Friday, December 27, 2013



The Third District, like UPS and FEDEX, was delayed until after Christmas to publish their opinions--until Thursday the 26th, but no one is complaining about the Third.


Bull Motors, LLC v. Borders, 2013 Fla. App. LEXIS 20336 (Fla. 3d DCA Dec. 26, 2013) affirmed an award of $62,000.00 in attorney’s fees and costs in a consumer arbitration case in which Borders was awarded $5,626.00.  The arbitrator found that Bull Motors dba Maroone had violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and that Borders was the prevailing party, a proper finding as Maroone did not assert any affirmative claims. “There is no express requirement of proportionality between the amount of the FDUTPA judgment and the attorney’s fees and costs incurred in obtaining that judgment.
“Maroone’s second argument is also unpersuasive. Maroone’s offers of judgment addressed Ms. Borders’ claim for equitable relief as well as her claims for damages. The offer of judgment statute, section 768.79, Florida Statutes (2007), does not apply to cases that, as here, involve a general offer seeking release of all claims in the case, both equitable and monetary.” 


Chase Fin. Servs., LLC v. Edelsberg, 2013 Fla. App. LEXIS 20337 (Fla. 3d DCA Dec. 26, 2013) reversed an order setting aside a foreclosure sale despite factual findings by the trial court in support of its decision.  The court reviewed the objections raised by the owner and the transcript of the hearing and determined that the first one was proved to be untrue. The second objection amounted to no more than a failure to act diligently.


Fed. Contr., Inc. v. Bimini Shipping, LLC, 2013 Fla. App. LEXIS 19975 (Fla. 3d DCA Dec. 18, 2013) reversed an order dismissing a complaint to compel arbitration because the suit was barred by the one-year statute of limitations for such actions provided in the Carriage of Goods by Sea Act, 46 U.S.C. app. § 1303 ("COGSA"), even though appellant had argued that the limitations period defense had to be decided by an arbitrator under the broad arbitration clause.  The issue of timeliness should have been decided by the arbitrator.

Sunday, December 8, 2013

He's Back!

The blogs are back.  After a long absence, and many requests, I have decided to bring this blog back to life.  I don't know whether to apologize for the absence of postings or for the postings. Anyway, here they go:

DISCOVERY / SANCTIONS – When enough is not enough

vacating a final default judgment and remanding for an evidentiary hearing, explaining that while the record certainly established a persistent pattern of foot-dragging and failure to comply with court orders, the trial court still abused its discretion in striking Toll's pleadings and granting a default judgment against him in the absence of compliance with the requisite procedures outlined in Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004) and Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)  to justify the extreme sanction imposed. The trial court failed to hold an evidentiary hearing and failed to make the necessary findings under Kozel, rendering it impossible to determine whether the Defendants' collective dilatory conduct was personally attributable to Toll, to another defendant, or to Toll's counsel.  “If, on remand, the trial court determines that dismissal is appropriate, the trial court shall include in its written order findings of fact with respect to each factor, and individualized findings with regard to the conduct of each of the sanctioned parties and their counsel.”

Shepherd, C.J., dissented:  “The majority opinion portrays one reading of the facts of this case. The detailed and thorough eleven-page order rendered by the trial court portrays another.”  Ouch.

ZONING – The Tipsy Coachman Strikes Again

affirming an order that dismissed a case for lack of standing in the middle of trial, but not for that reason.  Instead the court affirmed the dismissal on a ground that had never been raised at the trial level nor in the briefs:  separation of powers.  I am quoting from the dissent by Lagoa, J.  Having watched the oral arguments, I don’t recall that doctrine even coming up then.  Not being a zoning expert, I don’t know enough to comment on the merits, but procedurally, it seems an issue should not come up for the first time in an appellate opinion.  [In the interest of full disclosure, my wife was the president of the neighborhood association at the time of trial].

reversing an order dismissing with prejudice a first amended complaint, seeking to impose an equitable lien on construction loan proceeds and for unjust enrichment. As Shepherd, C. J., wrote:  “A casual perusal of the order makes it apparent that the trial court went beyond the four corners of the complaint in reaching its decision.”  Ouch again.


Taylor v. Gutierrez, 2013 Fla. App. LEXIS 19277 (Fla. 3d DCA Dec. 4, 2013) reversed an order denying a motion to dismiss for lack of jurisdiction because the trial court erred in determining that the contacts of a cruise line physician with the State of Florida were sufficient to confer general jurisdiction over him under Florida’s long arm statute, F.S. § 48.193(2), and because federal due process considerations were not met. 

The court based its finding of general jurisdiction on the following contacts between the doctor and the State of Florida, all of which relate to his nine-year career as a shipboard doctor: entering into employment agreements in Florida with Florida-based cruise lines (Carnival Cruise Lines and Royal Caribbean Cruise Lines); attending annual medical conferences in Florida and from time to time making presentations at same; receiving advanced cardiac life support recertification in Florida; vacationing from time to time in Florida; having two bank accounts in Florida; and working aboard a cruise ship that embarked/disembarked at a Florida port one day a week.  

A dissent by Salter, J. reasoned that the trial court was correct because the doctor routinely rendered medical treatment within the State of Florida when the ship docked at the port.