Friday, December 27, 2013



The Third District, like UPS and FEDEX, was delayed until after Christmas to publish their opinions--until Thursday the 26th, but no one is complaining about the Third.


Bull Motors, LLC v. Borders, 2013 Fla. App. LEXIS 20336 (Fla. 3d DCA Dec. 26, 2013) affirmed an award of $62,000.00 in attorney’s fees and costs in a consumer arbitration case in which Borders was awarded $5,626.00.  The arbitrator found that Bull Motors dba Maroone had violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and that Borders was the prevailing party, a proper finding as Maroone did not assert any affirmative claims. “There is no express requirement of proportionality between the amount of the FDUTPA judgment and the attorney’s fees and costs incurred in obtaining that judgment.
“Maroone’s second argument is also unpersuasive. Maroone’s offers of judgment addressed Ms. Borders’ claim for equitable relief as well as her claims for damages. The offer of judgment statute, section 768.79, Florida Statutes (2007), does not apply to cases that, as here, involve a general offer seeking release of all claims in the case, both equitable and monetary.” 


Chase Fin. Servs., LLC v. Edelsberg, 2013 Fla. App. LEXIS 20337 (Fla. 3d DCA Dec. 26, 2013) reversed an order setting aside a foreclosure sale despite factual findings by the trial court in support of its decision.  The court reviewed the objections raised by the owner and the transcript of the hearing and determined that the first one was proved to be untrue. The second objection amounted to no more than a failure to act diligently.


Fed. Contr., Inc. v. Bimini Shipping, LLC, 2013 Fla. App. LEXIS 19975 (Fla. 3d DCA Dec. 18, 2013) reversed an order dismissing a complaint to compel arbitration because the suit was barred by the one-year statute of limitations for such actions provided in the Carriage of Goods by Sea Act, 46 U.S.C. app. § 1303 ("COGSA"), even though appellant had argued that the limitations period defense had to be decided by an arbitrator under the broad arbitration clause.  The issue of timeliness should have been decided by the arbitrator.

Sunday, December 8, 2013

He's Back!

The blogs are back.  After a long absence, and many requests, I have decided to bring this blog back to life.  I don't know whether to apologize for the absence of postings or for the postings. Anyway, here they go:

DISCOVERY / SANCTIONS – When enough is not enough

vacating a final default judgment and remanding for an evidentiary hearing, explaining that while the record certainly established a persistent pattern of foot-dragging and failure to comply with court orders, the trial court still abused its discretion in striking Toll's pleadings and granting a default judgment against him in the absence of compliance with the requisite procedures outlined in Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004) and Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)  to justify the extreme sanction imposed. The trial court failed to hold an evidentiary hearing and failed to make the necessary findings under Kozel, rendering it impossible to determine whether the Defendants' collective dilatory conduct was personally attributable to Toll, to another defendant, or to Toll's counsel.  “If, on remand, the trial court determines that dismissal is appropriate, the trial court shall include in its written order findings of fact with respect to each factor, and individualized findings with regard to the conduct of each of the sanctioned parties and their counsel.”

Shepherd, C.J., dissented:  “The majority opinion portrays one reading of the facts of this case. The detailed and thorough eleven-page order rendered by the trial court portrays another.”  Ouch.

ZONING – The Tipsy Coachman Strikes Again

affirming an order that dismissed a case for lack of standing in the middle of trial, but not for that reason.  Instead the court affirmed the dismissal on a ground that had never been raised at the trial level nor in the briefs:  separation of powers.  I am quoting from the dissent by Lagoa, J.  Having watched the oral arguments, I don’t recall that doctrine even coming up then.  Not being a zoning expert, I don’t know enough to comment on the merits, but procedurally, it seems an issue should not come up for the first time in an appellate opinion.  [In the interest of full disclosure, my wife was the president of the neighborhood association at the time of trial].

reversing an order dismissing with prejudice a first amended complaint, seeking to impose an equitable lien on construction loan proceeds and for unjust enrichment. As Shepherd, C. J., wrote:  “A casual perusal of the order makes it apparent that the trial court went beyond the four corners of the complaint in reaching its decision.”  Ouch again.


Taylor v. Gutierrez, 2013 Fla. App. LEXIS 19277 (Fla. 3d DCA Dec. 4, 2013) reversed an order denying a motion to dismiss for lack of jurisdiction because the trial court erred in determining that the contacts of a cruise line physician with the State of Florida were sufficient to confer general jurisdiction over him under Florida’s long arm statute, F.S. § 48.193(2), and because federal due process considerations were not met. 

The court based its finding of general jurisdiction on the following contacts between the doctor and the State of Florida, all of which relate to his nine-year career as a shipboard doctor: entering into employment agreements in Florida with Florida-based cruise lines (Carnival Cruise Lines and Royal Caribbean Cruise Lines); attending annual medical conferences in Florida and from time to time making presentations at same; receiving advanced cardiac life support recertification in Florida; vacationing from time to time in Florida; having two bank accounts in Florida; and working aboard a cruise ship that embarked/disembarked at a Florida port one day a week.  

A dissent by Salter, J. reasoned that the trial court was correct because the doctor routinely rendered medical treatment within the State of Florida when the ship docked at the port.

Thursday, August 8, 2013

New Chief Judge-Elect; New Opinions


Congratulations to Judge Suarez on his election to chief judge-elect!  Coincidentally, the two opinions below were both authored by him.


Constr. Sys. of Am. v. Travelers Cas. & Sur. Co. of Am., 2013 Fla. App. LEXIS 12329 (Fla.  3d DCA August 7, 2013) involved a petition for certiorari in a seven-year-old suit where counsel inadvertently received privileged documents. A motion to compel return of the documents and a motion to disqualify the law firm were referred to a special magistrate.
The special magistrate issued a report and recommendation finding the documents constituted fact work product. However, he concluded the privilege had been waived and recommended denial of both motions. The trial court rejected the recommendation and granted the motions, concluding that no waiver had occurred and the possibility counsel had gained an unfair informational advantage from the disclosure required disqualification.
The opinion reviews the five-factor analysis established in prior cases: (1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosures; and (5) whether the overriding interests of justice would be served by relieving a party of its error.
Upon reviewing the magistrate’s report and the trial court’s order on the motion to compel, the trial court did not exceed its authority by accepting the facts as found by the magistrate but correctly determining the magistrate misconceived the legal effect of the evidence. Therefore, order compelling return of the documents was left unscathed, but the order disqualifying counsel was quashed because the trial court made extensive findings and credibility determinations based on testimony presented to the magistrate. “This was error. Upon determining the privilege was not waived, the trial court should have remanded the matter to the magistrate for further findings.”


G.E. v. Chuly Int'l, 2013 Fla. App. LEXIS 12334 (Fla.  3d DCA August 7, 2013) reversed an order denying GE’s motion for pre-judgment writ of attachment against Chuly’s property.  GE had sued Millennium and a guarantor, but while the action was pending, the guarantor gave a $1.74 million loan to Chuly, a company owned by the guarantor’s then girlfriend.  This loan was subsequently forgiven.  When GE discovered this, it filed a verified motion for a prejudgment writ of attachment against Chuly for the amount of the Chuly loan and was willing to post a bond in excess of the amount it sought from Chuly. After an evidentiary hearing, the circuit court summarily denied GE's motion for prejudgment writ of attachment or garnishment.
In an action for relief against an allegedly fraudulent transfer sought pursuant to Chapter 726, Florida Statutes, a creditor may seek an attachment against the transferred asset. § 726.108(1)(b), Fla. Stat. (2013). Because the determination of actual fraudulent intent can be difficult, courts look to certain “badges of fraud” to determine whether the transfer was made with the intent to defraud creditors. Those “badges of fraud” are set forth in section 726.105, Florida Statutes (2013).
“At the hearing on GE’s motion for garnishment or attachment, GE presented competent, substantial evidence to support issuance of the writ. GE was not required at that time to prove by a preponderance of the evidence that the loan forgiveness was, actually, a fraudulent transfer.  GE merely had to raise a rebuttable presumption of fraudulent intent by asserting the existence of certain badges of fraud, thereby creating a prima facie case for fraudulent transfer to be determined later in the litigation between the parties. GE's complaint clearly alleges several of these badges of fraud, and adequately stated a cause of action for fraudulent transfer.”
The record revealed that the transfer was made to an insider without adequate consideration; the transfer was concealed and it was made shortly before or shortly after a substantial debt was incurred. Chuly did not present sufficient evidence to rebut the initial presumption of fraudulent transfer. Further, GE asserted it would provide a bond in the amount of $3,200,000.00, more than twice the amount of the debt sought against Chuly. See § 76.12, Fla. Stat. (2013).

Tuesday, August 6, 2013

New Name - New Focus


I have renamed the blog because I will be including cases from federal circuit courts and the U.S. Supreme Court, in addition to opinions out of the Florida appellate courts.  Coverage will also extend to ADR cases, such as the following:


Are mediations really confidential?

The facts as set forth in the opinion are that Benes was an employee who sued his employer after only for four months on the job, alleging sex discrimination.  At the EEOC-arranged mediation, the parties caucused after an initial joint session and, upon receiving the settlement proposal, Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I'll see you in court.” Benes stalked out, and, within an hour, the employer “accepted Benes’s counterproposal: it fired him.”  Benes then proceeded with an anti-retaliation claim and abandoned his sex discrimination claim.  The district court granted summary judgment in favor of the employer, holding that because the employee was fired for misconduct during the mediation, not for making or supporting a charge of discrimination, he had no claim for retaliation.

The Seventh Circuit affirmed, stating:  “Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator. Allowing a sanction against a person who by misconduct wrecks a mediation will promote the goals of [42 U.S.C.] §2000e-3(a). Benes has not cited any case holding that misconduct during a mediation must be ignored. Many cases show that misconduct during litigation may be the basis of sanctions (by the court, if not by another litigant).  We cannot see why misconduct during mediation should be consequence free. Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.” (citations omitted).   
This case should give pause to those of us that tell the litigants that everything is confidential.  See Ellen E. Deason, “Predictable Mediation Confidentiality in the U.S. Federal System,” 17 Ohio St. J. on Disp. Resol. 239 (2002).

Lagstein v. Certain Underwriters at Lloyd's of London, 2013 U.S. App. LEXIS 16114 (9th Cir. Aug. 5, 2013) is the latest in the protracted battle between Dr. Lagstein, a nuclear cardiologist, who made a claim in 2001 on a disability insurance policy against Lloyd's of London.  “Lloyd’s pussyfooted for years only to eventually deny the claim, so Dr. Lagstein sued in the United States District Court for the District of Nevada. Lloyd's moved to arbitrate pursuant to the policy, and the District Court granted the motion.

Illustrating the maxim ‘be careful what you wish for,’ the arbitration was wildly successful for Dr. Lagstein, resulting in a total damages award of over $6 million against Lloyd's, including $4 million in punitive damages. Lloyd's, unhappy with the result of the arbitration it had demanded, successfully moved in the District Court to vacate the award. Dr. Lagstein appealed, and this court reversed and remanded with instructions to confirm the award. The District Court then confirmed the award but denied Dr. Lagstein’s request for interest and attorneys’ fees.”

The court now reversed the ruling on interest and attorneys’ fees, confirming the power of the arbitrators to award pre-award interest on contract damages, the power of the court to award post-award prejudgment interest on the total award, including non-contract damages and caps it off by awarding post-judgment interest on the total judgment, including pre-judgment interest to the date of the judgment confirming the award.


Dejesus v. Hf Mgmt. Servs., 2013 U.S. App. LEXIS 16105 (2d Cir. August 5, 2013) affirmed the dismissal of a suit filed by an employee based on allegations by a plaintiff that she was a wage-earning employee of defendant for three years and that she worked more than forty hours per week during “some or all weeks” of her employment and, in violation of the FLSA, was not paid at a rate of at least 1.5 times her regular wage for each hour in excess of forty hours, was insufficient.  Plaintiff relied on the FLSA's provision in 29 U.S.C. § 207(a)(1).  In affirming, the court reasoned that the complaint must contain sufficient factual matter to state a claim, citing to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).  More specifically, in Lundy v. Catholic Health System of Long Island, 711 F.3d 106 (2d Cir. 2013), the court had concluded that “to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.” Lundy, 711 F.3d at 114

Dejesus provided less factual specificity than did the plaintiff in Lundy. “She did not estimate her hours in any or all weeks or provide any other factual context or content. Indeed, her complaint was devoid of any numbers to consider beyond those plucked from the statute… Whatever the precise level of specificity that was required of the complaint, Dejesus at least was required to do more than repeat the language of the statute.”