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.
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.
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.
Implementation of the Department of Labor’s (“DOL”) proposed overtime rule remains in limbo as the Fifth Circuit Court of Appeal recently approved the DOL’s third request for an extension of time to file its reply brief in order to “allow incoming leadership personnel adequate time to consider the issues.” The most recent extension came within a week of the U.S. Senate’s confirmation of the nomination of Rene Alexander (“Alex”) Acosta as the Secretary of Labor which occurred on April 27, 2017. Accordingly, the DOL’s reply brief is now due June 30, 2017 giving the DOL another two months to evaluate its options, which may include anything from abandoning the appeal altogether to revising the rule to reflect more modest adjustments.
Secretary Acosta does not appear to support the Obama Administration’s efforts to implement and enforce the new overtime rule which would require employers to more than double the current minimum salary requirement of $23,660 to $47,476 in order to maintain the overtime exemption for “white collar” executive, administrative, and professional employees. Acosta has voiced his opinion that such a jump would create “a stress on the system.” Acosta is, however, sensitive to the fact that the threshold has not been updated in more than a decade. He has expressed an interest in consulting further with officials at the Department of Justice to determine whether the DOL has the authority to increase the salary threshold at all. If so, Acosta is on record supporting more modest increases to mirror inflation. During his March 22, 2017 confirmation hearing before the Senate, Acosta stated his belief that the salary threshold should be “somewhere around $33,000” after taking into account inflation to the cost of living since the last time the regulation was adjusted in 2004.
So, in a nutshell, it remains to be seen whether the proposed increase in the salary threshold will be pursued and implemented. In the meantime, however, employers are still encouraged to evaluate “white collar” employees’ primary job duties in order to assess whether they truly meet the second prong of the two-prong exemption analysis – the duties test.
We will continue to provide updates as more developments occur regarding the status of the DOL’s appeal and/or the fate of the new overtime rule.
* * * * * * *
If you have any questions or would like guidance regarding compliance with wage-and-hour laws or other general employment law matters, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group.
An opinion issued by the Supreme Court of Florida in April touched on a mixture of long-time and more recently trending complaints about personal injury litigation in Florida and raised serious questions on what could be argued has become an industry of sorts.
In Worley v. Central Florida Young Men's Christian Ass'n, Inc. 42 Fla. L. Weekly S443b (Fla., 2017), the Court examined practices by a large and very well-known Florida law firm (you've seen the billboards and likely heard the radio or television ads, as well) and the firms "network" of physicians and health care providers and how the firm advises its clients.
In Worley, the allegations of the insurance company were essentially that the firm was steering clients (including perhaps those that did not ask for help seeking medical attention) to several health care providers that had a "cozy agreement" with the firm. The insurance company argued that cozy relationship included the fact that health care providers provided care almost entirely on the basis of "letters of protection" (which means the facility agrees it will provide services with the hope of getting paid from the personal injury lawsuit and not the patient at the time of service) and that the bills generated for those services were extremely high (or, in some cases, potentially fraudulently high) compared to other providers in the area. Implied in the claims by the insurer is the concept that these providers could be rendering these bills as part of a scheme to help the law firm increase damages for purposes of settlement or trial.
The Supreme Court did not allow the insurer to do further discovery into the nature and extent of the relationship between it and the health care providers through the firm's client and further refused to allow inquiry into whether the firm "steered" the client to these providers. This ruling may help keep the shroud in place which covers the potentially seedier side of financial relationships between some law firms and some medical providers in personal injury cases. Some may argue that this ruling could embolden law firms to push the limits of ethical or legal behavior in relationships with care providers given the financial incentive to bend or break the rules and the protections from discovery that this ruling could yield.
Satellite television often has a number of unseen hurdles and obstacles that is must navigate in order to reach the dish mounted on your roof. Though people often think of storms, debris, signal interference, and other obstacles, satellite must also overcome market and legal hurdles, as well, as one recently decided case discusses.
In the case of Florida Department of Revenue v. DIRECTV, Inc., 42 Fla. L. Weekly S455a (Fla., April 13, 2017), the satellite television provider DirecTV challenged a tax provision called the "Communications Services Tax," which charged a rate of almost eleven percent on satellite services compared to a rate of just under seven percent on cable services originally (currently, satellite services are charged almost double that of cable, with over nine percent for the former and less than five percent for latter).
Understandably, DirecTV felt as though this law helped create an unfair playing field for the competing service providers. It sought to have the tax invalidated under the requirement that "statutes that openly discriminate against out-of-state economic interests in order to protect in-state interests are subject to a per se rule of invalidity.” Simmons v. State, 944 So. 2d 317, 330 (Fla. 2006).
However, despite what is arguably a clear cut case of discrimination in practical application, the Supreme Court of Florida held that the tax did not discriminate either facially, in its intent, or in its practical application. The Court also found that, despite heavy investment in local and state-wide infrastructure, cable service providers were not an in-state interest for purposes of the challenge by DirecTV under the Commerce Clause.
Many things in business which seem clear cut are not so clear under the law. Having the advice and assistance of an experienced business attorney can not only help level the playing field for your business, but can often also help save a business a substantial amount of money in the long-run. Contact the Business attorneys at Icard Merrill today for a consultation about your business rights.
Placement of children with a parent is one of the most challenging and emotional disputes that take place in civil courts. Things can often be even more tense and challenging when one parent resides out of state. In order to better position courts to tackle these challenges, Florida is one of a number of states that have adopted the Interstate Compact on the Placement of Children (ICPC) via Section 409.401, Florida Statutes.
A recent case outlines some of the requirements the ICPC places on Florida courts. In Lawler v. State, 42 Fla. L. Weekly D879 (Fla. 1st DCA April 18, 2017), the First DCA was faced with the unenviable task of unwinding a notedly "well intentioned" order by the trial court on the basis of failure to adhere to the requirements of ICPC.
Specifically, the trial court was found to have failed to obtain a home study of the Indiana home of the father of two of the children, the children could not be allowed to remain in his custody until the home study was completed. The record showed that the father and the Department of Health (through DCF) had attempted on several occasions a home study report from Indiana officials without success. Despite the fact that the children did well residing with the father after being fostered with grandparents following removal from the mother's home due to a domestic violence incident, the law required a home study before final placement could be made. Though the appellate court rang a sympathetic (and almost apologetic) tone, it upheld the requirements of the law and sent the case back for further proceedings on that issue.
If you are facing questions about the placement of children or the shared parental responsibilities and requirements under Florida law, reach out to the Family Law attorneys of Icard Merrill today for help.
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... More »
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... More »
The discretion of the court in divorce actions is very broad, and the judges overseeing those actions have the ability to impose relief over a wide range of possibilities. One area in which the court... More »
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... More »
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... More »
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),... More »
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... More »
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... More »
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... More »
First Annual Hot Topics in Employment Law Over the past year, enforcement activity across all employment law areas has increased. The EEOC continues to spearhead efforts to broaden the federal antidiscrimination and... More »
A decision is likely to come soon from the first United States court of appeals to address the issue of whether Title VII’s prohibition against “sex” discrimination extends to sexual... More »
On December 8, 2016, the U.S. Court of Appeals for the Fifth Circuit granted the Department of Labor’s (“DOL”) request for an expedited hearing on its appeal of the issuance of a nationwide... More »
Two recent cases highlight some of the hotter "hot-button" topics in employment law - (1) the expansion of LGBT rights under Federal discrimination law and (2) the issue of pay for student-athletes. The... More »
Just before Thanksgiving, a federal court judge in Texas issued an order enjoining – on a nationwide basis – the Department of Labor’s (“DOL”) new overtime exemption regulations... More »
One challenge facing holders of judgments against a company that often arises is that of successor entities. Imagine holding a judgment against a company called “Bob’s Widgets”... More »
Prospective clients often wonder whether they can try to collect “pain and suffering” damages from another person or party when a dispute arises. Outside of certain somewhat limited types... More »
A crucial blow to wayward borrowers and a life raft for inattentive banks and foreclosure counsel were handed out simultaneously by the Florida Supreme Court recently in Bartram v. U.S. Bank, N.A., 41... More »
A fascinating practice point was revealed in a Florida Supreme Court ruling earlier this month relating to offers of judgment and proposals for settlement pursuant to Florida Statutes § 768.79 and... More »
An interesting note for litigation practitioners was recently discussed in the Fifth District of Florida when the District Court of Appeals was asked to decide whether sworn statements of witnesses taken... More »
A potentially landmark ruling was issued recently on the issue of the strictness of construction of offers of judgment and/or proposals for settlement under Florida Statutes § 768.79 and Florida Rule... More »
A father recently appealed a court’s order in a divorce action on two points that together remind us of the challenges and intricacies of modern divorce actions. In the case of Saucier v. Nowak,... More »
In the United States District Court for the Eastern District of Texas (in Civil Action No. 4:16-CV-00731), twenty-one states recently brought a challenge and motion for temporary injuction seeking to prevent... More »
Arbitration clauses exist in plentitude all around us in most people’s everyday lives—they are in your contract with your builder, enclosed with a great many products you buy, and even in your... More »
Those looking for further evidence of the changing tides of inclusion, gender and trans-gender equal opportunity, and broadening of the social consciousness can look no further than a recent brief the... More »
A recent decision by the National Labor Relations Board opens up an new group of covered employees who were until recently treated more as volunteers or trainees rather than traditional employers. ... More »
Borrowers facing foreclosure are often scared, confused, and under extreme stress. The dream of the modern American family—ownership of a home—is in jeopardy for them. Some borrowers... More »
In another lesson to employers and human resources management, a recent decision once again highlights the importance of documentation when it comes to challenging unemployment compensation claims by employees... More »
In what seems to be an unfortunately common practice in divorce actions, the former wife in a recently decided Florida divorce case sought and was initially granted by the trial court permission to get... More »
For those that need a reminder (including attorneys) that court orders are no laughing matter and should be taken very seriously, look no further than the recent case of Haas v. State decided in the Second... More »
Two recent cases (both in the 11th Judicial Circuit) illustrate points of emphasis in Frivolous Claim (Florida Statutes 57.105) jurisprudence. The first, SURF CONSULTANTS, INC., v. CINTRON, reveals... More »
As the pendulum of non-competition agreement enforcement seemingly swings back and forth, we recently got an update on the arc of that sweep from the Third District Court of Appeals. In Telemundo... More »
A recent ruling by the First District Court of Appeals in Florida provides a bit of a novelty in jurisprudence; where a statute is declared unconstitutional. Asked to determine if Sections 440.105... More »
Anyone that has been to a foreclosure hearing or trial docket in the last five years or more will understand the obvious implications of those colloquially-termed "cattle call" dockets. A room filled... More »
A recent decision by the Fourth DCA illustrates an interesting phenomenon—where a court can simply use the lack of “prejudice” to the defendant to excuse a clear and express condition... More »
As the the Bible story goes, King Solomon proposed to deal with the squabbling of two women fighting over a baby each claimed as her own by dividing the child in half—the ultimate compromise in the... More »
Despite missing the statute of limitations for bringing a counterclaim of Truth in Lending Act (“TILA”) violations, defendant homeowners were entitled to a defense of setoff for TILA violations... More »
A recently decided Third District case illustrates some of the protections available to non-consumers under Florida’s Deceptive and Unfair Trade Practices Act (Fla. Stat. §501.201 et seq.). ... More »
In the always fascinating world of residential foreclosure cases, the specter of Ahab’s “free house” lurks in the minds of attorneys and litigants alike. The phenomenon is rarely... More »
A recent decision by the Fourth DCA raises the question of whether an association can add a new lien against a homeowner for unpaid assessments and actually take priority over the lender’s mortgage... More »
Much to the chagrin (and likely confusion) of more--ahem--‘veteran’ attorneys, the screenshot is starting to make its way into courtrooms across the country. A “screenshot”... More »
The non-resident cost deposit has long been a tool used by local litigators to harass and annoy out of state plaintiffs and their counsel. The requirement pursuant to Florida Statutes § 57.011... More »
Recently, the Second DCA ruled that service of process of persons outside the United States pursuant to the Hague Convention may be made by mail. Portalp Intern. SAS v. Zuloaga, 40 Fla. L. Weekly... More »
A recent court decision in Palm Beach County, Florida in the 15th Judicial Circuit awarded attorneys’ fees to a tenant who vacated the landlord’s property after the landlord filed an action... More »