Thursday, January 1, 2015

Happy and Prosperous New Year

New year resolution--to bring back my blog.

Bloomgarden v. Mandel rejected three arguments for appellate jurisdiction of an order denying a motion to cancel a charging lien for attorney’s fee in a professional malpractice action: (1) that the order on appeal was a final order; (2) that the order granted immediate possession of money; and (3) that the order was subject to certiorari review.

Morlock v. Nationstar Mortgage, LLC, reversed the entry of a judicial default, finding that the trial court abused its discretion by denying defendant’s motion to vacate the final default judgment of foreclosure and by vacating the previously-entered order setting aside the judicial default, where defendant has filed his answer and affirmative defenses prior to the default.

Lerner v. Halegua reversed the imposition of sanctions for litigation misconduct based on the erroneous admission of photographs, as they had not been properly authenticated under F.S. §90.901.

Gables Ins. Recovery, Inc. v. Progressive Express Ins. Co. dismissed a second-tier certiorari application, stating that while it may disagree the county court’s determination that a third party was indispensable to the dispute between the two parties, it could not find that the circuit court did not grant due process or apply the correct law (that the petitioner had an adequate remedy on appeal).  Hopefully, the county judge will revisit the issue.

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.

Thursday, August 8, 2013

New Chief Judge-Elect; New Opinions


Congratulations to Judge Suarez on his election to chief judge-elect!  Coincidentally, the two opinions below were both authored by him.


Constr. Sys. of Am. v. Travelers Cas. & Sur. Co. of Am., 2013 Fla. App. LEXIS 12329 (Fla.  3d DCA August 7, 2013) involved a petition for certiorari in a seven-year-old suit where counsel inadvertently received privileged documents. A motion to compel return of the documents and a motion to disqualify the law firm were referred to a special magistrate.
The special magistrate issued a report and recommendation finding the documents constituted fact work product. However, he concluded the privilege had been waived and recommended denial of both motions. The trial court rejected the recommendation and granted the motions, concluding that no waiver had occurred and the possibility counsel had gained an unfair informational advantage from the disclosure required disqualification.
The opinion reviews the five-factor analysis established in prior cases: (1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosures; and (5) whether the overriding interests of justice would be served by relieving a party of its error.
Upon reviewing the magistrate’s report and the trial court’s order on the motion to compel, the trial court did not exceed its authority by accepting the facts as found by the magistrate but correctly determining the magistrate misconceived the legal effect of the evidence. Therefore, order compelling return of the documents was left unscathed, but the order disqualifying counsel was quashed because the trial court made extensive findings and credibility determinations based on testimony presented to the magistrate. “This was error. Upon determining the privilege was not waived, the trial court should have remanded the matter to the magistrate for further findings.”


G.E. v. Chuly Int'l, 2013 Fla. App. LEXIS 12334 (Fla.  3d DCA August 7, 2013) reversed an order denying GE’s motion for pre-judgment writ of attachment against Chuly’s property.  GE had sued Millennium and a guarantor, but while the action was pending, the guarantor gave a $1.74 million loan to Chuly, a company owned by the guarantor’s then girlfriend.  This loan was subsequently forgiven.  When GE discovered this, it filed a verified motion for a prejudgment writ of attachment against Chuly for the amount of the Chuly loan and was willing to post a bond in excess of the amount it sought from Chuly. After an evidentiary hearing, the circuit court summarily denied GE's motion for prejudgment writ of attachment or garnishment.
In an action for relief against an allegedly fraudulent transfer sought pursuant to Chapter 726, Florida Statutes, a creditor may seek an attachment against the transferred asset. § 726.108(1)(b), Fla. Stat. (2013). Because the determination of actual fraudulent intent can be difficult, courts look to certain “badges of fraud” to determine whether the transfer was made with the intent to defraud creditors. Those “badges of fraud” are set forth in section 726.105, Florida Statutes (2013).
“At the hearing on GE’s motion for garnishment or attachment, GE presented competent, substantial evidence to support issuance of the writ. GE was not required at that time to prove by a preponderance of the evidence that the loan forgiveness was, actually, a fraudulent transfer.  GE merely had to raise a rebuttable presumption of fraudulent intent by asserting the existence of certain badges of fraud, thereby creating a prima facie case for fraudulent transfer to be determined later in the litigation between the parties. GE's complaint clearly alleges several of these badges of fraud, and adequately stated a cause of action for fraudulent transfer.”
The record revealed that the transfer was made to an insider without adequate consideration; the transfer was concealed and it was made shortly before or shortly after a substantial debt was incurred. Chuly did not present sufficient evidence to rebut the initial presumption of fraudulent transfer. Further, GE asserted it would provide a bond in the amount of $3,200,000.00, more than twice the amount of the debt sought against Chuly. See § 76.12, Fla. Stat. (2013).