Florida Rules Decisions

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

Tue, 27 Jul 2010 22:00:15 -0500

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

Sun, 18 Jul 2010 12:29:41 -0500

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)

Sat, 17 Jul 2010 14:15:42 -0500

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

Mon, 05 Jul 2010 15:36:21 -0500

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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Sun, 27 Jun 2010 17:58:04 -0500

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

Fri, 25 Jun 2010 11:11:29 -0500

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

Mon, 14 Jun 2010 11:16:32 -0500

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

Fri, 11 Jun 2010 10:29:02 -0500

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

Tue, 08 Jun 2010 22:15:39 -0500

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

Tue, 08 Jun 2010 22:05:07 -0500

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.

Arnold Zimmerman v. Cade Enterprises, Inc. - Rule 1.240

Mon, 24 May 2010 21:58:16 -0500

Cade Enterprises, Inc. is a corporation established by the inventor of Gatorade for estate planning purposes. In 2008 the company was set to issue dividends, but two of its shareholders were in a dispute over their interest in the company. Both shareholders made demand for payment of the dividends. Rather than choose sides between the warring shareholders, Cade Enterprises filed an action in Interpleader pursuant to Rule 1.240, Fla. R. Civ. Pro., and sought to deposit the disputed dividends into the registry of the court, leaving the shareholders to fight over the funds.

Reiterating that Interpleader is an equitable remedy, the Court found that Rule 1.240 abolished the four part test to maintain an Interpleader action at common law and substituted a single requirement: whether the party seeking Interpleader "'is or may be exposed to double or multiple liability' for competing claims to a single fund." Finding that the shareholder's dispute over the dividends met the requirement, the First DCA upheld the trial court's decision allowing Cade Enterprises to proceed with its Complaint in Interpleader.

Arnold Zimmerman v. Cade Enterprises, Inc., 35 Fla. L. Wkly. D1030 (Fla. 1st DCA May 7, 2010)

Addison v. City of Tampa, 35 Fla. L. Wkly D762 (Fla. 2d DCA April 7, 2010)

Thu, 29 Apr 2010 21:57:50 -0500

In this class action, the Plaintiff sued the City of Tampa over the constitutionality of the City's Occupational License Tax. The Plaintiff then attempted to certify a plaintiffs class of all persons subject to the tax and a defendants class of all municipalities in Florida imposing the tax. The Trial Court certified each class and the municipalities appealed arguing that Florida's home venue privilege required any action to be brought in each municipalities local court. The Second DCA agreed and dismissed all members of the class outside of Hillsborough County.

On remand, the remaining four defendants moved to decertify the class for lack of numerosity. The trial court granted the motion to decertify and the Second DCA upheld the decision finding that four members did not satisfy the numerosity requirements of Rule 1.220(a)(1), Fla. R. Civ. Pro.

Addison v. City of Tampa, 35 Fla. L. Wkly D762 (Fla. 2d DCA April 7, 2010)

See also the companion case Addison v. City of Tampa, 35 Fla. L. Wkly D761 (Fla. 2d DCA April 7, 2010) for information on the home rule venue privilege.

Toledo v. Publix Supermarkets Inc., 35 Fla. L. Wkly D747 (Fla. 4th DCA March 31, 2010)

Thu, 15 Apr 2010 21:56:49 -0500

In this slip and fall case before the 4th DCA on a writ of certiorari, the 4th DCA overturned trial courts Order compelling the Plaintiff's attorney from a previous lawsuit to produce his entire case file for an in camera inspection. The 4th DCA found that, per Rule 1.280(b)(1), Fla. R. Civ. Pro., inspection of the attorney client privileged docs was improper without establishing through other discovery that privileged docs sought were (1) relevant and (2) could not be obtained through other means.

Toledo v. Publix Supermarkets Inc., 35 Fla. L. Wkly D747 (Fla. 4th DCA March 31, 2010)

Attorneys' Title Insurance Fund, Inc. v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010)

Wed, 07 Apr 2010 22:17:30 -0500

The Florida Supreme Court found that a joint offer of settlement cannot be conditioned on the mutual consent of all joint offerees. The case came before the Court after Attorneys' Title served an offer of judgment on Plaintiffs Gorka and Larson. The offer was conditioned on the Plaintiffs mutual acceptance and neither party could independently accept the offer. The Fla. Sup. Ct. concluded that such mutual proposals are invalid since neither party can exercise independent control over the decision to end litigation.

The case discusses the requirements for a proposal or offer of judgment pursuant to Fla. R. Civ. Pro. 1.442 and Section 768.79, Fla. Stat. and has an interesting discussion about the effect of the OJ statute:

The expected result of the attorneys' fee sanction was to reduce litigation costs and conserve judicial resources by encouraging the settlement of legal actions. See Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 218 (Fla. 2003). The effect, however, has been in sharp contrast to the intended outcome because the statute and rule have seemingly increased litigation as parties dispute the respective validity and enforceability of these offers. See, e.g., Security Professionals, Inc. v. Segall, 685 So. 2d 1381, 1384 (Fla. 4th DCA 1997) ("We regret that this case is just one more example of the offer of judgment statute causing a proliferation of litigation, rather than fostering its primary goal to "terminate all claims, end disputes, and obviate the need for further intervention of the judicial process."")

Attorneys' Title Insurance Fund, Inc. v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010)

Neiman v. Naseer, 35 Fla. L. Wkly D625 (Fla. 4th DCA Mar. 17, 2010)

Thu, 01 Apr 2010 23:12:05 -0500

In this appeal of a contempt Order, Naseer obtained a final judgment in a civil lawsuit in the amount of $530,000. Following entry of judgment, and at the request of Nasser, the Court entered an Order requiring Neiman to appear before a special magistrate for examination into his property and assets. In response, Neiman, who was living in the country of Panama, asked for a stay claiming that his health prevented him from travelling, which the Court granted. One year having past, Nasser again requested an examination of Neiman and Neiman moved for a stay based on his health, which was denied. Neiman then failed to appear for examination.

Naseer then moved for a finding of contempt of court and presented evidence that Neiman had recently traveled outside of Panama and that he claimed a net worth in excess of $7 million. The Court granted the motion for contempt finding that Neiman willfully violated the Court's previous Order and imposed a $2,000 per day fine for each day Nasser failed to appear and ordered that a warrant be issued for Neiman's arrest. The Order provided that Neiman was to remain in jail until he appeared before the Court and "fully [paid] all fines and attorneys' fees and costs then accrued."

The Fourth DCA struck the incarceration provisions of the Order finding that an order requiring an individual to be incarcerated for contempt must state with particularity the exact amount that will purge the contempt and open the jail house doors. Citing Alves v. Barnett Mortgage Co., 688 So.2d 459 (Fla. 4th DCA 1997).

Neiman v. Naseer, 35 Fla. L. Wkly D625 (Fla. 4th DCA Mar. 17, 2010)