Wednesday, April 28, 2010

Eleventh Circuit Affirms ERISA Order Relating To Plan's Subrogation Provision

In Zurich American Ins. Co. v. O'Hara (08-16875), the Eleventh Circuit released a published opinion and affirmed the trial court's order in favor of Zurich and requiring the appellant to reimburse the insurer.  The court outlined the facts as follows:
On 22 February 2005, O’Hara, a beneficiary and covered person under the Plan, sustained serious bodily injuries when the car he was driving was struck head-on by a large pick-up truck. Following the accident, the Plan paid $262,611.92 in medical expenses on O’Hara’s behalf. O’Hara later sued the other driver, and the parties to that action settled for $1,286,457.11.1
After learning of O’Hara’s third-party recovery, Zurich attempted to collect the $262,611.92 from O’Hara pursuant to the Plan’s subrogation and reimbursement provision. 
As to the law, the court stated:
ERISA § 502(a)(3) authorizes a plan fiduciary to bring a civil action “to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or . . . to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3) (2009). O’Hara argues that enforcement of the reimbursement and subrogation provision is not “appropriate” because he was not made whole by his third-party recovery.
“Under the make-whole doctrine, an insured who has settled with a third-party tortfeasor is liable to the insurer-subrogee only for the excess received over the total amount of his loss.” Cagle v. Bruner, 112 F.3d 1510, 1520 (11th Cir. 1997).
O’Hara contends that, as a matter of equity and in order to effectuate ERISA’s policy of protecting plan beneficiaries, the make-whole rule must be applied because allowing Zurich to recoup the medical expenses it paid on his behalf unduly punishes him by requiring him to forfeit a substantial portion of the compensation he received for his other losses, including future wages and bodily integrity, and unjustly enriches Zurich. We disagree.
Applying federal common law to override the Plan’s controlling language, which expressly provides for reimbursement regardless of whether O’Hara was made whole by his third-party recovery, would frustrate, rather than effectuate, ERISA’s “repeatedly emphasized purpose to protect contractually defined benefits.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S. Ct. 3085, 3093 (1985)...Applying federal common law to deny an employer its right to reimbursement pursuant to a written plan would also frustrate ERISA’s purposes by “discourag[ing] employers from offering welfare benefit plans in the first place.” Varity Corp. v. Howe, 516 U.S. 489, 497, 116 S. Ct. 1065, 1070 (1996).
O’Hara appeals the district court’s order granting summary judgment in favor of Zurich and ordering O’Hara to reimburse Zurich for the medical expenses the Plan paid on O’Hara’s behalf. Because full reimbursement according to the terms of the Plan’s clear and unambiguous subrogation provision is necessary not only to effectuate ERISA’s policy of preserving the integrity of written plans but to protect the interests and expectations of all plan participants and beneficiaries, such relief is both “appropriate” and “equitable” under ERISA § 502(a)(3).
 The briefs can be found at the following links:

Eleventh Circuit Reverses Injunction Against FDIC Relating To Colonial Loans

In Bank of America v. Colonial Bank (09-14739), the Eleventh Circuit reversed a temporary injunction (discussed HERE) because the district court lacked "jurisdiction to enjoin the FDIC as receiver and that Bank of America must first exhaust the administrative claims process prior to seeking a judicial remedy."  Writing for a panel that included Justice O'Connor, Judge Anderson stated:
This case arises from the collapse of Colonial Bank (“Colonial”), the fifth largest bank failure in the near 77-year history of the Federal Deposit Insurance Corporation (“FDIC”). Bank of America, N.A. (“Bank of America”), brought this action against Colonial, alleging it wrongfully refused to return thousands of mortgage loans and their proceeds, valued in excess of $1 billion, to which Bank of America had legal title. On August 13, 2009, the district court entered a temporary restraining order (“TRO”) against Colonial, prohibiting the bank from taking any action with respect to the disputed assets. The next day, the FDIC was appointed as receiver for Colonial, and was promptly substituted as defendant in this case. Thereafter, the district court converted the TRO into a preliminary injunction against the FDIC, rejecting the FDIC’s arguments that the district court lacked jurisdiction to enjoin the FDIC as receiver and that Bank of America must first exhaust the administrative claims process prior to seeking a judicial remedy. The FDIC filed both a timely appeal of the district court’s preliminary injunction order and a petition for a writ of mandamus to dissolve the district court’s preliminary injunction. We consolidated the two actions and expedited this appeal.
Our inquiry in this case is limited to the threshold question of subject matter jurisdiction. The FDIC argues that the anti-injunction provision of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”), 12 U.S.C. §1821(j), deprived the district court of jurisdiction to enjoin the FDIC because the preliminary injunction unlawfully restrained the FDIC’s exercise of its receivership powers and functions. Because we conclude that the FDIC’s proposed actions with respect to the loans and loan proceeds at issue fall squarely within its statutory receivership powers and functions, we hold that 12 U.S.C. § 1821(j) stripped the district court of its jurisdiction to enter the preliminary injunction. Accordingly, we vacate the district court’s order and remand with instructions to dismiss Bank of America’s motion for a preliminary injunction for lack of jurisdiction.

Not Bound By Answer To Certified Question, 11th Circuit Holds Contract Violates Contract Clause

In Reliable Tractor, Inc. v. John Deere Construction & Forestry Company (09-16152), the Eleventh Circuit reversed the district court's summary judgment order that was entered after certifying a question to the Maryland Court of Appeals and stated:
And, we are bound to accept the Maryland Court of Appeals’ conclusion that, under Maryland law, the Act’s good cause provision applies to the agreements. Even so, we conclude that application of the good cause provision would violate the Contracts Clause of the United States Constitution.
The court analyzed the Contracts Clause as follows:
Article I, § 10 of the United States Constitution provides that no state shall pass any law impairing the obligation of contracts. In determining whether a state law violates the Contracts Clause, we ask “whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial.” General Motors Corp. v. Romein, 503 U.S. 181, 186, 112 S. Ct. 1105, 1109 (1992)....While the Maryland Court of Appeals held that for purposes of Maryland law the dealer agreements in this case should be considered a series of 120 contracts, we are not bound to adopt this interpretation. Rather, we must conduct an independent federal law analysis of the agreements for purposes of the Contracts Clause inquiry.
Because the original 1984 dealer agreements were in force in 1998 when the Maryland Act’s good cause provision became law, the Act effected a change in law that impaired an existing contractual relationship—it limited a contractual right to terminate the dealer agreements. And, we conclude that this impairment was substantial. The Maryland Act impairs the contractual right of one party, John Deere, to terminate the contract without cause on 120 days notice. Applying the Act would effectively extend the dealer agreements indefinitely unless John Deere can meet the terms of the Act’s good cause provision. We conclude that this would substantially impair the contractual relationship between John Deere and Reliable Tractor and would violate the Contracts Clause. 

Does The Stamp On The Notice Of Appeal Control Appellate Jurisdiction?

In Soledispa v. La Salle Bank National Association (4D10-998), the Fourth District dismissed the appeal as untimely filed based upon the date stamp affixed to the notice of appeal by the trial court's clerk of court.  The court relied upon its holding in Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield, 24 So. 3d 666 (Fla. 4th DCA 2009), which was discussed HERE.  The Soledispa opinion stated:
Here, the clerk stamped the notice of appeal as being filed February 23, 2010, from a final judgment rendered January 13, 2010, thus making the notice untimely. While appellant has filed affidavits stating that a courier delivered the notice of appeal to the Broward County Clerk’s office on February 11, 2010, the filing stamp date governs the filing date.
As it did in Strax, the court certified conflict with Weintraub v. Alter, 482 So. 2d 454 (Fla. 3d DCA 1986).  The court also certified conflict with Ocr-EDS, Inc. v. S & S Enterprises, Inc., --- So.3d ----, 2010 WL 838164 (Fla. 5th DCA Mar. 12, 2010).  The Ocr-EDS court stated:
We write to express our disagreement with Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield, 24 So. 3d 666 (Fla. 4th DCA 2009), which held that appellate court jurisdiction may only be determined from the trial clerk's time stamp on a notice of appeal, so that a timely-filed notice of appeal will be conclusively deemed untimely if it is incorrectly datestamped after the jurisdictional deadline. By contrast, we hold that a timely-filed notice of appeal is sufficient to confer appellate jurisdiction over the matter, even if the notice is erroneously time-stamped with a date after the jurisdictional deadline....This reading of the rules also conforms with the long-standing principle that "[w]hile our procedural rules [should] provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice." Rogers v. First Nat'l Bank at Winter Park, 232 So. 2d 377, 378 (Fla. 1970). A rule that would deny a citizen who has timely sought an appeal his or her right to appeal based upon a proven mistake by a clerk's office employee is not consistent with justice or due process. Accordingly, we relinquish this matter to the circuit court for a period of forty-five days, with directions that the trial judge conduct an evidentiary hearing to determine whether Appellants' notice of appeal was received on November 20, as Appellants' evidence suggests. We certify conflict with Strax.

Thursday, April 22, 2010

Order Compelling Appraisal Affirmed With Coverage Challenges Addressed By Court

In Sunshine State Insurance Company v. Rawlins (3D09-2842), the Third District affirmed the trial court's order compelling appraisal and simultaneously addressing coverage challenges.  The court stated:
the trial court did not abuse its discretion when it allowed the appraisal to go forward while preserving all of Sunshine States’s rights to contest coverage as a matter of law.
Moreover, it is the law in our district that the order in which the issues of damages and coverage are to be determined by arbitration and the court is left to the discretion of the trial court.  See Paradise Plaza Condo. Assoc., Inc., v. The Reinsurance Corp. of New York, 685 So. 2d 937 (Fla. 3d DCA 1996). In Paradise Plaza, we recognized that putting the issue of coverage first before arbitration in every case might have adverse effects on the expeditious, out of court disposition of litigation, which is the reason arbitration is a favored remedy. Id. It also saves “judicial resources which might otherwise be required in resolving the factual and legal issues involved in the [coverage issue] by a relatively swift and informal decision by the appraisers as to the amount of the loss.”
Accordingly, we affirm the trial court’s Order on Plaintiff’s Motion to Compel Appraisal and to Abate the Action. The trial court did not abuse its discretion in allowing the appraisal to go forward on a dual track basis, while preserving all of Sunshine States’s rights to contest coverage as a matter of law.

Unsigned Loan Documents Without An Affidavit Cannot Support Summary Judgment

[UPDATE: The Fourth District granted rehearing and affirmed the trial court. The decision on rehearing was discussed HERE.]

In Riggs v. Aurora Loan Services, LLC (4D08-4635), the Fourth District reversed a summary judgment of foreclosure based upon the appellants "objections that Aurora’s status as lawful “owner and holder” of the note was not conclusively established by the record evidence."  The Fourth District stated:
Aurora filed a copy of the mortgage and a copy of the promissory note, which named Riggs as the mortgagor and First Mangus Financial Corporation as the mortgagee. The promissory note reflected an “endorsement in blank,” which is a stamp with a blank line where the name of the assignee could be filled in above a pre-printed line naming First Mangus.
In the instant case, th e endorsement in blank is unsigned and unauthenticated, creating a genuine issue of material fact as to whether Aurora is the lawful owner and holder of the note and/or mortgage. As in BAC Funding Consortium, there are no supporting affidavits or deposition testimony in the record to establish that Aurora validly owns and holds the note and mortgage, no evidence of an assignment to Aurora, no proof of purchase of the debt nor any other evidence of an effective transfer. Thus, we reverse the summary judgment and remand for further proceedings. We find no merit in any of the other arguments raised on appeal.

Sunday, April 18, 2010

Contingency Fee Contract Does Not Trump Homestead Protection - Regardless of Whether Contingency Occurs

In Quiroga v. Citizens Property Insurance Corporation (3D08-2942), the Third District affirmed "an order denying [a] law firms motion to impress a charging lien on the homeowner’s insurance proceeds for damages caused by two hurricanes."  The court stated:
The parties do not dispute the hurricane-damaged property is constitutionally exempt homestead property....In the event a homestead is damaged through fire, wind or flood, the proceeds of any insurance recovery are imbued with the same privilege....Because Quiroga did not and, as a matter of public policy in this State, cannot through an unsecured agreement, such as the contingent fee agreement in this case, enter into an enforceable contract to divest himself from the exemptions afforded him through Article X, section 4(a), see Chames v. DeMayo, 972 So. 2d 850, 853 (Fla. 2007), this Court is compelled to affirm the order under review, the equities of the matter notwithstanding.

Thursday, April 15, 2010

Judge Anthony K. Black Nominated To Second District Court of Appeal

Governor Crist issued a press release yesterday stating that he has nominated Thirteenth Judicial Circuit Judge Anthony K. Black to the Second District Court of Appeal.  The press release can be found HERE.  Judge Black will replace Judge Carolyn Fulmer, who resigned from the Court.  An article in the Tampa Tribune, titled "Crist picks Black for appellate court," can be found HERE.  Judge Black's biography has not yet been posted to the Second District's website, however, his biography from the Thirteenth Judicial Circuit's website is below:
Judge Anthony K. Black Biography - 13th Judicial Circuit

Wednesday, April 14, 2010

Owner of Real Property In Florida Subject To Florida's Long Arm Statute

In Holt v. Wells Fargo Bank, N.A. (4D09-3015), the Fourth District reversed the trial court's order as it related  to personal jurisdiction. 
In 1993, the legislature amended [48.193(1)(c), Florida Statutes], adding the words “holding a mortgage or other lien on,” such that the statute now provides “[o]wning, using, possessing, or holding a mortgage or other lien on any real property within this state” gives rise to personal jurisdiction.  Despite the appellant’s argument to the contrary, we do not believe that the amendment eliminated the ownership of real property as a basis for the establishment of personal jurisdiction and the exercise of long-arm jurisdiction. In context, the amended statute is more reasonably read as extending personal long-arm jurisdiction to those “holding a mortgage or other lien on” real property in Florida, rather than eliminating the longstanding jurisdictional basis for those “owning...real property within this state.” The complaint in this case alleged Holt’s ownership of Florida real property and thus the trial court erred in ruling it lacked the personal jurisdiction necessary to support the entry of a deficiency judgment.

Banks Are Not Liable For Maintenance Fees Prior To Foreclosure

In Deutsche Bank National Trust Company v. Coral Key Condominium Association (4D09-3392), the Fourth District reversed the trial court's order which found "that it was fair and equitable for the mortgage holder to pay monthly assessments due to the Association if there is an extended period of delay in the foreclosure proceeding for no good reason."  The Fourth District held:
After the trial court entered the order appealed, the Third District issued U.S. Bank National Ass’n v. Tadmore, 23 So. 3d 822 (Fla. 3d DCA 2009), which addressed this precise issue. In Tadmore, the court rejected the notion that equity and fairness support an order requiring a bank to pay condominium assessments while foreclosure proceedings are pending since section 718.116(1)(b), Florida Statutes (2009), makes it clear that the first mortgagee is required to pay assessments only after acquiring title, and equity follows the law. Id. at 823–24. We agree with Tadmore and reverse.
Tadmore was discussed HERE.

Friday, April 9, 2010

Court Sanctions Party & Counsel For Filing Rehearing Motion That Lacked Merit

In Unifirst Corporation v. City of Jacksonville, Tax Collectors Office (1D09-0820), the First District sanctioned a party and its counsel for filing a motion for rehearing when the appellant "knew or should have known that the motion lacks legal merit and violates the legal principles and rules of appellate procedure."  The court stated:
Section 57.105(4) provides that the party seeking sanctions must serve the opposing party with a copy of the motion, but may not file it with the court “unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Florida Rule of Appellate Procedure 9.330(a), however, allows a party only ten days to respond to motions for rehearing. Thus, as Appellee acknowledges, it was unable to comply with section 57.105(4) and also timely respond to Appellant’s motion for rehearing. Although Appellee’s motion for attorney’s fees and sanctions was improperly filed, for the reasons explained below, this court, on its own initiative, awards Appellee attorney’s fees. See § 57.105(1), Fla. Stat. (2009) (providing the court may award fees on its own initiative).
Appellant filed a motion seeking rehearing or clarification and rehearing en banc. In it, Appellant addressed the merits of the lower court’s final judgment allowing certain documents into evidence and the general sufficiency of the evidence. These arguments were raised in Appellant’s Initial Brief and extensively addressed during oral argument; rearguing these points was improper.
Florida Rule of Appellate Procedure 9.330(1) has been interpreted to mean that “[a] motion for rehearing shall not reargue the merits of the court’s order.”...Appellant compounded its error by including in its motion new arguments related to an issue already addressed in its briefs and at oral argument. “[L]egal arguments . . . must be made between the parties before a judicial decision is rendered; not between one litigant and a tribunal which has already ruled.”...To illustrate the egregiousness of Appellant’s violation of this principle, Appellant dedicated less than one page of its Initial Brief to this issue, and cited no cases, either in its briefs or during oral argument; yet in its rehearing motion, Appellant devoted over five pages to the issue and, for the first time, cited and discussed several cases.
Both Florida Rule of Appellate Procedure 9.330 and the cases we have cited existed at the time Appellant filed its motion; thus, Appellant’s attorney knew or should have known that the motion would not be supported by the application of the law to the material facts of this case. Consequently, a sanction of attorney’s fees pursuant to section 57.105(1)(b) is warranted. 
In its motion for rehearing, Appellant also requested a written opinion, arguing that this court’s per curiam affirmance conflicts with an opinion issued by the Third District Court of Appeal and that clarification “would provide a legitimate basis for Supreme Court review.” It is meritless to argue that an opinion which says nothing more than “Affirmed” conflicts with a written opinion issued by another district court.

Wednesday, April 7, 2010

Court Erred In Denying Appraisal & Appraisal Premature For Items Not Yet Adjusted

In American Capital Assurance Corporation v. Courtney Meadows Apartment, L.L.P. (1D09-2940), the First District agreed both with the insurance company on appeal and the insured on cross-appeal.  The court stated:
the insurer argues the trial court erred in denying a portion of its motion to compel appraisal because its demand was untimely. The insured argues on cross-appeal that the trial court erred in granting appraisal of four items that had not been adjusted. We agree with both parties and reverse and remand.
The facts were described as follows:
On June 1, 2008, a microburst hail storm caused damage to the complex, after which the insured filed a claim. In July 2008, the parties met to discuss the extent of damage to the complex. The insurer believed a majority of the complex’s damaged roofs could be repaired, but the insured believed the same needed replacing.
In a November 18, 2008, letter to the insured, the insurer demanded appraisal. On December 23, 2008, the insured filed a complaint, which was subsequently amended, seeking declaratory relief and alleging numerous breaches of contract. The insurer in turn moved to dismiss and/or abate the action and to compel appraisal, arguing that it had properly invoked the appraisal process under the terms of the policy.
The trial court agreed that the appraisal demand was untimely, finding that, when an insurer admits liability and coverage for loss, formal proof of loss is waived and the time in which the insurer is required to demand appraisal under the terms of the policy begins to run from its admittance of liability and coverage....The trial court further found sections E.4.a.(3) and E.4.c. of the policy required the insurer to notify the insured of its intention to seek appraisal within 30 days after this date, such that the insurer’s November 18, 2008, demand for appraisal was untimely. Accordingly, the trial court denied the motion to compel appraisal of the items included the final estimate, but granted the motion to compel appraisal of the additional items of loss in the insured’s November 11, 2008, correspondence (the trash compactor area, the garage fascia, pillar damage, and interior apartment damage).
The First District reversed the trial court and held:
The underlying insurance policy does not set forth a time limit for demanding appraisal....There is no indication that this provision extends to the time in which the insurer must demand appraisal....The instant case is distinguishable because there is no language in the policy that requires appraisal to be invoked, if at all, within any set time from receiving or waiving the sworn proof of loss. Thus, under the terms of the instant policy, the insurer’s demand for appraisal was not untimely. Furthermore, the insurer has not waived its right to appraisal as it has not acted inconsistently with that right from the time of demand....Accordingly, because the insurance contract provided for appraisal, the insurer’s demand for such was not untimely, and the insurer did not waive its right to appraisal, the trial court erred in partially denying the motion to compel appraisal.
Additionally, because appraisal is premature if a portion of a claim had not been previously adjusted, the court reversed the portion of the order requiring appraisal of previously unclaimed items.  The court stated:
Furthermore, granting appraisal of the items of loss in the insured’s cross-appeal was premature as those items had yet to be adjusted. Without adjustment, it is impossible to know whether the parties disputed the amount of loss to warrant appraisal. See United States Fidelity & Guar. Co. v. Romay, 744 So. 2d 467, 469-70 (Fla. 3d DCA 1999).
The briefs filed in the First District can be viewed at the links below:

*Initial Brief;
*Answer Brief;
*Reply Brief.

Insurer Not Required To Pay For "Matching" In Payment Of Damages

In Strasser v. Nationwide Mut. Ins. Co., No. 09-60314-CIV, 2010 WL 667945 (S.D. Fla. Feb. 22, 2010), the court held that the insurer did not have an obligation to "match" new items with older and undamaged items.  The court stated:
Plaintiff cites to Florida Statute § 626.9744, which requires an insurer to match under homeowner's policies.  However, the policy at issue in this case is not a homeowner's policy; it is a commercial policy. Thus, the statute is inapplicable. Plaintiff argues that based on the language of § 626.9744, a commercial policy requires an insurer to do what is reasonable. However, there is nothing in the language of the statute that supports this conclusion and Plaintiff has provided no other support for this assertion. Further, Defendant has provided, as an attachment to its memoranda, an earlier version of the bill that ultimately became, in part, § 626.9744. The earlier version, in its introduction, referred to § 626.9744 as applying to residential and commercial property insurance. Thus, the omission of commercial insurance in the final version of the statute indicates that the legislature intended to omit commercial properties from the coverage of this section.
The entire opinion is below:
Strasser v. Nationwide Mut. Ins. Co., No. 09-60314-CIV, 2010 WL 667945 (S.D. Fla. Feb. 22, 2010)

Additionally, you can click on the following links to view related documents:

*Case Docket;
*Insurance Policy;
*Motion in Limine;
*Plaintiff's Response to Motion in Limine;
*Order on Pretrial Conference;
*Plaintiff's Memorandum of Law in Response to Motion in Limine;
*Defendant's Reply to Plaintiff's Memorandum of Law in Response to Motion in Limine; and
*Order Granting Motion in Limine.

Order Highlights The Distinction Between Florida Courts and Federal Courts Regarding Appraisal

The Middle District of Florida released an opinion that highlights the difference between the federal courts and the Florida Courts view of appraisal in the insurance context [HERE].  The district court opinion noted that:
When the Florida Supreme Court has not spoken and the federal district court “is faced with contradictory decisions of the Eleventh Circuit and the state’s intermediate appellate courts,” the district court “believes it is bound to follow the Eleventh Circuit’s interpretation of Florida Supreme Court precedent absent an intervening decision to the contrary by the Florida Supreme Court or the Eleventh Circuit.”
The opinion at issue was released on March 30, 2010 and can be found HERE.  The difference of opinion relates to the Eleventh Circuit's opinion in Three Palms Pointe, Inc. v. State Farm Fire & Casualty, Co., 362 F.3d 1317 (11th Cir. 2004) and an opinion from the Second District Court of Appeal in Liberty American Ins. Co. v. Kennedy, et al., 890 So. 2d 539, 541-42 (Fla. Dist. Ct. App. 2005) and the Fourth District Court of Appeal in Fisher v. Certain Interested Underwriters, 930 So. 2d 756 (Fla. 4th DCA 2006).  The opinion at issue stated in a footnote that:
There have been several Florida District Court and Federal District Court cases that have held that the Eleventh Circuit misinterpreted the holding of Licea. Liberty American Ins. Co. v. Kennedy, et al., 890 So. 2d 539, 541-42 (Fla. Dist. Ct. App. 2005)(“We conclude, however, that the court in Three Palms Pointe, Inc. misinterpreted the holding of Licea.... [T]he submission of the claim to appraisal does not foreclose Liberty American from challenging an element of loss as not being covered by the policy.”); see Jablonski v. St. Paul Fire and Marine Ins. Co., No. 2:07-cv-00386, 2009 U.S. Dist. LEXIS 65247, at * 26-27 (M.D. Fla. July 24, 2009)(noting that “[a]t least two Florida district courts of appeals have concluded, either expressly or implicitly that the Eleventh Circuit’s holding in Three Palms Pointe . . . misinterpreted the Florida Supreme Court’s decision in... Licea.”); Sands on the Ocean Condominium Assoc., Inc. v. QBE Ins. Corp., No. 05-14362-CIV, 2009 U.S. Dist. LEXIS 24689, at *8 (S.D. Fla. Mar. 23, 2009)(noting that state district courts found that Three Palms Pointe misinterpreted Licea and holding that “Defendant is entitled to challenge the coverage as to portions of the appraisal award.”); Pacific Ins. Co., Ltd. v. New Park Towers Condominium Assoc., Inc., No. 07-60512-CIV, 2008 U.S. Dist. LEXIS 4091, at * 11 (S.D. Fla. Jan. 18, 2008)(In Licea, “[t]he Supreme Court agreed...that the appraisal provision ‘require[s] an assessment of the amount of a loss. This necessarily includes determinations as to the cost of repair or replacement and whether or not the requirement for a repair or replacement was caused by a coverage peril or a cause not covered, such as normal wear and tear, dry rot, or various other designated, excluded clauses.’” (citing Licea, 685 So.2d at 1287)).

Monday, April 5, 2010

"Call to Action: Voice Opposition to Cuts in Judicial Salaries"

I received the email below and thought it was worth passing on.

Appellate Practice Section Emergency Call to Action
Good morning friends and colleagues. I appreciate that you are very busy, and I'm sending this today because it is important, requires your prompt action, and I'll make it as brief as I can.

The problem and the reason I'm contacting you:

To be sure, we appreciate our judiciary and the need for a strong judicial branch. We have played supportive roles in the Legislative component to minimize cuts to the judiciary. And the Legislature established a Trust Fund to fund the courts and pay the operations of the courts to allay further cuts. This year, the Trust Fund has grown very big because of all the foreclosure filing fees.

But the Office of State Court Administrators (OSCA) has informed us of the following:

This year, the Legislature proposed that all "elected officials" take a pay cut of 3 percent. That is on top of the 2 percent cut they took the year before. "Elected official" disproportionately affects our judges, particularly the circuit and county court judges. The Governor vetoed the 2 percent reduction for most employees, but could not do so for our judges, state attorneys, elected public defenders and other groups of elected officials. So last year, almost 100 percent of all those "elected officials" hit with salary and benefits cuts were judges. This is on top of the fact that our judges have not received pay raises in four years. We can all imagine how disheartening this was last year. Imagine how disheartening is to hear again this year.

Our District Courts of Appeal are the fourth busiest appellate courts in the nation (2.5 times the median), yet rank 13th in pay. Our DCAs are trying to ensure that they do not have to cut the salaries and benefits of their staff either. As a result of this proposal for further cuts and not allowing the tapping of the Trust Fund, our Chief Judges are going to have to wring all that they can from the money that they do have currently, to pay for operating expenses for the courts. In addition to their own actual and inflationary pay cuts, our District Courts of Appeal judges are already on skeletal staff. We all hear the accounts, and they are truly alarming.

The Call to Action:

We often speak of the importance of a robust judiciary and appreciation for the strong support of our appellate courts in our Appellate Practice Section. John F. Kennedy once said that, "as we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live and take action by them." We are each presented today with an opportunity to demonstrate our continued support of our judiciary. Below are the names and contact information of the House and Senate leadership that I am asking you to contact right away:

Sen. Jeff Atwater
Tallahassee Office:
312 Senate Office Building
404 South Monroe Street
Tallahassee, FL 32399-1100
(850) 487-5100
Senate VOIP: 5100

Sen. JD Alexander
Tallahassee Office:
412 Senate Office Building
404 South Monroe Street
Tallahassee, FL 32399-1100
(850) 487-5044
Senate VOIP: 5044

Sen. Mike Haridopolos
Tallahassee Office:
420 Senate Office Building
404 South Monroe Street
Tallahassee, FL 32399-1100
(850) 487-5056
Senate VOIP: 5056

Rep. Sandra "Sandy" Adams
Send an Email
Tallahassee Office:
Capitol Office 222
The Capitol
402 South Monroe Street
Tallahassee, FL 32399-1300

Rep. Dean Cannon
Send an Email
Tallahassee Office:
Capitol Office 422
The Capitol
402 South Monroe Street
Tallahassee, FL 32399-1300
Phone: (850) 488-2742

Rep. Larry Cretul
Send an Email
Tallahassee Office:
Capitol Office 420
The Capitol
402 South Monroe Street
Tallahassee, FL 32399-1300
Phone: (850) 488-1450

If any one knows any of the above House and Senate leadership please, today, contact that leader and communicate the importance of preserving the salaries and benefits of our judicial branch.  As to contours, please send any email or send any message that you feel appropriate. However, the following message is presented for economy of time and it appears to address the root of the problem:

Fully appreciating the $3 billion gap that Florida needs to close and that there are no easy answers, it would be a tragic mistake to further reduce judicial salaries and benefits. Excellent judges are vital to a strong judiciary for the benefit of all Florida citizens. Many excellent judges who have left our bench cite judicial salary and benefit reductions as the primary reason for being forced to leave. Fine judges are not fungible and easily interchangeable with just anyone. Florida needs competitive salaries and benefits to attract high caliber judges, keep them and keep our courts functioning on all of its vital levels. Reducing judicial salaries and benefits will have a direct impact on the ability for Florida citizens to access the courts in a meaningful way. The Legislature created a Trust Fund for this very purpose and can use that Trust Fund. There is no reason to not use that money and to, instead, further reduce salaries and benefits of our judiciary. Please, restore last year's pay cut. If that cannot be restored, please make no further reductions in judicial salaries and benefits and no modifications to the pension plan for judges.

Thank you for taking the time to read this email message, and thank you even more for taking time to take action.

— Dorothy F. Easley, Chair, Appellate Practice Section 2009-10

Sunday, April 4, 2010

Difference Between Retaining Lien & Charging Lien - Order Denying Injunction Reversed

In Brickell Place Condo Association, Inc., et al. v. Joseph H. Ganguzza & Associates, P.A. (3D09-1963), the Third District held that the attorneys asserting a retaining lien did not have a right to do so because:
we find that the fee arrangement for collection and foreclosure matters was, in reality, a contingent fee arrangement and a law firm may not assert a retaining lien for fees owed in a contingency fee case until the contingency has occurred, we find that the retaining lien was unlawful.
The court stated:
At the hearing on the Associations’ motion, the Associations argued that for collection and foreclosure matters, the Associations and the law firm operated under a contingency fee arrangement. The Associations, therefore, claimed that the law firm, could only recover the reasonable value for its services, limited by the maximum contract fee, upon the successful occurrence of the contingency. Because the contingency upon which the services were based has not yet occurred (the collection of the delinquent unit owners’ fees), the law firm is not yet entitled to be paid for its services and the retaining lien filed by the law firm cannot be legally or ethically maintained. We agree.
A retaining lien differs from a charging lien. A charging lien is placed on any monetary recovery due the client at the conclusion of the lawsuit...On the other hand, a retaining lien is a passive lien and rests entirely on the right of an attorney to retain possession of his client’s papers, money, securities, and files as security for payment of the fees and costs earned by the law firm to that point.
Because the contingency has not occurred, the law firm could not assert a retaining lien for fees it contends it is owed on collection matters that were still pending when it was discharged. If the law firm believes it is owed money for services it rendered in the collection of delinquent unit owner fees, it may file a charging lien and is entitled to the reasonable value of its services on the basis of quantum meruit, limited by the contract flat fee the parties agreed to.

Thursday, April 1, 2010

Proposal For Settlement To Multiple Parties Not Enforceable

In a 4-3 decision released today in Attorney’s Title Insurance Fund, Inc., v. Joseph W. Gorka, Et Al. (SC09-1899), the Florida Supreme Court held a proposal for settlement is invalid if it is conditioned upon actions out of the control of the offeree.  The court stated:
This case is before the Court to review the decision of the Second District Court of Appeal in Attorneys‟ Title Insurance Fund, Inc. v. Gorka, 989 So. 2d 1210 (Fla. 2d DCA 2008). The district court certified its decision to be in conflict with the decision of the First District Court of Appeal in Clements v. Rose, 982 So. 2d 731 (Fla. 1st DCA 2008), with regard to the validity and enforceability of a joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offerees. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We hold that this type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. Accordingly, we approve the well reasoned decision of the Second District and disapprove the decision of the First District to the extent it holds otherwise.
The issue presented by the conflicting decisions is whether a joint offer of settlement or judgment that is conditioned on the mutual acceptance of all of the joint offerees is valid and enforceable. We approve the decision of the Second District Court of Appeal and hold that this type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. The conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable.
The majority included Justice Pariente, Justice Lewis, Justice Labarga, and Justice Perry.  Justice Polston wrote a dissent and was joined by Justice Canady and Chief Justice Quince.