Tuesday, June 30, 2009

Justice Wells On "Intersection," WMFE-FM 90.7 Talk Radio

GrayRobinson attorney Charles Wells was featured on the "Intersection" program on WMFE-FM.  You can listen to the interview by clicking on THIS link.  The press release is below.

ORLANDO, Fla. (June 30, 2009) -- On June 24, 2009, Justice Wells was interviewed on "Intersection," WMFE-FM 90.7 Talk Radio. Justice Wells sat on the state's highest court during some of its most controversial cases in recent times. Those cases included the contested 2000 Presidential Election, the Terri Schiavo case and others. Host Mark Simpson spoke with Justice Wells about the experience.

Eleventh Circuit on the Law of the Case Doctrine

In Thomas v. United States (06-15651), the Eleventh Circuit reversed the District Court's application of the law of the case doctrine. The opinion is based upon the criminal defendants attempt to collaterally attack his conviction and sentence pursuant to 28 U.S.C. § 2255, however, the relevant portion here discusses the law of the case doctrine.

“Under the law of the case doctrine, both district courts and appellate courts are generally bound by a prior appellate decision in the same case.” Alphamed, 367 F.3d at 1285-86 (citation omitted). “The doctrine operates to preclude courts from revisiting issues that were decided explicitly or by necessary implication in a prior appeal.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005) (per curiam) (citation omitted). “The doctrine is based on the premise that an appellate decision is binding in all subsequent proceedings in the same case unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice.” Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1510 (11th Cir. 1987). The law of the case doctrine, however, “does not bar consideration of matters that could have been, but were not, resolved in earlier proceedings.” Luckey v. Miller, 929 F.2d 618, 621 (11th Cir. 1991) (citation omitted); see also Lehrman v. Gulf Oil Corp., 500 F.2d 659, 663 (5th Cir. 1974) (providing that the law of the case doctrine “does not include 3 all questions which were present in a case and which might have been decided but were not”). Although courts generally refuse to reconsider issues decided previously on appeal, it is within a court’s discretion to do so. See Lehrman, 500 F.2d at 662-63 (distinguishing the law of the case doctrine from res judicata and noting that the former “does not preclude a second review if considerations of substantial justice warrant it”); Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984) (noting that the law of the case doctrine “is not an inexorable command”) (citation and quotation marks omitted).

Eleventh Circuit Affirms Remand Based Upon Forum Selection Clause

In Emerald Grande, Inc. v. Clatus Junkin (08-14599), the Eleventh Circuit affirmed a district court's order remanding to state court based upon a forum selection clause.

In a footnote, the court noted: "The order of remand was not based on a lack of federal jurisdiction or defective removalprocedure; appellate review of a remand order enforcing a forum-selection clause is not barredby 28 U.S.C. § 1447(d). See Global Satellite Communication Co. v. Starmill U.K. Ltd., 378 F.3d1269, 1271 (11th Cir. 2004)."


The enforcability of a forum-selection clause in a diversity jurisdiction case is governed by federal law; see P&S Business Machines, Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11 Cir. 2003); and ordinary principles th of contract interpretation apply. See Global Satellite Communication Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004). A forum-selection clause may validly and effectively waive the right to remove. See id. at 1272. When a contract contains a valid forum selection clause -- here, neither party argues invalidity -- courts typically classify the clause as permissive or mandatory. See Florida Polk County v. Prison Health Services, Inc., 170 F.3d 1081, 1083 n.8 (11th Cir. 1999). “A permissive clause authorizes jurisdiction in a designated forum but does not prohibit litigation elsewhere. A mandatory clause, in contrast, dictates an exclusive forum for litigation under the contract.” Global Satellite, 378 F.3d at 1272 (internal quotation and citation omitted).


[The contract] mandates that the “Okaloosa Courts” “will be the venue for any dispute, proceeding, suit or legal action concerning the interpretation, construction, validity, enforcement, performance of, or related in any way to this Contract or any other agreement or instrumentexecuted in connection with this Contract.” And Article IX provides further that “each party waives any and all rights ... to object to jurisdiction or venue of the Okaloosa Courts.” In contrast, the language in Article VIII is permissive: it mandates no specific forum. Article VIII is a general consent to personal jurisdiction.


Junkin makes much of the absence of a clause equivalent to Article IX in the Furnishings Contract. Because the Furnishings Contract does have a forum selection clause that tracks Article VIII, and because Emerald was also seeking specific performance of that agreement, Junkin argues that removal must be proper for claims arising under the Furnishing Contract. But the Purchase Contracts and Furnishing Contract were executed together and should be read together. See Hopfenspirger v. West, 949 So.2d 1050, 1053 (Fla.Dist.Ct.App. 2006). And Article IX of the Condominium Contracts selects the Okaloosa Courts as the venue for disputes related to the Condominium Contracts or “any other agreement or instrument executed in connection” with the Condominium Contracts. Remand of all claims relating to the Condominium Contracts and the Furnishings Contract is due to be affirmed.

Deposition Exhibit Triggered Removal Deadline

The Health Law Plan Blog on timeliness of removal:

Tyson takes issue with the Magistrate Judge’s conclusion that removal was untimely. The Magistrate Judge found that Tyson was on notice of the removability of the action on December 30, 2008. Rao’s deposition was taken on that date and, during the deposition, an offer letter (to Rao from his current employer Foster Farms) was introduced as a deposition exhibit by Tyson.).

Rao v. Tyson Foods, 2009 U.S. Dist. LEXIS 49466 (E.D. Cal. June 12, 2009).

The jousting in this dispute over a non-competition clause involves several noteworthy issues. Though this is a diversity case, the question of timely removal offers some insights. In addition, the case reflects competing efforts at controlling venue, with the employer, Tyson, suing in Arkansas, and the employee seeking declaratory relief in before a California court.

The plaintiff, Shivram Rao (”Rao”), filed a civil action against his former employer, Defendant Tyson Foods, Inc. seeking declaratory relief invalidating a non-competition clause. The action was initially filed in state court, but was removed by Tyson on the basis of diversity jurisdiction. Rao filed a motion to remand.

The removal came up in this way. On December 30, 2008, Tyson took Rao’s deposition. Tyson introduced an offer letter from Rao’s new employer, Foster Farms, as an exhibit.

The parties at the deposition also stipulated that the amount of compensation in the offer letter was the amount that Rao was receiving at the time of the deposition. The offer letter shows that Rao’s salary with Foster Farms easily exceeeds the jurisdictional minimum for this Court.
Since the notice of removal was filed on February 12, 2009, if the letter constitutes an “other paper” under 28 U.S.C. § 1446(b), then Tyson’s removal was untimely.

[Background note: 28 U.S.C.A. § 1446(b) states that notice of removal may be filed within 30 days after receipt by the defendant of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is or has become removable.]

The district court agreed with the magistrate judge that the deposition exhibit was notice that the case was removable.

. . . the Ninth Circuit has held that a settlement letter, Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002), as well as a letter sent between attorneys in preparation for mediation, Babasa v. Lenscrafters, Inc., 498 F.3d 972, 975 (9th Cir. 2007), were sufficient to put the respective defendants on notice that the amount in controversy exceeded that required for federal diversity jurisdiction. In this case, the offer letter was made an exhibit to Rao’s deposition and the parties stipulated that the amounts stated therein represent Rao’s current compensation. The offer letter expressly identifies Rao’s salary and the dollar value of other benefits and thus, is sufficiently similar to the settlement letter of Cohn and the letter in preparation of mediation in Babasa to put Tyson on notice of the value of the declaratory relief to Rao. This objection is overruled.

Note: For some discussion of the ERISA parallel to the timeliness issue, see the discussion in :: Challenge To Factual Basis Set Forth In Removal Notice Rejected

Under the complete preemption doctrine, the basis for removal will often not be apparent from the face of the complaint. Cf. Peters v. Lincoln Elec. Co., 285 F.3d 456 (6th Cir. 2002) (plaintiff’s responses to deposition questioning may constitute an “other paper”.

Conflicting Authorities - The district court noted that the authorities are split on the issue, stating:

Tyson is correct that some courts hold that a deposition is not an “other paper” or that courts have indicated that the issue is unclear. E.g., Kiedaisch v. Nike, Inc., 2004 U.S. Dist. LEXIS 2828, *5 n.1 (D. N.H. 2004); Smith v. Equitable Life Assur. Co., 148 F.Supp.2d 1247, 1253 (N.D. Ala. 2001); O’Brien v. Powerforce, Inc., 939 F.Supp. 774, 781 (D. Haw. 1996); Fillmore v. Bank of Am., N.T. & S.A., 1991 U.S. Dist. LEXIS 6640, *9 n.4 (N.D. Cal. 1991).

But the court found that the Ninth Circuit’s position was clear based upon Karambelas v. Hughes Aircraft, 992 F.2d 971 (9th Cir. 1993), a decision which rejected the argument that deposition testimony triggered the 30-day clock on the facts presented:).

However, in Karambelas v. Hughes Aircraft, 992 F.2d 971 (9th Cir. 1993), the Ninth Circuit addressed whether the plaintiff’s deposition testimony could form the basis for removal. Karambelas held that the particular deposition testimony was too speculative to show that the plaintiff was alleging an ERISA claim and thus, removal was improper. See id. at 974-75.

And from the Karambelas opinion:

We are also aware of the authorities which permit removal based upon facts developed at a deposition. See, e.g., Felton, 940 F.2d at 507; Zawacki v. Penpac, Inc., 745 F. Supp. 1044, 1047 (M.D. Pa. 1990); Riggs v. Continental Baking Co., 678 F. Supp. 236, 238 (N.D. Cal. 1988); Brooks v. Solomon Co., 542 F. Supp. 1229, 1230-31 (N.D. Ala. 1982).

The Ninth Circuit distinguished these authorities, the district court observed, stating:

The Ninth Circuit distinguished those cases because the testimony was clear and non-speculative, unlike Karambelas’s deposition. See id. at 974-75. Riggs, Zawacki, and Brooks are all lower court cases that expressly held that a deposition can constitute an “other paper” under § 1446(b). Zawacki, 745 F.Supp. at 1047; Riggs, 678 F.Supp. at 238; Brooks, 542 F.Supp. at 1230-31. Felton did not expressly discuss § 1446(b) because the plaintiffs in that case had failed to preserve any error associated with removal. See Felton, 940 F.2d at 907. Nevertheless, the Karambelas court characterized Felton as a case that permits removal based upon facts developed at a deposition. Thus, the Ninth Circuit acknowledged cases that expressly hold that depositions are “other papers” under § 1446(b), characterized one of its own prior cases as an authority that permits removal based on facts from a deposition, examined Karambelas’s deposition testimony, and ultimately distinguished the quality of Karambelas’s deposition testimony from those in Felton, Zawaki, Riggs, and Brooks; the Ninth Circuit did not indicate that depositions were not “other papers.” In light of Karambelas, the law does not seem unclear in the Ninth Circuit — depositions, if sufficiently definite/non-speculative, may form the basis for removal and thus, is an “other paper” under 28 U.S.C. § 1446(b). That lower courts from other jurisdictions have concluded that depositions are not “other papers” does not make the law in the Ninth Circuit “unclear.”

Opinions from the Supreme Court

Opinions from the Supreme Court (from SCOTUS):

The Court has released the opinion in Cuomo v. The Clearing House Ass’n, L.L.C. (08-453), holding that states have the power to police discrimination in mortgage lending. The decision below is affirmed in part and reversed and part in a 5-4 opinion by Justice Scalia. Justice Thomas filed an opinion concurring in part and dissenting in part, joined by Chief Justice Roberts and Justices Kennedy and Alito. The opinion is available here.

The Court has released the opinion in Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328), holding for the plaintiff firefighters that the City of New Haven cannot be sued for disparate liability. The decision below is reversed and remanded in a 5-4 opinion by Justice Kennedy. Justice Scalia filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justices Scalia and Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined. The opinion is available here.

The Court has held that Citizens United v. Federal Election Commission (08-205) will be reargued on Wednesday, September 9 at 10 a.m. The Court has issued the following written order: “The parties should address the following question: ‘For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?’” The order is available here.

Justice Souter

From the SCOTUS Blog:

Here is a copy of the Chief Justice’s letter from all of the current Justices and retired Justice Sandra Day O’Connor expressing their well wishes to retiring Justice David H. Souter.

Here is a copy of Justice David H. Souter’s replying letter.

Supreme Court Grants Certiorari in Seven Cases

The Supreme Court granted certiorari in seven cases today. The briefs for a couple of them, and a short description is pasted from the SCOTUS Blog below:

Docket: 08-803, 08-810, 08-826
Title: Alfieri v. Conkright; Conkright v. Frommert; Pietrowski v. Conkright
Issue: Whether the statutory requirements for releases of claims under the Older Workers Benefit Protection Act are applicable to ERISA claims; whether Firestone deference applies to a plan administrator’s interpretation of benefits when issued outside of the administrative claims process; and whether a totality-of-the-circumstances test should be used to determine if an employee has “knowingly and voluntarily” waived pension benefits by signing a boilerplate release.

Docket: 08-661
Title: American Needle Inc. v. NFL, et al
Issue: Whether NFLP, the NFL, and the teams functioned as a “single entity” when granting the company an exclusive headwear license and therefore could not violate Section 1 of the Sherman Act, 15 U.S.C. 1, which requires proof of collective action involving “separate entities.”
Petition for certiorari
Brief of respondents NFL
Petitioner’s supplemental brief
Brief amicus curiae of NHL in support of respondents
Brief amicus curiae of NBA in support of respondents
Brief amicus curiae of the United States (recommending that certiorari be denied)

Docket: 08-1214
Title: Granite Rock Company v. nternational Brotherhood of Teamsters, et al.
Issue: Whether a federal court has jurisdiction to determine collective bargaining agreement formation and whether a §301(a) action is available against a union that is not a direct signatory to the collective bargaining agreement.
Petition for certiorari
Brief in opposition of respondents International Brotherhood of Teamsters
Brief in opposition of respondent Teamsters Local 287
Petitioner’s reply
Brief amicus curiae of Center on National Labor Policy, Inc.
Brief amicus curiae of Associated General Contractors of America, Inc.
Brief amicus curiae of National Association of Manufacturers

Prohibition Granted to Prevent Trial Court from Presiding Over Case

In Moskovits v. Crystal House, Inc. (3D09-1705), the Third District granted a writ of prohibition to prevent the trial judge from presiding over the case. The court stated "We have reviewed the verified motion to disqualify, and conclude that the motion was legally sufficient, and therefore, it should have been granted. See Fla. R. Jud. Admin. 2.330(d)(1)-(2). Accordingly, we grant the writ of prohibition, but are confident that it will be unnecessary to formally issue the writ."

Proposals for Settlement and Real Estat Commission

In Eastern Atlantic Realty and Investment Inc. v. GSOMR, LLC (3D06-685 & 3D06-1839), the Third District "affirm[ed] the trial court’s final judgment against Eastern, and...reverse[d] the trial court’s denial of attorneys’ fees and costs." The case involved an appeal "from a final judgment determining it was not entitled to a real estate brokerage commission...Biscayne Joint Venture, Ltd. ("BJV") appeals from a final order denying an award of attorneys’ fees and costs."

Where contractual provisions are clear and unambiguous, these terms control and must be given their plain and ordinary meaning. See Idearc Media Corp. v. M.R. Friedman & G.A. Friedman, P.A., 985 So. 2d 1159, 1161 (Fla. 3d DCA 2008). Given that paragraph 19 of the GRO agreement states that the agreement is "the entire agreement between the parties with respect to the transaction contemplated herein, and it supersedes all prior understandings or agreements between the parties," Eastern cannot recover other than as contemplated by the GRO agreement. Indeed, no binding agreement was formed between GRO and BJV as the initial condition precedent – BRI’s waiver – never occurred...Moreover, GRO relinquished its rights under the GRO agreement pursuant to a global settlement agreement. Because the "purchase and sale of the property as contemplated under the [GRO] agreement" did not occur, Eastern is not entitled to a commission.

Cross Appeal

Section 768.79, Florida Statutes (2007), provides for an award of attorneys’ fees and reasonable costs in any civil action for damages where a defendant files an offer of judgment that is not accepted by the plaintiff within thirty days...While Rule 1.442 requires a proposal for settlement to state with particularity any relevant conditions and all non-monetary terms, the Rule "merely requires that the 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), review denied, 5 So. 3d 669 (Fla. 2009) (quoting Nichols, 932 So. 2d at 1079). Moreover, a proposal for settlement does not require more than "a summary of the proposed release." Nichols, 932 So. 2d at 1079.

Where "two offerors make a proposal for settlement to one offeree, the offeree is entitled to know the amount and terms of the offer that are attributable to each offeror in order to evaluate the offer as it pertains to that party." Allstate Ins. Co. v. Materiale, 787 So. 2d 173, 175 (Fla. 2d DCA 2001). The plain language of Rule 1.442(c)(3) only requires apportionment if the proposal is made jointly by several parties. Because the proposal at issue here was made solely by BJV, no apportionment between BJV and GSOMR was required.

Accordingly, we affirm the trial court’s finding that Eastern was not the procuring cause of the sale and was not entitled to a broker’s commission. As to the cross-appeal, we reverse and remand for a determination of BJV’s reasonable attorneys’ fees and costs.

Second District Reverses Directed Verdict

In Hirst v. Segrest Farms Inc. (2D08-4183), the Second District reversed the trial court's grant of a directed verdict in favor of the defendant "concluding that the jury should have been allowed to decide this case. There were differences in the witnesses' testimonies as to where the truck was stopped and how long it had been stopped before the collision. Given the undisputed facts that the driver had an unobstructed view in broad daylight and failed to see Mr. Hirst approaching, we cannot say that as a matter of law the driver was not negligent. " 'Florida law cautions against a motion for directed verdict in negligence cases since the evidence to support the elements of negligence are frequently subject to more than one interpretation.' " Nunez v. Lee County, 777 So. 2d 1016, 1016 (Fla. 2d DCA 2000) (quoting Regency Lake Apartments Assocs., Ltd. v. French, 590 So. 2d 970, 972 (Fla. 1st DCA 1991)). Because the evidence was not universally in favor of the defendants and presented potentially varying inferences, it was for the jury to decide who was at fault as well as the percentage of fault to attribute to either Mr. Hirst or Mr. McCormack."

Initiation of Significant Discovery Waived Right to Arbitration

Sitting en banc in Green Tree Servicing, LLC. v. McLeod (2D08-2978), the Second District affirmed the circuit court's order concluding that the initiation of significant discovery waived the right to arbitration.

"In determining whether a dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived."...

"Waiver" has been defined "as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right." Raymond James Fin. Servs., Inc. v. Saldukas (Saldukas II), 896 So. 2d 707, 711 (Fla. 2005). The general definition of waiver is applicable to the right to arbitrate...

It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration...and by moving for summary judgment.

Both the Third District and the Fifth District have unequivocally held that propounding discovery directed to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration...The First District and the Fourth District have not ruled on the question of whether propounding discovery directed to the merits of pending litigation, by itself, results in a waiver of the right to arbitration...But the First District and the Fourth District have held that a party waives its right to arbitration by propounding discovery directed to the merits of pending litigation and also engaging in other actions inconsistent with arbitration.

[Discussing Merrill Lynch Pierce Fenner & Smith, Inc. v. Adams, 791 So. 2d 25, 26 (Fla. 2d DCA 2001), the court stated] The majority offered three reasons in support of its legal conclusion. First, referring to dismissals for failure to prosecute under Florida Rule of Civil Procedure 1.420, the majority said that "it is questionable whether discovery, including depositions, even constitutes record activity." Id. at 26 (majority opinion). Second, the majority explained that "if taking a deposition is litigation, a similar procedure is available to appellees under the arbitration code, and therefore, [appellees'] acts were not inconsistent with arbitration." Id. Third, the majority observed that it had "found no case law which would require a denial of appellees' right to arbitration based on their participation in discovery."

[Returning to the case before the court, the Second District concluded:]

[Contrary to Merrill Lynch, where the party participated in discovery which does not constitute record activity] Green Tree filed a motion to compel in order to enforce its discovery requests, and a motion to compel does constitute record activity.

(1) Discovery as record activity

Here, the majority asked the wrong question. The issue of whether discovery constitutes "record activity" for the purpose of avoiding a dismissal for failure to prosecute under rule 1.420 does not have any bearing on the question of whether a party may waive its right to arbitration by propounding discovery related to the merits of the case. Instead, the appropriate inquiry is whether the party's participation in such discovery is activity that is inconsistent with the right to arbitration. See Saldukas II, 896 So. 2d at 711. This inquiry has nothing to do with record activity. Action that is inconsistent with the right to arbitration may occur outside the case file as well as in it...It follows that the first reason offered by the Merrill Lynch majority in support of its conclusion is unsound.

(2) The availability of discovery in arbitration

In accordance with section 684.15(2), depositions and discovery are available in arbitrations conducted under the FIAA. However, in order to take a deposition or propound discovery requests, one must first obtain an appropriate order from the arbitral tribunal. Section 684.15(2) provides that the arbitral tribunal "may order depositions to be taken or other discovery obtained." (Emphasis added.) Thus a party's ability to engage in discovery in FIAA arbitration is subject to the discretion of the arbitral tribunal...a party's ability to take depositions and to propound discovery requests is generally much more limited in arbitration than it is under the Florida or the federal civil rules...In view of the marked differences concerning the availability of depositions and discovery in arbitration and litigation, the second reason offered by the Merrill Lynch majority equating the availability of depositions in both arbitration proceedings and judicial proceedings is also unsound.

(3) The existing precedent

The Merrill Lynch majority bolstered its legal conclusion by noting that it had "found no case law which would require a denial of appellees' right to arbitration based on their participation in discovery." Merrill Lynch, 791 So. 2d at 26. However, in a series of cases decided before the Merrill Lynch opinion issued, the Third District had held that a party's participation in discovery was sufficient to operate as a waiver of the right to arbitration...To summarize, we conclude that the reasons offered by the Merrill Lynch majority for concluding that participation in discovery related to the merits of pending litigation is not inconsistent with the intent to arbitrate were not well founded. Furthermore, the conclusion reached by the Merrill Lynch majority is contrary to the case law in the Third District and the Fifth District. Accordingly, we now hold that a party's participation in discovery related to the merits of pending litigation is activity that is generally inconsistent with arbitration. Such activity—considered under the totality of the circumstances—will generally be sufficient to support a finding of a waiver of a party's right to arbitration. We recede from Merrill Lynch to the extent that it is inconsistent with the rule that we now adopt.

The Application of the Rule that We Adopt Today to the Facts of This Case

Consistent with the rule that we adopt today, we hold that competent, substantial evidence supports the circuit court's conclusion that Green Tree waived its claimed right to arbitrate Mrs. McLeod's claims by participating in discovery related to the merits of the pending litigation. Green Tree's request to produce asked Mrs. McLeod to produce twenty-eight categories of documents related to the merits of her pending claims. Green Tree's three separate sets of interrogatories propounded a total of forty-five questions—not including subparts—to be answered under oath by Mrs. McLeod. All of these interrogatories pertained to the merits of her claims. As the circuit court noted, the request to produce and the interrogatories were not promptly withdrawn but remained pending for several months. Later, Green Tree filed a motion to compel discovery responses and scheduled a hearing on the motion...As another court has written in a similar context, "[t]he courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration."

Monday, June 29, 2009

Second District on the Interstate Land Sales Full Disclosure Act

In Plaza Court, L.P. v. Baker-Chaput (5D08-899 & 5D08-1188), the Fifth District affirmed the trial court's conclusion relating to the Federal Interstate Land Sales Full Disclosure Act "ILSFDA."

The Facts

On May 6, 2005, Baker entered into a purchase agreement with Plaza for the preconstruction purchase of a condominium unit for a purchase price of $447,900.00. The purchase agreement required a deposit of $22,395.00 upon execution of the agreement as well as a cash deposit of $22,395.00 within fifteen days of the effective date of the purchase agreement. In April 2007, Baker and Plaza agreed, through a special addendum to the purchase agreement, to add O'Brien as a purchaser of the condominium unit.

On July 31, 2007, Baker sent Plaza a letter demanding rescission of the purchase agreement pursuant to ILSFDA. Plaza responded by letter, rejecting Baker's demand for rescission. On October 17, 2007, Baker filed suit. Baker alleged that Plaza violated ILSFDA by (1) failing to provide him with a property report, (2) failing to provide an unconditional commitment in the purchase agreement to complete construction of the condominium unit within two years, and (3) failing to complete construction of the condominium unit within two years.

The Issue on Appeal

The issue before this Court is whether the trial court properly found that Baker and O'Brien were entitled to judgment as a matter of law. On appeal, Plaza argues that the trial court erred in holding that Baker's and O'Brien's claim for rescission was timely. Even though Baker filed suit within the three-year statute of limitations provided in 15 U.S.C. § 1711(b), Plaza contends that the trial court's decision disregarded the deadline contained in 15 U.S.C. § 1703(c), requiring exercise of the right to revoke within two years of executing the purchase agreement.

The Holding

In essence, ILSFDA intends to provide an exemption where a developer provides a purchaser with an unconditional commitment to construct a condominium unit within two years. If the developer does not qualify for this exemption, the developer is required to: (1) provide a property report to a purchaser prior to the signing of a purchase agreement, and (2) clearly inform the purchaser, in the purchase agreement, of his right to revoke within two years if the required property report is not provided.


Because Plaza is not exempt from ILSFDA, we next must determine whether the time limits contained within ILSFDA were met. The trial court concluded that Baker and O'Brien were not time-barred because they filed suit within the three-year statute of limitations in § 1709. The trial court did not apply the two-year time limit under § 1703 for exercise of the right of rescission provided in the statute as the remedy for the developer's failure to provide a property report. It is undisputed that there was no rescission within the two years after execution of the purchase agreement. The failure to exercise the right of rescission within the two-year time limit is not curable by filing suit within the three-year statute of limitations. The right to rescind is expressly limited and, if the time limit is not met, the right of rescission expires. See Taylor v. Holiday Isle, LLC, 561 F. Supp. 2d 1269, 1273 (S.D. Ala. 2009).

Although there is much in Taylor with which to agree, we are bound to separate from its analysis on the last issue – the effect of the failure of the developer to include § 1703(c)'s required notice of the two-year limit on the right of rescission for the failure to provide a property report. The Taylor court reasoned that the failure of the developer to provide the statutorily required "clear" notice of the two-year right of rescission could not affect the developer's right to enforce the limitation because the statute did not include any remedy for violation other than, perhaps, the damages remedy in § 1709. The Taylor court also treated the two-year rescission right as a statute of limitations and concluded that the "extraordinarily limited" circumstances the law recognizes to avoid a statute of limitations could not apply, in part, because the two-year limitation is contained within the statute and everyone is expected to know the law. 561 F. Supp. 2d at 1274-75.

As to the statute of limitations analysis, we do not accept the premise that the provision at issue is a statute of limitations. A statute of limitations sets the outer limits for the commencement of litigation and this provision does not do that. This is a two year right of rescission and upon timely exercise, the statute of limitations for bringing suit to enforce the right is three years from the date of purchase. We see nothing in the statutory rescission right to which the "equitable tolling" analysis of Taylor should pertain. We also note that Judge Hurley in the Southern District of Florida has quite recently reached a similar conclusion in Jankus. 2009 WL 961154 at *5. The conclusion reached by the Jankus court was that the two-year right of rescission would not begin to run until proper notice of the right to rescind was given, up to expiration of the three-year statute of limitations. For the reasons well described in the Jankus opinion, this analysis is superior to the view taken by the Taylor court, which effectively holds the developer harmless for the failure to give the required notice. The result in Jankus is consistent with Florida law. See Engle Homes v. Krasna, 766 So. 2d 311 (Fla. 4th DCA 2000). Because there is no suggestion that Plaza gave the statutorily required notice to Baker and O'Brien prior to their filing suit within the three-year statute of limitations, we affirm.

Motions for Extension of Time in the Third District

The Third District has posted an "Important Notice to Counsel" on its web site. The Notice, which can be found here, states:


Counsel are to provide self-addressed, stamped envelopes with all motions filed with the Court. In addition, when filing a motion for extension of time to file a brief, counsel are to provide copies of the motion for all parties involved in the appeal.

If counsel does not provide copies of the motion for extension of time to file a brief and self-addressed, stamped envelopes, the Clerk will not notify counsel whether the extension of time for the filing of the brief has been granted. However, if the extension of time has been granted, the extension will be posted on the Court’s on-line docket.

Mandatory Venue Clauses are Permissible in Florida

In Travel Express Investments Inc. v. AT&T Corp. (5D08-2504), the Fifth District addressed "whether a forum selection clause, which provides that '[t]he parties consent to the exclusive jurisdiction of the courts located in New York City, USA,' is mandatory or permissive."

The Court stated:

In order to “‘provide a degree of certainty to business contracts by obviating jurisdictional struggles’” and to give the parties to a contract the ability “‘to tailor the dispute resolution mechanism to their particular situation,’” the Florida courts recognize the right of contracting parties to select and agree on a forum in which to resolve future disputes.


Mandatory forum selection clauses require that suit be filed in the forum named in the clause. Golden Palm Hospitality, 874 So. 2d at 1236. “As a general principle, a trial court must honor a mandatory forum selection clause in a contract in the absence of a showing that the clause is unreasonable or unjust.”...On the other hand, permissive forum selection clauses are essentially a “consent” to jurisdiction or venue in the named forum and do not exclude jurisdiction or venue in another forum.


This court recently reiterated the test to be applied when determining whether a clause is permissive or mandatory:

The general test for determining whether a clause is mandatory or permissive is the use by the parties of language indicating “exclusivity.” Golden Palm Hospitality, 874 So. 2d at 1236. “Absent such language, the clause will be considered permissive.” Id. If the forum selection clause “state[s] or clearly indicate[s] that any litigation must or shall be initiated in a specified forum,” then it is mandatory. Shoppes L.P. v. Conn, 829 So. 2d 356, 358 (Fla. 5th DCA 2002). If, on the other hand, a venue clause is determined to be permissive, then it is “nothing more than a consent to jurisdiction and venue in the named forum and do[es] not exclude jurisdiction or venue in any other forum.” Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc, 894 So. 2d 288, 289 (Fla. 3d DCA 2005); see Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273, 274-75 (Fla. 1987).


The clause in the instant case specifically provides that the parties consent to “the exclusive jurisdiction” of the New York courts. This exclusivity provision clearly makes this clause unambiguous and mandatory. Moreover, we see nothing in the record to suggest that enforcement of this clause would be unfair or unjust.


Accordingly, we reverse the order denying the motion to dismiss for improper venue and remand for entry of an order dismissal.

Eleventh Circuit Reverses Injunction Prohibiting Florida From Enforcing Prohibition From Soliciting at Polls

In Citizens for Police Accountability Political Committee v. Browning (08-15115), the Eleventh Circuit reviewed a decision from the Middle District of Florida that barred enforcement of Florida Statute § 102.031(4).

"Florida Statute § 102.031(4) says that no person may solicit voters 'within 100 feet of the entrance to any polling place . . . or early voting site,' and broadly defines “solicit” to include, among other things, 'seeking or attempting to seek a signature on any petition[.]' Fla. Stat. §§

Reversing the district court, the Eleventh Circuit concluded:

We accept that the right to engage in political discourse is “the essence of self-government.” Garrison v. Louisiana, 85 S. Ct. 209, 216 (1964). But voting is about the most important thing there is. And as history has taught us, the right of political discourse is far from absolute: it must at times step aside so other freedoms similarly pivotal to our republic can thrive. The Florida statute, which balances the right to engage in political speech against the right to vote without interference and harassment, represents one of those times. We stress the short time (a few days a year) and small area (less than a football field) in which the Florida statute suppresses some political speech around the polls; Plaintiffs are free to solicit signatures unencumbered most days a year and to solicit signatures outside the solicitation-free zone all days a year. And by the way, we are not alone in our decision: other courts, in cases involving petitions, have also upheld statutes establishing solicitation-free zones around polling places. We believe that the sanctity of the voting process and 18 the abuse it has historically faced must allow the Florida legislature to exercise some foresight, to take precautions, and to prohibit questionable conduct near polling places before that conduct proves its danger; a compromised election is too great a harm to require otherwise.

We, therefore, conclude today that the Florida statute does not violate the First Amendment by banning Plaintiffs from engaging in exit solicitation about a non-ballot issue within 100 feet of polling places in Florida. Accordingly, the district court abused its discretion in granting Plaintiffs a preliminary injunction.


Sunday, June 28, 2009

Eleventh Circuit Affirms Broward Chief Judge Tobin's Qualified Immunity

In Spechler v. Tobin (09-10246), the Eleventh Circuit affirmed a decision relating to Broward County Chief Judge Victor Tobin's qualified immunity.

The appellant, a former county court Judge in Broward County, argued that Chief Judge Tobin violated "various liberty and property interests without due process of law, as well as other state law claims. These claims arose out of former county judge Spechler’s reassignment by the Chief Judge to a different judicial post, and Spechler’s resignation one day later, alleging that he had been 'banished' to a satellite court office with a nonexistent docket."

The Eleventh Circuit affirmed the district court's holding that Chief Judge Tobin is "protected by qualified immunity because no violation of a clearly established constitutional right occurred, plaintiff does not have standing to pursue his claims, sovereign immunity protects defendant from the state law claims, and, in any event, they have no merit."

The Eleventh Circuit Discussing the Uniform Commercial Code

In Autry Petroleum Company v. BP Products North America, Inc. (08-11607), the Eleventh Circuit discusses a number of Uniform Commercial Code sections including the implied covenant of good faith (UCC § 1-203) and the implied duty of good faith when setting an open price term (UCC § 2-305(2)).

Preemption: The Military Contractor Defense

In Brinson v. Raytheon Company (08-12308), the Eleventh Circuit affirmed the district court's application of the military contractor defense.

"On April 3, 2004, Judson B. Brinson, a Captain in the United States Air Force (“USAF”) Reserves, died when the aircraft he was co-piloting, the T-6A Texan II (“T-6A”), crashed near Savannah, Georgia. Appellant asserts that the T-6A was defectively designed by RAC."

“[A] few areas, involving ‘uniquely federal interests,’ are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent explicit statutory directive) by the courts.” Boyle v. United Tech. Corp., 487 U.S. 500, 504, 108 S. Ct. 2510, 2514 (1988)...“[T]he procurement of equipment by the United States is an area of uniquely federal interest . . . .” Boyle, 487 U.S. at 505-07, 108 S. Ct. at 2515-16. This, however, merely establishes a necessary, not a sufficient, condition for the displacement of state law. Displacement will occur only where . . . a “significant conflict” exists between an identifiable federal policy or interest and the operation of state law, or the application of state law would frustrate specific objectives of federal legislation...The “scope of displacement” is determined by a three-part test...

Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States...This doctrine is referred to as the “military contractor defense."...“Stripped to its essentials, the military contractor defense is available only when the defendant demonstrates with respect to its design and manufacturing decisions that the government made me do it.”

A. Approval of reasonably precise specifications

we conclude that post-design, post-production evidence may fit within the Boyle rationale. When faced with a potentially failing or defective part, the military may make a discretionary decision concerning how to address the problem. We do not want to “second-guess” that judgment through a state law tort suit...In summary, RAC has sufficiently established that the military approved reasonably precise specifications of the rudder trim system, including the TAD. None of Brinson’s arguments raise a genuine issue of fact material to this conclusion. Accordingly, we conclude that RAC has satisfied the first prong of the Boyle test on summary judgment.

B. Conformity to Reasonably Precise Specifications

“To demonstrate the second Boyle condition, a contractor must show that the equipment at issue conformed to precise, government-approved specifications.” Gray, 125 F.3d at 1378. We conclude that RAC has carried its burden on summary judgment.

Friday, June 26, 2009

Equitable Lien, Vendor's Lien, Unjust Enrichment, Merger, etc.

In Golden v. Woodward (1D08-3324), the First District affirmed the trial court's final judgment that "is entitled to an "equitable lien" or "vendor’s lien" in the amount of $89,000.00 against Appellants on certain real property that is the subject of an earlier agreement between Appellants and Mr. Woodward, Sr."

"Mr. Woodward, Sr., and Appellants signed a January 28, 2003, written "Agreement to Sell Personal Real Estate Property" (2003 Agreement) by which Mr. Woodward sold his property to Appellants, who were his next-door neighbors in Graceville, Florida. Under the express terms of the 2003 Agreement, Mr. Woodward contracted to sell his home and approximately 7.8 acres of land to Appellants for a purchase price of $109,000.00, including all interest and fees. The 2003 Agreement provided that Appellants would pay Mr. Woodward $550.00 a month for seven years (totaling $46,200.00), beginning on March 1, 2003, and ending on March 1, 2010. After the expiration of the seven-year period, Appellants would tender a balloon payment----$62,800.00, the remaining balance of the purchase price----to Mr. Woodward."


"After the execution of the 2003 Agreement, Mr. Woodward had become aware that Appellants were making improvements on the property. Upon further investigation, he discovered that Appellants had executed a first mortgage on the property, despite the express provision in the 2003 Agreement that the buyers would not allow any liens on the property until the full purchase price was paid to the seller. In May 2006, Mr. Woodward filed a four-count complaint against Appellants. Upon Mr. Woodward’s death a month later, Mr. Woodward, Jr., in his capacity as the personal representative of his father’s estate, was substituted as the plaintiff, and Appellants stopped making payments on the property."


"In its final judgment, the trial court found no evidence either of Mr. Woodward, Sr.’s, incapacitation or of Appellants’ undue influence or fraud. However, the court concluded that Appellants had breached the 2003 Agreement with Mr. Woodward, Sr., when they mortgaged the subject property and ceased making payments on the property before satisfying the full purchase price. The court determined that the equities lay with the estate, which is entitled to an equitable lien or vendor’s lien on the property for $89,000.00, the sum due under the 2003 Agreement. The court entered a judgment in favor of Mr. Woodward’s estate as to Count Two, and judgment in favor of Appellants on the other claims. This appeal ensued."


Appellants argue that if they had received notice that Mr. Woodward, Sr., was asserting the right to a vendor’s lien, they could have presented evidence and defenses (e.g., laches) relating to that claim. This argument is without merit. "Every complaint shall be considered to demand general relief." Fla. R. Civ. P. 1.110(b). Thus, the court must "look to the facts alleged, the issues and proof, and not the form of the prayer for relief to determine the nature of the relief which should be granted...[G]enerally, courts of equity have the fullest liberty in molding decrees to the necessity of the occasion, regardless of the prayer."

An "equitable lien" is "[a] right, enforceable only in equity, to have a demand satisfied from a particular fund or specific property, without having possession of the fund or property...Equitable liens become necessary on account of the absence of similar remedies at law...A "vendor’s lien," also known as a "grantor’s lien," is "a creature of equity, a lien implied to belong to a vendor for the unpaid purchase price of land, where he has not taken any other lien or security beyond the personal obligation of the purchaser...The lien does not result from agreement, but is given by implication of law, as an incident to the debt, and is enforceable in equity where the vendor is entitled to it...Given the Florida courts’ recognition that a "vendor’s lien" is one type of "equitable lien," id., we conclude that, in the context of his specific pleadings in Count Two of the complaint, Mr. Woodward’s request for an "equitable lien" upon the property reasonably should have put Appellants on notice that a "vendor’s lien" was being requested.


In their second issue, Appellants assert that the trial court erred in granting an equitable lien in favor of Mr. Woodward’s estate without a finding of Appellants’ fraud or misconduct. In Rinker Materials Corporation v. Palmer First National Bank & Trust Company of Sarasota, 361 So.2d 156 (Fla. 1978), the Supreme Court of Florida held that "a party may successfully maintain a suit under the theory of equitable estoppel only where there is proof of fraud, misrepresentation, or other affirmative deception." [However], "[t]he basis of equitable liens may be estoppel or unjust enrichment." "In Florida, an equitable lien is an appropriate remedy to prevent unjust enrichment between family members or those with close personal relationships."

To state a cause of action based on unjust enrichment to justify the imposition of an equitable lien, Appellee had to meet the following requirements:

To state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

"An action for ‘unjust enrichment’ exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity."


Appellants’ final argument is that the 2003 Agreement merged with or was subsumed into the 2004 Warranty Deed, thereby precluding Appellee from recovering under an "equitable lien" theory based on Appellants’ having breached the terms of the 2003 Agreement. "The general rule is that all preliminary agreements and understandings relative to the sale of land usually merge into the deed of conveyance." Opler v. Wynne, 402 So.2d 1309, 1311 (Fla. 3d DCA 1981); see Rubell v. Finkelstein, 679 So. 2d 889 (Fla. 3d DCA 1996). However, this rule is not absolute.

The rule that acceptance of a deed tendered in performance of a contract to convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance. Contractual provisions as to considerations to be paid by the purchaser are ordinarily not merged in the deed and, accordingly, evidence of such contractual provisions is admissible to show what consideration is to be paid by the purchaser although a deed has been accepted.

Milu, Inc. v. Duke, 204 So. 2d 31, 33 (Fla. 4th DCA 1967); see Rubell, 679 So. 2d at 889. "There can be no merger at law, without a union of titles in the same person; nor, in equity unless, also, there is an express or presumed intention on the part of those concerned in the transaction that it should operate as a merger." Polk Bond & Mortgage Co. v. Dwiggins, 147 So. 855, 857 (1933). That is, one must look at the intent and conduct of the parties.

Thursday, June 25, 2009

Appraisal Not Waived After Two Years of Litigation

In Fla. Ins. Guar. Assoc. v. Hillard (1D09-0286), the First District affirmed the trial court's conclusion that appraisal was not waived. The decision was a PCA decision. After being in contested litigation for over two years, the trial court ordered an appraisal. The decision was affirmed. [I will link when it is available, however, the decision can currently be found on WestLaw at 2009 WL 1754254].

Wednesday, June 24, 2009

Dismissal Based Upon Statute of Limitations Reversed

In Pines Properties, Inc. v. Trailins, et al (3D08-958), the Third District affirmed the dismissal of the appellants claim against one defendant, however, reversed the dismissal against the remaining defendants on appellants legal malpractice claim.

The action against the remaining defendants, Zack Koznitzky, P.A., Jennifer Altman, Boies, Schiller and Flexner, and Myles Tralin, P.A., was dismissed based upon the expiration of the statute of limitations.

As we stated in Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056 (Fla. 3d DCA 2002):

A motion to dismiss a complaint based on the expiration of the statute of limitations should only be granted "in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law."

Id. at 1057 (quoting Rigby v. Liles, 505 So. 2d 598, 601 (Fla. 1st DCA 1987)). See Saltponds Condo. Ass'n v. Walbridge Aldinger Co., 979 So. 2d 1240 (Fla. 3d DCA 2008); Saltponds Condo. Ass'n v. McCoy, 972 So. 2d 230 (Fla. 3d DCA 2007); Chodorow v. Porto Vita, Ltd., 954 So. 2d 1240 (Fla. 3d DCA 2007); cf. Bott v. City of Marathon, 949 So. 2d 295 (Fla. 3d DCA 2007).

Because we find that the statute of limitations defense does not appear affirmatively on the face of the complaint as to these appellees-defendants, we reverse the judgment as to them.

Third DCA Reverses Order Vacating Default Judgment

In Infante v. Vantage Plus Corp., et al (3D08-1960), the Third District reversed the trial court's order vacating a final default judgment.

The trial court vacated the judgment because, in its opinion, the complaint failed to state a cause of action. The Third District reversed because "because Infante correctly asserted all of the causes of action in her complaint, and thus the trial court improperly vacated the default final judgment on the grounds that the complaint was technically deficient."

"The standard of review of an order that vacates a final judgment by default as void for a complaint’s failure to state a cause of action is de novo. See Rubenstein v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th DCA 2000). As this Court stated in Cruz v. Domenech, 905 So. 2d 938, 940 (Fla. 3d DCA 2005), "[i]n determining whether [the trial court’s] jurisdiction to grant a particular form of relief has been properly invoked by the pleadings, the trial court must be guided by whether the pleadings provided the parties with sufficient notice that matters related to such relief would be at issue."

"[E]even if these counts were technically deficient, the theft counts placed the defendants on sufficient due process notice of the nature of the claims filed against them."

Trial Court Decision Not to Transfer Venue Affirmed by Fourth District

In Tomac of Florida, Inc. v. Gunn’s Quality Glass & Mirror, Inc. (4D09-104), the Fourth District issued an opinion denying a petition for rehearing. The original decision was a PCA opinion.

"We start with the cardinal principle that we review orders denying motions to transfer venue for an abuse of discretion...This translates to an affirmance where reasonable minds could differ."

The Court continued:

"When a contract is silent on where payment is to be made, a presumption arises that payment is to be made where the creditor is located...While that presumption can be overcome, to do so the debtor must present sufficient evidence establishing a clear, lengthy, and uninterrupted course of conduct...In this case, the trial court found the debtor had failed to overcome the presumption. Because reasonable minds could differ on this question, we cannot say the trial court abused its discretion when it denied the motion to transfer...The defendant moved to transfer venue and filed an affidavit, which attested that the contract did not provide for the location of the payments, but that there was a “regular and systematic methodology for making payments” at the physical job site in St. Lucie County, the construction trailer in St. Lucie County, or the defendant’s principal place of business in Indian River County. As the trial court noted, the affidavit did not indicate the length of time or how many payments were made at those locations. The defendant therefore failed to overcome the presumption “that a cause of action for non-payment is properly brought in the county where the plaintiff has its principal place of business.” Sanford Auto, 988 So. 2d at 1145. Limited by the standard of review, we find no abuse of discretion in the trial court’s denial of the motion."

The Court also distinguished its decision in Treasure Coast Tractor Service, Inc. v. JAC General Construction, Inc., 34 Fla. L. Weekly D777, 2009 WL 996412 (Fla. 4th DCA Apr. 15, 2009).

Disissal for Attorney Misconduct Reversed

In Cinquegrana v. Rowley (4D08-2839), the Fourth District reversed the trial court's dismissal for attorney misconduct because dismissal was not requested in the motion. Further, "In any future hearing seeking dismissal for counsel’s discovery violations, the circuit court should make express findings concerning the factors identified in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). See Ham v. Dunmire, 891 So. 2d 492, 500 (Fla. 2004).

Fourth DCA on Malicious Prosecution

In Hickman v. Barclay’s International Realty, Inc. (4D08-115), the Fourth District affirmed the grant of summary judgment in a malicious prosecution action.

"In order to prove a cause of action for malicious prosecution a plaintiff must prove six elements: '1) the commencement of a judicial proceeding; 2) its legal causation by the present defendant against the plaintiff; 3) its bona fide termination in favor of the plaintiff; 4) the absence of probable cause for the prosecution; 5) malice; [and] 6) damages'.”


Under these circumstances, the trial court correctly concluded that no material issues of fact remained on the issue of legal causation by the defendant. Although the accounts of the incident from appellant and appellee diverged on who did what to whom, there was no dispute that even under Hickman’s account Wyner would have justifiably believed that Hickman was trespassing when Wyner came upon him in his neighbor’s home.


"The trial court also granted summary judgment on Hickman’s second cause of action which alleged that Wyner owed Hickman a duty to report the incident truthfully to the police...As the trial court recognized, this is not a recognized cause of action in Florida. “Florida courts have never recognized a separate tort for ‘negligently’ swearing out a warrant for arrest. Such cases may be brought only in the form of civil suits for malicious prosecution.” Pokorny v. First Fed. Sav. & Loan Ass’n of Largo, 382 So. 2d 678, 683 (Fla. 1980).

Fourth DCA Reverses After Confession of Error

In Young v. Verduin (4D09-1169), the Fourth District issued a one paragraph opinion that is only noteworthy as a reminder that you should confess error on appeal, if one existed.

Fourth DCA Denies Certiorari on Attempt to Reverse Discovery Order under Amendment 7

The discussion below about Columbia Hospital Corporation of South Broward v. Fain (4D08-4578) is from Chris Morrison, who kindly allowed me to post it here.

The case arose from a petition for writ of certiorari seeking to quash a trial court order denying the defendant hospital's objections to discovery. The issue of work product was raised, but not decided as it was not ripe for review. The court rejected standard discovery objections regarding relevance, overbreadth and burdensomeness as having no bearing on a patient's right to obtain adverse medical incident records. The court rejected an argument that the federal Health Care Quality Improvement Act impliedly preempted Amendment 7, drawing a distinction between the immunity provisions of the HCQIA and the removal of confidentiality for adverse medical incident reports. The court also rejected the argument that Amendment 7 works an unconstitutional impairment of contract regarding provisions in its physician contracts, as well as bylaws and staff regulations, that peer review proceedings remain confidential. The court essentially found that the impairment was not severe enough to warrant further scrutiny - it had a low constitutional hurdle to clear, and it cleared.

Appellant Must Provide the Record or Transcript

In Cueto v. Mendoza (3D08-290), the Third District affirmed the order below because the appellant failed to provide the record or a transcript of the hearing under review. "The burden lies with the appellant to supply the reviewing court with the record on appeal and to demonstrate reversible error." Without a record, the Third DCA affirmed.

Failure to Provide Contractor's Affidavit Must be Raised as a Defense or it is Waived

In Rivera v. Hammer Head (5D08-549 & 5D08-1672 ), the Firft District affirmed the trial court's denial of a motion for involuntary dismissal because "while a contractor’s affidavit is a condition precedent to bringing an action to foreclose a construction lien, the failure of the defendant property owner to plead specifically and with particularity the contractor’s non-performance of that condition as required by Florida Rule of Civil Procedure 1.120(c) constitutes a waiver of the condition or defense. Similarly, the Hodusa court recognized that furnishing an affidavit is a condition precedent to bringing an action to foreclose a mechanic's lien, but failure to do so does not create a jurisdictional defect. Hodusa, 546 So. 2d at 1101 (citing Holding Elec., Inc. v. Roberts, 530 So. 2d 301 (Fla. 1988)). The court also held that Hodusa was required under rule 1.120 to plead nonperformance of the condition precedent ‘specifically and with particularity’ and its failure to do so waived its right to assert that defense."

Interesting Dissent by Judge Rothenberg

In Florida Department of Agriculture and Consumer Services, et al. v. In Re: Citrus Canker Litigation (3D08-3278) the Third District issued an opinion only stating "Affirmed." Judge Rothenberg wrote a seven page dissent. Judge Rothenberg disagreed on the merits and would have reversed for failure to comply with a prior mandate of the court. The dissent stated:

The Miami-Dade County homeowners initially pursued their citrus canker litigation as members of a class action certified in Broward County. The Fourth District Court of Appeal astutely recognized that venue for inverse condemnation rests in the county where the trees were located, and ordered that the Miami-Dade County homeowners be deleted from the Broward County class action litigation. See Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So. 2d 928 (Fla. 4th DCA 2002). Thereafter, on April 4, 2003, the Broward circuit court transferred the claims involving the Miami-Dade County homeowners to the Miami-Dade circuit court. Instead of conducting its own independent certification hearing, the Miami-Dade circuit court adopted the Broward circuit court’s certification order. On October 25, 2006, this Court granted the Department’s petition for writ of certiorari, quashed the trial court’s order denying the Department’s motion to decertify the Miami-Dade County class, and ordered the Miami-Dade circuit court to conduct a class certification hearing. Fla. Dep’t of Agric. v. Citrus Canker Litig., 941 So. 2d 461 (Fla. 3d DCA 2006). This Court issued its mandate on November 16, 2006.

Despite this Court’s mandate in 2006 requiring that a class certification hearing be conducted, no such hearing has taken place for over two years, and on December 1, 2008, the Miami-Dade circuit court stayed the proceedings for an indeterminate period of time pending the outcome of the Broward County litigation, including the appellate process. The Miami-Dade County homeowners’ failure to move towards class certification and the Miami-Dade circuit court’s failure to hold its independent class certification hearing not only ignores this Court’s mandate issued in 2006, it ignores both section 73.071 and rule 1.220(d).


In the instant case, the Fourth District Court of Appeal ordered the Broward circuit court to delete the Miami-Dade County homeowners from the Broward County class action litigation in 2002. The Miami-Dade County homeowners’ class proceedings were transferred to Miami-Dade circuit court on April 4, 2003. To date, six years after the class was transferred to Miami-Dade circuit court and two-and-a-half years after this Court ordered the Miami-Dade circuit court to conduct the class certification proceeding, the Miami-Dade County homeowners have taken no steps to do so. The stay issued by the Miami-Dade circuit court, which will indefinitely delay the class certification process, is a clear abuse of discretion, thwarts the directives of section 73.071 and rule 1.220(d), flies in the face of the "soon as practicable" requirement of rule 1.220(d), and defeats the basic principles of fundamental fairness and the orderly administration of justice.

At this stage of the proceedings, the stay makes little, if any, sense. The class certification process not only tests the basic requirements of commonality and numerosity, it tests the adequacy of the class representatives and class counsel, which differ from, and are not dependent on, the rulings made by the Broward circuit court, the Fourth District Court of Appeal, or ultimately the Florida Supreme Court. Regardless of the outcome in the Broward County citrus canker class action lawsuit, the Miami-Dade County class litigation should proceed with certification of its own class. To wait several more years before that process even begins is a clear abuse of discretion requiring reversal.

Accordingly, I dissent.

Monday, June 22, 2009

Employee Not Entitled to Benefits When Leaves Employment Without Good Cause

In Price v. Unemployment Appeals Commission (5D08-1817), the Fifth District affirmed the trial court's order that the employee was not entitled to unemployment benefits because the employee left her employment without good cause. The court held:

The determination that an employee left employment voluntarily and whether she did so without good cause are questions of fact. Brown v. Unemployment Appeals Comm'n., 820 So. 2d 457 (Fla. 5th DCA 2002). Moreover, the factual determinations of an appeal referee are ordinarily presumed to be correct. Smith v. Unemployment Appeals Comm'n., 823 So. 2d 873 (Fla. 5th DCA 2002). Thus, if there is substantial competent evidence in the record to support the findings of the referee, and in particular the finding that Ms. Price voluntarily left her employment without good cause, this court must affirm. Brown, 820 So. 2d at 458.

Fourth District Affirms Trial Court's Interpretation of Warranty in Contract

In Detroit Diesel Corporation v. Atlantic Mutual Insurance Company (4D08-1593), the Fourth District affirmed the trial court's interpretation of a contract.

The Fourth District stated:

This appeal presents the question of whether the trial court correctly interpreted the limited warranty to cover engine repairs during the warranty period resulting from defects in material or workmanship, not limited to defects in material or workmanship of “major components.”


The determination of whether a contract is unambiguous and the interpretation of an unambiguous contract are questions of law subject to de novo review on appeal. Smith v. Shelton, 970 So. 2d 450, 451 (Fla. 4th DCA 2007). “Whether a document is ambiguous depends upon whether it is reasonably susceptible to more than one interpretation. However, a true ambiguity does not exist merely because a document can possibly be interpreted in more than one manner.” Lambert v. Berkley S. Condo. Ass’n, 680 So. 2d 588, 590 (Fla. 4th DCA 1996) (citation omitted). “When contractual language is clear and unambiguous, courts cannot indulge in construction or interpretation of its plain meaning.” BMW of N. Am., Inc. v. Krathen, 471 So. 2d 585, 587 (Fla. 4th DCA 1985). The language of the warranty is clear and unambiguous. The plain language of the warranty states that the warranty covers engine repairs to correct any malfunction resulting from defects in “material or workmanship.” The second warranty period does not limit the scope of coverage to merely defects resulting from a “major component,” nor does it require that a “major component” must be the primary cause of the engine malfunction. The second warranty period merely defines the “major components” that are specifically covered during that period, should they be damaged as a result of defects in material or workmanship, without limitation.

We hold that the trial court properly interpreted this warranty and, as such, we affirm.

Temporary Injunction Order Must Make Specific Factual Finding for Each Element of Injunction

In Jouvence Center for Advanced Health, LLC v. Jouvence Rejuvenation Centers, LLC (4D08-4753), the Fourth DCA reversed the entry of a temporary injunction. The injunction order enjoined the appellant "from continuing use of Appellee[s']...patient files and proprietary information and establishing an injunction bond of $1000."

“A trial court's ruling on a temporary injunction comes to the appellate court with a presumption of correctness, reversible only upon a showing of a clear abuse of discretion...A party seeking a temporary injunction must prove: (1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; (4) that a temporary injunction will serve the public interest...The party must also establish that it has a clear legal right to the relief sought...Finally, a trial court must make clear, definite, and unequivocally sufficient factual findings supporting each of the required elements before entering an injunction."

"the trial court neglected to make specific findings of fact regarding the four elements which must be shown before a preliminary injunction may be entered, and we reverse and remand for the trial court to make the required findings. Whether additional evidence is needed in order to make the necessary findings, we leave to the trial court’s determination."

Thursday, June 18, 2009

Enforcement of Declaration of Condominium and Estoppel

In Curci Village Condominium Association, Inc. v. Santa Maria (4D08-2260), the Fourth District reversed the grant of summary judgment in favor of the condominium unit owner.

"This case arises out of landscaping modifications Santa Maria made to the backyard of her condominium unit...Before control of the Association was transferred to the homeowners, Santa Maria inquired whether she could put “decorative improvements” in her backyard. Richard Shan, who was a manager of the developer as well as the president and director of the Association at the time, told her that he “didn’t see a problem with it” as long as it did not impede the water runoff, was not permanent in nature, and did not require a permit. He told her that stones and mulch would be fine. When he gave her his “opinion” that it would be fine to make these modifications, he did so as president and director of the Association."

After reviewing the motions, pleadings, deposition testimony, reports, and other record evidence, the court entered an order granting Santa Maria’s motion for summary judgment and denying the Association’s motion. The court found that Santa Maria was entitled to maintain the decorative mulch and rocks along the limited common elements of her property. The court awarded Santa Maria prevailing party attorney’s fees and costs pursuant to section 718.303, Florida Statutes, and section 30.03 of the declaration. Curci appeals this judgment.

The standard of review applicable to summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)...The facts in this case show that the trial court erred in granting summary judgment to Santa Maria.

The declaration of condominium, which is the condominium’s “constitution,” creates the condominium a n d “strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n v. Jahren, 806 So. 2d 452, 455-56 (Fla. 2002). A declaration of condominium must be strictly construed. Palm Beach Hotel Condo. Ass’n v. Rogers, 605 So. 2d 143, 145 (Fla. 4th DCA 1992). Two sections of the declaration required Santa Maria to obtain written permission of the board prior to making improvements or alterations to her property or the common elements. Santa Maria was required to comply with the provisions of the declaration pursuant to its own terms and section 718.303, Florida Statutes.
[The unit owner did not dispute she did not receive permission. She asserted estoppel.]

The essential elements of estoppel are “(1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.”

In this case, as in Rolle, estoppel is inapplicable because the board of directors did not give Santa Maria permission to make the modifications, and Santa Maria could not reasonably rely on Span’s verbal representation to constitute the specific requirement of a written approval from the board.

Attorney Fees Awarded After Plaintiff Stopped Pursuing Action

In Frazier v. Dreyfus (4D08-1619), the Fourth District affirmed the award of attorneys fees to the prevailing party. The trial court abated the action, pending arbitration. The plaintiff never instituted an arbitration action and the trial court ultimately dismissed. After the dismissal, the defendant moved for attorneys fees and the court granted the motion.

The court held:

We affirm the trial court’s award of attorney’s fees based on Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006)...Applying Alhambra, we agree that regardless of whether or not the buyers ever instituted arbitration proceedings in Costa Rica or otherwise decided not to pursue their claims, the seller prevailed in the action when the case was dismissed. Although the buyers assert that such an award is “unjust” based upon the allegations of the third amended complaint, those allegations have never been subjected to any requirements of proof.

Award of Attorneys Fees Requires Evidentiary Hearing

In Fareri v. Farmer (4D08-420), the Fourth District reversed an award of attorneys fees because the trial court did not conduct an evidentiary hearing.

Wednesday, June 17, 2009

Request for Mandamus Relating to Administrative Procedure Act Denied, Conflict Certified

In First Quality Home Care, Inc. v. Alliance for Aging, Inc. (3D08-2949), the Third District denied petitioners request for mandamus and certified conflict with Mae Volen Senior Center, Inc. v. Area Agency on Aging Palm Beach/Treasure Coast, Inc., 978 So. 2d 191 (Fla. 4th DCA 2008), review denied, 1 So. 3d 172 (Fla. 2009). Judge Scwartz dissented and indicated he agrees with Mae Volen.

The Court stated:

Alliance issued a request for proposal for three lead agency contracts in Miami-Dade County; the request for proposal provided for an internal appellate process. In response to Alliance’s request for proposal, First Quality submitted its proposal. After Alliance issued a notice of intent to award the lead agency designations to other providers, First Quality sent Alliance a letter seeking review of that decision. First Quality’s letter purported to serve as its notice of intent to challenge Alliance’s selection decision under sections 120.569 and 120.57, Florida Statutes (2008). Alliance set a hearing date before its Board’s Executive Committee. First Quality appeared at the hearing, and asserted its objections to the selection. Alliance’s Board rejected First Quality’s appeal.

First Quality filed this petition for mandamus, contending, inter alia, that it is entitled to the APA’s bid protest procedures rather than the internal appellate procedures provided for in Alliance’s request for proposal.


First Quality contends that it is entitled to a formal administrative hearing as provided for in sections 120.569 and 120.57, Florida Statutes (2008). This hearing, however, is afforded to First Quality only if Alliance is an "agency" as defined in section 120.52(1), Florida Statutes (2007), and section 287.012(1), Florida Statutes (2008)...We conclude that Alliance is not an "agency" as defined by either the APA or Florida’s procurement statute.

The APA’s definition of "agency" is set forth in section 120.52(1), which is divided into several subsections. Alliance does not fall within the definition of "agency" as provided in subsections (a), (b) or (c).

Error to Submit Joint Enterprise Defense to Jury

In Erickson v. Irving (3D07-1963, 3D07-1790, & 3D07-604), the Third District reversed the district court's judgment and remanded for a new trial. The court concluded "that the trial court erred in allowing the defense of joint enterprise to be submitted to the jury."

In order to establish the existence of a joint enterprise concerning the operation of a motor vehicle, the defendant must prove the following elements: 1) an agreement, express or implied, to enter into an undertaking, 2) a community of interest in the objects and purposes to be accomplished in the undertaking, and 3) equal authority to control the undertaking. Kane v. Portwood, 573 So. 2d 980, 985 (Fla. 2d DCA 1991).


The evidence in this case fails to establish that a joint enterprise existed between Long and Sindoni. As stated above, a mere "joy ride," or decision that persons will travel together to a social engagement or have plans in common is generally insufficient to establish a joint enterprise. Additionally, the fact that Sindoni purchased Long’s drinks at the Coral Gables bar is also not evidence of a community of interest in the object and purpose of the evening. Moreover, the fact that one person pays the attendant expenses for a drive, the purpose of which is social, does not necessarily amount to a joint enterprise and certainly in this case is evidence of no more than a gift. As such, we conclude that the first two required elements for a joint enterprise defense – agreement and a community of interest – were not established.

Fourth District on Indemnity

In Wendt v. La Costa Beach Resort Condominium Association, Inc. (4D08-2482), the Fourth District affirmed the circuit court's order granting a motion to dismiss and certified conflict with the First District's opinion in Turkey Creek Master Owners Ass’n v. Hope, 766 So. 2d 1245
(Fla. 1st DCA 2000).

The court stated:

"The directors cannot state an action for indemnification under the circumstances of this case. “Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought.” Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 492-93 (Fla. 1979). “It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.” Id. at 493. “Stated differently, an indemnity right exists when one is left open to liability due to the wrongful acts of another.” Time Ins. Co. v. Neumann, 634 So. 2d 726, 729 (Fla. 4th DCA 1994). The classic example of an indemnity action is when a party held vicariously liable to a third person seeks recovery from another party whose action caused the damage. Safecare Med. Ctr. v. Howard, 670 So. 2d 1020, 1022 (Fla. 4th DCA 1996).

As to the appellant's argument that they should have been given leave to amend, the Court stated:

The directors contend that they should have been afforded an opportunity to amend their complaint to allege additional facts to support their cause of action. Because any attempt to amend the complaint to state the requisite allegations for an indemnification action would be futile, the trial court properly entered the dismissal with prejudice. See Fields v. Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007) (“Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.”).

Certiorari Requires Irreparable Harm

In Zurich American Insurance Co. v. Trafalgar at Greenacres, Ltd. (4D08-4794 and 4D08-5053), the Fourth District denied certiorari because the petitioner "fails to establish that it suffers irreparable harm which is necessary to invoke this court’s certiorari jurisdiction, we dismiss."

Default Reversed Because Counsel Failed to Inform Other Party and Counsel Knew They Intended to Defend Action

In Makes & Models Magazine Inc. v. Web Offset Printing Co. (2D08-1061), the Second District reversed the trial court's order refusing to vacate a clerks default.

Florida Rule of Civil Procedure 1.500, which allows entry of a clerk's default when a party fails to file or serve any paper in an action, should be liberally construed in favor of deciding cases on the merits...Furthermore, a default is not designed to give a strategic advantage to the plaintiff so that it may obtain a judgment without dealing with the defendant's challenges and defenses.

In Lloyd this court held that "[a] trial court should vacate an ex parte default when 'the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact the defendant's counsel prior to seeking default...If the plaintiff is aware that the defendant is represented by counsel and intends to defend the litigation on the merits, it is required to serve the defendant with notice of the application for default and to present the matter to the court for entry of the default...A default that does not comply with this requirement "must be vacated without regard to whether the defendant can establish a meritorious defense or whether the defendant can demonstrate inadvertence or excusable neglect."

[In its conclusion, the Court stated:]

We cannot conclude without making one final observation. Web Offset's argument pressed for a strict and literal interpretation of the default rules without any regard for civility or for the professionalism expected when one party is aware that the opposing party is represented by counsel and intends to defend against the claims at issue. Although these are not difficult concepts to grasp, post-Lloyd, a party's responsibilities when faced with similar circumstances should be clear.