Where does it say when?

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 4

CASES FROM THE WEEK OF JANUARY 26, 2024

TRIAL COURT REVERSES RULING AND FINDS PROPOSAL FOR SETTLEMENT ENFORCEABLE-NEITHER STATUTE NOR RULE SAY ANYTHING ABOUT “TIME TO PAY”

SDG Dadeland Associates v. Arias, 49 Fla. L. Weekly D186 (Fla. 3^rd DCA Jan. 17, 2024):

The defendant in a slip and fall case served the plaintiff with a proposal for settlement for five-thousand dollars. The proposal named two defendants, stating that one defendant would pay the five thousand dollars, and the other would pay nothing. The proposal did not provide a time frame for payment. 

The trial court concluded that the proposal was ambiguous. 

In reversing, the appellate court noted that nothing in the statute or rule expressly requires that a settlement proposal contain a provision indicating the date for payment.  Additionally, it found the proposal had been properly apportioned, even though it indicated that one defendant would pay nothing.  The court refused to adopt the plaintiff’s argument that as a matter of law, a joint offer accurately reflecting the indemnification agreement among the defendants, somehow invalidated the joint settlement offer. 

Finally, the court did say that the trial court could consider the issue of whether the offer was made in bad faith on remand, because the trial court had not reached that issue based on its other rulings.

TRIAL COURT PROPERLY GRANTS DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS, WHERE THE PLAINTIFF FAILED TO SUPPLY AN AFFIDAVIT OR SWORN PROOF TO THE CONTRARY

Unified Medical v. Progressive, 49 Fla. L. Weekly D189 (Fla. 3^rd DCA Jan. 17, 2024):

The defendant filed a limited appearance, a motion to quash service and a motion to dismiss for lack of personal jurisdiction and forum non conveniens. It asserted that it was both incorporated in Ohio, and a resident of Ohio, and did not conduct any business in Florida. 

The plaintiff responded that the alter ego theory gave it jurisdiction over the defendant, because the defendant was controlled by Progressive Corporation or Progressive Group, both which did business in Florida. Plaintiffs attached three website pages which did not refute or rebut the jurisdictional arguments, and Progressive Preferred had filed a sworn declaration. 

While the plaintiff made its initial pleading burden by asserting a basis for personal jurisdiction under the long arm statute, section 48.193(1)(a)(1), when the defendant provided the declaration of its witness attesting it was incorporated and resided out of state, the plaintiff was then required to file something to substantiate its jurisdictional allegations.

Because the plaintiff failed to provide an affidavit or any sworn proof to meet its burden, it acted at its own peril, and the trial court correctly found that the dismissal was proper based on the defendant’s proof. 

TRIAL COURT ERRED IN DISMISSING COMPLAINT BASED ON FINDING THAT PLAINTIFF HAD FAILED TO FILE A MOTION FOR SUBSTITUTION WITHIN 90 DAYS OF SUGGESTION OF DEATH FILED BY DEFENSE COUNSEL – – PLAINTIFF’S MOTION TO APPOINT A GUARDIAN AD LITEM, AN ADMINISTRATOR AD LITEM, AND AN ATTORNEY AT LITEM TO REPRESENT THE DEFENDANT’S INTEREST FILED WITHIN 90 DAYS FROM THE SUGGESTION OF DEATH, AMOUNTED TO A MOTION FOR SUBSTITUTION UNDER RULE 1.260(A)(1)

Green v. Polukoff, 49 Fla. L. Weekly D195 (Fla. 4^th DCA Jan. 19, 2024):

The plaintiff took all the proper steps to suggest the defendant’s death on the record.  Simply failing to title it as a “motion for substitution” did not make it legally infirm. The plaintiff had made it clear that the motion seeking to have the trial court appoint a guardian ad litem, an administrator ad litem and an attorney ad litem was being made to Florida Rule 1.260.

Because the motion was filed within 90 days of the defendant’s suggestion of death, the trial court could not dismiss the plaintiff’s complaint with prejudice, necessitating reversal.

TRIAL COURT ERRED IN DISMISSING A CASE BECAUSE COUNSEL FAILED TO APPEAR FOR A CASE MANAGEMENT CONFERENCE AFTER THE DEFENDANT HAD FILED AN ANSWER AND AFFIRMATIVE DEFENSES

Universal Property and Cas. Ins. Co. v. Andre, 49 Fla. L. Weekly D196 (Fla. 4^th DCA Jan. 17, 2024):

To the extent that a court enters a default against a litigant because counsel fails to appear for a case management conference, the litigant is entitled to an opportunity to be heard as to why the non-compliance was not willful or in bad faith before the entry of the default. 

Additionally, the trial court should have granted the defendant’s amended motion to set aside the default and default judgment, because it satisfied the elements of due diligence, excusable neglect and meritorious defense.  (It was filed 5 days after the final judgment, the amended motion contained counsel’s sworn statements that the failure to attend the case management conference was due to a calendaring error, and the answer contained a facially meritorious defense.)

The court concluded by noting that the entry of the default and the default judgment in a meritoriously defended action due to counsel’s excusable neglect, is unfair punishment to a defendant when the defendant did not participate in the misstep.

ERROR TO DISMISS ACTION WITH PREJUDICE BASED ON APPELLANT’S DISCOVERY VIOLATIONS AND REPEATED FAILURES TO COMPLY WITH COURT ORDERS WITHOUT FIRST CONSIDERING THE SIX KOZEL FACTORS

Chesterton Capital v. Yancy, 49 Fla. L. Weekly D212 (Fla. 2^nd DCA Jan. 19, 2024).

These cases are becoming as common as cases reversing amendments for punitive damages. Always make sure the trial court considers Kozel before dismissing a case based on counsel’s bad behavior!

ERROR TO DENY MOTION TO QUASH SERVICE OF PROCESS WITHOUT AN EVIDENTIARY HEARING WHERE A MOTION ADEQUATELY RAISED PROCESS SERVER’S FAILURE TO COMPLY WITH SECITON 48.031(5) AND RULE 1.070

Capasso v. Buchanan, 49 Fla. L. Weekly D198 (Fla. 4^th DCA Jan. 19, 2024):

The defendant argued that the first attempt to serve her was invalid because the process server failed to place on the summons that date and time of service, and also failed to provide the process server’s initials or signature as required by section 48.031(5) and Rule 1.070.

Defendant also challenged the second attempt at service because the process server served the summons that had previously been returned as served, but again failed to comply with the statutory requirements.

A defendant is entitled to an evidentiary hearing on a motion to quash service of process, if the motion and accompanying affidavit show that if proven by clear and convincing evidence, the plaintiff failed to effect service. The trial court should have conducted an evidentiary hearing and the court reversed for one to take place.