Saturday, February 23, 2013



Laizure v. Avante at Leesburg, Inc., 2013 Fla. LEXIS 249 (Fla. Feb. 14, 2013) held that an arbitration provision in an otherwise valid contract binds the signing party’s estate and heirs in a subsequent wrongful death case.

Marcum LLP v. Potamkin, 2013 Fla. App. LEXIS 2609 (Fla. 3d DCA Feb. 20, 2013) held that where an agreement to arbitrate is assignable if it does not explicitly preclude assignment.  “‘Gatekeeper’ decisions on matters relating to a party’s standing to invoke arbitration are ordinarily within the jurisdiction of the arbitrators, not a court.”  The court added in footnote 3:  “Because the Federal Arbitration Act (FAA) is applicable nationally, it has produced more reported cases than the Florida cases applying the Florida Arbitration Code, Chapter 682, Florida Statutes. The federal cases are considered ‘highly persuasive’ because the Code is modeled after the FAA.”


Raubvogel v. Credit Suisse Sec. (USA) LLC, 2013 Fla. App. LEXIS 2792 (Fla. 4th DCA Feb. 20, 2013) reversed the trial court for denying attorney’s fees finding that appellants had waived their right to fees.  The parties had not stipulated that the arbitration panel would decide fees and merely requesting fees in the parties’ initial arbitration pleadings is not sufficient evidence of express waiver.


Zapata v. Howett Holdings, Inc., 2013 Fla. App. LEXIS 2608 (Fla. 3d DCA Feb. 20, 2013) dismissed as premature an appeal of an order denying a motion to dismiss for lack of personal jurisdiction where on the same day the notice of appeal was filed, the trial court agreed to hold an evidentiary hearing.
Comment:  There is a line of cases that hold that a trial court may not divest an appellate court of jurisdiction by reconsidering its prior ruling, but evidently they don’t apply where the events happen on the same day.

Universal Underwriters Ins. Co. v. Stathopoulos, 2013 Fla. App. LEXIS 2934 (Fla. 2d DCA February 22, 2013) dismissed an appeal of a final judgment that resolved adversely to the insurer a declaratory count that the driver was insured, but left pending counts for breach of contract and bad faith.


Univ. of Miami v. Great Am. Assur. Co., 2013 Fla. App. LEXIS 2600 (Fla. 3d DCA Feb. 20, 2013) ruled that, where both the insured and the additional insured have been sued, and the allegations claim that each is directly negligent for the injuries sustained, a conflict between the insured and the additional named insured exists that would require the insurer to provide separate and independent counsel for each.  Judge Shepherd dissented, stating: “The court today opens a new frontier in insurance litigation of benefit only to the legal profession.”


F.V. Constr. Corp. v. Cmty. Bank of Fla., Inc., 2013 Fla. App. LEXIS 2618 (Fla. 3d DCA Feb. 20, 2013) reversed the dismissal of the complaint because the allegations did not rise to the level of a sham pleading where they were not “inherently false and based on plain or conceded facts clearly known to be false.  A hearing on a motion to strike a pleading as a sham is not a hearing to resolve the merits of the issues, but to determine if there are any genuine issues to be determined.”


Delmonico v. Traynor, 2013 Fla. LEXIS 298 (Fla. Feb. 14, 2013) held that Florida’s absolute privilege was never intended to immunize from liability an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit. A qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.


Duong v. Ziadie, 2013 Fla. App. LEXIS 2788 (Fla. 4th DCA Feb. 20, 2013) affirmed the denial of a new trial where two jurors were interviewed and had failed to disclose prior litigation experience during voir dire in this medical malpractice trial. Juror One had been a party to five lawsuits (a criminal welfare fraud conviction; one was a collection action from 2007; one was an eviction in 1991; and two were paternity and child support actions), and Juror Two had been a party to three lawsuits (all three collection actions).  The court concluded that the trial judge did not abuse its discretion in determining the undisclosed lawsuits were not material. None of the undisclosed lawsuits are similar to a medical malpractice action, or involve personal injury at all, and several of the prior lawsuits were decades before her jury service in this case.  Furthermore, other prospective jurors, one of whom served, had litigation experience, but they were either not questioned about the experience or challenged by the defendant in this case.


Olen Props. Corp. v. Wren, 2013 Fla. App. LEXIS 2823 (Fla. 4th DCA Feb. 20, 2013) involved a case in which the trial court approved a settlement, reserving jurisdiction to enforce the terms of the agreement.  Two years later, Wren filed a motion to enforce the settlement agreement and for sanctions.  A trial court does not have jurisdiction under a settlement agreement to award damages for breach of a settlement agreement’s provisions. The distinction between enforcement of an agreement and breach of that agreement is that by enforcing a contract, it is assumed that the contract has continuing validity and a party is ordered to comply with its terms. A breach of contract action presupposes that the contractual relationship is at an end because of a material breach by one party and damages are sought by the non-breaching party as a substitute for performance.  Merely seeking damages by calling it a sanction does not provide jurisdiction in the trial court.

Wednesday, February 13, 2013

New Opinions


Pino v. Bank of N.Y., 2013 Fla. LEXIS 205 (Fla. February 7, 2013) restated the established rule that the plaintiff’s right unilaterally to take a nonsuit or voluntary dismissal is almost absolute.  See Ramirez, 2-20 Florida Civil Procedure § 20-1.  Here, the court held that when a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff's voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from undoing the improperly obtained relief. But where the plaintiff does not obtain affirmative relief before seeking the dismissal, measures other than reinstating the dismissed action exist to protect against a plaintiff's abuse of the judicial process. Thus, a notice of voluntary dismissal does not divest a trial court of jurisdiction to award sanctions under Fla. Stat. §  57.105, even after a voluntary dismissal is taken.


Ross v. Wells Fargo Bank, 2013 Fla. App. LEXIS 2143 (Fla. 3d DCA Feb. 13, 2013) is another unfortunate example of misusing the term “subject matter jurisdiction,” and then using that to justify allowing a defendant to raise the issue for the first time on appeal.  Granted, when the trial court truly lacks jurisdiction over the subject matter, that issue can be raised at any time.  But here, the court simply may have lacked jurisdiction over the case because it had been previously dismissed for lack of prosecution. 
Commentary:  I tried to shed some light on this matter when I was still on the court in Godfrey v. Reliance Wholesale, Inc., 68 So. 3d 930, 932 (Fla. 3d DCA 2011).  To say that the judge lacked subject matter jurisdiction is the same as saying that circuit judges don’t have jurisdiction over the class of cases to which this case belongs, i.e., foreclosure actions.  That issue was decided almost ninety years ago in Malone v. Meres, 109 So. 677 (Fla.  1926), a case also involving a foreclosure.  See also Cunningham v. Std. Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994).


reversed an order striking plaintiff’s amended complaint, based on its finding that a prior order on a motion to dismiss was a final judgment which precluded the filing of an amended complaint.  The prior order was entitled “Order on Defendant’s Motion to  Dismiss  Plaintiff’s  Complaint,” and read as follows:

The motion is granted.  It appears plaintiff failed to exhaust administrative  remedies,  allegations  in  the  complaint  go beyond those  arguably  presented  in  the  administrative charge, and plaintiff’s allegations are time barred.

The order did not state whether the dismissal was with or without prejudice; did not grant the plaintiff leave to amend; and did not actually dismiss the complaint. 

The court explained that by merely granting the motion to dismiss, the order was not final.  There was no language in the prior order clearly indicating that judicial labor was at an end and there could be no possibility of amendment.


Info. Sys. Assocs. v. Phuture World, Inc., 2013 Fla. App. LEXIS 2265 (Fla. 4th DCA Feb. 13, 2013) quashed an order revoking an attorney’s admission pro haec vice, stating that an alleged conflict of interest asserted by someone not a party to the attorney/client relationship is not a ground for revoking the pro haec vice status of a foreign attorney; and the attorney did not provide representation beyond the order authorizing his pro haec vice status.


Alexopoulos v. Gordon Hargrove & James, P.A., 2013 Fla. App. LEXIS 1843 (Fla. 4th DCA February 6, 2013) reversed a summary judgment based solely on its finding that plaintiff did not have standing to bring her legal malpractice claims. The issue of standing was not sufficiently raised in the motion for summary judgment, and was never raised as an affirmative defense.