Waiting is never good

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 44

CASES FROM THE WEEK NOVEMBER 4, 2022

THE TRIAL COURT LACKS JURISDICTION TO VACATE A FINAL ORDER OF DISMISSAL AFTER THE TIME FOR REHEARING EXPIRES

Allstate Fire & Cas. Ins. Co. v. Hoffman, 47 Fla. L. Weekly D2160 (Fla. 4^th DCA Oct. 26, 2022):

The plaintiff brought an action on behalf of her minor child, both for damages, and to approve pre-suit settlements. The complaint named Allstate among the settled defendants.

On July 16, 2016, the trial court dismissed the case because plaintiff failed to timely serve process on any of the defendants. The dismissal order did not incorporate the purported settlement agreements nor did it reserve jurisdiction to handle any further matters.

The plaintiff did not move for rehearing. Nor did she refile her claim.

However, on September 14, 2016, the plaintiff did file an ex parte motion to reopen the case. The court never ruled on that motion.

In September of 2021, the plaintiff moved for leave to file an amended complaint which the trial court granted. Plaintiff then served Allstate with process.

On May 5, 2022, Allstate moved for summary judgment. It argued that the final dismissal order divested the trial court of jurisdiction over the case. On May 16, 2022, the trial court sua sponte set aside the dismissal order and reopened the case, which was error.

When an order of dismissal is filed, the trial court has jurisdiction to entertain a timely motion for rehearing or revisit the cause on the court’s own initiative within the time allowed for rehearing the motion. If neither actin takes place, the trial court loses jurisdiction over the case (with the exception that the trial court has jurisdiction to entertain a timely filed Rule 1.540 motion).

The trial court set aside the dismissal sua sponte, but not due to the plaintiff’s timely filed motion. Because the trial court lacked jurisdiction to do so, the Fourth District issued a writ of prohibition (the remedy that lies to prevent a court from acting in excess of its jurisdiction).

COURT ISSUES WRIT OF MANDAMUS TO STOP TRIAL COURT FROM SETTING CASE FOR TRIAL WHEN E TWO PENDING MOTIONS TO DISMISS WERE DIRECTED AT THE OPERATIVE COMPLAINT

Pulwer v. Pearl Bros., LLC, 47 Fla. L. Weekly D2162 (Fla. 3^rd DCA Oct. 26, 2022):

Pursuant to Rule 1.440, an action is at issue and ready to be set for trial after any motions directed to the last pleadings served have been disposed of. If no such motions are served, then it may be set 20 days after service of the last pleading.

Because there were two pending motions to dismiss directed at the operative complaint when the trial court set the matter for trial, doing so was error.

OPPOSING PARTY CANNOT HAVE ACCESS TO A WORK-PRODUCT PROTECTED INCIDENT REPORT, UNLESS PARTY MAKES A SHOWING OF NEED AND UNDUE HARDSHIP TO JUSTIFY DISCLOSURE

Ted & Stan’s Towing Service v. Bulk Express, 47 Fla. L. Weekly D2164 (Fla. 3^rd DCA Oct. 26, 2022):

Plaintiff sought production of each document defendant relied on in connection with its affirmative defenses. The defendant filed a privilege log, and noted that its affirmative defenses had been pleaded using information from an incident report, that had been prepared in anticipation of litigation and was therefore protected by the work-product doctrine.

A document protected by the work-product privilege is subject to production “only upon a particularized showing of need satisfying the criteria set forth in Rule 1.280(b)(4).” The fact that an incident report might yield additional information about an incident is not enough, without more, to show undue hardship under the rigors of Rule 1.280(b)(4).

ARBITRATION CLAUSE AND RETAINER AGREEMENT BETWEEN A LAWYER AND CLIENT UPHELD

Mavroleon v. Orrego, 47 Fla. L. Weekly D 2167 (Fla. 3^rd DCA Oct. 26, 2022):

The retainer agreement between the plaintiff and her law firm (she had retained the firm to advise her on certain estate planning matters), contained an arbitration clause noting that “any controversy or claim arising out of or relating to the agreement or the representation” would be settled by arbitration.

The plaintiff was a victim of a nationwide Ponzi scheme involving financial products she purchased to fund a special needs trust the firm established for her disabled adult son. The plaintiff sued several entities related to the product, along with her law firm, against whom she alleged legal malpractice. The defendant law firm moved to compel arbitration.

Plaintiff contended that the arbitration clause did not apply to her claim because the retainer agreement contained a provision which expressly excluded advice regarding financial products from its scope. The retainer agreement stated that the firm agreed in the contract to provide the client with legal services only, and that the firm and its lawyers were not financial planners and investment advisors, etc.

Retainer agreements are construed against the attorney and in favor of the client, but that does not mean that the court is free to ignore plain and unambiguous language.

Here, the plain language established that any controversy or claim arising out of or relating to the agreement would be settled by arbitration. While the retainer agreement stated the firm made no warranties regarding financial products, the plaintiff’s malpractice claim arose from the firm’s representation of her, and the dispute was thus subject to arbitration.

The plaintiff also asserted that the arbitration clause violated public policy because it improperly limited her liability for malpractice claims. While an arbitration agreement may not require a client to pay all costs associated with an arbitration, in this case, the language of the arbitration clause merely required the plaintiff to bear the discovery costs associated with her own discovery requests. The court said the imposition “did not de facto limit liability or create a barrier” to the plaintiff seeking recourse.

While courts generally favor arbitrations, the court noted that Floridians have a constitutional right of access to the courts. Thus, it is well-settled in Florida that no party shall be forced to submit a dispute to arbitration where the party did not intend and agree to arbitrate that dispute.

Florida courts will enforce the terms of contracts that are knowingly and voluntarily executed because Floridians have a right to secure their own destiny and a right to expect that their lawfully enacted contracts will be enforced.

Here the retainer agreement expressly stated that any controversy or claim arising out of the agreement or the firm’s representation of the plaintiff was subject to arbitration. Those terms were clear and public policy was not violated by the trial court’s ruling that the contractual arrangement reached by the parties should be enforced.