Getting Biblical With Spencer Aronfeld!

Passover Plague #7 visits the good offices of Mr. Aronfeld:

Heneni here I am!

No, seriously, I am standing right here:

Sublime Friday

It's really beautiful outside, isn't it? Work is slow, I have no money, but I can't help feeling like I have it all.

Which is a funny feeling when I compare it to the plight - or flight - of Guma, who apparently had it all, but will soon have nothing. I keep thinking: the lawyers are going to blow through his 100 million so fast no one will know what him them, his wife will have a rapid fall like the Kimster, and their four kids are the ones who will suffer. (BTW...that Downtown Julie Brown is prone to hyperbole, isn't she?)

Speaking of soccer, Italia!!!!

South Florida Lawyers knows his tomatoes. Sugar IS essential for a fragrant, flavorful tomatoe. Green tomatoes taste better than red ones.

And well, it turns out this blog is out in front - the Herald copied the subject of our post from a week ago.

N.B.: Enjoy today.

BREAKING -- Broccoli, We Hardly Knew Thee.

Here's the most insightful analysis I've read yet of today's HCR opinion:

On the broccoli beat, Bloomberg Law’s Josh Block finds that the word was mentioned a dozen times in the court’s opinions. There were three mentions by Chief Justice Roberts, five by Justice Ginsburg and four in the dissenting opinion.

The most appetizing quotes are:

From Justice Ginsburg: As an example of the type of regulation he fears, the Chief Justice cites a Government mandate to purchase green vegetables. Ante, at 22–23. One could call this concern “the broccoli horrible.”

I suppose swlip will gloat about the Commerce Clause language by the Chief Justice, which is worrisome for the long term in that it echoes the dissent and does not bode well for future tests of federal power (unless it involves gay marriage or drug laws).

Personally, I'm just happy conservatives can go back to complaining about "judicial activism" again -- that was really starting to weird me out.

And finally, in addition to being experts in sophisticated global financial markets, tax policy, the impact of carbon emissions on arctic glaciers, and whether LeBron should have ever left Cleveland, your FB friends are all now suddenly Constitutional Scholars too.

Time to unplug for a while?

3d DCA Watch -- Let It Rain?

Hey sugar, are your tomatoes wet enough?

What dirty minds you all have!

That's not a sexual innuendo, that's how people in old My-am-Ma used to refer to a heavy rain.

Sheesh.

Onward:

Miami Automotive Retail v. Baldwin:

A somewhat messed-up class action case returns for a second bite at the apple.

Vives v. Wells Fargo:

A somewhat messed-up foreclosure case gets reversed and remanded, but Judge Shepherd delivers a blistering dissent:

SHEPHERD, J., dissenting.
 
I dissent.

Was the rest of it cut off in the uploading process?

Lloyd's v. Pitu:

$700k in water damage, $25k aggregate water damage endorsement.

Guess who won?

Miami Beach v. City Pension Fund Boards:

Judge Schwartz adopts a footnote from another case thanking the lawyers involved for their briefs and excellent presentations.

Who's becoming such a softie all of a sudden??

Let it rain:

Dear Alan Kluger: Don't Sue Marc Randazza!

The Good Randazza has all the details and links here, but my favorite has to be this letter from Kluger to Randazza, where Alan writes "[s]hame on you for continuing to assist and encourage this unscrupulous cyber bully."

Do appeals to shame really work anymore?

Guess we'll see.

Take a look at the draft complaint the big boys sent to Randazza, and judge for yourself.

Suing a lawyer for "acting in concert" with their blogger client seems like a (gargantuan) stretch, but what do I know?

Kluger's complaint against Google(!), pending before Judge Cooke, is here.

Oh, btw -- GO HEAT!!!

Ha Ha -- Florida Can't Have Its Own Foreign Policy!

You know that red-meat "law" that Rick Scott (pictured above) signed, barring companies from bidding on state or local contracts if they have ties to Cuba?

Well you may have heard that Judge Moore found it only violated a slew of major constitutional provisions:  the Supremacy Clause, the Foreign Affairs Power, the Foreign Commerce Clause, plus it is inoperative on its own terms.

On the other hand, Judge Moore found that the law did not in fact violate the prohibition against quartering troops in private homes!

So sort of a split decision.

Nice win for Raoul Cantero and James Moye out of Maitland.

You can read the preliminary injunction order here.

Now let's get back to other important election year legislation, like banning Sharia law (a personal favorite).

Ferrer Shane Isn't Afraid of Your Negative Review.

These PI guys who like to hug themselves aren't afraid of your negative social media reviews.

How do I know?

Because they said so right here:

It's the age of social media, but most lawyers aren't into it. Why is that? Perhaps it's because they're afraid--afraid of tarnishing their image by having a Facebook page. Afraid of the time and effort it takes to be online. Afraid of a negative review.

We're not.

We're on Facebook. We're on Twitter. We're even on Instagram, posting pictures like nobody's business. (The truth is, we like this stuff.)

We don't get too worked up about image. 

Sheesh, that is a relief.

Ok, let's take a look at their Instagram photos:

 What beautiful files!

(BTW, I'm pretty sure they are both facebooking.)

You know what, I like these guys -- you are welcome to submit a guest post, fellas!

Norman Braman says, "Huh?"

N.B. This is exactly what Joe Klock said when Steel failed.

For Whom the Bell Tolls

I am all for dressing up and role playing, but once that stuff starts interfering with your professional life, you have hard choices to make.

Just ask St. Pete attorney Frank Louderback who is defending Jerry Alan Bottorff in a federal criminal murder-for-hire case. A self-described "perennial contestant in the Ernest Hemingway Look-alike contest," Louderback moved Judge Merryday to recess the specially set federal death penalty case in Tampa so he could make it on time to Sloppy Joe's Bar in Key West.

Come on, kids! Lighten up! I understand a person's life is in the balance, but who wants to miss all this fun?



Let's see what Judge Merryday had to say.

"At his most robust, Hemingway exemplified the intrepid defense lawyer:

'He works like hell, and through it... He has the most profound bravery...He has had pain[] and the kind of poverty that you don't believe[;] he has had about eight times the normal allotment of responsibilities. And he has never once compromised. He has never once turned off on an easier path than the one he staked himself.'

Perhaps a lawyer who evokes Hemingway can resist relaxing frolic in favor of solemn duty.

Or at least, 'Isn't it pretty to think so?'

Good luck in next year's contest. DENIED."

Spanky, spanky.

Order Denying Louderback Time Off

N.B. I'd much rather see a Margaux, Mariel, or Dree contest

Special Friday 3d DCA Watch -- Somebody Pissed Somebody Off Edition.

To learn more, click here.

Judge Carnes vs. Magistrate Judge Goodman -- The Citation Wars.

Here you go, the trademark Carnes introduction (with a homage/challenge? to Magistrate Judge Goodman):

People who compete against each other in the same business or profession don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.” But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will. These two car dealers are bitter business rivals in overlapping markets. One of them used a software program to compete more aggressively with the other one over the internet. That program produced a multiplicity of mini-websites, a host of hard feelings, and of course litigation. This is the appellate part of that litigation.

Very curious -- note how the Judge casually, unobtrusively cites the great Jackson Browne song "Lawyers in Love" without an elaborate, digressive 300-plus long footnote/citation/educational string.

Now let's edit in a standard Magistrate Judge Goodman song reference and see how it reads:

People who compete against each other in the same business or profession  don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.”1 But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will. These two car dealers are bitter business rivals in overlapping markets. One of them used a software program to compete more aggressively with the other one over the internet. That program produced a multiplicity of mini-websites, a host of hard feelings, and of course litigation. This is the appellate part of that litigation.

1 -- For a musical reference to "lawyers being in love," see "Lawyers in Love," a song sung by Jackson Browne. Recorded in Los Angeles, the song was written by Jackson Browne and reached the #13 position on the U.S. music charts in the summer of 1983.  http://www.allmusic.com/song/lawyers-in-love-mt0005091017 (last visited June 21, 2012). Focused on Cold War concerns and a distrust of the perceived superficial, empty values of the Reagan Era, the song contains the following lyric: "God sends his spaceships to America, the beautiful They land at six o'clock and there we are, the dutiful Eating from TV trays, tuned into to Happy Days Waiting for World War III while Jesus slaves To the mating calls of lawyers in love" http://www.oldielyrics.com/lyrics/jackson_browne/lawyers_in_love.html (last visited June 21, 2012).

Hmm, which do you like better?

Finally -- Mandatory Service By Email!

Our  Supreme Overlords fine jurists in Tally have finally approved mandatory service by email:

[N]ew rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) (Service by Electronic Mail (―e-mail‖)), upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail. The rule does permit several limited exceptions to this requirement. A lawyer may file a motion to be excused from e-mail service, demonstrating that he or she has no e-mail account and lacks access to the Internet at the lawyer’s office.

Ok, I want to know what lawyer could possibly lack both an email account and internet connection?

Got it!

3d DCA Watch -- Just Another Tricky Day.

Hi there, it's cold and damp and the wind is really picking up (and that's just inside the bunker!).

Let's get right to it:

Union Carbide v. Aubin:

Judge Farina $6.6 million jury verdict in asbestos case handled by Jim Ferraro overturned:

Because Aubin failed to present any evidence demonstrating that the defective design of SG-210 Calidria caused Aubin’s harm, peritoneal mesothelioma, we reverse the trial court’s denial of Union Carbide’s motion for a directed verdict as to Aubin’s design defect claim. In addition, because the jury instructions given by the trial court were inconsistent with the law in the Third District and in effect directed the verdict in favor of Aubin, we reverse and remand for a new trial as to the warning defect claim consistent with this opinion.

Interesting -- even though the plaintiff's requested special instruction was "technically accurate," the Court found it "misleading" without supplemental explanation.

Bert v. Bermudez:

Yet another opinion in the Lewis Tein/Miccosukee Tribe dispute ongoing in Judge Dresnick's courtroom, this time finding no basis to disqualify the judge.

Interesting that Judge Shepherd concurred in result only.

I've said this before -- these guys need to bring in outside counsel to handle this kind of stuff on their behalf.

(BTW, I'm available!)

When Fascism Comes to America, it will be as cruciferous vegetables

There is a tension in the air. No, I'm not talking about the new Breaking Dawn trailer. I'm talking about ACA, the Affordable Care Act aka Obamacare aka Romneycare. The BIG ruling should be out soon.

Will it stand? Will it be severed – the mandate struck down but the rest left intact? Or will the whole thing be tossed out? Overall, I'm an ACA fan. It's not great but it was the best we could get with a split congress and conservative Democrats calling all the shots. 


I'm optimistic that the plan will stand.

Why? What are the alternatives? For all the convulsing on the right about European style socialism, this is THE conservative health care plan. It is the plan Bob Dole put up as an answer to Hillary Clinton's health care reform. It's the plan Romney pushed for and passed in Massachusetts. It is not single payer. There is no public option. All other possible plans are to the left of this.

We need reform. Our current system is morally and financially bankrupt. Presently, we have a health care system that structurally excludes the sick. Access to health insurance is limited to the healthy. Think about that. This is Alice in Wonderland. This is a fun-house mirror. Down is up, and left is right. It's a sick joke until you're the one being denied. Then, immediately, all funniness ends. 

Prior to recently enacted ACA reforms, having insurance was no guarantee of protection. Insurance companies could unleash teams of researchers to find evidence of fraud, like undisclosed teenage acne, to justify cancelling your insurance. That practice is now history and it needs to stay history.

If you examine the act issue by issue, ACA provisions are popular. Keep your kids on your insurance? Check! Eliminate exclusions based on preexisting conditions? Check! Provisions that cover preventative care? Check! The unpopular part is the insurance mandate, and that's the part that makes it all financially feasible. Strike that part down, and costs will shoot upward.

It's happened before. Back in the 90s, Washington state enacted reforms very similar to the ACA. As with the ACA, the mandate was the unpopular part and that one part was eventually repealed by the state legislature to disastrous results. Premiums costs exploded and insurers began fleeing the state. You can read a full account of this in The Washington Post here. Is that the nightmare scenario that SCOTUS is going to plunge the country into? I think not.

So what about striking the whole thing down? It's clear that many of the provisions are perfectly proper and constitutional. If the entire law is struck down there is no "more" conservative plan waiting in the wings to fix this mess. All viable alternatives are to the left of the ACA.


If increases in premium costs continue along the current curve, within 20 years annual premiums will exceed average family income. The system will become completely untenable long before then. A great man once said, “unsustainable systems cannot be sustained.” If this comes to pass, expect pressure for a single payer system or at least a public option to grow rapidly. And that is something the for profit insurance industry would find even more unacceptable than ACA. 


That is why I think the law will stand.

So if they can force you to buy health insurance, can they force you to buy broccoli? They tried this with Chris Christy. He just stuffed the broccoli with sausage, dipped them in pancake batter,  and deep fried it all in lard. Sometimes you can't get what you want. Sometimes you can't get what you need. Sometimes you just get what you deserve.

Just Because.

Brings back fond memories.....

Last Call - Are You The Best Closer in Miami?

How did I miss this?

The confidence that comes with turning 40 (and perhaps the money and power, as Tony says) may put you in contention to be The Best Closer in Miami. The irony is, however, that 40 also brings the paunchy middle, hair loss, and testosterone deficiency that renders you suited to close one thing, if you're still trying at 40 to be the Best Closer in Miami: your bar tab in a bad place. So those of us over 40 should act our age and take every opportunity to mentor the younger generation and allow them to benefit from our mistakes.

Legal Services of Greater Miami knows this.

Which is why this great organization through its GenNext initiative will hold its First Annual Legal Eagle Closing Competition June 30. You may access the announcement here, but it reads:

"The competition, spearheaded by retired Judge
David Gersten and Jane Muir, is open to all attorneys under 40
practicing in the 11th Circuit and admitted to The Florida Bar for
less than seven years. All proceeds from the event will benefit LSGMI.

“This competition is the ‘great equalizer,’” said Gersten. “Big firms,
little firms, or solo practitioners have the opportunity to show what they’ve got, strut their stuff, and prove who is the best closer in the county.

The University of Miami School of Law will host the one-day competition,
which will be judged by panels of sitting judges and private practitioners.
Young lawyers who compete will receive facts and materials 48 hours before
the competition begins, and learn which side they will take on the morning
of the competition. After the final round, a perpetual trophy contributed by
Bilzin Sumberg will be presented to the winner at a victory celebration and
networking reception for judges, competitors, and supporters.

To register, click here.
For more information, contact Muir at (305) 665-8088."

This is an absolutely great idea and great event for a great cause. The Miami legal community should ensure that it becomes a well attended competition that fosters the great tradition that is Miami Trial Lawyers. If you try cases anywhere outside of Miami, even in the deep south, you know that our trial lawyers are second to none. Whether civil or criminal, plaintiff or defense, prosecutor or defense attorney, we shine. I believe this is because we try more cases, our adversaries are talented, and our judges by and large love to try cases and to have talented trial lawyers appear before them.

Boy, am I manic today. I miss my anger.

N.B. So cool, South Florida Lawyers will have their very own much-coveted "Stanley Cup," which I am sure will come with appropriate safety protocols to avoid the perpetual trophy winding up in the wrong hands or in a hot tub somewhere.

Summer is Officially Here!

That's because my mishpucha Spencer has declared it so:

A few notes:

1.  I've said this before, but try to get the names and details of the people you are introducing before introducing them.

(Seriously, it's nice to see Spence hiring and promoting local law clerks -- welcome to the profession.)

2.  Awesome shirt/tie/suit combo -- be gone dark colors, this is Florida in the summertime!

3.  What else did I miss?

"Ruiz Law Centre" in Foreclosure?

And Rudy Aragon is on the hunt:

A Miami office building controlled by John H. Ruiz, an attorney with his own TV program, is facing foreclosure over a $10.7 million mortgage.

First Citizens Bank & Trust Co.    (NASDAQ: FCNCA) filed the foreclosure lawsuit on June 8 against 5040 Corp., which lists Ruiz as its president. His law offices and his La Ley TV operations are based in the 104,307-square-foot building at 5040 N.W. 7^th Street. The nine-story building was completed in 1986. The foreclosure action also targets a neighboring 18,731-square-foot parking lot.

The building is named the Ruiz Law Centre.

First off, I had totally forgotten that Rudy was now at White & Case.

Secondly, I'm sure this is a misunderstanding.

It's just $10.7 million, give the guy a break!

Law Porn: The Adventures of Perky Ramerez the Judicial Assistant

Greetings readers,

did you have a good weekend? I know I did, with one small setback. Note to self; regular mushrooms in the bottom drawer, magic mushrooms in the top drawer.

Hey Rick Scott, those freaks was right when they said you was dead. The one mistake you made was in your head. How do you sleep at night?

What do lawyers, soldiers, and gay teens all have in common? All are at higher risk for suicide than the general population. Kentucky Supreme Court Justice Bill Cunningham has some moving thoughts about why that might be. For my two cents, problems that seem huge and insurmountable shrink quickly if you step back from them and take a breath. You need to be breathing to do that.

Please, Don't Hurt Yourself. Call a coworker. Call a friend. Call a family member. Or call the National Suicide Prevention Lifeline at 1-800-273-8255.

On a happier note, looks like my gay marriage will soon be valid in another state. Go Maine!

Some cases are perfectly titled, take "Loving v. Virgina" for example. Perhaps we can add this one to the list.  "FunnyJunk v. The Oatmeal" may also be one of those perfectly titled cases in that it both sounds absurd and intertwines allegations of fake Twitter accounts, cyber vandalism, and bestiality. Come on people, isn't this why you got into law? I read through it a couple of time but frankly it's just bringing the mushrooms back on me.

Some good advice about how to stay out of jail here.

As for Perky, I'll get that story posted as soon as I can find something that (a) can get pass the censors, and (b) retains it's artistic integrity. It's all about the art you know.

Godwhacker out.

Call Me Deacon Blues.

Hi there!

Go Heat??

Is this not the most ridiculous suit you've ever read about -- this guy has been capturing University of Alabama football players in various states of triumph and exaltation, and for this he gets a Lanham Act and trademark suit:

Since 1979, Daniel A. Moore has painted famous football scenes involving the University of Alabama (the “University” or “Alabama”). The paintings feature realistic portrayals of the University’s uniforms, including helmets, jerseys, and crimson and white colors. Moore has reproduced his paintings as prints and calendars, as well as on mugs and other articles.

In 2002, the University told Moore that he would need permission to depict the University’s uniforms because they are trademarks. Moore contended that he did not need permission because the uniforms were being used to realistically portray historical events. The parties could not reach a resolution, and in March 2005, the University sued Moore in the Northern District of Alabama for breach of contract, trademark infringement, and unfair competition.

This serves the guy right for venerating 'Bama, I guess.

No good deed goes unpunished.

I blame Nick Saban.

Shady Love

Mormon Up Your Sexy Time

Religious Tolerance

What does someone who goes by the handle “Godwhacker” know about religious tolerance? Everything. I tolerate all y'all's screwy religions. Oh I love Judaism, bagels and lox YUM! But it loses me at circumcision. Come on folks, that's there for a reason! Crucifictions, stonings, virgin births, I whack it all back at 'em.

But it has recently come to my attention that some people are unwilling to vote for Mitt Romney because of his Mormon beliefs. As a gay American, I am shocked to find this type of senseless bigotry flourishing in our country this far into the 21st century where we are a more tolerant and enlightened people. Right.

Our traditions forbid religious tests for holding office, and we should not impose them ourselves. Please, be good Americans! Don't vote against Romney because of his Mormon beliefs. So what if the Mormon Church considered all black people damned until 1978? Who cares if they Baptize the dead into their religion? We say “heaven” they say “Kolob” ~ it's really no big deal. We wear boxers, they wear magic underoos. Which candidate would you rather have a beer glass of milk with? It's not like we're from different planets.

If you're going to vote against Mitt Romney, do it for the right reasons. The fact that he has held every possible position on every possible issue seems like a good one to me. Vote against him because the austerity he advocates is doing so very very well for Europe. Besides, I'm sure there are plenty of legitimate reasons to have Cayman Island bank accounts that don't involve tax avoidance. I don't know, I wasn't there.

In the meantime, if you're like Me and aggressively anticipating the joys of a Romney presidency, you'll want to Mormon up your sexy time with a few of these FABULOUS blessed knickers. They go great with leather, and from what I hear the hot wax can't hurt you. Win win!

*The views expressed in this post are solely those of the author.

Lawyers Supporting the Arts?

You don't often think of lawyers in our town as driving the burgeoning non-profit arts scene, yet look at this Miami Herald article, which quotes Mike Eidson, chair of the Arsht Center Board of Directors; Dennis Scholl, of the Knight Foundation, and active patron Ali Mora -- all lawyers.

Mike even says going to the arts is good for the soul -- and he's right:

“Going to attend cultural events at places like the Arsht Center is a good thing for making people feel like they’re part of a viable community, part of an exciting community,” he said. “They don’t want to just sit at home. They’re not just going to bars.’’

Especially strip bars, according to recent headlines.

Read more here: http://www.miamiherald.com/2012/06/11/2843885/nonprofit-arts-scene-generated.html#storylink=cpy

How to Win Friends and Influence People

"I'm not here to ask for sympathy or forgiveness or to throw myself at your mercy," ... "I did not run a Ponzi scheme. I didn't defraud anybody."

That's Allen Stanford speaking at his sentencing hearing today. According to the AP, he went on for 40 minutes, portraying himself as a scapegoat and blaming the government for "tearing down his ...empire."

The judge sentencing him to 110 years.



N.B. I leave the criminal law stuff to DOM, but isn't it kind of weird to not read much about the lawyers who counseled Stanford, the Bankers with whom he did business and who held his money and moved it around, the accountants, or the Stanford Financial Management?

Rick Scott Likes to Litigate

Man, Justice Cantero is in demand, eh? And by all sides, it would seem.

I remember reading somewhere that the Republican party promotes judicial restraint. Doesn't that necessarily include an aversion to running to court to try and get your way, every time you don't get your way?

Republican Governor Rick Scott hired Justice Cantero (and our friend, great lawyer and all around good guy Neal McAliley) to appeal an order entered by Leon County Circuit Judge Jackie Fulford that struck a new and improved retirement system that includes a requirement that public employees contribute 3 percent of their pay to the $126 billion Florida Retirement System.

There appears to be some pretty standard fare in Justice Cantero's brief (you can read it here)- appropriations powers, exceeding jurisdiction, contract and property rights.

Justice Cantero's creative legal reasoning regarding Scott's law violating public employee bargaining rights caught my eye. He argued in his brief that local police and transit workers bargained for a 3.1 percent pay increase after Scott's law was passed, "to offset the pension contribution."

Union Lawyer Ron Meyer offered a concise reponse: "They bargained wages," he said. "They didn't bargain pensions." Nice.

In her decision, Fulford wrote that upholding the law "would mean that a contract with our state government has no meaning and that the citizens of our state can place no trust in the work of our Legislature."

How do you argue with that last part, exactly? Particularly because in 1974 Florida's pension plan was converted to a "noncontributory system" for workers.

Conversely, Scott contends ITS NOT FAIR THAT I CAN'T GET MY WAY! Florida's public employees should be required to contribute as a matter of fairness because nearly all other states and private employers who provide pension benefits require their workers to contribute. (Uh, no they don't.)

And fear mongering. He's also expressed doubts about the future soundness of the retirement system.

Which is odd because according to the Pew Center on the States, Florida "is one of only three states to have more pension assets than accrued liability - funding 101 percent of its total pension obligation, well above the 80 percent benchmark the U.S. Government Accountability office says is preferred by experts."

Random drug tests for state workers, requiring public employees to contribute their pay to the state retirement system, perhaps violating public employee bargaining rights....be careful what you ask for...



N.B. I applaud the naivete civility demonstrated by opposing counsel Ron Meyer who, in response to a question regarding Justice Cantero serving as Chairman of Justice Pariente's campaign for retention on the Supreme Court, stated that he had no concern about the relationship. "They're just above that." Exactly. Like when a litigant before Judge King hires Bobby Martinez to represent it.

3d DCA Watch - Summer is Here

SouthFloridaLawyers split. He took his winesack, frisbees, and 8-tracks and said he needed to clear his head.

Apparently he is not the only one.

Two - count 'em, TWO - decisions in civil cases today from The Bunker. (In fairness, neither is a PCA.)

Garcon & Robinson v. AHCA

Guy suffered a devastating gunshot which rendered him totally and permanently disabled. Medicaid paid the "concededly reasonable" amount (can you guess who authored this opinion?) of $244,590.57 for his past medical expenses. Guy received a million dollars from the tortfeasor stipulated to represent payment for past and future medical expenses and nothing for any intangible elements of damage for which Medicaid would not have been entitled to reimbursement. (DOH! Who stipulated to THAT!?) The trial court determined the amount of Medicaid's lien on the million, to be $244,590.57. Guy challenged the amount of the lien, arguing that Florida's statute is pre-empted by federal law which requires a more touchy feely and fair determination.

Judge Schwartz ENTIRELY DISAGREED. Further, he found the trial court's determination, AGAIN UNDISPUTEDLY, IN COMPLETE ACCORDANCE WITH FLORIDA LAW. And thirdly, Florida law is more what you'd call guidelines than actual rules, and the legislature may make up stuff as it goes along, otherwise known as "special rules" not subject to pre-emption by federal law. Welcome aboard the Black Pearl.

Affirmed. (Judge Jordan, Fred was correct.)

Beggi v. Ocean Bank

Condos and foreclosure: You knew this was coming.

Writes Judge Salter:

We decline to permit Beggi to turn the mortgage lender’s lawful exercise of its remedies into a game of “keep away,” whereby boilerplate and sweeping requests for production of records, fact-free affirmative defenses, and dilatory tactics are employed to impede the lender. Beggi invested in the condominium units at an inauspicious time and has not weathered the foreclosure storm. His appeals are dismissed, and the cases are removed from the schedule for oral argument.

Spanky, spanky.

Tom Spencer on Merit Retention and Assaults on Judicial Independence.

Not since the days of George L. Metcalfe has the Florida Bar News -- the best paper no one has personally ever paid any money to read ™ -- lit up its letters page with strongly worded complaints about the Bar's merit retention "education" program.

In walks our friend Tom Spencer, who sayeth thus:

I support the retention of the three justices of the Supreme Court of Florida, even though I also frequently disagree with their opinions. But I am astonished at the hypocrisy of our Bar leadership in spending our Bar fees for a statewide “education program” on retention, which is, in reality, political institutional pandering. This hypocrisy takes on even greater dimensions, when it is compared to the silence of our Bar leadership in the face of the vicious, unprecedented assault on the judicial independence of the Supreme Court of the United States.

The historic browbeating by President Obama and many members of his party, including the chairman of the Senate Judiciary Committee, is something every lawyer should protest. But not a sound can be heard from either our leadership or the many leaders of the ABA who are Florida Bar members.

Our involuntary Bar association is quick to spend our money when liberal judges are under attack — silent when conservative judges are being skewered by liberal politicians, lawyers, and operatives who want to fix an unprecedented case.

Every judge should be defended or no judge should be defended. We members should be howling angry at this hypocritical maneuvering on our dime. The money spent on voter “education” would be better spent supplementing our needy pro bono programs. 

I thought, particularly as a Constitutional law professor, that Obama knew better when he made that one, single remark about popular legislation etc.  And he promptly walked it back.

(Perhaps I missed the rest of the assault?)

But what about all the historic attacks by conservatives over the last five decades -- hail, the entire tenure of the Warren Court -- over "activist judges" and their evil social legislation rulings from the bench?

Ho hum, yesterday's news I guess.

I think I know how swlip feels about all this, but how about the rest of you?

"At Some Point in Time, Mr. Jimenez, We Are Going to Have to Talk About It."

That's Judge Cooke to TD Bank lawyer Marco Jimenez, over sanctions motion #5 ("I'll have the #5 with egg drop!") which may involve up to 2600 alerts on Scott Rothstein's accounts that may not have been turned over to plaintiff's counsel David Mandel.

Oy.

That brings up a rant -- is it just me, or is there a general erosion in our communal sense of responsibility to perform acts of civility?

I'm not referring specifically to issues such as turning over bad documents, but more generally gestures like opening doors for frail or pregnant women, or helping someone get their carry on baggage above their seat, small acts like that.

We see that often in our interaction with other lawyers, a general trickling-down of incivility that inevitably winds up affecting how you practice or deal with others.

I recently read of a civility project among elected officials:

 In 2009, author Mark DeMoss launched a Civility Project asking every sitting governor and member of Congress to sign a pledge of civility agreeing to three statements: “1. I will be civil in my public discourse and behavior; 2. I will be respectful of others, whether or not I agree with them; and 3. I will stand against incivility when I see it.” Amazingly, only three elected officials signed it—Sen. Joe Lieberman, Rep. Frank Wolf, and Rep. Sue Myrick. 

Funny thing is, I think Joe "The Weeper" Lieberman is mostly a jerk!

In other news, Wargo French has moved into the old Richman Greer space:

Atlanta-based Wargo French launched its Miami office last August, headed by former long-time Greenberg Traurig shareholder Lori Sochin. Ten associates have been hired including Simon Ferro Jr., a former Lewis Tein lawyer.

The 50-lawyer firm, which also has a Los Angeles office, targeted Miami for growth based on client demand, said managing partner Joe Wargo. Wargo French is a full-service law firm focusing on complex commercial litigation, financial services litigation, labor and employment, class action litigation, creditor's rights and bankruptcy, commercial real estate, construction, general corporate and securities law, among other specialties.

Ok, sounds like a good firm and I wish them well, but what a great name -- "Wargo French" -- that's got to be a character from an old Coen Brothers movie?

Judge Tjoflat's Magic Transcript Ride.

I love it when Judge Tjoflat gets all technical, like when he insists that you need a transcript of a district court ruling in order to appeal.

Here he is dissenting from a denial of en banc review, where he calls out the panel for reversing a provisional, pretrial ruling from Judge King (excluding an expert) because the appellant failed to transcribe the actual trial where Judge King ruled the same way -- except this time during trial:

The panel assigned to hear Rosenfeld’s appeal overlooked the fact that Rosenfeld’s argument for reversal was based on a provisional pretrial ruling and treated the argument as if it were addressed to the District Court’s trial ruling. The panel then concluded that the District Court erred in excluding the proffered evidence, that the error was not harmless, and that the District Court should have granted Rosenfeld a new trial. In overlooking what Rosenfeld had done, the panel failed to recognize that Rosenfeld, in basing her new trial motion on a provisional pretrial evidentiary ruling rather than an evidentiary ruling at trial, had effectively waived her argument that the District Court abused its discretion in not granting a new trial. Had the panel recognized this fact, it would have rejected Rosenfeld’s appeal out of hand.

I get it Judge -- there is a difference between a pretrial and trial evidentiary ruling.

(Enough with the underscoring!)

Four Kings?

Wow that was a great Heat game DCBA installation dinner on Saturday:

Trial lawyer Garrett Biondo is the incoming president of the Dade County Bar Association. He’s also a Miami Heat season-ticket holder who refuses to miss a big game.

But when it comes to Saturday’s Game 7 — arguably the biggest home affair in Heat history — he can’t be both.

At the same time the Heat and Celtics decide the Eastern Conference championship Saturday, Biondo will be about a mile south for his swearing in — at the Bar association’s black-tie gala, held at the Mandarin Oriental.

Think he’s disappointed? Imagine the 300 or so others in attendance who aren’t being recognized at the event. 

What grit, what determination -- Russomanno shoots, she scores!

Actually, congrats to the new officers at DCBA -- see you all in Oklahoma, USA:

Read more here: http://www.miamiherald.com/2012/06/08/2839958/game-7-mania-grips-miami-heat.html#storylink=misearch#storylink=cpy

Practicing Law Makes You Fat?

 
That's what this study says:

Around 44 percent of workers say they’ve put on pounds at their current job, with 26 percent saying they’ve gained more than 10 pounds, per the report.

Certain jobs, however, had a higher frequency of workers who reported gaining weight. Often those jobs are sedentary or particularly high-stress.

The jobs where people are most likely to gain weight include: travel agent, attorney, social worker, teacher, doctor and public relations professional. 

Hmm, I tend to disagree.

However, I would need to review the study in more detail, but I haven't the time -- at 10:30 my cafecito arrives (extra sugar of course!), then we are celebrating a birthday in the kitchen after lunch (I promised myself only one piece of cake!), then of course it's on to happy hour (come on, it's Friday!).

Don't forget on Monday the staff always brings in leftovers from the weekend (who can turn down a beautiful roast pork?).

RIP Bob Welch.

Sheesh, Ray Bradbury, Richard Dawson, now Bob Welch.

 
RIP old men.

School's Out -- Now What?

I know, we had it easy, just getting up in the morning, sending the kids out, talking to them some when you get home from work.

But now you might have them hanging around for extended periods, possibly even requiring interaction and exposure to other intimate moments that may interfere with important Heat pre-game rituals.

What's a parent to do?

Of course -- summer camp, the bestest way to simulate the routine of school when school is actually not in session.

We all know it's enriching -- that's why kids love going so much!

Anyways, Gloria Allred speaks out against cannibalism:

“In addition, Yovonka and I are very concerned about the issue of cannibalism and the number of cases that are being reported in other states and countries, such as Alabama, Canada, Maryland, Japan and Sweden,” Allred said.

A brave position, certainly, but where's the rebuttal?  What lawyer plans to challenge Ms. Allred on her provocative statement?

Unfortunately Magistrate Judge Brown retired before he finished his toe-tappin' life's work (it's on appeal), which means Judge Martinez now has to do it.

Oh yeah (yawn), Scott Rothstein is back, doing what Scott Rothstein always does.

Finally, you already knew this, but Rick Scott's a bully.

(BTW, is that not the best movie intro ever?)

Read more here: http://www.miamiherald.com/2012/06/06/2836421/publicity-hound-lawyer-cannibalism.html#storylink=cpy

3d DCA Watch -- The Longest Day.

We've given our share of well-deserved salutes to those who sacrificed on this fateful day, but it occurs to me something else very significant happened  -- "was the dark of moon on the Sixth of June":

True, probably not as significant in the long run.

Ok let's get to it, this cold bitter brew won't swill itself:

Arthur Tifford and client have disagreement, lawsuit ensues:

We affirm, holding that the trial court properly entered final summary judgment in favor of appellees on appellants’ claims for breach of contract and fraudulent inducement. See Faro v. Romani, 641 So. 2d 69, 71 (Fla. 1994) (holding “when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.”).

We likewise affirm the trial court’s orders denying each party’s motion for sanctions pursuant to section 57.105, Florida Statutes (2010), finding no abuse of discretion in the trial court’s determinations.

Hmm, sounds like that was fun.

Tylinski v. Beach Honda:

This is a bummer, I guess you better seek fees pursuant to the right contract with your car dealer:

Beach Honda argues that the Tylinskis are not entitled to attorney’s fees because the document sued upon and attached to the Complaint, the Retail Order Contract, does not contain a provision for attorney’s fees.3 The financial contract is contained in the RISC, and that contract does contain an attorney’s fee provision,4 but that is not the document upon which Beach Honda sued. Beach Honda sued only for breach of the ROC. The RISC was not admitted as an exhibit at trial. The Tylinskis’ Answer to the Complaint clearly asserts a claim for 57.105(7) fees,5 but it was based on the ROC, which does not contain an attorney’s fee provision. See Stockman v. Downs, 573 So. 2d 835, 838 (Fla. 1991) (“[A] party seeking attorney’s fees pursuant to statute or contract must plead
entitlement to such fees.”). The Tylinskis prevailed in their defense against the dealership on the dealership’s suit to recover the cash down payment. We understand the Tylinskis’ argument that, but for the financial commitment reflected in the RISC, the dealership would not have allowed them to drive the caroff the lot.6 Nevertheless, the dealership sought recovery under the ROC, not the RISC; there is no contractual avenue for recovering attorney’s fees based on the ROC, and the Tylinskis did not plead any statutory basis for recovering attorney’s fees other than § 57.105(7).

 Oy.

This is a true hold-your-nose opinion, get a load of this footnote:

We agree with our colleague who informed Beach Honda at oral argument that it was very lucky in its procedural posture in the trial court below. We would add that Beach Honda is very lucky that we are, in this case regretfully, bound by our standard of review.

Hey, don't let that stop you now!

11th Circuit Reverses Jury Verdict in Competitive Bid Case at Atlanta Airport.

I don't know, I've lived in the South a long time and it's not that hard to tell who's an "insider" or an "outsider" when it comes to competing for government contracts.

(If you're not an insider, you have to hire one -- they're called "lobbyists").

But the 11th, in reversing a big jury verdict for a plaintiff allegedly freezed out of a contract for advertising at the Atlanta airport, says it's not a concrete enough definition:

Corey does not offer sufficient substantive group characteristics. Instead, Corey attempts to identify groups based on affiliation or connection to the City, the supposed discriminator: “insiders” and “outsiders.” This vague category is inadequate because these idea-based characteristics do not allow us to separate readily people and entities into discrete groupings -- a necessary part of identifying the group that suffered the alleged discrimination. The proposed categories are too loose, too shifting to be useful to courts.

No objective criteria plainly fix whether a person or entity is an “insider” or an “outsider.” “Insiders” and “outsiders” do not bear immutable characteristics.  Furthermore -- unlike with political parties or other longer-term voluntary group affiliations -- they do not even have to declare or register themselves as members of their respective grouping. The most one can hope for in separating persons based on such subjective criteria -- “insiders” and “outsiders” based virtually on friendship with government officials -- would be a spectrum or a fuzzy series of wholly indeterminate and overlapping groups each of which would be inadequate to qualify as identifiable for purposes of an Equal Protection Clause claim.

This may technically be true, but does it comport with decades and decades of empirical evidence?

Is there another way to approach this short of throwing up your hands and looking away?

Monday Morning Digital Dump.

 Let's get right to it kids, it's going to be a busy morning.

1.  Ha ha Ricky Arriola used to be a Republican -- it sez so right here:

The 43-year-old former Steel, Hector & Davis lawyer and son of former Miami City Manager Joe Arriola changed his party affiliation when Obama ran for president. Ricky Arriola met Obama when he was an Illinois state senator and Arriola had business in Chicago. They stayed in touch.

How did that happen -- the kid got rich and wildly successful and THEN turned Democrat?

2.  Judging from this lawyer's copious use of colored font, I'm thinking he is either Rumpole or just a very colorful person -- either way he is a Foreclosure Destroyer:

3.  David reports on Judge Turnoff pulling no punches -- gotta love Judge T!

4.  Of course Gloria Allred is now connected somehow to the Causeway Cannibal (h/t Random Pixels).

And how was YOUR weekend?

Chow vs. Chau -- Who's the Prevailing Party?

 As the hand-pulled noodle turns, so does the legal wrangling in the aftermath of the Michael Chow/Philippe Chow trial still pending before Judge Hoeveler.

Now the parties are arguing over who was the "prevailing party" for purposes of assessing fees and costs, a not-insubstantial issue in a case that has dragged on rather pointlessly and for years.

Here is Philippe Chow's lawyer Anthony Accetta trying to set the record straight that his clients actually prevailed on most issues:

The undersigned realizes that this Court has read all of the parties Motions and conducted the over Four Week Trial. However, because of the complex nature of the case and the fact that the Plaintiffs continuously try to ignore all of the parties that sued and were sued in this case and the central issues that were won by the Defendants at great expense. The undersigned is going to break down each claim and each party one by one to hopefully stop the Plaintiffs from playing the “smoke screen tactic” of litigation that has cost the Defendants Millions of Dollars in expenses and has almost put them out of business.

Oy veh -- good luck with that!