Hi kiddies!

Is it kismet, fate, or simple indigestion that I happened to glance at my DCBA Bulletin and, after reflecting on the full-color beauty that is my friend Timothy Ravitch (what, no color for Gisela Munoz?), noticed that the DCBA plans to honor Judge Schwartz with a Judicial Excellence Award.

Hey, I just report this stuff.

But alas it is hump day, and my job here is not done. Yes, I must read the scribblings! Or magnificent examples of legal scholarship, you decide.

Whatever you call it, the Resplendently Robed Ones have issued Important Utterances, and damn you, WE WILL NOT BE IGNORED.

Ok ok, we're interested, really, even all you Fancy Pants federal court practitioners, because sometimes those judges (at least the Catholic ones) also try to figure out Florida law.

And good luck with that whole thing.

So onward we go, through the coffee-swilled landscape of beautiful South Dade, and on to this week's patently, patiently, I mean patented 3d DCA Watch:

Hall, Lamb v. Sherlon:

Oh this is a fine South Florida story. Poor Andy Hall, nice guy and good lawyer. Has a client, tries to settle case, client fires him and hires a suspended attorney. Andy then files charging lien, the parties settle, and the suspended lawyer steals all the settlement proceeds.

Just another day in paradise, folks.

Trial court refuses to adjudicate lien against settling defendant. Court reverses, finding that there may be joint and several liability against the appellee/defendant:

Here, it is undisputed that upon being terminated, the law firm notified the parties of its interest in recouping the fees earned during the course of representing the former client. Such a perfected lien is “chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future.” Hutchins v. Hutchins, 522 So. 2d 547, 549 (Fla. 4th DCA 1988) (emphasis added). See also Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574, 580-81 (Fla. 1st DCA 1993) (holding that if a party has notice of an attorney’s charging lien, pays out a settlement to the attorney’s client, and fails to protect the attorney’s interest, the paying party may be held jointly and severally liable for the attorney’s fees along with the attorney’s client to the extent of the settlement proceeds or other funds held). Accordingly, the law firm argues that Sherlon, along with the former client and Blumstein, may be held jointly and severally liable for the fees earned during the law firm’s representation of the former client. We agree.

There is no question that as a party to the settlement, Sherlon had an affirmative duty to notify the law firm of the settlement and to protect the law firm’s lien interest in the settlement proceeds. Zaldivar v. Okeelanta Corp., 877 So. 2d 927, 930 (Fla. 1st DCA 2004). Similarly, the record now before us indicates that although Sherlon and the former client reached a settlement by the end of September 2006, Sherlon failed to notify the law firm of the settlement in any way until November 2006—when the parties obtained a dismissal of the action with prejudice from the trial court. Furthermore, Sherlon took no other steps to protect the law firm’s interest. Sherlon did not ask the trial court to prevent the direct payment of the law firm’s fee to Blumstein and the former client or to set those funds aside. Instead, Sherlon paid the entire settlement to the former client (through Blumstein) without providing safeguards for the law firm’s lien interest. And regardless of Sherlon’s intent, by doing so, Sherlon may have committed a fraud upon the law firm. Heller v. Held, 817 So. 2d 1023, 1025 (Fla. 4th DCA 2002).

But no, says Judge Schwartz in dissent. In fact, Judge Schwartz grants the appellee a phantom summary judgment, absolving them from all potential liability:

While I agree that Sherlon did not appropriately alert the appellant law firm of the settlement, I dissent from reversal because that failure was not a legal cause of the firm’s failure to recover.

The reason for informing the lawyer of a settlement is to permit him to take steps to protect his charging lien. See Zaldivar v. Okeelanta Corp., 877 So. 2d 927 (Fla. 1st DCA 2004). In this case, however, the Hall firm, by other means, actually learned not only of the settlement but of the location of the proceeds: in “escrow” with the plaintiff’s representative, a person who stated he was an attorney, but was not. Indeed, the firm succeeded in imposing a charging lien on the fund – just as it would have had the defendant given appropriate notice. Hall did not get its fee, however, only because the “escrow agent” eloped with the entire settlement. Putting it in legalese, the theft was the sole proximate cause of Hall’s damages. Obversely, the appellee’s missteps were immaterial to and were thus not a legal cause of the loss.

First of all, that's not the issue on appeal but umm, how do you know this, Judge? The majority opinion specifically states that "Sherlon did not notify the law firm of the settlement or that it had transferred the total amount to Blumstein."

Maybe if Andy was aware of the pending transfer, before it went to Blumstein, he could have moved to have it placed in a different escrow account or maybe the registry of the court?

Or is that question too obverse?

Careful readers know I adore Judge Schwartz.

And it's not just the ticky-tacky, gloriously large nature of his opinions, it's what he says sometimes too!

Here he is patiently explaining the proposed rule change so that convicted felons can't ever become lawyers, ever:

“We just felt it was inappropriate to have convicted felons barred from being on the Game and Fresh Water Fish Commission and being teachers and masseurs, and a whole slew of what would seem to be non-responsible positions, and not have it impossible to be a felon for a lawyer,” said Third District Court of Appeal Senior Judge Alan Schwartz, who chaired the 15-member commission.

Exactly --a whole slew!

Teachers, masseurs, hot dog vendors, cosmonauts, law professors, you know, meaningless non-responsible dead-end jobs nobody gives a hail about.

I got into a debate with someone at the courthouse the other day over which bunker is more secure -- Scott Rothstein's padlocked and elaborately secure Fort Lauderdale lair, or the newly reinforced and fortified judicial bunker by the highway.

In many ways they are similar:

** armed guards -- check;
** intercom and/or pneumatic tube messaging system -- check;
** inhabitants garbed in resplendent robes when preparing court orders -- check;
** miles of concrete poured for no apparent aesthetic purpose -- check.

But hold on -- only one has free coffee, right?

Sorry Scotty, I have to go with my heart (and stomach) on this one.

So let's see what word tea our master brewers have prepared for us (one day late) this week:

Cohn v. The Grand:

Anyone remember that Phil Collins song from the 80s, Pom-Pom-ponio?

(Man, what the hail were we thinking?)

Well Judge Cope does, and he pulls out that old chestnut to do a "substantial impairment" analysis of a condo regulation.

I've never been a fan of the "substantial impairment" test -- haven't we all been substantially impaired at least once in life -- maybe in college at least?

Even a statute deserves a second chance.

But it is what it is, and under the Pomponio analysis that dumb legislature went ahead and impaired contractual relations for no good reason -- just because they think they can, that's why.

But then that's why we have courts, right?

Right?

Bell Care Nurses v. Continental Casualty:

See, this is why I do this blog.

Here's Judge Schwartz referencing a classic Alan King comedy bit (sorry Judge, I couldn't find it on YouTube):

An ever-diminishing few of us remember Alan King’s story about a homeowner with a fire and theft policy who made a claim when his house burned down. He was met with the company’s denial of coverage on the ground that he needed instead a fire or theft policy and that, as written, the policy applied only if he were robbed while his house was on fire.

This case shows that things never really change.

And there's more:

We now revert to a traditional, formulaic, non-discursive discussion of the case before us.

Hey -- why so soon?

Don't do it on our account, we like nontraditional, wildly unformulaic, discursive opinions much better.

(And sorry about the ruling, Laura).

That was great of the Judge to bring up Alan King. Alan was a great stand up, fine actor, and wrote some really superb books, including Is Salami and Eggs Better Than Sex? and his reflections on growing up, Matzo Balls For Breakfast

My personal favorite is I believe his first book, Help! I'm A Prisoner in a Chinese Bakery -- a skewering of the newly emerging Mad Men-era suburbia that still holds up today -- and sadly out of print, just like Alan.

RIP old man.

Hi kids!

I just started R. Crumb's newly published book -- four years in the making -- which is an illustrated word-for-word graphic retelling of the entire Book of Genesis.

Here is Amazon's blurb on it:

This eagerly awaited graphic work retells the first book of the Bible in a profoundly honest way. Peeling away the theological and scholarly interpretations that have often obscured its most dramatic stories, R. Crumb—using the actual text word for word—has imagined the Bible as it really was. Now, readers of every persuasion—Crumb fans, comic book lovers, history buffs, and believers—can gain astonishing new insights from these harrowing, visceral, and even juicy stories. Crumb’s The Book of Genesis reintroduces readers to Adam and Eve’s Eden, Noah’s Ark, Sodom and Gomorrah, and the Pharaoh’s Egypt. Using clues from the text, Crumb fleshes out the parade of biblical originals: from the sensitive dreamer Joseph to the crafty Jacob, to the still-fetching Sarah, to God Himself. The result, four years in the making, is a tapestry of extraordinary detail, the finest work of Crumb’s legendary career.

So far I have to agree with Amazon -- it's as good as they say -- with lots and lots of Biblical canoodling and plenty of God's wrath.

The reason I mention it now is because Judge Schwartz drops some wrath of his own on Judge Valerie Manno Schurr.

Her crime? Showing unwarranted judicial compassion by routinely granting continuances to homeowners facing foreclosure sales.

Here's what Judge Schurr said that got her in trouble:

I was trying to make everybody happy.
. . . .
We have so many foreclosures here and I give
continuances on these sales. I just do.
. . . .
Unless it is so abundantly clear to me that it is just an
abuse of the process, I give extensions on these because I
don’t want anybody to lose their house. If there is any
chance that he can do this deal, get the money and try to
save this home, you know, people are having a hard time
now. They are having a difficult time. Everybody
knows it. Businesses are failing. People are losing
money in the stock market. You know, unemployment is
high. It’s just everybody knows that we are in a bad time
right now and I hate to see anybody lose their home.

Oy.

Ok, I agree this could have been better worded (or not expressed on the record) and perhaps a more suitable basis can be found for the discretionary extension of a foreclosure sale under certain circumstances.

And guess what -- Judge Schwartz didn't like this speech either:

Although granting continuances and postponements are, generally speaking, within the discretion of the trial court, the “ground” of benevolence and compassion (or the claim asserted below that the defendants might be able to arrange a sale of the property during the extended period until the sale) does not constitute a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.

For good measure the Judge cites Canakaris, a case that pleases me almost as much as Venetian Salami.

Indeed, that Justice Cardozo language never grows old:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.

B. Cardozo, The Nature of the Judicial Process 141 (1921).

Maybe it's all that Book of Genesis imagery swirling around in my head, but I actually agree with Judge Schwartz here -- there has to be a better articulation of the grounds for exercising discretion than simply "people are hurting."

Oh boy.