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 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)

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.

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 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).

The trial court abused its discretion by dismissing the case after the Plaintiffs failed to attend a case management conference.  The Plaintiffs had hired a new attorney, who had a filed a Motion for Approval of Stipulation for Substitution of Counsel.  The Plaintiffs’ attorney had twice scheduled the motion for hearing and twice the trial court had ran out of time to hear the motion.  The clerk sent notice of the case management to the former attorney’s office and when the conference came up on the calendar neither the new attorney, nor the Plaintiffs, attended the case management conference.  They had not received any notice.  Nevertheless, the trial court dismissed the case.

Citing Camerota v. Kaufman, 666 So.2d 1042 (Fla. 4th DCA) and Rule 1.200(c), Fla. R. Civ. Pro., the Fourth DCA found that a finding of willful and contumacious behavior is necessary to support such a dismissal and overturned the trial court’s decision.

Dedmom v. Kelly, Case No. 4D09-3572 (Fla. 4th DCA May 18, 2011)

The Florida Supreme Court has resolved the split between the District Court of Appeals over what action is required to keep a matter from being dismissed from prosecution after the Rule 1.420(e) threshold of ten months of inactivity.  The Court found that “any filing of record during the applicable time frame is sufficient to preclude dismissal—without regard to a finding that the filing is intended to affirmatively move the case toward resolution on the merits.”  The Court rejected the position adopted by the First DCA that only an “attempt to move the case toward conclusion on the merits” constituted record activity sufficient to avoid dismissal for lack of prosecution.

Chemrock v. Tampa Electric Co., Case No. SC09-2263 (Fla. June 30, 2011).