No Added Time For Mailing

When a court orders that a matter be done by a certain date, do the parties get to add an additional five days for mailing pursuant to Rule 2.514? The First DCA took a detailed look at the issue and determined that, when a deadline is set by court order, no additional time is available unless specified by the court:

[W]hen a court orders that a document be filed by a “date certain” or “even by reference to a specified number of days from a date noted in the order,” the additional time afforded by rule 2.514(b) is unavailable.

C.M. v. Dep’t of Children and Families, CASE NO. 1D16-4711, (1st DCA Feb. 16, 2017).

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)



Vexatious Litigant – Case Dismissed with Prejudice

In this tort case, the appellate court affirmed a dismissal order finding a pro se plaintiff to be a “vexatious litigant,” which according to Florida Statute § 68.093, includes a pro se litigant “who, in the immediately preceding 5-year period, has commenced, prosecuted, or maintained, pro se, five or more civil actions in any court in this state, except an action governed by the Florida Small Claims Rules, which actions have been finally and adversely determined against such person or entity.” The appellate court found specifically that the provision is not unconstitutional, citing Smith v. Hernandez, 20 So. 3d 905 (Fla. 2d DCA 2009).

Smith v. Hatcher, 38 Fla. L. Weekly D1522b (Fla. 1st DCA July 11, 2013.)

Prevailing Party Entitled to Recover Attorneys’ Fees Paid by Third Party – Rogers v. Vulcan Manufacturing Co., Inc.

Following a suit for breach of contract, the prevailing party moved to recover attorneys’ fees pursuant to the terms of the contract, which provided:

(c) In any action to enforce any term, condition, or provision of this agreement, the prevailing party shall be entitled to recover the reasonable attorney’s fee incurred to enforce same.

The trial court denied the award of fees because it found that the entirety of the prevailing party’s attorneys’ fees were paid by a third party.  According to the trial court, this meant that the prevailing party had no fees to recover.  The 1st DCA reversed finding that the plain intent of the agreement was that the “loser pays, and the winner does not.”  According to the 1st DCA, denying the award of attorneys’ fees because the prevailing party had to have a third party cover his fees would result in an inequitable windfall for the losing party.  As such, the prevailing party was entitled to recover attorneys’ fees paid by the third party.

Rogers v. Vulcan Manuf. Co., Inc., Case No. 1D11-3927 (Fla. 1st DCA June 1, 2012).

Washington v. Labor Ready, Case No. 1D10-2989 (Fla. 1st DCA Aug. 18, 2010)

“It is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights.” Citing Millinger v. Broward County Mental Health Div., 672 So.2d 24, 26 (Fla. 1996).  The Court didn’t bother to discuss the facts, but did let us know that it issued an order to show cause prior to dismissing the lawsuit. The relevant rule is 9.110, Florida Rules of Appellate Procedure.

Washington v. Labor Ready, Case No. 1D10-2989 (Fla. 1st DCA Aug. 18, 2010)

Arnold Zimmerman v. Cade Enterprises, Inc. – Rule 1.240

Cade Enterprises, Inc. is a corporation established by the inventor of Gatorade for estate planning purposes.  In 2008 the company was set to issue dividends, but two of its shareholders were in a dispute over their interest in the company.  Both shareholders made demand for payment of the dividends. Rather than choose sides between the warring shareholders, Cade Enterprises filed an action in Interpleader pursuant to Rule 1.240, Fla. R. Civ. Pro., and sought to deposit the disputed dividends into the registry of the court, leaving the shareholders to fight over the funds.

Reiterating that Interpleader is an equitable remedy, the Court found that Rule 1.240 abolished the four part test to maintain an Interpleader action at common law and substituted a single requirement: whether the party seeking Interpleader “‘is or may be exposed to double or multiple liability’ for competing claims to a single fund.”  Finding that the shareholder’s dispute over the dividends met the requirement, the First DCA upheld the trial court’s decision allowing Cade Enterprises to proceed with its Complaint in Interpleader.

Arnold Zimmerman v. Cade Enterprises, Inc., 35 Fla. L. Wkly. D1030 (Fla. 1st DCA May 7, 2010)

Williamson v. Bradford, 34 Fla. L. Wkly D2472a (Fla. 1st DCA Nov. 30, 1990)

In this case, the court entered a partial summary judgment on a counterclaim for monetary damages while the plaintiff’s affirmative claim was still pending.  By including the phrase “for which let execution issue” in the judgment, the trial court attempted to permit the defendant to begin collection proceedings.  The appellate court held that this was error as a matter of law and reversed, citing Millennium Group I, L.L.C. v. Attorney’s Title Ins. Fund, Inc., 847 So. 2d 1115 (Fla. 1st DCA 2003).


Williamson v. Bradford, 34 Fla. L. Wkly D2472a (Fla. 1st DCA Nov. 30, 1990)

ST. JOHNS INVESTMENT MANAGEMENT CO. v. DAVID T. ALBANEZE, 34 Fla. L. Weekly D2354a (1st DCA Nov. 13, 2009)

In this non-compete case, the trial court denied a motion for temporary injunction on the basis that the restrictive covenant did not survive the expiration of the employment agreement because the post-agreement employment relationship “was not formalized in a written document.”

The appellate court reversed, holding that the movant had established a substantial likelihood of success on the merits based upon a provision in the agreement that contemplated employment “in the absence of a written agreement.”

ST. JOHNS INVESTMENT MANAGEMENT CO. v. DAVID T. ALBANEZE, 34 Fla. L. Weekly D2354a (1st DCA Nov. 13, 2009)



NAN H. MULLINS, D.M.D. v. ALICE TOMPKINS, 34 Fla. L. Wkly D1456a (Fla. 1st DCA July 21, 2009)

In this dental malpractice case, the trial court denied the defendant’s motion for protective order requesting non-disclosure of work-product and attorney-client documents sent to a testifying expert.  The plaintiff claimed that the defendant waived any privilege when his counsel sent the documents to the expert.  The defendant claimed that no waiver occurred because the expert never read the documents and they would not otherwise be used at trial.  The appellate court held that “[e]ven when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence.” The appellate court therefore granted the petition for certiorari and quashed the trial court’s order.

NAN H. MULLINS, D.M.D. v. ALICE TOMPKINS, 34 Fla. L. Wkly D1456a (Fla. 1st DCA July 21, 2009)

Florida Rule of Civil Procedure 1.280