RING POWER CORP. v. ROSIER – No New Trial for Unobjected-to Closing Argument

In this negligence case tried before a jury, defense counsel referred to an exculpatory clause in a customer service agreement during closing argument, even though the trial court had prohibited the defense from claiming that the exculpatory language barred a finding of negligence.  The trial court granted a new trial.  The appellate court, however, reversed, for two reasons.  First, plaintiff’s counsel did not object during closing argument.  Second, the exculpatory clause was relevant to an issue other than negligence, namely, to rebut plaintiff’s expert testimony suggesting that defendant should have “predicted the future” regarding a possible injury caused by the backhoe loader at issue in the case.

RING POWER CORPORATION v. MELVIN ROSIER, 36 Fla. L. Weekly D1543b (Fla. 1st DCA July 18, 2011)

Drucker v. Duval – Improper Venue

In this case the Fourth DCA found that the trial court erred in denying a motion to transfer the case based on improper venue.  The Fourth DCA ruled that the forum selection clause in the contract at issue in the case could not apply to the Defendant since the Defendant was not a party to the contract.

The contract at issue was a mediation agreement and the Defendant was counsel to one of the parties to the mediation.  Pursuant to Fla. R. Civ. P. 1.730, the Defendant had signed the agreement as counsel for one of the parties to the mediation.  In reaching it decision on venue, the Fourth DCA ruled that counsel who signs a mediation agreement per Rule 1.730 does not become a party to the agreement absent consideration or some other indication that mediation agreement was intended to bind counsel.

Drucker v. Duval, Case No. 4D10-4443 (Fla. 4th DCA May 18, 2011).

Dedmom v. Kelly – Error to Dismiss Case – 4th DCA

The trial court abused its discretion by dismissing the case after the Plaintiffs failed to attend a case management conference.  The Plaintiffs had hired a new attorney, who had a filed a Motion for Approval of Stipulation for Substitution of Counsel.  The Plaintiffs’ attorney had twice scheduled the motion for hearing and twice the trial court had ran out of time to hear the motion.  The clerk sent notice of the case management to the former attorney’s office and when the conference came up on the calendar neither the new attorney, nor the Plaintiffs, attended the case management conference.  They had not received any notice.  Nevertheless, the trial court dismissed the case.

Citing Camerota v. Kaufman, 666 So.2d 1042 (Fla. 4th DCA) and Rule 1.200(c), Fla. R. Civ. Pro., the Fourth DCA found that a finding of willful and contumacious behavior is necessary to support such a dismissal and overturned the trial court’s decision.

Dedmom v. Kelly, Case No. 4D09-3572 (Fla. 4th DCA May 18, 2011)

Chemrock v. Tampa Electric Co. – Fla. Sup. Ct. Resolves Conflict

The Florida Supreme Court has resolved the split between the District Court of Appeals over what action is required to keep a matter from being dismissed from prosecution after the Rule 1.420(e) threshold of ten months of inactivity.  The Court found that “any filing of record during the applicable time frame is sufficient to preclude dismissal—without regard to a finding that the filing is intended to affirmatively move the case toward resolution on the merits.”  The Court rejected the position adopted by the First DCA that only an “attempt to move the case toward conclusion on the merits” constituted record activity sufficient to avoid dismissal for lack of prosecution.

Chemrock v. Tampa Electric Co., Case No. SC09-2263 (Fla. June 30, 2011).

Shapiro v. Tulin – Right to Amend

The parties to this case had a dispute over a very unique contract.  In short, the gentlemen entered into a contract whereby, upon  the death of one, the survivor would receive certain designated property and cash.  The Defendant in the case prevailed on a motion to dismiss.  The Plaintiff appealed, arguing that the trial court erred by looking beyond the four corners of the Complaint and not providing the Plaintiff the right to amend the Complaint.  The Fourth DCA agreed on both points and overturned the decision.

As explained by the Fourth DCA:

– The court went beyond the four corners of the complaint by ruling on the Defendant’s argument that the Plaintiff had not complied with s. 732.701, Fla. Stat.

– A motion to dismiss is not a pleading, which is defined by Rule 1.100, Fla. R. Civ. Pro., and, as such, Rule 1.190(a) gave the Plaintiff the right to amend the complaint even after the motion was filed.

Shapiro v. Tulin, 36 Fla. L. Wkly D1067 (Fla. 4th DCA May 18, 2011)

Nudel v. Flagstar Bank – Attorneys’ Fees

In this mortgage foreclosure cases, the Fourth DCA found that the defendant homeowner was entitled to recover her attorneys’ fees as the prevailing party after she prevailed on a motion to dismiss.  The Plaintiff/Bank argued that the Defendant was not entitled to recover attorneys’ fees since she had not properly pled her claims as required by Stockman v. Downs, 573 So.2d 835, 837-38.  In upholding the fee award, the Fourth DCA reasoned that a motion to dismiss was not a pleading as defined by Rule 1.100(a), Fla. R. Civ. Pro.,  The Defendant could either raise the fee claim in the motion to dismiss or, alternatively, per Rule. 1.525, Fla. R. Civ. Pro., within 30 days following the dismissal of the action.

Nudel v. Flagstar Bank, 36 Fla. l. Wkly D1065 (Fla. 4th DCA May 18, 2011)