As a litigator who represents many in the construction industry in a variety of states and jurisdictions the following excerpts from an article by Martha Neil that was posted in the ABA on line Journal today struck me as fascinating. A firefighter died in a fire purportedly caused by a gas fireplace made out of drywall. The criminal case against the architect/homeowner for involuntary manslaughter brings new risks associated with “failure to meet the standard” for certain products and services in the construction industry.

An $11 million mansion in Hollywood Hills was a deathtrap, officials are contending in an unusual criminal case brought against its architect after the death of a Los Angeles firefighter.

The fireplaces in place at the time of the fire did not meet building standards and presented an "extreme immediate and imminent hazard," according to an affidavit attached to an article in the L.A. Now blog of the Los Angeles Times.

Architect Gerhard Albert Becker, 48, was arrested. He pleaded not guilty at his arraignment yesterday in the involuntary manslaughter case, and his bail was set at $2 million, the Associated Press reports.

Court documents (PDF) linked to the newspaper article include a search warrant and affidavit that describe the alleged cause of the Feb. 16, 2011 fire and say Becker was both the owner and designer of the home.

According to officials, the home had no fireplaces when a building inspection was performed and Becker said at that time he didn't intend to install any, although plans called for a standard gas fireplace.

The affidavit says a building inspector determined that the fireplaces in the home were not constructed in a typical manner, which would have involved the use of noncombustible materials such as brick or stone, liner material that was resistant to high temperatures and an angled design intended to help vent heat and ash through a flue leading out of the building.

In the Hollywood Hills home, by contrast, the fireplaces were built of wood framing and lined on the bottom, sides and top with combustible drywall that ordinarily is used for standard walls, according to the document. Ceramic tile or slate was glued to the drywall.

Among other ways in which the building inspector found that the construction "fails to meet any standards for approved fireplaces," the affidavit says, one of the fireplaces was vented into the interior of the mansion. It appears from the affidavit that all of the fireplaces were gas, rather than wood-burning, and allegedly were manufactured for use outdoors rather than indoors.

Becker allegedly told investigators that he considered his installations architectural or decorative features, rather than fireplaces.

Los Angeles Police Chief Charlie Beck said that the fire started as a result of gross negligence, the AP article reports. As far as he is aware, the case against Becker may be the only one in which alleged building defects resulted in an involuntary mans

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Post dissolution parenting has always fascinated me. The court's decisions are equally fascinating, but also stunningly painful when one considers these are our children's lives. Yet, those who avoid the legal system, remain in intact marriages, simply avoid the glare of publicity; on what is an increasing lack of respect for children and attention to their emotional, spiritual and psychological needs; are equally responsible for the condition of our families and our children's well being. We are all equally responsible for the burden placed upon the legal system to intervene in the family in most impossible of circumstances. In Alaire v Anthony, a New York appellate court decided on May 31, what it acknowledges to be within the class of cases that present some of the knottiest and most disturbing problems that our courts are called upon to resolve (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 736 [1996] ).rnrnAfter a less than two year marriage the custodial mother of, a now six year old, asks the court for permission to relocate with the child from New York to California. The mother of the child is engaged and the biological father of the child, her former husband, is, like many today, not employed. Between marriages this mother had already moved the child from New York to Connecticut with an "intervening " boyfriend. That "relocation" ended when her, then boyfriend, decided to move back to New Zealand - without mom and her child whose life had been uprooted to follow his mother's "then boyfriend". A year later, and apparently unable to find a suitable mate in all of New York, a "Match.com" relationship was hatched, and the mother became engaged to another unemployed man, this one located in North Carolina. He decides to accept employment in California, whereupon the mother of the child, approached the father of the child, to discuss her latest life event.rnrnAs these matters often do evolve, mother decided through a voluntary mediation, to leave for California and leave her child behind in the care of his father. After leaving father moved for permanent and sole custody, claiming mother abandoned the child. Mother petitions for relocation. Father withdraws his request for custody. rnrnThe court's analysis begins and ends most heavily with the obvious, yet a factor which has little, if anything to do with what is truly best for a child. The biological father was unemployed. The "anticipatory" stepfather was employed. And, as if reading tea leaves, the court also opines that the mother, herself an only child, was aggressively pursuing marriage so she could produce a sibling for her only child and enhance family stability! The reality of the biological father's loss of contact with his son is swept aside and "long weekends" with his son being flown from California to New York is sufficient to meet the needs of not only the child, but his father. Frankly, it is not. And frankly, the judges who wrote the opinion probably feel it is not sufficient, but it is a life pattern we, as a society have not only grown to accept, but have grown to expect. The freedom to treat our children as property rather than people.rnrnIn A Father's Right to Custody I explore the ways a father can move his case through the legal system and protect his right, not only to parent his child, but to retain custody and visitation.

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In a 95-page order, a federal judge of the Southern District of Florida, rejected Chiquita Brands International's motion to dismiss all of the claims of a consolidated group of individual and class action plaintiffs against Chiquita, for Alien Tort Statute violations including torture, extrajudicial killing, war crimes, and crimes against humanity. The judge also allowed the plaintiffs to proceed with claims of torture and extrajudicial killing which are violations of the Torture Victims Protection Act. The Plaintiffs are citizens and residents of Colombia who are family members of, trade unionists, banana-plantation workers, political organizers, social activists, and others who were tortured and killed by the Autodefensas Unidas de Colombia (AUC), a paramilitary organization in Colombia. Plaintiffs claim that Chiquita not only paid the AUC to rape, burn and otherwise torture and kill their family members and other banana workers in Magdalena, to purportedly suppress union activity, provide labor quiescence, and labor unrest or strikes while profits were increased; but further allege, that Chiquita concealed the nature of these payments, as either, "security services" or "income distributions". Chiquita purportedly paid into certain Banadex executive accounts funds that were then withdrawn as cash, for cash payments to AUC. It also allegedly obtained, stored and then distributed arms and ammunition to AUC. In 2003, Chiquita's Board of Directors agreed to disclose certain of these payments to the U.S. Department of Justice while continuing to pay the AUC until February 2004. In a 2007 criminal case, Chiquita pled guilty to one count of providing material support to terrorism for making $1.7 million in payments between 1997 and 2004 to AUC. This plea agreement allowed the executives and in-house counsel to avoid facing penalties of up to life imprisonment for crimes against humanity. (Crimes against humanity include murder, enslavement, deportation or forcible transfer, torture, rape or other inhumane acts committed as part of a widespread or systematic attack against a civilian population.) Chiquita maintains that it too is a victim of violence in Colombia, not a perpetrator. While the plaintiffs are permitted to move forward on certain of their claims, the larger issue is whether they will be able to meet the threshold of proof that Chiquita paid AUC and others with the intent to assist in the tortures and killings. According to the Opinion, plaintiffs must prove that Chiquita intended for the AUC to torture and kill civilians in the banana-growing regions. The lengthy Opinion also discussed the law specific to the plaintiffs claim for torts committed in violation of the law of the nations pursuant to the Alien Tort Statute. It is noteworthy that the Opinion concluded, based on precedent, that "there is no universally accepted norm of international law against terrorism or material support thereof". This was based in part on an analysis of the number of States who have either ratified, reserved or non-consented, to all or part of the Financing Convention.

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PNC Purchases RBC Bank

PNC Financial Services Group Inc. signed a deal to buy RBC Bank, the U.S. retail subsidiary of Royal Bank of Canada, for $3.45 billion in cash and stock. The deal includes $165 million for the purchase of related credit-card assets. The purchase is expected to close in March 2012.

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Directors of Corporation May Seek Indemnification from Corporation in Florida When Sued by Corporation

In resolving conflict among the district courts, today, the Florida Supreme Court concluded that section 607.0850 Fla. Stat. provides for indemnification of the fees and costs incurred by a director of a corporation, in defending a suit, in which that director has been sued by the corporation.

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The Supreme Court's opinion, Erica P. John Fund, Inc. v. Halliburton Co., __ S. Ct. __, 2011 WL 2175208 (June 6, 2011) may lead to increased federal securities class action lawsuits against companies headquartered in the Fifth Circuit. Halliburton rejected the Fifth Circuit requirement that a federal securities plaintiff must establish loss causation by a preponderance of the evidence to certify a class. The decision leaves open whether a defendant may defeat class certification by showing a lack of price impact, that an alleged misrepresentation did not affect the stock price.

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Clean Air Act Displaces Federal Common Law

In American Elec. Power Co. v. Connecticut Justice Ginsburg delivered the opinion of the Court which held that several states, the City of New York, and three private land trusts did not have a cause of action for public nuisance against carbon-dioxide emitters such as the TVA. The Court held that the Clean Air Act has the authority to set emissions standards and displaces the federal common law claim. According to the complaint, the defendants are the five largest emitters of carbon dioxide in the United States accounting for 25 percent of the emissions from the domestic electric power sector. The Act itself provides a means to seek limits on carbon dioxide emissions.

Miranda Rights of a Child - Does Your Child Have the Right to Remain Silent?

If your 13 year old child was escorted from his classroom by two school administrators, a police officer, and a juvenile investigator and questioned in a closed room by these four adults for 45 minutes about a crime, what would you do? If your 13 year old was told he would be held in juvenile detention and should “do the right thing” during this interrogation, what would you do? If the school did not call you before, or even after, the interrogation, what would you do? If your 13 year old was not read Miranda rights and signed a confession, and was then allowed to jump on the school bus and come home to you, what would you do? If your child was “interrogated in a custodial setting by police without being afforded Miranda warnings", what would you do?

In J. D. B. v. North Carolina the court held that the child’s age is a factor for the police to consider in whether to read a child his or her Miranda rights before questioning the child. This opens the door to challenges to a police officer's failure to read a child Miranda rights when questioning the child. The court found that the child's age is a factor in determining whether the child feels or perceives they are in custody which triggers the Miranda warning. The court remanded the case back to the state court to address whether the child was "in custody" when he was questioned.

However, the dissent, Justices Alito, Scalia and Thomas make a strong case that the decision destroys the clarity and certainty of the situations in which Miranda is required. Further, even if a child has the presence of maturity, or otherwise, to perceive they are in custody, and an interrogating officer makes that assessment accurately, does the child still benefit from an ability to understand the right to remain silent? "Safeguarding the constitutional rights of minors does not require the extreme makeover of Miranda." Chief Justice Alito, dissent.

No Right to Counsel In Child Support Contempt Hearing

Turner v. Rogers held that an individual facing contempt proceedings for failure to pay child support is not entitled to legal counsel. Turner served 12 months in prison for failure to pay child support. The trial court did not give him notice that his ability to pay child support would be at issue and could result in confinement. It failed to even consider his ability to pay his child support arrearage, and failed to provide him with a "form" designed to elicit his financial information. The Supreme Court decided that in these cases that a form and notice is sufficient protection as the opposing party is also often without legal representation, and appointing counsel would delay paying the child support. Sadly for Mr. Turner his incarceration for a year did more harm than merely delaying his child support payment. The case distinguishes cases where the government is seeking the child support or cases that are "unusually complex where a defendant can fairly be represented only by a trained advocate". It is unclear how one can reach the conclusion that Mr. Turner was fairly represented at all in this matter, complexity or not.

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Amendments To The Federal Bankruptcy Rules, Including Rule 2019, To Take Effect December 1, 2011

A copy of the Advisory Committee's report, together with a redline of the new rule amendments, is available by following the link in this sentence. The report also includes the Advisory Committee's notes on each new or amended rule.

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Administrative Order 2011-100 In re: Amendments to the Local Rules.

Amendments to the Southern District of Florida Local Rules will go into effect on December 1, 2011. To obtain a copy of Administrative Order 2011-100 which include the amendments to the Local Rules, please visit our website, www.flsd.uscourts.gov, under Public Notices. You can obtain a copy of the new Local Rules with amendments on our website under the Attorney Resources tab, Local Rules & Procedures, as well as under the Public Notices section on the left hand column of the website.

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As a board certified marital and family lawyer, I am experienced in assisting clients equitably divide their assets. More often than not, assets included the equity in their home, the former marital residence. But with the down turn in the real estate market, many attorneys who represent divorcing couples are faced with having to divide up “negative equity” or debt as well has assets. The problem crystallizes where there are other assets and in order to achieve a 50/50 distribution one party is assigned debt which offsets assets. The reality is that many people either work with the creditors in order to substantially reduce the debt obligation ( i. e. loan modification), or simply don’t pay the debt. In formulating a 50/50 distribution, in many cases distributing debts and assets, is a lot like comparing apples to oranges.

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Trial judges have struggled with this issue. In Bryne v. Bryne, 2012 WL 126638, (Fla. 3^rd DCA 2012), the wife testified that she wanted to preserve her reputation by preventing the foreclosure. The trial judge relied on the “equity factor”, and Sec. 61.075(1)(j), Fla. Stat., and did not assign half of the condominium debt to the husband. The court felt that most people in the Brynes’ position would simply abandon the residence and return the keys to the bank.

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The appellate court reversed, noting that both parties remained legally responsible for the debt associated with the marital residence and therefore the court’s justification was not “legally sufficient”. Byrne illustrates how the changing economic landscape has created new challenges and traps for divorcing couples, their lawyers, and the courts.

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I have been away from the blog for a while busy with firm litigation matters, as well as speaking and publishing on the subject of human trafficking. But as we move to the close of another year and approach Thanksgiving, a holiday many of us celebrate, it causes one to ponder the state of our country, the state of our world and our role as lawyers in it.

From the investigation of Jerry Sanduski, to the NFL players suing Greenberg Traurig for failing to warn about investing in an Alabama casino, to Occupy Wall Street, and the immolation of Mohamed Bouazizi which led to the Arab Spring, we must wonder. Have we become so insensitive to the horrific, so passive to those suffering, so oblivious to our surroundings that we accept these conditions as those in which we may or certainly will find ourselves?

I recently spoke to an audience of very wealthy women about the crime and global social injustice of human trafficking, the use of force, fraud or coercion to exploit a human being for services whether labor or otherwise. At the end of the talk, although there was much inquiry, and a realization that this crime occurs in our wealthy neighborhoods, in our own school systems, and in our own country, one response I received was a testimony to the condition of the world.

During this talk I was wearing an elaborate rust colored and beaded pashmini from India, quite large it covers me to my knees. No one donated to the cause, but I was asked to sell my pashmini off my back.

But this Thanksgiving I am grateful not only for my family, but very grateful for my firm. Rutherford Mulhall allows me the time and encourages my gifts to give back continually to the community. My form of giving is to partner with organizations whose mission is to end human trafficking. Next year I speak at my alma mater Baylor University as the Keynote Speaker. What an honor. But the RM firm has a long tradition of not only giving to the community, but has in many ways, shaped the finer aspects of charitable works in our local community, the key to being a change maker. Everywhere I go, people know the names of Charlie Rutherford and John Mulhall. I am thankful not only for the firm but to have role models in the partners I work with each day; all of them, Charlie, John, Bob Wunker, Stan Klett and John Banister. I wish for you the same.

Happy Thanksgiving.

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Florida Borrowers Beware

The Fair Foreclosure Act now pending in the Florida legislature would change Florida to a state where a foreclosure would not go through the court system. Instead, a borrower would receive notice of default in the mail. No less than 30 days later the borrower would receive notice of foreclosure which the lender would file in the county records. After filing, the foreclosure would be completed no sooner than 90 days, and no later than one year, from the date of filing the notice of foreclosure. If a borrower wanted to file the foreclosure action in court, the borrower would be required to pay a $2,000.00 filing fee.

New 401(k) Plan Disclosures

Department of Labor regulation changes effective December 31, 2011 expand the definition of fiduciary investment advice. Each 401(k) service provider must supply a revised service agreement that contains a complete description of the service provided a full disclosure of the costs of each service, a disclosure of any direct or indirect compensation they receive from associate providers, whether they assume fiduciary responsibility for each function and any potential conflicts of interest.

Providing Benefits to Same Sex Spouses

Nevada and Connecticut are the two most recent additions to the growing list of 21 states that prohibit discrimination based on sexual orientation. The workplace ramifications are not simple however. ERISA pre-empts any state statute and governs most work place benefits. However there are areas that ERISA does not reach and these are time-off policies, bereavement leave and merchandise discount just as examples. Health plans of state and local government and churches are also not subject to ERISA. An example of the complexity of the matter is the interplay between the California Insurance Equality Act and the Defense of Marriage Act. Under CIEA if an employer chooses to fund an ERISA plan with insurance funds and it chooses to provide those benefits to opposite sex spouses, it must also provide those benefits to same sex spouses. However, DOMA governs the interpretation of the federal statute and defines spouse and marriage to be opposite sex pairings. So, even if an employer provides those benefits to a same sex spouse, it is not obligated to continue those benefits if COBRA is implicated.

There are also tax implications to consider. Because spouse has to be interpreted according to DOMA, an employer’s contribution to a same sex spouse is taxable income to the employee.

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Several bills passed in the 2011 session will result in wholesale changes to Chapter 163, F.S. The House proposal was contained in HB 7129, while SB 1122 encompassed the Senate's version. The Governor proposed the elimination of the Department of Community Affairs (DCA) as part of a budget conforming bill on governmental reorganization. The Budget Conference Committee Report was approved, which included conforming bills to eliminate DCA and rewrite growth management statutes in light of the reorganization.

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Longshore and Harbor Workers’ Compensation Act: Receding from precedent Langfitt v. Federal Marine Terminals, Inc. acknowledged that sole reliance on the common law’s control test for determining the status of a borrowed servant for purposes of application of LHWCA is misplaced. It replaced the test with a three part test. When a general employer transfers an employee to another person or company, the latter is the employee’s borrowing employer for purposes of LHWCA and thus liable for the Act’s compensation as well as protected by the Act from tort liability if 1) the employee consents expressly or impliedly to the new employment relationship; 2) the borrowing principal’s work is being performed; and 3) the borrowing principal assumes the right to control, not necessary actual control, of the details of the employee’s work.

Fair Labor Standards Act: The 11^th Circuit Court of Appeals held that no attorney fees are awarded under FLSA, 29 U.S. Section 216 (b) if an employer tenders the full amount of the claim by the employee, and the trial court grants the employer’s motion to dismiss on mootness grounds. The employee in this procedural posture is not the prevailing party. Perry R. Dionne v. Floormasters Enterprises, Inc.

Criminal Law: A pro se criminal defendant’s conviction was overturned because the trial judge failed to correct the pre se defendant’s mis-understanding of his right to testify. USA v. Hung Thien Ly, July 20, 2011.

City public bid: The Fourth District Court of Appeal for Florida held that an unsuccessful bidder for a City of Port St. Lucie construction project was not entitled to injunctive relief where the City rejected all bids and claimed that the City’s Construction Division would not be doing the job. The court wrote to emphasize that if a city desires to perform a project using its own Division it must comply with Fla. Stat. Section 255.201(1)( c ) 9 and first conduct a public meeting. See 4D11-643-Paul Jacquin & Sons, Inc. v. City of Port St. Lucie

Litigation Privilege and Website: Statements made on a party’s website are not protected by the litigation privilege. See 4D09-4859-Ball v. D’Lites Enterprises, Inc.

Employment Discrimination : Gerolyn Shapiro’s case is another stunning example of the tug of war between jury and judge. After a jury trial of her claims for hostile work environment, disparate treatment, and whistleblower protection against DCF’s termination of her, a jury returned a verdict in her favor in the amount of $1,010,000.00 in damages. The Fourth District Court of Appeal reversed and remanded for entry of a judgment in favor of DCF in 4D10-741-Florida Department of Children and Families v. Shapiro.

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Florida Bankruptcy Court amends local rules

The U.S. Bankruptcy Court for the Southern District of Florida has amended the local bankruptcy rules effective August 1, 2011. See http://www.flsb.uscourts.gov.

More Requirements for Bank Foreclosure Attorneys in Florida

In Florida, lawyers representing banks must advise the court if they know of "paperwork problems" in their clients' foreclosure cases according to the Florida Bar Ethics Committee. No matter whether the case is closed, the lawyer has an obligation to advise if the bank affidavits were "improperly prepared" as they constitute false evidence. The inquiring attorney must first advise the bank to correct the affidavits. If the affidavits are not corrected the Bar advises that the attorney should withdraw from representation.

Sex Offenders and Predators Registration Will Apply to "Transients" in Florida Proposed Rule changes in Florida will require transient residents who are convicted sex offenders or predators to register as such with a physical address. A post office box will be insufficient.

Florida Supreme Court clarifies standard for Asbestos claimants

In American Optical Corporation v Spiewak, the Florida Supreme Court held that The Asbestos and Silica Compensation Fairness Act not only operates retroactively, despite stating it does not, but obliterates certain claimants cause of action asbestos related injury by requiring a heightened manifestation of evidence of physical injury caused by exposure before being able to maintain a cause of action. Application of the Act would operate to completely abolish the vested rights in an accrued cause of action for asbestos related injury. The Act's element of requiring a claimant to plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor is in derogation of the common law elements of a claim for negligence where no physical impairment or cancer is required.

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In 2008 a divorcing couple entered into a marital settlement agreement that required the husband to pay the wife $185,000.00 by refinancing a home with a then appraised value of $950,000.00 and a mortgage of $603,000.00. Husband was unable to do so as "the Florida real estate market entered into one of its periodic downward adjustments for which it has become famous since the time of the Great Depression." Wife moved for contempt and the husband moved to compel the sale of the house under the following provision of the marital settlement agreement. The trial court voided the provision requiring the payment of $185,000.00 and ordered the wife to cooperate in the sale of the house. On appeal, the court ordered a judgment be entered against the husband for $185,000.00 AND that the house be sold. Impossibility of performance "due to" changes in the economy is not an excuse, according to this opinion, as such changes should be foreseeable in market based economy.

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Absent Marital Settlement Agreement Life Insurance Policy or Plan Language Controls

Crawford v. Barker, --- So.3d ----, 2011 WL 2224808 (Fla. Jun 09, 2011) held that absent the marital settlement agreement providing who is or is not to receive the death benefits or specifying who is to be the beneficiary, courts should look no further than the named beneficiary in the separate document of the policy, plan, or account. General language in a marital settlement agreement, such as language stating who is to receive ownership, is not specific enough to override the plain language of the beneficiary designation in the separate document.

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Several bills passed in the 2011 session will result in wholesale changes to Chapter 163, F.S. The House proposal was contained in HB 7129, while SB 1122 encompassed the Senate's version. The Governor proposed the elimination of the Department of Community Affairs (DCA) as part of a budget conforming bill on governmental reorganization. The Budget Conference Committee Report was approved, which included conforming bills to eliminate DCA and rewrite growth management statutes in light of the reorganization.

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Wal-Mart Stores, Inc. - Evidence of Strong Corporate Culture Vulnerability to Gender Bias Insufficient to Certify Class Action

On Monday the United States Supreme Court declined to allow a class action of over 1.6 million, prior and current female employees, to pursue Title VII claims against Wal-Mart, the largest private employer in the nation. Wal-Mart Stores, Inc. v. Dukes . Justice Antonin Scalia delivered the opinion of the court. The high court concluded that the three class representatives provided insufficient proof of commonality, or a company wide policy of discriminating against females in pay or promotion policy. The class certification was not consistent with Rule 23(a) Fed. R. Civ. P. which requires the party seeking class certification to prove that the class has common questions of fact or law. In other words, the class must generate not so much common questions of discrimination, but a common resolution or answer that resolves the litigation. In Wal-Mart, the class desired to sue on literally millions of employment decisions at once. Employment decisions which were admittedly made at a local level, within local managers discretion, under a corporate policy that prohibits gender discrimination and provides for penalties for violations of that policy. The class evidence, questionable under the Daubert analysis, was a sociologist's analysis that Wal-Mart's corporate culture made it "vulnerable" to gender bias. The class also relied upon regional and national statistical data that evidenced that Wal-Mart promotes a lower percentage of women than its competitors. The court held that this is not sufficient evidence. Specific employment practices must be identified that tie all 1.5 million claims together. The court noted that even though the class filed 120 affidavits reporting discrimination, these affidavits were insufficient because they related to only 235 out of Wal-Mart's 3,400 stores, thus not evidence that the entire company operated under a general policy of discrimination. The majority recognized the dissent's criticism of this conclusion analyzing the distinction between Rule 23(a)(2)'s commonality requirement and Rule 23(b)(3)'s inquiry into whether common questions predominate over individual ones. The majority concludes that under the facts of this case, that there is not a single common question, and thus certification is not permitted under Rule 23(a)(2). The court also clearly held, for the first time, that claims for monetary relief, i.e. back pay, may not be certified under Rule 23(b)(2), where the monetary relief is not incidental to the injunctive or declaratory relief.

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This legislation concerns amendments to the alimony statute (these appear on pages 66 through 69 of the Bill) and interstate and international enforcement of child support. The amendments to the alimony statute "clarify" certain aspects of last year's statutory changes, such as the need for the court to "consider" the statutory factors in awarding permanent alimony. It also makes clear that durational alimony is available in a long-term marriage if there is no ongoing need for support on a permanent basis. Now, it's on to the Governor who is likely to sign it.

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Comment Deadline for ABA Commission on Ethics 20/20 Initial Proposals: July 15thThe ABA Commission on Ethics 20/20 has posted for comment by July 15, 2011, its initial draft proposals regarding outsourcing, inbound foreign lawyers, and technology related confidentiality issues. You may view Co-Chair Jamie Gorelick's and Michael Traynor's cover memo and access the drafts here.

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The Florida House passed CS/HB 253 - Limited Liability Companies. by Representative Kelli Stargel (R-64 Lakeland) that addresses the uncertainty created by the Florida Supreme Court's decision in Olmstead v. Florida Trade, which put into question the judgment remedies available against Florida limited liability companies.

"After being contacted this summer by a citizen who was concerned how this decision would affect his business, I immediately began working with business groups, attorneys, and creditors to find a solution," Representative Stargel explained. "I believe this bill Senate Bill 1152 (2011) - The Florida Senate is a good balance for all interested parties.

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No error in denying rule 1.540(b) motion to vacate voluntary dismissal, filed after defendant moved for sanctions against plaintiff for filing what defendant alleged was a fraudulent assignment of mortgage, where notice of voluntary dismissal was filed prior to plaintiff obtaining any affirmative relief from court. Question certified: Does a trial court have jurisdiction and authority under rule 1.540(b), or under its inherent authority to grant relief from a voluntary dismissal where the motion alleges a fraud on the court in the proceedings but no affirmative relief on behalf of the plaintiff has been obtained from the court?

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Divorce Attorney Shot at Law Office Among 5 People Reportedly Killed in Yuma, Ariz.

"Be careful out there." Jerrold Shelley, 62, was killed at his law office, reports the On Deadline blog of USA Today. The New York Times identified the gunman, who committed suicide after killing Shelley, as Carey Hal Dyess, 73. His motive is unknown, although the city mayor told Reuters a divorce case may have sparked the slayings.

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Florida court strikes down limits on lawyer advertising

Florida in the past has had some of the nation's strictest limits on advertising by lawyers. The state, for example, prohibits attorneys from running ads that are "manipulative" or that include "any background sound other than instrumental music." But Florida federal judge Marcia Morales Howard has ruled that these ad restrictions violate lawyers' First Amendment rights. Read more from the Wall Street Journal and WCTV.

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In 4D10-986-Forest River Inc. v. Gelinas consistent with the Third District Court of Appeal held that damages as used in section 681.112, Fla. Stat. (2000), Florida Lemon Law Statute, includes attorney fees incurred during the arbitration of the refund option. See Gen. Motors LLC v. Bowie, 36 Fla. L. Weekly D821 (Fla. 4th DCA Apr. 20, 2011); Sanchez, 16 So. 3d 883. Following the lead of the Third District in Sanchez, we held that damages do not include attorney fees incurred in arbitrating the refund option in a Lemon Law claim. Bowie, 36 Fla. L. Weekly D821 Significantly, the consumer did not claim any other pecuniary loss. The case was reversed and remanded for entry of a judgment in favor of the automobile manufacturer and for reconsideration of a Proposal for Settlement.

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In Hussain v State of Florida, the court held that the defendant's conviction should be reversed and remanded under the state and federal double jeopardy clause where a defendant may not be convicted multiple times for the same crime or offense. In this case the defendant's employers were killed, the store was set on fire and there was cash stolen from the register and a check stolen from the employer's check book. Even though there were two victims and two separate items taken there was no evidence as to whether it was one or two events or transactions as there were no witnesses.


Givens v Ford Motor Credit, reminds us of the importance of knowing whether a guaranty is absolute or conditional before filing suit to recover under it.

Elliot v State Farm Florida Ins. Co. holds that golf cart accidents on private roads and not on your property are still not covered by your homeowner insurance policy.

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Amendment to Criminal Rule 3.191

rnrnThe rule in Florida governing speedy trial has been amended to include an extension of time by administrative order issued by the chief justice, under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), suspending the speedy trial procedures. This is limited to emergencies.

Florida's Indemnification Statute Does Not Apply to Foreign Corporations

rnrnThe Florida Supreme Court held today that Florida's indemnification statute Section 607.0850(1) Fla. Stat., is not applicable to foreign corporations, whether or not that entity operates under a certificate of authority.
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Directors of Corporation May Seek Indemnification from Corporation in Florida When Sued by Corporation

rnrnIn resolving conflict among the district courts,today, the Florida Supreme Court concluded that section 607.0850 Fla. Stat. provides for indemnification of the fees and costs incurred by a director of a corporation, in defending a suit, in which that director has been sued by the corporation.
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The Local Rules for the Southern District of Florida have been amended and went into effect on April 15, 2011. An updated version is located on the Court's website under "Attorney Resources" as well as "Public Notices". A red-line version highlighting changes can be found attached to Administrative Order 2011-5 under "Public Notices" on the left hand side of the website.

In addition, modifications to the Southern District of Florida's CMECF Administrative Procedures also went into effect on April 15, 2011. The updated version of the CMECF Administrative Procedures can be found on the Court's website under "CMECF" as well as "Public Notices". Please refer to the Summary of Changes included at the end of the Administrative Procedures for a complete list of the modifications. The following are highlights of some of the changes:

Section 3I(6) Proposed Documents was modified to reflect the requirement that all counsel must be copied on the e-mail to the Judge.

Section 3K(5) Notices of Electronic Filing was modified to clarify procedures for users who no longer want to continue receiving electronic notices in cases where the parties represented have been terminated.

Section 5A Document Cases Filed Under Seal was modified to clarify that motions to seal documents previously filed and on the docket, as well as motions unseal document cases must also be filed conventionally and must not be filed electronically.

Form B Certificate of Service was modified to conform with Certificate of Service form following Local Rule 5.1. Changes include eliminating the requirement that filers attach a Service List on a separate page.

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