Judgment Reversed Due To Failure To Allow Discovery

Update: On November 30, 2011, the opinion discussed below was withdrawn and an en banc opinion released in its place. The en banc opinion is discussed HERE.


In Alvarez v. Cooper Tire & Rubber Company (4D08-3498), the Fourth District reversed the trial court's judgment entered after a jury verdict and remanded for a new trial because the plaintiff was not allowed to conduct sufficient discovery. The opinion began:

Relevant  evidence  in  civil  cases — that  is,  the acceptable knowledge base of  facts  for  the  jury — is  found  in an aggregate of historical  facts, data, information, objects and opinions that the law allows the parties to place before the finder-of-fact to decide the case.  To assist the parties in assembling all the knowledge fairly needed to prove a cause of action or defense, the rules establish a pretrial process called discovery, which (as its name  implies) is also meant  to afford a means of apprehending that which they do not know.  Hence, the process begins with a wide sweep, gathering many kinds of knowledge only possibly germane (if at all), yet capable  of  leading  to  admissible  trial  evidence.  At  discovery’s  end, the accumulated knowledge is distilled into  the evidence the parties can  lay before the jury. 

When this discovery  is not allowed  to have  its  intended scope — for example,  when  one party  is  blocked  from  ascertaining and acquiring from  the other party unprotected, relevant  information and data that  is admissible at trial — the sum of knowledge placed before the jury will be unfairly deficient, hence misleading.  The whole structure of the trial will be faulty.  The jury’s basis for resolving the facts will be tilted against the party denied  that access.  Trial  then will be an expedition on an errant course.  Because  the  possible  factual  base  for  the  jury  has been unreasonably curtailed peremptorily, a jury’s resolution of  the  facts will be unreliable, and its verdict untrustworthy.

The opinion provided a detailed account of the specific facts at issue and why it was error to refuse the plaintiff the opportunity to conduct the discovery. The opinion concluded:

As we  saw  in  the  beginning,  the  apparatus  of  civil  litigation  has incorporated into its structure the right of all parties to discovery of facts, information and  data  involving  the  subject  matter  of  the  dispute.  Denying  one of  the  parties  that  discovery — especially  as  to  essential evidence critical to proving a claim or defeating a defense — is a manifest injustice.  Within the meaning of the harmless error law, the denial here was  considerably prejudicial and perpetrated a substantial  injustice  on the plaintiff in this litigation.  

Upon remand, discovery  will  have  to  resume, governed  by  the holdings  of  this  opinion.  Proper  and full  discovery will  then  require  a new trial, at which both sides will have the right to lay all their relevant, admissible evidence before the jury.

The court's entire opinion is below:

Alvarez v. Cooper Tire & Rubber Company (4D08-3498)

Is It Proper To Cite To A Shortened URL In An Appellate Brief?

The brief below was filed in the Second District yesterday.  As you can see, at least 17 times the brief cites to a web address shortened through the "Google url shortener" which significantly shortens web addresses. For example, the Google url shortener changes  "http://www.floridalegalblog.org/2010/12/fourth-district-on-invited-error-and.html" to "http://goo.gl/fb/HceD7."  

It certainly looks better to cite to the shorter address. and it makes formatting significantly easier.  However, is it proper? It does not indicate who is actually hosting the web site and, technically, is not the source of the information cited. A website can always be taken down, however, when you cite to a shortened address you have the potential that the actual web site stays available but the shortener is not.  The New York Times had a service Nyturl, however, the New York Times shut down the service due to abuse and all links became unavailable.  THIS article stated:

Enter NytUrl, the ‘trusted’ URL shortener for NYtimes.com articles. Update: The site and all the redirects were taken down “due to abuse.”

I am not sure if there is an actual answer to the question in the title of this post or not.

Trial Court Has Discretion To Schedule Foreclosure Sale

In LR5A-JV v. Little House (5D09-3857), the Fifth District affirmed the trial courts order scheduling a foreclosure sale.  A prior decision in the same case can be found at the following cite: LR5A-JV, LP v. Little House, LLC, 998 So. 2d 1173 (Fla. 5th DCA 2008).  In 2008, the Fifth District concluded its opinion by stating "Accordingly, we AFFIRM the final judgment of foreclosure and order of clarification and REMAND with instructions to proceed to foreclose the superior mortgage of LR5A-JV."  

After the case was remanded, the condominium association filed a motion in the trial court requesting that the trial court schedule the foreclosure sale.  Over the objection of the judgment holder, the trial court granted the motion and scheduled the sale.  The judgment holder argued that "the Association, as a junior lien holder, cannot demand that a foreclosure sale date be set, and the trial court erred as a matter of law in setting the date for the judicial sale. The Association counters that section 45.031(1), gives the trial court the ultimate authority to order a judicial sale."  The court "agree[d] with the Association."

The court stated that the statutes "clearly required the trial court to set a judicial sale date between 20 to 35 days after entry of the final judgment or order directing a judicial sale, but allows an extension with the plaintiff’s consent."  Further, "Florida decisional law reflects that the matter of fixing the time for a judicial sale is set by statute, but that the trial court has reasonable discretion within the statutory framework to set or reset the date for such sale."

The court also noted the Florida Supreme Court's 2010 amendment to the Florida Rules of Civil Procedure relating to motions to cancel foreclosure sales.  The court stated:

the Florida Supreme Court adopted amendments to the rules of civil procedure relating to mortgage foreclosures. In re Amends. to the Fla. R. of Civ. P., 35 Fla. L. Weekly S97 (Fla. Feb. 1, 2010). Included in these amendments is Form 1.996(b), entitled “Motion to Cancel and Reschedule Foreclosure Sale,” which sets out a list of reasons for cancellation of a scheduled judicial sale, and provides, “If this Court cancels the foreclosure sale, Plaintiff moves that it be rescheduled.” In other words, the supreme court, in adopting the form, apparently did not contemplate that a judicial sale would be left in limbo.

The Florida Supreme Court issued a new opinion on the a different subsection of the rule just yesterday, December 9, 2010, which was discussed HERE.

Ultimately, the court held that the trial court, not the judgment holder, had the ultimate discretion to schedule the sale. I believe the fact that the case was remanded in 2008 with instructions to conduct a sale also played a factor.  The judgment holder was attempting to never schedule the foreclosure sale which seems to present a different circumstance from the cases discussing a judgment holders attempts to reschedule a foreclosure sale.  Those cases hold that a motion to postpone a foreclosure sale should be granted absent “extraordinary circumstance.”  A Mortg. Co. v. Bowman, 642 So. 2d 123, 124 (Fla. 4th DCA 1994); see also Chemical Mortg. Co. v. Dickson, 651 So. 2d 1275, 1276 (Fla. 4th DCA 1995); LaSalle Bank Nat. Ass’n. v. Alicea,  35 So. 3d 986, 989 (Fla. 5th DCA 2010); U.S. Bank Nat'l Ass'n v. Bjeljac, 17 So. 3d 862 (Fla. 5th DCA 2009); and Wells Fargo Bank, N.A. v. Lupica, 17 So. 3d 864 (Fla. 5th DCA 2009).  

Florida Supreme Court Amends Form Final Foreclosure Judgment

The Florida Supreme Court released the opinion below this morning amending the form foreclosure final judgment.  The court stated:

Because, unlike the other amendments, the amendments to form 1.996(a) had not been published for comment prior to adoption, the opinion adopting the amendments provided a sixty-day comment period with regard to the amendments to that form.  Several comments were filed, and the committee filed a response.

Upon consideration of the comments and the committee’s response thereto, we adopt two further amendments to form 1.996(a).  First, in recognition of assertions in the comments that flat rate attorneys’ fee agreements are common in mortgage foreclosure cases, we amend the attorneys’ fee provisions of the form to accommodate this option.  Second, in order to ensure that the provisions of the form are not contrary to the Protecting Tenants at Foreclosure Act of 2009, Pub. L. No. 111-22, §§ 701-704, 123 Stat. 1660-62, we delete the sentence from paragraph six of the form stating, “If any defendant remains in possession of the property, the clerk shall without further order of the court issue forthwith a writ of possession upon request of the person named on the certificate of title.”

In Re Amendments To The Florida Rules of Civil Procedure – Form 1.996 (Final Judgment of Foreclosure)

District Court Can Consider Item Which Can Be Judicially Noticed At Motion To Dismiss Stage

In Peter Halmos, et al v. Bomardier Aerospace Corp. (10-12411), the Eleventh Circuit affirmed THIS order from the district court dismissing a claim for malicious prosecution.  The court noted that while "at the Fed. R. Civ. P. 12(b)(6) stage, we 'primarily consider the allegations in the complaint,” but “[t]he court  is not  [always]  limited to the  four corners of the complaint.' Long v. Slaton, 508 F.3d 576, 578 n.3 (11th Cir. 2007)."  In addition to looking to the four corners of the complaint:

a district court may take judicial notice of matters of public record without converting a Rule 12(b)(6) motion  into a Rule 56 motion. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999); see also Tellabs, Inc. v. Makor Issues & Rights,  Ltd.,  551 U.S.  308,  322,  127  S. Ct.  2499,  2509 (2007)

In granting the motion to dismiss, the district court properly looked to the complaint and its attachments, and the record from an action in a Texas lawsuit.  You can view the briefs at the following links: Initial Brief; Answer Brief; and Reply Brief.

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.