Jason Baruch: August 2009 Archives

In this case, appellee received an attorneys' fee judgment based upon a sanction award for discovery violations by appellants.  The award, however, reflected an hourly rate that exceeded the rate actually billed to the client.  The court found this to be error and reversed. 

Effective Teleservices, Inc. et al. v. Smith, 34 Fla. L. Weekly D1692b (Fla. 4^th DCA Aug. 19, 2009)

In this construction contract case, plaintiff's counsel stated in open court, before jury selection, that he would voluntarily dismiss the case without prejudice.  He stated further that he would file a written dismissal thereafter.  The defendants then filed a motion for fees and costs.  The plaintiff never filed the written dismissal, but instead filed a motion for relief from the voluntary dismissal.  The court denied the motion.  The plaintiff appealed.  The Third District held that the oral dismissal was ineffective under Rule 1.420(a)(1) because it was not made "during trial."  The court, however, affirmed because "Plaintiff cannot obtain the benefit he sought -- a postponement of trial -- while failing to file the required document he assured opposing counsel and the court he would file."  The court therefore in essence found that the plaintiff was estopped from obtaining relief from the dismissal. 

SALINAS v. ORLANDO MEDINA et al., 34 Fla. L. Wkly D1582a (Fla. 3d DCA August 5, 2009)

In this breach of contract case, plaintiffs filed a motion to take the prisoner-defendant's deposition.  Plaintiffs tried to appear telephonically at the hearing on their motion but failed to do so.  At the hearing, the trial court reviewed the complaint and dismissed it sua sponte for failure to state a cause of action.  The appellate court accepted defendants' confession of error and reversed, holding that where a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond in writing or at a hearing.