Actions have consequences

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 31

CASES FROM THE WEEK OF AUGUST 8, 2025

ATTORNEY’S ACTIONS ON DEFENDANT’S BEHALF WAIVED DEFENDANT’S LATER ATTEMPT TO COMPEL ARBITRATION

The King’s Academy v. Caliendo, 50 Fla. L. Weekly D1670 (Fla. 4th DCA July 30, 2025):

A child was seriously injured during a routine cheerleading practice on school premises. The plaintiffs sued alleging that another student caused the child’s injuries while she was in the defendant’s care. The plaintiffs served their complaint on the defendant’s registered agent and the defendant’s attorney, who timely answered the complaint, and asserted 21 affirmative defenses. None of the affirmative defenses related to arbitration. The defendant’s answer also demanded a jury trial. The attorney also served interrogatories and requests to produce on the plaintiffs.

Almost two weeks after filing the answer, the attorney filed a notice to withdraw the pleadings (the answer, along with the interrogatories and requests to produce defense counsel had sent) stating that the pleadings had been filed in error. The defendant also moved to dismiss the case and compel arbitration noting that when the parent plaintiffs enrolled their child at the defendant’s school, they had signed an agreement requiring them to arbitrate any personal injury claims.

The trial court denied the dismissal motion. It found that the defendant had waived its right to arbitration by filing an answer to the complaint, and further found that defendant’s propounding of discovery was inconsistent with the timely demand for arbitration.

The defendant later replaced the original attorney appointed by the insurance carrier and moved for reconsideration of the motion to compel. For the first time, the defendant raised the argument that the attorney had not been authorized to act on its behalf, and the trial court again denied the defendant’s motion without any explanation.

The defendant appealed, contending that the trial court erred in determining that the defendant had intentionally, voluntarily, or knowingly relinquished its right to arbitrate and that no waiver had occurred. The defendant also claimed that the attorney had not been authorized to engage in litigation on its behalf.

The court only addressed the waiver argument finding that the “lack of authorization” claim had not been raised by the defendant in its motion to compel and there was no transcript, leaving the court unable to understand what evidence was before the court beyond the documents filed in the record. Additionally, arguments raised for the first time in a motion for rehearing do not preserve the argument for appellate review.

Here, the defendant knew of the existing arbitration agreement because the defendant was a signatory to the enrollment contract. Its attorney appeared, answered, asserted affirmative defenses, and demanded a trial by jury on all issues.

Under these circumstances, the court agreed with the trial judge that the defendant had waived its right to compel arbitration. Despite having an agreement to arbitrate with the plaintiffs, the defendant through its insurance carrier obtained an attorney who participated in litigation by filing an answer and additional pleadings and propounding discovery, constituting waiver of the parties’ agreement to arbitrate personal injury claims.

NO ABUSE OF DISCRETION IN DENYING REQUEST TO CONTINUE THE HEARING TO SET AMOUNT OF APPELLATE ATTORNEY’S FEES — HEARING HAD ALREADY BEEN SET AND RESCHEDULED TWICE BEFORE TO ACCOMMODATE APPELLANT’S SCHEDULE, AND APPELLANT WAS ON NOTICE OF THE REMOTE HEARING FOR TWO MONTHS

Samuel v. Hampton’s West Condominium Association, 50 Fla. L. Weekly D1678 (Fla. 3rd DCA July 30, 2025):

After the court entered an award of appellate attorneys’ fees against the appellant, he raised a due process violation arguing that the trial judge should have granted his request to continue the hearing.

However, the record showed that the trial court had previously rescheduled the hearing on at least two occasions to accommodate the appellant’s schedule (at that point, he was proceeding pro se) and he had been on notice of the 30-minute remote hearing for at least two months. The trial court was well within its broad discretion to deny an additional request to continue, made merely three days before the hearing.

TRIAL COURT DID NOT ABUSE DISCRETION IN GRANTING PLAINTIFF’S MOTION TO VACATE ORDER DISMISSING ACTION FOR LACK OF PROSECUTION WHERE PLAINTIFF PRESENTED AFFIDAVIT ATTESTING THAT COUNSEL HAD MISSED THE HEARING BECAUSE HE HAD BEEN HOSPITALIZED FOR A SERIOUS HEALTH ISSUE

Castillo v. Valbonesi, 50 Fla. L. Weekly D1679 (Fla. 3rd DCA July 30, 2025):

In a case where there had been no record activity for over 10 months, the trial court issued a notice of lack of prosecution and set the matter for hearing. During the period of no record activity, the plaintiff’s counsel — a solo practitioner with no office staff — had a severe heart attack. He underwent two open heart surgeries and spent over a month in the hospital. He endured several months of rehabilitation and was unable to work. Because of his health issues, he failed to place the hearing on his calendar and his non-attendance caused the trial court to dismiss the case.

The court found that Rule 1.540 (and not Rule 1.420) controlled the case, because the appeal was from a 1.540 motion and not directly from the order of dismissal. To that end, the court reviewed the order for an abuse of discretion.

Finding the circumstances to squarely satisfy the requirement for excusable neglect, the trial court did not abuse its discretion by granting the motion and vacating the dismissal. The plaintiff’s motion to vacate alleged sufficient facts to show excusable neglect, addressing both her counsel’s health issues as well as his failure to calendar the hearing and to attend the hearing. Finally, even an order vacating a dismissal for lack of prosecution may be sought under Rule 1.540.