Fourth District: New Notice to Attorneys/Parties & New Administrative Order re: Agreed Extensions of Time

Last week the Fourth District issued a new Administrative Order regarding agreed extensions of time and an updated Notice to Attorneys and Parties. 

The Administrative Order regarding agreed extensions of time, Administrative Order 2016-01, can be downloaded HERE. The Fourth District's updated Notice to Attorneys and Parties can be downloaded HERE. 

The First District does not have an agreed extension procedure but the Second District, Third District, Fourth District (see above), and Fifth District do. The Second District's administrative order can be downloaded HERE (June 3, 2013); the Third District's administrative order can be downloaded HERE (amended June 30, 2015); and the Fifth District's administrative order can be downloaded HERE (March 8, 2013). 

After Merger, Claim May Be Continued As If Merger Did Not Occur

In Fiorentino v BAC Home Loans Servicing, LP (5D13-3250), the Fifth District reversed the foreclosure judgment. However, in a footnote the court cited to section 607.1106(d), Florida Statutes. That statutory section is titled "effect of merger or share exchange," and the cited provision states that "Any claim existing or action or proceeding pending by or against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation which ceased existence."

Applied to the case before the court, the court noted the following:

The record reflects that BAC merged into Bank of America effective July 1, 2011, and did not survive the merger. Pursuant to section 607.1106(1)(d), Florida Statutes, the claim may be continued as if the merger did not occur, or the surviving corporation, Bank of America, may be substituted in the proceeding.

While not a new law, it is a statutory provision that isn't referenced often.

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).

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.

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.

Summary Judgment Should Not Be Entered With Reservation To Consider Defenses

In Bertha Sanchez and International Restaurants Corp. v. Soleil Builders, Inc., the Fifth District reversed the trial court's summary judgment order. The trial court  entered judgment when affirmative defenses raised by Ms. Sanchez were not considered.  The court stated:

Soleil Builders filed a Motion for Summary Final Judgment.  Several months later, the parties convened for the hearing on the Motion, which resulted in a Partial Summary Final Judgment in favor of Soleil Builders for the total amount it sought.  This judgment is the first reference to Soleil Builders’ motion as having sought only a partial summary judgment:  the court reserved jurisdiction to determine pre-judgment interest and attorney’s fees and “all issues that remain pending before the Court, including deciding the issues raised in the counterclaim filed by the SANCHEZES.”  Sanchez subsequently filed for rehearing of the Partial Summary Final Judgment, contending, among other things, that her affirmative defenses had not been considered at the hearing; Sanchez wanted her defenses heard and the counterclaims considered.  Sanchez argued that since Soleil Builders had failed to refute  her affirmative defenses or address the counterclaims, summary judgment was improper.  Shortly thereafter, Soleil Builders filed its Motion for Summary Final Judgment on Sanchez’s counterclaims.  

When the hearing was held on the second motion for summary judgment, "Soleil Builders essentially contended that the issues  raised in the affirmative defenses and counterclaims had been resolved in the Partial Summary Final Judgment when the court found in favor of Soleil Builders for the total sum it had sought. The trial court entered a Final Summary Judgment on all affirmative defenses and counterclaims without comment." The court continued:

A troubling aspect of this case is the bifurcation of the claims raised in the Complaint from those asserted in Sanchez’s affirmative defenses.  The record does not provide any clue as to how it came to pass that the court rendered only a partial summary final judgment when there was nothing in Soleil Builders’ Motion that would have restricted its Motion to only the counts of its Complaint. Nothing occurred at the summary judgment hearing that suggested that it was agreed or understood that only the claims of the Complaint would be decided and, given the interwoven nature of all of the issues in the Complaint and affirmative defenses, they all should have been decided before summary judgment was entered.  It is well settled that, “[i]n order to be entitled to summary judgment as a matter of law, the party seeking summary judgment must not only establish that no genuine issues of material fact exist as to the party's claims but must also either factually refute the affirmative defenses or establish that they are legally insufficient.” 

Finally, the court concluded:

The problem in entering the Partial  Summary Final Judgment and leaving for another day the issues raised in the affirmative defenses and counterclaims was made all the more apparent when Soleil Builders used the entry of the Partial Summary Final Judgment to successfully argue at the subsequent hearing that the affirmative defenses and counterclaims had already been decided adversely to Sanchez.  In short, the case below was a muddle and reversal is required because of the error that occurred when the trial court entered the two summary judgments without properly addressing the issues raised by the affirmative defenses and counterclaims filed by Sanchez.  Accordingly, the judgments  under review are reversed and this case is remanded for further proceedings.  

5th DCA Opinion Regarding Attempt To Require Appellant To Pay To Supplement Record

In Fay v. Craig (5D12-3224), the Fifth District released an opinion denying the Appellee's "Motion To Compel Appellant To Order A Complete Trial Transcript." The court stated that "She purports  to base her motion  on Florida Rule of Appellate Procedure 9.200(f)(2), contending that the partial transcript designated by Appellant is insufficient to address the issues on appeal.  Because we have recently experienced an increased number of similar  motions, and in an effort to curb this particular practice and conserve this Court’s resources, we have determined that a published opinion is warranted."

Rule 9.200(f)(2) was promulgated in 1977 with the avowed intent to ameliorate the harsh consequences to an appellant when the court’s decision to affirm is based on an incomplete record or transcript...This rule prohibits a court from disposing of a case based on an incomplete record “until an opportunity to supplement the record has been given.” The relief Appellee seeks—to compel Appellant to designate the entire transcript for inclusion in the record—is not available under this rule, especially at this procedural juncture before the briefing period ends.  

***

The appellate rules do not require the filing of the entire trial transcript; rather, the appellant need only file portions of the transcript “deemed necessary.”....Indeed, depending on the issue(s), an appeal may proceed on the merits with a partial transcript or no transcript at all....

Our decision to deny the motion should not be viewed as a determination that Appellant has met his burden  to furnish the necessary record.  To a large extent appellants proceed at their peril when they furnish a partial transcript. ...Courts often conclude that the “opportunity” to supplement the record afforded by rule 9.200(f) (2) is waived or deemed satisfied when a litigant fails to promptly seek to supplement the record after notice is given of a perceived deficiency.

Fifth District Explains (Again) What Is Needed To Obtain Foreclosure Judgment

In Richards v. HSBC Bank USA as Trustee for PHH 2007 (5D10-3895), the Fifth District reversed a foreclosure judgment and succinctly stated what is needed to prevail in a mortgage foreclosure action. The court stated:

The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder’s representative. See Gee v. U.S. Bank Nat’l Ass’n, 72 So. 3d 211, 213 (Fla. 5th DCA 2011). Thus, the party seeking foreclosure must present evidence that it holds the note and mortgage in question in order to proceed with its foreclosure action. Id. A plaintiff must tender the original promissory note to the trial court or seek to reestablish the note under section 673.3091, Florida Statutes (2010). Id. If the note does not name the plaintiff as the payee, the note must bear an endorsement in favor of the plaintiff or a blank endorsement. Id. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. Id.

In this case, the note was specifically indorsed to an entity other than HSBC and the relationship between that entity and HSBC was not explained. Therefore, summary judgment was not proper.

Note Merges Into Judgment & "cause’s independent existence terminates"

In Weston Orlando Park, Inc. v. Fairwinds Credit Union (5D11-2260), the Fifth District affirmed the trial Court's judgment with one exception. That exception is copied below:

The trial court could not reserve jurisdiction on Fairwinds’s claims for breach ofthe promissory notes, separate from the claims for foreclosure, because the debtrepresented by the notes had merged into the final judgment. The doctrine of mergerprovides that when a valid and final judgment is rendered in favor of a plaintiff, theoriginal debt or cause of action upon which an adjudication is predicated merges intothe final judgment, and, consequently, the cause’s independent existence terminates.

 

Summary Judgment Affidavits

In Helping Hand Private Foundation, Inc. v. Ocean Palm Beach Club, Inc. (5D10-4403), the Fifth District reminded that when filing a summary judgment motion, "supporting affidavits are required to be 'made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein.'” The court also pointed out that it had previously reversed a summary judgment order involving the same parties on the same grounds. Helping Hand Private Foundation, Inc. v. Ocean Palms Beach Club, Inc., 71 So. 3d 201 (Fla. 5th DCA 2011).

Foreclosure Summary Judgment Reversed Due To Standing And Failure To Seek Relief Granted

In Gee v. U.S. Bank (5D10-1687), the Fifth District reversed a judgment in favor of U.S. Bank "Because U.S. Bank’s motion did not address any facts or law pertaining to its entitlement to summary judgment on its claims to reestablish the lost instruments and reform the deed and mortgage, the trial court erred in entering summary judgment on these grounds."

U.S. Bank filed a foreclosure complaint seeking to foreclose on a mortgage and reestablish a lost note. Subsequently, U.S. Bank filed a motion for summary judgment that "was silent regarding the reestablishment and reformation claims." In support of the summary judgment motion:

American Home, now purporting to act as U.S. Bank’s servicing agent, filed an affidavit, averring that the complaint’s allegations were true based on her knowledge as custodian of U.S. Bank’s business records, that U.S. Bank owned and held the Mortgage, and that Ms. Gee defaulted under the Mortgage by failing to make payments as due. Neither the motion nor the affidavit made mention of the lost note, the lost mortgage, or the claim for reformation of the deed and mortgage. To the contrary, the summary judgment motion stated that “the original promissory note, mortgage and assignment of mortgage would be filed on or before the hearing.” After a hearing, the court entered a summary final judgment of foreclosure, which reestablished the lost Mortgage, reformed the legal description contained in the mortgage and the warranty deed, and foreclosed the reestablished and reformed Mortgage.

The appellant appealed the summary judgment order and argued "among other things, that (1) U.S. Bank lacked standing to bring the foreclosure action, and (2) the summary judgment was entered on grounds that were not raised in the summary judgment motion." With regard to standing, the court stated:

Here, the record does not contain the original Mortgage. To prove its ownership, U.S. Bank filed a copy of the Mortgage as well as two assignments. The first assignment transferred the Mortgage from Advent Mortgage, the original mortgagee, to Option One. The second assignment purported to transfer the mortgage from American Home, as successor in interest of Option One, to U.S. Bank. However, and significant to our consideration, U.S. Bank provided nothing to demonstrate how American Home came to be the successor in interest to Option One. 

Incredibly, U.S. Bank argues that “[i]t would be inequitable for [Ms. Gee] to avoid foreclosure based on the absence of an endorsement to [it].” But that argument flies in the face of well-established precedent requiring the party seeking foreclosure to present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action. See Verizzo, 28 So. 3d at 978; Philogene v. ABN Amro Mortg. Group Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006). When Ms. Gee denied that U.S. Bank had an interest in the Mortgage, ownership became an issue that U.S. Bank, as the plaintiff, was required to prove....As U.S. Bank failed to offer any proof of American Home’s authority to assign the Mortgage, we conclude that it failed to establish its standing to bring the foreclosure action as a matter of law. See Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) (.....); see also Khan v. Bank of Am., N.A., 58 So. 3d 927, 928 (Fla. 5th DCA 2011) (......); Verizzo, 28 So. 3d at 977 (.....). Cf. Isaac v. Deutsche Bank Nat’l Trust Co., 36 Fla. L. Weekly D727 (Fla. 4th DCA Apr. 6, 2011) (......); Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618 (Fla. 5th DCA 2010).

With regard to the second issue, the Court stated that "[a]s Ms. Gee contends, U.S. Bank’s summary judgment motion made no mention of its claim to reestablish the lost Mortgage and identified no evidence to support its claim that these documents were lost. Instead, the motion declared the opposite...."

"Because U.S. Bank’s motion did not address any facts or law pertaining to its entitlement to summary judgment on its claims to reestablish the lost instruments and reform the deed and mortgage, the trial court erred in entering summary judgment on these grounds. By failing to state with particularity the grounds upon which its summary judgment motion was based, U.S. Bank failed to provide Ms. Gee with proper notice of the separate issues to be resolved and why U.S. Bank was entitled to summary judgment...."

The oral argument in this case was held on July 28, 2011, and is below:

[I updated the post above on Tuesday, October 4, 2011, to add the oral argument video.]

Attorney Fee Award After Voluntary Dismissal Reversed

In Guarantee Insurance Company v. Worker's Temporary Staffing Inc. (5D10-1905), the Fifth District reversed the trial court's order awarding attorneys' fees after a voluntary dismissal. The court stated:

Appellant challenges the judgment awarding attorney's fees and costs to Appellee, pursuant to section 627.428, Florida Statutes (2006), after Appellant voluntarily dismissed (without prejudice) its action for unpaid premiums. Because the voluntary dismissal was neither a judgment nor the functional equivalent of a confession of judgment - a precondition to an award under section 627.428 - we reverse.

It Is The Plaintiff's Burden To Prove The Validity Of Service Of Process

In Silva v. BAC Home Loans Servicing, L.P. (5D10-3511), the Fifth District reversed an order denying a motion to set aside a default judgment. In this case, the plaintiff served the defendant under section 48.031, Florida Statutes, by serving “Luz Rodriguez,” who was purportedly living at the property. After judgment was entered, the appellant/defendant sought to vacate the judgment and filed affidavits establishing they did not know Luz Rodriguez, that the property had been vacant for "some time" before the purported substituted service, and that they had lived in Miami for at least 18 months.

The Fifth District stated:

The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was, therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994).

For what it's worth, the appellee did not appear in this appeal.

Fifth District Rejects Homeowners Association's Attempt To Retroactively Apply § 720.3085

In Ecoventure WGV, Ltd. v. Saint Johns (5D10-542), the Fifth District addressed "whether section 720.3085, Florida Statutes (2007), may be applied to impose joint and several liability on it for the unpaid homeowner's association assessments incurred by its mortgagor."

After Ecoventure foreclosed on a mortgage, the association sought to impose back assessment incurred by the prior owner on Ecoventure.

The trial court rejected Ecoventure's argument that imposing liability was a retroactive application of the statute because liability only attached for unpaid assessments that were due at the time title was transferred and Ecoventure obtained title after the statute's effective date. The trial court also found that applying the statute did not impair Ecoventure's rights under its mortgage with DMHB because the statute permitted it to seek recovery from DMHB of any amounts it paid.

The Fifth District addressed the contract impairment issue and stated:

Of the arguments raised by Ecoventure, the one we find dispositive is whether applying section 720.3085 impaired its contract rights. The trial court concluded the statute could be applied because it did not impair Ecoventure's rights under its mortgage with DMHB. This, however, is not the appropriate contract on which to focus....

When Ecoventure extended its mortgage to DMHB in 2001, its rights under the Declaration vested. Imposing section 720.3085, which was enacted after the mortgage was extended, completely alters Ecoventure's vested rights by making it jointly and severally liable with the "previous parcel owner for all unpaid assessments that came due up to the time of transfer of title." § 720.3085(2). The court in Coral Lakes Community Association, Inc. v. Busey Bank, N.A., 30 So. 3d 579, 584 (Fla. 2d DCA 2010), recently addressed the very issue raised in this appeal and concluded the enactment of "section 720.3085 cannot disturb that prior, established contractual relationship." We likewise agree that imposing the statute on Ecoventure "would operate to severely, permanently, and immediately change the parties' economic relationship . . . a circumstance not supportable under the law.

Case Can Be Procedurally Ready For Trial Years Before It Is Actually Ready For Trial

In Parkinson v. Kia Motors Corp. (5D10-3716), the Fifth District denied a petition for writ of mandamus that was seeking to force a circuit court judge to move forward with a trial. The court discussed the difference between a case being procedurally ready for trial pursuant to Rule 1.440, Florida Rules of Civil Procedure, and a case actually being ready for trial. When a case is procedurally ready for trial, the trial court must set it for trial when a party properly provides notice that the case is at issue. However, it is within the trial Court's discretion to determine when the case will actually be ready and, therefore, to determine the date it should be set. In this case:

Here, the trial court has not refused to set a trial date; rather, it offered to set a date in 2012, based on its conclusion that the case was complex and that many difficult and novel issues required resolution before a trial of such length could go forward. Although a delay approaching eighteen months to obtain a two-week civil trial in a circuit court in Central Florida is shocking, we have to recognize that under the new regime of ever-decreasing resources, this may be – or may become – the norm. A 2012 trial date may be unacceptable to Petitioner, but we are not in a position, at this stage, to micro-manage the scheduling of this trial. The timing of the trial is a matter left to the sound discretion of the trial court. We do not know what other matters are competing for the trial judge's attention and how much support he has. Accordingly, we deny the petition for writ of mandamus, but admonish the trial court that it is obliged to schedule a case for trial that is at issue and properly noticed, notwithstanding pending motions for summary judgment.

Failure To Provide Transcript To Appellate Court Can Be Costly Mistake

In SunCruz Cainos, LLC v. Stout (5D09-987), the Fifth District affirmed the trial Court's refusal to give a jury instruction. The decision was a 2-1 split with no majority opinion. In a concurring opinion, Judge Cohen discussed the fact that a transcript was attached as an appendix to the initial brief but was not part of the record. He stated:

One might think that in a case where a verdict in excess of $550,000 was rendered, Appellant would provide a complete trial transcript to permit a full review. Instead, only excerpts were prepared until Appellant filed a transcript as an appendix to its initial brief. Because the transcript was not part of the record on appeal, it cannot be considered...

Judge Cohen continued:

To prevail on appeal based upon the denial of a proposed jury instruction, the proponent of the instruction must establish that "the requested jury instruction contained an accurate statement of the law, that the facts of the case support the giving of the instruction, and that the instruction was necessary for the jury to properly resolve the issues in the case."...

However, since a transcript was not provided, Judge Cohen stated that "Given the state of the record, I agree that Appellant cannot establish reversible error and that affirmance is required."

Judge Torpy filed a dissenting opinion that stated:

I would reverse because the trial court failed to adequately instruct the jury on the defense theory. In this slip and fall case, Appellant claimed that Appellee was an “undiscovered trespasser,” as defined by statute – a status that affects Appellant's duty. Although the trial court acknowledged a fact dispute on this issue, it denied a proposed special instruction that would have given the jury the legal framework to resolve this issue.

Fifth District Grant Certiorari, Vacates Order That Impacted Rights Of Non-Party

In Generation Investments v. Al-Jumaa (5D09-2933), the Fifth District vacated an order "denying in part, and granting in part" a motion for relief from judgment.  Generation Investments, a non-party in the trial court, "contends that it was error to enter  the injunction because Generation was an indispensable party to the action, but was not joined as a party."  The Fifth District:

elect[ed] to treat the notice of appeal as a petition for writ of certiorari.  An appellate court has certiorari jurisdiction where a nonparty seeks relief from an order and its nonparty status would otherwise deprive the nonparty of an adequate remedy by direct appeal.

The court stated:

The record reveals that Generation, as the tenant of the  property, painted the building, displayed signs, flags, banners, and balloons on the property, and sold timeshares from the property.  Al-Jumaa, as the owner of the property, is required under the injunction to repaint the building, to stop the sale of timeshares from the property, and to remove the signs, flags, banner, and balloons from the property.  Because the injunction requires Al-Jumaa to take steps to change the way in which the property is being used, and Generation is the entity using the property in a way that will be altered by the injunction, the injunction cannot be carried out without affecting Generation's use of the property. 

Generation relies on several authorities, including Alger v. Peters, 88 So. 2d 903 (Fla. 1956), Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579 (Fla. 5th DCA 2003) and Stevens v. Tarpon Bay Moorings Homeowners Ass'n Inc., 15 So. 3d 753 (Fla. 4th DCA 2009), for the proposition that the impact of the  injunction makes them an indispensible party to the action.   

The court agreed with Generation and the authority it cited and held: "Because we conclude Generation was an indispensable party to the action, we vacate the order."

Fifth District Orders Counsel To Appear Regarding Possible Sanctions For Frivolous Rehearing Motion

In Marion v. Orlando Pain & Medical Rehabilitation (5D06-4243), the Fifth District denied a motion for rehearing, and entered an order to show cause as to why the attorney that filed the motion should not be sanctioned.  The motion for rehearing included statements such as:

1.  Oh.

2.  Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I  cannot overcome my indignation engendered by this Honorable Court's per curiam affirmance of the lower court's order.  I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason.  However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue.  I assume that I failed in my obligation in the initial briefs. 

[and]

6.  In short, [Appellees] ran a con,  using the (now, surprisingly, defunct) clinic as a shell.  And now the Court seems to be saying this is OK in the Fifth District.  If so, I have lived too long.  (I am sorry -- I am screaming again.) 

The appellees "addressed the impropriety of Appellant’s motion in considerable detail and sought sanctions."  In response to the motion for sanctions, the "Appellant pressed on, albeit with a somewhat more conciliatory tone.  Appellant nevertheless delivered a “tit for tat” by demanding that Appellees’ counsel be caused to appear before the court to “explain  in detail” his assertion that Appellant’s statement of facts was improper."

The Court was not amused.  The court stated:

We have repeatedly admonished the bar regarding the impropriety of motions such as this.  See Amador v. Walker, 862 So. 2d 729 (Fla. 5th DCA 2003), and cases cited therein.  Motions for rehearing are not to be used  for the purpose of venting counsel’s frustrations with the form or substance of the court’s decision.  Id.  They are rarely, if ever, warranted when the decision is without opinion.  See Snell v. State, 522 So. 2d 407 (Fla. 5th DCA 1988) (absent a written opinion, motion for rehearing cannot direct court to matters overlooked).

In this motion, not only does counsel  violate this admonition, he does so unabashedly -- by admitting that it was his primary purpose in filing the motion.  The motion itself completely fails to satisfy any  of the requisites of a  proper motion of this nature or of any other pleading filed by a professional lawyer for that matter.  It fails to tell us what “fact” we overlooked.  It contains assertions that have no support in the record, are scandalous and are legally irrelevant........

Based upon the apparent violations of  numerous rules of court and the rules governing the conduct of attorneys, counsel for Appellant, [], is directed to appear before this Court on February 17, 2011, at 11:30 a.m., to show cause why monetary or other sanctions should not be imposed pursuant to Florida Rule of Appellate Procedure 9.410 (a) and (b), and section 57.105, Florida Statutes (2010).  The Court reserves jurisdiction for this and other proper purposes. 

Fifth District Holds Attorney Contract Relating To Client Representation Not Against Public Policy

UPDATE: On November 7, 2011, the Florida Supreme Court issued THIS order and declined to review the Fifth District's Opinion discussed below.

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In Garfinkel v. Mager (5D09-1991 & 3273), the Fifth District reversed the trial court's order and held that a provision in a contract that Mager would not represent any party that initiated a claim against Garfinkel was not against public policy.  The court held that:

We conclude that the contract would not violate public policy where if, as alleged in the complaint, Mager possessed confidential information as the result of his prior employment and fiduciary relationship with Garfinkel and appellees would be able to use that information to the detriment of Garfinkel if they provided representation or assistance to a party who had initiated or maintained a lawsuit or claim against Garfinkel.

The facts were described as follows:

From October 2006 to July 2, 2007, attorney Mager was employed by Garfinkel, a law firm, and served as  the firm's managing partner. On July 2, 2007, Garfinkel terminated Mager's employment. Mager subsequently sued Garfinkel for monies allegedly owed as a result of his contributions to the firm. That lawsuit was dismissed when the parties entered into a global settlement agreement in February 2008.

Pursuant to the terms of the settlement agreement, Garfinkel paid Mager $175,000 (in addition to $100,000 previously paid to Mager), Mager dismissed the lawsuit against Garfinkel, and the parties released each other from any past or present claims. The agreement provided that appellees would not render any assistance nor give advice to any party who initiated, maintained, or prosecuted any lawsuit or claim against Garfinkel. 

***

In October 2008, Garfinkel filed a complaint against Mager seeking damages, injunctive relief, and a declaratory judgment that the settlement agreement provisions were valid and enforceable. The complaint alleged that appellees breached the contract by, among other things, representing clients in actions brought against Garfinkel. Appellees filed a motion to dismiss the complaint arguing that the settlement agreement was against public policy because it improperly limited the freedom of potential clients to choose Mager as their lawyer and limited Mager's freedom to accept future clients. The trial court granted appellees' motion, finding first that the agreement violated Rule 4-5.6 of the Rules Regulating the Florida Bar. 

With regard to the legal analysis, the court stated:

In determining whether paragraph 8(c) contravenes public policy, it is appropriate to consider the intent behind the adoption of Rule 4-5.6. The rule is intended to protect the ability of future clients to retain a lawyer of their choosing and to prohibit attorneys and their present clients and adversaries from limiting that ability by private agreement.  See Fla. Ethics Op. 93-4 ("The prohibition contained in rule 4-5.6 seeks to protect the professional autonomy of lawyers as well as clients' access to the lawyer of their choosing."). While the right of a party to chose his or her attorney is deeply engrained in our jurisprudence, that right is not unlimited. A party does not have the right to an attorney possessing confidential information of the adversary so as to provide the party with an unfair informational or tactical advantage....The Rules Regulating the Florida Bar affirmatively restrict attorneys with "inside" knowledge from using it for the gain of other clients. See generally, R. Regulating Fla. Bar 4-1.6 (confidentiality of client information); 4-1.7 (conflict of interest; current client) 4-1.8 (conflict of interest; prohibiting use of client information to disadvantage of client); 4-1.9 (conflict of interest; former client).

In the present case, it was alleged that Mager had not only been the managing partner for Garfinkel, P.A., but had also served as personal counsel for Alan Garfinkel, individually. Furthermore, appellees expressly acknowledged in the settlement agreement that Mager's services to Garfinkel had been "special, unique and extraordinary" and that he had acquired confidential information concerning Garfinkel's operations -- "the use or disclosure of which could cause Garfinkel substantial losses and damages which could not be readily calculated and for which no remedy at law would be adequate." The confidential information alleged to be possessed by Mager included financial data, accounting information, legal strategies, business plans, dealings with expert witnesses, and other information that potentially would give an adversary an unfair tactical advantage in litigation.

The court concluded that "If the allegations of the complaint and second amended complaint are accepted as true, then the parties' agreement reflects a reasoned effort to balance the aforesaid competing public interests and would not be injurious to the public good or otherwise contrary to public policy."  Additionally, the court rejected a cross-appeal in a footnote by stating "We further find appellees' cross-appeal to be without merit."

The oral argument can be viewed below:

Part I

Part II

Prior disputes involving these parties, as previously discussed HERE, are linked below:

• Dietz v. Garfinkel, Orange County Case No. 09-CA-25944 - Complaint [this link is currently not active]
• Kunkel v. Garfinkel, Orange County Case No. 09-CA-25515 - Complaint  [this link is currently not active]
• Garfinkel v. Romain, et al, M.D. Fla. Case No. 08-CV-01975-MSS-GJK - Am. Complaint
• Quiroga v. Garfinkel - Corrected Second Amended Answer, Affirmative Defenses and Counterclaim
• Romain v Hunter Contracting, et al, Orange County Case No 2008-CA-0021085 - Complaint
• El-Ad v. Mt. Hawley, S.D. Fla. Case No. 09 -60723, Motion for Judicial Inquiry
• Garfinkel v Mager, Kunkel & Dietz, Orange County Case No. 09-040477 - Ver. Am. Complaint
• Garfinkel v. Allstate, M.D. Fla. Case No. 09-cv-00913-JA-DAB - Sec. Am. Complaint
• TSSA Storm Safe v. Garfinkel, et. al., Broward County Case No. 08-043347 - Romain Depo Trans.
• Garfinkel v. Citizens - Opinion