Thursday, April 17, 2014
Wednesday, March 26, 2014
We have reviewed the trial court’s order. While indicating that the court considered the six Kozel factors, the order lacked specific findings as to each. We do not condone the bank’s failure to comply with discovery and court orders; we feel the trial court’s frustration. But, as the bank argues, the homeowners made numerous confusing and cumulative discovery requests while failing to file a responsive pleading for two years. There was no evidence that the violations were caused by the bank itself. The homeowners suffered no prejudice, and the bank’s violations did not cause any significant problem with judicial administration.
The law does not always provide a good roadmap for trial courts. In this area of sanctioning non-compliant parties, however, our supreme court has done just that. See Kozel, 629 So. 2d at 818. When the trial court fails to follow that roadmap, reversal is warranted. See Bank One, 873 So. 2d at 521–22.
Tuesday, March 18, 2014
In Badgley v. SunTrust Mortgage (5D13-2500), the Fifth District affirmed the trial court's sanction order and, sua sponte, ordered "order Badgley and her attorney to pay, in equal amounts, the reasonable attorneys' fees and costs incurred by Appellees in this appeal, pursuant to section 57.105(1), Florida Statutes." There were a number of issues raised on appeal and are generally described below:
In her first issue, she baldly asserts that dismissing a complaint prior to discovery violates due process of law. The law is to the contrary.
In her second and third issues, Badgley argues that the dismissal of her complaint with prejudice was error even though she had already amended the complaint once as amatter of right and her quiet title theory was legally unsupportable based on the alleged facts. She claimed her lenders created a cloud on her title by refusing to respond to herabsurd demand of them to "prove" that she owed them money. Not only is there no legalbasis to support such a claim, the attachments to the complaint clearly demonstrate, as Badgley later admitted, that she 'took a mortgage and got the money.'
In her fourth issue, Badgley claims Appellees' fee motion below was untimely filedafter the dismissal judgment even though Appellees' motion for sanctions was timely filed before the judgment awarding fees.
Finally, Badgley disputes the sanction award even though similar complaints by plaintiffs represented by her attorney have been dismissed and have been the basis for sanctions.
In a footnote to the discussion of the second and third issue, the court described the claim that the lender created a cloud on title as follows: "Badgley sent Appellees a written demand to 'validate that an actual debt exists' by producing twenty-three separate categories of documents. The demand stated that if Appellees failed to produce the information requested in their next correspondence, they would 'be accepting my offer to provide pen pal services at $100,000.00 per correspondence.' It further notified Appellees that by 'failure to validate the alleged debt,"as demanded, they would tacitly agree to waive any and all claims against Badgley, would release her from any encumbrances clouding title to her property, and would be subject to a quiet title action.'" (Emphasis is mine).
Thursday, March 6, 2014
Indeed, in many respects, Applicant’s life in the United States parallels my own. He and I were brought to this great nation as young children by our hardworking immigrant parents. We both learned to read, write, and speak the English language within a short period of time. We excelled scholastically and graduated from college and law school—Applicant from Florida State University and I from the University of Florida. Both of us were driven by the opportunities this great nation offered to realize the American dream. Sadly, however, here the similarities end and the perceptions of our accomplishments begin. When I arrived in the United States from Cuba in 1963, soon after the Cuban Missile Crisis—the height of the Cold War—my parents and I were perceived as defectors from a tyrannical communist regime. Thus, we were received with open arms, our arrival celebrated, and my path to citizenship and the legal profession unimpeded by public policy decisions. Applicant, however, who is perceived to be a defector from poverty, is viewed negatively because his family sought an opportunity for economic prosperity. It is this distinction of perception, a distinction that I cannot justify regarding admission to The Florida Bar, that is at the root of Applicant’s situation. Applicant is so near to realizing his goals yet so agonizingly far because, regrettably, unlike the California Legislature, the Florida Legislature has not exercised its considerable authority on this important question. Thus, only reluctantly do I concur with the majority decision.
Wednesday, February 26, 2014
In Polselli v. Wicker, Smith, O’Hara & Ford, P.A. (4D13-4180), the Fourth District granted a petition for writ of certiorari and quashed the trial court’s order compelling the deposition of the petitioners. The majority opinion stated that "Respondent noticed the petitioners to appear for deposition in their individual capacity. It is well-settled that a defendant must be deposed in the county of his or her work or residence unless the defendant has sought affirmative relief or extraordinary circumstances exist.” The court stated that “Petitioners are not seeking affirmative relief and respondents have failed to demonstrate that extraordinary circumstances exist, which would require petitioners’ appearance in Florida for deposition.” Therefore, the order compelling the deposition to occur in Broward County was quashed.
Judge Warner filed a dissenting opinion, dissenting on two different grounds. Her dissent first stated that "The trial court originally entered an order in August 2013, requiring the petitioners to appear for their depositions in Broward County. Rather than seek review of that order, petitioners failed to appear for the scheduled depositions, prompting a motion to compel and the order now before this court. Their failure to seek timely review of the August 2013 order resulted in a waiver of their right to contest their required appearance in Florida.” Presumably in response to this portion of the dissent, and regarding the motion to dismiss, the majority opinion included a footnote stating: “We deny respondent’s motion to dismiss as the previous directive that the petitioners appear “as scheduled” was issued within an order that permitted their attorneys to withdraw.”
Judge Warner also dissented on the merits. The dissent states "Alternatively, I would deny the petition because petitioners have failed to demonstrate that they are not corporate representatives who can be deposed at the corporate place of business. CVS Caremark Corp. v. Latour, 109 So. 3d 1232 (Fla. 1st DCA 2013). Based on the foregoing, I cannot conclude that the trial court departed from the essential requirements of law.”
Fourth District On The Retroactive Application of Section 768.0755 (Conflict Certified), Jury Interviews, & Non-Delegable Duty of Care
The Florida Supreme Court has set a two-prong test for determining whether a statute applies retroactively: “‘First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.’” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 195 (Fla. 2011) (quoting Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 877 (Fla. 2010)).
Applying these principles to the instant case, we must conclude that the trial court abused its discretion by denying the motion to interview the jurors. “Although generally post-verdict juror interviews are disfavored, where there is adequate proof that a juror may have failed to disclose material information on voir dire, a party is entitled to conduct an interview of the juror.” Hillsboro Mgmt., LLC v. Pagono, 112 So. 3d 620, 624 (Fla. 4th DCA 2013).
The concealment prong is met when the juror is “squarely asked for” the information and the juror fails to speak the truth…. The concealment prong may be met if the juror fails to respond to questions from either the court or the parties. … The nondisclosure need not be intentional to constitute concealment. Here, the concealment prong was met because the court unambiguously asked the challenged jurors whether they or their families were involved in or had been involved in any litigation apart from divorces, and all four categorically answered that they had not.Finally, the third prong addresses whether the cause of the failure to elicit the information was due to the fault of the complaining party. If a juror mentions involvement in litigation and the complaining party does not ask follow-up questions, the party cannot then obtain a new trial because of undisclosed information relating to the litigation. … However, if the juror unambiguously denies involvement in prior litigation, counsel need not ask follow-up questions. Here, the jurors categorically answered that they had not been involved in prior litigation, in response to a clear question posed by the court. The parties were entitled to rely on the sacrosanct underpinnings of voir dire. The jurors’ answers and nondisclosures were not due to the fault of Pembroke Lakes or Millard.
Section 768.0710 imposes a non-delegable duty of care on business owners to maintain their premises in a reasonably safe condition for invitees ….The premises owner cannot avoid liability for the breach of its statutory duty by contracting the maintenance and cleaning function at the [premises] to others. …. When an owner owes a non-delegable duty of care to a plaintiff who obtains a verdict assigning negligence to the owner and a party contracted by the owner, the owner is jointly and severally liable for the negligence attributed to the contracted party. …. Pembroke Lakes raises numerous arguments in opposition to imposing liability against it for the negligence attributed to Millard. We reject each argument
Pembroke Lakes’ argument that a finding of agency is required to impose liability against a premises owner for a breach of a non-delegable duty is incorrect. Pembroke Lakes, like many parties and some courts, erroneously conflates the concepts of non-delegable duty and vicarious liability. … Vicarious liability is a form of indirect liability in which a party, who may have not been negligent, can be held liable for the acts of another party. … In contrast, a breach of a non-delegable duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition.
Monday, February 24, 2014
While we agree with Rehearing Counsel that Albelo failed to satisfy the requirements of the safe harbor provision, we respectfully disagree with Rehearing Counsel that the argument made to us was non-frivolous. The twenty-one-day safe harbor provision does not apply to court-initiated sanctions.The now vacated original opinion can be viewed HERE.
Friday, January 10, 2014
Thursday, January 2, 2014
In Mobley v. Florida (3D13-1566), the Third District Court of Appeal released a split opinion today, granting a petition for writ of prohibition. The majority opinion was written by Judge Wells who was joined by Chief Judge Shepherd. The dissent was written by Judge Salter. The end result is the trial court’s order denying immunity to a man that shot two people is quashed and he will not be tried. The 23 page opinion (including the dissent) is worth reading if the stand your ground law is of interest to you. It also presents a situation where the stand your ground law is actually applied—which seems relevant given the frequency of debate about the law.