Florida Rule of Civil Procedure 1.720 has been updated to reflect the changes to the mediation requirements.
Rule 1.720 – Mediation Has Been Updated
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2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE
My article on changes to Florida Rules of Civil Procedure in 2011. Everything an attorney needs to know about the Florida Rules of Civil Procedure for the new year.
River Bridge Corp. v. American Somax Ventures – Attorneys’ Fees
After the appeals court issued an opinion partially reversing an $8 million final judgement, the trial court was required to hold a new hearing on attorneys’ fees. The trial court had entered a fee award while the appeal was pending. After the appeals court partially reversed the underlying judgment, the trial court, without hearing, simply entered an order reaffirming the prior attorneys’ fee award. The 4th DCA determined that the trial court should have held an additional hearing to determine the proper amount of fees in light of the partial reversal.
The 4th DCA’s reasoning was based on Fla. R. Civ. P. 1.540(b)(5), which provides for relief from a judgment where such judgment is based on a prior judgment that has been “reversed or otherwise vacated.” The 4th DCA’s prior decisions have required an evidentiary hearing where a party sought to set aside judgment per Rule 1.540(b). See Schuman v. Int’l Consumer Corp., 50 So.3d 75 (Fla. 4th DCA 2010).
River Bridge Corp. v. American Somax Ventures, 36 Fla. L. Wkly D2615 (4th DCA Nov. 30th, 2011).
Pino v. Bank of New York – Supreme Court Retains Jurisdiction Over Matters of Public Importance
The mortgage foreclosure cases continue to produce a flood of civil procedure decisions. The latest comes from an appeal to the Florida Supreme Court. At issue in the case is whether a foreclosing bank, BNY Mellon, can be sanctioned for filing an allegedly fraudulent assignment of mortgage. That question was on appeal to the Fourth DCA and then certified as a question of great public importance. The Florida Supreme Court accepted jurisdiction per Art. V, Section 3(b)(4) of the Florida Constitution.
After Pino filed his Inital Brief with the Florida Supreme Court, but before an Answer Brief was filed, the parties reached a settlement and filed a Joint Stipulated Dismissal per Fla. R. App. P. 9.350. The Florida Supreme Court determind that, since the matter was of great public importance, it had the discretion to retain jurisdiction over the case. The Court therefore denied the parties leave to dismiss the case until after the Court issued its opinion.
Pino v. Bank of New York, 36 Fla. L. Wkly s711 (Fla. Dec. 8, 2011).
In re Amendments to Florida Rule of Civil Procedure 1.720 Mediation Procedures
Following the recommendation of the Florida Bar Committee on Alternative Dispute Resolution Rules and Policy, the Florida Supreme Court has amended Rule 1.720 to strengthen the requirement that the party attending mediation have actual authority to settle the lawsuit.
The new Rule 1.720:
- Provides a more detailed description of what it means for a party representative to have “full authority” to settle. The party representative must be “the final decision maker” and have the “legal capacity to execute a binding settlement agreement.”
- Requires each party to file with the court, ten days in advance of mediation, written notice of the party representative(s) appearing at the scheduled mediation and confirming those representatives have full authority.
- Provides that sanctions shall be imposed for failure to appear at mediation. Failure to properly identify the party representative, or sending a different party representative to mediation than designated, shall create a “rebuttable presumption” that the violating party has “failed to appear” at mediation.
The amended rule goes into effect beginning January 1, 20112.
In re Amendments to Florida Rule of Civil Procedure 1.720, Case No. 10-2329 (Fla. Nov. 3, 2011).
Jones v. Publix Supermarkets, Inc. – Proposal for Settlement
My colleague, Perry Adair, writes on Becker and Poliakoff’s Business Litigation Perspectives Blog, about a recent decision from the Fourth DCA regarding Proposals for Settlement:
The Proposal summarized the contemplated release thusly: “[Jones] will execute a full release of liability in favor of Publix Supermarket Inc., a Florida Corporation and it’s [sic] affiliated insurance company, and a Stipulation for Voluntary Dismissal.” The trial court felt that was not a sufficient summary.
. . .
The Jones opinion closes with the court acknowledging it is the preferred practice for a Proposal to set forth the terms of a release particularly either within the Proposal or by attaching the proposed release. Nevertheless, on the Jones facts, the Proposal was found enforceable.
The time has come to amend the Proposal rule to eliminate this type of uncertainty. Clearly, it is the best practice to attach to the Proposal all documents that are to be signed if the Proposal is accepted. So let’s put that in the rule.
Jones v. Publix Supermarkets, Inc., 36 Fla. L. Weekly D1966 (4th DCA Sept. 7, 2011)
Sol Melia, S.A. v. Fontana – substitute service insufficient
In Sol Melia, S.A. v. Fontana, the 3rd DCA ruled that the Plaintiffs attempts to serve the Defendant, a foreign corporation, through it’s U.S. Based subsidiary did not satisfy the requirements of Florida’s Substitute Service Statute, s. 48.081(2).
Fontana filed suit against Sol Melia after she allegedly slipped and broke her hip entering a jacuzzi at a resort run by a Sister company of Sol Melia.
Sol Melia is a Spanish corporation wit it’s principal place of business in Spain. Sol Melia owns Sol Group, B.V. a holding company for Sol Group. Sol Group is a Corporation based out of Miami, FL.
After filing suit, Fontana attempted to serve Sol Melia by serving Sol Group. Sol Melia then filed a motion to quash service of process.
The 3rd DCA held that it was insufficient to merely show that Sol Group was a subsidiary of Sol Melia. The Court held that substitute service is only permitted where the parent corporation exercised such a degree of control over it’s subsidiaries that the subsidiary was essentially an alter ego of the parent.
Sol Melia, S.A. v. Fontana, Case No. 3D11-602 (Fla. 3d DCA Aug. 31, 2011)
Hollywood Mobile Estates Lmtd. v. Hollywood Estates Independent Tenant Assoc., Inc.
The Hollywood Estates Independent Tenant Assoc., Inc. is a Chapter 723 Mobile Home Association. In a suit over certain rent payments between Hollywood Mobile and Hollywood Estates, an issue arose over whether the Court had jurisdiction over the individual members of the Hollywood Estates mobile home association such that it could require the members to pay rent into the registry of the Court. The Court found that it did in fact have jurisdiction as Hollywood Estates had brought the suit as a class representative pursuant to Fla. R. Civ. Pro. 1.222. The Association’s averment that it instituted the suit ”in its name on behalf of all the mobile homeowners” was sufficient to establish class representation pursuant to rule 1.222.
AMERICAN OPTICAL CORPORATION v. WALTER R. SPIEWAK – Retroactive Application of Statute
This recent Florida Supreme Court decisions explains the two part test for retroactive application of a statute:
First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles. See Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999), see also Menendez v. Progressive Exp. Ins. Co., Inc., 35 So. 3d 873, 877 (Fla. 2010). A retroactive statute violates the The Florida Constitution if it “impairs vested rights, creates new obligations, or imposes new penalties.” State Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995); see also McCord v. Smith, 43 So. 2d 704, 708-09 (Fla. 1949) (noting that a retroactive provision of legislation is invalid where it adversely affects or destroys vested rights).
The information has been added to the Florida Legal Wiki.
Drucker v. Duval – Improper Venue
In this case the Fourth DCA found that the trial court erred in denying a motion to transfer the case based on improper venue. The Fourth DCA ruled that the forum selection clause in the contract at issue in the case could not apply to the Defendant since the Defendant was not a party to the contract.
The contract at issue was a mediation agreement and the Defendant was counsel to one of the parties to the mediation. Pursuant to Fla. R. Civ. P. 1.730, the Defendant had signed the agreement as counsel for one of the parties to the mediation. In reaching it decision on venue, the Fourth DCA ruled that counsel who signs a mediation agreement per Rule 1.730 does not become a party to the agreement absent consideration or some other indication that mediation agreement was intended to bind counsel.
Drucker v. Duval, Case No. 4D10-4443 (Fla. 4th DCA May 18, 2011).