The Week in Torts – Cases from the Week of October 26, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 43
CASES FROM THE WEEK OF OCTOBER 26, 2018
CHANGE IN ELECTRONIC SERVICE RULES.
In Re: Amendments to Florida Rules of Civil Procedure, Florida Rules of Judicial Administration, Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure – Electronic Service, 43 Fla. L. Weekly S505 (Fla. October 25, 2018):
The court amended subdivision (b) of Rule of Judicial Administration 2.514 to remove “or email” making it clear that service by mail and service by email are no longer treated identically.
The court also amended subdivision (a)(1)(A) of that rule to make clear that the time frames are calculated beginning from the next day following the event that triggers the time frame, that is not a weekend or a legal holiday.
Importantly, there is no longer a five day grace period for things served by email. Most of the rules as noted in the appendix to this opinion, have given parties an additional five days within the rule to compensate for this change in the electronic service rule.
AMENDMENTS TO THE RULES OF APPELLATE PROCEDURE.
In Re: Amendments to the Florida Rules of Appellate Procedure – 2017 Regular Cycle Report., 43 Fla. L. Weekly S508 (Fla. October 25, 2018):
The court ruled to amend rules 9.020, 9.030, 9.110, 9.130, 9.140, 9.146, 9.210, 9.330, 9.360, 9.400 and 9.420.
Some of the highlights of the amendments are as follows: Rule 9.020(h)1 now lists specific motions that, if authorized and timely, will toll rendition of an order.
Also, there are now two new categories of non-final orders in Rule 9.130, i.e., orders that determine that a settlement agreement is unenforceable, was set aside or never existed, and orders granting or denying motions to disqualify counsel.
The court amended Rule 9.210 on briefs is amended to state that when an attorney is representing more than one party in an appeal, the attorney may only file a single Initial or Answer brief, and one Reply brief that includes arguments as to all of the parties the attorney represents in the appeal.
A single party responding to multiple briefs or a single party represented by multiple attorneys is also limited to a single Initial or Answer brief, and one Reply brief.
9.330 was amended to require that a party asserting conflict who files a motion for certification, must set forth the cases that the party asserts expressly and directly conflicts with the court’s order, or the decision setting forth the issue or question to be certified as one of great public importance.
The court also amended rule 9.400 to require a party in discretionary review proceedings, to serve a motion for attorney’s fees not later than the time that the respondent’s brief is served on jurisdiction, or the time for serving the reply brief.
Finally, petitions invoking a court’s original jurisdiction under rules 9.030(a)(3), (b)(3), or (c)(3), must be served both by email and in paper format.
RULES OF APPELLATE PROCEDURE – UNIFORM CITATION SYSTEM AMENDMENTS.
In Re: Amendments to Florida Rule of Appellate Procedure 9.800, 43 Fla. L. Weekly S512 (Fla. October 25, 2018):
The Florida Supreme Court also amended the rules of citations, notably stating that in citing to Florida’s District Courts of Appeal for opinions not yet published in the reporter, the Florida Law Weekly should be cited to, and if not, the slip-op along with citations to Westlaw or Lexis.
COURT REVERSES DISMISSAL AFTER PLAINTIFF’S COUNSEL FAILED TO APPEAR AT CASE MANAGEMENT CONFERENCE.
Pipeline Constructors, Inc. v. The Transition House, 43 Fla. L. Weekly D2359 (Fla. 1st DCA October 18, 2018):
Before the defendant in a lien case had been served with process, the trial judge ordered a case management conference. The order was served by email. However, the order ended up in the attorney’s “junk” folder, and was deleted without being seen. The order was not served on the attorney’s assistant or the other attorney for the party, both of whom were designated to receive service.
When plaintiff’s counsel failed to appear at the case management conference, the trial judge entered an order dismissing the case without prejudice. The party then moved to vacate the order under rule 1.540, asserting the failure to appear was due to mistake, inadvertence and excusable neglect. The trial court denied that motion.
Praising the trial judge for attempting to take control of the case from the start, the court observed that case management conferences under rule 1.200 can only be set at any time after responsive pleadings or motions are due. The court then said it did not need to decide whether the trial judge could sanction the party for not attending the case management conference, because even if sanctions had been available, the order dismissing the case contained no findings that such failure was “willful, flagrant, deliberate, or otherwise aggravated.”
The law makes clear that sanctions must be commensurate with the offense. As such, the court dismissed the order of dismissal remanding for further proceedings.
TRIAL COURT ERRED IN DISMISSING CASE FOR LACK OF PERSONAL JURISDICTION UNDER LONG-ARM STATUTE–THE DEFENDANT WAS INCORPORATED IN FLORIDA, AND THEREFORE A FLORIDA RESIDENT SUBJECT TO GENERAL JURISDICTION.
Subic Bay Exploratorium, Inc. v. JV China, Inc., 43 Fla. L. Weekly D2364 (Fla. 5th DCA October 19, 2018):
The defendant JV China is a Florida corporation. It was incorporated in Florida in 1996, remaining an active Florida corporation since that time.
Notwithstanding that, the company maintains its principal place of business in California and conducts much of its business overseas. After the defendant failed to pay the balance owed for shares in a stock subscription agreement dispute, the plaintiff filed this action in Florida. In turn, the defendant moved to dismiss, contending that the court lacked personal jurisdiction over it. The trial court concluded that the plaintiff failed to establish that the defendant was subject to jurisdiction under Florida’s long-arm statute.
That ruling was error. Under Florida law, corporations are residents of their state of incorporation, Florida residents are subject to the general jurisdiction of Florida courts, and the primary focus of a court’s personal jurisdiction inquiry is the defendant’s relationship to the forum state.
Because the trial court mistakenly failed to consider the defendant’s Florida residency, instead applying section 48.193, Florida’s long-arm statute, it erroneously determined that jurisdiction was not proper in Florida when it reality, it was.
COURT DID NOT ERR IN AWARDING SECTION 57.105 FEES AGAINST DEFENDANTS AND THEIR ATTORNEYS, WHERE DEFENDANTS REPEATEDLY ASSERTED A DEFENSE WITHOUT ANY EVIDENCE TO SUPPORT IT, EVEN AFTER BEING SERVED A SAFE HARBOR NOTICE.
Roberts v. PNC Bank, 43 Fla. L. Weekly D2365 (Fla. 5th DCA October 19, 2018):
As a preliminary matter, the defendants and their attorneys failed to preserve the issue for appeal, the court found, after entering into a stipulated final judgment which set forth the entitlement to an amount of the sanctions that were imposed, and failing to reserve the right to appeal.
The trial court had awarded sanctions because the defendants and their attorneys insisted on pursuing a defense that they knew or should have known was not supported by the facts or law in a mortgage foreclosure case. The bank had served a safe harbor letter pursuant to section 57.105, but the defendants still refused to withdraw the defense.
The defendants repeatedly asserted the defense of “payment/assignment” in their answer, discovery responses, deposition testimony, etc., even though it was clear that the defense was not supported by any documentary evidence, and that the testimony of one of the defendants was internally inconsistent and not credible. The trial court’s order awarding section 57.105 fees was supported by competent substantial evidence, and set forth very specific findings as to the unsupported nature of the defense and the date by which the defendants and their attorneys knew the defense should have been withdrawn.
The court then addressed a blatant material misrepresentation by defendants’ attorney in his Amended Initial Brief (asserting that the trial judge failed to make specific findings that the defendants knew or should have known that the claim was not supported by material facts), pointing to a page from the sanctions order where the court made such specific findings.
The court issued an order to show cause as to why the attorney should not be sanctioned from making what appears to be “a blatant material misrepresentation in the brief that he filed with this court and for failing to correct the misrepresentation when it was clearly and forcefully brought to his attention by opposing counsel.”
TRIAL COURT ERRED IN DISMISSING COMPLAINT WHEN MOTION TO SUBSTITUTE PARTY WAS NOT SERVED WITHIN 90 DAYS AFTER SUGGESTION OF DEATH OF PLAINTIFF, WHERE PLAINTIFF’S COUNSEL MADE A SUFFICIENT SHOWING OF EXCUSABLE NEGLECT.
Sammons v. Greenfield, 43 Fla. L. Weekly D2367 (Fla. 2nd DCA October 19, 2018):
One of the plaintiffs passed away during the course of the litigation. Counsel filed a suggestion of death, but did not serve a motion to substitute within 90 days as required by rule 1.260(a)(1). Counsel also did not seek an extension of time in which to do so.
A week after the 90 day period passed, the defendants moved to dismiss the lawsuit with prejudice. At a hearing on the motion to dismiss, counsel for the plaintiff presented the court with an affidavit, detailing a health issue she had been experiencing, explaining how the condition was responsible for her failure to file the motion to substitute. Even after reviewing the affidavit and hearing the argument, the trial court concluded that counsel had not shown excusable neglect and granted the motion to dismiss with prejudice as the statute of limitations had expired by then.
Reminding us that courts of Florida have a longstanding tradition in favor of disposing actions on their merits, the court further observed that rule 1.260 has been liberally interpreted to permit substitution beyond the 90 day period. With those principles in mind, the court concluded that the plaintiff’s attorney made a sufficient showing of excusable neglect and reversed the dismissal.