Saturday, January 26, 2013

New Opinions from the Third and the Supreme Court


Oral arguments are now available on the web, not only in real time, but can also be accessed later under “Archived Video Oral Arguments.”  See:
I tried to institute this when I was chief judge.  Better late than never.


reversed a judgment for $200,000 where Fla. Stat. § 768.28(5) limits the recovery to $100,000 per person.  Here the trial court reasoned that plaintiffs could recover in their individual capacity and in their representative capacity. Although the plaintiffs included both their representative and individual claims in their complaint, their individual capacity claim was not argued at trial and was thus not before the jury.  Their individual claim was also not noted anywhere on the verdict form. 
Practice guide: Plaintiffs’ lawyers should argue the two separate claims to the court and the jury as this opinion suggests to double the recovery.


Balmoral Condo. Ass'n v. Grimaldi, 2013 Fla. App. LEXIS 829 (Fla. 3d DCA Jan. 23, 2013) reversed an order granting a motion to vacate a final judgment.  The defendant served a timely motion for rehearing of a summary judgment pursuant to Rule 1.530.  At the hearing, the trial court denied the motion, but new counsel for defendant presented a new motion titled “motion to vacate and/or for rehearing,” alleging that the summary judgment was entered erroneously on the legal merits.  The judge declined to consider the new motion but agreed to entertain it at a later date.  More than six months after the entry of the final summary judgment, the court held a hearing and recognized it was without jurisdiction to entertain a successive motion for rehearing, but granted the motion to vacate because it had erroneously entered summary judgment.
         After discussing the difference between motions under rule 1.530 and 1.540, the court explained that the grounds under rule 1.540 were narrow, limited to those listed in the rule.  Those grounds do not include legal error.  See Ramirez, 2-24 Florida Civil Procedure § 24-11, n. 590 (“A motion filed pursuant to Florida Rule of Civil Procedure 1.540 cannot be used as a substitute for an untimely motion for new trial under Florida Rule of Civil Procedure 1.530.”).
Practice guide: The opinion suggests a viable option for new counsel—ask the court for leave to amend the motion for rehearing.  Once the trial court denied the motion, the only alternative is to file a notice of appeal.


Soper v. Tire Kingdom, Inc., 2013 Fla. LEXIS 89 (Fla. January 24, 2013) quashes, in a per curiam opinion, a decision by Judges Shepherd, CortiƱas and Rothenberg.  This trio had reversed an order certifying two classes after engaging in a “casual perusal of the ‘common issues’ found by the court to justify class treatment…” and chastising the trial judge for simply announcing “[a]n incantation of ultimate legal issues.”  The opinion reversed Judge Tam Wilson after it “conclude[d] that the trial court abused its discretion in certifying the classes,” yet later stated that because the trial court committed legal error, it could not “hide behind the abuse of discretion standard.”
         The Supreme Court simply quashed the decision on the basis of Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91 (Fla. 2011).  Justices Canady and Polston dissented.
Commentary:  The Tire Kingdom opinion was published one day before Sosa, but it was available at the time rehearing was denied.  It’s difficult to decide cases based on opinions with which you don’t agree.  But sometimes you can get away with it.  I thought Miami Auto. Retail, Inc. v. Baldwin, 97 So. 3d 846 (Fla. 3d DCA 2012) was going to meet the same fate (See:, and yet the Florida Supreme Court denied review.


Earth Trades, Inc. v. T&G Corp., 2013 Fla. LEXIS 87 (Fla. January 24, 2013) held that the fact a general contract knew a subcontractor was unlicensed did not establish the defense of in pari delicto.  Under F.S. § 489.128, “the fault of the person or entity engaging in unlicensed contracting is not substantially equal to that of the party who merely hires a contractor with knowledge of the contractor's unlicensed status. Thus, even if proven, the other party's knowledge is insufficient as a matter of law to place the parties in pari delicto.”


  1. The most interesting thing about Sosa was that it was quashed on jurisdictional briefs without ever being briefed on the merits. That's how obvious the conflict was.

  2. 7:08PM - you are completely wrong. Briefs were indeed filed addressing the merits & oral argument was heard on said briefs. Fortunately, the Supreme Court got it right & reversed the 3d DCA - which lately las been leaning to the right of Genghis Khan.