Second District Reverses For New Trial - Wrong Standard Applied On Motion For New Trial

In City of Tampa v. Companioni, Jr. (2D08-921), the Second District reversed the trial court's denial of the appellant's motion for new trial. The court stated:

Although a party whose objection is sustained must move for a mistrial in order to preserve the issue for appellate review, a motion for mistrial is not a prerequisite to moving for a new trial...As explained in Nigro, a trial court generally has broad discretion to setaside a jury verdict and grant a new trial. Id. When counsel's misconduct deprives a party of a fair trial and that conduct has been objected to, the trial court may order a new trial even though there was no motion for a mistrial and the error was not fundamental.
***
Here, the trial court erroneously concluded that the City had not preserved its objections to opposing counsel's misconduct. Consequently, it applied the wrong standard when it evaluated the City's motion for a new trial. Under the correct standard, the trial court would not need to consider whether counsel’s conduct was so egregious that failure to grant a new trial would undermine the public's confidence in the justice system. Rather, it only needed to consider whether opposing counsel's misconduct deprived the City of a fair trial. Having found that it did, the trial court should have granted the City's motion. Accordingly, we reverse and remand for a new trial.

*Disclaimer: Richard M. Zabak and/or GrayRobinson, P.A. were involved in the above-referenced action.

Boca Raton Is Apparently A Hot Bed For Ponzi Schemes

• William Kirschner, SunSentinel, August 31, 2009: Boca Raton man pleads guilty in Ponzi scheme;
  
  
• Michael Meisner, SunSentinel, August 29, 2009: Boca Raton man faces federal charges in Ponzi scheme, lawyer says;
  
  
• Marc J. Leder, Palm Beach Post, July 12, 2009: Sun Capital mogul, wife battle over fortune: Is it $400 million?;
  
  
• Michael Riolo, Palm Beach Post, May 21, 2009: Boca man charged with bilking $44 million out of 80 investors in Ponzi scheme;
  
  
• Scott Sullivan, Palm Beach Post, August 2, 2009: Ex-WorldCom exec out of prison, back in area

Attorney Suspended For Misrepresenting Title

"The D.C. Court of Appeals handed down a 60-day suspension today for a former Pillsbury Winthrop Shaw Pittman associate who told clients that he was senior counsel" reports the Blog of Legal Times here.

More On Case Pending Before Third DCA On Florida's Gay Adoption Ban

Last week I posted here an entry titled "Third District Hears Oral Argument On The Constitutionality of Florida Ban On Gay Adoption." The Miami Herald had an article this weekend, here, titled "Case is a serious challenge to Florida's gay-adoption ban." Law.com also has an article, here, titled "In Fla. Adoption Case, State Argues Gays Prone to Mental Illness, Breakups."

Again, thanks to How Appealing.

Paris Hilton's Suit Against Hallmark For Use Of "That's Hot" And Image On Greeting Card Can Go Forward

As discussed here by Reuters and here by the Associated Press, a three judge panel of the Ninth Circuit issued this opinion and began "We must decide whether California law allows a celebrity to sue a greeting card company for using her image and catchphrase in a birthday card without her permission." The Reuters article begins: "The celebrity and heiress Paris Hilton may pursue her lawsuit against Hallmark Cards over its use of her picture and catchphrase 'That's hot' on a greeting card, a federal appeals court ruled on Monday."

Thanks to How Appealing for the AP link and the link to the decision.

More on the Microsoft Word Injunction At the Florida IP Blog

More on the injunction entered against Microsoft at the Florida IP Blog here. Previous posts on this blog about the subject can be found here. The new post, here, includes a link to the Microsot brief, quotes of the brief highlights, and discusses the fact that HP and Dell have filed amicus briefs in favor of Microsoft. Regarding the amicus brief, the Florida IP Blog states "HP and Dell also weighed in. HP and Dell both argued that enjoining sales of Word would impose large hardships, as both of these companies distribute Word. Both companies explained their process for creating images, which are then copied onto new computes. For those computers that include enjoined copies of Word (presumably this number is large, but the amicus briefs are redacted to protect this confidential information), HP and Dell would need to create and test new images, which would cost time and money."

Florida Board of Bar Examiners To Review Social Networking Sites

As discussed in the ABA Journal and on Above the Law, the Florida Bar News reported that the Florida Board of Bar Examiners will be reviewing social networking sites such as Facebook and MySpace. The Florida Bar News Article, which can be found here, states:

The FBBE’s Character and Fitness Commission had recommended in its final report that the board consider expanding its current review of personal Web sites during background investigations “as deemed necessary” and determine whether a question should be added to The Florida Bar application to require that all such sites be listed and access granted to the board.

Prejudgment Interest Due To Insured From Date Payment Was Due

In North Point Insurance Company v. Thomas (3D08-2245), the Third District again held that "The general rule is that interest on a loss payable under an insurance policy is recoverable from the date payment is due pursuant to the provisions of that policy." Further, "Once the insurer denies coverage, it is deemed to have waived the policy provision for deferred payment and, should it pay, becomes responsible for prejudgment interest from the date of loss. "[I]f the insurer denies liability, interest begins to run from the date of the loss, even where the policy provides for payment at a later date."

"10th Cir.: Court reporters do not own a copyright in the transcripts that they prepare"

The Exclusive Rights Blog and the ABA Journal have a story about a recent Tenth Circuit Decision relating to the right of a court reporter to charge a fee for copying a transcript obtained from an independent source. The decision can be found here.

The Exclusive Right Blog stated:

10th Cir.: Court reporters do not own a copyright in the transcripts that they prepare

Posted by admin on 26 August 2009 – 9:00 am

Filed under Noncopyrightable Material

United Transp. Union Local 1745 v. City Of Albuquerque, 2009 WL 2573815 (10th Cir. 2009)

There was an interesting little unpublished decision issued by the Tenth Circuit (McConnell, Tymkovich, O’Brien writing) this past Friday. An attorney represented a group of plaintiffs in a suit against the City of Albuquerque. The district court appointed a Special Master to conduct hearings, for which the City of Albuquerque ordered and paid for transcripts. The attorney for the plaintiff used the Inspection of Public Records Act, N.M. Stat. § 14-2-1 to 14-2-12, to obtain copies of the transcripts directly from the City, instead of paying the court reporter a higher fee.

The City and the court reporter complained to the district court and, after the case settled, the district court ordered the plaintiff’s counsel to pay the reporter a little over four thousand dollars. The attorney for the plaintiffs appealed in his individual capacity. The 10th Circuit overturned finding that to require the counsel to pay the fee would effectively give the court reporter a copyright in his transcripts:

We have found no authority to justify requiring plaintiffs, and derivatively their attorney . . . to pay a fee to a court reporter for a transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means. On the contrary, both broad principle and particular holdings undermine the notion that court reporters may demand a “missed fee” whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made—and was paid for making—for someone else.

In broad terms, [the court reporter's] fee claim rests on the tacit premise that court reporters in some legal sense own the content of the transcripts they prepare, such that they are entitled to remuneration whenever a copy of a transcript is made (even if they played no role in making the copy). To accept this premise would effectively give court reporters a “copyright” in a mere transcription of others’ statements, contrary to black letter copyright law. See 2 William F. Patry, Patry on Copyright, Ch. 4 Noncopyrightable Material, § 4.88 (Updated Sept. 2008) (court reporters are not “authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings”).

And there is a line of cases holding that transcripts independently accessed (such as by simply requesting the case file from the court clerk) may be viewed and copied as an alternative to purchasing a copy from the court reporter. See Kinan v. City of Boston, 112 F.R.D. 206, 208 (D. Mass. 1986); Hawley v. Hall, 131 F.R.D. 578, 583 (D. Nev. 1990); C.P.C. P’ship Bardot Plastics, Inc. v. P.T.R., Inc., 96 F.R.D. 184, 185 (E.D. Pa. 1982); see also Stanley v. Henderson, 590 F.2d 752, 753 (8th Cir. 1979) (noting counsel may obtain copies of appeal transcript from clerk); Schroer v. United States, 250 F.R.D. 531, 535-37 (D. Colo. 2008) (rejecting, under post-2000 Rules (see supra note 1), party’s effort to require immediate filing of transcript with clerk to enable informal copying, not because copying is improper but because party failed to justify burdening the court with filing of as-yet-unused transcripts).

Order Is Not Rendered Until Filed With The Clerk

In SIEGERS SEED COMPANY v. WILLIAMS FARM PARTNERSHIP (1D08-3920), the First District dismissed a petition for certiorari because the order had not yet been rendered and is, therefore, not appealable. The court stated:

The parties do not dispute that neither the Commissioner’s letter nor the Council’s recommendation was filed with the agency clerk. An agency does not render a final order until it is filed with the agency clerk. See Hill v. Div. of Ret., 687 So. 2d 1376 (Fla. 1st DCA 1997); Gallo v. Florida Comm’n on Human Relations, 867 So. 2d 1273 (Fla. 1st DCA 2004); See also Fla. R. App. P. 9.020(h)("An order is rendered when a signed, written order is filed with the clerk of the lower tribunal."). An order must be rendered in order to invoke appellate jurisdiction, United Water Fla., Inc. v. Florida Pub. Serv. Comm’n, 728 So. 2d 1250 (Fla. 1st DCA 1999), and to invoke this court’s original jurisdiction. See Fla. R. App. P. 9.100(c) (providing that a petition for certiorari must be filed within 30 days of rendition of the order to be reviewed).

Third Circuit Strikes Delaware's Proposed Gambling Law

The decision can be found here. Articles can be found: Philadelphia Inquirer, Sporting News, Los Angeles Times, the USA Today and the Associated Press. Judge McKee issued the Third Circuit's short opinion which stated:

We determine that there is no factual issue with respect to the merits in this case. We conclude, as a matter of law, that the Delaware sports lottery, planned to commence September 1, 2009, pursuant to the authority granted in 29 Del. Code § 4805, violates the Professional and Amateur Sports Protection Act, 28 U.S.C. §§ 3701 et seq., and is not covered by the exemption in 28 U.S.C. § 3704(a)(1). Accordingly, there is no need to address the issue of irreparable harm. An opinion of this Court will follow.

Third District Hears Oral Argument On The Constitutionality of Florida Ban On Gay Adoption

The Sun-Sentinel has an article stating that the Third District heard oral argument today in a challenge to Florida's gay adoption law. The Sun-Sentinel article begins: "A Florida appeals court is being urged to affirm a judge's ruling that the state's strict ban on adoptions by gay people is unconstitutional. Attorneys for parent Martin Gill and his two children argued today in Miami there's no rational basis to exclude gay people. Gill and his partner have adopted two young brothers." The case before the Third District was discussed in the Miami Herald here, at CBS News here and at WSVN.com here.

Presumably, the Second District's decision that it is a violation of the U.S. Constitution to refuse to enforce a same-sex couple adoption - gay adoption - recognized by another state was discussed. The Second District's decision was previously discussed here and here.

Palm Beach County Circuit Court Judge Upholds Part of U.S. Sugar Everglades Restoration Deal

Both the Sun-Sentinel and the Palm Beach Post have articles relating to Palm Beach County Circuit Court Judge Donald Hafele's ruling today relating to the states Everglades restoration deal with U.S. Sugar. A statement by Governor Crist can be found here. Other articles can be found at the AP, the Miami Herald, the South Florida Business Journal, and again at the Miami Herald.

The Sun-Sentinel article begins:

A judge's ruling Wednesday kept alive Gov. Charlie Crist's bid for a half-billion-dollar Everglades restoration land deal with U.S. Sugar Corp.

But Palm Beach County Circuit Court Judge Donald Hafele struck down the proposal to borrow as much as $2.2 billion for additional land buys from U.S. Sugar and to help pay for construction of reservoirs and treatment areas that would be built on the farmland.

The ruling allows the South Florida Water Management District to move forward with its $536 million plan to buy an initial 73,000 acres from U.S. Sugar. However, the ruling also calls into question whether Crist and the district, which leads Everglades restoration, will be able to buy an additional 107,000 acres from U.S. Sugar as proposed.

Government Deliberately Overreached To Unconstitutionally Seize Major League Baseball Steroid Tests

The Ninth Circuit released its opinion today relating to the governments seizure of Major League Baseball's steroid tests. The en banc decision can be found here. Chief Judge Alex Kozinski wrote the majority decision; Judge Callahan wrote an opinion concurring in part and dissenting in part and which Judge Ikuta joined; Judge Bea wrote an opinion concurring in part and dissenting in part; Judge Ikuta wrote a dissent which Judge Callahan joined.

Quoting the decision, the ABA Journal states in an article that can be found here that it was "'an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause,' they seized positive test results for 100 players in a 2004 raid." An article in the New York Times can be found here, CNN here, Reuters here, and the San Francisco Chronicle here. The Major League Baseball Players Association was pleased with the decision [see here]. However, David Ortiz, whose name was leaked as a steroid user as a result of the unconstitutional search, was not consoled [see here].

The court made a number of interesting points.

The court agreed with the opinion from the district court that stated "[t]he government callously disregarded the affected players’ constitutional rights.”..."We affirm Judge Mahan on an alternative ground as well: When, as here, the government comes into possession of evidence by circumventing or willfully disregarding limitations in a search warrant, it must not be allowed to benefit from its own wrongdoing by retaining the wrongfully obtained evidence or any fruits thereof."

As to the government's strategy of moving from district court to district court without disclosing to each court the actions in the other district court, the Ninth Circuit stated: "In doing so, we emphasize that, while the government is free to pursue warrants, subpoenas and other investigatory tools, and may do so in whichever judicial district is appropriate in light of the location of the information sought, it must fully disclose to each judicial officer prior efforts in other judicial fora to obtain the same or related information, and what those efforts have achieved. This is no more than we require of, for example, a prisoner seeking to file a second or successive habeas petition. More than one of the judges involved in this case below commented that they felt misled or manipulated by the government’s apparent strategy of moving from district to district and judicial officer to judicial officer in pursuit of the same information, and without fully disclosing its efforts elsewhere. The cause of justice will best be served if such judicial reactions to the government’s conduct can be avoided in the future.

As to the general purpose of the opinion, the court stated: "Throughout, we take the opportunity to guide our district and magistrate judges in the proper administration of search warrants and grand jury subpoenas for electronically stored information, so as to strike a proper balance between the government’s legitimate interest in law enforcement and the people’s right to privacy and property in their papers and effects, as guaranteed by the Fourth Amendment."

Regarding the seizure of electronically stored information: "We accept the reality that such over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. This calls for greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect. In general, we adopt Tamura’s solution to the problem of necessary over-seizing of evidence: When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion" and which the court summarized in its conclusion."

Third District Affirms Injunction Against Republican Party Relating To Its Refusal To Seat Certain Individuals

In The Republican Party of Miami-Dade County and Republican Party of Florida v. Davis (3D08-3126), the Third District affirmed the trial court's entry of a temporary injunction requiring "the Party to seat 19 individuals (the plaintiffs below, appellees here) as Miami-Dade Executive Committee members. The Party had declined to recognize the appellees as Executive Committee members because of their failure to file a Party loyalty oath before the June 20, 2008, qualifying deadline."

Judge Salter wrote the 15 page opinion which Chief Judge Ramirez joined. Judge Cope specially concurred in a 14 page opinion stating he could not join the opinion but agrees with the result. The majority opinion states:

We conclude that the Party retained an express statutory right to "provide for the selection of its … county executive committee in such manner as it deems proper," but that it (a) failed to make the new forms sufficiently accessible to prospective candidates to comport with the Election Code and (b) failed to bring an action to enforce the new requirement before the election. Accordingly, we affirm the injunction below.

***

To summarize this analysis of the two statutes as they apply to the Party’s new oath and deadline, different statutory provisions within the Election Code should be construed together to harmonize the statutes, to give effect to the Legislature’s intent, and to avoid rendering one of the two provisions meaningless. Fla. Dep’t of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005). Further, the statute applying specifically to political party executive committee candidates should control in the event of a conflict with the general statute applying to candidates of every stripe—for state constitutional office, for state and federal elected office, and for political party committee positions. See State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1073 (Fla. 2006).

Harmonizing the statutes as we must, we conclude that the Party has the right and the authority to require its own form of loyalty oath as a condition of eligibility to seek election to a committee membership position, and the right and authority to require receipt of that oath (as a party membership rule) before the election. That is not, however, the end of the analysis.

***

Here, the appellees did not refuse to execute the Party’s new form of oath; they executed that oath (or in a few cases, offered to do so) promptly after learning that it was required. The Party does not argue, and did not prove, that the appellees failed to file the oath with the Party office before the qualifying deadline because they were attempting to avoid or circumvent the requirement. Rather, the record establishes that while existing Party officials and executive committee members were informed of the additional requirement, no mass mailing or website bulletin disseminated the notice and form to others.

The Party’s decision not to challenge the plaintiffs before the election is also a fatal flaw in its case below. The Party was fully aware of the appellees’ alleged non-compliance before the election, but did not attempt to have the allegedly-ineligible names stricken from the ballot. Florida law recognizes an estoppel in a case such as this, in which the alleged irregularities were known before the ballots were cast and results announced.

***

COPE, J. (specially concurring).

I agree on the result but cannot join the majority opinion. Respectfully, the majority opinion’s statutory analysis is incorrect, and contravenes well-settled Florida precedent....

En Banc First District On Proving A Claim Of Boundary By Acquiescence

In Hearn Properties, Inc. v. Cruce (1D07-1538) (en banc), the First District reminded that "the supreme court’s decisions, not our own, control, and must be given effect...Because the supreme court decisions we now follow antedate the First District decisions that we are constrained to disavow, proceeding en banc is necessary, even though we are receding from our decisions only in order to give effect to binding decisions handed down by a higher court."

Specifically relating to the dispute at issue, the court stated:

The trial court entered judgment against Hearn and quieted title in Mr. Cruce and the other heirs, ruling that the evidence established each of the three elements of boundary by acquiescence:

(1) Uncertainty or dispute as to the location of the true boundary. (2) location of a boundary line by the parties. (3) Acquiescence in such location for the prescriptive period.

Shaw v. Williams, 50 So. 2d 125, 126 (Fla. 1950). But the trial court found that Mr. Cruce had offered no "direct evidence" of any uncertainty or dispute as to the location of the boundary—the only element Hearn had contested. Instead, relying on cases we had decided, the trial court ruled that "the placement and duration of the fence itself, absent another explanation for its specific location, is sufficient evidence of the requisite doubt or uncertainty to establish a boundary by acquiescence."

In any event, our supreme court has expressly held that, in proving a claim of boundary by acquiescence, the existence of a fence is alone insufficient to establish any dispute or uncertainty as to the location of the boundary.

Amount of Fee Award Reversed Because Not Supported By Substantial Competent Evidence

In Trovato v. Trovato (4D08-3627), the Fourth District affirmed an award of attorneys fees, however, reversed because the amount of the award was not "supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.

Third District: Temporary Change of Venue for Oral Arguments

The Third District posted the following on the court's website:

Temporary Change of Venue for Oral Arguments

Beginning August 25, 2009, oral arguments will be held at Florida International University Law School until further notice of this Court. Click here for a map of the law school location and parking areas.

Mediation Settlement Agreement Must Be Signed By Client - Not Attorney - Or It Is Not Enforceable

In Dean v. Rutherford Mulhall, P.A. (4D08-2267), the Fourth District held a mediation settlement agreement - signed by the attorneys - is not enforceable and cannot be reported to the Court unless signed by the actual clients. The court held:

Florida Rule of Civil Procedure 1.730(b), regarding completion of mediation, states that “[n]o agreement under this rule shall be reported to the court” unless, inter alia, the agreement is “reduced to writing and signed by the parties and their counsel, if any.” Fla. R. Civ. P. 1.730(b) (2008). Florida courts consistently have held that a supposed settlement agreement resulting from mediation cannot be enforced absent the signatures of all parties.

***

Similarly, in the present case, Dean’s attorney signed the purported Settlement Agreement, as did representatives of Rutherford Mulhall, but Dean did not sign. See id. Because Dean did not sign the Settlement Agreement, under the rule articulated in Gordon, the Settlement Agreement did not bind Dean.

***

The record shows that the trial court relied on a Settlement Agreement that Dean did not sign in ordering him to pay $32,000 to Rutherford Mulhall. Florida law requires that a party sign a settlement agreement before it can be enforced against him. E.g., Fla. R. Civ. P. 1.730(b); Gordon, 641 So. 2d at 517. Thus, on the face of the record, the trial court committed reversible error. See Applegate, 377 So. 2d at 1152.

Fourth District Holds Homestead Interest Sufficient To Require TILA Notice Even Without Property Ownership Interest

In Gancedo v. Del Carpio (4D08-1735), the Fourth District granted a motion for rehearing, withdrew its prior decision and released this decision. The issue was whether the wife of a debtor was entitled to disclosures under the federal Truth in Lending Act (TILA) even though she was not an owner of the property. The court held:

The issue in this case is whether Sylvia Del Carpio is a “consumer” entitled to disclosures and, failing proper disclosures, an extended cancellation period under Regulation Z.

***

Sylvia concedes that consumer credit was not extended to her, as she was not a signatory to the note. She makes clear that the loan was made only to her husband. Nevertheless, she asserts that she had an “ownership interest” in the home, which would bring her within the definition of the term “consumer.” The record is clear that the Del Carpios were married at the time that the subject mortgage loan transaction was entered into. As such, Sylvia had homestead rights in the property. See Art. X, § 4(c), Fla. Const. We conclude that Sylvia’s homestead rights in the property constituted an “ownership interest” for purposes of TILA. See Parker v. Potter, 2008 WL 4539432 (M.D. Fla. Oct. 8, 2008).

Because Sylvia had an ownership interest in the home at the time the mortgage was executed, she was a “consumer” entitled to TILA disclosures and the extended cancellation period for TILA non-disclosure. The trial court properly granted her motion for summary judgment.

Fourth District Interprets § 718.302(1), Fla. Stat

In Comcast of Florida, L.P. v. L’Ambiance Beach Condominium Association, Inc. (4D08-2326), the Fourth District found "no error and affirm, but write to address the application of section 718.302."

Following the incorporation of the homeowner’s association and the developer’s hand over, the unit owners voted to terminate the agreement [with Comcast]. The Association’s counsel sent Comcast written notice of termination in accordance with section 718.302. Two additional letters were sent, notifying Comcast of the Association’s intent to terminate the agreement and addenda and instructing Comcast to open its distribution lock boxes.

Comcast brought an action for declaratory relief, breach of the agreement and addenda, trespass, and permanent injunctive relief. Before a hearing could be held on Comcast’s Emergency Motion for Temporary Injunction, the Association hired a locksmith to drill holes in Comcast’s distribution lock boxes to allow another provider access to Comcast’s cables. As a result, all of the residential units were switched from Comcast to another provider. Comcast’s wires remained in place in the event a unit owner desired to maintain service with Comcast.

***

Comcast argues that the court erred in applying section 718.302 to the agreement and addenda. Specifically, Comcast argues a cable television service contract is not an agreement “that provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium.” § 718.302(1), Fla. Stat.

***

Comcast installed wires and lock boxes to provide cable television services to all the unit owners. By virtue of the agreement, Comcast operated and maintained the system that it installed. Further, section 718.115(1)(d), Fla. Stat. (2002), provides that the cost of cable television service obtained pursuant to a bulk rate contract is deemed a common expense.

***

Because the agreement provided for the cable television service for all unit owners, the cost was part of the monthly maintenance fee, and the service provider was required to service and maintain the cable television, we conclude that the agreement was one for the “operation, maintenance, or management” of the cable television services. § 718.302(1), Fla. Stat. Therefore section 718.302 applies to the agreement and addenda.

Federal Reserve Ordered To Disclose Names Of Banks Receiving Emergency Loans

As reported here by Bloomberg.com, the Chief Judge in the Southern District of New York ordered the Federal Reserve Bank to disclose information about emergency loans given to banks. The order can be found here. The Federal Reserve had argued disclosing the information would potentially create a run on the bank receiving the emergency loan. The Bloomberg article begins:

The Federal Reserve must for the first time identify the companies in its emergency lending programs after losing a Freedom of Information Act lawsuit.

Manhattan Chief U.S. District Judge Loretta Preska ruled against the central bank yesterday, rejecting the argument that loan records aren’t covered by the law because their disclosure would harm borrowers’ competitive positions....

The case is Bloomberg LP v. Board of Governors of the Federal Reserve System, 08-CV-9595, U.S. District Court, Southern District of New York (Manhattan).

Other articles can be found at the Wall Street Journal, the Washington Post, the LA Times and Reuters. Each of the articles indicate that the Federal Reserve indicated it is still determining whether it will appeal the decision to the Second Circuit.

Legal Rebels Project - Remaking the Legal Profession

The ABA Journal unveiled its Legal Rebels Project today which can be found here. The "about" page for the project begins:

Who's a Legal Rebel?

In these times of great economic chaos lies great opportunity. The legal profession is not just struggling through a recession, but also undergoing a structural break with the past. There is a growing consensus that the profession that emerges from the recession will be different in fundamental ways from the one that entered it.

Dozens of lawyers nationwide aren't waiting for change. Day by day, they're remaking their corners of the profession. These mavericks are finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of
lawyers. Most are leveraging the power of the Internet to help them work better, faster and different.

The Legal Rebels project will profile these innovators and describe the changes they are making. It will tell their stories in the ABA Journal, on this website and through a variety of social media channels using text, pictures, audio and video.

You can read and sign the Legal Rebels Manifesto here. Today, the Legal Rebels Project announced the first seven rebels whose profiles can be found by clicking on the links below:

• Laurel Edgeworth: The Matchmaker
• Patrick Lamb: A Betting Man
• Denise Annunciata: Paralegal Power
• David Van Zandt: Purple Praise
• Richard Granat: Internet Obsessive
• Rick Palmore: Demanding Diversity

If you would like to nominate a legal rebel, click here. Finally, you can connect to the Legal Rebel Project through almost any social networking tool by clicking here and can see the latest twitter posts about the project here.

"Insurer Waived Its Right To Appraisal. Why Did It Wait?"

The Law and Insurance blog has a post that can be found here and begins:

Insurer Waived Its Right To Appraisal. Why Did It Wait?

Financial Management Internat'l, Inc. d/b/a/ The Summit Sports Club v Mt. Hawley Ins. Co., #M-08-267 (S.D. Tex. Aug. 17, 2009).

The court in this case denied Mt. Hawley's Motion to Compel Appraisal because it delayed until a year into the coverage lawsuit. The insurance dispute is over water damage at the sports club caused by a burst pipe. The insured brought the lawsuit alleging that Mt. Hawley refused to pay for the damage. We are not told any more than that about the coverage issues. We are told that the insurer removed the state court case to federal case, answered complaints, attended hearings, participated in discovery and mediation, and a year into the case, sought to invoke its right to appraisal...

Eleventh Circuit Affirms Sanction Order Relating to Improper Solicitation of Clients

In Hamm et al v. TBC Corporation (09-11221), the Eleventh Circuit affirmed the district court's sanction order. The court stated:

A few months after the case was filed, Tire Kingdom filed a motion seeking court-imposed sanctions against SLG for direct solicitation of putative class members, in violation of Southern District of Florida Local Rule 11.1.C and Florida Rule of Professional Conduct 4-7.4(a). In the motion, Tire Kingdom alleged that SLG impermissibly solicited at least three then current Tire Kingdom employees – Christopher Johnson, Nicholas Kilgore, and Shane Cook – in an attempt to convince them to join the pending lawsuit and have SLG represent them.

***

“[A] federal court has the power to control admission to its bar and to discipline attorneys who appear before it.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). A court’s decision as to “whether a party or lawyer’s actions merit imposition of sanctions is heavily dependent on the court’s firsthand knowledge, experience, and observation.” Harris, 97 F.3d at 506. The Rules Regulating the Florida Bar (“Florida Rules”) contain an anti-solicitation provision which mandates that “a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.” R. Reg. Fla. Bar 4-7.4(a). The Southern District of Florida Local Rules (“Local Rules”) subject attorneys to discipline for violating the Local Rules or Florida Rules. S.D. Fla. L. R. 11.1.C. Such disciplinary measures may include disbarment, monetary sanctions, or “any other sanction the Court may deem appropriate.” S.D. Fla. R. I.B.

***

The district court expressly identified the purposes of the sanctions as “ensuring that counsel acts ethically in this litigation and . . . sanctioning The Shavitz Law Group for unethically soliciting clients.” Hamm v. TBC Corp., 597 F. Supp. 2d 1338, 1340 (S.D. Fla. 2009) (emphasis added). There is no evidence indicating the district court intended for these sanctions to apply to future cases, or that the misconduct in this case would impact suits against defendants other than Tire Kingdom.

***

In the instant case, an evidentiary hearing was held, the report and recommendation contained detailed factual findings, and the magistrate judge discussed the Gulf Oil opinion when determining the appropriate form of sanctions. Under these circumstances, the district court did not abuse its discretion by prohibiting SLG from representing or collecting fees from opt-in plaintiffs, other than those that were co-workers of the named plaintiffs.

Potential Dormant Commerce Clause Case Before Supreme Court

The SCOTUS Blog has an interesting post about a petition for cert recently filed in the Supreme Court. The post, titled "Tracking new cases: A test of 'protectionism'" can be found here. The article states, among other things:

Those are variations on Commerce Clause themes that are now being tested in the Supreme Court, in a new case filed last Friday. The petition — in Brown, et al., v. Hovatter, et al. – is here; it has not yet been assigned a docket number. It challenges a Fourth Circuit Court ruling last March; that decision can be found here.

If the Court were to hear the case, it could provide a significant new review of the scope of the so-called “dormant Commerce Clause” — explicitly, whether that Clause’s scope protects the movement of investment capital across state lines, and whether it protects the choice of a particular structure or form for doing business. Those issues arise in a test of a Maryland law regulating the funeral business, a law that a federal judge who struck down the law (only to be reversed on appeal) called “the most blatantly anti-competitive state funeral home regulation in the naton.”

Last Week: Injuntion Preventing Sales Of Microsoft Word

There has been a lot of discussion about the recent order from a federal district court judge in Texas relating to future sales of Microsoft Word.

My colleague Woodrow Pollack at The Florida IP Blog has followed it since the order was entered in three different posts.

The first, titled "Microsoft Word + custom XML = no more?" can be found here and states:

Tuesday, Judge Davis of the Eastern District of Texas entered a permanent injunction against Microsoft, enjoining the company from:

1. selling, offering to sell, and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML;

2. using any Infringing and Future Word Products to open an XML file containing custom XML;

3. instructing or encouraging anyone to use any Infringing and Future Word Products to open an XML file containing custom XML;

4. providing support or assistance to anyone that describes how to use any infringing and Future Word Products to open an XML file containing custom XML; and

5. testing, demonstrating, or marketing the ability of the Infringing and Future Word Products to open an XML file containing custom XML.

The Court also entered final judgment, with damages:

• $200 million for infringement
• $40 million for willful infringement
• ~$11.8 million for post-verdict damages
• ~$38 million in pre-judgment interest
• (for a total of ~$290 million)

The second, titled "Microsoft files emergency motion to stay execution of judgment in Texas" can be found here.

The third, titled "Another quick update on Microsoft Word order in Texas -- Parties agree Microsoft doesn't have to post a bond", can be found here.

As discussed here, the Federal Circuit has ordered expedited briefing for Microsoft's appeal. Other articles can be found here, here, here, here and here.

Sad News: Circuit Judge P. Kevin Davey, 60, dies

An article in the Tallahassee Democrat can be found here, at the WCTV TV website here and at the WTXL TV website here. The Tallahassee Democrat article quotes the Chief Judge and states:

Chief Judge Charles Francis called Davey's death "both unexpected and sad."

"As one of our longest-serving judges, his hard work and cooperative spirit will be missed by all of us, and the citizens of the 2nd Judicial Circuit have lost the services of one of its finest public servants," he said.

"Fla. Lawyer Aims to Build 'Safari Law' Practice, Bag Big Game"

The Legal Blog Watch has the following stoy about a Florida attorney:

Fla. Lawyer Aims to Build 'Safari Law' Practice, Bag Big Game

On the hunt for a new practice area? Florida lawyer Ethan Andrew Way is trying to blaze a trail in "safari law," according to the Tallahasee Democrat. Way came up with the idea for his new specialization after learning that a friend with whom he'd hunted was having trouble getting his hunting trophies home from Namibia. So Way, who has 11 years of experience in less exotic practice areas like family law, criminal law and bankruptcy, got to thinking where a hunter could find help with such a legal problem. He ran an Internet search on "safari law" and, finding no specialists, bought the domain name and started handling safari-related issues and disputes.

So, what types of issues does safari law encompass? Way says that he often assists hunters with getting permits required for transporting firearms and dealing with regulations related to animal trophies. At this time, safari law is just a small part of Way's practice -- less than five percent. But Way still aspires to grow his the practice and eventually spend several months a year overseas, hunting and working on safari law cases.

Middle District Of Florida Sanctions Insured For Discovery Violations

The Electronic Discovery Law blog writes about a recent Middle District of Florida decision [here] sanctioning an insured for discovery violations. The post, which can be found here, states:

For Discovery Violations, Court Sanctions Plaintiff and Counsel... Again Posted on

August 21, 2009 by K&L Gates

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754
(M.D. Fla. Aug. 3, 2009)

In this case, plaintiff Bray & Gillespie Management, LLC (“B&G”) sought to recover payment for, among other things, business interruption losses allegedly suffered as the result of damage from Hurricane Jeanne in 2004. Defendant, Lexington Insurance Company (“Lexington”), refused payment for several reasons, including its belief that the damages alleged were caused by two prior hurricanes and that the hotel at issue was not open at the relevant time. In this opinion, one of several addressing discovery issues in this ongoing litigation, the court addressed Lexington’s motion for sanctions following numerous discovery violations on the part of B&G and its counsel. The alleged violations revolved around the untimely production of “room folios” – evidence which would have shown who, if anyone, had stayed at the hotel following Hurricane Jeanne, and thus, the extent of the business interruption losses sustained. Finding in favor of Lexington, the court prohibited B&G from presenting evidence in support of their claim for business interruption losses, struck the portions of their expert’s report addressing that claim, and ordered B&G and counsel jointly and severally liable for Lexington’s reasonable expenses.

While the details are numerous, the crux of Lexington’s motion for sanctions was B&G’s failure to adequately and timely respond to discovery, including its failure to timely and diligently search for and produce requested room folios. Moreover, as established in the court’s opinion, plaintiff’s counsel acted in a “deplorable” manner by making misrepresentations regarding the completeness of plaintiff’s production and by purposefully delaying the production of the room folios in order to obtain strategic advantage during the deposition of Lexington’s expert witness, even in the face of numerous court orders directing production of the information withheld, among other things.

Specifically, the court’s opinion established that:

• B&G failed to search for the room folios until more than a year after the initial request, despite two court orders directing their production;

• B&G’s counsel failed to require B&G to search for room folios, even after learning at deposition that no search had been undertaken;

•B&G’s initial search for room folios was incomplete and counsel for B&G failed to verify the completeness of the search;

• B&G’s counsel made misrepresentations to the court regarding the diligence of B&G’s search efforts and the completeness or production;

• B&G’s counsel directed additional searching for room folios only after determining the folios may be helpful to B&G’s position; and

• B&G’s counsel deliberately withheld supplemental production of additional room folios until after the deadline for supplementation (set by the court) in order to gain strategic advantage at deposition, despite two outstanding court orders to produce, among other things.

After determining that B&G and its attorneys’ behavior was neither substantially justified nor harmless, the court turned to the issue of appropriate sanctions pursuant to Fed. R. Civ. P. 37, in conjunction with rules 16 and 26. The court concluded that the appropriate sanction was to prohibit B&G from presenting evidence in support of its claim for business interruption losses and therefore, to also strike portions of its expert’s report regarding the same.

The court also prevented B&G’s introduction of or reliance upon the information in the room folios. Regarding B&G’s argument that it should not be sanctioned for decisions made by its lawyers, the court stated:

The affidavits of Martin, Berringer, and Beaudine show that B & G's in-house counsel, Bruce DelValle, and legal assistant Katherine Martin made decisions regarding, and personally participated in, the conduct which resulted in the late production of Treasure Island room folios to Lexington. Moreover, I warned B & G and its in-house counsel repeatedly and unequivocally that B & G could not blame the conduct of its outside counsel to avoid discovery sanctions. See, e.g., Doc. No. 460 at 43. Yet, the pattern of refusal to comply with Court orders has continued. Because B & G is responsible for the conduct of its counsel, sanctions against it are warranted. [Citations omitted.]…Moreover, sanctions for discovery violations must also address "the institutional values that Rule 37 is designed to protect. Rule 37 sanctions are imposed not only to prevent unfair prejudice to the litigants but also to insure the integrity of the discovery process." Aztec Steel Co., 691 F.2d at 482. If B & G is permitted to hide behind its chosen counsel to avoid discovery sanctions, " 'other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other District Courts.' " Id. (quoting Nat'l Hockey League, 427 U.S. at 643).

The court also determined that Lexington was “entitled to be compensated for the reasonable expenses it had incurred, including expert’s and attorney’s fees and costs” and found B&G jointly and severally liable with its counsel to pay those expenses. Specifically addressing the conduct of counsel, the court stated:

Both Attorney Berringer and Attorney Beaudine advised B & G regarding production of the Treasure Island room folios. Attorney Berringer informed the Court that B & G was conducting another "due diligence" search for documents, including ESI, that Lexington requested and I ordered to be produced. Yet, even after attending a deposition in which B & G's corporate representative revealed that IQWare had not been searched for requested room folios, Attorney Berringer did not require a prompt search for and production of the room folios.

Similarly, at the close of the reopened sanctions hearing, Attorney Beaudine represented to the Court that Lexington already had all documents regarding Treasure Island, without determining that, in fact, B & G had made all reasonable efforts to produce all documents that Lexington requested in its RFPs and that the Court had ordered be produced. Attorney Beaudine did not take steps to ensure that B & G searched thoroughly for all room folios in its possession before the expiration of the period for supplementing responses to written discovery requests established by Court order. Finally, in flagrant disregard of the January 7 Order, Attorney Beaudine deliberately and deceptively withheld from Lexington 138 Treasure Island room folios he received from B & G on May 4, 2009, until May 18, 2009, after the close of all discovery. Only after Lexington filed the instant motion did Beaudine attempt in his May 29, 2009, letter to concoct a cover story to partially, but not fully, explain his deceptive actions.

A copy of the full opinion is available here.

Legal News

Palm Beach Post:

• Screeching to a halt?: Ticketed drivers statewide join class action lawsuit against red light traffic cameras;
• Palm Beacher Jaffe files motions to dismiss government, trustee lawsuits;
• Court panel lets immigrant rights case proceed;
• Oprah and Dr. Oz sue over false endorsements;
• Retired players sue NFL for use of identities;
• Ore. court rejects car salesman in ethics appeal

SunSentinel

• 2 employees charged with stealing from Boca Raton company;
• Fort Lauderdale man given life sentence for killing father;
• Fired employee sues pharmacy connected to death of polo horses;
• Broward judge rules Breathalyzer results invalid in bellwether DUI case;
• State cracking down on "Move Over" law

Broward County Judge Suppresses Intoxilyzer Test Due To Fraudulent Practices and Systematic Intentional Destruction of Evidence By FDLE Inspector

The JAA Blog posted an order entered by Broward County Circuit Court Judge Seidman. It is also discussed in the Sun Sentinel here. The JAA Blog stated here that: "Judge Lee Seidman issued a strongly worded order this morning granting defense motions to suppress breath test results ("The Veiga Motion"). He is the first judge to rule of the roughly fifteen who sat en banc to hear the issues (twelve county court and Gold, Murphy and Towbin-Singer from the Circuit."

The JAA Blog posted highlights from the order, which is hosted by the JAA Blog here, including:

Highlights from the order: "The Court finds that the law pertaining to the CMI Intoxilyzer 8000 used in this case was not substantially complied with. Moreover and certainly more troubling is the further finding that fraudulent practices and the systemic intentional destruction of evidence occurred regarding these state regulated breath alcohol testing machines ...No forensic computerized machine designed and used by humans to provide their government with evidence in a criminal proceeding against its citizens can ever overcome or replace the integrity of its human caretakers and operators ..."

Appeal Dismissed "For Appellant's Failure To Obey The Rules And Orders Of This Court"

In Green v. Green (1D08-5422), the First District issued a very short opinion stating:

This appeal is hereby dismissed for appellant’s failure to obey the rules and orders of this court. Appellee’s motion for attorney’s fees on appeal is granted. The cause is remanded to the trial court to determine a reasonable fee.

Second DCA Discusses Attacking The Credibility Of A Witness And Section 90.610(1), Florida Statutes

In Atis v. State (2D07-5924), the Second District discussed the ability to question a witness about a prior felony. The court stated:

The "crimes of dishonesty" category is used to allow cross-examination about the commission of crimes that typically are misdemeanors.

Section 90.610(1), Florida Statutes (2007), provides:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment. . . .

Under Florida law, all crimes "punishable by death or imprisonment in excess of 1 year" are classified as felonies. See § 775.08(1), Fla. Stat. (2007). Although it is plausible that the phrase "or if the crime involved dishonesty or a false statement regardless of the punishment" could be interpreted to include felonies already described in the preceding phrase, it is well established that these two phrases describe two distinct groups of offenses that do not overlap. As Justice Pariente explained when she was a member of the Fourth District, "The effect of the subsection, as amended by the legislature and as adopted by the supreme court, is to allow impeachment for all felonies, but restrict impeachment to only those misdemeanors involving dishonesty or false statement." Bobb v. State, 647 So. 2d 881, 884 (Fla. 4th DCA 1994). As such, when a witness has been convicted of a felony, the other party may not inquire further into whether the felony involved dishonesty or false statement because doing so "would have the impermissible and unintended effect of elevating certain felonies over others." Id.

Conviction Reversed Due To Court Reporter's Equipment Failure

In Johnson v. State (2D08-809), the Second District reversed the "judgment and sentences for trafficking in cocaine and conspiracy to traffic in cocaine." The court reporter was unable to provide a record of the trial due to equipment failure. Therefore, the court stated: "Having now reviewed and reconsidered the various motions, responses, orders, and status reports that have been filed in an attempt to reconstruct the record, this court concludes that reconstruction of an adequate record for meaningful appellate review is not possible. See Green v. State, 855 So. 2d 687 (Fla. 2d DCA 2003); Berube v. State, 771 So. 2d 1263 (Fla. 2d DCA 2000); Thomas v. State, 828 So. 2d 456 (Fla. 4th DCA 2002)."

In The Second District: "The Enforceability Of The Remedial Limitations May Be Considered By The Arbitrator"

In ManorCare Health Services, Inc., et al v. Stiehl (2D08-2351), the Second District reversed the trial court's denial of a motion to compel arbitration. Judge Altenbernd specially concurred based on controlling Second District precedent, however, agrees with the case law from other districts which reach a different result. The court stated:

The right to compel arbitration arises from an agreement of the parties. As a result, the trial court's role in deciding whether to compel arbitration is limited to three "gateway" issues: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). The sole consideration in this case relates to the first issue—that is, whether the arbitration agreement is valid despite remedial limitations that, Ms. Stiehl argues, defeat the public policy expressed under the Nursing Home Residents Act.

In challenging the validity of an arbitration agreement, a party must assert defenses applicable to all contracts—defenses such as fraud, duress, or unconscionability...trial court is to review those defenses which go to the validity of the arbitration agreement itself, rather than to the enforceability of the contract as a whole.

We recognize that courts have, on public policy grounds, invalidated arbitration agreements found to defeat the remedial purpose of a statute on which the suit is based...Additionally, courts in this state have specifically found arbitration agreements containing remedial limitations similar to those presented here to render an agreement to arbitrate void and unenforceable.

Nonetheless, this district has treated the validity of such remedial limitations to be beyond the initial gateway determination of an arbitration agreement's enforceability where the limitations are severable from the agreement to arbitrate...In this circumstance, the enforceability of the remedial limitations may be considered by the arbitrator "in the context of a fully developed factual record."...If the arbitrator determines the remedial limitations to be unenforceable, the limitations may be severed from the remainder of the agreement.

First District Reverses ALJ Decision For Failing To Apply Rebuttable Presumption Provided By 766.309(1)(a), Florida Statutes

In St. Vincent’s Medical Center, Inc., et al v. Bennett, et al (1D07-5557/1D07-5561), the First District, with a dissent, held as follows:

In these consolidated appeals, St. Vincent’s Medical Center, Inc., William H. Long, M.D., and North Florida Obstetrics and Gynecology, P.A., challenge a final order of the Division of Administrative Hearings (DOAH) in which the administrative law judge (ALJ) held that the child of Robert and Tammy Bennett, appellees, did not qualify for coverage by the Florida Birth-Related Neurological Injury Compensation Association (NICA). Because the ALJ erred as a matter of law in failing to apply the rebuttable presumption provided by section 766.309(1)(a), Florida Statutes (2001), we reverse and remand for further proceedings.

"Whether An Ambiguity Exists In The Language Of A Contract Is A Question Of Law To Be Decided By The Court"

In Skopelos Seafood & Steak Restaurant, Inc. v. Estate of Paul Gus Silivos (1D08-5458), the First District reversed the trial court's entry of summary judgment because there was an ambiguity in the contract at issue. The court stated:

At issue is the parties’ intent when they used the language in paragraph 24 regarding the appraisal method. Ordinarily, "in the absence of some ambiguity, the intent of the parties to a written contract must be ascertained from the words used in the contract, without resort to extrinsic evidence." Lee v. Montgomery, 624 So. 2d 850, 851 (Fla. 1st DCA 1993) (citation omitted). Further, whether an ambiguity exists in the language of a contract is a question of law to be decided by the court. Wheeler v. Wheeler, Erwin & Fountain, P.A., 964 So. 2d 745, 749 (Fla. 1st DCA 2007) (citation omitted); Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So. 2d 564, 565-66 (Fla. 1st DCA 2000) (citation omitted). Accordingly, our standard of review is de novo. Centennial Mortgage, 772 So. 2d at 566.

***

To do so was improper because the ambiguity renders the parties’ intent a question of fact that must be resolved by the trier of fact. Id. (citation omitted). See also Wagner v. Wagner, 885 So. 2d 488, 492 (Fla. 1st DCA 2004) (citation omitted).

Rules Promulgated By The Agency For Persons With Disabilities Found Invalid By The First District

In Moreland, et al v. Agency for Persons with Disabilities (1D08-4353), the First District found a controversial classification system used to determine disabled benefits to be invalid. The Tallahassee Democrat has an article on the decision which can be found here. The First District held as follows:

Appellants challenge an administrative order which found that a series of proposed rules promulgated by the Agency for Persons with Disabilities (the Agency), creating a four-tiered system for Medicaid waiver benefits, was a valid exercise of delegated legislative authority. We find that the administrative law judge erred in finding the proposed rules are valid because (1) the Agency failed to demonstrate it adopted a valid, reliable assessment instrument; (2) the rules place an age limit on eligibility for Tier 3; and (3) the rules automatically place some former waiver recipients into Tier 4 without an assessment.

***

In summary, we reverse the ALJ’s findings that Proposed Rules 65G-4.0021, 65G-4.0024, and 65G-4.0025 are valid and strike these rules as invalid for contravening the statute which they implement. We also find it necessary to strike Proposed Rules 65G-4.0022 and 65G-4.0023; although these rules are not invalid individually, the Proposed Rules are so interrelated that these rules cannot stand alone. We affirm the ALJ’s findings on all other issues.

Newspaper Demands Blogger Stop Using Pictures and Articles

There is an interesting issue developing about the right to reproduce newspaper pictures and articles on blogs. Both positions are represented by the links below so you can reach your own conclusions.

An attorney for the newspaper sent a letter, through its attorneys, demanding the blog stop pasting pictures and articles into blog entries - whether it be an entire article or a substantial portion. The blog entry that led to the letter can be found here. Prior to the letter from the law firm, the newspaper sent an email to the blog which is discussed and quoted here.

The demand letter, which can be found here (page 1) and here (page 2), stated:

Because fair use looks to the amount and substantially of the portion taken (both in terms of quality and quantity), reproducing entire articles, large excerpts of articles or large-size photos is not permitted.

The issue is discussed in more detail at other sites which you can read, if interested:

Here at the Random Pixels blog;

here and here at the Miami New Times;

here at the Blast Off Blog;

here at the South Florida Daily Blog;

here at the Photography is Not a Crime blog;

here at the Man or Maniac blog;

here at the South Florida Lawyers blog; and

here at the McClatchy Watch.

Fifth District Reverses Two Convictions on Constitutional Grounds

In Racine v. State (5D08-1502), the Fifth District reversed a conviction because the defendant's constitutional right to a jury trial was violated.

In Murphy v. State (5D08-2603), the Fifth District reversed a conviction on double jeopardy grounds.

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al.

Previously discussed here is the Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. (08-1151) case pending before the Supreme Court. Yesterday, GrayRobinson, P.A. filed an amicus brief on behalf of the Coalition for Property Rights ("CPR"). The amicus brief can be found here.

According to Manny Papalas, GrayRobinson attorney and lead counsel for CPR in the case, “We are asking the Supreme Court to clarify that littoral rights can’t be taken and property boundaries modified by the government without notice, a judicial hearing, and payment of full and just compensation. If government is permitted to simply confiscate property from a small minority of citizens - those fortunate enough to own land on the ocean - then the property rights we all cherish can be taken, too.”

See here and here for a writeup from the Property Prof Blog, here for the discussion by UC Berkeley Lecturer in Residence Richard Frank at Legal Planet, and here for a writeup on the Volokh Conspiracy blog. Here, the Pacific Legal Foundation "applauds Supreme Court decision to take importantFlorida property rights case."

See here and below for the briefs from the SCOTUS WIKI page:

Issue: Whether the state’s legislation to restore storm-eroded beaches along the ocean or lakeshores, modifying the private property boundary line, constitutes a judicial taking or violates the due process clause

Opinion below (Supreme Court of Florida)

Petition for certiorari
Brief in opposition for respondent Florida Department of
Environmental Protection
Brief in opposition for respondents Walton County and City of
Destin
Petitioner’s reply
Brief amicus curiae of Pacific Legal Foundation (in support of
petitioner)

Merit briefs

Brief for Petitioner Stop the Beach Renourishment, Inc.

Southern District of New York Dismisses Defamation Case Against Stock Analysts

As reported by Reuters here, a New York Federal Judge dismissed a case filed by a former chief executive of Cyberonics Inc for alleged defamation over analysts comments about stock. The case is: Cummins v. SunTrust Capital Markets Inc et al, U.S. District Court, Southern District of New York (Manhattan), No. 07-4633.

The court held that the statements made by two analysts at SunTrust Bank's capital markets unit were protected. Reuters reports that "U.S. District Judge John Koeltl wrote in an 81-page opinion" wherein he states: "The core facts about the June 15 options were indisputably true and the authors' conclusions were protected statements of opinion based on disclosed facts."

Oregon District Court Addresses the Meaning of "Condominium" in a CGL Policy

Diane Polscer at The National Insurance Law Forum has the following post about the definition of "condominium":

Oregon District Court Addresses the Meaning of "Condominium" in a CGL Policy

Posted on August 20, 2009 by Diane Polscer

In Bridgetown Condominium Homeowner’s Assn. v. Granite State Ins. Co., 2009 U.S. Dist. LEXIS 51568, Judge Anna Brown of the Oregon District Court recently examined the meaning of the undefined term “condominium” within the meaning of a CGL policy. In Bridgetown, the plaintiff homeowner’s association had previously settled a state court action with a defendant developer for claims at a condominium project. The project consisted of fourteen single-family dwellings. The plaintiff entered into a stipulated judgment with the insured defendant in which the plaintiff agreed it would seek a portion of the stipulated judgment amount from the defendant’s insurer. The plaintiff then brought this garnishment action against the insurer.

The policy at issue contains a “Designated Work Exclusion” that bars coverage for “A. Condominiums, multi-unit homes, townhouses, or apartment buildings which contain 5 or more single family units. B. Any building or structure in excess of three (3) stories or any building or structure in excess of forty (40) feet in height.” The plaintiff contended that the undefined term “condominium” is ambiguous because the term is susceptible to more than one meaning, and when properly interpreted does not exclude coverage for plaintiff’s claims.

Employing Oregon’s rules to interpret the terms of an insurance contract, the court first determined whether the term has a plain meaning. Oregon courts may look to dictionary definitions to determine whether a term has a plain meaning. The plaintiff had provided a dictionary definition that “condominium” means either a building or complex containing a number of individually owned units, or the individual units. The court concluded that the dictionary definition established that “condominium” has more than one plausible meaning, and so the court examined the term in light of the context in which the term is used in the policy.

After examining the policy, the court rejected the plaintiff’s argument that the “Designated Work Exclusion” excludes only condominiums that “contain 5 or more single family units,” which the plaintiff argued demonstrates the insurer’s intent to exclude coverage of condominiums that are comparatively large buildings containing more than five single family units. The court also rejected plaintiff’s argument to apply the ejusdem generis principle of contract interpretation to the “Designated Work Exclusion.” In agreeing with the insurer, the court found that while the exclusion contains an enumeration of specific things (i.e., condominiums, multi-family homes, townhouses, and apartment buildings), that enumeration is followed by an even more specific description (i.e., “which contain 5 or more single family units.”). The court found that the application of the ejusdem generis doctrine does not establish either ambiguity in the “Designated Work Exclusion” nor indicate that the “Designated Work Exclusion” does not apply.

By applying Oregon’s rules to interpret the terms of an insurance contract, the district court concluded that both the plain meaning of “condominium” in the policy’s “Designated Work Exclusion,” and its meaning within the policy as a whole indicate that the “Designated Work Exclusion” applies to the project at issue, and the particular policy excludes coverage for the project.

“We’re Your Government and We’re Here to Help”: Obtaining Amicus Support From the Federal Government in Supreme Court Cases

The SCOTUS Blog has the following post and link to article about the Supreme Court's practice of asking the Solicitor General for its opinion in case:

“We’re Your Government and We’re Here to Help”: Obtaining Amicus Support From the Federal Government in Supreme Court Cases

Patricia Millett recently published this article (PDF download) in the Tenth Anniversary edition of the Journal of Appellate Practice and Process (Vol. 10, No. 1; Spring 2009). It addresses the Supreme Court’s unique practice — not mentioned in the Court’s rules — of calling for the views of the Solicitor General at the certiorari stage, and the process of obtaining amicus support from the Solicitor General in such cases, as well as in cases in which review has been granted.

Citizens United v. Federal Election Commission

Below are links to a number of articles and/or posts regarding Citizens United v. Federal Election Commission, currently pending before the Supreme Court. The Washington Post stated: "In a surprise move on the last day of the term, the court announced that it would hold a new argument in the case -- and that it would consider overruling two precedents upholding limits on corporate money in the political process."

The rehearing is set for argument on September 9, 2009. The issue in the case is: "Whether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers."

SCOTUSwiki page which includes links to the briefs and a summary;

SCOTUS Blog's post titled Reply briefs in Citizens United;

SCOTUS Blog's post titled Campaign finance hearing expanded;

SCOTUS Blog's post titled Amicus Briefs on the Supplemental Question in Citizens United;

SCOTUS Blog's post titled New plea to join Sept. 9 argument;

SCOTUS Blog's post titled Supplemental Briefs in Citizens United;

SCOTUS Blog's post titled Motion for Divided Argument in Citizens United;

LA Times;

Washington Post;

Corporate Justice Blog;

American Constitution Society;

Cato Institute;

Democracy 21;

Here, from the Election Law Blog, is the Wyoming Liberty Group and Goldwater Institute Scharf-Norton Center for Constitutional Litigation request to the Supreme Court to participte in oral argument for as long as one minute.