Following the Supreme Court of Florida's decision in Kuhajda v. Borden Dairy Co., 41 Fla. L. Weekly S471 (Fla. October 20, 2016), we noted ambiguity in the landscape of proposals for settlement would likely lead to a slippery slope of formerly fatal technical deficiencies that would now be potentially acceptable for purposes of awarding fees. That slope appears to be drawing some early action within the Second District in the case of Polk Cty. v. Highlands-In-The-Woods, L.L.C., 42 Fla. L. Weekly D1135 (Fla. 2d DCA May 19, 2017).
As we previously noted, prior to the Kuhajda decision, the Supreme Court of Florida's precedent from Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013), even minute and seemingly irrelevant technical deficiencies could render an offer of judgment invalid for the purpose of seeking attorneys' fees . Under that precedent, courts had invalidated offers on the basis of failure to state both whether attorneys’ fees were included in the offer and whether they were sought in the claim (i.e., simply stating one or the other would not suffice). Deer Valley Realty, Inc. v. SB Hotel Assocs. LLC, 190 So. 3d 203, 205 (Fla. 4th DCA 2016).
However, in Polk Cty. v. Highlands-In-The-Woods, L.L.C., the Second District held that the offering party did not need to address specifically the issue of attorneys' fees in the offer, did not need to address the issue of punitive damages in the offer, and did not need to address the issue of injunctive relief in the offer. In essence, where there may have been previously three potentially fatal deficiencies, the Second DCA found none. The Court reversed the trial court's denial of the motion for attorneys' fees premised on the offer of judgment at issue and remanded to determine the amount of fees that were to be awarded.
The landscape of procedural mechanisms for obtaining attorneys' fees is shifting potentially now more than ever. The help of an experienced litigation attorney could mean the difference in thousands of dollars in attorneys' fees awarded either for or against a litigant. Reach out to the attorneys of Icard Merrill today if you have questions or need help.
A recent court decision took a page from the (perhaps now abandoned) book of hyper-technical requirements preceding the award of attorneys' fees in cases that has long been the purview of the Offer of Judgment/Proposal for Settlement statutory and rule scheme.
In the case of Estimable v. Prophete, 42 Fla. L. Weekly D1312 (Fla. 4th DCA June 7, 2017), the Fourth District considered the technical prerequisites for awarding fees under the "frivolous claims" statute--S. 57.105, Florida Statutes. In Estimable, the Court determined that, though the prevailing party had properly followed the statutory requirements of 57.105, it had failed to meet the technical requirements of Florida Rule of Judicial Administration 2.516 in that it had failed to include the language "SERVICE OF COURT DOCUMENT" followed by the case number in the subject line of the letter, did not include the name of the initial party and title of the document served in the body, and did not attach a copy of the document in PDF format (or a link to the document on the clerk's website). Therefore, the Court determined sanctions were not appropriate and were not enforceable and reversed the trial court's order for attorneys' fees.
This case stands as a reminder to practitioners that attorneys' fee awards without the prior agreement of the parties is still considered to be rendered in derogation of common law and will continue (at least in some statutory schemes) to be strictly construed by courts.
If you have questions about a frivolous lawsuit claim or wish to find out your rights and risks in litigation, contact one of our experienced litigation attorneys today.
Another salvo was recently launched in the ongoing battle between the State's legislators and its judiciary (and, likely, personal injury lobbyists as well) on the issue of damage caps. In this instance, the action dealt with caps on medical malpractice claims. N. Broward Hosp. Dist. v. Kalitan, 42 Fla. L. Weekly S642 (Fla. June 8, 2017).
In Kalitan, the Supreme Court of Florida considered and dismissed notions of a "continuing medical malpractice insurance crisis" listed and argued by the State in support of damage caps on medical malpractice claims for personal injury non-economic (i.e., 'pain and suffering') damages. The Court found that the caps violated the Equal Protection Clause, citing its own opinion in a previous case where it determined that a similar cap was unconstitutional because it "'imposes unfair and illogical burdens on injured parties' and 'does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.'"
It seems strange to say that damage caps, which aim to reduce potential exposure for insurers, is not rationally related to that aim, however, the Court pointed out that there was a lack of evidence to suggest the caps "that were intended to reduce instances of doctors leaving Florida, retiring early, or refusing to perform high risk procedures" were actually having that effect or were even resulting in lower premiums. The Court noted that Insurance company profits were up following the caps, but that the savings were not being passed on to individual insured physicians.
This case certainly seems to be a situation where insurers may have made their own bed and are now being forced to lie in it. If the insurers had been able to produce evidence that they had actually reduced premiums and increased the number of insured physicians, they may have been able to preserve the caps. Yet, instead it appears the insurers took the stance that putting money directly into their coffers now made more business sense.
It is unlikely this decision will end the debate (or legislation) on damage caps, especially given the State's finding that "Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude." Ch. 2003-416, § 1, Laws of Fla., at 4035.
National homebuilder powerhouse Taylor Morrison suffered a setback on its attempts to force buyers into arbitration when they allege building code violations. In the Second District Court of Appeals, the case of Reginald Anderson v. Taylor Morrison of Fla., Inc., 42 Fla. L. Weekly D1232 (Fla. 2d DCA May 31, 2017), dealt with the builder's attempts to enforce an arbitration agreement contained in its form Purchase and Sale Agreement against the buyers who were alleging defects in the home they purchased.
The Court determined that the Taylor Morrison contract attempted to limit or circumvent statutory protections for the buyers under Florida law, so the contract itself violated public policy and was not enforceable against the buyers alleging the construction defects. In reaching this conclusion, the Second District stated that a contract violates public policy where it "defeats the remedial purpose of a statute or prohibits the plaintiff from obtaining meaningful relief under the statutory scheme." Anderson v. Taylor Morrison of Fla., Inc., 42 Fla. L. Weekly D1232.
It appears, based on this ruling, that Taylor Morrison will have to go back to the figurative drawing board in order to find a way around statutory protections for buyers of its homes.
If you have a question about or a dispute with a builder regarding a home or other purchase and sale contract, or are experiencing construction defects, the experienced construction litigation attorneys at Icard Merrill may be able to help you.
An interesting case fact pattern helps answer a common question that clients have; "can I get pain and suffering or punitive damages in a contract case?" In the case of Deauville Hotel Mgmt., LLC v. Ward, 42 Fla. L. Weekly D1219 (Fla. 3d DCA May 31, 2017), the Third District Court of Appeals gives a nice illustration of the damage types (and the principles underlying those types) available in a contract case.
In Deauville Hotel Mgmt., LLC v. Ward, the plaintiffs had contracted to hold their wedding reception in the defendant hotel's ballroom, but found out just hours before their wedding that the ballroom was no longer available (due to a shut down for building code violations) and the couple was forced to hold their reception for 190 people in the hotel's lobby (where other hotel patrons walked through--some in their swimsuits--and participated in the festivities). The couple, mortified, brought the lawsuit for various types of damages, including punitive damages for intentional infliction of emotional distress (a rare exception to the Florida rule that there must be a physical touching in order to collect for purely emotional damages). The jury actually found that the hotel had committed conduct that was so extreme and outrageous as to shock the conscience--the standard for a successful intentional infliction of emotional distress claim.
The Third District, however, reversed on that point and nullified the emotional distress verdict. The Court cited two cases where outrageous conduct--one in which a pastor was called a 'thief' in front of his congregation and one in which an employee was subjected to racial slurs and threats of termination--was found not outrageous enough to trigger emotional distress damages.
Further, the Court reduced the amount of economic damages awarded to the plaintiffs on the basis that they did actually get to use portions of the "flowers, linens, photography, videography, entertainment, transportation, and cake" at the location where the wedding was held (even though they were not available for the reception) and to award them the cost as well as the use of the items would have been duplicative.
In all, the plaintiffs likely felt emotionally abused at the hands of the appellate court following this decision, but the legal underpinnings of the decision were soundly based in the applicable law and parties curious about the way damages work in contract cases can get a helpful primer by reviewing the Court's opinion.
In a case that might represent a metaphor for the process of divorce consuming the last of the love between two people, a recent case touches also on the realities of divorce litigation and its expense. In the case of Rosaler v. Rosaler, 42 Fla. L. Weekly D1061a (Fla 4th DCA 2017), the Court remanded the final judgment of divorce to allow the trial court to reassess financial findings in the case. The wife in the action had sold her diamond ring from the marriage and used the approximately $60,0000 proceeds to fund her legal battle with the husband.
In the course of making the final determination, the trial court considered the $60,000 part of the wife's share of the marital estate rather than a temporary support payment, according to the Appellate Court, and without making proper findings that the wife had entitlement to temporary support in the form of attorneys' fees (i.e., an inability to pay and need and an ability to pay by the husband). Therefore, the wife suffered potentially a $30,000 loss as a result of the judgment as a result of improper ruling not based on findings by the Court.
Leaving aside the other metaphorical considerations for the moment, this case should serve as a reminder to parties in a divorce that mistakes can be made, even by judges, and the assistance of competent counsel at the appellate level may have made the difference in many thousands of dollars for this now former wife. If you have questions about your divorce or the process of obtaining one, speak to the outstanding family law attorneys at Icard Merrill today.
A recent decision in the 11th Circuit in Broward County highlights a rule that can have very severe application for tenants in an eviction case. The case of Fagan v.New Hope Dream Team Charity, Inc. (24 Fla. L. Weekly Supp. 925a) reminds tenants of the pitfalls of 83.20(2), Florida Statutes. In fact, this section has been referred to as being a "no mercy" system for tenants, as well as commonly called "pay to play." The Section requires tenants, within only five days after being served with the complaint, to either post with (i.e., pay to) the clerk of the court all of the claimed back owed rent or to file a motion to determine how much that rent should be. If the tenant fails to do either, the landlord is entitled--without a hearing or notice--to a court order granting the landlord possession of the property and the tenant is deemed to have waived all defenses related to the possession of the property.
While many deadlines in litigation can be either extended or even remedied if the missing of such a deadline was a good faith mistake with proper action taken to correct it quickly, Florida Statutes 83.20 allows for no wiggle room or apologies. In fact, courts are forbidden from even taking into consideration the reasons the deadline was missed (including potentially even a serious injury or other real and actual emergency). See, Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, *812 (Fla 3d DCA 2010).
It is critical that both landlords and tenants know their rights and be aware of the timelines and requirements imposed in an eviction in order to preserve that party's rights in a landlord-tenant eviction action. If you have questions about your lease or about eviction, contact our landlord-tenant litigators today.
A 2017 case decided in the Third District illustrates one of the (numerous) nuances of offers of judgment and proposals for settlement pursuant to Florida Statutes § 768.79 and Florida Rule of Civil Procedure 1.442. Case law has traditionally referred to a requirement that these procedural mechanisms for triggering liability for attorneys' fees must be made in "good faith" with respect to the amount offered. There have been numerous cases exploring the issue of whether offers are made in good faith and whether certain offer amounts can lead to a finding that the offer was not made in good faith.
As the Court notes in its opinion UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PARTNERS IN HEALTH CHIROPRACTIC CENTER (24 Fla. L. Weekly Supp. 785a), "[t]he rule is that a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal.” E.g., State Farm Mut. Auto. Ins. Co. v. Sharkey, 928 So. 2d 1263, 1264 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1445a] (citations and quotation marks omitted)." However, the important part of that ruling could be argued to be that the party could reasonably believe "its exposure" was nominal. The instant case seems to expand that ruling.
In this action, the defendant proposed settlement for a total amount of $500. The defendant argued after the fact that the offer was made in good faith since the insurance company believed the whole time that it was very likely to win the case. Having litigated many dozens of cases, this blog's author has yet to meet a party that did not feel it was right and at least fairly likely to win the case. However, the Court noted that, since the defendant was consistent (or perhaps persistent) in its belief that it was, indeed, correct and would win at trial, the offer was made in good faith.
What was argued--and ultimately dismissed by the Court--was that the defendant's exposure could never really have been anywhere close to $500. Since there were legal issues being decided on both a helpful and hurtful side of the fence for defendants during the action, the insurer would eventually be proven right or wrong. Although the chances of being proven right may have been on the side of the insurer, leading to its confidence in its position, its exposure if incorrect would have always been far greater than the $500 offered. Therefore, the rule of assessing reasonable expectations of "exposure" could be argued to have melded into the concept of self-confidence in the likelihood of success. Based on this ruling, any party who ultimately prevails will need to show only that an offer was made and that the party was very sure throughout the case that it would win and the proposal is likely to be upheld (especially so since it is very difficult to argue that an expectation of winning was unreasonable when a party does indeed win down the road).
If you have questions about your case or the complex world of offers of judgment or proposals for settlement, contact one of our litigation attorneys today.
Though we have noted in this blog the rarity--if not potentially the impossibility--of obtaining a "free house" in mortgage foreclosure cases, as many borrowers chase much like Captain Ahab looking after his great white prize, one decision shows the extremely limited factual circumstances where a party can obtain just that.
In the case of REVERSE MORTGAGE SOLUTIONS, INC. versus the heirs of Ruby Lee Hayes (24 Fla. L. Weekly Supp. 938a), the court was faced with a reverse mortgage that was the subject of a mortgage foreclosure, which is not of itself an unusual proposition. However, what made this case unique was the fact that the bank (or perhaps its counsel) were so inattentive (which, again, is not altogether that unusual in and of itself) that it went unnoticed that more than five years had passed since the original action to foreclose had been dismissed by the trial court. Whereas, under the newest Bartram v. U.S. Bank, N.A., 41 Fla. L. Weekly S493 (Fla. November 3, 2016) case law, the statute of limitations is extended by each missed payment regardless of acceleration of the note by the bank, in this action, the default was the passing of the borrower, Ruby Hayes.
Since no payments were due (being a reverse mortgage), the court determined that no continuing default was present through which the bank could claim an extension of the statute of limitations. Final Judgment was entered in favor of the borrower's lone heir, awarding her the house and denying the bank's effort to foreclose the mortgage and note.
It's not immediately clear what the heir's plans are for the home, but should she elect to stay in the home for the remainder of her life, it may prove very difficult for the bank to collect anything on its note and mortgage whatsoever. At least for the time being, we appear to have a verified sighting of the fabled "free house" foreclosure unicorn.
The question of who "holds" the note and mortgage (even where, as is often the case, the 'holder' cannot physcially hold the note and mortgage because they are lost) is one of the most often litigated aspects in residential foreclosures. Borrowers in default and looking for ways to keep their home (or at least to stay in the home mortgage free for as long as possible), often find themselves getting a crash course over the internet on concepts such as the "holder" of the note, indorsements, allonges, indorsements in blank, and standing. Speak to a borrower that is a veteran of a multi-year, multi-action foreclosure and an uninitiated attorney may even learn a few things about these terms as well.
Another recent case before the Fourth DCA touches on several of these concepts and helps give more guidance to those defaulted borrowers seeking to stem the virtually inevitable tide of foreclosure of their home. As the court in PennyMac Corp. v. Frost, 2017 Fla. App. LEXIS 3441 (Fla. 4th DCA 2017) stated, the note in question was originally indorsedn in blank by the original lender, however, that indorsement was marked "void." Subsequently, an allonge and blank indorsement was executed by a successor in interest to the original lender. The borrower argued (and the trial court agreed) that the original void indorsement rendered any subsequent indorsement invalid for purposes of standing without more steps being taken as a nonholder in possession of the note and with the rights of a holder.
Foreclosure actions can be challenging and very confusing to the uninitiated. Talk to an attorney in the foreclosure group at Icard Merrill today if you have questions about your home and mortgage.
The Second DCA issued an opinion this month on a topic that has become a bit of a hot button issue and technique among defense firms in recent months--the practice of seeking dismissal on the basis of a plaintiff's alleged fraud on the court. In Duarte v. Snap-On, Inc., 2017 Fla. App. LEXIS 3414 (Fla. 2d DCA 2017), the Court outlined what has become a popular tool for defense counsel; the defense finds discrepancies between a complaint, the party's discovery responses, and the party's deposition testimony and highlights those discrepancies in a motion to dismiss the case on the basis of an attempted fraud against the court.
The reasoning is sound, if less than scrupulous; the defense gets a second chance to dismiss the case without a trial if it can show discrepancies (which exist for all parties--plaintiffs and defendants--in virtually all actions), or at worst, simply gets an opportunity to attempt to paint the other party as a liar or a non-credible witness. The Second DCA decision in Duarte helps outline the high burden for dismissal for fraud on the court by stating that the party seeking dismissal needs to prove by "clear and convincing evidence" that
his opponent "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
Thus, neither a mistake nor a lie is sufficient to justify dismissal in most cases. As has long been the case, the court points out that:
Generally, unless it appears that the process of trial has itself been subverted, factual inconsistencies or even false statements are well
managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim.
However, some attorneys seem to find that simply impeaching a party at trial is less effective than attempting to poison the court against that party before the trial even begins, which may explain the recent proliferation this blogger has perceived in use of this technique in recent months.
In another high water mark for protections for employers, the recent case of Allied Universal Corp. v. Given, 2017 Fla. App. LEXIS 3459 (Fla. 3d DCA 2017), outlined various protections for employers from other cases and resulted in a case that is likely to be often cited by employers in their battles against former employees in the area of non-compete litigation.
The Third DCA starts by broadly construing Section 542.335, Florida Statutes (Valid restraints of trade or commerce) by referencing protections for "goodwill associated with an "ongoing business or professional practice," among other things, as a basis for injunctive relief. What makes the construction broad is that the Court found that the employer needed only establish that there were legitimate business interests, at which time there became a "rebuttable presumption of irreparable injury for purposes of obtaining a temporary injunction under section 542.335(1)(j)."
Unlike in many instances, the employer here was not required to show any actual interference with specific current or potential customers, nor any actual injury or damage. Simply having legitimate interests was enough to flip the burden of proof to the employee, who was expected to have evidence at the temporary injunction stage to show that the employer had not been damaged. Understandably, the employee was unable to show the absence of injury of any sort to the employer at that early stage and an injunction was entered against the employee. Often, the granting of an injunction is enough to break the employee's resistance and to end the case (since now the employee is unemployed, which makes funding ongoing litigation difficult, if not pointless).
The Second District Court of Appeals doubled down on a previous ruling in North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015), review granted, No. SC15-1858 by stating that the trial court correctly followed the Fourth District’s ruling that medical malpractice personal injury case statutory caps on non-economic damages violates the equal protection provision of the Florida Constitution. Port Charlotte HMA, LLC v. Suarez, 41 Fla. L. Weekly D2393 (Fla. 2d DCA October 26, 2016).
Both Kalitan and Suarez represent an extension of the Supreme Court of Florida’s ruling that similar statutory caps imposed in medical negligence wrongful death claims were likewise unconstitutional in Estate of McCall v. United States. 134 So. 3d 894, 897 (Fla. 2014).
This appears to be the judiciary striking back against the attempts of lawmakers to limit the amount of damages awardable on the basis of “soft” claims in medical negligence cases—claims that can make the practice of medicine and obtaining and providing coverage for malpractice insurance for physicians in the State of Florida difficult and costly.
It will be interesting to see how many dominoes continue to fall as other statutory caps may find themselves in the judiciary’s crosshairs.
If you have a question about your case, about the types and amounts of damages you could be awarded, or questions about whether you may have a case at all, consult with the experienced litigation attorneys of Icard Merrill today.
Upon taking office, one of the very first official acts by newly minted President Trump was to sign an executive order curtailing enforcement of the punitive elements of the Affordable Care Act. The full text of the EO (which can be found here) calls for enforcement agencies to "exercise all authority and discretion available to them" in order to minimize burdens of the Act pending repeal, to preserve choices in the marketplace for consumers, and to encourage open competition by insurers.
This executive order obviously heralds the most serious efforts to date to repeal the controversial health care bill that was signed into law (potentially without even being read by many lawmakers). This measure is being billed as an effort to reduce the impact of the more onerous provisions of the Act to employers and businesses, while trying to preserve some of the benefits achieved for consumers. The efficacy of the change from the ACA to some form of health care bill that has yet to take shape will be a point of interest (and, likely contention) among pundits in the coming years.
For employers, the question becomes "how does this effect my business?" As often is the case, the effects of this enforcement 'cool down' might not be clear for some time, but it is important to speak to an attorney to find out whether your business is likely to see impacts from the changing law and what those impacts might be. Talk to one of the employement attorneys at Icard Merrill to find out more about your business and how the ACA repeal may affect it.
A recent decision in the case In re Estate of Arroyo, reveals an interesting mechanism for plaintiffs to seek their remedy from an insurance company that declines to defend its insured while sparing the assets of the insured itself. 42 Fla. L. Weekly D192 (Fla. 3d DCA January 18, 2017).
In the case, the estate of a person involved in a car accident was sued by the family of the other driver, asserting negligence claims. The claims were presented to the insurance company which promptly refused to defend the claim. The estate then reached a deal with the plaintiffs which involved the estate agreeing to entry of a consent judgment in exchange for the plaintiffs' agreement not to enforce the judgment agains the estate. The estate also assigned its rights against the insurance company to the plaintiff. A bad faith claim was brought by the plaintiffs in the shoes of the insured and the insurance company attempted to defend itself with defenses of the insured against the claims.
The court determined that the insurance company had waived its right to defend against a liability claim by refusing to defend in the first action. Therefore, the appellate court found those defenses had been waived as a matter of law, which opened the way for the plaintiff to take the fight against the insurance company.
The mechanism described above is called a Coblentz agreement since it originates from Coblentz v. Am. Surety Co. of New York, 416 F.2d 1059 (5th Cir. 1969).
These types of complex multi-party litigations are extremely difficult to navigate without the help of an experienced and able attorney. Rhe litigation department of Icard Merrill is available to help you tackle these challenges. If you have questions about your rights or a case, contact our attorneys for help today.
As outlined here (and as covered by our own Jessica Farrelly here), three major Federal circuit courts are scheduled to decide whether Title VII should include in its definition of gender and/or sex discrimination the issue of sexual orientation/sexual preference discrimination. This is a potential watershed moment in national discrimination jurisprudence, as both the EEOC and lawmakers have an eye on increasing efforts to see LGBT and gay rights included in the long-held echelons of protected class under Title VII.
It is not unusual to see courts do a bit of a jive when it comes to balancing precedent and the tides of social evolution. What appears to be likely to be an escape hatch of sorts for courts considering the issue will be interpretation of other acts, notably the Sherman Act, which is much more liberally construed in today's jurisprudence compared to the period when it was enacted (in the late 1800s).
Employers, legal practitioners, and the LGBT community will be watching with great interest as these decisions are levyed in the coming months. In the meanwhile, employers may have questions about how these changes might impact their business. An employer should consult with an attorney if they have questions about how the law will affect their business and the experienced employment attorneys at Icard Merrill can help your business try to avoid finding itself soon under these changing tides.