Ever since the switch, I have had numerous delays with the clerk processing basic matters.  For instance, in one recent case in Miami-Dade, it took the Clerk of Court 12 days to issue Summons.  I have seen similar delays in Pinellas and in Orange County.  The time it takes to get clerk’s defaults entered has also risen significantly.  In a few cases, e-filed documents seem to be stuck in e-purgatory - the website reports that a new Complaint or other filing has been pending for weeks without the clerk accepting it for filing.

If you have been having trouble with e-filing, let us know in the comments.

Subdivision (c) of the rule currently requires that no matter be referred to a magistrate without consent of the parties. The amendments authorize referral of residential mortgage foreclosure cases to a magistrate with the implied consent of the parties, but the parties are given the opportunity to object to the referral. This subdivision is also amended to provide language that must be included in bold type in the order of referral to ensure that the parties are given notice of the requirements of the rule. The amendments to this subdivision do not change the consent requirement for other civil cases.

Subdivision (d)  is amended  to prohibit magistrates from practicing law of the same case type in the court in the county or circuit where the magistrate is appointed to serve.

Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

Florida Rule of Civil Procedure 1.490 has been updated to reflect the amendment.

IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.490, Case No. SC13-684 (May 9, 2013).

Herman v. Silver, 38 Fla. L. Weekly D908a (Fla. 4th DCA Apr. 24, 2013).

The trial court granted plaintiff’s motion finding that the defendant (1) had destroyed evidence, (2) made false representations to the National Highway Traffic Safety Administration (NHTSA), (3) improperly inquired on cross-examination about matters excluded from evidence by a motion in limine, and (4) presented false and misleading testimony through its experts.

After determining that the defendant had committed fraud on the court, the trial court struck the defendant’s answer and affirmative defenses, entered judgment on liability in favor of the plaintiff, and ordered a trial on the issue of damages.  The defendant appealed the trial court’s order.

The Fifth DCA determined that:

Fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” citing Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998).

Reviewing the evidence submitted to the trial court on each of the four instances of purported fraud, the Fifth DCA determined that their was insufficient record evidence to support the trial court’s findings.  The Fifth DCA overturned the trial court’s decision to grant the Rule 1.540(b)(3) motion, thereby effectively reinstating the final judgment in favor of the defendant.

Ford v. Stimpson, 5th District. Case No. 5D11-2787 (April 19, 2013).

Florida Rule of Civil Procedure 1.442 has been edited to reflect the amendment.

IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE  1.442, No. SC13-224

SP Healthcare Holdings, LLC; ASC Holdings, Inc.; Rodolfo Gari, M.D.; Laurie Gari; Rodolfo Gari Jr., Grantor Retained Annuity Trust; and Laurie Gari Grantor Retained Annuity Trust v. Surgery Center Holdings, LLC; Armenia Ambulatory Surgery Center, LLC; Surgery Center Holdings, INC.; and H.I.G. Middle Markets, LLC, 38 Fla. L. Wkly D571a (Fla. 2d DCA Mar. 8, 2013).

The trial court denied the motion to dismiss finding that it was limited to considering the four corners of the complaint on a Motion to Dismiss. The Third DCA overturned the trial court’s ruling, finding:

As a general rule, when considering a motion to dismiss, a trial court is limited to the allegations within the four corners of the complaint and any attachments. See e.g., Minor v. Brunetti, 43 So. 3d 178 (Fla. 3d DCA 2010). However, there are several exceptions to this general rule. For example, a court is permitted to consider evidence outside the four corners of the complaint where the motion to dismiss challenges subject matter jurisdiction (See, e.g., Seminole Tribe of Fla. v. McCor, 903 So. 2d 353 (Fla. 2d DCA 2010); Barnes v. Ostrander, 450 So. 2d 1253 (Fla. 2d DCA 1984)) or personal jurisdiction (See, e.g., Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989)), or where the motion to dismiss is based upon forum non conveniens (Kinney Sys., Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996); Fla. R. App. P. 1.061) or improper venue (See, e.g., Barclays Bank, PLC v. Munoz, 890 So. 2d 1252 (Fla. 3d DCA 2005); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l Bank of Melbourne & Trust Co., 238 So. 2d 665 (Fla. 4th DCA 1970)). A motion to dismiss based on a contractual forum selection clause is similar, in many respects, to a motion to dismiss for improper venue. We can discern no reason for treating them differently for purposes of applying the exception to the “four corners” rule. This is especially so because, in Florida, forum selection clauses are presumptively valid and it is the burden of the party seeking to avoid that contractual agreement to establish “that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Corsec, S.L. v. VMC Intern. Franchising, LLC, 909 So. 2d 945, 947 (Fla. 3d DCA 2005) (quoting Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986)).

STEINER TRANSOCEAN LIMITED v. MILENA EFREMOVA, Case No. 3D12-2390 (3d DCA March 13, 2013).

 ”[W]hen a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff’s voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from remedying the effects of the fraudulent conduct.  Any affirmative relief the plaintiff obtained against the defendant as a result of the fraudulent conduct would clearly have an adverse impact on the defendant, thereby entitling the defendant to seek relief to set aside the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(3). . . . In this case, because BNY Mellon did not obtain affirmative relief before taking the voluntary dismissal, the trial court did not have jurisdiction to reinstate the dismissed foreclosure action for the purpose of dismissing the action with prejudice.”

Pino v. The Bank of New York, 38 Fla. L. Wkly S78a (Fla. Deb. 7, 2013)

The summary judgment and motions to set aside the default were at the same time. The trial court upheld the entry of the clerk’s default and entered final summary judgment in favor of Caterpillar. The final judgment included the award of attorneys’ fees based on an affidavit filed by Caterpillar.

The Fourth DCA found that the defaulted defendants were still entitled to have an opportunity to contest unliquidated damages, like attorneys’ fees.

Zhou v. Caterpillar Financial Services Corp., 38 Fla. L. Weekly D112a (Fourth DCA Jan 9, 2013)

 Diamond Aircraft offers to settle this case on the following terms:

1. Diamond Aircraft shall pay Plaintiff the sum of forty thousand dollars ($40,000.00).

2. This offer is intended to resolve all claims that were or could have been asserted by Plaintiff against Diamond Aircraft in the Amended Complaint filed March 15, 2007. The condition of this offer is that Plaintiff will dismiss his pending claims against Diamond Aircraft, with prejudice to re-file.

3. This offer shall remain open for thirty (30) days from the date hereof. Failure to accept this offer within thirty (30) days shall be deemed a rejection of this offer under Fla. Stat. § 768.79(1).

4. This offer shall be accepted by filing a written acceptance with the Court within 30 days after service. Fla. Stat. § 768.79(4).

The offer was not accepted and, after entry of judgment, Diamond Aircraft sought fees per 768.79.

The Florida Supreme Court determined that Diamond Aircraft was not entitled to recover its attorneys’ fees because “section 768.79 does not apply to cases that seek both equitable relief and damages.”   The court left open the door open to the use of an offer that was intended to settle only the monetary portion of the lawsuit, rather than the entire claim.

DIAMOND AIRCRAFT INDUSTRIES, INC. v. ALAN HOROWITCH, 38 Fla. L. Weekly S17a (Fla.  Jan. 10, 2013).