The Week in Torts – Cases from the Week of February 22, 2019
One Court Out of Four Finds Arbitration Award Reviewable By Certiorari
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 8
CASES FROM THE WEEK OF FEBRUARY 22, 2019
FIRST DISTRICT, CERTIFYING CONFLICT WITH THE THIRD, FOURTH AND FIFTH DISTRICTS, FINDS A TRIAL COURT’S ORDER VACATING AN ARBITRATION AWARD CONSTITUTES THE KIND OF IRREPARABLE HARM TO TRIGGER CERTIORARI JURISDICTION.
Amalgamated Transit Union v. City of Gainesville, 44 Fla. L. Weekly D478 (Fla. 1st DCA February 15, 2019):
After an arbitration hearing when the City of Gainesville terminated the employment of a bus driver who was a member of a union (for slapping the hands of passengers on two separate occasions in violation of city rules), the arbitrator issued his ruling finding that the driver had not violated either rule, and ordered the city to reinstate the employee with back pay.
Thereafter, the city filed a petition to vacate the arbitration award in circuit court. The circuit court held an evidentiary hearing and found the arbitrator displayed “evident partiality” by finding the driver did not violate the rules in improperly commenting on the age and demeanor of the passengers involved in the altercations. The court also found that the arbitrator exceeded the scope of his authority by rendering an award beyond the scope of the collective bargaining agreement. The circuit court ordered the parties to undergo a new arbitration proceeding before a different arbitrator and the employee filed a petition for writ of certiorari.
The court observed that three of its sister courts have held that certiorari jurisdiction does not exist to review a trial court’s order vacating an arbitration award and requiring parties to undergo another proceeding. Each of the cases appears to be based in part on the idea that the time and expense of additional proceedings is not the type of irreparable harm that is required to invoke certiorari jurisdiction of an appellate court. The First District certified conflict with those three cases.
The court explained that requiring a party to go through a second evidentiary proceeding is qualitatively different from simply requiring a party to continue with an initial merits proceeding.
A second merits proceeding requires potentially unnecessary repetition and may result in inconsistent determinations that would call into question a trial court’s proper role in reviewing the arbitration award. More is involved than simply the time and expense from an additional proceeding, as it is more like mandating a second arbitration with an order granting a motion for new trial.
The court said that while case law has rejected the idea that an order vacating an arbitration award and requiring an additional arbitration is a final appealable order, no more judicial labor needs to be done in relation to a vacated final arbitration award regardless of whether it is sent for new arbitration. Any further judicial labor on the part of the trial court will be directed to the second arbitration proceeding. Thus, while precedent prevents courts from reviewing many trial courts’ orders as appealable final orders, the First District said it should be subject to some form of review by an appellate court.
Finally, the court found that the petitioner persuasively argued that by not providing for some review of trial court orders vacating arbitration awards and ordering new ones, there is no deference to the alternative dispute resolution process. Florida has long held that arbitration is a contract that ensures an alternative to litigation designed to limit litigation and promote finality. Requiring parties to undergo a second evidentiary procedure without appellate review would then frustrate the entire point of arbitration.
In this case, the court weighed the arbitrator’s “evident partiality,” by judging whether the complaining party had made a showing through credible evidence giving rise to a reasonable impression of partiality that was direct, definite and capable of demonstration as distinct from a mere appearance of bias that was remote, uncertain or speculative.
The trial court here utilized an “outrageous finding” standard which had been used in some federal cases, but which was improper.
The second reason the trial court vacated the arbitration award was because it found the arbitrator exceeded his authority by rendering an award beyond the scope of the collective bargaining agreement. The parties’ collective bargaining agreement stated that union employees would be subject to cities’ disciplinary codes which the arbitrator correctly applied.
The trial court’s order constituted an impermissible review of the arbitrator’s factual findings and application of the law. As such, the order was a departure from the essential requirements of necessitating a grant of the petition for writ.
TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO CONSIDER A NEGLIGENT SECURITY CASE BROUGHT AGAINST RECEIVER, BECAUSE PLAINTIFF FAILED TO ALLEGE HOW THE RECEIVER’S NEGLIGENCE CONSTITUTED CONDUCT OUTSIDE THE SCOPE OF THE RECEIVER’S AUTHORITY.
Asset Recovery Group, LLC v. Wright, 44 Fla. L. Weekly D461 (Fla. 3rd DCA February 13, 2019):
The plaintiff lived in an apartment complex in Homestead and was allegedly stabbed by an assailant there. At the time of the incident, the property was under a court-imposed receivership in a commercial foreclosure action. As part of that action the trial court had appointed the receiver to take possession, custody and control of the complex. The stabbing allegedly took place after the property was sold at a foreclosure sale.
As set forth in the foreclosure court’s order of appointment, the receiver’s delegated responsibilities included controlling, managing, operating and insuring the subject property. The receiver was also given authority to maintain the subject property to make repairs and renovations necessary and appropriate to ensure the life, health and safety of the occupants.
The order of appointment contained a judicial immunity provision, providing that the receiver and the receiver’s attorneys and agents would not be held liable to anyone for their own good faith compliance with their duties and responsibilities as receiver, or as the attorneys or agents of the receiver, and would not be liable to anyone for their acts or omissions unless there was a finding by the court that such acts or omissions were outside the scope of their duties, or were grossly negligent.
Under what is known as the Barton doctrine, plaintiffs must generally seek leave of court from the court that appointed the receiver before a plaintiff can file suit against a court appointed receiver. In this case, the plaintiff’s third amended complaint contained allegations–albeit conclusory ones–that the acts or omissions of the receiver were in fact outside the authority granted to the receiver by the court in a foreclosure action.
This case presented the threshold question to the court about whether the subject allegations against the receiver were sufficient for the recognized exception to the Barton doctrine to apply, and allow the case to go forward. The exception exists when the receiver acts outside his or her legal authority.
In this case, the court concluded that the complaint did not sufficiently allege the receiver’s alleged acts or omissions were outside the authority granted to it by the appointing court. Indeed, many of the alleged acts or omissions identified as having fallen outside the receiver’s authority actually appeared to have fallen within the authority to operate, manage, maintain, insure and control the apartment complex. While the complaint did adequately allege a premises liability for negligent security, it failed to allege with any specificity how the receiver’s alleged negligence constituted conduct that was outside the scope of the receiver’s authority.
As such, the court granted the petition for writ of prohibition and remanded with directions to enter an order dismissing the counts of the complaint without prejudice.
A NOTARIZED AFFIDAVIT ATTESTING THAT THE PLAINTIFF DID NOT RECEIVE NOTICE OF LACK OF PROSECUTION IS NOT SUFFICIENT TO ESTABLISH THAT THE TRIAL COURT ABUSED DISCRETION IN DENYING THE MOTION TO VACATE THE ORDER OF DISMISSAL.
Feuer v. Ivanov, 44 Fla. L. Weekly D470 (Fla. 3rd DCA February 13, 2019):
The trial court denied the plaintiff’s motion to vacate an order of dismissal entered after the plaintiff failed to appear for a hearing on the notice of lack of prosecution, and order to appear for the hearing. Plaintiff contended that the notarized affidavit he submitted attesting to him not having received the notice was sufficient grounds to establish that the trial court abused its discretion in denying the motion to vacate.
The court disagreed. It found that the plaintiff failed to allege any of the grounds set forth in rule 1.420(e). Thus the court affirmed the dismissal.
AWARD OF ATTORNEY’S FEES REVERSED WHERE CLAIMANT FAILED TO PRESENT COMPETENT SUBSTANTIAL EVIDENCE TO SUPPORT HOURS SPENT, HOURLY RATE OR THE TOTAL FEE.
Ali v. Wells Fargo Bank, 44 Fla. L. Weekly D473 (Fla. 5th DCA February 15, 2019):
Because the bank seeking fees failed to present any competent substantial evidence to support the number of hours spent on the case, the hourly rate, or the total fee, the court reversed the portion of the final judgment which had awarded attorney’s fees (based on Michel v. Bank of NY Mellon, 191 So.3d 981, 984 (Fla. 2nd DCA 2016)).