ORAL ARGUMENTS AT THE
3d DCA
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.
SOVEREIGN IMMUNITY
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.
POST-JUDGMENT MOTIONS
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.
CLASS ACTIONS
Soper
v. Tire Kingdom, Inc., 2013 Fla. LEXIS 89 (Fla. January 24, 2013) quashes,
in a per curiam opinion, a decision by Judges Shepherd, Cortiñas 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:
http://ramirezlaw.blogspot.com/2012/06/another-3d-dca-class-action-pinion.html),
and yet the Florida Supreme Court denied review.
IN PARI DELICTO
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.”
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.
ReplyDelete7:08PM - 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.
ReplyDelete