Standard of “Evident Partiality” to Challenge Arbitration Award

In this commercial contract case, the plaintiff received a damages award from an arbitrator.  The defendant challenged the award because of its belief that the arbitrator gave “tips” to the claimant when commenting on the evidence at the final hearing.  The appellate court rejected the claim, holding, “the standard for determining ‘evident partiality’ is whether there was a ‘reasonable impression of partiality.’  We have reviewed the arbitrator’s comments and conclude that they do not show any partiality. During the proceedings the arbitrator was trying to understand the parties’ positions and asked several questions in that regard. The arbitrator’s remarks were an allowable comment on the evidence and/or sought clarification of a party’s position.”

Jomar Properties, L.L.C., and Accredited Surety And Casualty Company, Inc., 40 Fla. L. Wkly D206a (Fla. 4th DCA Jan. 14, 2015).

 

 

New Trial As a Result of Inflammatory Closing Argument

In this case, the defendant made a closing argument to the jury that shifted the focus of the case from compensating the plaintiff to punishing the defendant, “to make the defendant care, ‘take responsibility,’ or say it was sorry.”  The appellate court reversed, holding, “The closing argument was designed to inflame the emotions of the jury rather than prompt a logical analysis of the evidence in light of the applicable law.”

Hill v. New Horizons Of The Treasure Coast, Inc., 39 Fla. L. Weekly D2311a (Fla 4th DCA Nov. 5, 2014).

 

 

 

 

 

 

Intervention Generally Not Permitted After Final Judgment

In this trust litigation case, the Attorney General of Delaware sought to intervene in a case involving a charitable trust providing for children with physical disabilities in the State of Delaware.   In 2004, additional litigation resulted in a judgment that expanded the category of persons eligible to receive funds under the trust.  While the Attorney General of Delaware was made aware of the litigation, he was not joined as a party in it.  In 2013, the Attorney General of Delaware moved to intervene to set aside the 2004 judgment along with its more expansive definition of eligible beneficiaries.  The trial court denied intervention, and Delaware appealed.

The appellate court affirmed, holding:

“After final judgment, intervention is not generally permitted.   However, a very narrow exception to the general rule permits post-judgment intervention when to do so would in no way injuriously affect the original litigants and when allowing intervention will further the interests of justice.

The court reasoned further,

“Accordingly, in order for the Delaware Attorney General to be permitted to intervene in the 2004 action, the trial court was required to find (1) that intervention would not injuriously affect the original litigants and (2) that intervention would serve the interests of justice. The record does not support such findings, and the trial court did not err by denying the motion to intervene.

The Delaware Attorney General failed to demonstrate that post-judgment intervention would in no way injure the original litigants to the 2004 action.”

Joseph R. Biden, III, the Attorney General of the State of Delaware v. John S. Lord et al., 39 Fla. L. Weekly D1488a (Fla. 1st DCA July 16, 2014)

 

 

Error to Dismiss Case for Lack of Prosecution When Party Awaits Action on Notice of Trial

In this mortgage foreclosure case, the trial court dismissed the case because appellant failed to schedule the matter for non-jury trial, despite the fact that appellant had filed a notice of trial.  The appellate court reversed, holding, “Because appellant continuously prosecuted its case and timely filed a notice of readiness for trial, dismissal was improper. The next move was for the trial court itself, not appellant, to schedule the case for trial.”

Citimortgage, Inc. v. Hill, 39 Fla. L. Weekly D1295b (1st DCA June 18, 2014).

Dismissal with Prejudice Not an Option for Failure to Serve Process Within 120 Days

In this breach of contract case, the trial court sua sponte dismissed a complaint “with prejudice” for failure to serve it within 120 days, after the court entered an order requiring service within 120 days.  The appellate court reversed for two reasons: the trial court should have provided notice and an opportunity to be heard before dismissal, and should not have dismissed the complaint with prejudice, reasoning that “Rule 1.070(j) states that a trial court may act on its own initiative; however, the court may only act “on its own initiative after notice.”   Further, “the trial court also erred in dismissing Carter’s complaint with prejudice. That action was not one of the options available to it under rule 1.070(j). See Fla. R. Civ. P. 1.070(j) (emphasis added) (“[T]he court . . . shall dismiss the action without prejudice or drop that defendant.”).”

Carter v. Mendez, 39 Fla. L. Weekly D1229a (Fla. 4th DCA June 11, 2014)

 

 

Breach of Confidentiality Clause Leads to Disgorgement of Settlement

In this employment termination case, plaintiff Snay (a school principal), and Defendant, Gulliver (the school), settled and agreed to keep the settlement confidential.  Four days after the parties signed the settlement agreement, the plaintiff’s daughter posted the following on her Facebook page:  “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

On appeal, the issue was whether the breach of the confidentiality provision required the plaintiff to disgorge the $80,000 settlement.  The appellate court found that a disgorgement was appropriate, holding, “Snay violated the agreement by doing exactly what he had promised not to do.  His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”

Gulliver Schools, Inc. v. Snay, 39 Fla. L. Weekly D457a (Fla. 3d DCA Feb. 26, 2014).

 

 

Serving Privilege Log After Denial of Protective Order

In this insurance case, the trial court denied State Farm’s motion for protective order.  On Appeal, State Farm argued that the trial court should have conducted an in-camera review or addressed the objections to the discovery.  The appellate court affirmed on the basis that State Farm’s argument was premature, because “the general denial of State Farm’s motion was equivalent to a determination that all of the documents were ‘otherwise discoverable.’  At that point, State Farm’s claims of privilege and protection under the work product doctrine became mature,” thus giving State Farm the right to file a privilege log to protect any applicable privileges.  Thus, the appeal was premature in the absence of the trial court’s determinative ruling on the privilege issues.

State Farm v. Coburn, 39 Fla. L. Weekly D334b (Fla. 2d DCA Feb. 12, 2014).

No Discovery After Settlement

In this foreclosure case, certain borrower-defendants stipulated to a deficiency judgment, while one defendant did not. The non-settling defendant prevailed at trial on the basis that the lender lacked standing to pursue the debt. The other defendants then sought to set aside their stipulated settlement agreement, and sought a deposition and other discovery from the lender while the motion to set aside remained pending. The trial court allowed the discovery, and the appellate court reversed, holding: “The parties reached a settlement and stipulated to a deficiency judgment. Although the respondents have moved to set aside their stipulation, the trial court has not ruled on the motion. Therefore, the settlement and stipulation remain in effect and bar any further discovery.”

Eagle FL VI SPE, FL v. BB&T, 39 Fla. L. Wkly D48a (Fla. 2d. DCA Dec. 27, 2013)

 

 

Person responding to subpoena entitled to costs of production

In this case, the trial court ordered a third party to produce documents that were alleged to be confidential, and denied the third party its costs in providing the production.  The appellate court affirmed on the confidentiality issue, but reversed on the costs issue, holding, “The failure to make provision for the cost to a non-party to produce subpoenaed documents constitutes a departure from the essential requirement of law.”

First Call Ventures, LLC v. Nationwide Relocation Services, Inc., 38 Fla. L. Wkly D2431a (Fla. 4th DCA Nov. 20, 2013)

 

Postage-Meter Mark May Rebut Date Listed in Certificate of Service

In this foreclosure case, the bank moved for reconsideration after trial.  The certificate of service in the motion listed the last day (day 10) to serve the motion.  The postage-meter, however, listed the following day (day 11), one day too late.  The trial court denied the motion as untimely, without receiving evidence.  The bank appealed.  Finding this to be a case of first impression, the appellate court framed the issue: “In determining whether a motion was timely served by mail, can a private postage-meter mark constitute competent substantial evidence to rebut the prima facie proof of mailing evidenced by the date contained in the certificate of service?”

The court answered the question affirmatively, and remanded for the trial court to take further evidence on the issue.

Chase Bank v. Bigley, 38 Fla. L. Wkly D1998a (Fla. 3d DCA Sept. 18, 2013).