Florida's Save Our Homes Constitutional Amendment Upheld

Today, in Lanning et al. v. Pilcher et al (1D07-6564) the First DCA found no constitutional violations in the "Save Our Homes" Amendment to the Florida Constitution. The court stated:

For these reasons we hold that Article VII, Section 4(c) of the Florida Constitution is valid under the United States Constitution and that it does not violate a nonresident’s rights under the Equal Protection Clause, the Privileges and Immunities Clause, or the Commerce Clause. Likewise, we hold that section 193.155, Florida Statutes, the law implementing Article VII, Section 4(c), is constitutionally valid.

SCOTUSBlog Analysis of Supreme Court Term

The SCOTUSBlog has its end of term analysis memo available here. The Court decided 79 cases. The Eleventh Circuit fared well and was affirmed on all three decisions reviewed ("Herring v. United States, Dean v. United States, and Atlantic Sounding v. Townsend").

Third DCA Reverses Grant of New Trial

In Community Asphalt Corp. v. Bassols (3D07-1317), the Third DCA reversed the trial court's grant of a new trial "because the comments defense counsel made during closing argument were insufficient to warrant a new trial."

A party is allowed to comment on the lack of evidence supporting the opposing party’s position. It was permissible for the defense to point out that Bassols had not produced a contract with Red Bull. Defense counsel next said: "[y]ou should expect perhaps one of his coaches to come in here. You should expect someone to come in and talk about his true opportunities to make the Olympics, not just Mr. Bassols’ word for it or his sister’s word for it". While Bassols maintains that the argument violates Haliburton and Lowder, Bassols did not object. Defense counsel thereafter repeated a similar argument. Bassols did not object.

In our view, the comments were neither highly prejudicial nor inflammatory so as to rise to the level of a mistrial.

Fourth DCA Concludes Entitlement to Attorney's Fees Need Not be Pled in Non-Binding Arbitration

In Cooper v. Marriott International Inc. (4D08-1583), the Fourth DCA discussed "whether Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), requires a party to plead entitlement to attorney’s fees incurred during court-ordered, nonbinding arbitration conducted pursuant to section 44.103, Florida Statutes (2004). We answer in the negative and affirm the trial court’s award of attorney’s fees."

Statute of Limitation to Bring Action on Declaration of Condominium is Five Years

In Fox v. Madsen (4D08-2517), the Fourth District concluded an action to enforce a declaration of condominium was subject to the five-year statute of limitations for legal or equitable actions on a contract as opposed to the one yearstatute of limitations for specific performance of contracts.

Fourth DCA Reverses Grant of Summary Judgment and Comments on the Business Records Exception

In Ginsberg v. Northwest Medical Center, Inc. (4D08-3032), the Fourth DCA reversed the trial court's grant of summary judgment.

First, "the trial court erred in failing to require Northwest Medical to properly lay the predicate for the business records exception to hearsay before admitting the consent form into evidence."

Second, "Northwest Medical maintained that, prior to his surgery, Ginsberg had signed a consent form expressly negating any agency relationship between Northwest Medical and the independent contractor physicians. In pertinent part, the consent form stated: 'I acknowledge and agree that the surgeon and physician associates are independent contractors and are not employees or agents of Northwest Medical Center and that Northwest Medical Center does not control the manner or methods by which s u c h procedures are performed'."

"Here, the consent form alone fails to quiet all genuine issues of material fact. At the summary judgment hearing, Ginsberg explained that when he signed the consent form, he was in pain, did not have his glasses, and had taken pain medication, rendering him unable to understand the form. “‘If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.’”

Therefore, "We reverse and remand to provide Northwest Medical with the opportunity to attach an affidavit laying the proper predicate for the business records exception. In addition, on remand, the parties may submit additional record evidence in support of the granting or denial of summary judgment under the apparent agency theory, and thereafter, the trial court may reevaluate whether genuine issues of material fact exist."

Third DCA Holds Parties Can Consent to Personal Jurisdiction by Contract - Subject to the US Constitution

In Jetbroadband WV, LLC v. MasTec North America, Inc. (3D08-3057), the Third DCA held that "pursuant to sections 685.101-.102, Florida Statutes (1989), parties to a commercial contract can, by agreement alone, confer personal jurisdiction on a Florida court."

"Rather, to determine whether long-arm jurisdiction exists, two inquiries must be made. First, a court must determine whether 'the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of [section 48.193]; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements'."

"Generally, an agreement alone is insufficient to confer personal jurisdiction on Florida courts. McRae v. J.D/M.D., Inc., 511 So. 2d 540 (Fla. 1987). Decided in 1987, McRae addressed only section 48.193 and determined that "[c]onspicuously absent from the long arm statute is any provision for submission to in personam jurisdiction merely by contractual agreement." Id. at 543.

Two years after McRae was decided, the Legislature promulgated sections 685.101-.102, which are contained within the Contract Enforcement Chapter of the Commercial Relations Title of Florida Statutes. Section 685.101, titled Choice of Law, provides in pertinent part, that:

The parties to any contract, agreement, or undertaking . . . in consideration of or relating to any obligation arising out of a transaction in the aggregate not less than $250,000 . . . may, to the extent permitted under the United States Constitution, agree that the law of this state will govern such contract . . . whether or not such contract . . . bears any relation to this state.

§ 685.101(1), Fla. Stat. (1989). However, there are limits to the reach of section 685.101." See § 685.101(2), Fla. Stat. (1989)..."Otherwise stated, section 685.101 "only applies if either 1) the contract bears a substantial or reasonable relation to Florida, or 2) at least one of the parties is either a resident or citizen of Florida (if a person), or is incorporated or organized under the laws of Florida or maintains a place of business in Florida (if a business)."

The language of the statute is clear. By promulgating sections 685.101-.102, the Legislature allowed contracting parties to dispense with the more restrictive Florida long-arm limitations...In section 685.102, the Legislature, by its clear terms, granted parties the very right that McRae and its progeny found conspicuously absent in section 48.193; the right to confer personal jurisdiction by agreement.

However, the Legislature could not, and did not, dispense with the due process requirements of the United States Constitution. Instead, it made the due process requirement the sole inquiry when considering the issue of personal jurisdiction in cases governed by sections 685.101-.102. Therefore, we must still determine whether there are minimum contacts sufficient to justify the trial court’s exercise of jurisdiction over defendant.

Accordingly, under sections 685.101-.102, the parties properly conferred personal jurisdiction over each other in Florida. We affirm all other issues on appeal.

Eleventh Circuit Affirms Dismissal for Lack of Personal Jurisdiction

In Bluewater Trading LLC v. Fountaine Pajot, S.A., et al (08-16824), the Eleventh Circuit affirmed the district court's holding that it lacked personal jurisdiction over the defendant.

Kaye, a resident of the Virgin Islands, contracted to buy a new "37' Fountaine Pajot Maryland catamaran power trawler from Willmar USA, Inc...The purchase contract was subsequently executed in the U.S. Virgin Islands. Before the yacht was delivered, Kaye formed Bluewater Trading LLC (“Bluewater”), a Delaware limited liability company, and transferred his interest in the purchase contract to Bluewater. In January 2006, the vessel was delivered to Bluewater in the British Virgin Islands. Within weeks of that delivery, Bluewater discovered numerous manufacturing defects in the vessel and demanded from Willmar and Fountaine a copy of the written warranty and execution of warranty repairs."

The repairs were not satisfactorily and the suit was filed alleging "violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§2310(d), 2302(b)(1)(A), and 16 CFR 702.3, and violation of the Florida Deceptive and Unfair Trade Practice Act. (R.2-57.) Fountaine’s General Manager 1 was served with process while he was in Miami, Florida, attending the Miami International Boat Show...Fountaine moved to dismiss Bluewater’s claims on the grounds that the court lacked personal jurisdiction over Fountaine and that the forum was inappropriate. After the parties engaged in extensive discovery and submitted evidence regarding Fountaine’s contacts in the United States, the district court granted Fountaine’s motion, holding that Fountaine was not subject to personal jurisdiction in the Southern District of Florida.

The Eleventh Circuit agreed there were insuficinet contacts to subject the defendant to personal jurisdiction in Florida. "Here, the evidence was that Fountaine did not directly sell vessels in Florida, did not exercise control over Willmar in its sales or warranty service, and did not have a contract with Willmar. We do not accept Bluewater’s invitation to impute Willmar’s contacts with Florida to Fountaine...We also agree with the district court that specific personal jurisdiction cannot be asserted over Fountaine under" Fla. Stat. § 48.193.

"Finally, we agree that Federal Rule of Civil Procedure 4(k)(2) does not provide a basis for assertion of personal jurisdiction over Fountaine. As stated above, Fountaine’s contacts with Florida are limited. And, even when considered in conjunction with Fountaine’s other contacts with the United States (attendance at the Annapolis Boat Show ), they are insufficient for 2 the assertion of personal jurisdiction to comport with due process. Finding no personal jurisdiction, we need not address Fountaine’s forum selection clause argument."

Florida Supreme Court Holds That Governor Must Appoint Judge Within Sixty Days of Receiving Nominations and Cannot Reject Nominations

In Robert J. Pleus, Jr. v. Charles J. Crist, Jr., Governor (SC09-565), the Florida Supreme Court reviewed a petition for writ of mandamus filed by a retiring Judge on the Fifth District.

"The issue raised by the petition concerns the extent of the Governor’s authority in making judicial appointments under the Florida Constitution.2 Specifically, we are called upon to decide whether the Governor must fill the vacancy created by Petitioner’s resignation with a judicial appointment from the list of nominees certified to him on November 6, 2008, and do so within sixty days of receiving that list.3 Having reviewed the parties’ pleadings, as well as the briefs filed by Amici Curiae,4 and in consideration of the oral arguments, we conclude that the Florida Constitution mandates that the Governor appoint a judicial nominee within sixty days of the certification of nominees by the Judicial Nominating Commission for the Fifth Appellate District. We also conclude that, within this process, the Governor is not provided the authority under the constitution to reject the certified list and request that a new list be certified."

In the footnote [2, above], the Court stated:

"This case does not involve any claim that the process for the selection of the nominees was tainted by impropriety or illegality. Our decision in this case should not be understood to suggest that no remedy would be available to address such a tainted process."