Wednesday, December 24, 2014

Third District: Dismissal of Same-Sex Divorce Affirmed On Standing Grounds Where Parties Did Not Raise Constitutional Issues

In Oliver v. Stufflebeam (3D12-2159), the Third District addressed an issue that at first glance might appear to be the Court addressing the issue of same-sex marriage in Florida. However, in the end it is merely about standing as the parties did not challenge the constitutionality of Florida's constitutional ban on same-sex marriage. 

This case involves "an appeal by a same-sex couple from a sua sponte order entered in the court below, dismissing their petition for dissolution of their out-of-state marriage on the authority of section 741.212 of the Florida Statutes which states that same-sex marriages 'are not recognized for any purpose in this state.'” 

However, the parties "do not challenge the validity of the statute...[and] it is quite apparent on the face of the record in this case that there is no controversy over the point on appeal between these parties. For this reason, we affirm the dismissal of this case in that the petition for dissolution of marriage lacks a case or controversy requiring the expenditure of judicial labor."  
The facts of this case are undisputed and can be succinctly stated. Sarah Oliver and Heather Stufflebeam, both female, were married under the laws of Iowa on August 17, 2009. Sometime thereafter, they moved to Florida, where on May 29, 2012, Oliver filed an uncontested petition in the family court of the Eleventh Judicial Circuit, alleging their marriage was irretrievably broken and praying for a decree of dissolution. On July 12, 2012, after a hearing on the petition, the trial court sua sponte dismissed the petition with prejudice on the authority of section 741.212 of the Florida Statutes, which prohibits the recognition of a marriage between persons of the same-sex entered into in any jurisdiction “for any purpose.” Oliver, in an appeal in which her appellee partner joins, challenges that decision
The court "begin[s] by stating what this case is not about. This case is not about the constitutionality or merits of same-sex marriage. The parties did not raise the constitutionality of section 741.212 in the trial court or as a point on appeal before us. In fact, they urge us to reverse the decision below in order to avoid constitutional issues." In a footnote, the court stated:
This position is legally puzzling. It would be a disingenuous court indeed that would “avoid” an issue to reach a particular result. We have no difficulty deciding a constitutional issue when properly raised. The parties did not raise the constitutionality of the statute either before this court or the trial court; thus, we do not reach any constitutional issues here. 
The court continued by stating that "given Florida’s exclusive right, subject only to the confines of our Federal Constitution, to define both marriage and its dissolution within this state and Florida’s recognition of marriage as only between a man and a woman, samesex couples do not have standing to seek in our courts the dissolution of a marriage that by Florida law does not exist." Finally, the court noted that "Oliver and Stufflebeam reply that our decision traps them into the very marriage Florida seeks to prohibit. That is not so. An action for annulment of their marriage may well lie in the trial court."

The Court also "acknowledge[d] that the nation is presently engaged in a great national conversation on the subject of same-sex marriage. However, this is neither the time nor the place for this court to insert itself into that discussion." 

Monday, December 15, 2014

Supreme Court: Notice of Removal Requires Only A Short and Plain Statement Regarding the Basis for Jurisdiction

In Dart Cherokee Basin Operating Co. v. Owens, a divided United States Supreme Court answered one question regarding the evidence needed to sustain a removal to federal court. The question was stated by the Court as follows:
To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? 
"That is the single question argued here and below by the parties and the issue on which we granted review,” and to answer that question the Court stated:
The answer, we hold, is supplied by the removal statute itself.  A statement “short and plain” need not contain evidentiary submissions.
(emphasis supplied). 

As for the comment above regarding it being a divided Court, the concurring and dissenting justices are shown below:
  • GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, and SOTOMAYOR, JJ., joined.
  • SCALIA, J., filed a dissenting opinion, in which KENNEDY and KAGAN, JJ., joined, and in which THOMAS, J., joined as to all but the final sentence.
  • THOMAS, J., filed a dissenting opinion.

Wednesday, November 26, 2014

Fourth District Sanctions Counsel For Failing To Confess Error on Appeal

In Lieberman v. Lieberman (4D14-509), the Fourth District again explained what should be obvious: you have an obligation to concede error if controlling caselaw requires a reversal. In this case that did not happen. The court first discussed the merits of the petition for writ of certiorari. Relying upon “Rule Regulating the Florida Bar 4-3.7(a) which states that ‘[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client . . . .’”, the trial court disqualified the former husbands new counsel, which also happened to be his new wife. 

After noting that “certiorari jurisdiction lies to review an order disqualifying counsel from representing a client at trial,” the court concluded "that the order of disqualification departs from the essential requirements of law because it is not limited to Ferrer’s participation during the contempt hearing. As is well established by numerous Florida courts, the fact that Ferrer was a potentially necessary witness at the contempt hearing would not prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings.”

In this case, that holding did not end the court’s opinion. The court continued as follows:
Under normal circumstances, we would conclude this opinion by simply granting the petition and quashing the trial court’s order of disqualification and therein recognize that the order of disqualification was impermissibly overbroad. However, the actions of counsel for the former wife, Kenneth Kaplan, have transformed this “simple” matter into an unnecessary and protracted controversy by the failure of Kaplan to acknowledge clear and unambiguous controlling law directly adverse to his client’s position. As such, we are compelled to take the extraordinary but not unprecedented step of awarding appellate attorney’s fees as a sanction. See Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 40-41 (Fla. 4th DCA 2011) (awarding appellate attorney’s fees as a sanction for a frivolous defense of a patently erroneoustrial court order), review denied, 90 So. 3d 272 (Fla. 2012); see also Crowley v. Crowley, 678 So. 2d 435, 440 (Fla. 4th DCA 1996) (recognizing that “attorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous . . . claims that contribute to unnecessary legal expenses, costs and a delay of the proceedings).  
Although the former husband did not cite KMS, Graves, or Cerillo, either here or in the trial court, Kaplan had an obligation to concede error based on those cases and the plain language of the rule.  
[A]ppellate counsel . . . has an independent [] obligation to present . . . the applicable law accurately and forthrightly. This will sometimes require appellate counsel to concede error where . . . the law is clearly contrary to the appellee’s position and no good-faith basis exists to argue that it should be changed.” 

Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005). The trial court’s order of disqualification did not just prohibit Ferrer from representing the former husband at the contempt hearing; it generally prohibited her from any further representation of the former husband. The disqualification order is contrary to the plain terms of rule 4-3.7(a), titled “When Lawyer May Testify,” which prohibits the lawyer from acting “as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.” R. Regulating Fla. Bar 4-3.7(a) (emphasis added). The rule does not support general disqualification of counsel. 


In this case, there was no legal basis for disqualifying Ferrer from representing the former husband in any proceedings subsequent to the contempt hearing. Therefore, the former wife’s counsel, Mr. Kaplan, should have confessed error as to the trial court’s general order of disqualification. Failure to do so was a self-evident violation of counsel’s duty to disclose legal authority adverse to his client’s legal position and argument. R. Regulating Fla. Bar 4-3.3(a)(3); Dilallo ex rel. Dilallo v. Riding Safely, Inc., 687 So. 2d 353, 355 (Fla. 4th DCA 1997) (holding that rule 4-3.3(3) implies a duty to know and disclose adverse legal authority to the courts); see also R. Regulating Fla. Bar 4-3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”). 

Accordingly, we remand this matter to the trial court to assess the amount of appellate attorney’s fees to be imposed as sanction on the former wife for her counsel’s baseless defense in this proceeding. Santini, 65 So. 3d at 41.

Wednesday, November 19, 2014

Certiorari Requires Irreparable Harm

In Stockinger, et al v. Zeilberger, et al (3D14-550), the Third District dismissed a petition for writ of certiorari for lack of jurisdiction. The court stated explained the requirements for certiorari jurisdiction as follows:
To invoke this court’s power to issue a writ of certiorari, a petitioner for the writ must show that the challenged non-final order (1) departs from the essential requirements of law, (2) results in material injury for the remainder of the case, and (3) such injury is incapable of correction on post judgment appeal. [ ] These last two elements are sometimes referred to as irreparable harm. 
Internal citations have been removed. 

With regard to those requirements, the court stated that “there is a serious legal impediment to granting the writ in this case: Stockinger, Haider, and Kuhtreiber have not and cannot show irreparable harm at this stage of the proceeding.” 

"Certiorari review of non-final orders is a narrow remedy to be used in extraordinary circumstances. Certiorari is not a general license for appellate courts to closely supervise the day-to-day decision making of trial courts.” In this case, the court concluded that the petitioner had failed to establish (or allege) the existence of any irreparable harm.

In fact, “the order actually resolves with finality absolutely nothing. It forecloses nothing, terminates nothing, dismisses nothing, and sanctions no one.” Therefore, the petitioner had failed to establish irreparable harm which deprived the court of jurisdiction to grant the petition and issue the writ. 

Thursday, October 30, 2014

Trust Account Wire Receipts Are Not Privileged

In Sweetapple, Broeker & Varkas, P.L. v. Simmon (3D14-1543), the Third District addressed whether trust account wire receipts showing transfers to Sweetapple, Broeker & Varkas, P.L. (“the Firm”) are protected by the attorney-client privilege. The court described the general facts as follows:
After obtaining two judgments against one of the Firm’s clients, the Judgment Creditor discovered that the client transferred money to the Firm. The Judgment Creditor subpoenaed the Firm requesting documents reflecting any payment of sums into and out of the Firm’s trust account for the benefit of its client.  
The trial court held an in camera inspection and ordered the law firm to produce the records. The Third District agreed and concluded that "because this financial information is not privileged in the hands of the client, it is not privileged in the hands of the attorney." Therefore, the judgment creditor prevailed. 

On a procedural note, the court dismissed the petition as opposed to denying it, stating:
Because the records are not privileged, the Firm has failed to demonstrate that production of the documents would constitute irreparable harm. We therefore dismiss the petition for lack of jurisdiction. Bd. of Trs. of Internal ImprovementTrust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012) (“A finding that the petitioning party has suffered an irreparable harm that cannot be remedied on direct appeal is a condition precedent to invoking a district court’s certiorari jurisdiction.”) (citation and internal quotations omitted). 
Judge Logue wrote the opinion and was joined by Chief Judge Shepherd and Judge Emas. 

Florida Supreme Court Removes County Court Judge From Bench

Today in Inquiry Concerning a Judge, No. 11-550 RE: Judith W. Hawkins (No. SC12-2495), the Florida Supreme Court considered the recommendations of the Judicial Qualifications Commission with regard to "alleged violations of the Code of Judicial Conduct, Canons 1, 2A, 2B, 3A, 3B(2), 3B(4), 3B(7), 3B(8), 3C(1), 4D(1), and 5D(1), and violation of article V, section 13, of the Florida Constitution." The charges were described as follows:
The charges comprised five categories: I. use of judicial office to promote a private business, Gaza Road Ministries, in which Judge Hawkins was a speaker and a writer, having written and published a book titled “Old Stories, New Insights” based on biblical stories; II. failure to respect and comply with the law; III. failure to act in a manner promoting public confidence in the judiciary; IV. failure to devote full attention to her judicial office; and V. lack of candor with the Judicial Qualifications Commission (the Commission). 
The court gave "the findings and recommendations of the JQC great weight," but rejected the JQC's recommendation of serious sanctions short of removal. Noting the court's "constitutional responsibility ... to determine the appropriate sanction" and reminding of "the utmost importance of maintaining the integrity of the justice system," the court stated: 
For the reasons we explain, based on the violations found by the Hearing Panel which were supported by clear and convincing evidence, we conclude that removal from the bench is the only appropriate sanction in this case.
For the reasons set forth herein, we find, based on clear and convincing evidence, that Judge Judith W. Hawkins violated Canons 1, 2A, and 5D of the Code of Judicial Conduct, and that those violations cumulatively warrant the most severe sanction that we impose today. Accordingly, we hereby remove Leon County Judge Judith W. Hawkins from the office of county judge, effective when this decision becomes final. It is our hope that this decision will serve as a reminder to judges of their continuing obligation to personally observe the high standards of conduct mandated by the Code of Judicial Conduct, and to conduct themselves in all things in a manner that will demonstrate candor and preserve the integrity and independence of the judiciary.
As with any grouping of people, most won't need the reminder included at the end of the opinion.

The decision was unanimous, however, Justice Quince was recused.

Thursday, April 17, 2014

Florida Supreme Court: Pregnancy Discrimination Covered by Florida Civil Rights Act

In Delva v. The Continental Group, Inc. (SC12-2315), the Florida Supreme Court held that pregnancy discrimination is covered by the Florida Civil Rights Act. Justice Pariente wrote the majority opinion and was joined by Justices Quince, Canady, Labarga, and Perry. Justice Lewis concurred in the result. Chief Justice Polston wrote a dissenting opinion.

The fact that pregnancy discrimination is covered by a discrimination statute, on its face, is not a surprise. However, as noted by the majority opinion, an earlier opinion from the First District pointed out that: "In General Electric Company v. Gilbert, 429 U.S. 125 (1976), the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII [of the federal Civil Rights Act of 1964, upon which the FCRA was patterned]."

After the United States Supreme Court's decision in Gilbert, the United States Congress amended the federal civil rights act to specifically include pregnancy discrimination. The Florida Legislature also considered the issue after Gilbert but chose not to amend the statute. Therefore, two courts have held that pregnancy discrimination is not covered by the Florida Civil Rights Act (but, of course, still covered under the federal act). Delva v. Continental Group, Inc., 96 So. 3d 956, 957-958 (Fla. 3d DCA 2012); O’Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991). After O'Loughlin, but before Delva, the Fourth District had reached the opposite result. Carsillo v. City of Lake Worth, 995 So. 2d 1118, 1120 (Fla. 4th DCA 2008) 

In the opinion released today, the Florida Supreme Court rejected the interpretation by the First and Third District (and, I guess, also rejected the view of the United States Supreme Court), and agreed with the Fourth District's decision in Carsillo. The Florida Supreme Court held that we "embrace the common-sense reasoning of the Supreme Court of Massachusetts" [technically, the Supreme Judicial Court] in that court's 1978 opinion titled Mass. Elec. Co. v. Mass. Comm’n Against Discrimination, 375 N.E.2d 1192, 1198 (Mass. 1978), and agreed with the Fourth District's view that the intent of the legislature was that the statute be broadly interpreted. The majority stated that a contrary conclusion would "be plainly inconsistent with legislative intent, as expressed in the FCRA itself, that the FCRA 'shall be liberally construed' to further its purpose 'to secure for all individuals within the state freedom from discrimination because of . . . sex.' § 760.01(2)-(3), Fla. Stat."

Wednesday, March 26, 2014

Dismissal With Prejudice for Discovery Violations Reversed

In PNC Bank, N.A. v. Duque (4D12-1799), the Fourth District reversed a trial court's order dismissing a complaint with prejudice as a result of discovery violations. In this foreclosure action, the defendant served numerous discovery requests to which the plaintiff, allegedly, failed to respond. As a result, the defendant sought sanctions and the trial court dismissed the case with prejudice. The plaintiff filed a motion for rehearing directed to the dismissal, however, that motion was denied and the plaintiff appealed. On appeal, the court held:
We have reviewed the trial court’s order. While indicating that the court considered the six Kozel factors, the order lacked specific findings as to each. We do not condone the bank’s failure to comply with discovery and court orders; we feel the trial court’s frustration. But, as the bank argues, the homeowners made numerous confusing and cumulative discovery requests while failing to file a responsive pleading for two years. There was no evidence that the violations were caused by the bank itself. The homeowners suffered no prejudice, and the bank’s violations did not cause any significant problem with judicial administration.  

The law does not always provide a good roadmap for trial courts. In this area of sanctioning non-compliant parties, however, our supreme court has done just that. See Kozel, 629 So. 2d at 818. When the trial court fails to follow that roadmap, reversal is warranted. See Bank One, 873 So. 2d at 521–22. 

Tuesday, March 18, 2014

Fifth District Affirms and Issues Sanctions Order On Own Motion

In Badgley v. SunTrust Mortgage (5D13-2500), the Fifth District affirmed the trial court's sanction order and, sua sponte, ordered "order Badgley and her attorney to pay, in equal amounts, the reasonable attorneys' fees and costs incurred by Appellees in this appeal, pursuant to section 57.105(1), Florida Statutes." There were a number of issues raised on appeal and are generally described below:
In her first issue, she baldly asserts that dismissing a complaint prior to discovery violates due process of law. The law is to the contrary.
In her second and third issues, Badgley argues that the dismissal of her complaint with prejudice was error even though she had already amended the complaint once as a matter of right and her quiet title theory was legally unsupportable based on the alleged facts. She claimed her lenders created a cloud on her title by refusing to respond to her absurd demand of them to "prove" that she owed them money. Not only is there no legal basis to support such a claim, the attachments to the complaint clearly demonstrate, as Badgley later admitted, that she 'took a mortgage and got the money.'
In her fourth issue, Badgley claims Appellees' fee motion below was untimely filed after the dismissal judgment even though Appellees' motion for sanctions was timely filed before the judgment awarding fees.
Finally, Badgley disputes the sanction award even though similar complaints by plaintiffs represented by her attorney have been dismissed and have been the basis for sanctions.
In a footnote to the discussion of the second and third issue, the court described the claim that the lender created a cloud on title as follows: "Badgley sent Appellees a written demand to 'validate that an actual debt exists' by producing twenty-three separate categories of documents. The demand stated that if Appellees failed to produce the information requested in their next correspondence, they would 'be accepting my offer to provide pen pal services at $100,000.00 per correspondence.' It further notified Appellees that by 'failure to validate the alleged debt,"as demanded, they would tacitly agree to waive any and all claims against Badgley, would release her from any encumbrances clouding title to her property, and would be subject to a quiet title action.'" (Emphasis is mine).

Thursday, March 6, 2014

Florida Supreme Court: Unauthorized Immigrants Are Ineligible For Admission To the Florida Bar

In Florida Board of Bar Examiners Re: Questions as to Whether Undocumented Immigrants are Eligible for Admissions to the Florida Bar (SC11-2568), the Florida Supreme Court issued an opinion today holding that an unauthorized alien residing in the United States is not authorized to obtain a license to practice law. 

The court stated that the Florida Board of Bar Examiners "asks the Court whether Applicant and any future similarly situated applicants are eligible for admission to The Florida Bar. As explained below, we answer the question by holding that unauthorized immigrants are ineligible for admission to The Florida Bar." 

Notably, the Department of Justice filed briefs in the case and argued that federal law prohibited the issuance of a law license to an unlawful alien. The court stated that "the United States Department of Justice argues that federal statutes prohibit this Court from issuing a law license to an unlawfully present alien, citing 8 U.S.C. § 1621 (2012). The Department of Justice also cites the Personal Responsibility and Work Opportunity Reconciliation Act of 1996....." 

Justice Labarga filed a concurring opinion and stated: "I reluctantly concur with the majority decision rendering an otherwise qualified class of applicants ineligible to practice law in Florida simply on the basis of their immigration status, but I do so only because the present state of federal and Florida law compels me to reach such an inequitable conclusion." Justice Labarga also noted that:
Indeed, in many respects, Applicant’s life in the United States parallels my own. He and I were brought to this great nation as young children by our hardworking immigrant parents. We both learned to read, write, and speak the English language within a short period of time. We excelled scholastically and graduated from college and law school—Applicant from Florida State University and I from the University of Florida. Both of us were driven by the opportunities this great nation offered to realize the American dream. Sadly, however, here the similarities end and the perceptions of our accomplishments begin. When I arrived in the United States from Cuba in 1963, soon after the Cuban Missile Crisis—the height of the Cold War—my parents and I were perceived as defectors from a tyrannical communist regime. Thus, we were received with open arms, our arrival celebrated, and my path to citizenship and the legal profession unimpeded by public policy decisions. Applicant, however, who is perceived to be a defector from poverty, is viewed negatively because his family sought an opportunity for economic prosperity. It is this distinction of perception, a distinction that I cannot justify regarding admission to The Florida Bar, that is at the root of Applicant’s situation. Applicant is so near to realizing his goals yet so agonizingly far because, regrettably, unlike the California Legislature, the Florida Legislature has not exercised its considerable authority on this important question. Thus, only reluctantly do I concur with the majority decision. 
Justice Pariente concurred with Justice Labarga's concurring opinion.

Wednesday, February 26, 2014

Fourth District Quashes Order Compelling Deposition Of Defendant Outside Of County of Residence

In Polselli v. Wicker, Smith, O’Hara & Ford, P.A. (4D13-4180), the Fourth District granted a petition for writ of certiorari and quashed the trial court’s order compelling the deposition of the petitioners. The majority opinion stated that "Respondent noticed the petitioners to appear for deposition in their individual capacity. It is well-settled that a defendant must be deposed in the county of his or her work or residence unless the defendant has sought affirmative relief or extraordinary circumstances exist.” The court stated that “Petitioners are not seeking affirmative relief and respondents have failed to demonstrate that extraordinary circumstances exist, which would require petitioners’ appearance in Florida for deposition.” Therefore, the order compelling the deposition to occur in Broward County was quashed.

Judge Warner filed a dissenting opinion, dissenting on two different grounds. Her dissent first stated that "The trial court originally entered an order in August 2013, requiring the petitioners to appear for their depositions in Broward County. Rather than seek review of that order, petitioners failed to appear for the scheduled depositions, prompting a motion to compel and the order now before this court. Their failure to seek timely review of the August 2013 order resulted in a waiver of their right to contest their required appearance in Florida.” Presumably in response to this portion of the dissent, and regarding the motion to dismiss, the majority opinion included a footnote stating: “We deny respondent’s motion to dismiss as the previous directive that the petitioners appear “as scheduled” was issued within an order that permitted their attorneys to withdraw.”

Judge Warner also dissented on the merits. The dissent states "Alternatively, I would deny the petition because petitioners have failed to demonstrate that they are not corporate representatives who can be deposed at the corporate place of business. CVS Caremark Corp. v. Latour109 So. 3d 1232 (Fla. 1st DCA 2013). Based on the foregoing, I cannot conclude that the trial court departed from the essential requirements of law.”

Fourth District On The Retroactive Application of Section 768.0755 (Conflict Certified), Jury Interviews, & Non-Delegable Duty of Care

 In Pembroke Lakes Mall LTD v. McGruder (4D11-4005), the Fourth District affirmed in part, reversed in part, and certified conflict with the Third District’s decision in Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013). The court “conclude[d] the trial court properly denied the Mall’s motion for directed verdict and the court did not abuse its discretion by denying the motion for mistrial following McGruder’s improper arguments. We also affirm the trial court’s decision to not apply section 768.0755 retroactively, and we certify conflict with the Third District on that issue. We reverse on the issues of the juror interviews and the cross-appeal, and remand for the court to allow Pembroke Lakes and Millard to conduct interviews of the jurors.”

Retroactive Application of Statute

The court first addressed “whether section 768.0755, Florida Statutes (2010), applies retroactively.” In 2001, in a slip and fall case, the Florida Supreme Court held that “all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 320 (Fla. 2001). The Fourth District stated that “in 2002, apparently in response to Owens, the Florida Legislature enacted section 768.0710, Florida Statutes (2002), establishing the ‘burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.’” However, in 2010, the legislature again amended the statute in a substantial way. "The legislature repealed section 768.0710 and replaced it with section 768.0755, Florida Statutes (2010) and therein provided an effective date of July 1, 2010. In revising the law and repealing section 768.0710, the legislature did not state the new statute should apply retroactively. Section 768.0755 is entitled ‘Premises liability for transitory foreign substances in a business establishment’.”

The issue was whether the 2002 version of the law, or the 2010 version enacted after the alleged incident, would apply to this claim. To determine whether a statute can be applied retroactively:
The Florida Supreme Court has set a two-prong test for determining whether a statute applies 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.’” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 195 (Fla. 2011) (quoting Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 877 (Fla. 2010)).
“As to the first prong, legislative intent, the legislature gave no indication in section 768.0755 that the statute was to be applied retroactively.” However, “the general rule against retroactive application of statutes does not apply to procedural or remedial changes.” "Thus, the issue is whether section 768.0755 is procedural or substantive. ‘ S]ubstantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.' Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994) (citation omitted).”

As to this specific change, and contrary to the Third District’s conclusion in Kenz, the court stated that “the shift from 768.0710 to 768.0755 was far more than a simple procedural change to the burden of proof.” The court also “respectfully disagree[d] with the Kenz court’s conclusion that applying section 768.0755 retroactively would not abolish a plaintiff’s cause of action.” Therefore, the statute could not be applied retroactively.and held that “for these reasons, we affirm the trial court’s decision to apply the 2002 statute (section 768.0710) rather than the 2010 law (section 768.0755), and certify conflict with the Third District’s Kenz decision.”

Post-Trial Jury Interviews

The court also addressed the trial court’s denial of a motion to conduct post-trial jury interviews. "Where, as here, the basis of a request for post-trial interviews is the jurors’ alleged nondisclosure of information during voir dire, “the motion should demonstrate entitlement to a new trial under the three-part test” of De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995).” The court stated that:
Applying these principles to the instant case, we must conclude that the trial court abused its discretion by denying the motion to interview the jurors. “Although generally post-verdict juror interviews are disfavored, where there is adequate proof that a juror may have failed to disclose material information on voir dire, a party is entitled to conduct an interview of the juror.” Hillsboro Mgmt., LLC v. Pagono, 112 So. 3d 620, 624 (Fla. 4th DCA 2013).
The court stated that while the disclosure of prior litigation by a juror is always relevant, it is not always material. "Here, the prior litigation was potentially material to this slip and fall litigation. At least one of the jurors, Jorge, was involved in a personal injury protection lawsuit and may have participated in other litigation that was relevant and material to the instant case.” 
After establishing the information was material, the movant was still required to establish that the juror concealed the information and that the concealment was not the fault of the movant. On those issues, the court stated: 
The concealment prong is met when the juror is “squarely asked for” the information and the juror fails to speak the truth…. The concealment prong may be met if the juror fails to respond to questions from either the court or the parties. … The nondisclosure need not be intentional to constitute concealment. Here, the concealment prong was met because the court unambiguously asked the challenged jurors whether they or their families were involved in or had been involved in any litigation apart from divorces, and all four categorically answered that they had not.

Finally, the third prong addresses whether the cause of the failure to elicit the information was due to the fault of the complaining party. If a juror mentions involvement in litigation and the complaining party does not ask follow-up questions, the party cannot then obtain a new trial because of undisclosed information relating to the litigation. … However, if the juror unambiguously denies involvement in prior litigation, counsel need not ask follow-up questions. Here, the jurors categorically answered that they had not been involved in prior litigation, in response to a clear question posed by the court. The parties were entitled to rely on the sacrosanct underpinnings of voir dire. The jurors’ answers and nondisclosures were not due to the fault of Pembroke Lakes or Millard.
Non-Delegable Duty of Care

The final issue addressed in the court’s 16 page opinion relates to “McGruder’s claim that the trial court erred by refusing to hold Pembroke Lakes liable for the negligence attributed to Millard.” The court’s opinion provides more analysis than is included here but, generally, the court held as follows:
Section 768.0710 imposes a non-delegable duty of care on business owners to maintain their premises in a reasonably safe condition for invitees ….The premises owner cannot avoid liability for the breach of its statutory duty by contracting the maintenance and cleaning function at the [premises] to others. …. When an owner owes a non-delegable duty of care to a plaintiff who obtains a verdict assigning negligence to the owner and a party contracted by the owner, the owner is jointly and severally liable for the negligence attributed to the contracted party. …. Pembroke Lakes raises numerous arguments in opposition to imposing liability against it for the negligence attributed to Millard. We reject each argument
One of the three arguments discussed, and rejected by the court relates to the difference between a non-delegable duty and vicarious liability. Because it is apparently a source of confusion, the court’s clarification is copied below:
Pembroke Lakes’ argument that a finding of agency is required to impose liability against a premises owner for a breach of a non-delegable duty is incorrect. Pembroke Lakes, like many parties and some courts, erroneously conflates the concepts of non-delegable duty and vicarious liability. … Vicarious liability is a form of indirect liability in which a party, who may have not been negligent, can be held liable for the acts of another party. … In contrast, a breach of a non-delegable duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition.  

Monday, February 24, 2014

57.105 Safe Harbor Provisions Do Not Apply To Court

A few weeks ago, in Albelo v. Southern Oak Insurance Company (3D11-3102), the Third District entered an order granting rehearing and vacating a prior opinion awarding sanctions based upon section 57.105, Florida Statutes, but at the same time issued a new opinion awarding sanctions on the court's own motion.

The court agreed with new counsel that the sanctions motion had failed to comply with the safe harbor provisions provided by section 57.105. Therefore, the prior opinion granting sanctions on that basis was withdrawn. The court, however, noted that sanctions on the court's own motion do not require compliance with the safe harbor provisions of the statute. The court stated that:
While we agree with Rehearing Counsel that Albelo failed to satisfy the requirements of the safe harbor provision, we respectfully disagree with Rehearing Counsel that the argument made to us was non-frivolous. The twenty-one-day safe harbor provision does not apply to court-initiated sanctions.
The now vacated original opinion can be viewed HERE

Friday, January 10, 2014

The Solicitor General's Style Guide

The Solicitor General’s Style Guide has been published for the first time since 1941 and, according to the book, no copies of the 1941 edition are known to still exist. It is available from in both a print and a Kindle edition.

The Style Guide was published in November and, at that time, discussed by the Blog of Legal TimesSCOTUSblog, Legal Writing Pro, etc. If you write briefs, it is a good guide to add to your shelf. 

Thursday, January 2, 2014

Third District Grants Prohibition Based Upon Stand Your Ground Law

In Mobley v. Florida (3D13-1566), the Third District Court of Appeal released a split opinion today, granting a petition for writ of prohibition. The majority opinion was written by Judge Wells who was joined by Chief Judge Shepherd. The dissent was written by Judge Salter. The end result is the trial court’s order denying immunity to a man that shot two people is quashed and he will not be tried. The 23 page opinion (including the dissent) is worth reading if the stand your ground law is of interest to you. It also presents a situation where the stand your ground law is actually applied—which seems relevant given the frequency of debate about the law.

11th Circuit Holds It Is A Violation of the FDCPA To Charge Flat Collection Fee When Not In Contract

In Bradley v. Franklin Collection Services Inc., the Eleventh Circuit addressed an issue relating to the Fair Debt Collection Practices Act and adopted the Eighth Circuit’s view on this particular issue.

In Kojetin v. CU Recovery, Inc., 212 F.3d 1318, 1318 (8th Cir. 2000) (per curium), the Eighth Circuit “held that the debt collector violated the FDCPA when it charged the debtor a collection fee based on a percentage of the principal balance of the debt due rather than the actual cost of collection.” The Eleventh Circuit, in today’s published opinion, now joins the Eighth Circuit. 

In this case, “When Bradley signed Urology’s patient registration form, he only agreed to pay 'all costs of collection.' That is, Bradley agreed to pay the actual costs of collection; his contractual agreement with Urology did not require him to pay a collection agency’s percentage-based fee where that fee did not correlate to the costs of collection.” 

“Before Urology handed over Bradley’s delinquent account to Franklin, it added a 33-and-1/3% 'collection fee.' Franklin failed to direct this Court to any evidence that the 33-and-1/3% ‘collection fee'—which was assessed before Franklin attempted to collect the balance due—bears any correlation to the actual cost of Franklin’s collection effort. As such, the 33-and-1/3% fee breaches the agreement between Bradley and Urology, since, contractually, Bradley was only obligated to pay the ‘ osts of collection.

Based upon those facts, the court held “that Franklin violated the FDCPA when it collected from Bradley a debt that included a 33-and-1/3% ‘collection fee’ when Bradley only agreed to pay the actual costs of collection.” Notably, the court also stated that “this is not to say that Bradley and Urology could not have formed an agreement allowing for the collection of the percentage-based fee.”