Thursday, April 30, 2009
The novel question we must address is whether the district court’s order is effectively unreviewable in light of the remand...Here, Appellants cannot obtain review in federal court. Section 1447(d) prevents this Court from reviewing the remand order itself...[therefore] we join the decisions of several of our sister circuits in finding no reason why the state appellate courts cannot review the propriety vel non of the district court’s order on appeal from a final judgment...We see no reason, on the facts before us, why Appellants cannot raise in the state appellate court all the merits issues they seek to present to us in this appeal. State courts 'possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law.'
The First DCA rejected Sinclair Fund and held "[w]e reject this interpretation of Enfinger, and certify conflict between Sinclair Fund and our decision in the present case."
Wednesday, April 29, 2009
In the absence of a special contract, a broker is entitled to a commission when that person is the procuring cause of a sale. Siegel v. Landquest, Inc., 761 So. 2d 415, 416-17 (Fla. 5th DCA 2000); First Fla. Realty & Auction Co. v. Peacock, 703 So. 2d 1199, 1200 (Fla. 1st DCA 1997). In order to be the procuring cause of the sale of property, the parties must have been brought together and the sale consummated as a result of continuous negotiations conducted by the broker. Sanson v. Dutcher, Higginbotham & Bass, Inc., 401 So. 2d 913, 915 (Fla. 4th DCA 1981). See also Rotemi Realty, Inc. v. Act Realty Co., 911 So. 2d 1181, 1189 (Fla. 2005) (To earn a commission a broker must initiate negotiations by performing some affirmative act to bring the buyer and seller together, and the broker must remain involved in the continuing negotiations between the seller and the buyer unless they intentionally exclude him from the negotiations.); Nat’l Airlines, Inc. v. Oscar E. Dooly Assocs., 160 So. 2d 53, 54-55 (Fla. 3d DCA 1964) (“To be the procuring cause the broker must show that he called the potential purchaser’s attention to the property and it was through his efforts the sale was consummated.”). Genuine issues of material fact remain as to whether Allenby brought thebuyer and seller together, initiated negotiations between them, and continued those negotiations—at least until Allenby was, as he claims, excluded. See Siegel, 761 So. 2d 415.
Decedent and Nivia Giblin were married in 1959. They had a daughter together. In 1981 they separated but never divorced. In 2000, decedent purchased a piece of residential property in Broward County. Title to the property was placed in the decedent’s name. The wife and daughter lived in the home, but decedent never did. Decedent died in 2001.***
The language of article X, section 4 is clear and unambiguous. Here, decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is homestead. Because decedent died leaving a spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes (2001). As such, the wife is entitled to a life estate in the homestead with a vested remainder to the descendants. § 732.401(1), Fla. Stat.
Under the circumstances of this case, we conclude that the trial court did not abuse its discretion by denying the defendants’ motion to set aside default where the trial court specifically found that Farrell’s testimony was "unworthy of belief," and the record supports this finding. Moreover, at best, the record, including Farrell’s testimony, indicates that the defendants were guilty of gross neglect, not excusable neglect, and therefore, the trial court did not abuse its discretion by denying the motion to set aside default. See Otero v. Gov’t Employees Ins. Co., 606 So. 2d 443, 444 (Fla. 2d DCA 1992) (holding that in allowing default to occur, "gross neglect cannot constitute excusable neglect"). Accordingly, we affirm the order under review.
A party seeking relief from a clerk’s default must demonstrate excusable neglect in failing to file a responsive pleading, a meritorious defense, and due diligence. Gibson Trust, Inc. v. Office of the Attorney Gen., 883 So. 2d 379, 382 (Fla. 4th DCA 2004). Florida courts have a liberal policy of vacating defaults in order to decide cases on their merits. Id. This court reviews an order denying a motion to vacate pursuant to an abuse of discretion standard. Id.
1. The motion to confirm the appraisal award be and the same is hereby granted.
2. Petitioner, FEDERATED NATIONAL INSURANCE COMPANY shall have 20
days [from] the date of this order to satisfy the appraisal award.
3. The Court shall continue to reserve jurisdiction to enforce the
terms of this order, to determine the issues related to Respondent’s claims to
entitlement to an award of reasonable attorneys fees pursuant to Fla. Stat.
§627.428, interest and court costs.
Tuesday, April 28, 2009
The plaintiff argued in the Eleventh Circuit argued that the district court erred by (1) not sua sponte granting plaintiff leave to amend its complaint; (2) not allowing plaintiff to argue there was a unilateral mistake when the agreement was signed because plaintiff believed it applied everywhere in the world; and (3) by finding the agreement unambiguous on its face.
A contract is ambiguous where it is susceptible to two different interpretations, each one of which is reasonably inferred from the terms of the contract. If the interpretation urged by one party is unreasonable in light of the contract’s plain language, the contract is not ambiguous, and the court may not use extrinsic evidence to vary the terms of the contract. In determining whether a contract is ambiguous, we must first look at the words on the face of the contract.
Sunday, April 26, 2009
True, Evans is a nonprecedential decision, see Fed. R. App. P. 32.1, and therefore did not bind the panel in McCoy. But nonprecedential decisions should be used only when the legal issue is clear enough that all reasonable judges will come out the same way. The panel in Evans must think that the result of the panel in McCoy is unreasonable. What’s more, there was a persuasive dissent in McCoy written, as it happens, by a judge of this circuit sitting by designation. McCoy, 2009 U.S. App. LEXIS 5380 at *25–*46 (Cudahy, J., dissenting). If there is a conflict in need of resolution, it is among judges of the ninth circuit rather than between the seventh and the ninth.
Saturday, April 25, 2009
WHEREAS, given the large volume of mortgage foreclosure actions filed in this Circuit, it has been determined that mandatory mediation of mortgage foreclosure actions involving homestead properties, prior to the matter being set for final hearing, will facilitate better communication between the parties, resulting in more effective case management and provide a more efficient use of limited judicial and clerk resources in a court system that is already overburdened.
Friday, April 24, 2009
1.) The district courts can review attachments to a complaint when ruling on a motion to dismiss; and
2.) The district court need not grant leave to amend if an amendment would be futile.
The authority for the investigative demand in this case is established by Section 631.156, Florida Statutes (2008), which provides that the Florida Department of Financial Services may conduct an investigation to determine the cause of an insurer’s insolvency. This statute gives the Department broad power to investigate potential violations of state and federal law and to discover the existence and location of any assets that may be recovered in the liquidation proceeding.
The decision is below:
•In re Matthew J. Whitehead, III, 399 B.R. 570 (Bankr. S.D. Fla. 2009)
Thursday, April 23, 2009
Although we agree with the district court’s rejection of quantum meruit damages, we do not agree with its ultimate approach. The court held it could not reevaluate the $900,000 in payments Miller made to Hudson because they were made pursuant to a valid contract. However, this ignores the fact that the parties’ contract affixed a total value to the restoration project: $5,200,000. In our view, there is only one fair and logical way to give effect to that agreement: to determine what percentage of the project’s value Hudson provided under the contract as of September 2, and multiply that percentage by the contract price of $5,200,000. This will tell us whether, considering the $2,698,000 Miller already remitted, Hudson has been overpaid or underpaid.
In sum, the district court must make a factual finding as to what percentage of the project’s value Hudson provided under the contract, (See Footnote 11) and multiply this percentage by the total contract price of $5,200,000. Then the court may determine whether, considering all payments Miller made to Hudson for the project, Miller underpaid Hudson (in which case Hudson is entitled to damages from Miller) or Miller overpaid Hudson (in which case Miller is entitled to damages from Hudson). Thus, we reverse the district court’s ruling as to the value of Hudson’s pre-hurricane work, and remand for findings consistent with this opinion.
Footnote 11: In making this determination, the court should assess to what extent Hudson completed the project as originally planned - see Footnote 2. Although Miller now complains that Hudson’s original plan was inefficient, this is the plan for which it agreed to pay $5,200,000 and we cannot save Miller from the bargain now.
Whether a debtor who elects not to claim a homestead exemption and indicates an intent to surrender the property is entitled to the additional exemptions for personal property under Fla. Stat. § 222.25(4).
Florida case law suggests that on a claim for lost profits or price-erosion damages, prejudgment interest is not warranted because the amount of damages is generally unknown. For example, in Jones v. Sterile Products Corp., 572 So. 2d 519, 520 (Fla. 5th DCA 1990), the court held that lost profit and price erosion damages resulting from a breach of a noncompete agreement were unliquidated and, thus, that prejudgment interest was not warranted.
Moreover, “[t]o date, cases recognizing a right to prejudgment interest have all involved the loss of a vested property right,” and anticipated business profits are not a vested property right. See Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So.2d 1130, 1134 (Fla. 4th DCA 2008).
Wednesday, April 22, 2009
Rule 2.330(f) requires a judge to enter a n order granting disqualification if the motion to disqualify is "legally sufficient." The motion is legally sufficient if it shows the party’s well-grounded fear that the party will not receive a fair trial. See Enter. Leasing Co. v. Jones, 789 So. 2d 964, 968 (Fla. 2001); Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983). It is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling. See Goines v. State, 708 So. 2d 656, 659 (Fla. 4th DCA 1998) (“[T]he facts underlying the well-grounded fear must be judged from the perspective of the moving party.”), disagreed with on other grounds by Thompson v. State, 949 So. 2d 1169 (Fla. 1st DCA 2007), quashed, 990 So. 2d 482 (Fla. 2008); Wargo v. Wargo, 669 So. 2d 1123, 1124 (Fla. 4th DCA 1996). Of course, the party seeking disqualification has the burden of showing that the party has a well-grounded fear of not receiving a fair trial. See Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992).
The letter that Sunshine’s counsel sent to Anchor’s counsel threatening to seek attorney’s fees does not meet the mandatory notice requirements of section 57.105(4). The letter sent to opposing counsel is not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with the court. Nathan v. Bates, 998 So. 2d 1178, 1179 (Fla. 3d DCA 2008) ("The statute . . . clearly provides for a motion, not a letter."). Filing the motion with the court after the proceedings concluded also does not comply with the statute, as Anchor did not then have the statutorily required twenty-one days in which to withdraw the objected to
claims. O’Daniel v. Bd. Of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2006) (striking attorney’s fees under section 57.105(4) where the defendant waited until the case was over to file its fee motion).
Saturday, April 18, 2009
After reviewing the record and reading the parties briefs, we see no reversible error. Burroughs’ claims in the instant case are virtually identical to her criticisms of Broadspire in Burroughs I. Burroughs cannot state a claim for breach of fiduciary duties where she was able to assert a claim for an appropriate remedy for the denial of benefits under ERISA § 502(a)(1)(B). See Varity Corp. v. Howe, 516 U.S. 489 (1996). We have held multiple times, under these circumstances, a breach of fiduciary duty claim cannot be asserted. See Ogden v. Blue Bell Creameries, U.S.A., Inc., 348 F.3d 1284 (11th Cir. 2003); Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084 (11th Cir. 1999).
Alternatively, under both claim and issue preclusion, our earlier decision in Burroughs I holding that Broadspire was neither arbitrary nor capricious precludes Burroughs from continuing to assert claims against Broadspire based on the same 2004 benefit decision. Accordingly, for the aforementioned reasons, we affirm the judgment of dismissal.
Friday, April 17, 2009
Critical to this case, each motor carrier must maintain a liability insurance policy in full force and effect and the policy “may not be canceled on less than 30 days’ written notice by the insurer to the [FDHSMV].” Fla. Stat. § 320.02(5)(e).
As the district court found, Florida Statutes section 320.02(5)(e) applies when an existing policy is cancelled, but not when a policy expires because of non-renewal by the insured. The distinction between these two terms is recognized by insurance treatises and Florida law. See 3-16 Holmes’ Appleman on Insurance 2d § 16.7 (2009) (“[Cancellation] is to be distinguished from the use of the term ‘termination’ . . . .”); 2 Couch on Insurance § 30:2 (3d ed. 2008) (“The right to cancel is distinct from a policy’s lapse, or expiration by its own terms.”); Safeco Ins. Co. v. Oehmig, 305 So. 2d 52, 54 (Fla. 1st DCA 1974) (construing a “notice of cancellation” required by Florida Statutes section 627.728, which expressly distinguishes between cancellations and nonrenewals). By the plain terms of the Florida statute, we find Progressive’s failure to notify the FDHSMV of the Policy’s expiration did not result in the continuation of insurance coverage beyond September 11, 2005. Accordingly, we affirm the district court’s order granting summary judgment to Progressive on the state law issue.
Thursday, April 16, 2009
A close examination of the definition of tangible personal property contained in section 192.001 compels the same result. In particular, that definition states that tangible personal property is “all goods, chattels, and other articles of value . . . capable of manual possession and whose chief value is intrinsic to the article itself.” § 192.001(11)(d). Although computer software’s value is intrinsic in and of itself, as the “essence of the property is the software itself, and not the tangible medium on which the software might be stored,” Gilreath, 751 So. 2d at 708, it is property incapable of manual possession. This is because, software, itself, is “not capable of being ‘seen, weighed, measured, felt or otherwise perceived by the senses.’” Id. (quoting Dallas Cent. Appraisal Dist. v. Tech Data Corp., 930 S.W.2d 119, 122 (Tex. App. 1996)). Rather, the tangible medium on which it is transported and transmitted is the means by which the property is manually possessed.
Therefore, we agree with the Fifth District’s decision in Gilreath and hold that “computer software” is intangible personal property. As such, we affirm the trial court’s decision that the Wireless Services Software is not taxable by Palm Beach County, as it is intangible personal property, which is property outside a county’s taxing authority.
Bradford made its offer of settlement by referring to section 768.79 and rule 1.442. Although the plain meaning of the statute and the rule of procedure clearly contemplate strict compliance, the statute and the rule implementing the statute apply only when there has been a rejection of a proposal for settlement and the case goes to trial resulting in a judgment. Depending upon which party is making the proposal for settlement, if the final judgment is either twenty-five percent less or twenty-five percent more than the proposal for settlement, only then are the sanctions of attorney’s fees and costs applicable. See § 768.79.
As noted in Wright v. Caruana, 640 So. 2d 197 (Fla. 3d DCA 1994), neither section 768.79 nor rule 1.442 prevents an offeree from actually accepting an untimely offer and avoiding trial. Rather, it me rely prevents the offer from later serving as a basis for an award of costs and attorney’s fees under the statute. Id. at 198-99; accord Hanzelik v. Grottoli & Hudon Inv. of Am., Inc., 687 So. 2d 1363, 1366 (Fla. 4th DCA 1997). In the instant case, there were exchanges of offers and counter offers and a final acceptance by Baratta. There is substantial, competent evidence to support the trial court’s determination that there was a meeting of the minds. An offer and acceptance took place and, therefore, the settlement should be enforced.
Tuesday, April 14, 2009
Arguing federal preemption under ERISA, the Union and the Plans moved to dismiss the complaint. One argument was that ERISA grants a specific remedy for the same retaliatory discharge and/or interference with a protected right that Merriken asserts. See 29 U.S.C. § 1140. The trial court denied the motion concluding that the stated causes of action were not preempted by federal law, as the state actions did not encroach on the relationships regulated by ERISA. The trial court reasoned that the relationship between the Union and the Plans and the plaintiff is one of employer-employee, and there are no allegations that could be interpreted that the termination was in order to avoid benefit payments. The trial court concluded that there will be no need for it to rule on any issues of federal law, based on the allegations in the complaint. This petition follows.
Federal preemption is an affirmative defense, which may be raised in a motion to dismiss. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 568 (Fla. 2005). In Boca Burger, the supreme court noted that Florida courts, “including this Court, have held that the issue of federal preemption is a question of subject matter jurisdiction.” Id. (emphasis supplied). Because prohibition lies to prevent a court from proceeding in a suit in which it has no subject-matter jurisdiction, we have jurisdiction. See Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 n.5 (Fla. 1992).
In this case, the conduct under the Florida Whistle-blower statute on which Merriken has sued is protected under 29 U.S.C. § 1140 (ERISA section 510), which expressly states: “It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter . . . .”
In opposition to this clear and substantial authority, Merriken argues that section 1140 does not apply, because he sued the Plans themselves and not a person, and section 1140 can be violated only by a “person.” A trust is a “person” under ERISA, and he has alleged that the Plans are trusts. A labor union is an “employee organization” and thus the Union is also a person within the meaning of the statute. Therefore, section 1140 applies. The cases Merriken cites in support of his position that the Plans cannot be sued are simply inapposite and do not involve an employee of the plan itself suing the employer-plan for wrongful discharge.
Because the whistleblower activities alleged in Merriken’s complaint are protected by section 1140, the matter is preempted by federal law. Ingersoll-Rand [Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990)]. The circuit court has no subject-matter jurisdiction to consider these actions.
Monday, April 13, 2009
*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.
Sunday, April 12, 2009
Wednesday, April 8, 2009
Appellant General Manuel Antonio Noriega appeals the decision of the United States District Court for the Southern District of Florida denying his petition for writ of habeas corpus. The district court determined that the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention” or Convention”), does not foreclose the extradition of prisoners of war and that the United States had sufficiently complied with its obligations under the Convention. We affirm and hold that § 5 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. § 2241 (2006), precludes Noriega from invoking the Geneva Convention as a source of rights in a habeas proceeding and therefore deny Noriega’s habeas petition. We also conclude that extradition would not violate the Convention.
Challenge to Contract Containing Arbitration Agreement Entitles Party to Expedited Evidentiary Hearing
Here, plaintiff demonstrated through her written response in opposition to the motion to compel and her arguments at the nonevidentiary hearing on the motion that she disputed the “making of” the arbitration agreement. The trial court implicitly acknowledged that there were issues in dispute regarding the making of the Agreement and “retain[ed] jurisdiction to reconsider the dismissal of th[e] case pending the development of sufficient grounds during the arbitration process.” The court, however, was required by statute to conduct an evidentiary hearing to resolve the disputed issues before sending the case to arbitration. We therefore reverse the trial court’s order compelling arbitration and remand for an evidentiary hearing. On remand, if, after holding an evidentiary hearing, the court decides to grant the defendant’s motion to compel arbitration, it should stay rather than dismiss the plaintiff’s case. See Liberty Commc’ns, Inc. v. MCI Telecommunications Corp., 733 So. 2d 571, 573 (Fla. 5th DCA 1999) (holding that when an order for arbitration is entered, the cause should be stayed rather than dismissed).
Dismissal Without Prejudice for Failure to Comply with Presuit Notice if Statute of Limitation Has Not Run
Next, the hospital contends that the nursing home failed to comply with section 768.28(6)(a), Florida Statutes (2007), by failing to present its claim in writing to the Department of Financial Services within three years after the claim arose. At the summary judgment hearing, counsel for the nursing home requested a n opportunity to cure the notice problem by providing notice to the Department of Insurance.
Compliance with the notice requirement of section 768.28 was a condition precedent to this lawsuit against the hospital. See Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23 (Fla. 1979); Lindberg v. Hosp. Corp. of Am., 545 So. 2d 1384, 1387 (Fla. 4th DCA 1989) (citing Commercial Carrier). The notice is a “temporary procedural bar to a lawsuit against the State or one of its subdivisions.” Widmer v. Caldwell, 714 So. 2d 1128, 1129 (Fla. 1st DCA 1998). In Lee v. S. Broward Hosp. Dist., 473 So. 2d 1322 (Fla. 4th DCA 1985), this court permitted the amendment of a complaint to allege compliance with section 768.28(6) where notice to governmental agencies was given subsequent to the filing of the lawsuit but within the statute of limitations period. Another appropriate response to a motion raising a plaintiff’s failure to comply with the statute is to dismiss the case without prejudice, where the applicable statute of limitations has not run at the time of dismissal and it is therefore possible to give the statutory notice prior to the case being barred by the statute of limitations. See Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986); Von Drasek v. City of St. Petersburg, 777 So. 2d 989, 991 (Fla. 2d DCA 2000).
Wednesday, April 1, 2009
“While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished.” Alvarez v. DeAguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981) (citation omitted); see also Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So. 2d 892, 895 (Fla. 3d DCA 1982) (“[T]hree attempts to amend the complaint are enough.”). “In addition to the desirability of allowing amendments so that cases may be concluded on their merits, there is an
equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” 395 So. 2d at 216 (citation omitted); see also Noble v. Martin Mem’l Hosp. Ass’n, Inc., 710 So. 2d 567, 568–569 (Fla. 4th DCA 1997) (“There comes a point in litigation where each party is entitled to some finality.”).
Here, the trial court properly exercised its discretion in denying the Hickmans’ motion, having determined that they had taken advantage of numerous opportunities to amend their pleadings and that the case had been pending for a long time. We affirm the trial court’s decision denying leave to amend.