Saturday, January 26, 2013

New Opinions from the Third and the Supreme Court


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.


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.


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.


Soper v. Tire Kingdom, Inc., 2013 Fla. LEXIS 89 (Fla. January 24, 2013) quashes, in a per curiam opinion, a decision by Judges Shepherd, CortiƱas 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:, and yet the Florida Supreme Court denied review.


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.”

Wednesday, January 16, 2013

New Cases


Diamond Aircraft Indus., Inc. v. Horowitch, 2013 Fla. LEXIS 34 (Fla. Jan. 10, 2013) held that a defendant can recover attorney’s fees under Fla. Stat. § 501.2105 where the plaintiff brought an unfair trade practices claim but the trial court decided that the substantive law of another state governed the claim and the defendant ultimately prevailed on the claim.  A plaintiff cannot invoke the protections of the act by filing an action under its provisions, but then rely on the act’s ultimate inapplicability as a shield against the application of the act’s attorney’s fees provision.  The defendant, however, could only recover fees for the time expended prior to the trial court’s determination than Florida law did not apply.  The court also held that Fla. Stat. § 768.79 did not apply to an action in which a plaintiff sought both damages and equitable relief, and in which the defendant had served a general offer of judgment that sought release of all claims. Furthermore, the court concluded that there was no basis to establish an exception for instances in which the equitable claim lacked serious merit. 


Pulte Home Corporation v. Vermillion Homeowners Association, --- So. 3d --- (Fla. 2d DCA January 16, 2013) reversed an order denying the builder’s motion to compel arbitration of a lawsuit filed by the Homeowners Association alleging certain construction defects, but only to the extent that the Association was suing as a representative of the homeowners, all of whom had agreed to arbitrate their claims.  But the court left open the possibility that the Association could amend its complaint to allege a more limited claim involving property owned by the Association.  The court stated that the Association could not avoid the obligation to arbitrate by alleging its claims in an ambiguous manner.  But the Association should not be compelled to arbitrate a claim that is actually the Association's claim in its own right simply because the complaint lacked detail.  Thus, the court reversed the order denying arbitration but without prejudice for the Association to amend its complaint


Pierrot v. Osceola Mental Health, Inc., 2013 Fla. App. LEXIS 464 (Fla. 5th DCA Jan. 11, 2013) reversed a dismissal for failure to comply with the medical malpractice presuit requirements.  The decedent, a 25-year-old pregnant woman, went to a hospital with complaints of pain. The hospital “Baker Acted” her and transferred her involuntarily to Park Place.  When she arrived, she was in distress, complaining of severe abdominal pain and other symptoms.  Over the next two  days, Park Place’s employees committed various acts and omissions that resulted in her death. The complaint alleged a wrongful death claim for violations of her rights as a patient under the Baker Act, and stated that plaintiff was not seeking damages under Florida’s Medical Malpractice Act.  The claim was  not for medical malpractice, the test for which is whether the claim relies on the application of the medical malpractice standard of care. When a claim relies on a different standard provided by another statute, the claim is not  one for medical malpractice for purposes of the presuit requirements.  Furthermore, Park Place was not a health care provider.

Sunday, January 6, 2013

New Cases in Florida


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.

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.


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.


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


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.


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.