Monday, November 30, 2009

Florida Supreme Court Denies, Without Prejudice, Governor Crist's Request To Impanel A Statewide Grand Jury To Investigate Corruption By Public Officials

In Statewide Grand Jury #19 (SC09-1910), the Florida Supreme Court denied a request by Florida Governor Charlie Crist to impanel a statewide grand jury to investigate "the ongoing harm caused by crimes committed by local and state public officials while acting in their official capacity. Public officials have abused their powers gained by virtue of their position." 

The Court's order denied the request without prejudice and was based upon the Court's finding "that the petition does not meet the minimal allegations required by section 905.33, Florida Statutes."  You can view the Court's Order here.  The Governor immediately filed his Second Amended Petition, which can be found here.   The original petition, filed on October 14, 2009, can be viewed here.  The Amended Petition, filed on October 27, 2009, can be viewed here

Supreme Court Grants Certiorari In Three Cases And Reverses Decision Requiring Disclosure Of Detainee Abuse Photos

The Supreme Court's Order List for today can be found here.

The Court entered a summary disposition in Defense Department, et al.,. v. American Civil Liberties Union, et al. (09-160), which would have required the Department of Defense to release photographs of alleged detainee abuse.

The Court granted the Solicitor General's request to participate in oral argument in Briscoe v. Virginia (07-11191). The issue in Briscoe is "f a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?"  You can view the SCOTUS Wiki page here.

The Court rejected the State of Kansas', joined by many other states, request to participate in oral argument in United States v. Comstock (08-1224).  The issue in Comstock is "Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) “sexually dangerous” persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial."  You can view the SCOTUS Wiki page here.

The Court also granted certiorari in three cases today (The issues are from the SCOTUS Blog): 

Morrison v. National Australia Bank (08-1191) - "Issue: Whether the judicially implied private right of action under Section 10(b) of the Securities and Exchange Act of 1934 should, in the absence of any expression of congressional intent, be extended to permit fraud-on-the-market claims by a class of foreign investors who purchased, on a foreign securities exchange, foreign stock issued by a foreign company." 

Renico v. Lett (09-338) - "Issue: Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict."

Barber v. Thomas (09-5201) - "Issue: Does “term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed?"

The SCOTUS Blog links to the briefs and opinions below for each of the three cases here.

Supreme Court GVR's Or SRMEOPR's A Decision From The Fifth Circuit In Webster v. Cooper, 558 U.S. __ (2009) (08-10314)

In Webster v. Cooper, 558 U.S. __ (2009) (08-10314), the United States Supreme Court reversed the Fifth Circuit's decision below in light of Jimenez v. Quarterman, 555 U.S. --, 129 S.Ct. 681 (2009)

The Fifth Circuit's unpublished order denying a certificate of appealability can be found here.  The District Court Judge in the Middle District of Louisiana approved a magistrate's report and the District Court's short order can be found by clicking on the following link:  Webster v. Cooper, NO. CIV.A. 07-601-A, 2008 WL 906397 (M.D. La. Apr 02, 2008).  The Magistrate's Report can be found by clicking here.  There is also a one word opinion from the Supreme Court of Louisiana involving this defendant which can be found by clicking on the following link: State v. Webster, 954 So. 2d 150 (La. 2007).

Justice Scalia wrote a dissent to the short opinion stating:
The parties do notagree, and it is not clear, whether under Louisiana law petitioner’s motion to vacate would be regarded as restart-ing the clock for his direct appeal. If so, then the Jimenez error is obvious; if not, there is no error. Today, without request by (or even warning to) the parties, the Court grants certiorari, vacates the Fifth Circuit’s judgment without determination of the merits, and remands for further consideration in light of Jimenez.
Though we have sometimes GVR’d in light of decisions that preceded the decision vacated, see, e.g., Grier v. United States, 419 U. S. 989 (1974), I have acquiesced in this expansion of “intervening-factor” GVRs only when (as in Grier) our decision came so soon before the judgment in question “that the lower court might have been unaware of it.” Lawrence, supra, at 181 (SCALIA, J., dissenting). This is not such a case: We decided Jimenez on January 13, 2009, more than two months before the Fifth Circuit denied the certificate. There is thus no basis for regarding that decision as an “intervening” factor—that is, one that the Court of Appeals did not have before it.
This is not, of course, the first time the Court has GVR’d on the basis of a case decided long before the Court of Appeals ruled, see, e.g., Robinson v. Story, 469 U. S. 1081 (1984) (three months), nor the first time I have protested, see Lawrence, supra, at 184 (SCALIA, J., dissenting) (more than a year).
Once we disregard the logic (and the attendant limits) of “interven-ing-factor” GVRs, they metastasize into today’s monster.  We should at least give it a new and honest name—not GVR, but perhaps SRMEOPR: Summary Remand for a More Extensive Opinion than Petitioner Requested. If the acronym is ugly, so is the monster.

Proposed Changes To Rules of the U.S. Court of Appeals for the Eleventh Circuit

The Eleventh Circuit has released proposed rule amendments.  The Notice can be found here; a table of the proposed changes can be found here;  a redlined version of the new rules can be found here.

Supreme Court Reverses Eleventh Circuit On Ineffective Assistance Of Counsel Claim Involving Mitigation Evidence In Death Sentence Case

In Porter v. McCollum, 558 U.S. __ (2009) (08-10537), the United States Supreme Court reversed this decision of the Eleventh Circuit.  Mr. Porter is currently on death row in Florida, convited of murder. The Supreme Court described the facts as follows:
In July 1986, as his relationship with Williams was ending, Porter threatened to kill her and then left town. When he returned to Florida three months later, he attempted to see Williams but her mother told him that Williams did not want to see him. He drove past Williams’ house each of the two days prior to the shooting, and the night before the murder he visited Williams, who called the police. Porter then went to two cocktail lounges andspent the night with a friend, who testified Porter wasquite drunk by 11 p.m. Early the next morning, Porter shot Williams in her house. Burrows struggled with Por-ter and forced him outside where Porter shot him.
The issue in this case revolves around failure to present mitigating evidence.  The Supreme Court's opinion began:
Petitioner George Porter is a veteran who was bothwounded and decorated for his active participation in twomajor engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or presentduring the penalty phase of his trial in 1988.
A divided Florida Supreme Court denied postconviction relief on these same grounds in Porter v. State, 788 So. 2d 917 (Fla. 2001) (per curiam).  The United States District Court for the Southern District of Florida granted habeas relief in Porter v. Crosby, No. 6:03–cv–1465–Orl–31KRS, 2007 WL 1747316(MD Fla., June 18, 2007). However, that decision was reversed by the Eleventh Circuit.  See 552 F. 3d 1260 (11th Cir. 2008).  The Supreme Court held:
In this federal postconviction proceeding, the District Court held that Porter’s lawyer’s failure to adduce thatevidence violated his Sixth Amendment right to counseland granted his application for a writ of habeas corpus. The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court’s determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U. S. 668 (1984). Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable prob-ability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. We therefore grant the petition for certiorari in part and reverse the judgment of the Court of Appeals.

First District On Pleading Failure To Establish A Sufficient Duty Of Care - Hospital Employee Murdered Patient With Controlled Drugs

In Herndon v. Shands Teaching Hospital and Clinics, Inc. (1D09-0437), the First District reversed the trial court's order granting Shands motion to dismiss with prejudice.  Judge Browning wrote the majority opinion and was joined by Judge Van NortwickJudge Padovano wrote a dissent.  The majority opinion stated:
Appellants alleged that Oliver O’Quinn, (hereinafter referred to as “O’Quinn”), a surgical nurse employed by Appellee, murdered Michelle Herndon with an injection of hazardous controlled drugs (Propofol, Midazolam and Estomidate, unavailable without a doctor’s prescription and under the supervision and control of Appellee). Appellants alleged that Appellee had a legal duty to Michelle Herndon that was breached by its negligent hiring and supervision of O’Quinn.
we conclude the Appellants’ complaint essentially alleges: (1) Appellee knew or should have know of the risk of unsupervised release of hazardous controlled drugs under its control requiring a doctor’s prescription for use; (2) a reasonable medical care provider like Appellee, in possession or control of the alleged drugs, would understand that the public would be exposed to an unreasonable and unnecessary risk of harm unless procedures and actions were undertaken to guard against the risk of unauthorized removal of hazardous drugs from its control without a doctor’s prescription; and (3) the death of Michelle Herndon was a foreseeable consequence of Appellee’s failure to use reasonable care in the hiring and supervision of O’Quinn. We conclude these facts and allegations are sufficient to establish a duty of care.
The dissent stated:
The amended complaint creates the impression that the defendant breached a duty of care to the plaintiff but it does so only by making broad statements that are in the nature of conclusions. Because I believe that the plaintiff’s claim against the hospital is unsupported by allegations of fact, I respectfully dissent.
The foreseeability of harm in the anthrax case takes only one step. If a person comes into contact with anthrax, injury or death will occur. To say that the harm was foreseeable in this case, however, would require several additional steps. Assuming the hospital knew that Nurse O’Quinn was stealing the drugs, one would have to assume he was not using them himself, but rather that he was giving them to others against their will. One would also have to assume that the hospital could reasonably predict that he would intentionally harm or kill someone by deliberately giving them an overdose. This, I think, stretches the duty element of negligence too far.

Sunday, November 29, 2009

"Simply because the stock dropped in price does not mean that the drop was the result of securities fraud"

In Durham v. Whitney Information Network (2:06-cv-00687), Middle District of Florida Judge Avern Cohn entered a 44 page opinion in an interesting securities fraud case.  The decision can be viewed here.  The Judge summarized the decision as follows:
Plaintiff has not plead a securities fraud case. The CAC centers on three theories of fraud which plaintiff says were revealed with the issuance of two press releases, neither of which admit any wrongdoing. The substance of the press releases do not mention, much less relate, to any of plaintiff’s theories of securities fraud.  Moreover, the CAC fails to contain allegations to show that any of the defendants acted with scienter. When the press releases issued, given the particular volatility of the market at the time and the uncertainty generated by the press releases, the price of the Company stock dropped. The disconnect between the text of the press releases, the theories of fraud, and the allegations of wrongdoing leads to the conclusion that the case is not about securities fraud. Rather, it is about an attempt to find securities fraud after the Company’s stock price fell upon news that it was being investigated by the SEC and was the subject of a grand jury subpoena. The case brings to mind the Latin phrase post hoc ergo procter hoc. Simply because the stock dropped in price does not mean that the drop was the result of securities fraud.
It is for these reasons that defendants’ motion to dismiss have been granted and the case dismissed.
Click here to view the case docket.

Middle District of Florida Amends Local Rules

In In Re: Amendments To Time Calculations In The Local Rules, entered on November 19, 2009, the Middle District of Florida amended its local rules in order to "conform to the amended Federal Rules of Civil Procedure adopted by the Supreme Court, pursuant to 28 U.S.C. 2072."  The order can be found here.

Certiorari, Not Appeal, Is Proper Procedure To Seek Review Of Stay Order Entered By Circuit Court In Its Appellate Capacity

In AA Acquisitions, LLC v. Opa-Locka Flightline, LLC (3D09-2059), the Third District issued an opinion on a motion for clarification stating the reasons it dismissed the appeal.  After a stay was entered in the appellate division of the circuit court, "the landlord filed a petition for writ of certiorari in this court, No. 3D09-2166, seeking to vacate the stay. The landlord also filed a notice of appeal of the stay order, which is the case now before us. Another panel of this court denied certiorari. This panel dismissed the appeal. The landlord requests clarification of the reason for dismissal of the appeal."

The court stated:
It is our view that this court’s review of a stay order entered by the appellate division is by certiorari, not by appeal. See USAA Cas. Ins. Co. v. Pembroke Pines MRI, Inc, 2009 WL3364974 (Fla. 4th DCA October 21, 2009).
As already stated, this case involves second-tier review. At the second-tier level, review is by certiorari. See Haines City Comty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995); Philip J. Padovano, supra, § 28:5 at 725-26. The appellate division’s order granting a stay is not an appealable order.

Third District Affirms Dismissal Of Interstate Land Sales Full Disclosure Act Action

In CRC 1803, LLC v. North Carillon, LLC (3D08-3137), the Third District affirmed the dismissal of a lawsuit brought for revocation of a contract based on 15 U.S.C. section 1703 (a)(1)(B), the Interstate Land Sales Full Disclosure Act (ILSA).
The complaint alleges that North Carillon failed to provide a property report prior to CRC signing the contract as required by 15 U.S.C. section 1703 (a)(1)(B). North Carillon responded with a motion to dismiss, arguing that as section 1703 of the ILSA contains a two-year limitations period, and as CRC signed the contract on May 1, 2006, and filed suit on May 2, 2008, its revocation claim is barred. CRC argued that the claim was not barred because the contract was actually fully executed on May 22, 2006, when North Carillon signed. The trial court heard arguments and concluded that, based on these facts, 15 U.S.C. § 1703 required CRC to have filed its complaint within two years after CRC signed the purchase contract and, as it did not, it was time barred from filing for revocation. The court granted North Carillon’s motion to dismiss,1 with prejudice, and based on these facts, we affirm.

Third District Upholds Carnival's Forum Selection Clause

In Leslie v. Carnival Corp. (3D06-2228, 3D07-1009; 3D07-627; 3D06-2226), the Third District issued the following on en banc consideration:
Subsequent to the release of the panel opinion in Leslie v. Carnival Corp., Nos. 3D06-2228, 3D06-2226, 2008 WL 34793, at *1 (Fla. 3d DCA Jan. 2, 2008), the Court consolidated this case with two others, and by a majority vote of the active judges of this district, see Fla. R. App. P. 9.331(a), ordered that they be considered together en banc on the issue decided in the panel opinion. Upon consideration of the matter en banc, the Court is evenly divided. Judges Gersten, Wells, Shepherd, Suarez and Lagoa voted in favor of affirming the circuit court. Chief Judge Ramirez, and Judges Cope, CortiƱas, Rothenberg and Salter voted to reverse the decision of the circuit court. The effect of the vote is that the panel opinion stands. Id.
The en banc order included a concurrence by Judge Shepherd who was joined by Judge Gersten, Judge Wells, Judge Suarez and Judge Lagoa.  The dissent was written by Judge CortiƱas who was joined by Chief Judge Ramirez, Judge Cope, Judge Rothenberg and Judge Salter

The panel opinion, which stands, held:
Barry's and Leslie's chief grievance regarding Carnival's forum-selection clause is that it strips them of their constitutional right to a jury trial, and instead affords them a jury trial in their federal forum only "with the consent of both parties." See Fed. R. Civ. P. 39(c).[4] Carnival represents in its Answer Brief here that it "has no intention of opposing Appellants['] request for a jury trial" in these passengers' pending federal actions, which Barry and Leslie suggest is further evidence of what it divines to be Carnival legerdemain. We interpret Carnival's statement to mean that if the United States District Court lifts the stays in these passengers' federal admiralty actions, Carnival will consent to a jury trial in these cases. We conclude Carnival's forum-selection clause is enforceable.

Default Only Constitutes Admission Of Well-Pleaded Factual Allegations

In Lincks v. Keenan (4D08-2807), the Fourth District affirmed the trial court's dismissal of a fifth amended complaint over a defednant that had previously defaulted:
Because the entry of a default constitutes an admission of only the well-pleaded factual allegations of the complaint, see Days Inns Acquisition Corp. v. Hutchinson, 707 So. 2d 747 (Fla. 4th DCA 1997), a complaint which fails to state a cause of action cannot form the basis of a judgment against the defendant. See GAC Corp. v. Beach, 308 So. 2d 550 (Fla. 2d DCA 1975).

Friday, November 27, 2009

Third District Reverses Order That Quashed Service of Process

In Sun Trust Bank v. Electronic Wireless and Fabian Pesantes (3D09-1952), the Third District reversed the trial court's order quashing service of process.  The Court's six page opinion, writted by Judge Rothenberg, began:
SunTrust Bank seeks reversal of a non-final order quashing service of process on Electronic Wireless Corp. and Fabian Pesantes, contending that they “concocted a hodgepodge of both actual and fictional requirements” for service of process and that “SunTrust duly complied” with each of the actual requirements. We agree and reverse and remand for proceedings consistent with this opinion.
The opinion is below:
Suntrust Bank v. Electronic Wireless, Et Al (3d09-1952) - Opinion

The briefs and oral argument in this case can be viewed below.
Part I:

Part II:

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Sixth Circuit Reverses Order That Stayed Ohio Executions & Kentucky Supreme Court Stays Kentucky Executions

In Cooey v. Strickland (09-4300), the Sixth Circuit reversed an order staying executions in Ohio.  That opinion can be found here.  On the same day, the Supreme Court of Kentucky released an opinion in Bowling, et al v. Department of Corrections (2007-SC-000021-MR) that stays the death penalty in the state of Kentucky.

Tuesday, November 24, 2009

Rothstein Suspended From Fourth District Court of Appeal Judicial Nominating Committee

Charlie Crist entered Executive Order 09-264 today and suspended Scott Rothstein from his duties as a Commissioner on the Fourth District Court of Appeal Judicial Nominating Committee.  William Berger, not the same William Berger that was with RRA until a week or two ago, was named to fill the vacancy.  The order can be viewed here

You can view all prior posts and links to all relevant documents at this link.  News articles about the decision can be found at the following links: South Florida Business JournalPalm Beach,   

Numerous Florida Politicians Sign Amicus Brief In McDonald v. City of Chicago (08-1521)

An amicus brief was filed in the United States Supreme Court in the case of McDonald v. City of Chicago (08-1521).  The brief can be viewed here.  The SCOTUS Wiki page for the case can be found here.  The question presented is "Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses?"

The brief was signed by politicians from many states, including numerous politicians from Florida.  The politicians signing from the state of Florida can be found on pages 44 through 49 of the brief.  Florida Governor Charlie Crist issed a press release stating:
TO: Interested Media
FROM: Sterling Ivey, Governor’s Press Secretary
RE: Amicus Brief
Please see the attached Amicus Brief signed by Governor Charlie Crist on behalf of the petitioners in the case of McDonald v. City of Chicago and filed today with the United States Supreme Court. The brief calls on the Court to preserve Americans’ Second Amendment right to bear arms as a fundamental right that should be incorporated against the states by the Fourteenth Amendment. Without such action by the Court, all Americans are at risk of losing their gun rights by more restrictive state or local laws.
If you have any questions or need additional information, please call Governor Crist’s press office at (850) 488-5394.

Southern District of Florida Bankruptcy Court: "Notice of Entry of Bankruptcy Administrative Orders 09-6, 09-7, 09-8 & Notice of Amended Federal Rules"

The United States Bankruptcy Court for the Southern District of Florida issued a "Notice of Entry of Bankruptcy Administrative Orders 09-6, 09-7, 09-8 & Notice of Amended Federal Rules."

You can view the Notice here and the new rules at the links below:
09-7; and

Federal Judge Reprimands Blackwater Worldwide Contractors Attorneys For Not Double Spacing

"A federal judge in Washington, D.C., has put lawyers for five Blackwater Worldwide contractors on notice that their failure to double space won’t be tolerated," according to the ABA Journal.   The Washington Post also has an article, titled "Blackwater lawyers reprimanded ... for not double-spacing."

U.S. District Judge Ricardo Urbina's order in United States v. Slough, et al (08-0360-RMU), regarding the spacing of memorandum filed in his court is below:

Supreme Court of Georgia Upholds Sex Offender Registry And Reverses Murder Conviction

The Supreme Court of Georgia released two other noteworthy decisions yesterday. 

In Dunn v. The State (S09A1369), the court rejected a challenge to the Georgia sex offender registry.  The court's official summary can be found on page two of this link.  In an article that can be found here, the Augusta Chronicle states "The Georgia Supreme Court has rejected a man's challenge to Georgia sex offender registry law, which requires registration within 72 hours after a change of address."

In Gonnella v. The State (S09A0985), the court reversed the murder conviction and sentence of life in prison.  The court's official summary states "The high court has reversed the denial by a Richmond County court of Richard Anthony Gonnella's motion for new trial on the ground that state prosecutors failed to reveal that the main witness against him had worked out a plea arrangement that could have gotten him a lighter sentence."  You can read an Associated Press article here.

Supreme Court Of Georgia Holds A Riding Lawn Mower Is Not A Vehicle

I previously had a post about a Florida man titled "Man on riding mower charged with DUI."  You can find that post here.  Yesterday in Harris v. The State (S09G0870), the Georgia Supreme Court issued an opinion that may give the defendant above some comfort.  A riding lawn mower is not a vehicle, at least in the state of Georgia.  The court issues a summary of the opinion which can be found here.  The relevant portion of the summary is copied below:
The Supreme Court of Georgia has reversed the conviction of a man sentenced to 10 years in prison for stealing a lawn mower. At issue in this Whitfield County case is whether a riding lawn mower is considered a “motor vehicle” under the state's motor vehicle theft law. The Georgia Court of Appeals concluded it was.
But in today's split 4-to-3 decision, written by Justice David Nahmias, the high court has ruled that the Court of Appeals was wrong, and it is sending the case back for resentencing. “The General Assembly may of course expressly define 'motor vehicle' more broadly, but we are not at liberty to do so,” the majority opinion says. “For these reasons, we hold that a riding lawn mower is not a 'motor vehicle' as that term is used in the motor vehicle theft statute.”
The term motor vehicle “is commonly understood to mean a self-propelled vehicle with wheels that is designed to be used…to transport people or property on roads,” the majority opinion states. And that is how a number of Georgia statutes define the term. “To be sure, a riding lawn mower is capable of transporting people or property and of driving on the street for short stretches, but that is not what the machine is designed for or how it is normally used…,” the opinion says. Rather, the purpose of a riding lawn mower is to cut grass.
The case stems from the 2006 arrest of Franklin Lloyd Harris, who was charged with stealing a Toro riding lawn mower from the Home Depot Store in Dalton. According to evidence at trial, he and two others pulled his father's red Ford Aerostar van to the front of the store, loaded the lawn mower into the back and drove away. Harris went to trial on two charges: a felony count of motor vehicle theft, based on the fact that the object was a riding lawn mower, and a felony count of theft by taking, because the lawn mower was worth more than $500. During the trial, Harris' public defender moved to have the first count thrown out on the ground that stealing a lawn mower is not considered motor vehicle theft under state law, and Harris should not be punished as if he'd stolen a car. The trial court denied his motion, a jury found Harris guilty, and because he was a repeat offender, he was sentenced under the motor vehicle theft law to 10 years in prison. On appeal, the Georgia Court of Appeals upheld the conviction and sentence, ruling that a riding lawn mower is a “motor vehicle” under state law.
“We hold that the Court of Appeals did err and that appellant's conviction for theft of a motor vehicle should be reversed and the case remanded for resentencing,” today's majority opinion says. However, although Harris's conviction for motor vehicle theft must be reversed, he was also convicted of theft by taking, and on remand, he should be sentenced for that, the opinion states. “Because the value of the stolen lawnmower exceeded $500, Harris still will face a sentence of up to 10 years, and so he may receive the same sentence, particularly given his recidivist status, but we leave that decision to the trial court on remand.” The majority is joined by Chief Justice Carol Hunstein, Presiding Justice George Carley and Justice Robert Benham.
In a dissent, Justice Harold Melton writes that “the legislature has specifically defined the term 'motor vehicle' broadly enough to encompass a riding lawn mower. The majority, however, erroneously relies on inapplicable 'motor vehicle' definitions that apply to the use of a vehicle on the roads…, as opposed to the theft of a vehicle, in order to reach its intended conclusion that a riding lawn mower is not a 'motor vehicle' for the purposes of sentencing for theft.” The dissent points out that in the state‟s “chop shop” statute, the term motor vehicle includes any devices “which are self-propelled but which are not designed for use upon a highway, including, but not limited to, farm machinery and construction equipment.” “This definition of 'motor vehicle' is obviously broad enough to encompass a riding lawnmower,” the dissent says. “Thus, if a riding lawn mower were stolen and taken to a „chop shop,‟ it would be a 'motor vehicle' for purposes of its theft and storage or dismantling at a chop shop. Under the majority's analysis, however, a riding lawnmower would not be a 'motor vehicle‟ if simply stolen, but would magically transform into a 'motor vehicle' once taken to a chop shop for dismantling or sale.” Instead of discerning the legislature's intent, “the majority has interpreted the statute in a manner that creates conflict and leads to an absurd result,” the dissent says. “As such, the majority's interpretation cannot stand.”
The dissent is joined by Justices Hugh Thompson and P. Harris Hines.
Attorney for Appellant (Harris): Michael McCarthy
Attorneys for Appellee (State): Kermit McManus, District Attorney, John Helton, Asst. D.A.
Atlanta Journal Constitution;
Associated Press;
How Appealing;  
Election Law Blog;
The Daily Citizen;
A pre-decision article about the case at the Legal Writing Prof Blog

Monday, November 23, 2009

Florida Bar Files Rothstein Disbarment Pleadings In Florida Supreme Court And Lawsuit Filed Against Rothstein and TD Bank

The Florida Bar filed the documents relating to the Scott Rothstein disbarment.  The case, The Florida Bar v. Scott W. Rothstein (SC09-2146), was filed by the Florida Bar today and the Florida Supreme Court entered an order declaring it a high profile case.  The Florida Bar released a press release which can be found here.  A press release was also released by the Florida Bar on November 18, 2009 which can be found here.  The Disbarment on Consent is below:

Mr. Rothstein and RRA were previously discussed everywhere on the internet including on this blog here, here, here, here, here and here.  You can view the latest news from Google News here.  You can view a number of the relevant filings and documents at the links below:

Lawsuits Against Rothstein
Disbarment Documents
  1. Petition to Accept Disbarment Of Scott Rothstein;
  2. Florida Supreme Court's High Profile Order in Rothstein Disbarment Proceeding;
  3. Disbarment on Consent;
  4. Florida Bar's Affidavit of Costs in Rothstein Disbarment Proceeding; and
  5. Disbarment Order.
Forfeiture Action
  1. Amended Verified Civil Forfeiture Complaint (11-27-2009);
  2. Verified Claim of VRLP1, LLC;
  3. Amended Civil Forfeiture Complaint (11/23/2009) - Stricken by this document;
  4. Civil Forfeiture Complaint against Scott Rothstein;
  5. Inventory of Items Seized from RRA;
  6. Warrant to search RRA.
Forged Court Documents
  1. Eleventh Circuit order allegedly forged by Mr. Rothstein;
  2. District Court Judgment allegedly forged by Mr. Rothstein; and
  3. Joint Confidentiality order allegedly forged by Mr. Rothstein.
  1. Executive Order suspending Rothstein from Fourth District Judicial Nominating Committee;
  2. RRA's Emergency Motion To Enforce Stay in bankruptcy court;
  3. Amended Order in RRA state court receivership action;
  4. RRA Involuntary Bankruptcy Petition;
  5. Emergency Motion for Appointment of Temporary Chapter 11 Trustee;
  6. Andrew Barnett's Letter Confirming Todd Snyder's Money Was Being Held In Trust;
  7. IRS Ponzi Scheme Questions and Answers.

Friday, November 20, 2009

More About The Ex-Smoker's $300 Million Win Against Philip Morris

Google Fast Flip has twostories about the $300,000,000.00 awarded by a Broward County jury to an ex-smoker.  The stories are:

"Ex-Smoker Wins Against Philip Morris" in the New York Times; and

The verdict was previously discussed here.

"Twombleyed in the Iqbals"

You can see the cases referenced at the following links:

The cartoon was created by David E. Mills and is hosted at  You can view the cartoon and a number of othes here.

Ninth Circuit Chief Issues Order Providing Same-Sex Benefits And Gives The Executive Branch A Lesson On Separation Of Powers

Ninth Circuit Chief Judge Alex Kozinski entered a published order yesterday awarding back pay to a court employee who was harmed when the government refused to provide insurance coverage for her same-sex spouse.  The order in the case of In the Matter of Karen Golinski (09-80173) can be viewed here

The order is interesting for a number of reasons including the same-sex benefits and the lesson on federalism and separation of powers the Chief Judge provides.

On January 13, 2009, Chief Judge Kozinski entered an order requiring the court's health plan to provide benefits to Ms. Golinski's spouse. You can see the January 13, 2009 order here.  However, the Executive Branch's Office of Personnel Management (OPM) ordered the health plan to refuse to provide the coverage "thwarting the relief" the Chief Judge had ordered.  Clearly angered by the actions of OPM, Chief Judge Kozinski stated "the Executive must henceforth respect the Judiciary’s interpretation of the laws applicable to judicial employees." (emphasis added).

The court continued:
OPM has a duty to take care that the laws be faithfully executed, but it may not disregard a coordinate branch’s construction of the laws that apply to its employees. No less than the other branches of government, the Judiciary is dependent on people to carry out its mission. Barring us from determining, within reasonable bounds, the rights and duties of our personnel under the laws providing for their employment would make us a “handmaiden of the Executive.” United States v. Smith, 899 F.2d 564, 569 (6th Cir. 1990). The power both to interpret and execute a law is the power to control those governed by it. Cf. The Federalist No. 47 (James Madison).
Concern about such a fate is particularly acute for the Judicial Branch. We rely on Congress to fund and the Executive to carry out many aspects of our day to day operations. GSA manages the buildings where we work, Treasury cuts our checks, U.S. Marshals provide our security and OPM administers our employee benefits programs. But if the theory of separate powers means anything, it’s that the Executive cannot use its dominance over logistics to destroy our autonomy...
That those rights are not in question here is irrelevant. The power the Executive has arrogated to itself in this case would be enough to sustain those actions as well. Nor is it any answer that OPM could set out a plausible interpretation of the law to support its actions in this case. Some branch must have the final say on a law’s meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise.
(emphasis added).  Thanks to How Appealing for the link.

Investor's Suit Against Scott Rothstein, RRA and TD Bank & RRA Seeks To Enforce Stay

As was reported by the Miami Herald, CBS 4, Michael Mayo at the SunSentinel, Palm Beach Post and the South Florida Business Journal, Todd D. Snyder filed an adversary complaint for Declaratory Relief, Imposition of Equitable Lien and/or Constructive Trust, and Permanent Injunction againt Scott W. Rothstein, Rothstein Rosenfeldt & Adler, P.A., and TD Bank, N.A. The complaint alleges:
Snyder was solicited by RRA, and individuals associated with RRA, to invest Two Million One Hundred Sixty Thousand and 00/100 Dollars ($2,160,000.00) in a future, and yet to be finalized, transaction....As evidenced by a confirming letter from RRA, a copy of which is attached hereto as Exhibit B, the Snyder Trust Funds were intended by Snyder to be kept separate from RRA’s property, Rothstein’s property, and the property of other clients or third-parties.
You can read the entire complaint below, including the exhibit referenced in the quote.

You can view the letter from Barnett by itself at this link.  Somewhat interestingly, RRA filed a motion to enforce the bankruptcy stay in the bankruptcy proceeding.  You can see that motion here.  RRA also filed an emergency motion in the state court receivership proceeding indicating to the state court judge that the bankruptcy stay does not apply.  You can see the order in the state court case here.

Mr. Rothstein and RRA were previously discussed on this blog here, here, here, here and here.

Thursday, November 19, 2009

Texas Federal Judge Grants Eleventh Hour Stay Of Execution Of Gerald Eldridge

United States District Court Judge Judge Lee Rosenthal granted an eleventh hour repreive to Texas death row inmate Gerald Eldridge.  Judge Rosenthal stayed the execution for at least 90 days and stated:
The issue now before this court is not whether Eldridge is, or is not, mentally ill or whether he is, or is not, competent to be executed in compliance with the Constitution. The only issue now before this court is whether, based on the record presented, the prisoner has made a 'substantial threshold showing of insanity.' Id. If such a showing is made, the execution must be delayed to permit a “fair hearing” to determine competency to be executed. A fair hearing requires an opportunity to submit evidence and arguments from the prisoner’s counsel, including expert psychiatric evidence to respond to the State’s own psychiatric examination. Id. at 952. The record before this court shows that Eldridge has made that substantial threshold showing. Under the case law, this court must therefore stay his execution to determine whether his condition allows his execution.
The caselaw the court was citing to is Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930, 948 (2007).  You can see articles here, herehere,  and here.  You can view Judge Rosenthal's ten page stay order below:
Eldridge v. Thaler

You can also see an unpublished decision from the Fifth Circuit in Eldridge v. Quarterman that was released on April 28, 2009 here

Supreme Court Denies Stay Of Execution Of Robert Thompsn - Texas Governor Rejects Plea By Texas Parole Bard To Grant Clemency - Thompson Executed

Today, the Supreme Court denied a petition for certiorari and application for stay of executon filed by Robert L. Thompson.  You can see the Supreme Court's order here.  Interestingly, the Texas parole board urged Texas Governor Perry to grant clemency.  See here.  The Texas Board of Pardons and Paroles suggested his death sentence be commuted to life in prison because he was not the shooter of the victim.  Mr. Thompson was executed shortly after the Supreme Court denied the stay and after Governor Perry denied clemency.  See here and here.

Broward County JuryAwards 300 Million To Former Smoker - Sister of Former Fort Lauderdale Mayor Jim Naugle

The sister of Fort Lauderdale's former mayor, Jim Naugle, was  awarded three hundred million - yes $300,000,000.00 - by a Broward County jury.  The plaintiff, Cindy Naugle, began smoking at the age of twenty and quit smoking at the age of forty-five.  The jury found her to be ten percent at fault for taking up smoking.  You can view a number of articles, courtesy of Google News, below:

Philip Morris has been ordered to pay a record $326.3 million in damages to a ...

Herald Sun - ‎7 minutes ago‎
From: AP Philip Morris has been ordered to pay $320 million to an ex-smoker in Florida, USA. Source: HWT Image Library TOBACCO company Philip Morris has ...

Philip Morris Told to Pay Smoker Almost $300 Million
Bloomberg - Edvard Pettersson - ‎16 minutes ago‎
Nov. 19 (Bloomberg) -- Altria Group Inc.'s Philip Morris USA, the largest US tobacco company, lost a $300 million jury verdict in a ...

Fla. jury awards $300 million in ex-smoker's suit
The Associated Press - Christine Armario - ‎1 hour ago‎
MIAMI — A South Florida jury on Thursday ordered Philip Morris USA to pay $300 million to a former smoker, agreeing that the tobacco company's negligence ...

Ex-Mayor Naugle's sister wins $300 million tobacco verdict - Brittany Wallman - ‎1 hour ago‎
The sister of former Fort Lauderdale Mayor Jim Naugle on Thursday won a $300 million jury verdict, the largest individual ...

Broward Jury Awards Former Mayor's Sister $300 Million in Fraud Case Against ...
PR Newswire (press release) - ‎1 hour ago‎
FORT LAUDERDALE, Fla., Nov. 19 /PRNewswire/ -- A Broward Circuit Court Jury returned a $300 million verdict against Philip Morris USA within hours of ...

All 6 related articles » - ‎1 hour ago‎
By AP FORT LAUDERDALE, Fla. (AP) — Philip Morris has been ordered to pay $300 million in damages to a former smoker in Florida, the largest award to date ...

GrayRobinson, P.A. -- "Family Medical Leave Act Extends to Cover Military"

GrayRobinson, P.A. released THIS press release:
Employment and Labor Newsletter -- Family Medical Leave Act Extends to Cover Military
November 19, 2009
On October 28, 2009, President Obama signed into law a Defense Department Fiscal Year 2010 Authorization Bill that expands the Family and Medical Leave Act (FMLA) requirements with respect to "qualifying exigency leave" for family and military members and "military caregiver leave." With regard to "qualifying exigency leave," the former law included only family members of Reservists and National Guard. That law has now been expanded to include any member of the Armed Forces who is either serving in a foreign country on active duty or is called to service in a foreign country. With regard to the "leave to care for wounded service members," the former law only included current members of the Armed Forces, National Guard and Reserves and that law is now being expanded to include any veteran who has served in the active military within the last five years.
The following is a policy which reflects the changes of the military leave requirements of the FMLA, and we suggest that you incorporate these changes into your current FMLA policy:
Families of Reservists, members of the Armed Forces, National Guard or veterans who have left service within the last five years are entitled to 26 weeks of FMLA leave during a single 12 month period to care for a family member who became sick or injured while serving in the military. Families are defined as spouse, parents, children, as well as nearest blood relative.
Employees may also be eligible for qualifying exigency leave. Immediate family members (spouse, parents and children) of members of the Reserves, National Guard, or Armed Forces who are either serving in a foreign country or who are called to active duty in support of a military operation or during an national emergency, are entitled to 12 weeks of unpaid FMLA leave to handle affairs, such as arranging for child care and school activities, financial and legal arrangements, counseling, rest and recuperation, and post-employment activities. Qualifying exigency leave counts against an employee's 12 weeks or 12 month allotment of FMLA leave.
Please contact us for more information on this topic.
William H. Andrews
On behalf of the GrayRobinson Employment and Labor Law Team

Broward County Judicial Reassignments

Last week, Broward County Chief Judge Victor Tobin entered administrative order 2009-106. The order provides the division assignment for all Broward County Circuit Court and County Court judges, inluding a number of transfers.  The order can be viewed at this link.

Wednesday, November 18, 2009

Fourth District Agrees With Third District Regarding PIP IME Issue

In Central Magnetic Imaging Open MRI of Plantation v. State Farm Fire and Casualty Insurance Company(4D09-1457), the Fourth District stated:
The issue that warrants discussion in this case is whether section 627.736(7)(a), Florida Statutes, requires an insurer to obtain an IME before denying a PIP claim or whether a “valid report” under the statute may be based on an expert’s review of the claimant’s treatment records, a so-called “peer review report.” Circuit and county court judges have interpreted the “valid report” requirement of the PIP statute differently.  We conclude, in line with the Third District Court of Appeal, that the “valid report” required by the statute does not require an insurer to order an IME before denying a claim for PIP benefits. See United Auto. Ins. Co. v. Metro Injury & Rehab Ctr., 16 So. 3d 897 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008), receded from on other grounds by United Auto. Ins. Co. v. Santa Fe Med. Ctr., 34 Fla. L. Weekly S2051 (Fla. 3d DCA Oct. 7, 2009) (en banc).
United Auto. Ins. Co. v. Santa Fe Med. Ctr., 34 Fla. L. Weekly S2051 (Fla. 3d DCA Oct. 7, 2009) (en banc) was previously discussed here.

Fourth District Grants Certiorari And Orders Complaint Dismissed For Failure To Comply With Presuit Affidavit Requirement Of Section 766.106(2), Florida Statutes

In Dr. Navarro’s Vein Centre of the Palm Beach, Inc. v. Miller (4D09-2407), the Fourth District granted a petition for certiorari and quashed the trial court's order based upon the plaintiff/appellee's failure to comply with section 766.106(2), Florida Statutes (2008).  The court stated:

The plaintiff filed a complaint against the defendant doctor and her professional association for damages arising from a laser hair removal procedure. The plaintiff alleged that the doctor’s negligence in performing the procedure caused severe burns. The complaint specifically alleged that the doctor was not performing medical treatment, but rather cosmetic electrolysis as defined by section 478.42(5), Florida Statutes (2008).
The well-accepted general rule is that the allegations of a complaint must be accepted as true for purposes of a motion to dismiss. Gowan v. Bay County, 744 So. 2d 1136, 1138 (Fla. 1st DCA 1999). However, when the factual allegations belie the conclusory legal allegations, the trial court is permitted to, indeed must, apply the law to the well-pleaded factual allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence. Brandon v. Pinellas County, 141 So. 2d 278, 279 (Fla. 2d DCA 1962) (“Mere statements of opinions or conclusions unsupported by specific facts will not suffice.”).
While we normally do not review orders denying motions to dismiss because there is an adequate remedy at law in the final appeal, declining to do so in this case would cause irreparable harm. The Medical Malpractice Reform Act was designed to provide cost-saving pretrial procedures as a response to the medical malpractice crisis. To allow this case to proceed to a possible judgment, only to be reversed would eliminate the very cost-saving procedures for which the Act was created. Here, “relief by direct appeal would be no relief at all.” Pearlstein, 500 So. 2d at 587. We therefore find the requisite irreparable harm.
We grant the petition, issue the writ, quash the order, and remand the case to the trial court for dismissal of the plaintiff’s complaint for failure to comply with the presuit screening process of section 766.106(2).

Supreme Court Denies Two Requests For A Stay Of Execution - Both With Three Dissents

The Supreme Court denied two requests for stay of execution this week: Elliott v. Kelly (09-444) was denied Monday and Simpson v. Thaler (09-7505) was denied on today.  In both cases, Justice Stevens, Justice Ginsburg, and Justice Sotomayor would have granted the requests.

Mr. Elliott was executed tonight by electrocution [see an article here].  The decision to die by electrocution was his own as Virginia gives the person the choice of how they would like to be killed.  

Mr. Simpson was executed tonight by the State of Texas. The Dallas Morning News states that "A convicted killer who volunteered for execution but in recent weeks changed his mind was put to death Wednesday evening for the abduction-slaying of an 84-year-old east Texas woman who was weighted down with a cinder block and thrown into a river."  You can read the Dallas Morning News article here.

Proposal For Settlement That Addressed A Complaint That Included Non-Damage Claims Is Invalid

In Palm Beach Polo Holding, Inc. v. Equestrian Club Estates Property Owners Association, Inc. (4D08-2250), the Fourth District reversed a trial court order awarding attorneys fees pursuant to the proposal for settlement/offer of judgment statute. The issue was an issue of first impression for the Fourth District, "whether a general offer applying to an entire case that includes both claims for damages and other claims can be binding upon the unsuccessful party."

The facts of the case were discussed in a prior opinion from the court, Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Ass’n, Inc., 949 So. 2d 347 (Fla. 4th DCA 2007). Generally, the facts are:

Appellee, Equestrian Club Estates Property Owners Association, Inc. (Association) owns a private road which the appellant, Palm Beach Polo Holdings, Inc. (Palm Beach Polo) wanted to use to access an otherwise landlocked parcel of property know as the “one hundred acre lot.”
After a non-jury trial, which was affirmed by the 2007 decision linked above:
The defendant moved for attorney’s fees based, in part, on three proposals for settlement dated December 4, 2001, February 1, 2002 and April 30, 2004. Each proposal for settlement was pursuant to Rule 1.442, Florida Rules of Civil Procedure and Section 768.79, Florida Statutes (2008), and offered to pay $1,001.00 as complete and final resolution and settlement of all claims. The Association’s April 30, 2004 proposal offered the payment “as a complete and final resolution and settlement of all claims asserted by [Palm Beach Polo] against [Association] in this action.” The February 1, 2002 proposal for settlement used similar language. It stated “the proposal for settlement is for all claims brought against defendant, Equestrian Club Estates Property Owners Association, Inc., a Florida corporation, by the plaintiff, Palm Beach Polo Holdings, Inc., arising out of the litigation in this lawsuit.”
The trial court awarded attorneys fees pursuant to the offer of judgment statute, leading to this appeal. "Section 768.79 provides the substantive law concerning offers of judgment and proposals for settlement, while Rule 1.442, provides its procedural mechanism. Saenz v. Campos, 967 So. 2d 1114, 1116 (Fla. 4th DCA 2007)."

The offer of judgment statute applies only to civil actions “for damages.” § 768.79. In this case, the action brought by Palm Beach Polo involved three essential Counts, two seeking declaratory judgment and only one seeking damages. One of the declaratory counts sought a way of necessity to obtain access to the “one hundred acre lot.” As pointed out by the trial judge, this claim served as a predicate for the tortious interference action, but it also had significant value independent of any monetary recovery for tortious interference.
In the instant case, the complaint contained two independent, significant claims, such that it could be characterized only as an action for both damages and non-monetary, declaratory relief. In order to determine whether the trial court erred in finding that the defendant is entitled to attorney’s fees pursuant to the offer of settlement, it must be determined whether a general offer applying to an entire case that includes both claims for damages and other claims can be binding upon the unsuccessful party. This issue has not yet been addressed by this court.
(emphasis added). After an analysis of the statute, the court concluded:

Here, the proposals for settlement did not state whether the association was agreeing to entry of any injunctions, or declaration of Palm Beach Polo’s grant of way of necessity, yet it claimed to be a proposal to settle all claims. If the statute were read to permit a proposal for settlement to apply to a case in which there were claims for noneconomic relief as well as for damages, the offeree would be forced either to accept the proposal and continue to litigate the request for injunctive and non-economic relief or to give up their non-damage claims. The purposes of section 768.79 include the early termination of litigation. A proposal for settlement in a case such as this one does not satisfy that purpose, as its acceptance would not terminate the litigation nor resolve those claims not seeking damages. Because the proposals for settlement addressed a complaint that included non-damages claims, they do not comply with the statute, and we find them invalid and reverse the trial court’s order awarding fees.

Rothstein Accepts Being Disbarred As Opposed To Being Disbarred After A Hearing

There have been a number of news stories the past twenty-four hours about Scott Rothstein "suggesting" he be disbarred.  See here, here, here, and here.  The official statement from the Florida Bar, which can be found here, states:
"The Florida Bar and Scott W. Rothstein have agreed to his permanent disbarment – subject to the approval of the Supreme Court of Florida – in lieu of Rothstein defending himself against allegations of disciplinary violations. Rothstein was under investigation for violations of The Rules Regulating The Florida Bar, including misappropriation of funds from trust accounts.

"The Florida Bar has been monitoring the federal investigation of Mr. Rothstein and we have been in contact with the court-appointed receiver for the firm as well as the U.S. Attorney’s Office. While the case is very complex, it became evident that Bar rules may have been violated.

"This is a terribly unfortunate and tragic situation, but it is also a rare circumstance in the legal profession. The great majority of Florida attorneys serve their clients admirably and in accordance with the Bar’s rules of professional conduct. However, rule violations are not tolerated and the Bar takes appropriate actions to protect the public against further harm. The Florida Bar will continue to investigate any violations of its rules by other attorneys who may have been involved in this case.

"Additional details of the disbarment on consent will be available when the document has been received by the Supreme Court."

Interestingly, Mr. Rothstein is still listed as eligible to practice law n the state of Florida and listed without any discipinary history on the Florida Bar web site.  You can see that listing here, however, I am sure they will soon fix this issue.  [Update: As of 10:00pm on November 19, 2009 Mr. Rothstein is still listed as a member in good standing with no disciplinary history]. Mr. Rothstein is also still a member of the Fourth District Court of Appeal nominating committee and the SunSentinel states there are no plans to remove him.  Also, as the time I am posting this, it does not appear as though anything has been filed with the Florida Supreme Court.  However, the Florida Supreme Court has more important things to do than deal with Scott Rothstein. 

Mr. Rothstein was previously discussed everywhere on the internet including on this blog here, here, here and here.