Florida Lawyer Blogs

Florida DUI Law Search

W.F. "Casey" Ebsary, Jr. — Sun, 08 Aug 2010 01:38:00 -0700

Search Our Huge Florida DUI Database for Free!

We have hundreds of pages of information on Florida DUI Laws and Florida DUI News. This site is one of the largest sites on the web devoted to Florida Traffic and DUI law information.

Settlement in Truckers lawsuit against Port of Long Beach

ejoffe@joffelaw.net (Edward Joffe) — Thu, 05 Nov 2009 06:56:36 -0800

Importers and transportation professionals should be aware of the recent settlement of the litigation over the Port of Long Beach’s Concession Plan. This past week U.S. District Court Judge Christina Snyder approved the compromise negotiated between the Port and American Trucking Association (ATA). Earlier this year preliminary rulings by the U.S. District Court and a federal appellate court in California indicated that some provisions in the port concession plans, and possibly the concession requirements in their entirety, most likely violate the Federal Aviation Administration Authorization Act.

The April 28 preliminary injunction against the Port’s Concession Agreements will remain in effect until the newly negotiated Registration and Agreement process is implemented. The Port and ATA emphasized that the new registration apparatus, which includes an agreement by carriers to provide the Port necessary operating information, will allow the Port to strictly oversee and enforce motor carrier’s compliance with federal, state, and port safety, security, and environmental regulations. Motor carriers will agree to replace old, polluting trucks with vehicles that comply with the federal Environmental Protection Agency's 2007 model emission standards.
Bill Mongelluzzo of the Journal of Commerce has reported controversy over the deal. The National Retail Federation, which represents many of the retailers that ship through Southern California, said Long Beach recognized that the concession requirements did not contribute to clean air but rather added unnecessary costs for importers shipping through the port. "A compliant truck emits the same emissions regardless of who is driving the truck," said Jonathan Gold, vice president for supply chain and customs policy at NRF.

Environmental interests, meanwhile, criticized Long Beach for failing to stick with the Port of Los Angeles in attempting to preserve the concession requirements in the ports' clean-truck programs. Los Angeles's concession program had many of the same requirements as the Long Beach agreement, with the added requirement that motor carriers hire drivers as direct employees. This requirement, supported by the Teamsters, would make it easier for the Teamsters to organize harbor truck drivers and was subject to litigation filed by ATA. Despite this settlement, the Port of Los Angeles is continuing with its litigation.

The Natural Resources Defense Council criticized Long Beach for settling the lawsuit with ATA. "Rather than clean up the trucks that serve its port, Long Beach ran away from a fight with an industry that has opposed clean-air regulation locally and nationally and is content to sit on the sidelines while the Port of Los Angeles pays to clean up the trucks that serve both ports," said David Pettit, senior attorney and director of NRDC's Southern California clean-air program.
There are good arguments made by both sides of the equation – the interests of small trucking operations and environmental interests. In this tough economic environment a compromise was in the best interests of all parties and I encourage the Port of Los Angeles to follow its neighbors lead and bring an end to its costly litigation.

Fourth Year Associate Argues Before United States Supreme Court

JTK@floridalegalblog.org (Jeffrey Kuntz) — Wed, 04 Nov 2009 21:50:00 -0800

There are a number of articles about the fourth year associate at Mayer Brown who argued before the United States Supreme Court yesterday, in a paying case. See here and here. Additionally, the Above the Law article links to the following:

Mayer Brown associate heads to the U.S. Supreme Court [Chicago Lawyer]

Prosecutors nationwide keep eyes on Bluffs case [World-Herald News Service]

The right not to be framed: Can prosecutors be sued? [Washington Post]

Paul Clement, Bush's former SG, Flirts With Liberalism [WSJ Law Blog]

Florida Foreclosure: Mortgage Default

David M. Goldman — Wed, 04 Nov 2009 13:35:54 -0800

Mortgage Default Letters. We are often asked what should you do once you receive a letter that states you are in default of your mortgage.

If you have received a Notice of Default you can send a debt verification letter to the entity you are making payments to. You can also send a Qualified Written Request “QWR” and obtain valuable information about your loan.

Pursuant to The Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e), your mortgage company is required to acknowledge your request and must respond timely.

Remember it never to early to talk to a Florida Foreclosure Lawyer about how to protect your home or other property from foreclosure.

Beware the CPA Imposter

Wed, 04 Nov 2009 20:18:02 -0800

Paul Caron alerts us to a Case Western law review article written by Capital University law professor Danshera Cords titled Paid Tax Preparers, Used Car Dealers, Refund Anticipation Loans, and the Earned Income Tax Credit: The Need to Regulate Tax Return Preparers and Provide More Free Alternatives. 59 Case W. Res. L. Rev. 351 (2009). Professor Cords [...]

Nicolas Cage’s Financial Woes

Wed, 04 Nov 2009 20:10:12 -0800

Lindsay Robinson of Yahoo News’ Movie Talk updates us on actor Nicolas Cage’s financial problems: An article in The Daily Beast says that Nicolas Cage’s recent financial problems are, at least in part, due to outrageous, eccentric spending that puts even his most flamboyant fellow celebrities to shame. If you can dream it, Nic Cage bought it: yachts, [...]

Update: Law Professor Drops Lawsuit Against Blog

Wed, 04 Nov 2009 19:02:09 -0800

Yesterday we blogged about University of Miami Law School Professor D. Marvin Jones’ $20,000,000 defamation lawsuit against Above the Law (ATL) blog. Well, today Mr. Jones did the wise thing and withdrew his complaint. Here’s what David Lat, a named defendant in the lawsuit, wrote today at ATL: Pursuant to Rule 41(a)(1)(A)(i)(B), the dismissal is without prejudice. If Professor [...]

Parents Risk Homestead By Adding Child To Legal Title

Wed, 04 Nov 2009 13:45:27 -0800

An attorney asked me for my opinion about his debtor client who was put on the legal title to his parents’ house. His mother and father added the client, their only son, to their homestead deed as a joint tenant with rights of survivorship for estate planning purposes. When both parents die the title automatically passes to the surviving son. (Title would vest in the son anyway under Florida’s homestead laws without the son being on title.). The parents paid off the mortgage. The son never paid any money toward the purchase or maintenance of the parent’s house. The son does not live in the house with his parents. One of the son’s creditors got a civil judgment against him. The attorney wants to know if the son’s creditors can levy upon the son’s interest in the house and force a sale of the home.

I’ve advised many times in this blog that parents should not add their children to their property titles because a judgment against the child could jeopardize the parents’ assets. This is another example of that risk. However, in this case I think the parents’ house is safe. Because the son has invested no money in the house nor given his parents any consideration for putting his name on the title the son has no equitable interest in the house. He has what is called "bare legal title." The son has no right to money received from the sale or financing of the house, and his creditors can gain no greater rights than the son holds in the property. I think a judge would recognize that the son is on the title as an estate planning device and that the parents did not intend a present gift of any interest in or rights to the house. The creditors cannot get what the debtor does not have- I think the house is safe.

But, there are many ways this type of planning can turn out badly. There certainly is no guarantee a judge will rule the same way I interpret this transaction. As a practical matter the parents have put their homestead at risk. This family engaged in amateur estate planning without legal advice. Penny wise, pound foolish

11 Smelly Murders and No one Noticed?

Bill Matthewman — Wed, 04 Nov 2009 10:35:00 -0800

Here is a story from Cleveland, Ohio where a man by the name of Anthony Sowell has been arrested and is being investigated after 11 decomposed bodies were apparently found in or around his home. Neighbors reportedly thought the strong stench coming from his home was caused by a local sausage factory. According to the news report, one of the neighbors stated:

We used to think that it was coming from out of Ray's Sausage," said one resident. "But you smell these smells, and I live right there and ... we used to come out here and oh, these smells would just be horrible."

It would seem that Ray's Sausage is due an apology.

The entire article is linked below:

http://www.cnn.com/2009/CRIME/11/04/ohio.cleveland.bodies/index.html

The most difficult part of all this to understand is the allegation that police had gone to the home on September 22nd to check on Mr. Sowell, who reportedly was a registered sex offender, and found nothing wrong at the home! Not even a bad smell? According to the article:

Authorities from the Cuyahoga County Sheriff's Office checked on Sowell regularly, with the most recent check coming on September 22 to confirm his address, McGrath said. They found no problems, he said.

Needless to say, Mr. Sowell has been denied bond.

JAABLOG WELCOME

Wed, 04 Nov 2009 18:30:00 -0800

LEAVE ALL FIELDS BLANK IF YOU WOULD LIKE TO POST YOUR COMMENTS ANONYMOUSLY
(except the security code; it stops spam, and is the only required field)
comments containing curse words will not post

A term too far ...

SATZ'S LEGACY

SAY NO TO STUPIDITY

Wed, 04 Nov 2009 18:00:00 -0800

How do you ask a man to be the last man to die for a mistake? - Mike Satz's reputation as a no-nonsense, tough on crime State Attorney is eroding faster than the sand on Hollywood Beach. Every day brings a new public corruption scandal, or one from within the SAO itself. His legacy is kaput.

Meanwhile, while Scrooge is busy being distracted and haunted by ghosts of the past, present and future, Broward's minorities are still being shipped off to prison at nearly twice the rate per capita of Palm Beach and Miami-Dade Counties. Most of them are non-violent offenders, caught up in an immoral and failed drug war.

Does racism play a role in Broward's out-of-whack criminal justice system? The answer depends on who you ask. Inquire of a minority from an impoverished neighborhood, and the answer will undoubtedly be "yes". Inquire of a justice system professional, and you'll most likely get the opposite answer, with a mouthful of euphemisms and alternative sociological underpinnings to boot. The truth may lie somewhere in the middle, since racist intent, if it exists at all, is awfully hard to prove, while police and SAO drug policies in Broward irrefutably have a racially disparate impact. The evidence is on display every day of the week, in every circuit criminal courtroom.

Judges and the SAO treat small time drug distribution crimes with more severity than straight possession crimes, and trafficking statutes are often twisted to ensnare pill head addicts. The big fish are rarely caught, or allowed to escape prison through "substantial assistance" when they are. Individuals enter the system, and never leave, after traveling the familiar road of probation, jail and prison. Everyone knows the situation is hopeless, that the crime is non-deterrable no matter how many people are taken off the streets, and that the demand for chemical escape and the corresponding economic incentives can never be cured under the current paradigm. And everyone knows drugs don't discriminate: use and sales occur proportionately at every level of society.

Which leads to the main point - what would happen if police were let loose on middle class and affluent white neighborhoods, with the same often lawless ferocity currently reserved for Broward's poor minority neighborhoods? What if the SAO continued to wholeheartedly condone such behavior without setting limits, slavishly rubber stamping every ridiculous charge, while simultaneously insisting on excessive punishment? In short, what would happen if drug laws were enforced equally across all socio-economic and cultural segments of Broward?

Think about it. Could the rich and powerful tolerate the treatment currently reserved for poor minorities? The answer is no, or not without the business of Broward and America (ie, business) shutting down.

If the police stopped every BMW for illegal tint and called out drug sniffing dogs, there'd be trouble. If they followed and stopped the same BMWs leaving known narcotics areas, instead of going after the seller, there'd be trouble. If they stopped and harassed rich kids for riding bikes without lights in the evening, there'd be trouble. If they infiltrated prep schools and college dorms, and turned friends and family members into informants, there'd be trouble. If they utilized confidential informants, there'd be trouble. If they busted poker games, there'd be trouble. If they posed as cannabis or cocaine or ecstasy or xanax or oxy sellers and arrested all purchasers (a felony), there'd be trouble. If they patrolled wealthy areas with the same intensity the poor neighborhoods get, every rich kid would have a record. It's ridiculously obvious.

Could we move forward as a nation if wealthy whites became convicted felons (ie unemployable) at the same rates as poor minorities? The answer, of course, is no. If the same level of police and court oversight was injected equally across the board, the entire system would collapse. And where hopelessness and desperation rules, property crimes and violence inevitably follow.

Of course, the police and the SAO would never be allowed to enforce drug laws across the board. And any elected or appointed official who dared to try would lose their job. The war will remain confined to the poor. Period.

Someday, however, Mr. Satz's misguided, "no quarter for the poor" approach will change, as well as the laws themselves. Compassion will return, as well as fairness. The hypocrisy of public officials punishing poor minority offenders for the same offenses they once committed will end. The stupidity of sending drug offenders to prisons full of drugs will end. Reason and foresight will return. It's inevitable.

But in the meantime, how do you ask a man to be the last man to die for a mistake?

The Chief Judge tries to plug the leaks (and we're not talking about pipes this time) - Click here for Tobin's angry email after Bob Norman published Tobin's 6:45 AM missive about the Rothstein meltdown. Is the original email really exempt, or is Vic just embarrassed?

Ferrari or Porsche or Bentley? - speaking of Rothstein - we're told Stuart "I know nothing!" Rosenfeldt and Rothstein's non-lawyer COO may have each been the recipients not too long ago of a fine auto, courtesy of Rothstein. Of course, there are so many rumors floating around, but this one is strong. Watch for this investigation to build build build, and for terms like "fiduciary duty" from Corporations class appearing in the mainstream press ...

JQC Sighting - yes, the man in the trench coat spotted making Courthouse rounds this week IS from the JQC. So many judges, so little time ...

Levenson staying put in Criminal - that's the word, this week ...

BACDL Meeting Thursday at 5:30 PM - Howard Finkelstein is hosting BACDL on his turf, to discuss the loss of the IC drug programs.

266 Police Officers - that's the current number of police officers with potential Brady issues. A very few were disclosed by the SAO, but most were not. The number of cases impacted could be huge. Developing ...

The strange case of Harry-O - the Miami SAO nolle prossed misdemeanor charges against Harry Williams today, after the Broward SAO held on for close to four years.

This one is classic Satz. Mr. Williams was charged by the Feds with a slew of felonies. Williams was found Not Guilty By Reason Of Insanity by Judge Cohn, based primarily on the findings of the Government's own shrink. Broward refused to drop the misdemeanor, which arose from the same facts, at one point reportedly disparaging the US Attorney's Office handling of the case.

The case stagnates over many years while Williams' competency is restored, and while five or so judges recuse themselves (Williams is related to Judge Elijah Williams). The SAO finally exercises a little sound judgment themselves, and asks for an outside prosecutor, very late in the game. Miami gets the case, and receives the reports and Cohn's order from the Federal case roughly three weeks ago (which the SAO sat on for years). They dismissed the case before Judge Diaz this morning, just like that.

Your tax dollars at work, ladies and gentleman, in the cruelest, most unusual fashion!

The Seventeenth, November 2009 "Team SATZ" - Click here for this month's SAO newsletter. Satz has been walking for MADD (it's obvious they don't know about his horrible conviction rate after trial, otherwise he'd have to run).

The "10 Second Man" - Click here for a PC Affidavit detailing a real bad case of the "Short and Curlies", and Norm Kent's post on the same case.

Coming soon - Man defends daughter's honor in court, gets a felony and INS problems for his trouble. Only in Broward!

JAABCAM

Wed, 04 Nov 2009 17:18:00 -0800

1.) Extra! Extra! Rothstein sells papers, as evidenced by the Courthouse garage news boxes this morning; 2.) The family of thirteen year old Deerfield burn suspect Jeremy Jarvis meets the press this afternoon, outside attorney Steve Melnick's office. All the locals were there, together with CNN and Good Morning America; 3.) Sharon Lawson, Channel Six, at the press conference; 4.) Pollack & Pollock, LLP, representing BSO and the judiciary; 5.) Zack & Moldof relive a DUI trial from twenty-five years ago; 6.) It's not all fun and games for Broward's minority populations. Walk into any circuit criminal courtroom any day of the week and you'll see the mirror image of this photo shot Tuesday. Institutional racism is alive and well in Broward County, where the SAO sends non-violent minority offenders to prison at nearly twice the rate per capita of Palm Beach and Miami-Dade Counties.

MONDAY NOTES

"Integrity. Passion. Commitment." - the RRA website that proudly displayed these words is no more.
If only we'd saved the lawyer pictures and profiles before they went down. You have to wonder, how could so many savvy former prosecutors, ex-judges and an ex-Sheriff have gone along for so long without seeing the warning signs of such a massive scam? Of course, most of them are Satz trained, so there you have it. Still, it's not exactly confidence inspiring.

We're told good guy Julio Gonzalez has landed on his feet, already having secured another lucrative gig. As far as the others, we can't say for sure. And what will become of former Loureiro prosecutor Howard Scheinberg? Will Satz take him back? Or might he consider joining forces with Ana Gardiner, if the rumors about her retiring from the bench are true? Add ace Gardiner pal/paralegal Ken Jenne to the mix, and you've got one heck of a budding law firm (and you can bet their Christmas Party will be awesome).

And how does the meltdown reflect on Satz himself? (that's a rhetorical question). Will it lead him to actually do something about the unbridled lawlessness, corruption and greed amongst Broward's ruling class, or, more likely, will he continue to shrug his shoulders and mumble platitudes like "(grunt) corruption is awful hard to prove (ugh)". Here's an idea - maybe "Iron Mike" could pass on one of his patented slam dunk, headline grabbing cop killer prosecutions, and personally prosecute a public corruptions case himself? Or maybe he can divert some of the massive resources currently being wasted on non-deterrable cocaine residue cases to actually combat the real criminals in Broward? We can dream, can't we?

Be sure to check The Daily Pulp for the full text of Chief Judge Tobin's Rothstein email (he also sent a second one around today, asking for a single judge to handle all the multiple filings of receivership and creditor motions). Also, click here for Governor Crist's reaction.

Today's Brady - Perjury or No Perjury? - Click here for a 2006 SAO closeout memo, after a Davie cop was accused of perjuring himself during a DUI trial for one of his cop buddies. Of course, the SAO found "(t)here is not a reasonable likelihood of conviction if (he) was charged with perjury for this statement because a jury could be persuaded that when he said he made 250-300 DUI arrests he was including calls he responded to as well as arrests". Gee, whatever happened to "let the jury decide"? And does Jeff Marcus believe possibly lying under oath in trial would not be "exculpatory" to a defendant charged by this officer? Slippery slope, indeed ...

Bits and Pieces - Judge Robinson has reportedly become the second judge to rule on the aggregated Intoxilyzer motions; Attorney Jack Fleischman in St. Lucie today, trying a cock-fighting case. (updates to follow)

                Gone Troppo?

We told you something big was brewing, but this isn't it - like most local lawyers, our extra hour of morning slumber was broken today with outrageous phone calls concerning Scott Rothstein, of Rothstein, Rosenfeldt, Adler. Yes, we'd heard the house of cards stories in the past, and even recent grousing by some of the lucky "partners", but all this stuff about Morocco seemed pretty far-fetched (even by Satzland standards). Luckily, Bob Norman's number wasn't busy, and he kindly confirmed two things: 1) something really heavy really was going down, and 2) he was, as usual, light years ahead of us (and everybody else). By now, of course, everyone's read Bob and Buddy's coverage over at The Daily Pulp and BrowardBeat.com, with even the Sentinel catching up a little after 10:00 PM.

What can be said? If all this stuff is as bad as people are saying, a lot of fine, honest attorneys will be hurt, not to mention the support staff and investors. It'll also be more than a little ironic, following so closely on the heels of the FBI probe and Rothstein's beration of the aforementioned Bob Norman. Charlie Crist will have egg on his face, and convicted felon/Satz pal Ken Jenne will be looking for work (oh well, at least something good may come of all this). Keep watching the other blogs for breaking Rothstein news all this week, and keep your eyes peeled for the long awaited answer to the million dollar question - Why did so many people hire a guy who wears suits like that?

                                    (The other really big story is still brewing)

Speaking of Ken Jenne - today, November 2nd, 2009, is KEN JENNE DAY in the 17th Judicial Circuit. Make sure to remind your judges and ASAs to take a break from imprisoning African-American males, in order to pay homage to everyone's favorite convict. Feel free to point out that Jenne got less time for betraying the public trust and crapping on the badge than the average minority drug addict gets in the upside down world of Mike Satz. A judicial day of worship for a formerly corrupt politician - only in Broward!

Miami-Dade court program for mentally ill people allows prosecutors to drop felony charges

Judge Candidate Klitsberg Won’t Take Lawyers Or Bail Bonds $$$

And Yet Another Child Support Worker Allegedly Steals Child Support Money

Wed, 04 Nov 2009 16:46:31 -0800

Spanish-speaking men (and women) in Smith County, Texas take their money orders down to the probation department’s Spanish-speaking child support collections Worker.

The Worker instructs them to leave certain fields blank, such as who the money order is made out to.

The immigrant fathers have made their child support payments.

But the mothers of their children claim not to receive child support.

Worker is suspended on an unrelated allegation of harassment.

Worker’s replacement can’t reconcile Worker’s support collections records.

Investigation leads to the money orders being traced back to Worker.

Worker reportedly alters the money orders so that they read as made out to her personally.

Worker allegedly spends the money herself.

And Worker is arrested on felony theft by a public servant of thousands of dollars, among other charges.

Worker pleads guilty and is sentenced to eight years’ incarceration.

With all due respect to the honest vast majority of child support workers, one has to wonder whether child support enforcement hires have to pass criminal background checks … or any background screening.

Still Another Way to Avoid Prison

ronchapman@bellsouth.net (Ron Chapman) — Wed, 04 Nov 2009 16:00:35 -0800

I previously published two articles on this website entitled "Florida Sentencing and Drug Court Programs" and "Amended Law Provides Additional Ways to Avoid Prison." Both of those articles looked at new laws that make it possible for some people to avoid being sent to prison even though the Florida Sentencing Guidelines call for a prison sentence.

On July 1 of this year, another law--called the Prison Diversion Program--went into effect in Florida that provides still another way for some individuals to avoid going to prison, but only if they meet the following four criteria:

The crime the person committed is a third-degree felony (for which the maximum punishment is 5 years in prison);
The accused individual does not have more than 48 points on the sentencing guidelines, or he has 54 points but 6 of those points are for a violation of probation, community control, or other community supervision, and do not involve a new violation of law;
The person has never been convicted of a forcible felony except for third-degree felonies involving burglary or trespass; and
The crime does not carry a minimum-mandatory sentence.

If a person satisfies these four criteria and the judge decides to not sentence him to prison, then the judge "shall sentence the offender to a term of probation, community control, or community supervision with mandatory participation in a prison diversion program of the Department of Corrections."

Chipley, Florida – Seven-month-old (Shannon Dedrick) Missing Since Saturday

Wed, 04 Nov 2009 15:00:00 -0800

The Washington County (Florida) Sheriff’s Office is reporting that 7-month-old Shannon Dedrick of Chipley, Florida disappeared from her home sometime on Saturday October 31st. Rescue workers have joined forces with local volunteers to search for the girl, starting in the area near her home.

It is sad to report that there are many thousands of children reported missing every day. Some wander away while others are abducted. When a child is missing, it is important for the parents to get photographs and other vital information to the police as soon as possible. Time is of the essence when trying to locate a missing child. In this case, the public has already been informed that Shannon is two feet tall and has brown hair and blue eyes. There is also a photo of her posted at the link, below. This information will hopefully help bring in more leads for the police so they can find Shannon quickly.

Officials have not reported much other information on the circumstances of Shannon’s disappearance to the public yet. The Washington County, Florida Sheriff’s office is urging anyone with information to contact the National Center for Missing and Exploited Children at 1-800-843-5678 (1-800-THE-LOST) or the Washington County Sheriff's Office at 850-638-6111.

Find out more about Shannon’s disappearance and the search effort at Infant Shannon Dedrick Missing from Florida Panhandle Home.

UM Law Professor Dismisses Suit Against Above The Law Without Even Serving The Complaint

JTK@floridalegalblog.org (Jeffrey Kuntz) — Wed, 04 Nov 2009 14:34:00 -0800

After filing a complaint seeking two million in compensatory damages, and twenty million in punitive damages, University of Miami School of Law professor Donald Jones filed a one sentence document dismissing the complaint today. Perhaps the plaintiff read the nearly unanimous blog posts and news article regarding the complaint.

The three counts to the now dismissed complaint against Dead Horse Media, David Lat and David Minkin were: (I) False Light, (II) Invasion of Privacy and (III) Copyright Infringement. Minkin is the Registrar and Publisher of Abovethelaw.com and Lat is the Founding Editor. A summons was never even issued for any of the defendants. The lawsuit was previously discussed here and here.

Above the Law indicates there was not a settlement. They stated earlier today "Pursuant to Rule 41(a)(1)(A)(i)(B), the dismissal is without prejudice. If Professor Jones wants to refile, he should note the statute of limitations (which had already run as to most of our posts about him by the time his complaint was filed). There was NO SETTLEMENT in this case. Above the Law has made no changes to our prior posts, and we have paid no money to Professor Jones. The case was dismissed by the plaintiff without anything from our side, except a letter from our lawyer."

The dismissal is below:

Dismissal

"Death sentence upheld for Julie Love's killer"

JTK@floridalegalblog.org (Jeffrey Kuntz) — Wed, 04 Nov 2009 14:13:00 -0800

In Emanuel Fitzgerald Hammond v. Hilton Hall (08-11108) the Eleventh Circuit issued a published 116 page opinion affiming the death sentence given to Emanuel Hammond. The Atlanta Journal-Constitution has an article titled "Death sentence upheld for Julie Love's killer." The AJC article states "In a 116-page opinion, Judge Ed Carnes detailed Emanuel Hammond's violent past before he abducted Love in Buckhead on July 11, 1988. The terrified preschool fitness instructor could not have known that this was just the latest in a series of violent attacks against women by Hammond, the judge said." Suprisingly, that was the only article I could find.

IRS Employee Steals Mail

Wed, 04 Nov 2009 14:11:22 -0800

WebCPA reports that an IRS employee has pleaded guilty to stealing money from mail that had been sent to the facility where she worked: Latrice Antionette Murray, 38, of Kansas City, Mo., pleaded guilty before U.S. District Judge Dean Whipple on Tuesday afternoon to the charges contained in a Sept. 8, 2009, federal indictment (see IRS Employee [...]

Is a Will Contest Clause in Florida Valid? How about a Trust?

David M. Goldman — Wed, 04 Nov 2009 05:31:04 -0800

Will Contest Clauses are generally included to prevent children or beneficiaries from attempting to dispute their portion of an estate. In some states they are valid and many others like Florida they are not valid by statute.

Given that a No Contest Clause in a Will is invalid in a Florida Probate case, should they be used in Florida? If your will is contested and the end result under the state statute may be the same, it may provide any benefit to include the no contest language.

Today people move quite often and may have assets in other states that do recognize Will Contest clauses. Given that one of these situations may enable a no contest clause to be enforced, it might be a good idea to include them in your Florida Estate Planning Documents.

Under the Florida Trust Code a Florida Revocable Trust is not able to have a contest clause, unless the right to revoke the trust terminated prior to October 1, 1993.

While its not possible to have a no contest clause in a Florida Revocable Trust, Florida does allow a trust to specify the laws of another state to be used in interpreting and administering the trust. So in effect, by drafting your trust correctly, you can have a no contest clause.

There are several ways to accomplish the desired results from a no contest clause in a will or trust. To discuss your specific issues and how one might benefit you, contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer

DOWN GOES DAVIS!!!

Rumpole — Wed, 04 Nov 2009 07:19:00 -0800

GUILTY!!!

Two Broward Economic Crimes prosecutors did what an army of Federal Agents and Federal Prosecutors could not do some twenty years ago when a jury today found former Judge Phil Davis guilty of nine felony counts including money laundering, fraud, organized scheme to defraud (which is a first degree felony last time we looked) and grand theft.

A shocked and sullen looking Davis was handcuffed and led away. Sentencing was set for January 8, 2010.

Davis will now spend his foreseeable future in a place once unimaginable for him- the same jail he sentenced countless defendants to, while taking bribes from attorneys and snorting cocaine in his chambers.

Karma baby.

Here's reporter/Blogger Tim Elfrink's New Times post on the conviction.

Above the Law case voluntarily dismissed

David Oscar Markus — Wed, 04 Nov 2009 07:19:00 -0800

Well that was quick.

Here's ATL on the dismissal:

Pursuant to Rule 41(a)(1)(A)(i)(B), the dismissal is without prejudice. But if Professor Jones were to attempt to refile at this point in time, he would encounter a statute of limitations problem.

There was NO SETTLEMENT in this case. Above the Law has made no changes to our prior posts, and we have paid no money to Professor Jones. The case was dismissed by the plaintiff without anything from our side, except a letter from our lawyer.

Smart move by Professor Jones as the lawsuit appeared frivolous and likely sanctionable. Congrats to ATL.

Federal Bar Association dinner

David Oscar Markus — Wed, 04 Nov 2009 07:05:00 -0800

Fun event today with Judges Gold and Jordan. (Yes, that's my terrible phone camera picture to the left.)

Some of the topics discussed:

Facebook, Blogs, and Roshambo.

And there was even a question about how Iqbal has been affecting the courts. Perhaps SFLawyer was in the audience...

Vote for the 13th juror!

Jacqueline Dowd — Wed, 04 Nov 2009 06:30:00 -0800

More on Star Caps

Gabe Feldman — Wed, 04 Nov 2009 06:30:00 -0800

As a follow up to Nathaniel’s post on the Star Caps hearing, the written testimony of all of the witnesses and the video of the hearing can be found here (note that the testimony from the witnesses does not begin until about the 1:26:48 mark).

Here is the full witness list: Roger Goodell, Commissioner, National Football League; DeMaurice Smith, Executive Director, National Football League Players Association; Rob Manfred, Executive Vice President, Labor and Human Resources, Office of the Commissioner of Baseball, Major League Baseball; Michael S. Weiner, General Counsel, Major League Baseball Players Association; Travis Tygart, Chief Executive Officer, United States Anti-Doping Agency; Jeffrey Standen, Professor of Law, Willamette University College of Law; Gabriel Feldman, Associate Professor of Law and Director, Sports Law Program, Tulane University Law School.

Also, although I may be a bit biased, the Minnesota Post did a good job of recapping the hearing.

Here’s an excerpt:

During additional testimony before the committee, Gabriel A. Feldman, associate professor of law at Tulane University and the director for the Tulane sports law program, laid out a more detailed argument against congressional action.

“It is important to emphasize that the Eighth Circuit did not hold that the NFL [Performance Enhancing Drug] Policy violates Minnesota law,” he said in prepared testimony. “Instead, the court only held that the Williamses may challenge their suspensions in Minnesota state court under state law.”

Thus, Feldman concluded that it was only a “potential” problem. And even if the court did ultimately rule in favor of the Williamses, it was still a “narrow” problem because only three states, including Minnesota, currently have drug-testing laws that might conflict with the NFL policy.

“This narrow potential problem warrants a very narrow solution, and many steps should be taken before Congress intervenes,” said Feldman. “The most appropriate — and simple — solution is for the NFL to litigate the case in state court and convince the court that the Minnesota Laws were not intended to apply to the NFL [Performance Enhancing Drug] Policy and that suspensions do not violate the Minnesota Laws. If that suit is unsuccessful, the NFL should seek an exemption from the state Legislature that makes it clear that the Minnesota Laws do not apply … If that fails, the NFL and the players association should try to bargain around the Minnesota Laws. If that fails, then, only as a last resort, Congress should consider passing a narrow federal law that will protect” the NFL policy.

Goodell retorted that if a national law was not enacted, then other states could ultimately change their laws to conflict with NFL policy. Feldman, however, stated that there was little chance of that happening.

In the end, subcommittee chairman Bobby Rush of Illinois seemed to side with Feldman.

Rush said that he would be keeping a “wary eye” on the Williamses’ case, but warned that “you can’t tell what members of Congress might ultimately do once you open up Pandora’s Box.”

“I would just ask that you all try to work this thing out,” Rush told the gathered panel.

Finally, Mark Maske of the Washington Post wrote a piece discussing the study of state employee drug testing laws that I conducted for the hearing. The study concluded that only 3 states (Minnesota, Maryland, and North Carolina) currently have workplace drug testing laws that might conflict with the NFL’s performance enhancing drug testing policy. Many thanks to Andrew Miragliotta, a sports law student here at Tulane Law School, for helping with the study.

Fourth District Affirms 57.105(1) Order

JTK@floridalegalblog.org (Jeffrey Kuntz) — Wed, 04 Nov 2009 09:24:00 -0800

In Chue v. Lehman, et al. (4D09-128), the Fourth District affirmed the trial court's denial of a motion for attorneys fees pursuant to section 57.105(1), Florida Statutes. The court stated:

On a motion for attorney’s fees pursuant to section 57.105(1), the trial court must make “‘an inquiry into what the losing party knew or should have known during the fact-establishment process, both before and after suit is filed.’”...To award attorney’s fees under section 57.105(1), the trial court must find that the action was “frivolous or so devoid of merit both on the facts and the law as to be completely untenable.”

***

Against this backdrop, our task is to determine whether the trial court abused its discretion in ruling that Lehman’s lawsuit was not frivolous; it is not to conduct a de novo review of Lehman’s complaint. Thus, we must consider the evidence presented at the evidentiary hearing concerning what Lehman and his attorney knew or should have known at that point in the litigation. After reviewing this evidence, we conclude that Lehman and his attorney provided testimony from which the trial court could have reasonably concluded that Lehman’s claim was not frivolous.

The court then made two statements to be used in the future if the plaintif attempted to revisit the action. First, the court made very clear nothing in the opinion should be construed as the court indicating the complaint sufficiently pled a case of action. Second, the court indicated the opinion should not be used to prevent the imposition of sanctions if the case was again filed.

Marijuana Grow Houses Growing in Florida

Wed, 04 Nov 2009 08:56:28 -0800

Marijuana grow houses, where people make structural and electrical modifications to a home or other building to create a warm and humid environment where hybrid marijuana plants can grow indoors, are becoming more popular in Florida, according to a recent article on News4jax.com. Apparently, drug trafficking organizations are setting up grow houses all over Florida and the Southeast from Miami to Jacksonville to Atlanta. They are able to grow more potent marijuana that can bring in more money per plant. Additionally, many criminal courts have become less strict with marijuana crimes reducing the risk of setting up a marijuana grow house. According to the article, most people arrested for the first time for having a marijuana grow house get probation instead of jail or prison time. Of course, that will depend on a variety of factors in the case and the particular county where the suspect is arrested.

According to the article, the number of marijuana grow houses have increased exponentially since 2000 when most of the illegal drugs in Florida were brought in from Mexico and South America. The article estimates that approximately 100 pounds of marijuana from Florida grow houses are shipped from Miami to other parts of the country.

Trade Talks Hone in on Internet Abuse and ISP Liability

Wed, 04 Nov 2009 08:48:26 -0800

Interesting review in PC World of the Anti-Counterfeiting Trade Agreement meeting in South Korea. Here's an excerpt:

ISPs around the world may be forced to snoop on their subscribers and cut them off if they are found to have shared copyright-protected music on the Internet, under an international agreement being promoted by the U.S.

Countries including Japan, Canada, South Korea, Australia as well as the European Union and U.S. have been negotiating an anticounterfeiting trade agreement (ACTA) over the past two years to combat the growing problem of counterfeit products ranging from designer clothes to downloadable music.

The countries are due to discuss the ACTA at a meeting in South Korea on Wednesday, focusing specifically on the issue of Internet piracy. The U.S. has drafted the text of the chapter on the Internet.

Reaction to Berring

Robert Hudson — Wed, 04 Nov 2009 03:26:58 -0800

Some strong reaction to the Free Legal Information comments of Berring are discussed here.

3d DCA Watch -- "Actions Have Consequences" Edition

South Florida Lawyers — Wed, 04 Nov 2009 03:13:00 -0800

Well given that there were only three civil opinions released this week and one is a glorified PCA and two are United Auto cases, I thought I would do a short 3d DCA Watch and head over to the Federal Bar luncheon early to see if Judge Jordan wanted to have a quick game of pick up football in the Bankers Club lobby.

(Judge Gold, don't worry -- you can be all-time-QB!)

But then I came across this interview of Nicole Kidman discussing her marriage:

'I've explored obsession. I've explored loss and love in terms of being in a grief-stricken place, I've explored strange sexual fetish stuff, I've explored the mundane aspect of marriage, and monogamy,' Kidman said.
'You work on it,' she went on of marriage. 'It's a very extraordinary, adventurous place to be: incredibly raw, incredibly dangerous and you're very much out at sea. You're exposed. You could drown.'

'When you commit to someone like that, you live and die together by that decision.'

Holy hail -- is this a marriage or Basic Instinct?

All I can say is Tom, you really did a number on her.

I want to focus on this United Auto opinion by Judge Shepherd because I think it encapsulates the way this Judge approaches the law.

As usual, it's a second-tier cert appeal of a circuit court appellate division PCA of a county court decision that went against United Auto.

The first thing that's notable is Judge Shepherd spends an unusual amount of time detailing the basis for the Court's jurisdiction. In fact, you don't even get to the facts section until page 3. This is consistent with the Judge's limited jurisprudential approach.

The second thing I found interesting is you don't learn the outcome of the appeal until page 7 -- most judges will summarize the outcome (affirmed, reversed etc.) up front.

Way to keep your audience guessing, Judge!

Third, this is another example of Judge Shepherd taking a very close and narrow read of a statute -- in this case section 627.736(4)(b), which apparently does not require an insurer to ever respond to an insured's request for payment under a PIP policy:

In fact, carefully parsed, it is clear there is neither a requirement nor a deadline for a personal injury protection insurer to respond to a request for payment.

So under the statute an insurer can simply ignore a request forever.

Finally, there are Judge Shepherd's usual turns of phrase:

However, actions have consequences.

And this:

Accordingly, while there is no absolute deadline for the payment of a properly presented personal injury protection claim, there is a cost—and, indeed, ever increasing risk—to a miscreant insurer who does not treat its customers properly. This is the manner in which the legislature has chosen to regulate insurers in matters of this type.

Here that, all you "miscreant insurers" out there in "miscreant insurer land"?

Don't blame us -- blame your legislature (yet another recurrent theme).

Ok, I got me some football to play!

FLORIDA PERSONAL INJURY BLOG: Ninety Pound Pit Bull Attacks Man Injuring His Face

Wed, 04 Nov 2009 08:06:30 -0800

Jeffery Bellhorn was transported to a Largo hospital following an attack by a dog. The 90-pound pit bull attacked Bellhorn and dragged him out of a home injuring the man’s face according to an AP story on Bradenton.com. The Pinellas County resident’s condition is unknown at this time.

Bellhorn was at the home of Katherine Coleman when the attack occurred. He went to her home to help his friend Ofera Alon move out of the house following an argument with Coleman. During the process of moving out his friend, the pit bull attacked. The dog was taken away by animal control officers.

If you or a loved one has been suffered a dog bite and are in need of quality legal representation in your case, please contact Florida Personal Injury Attorney Darren Finebloom at 1-800-FIGHT-IT (1-800-344-4848) or online at FightYourInjury.com to discuss the matter. You can also contact Darren via email.

Fourth District Quashes Order Because Testimony Could Have Subjected Attorney To Criminal Prosection

JTK@floridalegalblog.org (Jeffrey Kuntz) — Wed, 04 Nov 2009 07:59:00 -0800

In Hitchcock v. Proudfoot Consulting Company, et al. (4D09-20), the Fourth District quashed the lower court's order that "petitioner’s renewed motion for protective order and granting a motion to compel deposition answers, overruling petitioner’s claim of Fifth Amendment privilege against selfincrimination." The court stated:

We grant this petition and quash the order in this case because the record before us demonstrates that petitioner was presented at deposition with questions which might provide a foundation for a possible criminal prosecution for the unauthorized practice of law.

Multi Agency Federal Investigation of Chinese Drywall Defects Is Inconclusive

Wed, 04 Nov 2009 07:19:51 -0800

As a South Florida product defects lawyer, I was disappointed, along with many other Floridians, to see an Oct. 29 report from the South Florida Sun-Sentinel on Chinese drywall. As I have written before, homeowners in Florida and around the U.S. believe the drywall is tainted with chemicals that make residents of the homes sick. A group of federal agencies, including the Centers for Disease Control and Prevention, the Consumer Products Safety Commission, the Environmental Protection Agency and the Department of Housing and Urban Development, set out to test that theory. The agencies found elevated levels of some chemicals. But as the Sun-Sentinel reports, the chemical levels found are not associated with human health risks. This answer has disappointed and angered many homeowners who feel driven out of their homes by the drywall.

During the housing boom in the middle of this decade, many builders ran out of American drywall and imported substitutes from China. After moving in, homeowners around Florida and the nation discovered terrible sulfurous smells and health symptoms including persistent headaches, corroded metal, breathing problems, frequent illness and complications of asthma. For some, the problems were so bad that they moved out. In all, the newspaper said, the problems have generated 1,900 complaints from 30 states, including 1,317 from Florida alone. The test results released in October are preliminary, involving just 10 homes in Florida and Louisiana as well as new, uninstalled Chinese drywall. Results of more thorough testing in 50 homes are expected by Thanksgiving.

As the newspaper notes, the federal studies have focused on the health effects of Chinese drywall -- not the financial effects on homeowners. But as our Parkland defective product attorneys know, the financial side of the problem is very real for the homeowners who are affected. Those in the article include one woman who is renting, but also paying her mortgage and homeowner’s fees, while waiting for an answer. Another homeowner moved his family into a rental while paying a contractor to rip out and replace their home’s drywall. Not surprisingly, these homeowners are frustrated by the government’s lack of conclusions or support. Florida’s Sen. Bill Nelson (D) has called for FEMA aid, but at the moment, homeowners are stuck being their own rescuers.

I like Twizzlers

David Oscar Markus — Wed, 04 Nov 2009 02:17:00 -0800

"When you have a Twizzler in your mouth, you can't have a serious conversation."

"The red-colored licorice are kinda sweet ... pleasant tasting. They put you in a good mood."

"There were two ways to eat the Twizzler: Sucking on the licorice, like a baby with a pacifier, or tearing it into small pieces and gobbling it down."

Those are quotes from federal district judge Kevin Castel on why he gave Twizzlers to the jury in the John Gotti Jr. trial. More from the article:

The Twizzlers were there to candy-coat the panel's jangled nerves.
"If you feel frustrated, you now have something to take that frustration out on," Castel said.
Juror No. 1 then carried the red-topped bucket of candy into the jury room.
A day earlier, Castel tried sweet-talking the jury - although he apparently decided that wasn't enough.
"I'm just asking you for help in being kind and considerate to all your fellow jurors," Castel told Juror 7 after her Monday spat with Juror 11.
It was the latest bit of juror animosity in the feds' fourth prosecution of the ex-Gambino family boss. With the racketeering trial in its seventh week, tensions are running high on the anonymous panel.
Earlier, the judge received a juror's letter complaining about Juror 7's abrasive conduct and her love of Gotti's lawyer, Charles Carnesi. The letter, signed "A Concerned Juror," described Juror 7 as antagonistic and foul-mouthed.
Castel is trying to keep the jury together as the trial heads into its final days. Closing arguments in the case could come as soon as Monday.
Personality clashes among jurors increase the possibility of yet another mistrial for Gotti.
If the panel benefits from the candy karma, they might hear from Gotti before the defense rests. Junior wants to testify, said Carnesi, but he doesn't want to answer questions from prosecutors about crimes involving other people.
Gotti "does not believe he should solve his problems by dumping them" on mob associates, Carnesi said.
The defense team will let Castel know by 5 p.m. today if Gotti is going to take the stand.
"Do I think there is any downside?" Carnesi asked. "No."
The second-generation gangster opted not to testify at his three previous racketeering trials. All ended in hung juries and mistrials.

Former Miami DEA Chief May Have Charge Dismissed

Wed, 04 Nov 2009 06:49:08 -0800

Miami Federal Magistrate Judge Robin Rosenbaum recommended to federal prosecutors that they drop an obstruction of justice charge against Tom Rafanello. Rafanello, the former chief of Miami's Drug Enforcement Agency (DEA), is charged with obstruction of justice and interfering with a federal investigation for shredding thousands of documents despite a court order to leave the records intact. Rafanello's Miami criminal lawyer was pleased with magistrates recommendation. His lawyer is hopeful that the federal district judge presiding over the case agrees and throws out the remaining charges.

Rafanello, after leaving the DEA, was hired as the head of security for Allen Stanford's financial empire. Allen Stanford was arrested several months ago by federal authorities for a running a $7 billion "Ponzi" scheme through island nation of Antigua for the past decade. Stanford is currently in custody in a Houston federal correctional facility awaiting trial on charges of securities fraud, wire fraud, mail fraud, racketeering and money laundering. Days after federal authorities shut down Stanford's operation, Rafanello and another member of Stanford's security team, Bruce Perraud, destroyed reams of documents in contravention of a court order.

Jude Rosenbaum told prosecutors that they have failed to show that the shredding of the documents impeded the U.S. Securities and Exchange Commission's (SEC) probe into Stanford's massive scheme to defraud. Rosenbaum did not reject the entire case, finding evidence that Rafanello's action impeded a federal investigation. The records allegedly destroyed in the case included background checks on Stanford employees and investors. Federal prosecutors declined to comment on the preliminary ruling, but have previously argued that Rafanello and Perraud destroyed the records knowing that a judge ordered them to be preserved.

As with every economic crisis, massive schemes to defraud investors always come to light. From multi-billion dollar schemes to defraud like the one committed by Bernie Madoff in New York, to multi-million dollar schemes committed in our backyard, such as Beau Diamond's alleged Sarasota fraud, investors always suffer the consequences. South Florida and Miami fraud lawyers have been busy defending those accused of defrauding investors. With the next economic downturn, more innovative schemes to defraud will be unveiled. As the old adage goes, history always repeats itself.

Miami's EX-DEA Chief Could Escape Charge in Allen Stanford Case, The Miami Herald, November 3, 2009.

Can The Pet Trustee Write A New Pet Trust?

dannymeek@comcast.net (Danny Meek) — Wed, 04 Nov 2009 06:00:00 -0800

We recently lost a dear friend that made me the trustee of her trust. There was a clause in the instructions that made a provision for her cat, Babe. It is very vague in the specifics, but we feel we need a separate trust set up just for the cat. The funds are limited and insignificant, but we want to honor her wishes. Do you have a basic Pet Trust already created or do you specifically draft each individually?

Please let us know what you would recommend.

Thank you,

Brad and Amy Sue

Brad and Any Sue, I am truly sorry for the loss of your friend.

I have no doubt that she cared for you very much in that she named you to be her Trustee, a very responsible position.

There is no such thing as a basic pet trust as each document must be individually drafted for the specific case.

However, before you consider writing a separate pet trust, you need to consult with an attorney, as her trust may prohibit this activity. You may also be required to receive the written consent from the contingent beneficiaries.

Take care of Babe.

Oakland Mayor Ron Dellums Owes IRS $239,000

Wed, 04 Nov 2009 05:22:17 -0800

Henry K. Lee of the San Francisco Chronicle tells us about another tax and spend Democrat who apparently doesn’t think the tax part applies to him: Oakland Mayor Ron Dellums and his wife failed to pay more than $239,000 in taxes over a three-year period and have had a lien slapped on their property by the Internal Revenue [...]

Good Lord Am I Sick of Scott Rothstein!

South Florida Lawyers — Wed, 04 Nov 2009 00:17:00 -0800

How many news cycles can this story dominate?

Scott, this scandal has officially joined the list of Things That I Hate -- in no particular order:

1. Flatbread;
2. The Case That Dare Not Speak Its Name;
3. Any current or former lovers of Drew Barrymore;
4. Metadata;
5. Flavored vodka;
6. Jeremy Piven and/or Brett Ratner;
7. Pesto wraps;
8. Certain Herald TV critics (Glenn was right about V however -- it rocked).

Oh the melodrama:

Rothstein mused that he had three options -- kill himself, live life "on the lam as a fugitive'' or go to prison and risk being killed there because he had made enemies, said the law firm's co-founder, Stuart Rosenfeldt, according to the website. Rosenfeldt talked to Rothstein, urging him to "choose life.''

I bet that's the first time a George Michael T shirt saved a high-powered lawyer from suicide.

Scott seems to possess a perfect storm of characteristics -- talented yet narcissistic, delusions of grandeur, persecution complex, excessive displays of wealth even by South Florida standards, megalomania and a sense that the entire world revolves around him -- in other words, your typical successful South Florida trial lawyer.

Consider the stories coming out -- private elevators, a car fetish, carrying a gun in an ankle holster, blowing $10 million a month.

Indeed, look at the comments section of Bob Norman's "Jewish Avenger" story -- there is definitely something not right about the way Scott engages Norman.

Are there some chemical or other disorders at work here?

Now that he's down, it seems everyone has a negative Rothstein story -- yet some of these folks sat on their feelings or refused to act on them, no?

Roger Stone now says Scott "never added up"; Bill Scherer says "[w]e all wondered where the money came from"; Michael Goldberg says Scott's spending "made no sense." Sunshine Charlie says "I think everybody heard rumors."

My friend Brian Tannebaum wonders how in this recession a firm can go from seven lawyers to seventy and no one questions why or how?

He relates a story of how he drove 40 minutes to meet with Scott for lunch, only to be totally stiffed:

I never met Scott Rothstein. He ducked out a few minutes before our lunch a few years ago. His secretary telling me and his colleague, who set up the lunch: "he went to lunch." There was no further inquiry as we were not entitled to even be standing by his office, an "off-limits" area of the firm. Instead I went to lunch with some other lawyers in the firm who felt they needed to take pity on me for my wasted 40 minute drive, all of them telling me in response to the unprofessional behavior of their king: "I'm not surprised." "That's Scott."

These out-of-control legal types, of which I know many, all have enablers -- those who justify, excuse, or clean up the mess left by the large lives of the bosses they serve, and who not coincidentally benefit from being near to the flame.

Now we know that a seventy lawyer firm, with only two equity partners, really only had one -- as Stuart Rosenfeldt apparently had no signatory authority on certain firm accounts and there is suddenly only $500k left in the firm's operating account.

Judge Streitfeld called Rosenfeldt "clueless" about the firm's finances at a hearing yesterday. Stuart has since invested a large chunk of his own money to keep salaries paid and the firm afloat.

There are lots of victims here, including many many fine lawyers at RRA, but a few of us in the South Florida legal and business communities should probably step up and acknowledge we could have been a bit more proactive on what some apparently suspected all along.

Will The Florida Bar Move To Emergency Suspend Scott Rothstein's License?

noreply@blogger.com (Brian Tannebaum) — Wed, 04 Nov 2009 05:16:00 -0800

Rule 3-5.2 of the Rules Regulating The Florida Bar:

(a) Petition for Emergency Suspension. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that an attorney appears to be causing great public harm, the Supreme Court of Florida may issue an order suspending said attorney on an emergency basis.

Rothstein's firm quickly and publicly moved to separate themselves from Rothstein. He's out of the firm, and likely not practicing any law.

So will they (the Bar) and can they argue that a lawyer who is rumored to have taken hundreds of millions of dollars from trust accounts, that were/were not/could be/maybe were part of the law firm, is, not was, causing great public harm?

My bet is that they file the Petition, and Rothstein consents.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

What is the Impact of a Wrong Answer at an Examination Under Oath? Do all Incorrect Answers Lead to Denial?

cmerlin@merlinlawgroup.com (Chip Merlin) — Wed, 04 Nov 2009 05:08:02 -0800

(Note: This Guest Blog is by Robert Reynolds, an attorney with Merlin Law Group in the Coral Gables, Florida, office. This is the seventh of a thirteen part series he is writing on examination under oath).

Two weeks ago the issue of a policyholder refusing to answer questions was discussed in this blog. Hand-in-hand with that topic is: What if an insured renders an inaccurate answer during an examination under oath? This analysis should begin with the policy language. Every insurance policy I have ever read includes a fraud, misrepresentation, and concealment provision. Fraud is the willful intent to deceive. Misrepresentation is the willful act of presenting knowingly incorrect information. Concealment is the willful act of hiding facts or circumstances. The one common thread to this unholy trinity is that all three acts must be willful. That is, the policyholder must be participating in these acts intentionally. To be clear, over time just about everyone’s memory tends to fade. Hurricane Wilma occurred just over 4 years ago, and I’m quite sure a policyholder misremembering some of the facts of a claim that happened over 4 years ago will not lead to denial.

Therefore, in order for the policyholder to place his/her claim in jeopardy, the incorrect answer must have been asserted intentionally. But do all willfully made incorrect answers place the insured’s claim at risk? For example, suppose an insured was a bit touchy about their age and misrepresented it when asked at the examination. Does this misstatement alone lead to a potential denial? I would tend to doubt that. For unless the policy at issue is a life insurance policy, for example, or for some other reason the policyholder’s age is germane to either the underwriting of the policy or the claim directly, it would not seem just for the insurer to be able to deny a claim over the misrepresentation of a fact or circumstance that had nothing to do with the actual loss or evaluation thereof. Hence, as was previously discussed in this blog, it would appear that an incorrect answer given at an examination must be material to the loss and/or the carrier’s investigation and evaluation of the claim in order to place said claim in danger of denial.

Thus, willfulness and materiality appear to be the hallmarks necessary for an incorrect answer given by a policyholder an examination under oath to lead to the carrier to potentially conjure the specter of denial. In fact, a case from the Supreme Court of the United States of America concurs with this analysis. In Claflin v. Commonwealth Ins. Co,, 110 U.S. 81, 94-95 (1884) the High Court held:

The object of the provisions in the policies of insurance, requiring the assured to submit himself to an examination under oath, to be reduced to writing, was to enable the company to possess itself of all knowledge, and all information as to other sources and means of knowledge, in regard to the facts, material to their rights, to enable them to decide upon their obligations, and to protect them against false claims. And every interrogatory that was relevant and pertinent in such an examination was material, in the sense that a true answer to it was of the substance of the obligation of the assured. A false answer as to any matter of fact material to the inquiry, knowingly and willfully made, with intent to deceive the insurer, would be fraudulent.

So there you have it: “A false answer as to any matter of fact material to the inquiry, knowingly and willfully made, with intent to deceive the insurer, would be fraudulent.” Of course, materiality may be viewed as a nebulous term which may be looked upon by a judge or jury as all-encompassing. As such, as in almost all circumstances, but especially when answering questions under oath, honesty is the best policy. Tune in next week insurance fans when we discuss how to prepare for an examination or sworn statement under oath if you are a policyholder or public adjuster.

Scott Rothstein: Who Knew?

noreply@blogger.com (Brian Tannebaum) — Wed, 04 Nov 2009 04:44:00 -0800

Keeping up with the latest news on the unraveling of Scott Rothstein is like watching the stock market ticker.

Here's what we know this morning:

Rothstein had $16 million transferred to Morocco. A country he spent the last few days "clearing his head," and according to NBC6 Miami, contemplating suicide. By the way, he's back. His first meeting, with the feds.

Nationally known political consultant Roger Stone thought something was up a year ago.

On Halloween, Rothstein sent this text message, neither a trick, or treat:

"Sorry for letting you all down," he wrote. "I am a fool. I thought I could fix it but got trapped by my ego and refusal to fail and now all I have accomplished is hurting the people I love. Please take care of yourselves and please protect Kimmie (Rothstein's wife). She knew nothing. Neither did she nor any of you deserve what I did. I hope God allows me to see you on the other side. Love, Scott."

All the news surrounds one question: Who knew?

Yesterday a prosecutor told me: "It takes two people to make anything happen."

We'll see.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Post to Twitter

ROBERT WHITNEY, D.C. d/b/a 127th Street Intracoastal Chiropractic Center vs. A AVENTURA CHIROPRACTIC CARE CENTER, INC. ET AL, 34 Fla. L. Wkly D2186b (3d DCA Oct. 21, 2009)

Jason Baruch — Tue, 03 Nov 2009 20:38:20 -0800

In this case, a defendant filed a motion in 2007 to set aside a default judgment that had been entered and recorded in 1993. He claimed that he never received pleadings in the case or the judgments themselves. The appellate court affirmed the trial court's finding that excusable neglect had not been established, because the appellant "advanced no reason for simply ignoring, for so many years, a lawsuit he knew had been filed and served upon him in 1990."

ROBERT WHITNEY, D.C. d/b/a 127th Street Intracoastal Chiropractic Center vs. A AVENTURA CHIROPRACTIC CARE CENTER, INC. ET AL, 34 Fla. L. Wkly D2186b (3d DCA Oct. 21, 2009)

West Palm Beach, Florida – Mother (Ivana Linic) Convicted of Starving Her Son (Nehemiah Chavis) to Death

Wed, 04 Nov 2009 03:30:00 -0800

Ivana Linic, age 23, of West Palm Beach, Florida was convicted of starving her 5-month-old son to death. She may be sentenced to as many as fifteen years in prison. Linic claimed that she fed the baby adequately, but the child’s autopsy results showed that he had only gained two pounds in the five months since his birth. The father, who was not named, reportedly told police that Linic was angry about having a baby and had asked him to take care of the child. He did not accept the responsibility, due to his own struggles with substance abuse.

Newborn children are totally reliant on adults to care for them. When the adults are unable to do so, the results are often tragic. Parents who are unprepared or unable to take care of their own children should reach out for help rather than taking it out on their child. You can find out more about Nehemiah Chavis at Florida Mother Convicted of Starving Child to Death.

If your gold is rusting, you’ve got a problem

Marc S. Dobin — Tue, 03 Nov 2009 15:31:09 -0800

As readers of this blog know, my sister is a bankruptcy lawyer. She was recently appointed the trustee of a bankrupt jeweler who appears to have been selling gold bars to customers. Or at least they thought they were buying gold bars.

She had a conversation with a customer of the jeweler who told her how glad he was that he was not ripped off. After all, he had his gold bars at his home. He then proceeded to ask her if it was normal for gold to show rust. When I heard that question, I could not contain myself.

I’ve said this before, folks, there’s no magic bullet. If the events of the past 2 years have demonstrated anything, it’s that the so-called “experts” couldn’t find their butts with two hands and a road map. Ponzi schemers take advantage of every investor’s dream – the next Microsoft or Google is out there waiting to be discovered. Or that the next genius has found an undiscovered investing technique.

Ultimately, the wheels come off and the investors find themselves hoping that the gaudy baubles purchased by the crook can be sold for ten cents on the dollar. That’s what’s happening to the Madoff investors right now.

Bottom line – if you think your gold will rust, don’t buy it. If you’re told that the gold is “special,” you’re being lied to.

@CruiseFacts - Cruise Line Pravda

jwalker@cruiselaw.com (Jim Walker) — Tue, 03 Nov 2009 21:03:11 -0800

When I was in high school in the early 1970's, my prep school provided students with an opportunity to read the English version of the Russia newspaper Pravda. The thought was that we should be reading every perspective to develop a complete understanding of international issues.

Officially referred to as the "Organ of the Central Committee of the Communist Party of the Soviet Union (CPSU)," Pravda was the Soviet's propaganda machine disguised as a newspaper. As the only source of information for the Soviet people, Pravda was a carefully crafted state owned one-side-of-the-story propaganda mill during the Cold War.

Only those "facts" approved by the Soviet leaders were permitted to be included for mandatory reading by the Soviet masses.

I was fascinated by the absurdity of Pravda's stories. Along with National Lampoon, Pravda became one of my favorite reads, for no other reason than it made me instantly disbelieve what was written and wonder what the true facts really were. But unlike National Lampoon, Pravda was oh so serious - which just made it even more ludicrous.

In mid-September of this year, the Cruise Line International Association ("CLIA") launched a web site called "CruiseIndustryFacts.com." It is full of 'facts" carefully selected by CLIA for your reading.

CLIA also has a twitter page @CruiseFacts which occasionally tweets "facts" like "cruise line industry generated $40 billion to the U.S. economy in 2008!"

Every time I click on CLIA's "fact" pages I feel that I am reading a copy of Pravda: "We assign the same priorities to keeping guests and crew healthy, safe and secure, and to protect the environment as we do to our other critical business matters . . ."

Pravda. I love it.

Photo credit: vyoos.com "From Russia With Crud"

Choosing the Right Religion … Uh … Parent for Primary Custody

Tue, 03 Nov 2009 20:20:57 -0800

I previously posted on a case where a North Carolina court ordered children out of homeschooling and back into public school at least in part to compensate for the mother’s religious views.

In a similar recent case, a girl was ordered out of homeschooling and into public school because of her “rigidity on faith”.

In an even more recent high profile case, a teenager fled her family in Ohio after converting to Christianity, for fear that her Muslim parents would execute a so-called honor killing on her. A Florida court ordered the teen returned to Ohio, but into foster care.

There are plenty of other cases lately where aspects of a parent’s religious beliefs or practices – or lack of same – appear to play a significant role in a parenting dispute’s outcome.

Unfortunately, the outcomes don’t always seem consistent – or logical – across the country.

Are family courts indirectly imposing their own religious values on minor children and their parents? And what of a parent’s constitutionally protected right of religious freedom?

These are the questions some are asking – and hoping the US Supreme Court will address in the near future.

Obama Big Government Backlash?

Tue, 03 Nov 2009 20:17:44 -0800

“Reports of my death have been greatly exaggerated.” - Conservatism - Republican Robert McDonnell routed Democrat Creigh Deeds in the Virginia gubernatorial race by nearly 19%. Obama won Virginia by 5 points last November. That’s a 24 percentage point swing in the Republican direction. Republican Chris Christie defeated incumbent Democrat John Corzine in the New Jersey gubernatorial race by about 5%. Obama won [...]

Fort Lauderdale Divorce Attorneys Caution Against Text Messages

Tue, 03 Nov 2009 20:00:02 -0800

When you meet with your Broward divorce lawyer, you and your spouse will be required to produce and exchange mandatory disclosure including, but not limited to, tax returns, proof of income, evidence of indebtedness and a financial affidavit. The purpose of this discovery is so that your Fort Lauderdale child custody lawyer can have an understanding of the assets, liabilities and income of you and your spouse for the calculation of alimony, child support and other equitable distribution of your assets. However, in recent years divorce attorneys in Broward and Miami-Dade have begun to request e-mail, instant messages and text messages in an effort to strengthen their case.

In this day and age, e-mail, instant messages and text messages can be used in Broward and Miami-Dade child custody, parenting plan and time-sharing cases by your marital and family lawyer. These methods of communicating digitally may also be used to learn of adulterous relationships and dissipation, destruction and waste of marital assets. Additionally, forensic computer technicians are being retained to recover deleted e-mails, instant messages and files as well as providing Fort Lauderdale and Florida divorce attorneys with information that is relevant and likely to lead to further discoverable evidence.

When you meet with your divorce lawyer in Fort Lauderdale, Hollywood, Plantation, Weston or other cities in Broward, it is important to discuss any digital and technological information that your spouse's lawyer could discover during your case. Remember, even if you have deleted this information it still may be recoverable.

"Royally Grounded' - Royal Caribbean's Earnings Fall 44%

jwalker@cruiselaw.com (Jim Walker) — Tue, 03 Nov 2009 19:22:23 -0800

The Wall Street Journal reported today that Royal Caribbean Cruises' third-quarter earnings fell 44% as ticket prices remained soft and the travel industry continued to slump. Royal Caribbean reported a third-quarter profit of a little over $230 million, down from around $412 million a year earlier.

In an article entitled "Royally Grounded," the Motley Fool put things in simpler terms, reporting that the cruise line's third quarter "was a dud." Revenue fell 15% to $1.8 billion, as "the crummy economy and (swine flu) fears kept bookings low and cheap."

And things will only get worse for Royal Caribbean.

The Wall Street Journal reports that Royal Caribbean also projected a loss for the current quarter, notwithstanding the arrival of its mega cruise ship Oasis of the Seas. The Motley Fool warns that when "Royal Caribbean is telling investors to expect a loss during the quarter in which Oasis of the Seas makes its debut, it's time to worry."

My friends at Cruise Bruise have an interesting comparison stock market chart for Royal Caribbean and some other cruise lines.

Royal Caribbean will be an interesting stock to watch as they try and sell tickets for the Oasis of the Seas and, next year, the Allure of the Seas.

Florida Attorney General Sues Expedia And Orbitz Seeking Additional Hotel Tax Revenue

JTK@floridalegalblog.org (Jeffrey Kuntz) — Tue, 03 Nov 2009 19:02:00 -0800

Today, Florida Attorney General Bill McCollum filed a lawsuit in Leon County against "Expedia, Inc., Orbitz, LLC, and Orbitz, Inc., the leading internet travel companies, asking for a declaratory judgment that the companies’ failure to remit the appropriate amount of taxes on hotel room rentals is a violation of Florida law." The quote is from the Attorney General's press release which can be found here. An article in the Palm Beach Post can be found here. The Palm Beach Post article states "For example, if the company pays $70 for a hotel room that it resells for $100 plus taxes, it is remitting taxes for the lesser amount, the state says. The lawsuit, said to be the first of its kind filed by a state, is similar to one Palm Beach County filed in July and by dozens of municipalities and counties across the nation." Other articles can be found in the Miami Herald, Tampabay.com, and the South Florida Business Journal. The complaint is below:

Complaint Against Expedia and Orbitz

"11th Circuit Obscenity Case Tests Community Standards on the Internet"

JTK@floridalegalblog.org (Jeffrey Kuntz) — Tue, 03 Nov 2009 19:01:00 -0800

How Appealing has a post and links to a story about a pending Eleventh Circuit case relating to pornography. The post is below:

"11th Circuit Obscenity Case Tests Community Standards on the Internet; Prosecutors have described the films at issue in the case as 'sadistic, masochistic and violent'": Alyson M. Palmer has this article today in the Fulton County Daily Report.

And online at Reason, Greg Beato has an essay entitled "In Defense of Extreme Pornography: Why Janet Romano and Rob Zicari have no business being in federal prison."