Is half a signature enough to validly execute a will?
Will execution formalities are second nature to most of us, but it never hurts to go back to basics.
Under F.S. 732.502, a Florida will isn’t valid unless it’s in writing and signed at the end in the presence of at least two attesting witnesses, who sign the will in the presence of the testator and in the presence of each other. Like most US states (and Commonwealth jurisdictions), Florida’s rules for executing wills trace their roots back almost two centuries to the UK Wills Act of 1837.
The execution rules are simple, but you need to get them exactly right. Why? Because Florida requires “strict compliance”. In other words, unless every last statutory formality is complied with exactly, the will’s invalid.
[F]ormalities are explained as fulfilling several functions that ensure that a will accurately and reliably reflects the testator’s intent. … First, will formalities serve an evidentiary function by providing reliable evidence that the testator intended a particular document to constitute a legally effective will. Second, they serve a protective function by reducing the possibility of fraudulent wills. [Third,] … will formalities serve a cautionary function by reminding the testator of the legal significance of executing a will. … [And fourth,] will formalities serve [a] channeling function by funneling all wills into a substantially similar form. Because all wills are written, signed, and witnessed, probate courts can more efficiently determine whether the testator intended to execute a valid will.
Although the traditional law gives the court assurance that it can safely distribute the decedent’s estate according to the terms of a formally compliant will, critics contend that requiring courts to invalidate clearly genuine yet formally defective wills conflicts with formality’s role in the realization of testamentary intent. They argue that the rule of strict compliance is overly concerned with preventing the validation of fraudulent or unintended wills and should be more concerned with validating genuine wills.
It’s against this backdrop that the 2d DCA considered what it means to actually “sign” a will under a strict-compliance reading of F.S. 732.502.
In Bitetzakis v. Bitetzakis the decedent clearly intended to execute a valid will, but thought he had to do so before a notary (not true). Midway through signing his name, his wife stopped him and told him he’d need to sign again before a notary. She also testified that her husband normally wrote his entire name when signing documents. The next day they went to see a notary but husband goofed again, mistakenly signing a self-proving affidavit instead of re-signing his will.
In this case, the probate court erred because the evidence does not establish that the decedent signed at the end of the will or directed another to subscribe his name in his stead. See Dalk, 826 So.2d at 247 (“[W]here a testator fails to sign his or her will, that document will not be admitted to probate.”). Under these very unique circumstances, it is clear that the decedent recorded something less than his full customary signature and therefore did not sign the will within the meaning of section 732.502. See Signature, Black’s Law Dictionary (10th ed. 2014) (defining a signature as a “person’s name or mark written by that person … esp., one’s handwritten name as one ordinarily writes it” and “the act of signing something; the handwriting of one’s name in one’s usual fashion”).
To be sure, Florida law permits a testator to sign a will by making a mark not commonly regarded as a formal signature. See In re Williams’ Estate, 182 So.2d 10, 12 (Fla. 1965) (“[A] mark made by the testator at the proper place on his will with the intent that it constitute his signature and evidence his assent to the will is sufficient to satisfy the statutory requirement that he ‘sign’ his will.”). However, in this case we cannot construe the decedent’s alphabetic first name as constituting his mark because there is no evidence that the decedent had the concomitant intent that it serve in place of his signature. In other words, there is no evidence that the decedent signed his first name “with the intention that [a portion of his signature] evidence his assent to the document.” Id. at 13. To the contrary, that the decedent intentionally ceased signing the will and later signed the self-proof affidavit in an apparent attempt to ratify it dispels any notion that he believed or intended that his first name serve as his signature and assent to the will.
And because these cases often turn on issues of “intent” (for example, if a caregiver uses a POA to pay herself from mom’s bank account, did caregiver intend to financially exploit mom or compensate herself for legitimate services?), and because a person’s intent is usually proven indirectly by circumstantial evidence, the importance of what “test” is used to decide the intent question can’t be overstated, especially when the consequences may include years behind bars. The Johnson v. State case is all about what it takes to prove criminal “intent” in exploitation of the elderly cases.
The Johnson v. State case involves an 88 year old woman who was Baker Acted and hospitalized after exhibiting signs of dementia and found living in deplorable conditions. A neighbor visited her in the hospital, and ultimately ended up as her agent under a power of attorney (“POA”). Eventually, a guardian was appointed on behalf of the elderly woman and her neighbor (and neighbor’s minor daughter) were removed as signatories on her accounts. The guardian placed the elderly woman in a nursing home where she died a short time later.
Based on these facts, one could plausibly conclude all we have is a fee dispute (i.e., was $2,590 a reasonable reimbursement for time spent and expenses incurred?) and an example of a well intentioned neighbor making a dumb mistake involving pay-on-death bank account designations that resulted in no harm (if the bank funds were frozen, the pay-on-death designations were never effectuated). On the other hand, one could just as plausibly conclude what we have here is the use of a POA to defraud an elderly woman. The deciding factor is: what was going on inside the head of the defendant neighbor? … in other words, what was her intent?
As explained by the 4th DCA, because this is a circumstantial-evidence case, the prosecutor’s burden is especially high.
In circumstantial cases, “a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Id. (quoting State v. Law, 559 So.2d 187, 188 (Fla. 1989) ). “[I]f there is direct evidence of a defendant’s actus reus, but the defendant’s intent is proven solely through circumstantial evidence, the special standard of review applies only to the state’s evidence establishing the element of intent.” Id.
There are two key cases issued by this Court which are instructive to the issue of intent in an exploitation of the elderly case. The first is Everett v. State, 831 So.2d 738 (Fla. 4th DCA 2002). … The second key case is McNarrin v. State, 876 So.2d 1253 (Fla. 4th DCA 2004). … Everett and McNarrin establish that when a defendant charged with exploitation of the elderly alleges that funds taken from the alleged victim were used for the victim’s benefit, the State must submit evidence to the contrary. Such contrary evidence could include unexplained deposits in the defendant’s bank accounts or acquisitions of property. See Everett, 831 So.2d at 742. In the instant case, although there was evidence corroborating Appellant’s claim that much of the money taken from the victim’s accounts was used for the benefit of the victim, there was also evidence establishing that Appellant deposited some of the money taken from the victim’s accounts into her own bank account and named her daughter as the beneficiary of the victim’s accounts. This evidence, when viewed in the light most favorable to the State, supports the alternative theory that Appellant intended to benefit herself and not preserve the victim’s estate. See Durousseau v. State, 55 So.3d 543, 557 (Fla. 2010) (“Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied.”). Accordingly, we affirm the trial court’s denial of Appellant’s motion for judgment of acquittal on the issue of intent.
When it comes to probate proceedings, there’s a strong public policy favoring finality, even it means valid claims sometimes get sacrificed. For example, F.S. 733.903 tells us that once a probate proceeding is closed, it won’t be reopened because sometime after the fact someone finds a perfectly valid will that would have changed everything.
And if you’re the personal representative, F.S. 733.901(2) tells us that once you’re discharged, you too can rest easy in the knowledge that you can’t be sued for anything you did during the probate proceeding. But alas, this last bit of finality is subject to a few exceptions, which are the focus of 1st DCA’s opinion in the Sims case.
This case involves a probate proceeding that went on for over 10 years, involved multiple personal representatives, and one very active pro se litigant. The final PR was an attorney who filed a final accounting that was objected to. The probate judge overruled the objections, approved the final accounting, and discharged the PR in 2015. Two years later the PR was sued by the same objecting party for “fraud” and “embezzlement”.
Appellant correctly asserts that section 733.901 “does not serve as an absolute bar to the suits filed after the discharge of the personal representative.” Van Dusen v. Southeast First Nat’l Bank of Miami, 478 So.2d 82, 89 (Fla. 3d DCA 1985). The statutory bar codifies “a modified res judicata concept … applicable in probate cases.” Id. at 91. The bar will not be applied to a suit for fraud by concealment, where its application “would permit a fiduciary to benefit from its alleged wrongful acts if it could conceal them for the statutory period.” Karpo v. Deitsch, 196 So.2d 180, 181 (Fla. 3d DCA 1967) (holding that suit was not barred by discharge where suit alleged PR concealed from heirs the true value of estate and concealed from the court the identities of the heirs preventing heirs from asserting objection or claim prior to discharge). Likewise, where the PR conceals its intentional transfer of an estate asset by failing to report the distribution in the petition for distribution or otherwise, the PR “is not entitled to the sanctuary provided by” section 733.901. Van Dusen, 478 So.2d at 91.
The lawsuit at the center of this case seemed to include the magic “fraud by concealment” allegations needed to survive a motion to dismiss. So rather than challenge the pleading on its face, the defendant challenged it on summary judgment, which allowed the trial court (and the appellate court) to look beyond the four corners of the complaint. When that happened, the claims crumbled, both at the trial court level and on appeal.
Appellant filed his lawsuit against Bernard and the law firm on March 13, 2017. While the amended complaint generally alleged fraud and “embezzlement,” the facts asserted by Appellant were that the PR failed to provide him with sufficient accountings to explain all expenditures, leading Appellant to the conclusion that estate funds had been removed without explanation. The missing interim accountings, which Appellant was ultimately provided, simply do not rise to the level of “concealment” by the PR presented in Van Dusen and Karpo.
But what if an estate gets probated and years later an heir shows up who was excluded from the original proceeding? That’s what happened in this case.
According to the appellate brief, “[a]lthough the decedent died in 1971, no one in the family had the means or know-how to file estate administration papers with the County at that time.” While it’s never stated explicitly, reading between the lines my sense is that the property at issue in this case is an example of “heirs property” passed down informally to surviving family members who lack the resources to judicially perfect their property rights in a probate proceeding. As explained in an excellent Florida Bar article entitled The Disproportionate Impact of Heirs Property in Florida’s Low-Income Communities of Color, these arrangements can lead to all sorts of negative consequences.
Now back to the case. The decedent died in 1971. In terms of formally clearing title to her property, nothing happened until 2001 (29 years later), when her two daughters initiated a summary administration to probate a parcel of real property owned by the decedent at the time of her death. The decedent had adopted three of her grandchildren. These adopted children didn’t get notice of the probate proceeding, nor did they get a share of the property.
This statute seems pretty clear cut. If you’re an heir, and you weren’t included in the probate proceeding, you get a do-over. But reading the statute that way runs headlong into Florida’s strong public policy favoring finality in probate proceedings. So not surprisingly, as explained by Judge Schwartz in a thoughtful concurring opinion he wrote in Klem v. Espejo-Norton (a case I wrote about here) the usual rule in Florida is that an estate won’t be reopened even if a rightful heir was excluded. The exception to this rule being the type of “fraud by concealment” scenarios discussed in the Sims case above.
The probate judge reopened the Watkins probate proceeding in a non-evidentiary hearing where apparently no one made a “fraud by concealment” argument. Instead, the argument was made that the petition to re-open was time barred by F.S. 733.710(1), Florida’s non-claim statute for probate creditor claims. Since this isn’t a creditor-claim case (it’s a case about excluded heirs) that argument went nowhere.
Florida’s nonclaim statute applies to claims brought against the estate by creditors. It does not apply to the beneficial interests of heirs. See In re Estate of Robertson, 520 So.2d 99, 102 (Fla. 4th DCA 1988) (rejecting argument that nonclaim statute barred claim of heirship because such claims were “not the type of ‘claim’ contemplated” by nonclaim statute); see also Frank T. Pilotte, Creditors’ Claims and Family Allowance, in Practice Under Florida Probate Code (9th ed. 2017) (“[H]owever, the definition of claims and the nonclaim statute clearly do not apply to the beneficial interests of beneficiaries.”).
So what happened here? While the 5th DCA did say the heirship claims weren’t time barred as creditor claims, it didn’t grant the adoptees any property rights, all it did was affirm a trial court order reopening an estate. Does that mean the general rule barring the reopening of probate proceedings in the absence of fraud doesn’t apply in summary administration cases? Who knows. Here’s what we do know for sure: a family with not-that-much to begin with found itself enmeshed in the kind of probate/property-rights mess that seems to disproportionately burden folks most likely to be the recipients of “heirs property”. And that’s a shame.
As defined in F.S. 736.0103(4), the term “beneficiary” refers to the entire universe of persons who have a beneficial interest in a trust, as well as to any person who has a power of appointment over trust property in a capacity other than as trustee. For purposes of this definition it’s immaterial whether the beneficial interest is present or future, vested or contingent, or whether the person having the interest is ascertainable or even living.
By contrast, the term “qualified beneficiary,” as defined in F.S. 736.0103(16), encompasses a much smaller — but favored — subset of trust beneficiaries. This class of beneficiaries is limited to current beneficiaries, intermediate beneficiaries, and first line remainder beneficiaries, whether vested or contingent. These beneficiaries are prioritized in two key ways. First, qualified beneficiaries are going to have standing in just about any judicial proceeding involving their trusts. Second, qualified beneficiaries are at the center of all trustee disclosure obligations.
For example, no matter what your trust agreement says, F.S. 736.0105 tells us you can’t waive the duty under F.S. 736.0813 to notify qualified beneficiaries of an irrevocable trust of the existence of the trust, of the identity of the trustee, and of their rights to trust accountings; nor can you waive the duty to provide a complete copy of the trust instrument and to account to qualified beneficiaries; nor can you waive the duty to respond to the request of a qualified beneficiary of an irrevocable trust for relevant information about the assets and liabilities of the trust and the particulars relating to trust administration.
Bottom line, you can’t do your job as trustee if you don’t know who your qualified beneficiaries are.
Miss law school? How about a couple of brain teaser hypotheticals?
Example 1 — Meaning of Beneficiary. At his death, ninety-year-old D leaves $1,000,000 to T as trustee “to pay the income to D’s spouse S for life, then to distribute trust property to such of D’s descendants as S by will appoints, and in default of appointment in continuing trust to spray income among D’s children from time to time living, and at the death of the last to distribute all trust property per stirpes to D’s then living descendants and if there be none, to D’s alma mater, QB University.” D is survived by S, by two children, C1 and C2, by a grandson Bob (C1’s child) and by a great-granddaughter Fay (Bob’s child). On these facts, the beneficiaries of D’s trust include S, C1, C2, Bob, Fay, QB University, and an indeterminate and unascertainable class of as yet unborn descendants of D. Note that T’s power to spray trust income among D’s children does not make T a beneficiary because T holds that power as a trustee.
Example 2 — Meaning of Qualified Beneficiary. Same facts as Example 1. The qualified beneficiaries of D’s trust, as of his death, include S, C1, C2 and Bob. S is included because she is a permissible distributee. C1 and C2 are included because they would become permissible distributees were S’s interest to terminate at D’s death (i.e., were she to die at that time). Bob is also a qualified beneficiary because he would take the trust property were the trust to terminate at D’s death (because of the death of S, C1 and C2). As of D’s death, neither Fay nor QB University are qualified beneficiaries. Note however, that if Bob were to die after D’s death, Fay would then become a qualified beneficiary because she would be entitled to trust property as a consequence of a hypothetical trust termination at that time. That is, the determination of who is a qualified beneficiary is made as of a specific point in time and can change over time.
Clearly, who’s in and who’s out as a qualified beneficiary isn’t always going to be obvious. You need to apply the statute to a concrete set of facts to make sense of it. And thanks to the 4th DCA we now have two more real life examples. In both cases the 4th DCA makes clear that when in doubt the term “qualified beneficiary” is going to be read expansively, even if the trust agreement was intentionally drafted to reach the opposite result.
Should you assume intermediate beneficiaries die “sequentially” or “simultaneously”?
In this case the trust agreement left everything to D’s surviving spouse, S, and upon her death to her three daughters, A, B, and C, and when the last daughter dies, to several charities. F.S. 736.0110 extends the rights of a qualified beneficiary to any charitable organization expressly designated to receive distributions from a charitable trust if the organization would otherwise meet the definition of a qualified beneficiary.
D was survived by his three daughters (his wife predeceased him). D’s trustee then filed an action seeking to resign and he named D’s three daughters and the charities as defendants, alleging that they were all qualified beneficiaries of the trust. The daughters argued that the charities weren’t qualified beneficiaries, and thus didn’t have a say in who gets to be successor trustee, because if any one of them died, the surviving sisters would get their share. Thus, the charities weren’t first line remainder beneficiaries. The trial court agreed and entered summary judgment against the charities.
Wrong answer, says the 4th DCA. When you’re defining who falls within the magic circle of qualified beneficiaries you need to assume all intermediate beneficiaries die simultaneously.
The lower court’s order contemplates the sequential termination of the daughters’ individual interests such that A’s interest passes to B and C; then B’s interest passes to C; then C’s interest passes to the charities. This interpretation is contrary to the plain language of the statute.
The statute contemplates the simultaneous termination of the interests of the distributees (“termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions”). If the interests of the distributees of the trust were simultaneously terminated, all of the daughters’ interests would terminate and the charities would be the distributees. Therefore, the charities are qualified beneficiaries under the plain language of the statute.
Can you use a “multiple-trust scheme” to draft remainder beneficiaries out of the picture?
When it comes to blended families, estate planning can be a special kind of hell, as amply demonstrated by this case, which is now on its second round before the 4th DCA.
In this case D’s trust was for the benefit of his surviving spouse, S, and upon her death for D’s adult children from a prior marriage. D was survived by S and his children. Both D and his estate planning attorney clearly anticipated there was going to be trouble, and tried their best to draft those problems out of existence, as I previously reported here the first time this case made its way to the 4th DCA.
This time around the question was whether a trust agreement that says S’s “Family Trust” terminates when she dies and that at that time new trusts would be created for D’s children, effectively cuts them out as qualified beneficiaries of S’s trust. As explained by the 4th DCA, that was clearly D’s intent.
[I]t appears that the husband settled on the multiple-trust scheme for the very purpose of preventing the children from challenging the manner in which the wife spent the money in the Family Trust during her lifetime.
[T]he fact that the Family Trust terminates upon the wife’s death does not preclude the children from having a beneficial interest in the Family Trust. Indeed, by definition, a remainder interest in a trust refers to the right to receive trust property upon the termination of the trust. ….
Thus, while the husband may have intended to prevent the children from challenging the manner in which the wife spent the money in the Family Trust during her lifetime, see Minassian, 152 So.3d at 727, the children are qualified beneficiaries under [F.S. 736.0103(16)] and are therefore entitled to the corresponding protections afforded to qualified beneficiaries under the Florida Trust Code.
Florida remains the largest recipient of state-to-state migration in the US, and the top choice among retirees. A percentage of those transplants are going to be married couples that moved to Florida directly from a community property state or may have lived in a community property state at some time during their marriage. How big a percentage? Bigger than you might think.
There are nine community property states in the US, including our two most populous states: California and Texas. Additionally, Alaska is an elective community property state, and of the five inhabited US territories, Puerto Rico and Guam are community property jurisdictions. That’s a lot of people. But it doesn’t end there.
You also need to keep in mind that married couples moving to Florida from foreign civil law jurisdictions (think all of Latin America) usually bring along with them some kind of community property rights. For an excellent article discussing those issues you’ll want to read Transnational Probate and Estates: Procedural Strategy in Light of Latin American Law and Practices.
OK, so even if community property is common, why should we care? Because when one of those community property transplants dies in Florida, the surviving spouse’s testamentary community property rights don’t go away, they’re preserved by the Florida Uniform Disposition of Community Property Rights at Death Act (“FUDCRPDA”) (see F.S. sections 732.216 to 732.228); Florida’s version of the Uniform Disposition of Community Property Rights at Death Act (which has been adopted in 17 states).
For more on FUDCRPDA and how it’s supposed to work, you’ll want to read Playing Both Sides of the Florida Community Property Street?, by Richard Warner, one of the smartest probate practitioners and most provocative commentators in Florida.
But here’s the problem: because Florida isn’t a community property state, community property is an issue most Florida probate attorneys never think about, which means it might be a while before anyone gets around to looking into whether a surviving spouse has any community property rights worth filing a FUDCRPDA claim to preserve. Does this lack of awareness matter? Yes. Why? Because community property claims in Florida probate proceedings are forfeited if they’re not made before the statutory filing deadline. So what’s the filing deadline? According to the 4th DCA, it’s sooner than you might think.
The wife’s petition, filed pursuant to sections 732.216–.228, Florida Statutes (2015) (known as the “Florida Uniform Disposition of Community Property Rights at Death Act”) sought to confirm and effectuate her vested 50% community property interest in an investment asset acquired and titled in the decedent’s name while the decedent and the wife were domiciled in Texas, a community property state. See § 732.219, Fla. Stat. (2015) (“Upon the death of a married person, one-half of the property to which ss. 732.216–732.228 apply is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state.”).
The decedent’s daughters objected, claiming wife’s FUDCPRDA claim was time barred. So what’s the deadline for filing a community property claim? Good question; FUDCPRDA doesn’t tell us, you need to look elsewhere.
If a surviving spouse is going to make an elective share claim, F.S. 732.2135(1) tells us exactly what the deadline is for filing that kind of claim. By contrast, FUDCPRDA doesn’t have any explicit filing deadlines. Wife argued there are none (which makes sense if she was simply perfecting existing property rights to non-estate assets she already owned). Daughters argued wife’s community property claim is a form of creditor claim, so the filing deadlines for probate creditor claims apply (which makes sense if we view a FUDCPRDA claim as creating new property rights to estate assets owned by the decedent).
Daughters won the definitional argument: community property claims = creditor claims: creditor deadlines apply.
a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or estate, inheritance, succession, or other death taxes.
(emphasis added). The wife’s community property interest is “a liability of the decedent.” Although the decedent’s possession of the community property in his name may have created a resulting trust, see [Quintana v. Ordono, 195 So.2d 577, 580 (Fla. 3d DCA 1967)] (“A resulting trust is generally found to exist in transactions affecting community property in noncommunity property states where a husband buys property in his own name.”), upon the decedent’s death, his estate became liable to the wife for her community property interest. Thus, upon the decedent’s death, the wife’s community property interest was a claim which the wife had to pursue.
Upon the decedent’s death, the wife had the ability to perfect her community property interest by seeking an order of the probate court pursuant to section 732.223. Because the wife’s community property interest was a “claim” as defined in section 731.201(4), the wife had three months after the time she published the notice to creditors to file her claim according to section 733.702(1), and in any event had two years after the decedent’s death to file her claim according to section 733.710(1). The wife did neither. As a result, the circuit court properly found that the wife’s untimely claim (in the form of her petition) was barred, and that no exception to the statutory deadlines existed. Ruling otherwise would have left no deadline by which the wife had to file a petition to perfect her community property interest, contrary to section 733.710(1).
So what are testamentary community property rights in Florida?
Whether a surviving spouse’s vested community property rights are part of the deceased spouse’s probate estate making them subject to the estate’s claims procedures, or are fully owned by the surviving spouse and therefore not subject to the estate’s claims procedures.
As explained in the petitioner’s jurisdictional brief filed with the Florida Supreme Court, this is a matter of “great public importance” the court will hopefully agree to address.
If you make your living in and around our probate courts you’ll find the FY 2016-17 Probate Court Statistical Reference Guide interesting reading. The chart below provides the “cases filed” data for three of our largest circuits/counties: Miami-Dade (11th Cir), Broward (17th Cir), and Palm Beach (15th Cir).
And because one year’s snapshot is only so useful, the chart also reports the per-judge average case filing numbers for the prior four years to reflect trends over time.
*In Palm Beach County (15th Cir) there are 9 part time probate judges. For purposes of the chart I count them as 4.5 full time probate judges.
In Miami-Dade – on average – each probate judge took on 2,535 NEW cases in FY 2016-17, in Broward the figure was slightly higher at 2,901/judge, with Palm Beach scoring the lowest at 1,896/judge. Keep in mind these case-load figures (which have remained relatively constant over the last five years) don’t take into account each judge’s EXISTING case load or other administrative duties.
 We aren’t doing our jobs as planners if we don’t anticipate — and plan accordingly for — the structural limitations inherent to an overworked and underfunded state court system. As I’ve previously written here, one important aspect of that kind of planning should be “privatizing” the dispute resolution process to the maximum extent possible by including mandatory arbitration clauses in all our wills and trusts. Arbitration may not be perfect, but at least you get some say in who’s going to decide your case and what his or her minimum qualifications need to be. And in the arbitration process (which is privately funded) you also have a fighting chance of getting your arbitrator to actually read your briefs and invest the time and mental focus needed to thoughtfully evaluate the complex tax, state law and family dynamics underlying these cases (a luxury that’s all but impossible in a state court system that forces our judges to juggle thousands of cases at a time with little or no support).
 We aren’t doing our jobs as litigators if we don’t anticipate — and plan accordingly for — the “cold judge” factor I wrote about here; which needs to be weighed heavily every time you ask a court system designed to handle un-contested proceedings on a mass-production basis to adjudicate a complex trial or basically rule on any technically demanding issue or pre-trial motion of any significance that can’t be disposed of in the few minutes allotted to the average probate hearing.
All matters relating to the validity of wills and their execution; distribution, management, sale, transfer and accounting of estate property; and ancillary administration pursuant to Chapters 731, 732, 733, 734, and 735, F.S.
All matters relating to the care and treatment of individuals with mental, emotional, and behavioral disorders pursuant to sections 394.463 and 394.467, F.S.
All matters related to the involuntary assessment/treatment of substance abuse pursuant to Sections 397.6811 and 397.693, F.S.
Adult Protective Services Act cases pursuant to Section 415.104, F.S.
Developmental disability cases under Section 393.11, F.S.
Incapacity determination cases pursuant to sections 744.3201, 744.3215, and 744.331, F.S.
Tuberculosis control cases pursuant to Sections 392.55, 392.56, and 392.57, F.S.
All matters relating to determination of status; contracts and conveyances of incompetents; maintenance custody of wards and their property interests; control and restoration of rights; appointment and removal of guardians pursuant to Chapter 744, F.S.; appointment of guardian advocates for individuals with developmental disabilities pursuant to section 393.12, F.S.; and actions to remove the disabilities of non-age minors pursuant to sections 743.08 and 743.09, F.S.
All matters relating to the right of property, real or personal, held by one party for the benefit of another pursuant to Chapter 736, F.S.
Not surprisingly, many of these transplants are slow to abandon the professional relationships they’ve fostered back home — often for decades. When it comes to estate planning that can be a big mistake. Why? Because just because your estate planning documents work back home doesn’t mean they’ll work in Florida. And the person who “pays” for that mistake may be the attorney — not the client (think malpractice claim).
For example, if a trust’s executed somewhere else (like Illinois), F.S. 736.0403(1) tells us it’s generally going to be valid in Florida if it’s valid back home. But that last rule is subject to some big caveats, including Florida’s special execution rules for revocable trusts having “testamentary” provisions. In those cases F.S. 736.0403(2)(b) tells us the non-Florida revocable trust has to comply with Florida’s execution formalities for wills — no matter what the rule might be back home. That can be a huge trap for the unwary.
At the heart of the Lindenau v. Lundeen case is an Illinois retiree who moved to Florida but kept working with his estate planning attorney back home. The decedent’s Illinois attorney (Lundeen) drafted an amendment to his client’s Illinois revocable trust after the client had moved to Florida and established a new domicile in Florida. The trust amendment was signed by the decedent (Falkenthal) in the presence of two witnesses, but only one of the witnesses signed it. That’s just fine in Illinois, not so much in Florida, as Falkenthal’s new Florida girlfriend (Lindenau) learned when the 2d DCA held in Kelly v. Lindenau (which I wrote about here) that the trust amendment granting her title to the home she shared with Falkenthal failed as a matter of law.
In [Robinson v. Giamarco & Bill, P.C., 74 F.3d 253, 257 (11th Cir. 1996)] … Michigan attorneys negligently drafted and reviewed a Florida resident’s will, trust, and follow-on testamentary documents. 74 F.3d at 255–56. The client died in Florida, and the will was admitted to probate and the trust administered in Broward County, Florida. Id. at 256. The trust and the estate incurred unexpected tax liability and consequently sued the Michigan attorneys for malpractice. Id. The Eleventh Circuit held the Michigan attorneys “commit[ed] a tortious act within this state” because “[t]heir negligence has allegedly caused damages to an estate in Florida.” Id. at 257.
But just because you’re covered by F.S. 48.193 doesn’t mean you’re done. Once that condition’s satisfied, the Court then moves to step two by evaluating whether the defendant has “minimum contacts” with Florida, such that hauling him into a Florida courtroom does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). If step two’s satisfied, the case stays in Florida. If not, it gets dismissed.
Lundeen contends this case … aligns with Fleming & Weiss, P.C. v. First American Title Insurance Co., 580 So. 2d 646 (Fla. 3d DCA 1991). There, the out-of-state law firm sent an opinion letter to a Florida bank concerning a subordination agreement that would be used in Florida as part of a mortgage agreement to purchase Florida property, which allegedly caused harm in Florida. Id. at 647. The firm sent the letter “knowing and expecting” it would be used by the Florida bank “in transacting the Florida land loan.” Id. at 648 (Nesbitt, J., dissenting). Nevertheless, the court held the firm’s contacts with Florida insufficient to satisfy due process because the firm “did not solicit business in Florida, maintained no agent or property in Florida,” and “stated … the opinion was based solely on New York law.” Id. at 647–48.
Also similarly to Fleming & Weiss, Lundeen does not solicit business in Florida, has no office in Florida, is not licensed in Florida, owns no property in Florida, and has no other clients in Florida. And while the attorneys in Fleming & Weiss … knew and expected their documents would be used in Florida, Lundeen had no such guarantee when he drafted the Trust and the Amendments. (See Doc. 9 ¶¶ 18, 25.) His lack of expectation or intention to subject himself to Florida law distinguishes this case. … By including an Illinois choice-of-law clause and not expecting or intending the Trust to be invoked by Florida courts under Florida law, Lundeen did not purposefully avail himself of this forum, according to Fleming & Weiss.
This case instead comes down to whether Lundeen’s act of drafting the First and Second Amendments “involve some purposeful availment of the privilege of conducting activities within the forum, thereby invoking the benefits and protections of its laws.” … Because the Trust and Amendments were to “be construed and governed by the laws of Illinois” (Doc. 2–1 at 8), and Lundeen did not expect nor intend for the Trust to be administered in Florida under Florida law (Doc. 9 ¶¶ 18, 25), Lundeen cannot be said to have created a “substantial connection” with Florida sufficient to subject him to jurisdiction. See Fleming & Weiss, 580 So. 2d at 647–48.6 Accord Newsome v. Gallacher, 722 F.3d 1257, 1280 (10th Cir. 2013) (collecting cases supporting general agreement among federal courts that “representing a client residing in a distant forum is not necessarily a purposeful availment of that distant forums’ laws and privileges”).


Defendants' motion for summary judgment is granted and the claim is dismissed for claimant's failure to plead the location where the claim arose with sufficient specificity pursuant to Court of Claims Act § 11 (b).
Claimant's attorney: By: Michael N. David, Esq.
Claimant brings the instant action alleging damages as a result of defendants' negligence. Specifically, claimant alleges that she was injured on October 27, 2014 when her face came into contact with a glass door located on the campus of Brooklyn College (Verified Claim ¶¶ 5-7). Claimant served a notice of intention to file a claim on the Attorney General on January 21, 2015 (Affirmation of Suzette Corinne Merritt, AAG, Ex. A). Claimant also served a notice of intention to file a claim on defendant the City University of New York ("CUNY") on January 13, 2015 (Affidavit of Sophia Walsh-Newman ¶ 4). The verified claim in this action was filed on September 24, 2016 and served on the Attorney General on September 26, 2016 (Merritt Aff. ¶ 8). Defendants filed and served an answer on October 19, 2016 (Merritt Aff. ¶ 9). Defendants now bring the instant motion for summary judgment pursuant to CPLR 3212 and Court of Claims Act § 11 (b), on the ground that the claim is not sufficiently specific to comply with the jurisdictional requirements of Court of Claims Act § 11 (b) (Merritt Aff. ¶ 13). Claimant opposes the motion.
The sole issue set forth in defendants' motion for summary judgment is whether the statement of the location of where the claim arose is pleaded with sufficient specificity under Court of Claims Act § 11 (b). Claimant first identified the location of the accident as "the extreme right exit door on the street level, at Whitehead Hall, Brooklyn College . . ." (Notice of Intention to File a Claim ¶ 3). Counsel for claimant alleges that photographs of the exit door at issue were attached to the notice of intention to file a claim (Affirmation of Michael N. David, Esq. ¶ 6). Indeed, the notice of intention states that pictures are attached (Notice of Intention ¶ 3). However, defendants aver that the notice of intention to file a claim received by the Attorney General did not have any photographs attached to it. In support of this statement, defendants submit the affidavit of Min Chul Rhee, Legal Assistant 1 in the Claims Bureau in the New York City Office of the Attorney General. Mr. Rhee conducted a thorough search of the computer filing system maintained at the Attorney General's office (Reply Affirmation, Ex. B). The search produced two notices of intention--one received by personal service at the New York City Office of the Attorney General on January 13, 2015, and one received by personal service at CUNY Counsel's Office on January 21, 2015 (Rhee Aff. ¶ 4 [A], [B]). Each notice of intention located by Mr. Rhee consisted of two pages and both notices did not have any attached photographs (id.). Defendants also submit the affidavit of Sophia Walsh-Newman, a Higher Education Assistant-Paralegal in the Office of the General Counsel for CUNY (Reply Affirmation, Ex. A). Ms. Walsh-Newman also performed a search of her office's computer filing system and found that the notice of intention received by her office did not have any photographs attached (Walsh-Newman Aff. ¶ 4). The claim, which was filed and served approximately one year and eight months after the notice of intention to file a claim, states that the accident took place at Whitehead Hall on the Brooklyn College campus when "the [claimant's] face was caused to come into contact with the extreme right glass exit door on the street level" (Verified Claim ¶ 7). There are no photographs attached to the claim. On October 24, 2016, Crystal Combs, a Law Department Investigator II in the Claims Bureau of the Office of the Attorney General, went to Brooklyn College to take photographs of the set of doors located on the street level of the Whitehead Hall building (Affidavit of Crystal Combs ¶ 5). These photographs were produced to claimant during discovery, however claimant's counsel stated that he did not open and view the pictures because he assumed that they were the same photographs he allegedly attached to the notice of intention to file a claim (Affirmation in Opposition ¶ 9). The photographs clearly depict that the doors face a street (Merritt Aff., Ex. F). On September 15, 2017, during the deposition of claimant, counsel for defendants presented claimant with the photographs taken by Ms. Combs (Merritt Aff., Ex. H, p. 15-16). Counsel for defendants asked claimant if the doors depicted in the photographs were the doors involved in the accident (id. at p. 16). Claimant responded that they were not (id.). Following the deposition, counsel for claimant e-mailed to counsel for defendants the photographs of the doors involved in the incident that he had in his possession (Merritt Aff., Ex. I). The photographs clearly depict that the doors face an outer walkway, grassy area, and a building adjacent to the walkway and grassy area (id.). On September 20, 2017, Ms. Combs returned to Whitehead Hall on Brooklyn College's campus and took photographs of the doors identified by claimant at the deposition (Combs Aff. ¶ 5). The photographs clearly depict that the doors face the same walkway and grassy area depicted in the pictures e-mailed to counsel for defendants from counsel for claimant (Merritt Aff., Ex. G).
"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept. 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 ; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept. 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324  [internal citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 ; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept. 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept. 2011]). In considering the motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept. 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept. 2011]).
"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 ; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 ). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281  [internal quotation marks and citations omitted]). As relevant here, Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 NY3d at 206 [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). However, defendants are not required "to ferret out or assemble information that section 11 (b) obligates the [movant] to allege" (Lepkowski v State of New York, 1 NY3d at 208).
Here, claimant's description of the place of the accident as the "the extreme right glass exit door on the street level" (Verified Claim ¶ 7), is "insufficient to permit defendant to investigate its liability" (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept. 2015]; see Sega v State of New York, 246 AD2d 753, 755 [3d Dept. 1998], lv denied 92 NY2d 805 ; Wilson v State of New York, 35 Misc 3d 227, 232-233 [Ct Cl 2011]). Defendants state that there are several sets of doors in Whitehead Hall and two sets of doors in both the front and back of the building. The set installed in the front of the building is on the ground level and leads to the street in front of the building (Merritt Aff., Ex. F). The set of doors in the back of the building leads to a grassy area on Brooklyn College's campus (Merritt Aff., Ex. G). Claimant's identification of the accident site as "the extreme right glass exit door on the street level" (Verified Claim ¶ 7) is inadequate, especially considering that claimant stated at her deposition that the door in question does not actually face the street, despite the claim referring to the door as on the "street level" (see Merritt Aff. Ex. H, p. 16). Claimant argues that the description of the doors is accurate "when taken in conjunction with the photographs [attached to the notice of intention]" (Affirmation in Opposition ¶ 16). However, the affidavits of Min Chul Rhee and Sophia Walsh-Newman establish that no photographs were attached to the notices of intention served on both the Attorney General and CUNY Counsel's Office (Reply Affirmation, Exs. A, B).(1) Thus, claimant's description of the location of the accident was not specific enough "so as not to mislead, deceive, or prejudice the rights of the State" (Wharton v City Univ. of New York, 287 AD2d 559, 560 [2d Dept. 2001] [citation omitted]). Claimant also argues that the description of the location is sufficiently specific because there are only two sets of doors in the building, each on the "street level" (Affirmation in Opposition ¶ 18). However, strict compliance with the Court of Claims Act is necessary to confer jurisdiction in this Court (see Long v State of New York, 7 NY3d 269, 276 ), and where a claim begets confusion as to the location of the accident, the number of possible locations implied by the claim is irrelevant (see Triani v State of New York, 44 AD3d 1032, 1033 [2d Dept. 2007] [finding that the claim's description of the location of the accident as "the sidewalk abutting Kingsboro Hospital at 681 Clarkson Avenue in Brooklyn" was not sufficiently specific under Court of Claims Act § 11 (b)], revg Triani v State of New York, 2006 WL 6067589 [Ct Cl, Aug. 30, 2006, No. 112028]; Alpert v State of New York, UID No. 2017-040-027 [Ct Cl, McCarthy, J., Mar. 1, 2017] [finding that the claim failed to set forth the place where the claim arose where there were two staircases in the subject building and claimant failed to identify the staircase where the accident occurred]; see also Wilson v State of New York, 35 Misc 3d 227, 231-232 [Ct Cl 2011]; Liberty Mut. Ins. Co. v State of New York, 30 Misc 3d 693 [Ct Cl 2010]; Peeples-Polk v State of New York, UID No. 2010-034-527 [Ct Cl, Hudson, J., June 29, 2010]).
Lastly, claimant argues that defendants have not demonstrated that the ability to investigate the claim has been significantly impaired (Affirmation in Opposition ¶ 19). However, "a lack of prejudice to [defendants] is an immaterial factor" when considering whether claimant has complied with the jurisdictional requirements of Court of Claims Act § 11 (b) (Byrne v State of New York, 104 AD2d 782, 784 [2d Dept. 1984], appeal denied 64 NY2d 607 ). In any case, defendants submitted an affidavit from their investigator stating that the misidentification of the door involved in the accident impeded the investigation of the claim (see Combs Aff. ¶ 7).
In conclusion, the Court notes that the requirements of Court of Claims Act § 11 (b) are mandatory pleading requirements that are "substantive conditions upon the State's waiver of sovereign immunity" and the failure to comply results in the claim being jurisdictionally defective (Lepkowski v State of New York, 1 NY3d at 207; Kolnacki v State of New York, 8 NY3d 277, 281 ). Such a defect cannot be waived and may be raised at any time, even sua sponte (Green v State of New York, 90 AD3d 1577, 1578 [4th Dept. 2011]; Czynski v State of New York, 53 AD3d 881 [3d Dept. 2008]). Accordingly, the Court is constrained to find that the claim is jurisdictionally defective for its failure to comply with Court of Claims Act § 11 (b).
ORDERED that defendants' motion for summary judgment (M-91584) is granted and claim number 128591 is dismissed.
1.	Notice of Motion for Summary Judgment, dated December 13, 2017; and Affirmation in Support of Motion, affirmed by Suzette Corinne Merritt, AAG on December 13, 2017, with Exhibits A through I annexed thereto.
2.	Affirmation in Opposition, affirmed by Michael N. David, Esq. on January 15, 2018, with Exhibit A annexed thereto.
3.	Reply Affirmation, affirmed by Suzette Corinne Merritt, AAG on January 22, 2018, with Exhibits A and B annexed thereto.
4.	Sur-Reply Affirmation in Opposition, affirmed by Michael N. David, Esq. on January 25, 2018.
1. On January 26, 2018, claimant e-filed a sur-reply to defendants' reply affirmation. Although the filing and service of a sur-reply is "an unnecessary and unauthorized elaboration of motion practice" (Scherrer v Time Equities, 218 AD2d 116, 121 [1st Dept. 1995], abrogated on other grounds by Matter of New York County DES Litig., 89 NY2d 506  [citation omitted]), the Court notes that the averments therein would not change the Court's decision. Specifically, claimant alleges that defendants should have notified claimant's counsel that the notice of intention did not have any photographs attached despite referencing photographs. Contrary to claimant's allegation, defendants were under no obligation to seek specification of the location of the incident (see Lepkowski v State of New York, 1 NY3d at 208).


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Apr 12, 2019 ... State v. Knowles, 44 Fla. L. Weekly D664a (5th ...... Dupriest v. State, 44 Fla. ...... Green v. State, 43 Fla. L. Weekly D2250a (4th DCA 10/3/18).
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41-2901. Beer and cereal malt beverage keg registration act; citation.
This section and K.S.A. 2006 Supp. 41-2902 through 41-2906, and amendments thereto, shall be known and may be cited as the beer and cereal malt beverage keg registration act.
History: L. 2002, ch. 44, § 1; July 1.
41-2902. Same; regulation by cities and counties, limitations.
Any ordinance or resolution adopted by a city or county which supplements or is in conflict with or contrary to the provisions of the beer and cereal malt beverage keg registration act shall be null and void.
History: L. 2002, ch. 44, § 2; July 1.
41-2903. Same; retailer's liability, limitation.
Nothing in the beer and cereal malt beverage keg registration act shall be construed as creating a private cause of action against a retailer or a retailer's agent or employee.
History: L. 2002, ch. 44, § 3; July 1.
41-2904. Same; civil and administrative actions, recovery of fees and costs, when.
In any civil or administrative action brought against a retailer or a retailer's agent or employee for a violation of the beer and cereal malt beverage keg registration act, in which the defendant is the prevailing party, the court or presiding officer may award to the defendant reasonable attorney's fees and all other reasonable costs if the court or presiding officer finds the action was not brought in good faith or was brought without a reasonable basis in fact or law.
History: L. 2002, ch. 44, § 4; July 1.
41-2905. Same; duties of beer retailer; violations; penalties; duties of secretary; rules and regulations.
(a) Prior to the sale at retail of any beer in a container having a liquid capacity of four or more gallons, the retailer or the retailer's employee or agent shall affix to the beer container a keg identification number or otherwise uniquely identify the container in accordance with this act and rules and regulations adopted by the secretary. At the time of sale at retail of any such container of beer, the retailer or the retailer's employee or agent shall record the keg number; the date of the sale; the purchaser's name and address; and the number on the purchaser's driver's license, Kansas nondriver's identification card or other official or apparently official document that reasonably appears to contain both the purchaser's picture and the purchaser's signature, which shall be exhibited at the time of sale. Such record shall be kept by the retailer at the premises where the sale was made. Such record shall be kept by the retailer until the container is returned or until the expiration of six months following the date of the sale.
(b) For the purpose of investigating a violation of laws prohibiting the furnishing to or possession or consumption of beer by persons under the age of 21 and if such violation involves a container required to be registered under the beer and cereal malt beverage keg registration act and if there is reason to believe that a retailer sold such container, such retailer's records relating to the sale of such container which are required to be kept by this section shall be available for inspection by any law enforcement officer during normal business hours of the retailer. Records required to be kept by this section shall not be available for inspection or use or subject to subpoena in any civil or administrative action or criminal prosecution other than a civil or administrative action or criminal prosecution relating to a specific violation of this section or K.S.A. 21-3610, prior to its repeal, or subsection (a) of K.S.A. 21-5607, and amendments thereto, or K.S.A. 41-727, and amendments thereto. Except as specifically provided by this subsection, records required to be kept by this section shall not be sold, distributed or otherwise released to any person other than an agent of the retailer or to a law enforcement agency.
(c) Upon a determination that a retailer or a retailer's employee or agent has violated this section or any rules and regulations adopted pursuant to this section, the director may suspend or revoke the retailer's license in the manner provided by K.S.A. 41-320, and amendments thereto, and may impose a fine as provided by K.S.A. 41-328, and amendments thereto.
(3) possess a beer container required to be registered under this act that does not have the keg identification number required by this section.
(e) The secretary of revenue shall adopt any rules and regulations necessary to implement the provisions of this section. Such rules and regulations shall include, but shall not be limited to, provisions relating to records and establishing standards for marking and handling containers which are required to be registered by this act.
(f) The secretary of revenue shall provide any keg identification tags or labels required by this section. Such tags or labels shall be designed so that when affixed to a keg, such tags or labels do not mar or otherwise damage the keg. There shall be no charge for such tags or labels.
(g) If a person sold beer in compliance with the provisions of this section and any rules and regulations adopted pursuant thereto, it shall be a defense to any criminal prosecution or proceeding or civil or administrative action under this section.
(h) The provisions of this section shall not apply to sales of kegs by distributors or retailers to clubs, drinking establishments, hotel drinking establishments and caterers licensed under the club and drinking establishment act.
(i) Words or phrases used in this section shall have the meaning ascribed thereto by K.S.A. 41-102, and amendments thereto.
History: L. 2002, ch. 44, § 5; L. 2008, ch. 126, § 11; L. 2011, ch. 30, § 184; July 1.
41-2906. Same; duties of cereal malt beverage retailers; violations; penalties; duties of secretary; rules and regulations.
(a) Prior to the sale by a retailer or a retailer's employee or agent of any cereal malt beverage in a container having a liquid capacity of four or more gallons, the retailer or the retailer's employee or agent shall affix to the cereal malt beverage container a keg identification number or otherwise uniquely identify the container in accordance with rules and regulations adopted by the secretary. At the time of sale of any such container of cereal malt beverage, the retailer, or the retailer's employee or agent, shall record the keg number; the date of the sale; the purchaser's name and address; and the number on the purchaser's driver's license, Kansas nondriver's identification card or other official or apparently official document that reasonably appears to contain both the purchaser's picture and the purchaser's signature, which shall be exhibited at the time of sale. Such record shall be kept by the retailer at the premises where the sale was made. Such record shall be kept by the retailer until the container is returned or until the expiration of six months following the date of the sale.
(b) For the purpose of investigating a violation of laws prohibiting the furnishing to or possession or consumption of cereal malt beverage by persons under the legal age for consumption of cereal malt beverage and if such violation involves a container required to be registered under the beer and cereal malt beverage keg registration act and if there is reason to believe that such retailer sold such container, such retailer's records relating to the sale of such container which are required to be kept by this section shall be available for inspection by any law enforcement officer during normal business hours. Records required to be kept by this section shall not be available for inspection or use or subject to subpoena in any civil or administrative action or criminal prosecution other than a civil or administrative action or criminal prosecution relating to a specific violation of this section or K.S.A. 21-3610, prior to its repeal, or subsection (a) of K.S.A. 21-5607, and amendments thereto, or K.S.A. 41-727, and amendments thereto. Except as specifically provided by this subsection, records required to be kept by this section shall not be sold, distributed or otherwise released to any person other than an agent of the retailer or to a law enforcement agency.
(c) Upon a determination that a retailer or a retailer's employee or agent has violated this section or any rules and regulations adopted pursuant to this section, the board of county commissioners or the governing body of the city may suspend or revoke the retailer's license in the manner provided by K.S.A. 41-2708, and amendments thereto, and may impose a fine pursuant to K.S.A. 41-2711, and amendments thereto.
(3) possess a cereal malt beverage container required to be registered under this act that does not have the keg identification number required by this section.
(f) The secretary of revenue shall provide any keg identification tags or labels required by this act. There shall be no charge for such tags or labels. Such tags or labels shall be designed so that when affixed to a keg, such tags or labels do not mar or otherwise damage the keg.
(g) If a person sold cereal malt beverage in compliance with the provisions of this section and any rules and regulations adopted pursuant thereto, it shall be a defense to any criminal prosecution or proceeding or civil or administrative action under this section.
(h) Words and phrases used in this section shall have the meaning ascribed thereto by K.S.A. 41-2701, and amendments thereto.
History: L. 2002, ch. 44, § 6; L. 2008, ch. 126, § 12; L. 2011, ch. 30, § 185; July 1.
41-2911. Alcoholic liquor and cereal malt beverage, days of sale; local option.
(B) restrict the days of sale at retail of cereal malt beverage in the original package to prohibit such sale within the unincorporated area of the county on Sunday and restrict the days of sale at retail of alcoholic liquor in the original package, if licensing of such sale of alcoholic liquor is authorized within the unincorporated area of the county, to prohibit such sale within the unincorporated area of the county on Sunday, Memorial Day, Independence Day and Labor Day.
Such resolution shall be published once, within two weeks after its adoption, in the official county newspaper. Such resolution shall not become effective earlier than 60 days following the date of its publication or November 15, 2005, whichever is later. If, within 60 days following publication of the resolution, a petition requesting that a proposition be submitted for approval by the voters is filed in accordance with subsection (a)(2), such resolution shall not become effective until a proposition is submitted to and approved at an election as provided by this subsection (a).
(A) If licensing of sale at retail of alcoholic liquor in the original package is not authorized within the unincorporated area of the county, the petition shall read: "We request an election to determine whether sale at retail of cereal malt beverage in the original package shall be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m.) (prohibited on Sunday) within the unincorporated area of ___________ county."
(B) If licensing of sale at retail of alcoholic liquor is authorized within the unincorporated area of the county, the petition shall read: "We request an election to determine whether sale at retail of cereal malt beverage in the original package shall be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m.) (prohibited on Sunday) within the unincorporated area of ___________ county and whether sale at retail of alcoholic liquor in the original package shall be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m. and on Memorial Day, Independence Day and Labor Day) (prohibited on Sunday, Memorial Day, Independence Day and Labor Day) within the unincorporated area of ___________ county."
(A) If licensing of sale at retail of alcoholic liquor is not authorized within the unincorporated area of the county, the following proposition shall be placed on the ballot: "Within the unincorporated area of ___________ county shall sale at retail of cereal malt beverage in the original package be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m.) (prohibited on Sunday)?"
(B) If licensing of sale at retail of alcoholic liquor is authorized within the unincorporated area of the county, the following proposition shall be placed on the ballot: "Within the unincorporated area of _______ county shall sale at retail of cereal malt beverage in the original package be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m.) (prohibited on Sunday) and shall the sale at retail of alcoholic liquor in the original package be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m. and on Memorial Day, Independence Day and Labor Day) (prohibited on Sunday, Memorial Day, Independence Day and Labor Day)?"
(B) restrict the days of sale at retail of cereal malt beverage in the original package to prohibit such sale within the city on Sunday and restrict the days of sale at retail of alcoholic liquor in the original package, if licensing of such sale of alcoholic liquor is authorized within the city, to prohibit such sale within the city on Sunday, Memorial Day, Independence Day and Labor Day.
Such ordinance shall be published at least once each week for two consecutive weeks in the official city newspaper. Such ordinance shall not become effective earlier than 60 days following the date of its publication or November 15, 2005, whichever is later. If, within 60 days following publication of the ordinance, a petition requesting that a proposition be submitted for approval by the voters is filed in accordance with subsection (b)(2), such ordinance shall not become effective until a proposition is submitted to and approved at an election as provided by this subsection (b).
(A) If licensing of sale at retail of alcoholic liquor in the original package is not authorized within the city, the petition shall read: "We request an election to determine whether sale at retail of cereal malt beverage in the original package shall be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m.) (prohibited on Sunday) within the city of ___________."
(B) If licensing of sale at retail of alcoholic liquor is authorized within the city, the petition shall read: "We request an election to determine whether sale at retail of cereal malt beverage in the original package shall be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m.) (prohibited on Sunday) within the city of ___________ and whether sale at retail of alcoholic liquor in the original package shall be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m. and on Memorial Day, Independence Day and Labor Day) (prohibited on Sunday, Memorial Day, Independence Day and Labor Day) within the city of ___________."
(A) If licensing of sale at retail of alcoholic liquor is not authorized within the city, the following proposition shall be placed on the ballot: "Within the city of ___________ shall sale at retail of cereal malt beverage in the original package be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m.) (prohibited on Sunday)?"
(B) If licensing of sale at retail of alcoholic liquor is authorized within the city, the following proposition shall be placed on the ballot: "Within the city of _______ shall sale at retail of cereal malt beverage in the original package be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m.) (prohibited on Sunday) and shall the sale at retail of alcoholic liquor in the original package be (allowed on any Sunday, except Easter, between the hours of 12 noon and 8 p.m. and on Memorial Day, Independence Day and Labor Day) (prohibited on Sunday, Memorial Day, Independence Day and Labor Day)?"
(c) The county election officer shall transmit to the director a copy of the results of an election pursuant to this section.
(d) An election provided for by this section shall be called and held in the manner provided by the general bond law.
History: L. 2005, ch. 201, § 9; July 1.


§ 301. Organization of Civil Aviation Authority.
§ 302. Fostering of air commerce.
§ 303. National defense and civil needs.
§ 304. Airspace control and facilities.
§ 305. Other powers and duties of the Secretary.
§ 306. Air transportation security rules and regulations.
§ 309. Delegation by Secretary.
The Secretary may organize the Civil Aviation Authority of the Federated States of Micronesia as he sees fit, consistently with other national legislation, in such manner as to promote efficiently and effectively the safety and economic development of civil aviation.
Source: PL 9-138 § 9.
The Secretary is empowered and directed to encourage and foster the development of civil aeronautics and air commerce in the Federated States of Micronesia and abroad.
Source: PL 9-138 § 10.
In exercising the authority granted in, and discharging the duties imposed by, this act, the Secretary shall give full consideration to the requirements of national defense, of commercial and general aviation, and to the public right of freedom of transit through the navigable airspace.
Source: PL 9-138 § 11.
(1) Use of airspace. The Secretary is authorized and directed to develop plans for and formulate policy with respect to the use of the navigable airspace; and assign by rule, regulation, or order the use of the navigable airspace under such terms, conditions, and limitations as he may deem necessary in order to ensure the safety of aircraft and the efficient utilization of such airspace. He may modify or revoke such assignment when required in the public interest. The authority of the Secretary under this subsection shall be exercised only in that airspace for which air traffic control responsibility has not been assigned to a foreign country by international agreement or other arrangement.
(2) Air navigation facilities. The Secretary is authorized, within the limits of available resources, (a) to acquire, establish, and improve air navigation facilities wherever necessary; (b) to operate and maintain such air navigation facilities; (c) to arrange for publication of aeronautical maps and charts necessary for the safe and efficient movement of aircraft in air navigation; and (d) to provide necessary facilities and personnel for the regulation and protection of air traffic. The Secretary may from time to time arrange for the performance by another government agency or department, with the consent of that agency or department, of any function under this subsection.
(3) Air traffic rules. The Secretary is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection, and identification of aircraft, for the protection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules as to safe altitudes of flight and rules for the prevention of collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.
Source: PL 9-138 § 12.
(1) General. The Secretary is empowered to perform such acts, to conduct such investigations, to issue and amend such orders, and to make and amend such general or special rules, regulations, and procedures, pursuant to and consistent with the provisions of this title, as he shall deem necessary to carry out the provisions of, and to exercise and perform his powers and duties under, this title.
(2) Publications. The Secretary shall provide for the publication of reports, orders, decisions, rules, and regulations issued by him under this title in such form and manner as may be best adapted for public information and use.
(3) Power to conduct hearings and investigations. The Secretary shall have the power to conduct hearings and investigations necessary to carry out his duties under this title. Such power shall be exercised in consultation with the appropriate authorities of other government agencies, foreign governments and international organizations.
(4) Training schools. The Secretary is empowered to conduct a school or schools for the purpose of training employees of the Secretary in those subjects necessary for the proper performance of all authorized functions. He may also authorize attendance at courses given in such school or schools of other governmental personnel, personnel of other governments, or personnel of the aeronautics industry.
(5) Exemptions. The Secretary from time to time may grant exemptions from the requirements of any rule or regulation prescribed under this title if he finds that such action would be in the public interest.
Source: PL 9-138 § 13.
(1) Acts of criminal violence and aircraft piracy. The Secretary shall prescribe such reasonable rules and regulations requiring such practices, methods, and procedures, as he may deem necessary to protect persons and property aboard aircraft against acts of criminal violence and aircraft piracy.
(2) Screening of passengers. The Secretary shall prescribe or continue in effect reasonable regulations requiring that all passengers and all property intended to be carried in the aircraft cabin in air transportation be screened by weapon-detecting procedures or facilities employed or operated by employees or agents of the air carrier or foreign air carrier prior to boarding the aircraft for such transportation.
(3) Procedures for inspections, detentions, and searches. The Secretary shall, to the extent practicable, require uniform procedures for the inspection, detention, and search of persons and property in domestic air transportation and foreign air transportation to assure their safety and to assure that they will receive courteous and efficient treatment by air carriers and their agents and employees.
Source: PL 9-138 § 14.
§ 307. Applicability of title 17 of the Code of the Federated States of Micronesia.
In the exercise of the rule making authority under this chapter, the Secretary shall be subject to the provisions of title 17 of this code, as well as the provisions of this title.
Source: PL 9-138 § 15, modified.
The Secretary is directed to make long range plans for and formulate policy with respect to the orderly development and use of the navigable airspace, and the orderly development and location of landing areas, National airways, radar installation and all other aids and facilities for air navigation, as will best meet the needs of, and serve the interest of civil aeronautics.
Source: PL 9-138 § 16.
In exercising the powers and duties vested in him by this title, the Secretary may, subject to such regulations, supervision, and review as he may prescribe, delegate to any properly qualified private person, or to any employee or employees under the supervision of such person, any work, business, or function respecting (1) the examination, inspection, and testing necessary to the issuance of certification under this title, and (2) the issuance of such certificates in accordance with standards established by him. The Secretary may establish the maximum fees which such private persons may charge for their services and may rescind any delegation made by him pursuant to this subsection at any time and for any reason which he deems appropriate.
Source: PL 9-138 § 17.


I’ll leave the full summary of our activities to the December edition of our newsletter, the Citizen Media Law Brief, but thought it would be worthwhile to highlight some of our major projects in 2012.
Through our legal referral service for online journalism and publishing ventures, the Online Media Legal Network, we secured legal representation for a number of journalism entities seeking a Section 501(c)(3) tax exemption from the Internal Revenue Service. As a result of this work, the DMLP was one of the first organizations to become aware of a pattern of delays in IRS decisions on these applications, with some applicants waiting two years or more for a ruling. These delays pose a serious threat to non-profit newsrooms, as Section 501(c)(3) status is essential for these organizations to receive tax-deductible donations, and many foundations require a tax exemption in order to award supporting grants. The DMLP responded to this issue in April 2012 by publishing an interactive legal guide for applicants seeking tax-exempt status, to help them better understand the often convoluted and counterintuitive standards applied by the IRS. Since then, the logjam at the IRS has started to dislodge, with a few long-delayed applicants finally receiving recognition of their tax-exempt status.
In August, we launched our guide to covering the Republican and Democratic National Conventions, which included specific information regarding the intersection of First Amendment newsgathering rights with applicable laws and ordinances in Charlotte and Tampa; special rules applicable to events controlled by the U.S. Secret Service; and guidance in dealing with police, public officials, and event organizers. The conventions guide and related materials were complemented by live online chat sessions produced in partnership with Free Press in which Andy Sellars, our staff attorney, responded to journalists’ questions about the conventions.
On November 2, 2012, we launched a state-by-state legal resource for those wishing to use photography or videography to document the 2012 national elections, Documenting the Vote 2012. This guide covered laws in all 50 states limiting the ability to use cameras at or near polling places, as well as laws prohibiting disclosure of the content of a voter’s own ballot. This resource was widely used and cited during the elections, with over 115,000 unique page views between November 2 and November 7, more than 60 mentions in local and national media, and referrals on Twitter by a diverse range of popular users – including, believe it or not, MC Hammer. We were geekily proudest, however, that we were cited as a reference to help dispel urban myths about photographing one’s ballot on Snopes.com.
In Jenzabar, Inc. v. Long Bow Group, Inc., No. 2011-P-1533 (Mass. App. Ct. January 18, 2012), defendant-appellee Long Bow Group, a documentary film company, posted speech critical of plaintiff-appellant Jenzabar on its website, and used Jenzabar's name in metadata to identify that content for users and search engines. The DMLP argued in its amicus curiae brief that Jenzabar's invocation of trademark law to prohibit the use of its name in metadata was an effort to render Long Bow's protected speech inaccessible on the Internet and was therefore barred by the First Amendment and Article 16 of the Massachusetts Declaration of Rights.
We are pleased that the Massachusetts Appeals Court affirmed summary judgment in favor of Long Bow, but unfortunately the Court persisted in applying the traditional trademark likelihood of confusion test to Long Bow’s expressive uses of the Jenzabar mark. The likelihood of confusion test is ill-suited to expressive speech, as reflected by the fact that the Appeals Court had to twist the factors of the test beyond recognition to apply them here. Moreover, the fact-based nature of the analysis is not usually susceptible to summary disposition – meaning that constitutionally protected speech could be dragged through the extraordinary expense of discovery, expert witnesses and trial before the defendant’s First Amendment rights are vindicated. (For our deeper analysis, see here.)	The Supreme Judicial Court of Massachusetts has recently denied Jenzabar’s petition for further appellate review of this case -- another welcome victory for Long Bow, but we will likely need to pursue the deeper issues in another forum.
In Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 3:12-cv-00240-MEJ (N.D. Cal. January 27, 2012), the Digital Media Law Project joined the Public Citizen, the American Civil Liberties Union, and the Electronic Frontier Foundation in filing an amicus memorandum on the proper standards for discovery of the identities of anonymous online speakers in a trademark and defamation case. The plaintiff, the campaign committee for 2012 Republican presidential candidate Ron Paul, alleged that the Doe defendants were owners of a YouTube and Twitter account named "NHLiberty4Paul," and that under this pseudonym, Defendants uploaded a video on YouTube entitled "Jon Huntsman's Values" that attacked Huntsman and ended with the following text: "American Values and Liberty - Vote Ron Paul." The plaintiff claimed that the Does' use of Ron Paul's name in the video constituted false designation of origin in violation of the Lanham Act, 15 U.S.C. § 1125(a), false description and representation in violation of the Lanham Act, 15 U.S.C. § 1125(a), and common law defamation. Accordingly, the plaintiff sought expedited discovery as to the identity of the Does. After receipt of the amici's brief, the court denied the plaintiff's motion, finding that the Ron Paul campaign had failed to plead actionable claims. The plaintiff voluntarily dismissed the case without prejudice.
In Commonwealth v. Busa, No. 1101CR005277 (Boston Mun. Ct. May 21, 2012), the Digital Media Law Project prepared an amicus brief in a criminal prosecution in Boston Municipal Court in order to challenge the constitutionality of Massachusetts' anti-counterfeiting act, Mass. Gen. Laws c. 266, § 147. Section 147 criminalizes, inter alia, the unauthorized manufacture, use, display, or distribution of any item or service bearing a word, image, or other mark that has been used and registered by another to identify goods or services. However, unlike traditional trademark protection, Section 147 is not limited to uses in commerce or where there is a likelihood of confusion, and contains no exceptions for fair use or other uses protected by the First Amendment. Accordingly, the DMLP argued that Section 147 is overbroad, in violation of the First Amendment. Similarly, because Section 147 prohibits display or manufacture of fixed expression without any of the additional elements found in trademark law, the DMLP argued that the statute is preempted by federal copyright law under the Supremacy Clause. The Commonwealth of Massachusetts subsequently decided to drop the case, and the defendant's unopposed motion to dismiss was granted on June 20, 2012.
Although we are proud of the efforts that we have made over the past year, there is always more to do. In 2013, we plan to continue our efforts to bring sense to the intersection of trademark law and the First Amendment through amicus filings and other resources. We are also concerned by instances of police department discrimination against independent journalists with respect to credentialing and/or inclusion on press release lists; we will be investigating to see if this is part of a broader trend and, if so, what should be done about it. On the practical side, we remain committed to providing support to fledgling journalism ventures, and want to explore new ways to help these organizations tailor their business models to their journalistic goals (rather than vice versa, as so often turns out to be the case).
And all of this is on top of our core functions of maintaining and updating our Legal Guide for digital journalists, tracking legal threats against online expression in our Threats Database, placing qualifying journalism clients with pro bono or reduced fee legal assistance through the Online Media Legal Network, and our conference and speaking engagements.
and finally, to all of those who rely upon our project for legal information and assistance -- we appreciate your trust in us, and look forward to serving you in the future.
We wish you all a very happy holiday season, and will see you again in 2013!


text:
46-407a. Advisory committee on uniform state laws; duties; Kansas representatives to national conference of commissioners on uniform state laws; membership; compensation, expenses and allowances. (a) (1) There is hereby established an advisory committee to the Kansas commission on interstate cooperation. Such committee shall be composed of five members.
(2) Three of such members shall be members of the Kansas bar to be appointed by the commission with the advice of the president of the bar association of the state of Kansas and the incumbency of each such member of the committee shall extend until the first day of February of the odd-numbered year following appointment and thereafter until a successor is appointed.
(3) One member shall be the chairperson of the standing house committee on judiciary, if such chairperson is a member of the Kansas bar, or such chairperson may designate another member of the standing house committee on judiciary who is a member of the Kansas bar to serve as a member in lieu of such chairperson for such chairperson's then-current term as a legislator. If such chairperson is not a member of the Kansas bar and there is not another member of the standing house committee on judiciary who is a member of the Kansas bar, the speaker of the house of representatives may designate the revisor of statutes to serve as a member in lieu of a house member for the speaker's then-current term as a legislator. The revisor of statutes may designate an assistant revisor to serve in lieu of the revisor.
(4) One member shall be the chairperson of the standing senate committee on judiciary, if such chairperson is a member of the Kansas bar, or such chairperson may designate another member of the standing senate committee on judiciary who is a member of the Kansas bar to serve as a member in lieu of such chairperson for such chairperson's then-current term as a legislator. If such chairperson is not a member of the Kansas bar and there is not another member of the standing senate committee on judiciary who is a member of the Kansas bar, the president of the senate may designate the revisor of statutes to serve as a member in lieu of a senate member for the president's then-current term as a legislator. The revisor of statutes may designate an assistant revisor to serve in lieu of the revisor.
(b) The members of such committee shall be the official representatives or delegates of the state of Kansas to the national conference of commissioners on uniform state laws. Such committee shall account to and advise with the Kansas commission on interstate cooperation and it shall be its duty to investigate and consider the advisability or uniformity of the laws of the several states and to make recommendations on all subjects where uniformity may be desirable and practical. Such committee shall report to the Kansas commission on interstate cooperation from time to time on its activities and make such recommendations as it deems advisable for appropriate legislation.
(c) (1) Members of the committee shall be paid compensation and travel expenses and subsistence expenses or allowances for attendance at meetings of the committee as authorized by K.S.A. 75-3212, and amendments thereto.
(2) Any person who by reason of membership on such committee has been accredited by the national conference of commissioners on uniform state laws as a life member of that organization shall be an associate member of the committee and shall receive the same travel expenses and subsistence expenses for attendance at meetings as regular members of the committee, but shall receive no per diem compensation. Whenever any regular member of the committee shall be so accredited by the national conference of commissioners on uniform state laws, such member shall thereupon become an associate member and a vacancy shall exist in the regular membership of the committee. Such vacancy shall be filled by appointment by the commission with the advice of the president of the bar association of the state of Kansas.
(3) All amounts authorized under this section shall be paid by the Kansas commission on interstate cooperation.
History: L. 1947, ch. 293, § 1; L. 1968, ch. 208, § 9; L. 1974, ch. 218, § 8; L. 1975, ch. 274, § 1; L. 1979, ch. 165, §1; L. 1983, ch. 174, § 4; L. 2017, ch. 53, § 2; Apr. 27.

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