Florida Supreme Court's October Oral Argument Calendar

The Florida Supreme Court's tentative October oral argument calendar can be viewed at THIS link.

Summary Judgement Reversed Based Upon Sua Sponte Striking Of Pleadings

In Sanchez v. LaSalle Bank National Association (3D09-2095), the Third District reversed a summary final judgment.  The court described the facts as follows:

Sanchez defaulted under the terms of his mortgage, and LaSalle filed suit for mortgage foreclosure. In response, Sanchez filed an answer and affirmative defenses. Among other things, Sanchez alleged that LaSalle did not comply with the federal Truth-in-Lending Act (“TILA”), 15 U.S.C. § 1601 et seq. Thereafter, LaSalle responded to the affirmative defenses, and moved for summary judgment. Shortly before the hearing on the motion for summary judgment, Sanchez moved to add additional affirmative defenses. The trial court granted Sanchez’ motion, but then sua sponte struck all of Sanchez’ affirmative defenses. The trial court also granted LaSalle’s motion for summary judgment.

The court reversed based upon the unilateral striking of the affirmative defenses and stated:

Generally, the striking of pleadings is not favored....Florida Rules of Civil Procedure authorize a trial court sua sponte to strike a pleading which is “redundant, immaterial, impertinent or scandalous,” and, upon a party’s motion, a pleading which is sham....A trial court, however, should not strike a pleading sua sponte on the ground that it is legally insufficient, or because the party subsequently may not be able to prove his or her allegations.

When and To What Extent Are Fees Available To An Insured After An Appraisal

In Travelers of Florida v. Stormont (3D09-1100 & 3D08-3825), the Third District addressed the following: "The main question presented by this appeal is whether, and to what extent, an insured is entitled to attorney’s fees for legal services rendered in connection with an appraisal under an insurance policy."  Generally, the court described the facts as follows:

In January 2006, the car was stolen while in a garage for mechanical work.  The plaintiff-appellee insured retained counsel and submitted a claim to the defendant-appellant insurer. The insurer offered to pay $39,587 based on a valuation by Auto-Source, while the owner claimed a value of $65,000 to $75,000 based on an appraisal by Speed Shop. The insurer objected that Speed Shop was not qualified to appraise the value of the stolen vehicle. In June 2006, Travelers demanded appraisal and appointed Luis Aucar as its appraiser. The insured failed to respond. Instead, in October 2006, the insured filed a suit against the insurer demanding payment of the claim.

With regard to the law, the court stated:

In order to be entitled to attorney’s fees, it must have been reasonably necessary for the insured to file a court action....“The purpose behind section 627.428 is plainly to place the insured or beneficiary in the place she would have been if the carrier had seasonably paid the claim or benefits without causing the payee to engage counsel and incur obligations for attorney’s fees.”...Where suit is filed without any necessity to do so, attorney’s fees under section 627.428 will be denied....If the insured is forced to file suit, and the insurer thereafter pays the award without the necessity of the trial court entering judgment, the confession of judgment doctrine applies. “This doctrine applies where the insurer has denied benefits the insured was entitled to, forcing the insured to file suit, resulting in the insurer’s change of heart and payment before judgment.”...In that circumstance, the insured is entitled to an award of attorney’s fees. With these principles in mind, we turn to the facts of the present case.

The insurer argues that the insured filed suit prematurely. That point is well taken.  In June 2006, the insurer demanded appraisal and appointed its appraiser. For the following five months, the insured failed to respond to the insurer’s letters in which the insurer attempted to move the appraisal process forward....The suit was premature. Once the insurer demanded appraisal, the insured was required to comply with the appraisal clause. Proceeding to court was not justified.

The insured had attempted to disqualify the insurer's appraiser.  On that issue, the court stated:

If the insured believed that the insurer’s appraiser was not competent (where, as here, the appraisal clause required appointment of a competent appraiser), the issue must be raised promptly upon learning of the grounds for disqualification. The correct procedure would be first to make a written demand that the insurer replace the appraiser. If the insurer declines to do so, then the insured must promptly file a complaint in circuit court seeking removal of the appraiser.

In this case, the insurer disclosed the identity of its appraiser in June of 2006. It is clear that the insured learned of the ground for disqualification early on, but the insured’s complaint did not seek disqualification and the insured did not raise the issue by motion until 2008. The insured was not entitled to attorney’s fees for this phase of the trial court proceedings.

The insured also sought attorneys fees for the legal work associated with its filing of a motion to confirm appraisal award after the insurer did not timely pay the award.  On that issue the court stated:

In June 2008, the insured filed a motion to enter judgment in accordance  with the appraisal award. The insurer contends that this was unnecessary and that the insured is not entitled to any attorney’s fees at all. The insurer’s argument is without merit.

The appraisal award was entered in April of 2008. The insurer failed to pay. In June, after almost three months had expired, the insured filed its motion to enter judgment in accordance with the award. It was entirely reasonable for the insured to file this motion after the insurer not only failed to pay the award, but also failed to pay its half of the umpire’s fee.

Six weeks after the insured filed the motion, but before the motion was ruled on, the insurer paid the principal amount of the award. Even later the insurer paid the interest it calculated to be due.

***

The insured acted entirely reasonably in seeking court enforcement of the award and is entitled to attorney’s fees for that phase of the litigation.

Finally, the court discussed the insured's request for a 2.5 multiplier for its attorneys fees.  The court stated:

In this case it was clear that the loss would be covered by the insurance policy and the insured would achieve a recovery. The question was whether the insured could obtain the amount of compensation he sought on the basis that the stolen vehicle was a unique collectible car....In considering the issue now before us, the First District has held that 1.0 is the correct multiplier. The First District reasoned that “[a]though there was some question as to the amount that would be recovered by [the insured] under the insurance policy, there was no question that there would be a recovery of damages.” Reliance Ins. Co. v. Harris, 503 So. 2d 1321, 1323 (Fla. 1st DCA 1987). That logic is applicable here. The multiplier must be eliminated.

Other posts relating to cases discussing appraisal and/or fees are available at the links.

Mandamus Petition Denied Due To Available Remedy By Appeal

In R. H. Donnelley Publishing & Advertising, Inc. v. Law Office of Patricia K. Herman, P.A. (5D10-1853), the Fifth District denied a petition for mandamus, filed after the party failed to timely seek appellate review. The court noted in a footnote that it appeared there was merit to the argument being raised, however, since a notice of appeal was not timely filed they did not have jurisdiction to review the error. The court stated:

[The petitioner] asks this Court to excuse its failure to file a timely notice of appeal directed to the circuit court's "Final Judgment," which concluded that it lacked subject matter jurisdiction to adjudicate the parties’ contractual dispute. Instead, Donnelley seeks appellate review, utilizing the instant mandamus petition. “[M]andamus is available ‘[i]f a lower court, without sufficient reason, neglects or refuses to act on a matter within its jurisdiction . . . unless the aggrieved party has an adequate remedy by appeal.’”… Because Donnelley had an adequate remedy available by filing a timely direct appeal, which it failed to do, we conclude that the instant petition should be denied.

Order Reversed Based Upon Trial Court's Objections To Questions

In Ramos v. Casey (5D09-853), the Fifth District reversed the trial court’s order dismissing case without prejudice. After a default judgment was entered, the trial court held a jury trial. The defaulting defendants did not appear at the trial. The plaintiff testified and the trial court objected to the testimony as hearsay. The attorneys for the plaintiff objected to the trial court objecting, however, the trial court disagreed. At that point, the trial court excused the jury and dismissed the case. The Fifth District held:

In this case, it was improper for the trial court to interject itself into the trial below by making evidentiary objections during the course of Ramos and Murphy's case-in chief, and to thereafter determine that the evidence of damages was insufficient to support the entry of a damage award. Accordingly, the trial court's dismissal order is reversed and this matter remanded with instructions that a new trial be held before a different judge on the issue of damages.

Divided En Banc Fourth DCA On Reciprocity Of Attorneys' Fees

In Florida Hurricane Protection and Awning, Inc. v. Pastina (4D08-4641), a divided en banc Fourth District issued an opinion of the reciprocal application of section 57.105(7), Florida Statutes (2008).  The majority opinion was written by Judge May who was joined by Chief Judge Gross, Judge Warner, Judge Damoorgian, Judge Gerber and Judge Levine.  Judge Taylor wrote a dissent and was joined by Judge Farmer, Judge Stevenson, Judge Hazouri, and Judge Ciklin.  Judge Farmer wrote a dissent and was joined by Judge Hazouri.  Judge Polen was recused.

The court described the dispute as follows:

The contractor failed to complete the installation, forcing the homeowner to hire a replacement contractor to finish the job. She then filed a complaint against the contractor for breach of contract. She sought damages for the cost to complete the work and consequential damages for replacement of a window and frame damaged during a later hurricane. She also requested attorney’s fees. The homeowner prevailed on her breach of contract claim. She then moved for attorney’s fees. Her motion asserted that she was reciprocally entitled to attorney’s fees based on the fee provision in the contract.  The contractor opposed the request for fees. It argued the fee provision was narrow, was triggered only in a collection action, and was inapplicable to any other type of dispute between the parties. The contractor relied on our opinion in Subway.

The majority concluded:

Simply put, the statute means what it says and says what it means; nothing more, nothing less. Our court and others have consistently read the statute in the same way. Our latest pronouncement can be found in Subway Restaurants, Inc. v. Thomas, 860 So. 2d 462 (Fla. 4th DCA 2003). There, Subway filed a breach of contract suit against its franchisee. The franchisee correspondingly filed suit against Subway for wrongful eviction, violation of civil rights, and breach of contract under the lease and franchise agreement. The franchisee requested attorney’s fees.

The franchisee prevailed. Following an appeal, the franchisee sought attorney’s fees, relying on a provision of the contract that provided for fees for collection “on any part of said rental that may be collected by suit . . . .” Id. at 463. The trial court awarded fees based upon section 57.105(6), Florida Statutes, the predecessor of section 57.105(7). We reversed. Because the franchisee’s claim was for wrongful eviction and breach of contract, it “never triggered Subway’s limited entitlement to attorney’s fees.” Id. at 464.

Similarly, here the contract provided fees for the contractor in the event of a collection action. Section 57.105(7) requires reciprocity. Reciprocity would allow for the homeowner to receive fees if she prevailed in a collection action brought by the contractor. That is mutuality; that is reciprocity. To rule otherwise would be tantamount to re-writing the contract between the parties. This we will not do.

Denial of Motion To Vacate Foreclosure Sale Reversed

In U.S. Bank v. Bjeljac (5D09-2809), the Fifth District held that the trial court did not error when refusing to cancel a foreclosure sale, however, reversed the trial court's denial of the appellant's motion to set aside the foreclosure sale.  A prior appeal in the same case was discussed HERE.  

With regard to the motion to cancel foreclosure sale, the court stated:

U.S. Bank’s motion to cancel and reset the foreclosure sale alleged only that it “requests that the foreclosure sale . . . be cancelled and reset.” The trial court denied the motion, finding that it set forth no basis on which the court could intelligently exercise its discretion. Florida Rule of Civil Procedure 1.100(b) requires that motions “state with particularity the grounds therefor . . . .” U.S. Bank’s motion failed to satisfy this basic requirement.

However, with regard to the motion to set aside the sale the Court stated:

U.S. Bank next contends that the trial court erred in failing to set aside the foreclosure sale and vacate the certificate of title because the bid price was inadequate and it mistakenly failed to send a representative to the sale....The third party purchasers concede that the price they paid for the foreclosed property was grossly inadequate. Consequently, we need only determine if the inadequacy resulted from some mistake, fraud or other irregularity in the sale.

***

In Florida, “even a unilateral mistake which results in a grossly inadequate price is legally sufficient to invoke the trial court’s discretion to consider setting the sale aside.”...The sufficiency of the “mistake” is shown, if “the owner became deprived of an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent him there for that purpose was not present.”

***

Section 45.031(8), Florida Statutes (2009), provides that objections based on the amount of the bid may be filed within ten days after the clerk files a certificate of sale, and “[i]f timely objections to the bid are served, the objections shall be heard by the court.” (Emphasis added). 

 Ultimately, the court reversed because of the following:

We believe the question of whether U.S. Bank’s failure to have a representative present at the sale was the result of a mistake is inherently a factual question that requires a hearing before the court.

The oral argument in this appeal can be viewed below:

Appellant's Argument

Appellee's Argument

 Rebuttal

Employer Not Vicariously Liable For Employees Negligence In Mishandling Keys To Own Car

In Allan v. Graf (4D08-5130), the Fourth District released an opinion relating to vicarious liability and stated:

The question in this case is whether a n employer can be held vicariously liable for an employee’s negligence in mishandling the car keys to his own car, thereby allowing a thief to steal the car and injure a third party. We hold that the employer cannot be held vicariously liable and affirm the final summary judgment entered by the circuit court.

Fourth DCA Denies Petition Challenging Constitutionality Of Section 57.011, Florida Statutes For Lack Of Jurisdiction

In Achord v. Osceola Farms Co. (4D09-1906), a divided panel of the Fourth District released an opinion relating to the $100 bond an out of state plaintiff is required to post for defense costs in accordance with section 57.011, Florida Statutes.  The majority opinion was written by Judge Warner.  With regard to the statute, the majority stated:

Section 57.011 was first enacted in 1828, well before the enactment of even the earliest Florida constitution containing a provision for access to the courts. Art I, § 9, Fla. Const. (1838). The practical reason for such a statute is to obtain security for a suit being prosecuted by a nonresident plaintiff.

Notably, the court stated:

Further, section 57.011 does not set a condition precedent to filing a cause of action. Only the defendant may invoke its provisions. A defendant may also not opt for dismissal of the claim and instead rely on the alternative provided of looking to the plaintiff’s attorney to cover the cost amount.

The court's conclusion:

Petitioners seek second-tier certiorari review of a decision of the circuit court sitting in its appellate capacity affirming a county court’s order dismissing approximately 1500 non-resident plaintiffs from a county court suit, because none of the plaintiffs posted the $100 bond for defense costs in accordance with section 57.011, Florida Statutes. We deny the petition as we conclude that we do not have jurisdiction under these facts.

***

The foregoing explains why we cannot say that the circuit court departed from the essential requirements of law or violated clearly established principles of law. Even the supreme court decisions appear to diverge when analyzing minimal fees or expenses involved in the litigation process. In a proper case brought to us on direct appeal, this issue would be ripe for our consideration. Our scope of review on second-tier certiorari is much narrower. Because there is no clearly established law to apply to this provision, we must decline jurisdiction.

In a concurring opinion, Judge Levine stated:

Petitioners make a compelling case for the merits of their position. In our constitution, access to the courts is one of the fundamental rights in the Declaration of Rights. Art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”). It would be very easy to brush aside the requirements for second-tier certiorari jurisdiction to get to the merits of this action. But, we are constrained by the law and the limits of our jurisdiction. “There is a great temptation in a case like this one to announce a ‘miscarriage of justice’ simply to provide precedent where precedent is needed.” Stilson, 692 So. 2d at 983. That temptation also exists in this case, but we do not have the authority to succumb to that temptation and exercise jurisdiction. 

The contours of jurisdiction are not so malleable for us to vindicate the rights of petitioners. As Justice Cardozo stated, “Jurisdiction exists that rights may be maintained. Rights are not maintained that jurisdiction may exist.” Berkovitz v. Arbib & Houlberg, 130 N.E. 288, 291 (N.Y. 1921).

In dissent, Chief Judge Gross stated:

I agree with Judge Cox’s well-reasoned dissent below that section 57.011, Florida Statutes (2009) is unconstitutional. An unconstitutional statute that barricades the courthouse to a group of indigent defendants is a violation of a “clearly established law” that results in a miscarriage of justice under Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003).