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].
MOTIONS TO DISMISS
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.
