New Opinions

VOLUNTARY DISMISSALS / FORECLOSURES

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.

http://www.floridasupremecourt.org/decisions/2013/sc11-697.pdf

SUBJECT-MATTER JURISDICTION

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).

http://www.3dca.flcourts.org/Opinions/3D11-3007.op.pdf

DISMISSALS

Paulino v. BJ’s Wholesale Club, Inc., 2013 Fla. App. LEXIS 2245 (Fla. 4th DCA Feb. 13, 2013)

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.

http://www.4dca.org/opinions/Feb%202013/02-13-13/4D12-167.op.pdf

ADMISSION PRO HAEC VICE

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.

http://www.4dca.org/opinions/Feb%202013/02-13-13/4D12-3094.op.pdf

STANDING

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.

http://www.4dca.org/opinions/Feb%202013/02-06-13/4D11-4829.op.pdf

New Decisions - The Good, The Bad and The Ugly

ARBITRATIONS

Jackson v. Shakespeare Found., 2013 Fla. LEXIS 125 (Fla. Jan. 31, 2013) held that an action based on fraud is within the scope of the arbitration provision containing the phrase “arising from or relating to.”  The court stated that the phrase is considered a broad arbitration provision because of the addition of the “or relating to” language.  It distinguished Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999), because here there was a clear contractual nexus with, and thus a significant relationship to, the contract because: (1) the fraud claim was inextricably intertwined with both the circumstances that surrounded the transaction from which the contract emanated and the contract itself; and (2) resolution of the fraud claim required the construction and consideration of duties arising under the contract. 

 

In Seifert, which had the same broad arbitration provision, the court concluded that the negligence-type claims at issue did not have a significant relationship to a contract because a contractual nexus did not exist between the claims and the contract. Here, although the fraud claim was based on common law fraud, it was inextricably intertwined with both the circumstances that surrounded the transaction from which the contract emanated and the contract itself. The fraud claim was based on the sellers knowingly misrepresenting facts in the published advertisement.

http://www.floridasupremecourt.org/decisions/2013/sc11-1196.pdf

VACATUR OF ARBITRATION AWARD

Suzlon Energy, A/S v. Ventus De Nicaragua, S.A., 2013 Fla. App. LEXIS 1746 (Fla. 3d DCA Feb. 6, 2013) is another example of the judicial hostility that the Federal Arbitration Act of 1925 was intended to eradicate.  Almost ninety years later, that hostility lives on.  In reversing an order confirming an arbitration award, a divided court concluded that appellee’s general manager did not have authority to initiate the arbitration.  Conspicuously absent from the opinion is any discussion of the basis for vacating an arbitration as limited by the FAA’s 9 U.S.C. §10 to corruption, misconduct, or exceeding authority.  In reviewing the decision, using a de novo standard, the court re-examines an issue that had already been decided adversely to the appellant by the arbitrators.  An excellent dissent by Judge Salter takes the majority to task.

Commentary: This decision should have a chilling effect on using Florida as a venue to resolve international commercial disputes.  When our courts are willing to retry issues already decided by an arbitration panel, without regard to the limited grounds authorized by statute to vacate an arbitration award, we not only undermine predictability, but we increase the cost and delay of arbitration proceedings.

http://www.3dca.flcourts.org/Opinions/3D11-1087.pdf

COMPELLING ARBITRATION

Spring Lake NC, LLC v. Holloway, 2013 Fla. App. LEXIS 1537 (Fla. 2d DCA Feb. 1, 2013) presented another order denying a motion to compel arbitration in a wrongful death case in a nursing-home-type facility.  The court denied arbitration because the decedent had limited reading abilities and could not have understood what she was signing; thus, there was no meeting of the minds.  The court stated: “Our modern economy simply could not function if a ‘meeting of the minds’ required individualized understanding of all aspects of the typical standardized contract that is now signed without any expectation that the terms will actually be negotiated between the parties.”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/February%2001,%202013/2D12-2140.pdf

FORECLOSURES

Barrnunn LLC v. Talmer Bank and Trust, 2013 Fla. App. LEXIS 1611 (Fla. 2d DCA Feb. 1, 2013) reversed a foreclosure for failure to comply with Fla. Stat. § 702.10(1), by which a party may request the court to enter an order to show cause why a final judgment should not be entered.  The court explained that once the defendant files its defenses, that constitutes cause and precludes the entry of a final judgment.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/February%2001,%202013/2D12-446.pdf

VENUE

Suncoast Home Improvements, Inc. v. Robichaud, 2013 Fla. App. LEXIS 1539 (Fla. 2d DCA Feb. 1, 2013) held that the place-of-payment venue rule applied in an action by plaintiff against homeowners.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/February%2001,%202013/2D12-2645.pdf

 

THIRD PARTY COMPLAINT

Fish Tale Sales & Serv. v. Nice, 2013 Fla. App. LEXIS 1463 (Fla. 2d DCA Feb. 1, 2013) quashed an order denying a motion to file a third-party complaint, explaining that unless the defendant is permitted to implead the third parties potentially responsible for the plaintiffs’ injuries, it may be exposed to an inconsistent outcome in any independent action against those parties.

          The court concluded that the motion should have been granted under Florida Rule of Civil Procedure 1.180(a) and courts should liberally allow defendants to assert third-party claims for indemnity, particularly at the beginning of a lawsuit, so as to fulfill the purpose of the rule to bring all interested parties into the same action.

Although the availability of common law indemnity is quite limited, a nonnegligent tortfeasor is entitled to seek indemnity against the manufacturer of a defective product that injures a plaintiff to whom the nonnegligent tortfeasor may be held liable. Similarly, a tortfeasor who shares a common legal liability to a plaintiff with another tortfeasor may seek contribution from the second tortfeasor.  Here the third-party complaint stated a viable claim for indemnity against the third-party defendants. The third-party complaint alleged that defendant was a nonnegligent tortfeasor who may be held strictly liable for a defective product manufactured by the third-party defendants. And the fact that a jury may find defendant to be actively negligent rather than merely passively negligent is irrelevant to whether it should be permitted to plead an indemnity claim against the third-party defendants.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/February%2001,%202013/2D12-2694.pdf

DUTY

Limones v. Sch. Dist. of Lee County, 2013 Fla. App. LEXIS 1821 (Fla. 2d DCA Feb. 6, 2013) held that the school board did not have a duty to maintain, make available or use an automated external defibrillator when plaintiff collapsed on a soccer field.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/Ferbruary%2006,%202013/2D11-5191.pdf

 

New Opinions from the Third and the Supreme Court

ORAL ARGUMENTS AT THE 3d DCA

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:

http://www.3dca.flcourts.org/Archived_Video.shtml

I tried to institute this when I was chief judge.  Better late than never.

SOVEREIGN IMMUNITY

City of Miami v. Guzman, 2013 Fla. App. LEXIS 944 (Fla. 3d DCA Jan. 23, 2013)

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.

http://www.3dca.flcourts.org/Opinions/3D12-0811.pdf

POST-JUDGMENT MOTIONS

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.

http://www.3dca.flcourts.org/Opinions/PDF/3D12-1037.pdf

CLASS ACTIONS

Soper v. Tire Kingdom, Inc., 2013 Fla. LEXIS 89 (Fla. January 24, 2013) quashes, in a per curiam opinion, a decision by Judges Shepherd, Cortiñas 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:

http://ramirezlaw.blogspot.com/2012/06/another-3d-dca-class-action-pinion.html), and yet the Florida Supreme Court denied review.

http://www.floridasupremecourt.org/decisions/2013/sc11-1462.pdf

IN PARI DELICTO

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.”

http://www.floridasupremecourt.org/decisions/2013/sc10-1892.pdf

New Cases

ATTORNEY’S FEES

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. 

http://www.floridasupremecourt.org/decisions/2013/sc11-1371.pdf

ARBITRATION

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

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/January/January%2016,%202013/2D12-1532.pdf

MEDICAL MALPRACTICE

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.

http://www.5dca.org/Opinions/Opin2013/5D11-2513.op.pdf