HIATUS

Sorry about the hiatus in the postings but my wife and I went to Peru, sent some days in Lima attending the VII Congreso Latinoamericano de Arbitraje, then went to Cusco and Machu Picchu.  It was every bit as amazing as advertised.

 

DEPOSITIONS / SETTING / CERTIORARI

Dan Euser Waterarchitecture, Inc. v. City of Miami Beach, 2013 Fla. App. LEXIS 6919 (Fla. 3d DCA May 1, 2013) quashed an order that required a defendant from Canada who was not seeking affirmative relief to appear for his deposition in Miami-Dade County instead of the corporate headquarters in Ontario.  The concurring opinion distinguished federal authority on the basis that those cases involved “more exotic destinations.”

http://www.3dca.flcourts.org/Opinions/3D13-0180.pdf

APPRAISAL

Citizens Prop. Ins. Corp. v. Zunjic, 2013 Fla. App. LEXIS 6901 (Fla. 3d DCA May 1, 2013) reiterated a prior holding that the new language in the policy that requires that the parties agree in writing to participate in an appraisal process.

Commentary:  This opinion seems to reward the insurer playing games because they had twice written to the insurer proposing the claim be resolved through an appraisal and when the insurer requested appraisal, the insurer now did not seem to want it.  Meanwhile, the claim remains unresolved.
http://www.3dca.flcourts.org/Opinions/3D12-1286.pdf

MOTION FOR DIRECTED VERDICT

John Moriarty & Assocs. of Fla. v. Murton Roofing Corp., 2013 Fla. App. LEXIS 6568 (Fla. 3d DCA Apr. 24, 2013) reversed an order directing a verdict of over $2 million where there was evidence presented supporting the verdict.  It also commented on the fact that the trial court adopted verbatim a ten-page order proposed by Moriarty, explaining that while that fact alone did not compel reversal, “Florida courts have been critical of such a practice.”  Additionally, the court found a significant inconsistency between the ten-page order and the trial court’s rulings at trial.

http://www.3dca.flcourts.org/Opinions/3D11-1632.pdf

SLIP AND FALL / BURDEN OF PROOF

Kenz v. Miami-Dade County & Unicco Serv. Co., 2013 Fla. App. LEXIS 6592 (Fla. 3d DCA Apr. 24, 2013) holding that Fla. Stat. § 768.0755 is a procedural statute which may be applied retroactively.  [The statute provides that a person who slips and falls on a transitory foreign substance in an establishment “must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.”]

http://www.3dca.flcourts.org/Opinions/3D12-0571.pdf

 

More Opinions

RELATION BACK

Kopel v. Kopel, 2013 Fla. App. LEXIS 4512 (Fla. 3d DCA  Mar. 20, 2013) reversed a judgment in a commercial family dispute because there was no relation back for a suit filed in 1994, a second amendment to the complaint in 1997, and a trial in 2008, where, for the first time and over objection, plaintiff claimed that various conversations were not settlement discussions but were independent oral agreement to pay him $5 million in exchange for his interest in the business.  The court explained that “for an amended pleading to survive a motion to dismiss after the statute of limitations has passed, an amended complaint must relate back to the original pleading made before the expiration of the statute of limitations.  See Fla. R. Civ. P. 1.190(c). To relate back, the pleading must not state a new cause of action.”  Here the Fifth Amended complaint added a new cause of action that had not been raised until 14 years after the original pleading. The alleged oral promise to pay Leon $5 million was new, different, and distinct from that which was originally pled. 

http://www.3dca.flcourts.org/Opinions/3D11-0536.pdf

LAW OF THE CASE

Fla. Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp., 2013 Fla. App. LEXIS 4441 (Fla. 3d DCA Mar. 20, 2013) explained that once the appellate court determined in a prior appeal that a party is entitled to fees pursuant to a proposal for settlement, that becomes the law of the case and the trial court is not at liberty to revisit the issue.

http://www.3dca.flcourts.org/Opinions/3D12-0389.pdf

DEFAULT FINAL JUDGMENT

Mauna Loa Invs., LLC v. Santiago, 2013 Fla. App. LEXIS 4439 (Fla. 3d DCA Mar. 20, 2013) reversed the denial of a motion to set aside a default final judgment after a jury trial on damages because the defendant did not own the property where plaintiff fell at the time of the incident.  This meant that the complaint failed to state a cause of action.  Under these circumstances, the motion to set aside a default judgment required no allegations or showing of excusable neglect where the basis for the motion is that the allegations in the complaint do not entitle the plaintiff to relief.  The trial court has no discretion, but is obligated to vacate the default judgment.

http://www.3dca.flcourts.org/Opinions/3D12-1825.pdf

FORECLOSURES

Bank of N.Y. Mellon v. Reyes, 2013 Fla. App. LEXIS 4435 (Fla. 3d DCA Mar. 20, 2013) concluded that the default final judgment was void where the mortgagors filed a counterclaim to the complaint for foreclosure alleging that the bank breached its contract by seeking to foreclose after it had reached a loan modification agreement with them. Because the counterclaim alleged no more than a breach of contract, no rescission, not even rescission of the mortgage agreement and the mortgage itself, could be granted. "[A] judgment which grants relief wholly outside the pleadings is void.”

http://www.3dca.flcourts.org/Opinions/3D12-1900.pdf

Wells Fargo Bank, N.A. v. Aristo Mortgage, LLC, 2013 Fla. App. LEXIS 4442 (Fla. 3d DCA Mar. 20, 2013) reversed when counsel for Aristo led the trial judge into error. Relying on a motion that misrepresented the undisputed priorities and a notice of hearing that contained an erroneous hearing date on its face, Aristo obtained that which it was not entitled  to obtain—the surplus proceeds.

http://www.3dca.flcourts.org/Opinions/3D12-3012.pdf

STATUTE OF FRAUDS

DK Arena v. EB Acquisitions, 2013 Fla. App. LEXIS 5023 (Fla. March 28, 2013) reiterated the holding in Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So. 2d 777, 779 (Fla. 1966), which unequivocally rejected a promissory estoppel exception to Florida’s Statute of Frauds.

http://www.floridasupremecourt.org/decisions/2013/sc10-897.pdf

New Decisions from Florida Appellate Courts

DISMISSALS

Deutsche Bank Nat'l Trust Co. v. Santiago, 2013 Fla. App. LEXIS 3936 (Fla. 3d DCA Mar. 13, 2013) reversed the trial judge for dismissing sua sponte during the testimony of the first witness during a bench trial.  Under Rule 1.420(b), an involuntary dismissal is only permissible after the party seeking affirmative relief has completed its presentation of evidence.

http://www.3dca.flcourts.org/Opinions/3D11-2805.pdf

Steiner Transocean Ltd. v. Efremova, 2013 Fla. App. LEXIS 3945 (Fla. 3d DCA Mar. 13, 2013) reversed the denial of a motion to dismiss based on a mandatory forum selection clause based on its reasoning that it was limited to the four corners of the complaint.  Plaintiff filed a Jones Act complaint and the judge that had not attached a copy of the employment contract containing the forum selection clause.  The Third District agreed that, as a general rule, trial court is limited to the four corners of the complaint and any attachments, but listed the exceptions: challenges to (1) subject matter jurisdiction; (2) personal jurisdiction; (3) inconvenient forum; (4) improper venue.  “A motion to dismiss based on a contractual forum selection clause is similar, in many respects, to a motion to dismiss for improper venue. We can discern no reason for treating them differently for purposes of applying the exception to the ‘four corners’ rule.”

http://www.3dca.flcourts.org/Opinions/3D12-2390.pdf

SMOKING

Philip Morris USA, Inc. v. Douglas, 2013 Fla. LEXIS 440 (Fla. March 14, 2013) held that accepting as res judicata the eight Phase I Findings approved in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) did not violate the Engle defendants’ due process rights.

http://www.floridasupremecourt.org/decisions/2013/sc12-617.pdf

ECONOMIC LOSS RULE

Tiara Condo. Ass'n v. Marsh & McLennan Cos., 2013 Fla. LEXIS 343 (Fla. Mar. 7, 2013) held, in a five-to-two decision, that the economic loss rule is limited to products liability cases.

http://www.floridasupremecourt.org/decisions/2013/sc10-1022.pdf

ATTORNEY’S FEES / MARITIME CASES

Nicoll v. Magical Cruise Co., 2013 Fla. App. LEXIS 4194 (Fla. 5th DCA March 15, 2013) explained that in maritime cases, a plaintiff is not entitled to attorney’s fees, even where a state statute establishes such entitlement.  Here the statute establishing entitlement, F.S. § 768.79 creates a substantive right, but maritime cases are governed by federal admiralty law and under federal admiralty law, the prevailing party is not entitled to fees absent a federal statute or a contract providing for such fees.  The court noted that its decision was in conflict with Royal Caribbean Corp. v. Modesto, 614 So. 2d 517 (Fla. 3d DCA 1992), but that decision was recently called into question in Royal Caribbean Cruises, Ltd. v. Cox, 2012 Fla. App. LEXIS 13918 (Fla. 3d DCA Aug. 22, 2012)

http://www.5dca.org/Opinions/Opin2013/031113/5D11-1039.op.pdf

BREACH OF FIDUCIARY DUTY / WAIVER

Band v. Libby, 2013 Fla. App. LEXIS 4055 (Fla. 2d DCA March 13, 2013) held that a party may waive a claim for breach of fiduciary duty.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/March/March%2013,%202013/2D11-4942.pdf

EXPERT / LIMITING TESTIMONY

State Farm Mut. Auto. Ins. Co. v. Thorne, 2013 Fla. App. LEXIS 3749 (Fla. 2d DCA Mar. 8, 2013) reversed a verdict where the trial court limited the testimony of an expert witness whose identity had been disclosed 69 days before trial, where the plaintiff had been provided with a summary of his opinion, his full report, and had taken his deposition.  Under Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981), there was no prejudice (“surprise in fact”).  The error was compounded when the trial court allowed plaintiff’s counsel to argue about the lack of evidence on the issue, saying “it is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented.”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/March/March%2008,%202013/2D11-3314.pdf

FORECLOSURES

Deutsche Bank Nat'l Trust Co. v. Prevratil, 2013 Fla. App. LEXIS 3751 (Fla. 2d DCA Mar. 8, 2013) quashed an order that required Deutsche Bank, not the loan servicer, to verify the complaint pursuant to Rule 1.110(b).  In granting the motion to dismiss, the trial court imposed a verification requirement that Rule 1.110(b) did not.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/March/March%2008,%202013/2D12-2030.pdf

NEW OPINIONS FROM FLORIDA APPELLATE COURTS

ARBITRATION

Laizure v. Avante at Leesburg, Inc., 2013 Fla. LEXIS 249 (Fla. Feb. 14, 2013) held that an arbitration provision in an otherwise valid contract binds the signing party’s estate and heirs in a subsequent wrongful death case.

http://www.floridasupremecourt.org/decisions/2013/sc10-2132.pdf

Marcum LLP v. Potamkin, 2013 Fla. App. LEXIS 2609 (Fla. 3d DCA Feb. 20, 2013) held that where an agreement to arbitrate is assignable if it does not explicitly preclude assignment.  “‘Gatekeeper’ decisions on matters relating to a party’s standing to invoke arbitration are ordinarily within the jurisdiction of the arbitrators, not a court.”  The court added in footnote 3:  “Because the Federal Arbitration Act (FAA) is applicable nationally, it has produced more reported cases than the Florida cases applying the Florida Arbitration Code, Chapter 682, Florida Statutes. The federal cases are considered ‘highly persuasive’ because the Code is modeled after the FAA.”

http://www.3dca.flcourts.org/Opinions/3D12-1867.pdf

ARBITRATION / FEES

Raubvogel v. Credit Suisse Sec. (USA) LLC, 2013 Fla. App. LEXIS 2792 (Fla. 4th DCA Feb. 20, 2013) reversed the trial court for denying attorney’s fees finding that appellants had waived their right to fees.  The parties had not stipulated that the arbitration panel would decide fees and merely requesting fees in the parties’ initial arbitration pleadings is not sufficient evidence of express waiver.

http://www.4dca.org/opinions/Feb%202013/02-20-13/4D12-259.op.pdf

APPEAL PREMATURE

Zapata v. Howett Holdings, Inc., 2013 Fla. App. LEXIS 2608 (Fla. 3d DCA Feb. 20, 2013) dismissed as premature an appeal of an order denying a motion to dismiss for lack of personal jurisdiction where on the same day the notice of appeal was filed, the trial court agreed to hold an evidentiary hearing.

Comment:  There is a line of cases that hold that a trial court may not divest an appellate court of jurisdiction by reconsidering its prior ruling, but evidently they don’t apply where the events happen on the same day.

http://www.3dca.flcourts.org/Opinions/3D12-2209.pdf

Universal Underwriters Ins. Co. v. Stathopoulos, 2013 Fla. App. LEXIS 2934 (Fla. 2d DCA February 22, 2013) dismissed an appeal of a final judgment that resolved adversely to the insurer a declaratory count that the driver was insured, but left pending counts for breach of contract and bad faith.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/February%2022,%202013/2D12-2412.pdf

INDEPENDENT COUNSEL

Univ. of Miami v. Great Am. Assur. Co., 2013 Fla. App. LEXIS 2600 (Fla. 3d DCA Feb. 20, 2013) ruled that, where both the insured and the additional insured have been sued, and the allegations claim that each is directly negligent for the injuries sustained, a conflict between the insured and the additional named insured exists that would require the insurer to provide separate and independent counsel for each.  Judge Shepherd dissented, stating: “The court today opens a new frontier in insurance litigation of benefit only to the legal profession.”

http://www.3dca.flcourts.org/Opinions/3D09-2010.pdf

SHAM PLEADINGS

F.V. Constr. Corp. v. Cmty. Bank of Fla., Inc., 2013 Fla. App. LEXIS 2618 (Fla. 3d DCA Feb. 20, 2013) reversed the dismissal of the complaint because the allegations did not rise to the level of a sham pleading where they were not “inherently false and based on plain or conceded facts clearly known to be false.  A hearing on a motion to strike a pleading as a sham is not a hearing to resolve the merits of the issues, but to determine if there are any genuine issues to be determined.”

http://www.3dca.flcourts.org/Opinions/3D12-0645.pdf

DEFAMATION / PRIVILEGE

Delmonico v. Traynor, 2013 Fla. LEXIS 298 (Fla. Feb. 14, 2013) held that Florida’s absolute privilege was never intended to immunize from liability an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit. A qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.

http://www.floridasupremecourt.org/decisions/2013/sc10-1397.pdf

JURORS / FAILURE TO DISCLOSE

Duong v. Ziadie, 2013 Fla. App. LEXIS 2788 (Fla. 4th DCA Feb. 20, 2013) affirmed the denial of a new trial where two jurors were interviewed and had failed to disclose prior litigation experience during voir dire in this medical malpractice trial. Juror One had been a party to five lawsuits (a criminal welfare fraud conviction; one was a collection action from 2007; one was an eviction in 1991; and two were paternity and child support actions), and Juror Two had been a party to three lawsuits (all three collection actions).  The court concluded that the trial judge did not abuse its discretion in determining the undisclosed lawsuits were not material. None of the undisclosed lawsuits are similar to a medical malpractice action, or involve personal injury at all, and several of the prior lawsuits were decades before her jury service in this case.  Furthermore, other prospective jurors, one of whom served, had litigation experience, but they were either not questioned about the experience or challenged by the defendant in this case.

 http://www.4dca.org/opinions/Feb%202013/02-20-13/4D10-1381.op.pdf

SETTLEMENTS

Olen Props. Corp. v. Wren, 2013 Fla. App. LEXIS 2823 (Fla. 4th DCA Feb. 20, 2013) involved a case in which the trial court approved a settlement, reserving jurisdiction to enforce the terms of the agreement.  Two years later, Wren filed a motion to enforce the settlement agreement and for sanctions.  A trial court does not have jurisdiction under a settlement agreement to award damages for breach of a settlement agreement’s provisions. The distinction between enforcement of an agreement and breach of that agreement is that by enforcing a contract, it is assumed that the contract has continuing validity and a party is ordered to comply with its terms. A breach of contract action presupposes that the contractual relationship is at an end because of a material breach by one party and damages are sought by the non-breaching party as a substitute for performance.  Merely seeking damages by calling it a sanction does not provide jurisdiction in the trial court.

http://www.4dca.org/opinions/Feb%202013/02-20-13/4D12-1871.op.pdf