CLASS ACTION
CERTIFICATION REVERSED BY THE THIRD –So what’s new?
Alderwoods Group v. Garcia,
2013 Fla. App. LEXIS 12002 (Fla. 3d DCA July 31, 2013) reversed a class action
certification of: “All persons with
burial plots or family members at Graceland Memorial Park South who were buried
before 1994, that are unable to readily locate family members due to inadequate
recordkeeping and identifying markers.”
The Third District again conducted a merits analysis to reverse the
class certification order, instead of explaining how the trial court abused its
discretion. The court first ruled that the procedure to be
employed for determining class membership would provide the Representative
Plaintiffs with the ultimate injunctive relief they were seeking.
Second, because there had been a prior administrative procedure, res
judicata prevented relitigation of resulted in defendant having to correct its faulty record keeping and
ensure that every gravesite was properly marked and accounted for. “Res judicata bars the Representative
Plaintiffs from seeking a permanent mandatory injunction that would redress the
same issues litigated in the administrative action.”
The remaining claims were also not deemed amenable to
class treatment because they required highly individualized proof.
ATTORNEY’S FEES
State
Farm Fla. Ins. Co. v. Laughlin-Alfonso, 2013 Fla. App. LEXIS 12010 (Fla. 3d DCA July 31, 2013) reversed the denial of
attorney’s fees based on the trial judge’s determination that the proposal for
settlement—a nominal amount—was not made in good faith. Even though it was an abuse of discretion
standard, the court stated that the terms of the policy required the insured to
assist State Farm in its investigation of the claim and the insured did not
respond to any of State Farm’s requests and failed to submit a Sworn
Proof of Loss. The insured also failed
to respond to State Farm’s discovery requests. Additionally, she failed to
submit any credible evidence to support her supplemental claim, other than the
public adjuster's report. The court then
concluded that State Farm had a reasonable basis to believe that its
exposure was nominal and did not act in bad faith when it made the settlement
offer.
But why was the trial court’s
contrary conclusion an abuse of discretion?
ATTORNEY’S FEES
HSBC Bank United States v. Williams, 2013
Fla. App. LEXIS 12007 (Fla.
3d DCA July 31, 2013) affirmed the award
of $74,429 in costs and attorney’s fees against the bank given the bank’s history in the case of
disobeying court orders.
ATTORNEY’S FEES /
ARBITRATION
Carvajal v. Banc of Am. Inv. Serv., 2013 Fla.
App. LEXIS 12009 (Fla. 3d DCA
July 3, 2013) explained that the Florida Arbitration Code confers on parties a
statutory right to have a court determine entitlement to attorney’s fees. [Note that the Revised Florida Arbitration
Code changes that.] “In finding that the
parties agreed to submit the issue of attorney’s fees to the arbitrator, the
trial court relied on Carvajal’s request for attorney’s fees in his initial
arbitration statement of claim. However, requests for attorney’s fees in arbitration
pleadings are not sufficient evidence of an express waiver.”
Publix Supermarkets v. Santos, --- So. 3d --- (Fla. 3d DCA July 31, 2013) quashed an order
that granted discovery regarding falls at all stores throughout the state for
the last three years, reasoning that although overbreadth is generally
insufficient to warrant certiorari review, it is appropriate where the discovery
grants “carte blanche” to irrelevant discovery.
DEFAULT JUDGMENTS
Peterson
v. Lake Surprise II Condo. Assoc., 2013 Fla. App. LEXIS 12021 (Fla. 3d DCA July 31, 2013) reversed an order
granting a Fla. R. Civ. P. 1.540(b)(1) motion for relief from the default
judgment, which was based upon the mortgagee’s conscious and deliberate - but
sadly mistaken - decision, made contrary to advice of counsel, that it was not
necessary to answer the complaint. A conscious decision not to comply with the
requirements of the law cannot be "excusable neglect" under the rule
or any other equivalent requirement.
SETTLEMENTS / FAIR
LABOR STANDARDS ACT (FLSA)
Nall
v. Mal-Motels, Inc., 2013 U.S. App. LEXIS 15378 (11th Cir. Fla. July 29, 2013)
reversed an order approving and enforcing a settlement agreement because it was
neither (1) reached under the supervision of the Secretary of Labor, nor (2) was
the district court presented with a proposed settlement which the court
scrutinized for fairness. The circuit
opinion explained that Lynn’s
Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982)
applied equally to a current employee as to a former employee. Lynn's Food recognized Congress'
concern that "there are often great inequalities in bargaining power
between employers and employees." Id.
at 1352. The most cause for concern exists when the plaintiff employee is
still working for the defendant employer. But the court concluded that the rule of Lynn's
Food should also apply to settlements between former employees and
employers.
The agreement here was not made
under the supervision of the Secretary of Labor, so it is valid only if the
district court entered a "stipulated judgment" approving it. Lynn's
Food, 679 F.2d at 1352-54. The court did enter a judgment approving the
settlement, but it was not a stipulated one.
“[I]t takes two (or more) to stipulate, and a judgment to which one side
objects is not a stipulated one.” Here, plaintiff’s
attorney objected to approval, contending that the terms were not fair and
reasonable.
ARBITRATIONS
LJL
33rd St. Assocs. v. Pitcairn Props., 2013 U.S. App. LEXIS 15625 (2d. Cir.
July 31, 2013) reversed a district judge who vacated an arbitrator’s
determination based on his conclusion that the arbitrator committed misconduct
in violation of the Federal Arbitration Act, 9 U.S.C. § 10(a)(3), in excluding certain hearsay evidence
offered by Pitcairn. That statute provides that a reviewing court may vacate an
arbitration award “where the arbitrators were guilty of misconduct in . . .
refusing to hear evidence pertinent and material to the controversy.”
The district court recognized
that the excluded valuations were all hearsay. It noted, however, that in
arbitration proceedings there is no need to comply with strict evidentiary
rules. “While it is indisputably correct
that arbitrators are not bound by the rules of evidence and may consider
hearsay, it does not follow that arbitrators are prohibited from excluding
hearsay evidence, especially when (a) the evidence could be presented without
reliance on hearsay and (b) its hearsay nature is unfairly prejudicial to the
adversary. As to Pitcairn’s four exhibits, both conditions applied. So far as
appears, there was no good reason for Pitcairn to rely on hearsay. It could
have presented this evidence, unencumbered by the hearsay objection, merely by
calling the makers of the exhibits — thus providing LJL with the opportunity to
cross-examine these witnesses in an effort to undermine the probative value of
the exhibits.”
Similarly, in Doral Financial
v. García-Vélez, the losing party sought before the
First Circuit to vacate the resulting arbitration award in the latter matter
for “misconduct in refusing to hear evidence pertinent and material to the
controversy” under §10(a)(3) of the Federal Arbitration Act. The First
Circuit Court of Appeals rejected that challenge based on the argument that the
arbitration tribunal engaged in misconduct by denying the issuance of
pre-hearing and hearing subpoenas.
"Every failure of an
arbitrator to hear relevant evidence does not constitute misconduct requiring
vacatur of an arbitrator's award. … Vacatur is appropriate only when the
exclusion of relevant evidence so affects the rights of a party that it may be
said that he was deprived of a fair hearing."
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