Rescission of Settlement Agreement for Discovery Misconduct – Garvin v. Tidwell

In this case, the plaintiff was injured when she fell off of a horse, named “Buster,” who had behaved obstreperously while plaintiff tried to ride him.  Defendant claimed that Buster never exhibited any dangerous behavior.  The case settled.  After the settlement, plaintiff’s counsel received an unmarked advertisement quoting the defendant as saying that she decided to give a calming supplement, “Ex Stress, to her horse, Buster, because he ‘can be a little difficult at times.’”  Defendant had not produced this advertisement in response to various discovery requests despite being in possession of the advertisement.  The plaintiff then moved to rescind the settlement agreement based upon these facts.  The trial court denied the motion.  The appellate court reversed, holding, “Since our system of justice depends on truthful discovery, misconduct in discovery must be discouraged by disallowing the settlement which is the fruit of such misconduct.”  The court further held that the plaintiff had further established the elements of unilateral mistake:

“[T]his case involves a plaintiff who entered into a settlement agreement believing that, after conducting discovery, she had all of the material facts in front of her, when in fact she did not. There does not appear to have been any reasonable way for appellant to find out about the advertisement or Buster’s ‘difficult’ behavior other than through the methods she had already employed. Thus, appellant’s mistake lacks inexcusable neglect.”

Garvin v. Tidwell, 37 Fla. L. Wkly D2506a (Fla. 4th DCA Oct. 24, 2012)


Amendment 5 Defeated – Election Wrap-up

I will leave it to WPTV for the results:

Amendment: 5:  A Republican-sponsored proposal to give the GOP-dominated Legislature more control over Florida’s court system has been defeated at the polls.

The vote Tuesday for Amendment 5 was only 44 percent in favor. All state constitutional amendments need at least 60 percent to pass.

Amendment 5 would have given the Senate authority to confirm or deny the appointment of Florida Supreme Court justices by the governor. It also would have made it easier for the Legislature to veto court rules.

The legal community was solidly against what critics called a power grab and threat to the judiciary’s independence. GOP lawmakers contended it would make the courts more accountable.

For prior coverage of Amendment 5 see:


Election Day – Amendment 5 News Coverage Roundup

Its election day and this is the rare election when a civil procedure issue is on the ballot.  Florida’s Constitutional Amendment 5 would change how Florida’s courts operate and how Florida’s Supreme Court Justices are appointed.

Here is the latest coverage of Florida’s proposed Amendment 5.

The Sun-Sentinel:

Dangerous Amendment 5 is threat to democracy

. . .

To know something about the history of Amendment 5 is to appreciate how half-baked the proposal is.  What appears on the ballot looks like a constitutional amendment; there certainly is enough legalese to make one think it is a constitutional amendment.  But Amendment 5 really represents the Legislature indulging a temper tantrum by the Speaker of the House about the Florida Supreme Court.

Temple Terrace Patch:

Opponents, including the League of Women Voters of Florida, say the amendment would weaken the state’s judiciary in favor of the legislative branch while taking away powers from the Governor.

Supporters say the measure would add more accountability and efficiency in the court system.

McClatchy DC:

There are so many bad constitutional amendments on Florida’s ballot that it’s hard to know where to start.

. . .

Another amendment for which there’s absolutely no public clamor is Amendment 5, which would give legislators unprecedented sway over Florida’s judiciary.

It’s the pet project of House Speaker Dean Cannon, a Winter Park Republican who holds an actual law degree from the University of Florida. Presiding over a legislative body that cranks out one deficient statute after another, Cannon is miffed that the courts keep stomping on them.

His retort is Amendment 5, which would have the state Senate confirm all Supreme Court appointments. Stop laughing – the guy is serious. He thinks state senators should pick our Supreme Court justices.

In addition, Cannon wants the entire Legislature to be able to change, by simple majority votes, procedural rules that govern the courts. Finally, his Amendment 5 allows the House Speaker (currently him) to see the confidential files of any Judicial Nominating Commission.

He calls this “checks and balances,” but it’s really a flagrant dismantling of the constitutional boundaries between the Legislature and the justice system.

The result would be the total political pollution of our courts.

For previous coverage of Amendment 5:


Florida Constitutional Amendment 5 News Roundup

As voting gets closer, we are seeing more coverage of Florida’s proposed Constitutional Amendment 5.  A few excerpts are below.  Follow this link for my post on understanding Florida’s Constitutional Amendment 5.

NPR State Impact Project:

A group pushing to change the way Florida’s Supreme Court judges are chosen is citing the 2006 decision striking down vouchers as an example of the court deciding cases based on their own beliefs rather than the state constitution or law.

 Miami Herald:

Alex Villalobos, a former Republican state senator, believes legislators already have enough sway on rules.

“The Legislature is doing this because they want to interfere with the way the court is run,” said Villalobos, president of Democracy at Stake, a Tallahassee group with a mission to maintain the independence of Florida courts. “The Senate can act according to the Senate rules, the courts should be able to act on their own rules.”

 Supporters say this would speed along the review of both civil and criminal cases, while the opposition fears an imbalance of power between the state branches.

Gainesville Sun:

Acceptance of this amendment to the Florida Constitution would signal a fundamental shift in the power in this state between the Judicial, Executive and Legislative branches of Florida’s government. Some believe it represents a genuine threat to the independence of the Florida judicial branch of government, and that it is essentially a power grab by the Legislative branch of Florida’s government. Others believe it provides an additional constitutional check and balance system that prevents the executive branch of our Florida government from totally controlling who is allowed to sit on the Supreme Court of this state.