Florida Rules Decisions

SOUTHEAST FLOATING DOCKS, INC v. AUTO-OWNERS INSURANCE CO., 37 Fla. L. Weekly S63a (Fla. Feb. 2, 2012) – Offer of Judgment Statute Does Not Apply in the Face of a Choice-of-Law Clause

Jason Baruch — Mon, 06 Feb 2012 23:16:38 +0000

In this Florida Supreme Court case, the Court addressed the following certified question: “Does Fla. Stat. § 768.79 apply to cases that are governed by the substantive law of another jurisdiction; and, if so, is this statute applicable even to controversies in which the parties have contractually agreed to be bound by the substantive laws of another jurisdiction?” The Court answered the question in the negative, holding that the statute is “substantive” and therefore inapplicable when the parties have contractually agreed to be bound by the substantive laws of another state.

SOUTHEAST FLOATING DOCKS, INC v. AUTO-OWNERS INSURANCE CO., 37 Fla. L. Weekly S63a (Fla. Feb. 2, 2012)

Rule 1.720 – Mediation Has Been Updated

Brian Willis — Fri, 06 Jan 2012 03:45:18 +0000

Florida Rule of Civil Procedure 1.720 has been updated to reflect the changes to the mediation requirements.

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE

Brian Willis — Sun, 01 Jan 2012 13:00:37 +0000

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.

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE

Estela v. Cavalcanti – Service by Publication Not Allowed When Defendant Provides Foreign Address for Service

Jason Baruch — Thu, 29 Dec 2011 19:49:28 +0000

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)

River Bridge Corp. v. American Somax Ventures – Attorneys’ Fees

Brian Willis — Fri, 23 Dec 2011 19:39:53 +0000

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

Brian Willis — Tue, 20 Dec 2011 17:03:32 +0000

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).

Bank of America v. Lane – court cannot vacate a default on its own motion based on excusable neglect

Jason Baruch — Fri, 09 Dec 2011 22:35:49 +0000

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 re Amendments to Florida Rule of Civil Procedure 1.720 Mediation Procedures

Brian Willis — Tue, 06 Dec 2011 14:14:50 +0000

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).

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) – a defendant may raise affirmative defenses in an affidavit to oppose summary judgment even when no answer is filed

Jason Baruch — Wed, 23 Nov 2011 19:25:43 +0000

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)

Schaffer et al. v. First Bank et al., 36 Fla. L. Wkly D2363a (Fla. 4th DCA Oct. 26, 2011) – re-opening dismissed case after dismissal for failure to prosecute

Jason Baruch — Mon, 07 Nov 2011 21:47:14 +0000

In this foreclosure case, the trial court sent a notice of dismissal for failure to prosecute to bank counsel’s old address even though he had notified the court of a new address. Upon motion after over a month had passed, the court re-opened the case. The borrowers appealed, claiming that a motion to re-open must occur within one month of the dismissal. The appellate court disagreed and affirmed, holding that the supposed one-month restriction appeared only in an older version of the rule that had long since been amended.

Schaffer et al. v. First Bank et al., 36 Fla. L. Wkly D2363a (Fla. 4th DCA Oct. 26, 2011)