Thursday, April 11, 2013
Court Cannot Read More Into Statute Than Plain Language Dictates (In This Case Verification Requirements)
Florida Supreme Court Clarifies You Do Not Get Five Extra Days When Responding To A Proposal For Settlement
Applying the rationale of Concepcion to the facts set forth by the Fourth District in McKenzie, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of it being void as against public policy. Accordingly, we quash the Fourth District’s decision below. We decline to answer the certified question because it is moot in light of Concepcion. In other words, even if the Fourth District is correct that the class action waiver in this case is void under state public policy, this Court is without authority to invalidate the class action waiver on that basis because federal law and the authoritative decision of the United States Supreme Court in Concepcion preclude us from doing so.Justice Pariente wrote the opinion for the court. Justice Quince, Justice Canady, Justice Labarga, and Justice Perry concurred. Chief Justice Polston and Justice Lewis concurred in result only.
The Florida Supreme Court's opinion can be viewed HERE. The Fourth District's opinion, that is now quashed, can be viewed HERE.
Wednesday, April 10, 2013
The offer, entitled “Defendant’s Joint Proposal for Settlement,” also appears to have been adopted from a form without sufficient editing; it requires “Plaintiff’(s)” to “execute a stipulation,” and “Plaintiff(s)” to “execute a general release of “Defendant(s).”
[Appellant] seeks reversal of the trial court’s order striking its pleadings and dismissing the case as a sanction for discovery violations. The Bank asserts that the trial court abused its discretion by failing to make express factual findings demonstrating that such a severe sanction was warranted, as required by Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). We agree and reverse.
For the reasons discussed above, we reverse the trial court’s final judgment and remand this cause with directions that the trial court enter a revised final judgment for the amounts set forth in the appraisal award less:
(i) amounts previously paid;(ii) amounts allocated to exterior common elements excluded by the terms of the applicable insurance policies; and(iii) amounts awarded in excess of any amount agreed upon by the parties for roof repairs and water extraction for Buildings A and C if, and only if, the trial court concludes – after an evidentiary hearing – that the parties reached a binding pre-appraisal agreement stipulating to the amount owed.
To the extent the trial court refused to adjudicate Citizens’ claims that amounts awarded were duplicative or represent losses to property the unit owners – as opposed to River Manor – were obligated to insure, the judgment is affirmed.
Monday, March 18, 2013
Writing for the First Circuit in In re Bulger, Justice Souter's opinion provides a good discussion about recusal. You can view the opinion at THIS link. At issue was the defendant's petition for writ of mandamus seeking an order requiring the district court judge to recuse himself based upon allegations the judge had been invoked in the case (due to his role as an assistant US Attorney). Notably, the defendant was previously on the FBI's Ten Most Wanted list. After an analysis of what recusal is and isn't, and applying that analysis to the facts in this case, the opinion concluded:
In sum, despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim. The other mandamus conditions being satisfied, the petition is granted, and the case shall be reassigned to a judge whose curriculum vitae does not implicate the same level of institutional responsibility described here.
Wednesday, March 13, 2013
In Band v. Libby (2D11-4942), the Second District held (in addition to addressing other issues) that a claim for breach of fiduciary duty can be waived. The court stated:
We hold that a party may waive a claim based on the breach of a fiduciary duty. "Parties, by their own knowledge and conduct, can waive or be estopped to raise a wide array of constitutional, statutory, and common law rights . . . ." Ruggio v. Vining, 755 So. 2d 792, 795 (Fla. 2d DCA 2000). Indeed, "[a] party may waive any rights to which he or she is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished." Torres v. K-Site 500 Assocs., 632 So. 2d 110, 112 (Fla. 3d DCA 1994) (emphasis added). It follows that a claim based on a breach of fiduciary duty, like any other claim, may be waived.
Trial Court Erred In Refusing To Vacate Judgment When Borrower Cured Default Prior To Foreclosure Sale
We hold that the trial court, having vacated the foreclosure sale, abused its discretion in refusing to grant the related collateral relief requested by Wells Fargo, which refusal prevented the parties from concluding their settlement. See Toler, 78 So. 3d at 701 (“An order denying a motion for relief from judgment is reviewed for an abuse of discretion.”). The trial court clearly had jurisdiction to consider Wells Fargo’s Rule 1.540(b)(5) motion; and in light of the parties’ settlement --a result the law seeks to encourage -- the relief requested should have been granted. See Wells Fargo Bank, N.A. v. Lupica, 36 So. 3d 875 (Fla. 5th DCA 2010).In a footnote the court noted that they were not holding that a trial court was always required to vacate a judgment based upon the settlement of the parties and that there may be circumstances when other influences would support denying such a motion. However, there were no other influences in this case.