Sunday, September 23, 2012

New State and Federal Opinions from Florida


Estate of Myhra v. Royal Caribbean Cruises, 2012 U.S. App. LEXIS 19927 (11th Cir. Fla. Sept. 21, 2012) affirmed the dismissal of an action for improper venue based on a forum-selection clause contained in the passage contract, requiring the courts of England and Wales as the forum.  The decedent had been a citizen of England who traveled aboard the Liberty of the Seas, which departed from Miami, contracted Legionnaire’s Disease and died. The court explained that under Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990), when the parties submit conflicting affidavits, the court, in the absence of an evidentiary hearing, “is inclined to give greater weight to the plaintiff’s version of the jurisdictional facts and to construe such facts in the light most favorable to the plaintiff.”
The court rejected the argument that the forum-selection clause was against the public policy of the United States; in particular, that 46 U.S.C. § 30509, which prevents a ship owner from placing in the contract for passage a limitation on liability.  But the forum-selection clause did not place such a limitation; it was the fact that the United Kingdom has ratified the Athens Convention that effected the limitation.  The court also concluded that the terms were sufficiently communicated to the Myhras to preclude any claim that they were achieved by overreaching.


In Brady v. P3 Group (LLC), 2012 Fla. App. LEXIS 15536 (Fla. 3d DCA Sept. 19, 2012), the defendants brought Brady into the case as a third party defendant.  The plaintiff sought and obtained a default final judgment against Brady even though he had never sued Brady, or filed any claim against Brady.  The court stated that “the Rules contemplate that each claim in a multiclaim lawsuit is and should be considered a separately commenced action, albeit prosecuted for convenience in a single action. This conclusion is inferable from the language of Florida Rule of Civil Procedure 1.100…”  The court thus reversed the denial of the motion to vacate the judgment.  For further information, see Ramirez, Florida Civil Procedure § 8-1.


Baldwin v. Regions Fin. Corp., 2012 Fla. App. LEXIS 15557 (Fla. 3d DCA Sept. 19, 2012) affirmed an order compelling arbitration in a clause which also waived his class action rights.  Plaintiff did not argue that the class action waiver was unconscionable, citing AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746, 179 L. Ed. 2d 742 (2011) (upholding a class action waiver in an arbitration agreement), but instead contended that enforcement of the arbitration clause would prevent him and other potential class members from seeking an express statutory remedy provided by section 559.77(2) of the Florida Consumer Collection Practices Act.  The court reviewed the statute and concluded that the same statutory damages were available whether the action was filed as an individual action or a class action.


Adams v. Barkman, 2012 Fla. App. LEXIS 15875 (Fla. 5th DCA Sept. 21, 2012) affirmed the trial court for granting a motion for mistrial after defense counsel repeated violated hotly-litigated motions in limine.  Later, the court held an evidentiary hearing on sanctions and made lengthy oral findings based on Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) and Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) See Ramirez, 2-19 Florida Civil Procedure § 19-3
The court mentioned trial counsel by name, a Mr. Fischer, and noted that his conduct was a continuing problem and bemoaned how attorneys repeatedly violated court orders.  While “cases should be tried on the merits and not attorney shenanigans, the threat of an admonishment and a new trial appears to be of no avail. By sanctioning a party as… in this case, maybe attorneys will get the message to either change their tactics or clients will stop hiring them.”


Raza v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 15893 (Fla. 2d DCA Sept. 21, 2012) affirmed the denial of fees where the bank’s foreclosure was involuntarily dismissed after two years.  A divided court concluded that, even though the appellant was the prevailing party and entitled to fees, [see Ramirez, 2-24 Florida Civil Procedure § 24-5, fn. 202.1] he was still required to present evidence of the number of hours worked, instead of claiming a flat fee.  He had to prove the flat fee was reasonable.  The absence of time records was not fatal to his effort, but here the expert’s affidavit did not consider all of the factors under Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985).  Additionally, there was no transcript of the fee hearing.  The dissent would have remanded for a new fee hearing.


Chalfonte Condo. Apt. Ass'n v. QBE Ins. Corp., 2012 U.S. App. LEXIS 19814 (11th Cir. Fla. Sept. 20, 2012) reversed an $8 million verdict after the Florida Supreme Court answered a series of questions.  [See QBE Ins. Corp. v. Chalfonte Condo. Apt. Ass'n, 2012 Fla. LEXIS 1063 (Fla. May 31, 2012) discussed in the entry posted on June 25, 2012, under “Insurance – Bad Faith Claims.”].  The court affirm the district court’s judgment of dismissal of Chalfonte’s claim under F.S. § 627.701(4)(a), because an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established under that statutory provision.  On remand, the district court was to disallow any evidence of the policy’s failure to comply with these requirements. It also reversed the order denying QBE a new trial.  The court was to bifurcate the contract claim from the bad faith claim and to apply the deductible to any judgment Chalfonte may obtain on retrial.


In Berrios v. Orlando Reg'l Healthcare Sys., 2012 Fla. App. LEXIS 15883 (Fla. 5th DCA Sept. 21, 2012), a split court reversed the entry of a summary judgment based on a release of an initial tortfeasor in this suit for a subsequent malpractice.  Plaintiff had contracted Legionnaires’ disease while at a hotel in Georgia, then was treated for two weeks at a hospital which allegedly caused nerve damage to her leg.  Because the release was executed in Georgia, the court applied Georgia law under the lex loci contractus rule where there is a legal presumption that the release of an initial tortfeasor does not release a subsequent tortfeasor unless the express language of the release dictates otherwise.


Thursday, September 13, 2012

Four New Opinions from the 3d DCA and a Requiem

Alan Sadowski, Marshall
I have been informed that the Marshall of the Third District Court, Alan Sadowski, died today, the day of his birthday.  Alan was a great resource to me during my two years as Chief Judge and a great human being.

Royal Caribbean Cruises, Ltd. v.  Rigby, --- So. 3d --- (Fla. 3d DCA September 12, 2012) affirmed an order modifying the pretrial maintenance and cure benefits for a seaman injured in 2006, without prejudice to defendant seeking termination or further reduction at an evidentiary hearing.  The holding was based on the fact that the trial court had already determined plaintiff’s entitlement to benefits and the order had not been appealed. The dissent by Judge Shepherd opined that the rules of appellate procedure authorize, but do not compel, a party to appeal an interlocutory order.

Citizens Prop. Ins. Corp. v. Ifergane, 2012 Fla. App. LEXIS 15236 (Fla. 3d DCA Sept. 12, 2012) affirmed the order dismissing the wife from an insurance claim where she had assigned her rights to any recovery.  “Post-loss insurance claims are freely assignable without the consent of the insurer.”  But the wife was still obligated to perform the post-loss duties imposed by the language of the policy.  She can assign her benefits but not her obligations.  Her refusal to submit to an Examination Under Oath precluded recovery.  Because the parties seemed to be getting a divorce, counsel should have obtained an order from the family court judge making her give the EUO.


Fla. Dep't of Agric. & Consumer Servs. v. Lopez-Brignoni, 2012 Fla. App. LEXIS 15240 (Fla. 3d DCA Sept. 12, 2012) affirmed an order certifying a class of homeowners affected by the Citrus Canker Eradication Program.  In a long dissent by Judge Rothenberg, she argues that the majority should have reversed because the trial court used the wrong damage methodology.  The dissent then relies Castin v. Fla. Dep't of Agric. & Consumer Servs., 901 So. 2d 1020 (Fla. 4th DCA 2005), a case finding no abuse of discretion in the denial of class certification where the damages sought were “shade, aroma, blossoms and ‘other values for which people treasure citrus in Florida.’”  The class plaintiffs here avoided precisely that problem by seeking only “replacement cost.”  Thus, it seems the dissent was changing the goals of the class to shoot it down.

Mt. Sinai Med. Ctr. V. Gonzalez, --- So. 3d --- (Fla. 3d DCA Sept. 12, 2012) reversed a $3 million verdict because the plaintiff did not present competent evidence that her husband fell down the defendant’s steps, rather than on the sidewalk.  The wife’s testimony was speculative; the engineering expert was conclusory; and the unobjected-to hearsay “was contrary to the established historical facts.”  In footnote 4, it appears the trial court had allowed evidence of a prior slip and fall as a sanction for an alleged discovery violation.  The court said that “there was no justification—and we have found no authority to support—the admission of concededly otherwise inadmissible testimony, such as this to pollute the fair determination of issues before the jury. Thus, the punishment was way out of proportion to the alleged offense.”


Tuesday, September 11, 2012

Two New Opinions


Starling v. Allstate Prop. & Cas. Ins. Co., --- So. 3d --- (Fla. 1st DCA September 11, 2012)

For years I have been telling my students that an order granting a motion for summary judgment is not a final, appealable order.  This case holds, however, that an “Order Granting Motion for Summary Judgment,” is a final order, and that an appellant who relied on a subsequent Final Summary Judgment to file the Notice of Appeal was too late.  The appeal was dismissed as untimely.  The Order here determined that the motion should be granted and contained the following language:  “Summary Judgment is herewith entered in favor of the defendant.”  By having such self-executing, unequivocal language of finality rendered the order sufficient to constitute a final order.


McDaniel Ranch P’ship v. McDaniel Reserve Realty Holdings, LLC, --- So. 3d --- (Fla. 2d DCA September 7, 2012) reminded appellate counsel of the duty of candor to the court when he made arguments not supported by the record and persisted at oral argument even after the discrepancy was brought to his attention.,%202012/2D10-2414.pdf

Sunday, September 9, 2012

InsideCounsel Article

InsideCounsel published an article I wrote.  I am attaching the link.  Let me know what you think.

Technology: Using modern methods to streamline alternative dispute resolution

The Internet, video conferencing and Second Life can lead to efficient resolutions

Wednesday, September 5, 2012

Decisions of interest from this week


Borroto v. Garcia, --- So. 3d --- (Fla. 3d DCA September 5, 2012) reversed the denial of a motion to conduct juror interviews where the defendant showed that certain jurors prior injuries and litigation history.  In a concurring opinion, Judge Emas wrote on the third prong of De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995), which states that “[t]he failure to disclose the information was not attributable to the complaining party’s lack of diligence.” 
According to Judge Emas, De La Rosa rejected the broad proposition that any motion for new trial based upon a juror’s concealment of litigation history required (in order to satisfy the diligence prong) that the search be conducted at the conclusion of jury selection rather than at the conclusion of the trial.
“However, the supreme court did not prohibit a trial court, in an individual case and in the proper exercise of its discretion, from imposing a reasonable requirement of conducting a records check at the conclusion of jury selection.”
Judge Emas suggests that the trial judge may issue a specific pretrial order in an individual case directing the parties to conduct such a search.  In light of the extraordinary amount of time, energy and expense that is often required for the modern civil trial, giving trial judges the discretion to impose these common-sense procedures, in the appropriate exercise of their discretion, is not simply reasonable, but laudable.



Phillip Morris v. Brown, --- So. 3d --- (Fla. 1st DCA September 5, 2012) tells us that it is not a good idea to compare a witness to Dr. Josef Mengele, the infamous Nazi war criminal known as the “Angel of Death.”  That is what the trial judge stated in ruling on the admissibility into evidence of a 1971 videotape of Philip Morris’ former CEO, Joseph Cullman, in which Cullman suggests that lower birth weights caused by smoking may actually be desirable to some women who “might prefer having smaller babies.”  The defendant immediately moved to disqualify the judge.  In granting the writ of prohibition, the appellate court stated that the judge’s statements were so inflammatory that a party would be placed in reasonable fear of judicial bias.


Reffaie v. Wal-Mart Stores, Inc., --- So. 3d --- (Fla. 4th DCA September 5, 2012) reversed for a new trial on damages, stating:
  • Here, appellant correctly argues that there was no evidence to support defense counsel’s argument in closing that law firms transported their clients to Dr. Gomez en mass, or that Dr. Gomez had any “business relationships” with personal injury law firms. At one point, defense counsel even suggested that it was Dr. Gomez who bused the clients “right back up for the purposes of litigation.” We agree that the improper comments at issue were intended to, and did, impugn the doctor’s credibility and objectivity in the eyes of the jurors. While we have little issue with the line of questioning, the problem here is that defense counsel did not obtain the desired answers but continued in closing argument as though he had.


Santiago v. Abramovitz, --- So. 3d --- (Fla. 4th DCA September 5, 2012) reversed the denial of plaintiff’s motion for a new trial on damages due to the jury’s zero verdict. Here, the defendant stipulated before trial that his negligence caused the accident and that the plaintiff sustained a permanent injury because of the accident.


Finnegan v. Deutsche Bank Nat’l Trust Co., --- So. 3d --- (Fla. 4th DCA September 5, 2012) found that there was a genuine issue of material fact where the defendant’s answer specifically denied that she had received notice of the default in accordance with the terms of the mortgage. Deutsche Bank then filed a motion for summary judgment. Its affidavit in support did not mention the conditions precedent. Defendant filed an affidavit in opposition again swearing that she had received no notice of default in accordance with the mortgage provisions. The bank also filed copies of letters allegedly sent to defendant but these were not sworn and could not be considered on a motion for summary judgment.


Trafalgar at Greenacres, Ltd. v. Zurich Am. Ins. Co., --- So. 3d --- (Fla. 4th DCA September 5, 2012) held that obtaining an appraisal award against the insurer satisfied the insured’s obligation to have the underlying claim “resolved favorably” under Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991)).


Tuesday, September 4, 2012

Opinions from the Eleventh Circuit

Ault v. Walt Disney World Co., 2012 U.S. App. LEXIS 18465 (11th Cir. Aug. 30, 2012) rejected the class action objectors’ arguments that the class did not satisfy the prerequisites to class certification set forth in Rule 23(a), because the class representatives’ claims lacked the required typicality.  While each class member may have a stronger or weaker claim, the court concluded that this alone did not make class representatives’ claims atypical of the class as a whole. Class members' claims need not be identical to satisfy the typicality requirement; rather, there need only exist “a sufficient nexus . . . between the legal claims of the named class representatives and those of individual class members to warrant class certification.” Prado-Steiman v. Bush, 221 F.3d 1266, 1278-79 (11th Cir. 2000). This nexus exists “if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). The district court did not abuse its discretion by finding that the claims of the class representatives and class members are typical and warrant class certification.


Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 2012 U.S. App. LEXIS 18464 (11th Cir. Aug. 30, 2012) affirmed the dismissal of a breach of lease agreement suit based on lack of subject matter jurisdiction based on the Tribe’s sovereign immunity.  In the lease the Tribe expressly waived its sovereign immunity concerning any lawsuits Contour might bring based on the Tribe's default or breach of the lease agreement, but the entire lease’s validity was explicitly conditioned upon approval by the Secretary of the Interior, and such approval was never obtained.


Vasquez v. YII Shipping Company, Ltd., --- F.3d --- (11th Cir. August 30, 2012) vacated an order dismissing a seaman’s complaint alleging violations of the Jones Act, and federal maritime law of unseaworthiness.  Vasquez originally filed his suit in Florida court, which dismissed his claims based on Florida’s doctrine of forum non conveniens, and the dismissal was affirmed on appeal. Vasquez then brought the same claims in federal district court, arguing that federal maritime law applied to his case and that venue was not improper under federal forum non conveniens principles. Although the Florida court never decided whether federal maritime law was applicable to Vasquez’s case, the district court ruled that under principles of res judicata and collateral estoppel, Vasquez was precluded from litigating facts relevant to his federal maritime claims. The district court then dismissed Vasquez’s complaint on the grounds of federal forum non conveniens and the Rooker-Feldman doctrine based on its application of collateral estoppel and res judicata. The appellate court found that collateral estoppel applies only when identical issues are involved and that was not the case here. Likewise, res judicata applies only to a final judgment on the merits and, therefore, was not applicable here where there has been no merits determination.  Finally, the Rooker-Feldman doctrine was a narrow doctrine that only applies to an attempt to appeal a state court judgment. The doctrine holds that federal courts below the Supreme Court must not become a court of appeals for state court decisions. The state court appellant has to find a state court remedy, or obtain relief from the U.S. Supreme Court. The Rooker-Feldman doctrine is “confined to cases” that were “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobile Corp. v Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).  In this case, Vasquez’s lawsuit does not seek appellate review of the state court’s decision applying Florida’s forum non conveniens rules to his claims. Instead, Vasquez seeks review of the district court’s order that federal maritime law does not apply to his case, an issue not resolved by the state court.

Monday, September 3, 2012

New DCA Opinions


Lyons v. Chamoun, 2012 Fla. App. LEXIS 14493 (Fla. 4th DCA Aug. 29, 2012) held that where the Proposal for Settlement was directed to the defendant owner and offered to release the defendant, the proposal was ambiguous because the plaintiff had sued both the owner and driver of the vehicle.  The better practice is to attach the proposed settlement rather than attempt to describe it.  See Juan Ramirez, Jr., Florida Civil Procedure, § 21-5, at n.415.2 (2d. ed.).


Gascue v. HSBC Bank, 2012 Fla. App. LEXIS 14491 (Fla. 4th DCA August 29, 2012) reversed the denial of a motion to vacate summary judgment at a non-evidentiary hearing.  The motion alleged that the defendant had retained counsel who did not appear at the hearing on the motion for summary judgment.  In addition, defendant asserted a meritorious defense that the bank had no standing as it was not the holder of the note and mortgage at the time suit was filed.

Bayview Constr. Corp. v. Jomar Props., LLC, 2012 Fla. App. LEXIS 14505 (Fla. 4th DCA Aug. 29, 2012) denied certiorari relief even though the trial court may have erred in reducing the bond because petitioner had received notice of the evidence that respondents would be presenting at the hearing, but petitioner did not present any affidavits until the day of the hearing.  Affidavits must be served a reasonable time before the hearing.  See Juan Ramirez, Jr., Florida Civil Procedure, § 7-3(f), at n.161 (2d. ed.).

Mellette v. Trinity Mem. Cemetery, Inc., 2012 Fla. App. LEXIS 14477 (Fla. 2d DCA Aug. 29, 2012) reversed a summary judgment in favor of a cemetery that disinterred a body at the request of the mother and sent it for reburial in Texas against the widow’s express wishes.  “Certainly, a surviving spouse’s right to direct the disposition of her deceased’s body is no less invaded when the party to whom she has entrusted the body disinters it and ships it out of state without her knowledge and against her expressed wishes.”  The court also reversed the summary judgment on the count for reckless infliction of emotional distress, saying that “…we cannot say that as a matter of law Trinity’s conduct did not reach the level of outrageousness required to support this tort.”


Hall v. White, 2012 Fla. App. LEXIS 14328 (Fla. 1st DCA August 29, 2012) concluded that the trial court erroneously taxed $84,898.25 in attorney’s fees against the defendant on the plaintiffs’ unpaid wage claim under Chapter 448, F.S., because the plaintiffs failed to meet their burden of proof and because the trial court erred in concluding that the issues and claims in the case were inextricably intertwined. Under F.S. § 448.08, attorney's fees and costs may be awarded to the prevailing party in an action for unpaid wages, but F.S. § 448.08 does not apply to independent contractors. Here, the plaintiffs brought a claim for unpaid wages, but also brought a claim concerning Dr. White’s service as an independent contractor. The jury awarded plaintiffs $916.14 on their unpaid wage claim and $23,707.94 in damages on the remaining claim. The issues in the case were not inextricably intertwined because the claims could support independent actions and were not simply alternative theories of liability for the same wrong.  As to the fees awarded under F.S. § 57.105, the trial court erred in not splitting the fees between the defendant and her attorney.