Wednesday, July 27, 2011

Litigation Privilege Does Not Extend To Comments On Website - Dismissal Of Defamation Suit Reversed

In Ball v. D’Lites Enterprises (4D09-4859), the Fourth District held that "that statements made on a party’s website are not protected by the litigation privilege." The court described the facts as follows:
According to the plaintiffs, they were induced to enter into these agreements by representations about the nutritional content, and low caloric values of the ice cream, and were told these “light” products could be sold to diabetics. D’Lites supplied the product for the ice cream, but the plaintiffs found that it was virtually impossible for them to meet the nutritional requirements promised to them using D’Lites goods. They requested that the defendants modify the formula but the defendants declined to do so. Without a product as promised, the plaintiffs sued the defendants for various causes of action over their agreement, including claims for breach of contract and fraud in the inducement.
After the plaintiffs filed suit against the defendants, the defendants placed warnings to the public on their website stating that plaintiffs had violated certain trademarks. A memorandum on the defendants’ website stated that the plaintiffs were selling products and labeling them as D’Lites when they actually were not. The defendants’ website stated that “you need to know the product they are passing off as D’Lites Emporium ice cream is in fact a hoax.”
The plaintiffs then filed an amended complaint alleging defamation by the defendants. The defendants moved to dismiss, claiming that the statements were protected by the litigation privilege which provides absolute immunity regarding any act in the course of a judicial proceeding, regardless of whether the act involved a defamatory statement or other tortious behavior, so long as the act had some relation to the proceeding...
The trial court agreed and dismissed the defamation count of the amended complaint.The Fourth District disagreed and held:
“Immunity for statements made during a judicial proceeding has a long legal history, as noted in” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994)…..The issue presented in this case is whether the statements by a party on its commercial website constituted a statement made in connection with judicial proceedings. We hold that it does not.
We analogize the publication of statements on the internet to calling a press conference with the media or otherwise publishing defamatory information to the newspapers or other media.
the website publication in this case was not made in connection with the judicial proceeding. It was not made in the proceedings itself, nor was it made to a participant connected to the proceeding such as a witness. Like statements to the newspapers or press conferences, these statements have no part in the judicial proceedings. Instead, they were made to the world at large through the website and accused the plaintiffs of fraud and perpetrating a hoax on the public. These statements were not “necessarily preliminary” to judicial proceedings, because unlike either Ange or Stewart the statements were not steps in the judicial process.
The judicial proceeding immunity should not be extended to such publications, because it does nothing to enhance policy behind the privilege which is to provide free and full disclosure of facts in a judicial proceeding. It is not communication directed to participants which must remain unhindered by fear of civil lawsuits. Instead, it most likely does just the opposite, and information relevant to lawsuits may be less likely to be shared for fear that it will be posted on the internet.
The website statements are not protected by absolute immunity given to statements made in judicial proceedings. Therefore, we reverse the partial final judgment and order the reinstatement of the plaintiffs’ defamation claim.

Thursday, July 21, 2011

Third District Affirms Summary Judgment For Failure To Comply With Post Loss Obligations

In Gonzalez v. State Farm Florida Insurance Company (3D10-2269), the Third District affirmed the trial court's dismissal of a lawsuit against State Farm. The court held that:
The summary judgment entered below for the insurer on the ground that the insured had failed to comply with the pre-suit requirements of the policy that, among other things, she provide a satisfactory proof of loss and submit to an examination under oath, is affirmed.....In particular, we find no error or abuse of discretion in the trial court’s denial of insured’s request to “abate” the action, which was first made almost five years after the loss and only in the face of an imminent ruling against her at the hearing on the carrier’s motion for summary judgment.

Employee Must Use Dispute Resolution Available Under Labor Agreement Before Filing Suit

In Kivisto v. National Football League Players Association (11-10543), the Eleventh Circuit affirmed the district court's dismissal of a lawsuit against the National Football League Players Association’s (NFLPA).
“Employees claiming breach of a collective bargaining agreement...are bound by that agreement’s terms providing a method for resolving disputes between them and their employer.” Mason v. Continental Group, Inc., 763 F.2d 1219, 1222 (11th Cir. 1985). When an employee asserts an arbitrable grievance, but has not attempted to utilize the dispute resolution available to him under the agreement, his independent suit must be dismissed. Id.
The third footnote in the opinion is interesting, especially as the NFL and NFLPA are likely to resolve their labor dispute today:
We note that after the district court entered its order, the NFLPA renounced its collective bargaining rights and no longer regulates NFL agents.
(emphasis supplied).

Eleventh Circuit Addresses District Court Judge's Obligations To Pro Se Criminal Defendant

In USA v. Hung Thien Ly (09-12515), the Eleventh Circuit released a published opinion addressing the obligation of a district court judge to a pro se defendant in a criminal case and held that:
In this case, we must confront a district court’s duties to a pro se criminal defendant. After the defendant, Hung Thien Ly, attempted to question witnesses in presenting his defense at trial, the district court inquired whether Ly wished to take the stand and testify on his behalf. During the ensuing colloquy, Ly exposed a misunderstanding of his right to testify. He believed that he could testify on direct examination only if he was being questioned by an attorney; he was clearly ignorant of his ability to provide narrative testimony. Throughout this court initiated colloquy, the district court did not correct Ly’s misunderstanding. Rather, it merely informed him that he had an “absolute right to testify.” Ly chose not to take the stand and the jury found him guilty as charged. 
Ly argues on appeal that the district court effectively denied him his right to testify. We agree. In these circumstances, particularly where the district court initiates a colloquy with the defendant regarding his right to testify, the district court is duty-bound to correct a pro se defendant’s obvious misunderstanding of his right to testify. Because this error was not harmless, Ly’s convictions cannot stand.
We stress that our holding is limited to instances in which the district court begins a colloquy regarding the defendant’s right to testify. This area of the law is not well laid, and we should proceed with caution. A district court runs the risk of denying a defendant’s right to testify by engaging in too searching of an inquiry; its questions might dampen the defendant’s protected choice. See part III.A, supra. But we think that requiring a district court to correct a pro se defendant’s basic misunderstanding regarding his fundamental right to testify is not a heavy burden when the court has already ventured into the fray and begun its colloquy with the defendant. Because the district court failed in this respect, Ly’s convictions are VACATED and the case is REMANDED to the district court.

Wednesday, July 20, 2011

Third District Dismisses Certiorari Petition In Bad Faith Dispute On Procedural Grounds

In State Farm Florida Insurance Company v. Seville Place Condominium Association, Inc. (3D08-2538), the Third District released an en banc opinion on rehearing and withdrew THIS opinion released by a panel of judges on the court on October 14, 2009. The panel opinion was previously discussed HERE. The court held:
State Farm Florida Insurance Company seeks a writ of certiorari quashing circuit court orders that allowed Seville Place Condominium Association, Inc., to amend its complaint to add statutory and common law bad faith claims and a punitive damage claim before the entry of a final judgment on the policy-phase issues. We deny the writ—no irreparable injury has yet occurred—and issue this opinion to clarify the requirements for the exercise of our certiorari jurisdiction in such cases.
The court denied the petition on procedural grounds and not on the merits. Based upon its holding, the court stated:
To the extent that we previously have granted such a petition when irreparable harm seems possible rather than imminent, we recede from such decisions.
The opinions that the court receded from include: North Pointe Insurance Co. v. Tomas, 999 So. 2d 728 (Fla. 3d DCA 2008) [discussed HERE] and XL Specialty Ins. Co. v. Skystream, Inc., 988 So. 2d 96 (Fla. 3d DCA 2008).

Judge Salter wrote the panel opinion and the opinion for the en banc court. Judge Shepherd, who wrote a dissent to the panel opinion, wrote an opinion concurring with the en banc court's holding.

Tuesday, July 19, 2011

Florida Supreme Court Rejects Retroactive Application Of Asbestos Act

In American Optical Corporation, Et Al. v. Daniel N. Williams, Et Al (SC08-1616 & SC08-1640), the Florida Supreme Court affirmed THIS opinion released by the Fourth District and held:
Based on the foregoing, we affirm the holding of the Fourth District in Williams v. American Optical Corp., 985 So. 2d 23 (Fla. 4th DCA 2008), that retroactive application of the [Florida Asbestos and Silica Compensation Fairness] Act to the Appellees, and other claimants who had accrued causes of action for asbestos-related disease pending on the effective date of the Act, is impermissible because it violates the due process clause of the Florida Constitution. We disapprove the decision of the Third District in DaimlerChrysler Corporation v. Hurst, 949 So. 2d 279 (Fla. 3d DCA 2007), to the extent it is inconsistent with this opinion.
After providing the facts, the Court stated:
The parties strenuously debate whether the Appellees have a vested property interest in their right to pursue an action based on asbestos-related injuries. Having reviewed the parties‘ arguments and Florida common law, we conclude that the Appellees do indeed possess such a vested right.
Having determined that the Appellees have vested causes of action, we must next consider whether the Act may be applied retroactively to those causes of action. A two-part test is utilized to determine whether a statute may be applied retroactively:
First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles....
The Act specifically provides that it is to apply to "any civil action asserting an asbestos claim in which trial has not commenced as of the effective date of this act."...As previously discussed this Court will not apply a statute retroactively if it "impairs vested rights, creates new obligations, or imposes new penalties."
In this case, the majority of the Court held that "Application of the Act to the Appellees does not merely impair their vested rights—it destroys them."

The briefs filed in the Florida Supreme Court can be viewed at the links below:

You can read an article about the decision in the Palm Beach Post [Florida Supreme Court rejects asbestos claim limit] and the Daily Business Review [Florida Supreme Court throws out 2005 asbestos law].

Saturday, July 16, 2011

Forum Selection Clause Enforceable Against Related Non-Signatory

In East Coast Karate Studios, Inc. v. Lifestyle Martial Arts, LLC (4D10-3061 and 4D10-387), the Fourth District addressed "whether a mandatory forum selection clause contained in a non-compete agreement may be applied to nonsignatory parties who are alleged to have interfered with that agreement." 

A lawsuit was filed in Palm Beach County by a former employee and his new employer against the old employer asking the trial court to determine the enforceability of a non-compete agreement. The former employer filed a motion to transfer venue to Broward County based upon a forum selection clause and, while the motion was pending, filed a lawsuit in Broward County attempting to enforce the non-compete agreement. The Circuit Judge in the Palm Beach County case denied the motion to transfer venue and the Circuit Judge in the Broward County case entered an order transferring the action to Palm Beach County.  Both Circuit Judges' relied "on  the  same  two  grounds":       
(1) the causes of action arose in Palm Beach County where the employee and his wife resided and where his new employer maintained its office for the  transaction  of  its customary  business;  and  (2)  the employee’s  wife and  his  new  employer  were  not  signatories  to  the  non-compete agreement.  In support of the second ground, the courts relied on A-Ryan Staffing Solutions Inc. v. Ace Staffing Management Unlimited, Inc., 917 So. 2d 1000 (Fla. 5th DCA 2005).
The Fourth District reversed both orders and held:
We reverse both orders. The forum selection clause clearly is mandatory upon the employee regardless of  his residence or where the causes of action arose....We conclude that the forum selection clause applies to the employee’s wife and his new employer.
The  factors  which  the  fifth  district  identified  in  Deloitte  [Deloitte  & Touche v. Gencor Industries, Inc., 929 So. 2d 678 (Fla. 5th DCA 2006)] apply here. First, there exists a close relationship between the  employee, his wife, and his new employer. Second, the interests of the employee’s wife and his new employer are derivative of the employee’s interests because they all stem from whether the non-compete agreement is enforceable. Third, the  claims  involving the  employee’s  wife  and his new employer arise directly out of the non-compete agreement.
Based on the  foregoing, we reverse the orders on appeal and remand for the Palm Beach County circuit court to transfer venue of both actions to the Broward County circuit court.

Saturday, July 9, 2011

Note Indorsed In Blank Is All That Is Required To Enforce Note

In Harvey v. Deutsche Bank National Trust Company (4D10-674), the Fourth District issued an opinion on rehearing in order to address the points raised in the appellant's brief.

In the trial court, Deutsche Bank filed a two count foreclosure complaint. Attached to the complaint was a "substantial" copy of the note and a copy of the mortgage. The note was indorsed in blank. The complaint alleged that the appellant had defaulted on the mortgage. Deutsche filed a motion for summary judgment, an affidavit of indebtedness and an affidavit of lost note. The appellant raised numerous arguments in opposition to the summary judgment motion including that she had "reason to believe that the assignment is fraudulent, manufactured paperwork." The trial court determined that Deutsche was entitled to enforce the note and entered judgment. The appellant then filed a motion for reconsideration which the trial court denied and the appellant appealed the judgment and the rehearing order.

The Fourth District held that the "person entitled to enforce a negotiable instrument, such as a promissory note, is the 'holder of the instrument'." Because the note was indorsed in blank, Deutsche was the holder of the negotiable instrument and entitled to enforce the note "regardless of any recorded assignments." Even if the assignment was forged as the appellant alleged that would only be a dispute between the note holder and the prior note holder. The court also noted that "importantly, [the appellee] has never denied that she was in default as to her mortgage payments.

Indorsement In Blank Entitles Holder To Summary Judgment

In Kaminik v. Countrywide Home Loans, Inc. (4D09-4861), the Fourth District affirmed a summary judgment of foreclosure. The Court stated that "The record demonstrates that appellee tendered the original promissory note to the trial court, which contained a special indorsement in its favor." Based upon the special indorsement, the appellee was entitled to judgment. The Court also reversed the judgment in part due to incorrect numbers that were included in the final judgment.