Justice Souter Retiring

As speculated earlier this month on Above the Law (here), Justice Souter is retiring.  It is discussed by the New York Yimes here and CNN here and here.

Federal Court Order Not Reviewable by Eleventh Circuit When Case Subsequently Remanded

In W.R. Huff Asset Management Co., LLC v. Kohlberg Kravis Roberts & Co. (07-13114) the Eleventh Circuit held that (1) remand orders are not reviewable; (2) an order substituting a party, which divested the district court of diversity jurisdiction, is not reviewable; and (3) should a state appellate court rule that the substitution was improper the case will remain in state court and cannot be removed a second time.

The procedural history of the case is interesting and extensive. The case was filed in Alabama state court, removed to the Bankruptcy Court for the Northern District of Alabama, remanded to the Alabama state court, and removed to the Northern District of Alabama.

The federal district court judge denied plaintiff's motion to file its fourth amended complaint and granted defendants motion to dismiss with prejudice. The plaintiff appealed the dismissal and a prior panel of the Eleventh Circuit reversed. The prior decision, W.R. Huff Asset Management Co. v. Kohlberg, Kravis, Roberts, 209 Fed. App’x. 931 (11th Cir. 2006), can be found here. The eleventh circuit reversed on the basis for the dismissal, however, specifically indicated there may be other valid reasons to dismiss.

On remand from the Eleventh Circuit, the district court granted leave to amend and to file the fourth amended complaint. The amended complaint added a party and defeated diversity and, therefore, the district court remanded the case back to state court.

Back for a second time at the Eleventh Circuit, the Eleventh Circuit held it was without jurisdiction to review the district court's order. Essentially, the court held the remand order is not reviewable and the order granting leave to amend is a non-final order and, therefore, also not reviewable. The court joined the other circuits that have held there is nothing to prevent the state appellate court from reviewing the federal district court's order [in this case allowing the amendment]. Further, if the state appellate court were to reverse the case cannot be removed back to federal court. The court stated:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. 28 U.S.C. § 1447(d)...Notwithstanding the force of the § 1447(d) bar, the case law has staked out limited exceptions. Thus, we may review orders 'that lead to, but are separate from, orders of remand and have a conclusive effect upon the ensuing state court action'...Section 1291 of the Judicial code generally vests courts of appeals with jurisdiction over appeals from ‘final decisions’ of the district courts.” Cunningham v. Hamilton County, 527 U.S. 199, 203 119 S. Ct. 1915, 1919, 144 L. Ed. 2d 184 (1999). The general rule is that a district court order is considered final and appealable only if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Catlin v. United States, 324 U.S. 229, 65 S. Ct. 631 (1945). Obviously, the instant district court order does not end the litigation on the merits. However, the Supreme Court has “interpreted the term ‘final decision’ in § 1291 to permit jurisdiction over appeals from a small category of orders that do not terminate the litigation. That small category includes only decisions [1] that are conclusive, [2] that resolve important questions separate from the merits, and [3] that are effectively unreviewable on appeal from the final judgment in the underlying action.”...Our analysis leads to the conclusion that the district court’s order is effectively reviewable on appeal from a final judgment in state court. Accordingly, the district court’s order does not satisfy the third prong of the collateral order doctrine and we have no jurisdiction to review it...

***

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.'

***

Appellants expressed concern over a possible ping-pong of the case between federal and state court. If the state court reverses the substitution order, Appellants claim they will again remove the action to federal court under 15 U.S.C. § 77p(c). If the federal court persists in permitting substitution, the case will again be remanded to state court for lack of subject matter jurisdiction. Appellants assert that such a vicious circle of litigation makes the substitution order effectively unreviewable. We disagree...Appellants have received an opportunity to litigate in a federal forum. The policy of Congress is that Appellants now utilize the “equally competent” state courts to resolve the claims against them. Id. If the state courts determine that substitution was improper, Appellants may ask the state court to dismiss the action under SLUSA.

First DCA Certified Conflict On Venue and Joint Residency Rule

In Heartland Organics, Inc. v. MC Developments, LLC (1D08-5029) the First DCA reversed the decision of the circuit court transferring venue to Miami-Dade county and certified conflict with Sinclair Fund, Inc. v. Burton, 623 So. 2d 587 (Fla. 4th DCA 1993) to the Florida Supreme Court.

The trial court transferred the action based upon the joint residency rule developed in the Florida Supreme Court's opinion in Enfinger v. Baxley , 96 So. 2d 538 (Fla. 1957). "In Enfinger, the Florida Supreme Court set out the joint residency rule, which requires that when a natural person is sued along with a corporate defendant, and there is a county in which both the individual and corporate entity reside, venue is proper only in the county of joint residency. 96 So. 2d at 540-41."

The Fourth DCA held in Sinclair Fund, Inc. v. Burton, 623 So. 2d 587 (Fla. 4th DCA 1993) "that in a contract action for payment of money, venue was not proper where payment was to be made, but was only proper in the county in which the individual and corporate defendant jointly resided."

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."

Section 626.903, Florida Statutes Only Prohibits Action By Unauthorized Insurer - Not Insured

In Advantage General Insurance Co., Ltd. v. KILN/QBE International (4D08-1944), the Fourth DCA reversed the circuit court's order dismissing the action.

Advantage sold insurance to Sunshine and bought reinsurance from KILN/QBE. KILN/QBE argued that section 626.903, Florida Statutes, prohibits suits by unauthorized insurers and, therefore, prohibits Advantage from bringing the lawsuit. The circuit court agreed and held the plaintiff could not bring a suit in Florida because it lacked a certificate to sell insurance in Florida.

The Fourth DCA reversed because in the action brought by Advantage, Advantage was the insured. The statute was created to protect the insured, in this case Advantage, and not the insurer.

The court concluded that while Advantage could not have brought an action against Sunshine, its insured, it could maintain an action as the insured of KILN/QBE.

Fourth DCA Reverses Summary Judgment Relating to Yacht Broker's Commission

In Allenby & Assoc., Inc. v. Crown St. Vincent, Ltd (4D08-1737), the Fourth DCA reversed the circuit court's order determining the broker was not entitled to a commission for the sale of a yacht. Finding material issues of facts existed, the Court reversed and stated:

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.

Ruling on Oral Summary Judgment Motion Violates Due Process

Reviewing a decision of the circuit court sitting in its appellate capacity, the Third DCA in Casa Investment Co., Inc. v. Nestor (3D08-2310) held an oral motion for summary judgment violates due process and the rules of civil procedure. A motion for summary judgment cannot be heard until twenty days after it is filed and, therefore, cannot be an oral motion.

Decedent's Wife Entitled to Life Estate with Homestead Status

In Bayview Loan Servicing, LLC v. Giblin (4D08-1117) the Fourth DCA affirmed the circuit court's order concluding that the decedents child and former wife were protected by Florida's homestead laws. The Fourth DCA stated:

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.

Default Affirmed: Gross Neglect Cannot Constitute Excusable Neglect

In addition to the Fourth DCA's opinion today which is discussed here, the Third DCA issued an opinion reviewing a default order. In Brivis Enterprises, Inc. v. Teresita Von Plinski (3D08-1299) the Third DCA held that the defendant had not satisfied its burden to vacate the default and stated:

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.

Default Reversed - Reasonable Misunderstaning Satisfies Excusable Neglect

In Taylor v. Vitetta (4D07-4769), the Fourth DCA reversed the trial court's order because the defendant had satisfied its burden to set aside a default.

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.

Concluding that inaction due to reasonable misunderstanding satisfies excusable neglect, the Fourth DCA ultimately concluded all three prongs had been satisfied. Therefore, the default was reversed.

Appeal Dismissed for Lack of Jurisdiction

In Federated National Insurance Co. v. Palenzuela (3D08-1472) the Third DCA dismissed the appeal for lack of jurisdiction because the order appealed was not "an adjudication on the merits which effectuates a termination of the cause as between the parties directly affected." The insurer appealed an order confirming an appraisal award which stated:

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.

The circuit court reserved jurisdiction and did not include the words of finality, therefore, it was not a final order. The Third DCA also rejected the insurer's argument that the recent amendment to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) entitled the insurer to an interlocutory review. The amendment is only applicable to orders determining entitlement to appraisal and not for orders dealing with the actual appraisal.

Dismissal Reversed Because Contractual Language Not Clearly Unambiguous

In Novoneuron, Inc. v. Addiction Research Institute, Inc. (08-12028), released today by the Eleventh Circuit,  the Eleventh Circuit reversed a decision from the Southern District of Florida. The district court dismissed an action with prejudice that related to a patent disputed settled in a prior action.  The prior dispute resulted in a settlement that precluded the defendant from using the plaintiff's patent rights a patent registered in the United States. The plaintiff sought to enforce the settlement agreement and argued it precluded defendant from using the patent rights anywhere in the world. Concluding the settlement agreement only applied to the United States, the district court dismissed with prejudice.

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.  

As to the first two issues, the district courts do not have an obligation to sua sponte allow a party to amend a complaint when a plaintiff that is represented by counsel does not seek leave to amend.  Therefore, there was no error committed. 

While the court did not error in not granting leave to amend on its own accord, the Eleventh Circuit held the district court did error in finding the agreement ambiguous. Ambiguous is defined by the Eleventh Circuit as:

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.

Construing the issue in the light most favorable to the plaintiff, the Eleventh Circuit held the following contractual language could not be found clearly unambiguous on the face of the complaint: “all right, title, and interest in the patent and patent application known as U.S. Patent Number 5,591,738 (‘Method of Treating Chemical Dependency Using Betacarboline Alkaloids Derivatives and Salts Thereof’) and U.S. Patent Application Serial Number 08/280,187, including any claimed interest in these intellectual properties.”  Therefore, the decision was reversed.

Online Motion Calendar Scheduling in Broward County

Chief Judge Tobin announced this week that effective April 6, 2009 motion calendar hearings in Broward County (17th Judicial Circuit) may be set via a new web based scheduling system.  The announcement can be found here.  If the Florida Bar has an email address registered for you, you can create an account with your Florida Bar Number here.

The court is also pilot testing e-filing which is discussed here and the administrative order is here. The pilot test is currently limited to probate matters.

Judicial Decisions Should Only be Unpublished When No Reasonable Judge Could Disagree

After the Seventh Circuit issued its opinion in Swanson v. Bank of America, N.A. (08-3322), a panel of the Ninth Circuit reached the opposite conclusion in McCoy v. Chase Manhattan Bank, USA, N.A., -- F. 3d --, 06-56278, 2009 U.S. App. LEXIS 5380 (9th Cir. Mar. 16, 2009). On that basis the appellant moved for rehearing. In denying the request for rehearing, Chief Judge Easterbrook stated that the Ninth Circuit's decision conflicted with a prior Ninth Circuit panel decision (see Evans v. Chase Bank USA, N.A., 06-15212, 267 Fed. App’x 692 (9th Cir. 2008) and the Judges of the Seventh Circuit will not get involved in a conflict within the Ninth Circuit.

And the reason this is discussed on this blog: Chief Judge Easterbrook reminds us that judicial decisions should only be unpublished/nonprecedential if no reasonable judge could disagree on the outcome. He stated (emphasis mine):

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.

Fourth DCA Streaming Live Oral Arguments

The Fourth DCA is now streaming live audio and video of oral arguments here. The site indicates it has audio and video of oral arguments since September 2005, however, the archive feature is not yet active.

The First DCA and the Fifth DCA already offer live streaming video of oral arguments available for the First DCA here and the Fifth DCA here. The First DCA has archived oral arguments available starting in January 2004 and the Fifth DCA has archives available since 2005.

While the Third DCA does not yet have live streaming feeds of oral arguments, they do allow counsel from Tallahassee or Key West to argue at oral argument via video conference. The Key West order is here and the Tallahassee order is here.

It does not look like the Second DCA has a streaming feed at this time. If this is incorrect please let me know.

The Florida Supreme Court has oral arguments archived from 1997 to the present here.

Eleventh Judicial Circuit Mandatory Foreclosure Program

This week, Chief Judge Farina of the Eleventh Judicial Circuit (Miami-Dade) ordered all foreclosure actions involving homesteaded property participate in a mandatory mediation program prior to a final order of foreclosure being entered. The order establishing "The 11th Circuit Homestead Access To Mediation Program (“CHAMP”)" and containing the requirements can be found here and the purpose was described as:

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.

The CHAMPS plan was discussed in the Miami Herald and it is important to note the CHAMPS plan has requirements that must be complied with at the time the lender files the complaint. In addition to the CHAMPS plan, the Clerk of Court has had a brochure titled "Homeowners Rights in Foreclosure Proceedings" that is available here.

Earlier this year the Florida Supreme Court established the "Task Force on Residential Mortgage Foreclosure Cases" (order is available here). The Task Force was ordered to provide the Supreme Court with a report no later than May 8, 2009.

Other circuit courts have also initiated foreclosure relief measures: Fourth Judicial Circuit (Duval County), Eighteenth Judicial Circuit (Seminole County), Twelfth Judicial Circuit (Sarasota County and Manatee County), Nineteenth Judicial Circuit (Indian River County, Martin County, Okeechobee County and St. Lucie County) and among others the First Judicial Circuit (Escambia, Santa Rosa, Okaloosa and Walton).

Merger Doctrine Inapplicable Due to Beneficiaries Interests

Noting that "[t]he polestar of trust interpretation is the settlors' intent," the Second DCA reversed the circuit court's decision applying the merger doctrine in Hansen v. Bothe (2D08-2688). The Second DCA held "Merger is inapplicable here. To the extent that Andreas Bothe became the sole grantor/trustee upon divorce, he held sole legal title; his intended remainder beneficiaries, however, retained an equitable interest. See Wells, 259 B.R. at 779; see also Denver Found. v. Wells Fargo Bank, N.A., 163 P.3d 1116, 1125 (Colo. 2007)(emphasizing that for the doctrine of merger to apply, the legal and beneficial interests must be completely coextensive; if other equitable interests remain, the trust will not terminate).

Non-Compete Agreements, Injunctions and Lost Documents

In Environmental Svs. v. Carter (5D08-3224), Judge Orfinger has an excellent analysis of non-compete agreements, along with a discussion about injunctions and lost originals. If these topics are of interest to you, the extensive analysis is worth reading.

Statute of Frauds Bars Application of Contract

This week the Fifth DCA held the statute of frauds bars enforcement of a contract to provide fre reclaimed water to a west Orange County golf course. In City of Orlando v. West Orange County Club (5D08-1887 & 5D08-1901), the plaintiff golf course agreed to pay $50,000 to upgrade its pumping capabilities and cease using its current natural water supply in order to accept free reclaimed water for twenty years. Approximately five years into the agreement, the county informed the golf course that the county had not executed the contract and the golf course (along with every other user of the reclaimed water) was going to be required to pay for the water.

The golf course sued and attempted to enforce the contract and the Fifth DCA reversed the trial court and held "Here, it is undisputed that Plaintiff seeks to enforce a contract that called for performance for more than a year, and which was not signed by or on behalf of either party which Plaintiff seeks to hold liable for performance. Therefore, the statute of frauds plainly bars enforcement of the contract." The trial court applied promissory estoppel, however, the Fifth DCA stated the law is clear that promissory estoppel cannot be used to escape the statute of frauds.

The court also considered and declined to apply the tipsy coachman doctrine in support of plaintiff's argument that the ultimate decision of the trial court was correct because of the partial performance of the contract. The Fifth DCA held that since the partial performance by the parties was not the same as the performance required by the contract, you cannot find mutual assent to the contract by performance or signature (the golf course only accepted 47,000,000 gallons of water a year as opposed to the 75,000,000 required by the contract). In dicta, the court indicates it is unsure partial performance could ever be used to bind a party in a situation such as this.

Finally, the court indicates sovereign immunity would be yet another bar to enforcing the contract.

Eleventh Circuit (Once Again) Finds It Proper to Review Attachments on Motion to Dismiss

In an unpublished opinion released by the Eleventh Circuit today, G&G TIC LLC v. Alabama Controls Inc. (08-15783), the court again holds that (among other things):

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.

Challenge to Florida Department of Financial Services Investigative Power Denied

Today, in Everett RE Group Ltd. v. Florida Dept. of Financial Services (1D08-3961), the First DCA denied Everett's Petition for Certiorari relating to a discovery order. Acting as the receiver for Southern Family Insurance Company, Atlantic Preferred Insurance Company and Florida Preferred Property Insurance Company, the Florida Department of Financial Services served an investigative demand on Everett relating to the operations of the three insolvent insurance companies. Everett challenged the authority of FDS to issue the demand and its obligation to comply as a foreign corporation. The court disagreed and stated:

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.

Lis Pendens Effectuated Transfer Outside Preference Period

In a decision released in January, In re Matthew J. Whitehead, III, 399 B.R. 570 (Bankr. S.D. Fla. 2009), the judgment creditor argued that the lis pendens filed at the start of the underlying state court action brought the judgment outside the preference period. Judge Olsen in the Bankruptcy Court for the Southern District of Florida held the "[i]n accord with 11 U.S.C. § 547, Fla. Stat. § 48.23, and applicable case law, I find the Notices of Lis Pendens to have effectuated a transfer of the property outside of the statutory preference period." Therefore, the creditor was granted relief from the automatic stay.

The decision is below:

•In re Matthew J. Whitehead, III, 399 B.R. 570 (Bankr. S.D. Fla. 2009)

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Proper Way to Determine Damages When Project Terminated Prior to Completion

The Eleventh Circuit released an interesting published opinion on April 20, 2009. The case was Sea Byte Inc. v. Hudson Marine Management Services Inc. (08-14069) and case involved a contract to restore an underwater reef. Miller hired Hudson to restore the reef, however, a series of hurricanes expanded the project scope prior to completion of the project. Miller and Hudson filed suits against each other that were transferred to the Southern District of Florida and consolidated.

The Eleventh Circuit held that the contract expired by its own terms due to a "severe weather" provision when the hurricanes increased the scope of the project. Pursuant to the contract, Miller agreed to pay $5,200,000 to Hudson for the repair work. After the hurricane, Hudson requested an additional $2,100,000, however, an agreement was not reached. This led to Hudson stopping his restoration work and led Miller to stop sending payments.

Due to the "severe weather" provision, the Eleventh Circuit affirmed the district court's holding that the contract was not breached by either party. The Eleventh Circuit disagreed with the district court's conclusion as to damages.

The district court correctly held that quantum meruit was not available because under Florida law quantum meruit is not available when an enforceable contract exists. The Eleventh Circuit stated:

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.

The Eleventh Circuit cited to a Michigan appellate court for the proposition that the value of the services provided prior to discharge constitutes the percentage of the services that have been completed pursuant to the contract, multiplied y the contract price. The court stated "We generally agree that the best way to assess damages in such a situation is to multiply the total value of the project (as set by the parties) by the percentage of the project completed."

The general approach does not work, however, when different aspects of the project require different kind of labor, equipments and skills. The end result:

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.

Bankruptcy Exemption Question Certified to Florida Supreme Court

Today in Osborne v. Dumoulin (08-15355) the Eleventh Circuit certified the following bankruptcy exemption question to the Florida Supreme Court:

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).

Prejudgment Interest Not Available on Lost Profits Claim

Last week in Bosem v. Musa Holdings, Inc. (4D07-3383) the Fourth DCA held (again) that prejudgment interest is not available on claims for lost profits. Prejudgment interest is only available when the amount the defendant refuses to pay "is known from the beginning." The court stated:

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).

Declaratory Action Properly Dismissed Because No Justiciable Controversy Existed

The Eleventh Circuit affirmed the dismissal for want of jurisdiction in Cummings v. State Farm Mut. Automobile Ins. Co. (08-16081). In claims for declaratory relief “the threshold question is whether a justiciable controversy exists...In declaratory judgment actions, to show a justiciable controversy, the party invoking federal jurisdiction must allege facts showing: at an irreducible minimum, that at the time the complaint was filed, he has suffered some actual or threatened injury resulting from the defendant’s conduct, that the injury fairly can be traced to the challenged action, and that the injury is likely to be redressed by favorable court disposition." However, the district court erred in "inadvertently" dismissing the claim with prejudice as "dismissal for want of jurisdiction must be without prejudice."

Judge Should Recuse Himself if Party Has Reasonable Fear of Bias, Regardless of Actual Bias

In Aberdeen Prop. Owners Assoc. Inc. v. Bristol Lakes Homeowners Assoc. Inc. (4D08-4467), the Fourth DCA reversed the circuit court and ordered the circuit court judge disqualify himself due to the defendants reasonable fear that it could not receive a fair trial. It is not necessarily relevant whether the Judge could in fact provide the party with a fair trial. In this case, the trial judge had a personal situation somewhat related to the issue before the court and, therefore, the party had a reasonable fear it would not receive a fair trial. The Fourth DCA held:

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).

Arbitration Clause Only Enforceable as to Claims Party Agreed to Arbitrate

Today, in Tubbs v. Hudec (2D08-3477) the Second DCA reversed an order compelling arbitration. The reversal was based upon the fact that "no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate. United Vacation Network, Inc. v. Tahiri, 987 So. 2d 244, 246 (Fla. 2d DCA 2008). The parties' intent regarding arbitration is discerned from the language of the agreement containing the arbitration clause. Id." The arbitration agreement in question only applied to indemnification claims and, therefore, the circuit court should not have compelled arbitration.

Any Party on Notice of Attorney Lien has Duty to Protect Rights of Lienor

On rehearing in Hall, Lamb & Hall, P.A. v. Sherlon Investments Corp. (3D07-2783) the Third DCA held that to perfect a charging lien "the lienor-attorney need only demonstrate that he or she provided the parties to the litigation with timely notice of the interest." When both plaintiff and defendant are aware of the attorney lien, both are responsible to inform the lienor, or the court, in order to protect the lienors rights.

Strict Compliance Required for Attorneys Fees Pursuant to 57.105

In Anchor Towing, Inc. v. Fla. Dept. of Transp. (3D08-1720) the Third DCA reversed an award of attorneys fees awarded pursuant to Section 57.105, Florida Statutes. The party failed to send the motion required by statute with the demand letter. The court held:

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).

Claim for Breach of Fiduciary Duty Cannot Be Brought After Claim for Breach of ERISA Benefits Fails

In its second opinion on the same claim, the Eleventh Circuit held the plaintiff could not assert a breach of fiduciary duty claim after she had previously failed on her claim for breach of ERISA benefits. The first opinion in Burroughs v. BellSouth Telecommunications, 248 Fed. App. 64 (11th Cir. 2007) can be found here and the second opinion can in Burroughs v. Broadspire can be found here. In the Burroughs v. Broadspire opinion released on April 15, 2009, the Court held:

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.

The Difference Between Cancellation and Non-Renewal of an Insurance Policy

In Waters v. Miller (08-14072), a published opinion released by the Eleventh Circuit on April 15, 2009, the Eleventh Circuit affirmed the district court. The court distinguished cancelling an insurance policy from the situation when the insured does not renew the policy. The court stated:

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.

Permanent Injunction Must Specify Reasons for Entry

In Premier Lab Supply, Inc. v. Chemplex Indus., Inc. (4D07-3933) the Fourth DCA reversed the entry of a permanent injunction because "Based on the clear wording of the rule [Rule 1.610 (c)], the specificity requirement applies to both temporary and permanent injunctions." The injunction failed to specify the reasons for its entry and, therefore, was improper. The court also discussed trade secrets and the plaintiff's successful claim.

Venue Proper Where Money Due

When a contract involves the payment of money and no place of payment the payment is due where the creditor resides. Therefore, in Treasure Coast Tractor Service, Inc. v. JAC General Constr., Inc. (4D08-4166) the Fourth DCA reversed and remanded for a transfer to St. Lucie County where the movant filed an affidavit stating all prior payments had been in St. Lucie County and the opposition did not file any counter evidence.

Computer Software is not Tangible Property

The Fourth DCA joined the anti-tax protests on April 15, 2009 and affirmed the circuit court's decision that Palm Beach County could not tax computer software owned by Verizon Wireless. The court in Nikolits v. Verizon Wireless Personal Communications, L.P. (4D08-1389) held:

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.

Proposal for Settlement Valid Beyond Thirty Days

In another opinion relating to a proposal for settlement, the Fourth DCA disagreed with the appellants argument that a request for an extension of time to accept the offer invalidates the offer. In Baratta v. Bradford Electric, Inc. (4D08-968) the court held that nothing prevents an offeree from accepting an untimely acceptance. As long as there is an offer, acceptance and meeting of the minds the settlement is binding. A brief explanation of proposals for settlement and the holding are below:

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.

ERISA Preempts Florida State Whistleblower Claim

In Am. Maritime Off. Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008), the Fourth DCA held that plaintiff's state law whistleblower claim was preempted by ERISA.  The plaintiff was the former executive director of the American Maritime Officers Plans (pension, benefit, etc.). According to the allegations in the complaint, the plaintiff agreed to wear a wire for the United States Department of Labor in exchange for immunity from prosecution.  The plaintiff alleged that the defendants discovered he was cooperating with the government and had him terminated.  Entering a writ of prohibition, the court stated:

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.

Am. Maritime Off. Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008)

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Article About American Maritime Officers Union v. Merriken Trial Victory

The case that led to the decisions discussed here (Am. Maritime Off. Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008)) and here (Merriken v. Am. Maritime Off. Vacation Plan, et al, 08-60687, 2008 WL 4899126, (S.D. Fla. Sept. 29, 2008)) was discussed here. The discussion is below:

And the Defense Wins - 3-11-2009

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Filing Under Seal

For a discussion about filing under seal, see here.

Venue More Appropriate Where All Witnesses Reside

The Third DCA released a decision reversing the circuit court and finding Miami-Dade county to be an inconvenient forum to a majority of the witnesses. In Cooper Tire & Rubber Co. v. Estate of Carlos Hernandez Chavez (3d09-61), the car accident was in Lee County, the passengers of the vehicles resided in Lee County, and all of the witnesses named on the plaintiff's witness list resided in Lee County. The Defendant, however, transacted business in Miami-Dade County. Based upon those facts, the Third DCA held the circuit court abused its discretion in not transferring the action to Lee County.

Arbitration Agreement on Website Not Enforceable

In General Impact Glass & Windows Corp. v. Rollac Shutter of Texas, Inc. (3D08-1468), the Third DCA reviewed whether an arbitration agreement on a web site can bind a party to arbitration. The court concluded the arbitration agreement could not be enforced because the plaintiff had not signed the arbitration agreement and the arbitration was not incorporated into the contract.

Noriega Extradition Upheld

This is not the typical topic for this blog, but interesting. Today, the Eleventh Circuit upheld the extradition of former Panamanian dictator General Manuel Noriega to France to face money laundering charges. The opinion can be found here and a Miami Herald article on the opinion here.

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

In Curcio v. Sovereign Healthcare of Boynton Beach L.L.C. (4D08-1947), the Fourth DCA reversed the circuit court and held that the plaintiff was entitled to an expedited evidentiary hearing after challenging the "making of" the underlying contract that contained the arbitration agreement.

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

Today, the Fourth DCA issued its opinion in Villa Maria Nursing and Rehabilitation Center, Inc. v. South Broward Hospital District (4D07-4433). The opinion discusses (among other things) whether a complaint should be dismissed with or without prejudice when the plaintiff fails to comply with a statutory presuit notice provision. The court reversed the circuit court and held that if the statute of limitations has run, it should be with prejudice. The relevant portion of the opinion is below:

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).

Motion to Amend Complaint Properly Denied

Today, in Hickman v. Barclay’s International Realty, Inc. (4D07-3382), the Fourth DCA affirmed the circuit court's denial of plaintiff's Motion to Amend Pleadings. The case had been pending for over six years and the plaintiff had made five previous amendments to its complaint. At the summary judgment hearing, the plaintiff made an ore tenus motion to amend. The circuit court denied the ore tenus motion and the Fourth DCA affirmed stating:

“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.