Saturday, May 30, 2009

Seller of House is Not Guarantor of its Condition

In Brown v. Carter (2D08-3993), the Second District reversed the trial court and held:

In Johnson, the Florida Supreme Court held that "where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer." 480 So. 2d at 629.
"Johnson does not convert a seller of a house into a guarantor of the condition of the house." Slitor v. Elias, 544 So. 2d 255, 258 (Fla. 2d DCA 1989). As such, the trial court erred in finding that the Browns were obligated to disclose the nature and extent of the work performed to install the pool. Accordingly, we reverse the judgment on appeal and remand for the entry of judgment in favor of the Browns.

Assignment of Judges

In Strong v. OCHS (2D09-1020), the Second District dismissed the petition for writ of prohibition and/or mandamus for lack of jurisdiction and made the following points:
  • [A] chief judge may assign qualified county judges "as temporary circuit judges for the performance of any judicial service a circuit judge can perform.";
  • The supreme court has been clear in "conclud[ing] that [the supreme court] has exclusive jurisdiction to review judicial assignments," that "there is nothing in our Constitution to indicate that district courts are to share in the administrative supervision of our trial courts," and has unambiguously held that "a litigant who is affected by a judicial assignment made by a chief judge of a judicial circuit must challenge that assignment in the trial court and then seek review in [the supreme court] by way of petition for writ of prohibition or petition under the 'all writs' power."; and
  • The petitioner sought mandamus and prohibition - not certiorari. Therefore, certiorari was not available unless converted by the court.

General Magistrate Cannot Conduct Jury Trial in Florida

In Lackner v. Central Fla. Investments, Inc. (5D07-3542), the Fifth District vacated its prior decision and determined that a General Magistrate does not have jurisdiction to conduct a jury trial even with consent of both parties.

The docket for the case indicates that on April 9, 2009, the court entered an opinion. Apparently on the same day, the court entered an order sua sponte withdrawing the prior opinion and requiring the parties to brief the following issue: "ADDRESSING THE AUTHORITY OF A MAGISTRATE TO CONVENE AND PRESIDE OVER A JURY TRIAL."

The court stated:

Florida Rule of Civil Procedure 1.490 authorizes judges of the circuit court to appoint general and special magistrates. General magistrates continue in office until removed by the court and must take the oath of office required of officers by the Constitution. No matter can be referred to a magistrate without the parties' consent. Fla. R. Civ. P. 1.490(a)-(c) (2009). A magistrate's general powers and duties are defined in subsection (d), which states in relevant part: "Every magistrate shall perform all of the duties that pertain to the office according to the practice in chancery and under the direction of the court." Fla. R. Civ. P. 1.490(d). Focusing on the word "all," the Appellant Lackner asserts that this provision should be interpreted to permit a magistrate to perform all functions of the trial court, including presiding over jury trials. This argument ignores the last part of the sentence, which limits a magistrate to those duties "that pertain to the office according to the practice in chancery and under the direction of the court." Id. The first part of this phrase seems to confine a magistrate to those duties traditionally exercised by magistrates in chancery, which largely consisted of taking witness testimony. The second part of the phrase clearly specifies that a magistrate's duties must be performed under the direction of the court. These two limitations weigh against interpreting the rule to permit a magistrate to preside over a jury trial, especially when considered in the context of the rest of rule 1.490.


Article V of the Florida Constitution vests judicial power exclusively in the courts. The authority to conduct jury trials is implicit in the judicial power, and the Legislature has made it explicit by statute. Section 40.001, Florida Statutes (2008), provides in relevant part: "The chief judge of each judicial circuit is vested with overall authority and responsibility for the management, operation, and oversight of the jury system within his or her circuit." Judicial powers vested in the courts by constitution or statute are nondelegable.


The problem in the present case is compounded by the fact that the magistrate did not issue a report or recommendation. Instead, he purported to render a final judgment in favor of Central Florida Investments...There is nothing in the record to suggest that this "final judgment" was ever adopted, ratified, or otherwise approved by the trial court. In other words, no appealable final order was ever rendered by the trial court; therefore, this court lacks jurisdiction to review the merits of the issues presented on appeal.

US Supreme Court "Petitions to Watch"

The SCOTUS Blog has its latest "Petitions to Watch" which can be found here. One is from the Supreme Court of Florida and the information is below:

Docket: 08-1175 and 08-1229
Title: Florida v. Powell and Florida v. Rigterink
Issue: Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?

Opinion below (08-1175, Supreme Court of Florida)
Opinion below (08-1229, Supreme Court of Florida)
Petition for certiorari (08-1175)
Petition for certiorari(08-1229)
Brief in opposition (08-1175)
Brief in opposition (08-1229)

Thursday, May 28, 2009

Eleventh Circuit Affirms Order Enjoining Litigant from Bringing Action

In Thomas v. Blue Cross & Blue Shield (08-15395), the Eleventh Circuit affirmed Judge Moreno's order permanently enjoining the appellant from bringing suit against Blue Cross. The decision discusses a number of different legal theories including claim preclusion, the impact of a bankruptcy stay, laches, equitable challenges, the power of a court to adjudicate issues not raised and issues raised for the first time on appeal.


Judge Moreno issued the injunction based upon the judgment entered in a prior case pending before him. The prior case, Love, et al. v. Blue Cross Blue Shield Ass’n, et al., No. 03-21296-CV (S.D. Fla. Apr. 19, 2008), "alleged that Blue Cross cheated doctors by devising ways to delay, diminish, and deny properly requested payments based on their cost instead of medical necessity. In 2007 Blue Cross agreed to settle the case for $130,000,000 and an agreement to change many of its business practices. Most notably, Blue Cross agreed to use medical standards and scientific evidence in making its “medical necessity” determinations. The settlement agreement also included a release designed to prevent doctors who were members of the plaintiff class from pursuing further claims based on the same actions by Blue Cross. Notices of the preliminary Love settlement were mailed to Dr. Jemsek and the Jemsek clinic in July 2007. A summary notice was also published in USA Today, the Wall Street Journal, the Journal of the American Medical Association, and the American Medical News. Neither Dr. Jemsek nor the Jemsek clinic opted out of the plaintiff class. Accordingly, they were bound by the settlement agreement when the district court issued its final approval in April 2008."

"The district court’s order enjoined Jemsek from bringing, against any Blue Cross defendant, claims that: [A]re, were, or could have been asserted against any of the Released Parties by reason of, arising out of, or in any way related to the facts, acts, events, transactions, occurrences, courses of conduct, business practices, representations, omissions, circumstances, or other matters referenced in the [Love] Action, or addressed in the Settlement Agreement, whether any such Claim was or could have been asserted by any Releasing Party on its own behalf or on behalf of other Persons . . . . This includes, without limitation and as to Released Parties only, any aspect of any fee for service claim submitted by any Class Member."

Blue Cross sued the doctor in North Carolina and the doctor responded by filing bankruptcy, removing the action to the North Carolina bankruptcy court and filing nine compulsory counterclaims in the North Carolina bankruptcy court. In response, Blue Cross moved the Florida district court to enjoin the doctor from bringing the action.

Claim Preclusion

“In order for claim preclusion to apply, four elements are required: (1) a final judgment on the merits; (2) rendered by a court of competent jurisdiction; (3) identity of the parties; (4) identity of the causes of action."


An “identical factual predicate” requires only a common nucleus of operative fact.


"We hold that Dr. Jemsek’s counterclaims and the Love action, both of which arise out of Blue Cross’ conniving to deny, diminish, or delay payment for covered services based on cost instead of medical necessity, share the same operative nucleus of fact."

Claims Not Before the Court

"But “even when the court does not have power to adjudicate a claim, it may still approve release of that claim as a condition of settlement of an action before it...Given a broad enough settlement agreement— which it clearly was—and provided that Jemsek had notice of it and an opportunity to opt out, it is perfectly acceptable for the Love action to preclude his claims, even if they could not have been part of that action itself.

Bankruptcy Court's Automatic Stay

"Next, Dr. Jemsek contends that the district court’s injunction against his counterclaims should not be enforced because it violated the automatic stay in his bankruptcy case...Under the plain language of the [11 U.S.C. § 362(a)(1–3)], Jemsek’s counterclaims against Blue Cross are not “against the debtor,” and thus were not subject to the automatic stay...Therefore, the bankruptcy stay created by § 362 did not “cement” Jemsek’s claims into his sealed estate and thereby shield them from the Florida district court’s order in the Love action. Jemsek’s counterclaims were not stayed, so there is no reason why the judgment in the Love action could not foreclose them...

Nor did the Florida district court improperly “exercise control over property of the estate” under § 362(a)(3) by requiring Jemsek to choose whether to opt out of the Love action. Given that his counterclaims, though they may be “property of the estate,” were not stayed by the automatic bankruptcy stay, they were open to possible defeat by Blue Cross’ defenses. It would not make sense under a plain reading of the statute to treat raising a defense against a non-stayed counterclaim as an “exercise of control over property.”

Arguments Raised for the First Time on Appeal

“Arguments raised for the first time on appeal are not properly before this Court.” Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000); see also Blue Cross Blue Shield of Alabama v. Weitz, 913 F.2d 1544, 1549 (11th Cir. 1990).

Florida Supreme Court Amends Florida Rules of Civil Procedure to Add Complex Litigation Rule

Today, in a 4-3 decision, the Florida Supreme Court issued an opinion on the management of complex civil cases [In Re: Amendments To The Florida Rules of Civil Procedure – Management of Cases Involving Complex Litigation (SC08-1141 )]. Justice Pariente wrote the decision for the majority, Justice Labarga wrote a concurring opinion and Justice Polston wrote a dissenting opinion in which Chief Justice Quince and Justice Canady joined. The amendments are effective immediately with the exception of the amendments to form 1.997 (Civil Cover Sheet) and new form 12.928 (Family Court Cover Sheet) which become effective January 1, 2010, at 12:01 a.m. on January 1, 2010.

The Court amended Florida Rules of Civil Procedure 1.100 (Pleadings and Motions), 1.200 (Pretrial Procedure), and 1.440 (Setting Action for Trial), Florida Family Law Rule of Procedure 12.100 (Pleadings and Motions), and Forms for Use with Rules of Civil Procedure 1.997 (Civil Cover Sheet) and 1.998 (Final Disposition Form). The Court adopted new rules 1.201 (Complex Litigation) and 12.201 (Complex Litigation), form 1.999 (Order Designating A Case Complex), and Florida Supreme Court Approved Family Law Form 12.928 (Family Court Cover Sheet).

Rule 1.201 is long and provides extensive requirements. The new and amended rules can be found in the opinion by clicking on the link.

Eleventh Circuit on Remand to Agency

In World Fuel Corp. v. Geithner (08-13111), the Eleventh Circuit dismissed for lack of jurisdiction. The court summarized the standard of review when a district court remands to an agency and stated:

Before we can review the Remand Order, we must determine whether we have jurisdiction to do so. “Under 28 U.S.C. § 1291 (1994), 4 our jurisdiction is limited to final decisions of the district courts.” In re Grand Jury Proceedings, 142 F.3d 1416, 1420 n.9 (11th Cir. 1998). “A final order is one that ‘ends the litigation on the merits and leaves nothing for the court to do but execute its judgment.’” Crawford & Co. v. Apfel, 235 F.3d 1298, 1302 (11th Cir. 2000) (quoting Huie v. Bowen, 788 F.2d 698, 701 (11th Cir. 1986)). “As a general rule, remand orders from district courts to administrative agencies are not final and appealable.” MCI Telecomm. Corp. v. BellSouth Telecomm. Inc., 298 F.3d 1269, 1271 (11th Cir. 2002). There is an important distinction, however, between situations where a district court orders the agency to “proceed under a certain legal standard,” and situations where a district court remands for further consideration of evidence. Id. “A remand order generally is found appealable in the former cases because the agency, forced to conform its decision to the district court’s mandate, cannot
appeal its own subsequent order.” Id.

Florida's Attorney General Files Objection to Chrysler's Attempt to Terminate Dealership Agreements

Florida's Attorney General Bill McCollum "filed a formal objection to Chrysler’s attempts to terminate existing dealership agreements under the U.S. Bankruptcy Code." An article about the objection can be found here and the actual objection here.
Chrysler dealers in Broward and Miami-Dade county have also objected [here].

Wednesday, May 27, 2009

Fourth District Affirms Holding that Three Days Notice Sufficient for Entry of Temporary Injunction

In Lamour v. Deer Run Property Owners Association, Inc. (4D08-3960), the Fourth District affirmed the trial court's entry of a temporary injunction. The issue related to notice of the hearing on the temporary injunction and the Fourth District affirmed because notice was sent to counsel for the defendant with sufficient time to prepare for the hearing.

Notice of the hearing on the temporary injunction was faxed to counsel for the defendant on a Friday and the hearing was held on the following Monday. The attorney was apparently on a ski trip, however, had not filed a notice of unavailability. [The court specifically noted that filing a notice of unavailability may not have solved the issue].

The fax was received at 9:23 am and, therefore, delivery was complete on that date. Giving three days notice, albeit a weekend, was sufficient notice for the entry of a temporary injunction.

Third District on Motion to Dismiss Standard

In Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC (3D08-2158), the Third District reversed the trial court and outlined the standard for reviewing a motion to dismiss.

The standard:

A motion to dismiss under rule 1.140(b) tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial. Meadows Cmty. Ass’n v. Russell-Tutty, 928 So. 2d 1276, 1280 (Fla. 3d DCA 2006). With respect to a breach of contract claim, an action cannot be dismissed "unless it clearly appears as a matter of law that the contract cannot support the action alleged." Helms v. Gen. Film Dev. Corp., 346 So. 2d 1064, 1065 (Fla. 3d DCA 1977). The trial court is bound by the four corners of the complaint and attachments, and all ambiguities and inferences drawn from "the recitals in the complaint, together with the exhibits attached," must be construed in the light most favorable to the plaintiff. Vienneau v. Metro. Life Ins. Co., 548 So. 2d 856, 858 (Fla. 4th DCA 1989).


Soleil moved to dismiss first due to the alleged lack of a condition precedent that would trigger Soleil’s obligation to pay (no closing took place), and second because Soleil allegedly could make "material changes" without defaulting. However, these are not arguments attacking the sufficiency of the allegations–they are defenses. When deciding a motion to dismiss, a trial court may not consider affirmative defenses. Susan Fixel, Inc. v. Rosenthal & Rosenthal, 842 So. 2d 204, 206 (Fla. 3d DCA 2003). This was sufficient to deny Soleil’s motion to dismiss.

Fourth District Affirms Decision Finding Waiver of Arbitration

In Bland v. Green Acres Group, L.L.C. (4D08-3632), Judge Maass writing for the majority affirmed the circuit court's decision that arbitration had been waived. Waiver occured by the filing of a lawsuit; the filing of an answer without claiming arbitration; and by settlement discussions.

Regardless of whether the majority or dissent puts forth the correct legal proposition [and I do not opine on that issue], Judge Farmer wrote an excellent and detailed 13 page dissent. Judge Farmer argues the decision by the majority is "most casual in its unprecedented extension of the grounds on which contract rights to arbitrate may be deemed waived" and "the totality of conduct relied upon by the majority is legally insufficient to constitute a waiver of arbitration."

Testifying in Subsequent Proceeding About Attorney Client Communications Waives Privilege in Subsequent Action

In S & I Investments v. Payless Flea Market, Inc. (4D08-3478), the Fourth District held that the petitioner had waived the attorney client privilege.

After defending petitioners in a legal proceeding, counsel in the original proceeding filed a lawsuit in federal court for unpaid legal fees. Petitioners defended the lawsuit for attorneys fees and gave a deposition at which there were no privilege objections made.

The circuit court held that petitioners had waived privilege.

"An order improperly compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari."

Where a client sues her attorney for malpractice and voluntarily discloses her communications with the attorney, the client waives the attorney-client privilege as to those subjects disclosed... A client may voluntarily disclose confidential communications through testimony...Here, the client testified at the deposition and admits that she did not assert any claim of privilege at the deposition. She voluntarily gave testimony in a contested proceeding, recorded by both a videographer as well as a court reporter. She waived the privilege. 'Usually waiver in one proceeding is waiver in all proceedings.'


To the extent that the communications at petitioner’s deposition were relevant to the breach of duty between the lawyer and client, the communications were not protected by the privilege. § 90.502(4)(c), Fla. Stat. By testifying without objection in the deposition, petitioner waived any remaining attorney-client privilege.


The Fourth District also addressed the bankruptcy filing by one of the petitioners. The court held: "Petitioners filed a Notice of Filing Suggestion of Bankruptcy under Chapter 11 in this court on October 31, 2008, advising that an involuntary petition was filed against S & I. Although we acknowledge that the case is automatically stayed as to S & I, no stay is in effect as to petitioner Richmond."

Fourth District: Easements, Directed Verdict, Laches, etc.

In Conrad v. Young, et al (4D07-244), the Fourth District analyzed an easement dating back to 1937.

The court reached a number of conclusions, including:

When an appellate court reviews the trial court’s denial of a motion for directed verdict, it must “view the evidence and all inferences in a light most favorable to the non-movant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant.” Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990, 997 (Fla. 4th DCA 2004).


The statutory laches provision applies to actions involving easements. See Carlton v. Germany Hammock Groves, 803 So. 2d 852, 856 (Fla. 4th DCA 2002). As we explained in Carlton, “[a] cause of action for an easement accrues when an adverse party prevents use of the easement.” 803 So. 2d at 856 (citing Estate of Johnston v. TPE Hotels, Inc., 719 So. 2d 22, 26 (Fla. 5th DCA 1998)).


No cause of action accrues until such time as the servient owners’ use is hostile or until the easement holders retract permission for the servient owners’ use.

On Remand the Fourth DCA Affirms Applying the Tipsy Coachmen Doctrine

On remand from the Florida Supreme Court (Butler v. Yusem, 3 So. 3d 1185 (Fla. 2009)), the Fourth District applied the tipsy coachmen doctrine to affirm the decision from the Palm Beach County Circuit Court. The Fourth District, as instructed by the Supreme Court, did reverse as to prejudgment interest. The May 27, 2009 decision from the Fourth District can be found here. The decision by the Fourth District reversed by the Florida Supreme Court (966 So. 2d 405 (Fla. 4th DCA 2007) can be found here.

Fourth DCA Finds Arbitration Not Waived

In DFC Homes of Florida v. Lawrence (4D08-2798), the Fourth District reversed the trial court's conclusion that arbitration had been waived.

The court held:

"A party to an arbitration agreement waives the right to arbitration by active participation in litigation before asserting that right." (emphasis in original).


"DFC’s subsequent participation in discovery, i.e., depositions and interrogatories requested by Lawrence, was “limited in scope and . . .purpose . . . to obtain[ing] information relevant to the trial court’s determination of whether the right to arbitration was present.” Phillips v. Gen. Accident Ins. Co. of Am., 685 So. 2d 27, 29 (Fla. 3d DCA 1997). Again, the original dispute had been resolved at arbitration, and the substance or merits of the case or any new claims were never considered by the court."


A mere attempt to settle a dispute outside the courtroom cannot be considered inconsistent with a party’s right to arbitration. See Marine Envtl. Partners, Inc. Johnson, 863 So. 2d 423, 426 (Fla. 4th DCA 2003) (“A party claiming waiver of arbitration must show: (1) knowledge of an existing right to arbitrate and (2) active participation in litigation or other acts inconsistent with the right.”). Such a finding would make little sense, considering the object of arbitration is to facilitate the settlement of disputes and to avoid the formalities, delay, and expense of ordinary litigation.

Third DCA Reverses Decision Awarding Real Estate Deposit to Buyers

In Bellon v. Acosta (3D08-2515), the Third District reversed the trial court and order the deposit for the purchase of real estate should have been awarded to the sellers. The court stated:
Julio and Christine M. Acosta ("Buyers") entered into a contract to purchase a home being sold by Erik and Amy S. Bellon ("Sellers") for $5.65 million. The Buyers posted a $100,000 deposit. The contract contained a financing contingency.
Under the contract, there was a commitment period with a deadline of twenty business days. The twentieth day was January 20, 2008. The Sellers say that on or before January 20, the Buyers were required to give a written notification to the Sellers stating whether or not they had obtained a loan commitment. The Buyers interpret the contract differently, and did not provide any written notification to the Sellers on or before January 20.
The Buyers argue that they should be entitled to the benefit of the full twenty business days, without having to provide any written notification to the Sellers on the twentieth day. The Buyers contend that their notification to the Sellers was timely because it came within a few days after the expiration of the twenty-day period. The Buyers also say that they kept the Sellers informed about the status of the loan application and everyone was aware the application remained pending.

Unfortunately for the Buyers, however, that is not what the contract says. By its terms the contract requires a written notification on or before the twentieth business day. The Buyers failed for that reason. Under the contract terms, "Buyer’s failure to provide Seller with written notice that Buyer is unable to obtain a Commitment within the Commitment Period will result in forfeiture of Buyer’s deposit(s)." The Sellers argue that this provision applies where, as here, (a) the Buyers did not provide the required notification on or before the last day of the Commitment Period, (b) the Buyers failed to obtain financing, and (c) the transaction failed as a result. We agree.

For the stated reasons, we conclude that under the contract language, the Sellers were entitled to retain the deposit. In view of this conclusion, we do not need to reach the Buyers’ alternative argument regarding the contract addendum. ultimately did not obtain financing and the transaction

Writ of Possession Must be Entered When Lessee Fails to Deposit Monthly Rental Payment into Registry

In Kosoy Kendall Assoc., LLC v. Los Latinos Restaurant, Inc. (3D09-1289), the Third District granted the petition for mandamus. The court held:
Upon the lessee’s failure to timely deposit a monthly rental payment into the registry as required by court order under section 83.232, Florida Statute, the petitioner–landlord was absolutely entitled to an ex parte, immediate default for a writ of possession of the premises by section 83.232(5), Florida Statute...Because the trial court refused, after an adversarial hearing which was itself unauthorized, to issue the writ and, notwithstanding such wholly irrelevant facts as that the payment was subsequently tendered, see Main St. Corp., 947 So. 2d at 492, we grant the present application for mandamus and order that a writ of possession issue forthwith.

Auto Policy Requirement Against Public Policy

In Diaz-Hernandez v. State Farm Fire & Cas. Co. (3D07-2895), the Third District decided whether an automobile insurance policy that requires "the Insured to file suit against the known uninsured motorist and State Farm, is against the public policy of the UM statute, section 627.727, Florida Statutes (2007), and therefore, void."
The court stated:

Moreover, "[u]ninsured motorist coverage was created by the legislature for the benefit of injured persons, and not for the benefit of insurance companies." Armstrong v. Allstate Ins. Co., 712 So. 2d 788 (Fla. 2d DCA 1998).

When an insured seeks to recover uninsured motorist benefits from its insurance carrier, the insured’s UM carrier stands in the shoes of the uninsured motorist.

Moreover, "in a UM claim the insured must prove that she is legally entitled to recover from the owner or operator of the uninsured or underinsured vehicle. Just as she would in a suit against the tortfeasor, the insured bears the entire burden to prove that her claimed damages were reasonable, necessary, and related to the accident."
While the provision in State Farm’s UM policy does not limit the scope of the Insured’s UM coverage, it does add an additional burden upon the Insured by requiring the Insured to join the uninsured motorist (tortfeasor) in the Insured’s contractual action against State Farm for UM coverage. There is nothing in the UM statute that imposes such a burden upon the Insured.

We find that the additional burden this policy provision places upon the Insured violates the clear policy articulated in Armstrong, 712 So. 2d at 788, that the purpose of the UM coverage is to protect the injured motorist, not to benefit the UM carrier or the uninsured motorist.

Trustee Cannot Challenge Revocation of Inter Vivos Trust after Settlor's Death

In MacIntyre v. Wedell (4D08-754), the Fourth District held "[t]he issue in this appeal is whether a trustee may challenge the settlor’s revocation of an inter vivos revocable trust, on undue influence grounds, after the settlor’s death. We answer this question in the negative and affirm the trial court’s order dismissing the instant claim brought by appellant, Liz MacIntyre as Trustee of the Helen M. Wedrall Trust."

Appeal Premature Where Jurisdiction to Determine Entitlement and Amount of Attorneys Fees Merely Reserved

In Freemon v. Velez (4D08-2585), the Fourth District held the appeal was premature, stating:
Because the final judgment merely reserved jurisdiction to determine entitlement to and the amount of attorney’s fees, appeal of this issue was premature. Although appellant explains that the trial court made that determination after the filing of the notice of appeal, “[t]his court cannot review judicial acts of a trial court taking place after the filing of a notice of appeal unless those judicial acts are themselves made the subject of a new notice of appeal or other appropriate appellate proceedings.”

Summary Judgment Reversed

In Geico Indemnity Ins. Co. v. Reed (4D08-575), the Fourth District reversed the trial court's grant of summary judgment.
The court noted that the name on a certificate of title to an automobile creates a presumption of ownership. However, the presumption can be overcome. The issue of ownership created an issue of material fact that required reversal of the summary judgment.

Fourth DCA affirms issue relating to physician’s right to due process

The opinion in Abram v. State, Department of Health (4D08-1965) speaks for itself but the introduction is quoted below:

This appeal presents the question of whether a statute allowing the Board of Medicine to discipline a physician who performs a wrong-site procedure violates the physician’s right to due process by allegedly including an irrebutable presumption that performing a wrong-site procedure falls below the standard of care. Finding no such presumption or constitutional violation, we affirm.

Tuesday, May 26, 2009

Fifth DCA Affirms Dismissal for Insufficient Service of Process

In Robinson v. Shackelford (5D08-1066), the Fifth DCA affirmed the circuit court's dismissal for insufficiency of service of process. The court held:
An order dismissing a cause of action for failure to timely serve the complaint is reviewed for an abuse of discretion. Wagner v. Strickland, 908 So.2d 549 (Fla. 1st DCA 2005). If a plaintiff shows good cause or excusable neglect, the court must extend the time for service of process and has no discretion to do otherwise; however, if neither good cause nor excusable neglect is shown, the trial court is not required to dismiss the action without prejudice but is left to exercise its discretion. Pixton v. Williams Scotsman, Inc., 924 So.2d 37 (Fla. 5th DCA 2006).
The Court also addressed a second issue: the failure to provide a transcript of the proceeding below:
Here, without having a transcript of the hearings conducted below, we are unable to determine that the trial court committed any error in dismissing Robinson's complaint. Accordingly, we affirm the instant dismissal order. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979)(holding in appellate proceedings, decision of trial court has presumption of correctness and burden is on appellant to demonstrate error); Maslow v. Edwards, 886 So.2d 1027 (Fla. 5th DCA 2004)(holding without a transcript of proceedings below, review on appeal is limited to errors of law that are apparent on face of record).

Three Decisions From Two Weeks Ago

Three opinions from two weeks ago:
Roberson v. Kitchen (5D08-2208): On rehearing, the Fifth DCA affirmed in part, reversed in part and remanded the case relating to an interpretation of an easement.
Andries v. Royal Caribbean Cruises, Ltd. (3D08-0845): The Third DCA provides an extensive discussion about expert witnesses and the applicable standard.
A. Duda and Sons, Inc. v. St. Johns River Water Management District (5D08-1700): The Fifth DCA discusses whether the management district "properly interpreted the agricultural exemption set forth in section 373.406(2), Florida Statutes (2007)."

Monday, May 25, 2009

Second District Denies Cert on Discovery Dispute

Certiorari is the appropriate remedy when a discovery order departs from the essential requirements of law, causing material injury to the petitioner throughout the remainder of the proceeding in the trial court, effectively leaving no adequate remedy on appeal. See Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 999 (Fla. 1999). Universal has failed to demonstrate irreparable harm. Stark has abandoned any claim of entitlement to the materials that Universal seeks to shield, and in turn, Universal has abandoned its objection to producing the remaining materials. Even without these concessions, we would still conclude that Universal is not entitled to relief because it made no claim in the trial court that the materials at issue were proprietary. The perfunctory assertion of privilege in its petition to this court, which is without any factual support in the record, is too little, too late.

Another Decision Based Upon Lack of Finality of Order Under Review

In City of Marco Island v. Dumas (2D09-532), the Second DCA reviewed a decision of the county court, which was first reviewed by the circuit court.

The county court entered an order that the city correctly did not believe final (even though the county court judge believed it to be final). Therefore, the City moved and the county court judge entered a second order. The City timely appealed the second order. The appellee moved to dismiss the appeal and argued the first order was the appealable order. The circuit court agreed and dismissed the appeal. The circuit court believed it was a final order that "left no judicial labor to be done "except the execution of the judgment."

It relied on McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992), and Rollins Fruit Co., Inc. v. Wilson, 923 So. 2d 516 (Fla. 2d DCA 2005). In McGurn, the trial court entered an order entitled "final judgment" that reserved the right to award prejudgment interest. As the court stated: "Therefore, the issue before this Court is whether a trial court may issue a final appealable order while reserving jurisdiction to award prejudgment interest." 596 So. 2d at 1043. The court then explained: "It is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment." Id. Obviously, what the circuit court overlooked in this case is the fact that the October order did not expressly adjudicate the merits of the enforcement proceeding or dispose of the action; it merely entered a legal ruling as to an issue in the case. It is comparable to the order granting a motion to dismiss that this court held to be nonfinal in Rollins Fruit, 923 So. 2d 516, which is the other case that the circuit court cited in support of its order of dismissal. It is also comparable to an order granting summary judgment, which is not appealable. See Cardiothoracic & Vascular Surgery, P.A. v. W. Fla. Reg'l, 993 So. 2d 1060 (Fla. 1st DCA 2008). The order entered in October was a nonfinal, nonappealable order. The City properly requested the county court to enter a final appealable order based on the reasoning of that order and it has filed a timely appeal from that order. Petition for writ of mandamus granted with instructions to reinstate appeal from county court.

Friday, May 22, 2009

Fourth DCA Reverses Decision on Unfair Labor Practices Charge

In School District of Martin County, Florida (4D08-1964) the Fourth District reversed the Circuit Court's decision relating to the manner of distribution of funds for classroom items to teachers.

The union filed an unfair labor practice charge alleging that "the School District violated section 447.501(a) and (c), Florida Statutes (2007), by failing to bargain its decision to distribute FTLP funds to teachers through Visa debit cards, in lieu of distribution through traditional check."

"The Commission’s construction of the statute in this case was clearly erroneous because the 2008 statutory amendments unequivocally expressed that the method of distribution does not affect a term or condition of employment. While the Florida Constitution provides that an employer may not abridge an employee’s right to collectively bargain, it has left it up to the legislature to define what subjects are matters of collective bargaining. In exercising this right, the legislature defined mandatory subjects of collective bargaining as those that affect a term or condition of employment. § 1012.71, Fla. Stat. (2007). With the 2008 statutory amendments, the legislature further expressed that the method of distributing FTLP funds did not affect a term or condition of employment and thus, was not a mandatory subject of collective bargaining. § 1012.71(3), Fla. Stat. (2008). This clear expression of legislative intent demonstrates that the Commission’s decision to the contrary is clearly erroneous."

Thursday, May 21, 2009

Code Enforcement Did Not Constitute Substantial Burden on Exercise of Religion

In Westgate Tabernacle, Inc. v. Palm Beach County (4D07-3792) the Fourth District affirmed the trial court's final judgment and held the Palm Beach County code requirements did not constitute a substantial burden on its religious beliefs.


Westgate Tabernacle, Inc. and "its pastors, the Reverends Avis Hill and Sherry McGee-Hill, opened the church property as a shelter for the homeless in Palm Beach County as apart of its Christian mission...Because Westgate was operating a shelter for more than six people without a [proper license], the County issued a May 4, 1998, notice of violation entitled, 'Operating a Homeless Shelter is Prohibited in this Zoning District.' The notice gave Westgate two months to comply or attend a hearing before the Code Enforcement Board for the imposition of fines.Westgate failed to correct the violations, and the Board conducted a hearing...and imposed a $22,700 fine against Westgate for its period of noncompliance. Westgate did not satisfy the debt, and the County imposed a lien on the property...


Westgate filed two multi-count complaints against the County based on a variety of state and federal constitutional doctrines claiming that the County had violated Florida’s Religious Freedom Restoration Act, chapter 761, Florida Statutes, and the federal Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc, et seq.
The party claiming that a government action constitutes a violation of FRFRA or RLUIPA “bears the initial burden of showing that a regulation constitutes a substantial burden on his or her exercise of religion.'


Section 761.02(3), Florida Statutes, defines 'exercise of religion' as 'an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.'


The [County] required a permit for the conditional use as a homeless shelter in the church’s zoning district. 'The mere requirement that one apply for a special exception from an ordinance restricting the use of property is not a substantial burden.'...A church must exhaust its administrative remedies and cannot merely predict that it would be denied the permit if it were to apply. Id. The County informed Westgate in the notice of violation and at the Code Enforcement Board hearing that a CUP was necessary to house more than six individuals. Although Westgate applied for a permit, it withdrew its application. Based on this evidence alone, the jury could conclude that the County did not substantially burden Westgate’s religious exercise.


Neither FRFRA nor RLUIPA prohibits the application of valid, neutral zoning provisions to church property to curtail uses not permitted in the area...Although its shelter has grown beyond a Type 2 facility to a Type 3 facility because it now houses nearly 100 persons at a time, Westgate has not applied for the required permits or received the approval of the Board of County Commissioners. Admittedly, to obtain such a permit would require substantial renovations, because the church does not have sufficient space to house that many people or even provide restrooms for such a number. Nevertheless, it has not proved that the ULDC poses a substantial burden to its religious exercise. The court correctly denied Westgate’s motion for directed verdict. Because we hold that Westgate did not show that the County’s imposition of its permitting requirements constituted a substantial burden on its exercise of religion, the County did not violate FRFRA or RLUIPA. We affirm as to all other issues raised.

Wednesday, May 20, 2009

Bad Faith Discovery Must Wait Until Coverage Determination

In Granada Insurance Company v. Ricks (3D09-243), the Third DCA granted certiorari and quashed the circuit court's discovery order.

"Triangle Fire, Inc. and an injured plaintiff joined in seeking insurance coverage under a liability policy issued by Granada Insurance Company for an accident allegedly caused by Triangle’s negligence. The company denied coverage...the trial judge permitted the deposition to go forward regarding the 'policies and procedures concerning claims handling by Granada'." The Third DCA quashed the order "based upon the universally applied rule that discovery which concerns only potential issues of bad faith or other purported improprieties in defending the claim are wholly impermissible unless and until it is determined that the policy indeed provides coverage."

The Third DCA also rejected the plaintiff's argument that an employee of the insurer could be deposed to determine the employees interpretation of the policy. "However, the meaning of an insurance contract is a question of law, and thus not subject to opinion testimony, this contention is wholly without merit."

Transfer of Venue Reversed for Failure to File Affidavit

In Cardellis v. Catholic Health Services, Inc. (4D08-4165), the Fourth DCA reversed the trial court's order that transferred venue to Miami-Dade County based upon forum non conveniens. The basis for the reversal was that the defendants had not filed an affidavit in support of the transfer argument.

In the trial court, the defendants argued:

that the actions which are the subjects of the litigation occurred in Dade County, discovery will occur in Dade County, the witnesses are located in Dade County, and Farinella, the Broward County resident, was sued in his capacity as the administrator of St. Anne’s in Dade County. The trial court granted the motion.

'Under the forum non conveniens statute, a plaintiff’s forum selection is presumptively correct and the burden is on the defendant to show either substantial inconvenience or that undue expense requires change for the convenience of the parties or witnesses.' Eggers v. Eggers, 776 So. 2d 1096, 1098 (Fla. 5th DCA 2001). Generally, “‘when a forum non conveniens challenge is raised, it is incumbent upon the parties to submit affidavits or other evidence that will shed necessary light on the issue of the convenience of the parties and witnesses and the interest of justice.’” Wynn Drywall, Inc. v. Aequicap Program Adm’rs, Inc., 953 So. 2d 28, 30 (Fla. 4th DCA 2007) (quoting Eggers, 776 So. 2d at 1098). 'The only exception would be where the complaint itself shows on its face that a forum non conveniens transfer is warranted.' Ground Improvement Techniques, Inc. v. Merchs. Bonding Co., 707 So. 2d 1138, 1139 (Fla. 5th DCA 1998). We find that Juana’s complaint does not warrant, on its face, a forum non conveniens transfer. Thus, the trial court erred in failing to request an affidavit from the defendants, and we reverse and remand without prejudice for the defendants to file an affidavit in accordance with this opinion.

Words of Finality Required for Appellate Court to Have Jurisdiction (Again)

In Downrite Engineering Corporation v. Overland Carriers, Inc. (3D09-876) the Third DCA dismissed the appeal because the trial court had not yet entered judgment with the traditional words of finality. The court held: "the law is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review."

Tuesday, May 19, 2009

Appeal Dismissed Because Claim was Inextricably Intertwined with Remaining Claims

In Arthur v. Smith (1D09-0981), the First DCA dismissed the appeal for lack of jurisdiction because "The claims disposed of by the orders on appeal are inextricably intertwined with the counterclaims that remain pending, and the appeal is therefore premature. Cf. Mass. Life Ins. Co. v. Crapo, 918 So. 2d 393 (Fla. 1st DCA 2006). Accordingly, the appeal is hereby dismissed as premature."

Monday, May 18, 2009

Banning Martial Arts in Prison Does Not Violate the First Amendment or the Establishment Clause

For all of the martial arts fans out there, in Marsh v. Florida Department of Corrections (08-12222) the Eleventh Circuit held it is not a violation of the First Amendment or the Establishment Clause to ban martial arts in prison. In the lower court, the appellant argued:

In his amended complaint, Marsh alleges that FCCC’s policy prohibiting the practice of martial arts infringes upon his First Amendment right to freely exercise his Zen Buddhist religion. He explains that he practices Nisei GoJu-Ryu Karate, a form of martial arts that is practiced by Zen Buddhists as a form of spiritual enlightenment. Marsh’s complaint also alleges that FCCC staff members had retaliated against him because of earlier civil rights complaints which he had filed.
The Eleventh Circuit rejected the arguments and affirmed the district court's order.

Applicable Standard When Dismissing Juror for Cause

In Samuels v. State (4D07-359 & 4D08-1) the Fourth DCA discussed the standard to be used when determining whether to excuse a juror for cause. The court held:

An appellate court reviews a ruling on a cause challenge for abuse of discretion. Singleton v. State, 783 So. 2d 970, 973 (Fla. 2001); Carratelli v. State, 832 So. 2d 850, 854 (Fla. 4th DCA 2002). “A juror should be excused for cause if there is any reasonable doubt about the juror’s ability to render an impartial verdict.” Carratelli, 832 So. 2d at 854 (quoting Singleton, 783 So. 2d at 973). A close case involving a challenge to the impartiality of a potential juror should be resolved in favor of excusing the juror rather than leaving doubt as to her impartiality. Id.

Supreme Court to Decide Whether the Sarbanes-Oxley Act is Unconstitutional

From the SCOTUS Blog, the Supreme Court agreed to decide whether the Sarbanes-Oxley Act is unconstitutional.

The SCOTUS Blog stated:

Docket: 08-861
Title: Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al.Issue: Whether the Sarbanes-Oxley Act is consistent with separation-of-powers principles - as the Public Company Accounting Oversight Board is overseen by the Securities and Exchange Commission, which is in turn overseen by the President - or contrary to the Appointments Clause of the Constitution, as the PCAOB members are appointed by the SEC.
The Court also released two opinions which are also described by the SCOTUS Blog below:
The Court has released two opinions today.

The Court has released the opinion in AT&T Corp. v. Hulteen (07-543). The decision below, which held for the employee, is reversed in a 7-2 opinion by Justice Souter. Justice Stevens filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, joined by Justice Breyer. The opinion is available here.

The Court has released the opinion in Ashcroft, Former ATT’Y Gen. v. Iqbal (07-1015). The decision below, which held for the detained foreign national, is reversed and remanded in a 5-4 opinion by Justice Kennedy. Justice Souter filed a dissenting opinion joined by Justices Stevens, Ginsburg, and Breyer. Justice Breyer filed a dissenting opinion. The opinion is available here.

Fourth DCA Reverses Contempt Order

In Anderson v. Department of Revenue (4D08-2485) the Fourth DCA reversed the trial court's order holding appellant in contempt. The court stated:
In Marcellus v. Voltaire, 649 So. 2d 944 (Fla. 4th DCA 1995) this court determined that the trial court committed reversible error when it entered an order finding that the father was in arrears in payment of his child support obligation, had the present ability to pay, and would be incarcerated if he failed to pay and shortly thereafter entered another order finding father indigent for purposes of appellate filing fees and costs. Id. at 944. We held that the finding of indigent status affirmatively established father’s inability to pay the purge. Id. (quoting Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985)). Similarly, in the present case, the trial court erred in holding Anderson in contempt and shortly thereafter finding him indigent for purposes of appeal. As evidenced by the court’s finding of indigence, Anderson did not have the present ability to pay the purge.

Fifth DCA Grants Petition for Habeas Relief

In Miller v. Murrah (5D08-4101) the Fifth DCA granted petitioner's petition for habeas corpus (immediate release had been previously ordered by the court, with the opinion to follow). The court held: "Under the facts presented in this case, no written order was rendered beyond a court action form and no finding of present ability to purge was made by the trial judge. Incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of the contempt. See Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). We grant the petitioner’s petition for writ of habeas corpus, immediate release having previously been ordered."

Fourth DCA Reverses Denial of Motion to Dismiss

On certiorari review in City of Stuart, Florida v. Monds (4D08-4740) the Fourth DCA reversed the trial courts denial of a motion to dismiss. The court stated: "At issue are counts IV–VI, causes of action for tortious interference with an advantageous business relationship—the Mondses’ employment—and an action for negligent violation of Florida Statute section 448.045 (Wrongful combinations against workers). Petitioners argue that the doctrine of absolute immunity bars the individual claims against them. We agree."

Sunday, May 17, 2009

Fifth DCA Reverses Holding, Sua Sponte, That the Circuit Court Did Not Have Jurisdiction

In DNA Center for Neurology and Rehabilitation v. Progressive American Insurance Co. (5D08-1879) the Fifth DCA, sua sponte, reversed and held that the circuit court did not have jurisdiction to enter summary judgment. The Fifth DCA held that even though the issue of subject matter jurisdiction was not raised before the lower court or on appeal, that did not prevent them from raising it sua sponte. [They cited to See Dep't of Revenue v. Daystar Farms, Inc., 803 So. 2d 892, 895 (Fla. 5th DCA 2002) (lack of subject matter jurisdiction may be raised sua sponte by an appellate court); see also 84 Lumber Co. v. Cooper, 656 So. 2d 1297, 1298 (Fla. 2d DCA 1994) (subject matter jurisdiction cannot be created by agreement, waiver, inadvertence, or a court's exercise of power)."

An amended complaint was filed in the circuit court alleging damages in excess of $500 but less than $5,000 and the Exhibits attached to the amended complaint indicated damages were less than $500. Because the circuit court only had jurisdiction over action alleging damages in excess of $15,000, it did not have jurisdiction to enter its summary judgment order.

Saturday, May 16, 2009

Second DCA on the Uniform Contribution Among Tortfeasors Act

In T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, Inc. (2D08-78) the Second DCA affirmed the trial court's order dismissing the case. The court stated:
All of these cases, however, were decided before the current version of section 768.81 was enacted. That section now provides that in negligence cases such as this one, the court shall enter judgment against each party liable on the basis of such party's percentage of fault 'and not on the basis of the doctrine of joint and several liability.' § 768.81(3). In order to allocate any fault to a nonparty, a defendant must affirmatively plead this fault and prove it at trial 'by a preponderance of the evidence.' § 768.81(3)(a) & (b).

In this case, very similar procedures are available to T & S, except that Wink would not be a named party. T & S has the opportunity to plead that Wink is partially or completely at fault and the cause of the plaintiffs' injuries. The evidence would presumably be the same whether presented in this case under the provisions of section 768.81(3) or in an action brought under the Uniform Contribution Among Tortfeasors Act. The jury would determine the same issues under section 768.81(3) as it would in a third-party action, and it is unlikely that T & S will be required to pay more than its pro rata share of any common liability. While the cases cited in this opinion may not have been overruled by the enactment of the current version of section 768.81, they appear to have been rendered obsolete, at least in cases like this one. This decision does not determine any rights T & S may have if it elects to settle the plaintiffs' claims in exchange for a general release which includes Wink.

Arbitrators Determine Challenge to Contract as a Whole - Not Court

In Tracfone Wireless, Inc. v. Blue Ocean's Distributing, LLC, 616 F. Supp. 2d 1284 (S.D. Fla. 2009), Judge Ungaro held:

1.) The district court's retain jurisdiction over an action when they stay the case pending arbitration; and

2.) The arbitrators, and not the court, determine challenges to the validity of a contract as a whole. If the challenge was specifically to the arbitration clause, the court would determine the challenge. Judge Ungaro stated: "The Supreme Court has stated that, 'a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator." (internal citations omitted).

The decision is below:

Tracfone Wireless, Inc. v. Blue Ocean's Distributing, LLC, 616 F. Supp. 2d 1284 (S.D. Fla. 2009)

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

Friday, May 15, 2009

Another Published Bankruptcy Decision from the Eleventh Circuit

In Elizabeth Chira v. Jose Saal (07-15897), the Eleventh Circuit issued a 17 page published opinion written by Judge Dubina affirming the district court and the bankruptcy court. Patrick S. Scott of GrayRobinson, P.A. was counsel of record for the appellee so I will only quote the court's opinion:
Denis and Elizabeth Chira acquired the Sheldon Beach Hotel in 1978 and operated the hotel together for over 20 years. In 1999, the couple decided to part ways, and for the past 10 years, Denis and Elizabeth have been locked in bitterly contested litigation over control of the hotel in both state and federal court. The Chiras’ state court divorce proceeding resulted in the formation of a contract for purchase of the hotel between a divorce court-appointed receiver and José Saal. Before this purchase contract was executed, the Chiras found themselves in federal court by way of Denis’s Chapter 7 bankruptcy case. The bankruptcy court approved a settlement agreement between José Saal and the Trustee of Denis’s bankruptcy estate, which calls for the performance of the Saal purchase contract, and the district court affirmed the bankruptcy court’s order. For the reasons that follow, we affirm the district court’s judgment affirming the bankruptcy court’s approval of the sale of the hotel to José Saal.


Bankruptcy Rule 9019(a) provides that “[o]n motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement.” In this circuit, a bankruptcy court evaluating a proposed settlement must consider:

(a) The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; (d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises. In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 (11th Cir. 1990) (quoting Martin v. Kane (In re A & C Prop.), 784 F.2d 1377, 1381 (9th Cir. 1986)). Courts consider these factors to determine “the fairness, reasonableness and adequacy of a proposed settlement agreement.” In re A & C Prop., 784 F.2d at 1381.

Although the bankruptcy court did not explicitly consider all four of the Justice Oaks factors in its order approving the settlement agreement, we conclude that the bankruptcy court did not abuse its discretion by approving the settlement agreement.

Wednesday, May 13, 2009

Gay Adoption: More on the Second DCA's Decision on "Same-Sex Couple" Adoption in Florida

The decision by the Second DCA on same-sex couple adoption is discussed here and here in the Miami Herald and here in the Tampa Tribune. The prior post on this blog about the gay adoption decision can be found here.

Second DCA: Refusal to Honor Same-Sex Couple Adoption Violates Full Faith and Credit Clause

Today, in Embry v. Ryan (2D08-1323), the Second DCA held that it is a violation of the U.S. Constitution to refuse to enforce a same-sex couple adoption - gay adoption - recognized by another state. The court rejected the appellee's argument that "Florida was not required to give full faith and credit to the Washington adoption because, Ryan alleges, it is contrary to the public policy of Florida prohibiting same-sex couple adoptions.
The Second DCA rejected the appellees argument finding it violates the Full Faith and Credit Clause of the Constitution.
The United States Constitution's Full Faith and Credit Clause provides as follows: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, § 1. In interpreting the Full Faith and Credit Clause, the United States Supreme Court has held that "[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land." Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998). Further, the Court held that there are no public policy exceptions to the full faith and credit which is due to judgments entered in another state. Id.
Embry therefore must be given the same rights as any other adoptive parent in Florida. Therefore, regardless of whether the trial court believed that the Washington adoption violated a clearly established public policy in Florida, it was improper for the trial court to refuse to give the Washington judgment full faith and credit.

Third DCA Finds Proposal for Settlement Enforceable

In Harris Specialty Chemicals, Inc. v. Punto Azul S.A. de C.V. (3D08-1340) the Third DCA reversed the circuit court's order that found a proposal for settlement to be ambiguous.
A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. See Fla. R. Civ. P. 1.442(c)(3); see also § 768.79, Fla. Stat. (2007). The rule does not require that a settlement proposal cover all claims between all parties involved, or that it settle all claims between the parties to the proposal. Jacksonville Golfair, Inc. v. Grover, 988 So. 2d 1225, 1227 (Fla. 1st DCA 2008). The rule merely requires that a settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008). Further, courts are urged to "use reason and common sense and interpret the offer as a whole to avoid unreasonable results." Jacksonville Golfair, 988 So. 2d at 1227.

Damages for Breach of Services Contract Determined by Lost Profits

In Marbella Park Homeowners’ Association, Inc. v. My Lawn Service, Inc. (3D07-3278) the Third DCA reversed the circuit court's order granting summary judgment based upon an improper damage calculation.

"Marbella Park asserts that the trial court erred in awarding the full amount of gross payments as damages, without holding an evidentiary hearing." The Third DCA agreed. "The measure of damages for breach of a services contract is the non-breaching party’s lost profits...Lost profits are calculated by subtracting the non-breaching party’s performance costs from the contract price...Further, the burden of proving lost profits is on the non-breaching party. Indian River Colony Club, Inc. v. Schopke Constr. & Eng’g, Inc., 619 So. 2d 6 (Fla. 5th DCA 1993). Generally, proof of performance costs necessitates an evidentiary hearing. See, e.g., Berlant v. Nat’l Bank of Fla., 527 So. 2d 910 (Fla. 3d DCA 1988)."

Third DCA Reverses Order Excusing Public Defender

In State v. Public Defender, the Third DCA reversed the circuit court's order permitting the public defender for Miami-Dade County to decline representation in future third degree felony cases.
The Court's conclusion is below:

We understand the difficulties faced by PD11. With an ever-increasing quantity of cases and a tight budget, their important task is certainly made more difficult. The office-wide solution to the problem, however, lies with the legislature or the internal administration of PD11, not with the courts.

"We believe that within the existing statutory framework there exists a method for resolving the problem of excessive caseload." In re Prosecution, 561 So. 2d at 1134. Only after an assistant public defender proves prejudice or conflict, separate from excessive caseload, may that attorney withdraw from a particular case. § 27.5303(1)(a), Fla. Stat. (2007) ("The court shall deny the [assistant public defender’s] motion to withdraw if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the indigent client.").

Tuesday, May 12, 2009

US Supreme Court to Review Two Decisions from the First DCA

As discussed on the SCOTUS Blog, the US Supreme Court granted cert and agreed to review two decisions from the First DCA. The SCOTUS Blog posted the followng information:

Title: Graham v. Florida
Docket: 08-7412
Issue: Whether the Eighth Amendment’s ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of non-homicide.
Opinion below (District Court of Appeal of Florida, First District)
Petition for certiorari
Brief in opposition

Title: Sullivan v. Florida
Docket: 08-7621
Issue: Does imposition of a life without parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?
Petition for certiorari
Brief in opposition
Petitioner’s reply

Detailed Eleventh Circuit on Preferential Transfers

In Carrier Corp. v. Buckley (08-11098) Judge Cudahy wrote a detailed published opinion. (Judge Richard D. Cudahy is a Seventh Circuit Judge sitting on the Eleventh Circuit by designation.) The opinion goes into detail about "ordinary course of business," "preferential transfers" and other bankruptcy theories.

The opinion explains the issues in great detail but concludes the trustee was entitled to recover the preferential transfer and:

1.) The payments were not in the ordinary course of business (and an explanation of this issue); and

2.) A trustee is not entitled to recover prejudgment interest when it recovers preferential transfers. However, an award of prejudgment interest is appropriate in the bankruptcy court's discretion.

Monday, May 11, 2009

First DCA Grants Rehearing and Holds Section 456.057 Does Not Violate Constitutional Rights

On Rehearing in Dannemann v. Shands Teaching Hospital and Clinics, Inc. (1D08-3923), the First DCA granted rehearing. "The order [under review] would allow the physician witnesses to discuss the decedent’s medical condition...Respondents raise the same constitutional issues that were raised in Hannon. Specifically, respondents contend that our application of section 456.057 in Hannon violates the physicians’ constitutional right to counsel protected by the free speech clause of the First Amendment and their rights under the due process clause of the Fourteenth Amendment...In Hannon, the court granted relief based upon section 456.057(6), which it could not have done had it been persuaded the statute was constitutionally infirm...Further, we note that in Acosta the Supreme Court rejected the argument that the limitations on disclosure in section 455.241(2), Florida Statutes (1993), are "somehow violative of a defendant physician’s First Amendment rights to free speech." Acosta, 671 So. 2d at 156. The petition for writ of certiorari is GRANTED and the trial court’s order is QUASHED."

Saturday, May 9, 2009

Stay of Execution Pending Appeal Reversed

In Tettamanti v. Opcion Sociedad Anonima (3D09-215) the Third DCA reversed the trial court's order staying execution on a judgment pending appeal. The plaintiff recorded a foreign judgment, entered by an Argentinian Court, in Florida.  The stay was reversed for two reasons:

1.) 55.607, Florida Statutes provides that "where the judgment debtor has appealed, or intends to appeal, in the foreign country (in this case Argentina), and has obtained a stay of the foreign judgment from the foreign court." Because the debtor had not presented any evidence to the trial court that they were appealing the foreign judgment, 55.607 did not apply.

2.) "Under the Act, the Florida judgment (which domesticated the Argentinean judgment) “shall be enforced in the same manner as the judgment of a court of this state.” § 55.604(5), Fla. Stat. (2008). To stay the Florida judgment, it will be necessary for the judgment debtors to post a bond. Fla. R. App. P. 9.310(b)(1)."

Prejudgment Interest on Fees and Costs Begins on Date of Entitlement

In Lorillard Tobacco Company v. French (3D08-1525) the Third DCA held "plaintiff’s counsel became “entitled” to the fees and costs as of the date the plaintiff obtained a judgment substantially higher than 125% of her written settlement offer, we affirm."

The holding speaks for itself, however, the facts are worth mentioning.

"The plaintiff was one of several thousand flight attendants who sued tobacco companies for second-hand exposure to smoke. On November 13, 2000, Ms. French’s attorney tendered an offer of judgment to settle her claim for $2,676. Lorillard did not accept the offer. At trial of the case in 2002, a jury awarded Ms. French $5,500,000. On September 24, 2002, the court granted a motion for remittitur and entered an amended final judgment in the amount of $500,000."

Friday, May 8, 2009

Eleventh Circuit on Judicial Immunity

Today, in Marcus Rogozinski v. Karla R. Spaulding (08-14031), the Eleventh Circuit reaffirmed that "A judge is absolutely immune from suit for actions taken in her judicial capacity, unless she acted in the clear absence of all jurisdiction...Whether a judge’s actions were taken in her judicial capacity depends on whether: “(1) the act complained of constituted a normal judicial function; (2) the events occurred in the judge’s chambers or in open court; (3) the controversy involved a case pending before the judge; and (4) the confrontation arose immediately out of a visit to the judge in [her] judicial capacity.”

Attempt to Insulate from Liability For Violations of Statute Enacted to Protect Public Policy Unenforceable

In JM Family Enterprises Inc. v. Winter Park Imports Inc. (2D07-2138) the Fifth DCA affirmed the circuit court's conclusion that a release attempting to insulate against liability from statutes enacted to protect the public is not enforceable. The court affirmed with the following citations:
See Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760 (Fla. 5th DCA 2008) (a release or exculpatory clause that attempts to prospectively insulate a party from liability for violating a statute or ordinance enacted to protect the public is generally unenforceable as against public policy); VoiceStream Wireless Corp. v. U.S. Communications, Inc., 912 So. 2d 34, 38 (Fla. 4th DCA 2005) ("a party cannot waive
liability imposed by statutory provisions that are intended to protect both an individual and the public because to do so would be contrary to public policy"); Holt v. O'Brien Imports of Fort Myers, Inc., 862 So. 2d 87, 89 (Fla. 2d DCA 2003) ("[A]n individual cannot waive the protection of a statute that is designed to protect both the public and the individual.") (quoting Coastal Caisson Drill Co. v. Am. Cas. Co., 523 So. 2d 791, 793 (Fla. 2d DCA 1988), approved, 542 So. 2d 957 (Fla. 1989)); see also, 11 Fla. Jur. 2d Contracts § 126 ("[W]here public policy would be frustrated by permitting the enforcement of an exculpatory clause that effectively immunizes a party from liability from breach of a positive statutory duty to protect the well-being of others, the exculpatory clause will not be enforced."); Torres v. Offshore Professional Tour, Inc., 629 So. 2d 192, 194 (Fla. 3d DCA 1993) (same); John's Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fla. 2d DCA 1979) (same).

Thursday, May 7, 2009

Action Cannot be Dismissed if Maintaining on Behalf of Real Party in Interest

Granting rehearing, in Juega as Trustee of Davidson Trust v. Davidson (3D05-2785) the Third DCA addressed Florida's real party in interest rule. The real party in interest rule, Fla. R. Civ. P. 1.210(a), states:

Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.
"Thus, where a plaintiff is either the real party in interest or is maintaining the action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing."

Third DCA Answers Two PIP Certified Questions

In United Automobile Insurance Company v. Millenium Diagnostic Imaging Center, Inc. (3D08-772) the Third DCA answered two certified questions from the county court.

Answer to Question I:

Based on the unambiguous language of section 627.736(4)(b) and applicable case law, we answer the certified question, as phrased by the trial court, in the affirmative, and conclude that the thirty-day time period set forth in section 627.736(4)(b) does not apply to claims for unrelated, unreasonable, or unnecessary treatment. Therefore, an insurer may challenge such treatment at any time, and is permitted to rely on a report, obtained pursuant to section 627.736(7)(a), even if the report is obtained more than thirty days after the claim was submitted. The insurer, however, must keep in mind that if its challenge fails, it will be liable for interest and attorney’s fees.

Answer to Question II:

The second certified question addresses whether the report, obtained by the insurer pursuant to section 627.736(7)(a) to deny PIP benefits on the ground that the treatment was not reasonable, related, or necessary, was a "valid report," as the reviewing physician’s report was not based on his personal physical examination of the insured, but instead was based on the review of the insured’s medical records, including IME reports.

[U]nder section 627.736(7)(a), the reviewing physician’s report issued to deny PIP benefits may be based on either a physical examination of the insured by the physician submitting the report or a physical examination of the insured by "another physician," such as an IME physician.

Award of Fees and Costs Pursuant to 57.105 Reversed

In Ainslee R. Ferdie, Law Offices of Ainslee R. Ferdie v. Isaacson (4D0-1212) the Fourth DCA reversed two circuit court orders requiring the former client and the law firm itself to each pay 50% of the opposing party’s attorneys’ fees. The Fourth DCA held "Because the trial court did not conduct an evidentiary hearing or otherwise make an express finding that the law firm was not acting in good faith, we must reverse the trial court’s order. We also reverse the trial court’s assessment of costs against the law firm because section 57.105 does not permit it."

The court also noted that an award of entitlement to fees is not an appealable order until the amount of the award is determined. "See Green v. Callahan, 664 So. 2d 21, 23 (Fla. 4th DCA 1995) (A party does “not waive his right to contest the issue of entitlement on appeal by failing to appeal the order granting entitlement to attorney’s fees, because the postjudgment order awarding fees was not appealable until the amount of fees was determined.”)

Wednesday, May 6, 2009

Part II: Insufficient Contacts to Establish Personal Jurisdiction

In two decisions by two different panels relating to the same dispute, the Fourth DCA held there were not sufficient contacts to establish personal jurisdiction. The other decision is discussed here.

The Fourth DCA held: "Because the facts pled in the complaint do not constitute the ommission of a tortious act within Florida or otherwise establish the requisite minimum contacts with the state, we reverse."
The issue is discussed in more detail in the related post. This panel concluded: "The second amended complaint did not allege nor could it have alleged—based on the facts of this case—that the tortious interference occurred within Florida. This is fatal to Ocean World’s claim. Nothing in the contracts contemplated payment or performance in Florida, nor is Florida mentioned anywhere in the contracts. Any tortious interference with the contracts and business relationships occurred in the Dominican Republic or, alternatively, in Japan, the countries in which the contracts were to be performed. The The electronic communications into Florida did not give rise to a cause of action. Cases interpreting Wendt have held that the communication into Florida must be tortious in and of itself, such as defamatory statements or negligent legal advice to a client."

Since the first prong of the personal jurisdiction test was not satisfied it is not necessary to go to the second. That being said, the panel noted that the second prong would not have been satisfied either as "exercise of jurisdiction over Reiss would not comport with due process."