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Every week, Scott J. Edwards, P.A. brings you this summary of selected opinions issued by Florida’s appellate courts in the previous week, with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, and personal injury litigation.  This article covers the week of September 28-October 2, 2015.

Mail Days & Appellate Deadlines Matheny v. Indian River Fire Rescue (1st DCA Oct. 2, 2015): The rule allowing five mail days to be added to a deadline after service of certain papers is pointless now that electronic service is nearly universal. This case demonstrates the unnecessary confusion caused by this antiquated rule. Here, the First DCA dismissed a petition for certiorari for lack of jurisdiction because the petition was filed 31 days after the rendition of the order at issue. Under Florida Rule of Appellate Procedure 9.100(c), a petition for certiorari must be filed 30 days after rendition of the order to be reviewed. The petitioner mistakenly thought that it was entitled to an additional five days for filing the petition pursuant to Florida Rule of Judicial Administration 2.514(b), which allows for five additional mail days when a party may or must act within a specified time after service, and service is made by mail or email. Because the deadline to file a petition for certiorari is calculated from the date the order is rendered–not served–the petition was dismissed as untimely.

Appellate Rehearing With A Successor Judge  Gretna Racing v. DBPR (1st DCA Oct. 2, 2015): In a concurring opinion, Judge Bilberry discusses the issues faced by an appellate judge assigned to a panel after the retirement of a judge on the original panel, and whether a successor judge should vote differently on a motion for rehearing than the judge he or she replaces. The Florida Supreme Court has stated that while a judge should hesitate to undo his own work, and should hesitate even more to undo the work of another judge, a judge nonetheless has the power to modify or vacate the interlocutory rulings or orders of a predecessor judge. Thus, although a “code of restraint” applies, a successor judge is only required to provide deference to the predecessor judge and is not always required to vote identically to the predecessor judge on rehearing.

Motions to Dismiss Medi-Trans v. United National Transport Network (4th DCA Sept. 30, 2015): The trial court granted the defendant’s motion to dismiss on the alternate grounds of worker’s compensation immunity and previous release. The Fourth DCA reversed, holding that these affirmative defenses should not have been raised by a motion to dismiss because the assessment of the defenses required the determination of factual issues outside of the four corners of the complaint. Therefore, these defenses should be considered by summary judgment.

Statute of Limitations on a Divisible Contract; Delayed Discovery Access Insurance Planners v. Gee (4th DCA Sept. 30, 2015): The contract at issue in this case required the defendant to pay the plaintiff commission on every insurance contract generated by the plaintiff. The plaintiff grew suspicious over the years that the defendant was not paying the full commissions owed to her under the contract. The Fourth DCA held that the agreement between the parties was a divisible contract; therefore, the failure to pay each commission was a separate breach of contract subject to its own four-year statute of limitations. Furthermore, the doctrine of delayed discovery, which tolls the running of the statute of limitations in cases where a plaintiff could not discover that a cause of action had accrued, does not apply to breach of contract claims or similar actions such as breach of fiduciary duty, civil theft, conspiracy, conversion, and unjust enrichment.

Default Judgment Hendrix v. Department Stores Nat’l Bank (4th DCA Sept. 30, 2015): In cases where a defendant files substantive papers in the action, the defendant is entitled to an opportunity to be heard before having a judicial default entered against it. In this case, the default was void because the trial court granted a motion for judicial default without holding a hearing.

Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, and insurance law.  He can be reached at scott@scottjedwards.com or 561-331-0779. 

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