Wednesday, February 29, 2012

RIP Judge Maxine Cohen Lando

In honor of the passing of Judge Maxine Cohen Lando, we will not be doing a 3d DCA Watch today.

Judge Lando, a lifelong resident of Miami-Dade County, was a firebrand old school kind of judge who always -- and I mean always -- had her heart in the right place.

She will be sorely missed.

Please pay your respects on Friday:

Services will be held on
Friday, March 2, 2012 -- 11:00 a.m.

Temple Bet Shira
7500 S.W. 120 Street
Miami, Florida  33156
                                           (305) 238-2601

"Boilermakers for Everyone!"

When I grow up I want to be just like Bill Scherer:
Broward Circuit Judge Jeffrey Streitfeld spent the day Tuesday setting ground rules for a trial that was scheduled to begin with jury selection Thursday.

But Scherer told the Daily Business Review after court adjourned that a settlement had been reached and he was celebrating at a bar with boilermakers.

I haven't had one of those since college, but on the other hand if I just made $50 million for my firm I'd be drinking boilermakers, haymakers,  widowmakers, salt and pepper shakers, you name it -- Bill's buying.

Tuesday, February 28, 2012

$170 Million Probably Meant the Bank Had Some Good Defenses!

Let's see, if the investors were seeking $186 million in losses (plus the potential for punis) and TD Bank settled for $170 million, I'm guessing the defense case for the bank didn't look too good:
The settlement, reached last week by the investors' Fort Lauderdale lawyer William Scherer, breaks down this way: TD agreed to pay the investors $100 million for their losses and $20 million in interest on their original claim amount. Their attorney's law firm, Conrad Scherer, will receive $50 million in fees.
Scherer is receiving $50 million?

It took a while, but Rothstein finally did something good for his fellow lawyers.

Monday, February 27, 2012

Did Dave Samson Really Sell the Marlins at Team Awards Banquet?

That's what this lawsuit, filed by Fort Lauderdale attorney Todd Payne, seems to suggest -- am I reading this right?

Here's a little back story by
Apparently, back in February of 2008, there was some sort of awards banquet with an auction in Miami. Marlins president David Samson -- who doesn't own the team, mind you -- said the first item up for bid was the Marlins and he'd sell them for $10 million, seemingly as a joke. And a man said he'd bid the $10 million, which was surely seen by everyone in attendance as furthering the joke.

Instead, Omeranz and Landsma Corporation in Florida is now suing the Marlins, believing it bought the Marlins for $10 million and that the Marlins have breached contract. Seriously, here's the court filing PDF, via
Surely no one hates Dave Samson's pedestrian and obvious movie reviews more than me, but is there another side to this story?

(There better be.)

Or maybe the rubes in the crowd just don't get his sophisticated sense of humor?

These Three Words.

 I certainly hope every lawyer by now has seen the fantastic HBO documentary The Loving Story, which brilliantly explores the cultural and legal landscape behind the landmark 1967 Supreme Court case overturning state bans on interracial marriage (though it took Alabama 33 more years to repeal theirs!).

I was struck by the words of the unanimous Court that appear on screen at the end of the documentary:
Under our Constitution, the freedom to marry, or not marry, a person of another the same race sex resides with the individual and cannot be infringed by the State.
See how easy that is?

Friday, February 24, 2012

So You Want to Be a Federal Judge?

Now is the time:
Pursuant to the instructions set forth in the attached letter from Senator Bill Nelson and Senator Marco Rubio, dated February 16, 2012, the Florida Federal Judicial Nominating Commission is now accepting applications for the following position:

• U.S. District Judge, Southern District of Florida

This vacancy was created by the Senate's recent confirmation of U.S. District Judge Adalberto Jordan to the U.S. Court of Appeals for the Eleventh Circuit.

The revised Rules of Procedure for the Judicial Nominating Commission, dated April 11, 2011, application forms with incorporated instructions, and the names and addresses of the members of the Commission, dated February 14, 2012 are available at the following websites: 1) The Florida Bar (, 2) District Court for the Northern District of Florida
(, 3) District Court for the Middle District of Florida (, and 4) U.S. District Court for the Southern District of Florida ( In addition, these materials may also be obtained from the Commission's Statewide Chair John M. Fitzgibbons, The Law Offices of John M. Fitzgibbons, 707 North Franklin Street, Suite 700, Tampa, FL 33602, Telephone: (813) 221-8800.

Completed applications must be received by the Commission's Statewide Chair and each Commission member in the manner specified by the Rules of Procedure by 5 p.m., Monday, March 26, 2012. Applicants who are selected by the Commission for personal interviews will be interviewed on Friday, April 27, 2012, at the Judge's Conference Room, 14th Floor, Wilkie D. Ferguson, Jr. U.S. Courthouse, 400 North Miami Avenue, Miami, Florida. The names of the applicants who are selected for personal interviews with the Commission, as well as the interview times, will be published on each website on or before April 18, 2012.
In other news,  this guy is the reason why everyone has to show up and support the retention of Justices Quince, Lewis, and Pariente at the fundraiser next week:
The retention referendum deciding whether Justices Fred Lewis, Barbara Pariente and Peggy Quince are to keep their jobs for the next six years — or whether Gov. Rick Scott gets to replace them —appears likely to become the most hotly contested judicial elections in more than 20 years.
No justice or District Court of Appeals judge has ever been voted off the bench, since Florida switched from competitive elections to the appoint-and-retain model in 1976, but none has faced the kind of organized effort being mounted by a Central Florida group.

"I wouldn't want a judge thrown off the bench for one bad ruling," said Jesse Phillips, a Winter Park computer programmer who heads Restore Justice 2012. "But what we've seen on the Florida Supreme Court is a pattern of judicial activism."

Phillips cited court rulings removing the Legislature-sponsored Health Care Freedom Act from the ballot in 2010 — a corrected version is back on this year's ballot — and a 2000 ruling that struck a death-penalty constitutional amendment after voters had approved it.

Phillips said his only previous political experience was an unsuccessful 2010 effort to deny Justices Jorge Labarga and James E.C. Perry new six-year terms. Both men survived, but by about 6 percent less than Justices Charles Canady and Ricky Polston, who were not challenged for retention.
"It was purely a grass-roots campaign in just a few weeks, and we were able to move the results by six or eight points," said Phillips. "What we're running is a voter-education campaign. We're not telling people to vote yes or no, but laying out the record of the judges."
Let's hope this doesn't become a trend.

Finally, Paul Calli continues to happen.

Happy Friday!

Thursday, February 23, 2012

Mixed Verdict in Chow v. Chow Hand-Pulled Noodle Throw Down!

Seems like a lot of litigation, time and expense for a half million recovery, particularly where a counterclaim succeeded in roughly the same amount.

Time to spin it!

Hmm, I'd Like to Write Something Positive Today.

But I can't get some of these creepy sexts out of my mind:
itsjustme24680: Good morning!
Fernandez-Karavetsos replies, "Leave me alone."
itsjustme24680: is that a way to treat a friend? lol
itsjustme24680: how's motherhood?
itsjustme24680: getting any sleep?
itsjustme24680: Georgie doing well?
This is the last time I'm going to ask, you've been texting long enough - who is this?
itsjustme24680: considering we're both married parents, probably best I not answer that at this point...
itsjustme24680: Marlene?
This guy really knows how to sweet-talk a woman! 

Here's what poor Richard texted stated to his wife
‘Words cannot express how sorry I am to my wife, for the disrespect I have shown her, and my entire family,’ he told the Miami Herald.
Ok, that's a start, but you're in for a very long journey.

See you all at Chris Korge's house!  (bring $15k)

Wednesday, February 22, 2012

But Did You Try Pinterest?

As a followup to the toxic tush melee, I see that a number of motions for restraining order were filed

They were apparently set for hearing on February 10 -- does anyone know what happened?

This part caught my eye:
The younger Brown's lawyer, Spencer Aronfeld, could not be reached for comment late Friday afternoon despite messages left on his office voicemail, email and Twitter accounts.
Sheesh, can you leave the dude alone?

He'll talk when he's ready -- but why stop at Twitter; did you try Pinterest?

I hear there's an awesome baked taco ring, maybe you can chat with him if he happens to be hanging around there?

(Someone, anyone, please explain Pinterest.)

3d DCA Watch -- Fabre Happens.

Yo ho yo ho a Fabre's life for me.

Dig it:

Regions Bank v. Capital Square:
We conclude that the trial court’s refusal to give Fabre instructions to the jury mandates a new trial, but solely as to the issue of apportionment of fault. We follow Nash, in concluding that a reversal precipitated by Fabre errors does not affect the determination of damages and should not require a new trial on damages. In Schindler Elevator Corp. v. Viera, 693 So. 2d 1106 (Fla. 3d DCA 1997), the Third District Court of Appeal limited the new trial solely to the issue of apportionment between the parties and the non-party defendants, stating that, “where a jury has been prevented from properly considering apportionment because a Fabre non-party was erroneously omitted from the verdict form, the solution is a new trial limited to the apportionment issue, not a new trial on all liability issues.” Id. at 1108; Nash, 678 So. 2d at 1263-64. We therefore reverse and remand for a new trial solely on the issue of apportionment between the parties and non-parties, where the non-party accounting firms must be included on the verdict form.
Once more, with feeling.

Zarate v. Deutch Bank.

You really need a record to do an appeal.

Yo ho yo ho......

Tuesday, February 21, 2012

Jack Brumbaugh, Artist!

It's nice to see Jack branch out and explore his artistic side.

Judge Pando Flap -- Does Case Hold Water?

The Herald led its Saturday (least read?) edition with a front-pager on Judge Pando.

In addition to the letter she wrote on behalf of a pain clinic that regularly appears before her, there are allegations regarding a Ponzi schemer trying to set up a meeting so she would put in a good word for him before his Broward sentencing judge:
Pando’s name surfaced repeatedly in a series of phone calls tape-recorded at the Broward County Jail between racketeer Arturo Godinez and his wife. A Broward jury found Godinez guilty of fraud and conspiracy on Oct. 31 in a case involving the sale of sometimes bogus cancer and AIDS drugs to unsuspecting pharmacies and consumers. The next day, Godinez held the first of several conversations about how to recruit influential leaders to advocate for his release. Pando was one of them.
Let's put the letter issue aside for a moment and focus on these allegations.

From what I can tell, Judge Pando did not agree to meet with Godinez, but apparently was considering it, according to his wife:
Judith Godinez told her husband in one recorded conversation that a meeting had been scheduled between Pando, Pando’s father, Esteban Bencomo — who is referred to throughout the conversations by his nickname, “Papito” — and someone they call only “El Leader.”

In one conversation, Judith Godinez told her husband that Pando was willing to meet with representatives of the couple — but wanted to control who was present. “She’s not going to be comfortable talking in front of me, because I wanted to be present,” Judith Godinez told her husband, though the “me” she was referring to may also have been a family friend named Martica. Later, we’ll see what she says, how she can help.” 
That's it?

Maybe I'm jaded, but this seems pretty thin to me.

What am I missing here?

As regards the letter,  I don't think she is helped by this statement by the pain clinic's president:
Through a lawyer, former U.S. Attorney Atlee Wampler, Florida Wellness’ president, Cereceda, issued a short statement praising Pando: “I have the highest respect for Judge Pando,” he said. “I am a regular contributor to her election campaigns. I believe she has an excellent judicial temperament. I strongly support Judge Pando’s re-election.”
I bet he does.
d more here:

Read more here:

What say you?

Read more here:

Friday, February 17, 2012

Magistrate Judge Brown Explains How the Local Rules Work.

Apparently you can't just waive the Local Rules by agreement, you sort of need the Court to sign on to your little side deal too:
The Local Rules are not simply guidelines for the litigants. They also exist, in some instances, for the Court's benefit as well. The rule at issue (Local Rule 26.1(h)(1)) was created to prevent exactly what is happening in this case . . . a flurry of last minute motions to prepare the case for trial. Here we are, after the discovery deadline has passed, on the issue of plaintiff retaining an expert on a matter that could have - and should have - been resolved long before now. Perhaps defendant would like to retain its own expert? Perhaps the next step would be an evidentiary hearing? This is why the rule exists.

No 1aw has been cited that gives the parties the right to summarily decide they won't be bound by a Local Rule. Were that the case, perhaps the parties could also agree to disregard the prefiling conference requirement (Local Rule 7.1(a)(3))? Perhaps the parties could agree not to be bound by the page limitations as well? A party could file a 45 page motion and as long as the opposition doesn't raise the page limits issue the Court should or must accept same?
Five very good questions -- is it Passover (plus one) yet?

Also, if I'm not mistaken, the Local Rule at issue (you have to file discovery motions thirty days after grounds exist) -- wasn't that Magistrate Judge Brown's idea in the first place?


Thursday, February 16, 2012

Kevin Gleason and Judge Olson -- Yes, There's More.

We've reported extensively on the saga involving bankruptcy lawyer Kevin C. Gleason and his unique brand of written advocacy before Bankruptcy Judge John K. Olson.

Well of course Gleason appealed the en banc sanctions order, leading to yet another Order on this topic, this time from Judge Marra:
Based on the Court’s review of the record, the Court concludes that the Bankruptcy Court did not abuse its discretion in sanctioning Mr. Gleason pursuant to its inherent power. The April 18, 2011 Response to Order to Show Cause and May 13, 2011 Supplemental Response demonstrate bad faith on the part of Mr. Gleason, violated his duty as a member of the bar and damaged the reputation of the Court, the judicial system, the legal process and the legal profession.
 Unfortunately for Mr. Gleason, it goes downhill from there......

Wednesday, February 15, 2012

3d DCA Watch -- Marva Wiley Wins!

Hey hey hey it's hump day, that means we have to slog through have the pleasure of deciphering the written utterances of our own Resplendently Robed Ones.

Given the recent kerfluffle over contraceptives and the Catholic Church, let's dig right in with a timely opinion on the "ecclesiastical abstention doctrine":

 Bendross v. Reardon:

The genuinely great Marva Wiley gets a reversal on alleged misconduct at a local church:
We find that the ecclesiastical abstention doctrine does not bar this suit.  Plaintiffs are not categorically prohibited from ever seeking redress from the courts solely because a religious organization is somehow involved in the dispute. “[W]hen a church-related dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving religious controversy, the civil courts may adjudicate the dispute.” Se. Conf. Ass’n of Seventh-Day Adventists, Inc. v. Dennis, 862 So. 2d 842, 844 (Fla. 4th DCA 2003) (citing Jones v. Wolf, 443 U.S. 595, 602-604 (1979)). Appellants do not allege, in their complaint, that the Bible Baptist Church committed any wrongdoing, and do not challenge the institution’s employment practices or policies. Nothing in the record indicates that Appellants have sought judicial intervention concerning any aspect of church governance. Instead, Appellants allege that Appellees, acting without authority, attempted to remove specific board members from the organization in derogation of the requirements of section 617.0808 (Fla. Stat. 2010).
 The War on Religion continues....

In other news, can you believe we need to raise money for Florida Supreme Court justices now?

But these are very worthy Justices and you should attend and give generously at the 2/27 event.

BTW, "Committee of Responsible Persons to Retain...." doesn't exactly roll off the tongue (it has a vague Soviet-era workers' committee ring to it), but it's a very good cause anyway.

Loan Me Fifty (Thousand) Dollars!

Anyone else catch this story about our State Attorney Kathy Rundle:
Miami-Dade County State Attorney Katherine Fernandez Rundle has found a high-return investment, according to public records. Rundle lent $50,000 to a Key Biscayne homeowner at 12 percent interest.

“Well, I needed money quickly,” international lawyer Robert Feinschreiber said. “I had medical bills piling up. I know it’s a high interest, but I had no choice.”

According to court papers, he signed the two-year loan in 2007.

The deal, which wasn’t registered in archives, came to light as Feinschreiber is now facing foreclosure from a bank.

“Ms. Rundle has an interest in the apartment,” Feinschreiber said. “That’s why her name popped up.”
Another citizen, Elaine F. Rand, loaned Feinschreiber $50,000 at the same rate on the same day, according to documents.

“There’s nothing improper here,” Feinschreiber said. “I don’t even know Ms. Rundle. I was approached by a lawyer friend of mine who said he knew people who could help me and he told me later it was the state attorney.”
Ed Griffith, Rundle’s spokesman, said he couldn’t comment on the state attorney’s personal matters. And the state attorney didn’t reply to an email seeking comment. 

I wonder what her rates are for home equity lines -- I'd like to add another hot tub (you can never have enough of them).

In other news, Paul Calli and "racy texts."

Hey, I just report this stuff.
Read more here:

Tuesday, February 14, 2012

Let's Talk About Love!

Yes kids, it's Valentine's Day and I'm feeling impossibly romantic.

I hope you are too?

Let's do a love edition:

1.  Wouldn't it be great if our wide-eyed, reptilian Governor said something like this:
"Look into your hearts and ask yourselves: 'Isn't it time?' " said Gregoire, as cheering supporters chanted "Thank you! Thank you! Thank you!"

"We did what was just. We did what was fair. We stood for equality, and we did it together, Republicans and Democrats, gay and straight, young and old, and a number of our faith organizations. I'm proud of who and what we are as a state," the governor said.
2.  More depos for Rothstein (somebody somewhere is loving this).

3.  Judge Marra refuses to dismiss punitive damages allegations in case involving an allegedly defective pain pump.
Through their Complaint, Plaintiffs allege actual knowledge of the danger posed by using the pain pump through the reports identified in subsections 20(c) and 20(d) of the Complaint. Plaintiffs further allege that “Although I-Flow had the capacity to use vendors to reach out to all orthopedic surgeons nationally, I-Flow’s officers and/or directors chose not to send out any Dear Doctor or Dear Healthcare Professional letters to surgeons or hospitals.” Complaint at ¶ 20(f). At least one Florida Court has determined that a product manufacturer’s actual knowledge of a danger followed by a failure to warn of that danger supports punitive damages. See Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191-92 (Fla. 4 DCA 2005) (“We agree with plaintiffs that the proffer reflected facts from which it could be found that Firestone knew about the tread separation, but delayed warning the public in order to protect its own financial interests. Such a finding would support punitive damages.”) The Court finds that Plaintiffs have met the pleading requirements articulated in Iqbal and Twombly and dismissal of their claim for punitive damages is not warranted.
(Ok, I only quoted this because I love talking about Iqbal/Twombly.)

4.  More love for Jeremy Alters:
The former nanny, Katelyn Sullivan, meanwhile, said in a suit filed two weeks ago that Alters charged more than $170,000 on her credit cards, withheld $20,000 in pay, and even made her sell her old Volvo because he didn't like how it looked in his driveway.

Both are bunk, Alters says. He has filed a motion to dismiss the Argentine case and this week plans to file a similar motion against Sullivan's claims.

"Her lawsuit is nonsense. Her claims are false," he says.
The part about the Volvo better be!

Monday, February 13, 2012

CM/ECF To Public: Brother, You Must Now Spare a Dime.

 Some government robot somewhere kind federal employee emailed me this on Friday:
An increase in the electronic public access (EPA) fee, from eight cents to 10 cents per page, will take effect on April 1, 2012.

Earlier this month, the Judicial Conference of the United States authorized an increase in the federal judiciarys electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system.

The change is needed to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the judiciarys Case Management/Electronic Case Filing system.

The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. 
Note to RECAP users -- your access is not free, either.

Somebody went ahead and fronted the fee so you can glom on like the cheapskate moocher you are.

But don't worry about me, enjoy the free access (that's my mother impression I've been working on).

Life in the Fast Lane (Tired, 70s Version).


So it appears that Don Henley is now returning half of the $100k Scott Rothstein donated to Henley's charity in exchange for Henley singing "Life in the Fast Lane" for Kimmie's birthday at an Eagles concert at the BankAtlantic Center.

Does this strike anyone else as highly lame?

Indeed, it launched a mini-tweeterfeud on Friday, sparking much less obvious but perhaps more apt Henley/Eagles song titles, such as "If Dirt Were Dollars," "End of the Innocence," "Dirty Laundry," and of course "Desperado."

All that said, I thought Joe Walsh looked pretty darn good last night at the Grammy's -- if all it takes is laying off the booze for a few days, there is hope for us yet!

In other news, this exists:

Talk about a niche practice!

Friday, February 10, 2012

Hooray for Jason Gibson!

Holland & Knight's Jason Gibson, an associate in the Fort Lauderdale office, was just named President-Elect of The National LGBT Bar Association, a national affiliate of the American Bar Association. He will begin his one-year term as President in February 2013.

Boy, think of how far we've come in just a few decades.

Now how awesome is that?

Thursday, February 9, 2012

DC Fiddles While the 11th Circuit Burns.

I know some of you (most of you?) braved the rain and were at Brett Barfield's spectacular FBA Federal Judicial Reception this evening at the Hyatt downtown.

(To those of you who wondered in from the the adjacent Cosmetic Surgery Convention, yes this is what South Florida judges and lawyers really look like.)


It was a great event, filled with much #humblebrag but also genuine camaraderie and good cheer -- if you missed it, it was truly your loss.  There is no better way to feel connected and part of a real community of active, involved, caring judges and lawyers than attending this event.

Judge Jordan of course was there, connecting and relating to the lawyers and judges around him.

Meanwhile, the interminable gridlock in DC that has caught up this once-in-a-lifetime bipartisan consensus nominee for the 11th Circuit drew special attention from Senator Leahy, as passed on by the always in-the-know Glenn Sugameli:
Senate Republicans continue to block even judicial nominations with home state support from Republican Senators.  Republican Senator Marco Rubio and Democratic Senator Bill Nelson of Florida both introduced  Judge Adalberto Jordan of Florida to the Judiciary Committee when we held his confirmation hearing last September for his nomination to fill a judicial emergency vacancy on the Eleventh Circuit, and both strongly support his nomination.

Judge Jordan is an experienced jurist who has served as a judge for the Southern District of Florida since 1999.  If confirmed, Judge Jordan will be the first Cuban-born judge to serve on the Eleventh Circuit, which covers Florida, Georgia and Alabama.  Born in Havana, Cuba, Judge Jordan immigrated to the United States at age six, going on to graduate summa cum laude from the University of Miami law school.  After law school, he clerked for Judge Thomas A. Clark on the Eleventh Circuit, the court to which he is now nomination, and for Justice Sandra Day O’Connor, a President Reagan appointee to the United States Supreme Court.  Judge Jordan has been a prosecutor in the Southern District of Florida, serving as Deputy Chief and then Chief of the Appellate Division.  Judge Jordan has been a professor, since 1990 teaching at his alma mater, the University of Miami School of Law, as well as the Florida International University College of Law.  It is no suprrise that the ABA’s Standing Committee on the Federal Judiciary unanimously rated Judge Jordan “well qualified” to serve on the Eleventh Circuit, the highest possible rating from its non-partisan peer review.  It is also no surprise that his nomination was reported unanimously by the Judiciary Committee nearly four months ago.  The surprise is that Senate Republicans continue to stall action on this nomination for no good reason.

Judge Jordan is the kind of consensus judicial nominee that should be welcomed as one of the many examples of President Obama reaching out to work with Republican and Democratic home state senators and the kind of superbly qualified nominee we should all encourage to serve on the distinguished bench of Federal appeals court judges.  In the past the Senate would have voted on his nomination within days or weeks of its being reported unanimously by the Judiciary Committee.  Yet Republicans refused to consent to a vote on Judge Jordan’s nomination before the end of the last session and it has been stalled on the Senate Calenadar for nearly four months.  When we finally do vote on Judge Jordan’s nomination I am certain he will be confirmed with broad bipartisan support, perhaps unanimously.  There is no good reason the Senate is not voting to confirm Judge Jordan today.
Is there any reason for Republicans to continue to hold up this confirmation?

Sug reports that finally, on Monday, February 13, 2012:
  • the Senate will proceed to Executive Session to consider Calendar #437, the nomination of Adalberto Jose Jordan, of Florida, to be United States Circuit Judge for the 11th Circuit with one hour of debate equally divided and controlled between Senators Leahy and Grassley or their designees .
  • Upon the use or yielding back of time (at approximately 5:30pm), the Senate will vote on the motion to invoke cloture on the Jordan nomination

Wednesday, February 8, 2012

3d DCA Watch -- Rosencrantz and Guildenstern Are Dead Edition!

Yes kids, it's Hump Day and what better way to spend it than by Going All the Way with the 3d DCA™ [insert additional euphemism here]:

L.B. v. The Naked Truth:

Wow, "adult retail store" security clearly needs to be improved.

Kalb v. Nack Holding:

Dear lawyer friends --  please get your motions for attorneys fees in promptly:
In this case, Nack Holding is not entitled to trial level attorney’s fees because it did not comply with the applicable requirements. The trial court’s judgment was issued on October 20, 2009, while Nack Holding’s motion for fees in this case was filed March 12, 2010. The thirty-day bright line had already expired when Nack Holding filed its motion. Further, Nack Holding incorrectly contends no motion was necessary after the judgment because it served a demand for attorney’s fees in July 2007, and the trial court reserved jurisdiction to enter additional orders. The trial court’s reservation of jurisdiction “to enter such additional orders,” does not suffice because it does not determine Nack Holding is entitled to attorney’s fees. See Lait, 2 So. 3d at 207.

Wingate v. Celebrity Cruises:

The Jay Wingate saga continues (oy).

Let's let Judge Emas explain:
Mr. Wingate was evidently unfazed by the order of criminal contempt, undaunted by the unsuccessful appeal of that order, and undeterred by the disciplinary proceedings and his ultimate disbarment. Four days after this Court issued the mandate in the first appeal, and in what appears to be a textbook example of legal chutzpah,5 Wingate filed a motion with the trial court for disbursement of costs, asserting Wingate was entitled to costs incurred in cases which had not yet been settled at the time of the contempt hearing. Once those cases were settled, amounts representing costs were deposited by the Rivkind firm with the clerk of court. The trial court denied Wingate’s motion “in light of the dishonest and contumacious conduct of . . . Wingate . . . as set out in the Contempt Order previously entered by this court,” finding Wingate was “not entitled to such relief.” This appeal followed.
Note to Judge Emas -- great order, but I think "chutzpah" is now sufficiently a part of the American lexicon that a lengthy footnote explaining its origin and providing examples thereof may no longer be necessary.

I mean, they recently put "schmuck" in the title of a major film, right?

Miami Beach v. Kuoni:

Yes yes, we know Thomas Kramer has a party house available for rental on Star Island.

Rosencrantz v. Guildenstern:

Ok, that's not the actual title of this case but the literary reference was too good to pass up.


Tuesday, February 7, 2012

Nothing Happened Today.

Sorry, just not a lot happening worth reporting on today.

Here's an interesting AP article on Obama's record on appellate court appointees.

Turns out they are mostly old and noncontroversial:
Many nominees of Presidents Ronald Reagan and George W. Bush were in their early 40s, some even in their 30s, and with reputations as bold conservatives. By contrast, Obama has frustrated some liberal interest groups mainly by favoring older nominees over younger ones who might be the Democratic equivalents of some of the Reagan and Bush picks. Obama's two youngest appeals court nominees, Goodwin Liu and Caitlin Halligan, were stymied by Republican filibusters in the Senate.

The average age of Obama-nominated appeals court judges is more than 55 years old, higher than any president's going back to Jimmy Carter, according to the liberal interest group Alliance for Justice. The age of these judges matters in an era when presidents regularly look to the circuit appeals courts as the pool for Supreme Court candidates. Younger judges have a chance to develop a record that presidents can examine, yet still be young enough to be considered for the high court.
So by the time an Obama-appointed appellate judge is ready for the Supreme Court, they'll be at the mandatory retirement age for Florida state court judges.

Makes sense, right?

Monday, February 6, 2012

"Beliefs" Are Not "Personal Knowledge."

Someone tell all the politicians and pundits who work off their "gut":
In reviewing summary-judgment affidavits and declarations, the Eleventh Circuit and other courts have held that similar statements of “belief” or “understanding” do not reflect personal knowledge and should be disregarded.
 They're also not relevant for the same reason:
Because Rosen has not shown any personal knowledge about whether the parties entered into an arbitration agreement, his statements about that subject are also irrelevant.
How refreshing!

In other news, a few tipsters advise of another big checking overdraft settlement.

If the "anticipated" becomes the reality -- congratulations!

Oh yeah, Super Bowl yada yada yada, commercials M&Ms yada yada yada (ok, it was a pretty good game and Madonna rocked the house).

Friday, February 3, 2012

Business Court -- Yay or Nay?

With Judge Freeman passing the complex business litigation torch to Judges Bailey and Rodriguez, the question inevitably arises:

Is the darn thing any good?

In the Yay column stands my pal Mike Higer, (I'm pretty sure that's him above) who says they are making some changes in 2012 to better improve how the courts operate, but in general they are working well:
"Business courts have accomplished exactly what the lawyers in the business community wanted to see occur," says Higer — "to get a judge whose more proficient and efficient in handling business disputes." 
Not everyone agrees:
Lawyers say several factors have left room for improvement, however. "There’s a perception that cases were moving too slowly and decisions were taking longer than hoped to get decided," says Jim Murphy, an attorney with Shook Hardy & Bacon in Tampa. Murphy says much of the problem has stemmed from funding issues — the business courts, he says, didn’t get the kind of support staff and other help to enable them to work through cases more quickly. "These are complicated cases that require research and active case managing, and the resources we initially had envisioned were not there," he says. "I think the caseloads were more than anticipated." 
My own take is I love the concept, but the execution needs work.

Judge Freeman of course is the best, but the procedural rules are clunky and sometimes favor form over function.

Still, it beats waiting behind several thousand foreclosure proceedings in order to get two minutes with the Judge.

What say you?

Broad and Cassel's Effort to Disqualify Feldman Gale Denied.

In a messy legal malpractice case against Broad and Cassel and some of its attorneys, Judge Altonaga has denied a motion to disqualify Feldman Gale, largely relying on client consents obtained after the motion was filed:
And in this case, after the present Motion was filed, both Delaware Valley and Esprit executed written waivers of conflict. (See Notice Waivers ¶ 4; Waivers 4–8). Now, Broad speculates that Delaware Valley and Esprit’s consent is not “informed” because “the very fact that Feldman Gale argues that . . . there is no such conflict makes it questionable that Feldman Gale provided the [information] necessary for a conflict waiver to be valid and effective.” (Reply 8). Admittedly, Broad lodged its objections to the waivers prior to their filing, not knowing the waivers’ contents. But subsequent to Shaw’s filing of the waivers, Broad has not requested the opportunity to submit any further argument addressing why the waivers are insufficient.
But the Judge gives a big hint:
Moreover, Broad has not requested an evidentiary hearing or the opportunity to engage in discovery concerning the former clients’ understanding of the nature of the conflict and how it may present itself during the course of this litigation. Appropriately viewing Broad’s Motion with “skepticism,” and without more explanation from Broad beyond the conjecture presented prior to the waivers being revealed, there is no reason to discount the effectiveness of the waivers. Accordingly, the waivers are preliminarily found to be sufficient under Rule 4-1.9(a) to permit Feldman Gale’s representation of Shaw.
Hey, anybody want to schedule some depositions?

Thursday, February 2, 2012

"Mr. Nurik Will Now Speak About Himself in the Third Person"!

There are plenty of juicy tidbits in this Very Intrepid piece on Marc Nurik, but this part caught my eye:
The judge also wondered whether Nurik would submit a bill for a second deposition of Rothstein planned for this summer. Nurik loudly interjected that he would attend the deposition whether he gets paid or not.

"Mr. Nurik will be there regardless," he said. "Mr. Nurik doesn't abandon his clients."
Admirable (seriously), but I wish Marc had kept going:

"Mr. Nurik plans on not speaking soon.  Mr. Nurik will stop speaking as soon as Mr. Nurik's counsel is done speaking.  Mr. Nurik's counsel advises that Mr. Nurik will now return to eating his Fig Newton."