Category Archives: Law: Everything Else

David Markus's SDFLA blog is becoming essential reading for local law junkies. The latest entry, however, ranges north to the Middle District of Florida, to bring us this order from Judge Gregory Presnell:

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Case No. 6:05-cv-1430-Orl-31JGG

AVISTA MANAGEMENT, INC.,
d/b/a Avista Plex, Inc.,

Plaintiff,

vs

WAUSAU UNDERWRITERS INSURANCE
COMPANY,
Defendant.
______________________________________

ORDER
This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.
GREGORY A. PRESNELL
United States District Judge

Bret Kavanaugh has been confirmed for the DC Circuit. We could do so much better.

Guesting at Concurring Opinions, Miriam Cherry sets a great contracts hypo, Who Gets to Keep Trover?. (I suppose law profs are among the few who get gleeful about problems like this.)

Note to non-lawyers, the name “Trover” is a lovely touch.

Yesterday was lease story day. First I went down to this wonderful luggage store in Kendall that I’ve been going to for many years (a bag needed repair after being very badly abused by an airline) and discovered it was closing. Why? The shop next door in the mall’s lease is up, and has threatened to leave unless they can have his space. The luggage shop has seven years left on his lease. But it seems the mall management inserted a clause into his lease at last year’s renewal that gives the mall the right to unilaterally relocate the store to other, much less desirable (no foot traffic), areas — perhaps because they knew this demand was coming. The luggage shop owner, who says he trusted the family who runs the mall, had been doing business with them for more than a decade, didn’t notice this when he signed the renewal. He says he’s moved before to help them out — but only within the covered part of the small mall, not to the wasteland of the far side, where no one ever goes.

So he went to a lawyer. The lawyer told him he had a slam-dunk case, was certain to win, and charged him $7,000 plus filing fees to file suit against the mall. But after the first meeting with the other side’s lawyer, and after cashing the first check, the lawyer warned him that — although he still thought they would win — it would cost $100,000 to $200,000 to litigate to the end (a price that strikes me as absurdly high for anything except the very biggest firm litigation). The shop owner decided he couldn’t afford it, and is angry he wasn’t warned about the huge possible total cost in advance. (I wonder if the lawyer was lying: could it be that he decided he was going to lose the case after all?). He’s not real happy about closing. ‘It’s corporate America in the age of globalization,’ he sighed. (OK, he’s a luggage guy, not a political scientist.) “It’s a change in life; who knows what the next chapter will bring.”

It’s surprising how disturbing this is: both that an infrequently visited specialist shop I trusted — they may not have had the lowest prices on the planet, but they had nice stuff at reasonable discounts, and if they said it would last, it would last — is closing, and that a nice guy got done dirty by the legal system — in a way that’s so obviously painful. That to some extent it’s his own fault for trustingly not reading the fine print doesn’t help much; it might make it worse. I added my email to the list in the shop to be notified if they open up again somewhere else; I hope they do.

Later that afternoon, we encounter another similar lost-your-lease story. We’re at a street fair in South Miami (this is the magical time of year in south Florida when it’s very nice out, like spring or fall in normal places, and we have two or three outdoor fairs every weekend). I want to show the family the amusing menu at the new Zen Dog hotdog store that only opened a few weeks ago. Although I haven’t eaten there, I think the menu is amusing, and was thinking we might take the kids some day. But it’s closed. The windows are papered over. The folks at the shop next door explain that neighboring bank, which owns the land, was planning to build a bunch of town homes on a parcel that includes the shop, and stretches back for two blocks. So they evicted the new Zen Dogs, exercising a development right in the lease that the bank’s VP had orally assured the tenants was “just a formality” and could never happen. (It gets better: the bank recenlty dropped the project due to increased construction costs after hurricane Wilma.)

Law on the ground, as in the books: the parole evidence rule rules. (Landlords are not fiduciaries.)

This account of how the Washington Post avoided the legal (and internal) problems that plagued the New York Times over its relations with special prosecutor Patrick Fitzgerald makes it clear that management made a smart call from the first — and then brought in the right high-octane lawyers who could negotiate a suitable deal.