2011 DRI Appellate Advocacy Seminar

The 2011 DRI Appellate Advocacy Seminar is being held at the JW Marriott in Orlando on March 10-11, 2011.  The seminar has an impressive list of speakers and a number of interesting topics.  The list of speakers/panelists is below:

• Robert Barnes, Supreme Court Correspondent, The Washington Post;
• Tillman J. Breckenridge, Fulbright & Jaworski L.L.P.;
• Judge Kermit E. Bye, United States Court of Appeals for the Eighth Circuit;
• Linda Coberly, Winston & Strawn;
• Matt Conigliaro, Carlton Fields;
• Robin S. Conrad, Executive Vice President, National Chamber Litigation Center;
• Arthur J. England, Jr., Greenberg Traurig, P. A.;
• Jerrold J. Ganzfried, Howrey LLP;
• Thomas D. Hall, Clerk of Court, Supreme Court of Florida;
• Robert W. Jaspen, Senior Staff Counsel; U.S. Court of Appeals for the Fourth Circuit;
• Naomi B. Kinderman, Senior Counsel, The Hartford;
• Justice Elizabeth Lacy, Supreme Court of Virginia;
• James W.A. Ladner, Deputy General Counsel, St. Jude Medical, Inc.;
• Deanne E. Maynard, Morrison Foerster;
• Daphne O'Connor; Vice President and Associate General Counsel, Altria Client Services Inc;
• Malia Reddick, Ph.D., Director of Research & Programs, American Judicature Society;
• Prof. Bruce Rogow, Bruce S. Rogow, P.A.;
• Judge Gerald Bard Tjoflat, United States Court of Appeals, Eleventh Circuit;
• Hugh F. Young, Jr., President, Product Liability Advisory Council.

The brochure is below and can also be viewed HERE (where you can also register):
2011 DRI Appellate Advocacy Seminar

This was originally posted on November 10, 2010.

Order Requiring Production Of Software Source Code Quashed

In Revello Medical Management, Inc. v. Med-Data Infotech USA, Inc. (2D10-534), the Second District granted a petition for certiorari and quashed a trial court order requiring the production of software source code.  The court described the facts as follows:

In simple terms, Med-Data claims that one of its former employees developed a software program to aid in medical insurance billing and that the employee took the program with him when he began working for Revello.  Revello is marketing a computer program that Med-Data claims is based on its trade secrets.  Med-Data sought to discover the computer source code used in Revello's program and, over Revello's objections that its program was a trade secret, the circuit court ordered it to produce the program to Med-Data's expert.  Revello seeks a writ of certiorari to quash the order.  

The court's analysis is copied, almost in its entirety, below:

In response to a defense discovery request for its computer source code, Med-Data stated: "[a]s to source codes, [Med-Data] declines to publish the exact nature of the trade secrets."  Under Florida's "at issue" doctrine, "[w]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence," he waives his right to claim that the matter is privileged in pretrial discovery....Thus it is clear that Med-Data has neither identified with reasonable particularity the nature of its claimed trade secret nor established that it exists.  As such, it was not entitled to discover the computer source code used in Revello's program.

Still, Med-Data is entitled to some protection of its alleged trade secret in pretrial discovery.  Ordinarily such matters should be submitted to the circuit court to conduct an in-camera review.  But because the alleged trade secret is a computer program, the evidence of its existence likely will consist of computer source code.  We presume this from the fact that Med-Data is seeking to discover the computer source code of Revello's program in order to prove that Revello has misappropriated the alleged trade secret.  If the circuit judge does not have the requisite experience in examining such code, he may wish to appoint a neutral computer expert to review MedData's program.  If it is established that Med-Data indeed has a trade secret to protect, the court may revisit its discovery request for Revello's computer source code and Revello's objections to discovery and craft similar protection for Revello's alleged trade secret.

*Disclaimer: GrayRobinson, P.A. was involved in the above-referenced action.

Denial Of Motion For Relief Of Judgment Without Evidentiary Hearing Reversed

In Schuman v. International Consumer Corporation, et al (4D09-951), the Fourth District reversed the trial court's order denying a motion for relief from judgment and held that "the trial court erred since the trial court should not have denied the motion without an evidentiary hearing where there was a 'colorable' claim of entitlement to relief."  Generally, the facts were stated as follows:

Appellant filed a motion for new trial and relief from the judgment, alleging that he did not receive notice of the trial. The counsel for appellant had just been retained and had not received any papers regarding the trial date. Further, prior counsel advised the new counsel only that there was an upcoming calendar call on this matter. The trial court denied appellant’s motion and this appeal ensues.

The court held that:

We conclude that the trial court abused its discretion by failing to hold an evidentiary hearing on the motion for relief from judgment. “A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief.”  Clearly, in the present case, the motion for relief from judgment stated a claim of  “colorable entitlement to relief” that would require the trial court to conduct an evidentiary hearing before dismissing the motion. We reverse and remand for an evidentiary hearing.

Order Denying Attorneys Fees To Prevailing Party Reversed

In Point East Four Condominium Corp., Inc. v. Zevuloni & Associates, Inc. (4D09-3221), the Fourth District reversed the trial court's order declining to award prevailing party attorneys fees.  The court described the facts as follows:

The Condominium Association hired Zevuloni & Associates as a public insurance adjuster to handle its claim for benefits under a casualty insurance policy. The contract for adjustment provided for a fee of 10% of the proceeds recovered by the Association.  There has never been any recovery of insurance benefits by the Association. Nevertheless the public adjuster sued the Association for its fee.

After the trial court granted the associations motion to dismiss, it denied the associations motion for prevailing party attorneys fees as provided in the contract.   The court stated:

The adjuster’s suit for fees without any recovery by the insured Association was meritless and was properly dismissed. The Association was undeniably the prevailing party in that action.

 Because "Courts have no discretion to decline to enforce this kind of contractual attorneys fees provision," the order denying attorneys fees was reversed.

Order Denying Motion To Vacate Judgment Reversed & Remanded For Evidentiary Hearing

In Palacio v. Alaska Seaboard Partners Limited Partnership, et al (1D10-2690), the First District reversed the trial court's order denying a motion to set aside judgment and remanded the case so that the trial court can conduct an evidentiary hearing.

Appellants were served with a foreclosure complaint in February 2009, to which they did not file a response due to what they understood to be assurances by the loan servicer representative.  Appellants alleged they contacted  the loan servicer representative  immediately after being served with the complaint.  Appellants  were assured  by the loan service representative  that the foreclosure proceeding would be abated pending application for, and approval of, a loan modification agreement.  Appellants alleged that they faxed the application for the loan modification agreement on April 7, 2009.  In support of this assertion, Appellants attached affidavits and the facsimile cover sheet  to their motion  to set aside and vacate a default judgment.

The court held that those facts were sufficient to require an evidentiary hearing.  The court stated:

It is the trial court’s failure to conduct an evidentiary hearing that warrants reversal of the denial of Appellants’ motion to set aside the default judgment.  This court has held that a trial court is required to conduct an evidentiary hearing before entering an order denying a motion to set aside a judgment.  See Seal v. Brown, 801 So. 2d 993, 994-95 (Fla. 1st DCA 2001).  Furthermore, if a moving party’s allegations raise a colorable entitlement to relief, a formal evidentiary hearing and appropriate discovery is required.  Id.  at 995.

As in the proceedings below, Appellees do not contest Appellants’ factual assertions; rather,  they  essentially  argue that Appellants’ allegations  are facially insufficient to warrant entitlement to setting aside a default judgment.  We disagree.  Appellants’ allegations and supporting documents make a colorable case for their assertion that their failure to respond to the foreclosure complaint was due to their settlement negotiations and complying with what they understood to be a modified mortgage agreement, all of which may reasonably have led them to believe that the foreclosure action was abated. 

Judge Thomas wrote the opinion and Judge Hawkes concurred.  Judge Davis concurred in the result only.

Florida's 2011 Statutory Interest Rate Is 6% Per Annum Or .0001644 Per Day

The Florida Department of Financial Services announced that the Statutory Interest Rate for 2011 will be 6% per annum or .0001644 per day.  That is the same rate that applied in 2010.  The interest rate for each year from 1981 through 2011 is below.
2011 Statutory Rate of Interest - Florida Department of Financial Services



A post when the 2010 statutory rate of interest was announced can be viewed HERE.

Fourth District On Invited Error And Jurisdiction To Review Rehearing Orders

In Rodrigo v. JPMorgan Chase Bank, N.A. (4D10-1787), the Fourth District affirmed the trial court's decision in part and dismissed the appeal in part for lack of jurisdiction.  The court stated that "Appellant appeals a non-final order granting her motion to restore possession of her home but with the condition that she turn on the water and air conditioning to her unit."

First, the trial court's order was affirmed because "During the hearing on appellant’s motion to restore  possession of  property,  appellant’s counsel  agreed  to these conditions.  Having invited the alleged error, appellant cannot now be heard  to complain."  Therefore, the order was affirmed. 

The Appellant also sought review of an order on a motion for rehearing of the order, now affirmed, above.  The court stated: "A non-final order denying a motion for relief from a non-final order is not reviewable on appeal....Accordingly, we dismiss the appeal as to the order denying the motion for relief."

The opinion is below:
Rodrigo v. JPMorgan Chase Bank Nat. Ass'n., - So. 3d - (Fla. 4th DCA 2010)

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Party Sanctioned For Failure To Appear At Appellate Mediation

In Mash v. Lugo (5D10-2256), the Fifth District sanctioned one of the appellees for failure to appear at appellate mediation.  The appellant moved for sanctions after the appellee failed to appear.  The court stated:

In response to Mash's motion, appellees' counsel filed affidavits averring that Lugo's and Irizarry's insurer, Aequicap Insurance Company, held the exclusive right to decide to defend or settle any claim or suit within policy limits, that Lugo and Irizarry did not have the authority to bind the insurer to any settlement, and that attorney Muniz had full settlement authority on behalf of the insurer. We grant the motion.

Florida Rule of Appellate Procedure 9.720(a) provides that unless excused by the court, a party is deemed to appear at a mediation conference if the following persons are physically present or appear electronically upon agreement of the parties:

(1) The party or its representative having full authority to settle without further consultation.

(2) The party's trial or appellate counsel of record, if any. If a party has more than one counsel, the appearance of only one counsel is required.

(3) A representative of the insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to settle without further consultation.

Here, neither appellee appeared, nor did any representative of their insurance carrier. These individuals' appearance was not excused by court order, nor was there an agreement that they could appear electronically.

Appellees' counsel's claim that he had full authority to settle the case on behalf of the insurer does not excuse the failure to attend of the appellees and a representative of their insurer. (By its express terms, subsection (a)(3) excludes an insurer's outside counsel from being considered the insurance carrier's representative.)

The court ordered the appellee that failed to appear to pay the entire cost of the mediation plus the reasonable attorneys fees and costs for the appellant incurred in preparing for and attending the appellate mediation and filing the motion for sanction

Service of Process Statutes Require Strict Compliance

In the past week the Third District has released two opinions relating to service of process.  In both cases a final judgment was reversed because service of process had not been accomplished.  The message is clear, if it wasn't before, service statutes must be strictly complied with.  Both decisions are discussed below.

Opella v. Bayview Loan Servicing, LLC (3D09-2921)

The appellant appealed a summary judgment of foreclosure claiming that he had never been served.  The court stated: "Because the record unequivocally confirms that Opella was neither served with process nor waived service, we reverse."

While Bayview made a number of attempts to serve Opella individually and on behalf of 21 NW 59th Street, Inc., it never managed to serve process on him....Despite the fact that neither Opella  nor 21 NW 59th Street, Inc. had been served with process, Bayview moved for summary judgment against both, expressly alleging that “[s]ervice of process has been properly perfected upon the Defendants herein.”  Following a hearing on this motion, a final summary judgment of foreclosure was entered in pertinent part upon a finding that “[s]ervice of process has been duly and regularly obtained over NW 59TH STREET, INC., [and] STEVEN R. OPELLA . . . .

The Third District disagreed and stated "Because the record unequivocally confirms that no service of any kind was had on Opella, we agree [with Opella]." The court also stated:

We also reject Bayview’s argument that Opella and 21 NW 59th Street, Inc. failed to raise, and thereby waived, sufficiency of service of process in their “pro se answer.”  We reject this argument, first because neither Opella nor 21 NW 59th Street, Inc. filed a pro se answer or otherwise made an appearance in the court below.  Rather, one month after  it moved for summary judgment,  Bayview’s attorney, Brian L. Rosaler, concededly without agreement or authorization from Opella or 21 NW 59th Street, Inc., filed  a “Notice of Filing Defendant’s Pro Se Answer,” notifying the court below that Bayview was filing Opella and 21 NW 59th Street, Inc.’s pro se answer.  Attached to this notice was an undated letter that Opella purportedly sent to  Rosaler, Bayview’s attorney, offering to settle the parties’ dispute over the subject mortgage.  On these facts, we see no basis on which to conclude that Opella and 21 NW 59th Street,  Inc. either expressly or indirectly waived service of process or otherwise subjected themselves to the jurisdiction of the courts....

Second, the purported “answer” filed by Brian L. Rosaler, Bayview’s attorney, is nothing more than an undated letter to counsel for one of the litigants.  This document does not remotely resemble an answer which under Florida Rule of Civil Procedure 1.100(c) must “have a caption containing the name of the court, the file number, the name of the first  party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be.”  

Bennett v. Christiana Bank & Trust Company (3D09-2653)

As with the Opella case above, the Third District reversed a judgment based upon the failure to serve the defendant with the complaint.  The court stated:

The plaintiff’s attorneys, Golson Felberbaum Law Firm, hired Pro-Vest LLC, a process service company, to serve Ms. Bennett.  Christopher P. Mas, a Pro-Vest employee, filed a verified return of service on December 29, 2008.  The return indicated that individual service was accomplished on December  20 at 4:13 p.m.  The return further indicated that “DEFENDANT REFUSED TO DISCLOSE MILITARY STATUS; PROPERTY IS NOT A MOBILE HOME.  I  asked the person spoken to if the person served is married and I received a negative reply.”.....However, the front and reverse sides of the summons attached to the return were covered with the process server’s notes.  These notes reflected the server’s attempts to serve Ms. Bennett at her house to no avail....

Ms. Bennett never filed a responsive pleading in the case.  Christiana Bank filed motions for default and for summary judgment.  In May 2009, Christiana Bank obtained an order granting default and a final foreclosure judgment.  The sale was scheduled for September 4, 2009.   

On September 2, Ms. Bennett, through counsel, filed a motion to vacate the judgment and to stay the foreclosure sale.  The trial court denied the motion to stay the sale, but granted Ms. Bennett a hearing on the motion to vacate.....After the hearing, the court entered an order  finding that the service was “questionable,” but that there was no meritorious defense to the foreclosure.  The court denied the motion to vacate.

With regard to the law, the court stated:

A process server’s return which is regular on its face is presumed valid absent clear and convincing evidence to the contrary....Moreover, a simple denial is insufficient to impeach the validity of service....However, in this case, Ms. Bennett raised more than her own sworn denial.  The process server’s own notes, an admission against the interest of his principal, see § 90.803(18)(d), Fla. Stat. (2009), prove the insufficiency of service.  The process server’s last entry reflects that he “Saw Curtains Move, Read Aloud Docs, SVP Docs at Door.” 

Christiana Bank argues that there is no testimony to explain what “SVP” means, but “Docs at Door” is quite self-explanatory.  Curtains may move because of the wind or curious cats, and not just because some prospective defendant is attempting to avoid service.  The pertinent statute is clear...The process server’s notes contain  no evidence of compliance with these requirements.  Rather, the notes squarely conflict with his attestation that Ms. Bennett herself refused to disclose a military status.  As to Ms. Bennett’s marital status, the process server stated: “I asked the person spoken to if the person served is married and I received a negative reply.”  That recitation avoided an identification of the “person spoken to” and again implies that “the person served” was personally handed the papers.  

Far more troubling is the fact that Christiana Bank and its attorneys ignored this discrepancy in the return of service.  In its motion for summary judgment Christiana Bank alleges that the “Defendant(s) were duly and regularly served with process.”  The Bank’s proposed Final Judgment of Foreclosure, prepared by its attorneys, stated: “Service of process having been duly and regularly obtained over DEBBIE BENNETT ....”

***

Once a defect in the return of service is shown, the burden of demonstrating regular service is on the party seeking to invoke the court’s jurisdiction....That burden was not met here.....Where no in personam jurisdiction is obtained over a defendant, the defendant is not required to demonstrate  a meritorious defense to set aside the default.....The trial court should not have required Ms. Bennett to demonstrate a meritorious defense to the action once it became clear that the summons and complaint were never properly served.