Saturday, June 1, 2013

New Opinions for the Week of May 27, 2013


Effective August 1, 2013, to join Gunster.  The article below quotes me as bemoaning the lack of compensation of judges.  This is the fourth judge from our court to leave the Third District before mandatory retirement, not to mention all the judges who have left the circuit bench.


The Daily Business Review also published my article on the International Centre for Settlement of Investment Disputes (ICSID) on May 28, 2013, but you might have missed it as you were too busy reading my blog, which I updated the same day.


Motors, Pumps & Accessories, Inc. v. Miami Medley Bus. & Indus., LLC, 2013 Fla. App. LEXIS 8476 (Fla. 3d DCA May 29, 2013) a divided court reversed a default and a default judgment entered after the client and his attorney failed to attend a mediation or a motion for sanctions.  New counsel claimed that the client was never advised of the mediation or the default.  Additionally, it alleged the judgment was for an unliquidated sum and was entered without first conducting an evidentiary hearing.  The court relied on Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), stating that the motion granting sanctions did not discuss any of the Kozel factors.


Estrada v. Sorrento Townhomes, LLC, 2013 Fla. App. LEXIS 8461 (Fla. 3d DCA May 29, 2013) reversed an order denying plaintiff’s motion to commence proceedings supplementary.  The plaintiff had pled all the requirements: (1) that the party is the holder of an unsatisfied judgment; (2) identifies the issuing court and case number; (3) states the unsatisfied amount of the judgment; and (4) confirms that execution is valid and outstanding. See F.S. § 56.29(1).  The court rejected the argument that a magistrate must be appointed to conduct a preliminary evidentiary hearing on the merits of the movant’s claim before it authorizes the commencement of the proceedings supplementary. “Such a procedure is as unworkable as it is unsupported by law.”


JA&M Dev. Corp. v. Perez, 2013 Fla. App. LEXIS 8483 (Fla. 3d DCA May 29, 2013) quashed an order denying a motion to compel a neurological examination relying on Gomez v. Rendon, 2013 Fla. App. LEXIS 5365 (Fla. Dist. Ct. App. 3d Dist. Apr. 3, 2013) (granting certiorari where the trial court denied a second medical examination by defendant’s doctor).
Commentary:  Why do we still use IMEs, which stands for Independent Medical Examinations?  When I was a trial judge, there was nothing “independent” about doctors conducting examinations on behalf of defense firms or insurance companies.  The word “independent” does not appear anywhere in Florida Rule of Civil Procedure 1.360.


First Baptist Church of Cape Coral v. Compass Constr., 2013 Fla. LEXIS 1108 (Fla. May 30, 2013) explained that the use of an alternative fee recovery clauses were approved in See Kaufman v. MacDonald, 557 So. 2d 572, 573 (Fla. 1990).  “The reasoning we used to uphold alternative fee recovery clauses with contingency fee alternatives in Kaufman, Moxley, and Wasser applies to alternative fee recovery clauses in general, regardless of the other basis for payment. Once a fee-shifting statute or contract triggers a court-awarded fee, the trial court is constrained by Rowe and its progeny in setting a fee that must be reasonable. This alleviates any concern that enforcing an alternative fee recovery clause will result in the nonprevailing party paying an unreasonable fee.”
Dissent: In a low-key dissent, Justice Lewis wrote:Today the majority surprisingly and, in my view, incorrectly endorses a universal implementation of alternative attorney fee recovery clauses with an astonishing disregard for its simultaneous evisceration of the well-established distinction between statutorily authorized attorney fee awards and attorney fees assessed as damages under the concept of indemnity. The majority additionally disregards decades of controlling precedent simply because it is unfavorable to its holding and approves awards of attorney fees not actually incurred, an award of money readily and clearly in violation of due process when assessed as indemnification.”


Early Auction Co. v. Koelzer, 2013 Fla. App. LEXIS 8467 (Fla. 4th DCA May 29, 2013) enforced a forum selection clause in a suit by a Florida resident against an auction house on a purchase made by telephonic bid.  “The plaintiff, as a bidder in the auction, is held to the published terms of the auction regardless of whether he actually read them. Before the auction, the plaintiff received a catalog setting forth the Terms and Conditions of Sale at Auction, including a forum selection clause.”


Rocket Group, LLC v. Jatib, 2013 Fla. App. LEXIS 8469 (Fla. 4th DCA May 29, 2013) quashed an order that refused to allow the filing of documents under seal where the parties agreed that they included confidential materials.  Although confidential business documents are not specifically included in Fla. R. Jud. Admin. 2.420(c), any court record may be determined to be confidential if doing so is necessary to “avoid substantial injury to a party by disclosure” or to “comply with established public policy.”

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