Florida Rules Decisions

Chemrock Corporation v. Tampa Electric Company d/b/a TECO Peoples Gas Company (Fla. 1st DCA Nov. 17, 2009)

2010-01-23T16:05:06Z

Excellent post by Palm Beach Attorney Christopher Hopkins about a conflict that has developed between the 1st DCA and the 2nd and 3rd DCAs with regard to the interpretation of Rule 1.420(e), Fla. R. Civ. Pro. - Failure to Prosecute:

In 2007-2008, the Second and Third Districts held that any filing during the sixty day grace period is sufficient. The First District, in Chemrock Corporation v. Tampa Electric Company d/b/a TECO Peoples Gas Company, holds otherwise (Hawkes, Clark and Wetherell).

In Chemrock, the plaintiff was inactive for 10 months, was served with notice, and during the 60-day grace period filed a “motion in opposition” (which sounded, from the Opinion, like an attempt at showing good cause for inactivity but it was apparently not called up for hearing). Trial court dismissed and appellate court upheld.

Wells Fargo Bank v. Conaway, No. 09-000145 (Fla. 6th Cir. Jan. 11, 2010)

2010-01-22T03:05:39Z

In another mortgage foreclosure case, which was successfully argued by your author, the Bank obtained final summary judgment without notifying the defendant, or their counsel, of the summary judgment hearing. The defendant filed an emergency motion to set aside final judgment. The court found that the defendant had an inalienable due process right to notice of the summary judgment hearing pursuant to State Farm Fire and Casualty Co. v. Lezcano, 34 Fla. L. Wkly. D2105a (Fla. 2d DCA Oct. 14, 2009) and Greene v. Siegle, 745 So.2d 411 (Fla. 4th DCA 1999) and overturned the judgment pursuant to the court's authority under Rule 1.540(b), Fla. R. Civ. Pro.

Wells Fargo Bank v. Conaway, No. 09-000145 (Fla. 6th Cir. Jan. 11, 2010).

Randy Cohen v. Sonia Aponte, 35 Fla. L. Wkly D137c (Fla. 4th DCA Jan. 6, 2010)

2010-01-17T01:21:46Z

In this auto accident case, the defendant moved to dismiss the complaint for insufficient substitute service of process because the affidavit of compliance was not filed on or before the return day of process (20 days after the complaint was filed with the Department of State) as required by Florida’s substitute service of process statute, Section 48.161(1). The appellate court reversed because “[p]erfection of substituted service requires strict compliance with the statutory prerequisites because such service is an exception to personal service.”

Randy Cohen v. Sonia Aponte, 35 Fla. L. Wkly D137c (Fla. 4^th DCA Jan. 6, 2010)

Toward a More “Convenient” Standard of Review in Cases Involving Forum Non Conveniens Issues

2010-01-10T14:53:23Z

The January 2010 edition of the Florida Bar Journal discusses the forum non conveniens doctrine in an article by attorneys Alina Alonso and David Luck. The article provides an excellent explanation of Rule 1.061(a), Fla. R. Civ. Pro., and how Florida came to adopt the Federal analysis of forum non conveniens issues. As the article explains, Federal Courts have adopted a four prong analysis:

1) At the outset, does an available and adequate alternative forum exist that possesses jurisdiction over the parties and may resolve the dispute? 2) Do the private interests of the litigants favor one forum or another? 3) Do the public interests associated with each forum favor one over the other? And 4) If the alternative forum is more appropriate and convenient, may the plaintiff reinstate the claim there?

This test has been adopted by the Florida Supreme Court in Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So. 2d 86 (Fla. 1996) and codified in Rule 1.061(a).

Hess Corp. v. Denise Grillasca & Kelly Mayzik, 34 Fla. L. Wkly D2629b (Fla. 2d DCA Dec. 23, 2009)

2010-01-05T18:56:16Z

In this consumer class action case, the trial court certified a class against gas stations for failing to provide notice of a temporary hold on customers’ bank accounts after a debit transaction. The appellate court reversed because, under Rule 1.220(b), there were individualized differences among the members of the putative class. The differences included the fact that some customers 1) received notice of the hold and/or 2) incurred damages in the form of overdraft charges, while others did not.

Hess Corp. v. Denise Grillasca & Kelly Mayzik, 34 Fla. L. Wkly D2629b (Fla. 2d DCA Dec. 23, 2009)

News for the New Year

2010-01-05T03:13:34Z

I am pleased to announce Version 3 of FloridaCivPro.com. It will allow you to contribute case notes that will appear alongside posts from the Florida Rules Reporter and on the FloridaCivPro.com and FloridaRulesofAppellateProcedure.com rule pages. The updated site also includes tools for integration with twitter and other social media applications.

Version 3.0

In 2009 we had over 60,000 unique visits (180,000+ pageviews), coming from all across the country.

As of today, we have moved most of the website, the Rules and the Reporter to the Movable Type Publishing Platform. This makes the website look better and the site easier to manage. It also permits us to open up the Florida Civil Procedure Rules and Florida Appellate Procedure Rules to any lawyer with a blog through a feature called “Trackbacks.”

More importantly, it means we want your help. Trackbacks were developed in the blogging community to allow different websites to carry on a discussion between multiple blogs; we are using this feature to allow you to participate in a conversation about the rules. Trackbacks allow you to write about a rule and have your content posted as a “Case Citation” under the relevant rule. This works because every Civil and Appellate Procedure Rule has a “Trackback URL”, which you can find at the bottom of every rule page. You can use this Trackback URL to notify us of your post and automatically link a summary of your post to each rule. To learn more about trackbacks please see this page, or this one, and email Brian.

If you have a blog (which you must to participate) this will help drive traffic to your blog. If you help update this blog, you will have a link to your blog from the leading Florida Civil and Appellate Procedure web resource. Of course, in the current setup, Jason and I maintain complete editorial control over any such posts to maintain the sites accuracy and quality.

In addition to driving traffic to your website, the more participation we have, the more comprehensive this website will be. Right now there is only so much Jason and I can do, plus many of the rules are rarely at issue on appeal.

If you do not have a blog, we are still asking you to help build this site by submitting trial court orders that provide insight into unique aspects of the rules. We are particularly interested in issues that rarely reach the appellate level, as in this recent post on capacity to sue. Opinons can be submitted via email to Jason or Brian.

Social Media

We now have a twitter feed so that you can follow updates to the Florida Rules Reporter on Twitter and "Share This" buttons on every page, making it easier to send a relevant case or rule to a colleague or post a page to your personal blog or twitter account.

The Future

I hope that you will help us continue to improve this website. We are also looking for opportunities to expand. Are you a tech savy criminal lawyer that wants to cover the Criminal Procedure Rules? What about Family Law? The Federal Rules? In a short time, the system we have set up through this website has proven to be a robust research tool, and it grows with every case we add. I am certain there is room for improvement and expansion and, to do that, we need your help.

Wachovia Mortgage v. Matacchiero, No. 08-16936 (Fla. 6th Cir. Ct. Dec. 15, 2009)

2009-12-30T01:10:22Z

In this Mortgage Foreclosure case, the Defendant/Homeowner prevailed on a Motion to Dismiss based on Rule 1.120(a), Fla. R. Civ. Pro., arguing that the Plaintiff had not adequately plead that it had the capacity to sue.

"'Capacity to sue' is an absence or legal disability which would deprive a party of the right to come into court." Here, the caption of the Complaint lists the Plaintiff as "Wachovia Mortgage, FSB, F.K.A., World Savings Bank." No further identification of the Plaintiff or explanation of the Plaintiff's capacity to sue is set forth in the Complaint. After the Defendant moved to dismiss the case, the Plaintiff attempted to address the defect in a Response to Defendant's Motion to Dismiss. The Court found that the Plaintiff's response was inadequate as the Complaint itself was still defective and that, by failing to sufficiently identify itself in the Complaint, the Plaintiff effectively denied the Defendant the right to address the Plaintiff's identity in a responsive pleading.

Thanks to Attorney Matt Weidner, who successfully argued the Motion to Dismiss in this case, for submitting this Order for publication. Attorney Weidner's analysis of the impact on foreclosure cases can be found here. If you have a trial court order that addresses a unique procedural issue, we would love to publish it on this website.

Wachovia Mortgage v. Matacchiero, No. 08-16936 (Fla. 6th Cir. Ct. Dec. 15, 2009).

Nine Island Ave. Condo. Assoc., Inc. v. Siegel, 34 Fla. L. Wkly D2501a (3d DCA Dec. 2, 2009)

2009-12-21T21:20:52Z

In this homeowner association dispute, the association obtained a stay from arbitration and petitioned the circuit court for a temporary injunction seeking access to a unit to make repairs. The court denied the petition because the association had not established an “emergency” basis for relief. The unit owner filed a motion for attorneys’ fees claiming that he was the prevailing party in the action. The trial court granted the motion, but the appellate court reversed because the order was merely interlocutory and “did not end the litigation between the parties.”

Nine Island Avenue Condo. Assoc., Inc. v. Siegel, 34 Fla. L. Weekly D2501a (3d DCA Dec. 2, 2009)

Lincks v. Keenan, 34 Fla. L. Wkly D2346 (Fla. 4th DCA Nov. 25, 2009)

2009-12-14T23:47:22Z

Entry of default constitutes an admission of only the well-pleaded factual allegations in the complaint and a complaint that does not state a cause of action cannot form the basis of a final judgment. As such, the Fourth DCA upheld trial court's decision granting a defendant's Motion to Dismiss for failure to state a cause of action where the defendant already had default entered against it in the case. Citing Days Inns Acquisition Corp. v. Hutchinson, 707 So.2d 747 (Fla. 4th DCA 1997) and GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975).

Lincks v. Keenan, 34 Fla. L. Wkly D2346 (Fla. 4th DCA Nov. 25, 2009)

Judgment and Decrees 2010 Interest Rates

2009-12-13T21:48:33Z

For 2010, Florida Judgments will collect interest at 6% per year or .0001644 per day. The lowest rate since 2003.

Florida Department of Financial Services - Statutory Interest Rates

Williamson v. Bradford, 34 Fla. L. Wkly D2472a (Fla. 1st DCA Nov. 30, 1990)

2009-12-09T22:41:41Z

In this case, the court entered a partial summary judgment on a counterclaim for monetary damages while the plaintiff’s affirmative claim was still pending. By including the phrase “for which let execution issue” in the judgment, the trial court attempted to permit the defendant to begin collection proceedings. The appellate court held that this was error as a matter of law and reversed, citing Millennium Group I, L.L.C. v. Attorney's Title Ins. Fund, Inc., 847 So. 2d 1115 (Fla. 1st DCA 2003).

Williamson v. Bradford, 34 Fla. L. Wkly D2472a (Fla. 1^st DCA Nov. 30, 1990)

Roth v. Bank of America, 34 Fla. L. Wkly D2383 (Fla. 2d DCA Nov. 18, 2008)

2009-12-03T03:21:11Z

In another foreclosure case gone wrong, which is becoming a trend in the appellate decisions of late, the Second DCA overturns the trial court's entry of Summary Judgment where the hearing transcript "does not reflect that the trial court considred the affidavit of [a third party] that called into question the validity of the note and mortgage."

The decision does not address the trial court's order, but, presumably, the Summmary Judgment Order also did not address the affidavit.

Roth v. Bank of America, 34 Fla. L. Wkly D2383 (Fla. 2d DCA Nov. 18, 2008)

ST. JOHNS INVESTMENT MANAGEMENT CO. v. DAVID T. ALBANEZE, 34 Fla. L. Weekly D2354a (1st DCA Nov. 13, 2009)

2009-11-24T18:36:14Z

In this non-compete case, the trial court denied a motion for temporary injunction on the basis that the restrictive covenant did not survive the expiration of the employment agreement because the post-agreement employment relationship "was not formalized in a written document."

The appellate court reversed, holding that the movant had established a substantial likelihood of success on the merits based upon a provision in the agreement that contemplated employment "in the absence of a written agreement."

ST. JOHNS INVESTMENT MANAGEMENT CO. v. DAVID T. ALBANEZE, 34 Fla. L. Weekly D2354a (1st DCA Nov. 13, 2009)

Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Assoc., Inc. (Fla. 4th DCA Nov. 18, 2009)

2009-11-18T22:17:32Z

In this case, a property owner sued a homeowner's association for injunctive and declaratory relief seeking access to a landlocked lot of land, as well as for damages for an alleged tortious interference of the owner's attempt to sell the lot. The association successfully defended the case, and the trial court awarded attorneys' fees based upon offers of judgment covering "all claims" - including non-economic claims - in the litigation.

The appellate court reversed, holding that the damages claim did not convert the case into "an action for damages" that would permit an attorneys' fee award under s. 768.79:

each offer of settlement filed was general, such that it applied to all claims contained within the complaint which, of course, included both a claim for damages and non-economic claims. Strict construction of the statute leads to the conclusion that when an action seeks non-monetary relief, such as a pure declaration of rights or injunctive relief, then the fact that it also seeks damages does not bring it within the offer of judgment statute.

Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Assoc., Inc. (Fla. 4th DCA Nov. 18, 2009)

Quality Roof Svc's v. Intervest National Bank, 34 Fla. L. Wkly. D2205 (Fla. 4th DCA October 28, 2009)

2009-11-13T03:58:42Z

In this foreclosure action, Quality Roof Services (QRS) was named as a co-defendant based on a properly recorded construction lien. QRS timely answered the Complaint, but did not assert any affirmative defenses or raise any cross-claims. The property owner consented to the foreclosure and the case was set for a final summary judgment hearing. Without filing any affidavits or presenting any record evidence to challenge summary judgment, QRS moved, two weeks prior to the summary judgment hearing, to amend its answer and assert an affirmative defense of unclean hands.

The Fourth DCA held that the amendment should be allowed, reasoning that (1) Fla. R. Civ. Pro. 1.190(e) requires the court to allow amendments when necessary to further justice; (2) the court should be especially liberal in permitting amendments sought at or before summary judgment, citing Thompson v. Bank of New York, 862 So. 2d 768, 770 (Fla. 4th DCA 2003); (3) an amendment should be allowed unless there is substantial prejudice to the non-moving party, the moving party has abused its right to amend, or the amendment would be futile; and, addressing whether the proposed amendment at issue would be futile, (4) an amendment is not futile unless it fails to state a cause of action, citing Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).

Quality Roof Svc's v. Intervest National Bank, 34 Fla. L. Wkly. D2205 (Fla. 4th DCA October 28, 2009)