Florida Rules Decisions

Nationwide Mut. Fire Ins. Co. v. Lawrence Pollinger, 35 Fla. L. Wkly D1866d (Fla. 4th DCA Aug. 18, 2010)

2010-08-29T01:56:37Z

In this auto accident case, the defendant insurer hired two law firms: one to defend a claim for personal injury protection (PIP) and another to defend a claim for uninsured motorist benefits (UM). The law firm defending the UM claim served a proposal for settlement appearing to cover all claims. The defendant prevailed on all issues. The trial court declined to award fees. It found the offer ambiguous because there were two law firms involved and it was unclear whether the proposal covered the PIP claim in addition to the UM claim. The Fourth District affirmed, agreeing with the trial court that the situation created a latent ambiguity.

Nationwide Mutual Fire Ins. Co. v. Lawrence Pollinger, 35 Fla. L. Wkly D1866d (Fla. 4th DCA Aug. 18, 2010)

Washington v. Labor Ready, Case No. 1D10-2989 (Fla. 1st DCA Aug. 18, 2010)

2010-08-27T01:17:34Z

"It is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights." Citing Millinger v. Broward County Mental Health Div., 672 So.2d 24, 26 (Fla. 1996). The Court didn't bother to discuss the facts, but did let us know that it issued an order to show cause prior to dismissing the lawsuit. The relevant rule is 9.110, Florida Rules of Appellate Procedure.

Washington v. Labor Ready, Case No. 1D10-2989 (Fla. 1st DCA Aug. 18, 2010)

New Mailing List

2010-08-24T02:50:10Z

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STEPHANIE J. CROWN AND JOHN J. CROWN v. CHASE HOME FINANCE, 35 Fla. L. Weekly D1703d (Fla. 5th DCA July 30, 2010)

2010-08-12T09:41:40Z

In this case, the defendants were sued and initially filed a "bare bones" pro se answer. Months later, the plaintiff served a motion for summary judgment. A week later, and before the hearing, the defendants served an amended answer with affirmative defenses, which the motion for summary judgment did not address. The trial court denied leave to amend and granted summary judgment for the plaintiff. The appellate court reversed, holding that the trial court abused its discretion because "all doubts should be resolved in favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile."

STEPHANIE J. CROWN AND JOHN J. CROWN v. CHASE HOME FINANCE, 35 Fla. L. Weekly D1703d (Fla. 5th DCA July 30, 2010)

Minotty v. Baudo, 35 Fla. L. Wkly D1616 (Fla. 4th DCA July 21, 2010)

2010-08-04T01:03:37Z

In a rather complicated lawsuit featuring Dr. Minotty, the Defendant, being sued in a shareholder derivative action by the company he created, the Florida Eye Institute, and, individually, by three doctors who owned stock in the Florida Eye Institute, for (1) breach of fiduciary duty, (2) securities fraud, (3) common law fraud, (4) illegal interception of communications (see Sec. 934.04, Fla. Stat.), (5) tortuous interference with business relationships, (6) invasion of privacy, and (7) intentional infliction of emotional distress, the Plaintiffs sought to amend their complaint on the eve of trial to include claims for punitive damages.

The trial court denied the motion as untimely except for punitive damages under the interception of communications claim, allowing a punitive damages claim on that count alone because, under the statute, the trial court reasoned, punitive damages were "practically automatic".

Following a jury trial lasting "weeks," judgment was entered against Dr. Minotty in the amount of $2,000,000 to be split between the three doctors and $8,000,000 to the Florida Eye Institute. Dr. Minotty appealed the verdict and the Plaintiffs filed a cross-appeal challenging the trial court's denial of their motion to amend their respective complaints to include claims for punitive damages.

While portions of the jury verdict were overturned, we address the Plaintiffs' motion to amend their complaints to include claims for punitive damages.

The 4th DCA upheld the trial court's decision finding that, pursuant to Rule 1.190(f), Fla. R. Civ. Pro., the Plaintiffs needed to provide at least 20 days notice of their intent to seek punitive damages. Having not provided 20 days notice, the trial court did not abuse its discretion in denying their motion.

Minotty v. Baudo, 35 Fla. L. Wkly D1616 (Fla. 4th DCA July 21, 2010)

Sky Development, Inc. v. Vista View Development, Inc., 35 Fla. L. Wkly D1478 (Fla. 3d DCA July 7, 2010)

2010-07-28T02:00:15Z

In this case of modern day witness tampering, the CFO of Sky Development, Inc. first passed a witness a note during the deposition, for which he was admonished, then, at trial, during a sidebar, sent the same witness two text messages advising him on his testimony. After discovering the text messages, the trial court immediately declared a mistrial. Vista View then moved for dismissal, which the court granted, with prejudice.

The 3d DCA upheld the dismissal, finding that the CFO's conduct was a "blatant showing of fraud, pretense, collusion, or other similar wrongdoing." See Laurore v. Miami Auto Retail, Inc., 16 So.2d 862, 864 (Fla. 3d DCA 2009).

Sky Development, Inc. v. Vista View Development, Inc., 35 Fla. L. Wkly D1478 (Fla. 3d DCA July 7, 2010)

IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE AND THE FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS

2010-07-18T16:29:41Z

The Florida Supreme Court has issued an opinion updating the rules governing mediation procedures in the state's appellate courts.

Accordingly, the Florida Rules of Appellate Procedure have been updated to include the following new rules:

The opinion also makes related amendments to the Rules for Certified and Court Appointed Mediators.

IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE AND THE FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS, 35 Fla. L. Wkly. S405 (Fla. Sup. Ct. July 1, 2010)

TARPON SPRINGS HOSPITAL FOUNDATION, INC., v. SHIRLEY RETH, 35 Fla. L. Weekly D1532a (Fla. 2d DCA July 9, 2010)

2010-07-17T18:15:42Z

In this medical negligence action ending in a defense verdict, the trial court awarded a new trial because a juror failed to disclose "material litigation history" during voir dire. The appellate court found that the "the trial court did not abuse its discretion in granting a new trial" as a result of the omission by the juror.

TARPON SPRINGS HOSPITAL FOUNDATION, INC., v. SHIRLEY RETH, 35 Fla. L. Weekly D1532a (Fla. 2d DCA July 9, 2010)

IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE

2010-07-05T19:36:21Z

On June 24, 2010, the Florida Supreme Court issued an opinion updating Rules 9.300, 9.400, and 9.410, Florida Rules of Appellate Procedure, in recognition that the procedure for filing a 57.105 Motion before the appellate courts was ambiguous. The Court noted, however, that the new procedure is to be followed for any motion for sanctions.

The new Rule 9.410 provides that a motion for sanctions must be served on the opposing party before the deadline for submitting a responsive paper or brief. If no responsive paper or brief is to be served to the challenged paper, then the deadline is 15 days from the date the challenged paper is served. As per 57.105, the motion for sanctions should be filed with the court 21 days after being served on the opposing party.

The rules have been updated to reflect the amendments.

IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE, Case No. SC09-2602 (Fla. June 24, 2010)

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2010-06-27T21:58:04Z

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COOPER v. TOWN OF JUPITER et al., 35 Fla. L. Weekly D1335a (Fla. 4th DCA June 16, 2010)

2010-06-25T15:11:29Z

In this pro se prisoner case, the Fourth District reversed the trial court for the “drastic and unwarranted measure” of dismissing an amended complaint with prejudice because the plaintiff did not first obtain leave to file it. The appellate court remanded for the trial court to consider the necessary factors governing amendments, including “whether such amendment would prejudice the opposing parties, whether the privilege of amendment has been abused, and whether amendment would be futile.”

COOPER v. TOWN OF JUPITER et al., 35 Fla. L. Weekly D1335a (Fla. 4th DCA June 16, 2010)

Flores v. Riscomp Industries, Inc. - 3d DCA May 26, 2010

2010-06-14T15:16:32Z

This slip and fall Plaintiff struggled with her Complaint, amending it three times after the initial filing. Nevertheless, through all of the amendments, the substantive factual allegations remained unchanged. The Third Amended Complaint was filed, however, after the statute of limitations ran on the underlying cause of action and the trial court dismissed the case with prejudice. On appeal, the Third DCA overturned the dismissal finding that the amended complaint related back to the original pleading, which was timely filed, pursuant to Rule 1.190, Fla. R. Civ. Pro. The Court reiterated that a pleading relates back if "the original pleading gives fair notice of the general fact situation out of which the claim or defense arises." Citing Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989).

Rule 1.190, Fla. R. Civ. Pro.

Flores v. Riscomp Industries, Inc., 35 Fla. L. Wkly D1191 (Fla. 3d DCA May 26, 2010)

Stevens v. Bank of America - Rules 9.030 & 9.130

2010-06-11T14:29:02Z

Appeal of Trial Court's order granting Motion for Summary Judgment was not timely as (1) counterclaims were not adjudicated in Summary Judgment Order and (2) counterclaims were not separate and distinct from the claims disposed of on Summary Judgment. Citing Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008).

Stevens v. Bank of America, 35 Fla. L. Wkly D1164 (Fla. 1st DCA May 26, 2010)

Slow Civ Pro Season

2010-06-09T02:15:39Z

It has been a slow few weeks for Florida Civil Procedure decisions, so I will pass along this blog post from the blog, Law21.ca on one possible future for the legal profession:

How to compete on price

One of the oldest pieces of marketing advice in the legal profession is: “Don’t compete on price.” Wiser heads than mine constantly warn lawyers not to cut their prices to match what other sellers are providing, that engaging in a price war for legal services is as potentially ruinous as getting involved in a land war in Asia
. . .
yet the day will soon come where we have to lower our prices just to stay in the marketplace conversation. If you can upgrade the type and quality of your services to premium or luxury levels and therefore maintain or even increase your prices, good for you. But there’s only so much room at the top of the mountain and not everyone can stand there; and in any event, raising the quality of what you offer often requires increasing what you spend to offer it, getting you no farther ahead.

But you don’t need to compete on price if you can go one better: compete on cost. . .

Hopefully we will have more civil procedure news next week.

Rule 1.080 Corrected

2010-06-09T02:05:07Z

Rule 1.080, Fla. R. Civ. Pro., was erroneously published without part (a). The error has been corrected. Thanks to attorney Matt Weidner for pointing me to the problem.