Question As To Whether Legislature Can Limit Attorneys Fees in Claims Bill Sent To Florida Supreme Court

In July, the Fourth District issued an opinion discussed HERE in a post titled "Fourth District: Legislature Entitled To Limit Payment of Attorney's Fees In Claims Bill." Today, in THIS opinion, the court granted the Appellant's motion for certification as a question of great public importance and certified the following question to the Florida Supreme Court:

AFTER THE ENACTMENT OF SECTION 768.28, FLORIDA STATUTES, AND THE ADOPTION OF FLORIDA SENATE RULE 4.81(6), IS IT CONSTITUTIONALLY PERMISSIBLE FOR THE FLORIDA LEGISLATURE TO LIMIT THE AMOUNT OF ATTORNEYS’ FEES PAID FROM A GUARDIANSHIP TRUST ESTABLISHED BY A LEGISLATIVE CLAIMS BILL?

 All three members of the panel concurred in the certification order.

U.S. Supreme Court Upholds Florida Ban on Judges Soliciting Campaign Contributions

Today, in Williams-Yulee v. Florida Bar, the United States Supreme Court affirmed Florida Supreme Court's opinion upholding the Florida Bar's ban on judicial candidates soliciting campaign contribution. The opinion is broken into numerous parts, as described by the Court below:

ROBERTS, C. J., delivered the opinion of the Court, except as to Part II. BREYER, SOTOMAYOR, and KAGAN, JJ., joined that opinion in full, and GINSBURG, J., joined except as to Part II. BREYER, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined as to Part II. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. KENNEDY, J., and ALITO, J., filed dissenting opinions.

The majority opinion began as follows:

CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part II.

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.

 We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.

And, the majority opinion concluded:

The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public’s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004).

It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.

The judgment of the Florida Supreme Court is Affirmed.

Justice Breyer’s concurrence is found on page 29. Justice Ginsburg’s opinion concurring in part and concurring in judgment, an opinion joined by Justice Breyer as to Part II, begins on page 28. Justice Scalia’s dissent, joined by Justice Thomas, begins on page 33. Justice Kennedy’s dissent begins on page 46. Finally, Justice Alito’s dissent begins on page 52.

Florida Supreme Court: U.S. Supreme Court's 2012 Ban On Life Sentences To Juveniles Applies Retroactively

In Falcon v. Florida (SC13-865), the Florida Supreme Court unanimously answered a question that the state and federal courts have addressed with differing results. Justice Pariente wrote the unanimous opinion which began by stating the question presented to the court:

The issue in this case is whether the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012)—which “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders”—applies to juvenile offenders whose convictions and sentences were already final at the time Miller was decided. 

The Florida Supreme Court noted that it would reach the same result "[a]pplying this Court’s test for retroactivity, as articulated in Witt v. State, 387 So. 2d 922, 931 (Fla. 1980)," and applying "the test for retroactivity set forth in Teague v. Lane, 489 U.S. 288, 307 (1989)." 

The court held as follows:

we conclude that the rule set forth in Miller constitutes a 'development of fundamental significance' and therefore must be given retroactive effect....Accordingly, we answer the certified question in the affirmative and hold that the Supreme Court’s decision in Miller applies retroactively to juvenile offenders whose convictions and sentences were final at the time Miller was decided. Under Florida Rule of Criminal Procedure 3.850(b)(2), any affected juvenile offender shall have two years from the time the mandate issues in this case to file a motion for postconviction relief in the trial court seeking to correct his or her sentence pursuant to Miller. 

Based on our decision in Horsley v. State, No. SC13-1938, slip op. at 3 (Fla. Mar. 19, 2015), we conclude that the appropriate remedy for any juvenile offender whose sentence is now unconstitutional under Miller is a resentencing pursuant to the framework established in legislation enacted by the Florida Legislature in 2014. See ch. 2014-220, Laws of Fla.  

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.

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."

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.

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.

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.

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)

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.

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.  

Florida Supreme Court: Certification of Need for Additional Judges

In In re: Certification of Need for Additional Judges, the Florida Supreme Court fulfilled its constitutional obligation and sent a report to the Legislature regarding the various needs of the judiciary.

The Court noted the following regarding the circuit & county courts: "Several of our chief judges note, in particular, the long waits associated with obtaining hearing times. In some jurisdictions, dockets are so full that it takes several weeks to schedule a hearing." I imagine many lawyers in South Florida would be thrilled if it only took several weeks to obtain a hearing time. But, the Court's point is certainly correct.

With regard to the appellate courts, I found the following to be particularly interesting: "The Second District also notes that despite high caseloads and a reduction in resources including personnel, the judges and staff have made every effort to properly execute their responsibilities. However, they do so knowing that trying to absorb this increased workload limits the time available for the consideration of each case and the writing of opinions. This Court shares the concerns of the chief judge of the Second District and remains concerned about a diminished quality of justice resulting from high workload and a loss of resources." (emphasis supplied).

The Court certified the need for one additional Second District judge. The needs of the circuit and county court were included in an appendix to the opinion, which is copied at the bottom of this post. In what is a somewhat sad concluding statement, given the real need for new judges, the Court said: "To the extent funding is available, we urge the Legislature also to consider our certified need for additional judges."

​

Issue Relating To Collection Of Judgment Against The State Certified To Florida Supreme Court

In Florida Department of Agriculture And Consumer Services v. David Mendez (4D11-4644), the Fourth District stated: "Pursuant to Florida Rule of Appellate Procedure 9.125, we certify the following question to be of great public importance:

Are property owners who have recovered final judgments against  the  State  of  Florida  in  inverse  condemnation proceedings  constitutionally  entitled to invoke the  remedies provided  in  section  74.091,  Florida  Statutes,  without  first petitioning  the  Legislature  to  appropriate  such funds pursuant to section 11.066, Florida Statutes?

The court's opinion in the case, released on July 25, 2012, can be viewed HERE. In the July 25th opinion, the court held: "We  reverse  that  portion  of  the  Palm  Beach  County  order  allowing execution against the Department and remand to the  circuit  courts for further  proceedings  consistent  with this  opinion.   We  also  reverse that portion of the Broward County order holding that section 11.066(3) was constitutional as applied, because the issue was not yet ripe."

11th Circuit Sends Bad Faith Case Back To District Court After Certified Questions Answered

In Chalfonte Condominium Apartment Association v. QBE Insurance Corporation (No. 08-10009), based upon THIS opinion from the Florida Supreme Court answering certified questions, the Eleventh Circuit released a published opinion holding:

Accordingly, based on the Florida Supreme Court’s answers to our certified questions, attached hereto as an appendix, we affirm in part and reverse in part the district court’s judgment. We affirm the district court’s judgment of dismissal of Chalfonte’s claim under Section 627.701(4)(a) of the Florida Statutes, because an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established under that statutory provision, and we instruct the district court on remand to disallow any evidence of the policy’s failure to comply with these requirements. We reverse the district court’s order denying QBE a new trial and instruct the court on remand to bifurcate the contract claim from the bad faith claim and to apply the deductible to any judgment Chalfonte may obtain on retrial.

The Chalfonte case was previously discussed on this blog HERE and HERE.​

Mandatory E-Mail Service In All Florida Civil Cases & eserve.cc

Last month, the Florida Supreme Court issued an opinion requiring email service of all filings in all civil cases effective September 1, 2012. The opinion, available HERE, includes specific requirements for the service of all pleadings and filings and what must be included in the email. Generally, service of documents is now governed by Florida Rule of Judicial Administration Rule 2.516. The subject of the email must contain certain words in all capital letters; the attached filed cannot be over 5mb; and the body of the e-mail is required to contain specific information.

[Update: I have not removed the post below but the domain is no longer active.]

To try and make it a bit easier, with the guidance of a friend, I created a simple website for users to insert information which will open up a new email in the preferred email editor (Outlook, etc.) including the required subject and text. If you go to www.eserve.cc you will see the first page copied below. It is not an extremely difficult process but look below for an explanation of the two step process.

Florida Legal Blog's E-mail Service Form - www.eserve.cc

The first page asks for the information below (the email addresses are created by me as an example---hopefully not real):

The second page simply asks you to click the "Open Email" prompt shown below:

Finally, an email that look something like the image below will open in your preferred email editor:


Don't forget to attach the file you are serving….

Florida Supreme Court Recedes From "Joint Residency Rule" In Venue Disputes

In Brown v. Nagelhout (SC10-868), the Florida Supreme Court receded from its 1957 opinion, Enfinger v. Baxley, 96 So. 2d 538 (Fla. 1957), and abolished "the judicially created joint residency rule" applied in venue challenges. The court described the facts as follows:

Willie and Brenda Brown filed a complaint in Broward County, Florida, against Kim Nagelhout, Helena Chemical Co., Inc., and CSX Transportation, Inc., alleging multiple causes of action arising from a collision between a truck owned by Helena Chemical and operated by Nagelhout and a train operated by CSX, on which Willie Brown was riding. The collision occurred in Pasco County, Florida.....Relying on Enfinger, the trial court concluded that because Nagelhout and Helena Chemical both reside in Pasco County, Broward County was not a proper venue in which to litigate the Browns' complaint.

With regard to the legal issues, the court first noted that "[t]he determination of venue in Florida is governed by a series of statutory provisions set forth in chapter 47, Florida Statutes (2011)." After discussing the relevant statutory language, the court stated "[f]inally, section 47.021, Florida Statutes (2011), provides that '[a]ctions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.'”

Under this statutory scheme, the plaintiff may select a venue within which to litigate a cause of action based on the residency of the defendants. In the instant case, defendant Nagelhout, an individual, resides in Pasco County. Defendant Helena Chemical, a foreign corporation, has a business residence in Pasco County and a registered agent in Broward County. Defendant CSX has its principal place of business in Duval County, Florida, and its registered agent in Leon County, Florida. While it is not clear from the record whether CSX is a domestic or foreign corporation, the defendants do not claim that CSX has “an office for transaction of its customary business” or “an agent or other representative” in Pasco County. § 47.051, Fla. Stat. Thus, based on the above statutes, the Browns had the option to file suit based on residency in Pasco, Broward, Duval, or Leon counties. In their motion to transfer venue, however, the defendants argued that under Enfinger, venue lay only in Pasco County, where Nagelhout and Helena Chemical share a common county of residence.

In conclusion, the court held:

Here, the joint residency rule of Enfinger is based on a serious interpretative error, which resulted in imposing a meaning on the statute that is “unsound in principle.”...[therefore] we recede from Enfinger's restriction on a plaintif's right to select a venue based on the defendants' residency. When reviewing a plaintiff's venue selection, the Florida courts should apply the plain language of sections 47.011, 47.021, and 47.051, Florida Statutes. Where there are multiple defendants to an action, a plaintiff may choose as venue any county in which any defendant, without consideration of his or her codefendants, may be considered a resident.

Mandatory Mediation Program In Foreclosure Cases Ended

The Florida Supreme Court entered THIS order today and ended the mandatory mediation program in foreclosure cases. The court stated:

The program was established as a means for the court system to address the overwhelming number of mortgage foreclosure cases coming into the system. The Court has reviewed the reports on the program and determined it cannot justify continuation of the program. Accordingly, upon issuance of this administrative order, the statewide managed mediation program is terminated.

The court also noted that:

Circuit chief judges are vested under article V, section 2(d), Florida Constitution, with responsibility for the administrative supervision of their circuits. Section 43.26, Florida Statutes, authorizes circuit chief judges “to do everything necessary to promote the prompt and efficient administration of justice.” These authorities empower the circuit chief judges to adopt or employ any measures permitted by statute or court rule to manage pending and new residential mortgage foreclosure cases, including referral of cases to mediation on a case-by-case basis pursuant to section 44.102, Florida Statues, and Florida Rule of Civil Procedure 1.700(a).

In re: Certification of Need for Additional Judges

In In re: Certification of Need for Additional Judges (No. SC11-2246), the Florida Supreme Court issued an opinion and certified the need for 23 new circuit court judges, 48 new county court judges, and one new judge in the Second District Court of Appeal. Attached to the opinion was the chart below which breaks down the trial court judge needs by county:

Florida Supreme Court Rejects Stipulation For Dismissal Of Pino v. Bank of New York

In Pino v. The Bank of New York (SC11-697), a divided Florida Supreme Court denied "the parties’ request to dismiss this proceeding." Justice Pariente, Justice Lewis, Justice Labarga, and Justice Perry concurred in the per curiam opinion. Chief Justice Canady wrote a dissenting opinion that was joined by Justice Quince and Justice Polston. The case came to the Florida Supreme Court after the Fourth District, sitting en banc, certified the following question as one of great public importance:

DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Pino v. Bank of New York Mellon, 57 So. 3d 950, 951 (Fla. 4th DCA 2011). The Fourth District's opinion was previously discussed HERE. Based upon the Fourth District's certified question, the Florida Supreme Court accepted jurisdiction. Pino v. Bank of New York, 58 So. 3d 261 (Fla. 2011). 

After the supreme court accepted jurisdiction, the parties settled the dispute and filed a stipulation for dismissal in the Florida Supreme Court. The Court declined to accept the stipulation for dismissal and stated:

The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.

Analyzing Florida Rule of Appellate Procedure 9.350, the supreme court stated that the "language of this rule does not impose upon the appellate court a mandatory obligation to dismiss a case following the filing of a notice of dismissal before a decision on the merits has been rendered. Rather, this Court has long recognized its discretion to retain jurisdiction over a matter and proceed with an appeal notwithstanding a litigant’s timely filing of a notice of dismissal pursuant to rule 9.350, especially when the matter involves one of great public importance and is likely to recur."

Based upon that conclusion, the majority held:

Consistent with the rationale undergirding our prior precedent, we conclude that these circumstances fully support this Court’s decision to exercise its discretion to retain jurisdiction over and decide the merits of this important case. To adopt the dissent’s interpretation of rule 9.350(a)—that the act of the parties’ stipulation for dismissal is binding on the Court—would require us to recede from our past decisions recognizing just the opposite. Instead, we adhere to our precedent and, accordingly, exercise our discretion to deny the parties leave to dismiss this review proceeding.

The dissent began: 

Florida Rule of Appellate Procedure 9.350(a) provides that “[w]hen any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.” The rule does not appear to contemplate that such a stipulation for dismissal is subject to disapproval by the Court. The very designation “stipulation for dismissal”—as opposed to “motion for dismissal”—suggests that the act of the parties is dispositive. The committee note to the rule recognizes that dismissal of the case is the clerk’s ministerial duty: “On the filing of a stipulation of dismissal, the clerk of the court will dismiss the case as to the parties signing the stipulation.”.....

Under the Florida Constitution, this Court does not have the power to reach out and grab cases that we deem worthy of our attention. Nor should we exercise the power to grasp a case which has been brought to the Court but which the parties wish to dismiss before it has ever been considered by the Court on the merits. In doing so, we step beyond the proper role of an appellate court to adjudicate those cases that are properly presented to it by a party seeking review.