Wednesday, February 23, 2011

Summary Judgment Determining Deficiency Judgment Amount Reversed

In Southern Developers & Earthmoving, Inc. v. Caterpillar Financial Services Corporation [CAT] (2D09-6011 & 2D10-5669), the Second District reversed a summary final judgment "because CAT failed to prove the amount of the deficiency judgment to which it was entitled, summary judgment was improperly granted in its favor."

After CAT sold the foreclosed personal property, CAT "sought a deficiency judgment from Southern. In its answer, Southern specifically denied that the sale of the repossessed equipment had been done in a commercially reasonable manner, and it also raised this claim as an affirmative defense."
CAT subsequently filed a motion for summary judgment, in which it again asserted that it had sold the repossessed equipment in a commercially reasonable manner. In support of its motion, CAT filed the affidavit of a "Special Accounts Representative," who alleged that proper notice was given to Southern and Gill of both of the intended private sales and the subsequent Internet auction. The affidavit also authenticated the various sale notices that were sent to both Southern and Gill and alleged again that the sales were all commercially reasonable. However, neither the affidavit nor the motion provided any details of the sales transactions themselves. CAT did not file any of the contracts or purchase orders relating to the sales, and it submitted nothing to establish what amount it obtained for each piece of repossessed equipment. Further, neither CAT's motion nor its affidavit included any facts concerning the general practices and methodology of selling used equipment in the industrial earthmoving equipment industry.
The court discussed the legal issues as follows:
Under Article 9 of the Uniform Commercial Code, as codified in section 679.609(1), Florida Statutes (2006), a secured party, such as CAT, may take possession of collateral after a default by the debtor. The secured party then "may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing." § 679.610(1). However, if the secured party wishes to preserve its right to seek a deficiency judgment, the secured party is not at liberty to dispose of the repossessed collateral in any manner it wants. Instead, "[e]very aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable." § 679.610(2). This rule is in place " 'to protect the debtor, because [it] help[s] prevent the creditor from acquiring the collateral at less than its true value or unfairly understating its value so as to obtain an excessive deficiency judgment.' "....
If a secured party elects to repossess and resell its collateral, the debtor is liable for any deficiency remaining after the sale as a matter of law....However, the amount of the deficiency judgment to which the secured party is entitled is a matter of fact, not law. To establish entitlement to a deficiency judgment in a certain amount, the secured party must show that its disposition of the collateral was commercially reasonable but nevertheless resulted in the recovery of an amount less than the amount of the secured debt....Accordingly, if the debtor places the commercial reasonableness of the disposition of collateral "in issue," the secured party has the burden to establish that every aspect of that disposition was commercially reasonable....Alternatively, the secured party may concede that its disposition of the collateral was commercially unreasonable, introduce evidence to prove the fair market value of the collateral at the time of repossession, and allow the debtor an additional credit for the difference between the fair market value and the amount obtained by the secured party at the commercially unreasonable sale.
In this case, the court concluded that CAT conceded that the sale was not commercially reasonably at the summary judgment hearing. However, it did not give Southern notice that it would be making this concession nor did it establish the sale price was equal to the fair market value. Therefore, the judgment was reversed. Additionally, the trial court's order denying Southern leave to amend its answer was reversed. Finally, as the underlying judgment was reversed, the orer awarding attorneys fees was reversed.

Friday, February 18, 2011

Case Can Be Procedurally Ready For Trial Years Before It Is Actually Ready For Trial

In Parkinson v. Kia Motors Corp. (5D10-3716), the Fifth District denied a petition for writ of mandamus that was seeking to force a circuit court judge to move forward with a trial. The court discussed the difference between a case being procedurally ready for trial pursuant to Rule 1.440, Florida Rules of Civil Procedure, and a case actually being ready for trial. When a case is procedurally ready for trial, the trial court must set it for trial when a party properly provides notice that the case is at issue. However, it is within the trial Court's discretion to determine when the case will actually be ready and, therefore, to determine the date it should be set. In this case:
Here, the trial court has not refused to set a trial date; rather, it offered to set a date in 2012, based on its conclusion that the case was complex and that many difficult and novel issues required resolution before a trial of such length could go forward. Although a delay approaching eighteen months to obtain a two-week civil trial in a circuit court in Central Florida is shocking, we have to recognize that under the new regime of ever-decreasing resources, this may be – or may become – the norm. A 2012 trial date may be unacceptable to Petitioner, but we are not in a position, at this stage, to micro-manage the scheduling of this trial. The timing of the trial is a matter left to the sound discretion of the trial court. We do not know what other matters are competing for the trial judge's attention and how much support he has. Accordingly, we deny the petition for writ of mandamus, but admonish the trial court that it is obliged to schedule a case for trial that is at issue and properly noticed, notwithstanding pending motions for summary judgment.

Failure To Provide Transcript To Appellate Court Can Be Costly Mistake

In SunCruz Cainos, LLC v. Stout (5D09-987), the Fifth District affirmed the trial Court's refusal to give a jury instruction. The decision was a 2-1 split with no majority opinion. In a concurring opinion, Judge Cohen discussed the fact that a transcript was attached as an appendix to the initial brief but was not part of the record. He stated:
One might think that in a case where a verdict in excess of $550,000 was rendered, Appellant would provide a complete trial transcript to permit a full review. Instead, only excerpts were prepared until Appellant filed a transcript as an appendix to its initial brief. Because the transcript was not part of the record on appeal, it cannot be considered...
Judge Cohen continued:
To prevail on appeal based upon the denial of a proposed jury instruction, the proponent of the instruction must establish that "the requested jury instruction contained an accurate statement of the law, that the facts of the case support the giving of the instruction, and that the instruction was necessary for the jury to properly resolve the issues in the case."...
However, since a transcript was not provided, Judge Cohen stated that "Given the state of the record, I agree that Appellant cannot establish reversible error and that affirmance is required."
Judge Torpy filed a dissenting opinion that stated:
I would reverse because the trial court failed to adequately instruct the jury on the defense theory. In this slip and fall case, Appellant claimed that Appellee was an “undiscovered trespasser,” as defined by statute – a status that affects Appellant's duty. Although the trial court acknowledged a fact dispute on this issue, it denied a proposed special instruction that would have given the jury the legal framework to resolve this issue.

Thursday, February 17, 2011

Florida Supreme Court Clarifies What Court Has Appellate Jurisdiction After Venue Is Transferred

In Hernandez v. Florida (SC09-2225), the Florida Supreme Court answered the question as to what appellate court has jurisdiction after venue has been transferred in a case to a court within the jurisdiction of a different appellate court.  The Court concluded:
We hold that once an order transferring venue has been entered by the transferor court and the court file has been received by the clerk of the transferee court, appellate jurisdiction becomes vested in the district court with jurisdiction over the transferee court for all subsequent matters in the case.  This rule applies both to an initial transfer of venue and to any subsequent transfer back to the court of original jurisdiction.  Accordingly, we approve the decision of the Third District in Hernandez and disapprove the decisions of the Fourth and Fifth Districts in Cole and Stanek-Cousins to the extent that they are inconsistent with this opinion.

Injunction Allowing Player To Play In State Basketball Championships Reversed

In Florida High School Athletic Association, Inc. v. Delancy (3D11-390), the Third District vacated an order and dissolved the temporary injunction. The trial court entered an "order temporarily enjoining FHSAA from disqualifying a high school basketball player and his team from participation in the end-of-season basketball state championship series."  Because the "order and the record contain no findings sufficient to sustain such an injunction" the Third District stated "we vacate the order and dissolve the temporary injunction."

The court stated:
In Florida, high school basketball and other athletics are assigned by statute to FHSAA, a non-profit corporation, for overall regulation and enforcement.  The pertinent statutes and the FHSAA’s by-laws are plainly calculated to allow member schools (public and private) to resolve the kinds of issues presented here, with judicial intervention only in exceptional circumstances that have not been demonstrated here.  See Fla. High School Activities Ass’n. v. Bradshaw, 369 So. 2d 398 (Fla. 2d DCA 1979); Fla. High School Activities Ass’n. v. Melbourne Central Catholic High School, 867 So. 2d 1281 (Fla. 5th DCA 2004); Fla. High School Activities Ass’n. v. Benitez, 748 So. 2d 358 (Fla. 5th DCA 1999); Fla. High School Activities Ass’n. v. Adderly, 574 So. 2d 158 (Fla. 4th DCA 1990) (each reversing similar injunctions for similar reasons).
Reversed; temporary injunction dissolved.  This decision shall take effect immediately, and the mandate shall be released simultaneously with this opinion without regard to any motion for rehearing or rehearing en banc. 

Third District Quashes Circuit Court Appellate Order For Failing To Provide Reasons For Decision

In City of Sunny Isles Beach v. Publix Supermarkets, Inc. (3D10-857), the Third District quashed an order entered by the circuit court sitting in its appellate capacity because the trial court did not provide the basis for its decision.  The court stated:
We grant  the petition as an appellate court cannot grant certiorari, thus quashing, an administrative decision, without providing reasons for so doing.  Miami-Dade County v. Torbert, 39 So. 3d 482 (Fla. 3d DCA 2010); State Dep’t of Highway Safety & Motor Vehicles v. Trauth, 937 So. 2d 758 (Fla. 3d DCA 2006). 
Accordingly, we grant the petition, quash the per curiam reversal issued below, and remand for the Circuit Court  to issue a written opinion stating its reasons for granting certiorari.

Party Not Required To Produce Surveillance Video Until Given Opportunity To Depose Subject Of Video

In State Farm Fire & Casualty Company v. H Rehab, Inc. (3D10-3234), the Third District granted State Farm's petition for certiorari and quashed an order entered by the trial court requiring the production of surveillance video.  The court stated:
This Court ordered the  respondent to file a response to the petition and address the case of Dodson v. Persell, 390 So. 2d 704 (Fla. 1980).  The respondent did not do so.  In Dodson, the Florida Supreme Court held that a party is not required to produce surveillance video unless the party is going to introduce the video as evidence, and if so, not until the surveilling party has had the opportunity to depose the subject of the video.  Id.  at 708.
Here, the circuit court did not permit State Farm the opportunity to depose the plaintiff and insured, the subjects of the video, prior to the production of the video.  This is contrary to the principles outlined in Dodson.   

Monday, February 14, 2011

Three Offer of Judgment Questions Certified To Florida Supreme Court

In Auto-Owners Insurance Co. v. Southeast Floating (09-15846), the Eleventh Circuit certified three questions relating to offers of judgment to the Florida Supreme Court. The first question is below:
DOES FLA. STAT. § 768.79 ALLOW FOR VALID OFFERS OF JUDGMENT IN A SEPARATE SECOND TRIAL; AND, IF SO, MAY OFFERS BE DEEMED VALID IN INSTANCES WHERE AN APPELLATE COURT REINSTATES THE JUDGMENT OF THE FIRST TRIAL?
Question two is phrased as follows:
DOES THE CONDITIONING OF AN OFFER OF JUDGMENT ON THE RESOLUTION AND DISMISSAL WITH PREJUDICE OF THE OFFEREE'S CLAIMS IN THE ACTION AGAINST A THIRD-PARTY RENDER THE OFFER OF JUDGMENT A JOINT PROPOSAL, AS THAT TERM IS USED IN FLORIDA RULE OF CIVIL PROCEDURE 1.442(c)(3)?
The third question is below:
DOES FLA. STAT. § 768.79 APPLY TO CASES THAT ARE GOVERNED BY THE SUBSTANTIVE LAW OF ANOTHER JURISDICTION; AND, IF SO, IS THIS STATUTE APPLICABLE EVEN TO CONTROVERSIES IN WHICH THE PARTIES HAVE CONTRACTUALLY AGREED TO BE BOUND BY THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION?

Wednesday, February 9, 2011

Insurance Appraisal Not Appropriate If Insured Fails To Comply With Post Loss Obligations

In Citizens Property Insurance Corp. v. Mango Hill Condominium Association 12, Inc. (3D10-2014), the Third District again reversed a trial court's order compelling appraisal so that the trial court could first determine whether the insured had complied with its post loss obligations. The court stated:
In October of 2005, Mango Hill made a claim to Citizens to recover for damages sustained to its condominium buildings during Hurricane Wilma. Citizens investigated the claim and issued a number of checks to Mango Hill for repairs after determining that the damages claimed were covered under its policy. Mango Hill subsequently retained a public adjuster and demanded additional funds for repairs. Unsatisfied with Citizens' response, Mango Hill demanded appraisal, supporting that demand with a sworn proof of loss, an “estimate and contents report,” and a report from its engineering firm regarding the damages. The current president of the condominium association (who was not president when the losses were incurred) also submitted to an examination under oath. Thereafter, Citizens made requests for additional documents and information regarding this new claim and refused to proceed to appraisal until such information was provided.
The trial court entered an order compelling appraisal. The Third District reversed concluding that "until the policy's post-loss conditions were met, there was no disagreement as to the amount of loss to be appraised."