Expert Determination

“Expert determination is a form of dispute resolution in which the parties use a subject-matter expert, rather than a judge, mediator, or arbitrator with legal training, to decide the dispute. It may be the least known form of alternative dispute resolution. In fact, it’s been called the “secret alternative to arbitration.” While the term “expert” may call to mind the concept of an expert witness, expert determination actually has its roots in the English common law of “valuation” or “appraisement.” Perhaps because we do not generally use the word “expert” to describe the decision maker, the concept of a person without legal training acting as the ultimate decider of law and fact may be most familiar in the form of an agreement to resolve a dispute over value through an appraiser or panel of appraisers.”

Resolving Disputes by Expert Determination: What Happens When Parties Select Appraisers, Accountants, or Other Technical Experts to Decide Disputes

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).

 

 

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).

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).

 

 

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.)

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Order Restricting Informal Discovery Infringes on Litigant’s Right to Free Speech

In this medical business dispute between a buyer and sellers of surgical centers, the trial court entered an order precluding the sellers from communicating with any third party, including those in other countries, about the facts of the case without first proceeding through the court’s formal discovery process. The appellate court reversed, holding that the order 1) “hinders the Sellers’ counsel’s ability to prepare their case for trial and places an unnecessary burden on the circuit court to oversee informal fact-finding,” and 2) “infringes on the Sellers’ right to free speech because it prohibits any informal investigation of the case without the Sellers’ first seeking permission from the court.”

SP Healthcare Holdings, LLC; ASC Holdings, Inc.; Rodolfo Gari, M.D.; Laurie Gari; Rodolfo Gari Jr., Grantor Retained Annuity Trust; and Laurie Gari Grantor Retained Annuity Trust v. Surgery Center Holdings, LLC; Armenia Ambulatory Surgery Center, LLC; Surgery Center Holdings, INC.; and H.I.G. Middle Markets, LLC, 38 Fla. L. Wkly D571a (Fla. 2d DCA Mar. 8, 2013).