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.
In a sad (if also slightly comical in title only) case recently decided in the 17th Circuit in Broward County, a couple that later split ended up suing one another for the dog the two shared while a happy couple. Persinger v. Pitts, 24 Fla. L. Weekly Supp. 998b. In what was potentially meant to be a wake up call to two litigants who may have had designs more on spite and revenge than on establishing ownership of the dog, the Court dismissed the case finding that the two were joint owners of the dog and that neither of them could sue the other for replevin of the furry companion.
Instead, the court advised that the parties were free to bring a partition action regarding the pup, which would be sure to send animal rights activists into a frenzy. Although physical partition of property (i.e., "I get this half and you can have that half") is a remedy that is available to parties, it seems unlikely that the poor dog would be subjected to anything more than court-ordered visitation and habitation schedule if the matter were brought as a partition. One other thing sometimes done with real property in a partition action is where the property itself is sold and the proceeds split between joint owners. Presumably that would not be a merry result for the trio either.
As this case shows, domestic disputes can sometimes lend some source material fit for Hollywood in terms of the extreme steps and battles undertaken by the parties. In order to help prevent or wind down some of the (often quickly spiraling) hostilities and to protect you from losing your rights, it can be essential to talk to an experienced family law attorney. Contact our family law attorneys in Sarasota and Port Charlotte today if you need help.
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.
Two cases recently decided highlight the differences between alimony awards depending on whether the marriage is considered short-term or long-term. RODRIGUEZ v. LORENZO, 2017 Fla. App. LEXIS 4653, 42 Fla. L. Weekly D 790, 42 Fla. L. Weekly D 790 (Fla. Dist. Ct. App. 3d Dist. Apr. 5, 2017) dealt with a marriage of four years at the time of filing (six years by the time the decree was entered dissolving the marriage), while COOK v. COOK, 2017 Fla. App. LEXIS 4620, 42 Fla. L. Weekly D 770, 42 Fla. L. Weekly D 770 (Fla. Dist. Ct. App. 2d Dist. Apr. 5, 2017) dealt with a marriage that lasted eighteen years.
Under Florida law, there is a rebuttable presumtion that "a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater . . . . until the date of filing of an action for dissolution of marriage." § 61.08, Fla. Stat. Under Florida statutes, there is a rebuttable presumption that a marriage that is short term should not result in permanent periodic alimony, as noted by the Court in the Rodriguez case. Whereas, in long-term marriages, the Court must determine whether there is a need by the spouse seeking alimony and whether there is an ability to pay by the other spouse. If those criteria are both met, alimony is then awarded, as mentioned int he Cook case.
As is often the case, these presumptions are usually rebuttable, which makes each case a very fact-specific endeavor. The help of a trusted and experienced attorney can often mean the difference in many thousands of dollars over the course of life after divorce.
If you have questions about whether you are entitled to alimony or whether your spouse may be entitled to alimony if a claim for it is made, contact the excellent Family Law attorneys at Icard Merrill today. They can help you understand your rights and obligations.
We have on several occasions in this blog touched on the requirements of standing for the lender, evidentiary requirements for the default notice, and foundation for bank witnesses. Though recently there had seemed to be a tightening of requirements for proving the sending of the default notice and for qualifying a witness to speak on another institution's default notice generation protocols and record-keeping, a recent case seems to again potentially lessen the burden on lenders seeking to foreclose.
In the case of JPMORGAN CHASE BANK NATIONAL ASSOCIATION v. JEAN PIERRE 2017 Fla. App. LEXIS 4632, 42 Fla. L. Weekly D 781, 42 Fla. L. Weekly D 781 (Fla. Dist. Ct. App. 4th Dist. Apr. 5, 2017), the Fourth District Court of Appeals reversed judgment in favor of the borrowers and ordered entry of judgment for the lender (actually, the successor in interest to the lender) on the basis that the trial court's findings that the bank had not proven that a default notice had been sent and that it had not proven standing were contrary to the law.
In this case, though the witness that appeared worked for a third party servicer for the bank, she speculated about the date upon which the note had been transferred and testified that the servicer--not the bank that brought the action--owned the note. Further, she testified that she had learned during her training at the servicer about the original (not the current lender that her company was actually representing) lender's default notice generation protocols and that she was aware, generally, with those protocols and that her company had verified through collection notes that the letter had been sent.
Citing issues with standing given the testimony by the record custodian that a party other than that which filed the complaint actually owned the note and testimony which apparently led the trial court to determine the witness did not have actual familiarity with the originating lender's default notice policy, the trial court entered judgment in favor of the borrowers. The appellate court reversed and ordered entry of judgment in favor of the lender, stating (in sum) that the stated familiarity with the process by which a third party originating lender generally goes about sending letters with notice of default was sufficient and that it did not particularly matter when the witness believed the endorsement was signed transferring the note and it did not particularly matter that the witness thought her company owned the note in question rather than the Plaintiff lender.
A subtle maneuver was made by the appellate court here, as well. Though the standard of review was de novo, since the issues were deemed a matter of law, the question of whether the witness knew about the default notice procedure and whether a letter was sent was an issue of fact, since the borrowers had denied that a letter had been sent. The appellate court seems to have taken the bank witness testimony at face value and disregarded the denial by the borrowers that any notice had been sent. The trial court (which is presumed to be in the best positoin to weigh credibility of a witness) was disregarded by the appellate court on this point, which perhaps was due to the fact that the trial court did not make a finding on the record that the witness was not credible in her testimony.
Compare this case to the recently reviewed case of Allen v. Wilmington Trust, N.A., 2017 Fla. App. LEXIS 3970 (Fla. 2d DCA 2017), which we discussed here.
If you have questions about a foreclosure, a contract, or other real estate dispute reach out to the foreclosure attorneys of Icard Merrill today.
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).
A recently decided case in the Second District Court of Appeals, Allen v. Wilmington Trust, N.A., 2017 Fla. App. LEXIS 3970 (Fla. 2d DCA 2017), touched on the fact requirements that must be proven in a foreclosure action with respect to the acceleration notice. This notice has been the subject of a great many defenses at the trial court level and the subject of a fair amount of appeal briefs, as well.
As is normally the case in foreclosures, the current servicer of the loan in Allen was not the entity in interest at the time the notice of acceleration was purported to have been sent. Therefore (againa as is common in foreclosure cases), the new servicer detailed how it "onboarded" the previous bank's documents and reviewed them, and the designated servicer representative spoke confidently about what had happened with documents in the previous file (despite the fact that she could not have personally known what had transpired previously). The witness said that a letter was in the file and was dated which gave notice of the acceleration and that, because the letter was in the file, it must have been sent to the borrower (because, "servicers aren't in the habit of generating letters that they don't send" claimed the witness). However, no envelope with postage paid or other proof of actual mailing appeared in the file.
The trial court allowed the foreclosure to continue, but the Second DCA reversed, finding that simply drafting a document does not indicate the sending of that document and that, while onboarding does allow introduction of documents into evidence of the previous bank or servicer, it does not qualify a witness to testify about what happened with certain documents without actual personal knowledge of (at a minimum) knowledge of the business practices of the party that was purportedly mailing the notice. Thus, in Alen, the Second DCA again reminds banks that, yes, they must prove that they sent an acceleration notice to the borrower in order to foreclose the property and that it is not enough to simply indicate that the letter existed and was drafted at some point.
Despite some local groundswell and a hearty minority recommendation to bring the State of Florida’s evidence code in line with Federal standards (as well as those of a majority of other jurisdictions), the Supreme Court of Florida last week declined to adopt a 2013 amendment passed by the state legislature which replaced Frye with Daubert as the standard for admission of expert witness testimony. In re Amendments to the Fla. Evidence Code, No. SC16-181, 2017 Fla. LEXIS 338, at (Feb. 16, 2017).
Citing “grave” constitutional concerns (and teeing up, if not hinting at a potential future ruling of unconstitutionality), the Court found the Daubert standard used in the majority of jurisdictions to be a poor fit for Florida.
Possibly the more noteworthy issue is the interplay between the branches of the State’s government. It would be a potentially interesting discussion (at least to civics wonks or those with a fascination for tedium) to have regarding the legislature’s rule-making authority compared to the Court’s inherent power to issue and administer rules for court procedure.
As the Court mentions in its refusal to adopt another legislative change to the “same specialty” requirement regarding medical expert testimony, “we do not address the substantive/procedural issue raised here because whether the Legislature's amendments to section 766.102(5)(a) and repeal of section 766.102(14) somehow run afoul of the trial court's inherent power or this Court's rule-making authority must be left for a proper case or controversy and not decided in this rules case.” Id. (citations omitted).
Evidence code issues such as these can often be the downfall of an otherwise viable case. It is critical to seek the advice of an experienced litigation attorney if you are concerned about your case. Talk to one of the civil litigators at Icard Merrill today.
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.
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