Ultimate Ponzi - Book About The Rothstein Ponzi Scheme

A new book is coming out about the Scott Rothstein Ponzi Scheme. The book is titled Ultimate Ponzi and can be Pre-ordered from Amazon.com at the following link: Ultimate Ponzi, The: The Scott Rothstein Story (as of this time it is not available for Pre-order from Apple).

While on the subject of some of Broward County's better moments, apparently, there is a discussion about changing the name Broward County to Fort Lauderdale. Looking at some of these stories, maybe a name change wouldn't hurt.

Southern District of Florida to Participate In Electronic Records on Appeal Program

On Friday, the Southern District of Florida sent the following email to registered CM/ECF users:

Effective February 1, 2013, the United States Court of Appeals for the Eleventh Circuit has approved the Southern District of Florida's participation in the Electronic Records on Appeal program (EROA). For information about how this may impact your future filings with the United States Court of Appeals for the Eleventh Circuit, please refer to their website

 

Facebook Friends With The Judge? Fourth DCA Certifies Question

In Domville v. Florida (4D12-556), the Fourth District addressed the issue of a judge being Facebook friends with a lawyer appearing before the Judge (see below as Florida's Judicial Ethics Advisory Committee issued an opinion on the issue in 2009). The court certified the following question to the Florida Supreme Court:

Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?

In a special concurrence, Judge Gross stated that "recognize that the ability to participate in social media is of great importance to many and there are disagreements between reasonable persons about the way that a judge may take part in social media sites such as Facebook...[but]Judges do not have the unfettered social freedom of teenagers." (emphasis is mine).

Judge Gerber dissented as to certification and stated:

The majority does not provide its reasoning for its conclusion that the certified question is one of great public importance. The only reasoning for its conclusion appears to be stated in the concurring opinion. I disagree with the concurring opinion’s reasoning.

The concurring opinion reasons that the ability of judges to participate in social media with attorneys who appear before them “is of great importance to many.” However, the concurring opinion does not cite any authority for that statement. On the contrary, as the concurring opinion recognizes, common sense suggests that the public, without question, would appear to desire otherwise: “Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance . . . [A] person who accepts the responsibility of being a judge must also accept limitations on personal freedom.”

Related, but not discussed, is a 2009 Florida's Judicial Ethics Advisory Committee opinion that addresses this exact issue and concludes the answer is NO. A judge cannot be Facebook friends with the lawyers that practice before that Judge. See a prior post on the issue HERE. That opinions summary of issues stated, in part:

Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

ANSWER: No.

"My Beloved World" by Supreme Court Justice Sonia Sotomayor

Supreme Court Justice Sonia Sotomayor is releasing a book this week titled "My Beloved World." You can buy the book from Amazon at the following links: Kindle Version OR Hardcover. If you prefer Apple's iBooks, HERE is a link to purchase it from Apple. There are a number of reviews available including by Andrew Cohen for The Atlantic, Jay Wexler for The Boston Globe, Dahlia Lithwick for The Washington Post, and Nina Totenberg for NPR.

Insurer Not Required To Provide Claims File When Coverage At Issue

In State Farm Florida Insurance Company v. Desai (3D12-2586), the Third District granted certiorari and quashed the trial court's order compelling the production of certain documents. The court stated that "prior to a determination as to coverage, the trial court entered a discovery order requiring State Farm to (1) produce claim manuals and/or guidelines relating to certain policy language and (2) provide a representative to testify as to the claims manual, guidelines, and insurance policy." The court noted that "in seeking certiorari review of the discovery order, State Farm contends Florida law 'prohibits insureds from obtaining discovery into an insurer’s claims files and claims handling materials until contract/coverage litigation has been concluded.'” Agreeing with State Farm, the court stated that "as State Farm’s argument is well taken, we grant the petition for writ of certiorari and quash the discovery order under review."

Citizens Appraisal Clause Requires Agreement Of Parties

In Citizens Property Insurance Corp. v. Casar (3D11-2843), the Third District reversed the trial court's order compelling appraisal because the insurance policy at issuer required the agreement of the parties before appraisal could be invoked. Specifically, the court stated we "reverse as there was no agreement between the parties to appraise the loss as required by the appraisal provision of the Citizens policy." The court stated that "appraisals are creatures of contract" and "what is appraised and whether a party can be compelled to appraisal depend on the contract provisions." In this case, "Citizens complied with the appraisal provisions of the Policy. Citizens forwarded an Agreement for Appraisal. The Casars would not agree to the terms. Therefore, appraisal could not take place. Citizens complied with the policy provisions and, as such, the trial court had no basis to compel Citizens to appraisal." Therefore, the order compelling appraisal was reversed.

Vacating A Judgment/Order Requires Sworn Testimony Or Evidence--Not A Lawyers Argument

In Chase Home Loans v. Sosa (3D12-1783), the Third District reversed an order vacating a foreclosure sale. The motion was filed by a husband who asserted that his wife, a co-signatory on the mortgage, "'actively concealed' the proceeding by hiding all notifications under the family sofa." The trial court vacated the sale, presumably "inspired by benevolence and compassion for the family." However, there was no issue of service of process and there was no sworn evidence or testimony submitted in favor of vacating the foreclosure sale. 

The court stated that:

The husband’s motion was brought under Florida Rule of Civil Procedure 1.540(b), which permits a trial court to relieve a party or a party’s legal representative from a final judgment, decree or order based upon mistake, inadvertence, surprise or excusable neglect. However, as we often have said, unsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation....“It is of no moment in establishing facts that attorneys are ‘officers of the court’ as we often read when an unsworn representation is made.”...Nor is the fact that the wife may have been the subject of some undetected “degree of mental incapacity” during the course of the foreclosure action. Even if true, this does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant vacating a final judgment.

A motion to vacate requires the submission of actual sworn evidence in order to be considered on the merits. The motion in this case did not even have that. Because the attorneys mere legal argument was not sufficient, the court reversed the order vacating the foreclosure sale. 

Florida Supreme Court: Certification of Need for Additional Judges

In In re: Certification of Need for Additional Judges, the Florida Supreme Court fulfilled its constitutional obligation and sent a report to the Legislature regarding the various needs of the judiciary.

The Court noted the following regarding the circuit & county courts: "Several of our chief judges note, in particular, the long waits associated with obtaining hearing times. In some jurisdictions, dockets are so full that it takes several weeks to schedule a hearing." I imagine many lawyers in South Florida would be thrilled if it only took several weeks to obtain a hearing time. But, the Court's point is certainly correct.

With regard to the appellate courts, I found the following to be particularly interesting: "The Second District also notes that despite high caseloads and a reduction in resources including personnel, the judges and staff have made every effort to properly execute their responsibilities. However, they do so knowing that trying to absorb this increased workload limits the time available for the consideration of each case and the writing of opinions. This Court shares the concerns of the chief judge of the Second District and remains concerned about a diminished quality of justice resulting from high workload and a loss of resources." (emphasis supplied).

The Court certified the need for one additional Second District judge. The needs of the circuit and county court were included in an appendix to the opinion, which is copied at the bottom of this post. In what is a somewhat sad concluding statement, given the real need for new judges, the Court said: "To the extent funding is available, we urge the Legislature also to consider our certified need for additional judges."

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Funds Not Property Of ERISA Plan Until Remitted To Plan

In Pantoja v. Zengel (12-11036), the Eleventh Circuit affirmed the trial court's judgment that the money at issue was not an asset of the ERISA plan where the money had never been given to the ERISA plan. The court held:

Upon examination of the Plan documents, we find no clear and specific language indicating the fringe benefits are “plan assets” before they are actually remitted to the Plan. Indeed, unlike the plan documents in ITPE Pension Fund, this contract is not even susceptible to such a reading. See 334 F.3d at 1016. Without clear language or any evidence indicating otherwise, we conclude that the unpaid funds cannot be construed as plan assets; therefore, the Appellees did not breach a fiduciary duty as a matter of law.