Agents of Domestic Corporations Cannot Be Used To Establish Venue

In Sunshine State Insurance Company v. Patricia Munoz-Upton and Rick Fox-Upton (3D13–0573), the Third District reversed an order denying a motion to transfer venue. The dispute related to an insurance loss for property located in Palm Beach County. “The unrebutted record in this case is that although insurance agents statewide write Sunshine State policies, Sunshine State itself keeps an office for the transaction of its customary business only in Duval, and not in Miami-Dade County.”

The insured argued that Miami-Dade was a proper venue because the insurer has agents in the county. The court disagreed and stated that “this method of conducting business through an agent does not make venue proper in an action against a domestic corporation wherever such agents are located because ‘the statutory provisions concerning an agent apply to foreign corporations only.’”

“The appropriate test is whether venue has been lodged in the county where the domestic corporation has an office for transaction of its customary business, here, Duval County. Alternatively, venue may be proper where the cause of action accrued or where the property at issue is located, here, Palm Beach County.”

In this case, venue was proper in Palm Beach, and not Miami-Dade and the trial court’s order was reversed.

Florida Rules of Procedure Regarding Recall of Mandate Amended

The Florida Supreme Court issued an opinion today in In Re: Amendments to the Florida Rules of Judicial Administration and Florida Rules of Appellate Procedure (SC13-1670) amending the Florida Rules of Appellate Procedure and Florida Rules of Judicial Administration regarding the recall of a court’s mandate. On January 1, 2014, the changes below will be made. If you have comments, you must submit them to the Court within sixty days of today. 

Rule 9.340, Florida Rules of Appellate Procedure, will be amended to include the underlined text below. 

(a) Issuance and Recall of Mandate. Unless otherwise ordered by the court or provided by these rules, the clerk shall issue such mandate or process as may be directed by the court after expiration of 15 days from the date of an order or decision. A copy thereof, or notice of its issuance, shall be served on all parties. The court may direct the clerk to recall the mandate, but not more than 120 days after its issuance.

Rule 2.205(b)(5), will be amended as indicated below (underlined text is new):

(5) Issuance and Recall of Mandate; Recordation and Notification. The clerk shall issue such mandates or process as may be directed by the court. If, within 120 days after a mandate has been issued, the court directs that a mandate be recalled, then the clerk shall recall the mandate. Upon the issuance or recall of any mandate, the clerk shall record the issuance or recall in a book or equivalent electronic record kept for that purpose, in which the date of issuance or date of recall and the manner of transmittal of the process shall be noted. In proceedings in which no mandate is issued, upon final adjudication of the pending cause the clerk shall transmit to the party affected thereby a copy of the court’s order or judgment. The clerk shall notify the attorneys of record of the issuance of any mandate, the recall of any mandate, or the rendition of any final judgment. The clerk shall furnish without charge to all attorneys of record in any cause a copy of any order or written opinion rendered in such action.

Additionally, Rule 2.210(b)(4) will be amended as follows (underlined text is new):

(4) Issuance and Recall of Mandate; Recordation and Notification. The clerk shall issue such mandates or process as may be directed by the court. If, within 120 days after a mandate has been issued, the court directs that a mandate be recalled, then the clerk shall recall the mandate. If the court directs that a mandate record shall be maintained, then upon the issuance or recall of any mandate the clerk shall record the issuance or recall in a book or equivalent electronic record kept for that purpose, in which shall be noted the date of issuance or the date of recall and the manner of transmittal of the process. In proceedings in which no mandate is issued, upon final adjudication of the pending cause the clerk shall transmit to the party affected thereby a copy of the court’s order or judgment. The clerk shall notify the attorneys of record of the issuance of any mandate, the recall of any mandate, or the rendition of any final judgment. The clerk shall furnish without charge to all attorneys of record in any cause a copy of any order or written opinion rendered in such action.

Court Must Only Rule Upon Issues Presented And Party Is Entitled To Notice Of All Issues To Be Considered

In Worthington v. Worthington (2D12-1361), the Second District reversed, in part, an order entered by the trial court because the order granted relief not requested in the motion pending before it and because the party opposing the motion had not received notice that other issues would be considered. The court stated:

In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion and reversible error.” Abbott v. Abbott, 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012) (citations omitted) (internal quotation marks omitted). Additionally, a court should not grant such relief absent proper notice to the parties. Sinton v. Sinton, 749 So. 2d 532, 533 (Fla. 2d DCA 1999).

Dismissal With Prejudice Of Foreclosure Suit Does Not Prevent New Complaint Based Upon New Default

In PNC Bank, N.A. v. Neal (1D12-2544), a short opinion from the First District, the court affirmed a dismissal with prejudice entered in a foreclosure action filed by PNC. The court stated that:

We affirm but point out that the dismissal with prejudice of PNC Bank’s foreclosure action against the Neals does not preclude PNC Bank from instituting a new foreclosure action based on a different act or a new date of default not alleged in the dismissed action. See Star Funding Solutions, LLC v. Krondes, 101 So. 3d 403 (Fla. 4th DCA 2012) (citing Singleton v. Greymar Assocs., 882 So. 2d 1004, 1005 (Fla. 2004)).

Arbitration Agreement That Provides For Fees To Prevailing Party, Contrary To The FLSA, Is Unenforceable

In Hernandez v. Colonial Grocers, Inc. (2D11-3415), the Second District determined an arbitration provision was invalid because it conflicted with the relief afforded by the relevant federal statute. The plaintiff filed a lawsuit asserting violations of the "Fair Labor Standards Act [29 U.S.C. § 216(b)] and section 440.205, Florida Statutes (2010), of the Florida Workers' Compensation Act.” The trial court granted the defendant's motion to compel arbitration pursuant to a provision of the employment contract. That arbitration clause included the following language: “...Although the parties shall initially bear the cost of arbitration equally, the prevailing party, if any as determined by the arbitrator at the request of the parties which is hereby deemed made, shall be entitled to reimbursement for its share of costs and reasonable attorneys' fees, as well as interest at the statutory rate.” 

The Second District first rejected the appellant’s argument that Flyer Printing Co. v. Hill, 805 So. 2d 829 (Fla. 2d DCA 2001) provided "a bright-line rule that any fee-splitting provision renders an arbitration clause unenforceable.”

The court stated that "Hernandez also argues on appeal that the instant arbitration agreement is unenforceable because it includes a prevailing party attorney's fee provision that contradicts the attorney's fee provision of the statute under which he brought suit.” As to that second issue, Flyer Printing did require reversal. 

Here, Hernandez brought suit under the federal Fair Labor Standards Act and the Florida Workers' Compensation Law. The federal act states that a prevailing plaintiff is entitled to an award of reasonable attorney's fees, but it does not allow for prevailing party fees for the defendant. 29 U.S.C. § 216(b). The instant arbitration agreement, however, states that whichever party prevails "shall be entitled to reimbursement for its share of costs and reasonable attorneys' fees." Accordingly, should the arbitrator declare Colonial the prevailing party, Hernandez would be obligated under the arbitration agreement to pay Colonial's attorney's fees. This renders the potential cost of arbitration to be far greater to Hernandez than the potential cost of civil litigation, which under no circumstances would include Colonial's attorney’s fees. As such, while the parties' agreement may not contravene any of Hernandez’s rights under the federal act, it does expose him to a potential liability to which he would not be exposed if the litigation occurred in civil court because the federal statute specifically protects him from such liability.

"This is a sufficient enough chilling effect to defeat the remedial purpose of the federal act. The attorney's fees provision of the Fair Labor Standards Act is intended to encourage employees to seek redress when they believe they have been wronged by an employer. The arbitration agreement, however, does just the opposite— it discourages the employee from pursuing a claim. As such, under Flying Printing, it is unenforceable."

Party That Holds Note When Complaint Filed Has Standing To Enforce Its Terms

In American Home Mortgage Servicing, Inc. v. Bednarek (2D12-2099), the Second District reversed the trial court’s order dismissing a complaint for lack of standing. The court described the facts, and chain of ownership of the note and mortgage in question, as follows:

On May 31, 2005, Ms. Bednarek executed a note and mortgage in favor of American Brokers Conduit for the purchase of real property. Thereafter, the loan was sold to Deutsche Bank. On March 30, 2006, American Brokers Conduit assigned the mortgage to the bank's servicing agent, AHMSI-Maryland. In September 2007, AHMSIMaryland filed a complaint for foreclosure alleging it was the owner and holder of the underlying promissory note. With the complaint and the amended complaint, AHMSIMaryland filed copies of the mortgage, the promissory note showing a blank endorsement, and the 2006 assignment of mortgage. In April 2008, AHMSI purchased AHMSI-Maryland, acquiring the company's servicing rights. In 2009, AHMSI filed the original note and mortgage with the trial court.

At the close of testimony in the non-jury trial, counsel for Ms. Bednarek moved for an involuntary dismissal and argued that the plaintiff had failed to establish standing. "Relying on McLean [v. JP Morgan Chase Bank National Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012)], the trial court granted the motion on the ground AHMSI had failed to prove it was the owner and holder of the note and mortgage.”

The court stated that “a party seeking foreclosure must establish that it had standing to foreclose at the time it filed the complaint. A foreclosure plaintiff has standing if it owns and holds the note at the time suit is filed. A plaintiff may also establish standing to foreclose by submitting evidence of a special endorsement on the note in favor of the plaintiff or a blank endorsement, an assignment from the payee to the plaintiff, or an affidavit of ownership.” Citations removed. Based upon that law, the court held:

Here, both the complaint and the amended complaint reflect that AHMSIMaryland, the original plaintiff, was the owner and holder of the note at the time the complaint was filed. An assignment of mortgage was attached to the complaint which provided that the original lender, American Brokers Conduit, assigned the mortgage to AHMSI-Maryland on March 30, 2006, more than one year prior to the filing of the original complaint. Also attached to the complaint and amended complaint was a copy of the note showing a blank endorsement. Because AHMSI possessed the original note, endorsed in blank, it was the lawful holder of the note entitled to enforce its terms.

Are Communications By A Government Employee With A Government AttorneyPrivileged?

In In re Grand Jury Subpoena, the Fourth Circuit reviewed an order from the district court “that: (1) certain emails sent by a government-employed lawyer were not protected by the attorney-client privilege, and (2) the attorney-client privilege does not exist between a government official and a government-employed lawyer in the context of a criminal investigation.”

The Fourth Circuit first held that the unidentified appellants failed to establish the government attorney was actually providing legal advice to the government employee in the emails at issue. Therefore, the emails were not privileged and that portion of the district court’s order was affirmed.

The Fourth Circuit vacated the second portion of the district court’s order as moot (for now). Having already resolved the privilege issue as to the specific emails presented, the court held resolution of the broader second issue did not present a justiciable issue. Therefore, any decision would be an improper advisory opinion.

The court did note that the broader and more interesting issue may be ripe for resolution in the future (“We note, however, that should the record be more fully developed through the course of the grand jury investigation such that a concrete dispute arises as to particular communications, justiciable claims may yet lie.”).

For what it’s worth, as discussed in a story by Politico, the Associated Press has identified the “confidential” government employee as the Governor of Virginia.

Fifth DCA Reverses Dismissal Based Upon ERISA Preemption

In Universal Checks & Forms, Inc., et al. v. Pencor, Inc. (5D12-3593), the Fifth District Court of Appeal reversed the trial court's judgment of dismissal based upon ERISA preemption. The court stated that "Universal filed a complaint for breach of fiduciary duty and negligence in connection with Pencor’s recommendation and sale to Universal of a defined benefit plan. According to the complaint, Pencor failed to disclose a critical feature of the defined benefit plan, namely, the impact of the age of employees on those employees’ share of the plan…It is Universal’s position that Pencor recommended a defined benefit plan that was unsuitable for Universal. The complaint requested compensatory damages of no less than $80,000, disgorgement of commissions, prejudgment interest, costs, and fees." "Pencor moved to dismiss the complaint on the basis that the claims were preempted by ERISA. The motion was granted and the trial court entered a final judgment of dismissal." 

The court noted that "in enacting ERISA, Congress intended to make the regulation of pension plans solely a federal concern. Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 552 (6th Cir. 1987). Consequently, ERISA preempts 'any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . .' 29 U.S.C. § 1144(a)."

"Initially, the Supreme Court gave a broad dictionary interpretation to the 'relate to' preemption language, stating that a law 'relates to' an employee benefit plan 'if it has a connection with or reference to such a plan.' Shaw, 463 U.S. at 96-97. However, the Shaw court also recognized that some state actions may affect employee benefit plans 'in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.' Id. at 100 n.21." 

The court concluded:

In the instant case, we do not believe that permitting Universal to proceed with its action against Pencor would, in any way, interfere with Congress’s intent to ensure that plans and plan sponsors are subject to a uniform body of benefits law. Universal is not asserting wrongdoing in the administration of the employee benefit plan, nor is it challenging the terms and conditions of the plan as created. Rather, Universal is alleging that Pencor engaged in tortious conduct by recommending that Universal create an employee benefit plan as a retirement investment vehicle and tax shelter. The recommendation, and the tortious conduct allegedly associated with it, necessarily occurred before the plan was even formed.

Therefore, the court reversed the dismissal.

Standing To Foreclose Requires That The Plaintiff Own Or Hold The Note-Not Both

In Wells Fargo Bank v. Morcom (5D11-4089), the Fifth District reversed a trial court's judgment in favor of the borrower. In the case:

Appellant filed a complaint on August 6, 2010, seeking to foreclose a mortgage issued by Appellees. Appellant alleged, inter alia, that “Mortgagee shown on the Mortgage attached as an exhibit is the original Mortgagee” and “Plaintiff is now entitled to enforce Mortgage and Mortgage Note pursuant to Florida Statutes § 673.3011.” Appellant attached to the complaint copies of the mortgage and the promissory note.1 The note is endorsed “pay to the order of ________ without recourse,” with the blank space populated with a stamp of Wells Fargo Bank, N.A.

The trial court held that the borrowers were entitled to judgment in their favor because the bank did not prove that it owned and held the note. The Fifth District, however, concluded that you do not need to prove both ownership and that you hold the note. The court stated:

The Florida UCC and recent cases from this court stand for the proposition that a plaintiff has standing to bring a foreclosure action if the plaintiff is the holder of a promissory note, endorsed in blank, secured by a mortgage….We have previously held that “[t]he party that holds the note and mortgage in question has standing to bring and maintain a foreclosure action.” Deutsche Bank Nat’l. Trust Co. v. Lippi, 78 So. 3d 81, 84 (Fla. 5th DCA 2012) ….“[T]he person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder.”….In Lippi, Deutsche Bank’s second amended complaint contained the language that it “is now the holder of the Mortgage Note and Mortgage and/or is entitled to enforce the Mortgage Note and Mortgage.” Lippi, 78 So. 3d at 84. The facts in Lippi are almost identical to Appellant’s complaint in the present case, which provides that the “Mortgagee shown on the Mortgage attached as an exhibit is the original Mortgagee” and “Plaintiff is now entitled to enforce Mortgage and Mortgage Note pursuant to Florida Statutes § 673.3011.” The Lippi court held, where the note was endorsed in blank, meaning it was “payable to the bearer and could be transferred simply by possession,” Deutsche Bank’s standing was established because it was the note holder, regardless of any recorded assignments.

In the present case, the original note Appellant attached was endorsed in blank with Appellant’s name stamped in the blank endorsement field, which, paired with section 673.3011(1), established that Appellant was the holder entitled to enforce the instrument….

Applying portions of the Florida UCC, other district courts of appeal have determined that a party that holds a note endorsed in blank has standing to foreclose a mortgage.

Based upon the fact that the bank was holding the note, which was endorsed in blank, the bank had standing to foreclosure and was entitled to judgment in its favor.

Second DCA Certifies Question Regarding Standing In Foreclosure Suits to Florida Supreme Court

In Focht v. Wells Fargo Bank, N.A. (2D11-4511 & 2D11-4980), which was released a few weeks ago, the Second District certified the following question to the Florida Supreme Court as one of great public importance:

CAN A PLAINTIFF IN A FORECLOSURE ACTION CURE THE INABILITY TO PROVE STANDING AT THE INCEPTION OF SUIT BY PROOF THAT THE PLAINTIFF HAS SINCE ACQUIRED STANDING?

In the opinion, written by Judge Silberman, the Court "reverse[d] the final judgment of foreclosure because a genuine issue of material fact exists regarding Well's Fagro's standing to enforce the note and mortgage."

At a summary judgment hearing, "Wells Fargo asserted that it had standing by virtue of an assignment of the note and mortgage dated September 2008, which was several months after the complaint was filed. Wells Fargo alternatively asserted that it had standing as the holder of the original note endorsed in blank. In opposition to Focht's cross-motion for summary judgment, counsel for Wells Fargo addressed Focht's affirmative defenses and argued that each was either factually or legally insufficient."

The court concluded that "A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff's status as the holder of the note….But standing must be established as of the time of filing the foreclosure complaint….Thus, Wells Fargo's submission of a postfiling assignment of the note and mortgage does not establish that it had standing when it filed the lawsuit." 

In this case, "Wells Fargo alternatively argues that it established standing by submitting the original note endorsed in blank….As with the assignment, however, Wells Fargo did not submit the original note until several months after it had filed the complaint. To establish standing as the holder of a note endorsed in blank, a party must be in possession of the original note…..Thus, Wells Fargo was required to submit evidence that it was in possession of the original note with the blank endorsement at the time it filed the complaint to establish standing."

In this case, the blank endorsement, which is apparently located on the back of the note, did not get copied for the record….Although Wells Fargo alleged in its unsworn complaint that it was the owner and holder of the note and mortgage, it asserted that the original note had been lost or destroyed and 'is not now in the custody and control of [Wells Fargo].' Notably, the affidavit of indebtedness filed in support of summary judgment relies on the postfiling assignment for standing." Therefore, the judgment was reversed.

The court "also certif[ied] a question based on some of the same concerns articulated by Judge Altenbernd in his concurrence."  The court stated:

For our part, appellate courts have seen a recent influx of appeals in which defendants have successfully argued that the trial court erred in entering a foreclosure judgment in favor of the plaintiff because the plaintiff failed to establish standing at the time of filing. ...In many of these cases, the plaintiff presented unrefuted proof of standing acquired after filing but prior to the final hearing. … The appellate courts are nonetheless compelled to reverse based on the district courts' application of a long line of supreme court cases applying the general principle that "the plaintiff's lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed."… 

We note that the supreme court has not applied this standing principle inthe exact context presented in this case. And we question whether, in light of the ongoing foreclosure crisis in this State, the supreme court would adhere to this principle in cases in which a plaintiff has acquired standing by the time judgment is entered. Accordingly, we certify the following question as one of great public importance:

CAN A PLAINTIFF IN A FORECLOSURE ACTION CURE THE INABILITY TO PROVE STANDING AT THE INCEPTION OF SUIT BY PROOF THAT THE PLAINTIFF HAS SINCE ACQUIRED STANDING?

Judge Altenbernd wrote a concurring opinion that began:

I concur in this decision because existing precedent requires me to do so. A requirement that the plaintiff prove that it owned or possessed a promissory note at the commencement of a foreclosure action may have made sense during earlier periods of economic downturn,3 but in this era of securitization of mortgage debt and computerized banking, it has proven to be a restriction that often provides a windfall to a borrower who can prove no harm by the fact that the plaintiff obtains possession of the note after the filing of the lawsuit but before the entry of judgment. So long as there is no dispute that the borrower received the money and defaulted on the note, the law should not use "standing" to require the dismissal of a lawsuit. If the defendant raises this issue at the inception of the lawsuit this affirmative defense may warrant a delay in the proceedings while the plaintiff establishes that it can enforce the note. But especially when the original note in default has already been filed in the court record, the law should generally permit a plaintiff to obtain a judgment of foreclosure if the plaintiff establishes that it has a right to enforce the note at the time it seeks to obtain a final judgment…. 

Litigation Client Privilege Applies When Defending Malicious Prosecution & Abuse of Process Claims

In Wolfe v. Foreman, et al (3D10-3055), the Third District addressed the applicability of the litigation client privilege when defending a lawsuit asserting claims for abuse of process and malicious prosecution. The court held:

Because the law is clear that the litigation privilege applies to abuse of process, we affirm the trial court’s order granting judgment on the pleadings in favor of the defendants below as to that cause of action. Although the law is not as clear whether the litigation privilege also applies to a cause of action for malicious prosecution, we: (1) conclude that it does; and (2) affirm the trial court’s order finding that the litigation privilege also applies to a cause of action for malicious prosecution.

The court provided an analysis of the relevant facts, which can be read in the opinion. However, the court also provided the elements of the causes of action, which could be useful to some, and copied below:

The elements of a cause of action for abuse of process under Florida law are: (1) an illegal, improper, or perverted use of process by the defendant; (2) an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and (3) damages to the plaintiff as a result. Valdes v. GAB Robins N. Am. Inc., 924 So. 2d 862 (Fla. 3d DCA 2006).

***

The elements for a malicious prosecution cause of action are that a judicial proceeding: (1) was commenced against the plaintiff; (2) was instigated by the defendant; (3) ended in favor of the plaintiff; (4) was instigated with malice; (5) was commenced without probable cause; and (6) resulted in damage to the plaintiff. Valdes, 924 So. 2d at 866 n.1 (quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)).

Judge Rothenberg wrote the court's opinion and was jointed by Chief Judge Shepherd and Judge Cortinas. Chief Judge Shepherd wrote an opinion specially concurring in the majority opinion.

11th Circuit Reduces Requirements For Record Excerpt Program In Most Appeals

Today, the Eleventh Circuit reduced the requirements for its pilot record excerpt program. The program began as a pilot program in February 2006 in the Southern District of Alabama. Since that time, the program had slowly expanded to include other district courts within the jurisdiction of the Eleventh Circuit.

In March of this year, an email was sent to attendees of the Eleventh Circuit Appellate Practice Institute requesting comment on the pilot record program. At that time, the email stated, "it appear[ed] possible that we might be on the precipice of a modification — if not an elimination — of the program." For now, it seems the program has not been eliminated. However, it has certainly been modified. Thanks to Chet Kaufman for emailing news of the change.

Earlier today, the court posted a notice on the top of its website that states:

Reduced Requirements for Record Excerpts Now in Effect for Most Appeals. Please see Electronic Records on Appeal Program for additional information.

The page linked above, the Electronic Records on Appeal Program page, is copied below as it currently looks:

Most of these documents are in .pdf format. If you would like to download the Adobe Acrobat Reader, please visit adobe.com Problems downloading our .PDF files? Help files: .PDF or HTML format

In February 2006, with General Order 32, the Court implemented a pilot program in the Southern District of Alabama to determine whether the Court could conduct its business efficiently and without additional cost, while relieving certain district courts of the burden of providing paper copies of the record on appeal. Since that date, the program has been modified and expanded with General Order 33. At the present time, and upon request by the respective district courts, the Court has approved participation by all district courts in the Court’s Electronic Records on Appeal Program, either as an on-going program or a pilot program: Southern District of Alabama – for appeals filed on or after April 1, 2006 Middle District of Alabama – for appeals filed on or after November 1, 2007 Northern District of Alabama – for appeals filed on or after October 1, 2008 Northern District of Florida – for appeals filed on or after October 1, 2009 Middle District of Georgia – for appeals filed on or after October 1, 2010 Northern District of Georgia – for civil appeals filed on or after January 3, 2012; for criminal appeals, and appeals in cases filed pursuant to 28 U.S.C. § 2255, filed on or after November 1, 2012 Southern District of Georgia – for appeals filed on or after April 1, 2012 Southern District of Florida - for appeals filed on or after February 1, 2013 Middle District of Florida - for appeals filed on or after April 1, 2013 Parties in appeals where the district court is now filing only an electronic record on appeal must file an appendix in conformance with the “Appendix on Appeal” Requirements (June 2013) attached to General Order 39. In addition, parties will find more detailed information, including checklists and samples, in the Instructions for Preparing an Appendix (June 2013).

ELECTRONIC RECORDS ON APPEAL PROGRAM INFORMATION General Order 39 “Appendix on Appeal” Requirements (June 2013) Briefs Checklist - Electronic Records on Appeal Program (Revised June 2013) Instructions for Preparing an Appendix (June 2013) Appendix Checklist – Civil / Summary Judgment Cases (June 2013) Appendix Checklist – Criminal Cases (June 2013)

Supreme Court Reverses Florida Supreme Court in Takings Case

In Koontz v. St. Johns River Water Management District, the United States Supreme Court revered THIS Florida Supreme Court decision. In conclusion, the Supreme Court stated:

We hold that the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money. The Court expresses no view on the merits of petitioner’s claim that respondent’s actions here failed to comply with the principles set forth in this opinion and those two cases. The Florida Supreme Court’s judgment is reversed, and this case is remanded for further proceedings not inconsistent with this opinion.

From the opinion, "ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined."

A complete listing of the opinions below, briefs, and timeline is available from the SCOTUSblog.

3rd DCA Reverses Itself Over Arbitration Award

The Daily Business Review has an article today titled "3rd DCA Reverses Itself Over Arbitration Award." A subscription is currently required to view the article. The article is about THIS opinion that released last Wednesday by the Third District. The one sentence opinion on rehearing vacated THIS six page opinion by Judge Fernandez. The earlier opinion included a 12 page dissent by Judge Salter. While the new unanimous opinion does not explain its reasoning, presumably Judge Salter's earlier dissent played a part. That dissent began:

I respectfully dissent. We should not engage in the very judicial proceedings that these international companies sought to avoid when they specified in their commission agreement that “[a]ny dispute or controversy arising in connection with this Agreement shall be subject to (and settled by) final and binding arbitration.” The threshold or “gatekeeper” determination regarding Mr. Rondon’s authority to initiate Ventus’s demand for arbitration, made here and now by the majority (after, and contrary to, the International Centre for Dispute Resolution Tribunal’s ruling on that very point), was a “controversy arising in connection with the agreement” that was properly heard and ruled upon by the tribunal and should not be revisited, much less nullified, by a Florida appellate court. The circuit court ruled in accordance with the deferential and extremely limited scope of review specified by the Florida and counterpart federal arbitration statutes (as interpreted by the Florida Supreme Court), such that the order confirming the Tribunal’s detailed and closely-reasoned award should be affirmed.

Florida Supreme Court Adopts New Rules On Professionalism For Lawyers

The Florida Supreme Court released a unanimous opinion today addressing the issue of professionalism. In Re: Code for Resolving Professionalism Complaints (SC13-688), the "Supreme Court of Florida Commission on Professionalism has requested that the Court adopt a Code for Resolving Professionalism Complaints which would include a structure to provide a process to more critically address professionalism issues in Florida." 

The Court noted the importance of professionalism and that "[s]urveys of both lawyers and judges continue to consistently reflect that professionalism is one of the most significant adverse problems that negatively impacts the practice of law in Florida today."


The Court agreed with the Professionalism Committee that additional measures need to be taken and stated that "While we continue our educational the Professionalism Commission concluded that further integrated, affirmative, practical and active measures are now needed. We agree."

The Court did not, however, "attempt to create an entirely new code of 'professional' or 'unprofessional' conduct " and agreed it should not "at this time, attempt to codify an entirely new 'Code of Professionalism.'” Using the following existing rules and guidelines, the Court created one integrated place to look for professionalism rules and guidance: "(1) the Oath of Admission to The Florida Bar; (2) The Florida Bar Creed of Professionalism; (3) The Florida Bar Ideals and Goals of Professionalism; (4) The Rules Regulating The Florida Bar; and (5) the decisions of the Florida Supreme Court."

Further "The Chief Judge of every circuit shall create a Local Professionalism Panel to receive and resolve professionalism complaints informally if possible. In the discretion of the Chief Judge, the Circuit Committee on Professionalism may be designated as the Local Professionalism Panel. The Chief Judge of each circuit is responsible for activating the respective committees."  

The Rules adopted by the Florida Supreme Court are found at Exhibit "A" to the opinion below.

In Re Code for Resolving Professionalism Complaints (SC13-688)

Court Cannot Read More Into Statute Than Plain Language Dictates (In This Case Verification Requirements)

In U.S. Bank v. Wanio-Moore (5D12-1746), the Fifth District reversed a trial court's order dismissing a complaint. The trial court dismissed the foreclosure complaint because the verification on the complaint did not provide the position of the person that signed the verification. However, the Fifth District reversed and held that "the rule does not require any information about the signer’s positional authority, and a court cannot “read more into [rule 1.110(b)] than its plain language dictates."

The opinion can be viewed HERE.

Florida Supreme Court Clarifies You Do Not Get Five Extra Days When Responding To A Proposal For Settlement

The Florida Supreme Court issued THIS opinion today and amended the Florida Rules of Civil Procedure to clarify that the additional five days allowed to respond to a filing/pleading served by email or mail does not apply when the pleading/email is a proposal for settlement. Therefore, a party has thirty days to respond to a proposal for settlement (not thirty-five).

Florida Supreme Court Reverses Decision That Found Class Action Waivers Unconscionable

In McKenzie Check Advance of Florida, LLC v. Betts (SC11-514), the Florida Supreme Court reversed a decision of the Fourth District Court of Appeal that determined a class action waiver provision violated Florida public policy. 

After the Fourth District published its opinion, "the United States Supreme Court issued its decision in AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 1744 (2011), addressing the issue of whether the Federal Arbitration Act (FAA) 'prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.'” In Concepcion, the Supreme Court concluded the California public policy prohibiting class action waivers was preempted by the Federal Arbitration Act. 

In McKenzie, the Florida Supreme Court stated 

Applying the rationale of Concepcion to the facts set forth by the Fourth District in McKenzie, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of it being void as against public policy. Accordingly, we quash the Fourth District’s decision below. We decline to answer the certified question because it is moot in light of Concepcion. In other words, even if the Fourth District is correct that the class action waiver in this case is void under state public policy, this Court is without authority to invalidate the class action waiver on that basis because federal law and the authoritative decision of the United States Supreme Court in Concepcion preclude us from doing so.

Justice Pariente wrote the opinion for the court. Justice Quince, Justice Canady, Justice Labarga, and Justice Perry concurred. Chief Justice Polston and Justice Lewis concurred in result only.

The Florida Supreme Court's opinion can be viewed HERE.  The Fourth District's opinion, that is now quashed, can be viewed HERE.

Apostrophe-Challenged

In Bradshaw v. Boynton-JCP Associates (4D11-4242), the court reversed an order awarding attorneys fees based upon an offer of judgment because the terms of the offer were not clear. Specifically, the court stated that the offer was "apostrophe-challenged." Regarding the offer in this case, the court stated:

The offer, entitled “Defendant’s Joint Proposal for Settlement,” also appears to have been adopted from a form without sufficient editing; it requires “Plaintiff’(s)” to “execute a stipulation,” and “Plaintiff(s)” to “execute a general release of “Defendant(s).”

The rule requires that “the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” Therefore, the order awarding fees in this case was reversed.

The opinion can be viewed HERE.

Order Striking Pleadings Requires Express Factual Findings

In a short opinion, the Fourth District reversed an order striking pleadings for failure to make express factual findings. The opinion stated:

[Appellant] seeks reversal of the trial court’s order striking its pleadings and dismissing the case as a sanction for discovery violations.  The Bank asserts that the trial court abused its discretion by failing to make express factual findings demonstrating that such a severe sanction was warranted, as required by Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).  We agree and reverse.

The opinion, Deutsche Bank v. Sela (4D11-3093), can be viewed HERE.

Judgment On Appraisal Award Reversed Due To Coverage Issues

In Citizens Property Insurance Corporation v. River Manor Condominium Association (4D12-901), the Fourth District reversed a trial court's judgment entered after an appraisal award. In the appeal, Citizens argued "...that the final judgment improperly awarded the appellee damages for: (a) property excluded under its policies, and (b) amounts that should have been deducted from the award by application of defenses the trial court refused to consider."

The Fourth District agreed, at least with regard to the first part of Citizens argument. The Court's twelve page opinion provides the details about the facts, arguments, and reasons for the holding. The ultimate conclusion is copied below:

For the reasons discussed above, we reverse the trial court’s final judgment and remand this cause with directions that the trial court enter a revised final judgment for the amounts set forth in the appraisal award less: 

(i) amounts previously paid; 

(ii) amounts allocated to exterior common elements excluded by the terms of the applicable insurance policies; and 

(iii) amounts awarded in excess of any amount agreed upon by the parties for roof repairs and water extraction for Buildings A and C if, and only if, the trial court concludes – after an evidentiary hearing – that the parties reached a binding pre-appraisal agreement stipulating to the amount owed. 

To the extent the trial court refused to adjudicate Citizens’ claims that amounts awarded were duplicative or represent losses to property the unit owners – as opposed to River Manor – were obligated to insure, the judgment is affirmed. 

The opinion can be viewed HERE. 

Justice Souter on Recusal - In re Bulger

Writing for the First Circuit in In re Bulger, Justice Souter's opinion provides a good discussion about recusal. You can view the opinion at THIS link. At issue was the defendant's petition for writ of mandamus seeking an order requiring the district court judge to recuse himself based upon allegations the judge had been invoked in the case (due to his role as an assistant US Attorney). Notably, the defendant was previously on the FBI's Ten Most Wanted list. After an analysis of what recusal is and isn't, and applying that analysis to the facts in this case, the opinion concluded:

In sum, despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim. The other mandamus conditions being satisfied, the petition is granted, and the case shall be reassigned to a judge whose curriculum vitae does not implicate the same level of institutional responsibility described here.

 

Breach of Fiduciary Duty Claim Can Be Waived

In Band v. Libby (2D11-4942), the Second District held (in addition to addressing other issues) that a claim for breach of fiduciary duty can be waived. The court stated:

We hold that a party may waive a claim based on the breach of a fiduciary duty. "Parties, by their own knowledge and conduct, can waive or be estopped to raise a wide array of constitutional, statutory, and common law rights . . . ." Ruggio v. Vining, 755 So. 2d 792, 795 (Fla. 2d DCA 2000). Indeed, "[a] party may waive any rights to which he or she is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished." Torres v. K-Site 500 Assocs., 632 So. 2d 110, 112 (Fla. 3d DCA 1994) (emphasis added). It follows that a claim based on a breach of fiduciary duty, like any other claim, may be waived.

 

Trial Court Erred In Refusing To Vacate Judgment When Borrower Cured Default Prior To Foreclosure Sale

In Wells Fargo Bank, N.A. v. Giglio (4D12-418), the Fourth District held that the trial court erred in refusing to grant a motion to vacate a foreclosure judgment. In this case, on the eve of the foreclosure sale, the borrower tendered funds to the lender sufficient to bring the loan current. Based upon that tender of funds, Wells Fargo sought to cancel the foreclosure sale and ultimately to vacate the sale that did occur. The trial court granted the motion to vacate the sale but refused to vacate the judgment. 

The Fourth District stated that "Put simply, Giglio cured the default and the parties settled their dispute, an outcome the law favors." Therefore, the court ultimately held that:

We hold that the trial court, having vacated the foreclosure sale, abused its discretion in refusing to grant the related collateral relief requested by Wells Fargo, which refusal prevented the parties from concluding their settlement. See Toler, 78 So. 3d at 701 (“An order denying a motion for relief from judgment is reviewed for an abuse of discretion.”). The trial court clearly had jurisdiction to consider Wells Fargo’s Rule 1.540(b)(5) motion; and in light of the parties’ settlement --a result the law seeks to encourage -- the relief requested should have been granted. See Wells Fargo Bank, N.A. v. Lupica, 36 So. 3d 875 (Fla. 5th DCA 2010).

In a footnote the court noted that they were not holding that a trial court was always required to vacate a judgment based upon the settlement of the parties and that there may be circumstances when other influences would support denying such a motion. However, there were no other influences in this case.

Material Outside Complaint Can Be Considered In Motion Relating To Contractual Forum Selection Clause

In Steiner Transocean Limited v. Efremova (3D12-2390), the Third District decided that there is no reason a motion to dismiss based upon a contractual forum selection clause should be treated differently than a motion to dismiss for improper venue. Therefore, the trial court erred in refusing to consider evidence outside the four corners of the complaint for purposes of determining the validity of the motion to dismiss.

Involuntary Dismissal Improper Before Party Rests Case

In Deutsche Bank Nat. Trust Co. v. Santiago (3D11-2805), the Third District held that it is premature to sua sponte enter an order for involuntary dismissal before the plaintiff has rested its case.

Florida Supreme Court: Economic Loss Rule Abolished Outside Of Products Liability Cases

In Tiara Condominium Assoc. v. Marsh & McClennan Companies, Inc. (SC10-1022), the Florida Supreme Court answered a certified question from the 11th Circuit, analyzed the origins of the economic loss rule and abolished application of the rule outside of product liability cases. The court stated: "[w]e answer this question in the negative and hold that the application of the economic loss rule is limited to products liability cases."

The majority opinion concluded by stating:

Having reviewed the origin and original purpose of the economic loss rule, and what has been described as the unprincipled extension of the rule, we now take this final step and hold that the economic loss rule applies only in the products liability context. We thus recede from our prior rulings to the extent that they have applied the economic loss rule to cases other than products liability. The Court will depart from precedent as it does here “when such departure is ‘necessary to vindicate other principles of law or to remedy continued injustice.’ ” Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1131 (Fla. 2005) (quoting Haag v. State, 591 So. 2d 614, 618 (Fla. 1992)). Stare decisis will also yield when an established rule has proven unacceptable or unworkable in practice. See Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So. 3d 576, 574 (Fla. 2010). Our experience with the economic loss rule over time, which led to the creation of the exceptions to the rule, now demonstrates that expansion of the rule beyond its origins was unwise and unworkable in practice. Thus, today we return the economic loss rule to its origin in products liability. 

CONCLUSION 

Because we now limit the application of the economic loss rule to cases involving products liability, it is not necessary for us to decide whether the economic loss rule exception for professionals applies to insurance brokers. Based on the foregoing, we answer the rephrased certified question in the negative and hold that the application of the economic loss rule is limited to products liability cases. Having answered the rephrased certified question, we return this case to the Eleventh Circuit Court of Appeals.  

Justice Labarga wrote the opinion for the court, and was joined by Justice Pariente, Justice Lewis, Justice Quince, and Justice Perry. Justice Pariente wrote a concurring opinion that begins on page 19 of the .pdf and was joined by Justice Lewis and Justice Labarga. Chief Justice Polston wrote a dissenting opinion  that begins on page 26 of the .pdf and was joined by Justice Canady. Justice Canady wrote a dissenting opinion that begins on page 28 of the .pdf and was joined by Chief Justice Polston.  

Second District Certifies Conflict Regarding Jurisdiction To Review Partial Final Judgments

In Universal Underwriters Insurance Co. v. Stathopoulos (2D12-2412, 2D12-3606), the Second District granted a motion to dismiss, concluding that review of the partial final judgment appealed would constitute improper piecemeal review. The court certified conflict to the Florida Supreme Court.

In the case, an underlying lawsuit relating to a car accident had been resolved. The second lawsuit ws described as follows:

In the subsequent lawsuit underlying this appeal, Ms.Stathopoulos and Western General filed a three-count amended complaint againstUniversal for declaratory relief and for breach of contract and bad faith for Universal'sfailure to defend and indemnify the driver in the wrongful death lawsuit. The order onappeal declares that the driver was an insured under Universal's policy and notes thatthe other two counts remain pending.

After discussing its jurisdiction and the various rules, the Second District stated:

Because the amended complaint reflects that the three counts are based on the samefacts and are intertwined, we conclude that allowing an appeal of the declaratory countat this stage would foster impermissible piecemeal review. See Mendez v. W. FlaglerFamily Ass'n, 303 So. 2d 1, 5 (Fla. 1974).

After concluding jurisdiction as a final order or non-final order was inappropriate and that it did not have certiorari jurisdiction, the Second District dismissed the consolidated appeals. However, they also certified conflict to the Florida Supreme Court which was included in a footnote. The issue certified is below:

We note that other courts have resolved appeals in similar postures under rule 9.110(m) or Reed, albeit without explicit jurisdictional analysis. See, e.g., Wilshire Ins. Co. v. Birch Crest Apartments, Inc., 69 So. 3d 975 (Fla. 4th DCA 2011); Am. Reliance Ins. Co. v. Perez, 712 So. 2d 1211 (Fla. 3d DCA 1998). To the extent that the present case is in conflict with these decisions, we certify the conflict. We reach the same conclusion as did the First District in Mercury Insurance Co. of Florida v. Markham, 938 So. 2d 607 (Fla. 1st DCA 2006), although by a somewhat different analysis.

 

Ultimate Ponzi - Book About The Rothstein Ponzi Scheme

A new book is coming out about the Scott Rothstein Ponzi Scheme. The book is titled Ultimate Ponzi and can be Pre-ordered from Amazon.com at the following link: Ultimate Ponzi, The: The Scott Rothstein Story (as of this time it is not available for Pre-order from Apple).

While on the subject of some of Broward County's better moments, apparently, there is a discussion about changing the name Broward County to Fort Lauderdale. Looking at some of these stories, maybe a name change wouldn't hurt.

Southern District of Florida to Participate In Electronic Records on Appeal Program

On Friday, the Southern District of Florida sent the following email to registered CM/ECF users:

Effective February 1, 2013, the United States Court of Appeals for the Eleventh Circuit has approved the Southern District of Florida's participation in the Electronic Records on Appeal program (EROA). For information about how this may impact your future filings with the United States Court of Appeals for the Eleventh Circuit, please refer to their website

 

Facebook Friends With The Judge? Fourth DCA Certifies Question

In Domville v. Florida (4D12-556), the Fourth District addressed the issue of a judge being Facebook friends with a lawyer appearing before the Judge (see below as Florida's Judicial Ethics Advisory Committee issued an opinion on the issue in 2009). The court certified the following question to the Florida Supreme Court:

Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?

In a special concurrence, Judge Gross stated that "recognize that the ability to participate in social media is of great importance to many and there are disagreements between reasonable persons about the way that a judge may take part in social media sites such as Facebook...[but]Judges do not have the unfettered social freedom of teenagers." (emphasis is mine).

Judge Gerber dissented as to certification and stated:

The majority does not provide its reasoning for its conclusion that the certified question is one of great public importance. The only reasoning for its conclusion appears to be stated in the concurring opinion. I disagree with the concurring opinion’s reasoning.

The concurring opinion reasons that the ability of judges to participate in social media with attorneys who appear before them “is of great importance to many.” However, the concurring opinion does not cite any authority for that statement. On the contrary, as the concurring opinion recognizes, common sense suggests that the public, without question, would appear to desire otherwise: “Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance . . . [A] person who accepts the responsibility of being a judge must also accept limitations on personal freedom.”

Related, but not discussed, is a 2009 Florida's Judicial Ethics Advisory Committee opinion that addresses this exact issue and concludes the answer is NO. A judge cannot be Facebook friends with the lawyers that practice before that Judge. See a prior post on the issue HERE. That opinions summary of issues stated, in part:

Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

ANSWER: No.

"My Beloved World" by Supreme Court Justice Sonia Sotomayor

Supreme Court Justice Sonia Sotomayor is releasing a book this week titled "My Beloved World." You can buy the book from Amazon at the following links: Kindle Version OR Hardcover. If you prefer Apple's iBooks, HERE is a link to purchase it from Apple. There are a number of reviews available including by Andrew Cohen for The Atlantic, Jay Wexler for The Boston Globe, Dahlia Lithwick for The Washington Post, and Nina Totenberg for NPR.

Insurer Not Required To Provide Claims File When Coverage At Issue

In State Farm Florida Insurance Company v. Desai (3D12-2586), the Third District granted certiorari and quashed the trial court's order compelling the production of certain documents. The court stated that "prior to a determination as to coverage, the trial court entered a discovery order requiring State Farm to (1) produce claim manuals and/or guidelines relating to certain policy language and (2) provide a representative to testify as to the claims manual, guidelines, and insurance policy." The court noted that "in seeking certiorari review of the discovery order, State Farm contends Florida law 'prohibits insureds from obtaining discovery into an insurer’s claims files and claims handling materials until contract/coverage litigation has been concluded.'” Agreeing with State Farm, the court stated that "as State Farm’s argument is well taken, we grant the petition for writ of certiorari and quash the discovery order under review."

Citizens Appraisal Clause Requires Agreement Of Parties

In Citizens Property Insurance Corp. v. Casar (3D11-2843), the Third District reversed the trial court's order compelling appraisal because the insurance policy at issuer required the agreement of the parties before appraisal could be invoked. Specifically, the court stated we "reverse as there was no agreement between the parties to appraise the loss as required by the appraisal provision of the Citizens policy." The court stated that "appraisals are creatures of contract" and "what is appraised and whether a party can be compelled to appraisal depend on the contract provisions." In this case, "Citizens complied with the appraisal provisions of the Policy. Citizens forwarded an Agreement for Appraisal. The Casars would not agree to the terms. Therefore, appraisal could not take place. Citizens complied with the policy provisions and, as such, the trial court had no basis to compel Citizens to appraisal." Therefore, the order compelling appraisal was reversed.