New Cases in Florida

ARBITRATIONS

Steuer v. Jaylene Inc., 2012 Fla. LEXIS 2590 (Fla. Dec. 20, 2012) quashing a decision that held that an arbitrator—as opposed to the trial court—is to determine whether an agreement’s limitation on statutory remedies renders the agreement unenforceable on public policy grounds.  The decision runs counter to recent U.S. Supreme Court decisions that hold that these gateway issues are to be decided by the arbitrator and is reminiscent of Buckeye Check Cashing v. Cardegna, 546 U.S. 440 (2006) were the Florida Supreme Court was the one getting quashed.

http://www.floridasupremecourt.org/decisions/2012/sc09-2209.pdf

13 Parcels LLC v. Laquer, 2012 Fla. App. LEXIS 21995 (Fla. 3d DCA Dec. 26, 2012) reversed the denial of arbitration stating that no waiver had occurred where no action had been taken inconsistent with the right to arbitrate.

http://www.3dca.flcourts.org/Opinions/3D12-0608.pdf

APPRAISALS

Citizens Prop. Ins. Corp. v. Casar, 2012 Fla. App. LEXIS 22378, 1 (Fla. 3d DCA Jan. 2, 2012)

reversed because there was no agreement between the parties to appraise the loss as required by the appraisal provision of the Citizens policy, which provided:

Appraisal. If you and we fail to agree on the amount of loss, either may request an appraisal of the loss by presenting the other party with a written request for appraisal of the amount of loss. If the other party agrees in writing to participate in appraisal, then appraisal shall proceed pursuant to the terms of a written agreement between the parties.

Citizens and the insureds disagreed as to what items were damaged by water and covered by the homeowner’s policy.  In their Appraisal Agreement, Citizens listed for appraisal only those items both parties agreed were damaged by the water but could not agree as to the amount and excluded from appraisal any of the items determined by Citizens not to have been damaged by the leak.  When the insureds refused to sign, the case could not proceed to appraisal.

Under this clause, either side can in effect veto an appraisal proceeding.

BILL OF DISCOVERY

Vorbeck v. Betancourt, 2012 Fla. App. LEXIS 22013 (Fla. 3d DCA Dec. 26, 2012) represents another unsuccessful attempt to use a pure bill of discovery, in this case by fifty-percent owners of two corporations to obtain company records where they suspected misappropriation of funds.  They were using the bill as an impermissible fishing expedition and they had an adequate remedy at law.  See Ramirez, 1-12 Florida Civil Procedure § 12-1 n. 3

http://www.3dca.flcourts.org/Opinions/3D12-1133.pdf

JURISDICTION

Universal Music Venez., S.A. v. Montaner, 2012 Fla. App. LEXIS 22011 (Fla. 3d DCA Dec. 26, 2012) reversed the denial of a motion to dismiss for lack of personal jurisdiction.  The plaintiff was a composer and recording artist who sued a Venezuelan corporation where the only basis for asserting jurisdiction was an affiliated, but entirely separate corporation, which, under a contract with plaintiff, did distribute defendant’s products in Florida.  This could not provide jurisdiction where there was no showing that defendant in any way controlled or directed the operations of the affiliated company.

http://www.3dca.flcourts.org/Opinions/3D12-1580.pdf

FORECLOSURES

Chase Home Loans, LLC v. Sosa, 2012 Fla. App. LEXIS 22014 (Fla. 3d DCA Dec. 26, 2012) reversed an order vacating a residential foreclosure sale based on the unsworn allegations by a husband that his wife, a co-signatory, “actively concealed” the proceeding by hiding all notifications under the family sofa.  Because the motion under Rule 1.540(b) was based on unsworn allegations of counsel, it basically made the motion legally insufficient.

http://www.3dca.flcourts.org/Opinions/3D12-1783.pdf