Friday, July 31, 2009

Judicial Privilege

This article, titled "3rd Circuit Upholds Bar to Litigation Over Litigation", discusses the recent Third Circuit case of Naythons v. Stradley Ronon Stevens & Young and begins:

An arbitrator cannot sue a lawyer for wrongful use of civil proceedings, the 3rd U.S. Circuit Court of Appeals has ruled, even if the lawyer allegedly lodged false accusations in court papers to have the arbitrator disqualified, because lawyers enjoy an "absolute privilege" that immunizes them from liability over any communication made in the course of litigation.

Eleventh Circuit Analyzes Non-Compete Agreement in Florida

In Proudfoot Consulting Co. v. Derrick Gordon (08-14075), the Eleventh Circuit issued a published 48 page opinion relating to a non-compete agreement and Fla. Stat. § 542.335. The court provided a comprehensive analysis of Florida's non-compete law, one portion of which is quoted below:

In 1996, Florida adopted Fla. Stat. § 542.335, which "contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants contained in employment contracts." Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1262 (Fla. Dist. Ct. App. 2009). For a restrictive covenant to be valid, "[t]he person seeking enforcement of [the] restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant." Fla. Stat. § 542.335(1)(b). Section (1)(b) of the statute enumerates a non-exhaustive list of "legitimate business interest[s]." Among these are: (1) "[v]aluable confidential business or professional information that otherwise does not qualify as trade secrets"; (2) "[s]ubstantial relationships with specific prospective or existing customers, patients, or clients"; and (3) "[e]xtraordinary or specialized training."

In addition, to be enforceable, restrictive covenants must be reasonable with regard to time, area and line of business. Fla. Stat. § 542.335(1). Once an employer establishes a prima facie case that the contractually specified restraint is "reasonably necessary to protect the legitimate business interest[s] . . . justifying the restriction," the burden of proof shifts to the employee to show that "the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest[s]." Fla. Stat. § 542.335(1)(c). If the court finds that the "contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest[s]," the court is required to "modify the restraint and grant only the relief reasonably necessary to protect such interest or interests." Id.

"The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant." Fla. Stat. § 542.335(1)(j). This presumption, however, is rebuttable. JonJuan Salon, Inc. v. Acosta, 922 So. 2d 1081, 1084 (Fla. Dist. Ct. App. 2006).

Interpretation of Section 409.814, Florida Statutes

In Health First Health Plan #C, Inc. v. Florida Healthy Kids Corporation (5D08-240), the Fifth District interpreted section 409.814, Florida Statutes. The court concluded:

This language necessarily leads to the conclusion that the only component of the Florida Kidcare Program that a child with an income level above 200% of the federal poverty level could not participate in is the Medicaid program. If the legislature intended to exclude participation in CMS under 409.814(5) it could have specifically expressed that intent. When read together, sections 409.814(3) and (5) allow an eligible child with special health care needs and a family income exceeding 200% of the federal poverty level to participate in CMS.

Thursday, July 30, 2009

U.S. District Judge Beverly Martin To Be Confirmed As New Eleventh Circuit Judge

The Atlanta Journal Constitution reported today that U.S. District Judge Beverly Martin will likely be confirmed as a judge on the Eleventh Circuit. The article can be found here.

"In addition to getting approval from the president and other top Democrats, U.S. District Judge Beverly Martin received praise from key Republicans on the Senate Judiciary Committee, as well as from both of Georgia’s Republican senators."

"Senators grilled President Barack Obama’s nominee for the federal appeals court in Atlanta over her controversial ruling in a recent child sex case, commended her for her overall record and appear poised to approve her nomination to the full Senate."

Fifth Circuit Certified Question to US Supreme Court

Today in United States v. James Ford Seale (07-60732), an en banc Fifth Circuit utilized 28 U.S.C. § 1254(2) and Supreme Court Rule 19 to certify a question to the United States Supreme Court. [I edited this post to add this link to a SCOTUS Blog story about the decision.]

"A federal jury in the Southern District of Mississippi found James Ford Seale guilty of two counts of kidnaping under 18 U.S.C. § 1201(a) and one count of conspiracy to commit kidnaping under 18 U.S.C. § 1201(c). The district court sentenced him to life imprisonment. The kidnapings occurred in 1964, but the government did not indict Seale until 2007."

Four years after the kidnapping, but thirty-nine year before the indictment, Congress amended the federal statutes so that the crime was not a capital offense.

The question:

What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?

Chief Judge Edith H. Jones wrote in dissent:

Although the certification falls within the permissible scope of Sup. Ct. Rule 19, it is not worth this busy court's time or that of the also-busy Supreme Court to pursue that path. The likelihood of the Court's accepting certification, based on past usage, is virtually nil. The Court has accepted Rule 19 certifications only four times in more than sixty years.

Wednesday, July 29, 2009

Third DCA Reverses Imposition of Lis Pendens

In Strategic Empowerment for Economic Development, Inc. v. South Dade Realty, Inc. (3D08-2995), the Third District reversed a trial court's order relating to the filing of a lis pendens.

The trial court granted the appellants motion to dissolve a lis pendens, however, at the same time stated “The Notice of Lis Pendens shall constitute an equitable lien upon the net proceeds from the sale of any or all of the above described real property, to secure payment of the real estate brokerage commission allegedly owed to [SDR] by [SEED], pending the resolution of this action.”

The Third District held:

Setting aside the highly improbable proposition that a lis pendens can reach, affect, or in any way encumber the cash proceeds of a real estate closing that has yet to occur...the scant record in this case—an unsworn complaint, a lis pendens signed by counsel alone, and an answer and affirmative defenses to the complaint—does not satisfy even the most rudimentary of conditions for entry of a mandatory injunction without written or oral notice to the adverse party, see Fla. R. Civ. P. 1.610, which most assuredly is what SDR intended by the filing of its lis pendens in this case.

In this respect, the case before us is not at all analogous to either Cohen Financial LP v. KMC/EC II, LLC, 967 So. 2d 224 (Fla. 3d DCA 2007), or Riverland & Indian Sun L.C. v. L.J. Melody & Co., 879 So. 2d 1271 (Fla. 3d DCA 2004), both of which proceeded upon a filed motion for the entry of a temporary injunction. For this reason, we summarily reverse the order on appeal with the direction that any prejudgment interdiction of the real estate proceeds of the closing of this real estate transaction by the trial court in this case be abandoned forthwith.

This opinion will take effect immediately, notwithstanding the filing of any motions for rehearing.

Availability of Arbitration?

In Puig v. All Motors Inc. (3D08-2676), the Third District affirmed the trial court's decision relying on two cases about the availability of arbitration.

Affirmed. See Aztec Med. Servs., Inc. v. Burger, 792 So. 2d 617 (Fla. 4th DCA 2001) (holding that claims under Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) are arbitrable); cf. Hialeah Auto., LLC v. Basulto, 34 Fla. L. Weekly D248, D250 (Fla. 3d DCA Jan. 28, 2009) (concluding that claims for declaratory or injunctive relief were not arbitrable where arbitration clause contained provision that arbitration award “shall be issued without a written opinion”).

Third District Summarily Reverses Trial Court Order Overturning Magistrate Report

In Barker v. Crawford (3D08-2251), the Third District summarily reversed a trial court order rejecting a report from a magistrate. The court concluded: "We conclude the general master’s analysis is the legally correct one. See Cooper v. Muccitelli, 682 So. 2d 77 (Fla. 1996); Smith v. Smith, 919 So. 2d 525 (Fla. 5th DCA 2005)."

Preservation of Error for Appeal

In Reznik v. FRCC Products Inc. (4D08-774), the Fourth District affirmed the trial court's judgment because the issue was not preserved for appeal. The court stated:

FRCC argues that Reznik waived the issue because he failed to raise it with the trial court. We agree that the issue was not preserved.

Sunset Harbour Condominium Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005), states, “As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal. In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” (internal citations omitted). Murphy v. International Robotic Systems, 766 So. 2d 1010 (Fla. 2000), addresses the similar issue of failure to object to closing arguments in the trial court. The Florida Supreme Court held the issue was not preserved for review and explained, citing Castor v. State, 365 So. 2d 701 (Fla. 1978), the reasons for the requirement that a contemporaneous objection be made in the trial court.


In the present case Reznik raised in the trial court the issue of whether he had the ability to sign the settlement agreement on behalf of the company since he is not an attorney. He did not argue that the stipulated amount was illegitimate, unconscionable, or a penalty. Thus, the issue was waived and was not preserved for review.

Wisconsin Supreme Court Holds Appraisal Awards Presumptively Valid

In Farmers Automobile Ins. v. Donaubauer (2009 WI 73), the Wisconsin Supreme Court held that appraisal awards are presumed valid and affirmed the lower courts order upholding the award. The decision can be found here and is also discussed on the State Bar of Wisconsin's website here.

The State Bar of Wisconsin article, written by Alex De Grand, begins:
The Wisconsin Supreme Court held on July 10 that appraisals are presumptively valid, limiting judicial review of an appraisal award to the face of the award barring some defect in the appraisal process.

In Farmers Automobile Ins. v. Donaubauer, 2009 WI 73, the court also gave binding effect to the appraisal clause in an insurance policy over the objections of the insured that it did not explicitly state he would be bound by the appraisal.

Dissenting justices criticized the majority for acting to deprive the insured of the tools necessary to show deficiencies with an award and interpreting the ambiguity in a contract of adhesion against the insured.

Tuesday, July 28, 2009

Journal of the Association of Legal Writing Directors

The Journal of the Association of Legal Writing Directors released its Fall 2009 volume, titled "Best Practices in Persuasion." The Journal can be found here and contains the following articles:


General Articles

California Supreme Court Issues Order Permitting Paralyzed Law School Graduate to Take State Bar

Yesterday, there were a number of articles about Sara Granda, a 29-year-old law school graduate attempting to take the California Bar Exam. The graduate is an indigent quadriplegic who receives disability benefits. According to the Sacramento Bee, "But the bar's online vendor did not process the application because the credit card information was lacking." However, she does not have any credit cards and paid the fee with a state issued check.

The bar, until now, had refused to allow her to take the exam. After a federal lawsuit was dismissed on jurisdictional grounds, she sought relief in state court and had the support of Governor Arnold Schwarzenegger whose letter in support can be found here.

The California Supreme Court's one page opinion can be found here. The court granted the petitioner's "Petition for Mandate" and directed the state bar association to permit her to take the exam with her ultimate admission to the bar conditioned upon her providing a complete bar application by September 1, 2009.

For articles on this story see the following links:

Dismissal as a Sanction

In Sonson v. Hearn (4D08-2799), the Fourth District reversed a trial court's order dismissing a case as a sanction for failure to attend a court ordered deposition. While the court reversed the dismissal, it reaffirmed the trial court's right to impose dismissal as a sanction and stated in the final paragraph: "Our purpose in rendering this opinion is not to further burden an already overburdened trial bench. On the contrary, our decision is meant to affirm the authority of trial judges to deliver the paramount sanction of dismissal when warranted."

The problem with the dismissal in this case was the record did not make clear whether the failure to comply with a court order was the lawyers fault or the clients.

"This case arose from a dispute regarding the ownership of two parcels of land located in St. Lucie County...On numerous occasions over the course of many months, Hearn’s attorney attempted in vain to schedule depositions of Jennifer Sonson, individually and Stephen Sonson as representative of both plaintiff corporations. This recalcitrance culminated in an April 17, 2008 court order directing both individuals to appear for a deposition on April 24, 2008. When neither appeared, Hearn – through her attorney – moved to dismiss the cause of action with prejudice under Florida Rule of Civil Procedure 1.380."


Despite the trial court’s repeated insistence of some type of evidence to support either side’s position at the hearing on the motion to dismiss, both lawyers offered nothing but a couple of certificates of nonappearance, copies of lawyer letters and other unsworn “statements of fact” to advance their respective arguments...

On appeal, the Sonsons argue that the trial court abused its discretion in dismissing their action without finding that their failure to comply with the lower court’s order prejudiced Hearn.

We do not agree with the Sonsons’ argument that a trial court is always required to find prejudice before dismissing an action for all types of discovery misconduct. Although this court has stated “[t]he emphasis should be on the prejudice suffered,” Fisher v. Prof’l Adver. Dirs. Co., 955 So. 2d 78, 80 (Fla. 4th DCA 2007), recognition and enforcement of the court’s authority to enter orders pertaining to discovery remains vital and equally important.

Nonetheless, the trial court’s dismissal appears premature. A dismissal under rule 1.380 is “the most severe of of all sanctions which should be employed only in extreme circumstances.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). Upon Hearn’s evidence that the Sonsons failed to appear at the court-ordered depositions, the trial court should have shifted the evidentiary burden to the Sonsons to address the alleged dereliction.

If a deliberate failure to comply with the trial court’s order is attributable to the Sonsons, dismissal might be a proper sanction...However, where the attorney, and not the client, is responsible for the non-compliance, a different set of factors must be applied: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). “[I]f a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id.

Monday, July 27, 2009

Jury Verdict for Hospital That Sent Illegal Immigrant Back to Guatemala on Private Plane

There are a number of articles about a jury verdict in Martin County today. The ABA Journal article can be found here; an article in the SunSentinel can be found here and an article in the NY Times here.

The SunSentinel article described the facts as:
A hospital in Stuart that quietly chartered a plane and sent a seriously brain-injured illegal immigrant back to Guatemala over the objections of his family and legal guardian did not act unreasonably, a jury ruled today.
The first paragraph NY Times article is quoted below:
In a benchmark case dealing with the obligations of hospitals toward uninsured illegal immigrants, a jury in Stuart, Fla., decided Monday that Martin Memorial Medical Center did not act unreasonably when it chartered a plane and repatriated a severely brain-injured Guatemalan patient against the will of his guardian.

Plaintiff's Claim it Did Not Receive Notice of Hearing Requires Evidentiary Hearing

In Depelisi v. Wishner (4D08-2581), the Fourth District reversed a dismissal order because the trial judge failed to conduct an evidentiary hearing to determine if the plaintiff had received a notice of hearing on defendant's motion to dismiss.

There were apparently prior issues with notices of hearing, as the Fourth District noted, because the trial court had previously issued an order requiring communication before any hearing could be noticed.

The defendants filed motions to dismiss. Despite the order, one of the defendants filed a notice of hearing on the motion for May 7, 2008. The certificate of service indicated that the notice was sent by mail on April 29, 2008. Plaintiff’s counsel failed to appear at the hearing. Defense counsel advised the court that he had faxed and mailed the notice to plaintiff’s counsel, and had called and left messages on both the cell and office phones. The judge called plaintiff’s counsel on his cell and office numbers, heard counsel’s voice mail, and left a message instructing the lawyer to return the call. The judge then heard a motion for protective order, but declined to hear the motion to dismiss.

The next day, the same defendant filed a re-notice of hearing for May 22, 2008, certifying that notice was sent by mail to the same address for plaintiff’s counsel. Once again, neither the plaintiff nor his counsel appeared at the hearing. Defense counsel explained to the court the efforts taken to notice plaintiff’s counsel, which included mail, fax, and phone notice. Defense counsel also advised the court that he had difficulty reaching plaintiff’s counsel, but had received a message indicating that plaintiff’s counsel had moved and no longer had a fax machine. The trial court proceeded with the hearing. The court granted the motion to dismiss with prejudice, and added that the “[p]laintiff was duly noticed and for the second time failed to appear.

The plaintiff then filed a motion for rehearing, arguing they never received notice of the hearing on the motion to dismiss. "A successor judge heard the motion. That judge indicated that he was bound by the prior trial judge’s findings that the plaintiff’s counsel had been notified and could not rehear the issue." The Fourt District reversed, holding that the trial court was required to conduct an evidentiary hearing:

A presumption of notice arises when a certificate of service indicates that pleadings and orders were mailed to counsel. Camerota v. Kaufman, 666 So. 2d 1042, 1045 (Fla. 4th DCA 1996). That presumption is rebuttable. Id; W.T. Holding v. Agency for Health Care Admin., 682 So. 2d 1224, 1225–26 (Fla. 4th DCA 1996). “While a sworn affidavit stating that the filing was not received will not automatically overcome the presumption, such an affidavit will create an issue of fact which must be resolved by the trial court.” Camerota, 666 So. 2d at 1045. That resolution requires an evidentiary hearing. Torrey v. Torrey, 815 So. 2d 773, 775–76 (Fla. 4th DCA 2002).

Friday, July 24, 2009

Three Opinions Relating to Same Temporary Injunction

The Second District issued three opinions today stemming from the same injunction order. The opinions are: LaRose and The University of Tampa v. A.K. (2D08-1996), LaRose and The University of Tampa v. A.K. (2D08-3756) and LaRose and The University of Tampa v. A.K. (2D08-5622).

The facts of the underlying dispute are:

A.K. filed a multiple-count complaint1 asserting that Anthony P. LaRose (Professor LaRose) and the University of Tampa (the University) had unfairly accused her and found her to have committed plagiarism. She alleged that the University had entered a grade of "F" for Professor LaRose's Criminology Class 321 based upon the plagiarism issues. Among other claims, A.K. requested "a temporary injunction commanding [the University] to remove the Academic Integrity violation and the four (4) hour 'F' for Criminology Class 321 from [A.K.'s] student file to preserve the status quo, and issue a permanent injunction following rendition of final judgment for [A.K.] after trial on the merits."
In LaRose and The University of Tampa v. A.K. (2D08-1996), the court affirmed the entry of a temporary injunction. The trial court applied the correct test and found each of the four elements satisfied. The four elements of an injunction are:

"A temporary injunction may be granted only if the movant establishes (1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest support the entry of the injunction."
In LaRose and The University of Tampa v. A.K. (2D08-3756), the court reversed the trial court's order granting A.K.'s Motion to Enforce Temporary Injunction. "A preliminary injunction is improperly entered when it bypasses the procedures for a permanent injunction and preliminarily grants the same relief that would have been given in a final order of permanent injunction." The court held that the order at issue improperly expanded upon the temporary injunction to provide permanent injunctive relief.

In LaRose and The University of Tampa v. A.K. (2D08-5622), the court dismissed A.K. Petition seeking review of the trial court's order denying her motion for contempt. The court held:

Due to our prior reversal of one of the two orders which A.K. sought to enforce by contempt, we conclude that the instant proceeding is moot and that it would be inappropriate to grant certiorari relief. Additionally, we observe that because A.K. may again seek to enforce the remaining order granting temporary injunctive relief on remand, A.K. cannot be found to have sustained the lasting material injury necessary to invoke this court's certiorari jurisdiction. See DeLoach v. Aird, 989 So. 2d 652, 653 (Fla. 2d DCA 2007).

Wednesday, July 22, 2009

Fee Award Reversed Since Demand For Fees Not in Pleading

In Mercer v. Kanowsky (4D07-3164), the Fourth District reversed a fee award based upon its prior decision in the same case, Wintter & Associates, P.A. v. Kanowsky, 992 So. 2d 434 (Fla. 4th DCA 2008).

The issue was not addressed in the prior decision because "Since the lower court had not yet determined the amount of the fees the beneficiary could recover from the trustee and the law firm, the court’s ruling regarding the beneficiary’s right to fees was not yet appealable."

"On remand, the trust beneficiary continued to pursue her claim for attorney’s fees. Th e trial court awarded fees to the beneficiary, establishing the amount of attorney’s fees and ordering Mercer and the law firm to each bear half of the same. Both the law firm and Mercer appealed. See Wintter & Assocs., P.A., 992 So. 2d at 434. The law firm argued, among other things, that the beneficiary was not entitled to fees as she had failed to plead them as required by Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)."

Because it was not pled, the court reversed the award of attorneys fees.

Dismissal of Declaratory Judgment Claim Reversed

In Murphy v. Bay Colony Property Owners Association (2D08-2246), the Second District reversed the trial court's order dismissing the plaintiff/appellant's claim for declaratory relief.

A complaint for declaratory judgment should not be dismissed if the plaintiff established the existence of a justiciable controversy cognizable under the Declaratory Judgment Act, chapter 86, Florida Statutes (2007). See Thompson v. Fla. Cemeteries, Inc., 866 So. 2d 767, 769 (Fla. 2d DCA 2004). As this court has previously stated, "[t]he test for the sufficiency of a complaint for declaratory judgment is not whether the plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all." "X" Corp. v. "Y" Person, 622 So. 2d 1098, 1101 (Fla. 2d DCA 1993). Thus, Murphy needed to demonstrate that she "is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that [s]he is entitled to have such doubt removed." Id. Murphy must also show a "bona fide, actual, present, and practical need for the declaration." Id. (citing Platt v. Gen. Dev. Corp., 122 So. 2d 48, 50 (Fla. 2d DCA 1960)).

However, the trial court, in granting Bay Colony's motion to dismiss, held that the agreement was not ambiguous because Bay Colony "must give its approval for the improvements Murphy desires." We find the trial court improperly ruled on the final merits of Murphy's claim rather than on the sufficiency of her complaint. See id. Therefore, the trial court's determination was inappropriate at the motion to dismiss stage and cannot be considered a substitute for a motion for summary judgment. Id.; Consuegra, 801 So. 2d at 112.

Client Cannot Be Designated Paralegal In Order To Recover Fees For Time Spent Assisting Attorney

In Lewis, et al v. Nical of Palm Beach, Inc. (4D07-3721), the Fourth District addressed the following claim:

"The attorneys for the Scott Lewis side claim the value of paralegal labor in preparing for hearings and related proceedings. The paralegals in question are not regular employees or staff of their able counsel but instead none other than Scott Lewis and Carol Lewis themselves."

The trial court denied the request and the Fourth District affirmed holding "The inherent possibility for mischief in deeming the client a paralegal of the representing attorney is apparent enough to cast a dense shadow over even the mere theoretical prospect of the argument they make. In this instance we note the utter absence of any showing that the labor of the client was required by the lawyer or had the effect of reducing the fee claimed by the lawyer."

Jury Compromise Not Sufficient to Set Aside Judgment

In Cooper Tire & Rubber Co. v. Pierre, 18 So. 3d 700 (Fla. 4th DCA 2009) (4D08-2414), the Fourth District affirmed the trial court's decision that the jury deliberations were not tainted.

After a day of deliberations, the jury was sent home for the weekend. On Monday they returned and quickly reached a verdict. Ten days later, the jury foreperson filed an affidavit stating that the jury was deadlocked 3-3, however, the 3 jurors against finding liability agreed to find liability if the other three jurors agreed to only award 50% of the damages.

A trial court’s denial of a new trial for alleged improprieties in the verdict is reviewed for an abuse of discretion. State v. Hamilton, 574 So. 2d 124, 126 (Fla. 1981). “Jury compromise may occur when certain jurors agree to find liability as long as the damages award is small….” Rochelle v. State Dept. of Corrections, 927 So. 2d 997, 999 (Fla. 1st DCA 2006).


What allegedly occurred during jury deliberations in the present case does not rise to the level of reaching a verdict by aggregate or by lot. The jury negotiated a verdict by means of normal give and take, and the foreperson’s affidavit stating that two groups of jurors reached a compromise regarding the amount of damages and proportional liability merely recounts a matter that inheres in the verdict.
This opinion was clarified as discussed HERE.

Hearing Must be Held on Timely Filed Objections to Magistrate Report

In Hilb Rogal & Hobbs of Florida, Inc. v. Grimmel (4D09-1314), the Fourth District reversed the entry of judgment based upon the trial court's failure to conduct a hearing on timely filed objections to a magistrates report.

Deadline to Appeal Judgment Entered Pursuant Rule 1.540 Not Extended by Motion for Rehearing and Missed Deadline Not Extended by Excusable Neglect

In SunTrust Bank v. Hodges (4D08-3452), the Fourth District affirmed the trial court's entry of final judgment after non-binding arbitration.

Twenty-one days after the arbitrator filed his award in the amount of $206,000, the appellee moved to confirm the award stating "that, pursuant to Florida Rule of Civil Procedure 1.820(h), Suntrust had not filed a motion for trial de novo within the twenty days of service, and that the decision of the nonbinding arbitrator was therefore final. The trial court granted Hodges’s motion and entered a final judgment."

Six days after the motion to confirm the arbitration award was filed, the appellant filed "its motion for relief from final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)." The appellant argued that "counsel for Suntrust had inadvertently failed to place the motion for trial de novo on the firm’s 'tickler' system and, accordingly, the trial court should grant relief based upon excusable neglect." The trial court denied the motion.

The appellant then filed a "Motion for Rehearing on Defendant, Suntrust Bank’s Motion for Relief from Final Judgment Pursuant to Fla. R. Civ. P. 1.540(b). On August 18, 2008, the trial court entered an order denying the motion for rehearing. It is from this order that Suntrust filed its notice of appeal on August 25, 2008. The notice of appeal from the order of July 16, 2008, is more than thirty days from the entry of the final judgment. This deprives us of jurisdiction."

Rejecting the appellants argument that the deadline to appeal was tolled, the Court held "there is no provision in the appellate rules for filing a petition to rehear an order entered upon a motion for relief under Florida Rule of Civil Procedure 1.540(b) and, therefore, rendition of said order is not affected by a motion for rehearing."

"By dismissing this case for lack of jurisdiction, we need not reach the merits of the case. However, upon reviewing the record on appeal, we conclude the trial court did not err in denying Suntrust’s motion to set aside the judgment, as there was a failure on the part of Suntrust to demonstrate excusable neglect."

Tuesday, July 21, 2009

Judgment Reversed for Failure to Join Indispensible Parties

In Stevens v. Tarpon Bay Homeowners Association, Inc. (4D08-1444), the Fourth District reversed the trial court's judgment. The dispute involved whether two homeowners had a right to space on a community dock within the homeowners association.

The two plaintiffs sued only the association and prevailed at trial. The trial court awarded the two plaintiffs the right to purchase dock space. However, the association had already sold the dock space to other residents of the association.

"Thus, in order to assign the 10-feet spaces to plaintiffs, the Association was required to take space paid for and given exclusively to other owners and award it to plaintiffs. Obviously, this cannot be carried out without affecting the interests of these other owners in the community. By any measure the other owners are indispensible parties, as the court described that term in Cummings...Surely the class of absent owners is not so large that joinder is impractical. Neither does it appear that any of the absent owners is a fugitive from justice as in Glancy v. First Western Bank, 802 So.2d 498 (Fla. 4th DCA 2001). We perceive no practical barrier to joining all the owners if the dock space is to be reallocated. All should be made parties and the case tried anew. The other issues can then be revisited."

First District Affirms Decision Relating to State Farm Withdrawal From Florida

Yesterday, in State Farm Insurance Company v. Office of Insurance Regulation (1D09-592), the First District affirmed the the Jan. 12 final order of Insurance Commissioner Kevin McCarty. The issue relates to State Farm's plan to leave the state and the related rate increase that State Farm previously sought.

A press release on the Florida Office of Insurance Regulation website can be found here and an article in the Palm Beach Post here.

Chapter 88-539, Florida Statutes, Held Unconstitutional

In Mercury Ins. Co. of Florida v. Shands Teaching Hospital and Clinics, Inc. (1D08-1198), the First District found that chapter 88-539, Florida Statutes, violates Article III, section 11(a)(9), of the Florida Constitution. The court stated:

Essentially, the challenged statute entitles any "charitable hospital" located in Alachua County to a lien "for all reasonable charges for hospital care, treatment, and maintenance of ill or injured persons" upon "all causes of action, suits, claims, counterclaims, and demands accruing to such persons" and upon "all judgments, settlements, and settlement agreements rendered or entered into by virtue thereof," arising from the illness or the injuries necessitating the hospital care, except for workers’ compensation injuries. It provides that no release or satisfaction of such a cause of action shall be valid as against the lien "unless such lienholder shall join therein or execute a release of such lien," and that any acceptance of such a release or satisfaction "shall prima facie constitute an impairment of such lien," entitling the lienholder hospital to an action at law to recover "the reasonable cost of such hospital care, treatment, and maintenance." It further provides: "If the lienholder shall prevail in such action, the lienholder shall be entitled to recover from the defendant, in addition to costs otherwise allowed by law, all reasonable attorney’s fees and expenses incident to the matter."


Article III, section 11(a)(9), of the Florida Constitution provides that "[t]here shall be no special law or general law of local application pertaining to . . . creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts." We find that chapter 88-539 is a special law which creates a lien based on a private contract between Shands and its patient, in violation of article III, section 11(a)(9), of the Florida Constitution.

Documents Maintain Privilege Status Even When Disclosed to Testifying Expert

In Mullins, D.M.D. v. Tompkins (1D09-1148), the First District granted certiorari and quashed the trial court's order requiring the production of documents that were provided to a testifying expert.

The documents in question were described by the court as: "Dr. Mullins’ counsel described the materials in controversy as letters from counsel (to Dr. Mullins and her malpractice insurer, whom he also represented) which included counsel’s evaluations of claims and defenses; and as e-mails and other correspondence from Dr. Mullins to him in which she explained in detail and commented on Ms. Tompkins’ care and treatment."

The court held that: "The principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party’s own expert...Even when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence...

Even assuming that work product and privileged communications provided to an expert witness become discoverable if used as a basis for the expert’s opinion, there has been no such showing here.

Eleventh Circuit On Admiralty Jurisdiction

In Jameson Cooper v. Meridian Yachts, Ltd. (08-13830), the Eleventh Circuit issued a 57 page opinion relating to admiralty law and the claims of an employee injured at sea. The opinion goes into great detail on a number of issues, however, the discussion relating to choice of law:
It is clear that this court's jurisdiction lies in admiralty. Tri-State Oil Tools Indus., Inc. v. Delta Marine Drilling Co., 410 F.2d 178, 186 (5th Cir. 1969); see also Casino Cruises Inv. Co., L.C. v. Ravens Mfg. Co., 60 F. Supp. 2d 1285, 1288 (M.D. Fla. 1999) ("It is well-established that a noncontractual indemnity or contribution action, such as the one in this case, is within the scope of the federal courts' admiralty jurisdiction where the action is derived from an underlying maritime tort."). As this case lies in admiralty, federal maritime conflict of laws control. F.W.F., Inc. v. Detroit Diesel Corp., 494 F. Supp. 2d 1342, 1352 (S.D. Fla. 2007) ("[A] federal court sitting in admiralty must apply federal maritime choice-of-law rules." (quoting Aqua-Marine Constructors, Inc. v. Banks, 110 F.3d 663, 670 (9th Cir. 1997))). Furthermore, we review choice of law questions de novo. AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 508 F.3d 995, 999 (11th Cir. 2007).

Sanction Order Against Richard Scruggs Reversed

In E.A. Renfroe & Company, Inc v. Cori Rigsby Moran, et al., Richard F. Scruggs, The Scruggs Law Firm, P.A. (08-13724 & 08-14716), the Eleventh Circuit reviewed an order from the district court sanctioning Richard Scruggs. The facts are somewhat bizarre.

"In early 2006, the Rigsbys approached attorney Richard F. Scruggs with documents they had obtained from the Renfroe firm that allegedly showed that State Farm was fraudulently denying coverage to its insureds in the wake of Hurricane Katrina." Renfroe filed a lawsuit against the Rigsbys seeking the return of the documents. The district court entered an injunction requiring the return of the documents and later held the Rigsbys were not in violation of the injunction because they had disposed of the documents. However, the district court held the non-party Scruggs in criminal contempt.

"Scruggs learned of the injunction on Friday, December 8, 2006. Shortly thereafter, Mississippi Attorney General Jim Hood requested that Scruggs send Hood the set of the State Farm documents Scruggs had obtained from the Rigsbys to avoid disclosure to Renfroe. On December 12, 2006, Scruggs sent Hood his set of the Rigsbys’ documents."

In sanctioning Scruggs, the District Court said that it would request that an attorney for the government prosecute Scrugs. The US Attorney declined to prosecute and the district court judge appointed a special prosecutor "so, pursuant to Rule 42, Fed. R. Crim. P., the district court appointed special prosecutors, recused itself from further proceedings and the prosecution went forward. By order dated February 29, 2008, the district court appointed to conduct Scruggs’ criminal proceedings dismissed the charges, holding, inter alia, that the Renfroe district court did not have jurisdiction over Scruggs to hold him in contempt."

"Subsequently, by order dated June 5, 2008, the Renfroe court decided that it did have jurisdiction over Scruggs and adjudicated both the Rigsbys and Scruggs in civil contempt for their failure to “comply immediately and fully [with the injunction]." It is the June 5th order that the Eleventh Circuit reviewed in this case.

The court reversed the contempt order and held:

"The law is clear that a court may not enforce an injunction against a nonparty “who act[s] independently” of the enjoined party. Regal Knitwear Co., 324 U.S. at 13. “A nonparty who has acted independently of the enjoined defendant will not be bound by the injunction.” Microsystems Software, Inc. Scandinavia Online AB, 226 F.3d 35, 43 (1st Cir. 2000). Such independent conduct by the non-party, as found by the district court to have occurred in this case, does not constitute “aiding and abetting.” Since Scruggs did not aid and abet the bound parties in the Renfroe lawsuit in a violation of the district court’s injunction, he is not subject to the contempt jurisdiction of the district court."

The court then excercised its "supervisory power" and directed that all remaining issues relating to Scruggs be handled by a different district court judge.

Monday, July 20, 2009

Reply Briefs

Also from the (new) legal writer, some great resources on reply briefs:

“Well, let me retort.”1
A reader sent me this e-mail request:
I’m wondering if — in the future — you could comment in your blog on the process of preparing a reply brief in an appellate action. As a young attorney, I have been unable to find any guidance with regard to developing an effective reply brief. Are you aware of any resources or literature on writing reply briefs? It seems to be the most vexing part of my practice.
My response: You bet—that’s a great idea for a post. While I don’t have any original material to respond with, I’m happy to offer this collection of articles on reply briefs:
The Art of the Reply Brief, by Michael A. Pollard (from For the Defense, May 2009).
The Anatomy of an Effective Reply Brief, by Steffen N. Johnson (from Certworthy, Summer 2006).

No Reply?, by Thomas D. Hird (from Certworthy, Summer 2005).

The Reuters Style Guide

The Reuters Style Guide can be found here. [Thanks to the (new) legal writer]. The introduction to the guide states:
Everything we do as Reuters journalists has to be independent, free from bias and executed with the utmost integrity. These are our core values and stem from the Reuters Trust Principles. As a real-time, competitive news service whose reputation rests on reliability, we also value accuracy, speed and exclusivity. The way in which we, as Reuters employees, live these values is governed by the Reuters Code of Conduct. That code, with a few notable exceptions that apply specifically to journalists, governs the behaviour of all Reuters employees and is essential reading. As journalists, however, we have additional responsibilities if we are to fulfil the highest aspirations of our profession – to search for and report the truth, fairly, honestly and unfailingly.

This handbook is not intended as a collection of “rules”. Beyond the obvious, such as the cardinal sin of plagiarism, the dishonesty of fabrication or the immorality of bribe-taking, journalism is a profession that has to be governed by ethical guiding principles rather than by rigid rules. The former liberate, and lead to better journalism. The latter constrain, and restrict our ability to operate. What follows is an attempt to map out those principles, as guidance to taking decisions and adopting behaviours that are in the best interests of Reuters, our shareholders, our customers, our contacts, our readers and our profession.

The handbook, now in its second online edition and fully revised, is the work of no one individual. Dozens of journalists from text, television, pictures and from domestic as well as international services, have worked to bring it up to date. It builds on the work of colleagues, too many to number over the past 150 years, whose commitment
to the most ethical standards of our profession has made Reuters the outstanding news organisation it is today.

April 2008

"GrayRobinson Intellectual Property Team Wins MucinexĂ‚® Jury Trial"

You can view the entire press release, of which portions are copied below, at THIS link.
GrayRobinson Intellectual Property Team Wins MucinexĂ‚® Jury Trial

Five-Day Jury Trial Determines No Likelihood of Confusion

TAMPA, Fla. (July 20, 2009) -- After a recent five-day jury trial and an hour and a half deliberation, GrayRobinson Intellectual Property Attorneys Stefan V. "Steve" Stein and Debra Deardourff Faulk, and local counsel Clyde Siebman and Larry Phillips of Siebman of Reynolds, Burg, Phillips and Smith, LLP, won a jury verdict on behalf of their national client, Reckitt Benckiser, Inc., the manufacturer of Mucinex Mini Melts cough and cold medicine.

The case was filed by Mini Melts, Inc., the manufacturer and distributor of cryogenically frozen ice cream bits known as Mini-Melts® ice cream. The ice cream company sued Reckitt for federal trademark infringement and unfair competition, common law trademark infringement and unfair competition and Texas state dilution. In their decision on infringement and unfair competition, the jury found no infringement or unfair competition between Mucinex® Mini Melts and Mini-Melts ice cream. Reckitt is awaiting a decision from the Court on the claim for Texas state dilution, which had been bifurcated from the jury trial and tried separately to the Court.

"The jury verdict in this case is a great victory for Reckitt and a long anticipated victory for our team," says Stein. "GrayRobinson is a firm that prides itself on being 'extremely Floridian,' however, this win proves our ability to successfully manage out of state cases with extensive national and international trademark portfolios seamlessly."

Stein and Faulk have been defending the federal lawsuit on behalf of Reckitt since 2007. Reckitt's U.S. operations are based out of Parsippany, N.J., and Reckitt is the distributor and owner of a family of trademarks for the well known expectorant Mucinex®, including a national advertising campaign featuring the highly recognized spokesvillain "Mr. Mucus" and his family of characters. A portion of the Mucinex® brand of products includes two children's products, Mucinex® Children's Liquid and Mucinex® Mini-Melts. Mini-Melts ice cream sued Reckitt for use of the name "Mini-Melts" used in connection with the children's granular form of guafeinssan sold under the name Mucinex® Mini-Melts. Among other allegations, Mini-Melts ice cream claimed that the use of the name Mini-Melts on a cough and cold medication for children caused or is likely to cause a likelihood of confusion with Mini-Melts ice cream.

Friday, July 17, 2009

Insurance Policy Only Interpreted Against the Drafter When Term Actually Ambiguous

The recent decision of Dewsnup v. Farmers Ins. Co. of Oregon (A136394) which can be found here is discussed by Diane Polscer on the Insurance Law Forum and is copied below:
Insurers should welcome the Oregon Court of Appeals’ recent decision in Dewsnup v. Farmers Ins. Co. of Oregon, A136394 (July 1, 2009), because it signals the Court’s reluctance to accept insureds’ arguments that ordinary words are ambiguous -- and must be construed in their favor -- if they are not defined by the policy. In the process of rejecting a water damage claim under a homeowners policy, the Dewsnup Court reiterated in favorable language Oregon law regarding the interpretation of insurance policies.

Using New Jersey as an example of a state that might interpret the insurance policy before it differently due to that state’s rules favoring “broad reading of coverage provisions,” the Dewsnup Court wrote that “the Oregon rules of interpretation, of course, are different, requiring construction against the insurer only in the case of unresolvable ambiguity.” While this statement is helpful because it clarifies that ambiguity, by itself, does not require interpretation against the insured, the Dewsnup case is even more helpful for the fact that the court did not even reach an ambiguity analysis. Instead, the Court held that the undefined policy term “roof” is unambiguous in the first place.

In relevant part, the policy at issue in Dewsnup excluded from coverage water damage to the interior of a dwelling or personal property unless the water damage occurred as a result of damage to the “roof” caused by a windstorm or a falling object. As part of a roof repair, the insureds had removed the roof’s wood shakes and physically attached to the roof several sheets of plastic as a temporary cover. After a storm ripped off one sheet of plastic, the insured went on the roof to replace it. However, the insured “lost his footing and fell off the roof, ripping off all the sheets of plastic as he fell.” As a result, the rain from the storm entered the home through the joints in the plywood sheathing “causing considerable damage to the interior of the house and to plaintiffs’ personal property.”

The insureds argued that their loss should be covered because the plastic sheets, which were a part of the roof, were damaged by a windstorm and/or a falling object (the insured). The Court consulted a dictionary and rejected this argument, concluding “that the term ‘roof’ has an unambiguous meaning, and that it does not include the tarps that plaintiffs placed over the house while the shakes were being replaced.” Most refreshing was the Court’s resort to old-fashioned common-sense, writing: “If someone attempted to sell a house that was covered by such a plastic sheet, we doubt that any reasonable buyer would believe that he or she was buying a house that had a ‘roof.’ Most likely, the buyer would say, ‘Where’s the roof?’” The Court’s use of common-sense reasoning should lend some support to insurers using the same tactic in face of insureds’ arguments that undefined policy terms are unambiguous.

Texas Supreme Court On Insurance Appraisals

In State Farm Lloyds v. Johnson (06-1071), the Texas Supreme Court recently addressed insurance appraisals including: a history of insurance appraisal; the scope of damages; causation; and challenges to appraisal awards.

The court's final paragraph follows:
But in every property damage claim, someone must determine the “amount of loss,” as that is what the insurer must pay. An appraisal clause “binds the parties to have the extent or amount of the loss determined in a particular way.” Like any other contractual provision, appraisal clauses should be enforced. There may be a few times when appraisal is so expensive and coverage is so unlikely that it is worth considering beforehand whether an appraisal is truly necessary. But unless the “amount of loss” will never be needed (a difficult prediction when litigation has yet to begin), appraisals should generally go forward without preemptive intervention by the courts.

Thursday, July 16, 2009

Trial Court Must Give Notice Before Dismissing a Complaint Sua Sponte

In Manzano v. Nicoletti (3D08-2719), the Third District reversed a dismissal entered by the trial court on a confession of error by the defendant/appellee.

"We accept the defendants’ concession that where a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond. Surat v. Nu-Med Pembroke, Inc., 632 So. 2d 1136, 1136-38 (Fla. 4th DCA 1994). The defendants acknowledge that the procedure outlined in Surat was not followed here, and accordingly we reverse the dismissal order. This ruling is without prejudice to the defendants to file a motion to dismiss, or the court to raise the issue on its own motion. The plaintiffs must be given a reasonable opportunity to respond in writing, and if at all possible, should be afforded the right to be heard at the hearing telephonically."

Third DCA Reverses Fee Award in Lemon Law Arbitration Dispute

In General Motors Corporation v. Sanchez (3D08-1769), the Third DCA addressed the award of attorneys fees to Sanchez. The "discrete controversy [related] to the entitlement of attorneys’ fees for the successful representation of a motor vehicle purchaser before the Lemon Law arbitration board."

The court stated: "It is, of course, well established in Florida, which fully endorses the so called American Rule on the question, that each party, including the successful one, in litigation must ordinarily bear the burden of his own attorneys’ fees...Of the narrow exceptions to this doctrine, the only one which even conceivably applies arises when fees are authorized by statute...

The square holdings of the Florida Supreme Court in Hubbel v. Aetna Casualty & Surety Co., 758 So. 2d 94, 97 (Fla. 2000), in which the Court stated: “Generally, the law is clear that attorney’s fees are not considered to be a ‘loss’ or damages, and to be recoverable must be expressly provided for by statute, rule, or contract[,]” and in Bidon v. Department of Professional Regulation, 596 So. 2d 450, 452 (Fla. 1992), where it was said that “the legislature is presumed to have been aware of the case law excluding attorney’s fees from the recovery of actual or compensatory damages,” leave no doubt as to this proposition.

It is therefore clear that the present action which seeks to recover expenses are not “damages,” cannot be maintained, and it follows, the second sentence in section 681.112(1), providing for fees in a successful action under that statute cannot apply.


The appellee argues that Gelinas v. Forest River, Inc., 931 So. 2d 970 (Fla. 4th DCA 2006), review denied, 954 So. 2d 27 (Fla. 2007), requires a different result. The trial court agreed but we don’t...[In Gelinas] The manufacturer seems not to have argued, and the Fourth District seems not to have considered, analyzed or, much less, resolved the underlying issue of whether those fees are recoverable at all. Having engaged in that process ourselves, we feel unbound by any contrary indications in the language of the Gelinas decision. We feel generally the same way about Fox v. Porsche Cars North America, Inc., 279 F. App’x 748 (11th Cir. 2008), which, indeed, directly holds that these fees are recoverable. In Fox, the federal court, in discharging its duty under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), to apply the existing law of Florida, felt bound by the Gelinas dicta – in the absence of any competing authority. That authority now exists.

Third DCA Reverses Finding No Personal Jurisdiction Over Foreign Defendant

In Vos, B.V. v. Payen (3D08-2635), the Third District reversed "because Vos’ general business contacts with Florida were insufficient to support the plaintiffs’ assertion of personal jurisdiction over Vos."

The court described the facts as "heartbreaking" and relate to "1995 through 1997, [when] a tainted batch of children’s fever medicine was distributed in Haiti causing the deaths of more than seventy children, and the serious illness of a number of other children. Public health officials traced the deaths and illnesses to a shipment of glycerin that was manufactured in China, purchased through a German company, and eventually sent to Haiti by Vos. The plaintiffs are either the personal representatives of the estates of the deceased children, or the parents of the survivors."


"As an initial matter, it is undisputed that the instant claim does not specifically relate to, or arise out of, Florida activity...Thus, the sole issue on appeal is whether the courts of Florida may properly exercise general personal jurisdiction over Vos by way of its regular business contacts with Florida, unrelated to the present claim. See § 48.193(2), Fla. Stat. (1997)."


“An assertion of general jurisdiction under [section 48.193(2)] requires a ‘showing of continuous and systematic general business contacts’ with this state...The requisite threshold of “continuous and systematic” contacts is significantly more demanding than the showing necessary to establish specific jurisdiction because section 48.193(2) does not require any connection between a plaintiff’s claim and the defendant’s Florida activities. Furthermore, to establish general personal jurisdiction, a plaintiff must show that the defendant’s conduct in connection with Florida is “such that he [or she] should reasonably anticipate being haled into court []here.”

During the relevant time period: (1) Vos had no offices or employees in Florida; (2) Vos did not own any assets or real estate in Florida; (3) Vos did not distribute any chemicals into or through Florida; (4) Vos did not advertise in Florida; and (5) Vos never sent representatives to Florida. Thus, the plaintiffs’ case depends on characterizing Vos’ contacts with A&V, Quem, and SunBank as so pervasive that this Dutch corporation should reasonably anticipate being sued in Florida on an unrelated matter.

A foreign defendant’s de minimis contacts with Florida cannot form the basis of an assertion of personal jurisdiction in Florida, where the plaintiff’s claim arises out of an unrelated foreign incident.

Therefore...we hold that because Vos’ Florida “sales” during the relevant time period amounted to just 0.236% of its total annual sales, they are de minimis and are insufficient to support an exercise Florida’s jurisdiction.

Finally, we address the evidence found by the trial court to be “most damaging” to Vos’ case—Vos’ alleged use of Florida’s banking system to facilitate its sales to A&V. Our review of the evidence on this issue reveals that in the transactions involving A&V, CommerzBank Nederland sent shipping documents to SunBank, SunBank notified A&V of the documents’ arrival, A&V signed the trade acceptance forms and submitted payment to SunBank. SunBank then transferred the funds and paperwork to CommerzBank. Vos’ involvement in the process was virtually non-existent, and SunBank merely operated to facilitate the international transfer of money under a letter of credit. Such contacts are clearly insufficient to establish personal jurisdiction over Vos.

Wednesday, July 15, 2009

Sua Sponte Dismissal of Appeal of Order That Was Neither Final Nor An Appealable Non-Final Order

In Rust v. Brown (4D08-2584), the Fourth District sua sponte dismissed an appeal because the order being reviewed was "neither a final nor an appealable, non-final order."

"An order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party. White Palms of Palm Beach, Inc. v. Fox, 525 So. 2d 518, 519 (Fla. 4th DCA 1988), abrogated on other grounds by Dobrick v. Discovery Cruises, Inc., 581 So. 2d 645 (Fla. 4th DCA 1991). Here, the order in essence sustained the surviving spouse’s objection to the personal representative’s apportionment plan. It is neither a final nor an appealable, non-final order. We must therefore dismiss the appeal."

Non-Party Cannot Be Ordered To Deposit Money Into Court Registry

In BNB Construction, Inc. v. Nicon Construction, Inc. (4D09-1137), the Fourth District reversed a trial court's order requiring money be paid into the court registry. "As petitioners were not parties to the litigation below when the order issued, we exercise certiorari review and grant the petition."

If Underlying Judgment Is Reversed, Fee Award Must be Reversed As Well

In Hickman v. Barclay’s International Realty, Inc. (4D08-677), the Fourth DCA reversed a fee award in a case they already reversed the underlying judment [See here and here.].

When a fee award is based upon a judgment that is reversed, the fee award must be reversed as well.

Prejudgment Interest After an Insurance Appraisal and What is a Denial of Coverage?

In Sunshine State Insurance Company v. Davide (3D08-2376), the Third DCA held prejudgment interest is awarded from the date payment is due and not the date the insured suffers his loss.

The insured and the insurer participated in an appraisal which contained the following question:
This appraisal award is in total, and money previously paid by the carrier to its insured on the subject claim, if any, should bededucted from this award. This appraisal award is subject to the terms and conditions of the policy of insurance (e.g., deductible) and thelaws of the State of Florida.
After the appraisal, the insurer could not determine if it should deduct depreciation from the payment. Unable to get a response from the umpire, the insurer paid the award and subtracted the depreciation. "Some three months later, Davide brought suit to confirm the appraisal award. According to Sunshine, that same day, Davide’s counsel obtained a letter from the umpire which, according to Davide’s counsel, confirmed counsel’s understanding that the award was an actual cash value award which took depreciation into account. This information was provided to Sunshine on March 8, 2007, and the amount previously withheld by Sunshine was paid to Davide on April 4, 2007."

The insured argued deducting the depreciation was a denial of coverage and the trial court agreed. The Third DCA, however, did not. "The record before us confirms that Sunshine has never denied coverage of Davide’s claim, but rather only disputed the amount to be paid under the policy to satisfy this claim...As the court in Mallett makes plain, the provisions governing appraisal deal with “covered” claims and 'determine the date from which the coverage payment is due, as well as when interest is due on the amounts payable'.”

Here, Sunshine’s debt became due when the appraisal liquidated Davide’s loss. That amount came due under the policy sixty days after “[t]here [was] a filing of an appraisal award. . . with [Sunshine].” Davide is therefore entitled to pre-judgment interest on that portion of the appraisal award not timely paid within sixty days of the filing of the appraisal award with Sunshine, not from the date that Davide’s home was damaged.

Tuesday, July 14, 2009

Final Foreclosure Judgment Reduced by Insurance Proceeds Received Post Judgment

In Leonberg v. Washington Mutual Bank, FA (2D07-4807), the Second DCA noted that a judgment in a foreclosure action can be amended "in light of the payment Washington Mutual received from an insurance claim after the subject property was substantially destroyed by a fire that occurred subsequent to the final judgment."

Seventh Circuit Upholds Abortion Parental Notification Law

In David Zbaraz, MD v. Lisa Madigan, Attorney General of Illinois (08-1620), the Seventh Circuit addressed the following question and found it to be constitutional:

The question presented here is a narrow one: whether the Illinois Parental Notice of Abortion Act of 1995, 750 ILCS 70/1 et seq., is facially invalid because its judicial bypass provisions lack language authorizing a state court judge to issue an order allowing an immature minor to consent to an abortion without notifying her parents, where an abortion without notice would be in her best interests.

Articles about the decision can be found here and here.

Florida Supreme Court On Summer Recess

The Florida Supreme Court "will be in summer recess from July 13 through August 14."

Monday, July 13, 2009

Mailing Days Do Not Extend Time to Appeal in the Eleventh Circuit

In Howard Gregory Cordell v. Pacific Indemnity Co. (08-15281), the Eleventh Circuit rejected the appellants contention that the "mailing days" provided by the Federal Rules extend the deadline to file a notice of appeal.

On a procedural note, the court addressed a decision by a motions panel that the appellee argued made moot the entire appeal. The Eleventh Circuit stated: “[a] ruling on a motion or other interlocutory matter, whether entered by a single judge or a panel, is not binding upon the panel to which the appeal is assigned on merits, and the merits panel may alter, amend, or vacate it.”
As to the deadline to file the notice of appeal:

We have held that “[t]he 30-day requirement of Fed.R.App.P. 4(a) is not affected by Fed. R. Civ. P. 6(e); since the appeal time starts from the entry of the judgment and not from service of the notice, Rule 6(e) does not apply so as to enlarge the time allowed for filing the notice of appeal.” Lashley v. Ford Motor Co., 518 F.2d 749, 750 (5th Cir. 1975) (per curiam). Next, Federal Rule of Appellate Procedure 26 provides, in pertinent part, that “[w]hen a party is required or permitted to act within a prescribed period after a paper is served on that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service.” FED. R. APP. P. 26(c). However again, we have held that because “the court of appeals has no jurisdiction over a case until a notice of appeal is timely filed, Fed.R.App.P. 26(c) has no application to the 30-day requirement.”

Finally, the court rejected the pro se appellants argument that they demonstrated excusable neglect or good cause to allow the untimely filing.

Title Insurance and the Merger Doctrine

In Morton v. Attorneys' Title Ins. Fund, Inc. (2D08-1313), the Second District reversed the grant of summary judgment in favor of the title insurer.

"The man on the street buys a title insurance policy to insure against defects in the record title...Because the policy functions as a guaranty, the buyer who purchases title insurance reasonably expects to be protected against title defects which appear of record."


Florida law requires a title insurer to competently search the record title before issuing a policy...Here, as in McDaniel, the Fund "totally overlooked the recorded easement." McDaniel, 327 So. 2d at 855. Because the Buyers were entitled to rely on the policy’s guarantee that there were no recorded easements on the property, we find that placing the burden of loss on the Buyers is error.


We also find that summary judgment for the Sellers was improper, and we reject the Sellers’ argument that the sales contract merged into the Sellers’ warranty deed, which made an exception for recorded easements. Here, the sales contract provided that the Sellers would convey marketable title by statutory warranty deed. The deed here stated "that said land is free of all encumbrances, except taxes accruing subsequent to December 31, 2004." However, six lines above this language, a clause in the deed stated the conveyance was "[s]ubject to taxes for 2005 and subsequent years; covenants, conditions, restrictions, easements, reservations and limitations of record, if any." (Emphasis added.) Therefore, we find inherent conflict within the deed, which converted the bargained-for statutory warranty deed described in the sales contract into a nullity. Here, the Sellers cannot hide behind the merger doctrine to avoid liability for breach of the sales contract.3

[Footnote 3: Under the merger doctrine, "'[i]t is a general rule that preliminary agreements and understandings relative to the sale of property usually merge in the deed executed pursuant thereto.'" Engle Homes, Inc. v. Jones, 870 So. 2d 908, 910 (Fla. 4th DCA 2004) (quoting Milu, Inc. v. Duke, 204 So. 2d 31, 33 (Fla. 3d DCA 1967)). The purpose of the merger doctrine is not applicable under the circumstances here because the deed language conflicts with the bargained-for sales contract.]


For the reasons stated above, summary judgment for the Fund and the Sellers was improper where the Fund failed to discover an easement of record and the Sellers conveyed less than what was bargained for in the sales contract. Accordingly, we reverse the trial court’s final summary judgment in favor of the Fund and the Sellers.

Reversal for Failure to Grant Continuance and for Failure to Consider Objection to Magistrate's Recommendation

In Riley v. Riley (2D08-62), the Second District reversed the final judgment below for failure to grant a motion for continuance prior to the final hearing and for the trial court's failure to hear a timely filed objection to the magistrates recommendation.

Although a trial court has broad discretion in determining whether to grant a motion for continuance, that discretion is not absolute. Neal v. Swaby, 975 So. 2d 431, 433 (Fla. 2d DCA 2007). The appellate court considers the following factors in determining whether the trial court abused its discretion in ruling on a motion for continuance: "1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted." Id. (quoting Baron v. Baron, 941 So. 2d 1233, 1235-36 (Fla. 2d DCA 2006)).


A trial court must hear timely filed exceptions to a magistrate's report. See Fla. Fam. L. R. P. 12.490(f); Betz v. Betz, 790 So. 2d 1128, 1130 (Fla. 2d DCA 2001). Rule 12.490(f) provides, "The parties may serve exceptions to the report within 10 days from the time it is served on them." Pursuant to rule 12.090 and Florida Rule of Civil Procedure 1.090(e), the Husband had an additional five days to serve his exceptions because the magistrate's report was served on him by mail. See Werntz v. Floyd, 814 So. 2d 480, 481 (Fla. 4th DCA 2002); Palmer v. Palmer, 582 So. 2d 639, 640 n.1 (Fla. 3d DCA 1991). In fact, the Wife cites Werntz in her answer brief and recognizes that the Husband was allowed the additional five days to serve his exceptions. The time to serve the exceptions began to run on April 24, 2007, the day after the earliest date the report could have been served on the Husband. See Fla. R. Civ. P. 1.090(a); Palmer, 582 So. 2d at 639-40. The Husband timely served his exceptions on May 8, 2007, the fifteenth day after April 23, 2007. Thus, the trial court should have considered the Husband's exceptions before it entered the final judgment. See Betz, 790 So. 2d at 1130.

Third Party Beneficiary, Requirements for Affidavit in Support of Summary Judgment, and Mutual Mistake

In Enterprise Leasing Co. v. Demartino (2D08-4433), the Second District reversed the trial court's grant of summary judgment because "the evidence was incompetent."

Issue 1: Standing of a Third Party Beneficiary

As an initial matter, we note that Enterprise has standing to challenge the entry of this final summary judgment. This court has held that an intended third-party beneficiary of a release has standing to enforce that release. See Olsen v. O'Connell, 466 So. 2d 352, 354 (Fla. 2d DCA 1985). This holding arises out of general principles of contract law, which provide that an intended third-party beneficiary of a contract may sue to enforce that contract. See, e.g., Marianna Lime Prods. Co v. McKay, 147 So. 264, 265 (Fla. 1933); M-I LLC v. Util. Directional Drilling, Inc., 872 So. 2d 403, 404-05 (Fla. 3d DCA 2004). Further, this court and others have held that when a release clearly states that it releases "all other persons and/or corporations who are or may be liable" for the subject damages, the other persons and corporations may be third-party beneficiaries of that release and thus have standing to enforce the release. See, e.g., Hester v. Gatlin, 332 So. 2d 660, 662 (Fla. 2d DCA 1976); Quarterman v. City of Jacksonville, 347 So. 2d 1036, 1038 n.2 (Fla. 1st DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So. 2d 393, 395 (Fla. 3d DCA 1976).

Issue 2: Requirements of Affidavit to Support Summary Judgment

The '[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.' Fla. R. Civ. P. 1.510(e) (emphasis added). When a supporting affidavit does not comply with these requirements, it is legally insufficient to support the entry of summary judgment in favor of the moving party.

Issue 3: Mutual Mistake

'A mistake is mutual when the parties agree to one thing and then, due to either a scrivener's error or inadvertence, express something different in the written instrument'...Thus, to prevail on their reformation count, the Demartinos were required to show that both they and Windsor Group intended to release only Windsor Group and that the release language stating otherwise was the result of inadvertence or a scrivener's error.

Here, the affidavits signed by the Demartinos and their counsel establish their intent to release only Windsor Group. However, no competent evidence established Windsor Group's intent...In light of Ragoza-Miller's lack of personal knowledge relating to Windsor Group's intent when the 1998 release was signed, her deposition testimony, like the affidavit testimony at issue in West Edge II, In re Forfeiture of 1998 Ford Pickup, and Zoda, is not competent evidence of Windsor Group's intent when it drafted and signed the 1998 release. Ragoza-Miller's testimony is thus incompetent to support the Demartinos' claim of mutual mistake. Because the Demartinos presented no other competent evidence to establish Windsor Group's intent, the trial court erred in entering summary judgment in their favor on their reformation count.

Issue 4: Summary Judgment for Non-Moving Party?

In this appeal, Enterprise argues that this court should not only reverse the summary judgment in favor of the Demartinos, but also should order the trial court to enter summary judgment in its favor on remand. This we cannot do. The supreme court has held that when a release has both written and preprinted provisions concerning the intended releasees, the intent of the parties as to who is to be released is a question of fact. See Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 434 (Fla. 1980) (holding that because the preprinted language routinely included in releases was often "boilerplate" language that did not necessarily reflect the intent of the parties, the presence of that "boilerplate" language could not be construed as a matter of law to reflect the parties' intent). Thus, when there are two types of release language—some written and some preprinted—within a single form, a latent ambiguity exists that requires the parties' intent to be determined as a matter of fact. Id.

Here, like the release at issue in Hurt, the 1998 release contains both written and preprinted terms within a single form. Pursuant to Hurt, the "boilerplate" release of other entities cannot be construed to release Enterprise as a matter of law. Instead, the question of whether both the Demartinos and Windsor Group intended to release entities other than Windsor Group is a question of fact. Accordingly, on this record, Enterprise is not entitled to summary judgment in its favor on remand.

Second District Affirms Order Allowing Nationwide to Take EUO and Preserve Right to Deny Claim

In Hungerman v. Nationwide Mutual Fire Ins. Co. (2D08-2353), the Second District affirmed "the circuit court's determination that he must submit to an examination under oath, that he must produce records to Nationwide, and that Nationwide is entitled to reserve its rights under the applicable insurance policy."

The appellant made a claim for PIP benefits under a policy issued by Nationwide to the appellant's employer. Nationwide paid until the coverage was exhausted. At that point, Nationwide sought to take an examination under oath (EUO) to explore its potential liability under the uninsured motorist portion of the policy and to preserve its right to later deny the claim.

The appellant filed a declaratory action against Nationwide stating that since he had not yet filed a claim he was not required to submit to the EUO and challenging Nationwide's right to deny the claim.

The circuit "court determined that Hungerman was an 'insured driver' under the policy; that the policy provided, among other types of coverage, PIP and UM coverage; and that even in the absence of a separate written claim by Hungerman for UM coverage, the policy provisions obligated Hungerman to submit to an EUO and to produce records and permitted Nationwide to reserve its rights."

The Second District concluded "that the circuit court did not err in its interpretation of the policy language and its determination of Hungerman's obligations and Nationwide's rights under the policy. As to Hungerman's contention that Nationwide's conduct (seeking an EUO and medical records and reserving its rights) constituted harassment and was unauthorized, the record does not establish that Nationwide failed to abide by the reasonableness provisions set forth in its policy or that it engaged in unfair claim settlement practices. See §§ 624.155(1)(a)(1), 626.9541(1)(i), Fla. Stat. (2007). Accordingly, we affirm the final judgment in all respects."

Thursday, July 9, 2009

Florida Supreme Court Exercises Its Inherent Judicial Authority to Sanction Abusive Litigant

In Steele v. Florida, et al. (SC08-1865), the Florida Supreme Court exercised its inherent judicial authority to sanction an abusive litigant.

The petitioner had filed 27 previous petitions in the Florida Supreme Court, each of which were deemed meritless. Following the lead of the Fifth DCA who sanctioned the petitioner in 2008, the court stated:

The United States Supreme Court has also stated that "[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice."


Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Jonathan R. Steele that are related to his conviction or sentence in Ninth Judicial Circuit Case No. CR96-CF-3036 unless such filings are signed by a member in good standing of The Florida Bar. Under the sanction herein imposed, Steele is not being wholesale denied access to the Court. Steele may petition the Court about his conviction or sentence in Case No. CR96-CF-3036 through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith. However, Steele’s abusive pro se filings related to his conviction or sentence must immediately come to an end.

Florida Supreme Court Reverses Death Sentence and Orders Judgment of Acquittal

Today, the Florida Supreme Court affirmed five death sentences [and/or denied writs of habeas corpus]. However, in Lindsey v. Florida (SC07-1167), the court not only reversed the death sentence but ordered that a judgment of acquittal be entered.

Florida Supreme Court Concludes Damages in Eminent Domain Case Must Account For Actual Economic Realities Including A Business's Relocation

In Systems Component Corp. v. Florida Department of Transportation (SC08-1507), the Florida Supreme Court approved the Fifth District's decision in System Components Corp. v. Department of Transportation, 985 So. 2d 687 (Fla. 5th DCA 2008) the decision of the Fourth District in State Department of Transportation v. Tire Centers, LLC, 895 So. 2d 1110 (Fla. 4th DCA 2005).

The issue in the case was "whether an award of business damages in an eminent-domain action under section 73.071(3)(b), Florida Statutes (2004), should include and account for the actual economic realities of the business‘s operations given its relocation following a partial taking."

The court "agree[d] that the actual extent of harm suffered by an affected business is the "sine qua non" of any eminent-domain business damages awarded pursuant to section 73.071(3)(b). Sys. Components, 985 So. 2d at 693. Due to the inherent nature of "damages" in this context, business damages "are not intended to be a windfall unconnected with any out-of-pocket loss." Id. at 690.2 For these reasons, when a qualified partial taking destroys a business at its prior location, and the land/business owner chooses to relocate, the resulting business damages are measured by the "probable" financial impact "reasonably" suffered as a result of the taking. § 73.071(3)(b), Fla. Stat. (2004); see also Sys. Components, 985 So. 2d at 689-93. Under the circumstances presented here, we therefore conclude that if an affected business chooses to relocate, its business damages must be determined in light of its continued existence at its new location. "


"In resolving this conflict, we conclude that when a qualified partial taking destroys a business at its prior location, and the land/business owner chooses to relocate, the resulting business damages must be measured by the probable financial impact reasonably suffered as a result of the taking. Therefore, these business damages must be determined in light of the true economic realities of the given case, which, here, involved a relocated business‘s continued existence at its new location."