In this case, the plaintiff filed a motion to serve a defendant by publication.  The defendant specially appeared in the action and moved to quash the attempted service, claiming that the defendant was residing in Costa Rica.  Defense counsel provided the foreign address at the hearing.  The court denied the motion to quash and allowed service by publication.  Finding that courts should “strictly construe” service of process statutes, the appellate court reversed, holding that “service of process by publication . . . is only permitted when personal service cannot be obtained,” and here, “the trial court has not made a finding that the defendant was attempting to evade service.”  As a result, the plaintiff was required to at least attempt to serve the defendant at the foreign address provided to the plaintiff.

Estela v. Cavalcanti, 36Fla. L. Wkly D2773a (Fla. 3d DCA Dec. 21, 2011)

In this case, the trial court rejected a defaulting party’s claim that the court should vacate a default for lack of subject-matter jurisdiction, but nonetheless granted the motion based on excusable neglect.  The appellate court reversed and remanded, holding, “[T]he trial court could not set aside the default judgment based upon excusable neglect where such an issue was not presented by the pleadings, noticed for hearing, or litigated by the parties.”

 Bank of America, N.A v. Nancy A. Laneand Robert G. Lane, 36 Fla.L. Wkly D2631A (Fla. 1^st DCA Nov. 30, 2011)

In this foreclosure case, Defendants did not file an answer to the complaint.  Instead of moving for default, the bank moved for summary judgment.  One of the defendants filed an opposing affidavit raising various defenses, but still did not file an answer.  The trial granted summary judgment, and the same Defendant appealed.  The appellate court reversed, rejecting the bank’s argument that “affirmative defenses raised in an affidavit opposing the motion for summary judgment cannot be considered by the trial court.”  Rather, citing Rule 1.500(c), the court held, “[A] party may plead or defend at any time before a default is entered. . . . Because the bank failed to refute the affirmative defenses or show they were legally insufficient, it was error for the trial court to grant summary judgment.”

Faythe p. Woodrum, Timothy P. Woodrum and Dawn M. Woodrum v. Wells Fargo Mortgage Bank, N.A., 36 Fla. L. Wkly D2431b (Fla. 4th DCA Nov. 9, 2011)

In this auto accident case, Wal-Mart, the installer of an allegedly defective tire, sought discovery of settlement amounts paid by several co-defendants, including the car manufacturer, the tire manufacturer and the car dealer.  Wal-Mart claimed that this discovery was necessary to prove its set-off defense of the total amount paid by the other defendants.  The trial court denied Wal-Mart’s motion to compel on the basis that the discovery was not reasonably calculated to lead to the discovery of admissible evidence.  The appellate court affirmed, holding in part that Fla. Stat. § 768.81 abolished joint and several liability and therefore the settlement amounts could not be irrelevant.

Wal-Mart Stores, Inc. v. Nicolette Strachan, Continental Tire the Americas, LLC, Ford Motor Company, and Al Packer Ford West, Inc., 36 Fla. L. Wkly D2262a (Fla. 4th DCA. Oct. 12, 2011)

In this negligence case tried before a jury, defense counsel referred to an exculpatory clause in a customer service agreement during closing argument, even though the trial court had prohibited the defense from claiming that the exculpatory language barred a finding of negligence.  The trial court granted a new trial.  The appellate court, however, reversed, for two reasons.  First, plaintiff’s counsel did not object during closing argument.  Second, the exculpatory clause was relevant to an issue other than negligence, namely, to rebut plaintiff’s expert testimony suggesting that defendant should have “predicted the future” regarding a possible injury caused by the backhoe loader at issue in the case.

RING POWER CORPORATION v. MELVIN ROSIER, 36 Fla. L. Weekly D1543b (Fla. 1st DCA July 18, 2011)

In this family law case, the appellant sought review of a denial of his motion under Rule 1.540 for relief from a judgment.  The motion claimed that the judgment contradicted the court’s findings at trial and included findings not supported by the evidence presented.  The appellate court affirmed, holding that “rule 1.540 was not intended to serve as a substitute for the new trial mechanism prescribed by rule 1.530 nor as a substitute for appellate review of judicial error.” (quoting Curbelo v. Ullman, 571 So. 2d 443, 444 (Fla. 1990)).

CRAIG W. THOMPSON v. LEZRENE M. CUNNINGHAM, 36 Fla. L. Weekly D1100a (Fla. 1st DCA May 20, 2011)

In this slip and fall case, the jury returned a zero verdict on a claim for loss of future earnings and for loss of consortium.  The appellate court reversed and granted a new trial because there was undisputed evidence of such damages, holding that “undisputed evidence presented on plaintiff’s loss of consortium claim was sufficient to require an award of at least nominal damages.”

AGUILERA v. EQUITY ONE, LLC, 36 Fla. L. Weekly D833a (Fla. 3d DCA Apr. 20, 2011)