Estela v. Cavalcanti – Service by Publication Not Allowed When Defendant Provides Foreign Address for Service

 In this case, the plaintiff filed a motion to serve a defendant by publication.  The defendant specially appeared in the action and moved to quash the attempted service, claiming that the defendant was residing in Costa Rica.  Defense counsel provided the foreign address at the hearing.  The court denied the motion to quash and allowed service by publication.  Finding that courts should “strictly construe” service of process statutes, the appellate court reversed, holding that “service of process by publication . . . is only permitted when personal service cannot be obtained,” and here, “the trial court has not made a finding that the defendant was attempting to evade service.”  As a result, the plaintiff was required to at least attempt to serve the defendant at the foreign address provided to the plaintiff.

Estela v. Cavalcanti, 36Fla. L. Wkly D2773a (Fla. 3d DCA Dec. 21, 2011)

River Bridge Corp. v. American Somax Ventures – Attorneys’ Fees

After the appeals court issued an opinion partially reversing an $8 million final judgement, the trial court was required to hold a new hearing on attorneys’ fees.  The trial court had entered a fee award while the appeal was pending.  After the appeals court partially reversed the underlying judgment, the trial court, without hearing, simply entered an order reaffirming the prior attorneys’ fee award.  The 4th DCA determined that the trial court should have held an additional hearing to determine the proper amount of fees in light of the partial reversal.

The 4th DCA’s reasoning was based on Fla. R. Civ. P. 1.540(b)(5), which provides for relief from a judgment where such judgment is based on a prior judgment that has been “reversed or otherwise vacated.”  The 4th DCA’s prior decisions have required an evidentiary hearing where a party sought to set aside judgment per Rule 1.540(b).  See Schuman v. Int’l Consumer Corp., 50 So.3d 75 (Fla. 4th DCA 2010).

River Bridge Corp. v. American Somax Ventures, 36 Fla. L. Wkly D2615 (4th DCA Nov. 30th, 2011).

Pino v. Bank of New York – Supreme Court Retains Jurisdiction Over Matters of Public Importance

The mortgage foreclosure cases continue to produce a flood of civil procedure decisions. The latest comes from an appeal to the Florida Supreme Court. At issue in the case is whether a foreclosing bank, BNY Mellon, can be sanctioned for filing an allegedly fraudulent assignment of mortgage. That question was on appeal to the Fourth DCA and then certified as a question of great public importance. The Florida Supreme Court accepted jurisdiction per Art. V, Section 3(b)(4) of the Florida Constitution.

After Pino filed his Inital Brief with the Florida Supreme Court, but before an Answer Brief was filed, the parties reached a settlement and filed a Joint Stipulated Dismissal per Fla. R. App. P. 9.350. The Florida Supreme Court determind that, since the matter was of great public importance, it had the discretion to retain jurisdiction over the case. The Court therefore denied the parties leave to dismiss the case until after the Court issued its opinion.

Pino v. Bank of New York, 36 Fla. L. Wkly s711 (Fla. Dec. 8, 2011).

Bank of America v. Lane – court cannot vacate a default on its own motion based on excusable neglect

In this case, the trial court rejected a defaulting party’s claim that the court should vacate a default for lack of subject-matter jurisdiction, but nonetheless granted the motion based on excusable neglect.  The appellate court reversed and remanded, holding, “[T]he trial court could not set aside the default judgment based upon excusable neglect where such an issue was not presented by the pleadings, noticed for hearing, or litigated by the parties.”

 Bank of America, N.A v. Nancy A. Laneand Robert G. Lane, 36 Fla.L. Wkly D2631A (Fla. 1st DCA Nov. 30, 2011)

In re Amendments to Florida Rule of Civil Procedure 1.720 Mediation Procedures

Following the recommendation of the Florida Bar Committee on Alternative Dispute Resolution Rules and Policy, the Florida Supreme Court has amended Rule 1.720 to strengthen the requirement that the party attending mediation have actual authority to settle the lawsuit.

The new Rule 1.720:

–  Provides a more detailed description of what it means for a party representative to have “full authority” to settle.  The party representative must be “the final decision maker” and have the “legal capacity to execute a binding settlement agreement.”

– Requires each party to file with the court, ten days in advance of mediation, written notice of the party representative(s) appearing at the scheduled mediation and confirming those representatives have full authority.

– Provides that sanctions shall be imposed for failure to appear at mediation.  Failure to properly identify the party representative, or sending a different party representative to mediation than designated, shall create a “rebuttable presumption” that the violating party has “failed to appear” at mediation.

The amended rule goes into effect beginning January 1, 20112.

In re Amendments to Florida Rule of Civil Procedure 1.720, Case No. 10-2329 (Fla. Nov. 3, 2011).