Chemrock Corporation v. Tampa Electric Company d/b/a TECO Peoples Gas Company (Fla. 1st DCA Nov. 17, 2009)

Excellent post by Palm Beach Attorney Christopher Hopkins about a conflict that has developed between the 1st DCA and the 2nd and 3rd DCAs with regard to the interpretation of Rule 1.420(e), Fla. R. Civ. Pro. – Failure to Prosecute:

In 2007-2008, the Second and Third Districts held that any filing during the sixty day grace period is sufficient.  The First District, in Chemrock Corporation v. Tampa Electric Company d/b/a TECO Peoples Gas Company, holds otherwise (Hawkes, Clark and Wetherell).

In Chemrock, the plaintiff was inactive for 10 months, was served with notice, and during the 60-day grace period filed a “motion in opposition” (which sounded, from the Opinion, like an attempt at  showing good cause for inactivity but it was apparently not called up for hearing).  Trial court dismissed and appellate court upheld.

Wells Fargo Bank v. Conaway, No. 09-000145 (Fla. 6th Cir. Jan. 11, 2010)

In another mortgage foreclosure case, which was successfully argued by your author, the Bank obtained final summary judgment without notifying the defendant, or their counsel, of the summary judgment hearing.  The defendant filed an emergency motion to set aside final judgment.  The court found that the defendant had an inalienable due process right to notice of the summary judgment hearing pursuant to State Farm Fire and Casualty Co. v. Lezcano, 34 Fla. L. Wkly. D2105a (Fla. 2d DCA Oct. 14, 2009) and Greene v. Siegle, 745 So.2d 411 (Fla. 4th DCA 1999) and overturned the judgment pursuant to the court’s authority under Rule 1.540(b), Fla. R. Civ. Pro.

Randy Cohen v. Sonia Aponte, 35 Fla. L. Wkly D137c (Fla. 4th DCA Jan. 6, 2010)

In this auto accident case, the defendant moved to dismiss the complaint for insufficient substitute service of process because the affidavit of compliance was not filed on or before the return day of process (20 days after the complaint was filed with the Department of State) as required by Florida’s substitute service of process statute, Section 48.161(1). The appellate court reversed because “[p]erfection of substituted service requires strict compliance with the statutory prerequisites because such service is an exception to personal service.”

Randy Cohen v. Sonia Aponte, 35 Fla. L. Wkly D137c (Fla. 4th DCA Jan. 6, 2010)

Toward a More “Convenient” Standard of Review in Cases Involving Forum Non Conveniens Issues

The January 2010 edition of the Florida Bar Journal discusses the forum non conveniens doctrine in an article by attorneys Alina Alonso and David Luck.  The article provides an excellent explanation of Rule 1.061(a), Fla. R. Civ. Pro., and how Florida came to adopt the Federal analysis of forum non conveniens issues.  As the article explains, Federal Courts have adopted a four prong analysis:

1) At the outset, does an available and adequate alternative forum exist that possesses jurisdiction over the parties and may resolve the dispute? 2) Do the private interests of the litigants favor one forum or another? 3) Do the public interests associated with each forum favor one over the other? And 4) If the alternative forum is more appropriate and convenient, may the plaintiff reinstate the claim there?

This test has been adopted by the Florida Supreme Court in Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So. 2d 86 (Fla. 1996) and codified in Rule 1.061(a).

Hess Corp. v. Denise Grillasca & Kelly Mayzik, 34 Fla. L. Wkly D2629b (Fla. 2d DCA Dec. 23, 2009)

In this consumer class action case, the trial court certified a class against gas stations for failing to provide notice of a temporary hold on customers’ bank accounts after a debit transaction.The appellate court reversed because, under Rule 1.220(b), there were individualized differences among the members of the putative class.The differences included the fact that some customers 1) received notice of the hold and/or 2) incurred damages in the form of overdraft charges, while others did not.

Hess Corp. v. Denise Grillasca & Kelly Mayzik, 34 Fla. L. Wkly D2629b (Fla. 2d DCA Dec. 23, 2009)

News for the New Year

I am pleased to announce Version 3 of It will allow you to contribute case notes that will appear alongside posts from the Florida Rules Reporter and on the and rule pages.  The updated site also includes tools for integration with twitter and other social media applications.

Version 3.0

In 2009 we had over 60,000 unique visits (180,000+ pageviews), coming from all across the country.

As of today, we have moved most of the website, the Rules and the Reporter to the Movable Type Publishing Platform. This makes the website look better and the site easier to manage. It also permits us to open up the Florida Civil Procedure Rules and Florida Appellate Procedure Rules to any lawyer with a blog through a feature called “Trackbacks.” 

More importantly, it means we want your help. Trackbacks were developed in the blogging community to allow different websites to carry on a discussion between multiple blogs; we are using this feature to allow you to participate in a conversation about the rules. Trackbacks allow you to write about a rule and have your content posted as a “Case Citation” under the relevant rule. This works because every Civil and Appellate Procedure Rule has a “Trackback URL”, which you can find at the bottom of every rule page. You can use this Trackback URL to notify us of your post and automatically link a summary of your post to each rule. To learn more about trackbacks please see this page, or this one, and email Brian.

If you have a blog (which you must to participate) this will help drive traffic to your blog. If you help update this blog, you will have a link to your blog from the leading Florida Civil and Appellate Procedure web resource. Of course, in the current setup, Jason and I maintain complete editorial control over any such posts to maintain the sites accuracy and quality. 

In addition to driving traffic to your website, the more participation we have, the more comprehensive this website will be. Right now there is only so much Jason and I can do, plus many of the rules are rarely at issue on appeal.

If you do not have a blog, we are still asking you to help build this site by submitting trial court orders that provide insight into unique aspects of the rules.  We are particularly interested in issues that rarely reach the appellate level, as in this recent post on capacity to sue.  Opinons can be submitted via email to Jason or Brian.

Social Media

We now have a twitter feed so that you can follow updates to the Florida Rules Reporter on Twitter and “Share This” buttons on every page, making it easier to send a relevant case or rule to a colleague or post a page to your personal blog or twitter account.

The Future

I hope that you will help us continue to improve this website. We are also looking for opportunities to expand. Are you a tech savy criminal lawyer that wants to cover the Criminal Procedure Rules? What about Family Law? The Federal Rules? In a short time, the system we have set up through this website has proven to be a robust research tool, and it grows with every case we add. I am certain there is room for improvement and expansion and, to do that, we need your help.