Jeff's April 2023 Legal Roundup
Jeffrey Molinaro
Board Certified Specialist in Appellate Practice | Partner and Chair of the Appellate Practice Group at Fuerst Ittleman David & Joseph, PL
Jeff’s April 2023 Legal Roundup[i]
Just a couple cases and statutes that have caught my eye this month that I wanted to share. This month’s edition includes cases and statutes concerning properly pleading a right to attorneys’ fees, how amended rules of appellate procedure apply to pending cases, tort reform legislation, family law, personal jurisdiction, foreclosure, mootness, the Florida Uniform Fraudulent Transfer Act, and more.
The Sixth District addressed whether, where a contract provides for prevailing party fees, but a defendant fails to plead for attorneys’ fees in her answer but does so in a previously filed motion to dismiss and in an unheard motion for summary judgment, the lower court erred in denying an award of attorney’s fees after judgment for defendant. In affirming the denial of attorney’s fees, the Sixth District’s opinion provides an analysis practitioners can be guided by in analyzing the issue.
The Sixth District analyzed the issue under Stockman v. Downs, 573 So.2d 835 (Fla. 1991). Stockman stands for the proposition that a claim for attorney’s fees, whether based on statute or contract, must be pled. However, Stockman also provides that the purpose behind the pleading requirement is to notify the opposing party of the claims alleged and prevent unfair surprise. Thus, Stockman further held that where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or fails to object to the failure to plead, that party waives any objection to entitlement.
Here, the Sixth District first found that Vickers did not plead for fees in her Answer. The Sixth District then analyzed whether pleading for fees in her motion to dismiss and unheard motion for summary judgment provided adequate notice of her claimed entitlement to fees. The Court held the requests contained in motions filed more than two years apart were insufficient to place plaintiff on notice. In so holding, it appears the Sixth District relied in part upon the fact the motion for summary judgment was never heard. The Court cited to Taylor v. T.R. Props., Inc. of Winter Park, 603 So.2d 1380, 1381 (Fla. 5th DCA 1992), which held that a party’s failure to object to an attorney’s fee request made for the first time in a motion for summary judgment did not constitute a waiver because there is no requirement to respond in any way to that demand prior to the hearing on the motion.
The Third District attempts to add clarity to the issue of how amended rules of appellate procedure should apply to pending cases. At issue in this case was whether the granting of leave to amend to assert punitive damages was reviewable as a nonfinal appealable order under Fla. R. App. P. 9.130(a)(3)(G) or via petition for certiorari, where the effective date of Fla. R. App. P. 9.130(a)(3)(G) was after the order was issued below and after jurisdiction in the appellate court was obtained via the filing of a petition for writ of certiorari. The Third District held that controlling case law dictates that newly amended rules do not apply when the appellate proceeding is initiated before the effective date of an amended rule. Thus, because the petition for certiorari was filed before the effective date of Rule 9.130(a)(3)(G), the Court would review the matter under the standards appropriate for certiorari review.
Judge Gordo concurred in result only noting that predictability in application of newly amended rules and statutes remains elusive—if not imprecise under our current precedent. As a result of this, Judge Gordo notes that an inordinate amount of time, judicial resources, and legal expenses are incurred by parties litigating these issues every time there is a rule amendment. Judge Gordo explained that although she was constitutionally bound to follow this precedent, had the court not been bound, she would hold that based on the plain language meaning of “shall take effect,” if the rule is operative prior to the court’s consideration of a matter, it should apply. ?
3.??????????HB 837 (effective March 24, 2023).
On March 24, 2023, Governor DeSantis signed into law House Bill 837, a comprehensive bill aimed at creating significant tort reform that has the potential to fundamentally alter civil litigation in Florida. Highlights include:
These comprehensive changes and new laws went into effect immediately upon the Governor’s signature. A more comprehensive review of the recent amendments can be read in our recent JD Supra article found here.
The First District holds that neither section 61.14(1)(b), Florida Statutes, nor the Court’s prior precedent in Overton v. Overton, 92 So.3d 253 (Fla. 1st DCA 2012), requires a “significant financial benefit” to be conferred on a former spouse before a supportive relationship can be found such that alimony can be reduced or terminated. Section 61.14(1)(b)1 authorizes the trial court to terminate or reduce alimony based on a finding that a former spouse receiving alimony is in a supportive relationship with another person. Although “a supportive relationship” is not defined by the statute, it does explain that “relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph.” § 61.14(1)(b)3., Fla. Stat. The statute provides a non-exhaustive list of factors to determine the nature of the relationship at issue.
The First District explained that the lower court’s finding that First District precedent holds that a supportive relationship is one that takes the financial place of a marriage and decreases the need for alimony was incorrect because the language the lower court relied upon was a quote within Overton from French v. French, 4 So.3d 5 (Fla. 4th DCA 2009) and the Overton Court certified conflict with French’s conclusion.
The Second District holds that where multiple grounds for asserting personal jurisdiction are alleged, and the party disputing jurisdiction files an affidavit that does not refute each ground, the lower court does not err in failing to dismiss the complaint. In this case, plaintiff alleged three bases for personal jurisdiction: i) general jurisdiction under section 48.193(2); ii) operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state under section 49.193(1)(a)1; and iii) committing a tortious act within Florida under section 49.193(1)(a)2. Although the affidavit filed in support of CLM’s motion to dismiss refuted the Estate’s allegations concerning general jurisdiction and conducting business in the state, it failed to sufficiently refute the allegations that constituted tortious conduct in the state. Thus, because sufficient minimum contacts were alleged to exist, the lower court did not err in denying the motion to dismiss.
The Second District holds that foreclosure of a mortgage and foreclosure of an assignment of leases and rents separately executed are separate independent actions; foreclosure of one neither prevents nor requires foreclosure of the other. The case involved a note, secured by a mortgage to finance the purchase of commercial property, and a separately executed assignment of leases and rents between the mortgagor and mortgagee. E-Z Cashing was subsequently assigned both the mortgage and the assignment of leases and rents in 2020.
The Second District explained that an assignment of rents creates a lien on the rents in favor of the mortgagee, and the mortgagee will have the right to foreclose that lien and collect the rents, without the necessity of foreclosing on the underlying mortgage. Thus, although any interest in the note or mortgage merged into a prior 2010 consent foreclosure judgment concerning a lawsuit brought on the mortgage, E-Z Cashing’s interest in the assignment of leases and rents did not merge into the 2010 consent judgment. Therefore, although the lower court erred in finding that E-Z Cashing held a first priority mortgage/lien on the property, the lower court did not err in granting E-Z Cashing’s motion for order assigning leases and rents that granted E-Z entitlement to all leases and rents mortgagee received from the date the E-Z was assigned the assignment through the sale of the foreclosed property. ?
?7.??????????Tyler v. Dep’t of Highway Safety and Motor Vehicles, No. 2D22-1686 (Fla. 2d DCA April 5, 2023).
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The Second District granted Petitioner’s second-tier certiorari review of the lower court’s Order Dismissing Petition for Writ of Certiorari as Moot. The case provides an analysis of mootness during review.
Here, Petitioner originally sought first-tier certiorari review of an administrative order upholding her twelve-month driver license suspension. While that review was pending, the suspension expired. The circuit court subsequently dismissed the petition filing that the issue on review was rendered moot, explaining that because the suspension had expired, the issue of the validity of the suspension was moot.
On second-tier review, the Second District found that Petitioner’s license suspension issue was not moot because it was capable of repetition but evading review. The Second District held that the circuit court departed from the essential requirements of law and denied Petitioner due process by failing to apply the capable-of-repetition-but-evading-review exception to mootness. In quashing the circuit court’s order of dismissal, the Second District explained that its review was limited to the mootness question and that the merits of whether Petitioner’s first-tier petition should or should not be granted must first be addressed by the circuit court on remand.
The Fourth District holds that a joint tenancy with right of survivorship can be terminated by a deed from one joint tenant to himself. The resulting tenancy created is a tenancy in common. In so holding, the Court explained that the cases relied upon by the lower court did not hold that the exclusive method to terminate a JTROS was via a conveyance to a third party or upon mutual agreement of both owners. Instead, those cases merely held that a JTROS “may” or “can” be terminated via a conveyance to a third party.
The Fifth District holds that it is error not to grant a motion for relief from judgment directed to a notice of voluntary dismissal where that notice was filed after the lower court held a summary judgment hearing. In reversing, the Fifth District explained that a notice of voluntary dismissal filed after a summary judgment hearing is a nullity. Thus, because the notice of voluntary dismissal was void, the lower court has no discretion in whether to grant a rule 1.540(b) motion for relief and was obligated to vacate the judgment.
In a case illustrative of the interplay between exclusion of experts under Daubert versus rigorous cross-examination, the Fifth District reversed an order of the lower court excluding Wife’s disability doctor under Daubert finding that the bases for exclusion, including considering the wrong patient’s test results and failing to consider other available information, would have been proper fodder for an intense cross-examination, but they do not demonstrate a basis for disqualification under Daubert.?
The Eleventh Circuit holds that, as a matter of first impression, the “catch-all” provision under the Florida Uniform Fraudulent Transfer Act (“FUFTA”)—Fla. Stat. § 726.108(1)(c)3—does not allow for an award of money damages against the transferor, an award of punitive damages, or an award of attorney’s fees.
The case provides an excellent demonstration of how federal appellate courts analyze issues of state law where a state’s highest court has not addressed the issue. As the Court explained, when interpreting Florida law, it first looks to case precedent from the Florida Supreme Court. However, where the Florida Supreme Court has not spoken to the issue, the Eleventh Circuit must predict how the highest court would decide the case. When making this prediction, the Eleventh Circuit is bound to adhere to the decisions of the Florida intermediate appellate courts—the six district courts of appeal—absent some persuasive indication that the state’s highest court would decide the issue otherwise. In determining whether an indication exists, all other data may be considered to the extent they indicate how the Florida Supreme Court might rule on the issue. Such relevant data includes the statute-at-issue’s text.
Related to this last point, the case also provides a detailed description of how current Florida jurisprudence relies on canons of contraction to interpret statutory text even when language is plain and unambiguous. The Eleventh Circuit explained that “the Florida Supreme Court has recently held that, because ‘[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole,’ a court is to use ‘the traditional canons of statutory interpretation’ to ‘aid the interpretive process from beginning to end.’” ?SE Properties Holdings, LLC, 2023 WL 2878735 at *4 (quoting Conage v. United States, 346 So.3d 594, 598 (Fla. 2022)). The Eleventh Circuit further explained that “Florida law does not require ‘interpreters to make a threshold determination of whether a term has a ‘plain’ or ‘clear’ meaning in isolation, without considering the statutory context and without the aid of whatever canons might shed light on the interpretive issues in dispute.’” Id. (quoting Conage, 346 So.3d at 598).
In reversing the granting of summary judgment for the insurance carrier based on extrinsic evidence concerning whether two insurance policies provided for named windstorm coverage, the Eleventh Circuit holds that in the event of a conflict between clear text, on the one hand, and even compelling evidence of extra-textual “intent,” on the other, the latter must give way to the former.
The case provides a detailed explanation of the general rules governing the interpretation of insurance policies under Florida law. Florida courts start with the plain language of the policy, as bargained for by the parties. Pursuant to section 627.419(1), Florida law permits reviewing courts to venture outside the policy's four corners in limited circumstances—to consider, for instance, whether an insured's “application” should be understood to “amplif[y], extend[ ], or modif[y]” the policy. However, in the event of a conflict between the policy and the underlying application, the policy controls.
Florida law also provides certain general rules for construction of unambiguous and ambiguous insurance policies. As the Eleventh Circuit explains, for unambiguous policies the rule is “ruthlessly straightforward: If the policy’s language is unambiguous, it governs—end of story.” However, in cases of facially ambiguous insurance policies, Florida courts apply the familiar contra proferentem canon. This rule provides that any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.
In reversing, the Eleventh Circuit noted that, “[i]mportantly here, the Florida Supreme Court has clarified that facial ambiguities in insurance contracts should be resolved by reference to contra proferentem rather than extrinsic evidence of the parties’ supposed ‘intent.’” In sum, Florida law “makes clear that when confronted with a facially ambiguous insurance policy, a reviewing court should simply apply the well-worn contra proferentem rule and resolve the ambiguities in favor of coverage and against the insurer. It shouldn't plumb the depths for evidence of the parties’ supposed intent.”
The case is a helpful guide to all those practicing in insurance litigation when confronted with issues of contractual interpretation.
[i] Jeffrey J. Molinaro, B.C.S., is board certified in appellate practice and chairs the appellate practice group at Fuerst Ittleman David & Joseph. Mr. Molinaro represents clients throughout Florida and the United States on various appellate matters. He can be reached at [email protected] or 305-350-5690.