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 October 19-23, 2015. Click here to learn more about Scott Edwards’ appellate law services.

Attorney’s Fees Haines v. Black Diamond Properties (Fla. 5th DCA Oct. 23, 2015): In a complex action arising from the sale of golf club memberships, the plaintiffs obtained money judgments against the defendants. However, the defendants prevailed on counts brought under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The defendants then successfully appealed many of the judgments won by the plaintiffs, resulting in the defendants becoming the prevailing parties entitled to recover fees and costs pursuant to FDUTPA and the Florida statute authorizing a cause of action for false and misleading advertising. However, the defendants failed to move for attorney’s fees within 30 days of the issuing of the appellate court’s mandate, as required by Florida Rule of Civil Procedure 1.525. The 30 day limit to move for attorney’s fees is a bright line time requirement strictly enforced by Florida’s appellate courts. By missing this deadline, the defendants lost a cost and fees award totaling approximately $1.4 million.

Furthermore, the Fifth DCA noted that the trial court erroneously awarded the cost and fees judgment joint and severally against the plaintiffs. Although it is appropriate to apportion a cost and fee judgment among the non-prevailing parties in cases with multiple intertwined issues, it is not appropriate to enter a joint and several cost and fee judgment. Specifically, because this was a tort action, there is no right of contribution among the plaintiffs because the plaintiffs cannot be considered to be joint tortfeasors.

Good Cause for Late E-Filing Nelson v. Pharmerica  (Fla. 1st DCA Oct. 22, 2015): A party filed its response to a motion over three months late. The filing was late because, although counsel gave the finalized response to an assistant and asked that the response be e-filed, the assistant mistakenly placed the document directly in the file without e-filing it or serving it on opposing counsel. The 1st DCA held that the assistant’s error did not rise to the level of “good cause” required to excuse the late filing of the response.  “Good cause” requires a showing of good faith and a reasonable basis for  noncompliance with the deadline beyond simple inadvertence or mistake.


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Construction Law Dorelas v. DBPR (Fla. 1st DCA Oct. 22, 2015): The Florida Homeowners Construction Recovery Fund compensates consumers who suffer monetary damages caused by certain violations by licensed construction contractors. In order to receive restitution from the Recovery Fund, a claimant must obtain a final judgment, arbitration award, or order from the Florida Construction Industry Licensing Board against the contractor. Because the claimant in this case only had a judgment against his contractor for the amount of a subcontractor’s lien against the claimant, the claimant could not recover any additional restitution from the fund beyond this amount.

Dismissal As A Sanction Perkins v. Jacksonville Housing Authority (Fla. 1st DCA Oct. 20, 2015): Florida Rule of Civil Procedure 1.200(c) authorizes the sanction of dismissal for a party’s failure to attend a scheduled case management conference. However, because dismissal of an action is the harshest of all sanctions, a trial court must make explicit findings that dismissal is justified because the party’s actions were willful, flagrant, deliberate, or otherwise aggravated. In this case, the trial court failed to make the required findings justifying the sanction of dismissal.

Appellate Procedure; Rules of Professional Conduct  Beckles v. Brit (Fla. 3d DCA Oct. 21, 2015): The appellant failed to timely file its initial brief, and again failed to file the initial brief even after the appellate court entered multiple orders extending the deadline. In response to a show cause order, the appellant’s attorney implied that he did not prosecute the appeal because his clients could not pay his fees. Under the rules of professional conduct, if a client lacks the resources to pay an attorney, the attorney must still respond appropriately to Court orders, seek enlargements of time, or file a motion to withdraw from representation. Thus, the Third DCA referred the appellant’s counsel to the Eleventh Circuit’s Local Professionalism Panel.

Personal Jurisdiction Segalis v. Roof Depot USA, Inc. (Fla. 4th DCA 2015): A judgment entered against a party without achieving proper service is void; therefore, a trial court does not have discretion to deny a motion to vacate such a judgment. In this case, the filing of a notice of appearance and the motion to vacate judgment did not waive the appellant’s personal jurisdiction challenge.

Void Judgment Torres v. One Stop Maintenance & Management (Fla. 4th DCA 2015): A plaintiff, after securing a favorable summary judgment against pro se defendants, filed a notice of hearing for its motion to determine damages and enter final judgment. The hearing notice was sent to the defendants via U.S. mail only seven days before the hearing, and the evidence established that the defendants did not receive the notice until after the hearing had already taken place. Because the defendants were not given proper notice and opportunity to be heard at the hearing determining damages, the judgment entered against them was void, and could be challenged at any time.

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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