proper demand for jury trial, NPCDC waived its right to argue on appeal that the trial court erred by setting the cause for a non-jury trial because it failed to object to the several orders setting the cause for a non-jury trial.Oy, better call the carrier.
Bosem v. C&I:
Judge Shepherd lowers the boom on a licensed attorney for alleged insurance fraud -- double oy kids:
Sanford Bosem, a licensed Florida attorney, contends the trial court erred in disposing of this case on summary judgment where allegations of fraud were at issue. Ordinarily, we would agree with Bosem that cases centering on allegations of fraud are unsuitable for summary judgment, see Burton v. Linotype Co., 556 So. 2d 1126, 1128 (Fla. 3d DCA 1989); however, we have before us the extraordinary case where the facts evidencing fraud are so clear from the record that entry of summary judgment is not only appropriate, but compelled. See Stephens v. Kies Oil Co., Inc., 386 So. 2d 1289, 1290 (Fla. 3d DCA 1980)."So let it be written, so let it be done," the Judge added.
Despite Bosem’s eleventh-hour attempts to alter his position in response to Appellee’s affirmative defenses, counterclaims and motion for summary judgment, the facts of this case are clear. Appellant sought insurance benefits under the guise of “lost wages,” despite full compensation by his employer for a year’s worth of income. Furthermore, his calculation of weekly earnings was immensely exaggerated.1 It also was not until his suit was threatened by allegations of fraud that he began re-characterizing his claim as one of “loss of earning capacity,” as opposed to “lost wages,” notwithstanding the absence of any plausible evidence in support of this position.
BTW, I love the certainty with which Judge Shepherd lays all that out.
There's also some social policy thrown in for good measure:
Fraud provisions are enacted to provide a disincentive to individuals considering the commission of such misrepresentations.Ahh, the old "rational crook."
Still, it's very true and -- given the headlines recently, I have to hope this applies to corporations in addition to individuals.
Hey, I didn't know WPB attorney Peter Broberg was a major-league pitcher:
“My nemesis,” he calls it, by way of introducing his pre-law career as a major league pitcher for eight seasons, from 1971 to 1979.Actually, I really like this guy:
He did have other interests. For one, he was a surfer, and hung out with a crowd that kept its eyes on the ocean for the right waves. “It was a hoot,” he says. “And it still is.”
And he was a science fiction buff, with a passion for both movies and books. He has shelves of sci-fi books at his house, paperback and hardcover. He sought sci-fi films at places like the Paramount, and Saturday matinees at the theater on Clematis Street in West Palm Beach.
“I liked stories that were sort of factual fiction. There had to be enough fact in them so that they could have been real, or they might have been real — and maybe they will be real in the future.”
No reference to Bolero or Gin Gibsons anywhere, but otherwise a nice profile -- congrats Pete!
Another busy day for me, but I'll be back to bring you news from the bunker of justice later today.
Tuesday, April 20, 2010
Yet again the litigation between Peter Halmos and his insurers have resulted in another classic order.
In this one Judge Brown attempts to explain to Mr. Halmos how witnesses (and their lawyers) are supposed to act at a deposition.
It starts pretty strong:
This matter is before this Court on plaintiffs' Objection to Judge Klein's Ruling of March 10,2010 (D.E. 586). The Court has considered the objection, the responses thereto, the reply, and all pertinent materials in the file. As usual, both sides have contributed to the problem.But then Judge Brown gets rolling:
Mr. Halmos should understand that the scope of allowable discovery is rather broad. It is not the same as admissible evidence. There are a limited number of allowable reasons for refusing to answer questions propounded (and "I don't want to answer that question" is not one of them). For example, while the Court recognizes that he might not want to answer certain questions regarding litigation between he and his family, and would completely understand his desire not to go there, that is not a basis for not answering. Comments by other plaintiffs' lawyers ("So now we're going to have an additional 20 minutes of questions about litigation in his family?") are improper and do nothing to improve the situation. The reality is, the fact that questions may seem irrelevant to the issues in the case is not a basis to refuse to answer .... even though the information to be furnished may be unpleasant, and even though the information derived may later be deemed to be inadmissible in the trial.Judge Brown is absolutely right about the sarcastic blather and potshots often thrown out by counsel for witnesses at a deposition, which serve no purpose other than to potentially derail the proceedings and allow the lawyer to feel self-important and in control of a situation he or she has no business attempting to control.
(That's not to say deposing lawyers can't take undue advantage of a witness and bully or ask about extraneous or improper matters.)
The motion and response are both fun reads too, btw -- including allegations of walking out of the deposition(!) upon receipt of the unfavorable ruling by Special Master Klein.
To be honest with you, there is a treasure trove of wonderful pleadings in this case.
If you can spare the 40 cents, I urge you to read the response to an order to show cause on whether the entire case should be dismissed as a sanction for missing an expert report deadline, which includes this wonderful paragraph:
But, these plaintiffs are suing their insurance agents and their carriers for monies owed to them. It is not outside the realm of credulity to suggest that insurance carriers take to heart Ernest and Julio Gallo's famed line: "No wine before its time."Ernest and Julio Gallo?
Hey, you skipped right over Bartles and Jaymes!
(What decade are we in again?)
The actual Order to Show Cause is a hoot as well:
The Court is having trouble ruling on plaintiffs' motion only because the Court is, quite frankly, stupefied! In all its years as a practicing attorney and a judge, this Court has never seen the actions displayed in this case by plaintiffs and the unimaginable audacity with which they proceed.See what I mean?
Wow, I had a mild college flashback reading the NYT Science page this morning:
The deep waves have the distinguishing curl of Kelvin-Helmholtz billows, a type of wave present throughout nature. Scientists have long tracked these distinctive waves, finding them on the windblown sea, on sand dunes, among clouds and even in the churning gases of Saturn and Jupiter.See, I told you!
Speaking of college, Davie attorney Spencer West did pretty darn good in the Boston Marathon, finishing third in the state(!):
"It was a beautiful day, and the crowd was amazing," West said.
"You get to the top of a hill and look forward, and all you see is an army of people. You've got the college girls from Wellesley slapping five and handing out phone numbers and holding ‘Kiss me' signs. It's a lot of fun."
Ok, forget windsurfing -- I just found a new hobby.
I've got a court hearing this morning, so have fun kids and wish me luck!
Monday, April 19, 2010
In a huge post-trial victory by GT's Steve Binhak over Adorno's Steve Ginsburg, Judge Jordan has overturned a jury verdict -- including an award of punitive damages -- in a condo dispute that involved misrepresentations over whether a new building ("Asia") would block an existing water view at Carbonell on Brickell Key.
Judge Jordan basically found that there was no evidence of damages, and he seems to me to be right:
At the hearing on the post-trial motions, Mr. Soltero argued that the $200,000 or $250,000 “view premium” was supported by evidence that Mr. Enriquez (the seller) told Ms. Aguila (the broker) that Unit 3608, with the view, was worth over $2 million, and that Ms. Aguila herself said it was worth $1.7 million to $1.8 million. See Transcript of Hearing [D.E. 228] at 51. That argument does not work for a number of reasons. First, Mr. Soltero cannot defend the “view premium” on what Ms. Aguila told him that Mr. Enriquez said to her about the supposed value of Unit 3608, or what Ms.Aguila herself opined. See, e.g., Bekins Van Lines v. Schaefffer, 630 So.2dQuery -- why not put on a damages expert for the difference in value?
633, 634 (Fla. 4th DCA 1994) (owner of property could not testify about property’s value “based upon telephone and personal conversations with others”). Second, if Mr. Soltero is suggesting that he bought Unit 3608 for less than what it was really worth with unobstructed water views (i.e., that he paid $1.7 million when it was really worth $2 million or more, as it was represented), then the benefit of the bargain theory may not even apply. Cf. Getelman v. Levey, 481 So.2d 1236, 1239-40 (Fla. 3d DCA 1985) (the benefit of the bargain rule “is designed for a situation where a party has effected a sale of property by representing it as worth more than its actual value,” and does not apply where the buyer obtains the property representing that it is “worth less than its actual value”).
b. Mr. Soltero also relies, in part, on opinions he personally expressed at trial concerning Unit 3608’s actual value, or its value as it was represented. Those opinions, however, cannot save the verdict. First, my trial notes reflect that Mr. Soltero testified that Unit 3608 was worth $1.2 million at the time of trial (i.e., in July of 2009). Such a valuation does nothing to put an actual value on Unit 3608 at the time of the sale (i.e., in December of 2005), or to show what the value was if the representations about Asia had been true, which are the two critical numbers required under Florida law for an appropriate benefit of the bargain comparison. See, e.g., Studebaker, 19 So. at 179; Kind, 889 So.2d at 90. Second, to the extent that Mr. Soltero tried to put an actual or “as represented” value on Unit 3608 as of December of 2005, such an opinion was hopelessly speculative, as Mr. Soltero did not take into account or explain the effect on his valuation of either an overheated real estate market -- in which many were buying as speculators in the hope that prices would continue to climb -- or comparable sales on the 08 line of Carbonell around that time on his valuation.
It is true that under Florida law an owner of property, including an owner of real property, may generally express an opinion as to its value. But such an owner, like any other witness, must be shown to be competent to testify about valuation. Mere ownership, without more, is not enough. And when the valuation of a condominium apartment has to be made in the context of an unsustainable bubble market, like the one that existed in late 2005, and the alleged reduction in value is based in part on something as subjective as a less expansive water view, it was incumbent upon Mr. Soltero to explain that his opinion was something more than mere speculation.
I'm less sure about Judge Jordan killing the puni award ("first time in 10 years on the bench") based on an improper net worth comment made by Ginsburg:
In closing argument, Mr. Soltero’s counsel told the jury that “even $10 million in punitive damages is chickenfeed to Swire, who’s invested over $800 million in Brickell Key alone.” This argument was based on evidence that Swire Pacific Holdings -- and not the Swire defendants on trial -- had invested hundreds of millions of dollars in Brickell Key. The defendants lodged a contemporaneous objection, but I mistakenly overruled the objection. Mr. Soltero’s counsel then told the jury “that’s what the law allows. Those are the punitive damages that [Mr. Soltero] is asking you to award.” As a result of this second statement, I gave the jury a curative instruction: “Let me just add one thing, ladies and gentlemen. Swire Pacific Holdings is not a party in this case. And you may not consider any assets or conduct of Swire Pacific Holdings in deciding the issues in this case, including the issue of punitive damages, if you should award them.”Guess you had to be there, but it sounds like the Judge got a little ticked over Ginsburg going over the line, which is fine, though the curative instruction was pretty good and probably sufficient in most circumstances.
After closing arguments were finished, I reminded Mr. Soltero’s counsel that I had repeatedly ruled that he could not use the assets of the related Swire entities that were not parties, admonished him for violating those rulings and for “playing games,” and said that I expressed no view on what effect, if any, that improper closing argument would have on a verdict in favor of Mr. Soltero. The response of Mr. Soltero’s counsel was that the $800 million figure came from the website of Swire Realty.
Oh yeah -- our friend DOM (moonlighting from his successful crim practice) represented the defendant broker at trial.
Congrats all around (well, almost all around)!
Happy wet Monday, kids.
Did you see this controversial, bold, assertive Herald editorial on replacing Justice Stevens?
Neither did I.
Instead we got the usual opinion-free, can't we all get along, both-sides-are-to-blame, warmed-over Broderisms that reflect an alternate reality far apart from the one the rest of us inhabit.
Consider this hard-hitting statement:
Republicans, for their part, have an obligation to hold their fire unless there are well-founded reasons to object. If Mr. Obama makes a centrist choice, the nominee deserves to be treated as such.
Is there anything at all in the air to suggest something different this time around?
Granted, the Herald's editorials have always been for the most part inoffensive, milque-toast expressions of conventional wisdom, tentatively expressed.
But this one literally adds zero to an important issue that requires an accurate -- as opposed to idealized -- understanding of today's political landscape.
If wishes were ponies.....
Friday, April 16, 2010
So Willie Gary's son Kobe gets two and a half years.
Question --does this vindicate the seven-member "trial team" strategy?
How the hail should I know -- I do civil litigation, but hopefully David will weigh in.
Sheesh it's too darn nice outside, so I am out of here for some early afternoon windsurfing.
There are tons of civic/charitable things for you to do this weekend, and I've gotten emails from just about all of you on stair climbs, walks, runs, crawls you name it.
Pick one and do it, putzos -- or at least donate to someone who is.
Before I go please don't forget to be careful around your Wii, this is just plain weird, and Demi Moore is on a most excellent diet.
Oh yeah, one more thing -- happy birthday, Israel!
Have a great weekend.
We analyzed Judge Jordan's ruling last year in the Langbehn/Jackson Memorial gay visitation dispute here.
While I wasn't exactly thrilled with the outcome, I found his ruling sensitive, rational, and fair given the messed up state of Florida's tort jurisprudence.
Now we see all the advocacy and publicity has paid off (depending on your point of view):
Gay rights advocates said the rules change was inspired by one of those cases involving a same-sex couple, Janice Langbehn and Lisa Pond, who were profiled in The New York Times last year. After Ms. Pond was stricken with a fatal brain aneurysm, Ms. Langbehn was denied visiting rights in 2007 by a Florida hospital. Although Ms. Langbehn had power of attorney and she and Ms. Pond were parents to four children they had adopted, the hospital refused for eight hours to allow her and the children to see Ms. Pond, her partner for 18 years. Ms. Pond died as Ms. Langbehn tried in vain to get to her side.
Ms. Langbehn, represented by Lambda Legal, a legal advocacy organization, brought suit against the hospital, Jackson Memorial in Miami, but lost. On Thursday night, Mr. Obama called her from Air Force One to say that he had been moved by her case.
“I was so humbled that he would know Lisa’s name and know our story,” Ms. Langbehn said in a telephone interview. “He apologized for how we were treated. For the last three years, that’s what I’ve been asking the hospital to do. Even now, three years later, they still refuse to apologize to the children and I for the fact that Lisa died alone.”
Glad to see that hopey-changey thing working out for ya' at least a little bit.
Thursday, April 15, 2010
Wow, the 11th upheld a panel decision denying fees to a prevailing party in an FLSA case because the defendant was a law firm and plaintiff's counsel should have "picked up the phone" first before filing a suit against local lawyers.
Question - I'm all in favor of collegiality, but other than in your dreams, how often have you resolved a case with a pre-suit phone call?
("Sure, I'll get Exxon on the line and we'll cut you that check rightaway!")
Judge Edmondson concurs in the denial, and writes at length about how useless to our country -- yes, our country -- dissents from en banc denials are. He then goes on to justify the panel decision in the exact manner he decried when done as a dissent.
Judge Barkett writes a blistering dissent, noting that the district judge's personal view of local practice shouldn't really trump a federal statute.
Judge Wilson's dissent focuses on courts giving lawyers special exceptions that are contrary to governing statutes, and the attendant precedential effect:
Although well intentioned, I doubt that the federal courts have the inherent authority to ignore and override a statutory mandate in the interest of promoting a professional courtesy. I also do not believe that Congress intended to single out lawyers for exclusive treatment under the FLSA. Since it is now within the inherent authority and discretion of the district courts in our Circuit to hold that no attorney’s fee is a reasonable fee when no pre-suit notice is extended to defendants who are lawyers, I would consider this case en banc before permitting this new Circuit precedent to stand.Oy.
Lawyers who do (or did) this kind of work -- what say you?
Interesting fact: Miami property tax appeals lawyer Tom Post lives in a castle somewhere in Kentucky.
I could pretty much stop there, but there's more:
Tom Post spent millions of dollars and several years rebuilding the landmark castle on Versailles Road into a luxury inn that draws an increasing number of paying visitors in addition to curiosity seekers.Beat that, all you white-shoe macher wannabees fighting traffic to Brickell and dealing with billables, collections and annoying out-of-state partners who constantly tell you how to run your practice.
Post has roots in the Bluegrass. A Lafayette High School graduate, he earned an undergraduate degree in mathematics and a law degree at the University of Kentucky. At the University of Miami law school, he earned a master's of law degree.
But Post made his money in real estate. In downtown Miami he owned hotels, warehouses, office buildings and parking lots. "Real estate was very, very good to me," he said.
He sold the buildings a few years ago, before the real estate market crash, but Post said he still owns several downtown acres of vacant land and parking lots.
Practicing law in Miami for more than 30 years, Post specializes in property tax law. Property taxes are the main source of revenue for Florida and its cities. "Our job is to make sure our clients don't pay more than their fair share of property tax," Post said of his three-member firm.
Wednesday, April 14, 2010
Let's talk about a topic I love -- teabagging.
Excuse me, "Tea Partiers."
We've previously written about the intra-teabag legal fight brewing before Judge Marra.
Now comes word that Judge Marra has set a trial date and other deadlines and defendant/lawyer Fred O'Neal has filed a summary judgment motion against the plaintiff, South Florida Tea Party, that includes some strong allegations.
Basically, Fred says he never threatened anybody with any litigation, the emails are truncated and omit important information, and besides O'Neal was just old and upset over the Gators losing to Alabama.
Hail, I was mad about that too.
So mad that -- like all good Tea Partiers -- I decided to secede from the Union and start my own heavily armed country.
So far I have asked two highly qualified candidates to serve in my administration -- in a Steven Seagal sort of way -- and once we clear up a few minor legal details (ok, restraining orders?), I've no doubt Drew and Zooey will finally join me in forming that cherished, more perfect union.
Tea Party Summary Judgment
Hi kids, it's a crazy hump day out there and I have an FBA luncheon to get to, but no worries -- the Resplendent Ones, the Robed Ones, the Swillers of the Judicial Coffee -- yes the inhabitors of that very concrete bunker of sorta-justice by the highway -- have spoken!
And they say to us that all is well, that all is right with the world.
Oh yeah, I almost forgot the opinions.....
Beltran v. Rodriguez:
This is a trucking accident negligence case in which Judge Areces granted a DV to defendant, and the 3d upholds.
The plaintiff's expert probably didn't help much:
Daniel Melcher, the accident reconstruction expert hired by the Plaintiff, testified that although he observed several defects, none of the truck’s defects contributed to the accident because, inter alia, there was no evidence that the Truck Driver took any measures to avoid the collision, including reducing his speed, braking, or swerving.Hernandez v. City of Miami:
Imagine that -- a defective storm drain in the City of Miami?
But the plaintiff apparently gave inconsistent and contradictory answers so the trial judge struck his pleadings and dismissed with prejudice.
Not so fast:
Invego v. Rodriguez:
A trial court’s decision on whether to dismiss a case for fraud on the court is reviewed under a narrow abuse of discretion standard. See Cherubino v. Fenstersheib & Fox, P.A., 925 So. 2d 1066 (Fla. 4th DCA 2006). For the trial court to properly exercise its discretion, there must be an evidentiary basis to dismiss the case. See Ramey, 993 So. 2d at 1018.
Here, the trial court did not have a clear and convincing evidentiary basis to dismiss the case for fraud on the court. Therefore, we find that the trial court abused its discretion in striking the pleadings and dismissing with prejudice Hernandez’s claim.
This case presents a very interesting fact pattern:
Vigo was born in 1505 in the small country of Carpathia in Hungary, near Italy. He soon rose to power and ruled his country with an iron fist. Because of his evil ways he wasn't well liked by his people and subjects & killed hundreds of them. He was also known as Vigo the Cruel, Vigo the Torturer, Vigo the Despised, and Vigo the Unholy. Peter Venkman jokingly adds Vigo the Butch to the list of aliases.
He eventually died at the age of 105 in 1610, but not because of his old age. His people had led a rebellion and they tried and executed him in a manner that they sought fit for his rule. He was poisoned, shot, stabbed, stretched, disembowled, hung, and drawn and quartered. Just after they removed his head, he uttered this prophetic warning: "Death is but a door. Time is but a window. I'll be back. According to the movie, Vigo was a powerful magician, a tyrant, a genius in many ways, also a lunatic and a genocidal madman.
Ooops, got hung up on the Vigo part.
(Hey, it's a slow week!)
I've always said he's a mensch, but Miguel de la O (pictured above) did the right thing last night in a note about suspending his campaign:
Dear friends and supporters:
I am disappointed to inform you that I am suspending my campaign for Circuit Court Judge in Group 21. As many of you already know, the replacement judge for Group 21 will no longer be selected by election, but rather by gubernatorial appointment. The explanation for this change is both simple and complicated. If you are interested in the intricate details, I set them out below. The simple explanation is that the incumbent judge in Group 21, who was scheduled to retire in January 2011, unexpectedly resigned last week.
I am grateful for the wise counsel many of you have provided me during the last five days. Based on that counsel, and my own thoughts and principles, I have made several decisions. First, all campaign contributions will be returned in full. I am going to personally absorb all campaign expenses that I have incurred.
Second, I will not run for election in any of the existing races for open seats to the Circuit Court. Those races already have qualified attorneys who have been actively campaigning (in some cases, for even longer than I have).
Third, I will not challenge any incumbent judges who are up for re-election. Although I have been encouraged to run against various incumbents, I believe lawyers should have good reasons to run against an incumbent. The mere fact I might win is not a good enough reason. Good incumbent judges deserve our support. I would be betraying my principles to challenge a sitting judge simply because of the likelihood of success on election night.
Fourth, I intend to apply to the Judicial Nominating Commission for appointment to the seat for which I was running, and hope my qualifications and proven commitment will weigh favorably in the minds of the JNC and – if nominated – the Governor.
I have been campaigning for over 14 months. During that time, I have benefited immensely from the opportunity to learn what members of our community, lawyers and non-lawyers, expect from judges who daily have the privilege and burden to make decisions that affect the lives of many, many people. Although disappointed that I will not stand for election this year, the support I have received over the past year has been humbling and energizing. I am as committed as ever to serving my community. I am also deeply grateful for all of the support you have shown me. I hope I continue to earn it, and that despite my decision not to run this election, I can count on you when I decide to run again.
I am especially grateful for the support of my family and my firm. Rosa and our children have borne the burden of my absence due to endless campaign events – as has the firm of de la O, Marko, Magolnick & Leyton. These contributions cannot be returned in full, I can only repay their support with love and appreciation.
Rump's coverage of this year's judicial election mess is here.
Tuesday, April 13, 2010
When's the last time you were accused of stealing $10 million from Afghan royalty and moving it from an offshore account on an English Channel island to another in Liechtenstein?
For West Palm Beach attorney Manley Thaler, I'm gonna say once:
Manley is represented by his partner Eileen O'Malley, and the plaintiffs by David Mankuta and Bob Butterworth.
The strange tale of international intrigue has also spawned a criminal investigation in a small island in the English Channel and a civil suit in Palm Beach County Circuit Court.
In each, attorney Manley Thaler is accused of misappropriating millions that the late Afghan leader Abdul Madjid Zabuli left in his will to promote education and culture in his native country. A benefactor of the arts in his hometown of Ithaca, N.Y., Thaler has served on several local philanthropic boards, including the American Red Cross. Now 80, he dined with Britain's Prince Andrew when the queen's son visited Palm Beach in 2007.
According to court records both here and in Liechtenstein, Thaler stripped Zabuli's widow and others of their power over the foundation. He then created a dummy corporation in Liechtenstein, which sits between Switzerland and Austria and is notorious as a place to hide assets.
To finish the deed, he moved $10 million from the foundation that was based in Guernsey, an island state under the British Crown, into the corporation he controlled in Liechtenstein.
Although I never personally transferred Afghan millions from an English offshore shelter to a tiny European principality, I do vaguely recall a tremendous Who concert on the Isle of Wight, various power struggles involving an iron-clad Doctor that took place in lovely Latveria, and a tiny European war-mongering duchy known as Grand Fenwick.
So it's kinda similar I guess?
I don't mean to pick on Steven Chapman Fraser, who was appearing at a hearing recently on behalf of David J. Stern.
Hey, a guy's got to work.
But take a gander at this transcript of a motion for rehearing on a foreclosure summary judgment previously granted by Pinellas County Judge Anthony Rondolino.
The homeowner's counsel is Michael Alan Wasylik of Dade City.
Judge Rondolino starts by saying there is substantial merit to the rehearing motion, and wants to hear what the bank has to say.
Fraser, appearing by phone, responds with general stuff about the rehearing standard.
Judge: "Did you not read the motion?"
It goes downhill from there.
At one point Fraser attempts to rebut arguments regarding the admissibility of an affidavit submitted in support of the sj, which defendant objected to:
Mr. Fraser: Yes, Judge. You know, Courts can take hearsay evidence at the summary judgment proceeding. I believe there is a case -- I don't have it with me --Zing!
The Court: Yes, what is that, Courts can take it?
Mr. Fraser: Yeah. Sure. My understanding is that the Court at the summary judgment level can accept hearsay.
The Court: Over objection? I --
Mr. Fraser: I do have a case that stands for the proposition, not on me, that Courts can take hearsay evidence at the summary judgment level.
The Court: Okay.
Mr. Fraser: Whether or not over objection, if it's objected to, I --
The Court: Over objection?
Mr. Fraser: I have no case to either support or refute that.
How do you think the Judge ruled?
Monday, April 12, 2010
Are yachts undergoing land-based repairs "vessels"?
Do bears....well, you get the picture.
That's the essence of today's 11th Circuit opinion that provides a comprehensive and very interesting history of the development of maritime liens.
It makes total sense, but I never really understood that the reason maritime liens exist is to allow ships to get quick repairs wherever they are, without having to provide cash or other security not readily available far away from home port:
Maritime liens originated, in part, “in a desire to protect the ship,” which is “peculiarly subject to vicssitudes which would compel abandonment . . . unless repairs and supplies were promptly furnished.” Id. at 9, 41 S. Ct. at 3. Ships braved the danger of the seas dependent on a solid construction and a skillful crew. Should structure or seaman fail, ships had little to compensate for the loss and, at times, had to seek the help of strangers. Ships, however, often lacked items of sufficient value to offer in exchange for the help they needed.However, each state and jurisdiction had their own maritime lien law, creating confusion and contradictory legal obligations:
Because a ship was often in need of repairs and necessaries while it was away from its home port and without large sums of money on board, maritime liens enabled persons in charge of the ship to use the value of the vessel itself as a pledge of credit in order to secure the work and parts it needed during the voyage.
It is not surprising that, given the historical nature and special needs of the shipping industry, maritime lien laws are no recent development. Maritime liens existed in Continental Europe and first emerged in the United States through state and common law. See 2 Benedict on Admiralty §§ 36–37 at 3-21 to 3-22; § 41, at 3-44 (7th ed. rev. 1998). This decentralized development of the lien laws resulted in a “confusing collection of individual statutes enacted over . . . centuries—each enacted to solve some particular problem of the day.” See H. R. REP. NO. 100-918, at 11 (1988). The statutes were “poorly organized, duplicative, often obsolete, and difficult to understand and apply.” Id.Hold on -- federal legislation that imposed uniform national requirements on differing and contradictory state regimes??
The competing legal regimes governing maritime liens were further complicated by geographical variance. Different locations had different rules governing whether liens could attach, depending on, for example, a ship’s origin and port of service. See H. R. REP. NO. 46-1698 at 1–3 (1880). The laws also differed as to when during the repair process a lien could attach. Id. Congress recognized the need to unify and simplify the law. See The Gertrude v. Coward, 38 F.2d 946, 948 (5th Cir. 1930) (noting one of the purposes of the Act of June 23, 1910 was to replace state maritime-lien statutes with a single, national law). In 1910, Congress passed the first version of the Federal Maritime Lien Act, establishing a uniform national maritime lien system.
Goddarn federal do-gooders running roughshod over individual states' rights?
Where are the teabaggers when you really need them?
DOWN WITH TAFTCARE!
I merely am referencing this story about Miami Beach attorney Elliot Miller and his lawsuit over a negative Ebay comment:
Just when you think that set of flamingo-themed flatware is a questionable enough buy on eBay, your business might be even more risky: the seller could be a Miami lawyer.
Mike Steadman paid $44 for a "working" time clock for his small Cape Canaveral welding business in November 2008, but it didn't work -- and now he's out $7,000 for legal fees and still facing a $15,000 defamation lawsuit from seller Elliot Miller, an attorney living in a $3 million dollar waterfront home on Miami Beach, WFTV reported.
Perhaps he should have purchased a stone and a slingshot.
"I made the mistake of leaving my honest opinion online," Steadman told Florida Today of checking "negative" in the feedback section eBay asks all buyers to complete at the end of a transaction. "The comments are there to let other buyers know who they're dealing with. [But] because I don't have the money to fight them, I'm losing. It's not right. I'm speechless."Miller's attorney is Judith Frankel:
Steadman says when he received the clock, it didn't run, stamp time cards, or work with the accompanying set of keys as advertised. "When I opened the box it was in 3 pieces [from three separate models] that didn't even fit."
Miller refused to grant a refund, so Steadman filed a complaint with PayPal's buyer protection plan and eventually got his $44 back. But the bad taste lingered.
"Bad seller," he wrote in an effort to warn other buyers about EMiller1313. "He has the ethics of a used car salesman."
Unfortunately for Steadman, Miller is juuuuust a tad uptight about feedback. He filed a lawsuit in Miami-Dade court last February, claiming that the single comment lowered his perfect 100 percent positive feedback rate to just 98.6% -- thereby "seriously harming" his "commercial reputation."
Miller's attorney, Judith Frankel, declined to comment."We have no comment on the case because it is a matter still pending," she said. "It'll be resolved in the courts."Judith's practice appears to focus mostly on probate and estate matters.
BTW, the last thing I bought on Ebay were some old Bo Derek trading cards -- I'm sure I'm not alone on this? -- and needless to say I was 100% satisfied.