JUDGE CORTIÑAS RESIGNS
Effective August 1,
2013, to join Gunster. The article below
quotes me as bemoaning the lack of compensation of judges. This is the fourth judge from our court to
leave the Third District before mandatory retirement, not to mention all the
judges who have left the circuit bench.
INTERNATIONAL
ARBITRATION
The Daily Business Review also
published my article on the International Centre for Settlement of Investment
Disputes (ICSID) on May 28, 2013, but you might have missed it as you were too
busy reading my blog, which I updated the same day.
DEFAULT
Motors,
Pumps & Accessories, Inc. v. Miami Medley Bus. & Indus., LLC, 2013 Fla.
App. LEXIS 8476 (Fla. 3d DCA May 29, 2013) a divided court reversed a
default and a default judgment entered after the client and his attorney failed
to attend a mediation or a motion for sanctions. New counsel claimed that the client was never
advised of the mediation or the default.
Additionally, it alleged the judgment was for an unliquidated sum and
was entered without first conducting an evidentiary hearing. The court relied on Kozel
v. Ostendorf, 629 So. 2d 817 (Fla. 1993), stating that the motion
granting sanctions did not discuss any of the Kozel factors.
PROCEEDINGS
SUPPLEMENTARY
Estrada
v. Sorrento Townhomes, LLC, 2013 Fla. App. LEXIS 8461 (Fla. 3d DCA May 29,
2013) reversed an order denying plaintiff’s motion to commence proceedings
supplementary. The plaintiff had pled
all the requirements: (1) that the party is the holder of an unsatisfied
judgment; (2) identifies the issuing court and case number; (3) states the
unsatisfied amount of the judgment; and (4) confirms that execution is valid
and outstanding. See F.S. § 56.29(1). The court rejected the argument that a
magistrate must be appointed to conduct a preliminary evidentiary hearing on
the merits of the movant’s claim before it authorizes the commencement of the
proceedings supplementary. “Such a procedure is as unworkable as it is
unsupported by law.”
CERTIORARI / MEDICAL
EXAMINATIONS
JA&M
Dev. Corp. v. Perez, 2013 Fla. App. LEXIS 8483 (Fla. 3d DCA May 29, 2013)
quashed an order denying a motion to compel a neurological examination relying
on Gomez
v. Rendon, 2013 Fla. App. LEXIS 5365 (Fla. Dist. Ct. App. 3d Dist. Apr. 3,
2013) (granting certiorari where the trial court denied a second medical
examination by defendant’s doctor).
Commentary: Why do we still use IMEs, which stands for
Independent Medical Examinations? When I
was a trial judge, there was nothing “independent” about doctors conducting
examinations on behalf of defense firms or insurance companies. The word “independent” does not appear
anywhere in Florida Rule of Civil Procedure 1.360.
ATTORNEY’S FEES /
“ALTERNATIVE FEE RECOVERY CLAUSES”
First
Baptist Church of Cape Coral v. Compass Constr., 2013 Fla. LEXIS 1108 (Fla.
May 30, 2013) explained that the use of an alternative fee recovery clauses
were approved in See Kaufman v.
MacDonald, 557 So. 2d 572,
573 (Fla. 1990). “The reasoning we used to uphold alternative
fee recovery clauses with contingency fee alternatives in Kaufman, Moxley, and Wasser applies to alternative fee
recovery clauses in general, regardless of the other basis for payment. Once a
fee-shifting statute or contract triggers a court-awarded fee, the trial court
is constrained by Rowe
and its progeny in setting a fee that must be reasonable. This alleviates any
concern that enforcing an alternative fee recovery clause will result in the
nonprevailing party paying an unreasonable fee.”
Dissent: In a low-key dissent, Justice
Lewis wrote: “Today the majority surprisingly and, in my view, incorrectly
endorses a universal implementation of alternative attorney fee recovery
clauses with an astonishing disregard for its simultaneous evisceration of the
well-established distinction between statutorily authorized attorney fee awards
and attorney fees assessed as damages under the concept of indemnity. The
majority additionally disregards decades of controlling precedent simply
because it is unfavorable to its holding and approves awards of attorney fees
not actually incurred, an award of money readily and clearly in violation of
due process when assessed as indemnification.”
FORUM SELECTION
CLAUSE
Early
Auction Co. v. Koelzer, 2013 Fla. App. LEXIS 8467 (Fla. 4th DCA May 29, 2013)
enforced a forum selection clause in a suit by a Florida resident against an
auction house on a purchase made by telephonic bid. “The plaintiff, as a bidder in the
auction, is held to the published terms of the auction regardless of whether he
actually read them. Before the auction, the plaintiff received a catalog
setting forth the Terms and Conditions of Sale at Auction, including a forum
selection clause.”
CONFIDENTIAL RECORDS
Rocket
Group, LLC v. Jatib, 2013 Fla. App. LEXIS 8469 (Fla. 4th DCA May 29, 2013)
quashed an order that refused to allow the filing of documents under seal where
the parties agreed that they included confidential materials. Although confidential business documents are
not specifically included in Fla. R. Jud. Admin. 2.420(c), any court record may
be determined to be confidential if doing so is necessary to “avoid substantial
injury to a party by disclosure” or to “comply with established public policy.”
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