Archive for December, 2010

Fourth District: Stern Class Certification Affirmed

Yesterday, in this brief decision, the Fourth District affirmed an order certifying a class action against well known foreclosure counsel David Stern and his firm. The class is made up of property owners who, while in default on their mortgages, received reinstatement letters from Stern’s office. The letters demanded payment of fees and costs that were allegedly improper or not owed, in violation of Florida’s consumer protection laws.

Second District: Economic Loss Doctrine

With the year’s end nearing, we see this economic loss rule case from the Second District. Economic loss decisions have gone from being plentiful to downright sparse. A few state supreme court decisions disparaging the “rule” are no doubt the cause, but that is a fun discussion for another day.

In this case, a plaintiff asserted that three corporate officials misrepresented the nature of costs the plaintiff had agreed to pay their corporation.

The officials relied on the economic loss rule to argue that any claim against them was barred, but the court held the rule inapplicable for two reasons. First, “[t]he economic loss rule does not bar tort actions based on fraud if the fraud alleged does not relate to an act of performance under the contract but instead relates to a term in the agreement.” So if someone is fraudulently induced to agree to certain terms in a contract, that inducement is actionable. Second, the court held that the rule did not apply because the plaintiff had no contract with the officials and thus “the action against them is for intentional or negligent acts independent of any contract.”

The second reason is far less developed in the case law than the first. As someone who really enjoys this area of the law, I look forward to watching it develop — even if that development will be a bit slow.

Second District: Rule 1.442, Settlement Proposals

Those who keep track of Florida’s proposal for settlement case law, not to mention those interested in dog bite cases, will be interested in this decision. A defendant made a $1500 proposal for settlement and, later obtaining a defense verdict from a jury, sought attorney’s fees based on the proposal. The trial court denied that motion because the proposal was predicated on a credibility battle as well as a legal position that the defendant lost.

The Second District reversed. The district court explained that the defendant was entitled to fees unless the offer was not made in good faith, and the trial court never stated that the offer was not made in good faith. The district court further explained that focusing on the credibility battle improperly placed the inquiry’s focus on the recipient’s reasons for rejecting the offer, which are not relevant. In the district court’s view, the defendant established she could reasonably conclude her exposure to liability at trial was nominal, and thus the court held she was entitled to fees.

The decision ends with an apparent expression of agreement with an observation Judge Klein made long ago that the opportunity to make nominal settlement offers gives defendants an unfair advantage over plaintiffs.

Judge Schwartz: Thankfully Respecting The Fifth’s Turf

A couple of months ago, in this post, I expressed some concern with the Third District’s efforts to rename the “tipsy coachman” rule as the “drunken cabbie” rule. Judge Schwartz has been the champion of those efforts. He recently authored this decision for the Fifth District, but, although he had occasion to mention the rule, he notably declined to continue his revisionist nomenclature pursuits.

I mean “notably” quite literally. Judge Schwartz used a footnote to discuss his reticence to steer the Fifth District down the “drunken cabbie” way.

Certified Conflict: Elegant, If The Court Does Say So Itself

This decision from the Fifth District is the first in Florida to hold that a homeowners association can bring a cause of action against a developer for breach of implied warranties of fitness and merchantability with respect to private roads, drainage systems, retention ponds and underground pipes in a residential subdivision.

An earlier decision from the Fourth District held that a homeowners association could not bring such claims. That case involved a subdivision’s roads and drainage areas.

Both cases relied on the Florida Supreme Court’s 1983 decision in Conklin v. Hurley. There, purchasers of a vacant land attempted to sue a developer regarding the land’s only improvement — a seawall that collapsed. The high court held that implied warranties do not extend to first purchasers of residential real estate for improvements to land, other than the construction of a home and other improvements “immediately supporting the residence thereon, such as water wells and septic tanks.”

So implied warranties of fitness and merchantability (well, habitability, for a home) exist for first purchasers of homes and improvements “immediately supporting the residence thereon.”

In the Fourth District’s case, the court determined that the roads and drainage areas at issue did not immediately support the residences.

The Fifth District disagreed. It announced “a test that is elegant in its simplicity: in the absence of the service, is the home inhabitable, that is, is it an improvement providing a service essential to the habitability of the home?” Applying this “elegant” test and answering its question in the affirmative, the court held that warranties ran from the developer to the homeowners for the roads and other areas at issue. Citing judicial efficiency, the court further held that a breach of warranty claim could be brought by a homeowners association.

The decision is fascinating in many respects. If you enjoy decisions that focus on common law doctrines and how they continue to evolve, this decision is one to read. The court clearly saw itself as expanding the law. It relied on what it characterized as the complexities surrounding modern permitting and site development to support the expansion.

The case also raises some questions. For instance, while the Fifth District placed great reliance on the implied warranty cause of action recognized in Conklin, one might wonder if Conklin really applies in homeowners association litigation. Conklin involved a seawall present on the purchased property, whereas homeowners in a private subdivision are unlikely to hold any direct ownership of the subdivision’s roads, drainage systems, retention ponds, and underground pipes. Their ownership is more likely to be indirect, as members of an association that succeeded to the developer’s ownership interests in those areas. Yet the Fifth District held that individual homeowners can bring implied warranty claims relating to roads and drainage systems, and of course the court expanded that notion to apply to associations. Under this decision, how would things work out if a homeowners association decided not to bring a claim but an individual homeowner went forward? Would the court have reached the same conclusion if the issue had been framed as whether an association that succeeds to a developer’s interest in common areas can bring a common law implied warranty claim against the developer for defects?

Forging Order Dates

Perhaps there was a time when someone who had missed the 30-day deadline to file a notice of appeal could get away with altering an order’s date to make a notice appear timely. Perhaps not. Either way, it is not likely to work now, this decision shows.

Fifth District: Attorney Disqualification By Agreement

Attorneys may be interested in this decision involving an agreement not to represent clients adverse to an attorney’s former employer. The case involved Scott Mager, a well known attorney who allegedly breached such an agreement. A trial court agreed with Scott that the agreement was contrary to public policy and therefore unenforceable. The Fifth District reversed. The district court held that an agreement not to represent clients against a former employer would not violate public policy if the attorney possessed confidential information as a result of the employment and a fiduciary relationship and if the attorney could use that information to the former employer’s detriment in representing or assisting a party with a claim against the former employer.

By the way, I took a look at Scott’s current listing of published articles and speeches.

Now I feel lazy.

Certified Conflict: What Makes A Dwelling

If a defendant is charged with burglary of a dwelling, must the state prove that the structure was habitable as a dwelling on the date of the offense? The Fifth District said no in this decision, which certified conflict with this decision from the Second District.

Fifth District: The Ultimate Sanction

If you read this 2008 decision by the Fifth District, you might wonder exactly how bad someone’s conduct must be to justify dismissing a complaint as a sanction. This new decision gives us an answer.

Fifth District: Time Limits on Fee Motions

Is a party dropped from an ongoing lawsuit bound by rule 1.525’s 30-day time requirement, and, if so, does that period commence with service of the notice? The Fifth District answered both questions in the affirmative in this decision.

Fifth District: Consolidation, Certiorari

Extraordinary writ fans may appreciate the unusual nature of this decision. The Fifth District granted a certiorari petition and quashed an order refusing to consolidate two highly related circuit court cases.

Fifth District: Timing of Foreclosure Sales

Does the holder of a foreclosure judgment have the right to control when, if ever, a foreclosure sale takes place? The Fifth District answered that question with a clear no in this decision.

Fifth District: Expert Testimony

Can a jury reject expert testimony that is not contradicted by other expert testimony? Of course, as the Fifth District observed in this decision.

Certified Conflict: Certiorari Appeals

Where one of multiple parties to a local zoning proceeding appeals by certiorari to a circuit court, are the other parties to that proceeding entitled to be parties in the appeal? In this case, the Fifth District said yes and certified conflict with this (and an earlier) decision from the Second District.

Certified Conflict: Termination of Parental Rights

In this termination of parental rights case, the Fifth District certified conflict with a First District decision over whether a motion for judgment of dismissal at the end of the state’s case is necessary to preserve a challenge to the sufficiency of the evidence. The First District holds a motion is necessary, while the Fourth and Fifth Districts hold it is not.

Fifth District: Claims Files

This very brief Fifth District decision reminds us that an insurer’s claim file cannot be discovered while coverage remains at issue.

Fifth District: Re-Recorded Judgments

Real property fans should be interested in this decision, where the Fifth District answered the following question in the affirmative: “Does the re-recording of a certified copy of a judgment after the expiration of the original judgment lien impose a new lien on real property held by the judgment debtor?”

Fifth District: Medical Malpractice Pre-Suit

Medmal fans may be interested in this case, where a divided Fifth District held that a proferred expert’s affidavits, read together, showed she was qualified to give a malpractice opinion in the case. Judge Lawson dissented on the qualification issue. His dissent included an interesting discussion (on what the majority characterized as an unpreserved issue) regarding whether a trial court can consider facts regarding qualifications that appear in an affidavit served after the limitations period expires.

Fifth District: Contract Damages

Contract fans should be interested in this opinion, where the Fifth District explained that damages for breach of contract are not always measured as of the time of the breach.

Fifth District: General Magistrates, Exceptions

Just a reminder here from the Fifth District that, when exceptions are made to a general magistrate’s report in a family law case, rule 12.490 requires a hearing on the exceptions to be held.

Abstract School

I know that a number of universities and colleges still use the Schiavo Infopage as a resource, but spotting this link surprised me a bit. Abstract Appeal is listed as #4 in this list of resources for students attending online paralegal schools.

There can be topics here that matter for paralegals. I will keep a watch out.

Fourth District: Hearsay

“[O]nly statements made by persons fall within the definition of hearsay,” said the Fourth District in this case, quoting a 2001 decision. The court rejected an argument that a trial court erred by permitting a witness to testify to information reported by a hotel’s key management lock system.

Some might wonder whether that squares with the case discussed recently in this Abstract Appeal post…

Fourth District: Harsh Example of Second-Tier Certiorari’s Limits

All around, this may be one of the year’s most dissatisfying opinions. But it’s a great one to examine.

An insurer determined that a chiropractic center no longer needed to treat a person entitled to PIP coverage. The insurer notified the center of its determination and sent a check for outstanding payments. The check included a clear notation that it was tendered in full and final payment for all benefits due the person. The center deposited the check, continued to provide the person with treatments, and then sued the insurer for additional payments.

The insurer defended based on accord and satisfaction, but a county court entered a summary judgment for the center. The insurer appealed to the local circuit court, which affirmed. The insurer then sought second-tier certiorari review from the Fourth District.

The Fourth District explained that the circuit court (and, by extension, the county court) misapplied the law. The insurer correctly relied on the earlier check and an accord and satisfaction defense. However, on second-tier certiorari review, mere legal error is not a sufficient basis to grant relief. The circuit court must have failed to afford due process or failed to apply the correct law — the latter not being the same as applying the correct law incorrectly. Here, the circuit court misapplied the law but did not depart from the essential requirements of law, amounting to a miscarriage of justice, by failing to afford due process or applying the wrong law.

The district court acknowledged that the insurer had suffered an erroneous monetary judgment, but the court explained that “something more is required for there to be a miscarriage of justice.”

So the county court’s judgment was affirmed by the circuit court, and the circuit court’s judgment was left undisturbed, but both courts misapplied the law and gave the victory to the wrong party.

The chiropractic center won, but it did so only by two courts failing to follow the law correctly.

The insurer was vindicated that it was correct all along, but the vindication came only in principle. The insurer still lost.

The district court deserves credit for explaining its analysis.

Fourth District: Class Actions

This decision involves a peculiar class action.

A plaintiff filed a class action complaint against an insurer who, five years ago, shorted a medical reimbursement by $2.38. The plaintiff did not send a statutorily required notice of intent to sue, thus foreclosing any claim to damages, but the plaintiff asserted it was seeking only a declaratory judgment as to the correct reimbursement formula. The defendant admitted it had made a miscalculation but fought the certification on grounds that, having failed to serve a notice of intent, the plaintiff was not an adequate representative.

The trial court certified the class and the defendant appealed. The defendant’s arguments seemed to center around its belief that certification must be an effort to obtain damages. The Fourth District affirmed the certification but emphasized it was holding the plaintiff to its representation that no damages would be sought in the class action, including supplementary relief.

Judge Warner wrote a concurrence questioning why the class action was being pursued at all. She explained that the plaintiff sought a declaration for a class but that “not one member of the class can collect based upon that declaration.” She further observed that any new claim by class members would be time-barred.

Perhaps there is more to the story.

Fourth District: Frye

As all Florida trial lawyers will tell you, Florida utilizes the Frye standard to govern the admissibility of new or novel scientific evidence. Nearly two decades ago, the federal courts abandoned that standard in favor of a more focused, court-based examination into the reliability of expert testimony. Florida has stuck with Frye, more or less.

The potential for different outcomes under the two standards is highlighted by this decision from the Fourth District. The underlying case is a products liability action asserting that Zicam nasal gel caused the plaintiff to lose his sense of smell. The trial court entered a summary judgment for the defendants, and the plaintiff appealed. He argued that the trial court erred in excluding his expert’s testimony under Frye. The district court reversed. It essentially held that the expert’s testimony was largely opinion not subject to Frye, and with the exception of some personal experimentation the expert had performed, was not “new or novel” so as to be subject to Frye.

The district court acknowledged that numerous federal courts had considered the same expert’s testimony under the federal standard and had uniformly excluded it. Florida law differs.

Fourth District: Arbitration

Where a person signs an agreement as a guarantor, is he or she bound by an arbitration provision contained in the agreement? Yes, said the Fourth District in this case.

Fourth District: Local Development

Land use fans should be interested in this decision by the Fourth District. The case involved a charter amendment proposed by the Preserve Palm Beach Political Action Committee that, in effect, would have prohibited the construction of new buildings in Royal Poinciana Plaza and required the Poinciana Theater to be used only for certain purposes. The Town of Palm Beach sought a declaratory judgment that the proposed amendment was unconstitutional because it conflicted with state law prohibiting local ballot initiatives or referenda regarding development orders. The trial court granted the town a summary judgment and removed the measure from the ballot. The district court affirmed.

A portion of the district court’s decision is particularly noteworthy. The court explained:

The right of the people to vote on issues they are entitled to vote on is one of utmost importance in our democratic system of government. But there are issues – such as the right of a small landowner to use his property subject only to government regulations – which should not be determined by popular vote. Section 163.3167(12) rightfully protects the small landowner from having to submit her development plans to the general public and ensures that those plans will be approved or not, instead, by the elected officials of the municipality in a quasi-judicial process.

Fourth District: Doctor Shopping

Doctor shopping is a relatively new concept. It is proscribed by subsection (7)(a)8. of this statute, which makes it unlawful for someone seeking a controlled substance to “withhold” that he or she has obtained a prescription for the same or similar substance within the last thirty days.

Does it matter if the doctor does not ask about recent medications? No, said the Fourth District in this decision.

Fourth District: Appellate Sanctions

Appellate attorneys are sometimes sanctioned for bringing meritless appeals. It happened here, in a case before the Fourth District.

Fourth District: Rehearing Defined

“Don’t reargue the case.” So goes the oft-espoused appellate wisdom when it comes to losing parties filing motions for rehearing. “Argue what the court overlooked.”

But rearguing the case sometimes works.

Back in June, the Fourth District released this opinion, which, over a dissent, reversed a substantial jury verdict based on a trial court’s decision to exclude from evidence various experiments and demonstrations that supported an expert’s opinions. The district court ordered a new trial.

The appellee moved for rehearing, and last week the court granted that motion, withdrawing its earlier opinion and substituting this new one that unanimously affirms the judgment.

That is a two-judge swing.

Fourth District: Fundamental Error

Like pornography, and a well appointed home, fundamental error is something you know when you see it. The Fourth District believed it knew it when it saw it in this case. The court held that an insurance policy provision violated Florida public policy, and was not enforceable, because it required the insured to sue an uninsured motorist who injures the insured as a condition precedent to recovering uninsured motorist benefits. The insured did not raise the public policy argument below, but the district court held that the policy’s flaw was fundamental.

Fourth District: Economic Loss Doctrine, Professionals

Economic loss fans should be interested in this decision from the Fourth District. The court examined whether surveyors were professionals and, as such, owed a duty of care to their clients that could be enforced through a negligence claim notwithstanding a contractual relationship. The answer was yes.

Fourth District: Fees For Fees, And Fee Causation

Florida follows a general rule that, where attorney’s fees are shifted to another party, the award can include the amounts expended to litigate entitlement to fees but not amounts expended litigating the amount of those fees.

There are exceptions, and this decision from the Fourth District points out one of them. “Fees for fees,” as they are sometimes called, can be awarded where fee-shifting occurs as a sanction.

Notably, the district court imposed a limit on the fee award in the case, holding that the fees awarded had to be “directly related” to the sanctioned conduct.

Fourth District: New Trial For Discovery Denial

It is difficult to obtain a new trial based on a limitation imposed on discovery. It happened, though, in this tread separation case against a tire manufacturer. The trial court prevented the plaintiff from obtaining information regarding tires made for vehicles other than the one used in the accident, and the jury returned a defense verdict. After an interesting discourse on discovery’s role in the justice system, the Fourth District reversed.

The 17-page decision includes a relatively lengthy discussion on harmful error, as well as 23 footnotes.

Fourth District: Depositing Unpaid Rent

A county court certified a question to the Fourth District that asked if a tenant must deposit undisputed rent into the court registry to defend an eviction on grounds the landlord failed to give the required three-day notice.

In this decision, the district court said yes.

Certified Question: Corporate Shield Doctrine

Florida law recognizes the corporate shield doctrine and holds that personal jurisdiction will not exist with respect to out-of-state persons whose negligent activities were performed solely on behalf of their employer. So, in theory, an out-of-state corporate employee performing work for his or her employer should not have to worry about being personally sued in Florida, even if the employee’s negligent conduct leads to an injury or damage in this state.

What if the employee comes to Florida, on business, and performs the challenged act here? Does the corporate shield apply?

That issue confronted the Fourth District in this case. A divided court certified the following question to the state supreme court as a question of great public importance:


The majority’s answer was yes. Judge Farmer dissented.

Fourth District: Arbitration

In this procedurally peculiar case, the trial court denied a motion to compel arbitration because the defendant had also filed an answer to the complaint and a counterclaim. The Fourth District reversed, holding that the right to arbitrate is not waived where a defendant’s first substantive filing invokes arbitration. The court further held that there is no waiver even when a motion to compel arbitration and a counterclaim are filed together, absent some other act amounting to waiver.

Fourth District: Married In Religion Only

If you marry someone in a religious ceremony but ignore the requirements for making the marriage civilly valid, are you precluded from receiving alimony when the marriage fails? That is what happened in this case involving an Islamic wedding and Virginia law.

Notable Numbers

What has 60 lines of regular text and 61 lines of footnote text?

This opinion.

Fourth District: Summary Reversal

Is there such a thing as a summary reversal? In this case, in lieu of an answer brief, the appellee filed what the district court characterized as a notice of consent to remand the case with instructions to vacate the summary judgment on appeal. It worked.

Fourth District: Appealable Orders

The holidays are all around, so here is an easy question for appellate fans. If a trial court dismisses a foreclosure action without prejudice and without leave to amend, and the trial court thereafter denies a motion for attorney’s fees under rule 1.525, is the latter order immediately appealable?

It was in this case. The Fourth District explained that the dismissal constituted a final order and the order denying fees was an appealable non-final order. Notably, the trial court denied the fee motion on grounds that the dismissal, which was entered as a sanction, did not constitute a judgment. The district court reversed that decision.

Fourth District: Waiving Privilege, Revoking Waiver

That title may sound like the name of a boring movie, but if you have been accused of waiving a privilege, you may want to know whether you can revoke the waiver and protect the privileged material. This decision from the Fourth District offers an example of a psychotherapist-patient privilege being waived and then the waiver revoked.

Certified Question: Attorney Negligence

Assume an attorney’s negligence causes the attorney and the client to miss a trial date. The other side prepares and attends, only to have the matter continued because one side is absent.

Can the trial court remedy the other side’s loss by sanctioning the attorney? That is essentially what happened in this case. The Fourth District reversed, holding that controlling case law requires a finding of bad faith conduct before a trial court may exercise its inherent authority to sanction counsel.

The district court expressed concern that the result was unfair. So the court certified the following to the Florida Supreme Court as a question of great public importance, essentially inviting the high court to expand the bad faith requirement to encompass certain forms of negligence:


The change the court invites seems extraordinary.

In Florida, all attorneys practice law subject to the authority of the state supreme court. Our high court’s authority extends throughout the judiciary and, consistent with common law principles regarding contempt, empowers all judges to sanction misconduct by those before the court, including counsel. This authority to sanction inheres in the judiciary and is to be rarely exercised. It exists to protect the integrity of the court and the judicial system. Disregarding the court’s authority warrants punishment.

The Fourth District does not appear concerned with affronts to judicial authority. The court appears concerned with remedying injury an attorney negligently inflicts on another party during the course of litigation. Notably, the party seeking sanctions in the case requested attorney’s fees to prepare for and attend trial and the party’s own lost wages for the day. The trial court awarded attorney’s fees and the lost wages.

In any other area of life, the legal system would examine such conduct under the tort system.

Expanding the sanction authority to include “reckless misconduct” should, at least in theory, limit newly actionable conduct to the realm of intentional torts. But if a shift is made from protecting the court’s integrity to protecting litigants’ economic interests, one might wonder why the line should be drawn at reckless acts. One might also wonder how solid a line a “reckless” standard would offer.

Regardless of what the high court does, I look forward to the debate. It should be interesting. Perhaps the court will invite The Florida Bar to weigh in with its views on attorney regulation.

Fourth District: Undertaker’s Doctrine

The “undertaker’s doctrine” recognizes that, by performing certain actions, a person can accept a duty of care that would otherwise not apply to that person. One such action occurs where a person undertakes to perform a duty that a second person owes to a third person.

Assume another person owes a third person a negative duty — a duty not to do something. Can you undertake to perform that duty? In this decision, the Fourth District considered whether a person who took his intoxicated brother’s car keys undertook what the court characterized as a duty the brother owed to third persons not to drive while intoxicated. Holding that the person did not, the court stated that one cannot undertake to perform “another’s duty of inaction.”

The case contains interesting discussions regarding duties, including a discussion on whether the person could be liable for negligently entrusting the brother with the brother’s own car.

Certified Conflict: Insurance Appraisals

This decision concerned whether an insurance case involving disputes over coverage and amount of loss can proceed on dual tracks, both in court and in an appraisal. The Fourth District said no and held that coverage should be resolved first. The court certified conflict with this decision from the Third District.

Third District: Homestead and Legal Residency Status

If two parents are not legal residents of Florida but they own a home in which they and their minor children reside, can the parents claim a homestead exemption for the property under Florida law? Yes they can, said the Third District in this case.

The decision quotes portions of the father’s affidavit, in which he explains that he and his wife live on the property and that, for their three children, the property is their permanent residence. The decision then observes: “Although one might wonder whether his assertions are congruent with the laws of nature, we apply in this court the constitution and laws of the State of Florida.”

Second District: Simulated Child Porn

A person takes lewd photographs of an adult woman and pastes onto them the heads of eleven- and twelve-year-old girls. Does possession of the doctored photographs constitute possession of child pornography in violation of section 824.071(5)?

No, explained the Second District in this decision. The statute requires the depiction to include sexual conduct by a child, and simulated sexual conduct by a child is not within the statute’s scope. The court observed that a comparable federal law does include simulated depictions.

Summary Judgment Standards

A trial court applied an incorrect standard on summary judgment when the court ruled that the facts “clearly and unequivocally” convinced it that legal malpractice had not occurred. So held the Second District in this decision, which pointed out that the trial court’s view of the weight of the evidence is immaterial at the summary judgment stage.

Remarkable? Not really, except that it makes me think back to this decision, which introduced the “de minimis” concept into summary judgment review.

Third District: Personal Injury, Wrongful Death

Assume that after a husband and wife file a personal injury claim based on the husband’s injuries, he dies, and within the following two years the wife moves to amend the complaint to substitute his estate as the plaintiff but does not file a new wrongful death action. Has the ability to file a wrongful death action been lost? The Third District answered that question in the affirmative in this case. The court held that a personal injury complaint cannot be amended to state a wrongful death claim but instead a separate action must be initiated.

Second District: Verified Complaints

Just a reminder here from the Second District that, for a verified complaint to function as evidence on a summary judgment motion, the complaint must meet the standards applicable to affidavits. A complaint verified based on someone’s “knowledge and belief” does not qualify.

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