Thursday, June 28, 2012

Another 3d DCA Class Action Opinion


Imagine going to your grocery store and ringing up $37.40 worth of purchases.  You hand the teller two twenties because you don’t have the exact change.  The teller then decides to keep your change.  You don’t have to spend three years in law school to realize that’s wrong.  Well, that’s precisely what happened to Christine Baldwin.  She traded in her car at Miami Auto. Retail, under the tradename of Brickell Honda.  They estimated how much it would cost to pay off the lien on her trade in.  After they overestimated that amount, they kept the change.  But Brickell Honda didn’t just do it to Ms. Baldwin.  They do it as a business practice to everyone.  They just keep the change.  If you don’t believe me, read:

The majority opinion written by Judge Rothenberg states “Brickell Honda did not notify Ms. Baldwin or give her a refund for the difference.   Judge Victoria Sigler certified the class as a violation of the Florida Deceptive and Unfair Trade Practices Act.  In reviewing that order, the majority opinion acknowledges that the standard of review is abuse of discretion, but the analysis, in my view, is more of a de novo review. 

The court reviews each of the factors required under rule 1.220 for class certification and agrees with the trial court that the plaintiff satisfied numerosity and commonality.  The court states, however, that “Ms. Baldwin does have a typicality problem,” not because her allegations that Brickell Honda typically “keeps the change,” but because Brickell Honda has different defenses for their conduct.  In Ms. Baldwin’s case, it was her own fault that Brickell Honda overestimated the payoff amount because it was based on her own representations to the dealer and because she had inadvertently made an additional monthly payment on her lease.  But so what?  Why is the reason for keeping the change relevant?

The majority also finds that Ms. Baldwin has a problem with predominance and superiority.  To do so, it examines the statute under which the trial court certified the class—F.S. § 501.976(11), which provides that it is a FDUTPA violation to:

Add to the cash price of a vehicle as defined in s. 520.02(2) any fee or charge other than those provided in that section… All fees or charges permitted to be added to the cash price… must be fully disclosed to customers in all binding contracts concerning the vehicle's selling price.

The majority then delves into the merits of Ms. Baldwin’s claim to conclude that “the estimation of the trade-in value of her leased vehicle was not an add-on to the price of the vehicle she was purchasing—it was a deduction…”  Mathematics is not my forte, but you add the purchase price, subtract the trade-in value, but then you add the lien payoff amount.  Maybe that is why appellate courts should not be making findings of fact.  Ms. Baldwin is alleging that Brickell Honda never disclosed that they were going to be keeping the change.  That’s an addition, not a subtraction.

 “There you go again.”

In Sosa v. Safeway Premium Finance, 73 So. 3d 91 (Fla. 2011), the Florida Supreme Court reversed another instance where the Third District disagreed with another class certification by another trial judge (former Judge Mary Barzee).  In Sosa, the supreme court wrote:

The decision of the Third District was incorrect because, in making its own factual findings as to whether Sosa and the putative class members satisfied rule 1.220, the Third District afforded no deference to the trial court's actual factual findings and conducted a de novo review.

In my view, this new opinion does exactly the same thing.

Monday, June 25, 2012

New Opinions for June 2012


In Re: Amendments to the Florida Rules of Judicial Administration, --- So. 3d --- (Fla. June 21, 2012) adopted Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Papers) to provide that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) (Service by Electronic Mail (―e-mail‖)), upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail. The rule does permit several limited exceptions to this requirement. A lawyer may file a motion to be excused from e-mail service, demonstrating that he or she [is living in the stone age and] has no e-mail account and lacks access to the Internet at the lawyer’s office. Similarly, individuals who are not represented by an attorney may designate an e-mail address for service if they wish; however, pro se litigants are not required to use e-mail service.


In Re: Amendments to the Florida Rules of Civil Procedure, --- So. 3d --- (Fla. June 21, 2012) approved Florida Rules of Judicial Administration 2.520 (Documents) and 2.525 (Electronic Filing), both governing the filing of any document that is a “court record.” Rule 2.520 provides in general terms that all documents filed in any court shall be filed by electronic transmission in accordance with rule 2.525.  Exceptions are recognized for circuits where the clerk does not have the ability to accept and retain documents by electronic filing, pro se litigants and attorneys exempted from e-mail service.  Also exempted are evidentiary exhibits or nondocumentary materials, documents in excess of 25 megabytes [may include some of Judge Rothenberg’s opinions, see below], when the document is filed in open court, or when a court determines that justice so requires.


Union Carbide Corp. v. Aubin, 2012 Fla. App. LEXIS 9848 (Fla. 3d DCA June 20, 2012) is another comprehensive (32 pages) opinion by Judge Rothenberg erasing a $6.6 million verdict in this asbestos-related claim after concluding that the plaintiff failed to present any evidence demonstrating that the defective design of Calidria Asbestos caused plaintiff’s harm and because the trial court gave erroneous jury instructions.  The trial court was reversed for following a Fourth District opinion involving a Calidria Asbestos claim, instead of a Third District opinion (authored by Judge Rothenberg) involving a lawn mower.  The Aubin opinion criticizes the Fourth’s opinion as “flawed,” but does not certify conflict.


Beggi v. Ocean Bank, 2012 Fla. App. LEXIS 9470 (Fla. 3d DCA June 13, 2012) dismissed for lack of standing a foreclosure appeal by an owner who transferred his interest to an LLC in which he was the sole managing member, but also commented that the issues raised had no merit.


QBE Ins. Corp. v. Chalfonte Condo. Apt. Ass'n, 2012 Fla. LEXIS 1063 (Fla. May 31, 2012) answered the certified question that Florida law does not recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer’s failure to investigate and assess the insured’s claim within a reasonable period of time.  Such a first-party claim must be brought under the statutory bad-faith claims of F.S. § 624.155.  The court also held that the failure to comply with statutory language and type-size requirements did not create a private right of action against the insurer nor did it render a noncompliant deductible void and unenforceable.  Finally, the court held that a contractual provision mandating payment of benefits upon “entry of final judgment” does not waive the insurer’s procedural right to post a bond pursuant to rule 9.310(b) to stay execution of a money judgment pending resolution of the appeal.


 R.J. Reynolds Tobacco Co. v. Mack, 2012 Fla. App. LEXIS 9568 (Fla. 1st DCA June 13, 2012) reversed a verdict for plaintiff in this smoking-related case and held that the trial court erred in excluding the defendant’s alternative causation evidence on the basis that the expert was unable to testify that the alternative causes were more likely than not the cause of the decedent’s cancer. By excluding this evidence, the trial court improperly shifted the burden of proof as to causation to defendant.


Univ. of Fla. Bd. of Trs. v. Stone, 2012 Fla. App. LEXIS 10000 (Fla. 1st DCA June 21, 2012) reversed, in this case of first impression, a jury award of $2.8 million in damages because the trial court erred in ruling that F.S. § 768.13(2)(b), commonly known as the Good Samaritan Act, did not apply.  The statute requires plaintiff to prove liability under a reckless disregard standard and is applicable when the defendant renders emergency services prior to the time the patient is stabilized.


Graney v. Caduceus Props., 2012 Fla. App. LEXIS 10028 (Fla. 1st DCA June 21, 2012) decided that an amendment does not relate back to the original complaint where a third-party defendant is made a primary defendant after the statute of limitations has run.  The court stated that an amendment will relate back (1) where the defendant knew or should have known that the plaintiff was guilty of a misnomer as concerns the correct identity of the defendant; or (2) where the originally named defendant is related to the proper defendant and, through its participation in the proceedings or otherwise, has led the plaintiff to believe the correct defendant was sued.  Here the plaintiff could not establish either prong.


Deutsche Bank Nat'l Trust Co. v. Waldorf, 2012 Fla. App. LEXIS 10116 (Fla. 2d DCA June 22, 2012) reversed another trial judge for dismissing with prejudice a foreclosure action because the bank failed to provide the court with a summary final judgment package prior to the hearing.  The trial court never considered the six factors established almost 20 years ago in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).

BAC Home Loan Servicing, 2012 Fla. App. LEXIS 10119 (Fla. 2d DCA June 22, 2012) reversed the trial court for dismissing with prejudice a foreclosure complaint because plaintiff did not properly verify its complaint in accordance with F.S. § 92.525. As in Trucap Grantor Trust 2010-1 v. Pelt, 84 So. 3d 369, 372 (Fla. 2d DCA 2012), “because rule 1.110(b) specifically provides for a verification based on knowledge and belief, the generally applicable declaration in section 92.525(2) that the facts ‘are true,’ without limitation, does not control.” Thus, the plaintiff properly used the verification language contained in the rule. Further, there is no requirement in rule 1.110(b) that the verification be contained within the complaint, and nothing in the rule prohibits the verification from starting on a separate page.


Mathes v. Mathes, 2012 Fla. App. LEXIS 9689 (Fla. 2d DCA June 15, 2012) is a great example of how much mischief incompetent attorneys can cause in a divorce.  The attorneys failed to make a corporation owned by the husband and the wife a party to the dissolution action but nevertheless persuaded the trial judge to enter numerous provisions in the final judgment affecting the corporation.  Their incompetence continued in failing to obey an order from the appellate court.


Heartland Express, Inc., of Iowa v. Torres, --- So. 3d ---, 2012 Fla. App. LEXIS 10150 (Fla. 1st DCA June 25, 2012) quashed a discovery order compelling  the risk manager to reveal information that could only have been obtained through its risk management investigation.  The trial court was also incorrect in ruling that an attorney cannot instruct a deponent not to answer a question. Florida Rule of Civil Procedure 1.310(c) specifically provides for such an instruction in certain circumstances: “A party may instruct a deponent not to answer only when necessary to preserve a privilege.”  

Monday, June 11, 2012



Portales v. Another Beautiful Corp., 2012 Fla. App. LEXIS 7614 (Fla. 3d DCA May 16, 2012) held that the trial court did not err in not conducting another hearing on the defendant’s renewed motion for summary judgment where it had already held a hearing and denied it without prejudice to allow the parties to develop the record further. The parties came back before the court two weeks later on a call of the calendar, where the defendant orally renewed its motion for summary judgment, The trial court instructed the defendant to submit a legal memoranda and neither party objected to this procedure. After the submissions, the trial court granted the motion and later heard arguments on plaintiff’s motion for rehearing.  By failing to object, plaintiff waived the objection by acquiescence.


Schwartzberg v. Knobloch, 2012 Fla. App. LEXIS 7829 (Fla. 2d DCA May 16, 2012) reversed the circuit court’s denial of the defendants’ motion to dismiss for lack of personal jurisdiction.  The court explained that a plaintiff may establish personal jurisdiction of an upstream, nonresident parent of a nursing home in three ways. First, the plaintiff may show that the non-Florida parent company independently satisfies the test for jurisdiction under Florida’s long-arm statutes.  Second, the plaintiff may establish facts that justify piercing the corporate veil. Third, the plaintiff may show that the parent exercises sufficient control over the subsidiary to render the subsidiary an agent or alter ego of the parent, thus establishing jurisdiction.  In this case, plaintiff established only that the defendants have indirect ownership interests in the nursing home’s operating and management companies. But nothing about the defendants’ financial interests in the nursing home was related to plaintiff’s claims, thus failing to establish any connexity between those financial interests and the alleged abuse from which her claims arose.,%202012/2D11-2867.pdf


Nastasi v. Thomas, 2012 Fla. App. LEXIS 7833 (Fla. 4th DCA May 16, 2012) held that an order sending the parties to mediation is not a final order nor a nonfinal appealable order.


Yue Yan v. Byers, 2012 Fla. App. LEXIS 7837 (Fla. 4th DCA May 16, 2012) reversed a jury verdict because the trial court abused its discretion in denying the landlord’s motion for new trial based on the lack of reasonable notice of the trial.


Acosta v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 7838 (Fla. 4th DCA May 16, 2012) finding an abuse of discretion in an order denying, without an evidentiary hearing, the defendant’s rule 1.540(b) motion for relief from a final summary judgment of foreclosure.  This did not qualify as a “floating forum selection clause,” which is a clause which, rather than designating a forum by immutable geographical place name, designates the exclusive forum for all litigation regarding the agreement which contains the clause by reference to mutable facts, namely, the location of the main office, headquarters, principal office, or principal place of business of one of the parties to the agreement, or that party's assigns. This did not eliminate uncertainty but instead left it to the whim of the defendants’ choice.


Lash & Goldberg LLP v. Clarke, 2012 Fla. App. LEXIS 7851 (Fla. 4th DCA May 16, 2012) reversed an order denying a motion to compel arbitration where the complaint’s allegations of concerted conduct between parties and non-parties to the arbitration agreement permit the non-parties to insist on arbitration under the agreement.  Although a non-signatory to an arbitration agreement cannot generally compel a signatory to submit to arbitration, the one exception to the rule is that a non-signatory can compel arbitration when the signatory to the contract containing the arbitration clause alleges substantially interdependent and concerted misconduct by both the non-signatory and one or more of the signatories.  This exception is based on the doctrine of equitable estoppel.  Here, although plaintiff tried to spin the legal malpractice count as involving only her independent attorney-client relationship, her complaint generally tied those defendants to the others who were parties to the arbitration agreement.


Whistler’s Park v. Fla. Ins. Guar., 2011 Fla. App. LEXIS 21345 (Fla. 5th DCA May 18, 2011) reversed summary judgment for the insurer relying on State Farm Mutual Automobile Insurance Company v. Curran, 83 So. 3d 793, 803 (Fla. 5th DCA 2011), which held: “[T]o avoid liability under the insurance policy based on non-compliance with the CME clause, it was essential that [the insurer] plead and prove a material breach, which means a breach causing prejudice.”  The court stated that most policies provide that an insurer can demand multiple EUO's [Examinations Under Oath] and unlimited records. “The breadth of this power, combined with the promise of forfeiture if the insured is not compliant, has had predictable results, an example of which can be seen in the recent decision of the Third District Court of Appeal in De Leon v. Great American Assurance Co., 78 So. 3d 585, 591 (Fla. 3d DCA 2011). There, the court concluded that the insurer took advantage of its contractual right to conduct an EUO by ‘unwarranted’ and ‘intrusive’ EUO questioning that the court found to be impertinent, improper and irrelevant to the claim.”  In this case, insurer requested an EUO, but never set a time or place for it. When the insurer raised the failure to submit to an EUO as a defense, the offer to submit was renewed. The insurer never pled or asserted prejudice.  Thus, dismissal without prejudice to allow belated compliance with the EUO provision is the most prudent course of action.


Hewlings v. Orange County, 2012 Fla. App. LEXIS 7986 (Fla. 5th DCA May 18, 2012) held that it is the delay in complying with a records request, not delay in responding to a records request that triggers entitlement to attorney’s fees under the statute.


Wells v. Circle Redmont, 2012 Fla. App. LEXIS 7988 (Fla. 5th DCA May 18, 2012) reversed an order denying the release of personal property and permitting the accumulation of storage fees because when appellant posted a “good and sufficient” cash supersedeas bond in an amount which represented the judgment amount and statutory interest, including amounts sufficient to cover any additional storage fees, appellant became entitled to possession of the personal property and to relief from the accumulation of storage fees.

LACHES (It actually exists!)

Trevett v. Walker, 2012 Fla. App. LEXIS 8132 (Fla. 3d DCA May 23, 2012) reviewed the elements to establish the affirmative defense of laches and applied the doctrine to a boundary dispute.


Gonzalez v. NAFH Nat'l Bank, 2012 Fla. App. LEXIS 8140 (Fla. 3d DCA May 23, 2012) explained that Florida Rule of Civil Procedure 1.140(f) allows the court to strike from any pleading at any time any redundant, immaterial, impertinent, or scandalous matter, but an affirmative defense may not be stricken merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.  Here NAFH Bank challenged only the Gonzalez’s purported lack of evidence to support their defense and then provided non-record evidence allegedly demonstrating that they could not prevail on this defense. This was not an appropriate basis for striking a defense.  But the appellate court then found the defense legally insufficient.