Better open the JA's email!

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 24

CASES FROM THE WEEK OF June 14, 2019

TRIAL COURT ABUSED DISCRETION IN DENYING A MOTION FOR ENLARGEMENT OF TIME TO FILE A MOTION FOR ATTORNEY'S FEES, BY ERRONEOUSLY CONCLUDING THAT MOVANT’S COUNSEL’S CONDUCT WAS “INEXCUSABLE,” ESPECIALLY WHERE NON-MOVANT ASSERTED NO PREJUDICE.

Madill v. River Crest Community Association, 44 Fla. L. Weekly D1461 (Fla. 2nd DCA June 7, 2019):

The plaintiff appealed from an order denying her motion for an enlargement of time to file her motion for attorney’s fees and costs under Rule 1.090(b)(2). She was the prevailing party in a civil suit brought by a condominium association.

Pursuant to the governing documents of the association and a Florida Statute, she was entitled to recover the attorney’s fees and cost she incurred in her defense as the prevailing party.

Because the final judgment was filed on March 14, 2018, the plaintiff had to file her motion for fees and cost by April 13, 2018, pursuant to Rule 1.525. However, plaintiff served her motion 19 days after that.

In filing a motion seeking to enlarge the time, the plaintiff’s attorney explained that it was his law firm’s practice to monitor the court’s e-filing portal (JAWS) for documents from the court, such as the final judgment. There was no notification regarding a final judgment from JAWS or from the clerk. The firm was not even aware of the final judgment until April 30, 2018, when the plaintiff called the firm to say she had learned from looking online that the final judgment had been rendered in her favor.

After receiving the client’s call, the firm’s support staff checked all emails, the e-portal, and other e-service notifications, and could not find any notification regarding the entry of the final judgment. One of the firm’s legal assistants called the JAWS help desk and was informed that there was no indication that the final judgment had been served via JAWS.

However, upon further investigation, another attorney with the firm listed as an attorney of record, discovered that he had received a copy of the final judgment as an attachment to an email from the Judge’s JA. The subject line was a random number from a scanner and did not indicate it contained a final judgment.

In the attorney’s affidavit, he explained that the firm relies on the electronic system for receipt of court documents, and does not expect to receive them directly from the JA. Also, the attorney who received it had not been involved in the litigation phase of the trail and explained how he must have glossed over it, failing to open the attachment or forward it to the plaintiff’s main counsel.

The trial court found that it was inexcusable that the attorney “glossed over” the fact that the final judgment had been sent (irrespective of these other facts), and refused to enlarge the time.

While excusable neglect cannot be based upon an attorney’s misunderstanding or ignorance of the law, courts are inclined to find excusable neglect when the error occurs due to a breakdown in the mechanical or operational practices of an attorney’s office, equipment or staff.

In this case, the court did note that it was “troubling” that the attorney “glossed over” an email from a JA, and stated that it goes without saying that attorneys who neglect to open case-related emails – even facially ambiguous ones – sent directly to them “do so at their own peril." It then concluded, however, that in taking all of the relevant circumstances into account, the law firm had a tracking system which was checked regularly, and under the facts, did show excusable neglect. Additionally, the defendant never asserted any prejudice regarding the late-filed motions for fees and costs.

Thus, under these circumstances, the trial court erred in denying the plaintiff’s motion for enlargement of time due to excusable neglect, and it certainly seems that filing under Rule 1.525 is not jurisdictional.

COURT MUST RESOLVE MOTION TO DISMISS FOR LACK OF JURISDICTION BEFORE ORDERING PARTIES TO ARBITRATE CASE.

Fountainbleau, LLC. v. Hire US, Inc., 44 Fla. L. Weekly D1454 (Fla. 2nd DCA June 7, 2019):

The defendants filed a motion to dismiss for lack of jurisdiction. However, the trial court sua sponte ordered the parties to arbitrate both the motion to dismiss, as well as the merits of the lawsuit.

The defendant asserted that to do so was a departure from the essential requirements of law, because the court had exercised jurisdiction over the parties without first determining whether it had jurisdiction over the South Carolina corporation (and the South Carolina resident co-defendant).

The defendant had filed its motion for seeking to dismiss and forum non-conveniens, and filed affidavits from one of the co-defendants, both individually, and in his capacity as owner registered agent of defendant Fountainbleau. Fountainbleau also filed a motion to stay merits discovery until the pending jurisdictional challenge was resolved. Fountainbleau’s motion to dismiss was set for hearing, and the plaintiff filed a motion to continue the hearing after the motion to stay. Ultimately, those two motions were heard together.

After listening to the argument of the parties, the trial judge took both motions under advisement and then set the case for arbitration. The defendant Fountainbleau objected, and the court stated that the arbitrator could decide both the jurisdictional challenge, as well as the merits of the lawsuit.

Defendant Fountainbleau correctly filed a petition seeking certiorari review of that order. Although the trial court ordered the parties to attend arbitration, it was not an order determining an “entitlement” of a party to arbitration such that it would be a nonfinal appealable order pursuant to Rule 9.130 (a)(3)(C)(iv). Similarly, the order was not an appealable nonfinal order determining the court’s jurisdiction over the defendant, because the order specifically referred the issues of jurisdiction to the arbitrator and took the other issues under advisement.

The trial court had been asked to determine whether the complaint against the South Carolina Corporation and South Carolina resident alleged sufficient facts to comply with due process and other constitutional considerations set forth in Venetian Salami; a determination the trial court never made.

The material injury, which could not be corrected on plenary view, was the trial courts exercise of jurisdiction over the defendants, requiring them to appear and participate in arbitration before the court determined jurisdiction. If orders deferring consideration of motions to dismiss based on lack of jurisdiction and are not subject to certiorari review, then due process rights afforded by section 48.193 are illusory, and the policy inherent in subjecting nonresident to Florida courts’ jurisdiction becomes meaningless.

Additionally, determination of jurisdictional disputes must be made by a court of law. In this case, the trial court’s failure to determine jurisdiction in the first instance was in excess of its jurisdiction and a departure from the essential requirements of law requiring a grant of the petition for writ of certiorari.