Eleventh Circuit Holds District Court Lacked Jurisdiction Over TILA Case Based Upon Rooker-Feldman Doctrine

In Parker v. Potter (08-16332, 08-16667), the Eleventh Circuit vacated the decision of the district court and remanded for the entry of an order dismissing the action because the district court lacked jurisdiction under the Rooker-Feldman Doctrine.  The court stated:

In January 2005, a Florida court granted final judgment of foreclosure to Potter against Gary and Yolanda Parker....On February 1, 2006, Parker filed suit against Potter and Money Consultants in the District Court, seeking a restraining order to prevent the sale of the property. DE 1. The District Court dismissed the action with prejudice, Parker v. Potter, No. 8:06-CV-183-T-26EAJ, 2006 WL 1529546 (M.D. Fla. May 24, 2006) (not reported in F. Supp.) (“Parker I”), but this Court vacated and remanded the decision to afford Parker the opportunity to amend her complaint and proceed with an action for rescission under TILA and certain state law fraud claims. Parker v. Potter, 232 F. App’x 861 (11th Cir. 2007) (unpublished) (“Parker II”).

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Potter avers that the Rooker-Feldman doctrine barred the District Court from reaching a decision on Parker’s claim for rescission.  Noting that a Florida court entered final judgment for foreclosure against Parker before she filed her claim for a rescission under TILA in federal court, Potter alleges that the District Court lacked jurisdiction to review, reverse, or invalidate that final state court decision.

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In certain circumstances, a federal court must decline or postpone the exercise of its jurisdiction by deferring to the courts of the several states. The doctrine established by the Rooker and Feldman cases essentially holds that federal courts – other than the Supreme Court – do not have subject matter jurisdiction over “cases brought by state-court losers [(1)] complaining of injuries caused by state court judgments rendered before the [federal] district court proceedings commenced and [(2)] inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). 

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The Rooker-Feldman doctrine barred the District Court from hearing Parker’s claim for rescission under TILA. The same parties in this action participated in the subject state proceeding, and a Florida court granted a final judgment for foreclosure in favor of Potter against Parker.

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Thanks to the BC Law Library.

Pre-Suit Expert Requirements In Med-Mal Action Pursuant To Section 766.203

In Hunt v. Huppman (2D09-4684), the Second District granted a petition for certiorari because the plaintiff "with medical negligence presuit notice requirements."  The Second District held:

Because Huppman did not provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2), Florida Statutes (2007), the circuit court departed from the essential requirements of the law in denying Vein Center's motion to dismiss.

The Court stated:

In June 2008, Huppman served her notice of intent to initiate litigation ("NOI") pursuant to section 766.203(2).1 In the NOI, Huppman alleged that she was injured after undergoing a treatment known as Lumenis One, which involved the use of intense pulsed light ("IPL") equipment to improve the appearance of age spots on her body.  Huppman did not serve a corroborating medical expert opinion with the NOI as required by section 766.203 because Huppman believed Vein Center had waived its right to medical corroboration by failing to provide Huppman with medical records.

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Huppman subsequently filed a complaint alleging medical negligence against Vein Center.  Vein Center filed a motion to dismiss in which it argued, among other things, that the complaint should be dismissed based on Huppman's failure to attach a medical expert opinion to the NOI. In response, Huppman maintained that Vein Center waived the medical expert opinion requirement by failing to produce requested medical records. However, Huppman also served Vein Center with the affidavit of Terri Boyert as a corroborating medical expert opinion. 

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Vein Center then filed the petition for writ of certiorari that is currently before this court. Vein Center argues that the circuit court departed from the essential requirements of the law in failing to dismiss the complaint based on Huppman's failure to provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2). Preliminarily, we note that "the courts of this state have uniformly recognized the availability of certiorari review in cases where the presuit notice requirements of chapter 766 have not been met." Oken v. Williams, 23 So. 3d 140, 144 (Fla. 1st DCA 2009). We review the sufficiency of the corroborating affidavit in order to comply with our duty to enforce the policy behind the presuit notice requirements. Id. at 145. 

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Thus, under sections 766.203(2), 766.202(6), and 766.102(5), the written expert opinion that accompanies a claimant's notice of intent must be rendered by a person who (1) is "duly and regularly engaged in the practice of his or her profession," (2) has a degree in health care from a college or university, (3) is a licensed health care provider, and (4) satisfies the expert witness requirements set forth in section 766.102(5).

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Boyert's CV does not reflect, nor has Huppman ever asserted, that Boyert has a degree in health care from a college or university. Boyert's CV contains only these vague references to any college education: "Surgical Assistant, TCC College, Tacoma, Washington, 1987" and training at the Eton Medical Institute. Additionally, Boyert's CV does not reflect that Boyert is a licensed health care provider, and Huppman has conceded that Boyert is not licensed. Because Boyert does not meet these two requirements, she is not qualified to render a medical expert opinion under section 766.203(2) regardless of whether she meets the additional requirements of section 766.102(5).

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Although Boyert may be adequately trained regarding the manner and method in which the Lumenis IPL equipment was operated based on her experience training staff on the operation of the machine, we disagree with the circuit court's conclusion that she meets the statutory criteria of a presuit witness under chapter 766...The legislature has clearly indicated its intent to narrow the class of person who is qualified to give medical expert opinions by amending the statutory scheme in 2003.

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As an alternative argument against granting certiorari in this case, Huppman claims that she has cured any defect in her medical expert opinion by submitting a second affidavit by Dr. Wayne Houston. The Vein Center responds that the affidavit was not timely filed within the applicable statute of limitations and, in fact, was filed after the circuit court entered the order that is now before this court. If this affidavit was submitted within the applicable statute of limitations, it may indeed comply with the presuit notice requirements. However, Dr. Houston's affidavit was not considered by the circuit court, and it would be improper for this court to consider it for the first time on appeal.

Charging Lien Not Proper Prior To Entry Of Judgment

In Walia v. Hodgson Russ LLP (4D09-457), the Fourth District reversed the imposition of a charging lien.  A charging lien:

[t]he charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.

Rudd v. Rudd, 960 So. 2d 885, 887 (Fla. 4th DCA 2007)...

An essential prerequisite to imposition of a charging lien is that the underlying litigation produces a positive judgment or settlement – in other words, some “tangible fruits of the attorney’s service” for the benefit of the client...If the litigation produces no judgment of monetary value for the client, the court may not impose a charging lien for the attorney’s benefit.

Because a judgment had not been entered, the charging lien was not proper.

Order Requiring Production From Non-Party Reversed For Entry Of Confidentiality Order

In Columbia Hospital (Palm Beaches) Limited Partnership v. Hasson (4D09-3988), the Fourth District reversed a trial court order requiring the production of documents by a non-party claimed to be privileged "to the extent that the trial court ordered production without first allowing the parties an opportunity to negotiate a confidentiality agreement."  The court stated:

The hospital also contends that the trial court departed from the essential requirements of the law in ordering production without balancing the interests....We conclude that Defendants sufficiently explained below why they needed the information: in order to dispute, as unreasonable, the amount of medical expenses that the plaintiff will seek to recover from them, if the hospital charges non-litigation patients a lower fee for the same medical services. A claimant for damages for bodily injuries has the burden of proving the reasonableness of his or her medical expenses.....The trial court’s findings, while brief, sufficed for this purpose.  However, the trial court also must take such protective measures as are required. § 90.506, Fla. Stat.

The court also included a footnote that stated:

As Defendants assert, a hospital’s cost to provide a service no longer bears much relationship to what it charges, but reimbursement rates from third party payors give hospitals an incentive to set their usual charges at an artificially high amount, from which discounts are negotiated; cost-shifting results in discriminatorily high charges to uninsured patients, in that every patient is billed at full charges, but only the uninsured are expected to pay those amounts; as a result, actual charges are not instructive on what is reasonable; instead, Defendants argue, a realistic amount is what hospitals are willing to accept.

Representation Of Corporate Principal Does Not Bar Later Representation Of Corporation

In PMG Collins, LLC v. R and G Enterprises, LLC (3D09-3171), the Third District reversed a decision disqualifying counsel for one of the parties "on the grounds that the law firm had previously personally represented one of the principals of the plaintiff LLC in unrelated matters."  The court stated "Without exploring any other infirmity in the order, the simple, acknowledged fact that counsel did not represent the plaintiff itself and thus cannot be in forbidden conflict with its interests renders the order completely unsupportable."

Transferor Court Loses Jurisdiction Once Transferee Court Receives File

In Yacht Club of the Americas, LLC v. Namon (3D09-2384), the Third District reversed an order vacating a motion to transfer.  The trial court granted a motion to transfer the case to another county and later vacated the order.  However, because the court the action was transferred to had already received the file the original court was without jurisdiction to vacate the order.  The Third District stated:

In a civil case, a change of venue becomes effective when the applicable costs and service charges are paid, and the transferee court receives the court file. § 47.191, Fla. Stat. (2008); Vasilinda v. Lozano, 631 So. 2d 1082, 1087 (Fla. 1994). Once the fees are paid and the file is received, the transferee court assumes jurisdiction. The transferor court is without jurisdiction to take any further action in the case.

Insufficient To Merely File Affidavit That Money Is Not Owed & Preemption Under The National Banking Act

In 770 PPR, LLC v. TJCV Land Trust (4D08-4796) & 140 Associates, LTD v. Seacoast National Bank (4D08-4797), the court reached two conclusions.  First, the court held:

the law is well-established that a state cannot require a national bank to register or file as a “foreign corporation” in order to maintain a lawsuit in state court. In view of these holdings and the plain language of 12 U.S.C. § 24, Subdivision Fourth, we find that section 607.1502(1) is expressly preempted as applied to all national banking associations. 

Second, the court rejected the debtor's argument "that conflicts as to the monies owed the bank contained in the bank’s verified complaint, loan statements and affidavits filed in support of its motion for summary judgment create a genuine issue of material fact....At no time have the borrowers offered a contrary calculation of the monies owed; they merely contend, by way of an affidavit in opposition to the bank’s motion for summary judgment, that they do not owe the amounts alleged by the bank. Such conclusory assertions are insufficient counter-evidence to avoid summary judgment."

No Insurance Coverage For Accident When Rental Car Driven By Non-Renter

In Geico Indemnity Company v. Shazier, et al (1D09-2595), the First District reversed the trial court's order because "there was no coverage under the policy because the rental car did not qualify as a 'temporary substitute auto'" because the renter let someone else drive the rental car.  The court stated:

Kutasha Shazier owned a Ford Expedition. The Ford Expedition was covered under the policy issued by Geico to Shazier and her husband.  The policy contained a standard “temporary substitute auto” provision which also extended coverage to: [a temporary car if you were authorized to drive it].

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When the Ford Expedition began experiencing transmission problems, Shazier rented a Hyundai Sonata (“the rental car”) from Avis Rent-A-Car System, LLC (“Avis”). Pursuant to the rental agreement, Shazier was the only person authorized to drive the rental car...Subsequently, the rental car was involved in an accident while being driven by Tercina Jordan, an unauthorized driver.

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Under the policy, in order for coverage to attach in this case, the “temporary substitute auto” must have been used with the permission of Avis. As the owner, Avis had the authority to define the scope of permissible use of the rental car....As evidenced by the rental agreement, Avis did just that. Avis granted Shazier permission to use the rental car so long as she was the only person who did so. Jordan’s use of the rental car automatically revoked the permission granted to Shazier by Avis. Therefore, because it was not being used with Avis’s permission, the rental car did not qualify as a “temporary substitute auto” and no coverage existed under the policy.