3d DCA Watch -- When Granny Gets Mad, Run for the Hills!

Hi folks, it's that time of the week, so let's dive right in and see what our merry band of appellate judges to the south are up to in this week's edition of 3d DCA Watch:

Weiss v. Courshon

Hooray! Judge Salter is back, he's sick of crappy pro se pleadings, and he's not afraid to say so in the utmost polite, classy and professional manner that stands in stark contrast to certain cranky more senior judges that shall remain nameless but which have last names that rhyme with "warts."

Specifically, in a longstanding estate battle that SSD's Alvin Davis has been handling since he put on his first bow tie several decades ago, Judge Salter removed the pro se appellant's case from the oral calendar, found her arguments to be frivolous, and affirmed the lower court's dismissal for lack of prosecution with this lovely send off:

Weiss’s intemperate briefs in this case, as in prior cases, urge us to believe her and not the record. She expects this Court to believe, for example, that the circuit court clerk’s office docketed a non-existent notice to show cause why the case should not be dismissed for failure to prosecute; that only the on-line docket, and not the notice itself, alerted her to correspond with the court (over a week before the hearing) and send a local attorney to review the court file for a docketed notice that was not in the file; that opposing counsel somehow tricked the trial judge’s judicial assistant and a court reporter on the morning of the scheduled hearing; that a highly-respected trial judge made an incorrect notation on the order of dismissal regarding a telephone call to a number that Weiss supplied; and that, given another decade or so, Weiss might ultimately come to Florida to prosecute her inflammatory complaint launched so many years ago. Suffice it to say that none of these suggestions is grounded in the record.

As Judge Winifred Sharp noted several years ago in another case involving a “frequent applicant” to her court: “This case reminds me of my grandmother’s final warning and admonition to me and my siblings as children, when we had exhausted her patience with our doings. ‘Enough is enough,’ she would say. And that was the end of it.”

I guess it was better to end that tender and heartwarming anecdote right there, because if I recall that opinion correctly here's what happened next:

"Then Granny would take out her jug of triple-x moonshine, make us get some switches from the cellar, and chase us around the cee-ment pond swigging her white lightning and smacking our behinds until she done nearly whacked our entire backsides back to Tennessee! Sooeee Granny, you're one ornery son of a gun!"

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Rebekah Poston and Alvin Davis: Frank Jimenez Was A Good Worker.

I mean why all the contretemps, what more do you need:

Rebekah Poston, Jimenez's former boss at the law firm Steel Hector Davis in Miami, said that based on the work he did for her, Jimenez would be an excellent choice for the Supreme Court. ''He was a superb writer, superb researcher and his ethics were beyond reproach,'' she said. ``He was able to look at both sides of issues.''

Rebekah, that's nice and all, but stop reading old associate review files.

Alvin Davis has more:

Alvin Davis, also formerly of Steel Hector Davis, agreed. ''He has strong views, which I think people should have, but he does not let those views interfere with what he is called upon to do,'' he said. ``We disagreed politically on just about everything. We had vigorous political debates, and it did not interfere with his work for me one bit.''

Davis continued:

"For example, Frank thought there was no way I should wear a burnt orange shirt with a black vest to be photographed by the DBR. I disagreed and said it was the perfect look for me. Anyway, we fought over this for hours but eventually Frank said he understood my position and would defer to my sartorial tastes. Personally, I think that shows excellent judgment."

Meanwhile, some "critics" (read: SORE LOSERS) are apparently concerned about some ancient concept dreamed up by old Englishmen called "the process." This is a corker of a story by Jordana Mishory:

The commission destroyed public confidence in the JNC, critics said.

“We are a constitutional body created precisely, precisely, to restrain the governor’s power of appointment,” said JNC member Arturo Alvarez during the Wednesday night meeting.

“I believe that it is extremely important that we avoid even the appearance of impropriety or that choices are somehow influenced by the governor’s wishes regardless of the motivation of the governor.”

Alvarez, who sources say was an outspoken opponent of Jimenez, was in the minority of JNC members who advocated not sending the governor additional names.

Tony Alfieri, the director of the Center for Ethics and Public Service at the University of Miami, said the process that led to Jimenez’s nomination will have lasting damage on the commission’s credibility.

“Although the JNCs are political bodies and the appointment and selection process is highly politicized, this particular moment demonstrates the high water mark of political interference by the governor’s office,” Alfieri said. “Given this blunt interference by the governor, it is very unlikely that the JNC would be able to rebuild the integrity of the selection process.”

The JNC sent five names to the governor on Dec. 8 out of a batch of 18 candidates to replace retiring Justice Harry Lee Anstead. But, two days later, Crist appointed the lone Hispanic finalist to the 4th District Court of Appeal and called for the JNC to reconvene to provide him with a more diverse list.

Critics contend that sidelining the only Hispanic finalist was the first move in an elaborate, last-ditch effort to get Jimenez nominated using the guise of diversity.

During Wednesday’s contentious meeting, the JNC voted 5-to-4 to consider sending additional names and convened a second closed meeting to deliberate on who to add to the nomination list.

JNC Chairman Robert Hackleman originally intended to have both meetings closed, but after opposition from the Daily Business Review, which contended that such a meeting would violate the state constitution, the panel held two meetings: one open discussion to decide how to respond to the governor and a second to choose any nominees if the commissioners decided to do so.

A minority of the JNC consisting of Miami-area attorneys Alvarez, Candace Duff and Katherine Ezell, and Jacksonville lawyer Howard Coker complained that adding more names to the nomination list could diminish the commission’s credibility and violate its rules.

“If we agree to re-deliberate, nominate someone else and they’re appointed by the governor, the whole world will know that person did not have the support of the majority of the JNC last week,” Alvarez said. “That is grossly unfair to the extraordinarily well-qualified nominees.”

Jimenez was the only person nominated by the deeply divided commission after the Wednesday night meeting.

Jimenez did not return calls for comment by deadline.

A number of commissioners voiced concerns that Crist’s request for new nominees was a move to appoint a specific person. Commissioners said they had been approached by people who felt the selection process had become very political.

“We have an obligation to protect the integrity of the process,” Alvarez said. “People are talking all over this town: ‘Why is that happening? What is taking place? You said only five, how can there be six?’ ” He said it was the JNC’s job to restrict the governor’s appointment power.

Political? Why would anyone suggest that? Well, there is this:

In 1999, the St. Petersburg Times reported Jimenez helped hatch a plan to recruit judicial applicants who were “ideologically compatible” with Bush.

And also this, from the glorious days of that entirely nonpolitical 2000 Florida recount:

Bush officially recused himself on Nov. 8. Before he did, sometime early that morning, probably around 3 a.m., either the governor or “someone speaking to the governor” phoned Clay Roberts, head of the state’s election division, and asked, “How does the recount work?” Roberts recalled Thursday.

Roberts said that was his last contact with Gov. Jeb Bush. But it was not his last contact with Bush’s staff.

Frank Jimenez, an attorney on Jeb Bush’s staff, has phoned Roberts several times since the recount effort began. Jimenez has been on leave since Nov. 8.

Roberts said Jimenez called him Sunday, asking whether he had yet received a written request from the chairman of the Palm Beach County canvassing board for an opinion on whether a hand recount could be conducted if the mistakes on the ballots were caused by voter confusion, not machine malfunction.

Roberts said he told Jimenez that the Florida secretary of state’s legal staff had already begun working on such an opinion after hearing the Palm Beach chairman say on television that he wanted one. But Roberts said he told Jimenez he had not yet received a written request from the chairman for it. Jimenez then told him that “we” were going to request one instead.

It wasn’t until Roberts got a fax from the Republican Party of Florida seeking the opinion that he knew for sure who Jimenez was working for. “When he said he was going to request an opinion, I assumed he was on leave because I knew he couldn’t do it for the governor’s office,” Roberts said.

“He’s called me a couple more times with technical questions: ‘How do absentee ballots work?’ ” he said.

Jimenez did not return a phone call on Thursday.

Sheesh Frank, do you ever pick up your phone?

If you're intensive on all of this, here are few more links:

Frank's Facebook page is here (sorry Arturo, you have to be his friend!).

Jake Tapper has more on Frank's role in the 2000 recount here.

And according to the AP, Crist claims to have something up his sleeve besides satisfying the Bushies and getting ready for 2012:

Crist said he was grateful the commission expanded the pool and that critics "are going to be surprised."

"Those who are making those prejudgments are making prejudgments, and they're premature," Crist said.

"One more thing -- the key word here is 'pre,'" the Governor added.

Oy -- who knows? I guess we better stay tuned.

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Special Holiday 3d DCA Watch -- Bah Humbug Don't Bother Suing FPL Over Anything Edition

Hi kiddies, so how is your humpday so far? Let's take a gander at what's going on around town, shall we?

The largest bank in Florida, BankUnited, is down $327 million and may be soon out of business.

The $1 billion port tunnel project, designed to relieve downtown congestion and improve port access for trucks delivering cargo to and from the port, is apparently off again.

But don't worry, the Marlins stadium may be delayed but it is still on:

"The delay caused by the frivolous litigation has directly led to this decision," Samson said. "We were put into a position that the risk of opening in 2011 was no longer manageable.

"Opening in 2012 will not impact the project cost at all. The total project cost is still $515 million. The team is still covering every penny of overrun, if any. No matter what the overruns are."

HAHAHAHAHA! Oh Dave Samson, you and your crappy taste in movies really make me laugh! "Every penny"? Where's the money going to come from -- BankUnited?

Anyway, I'm sure you're right -- I can't imagine why anyone would possibly think there could be overruns in a massive publicly-financed South Florida construction project, especially in this economic environment. Full speed ahead on that financially secure venture!

Oh I almost forgot. Yes, our gingerbread-flavored coffee-swilling robed ones have been busy, overseeing the legal elves who toil all week so that every Wednesday wondrous legal opinions are carefully wrapped and tucked snugly down the chimney of a secure website, where they are given out to every good boy and girl lawyer in all of South Florida.

So let's get right to our special holiday edition of 3d DCA Watch:

Extraordinary Title v. FPL:

Like Mel Brooks said, "it's good to be the King."

Here, it's good to be FPL, which cannot be sued for allegedly taking your money under false pretenses, unless the PSC decides it's a good idea. This suit involves the federal corporate taxes that FPL collects from you that don't actually get paid to the government as federal corporate taxes. Instead, they are shipped to parent FPL Group, which manages to avoid paying these taxes because the parent has a lot of unprofitable subs so let's just forget we collected them anyways, ok?

Ok, says the 3d:

In the instant case, as in Albert Litter Studios, we must examine the Plaintiff’s second amended complaint to determine “the nature of the relief sought.” A review of the complaint indicates that, although it prays for “an award of actual damages,” in reality the Plaintiff is seeking a refund of a portion of the rate charged and collected by FPL. In fact, paragraph 32 of the second amended complaint alleges, in part, that “tax monies initially derived from the bill payments
made to [FPL] by said account customers should be refunded to said account customers.” (emphasis added). Therefore, as in Albert Litter Studios, we conclude that, pursuant to section 366.04(1), the Commission has exclusive jurisdiction over the Plaintiff’s claim against FPL, and therefore the trial court properly dismissed Count I of the second amended complaint with prejudice.

Now technically it is theoretically possible that the PSC will suddenly wake up and look into this issue, and maybe even force FPL into giving some of this (non)tax money back.

HAHAHAHA -- now I sound like Dave Samson.

Congrats to Alvin Davis for not only rocking that holiday vest/shirt combo but also for winning yet another one for FPL.

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Scott Dimond Has a Good Case; Alvin Davis Wants to Defend It

I kid I kid. Scott has lots of good cases, but this one seems exceptionally strong:

Miami's Astar Air Cargo claims it was defrauded by Merrill Lynch and is demanding the return of $9 million the carrier said is frozen in an investment account with the brokerage.

Astar also wants Merrill Lynch to pay more than $27 million in punitive damages, alleging in an arbitration complaint that the company invested in auction-rate securities based on Merrill Lynch's assurances that they were safe investments easily converted to cash.

But with the collapse in demand for the securities, Astar says its assets are tied up in illiquid investments it can no longer access.

Mark Herr, a Merrill Lynch spokesman, said the suit has no merit.

Astar's ''CFO is a sophisticated businessman who wanted higher yields than cash could give the company,'' Herr wrote in an e-mail. ``Astar knew it was trading liquidity for yield because its people discussed this and the risk posed by auction-rate securities before they purchased them.''

Dimond Kaplan & Rothstein, the Miami law firm representing Astar, said it is talking with dozens of other individuals and companies it says are stuck with auction-rate securities and expects to file similar arbitration claims in coming weeks.

Astar's claim was filed with the Financial Industry Regulatory Authority, which regulates securities firms.

''Astar is a victim of a brokerage making an unsuitable investment recommendation,'' said Astar lawyer Scott Dimond. ``Astar asked [Merrill] for something that was safe and liquid and Merrill hands them something that's not.''

Astar, which is 49 percent owned by Plantation-based express-delivery firm DHL, began investing in preferred shares of closed-end municipal bond funds in 2004. The interest rates on the securities are slightly higher than those on money-market accounts, Dimond said.

Astar said it invested, on average, between $20 million and $25 million through late last year. Dimond said Merrill promised to buy Astar's investments in the event the company needed access to its funds before the auctions -- which are typically held every seven, 28 and 35 days.

But auction failures multiplied recently as investment banks refused to step in to buy as they had in the past.

Dimond blamed that on banks' exposure to the subprime mortgage crisis. Bloomberg News reported last month that ``investors and borrowers never knew the extent that banks propped up auctions because of scant public disclosure of bidding.''

Yet another less-than-obvious result of the deepening subprime mortgage crisis, and resultant depression.

Still, if Alvin Davis is correct, this will be a very good time to be a defense lawyer in South Florida:

South Florida businesses and entrepreneurs who have been involved in the subprime real estate market and its ancillary investments should make haste. There is a chilling inevitability about the increase in securities class actions and related litigation that will follow the bursting of the subprime ''bubble.'' The financial losses have been great, and the suits brought by plaintiffs eager to recoup their losses will branch out to any and all parties who can be proved negligent.

(Yes, and please hire me to handle the defense work).

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For Alvin Davis Diehards Only

I think the picture pretty much sums it up, I really have nothing more to add.

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Noted Without Comment (UPDATED).

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Alvin Davis On Firing "A Couple," "Some," and "A Few People."

Intrepid reporter Julie Kay delivers this deliciously rich language from Alvin in describing layoffs at SSD:

Alvin Davis, managing partner of Squire Sanders' Miami office, said on Friday that nine employees in Miami were laid off at the firm on Thursday, including "a couple runners, some staffers and a few people in accounting."

Got it -- what a bunch of anonymous nobodies.

And here's talented legal recruiter Abbe Mald Bunt on the significance of these firings:

"Part of it is humans have been replaced by technology, but the sad part is technology is not who gathers in the communal kitchens to keep the culture and spirit of a firm alive."

Note to Abbe -- those kitchen-lurking slackers usually consist of "a couple runners, some staffers, and a few people in accounting."

Anyways, what are you talking about -- have you seen that rockin' shirt/vest/glasses combo?

The spirit's alive, baby, oh yes it's alive.

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