Archive for the ‘Civil Procedure’ Category

Death of the Pure Bill of Discovery in Florida?

Sunday, May 9th, 2010

Probably so, but not quite yet.

The case of Venezia Lakes Homeowners Association, Inc. v. Precious Homes at Twin Lakes Property Owners Assoc. (Third DCA: Suarez, Logoa, and Salter) reverses a trial court and remands with instructions to grant summary judgment on the grounds that a pure bill cannot be used to determine if a lawsuit exists.

In this case, two adjacent homeowners’ associations share expenses on one of two lakes.  Under the contract, Precious pays Venezia 30% of the expenses for one lake.  Typically, they get an approved budget with a single category, “lake budget,” which they believe may include expenses for both lakes — thus they may be overpaying.  When Precious asked for the service contracts which support the budget entry, they were refused.  They filed a pure bill of discovery to get those service contracts.

The Panel held that the pure bill of discovery’s “usefulness [has] diminished greatly” and quotes a swath of cases from the various intermediate appellate courts.  If there is no other remedy, it can be used to identify potential defendants, theories of liability, and information to meet conditions precedent to file suit.  But, in very vague terms, it “cannot be used as a fishing expedition to see if a case exists.”

Here, the court ruled that the pure bill does “not lie to see if a cause of action exists nor… [to determine] the extent of damages.”  Herein, the court suggested that alternative remedies were available including a declaratory judgment or breach of contract claim.

CONFLICT! First DCA Holds Dismissal for Lack of Prosecution Does Exist in Florida

Wednesday, November 18th, 2009

In a case which openly conflicts with the Second and Third Districts, the First District issued a tough but contemplative ruling holding that dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) can actually happen under the forgiving “new” rule.

Prior to January 1, 2006, the “abandonment” rule held that twelve months without record activity meant dismissal (upon defendant’s motion).  The passage of time was the only criteria.  For a while there had been some excitement over what constituted “record activity” but that was resolved in a 2005 case, Wilson v. Salamon, where any document was sufficient record activity to keep a case alive.  Shortly thereafter, the Florida Supreme Court revised  its own rule.

Since January 1, 2006, few cases if any have been dismissed since the amended version of Rule 1.420(e) places so many safeguards that a case, according to the First District, can only be dismissed by consent or the acts of an “extremely negligent attorney.”  Indeed.  We thought so too.

Under the current rule, the nonmoving literally party can be inactive for up to ten months and, after the moving party files/serves notice, the nonmovant has a sixty day grace period to (1) obtain a stay, (2) file notice showing good cause or (3) take action to move the case towards conclusion.  If we understand these options correctly, it appears #3 should be the easiest one to accomplish.

In 2007-2008, the Second and Third Districts held that any filing during the sixty day grace period is sufficient.  The First District, in Chemrock Corporation v. Tampa Electric Company d/b/a TECO Peoples Gas Company, holds otherwise (Hawkes, Clark and Wetherell).

In Chemrock, the plaintiff was inactive for 10 months, was served with notice, and during the 60-day grace period filed a “motion in opposition” (which sounded, from the Opinion, like an attempt at  showing good cause for inactivity but it was apparently not called up for hearing).  Trial court dismissed and appellate court upheld.

The intermediate court found that, under the amended rule, filing for a stay (alone) was not enough to avoid dismissal.  You had to have it granted.  Likewise, showing good cause presumed there would be a hearing and then a ruling.  Hence, the court concluded that allowing the non-movant to file “anything” would not give meaning to the “three options in the sixty day grace period” rule.  Discarding a “motion in opposition” as meaningless, the court dismissed and called conflict with the other courts.  Next stop will be the Florida Supreme Court.

Facing Default in Florida? This Case is For You…

Monday, October 26th, 2009

The Third District provided a concise primer of how to vacate a default judgment in Florida under the most forgiving terms.  If your client is in default or you find yourself digging clients out of default with some regularity, this is a pro-vacate decision.

As a brief primer, a default with be vacated if the defendant can establish excusable neglect for missing the deadline, reasonable diligence once the default was discovered, and a meritorious defense.  The Second District has recognized an alternative method under a two-step process set forth in Makes & Models v. Offset Printing.

The case is 205 Jacksonville, LLC v. A-Affordable Air, LLC.  The facts are unimportant, suffice it to say a default judgment was entered and reversed.  Here’s how the court addressed the three-part test, above:

1.  EXCUSABLE NEGLECT: attorney failing to calendar deadline has been the accepted “dog ate my homework” excuse in Third and Fourth Districts.

2.  MERITORIOUS DEFENSE: if a party is facing a clerk’s default, a general denial (which appears to include conclusory assertions) in a verified motion to dismiss will qualify.  Once a party is facing a default judgment, allegations of ultimate facts must be set forth.  In this case, a verified motion to vacate which had detailed facts and a unequivocal denial of liability was deemed the same as a motion with an accompanying unverified answer denying liability.

3.  DILIGENCE: this case involved a party moving to vacate one day after learning of the clerk’s default.  Another cited case involved two days.  Unclear if it has to be that swift.

Second DCA Sets Out Two-Part Test for Vacating Default

Friday, September 18th, 2009

The Second District has provided wayward defendants in Florida a new tool to dig out of default judgments.  Indeed, it is easier than proving excusable neglect and a meritorious defense.

In Makes & Models Magazine, Inv. v. Web Offset Printing Co., Inc., the parties were at odds over printing services.  The plaintiff brought suit in Hillsborough County and then, for unstated reasons, filed another lawsuit two months later in Pinellas County for a dispute arising out of the same events.  The defendant reportedly did not get the second lawsuit from its agent for service of process and the motion for clerk’s default was sent to the wrong address.  They were clued in when the motion for default judgment was sent to the correct address.  Their motion to vacate, however, was denied because it was not verified nor accompanied by an affidavit to establish excusable neglect.  It is undisputed that the plaintiff knew the defendant had counsel and was defending itself in the first action (again, which arose out of the same events).

Back in 2008, the Second District ruled in U.S. Bank National Association v. Lloyd that “a trial court should vacate an ex parte default when the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact defendant’s counsel prior to seeking default.”  Thus, the test is whether (a) defendant is known to have counsel and (2) defendant is known to dispute the allegations.  In that situation, plaintiff must serve the defendant with notice of the application for default.

Notably, if the defendant can establish these facts, it does NOT need to provide evidence of a meritorious defense or excusable neglect.

Here, given the similarity between the lawsuits, the court held that the plaintiff knew the defendant had counsel and was defending similar issues in the first case.  Default was vacated.

The Panel (Villanti, Silberman and LaRose) concluded with the “tsk tsk” observation that a literal reading of the rules must give way to civility and professionalism when one party is aware the opposing party has counsel and intends to defend.  ”Although these concepts are not difficult to grasp, post-Lloyd, a party’s responsibility when faced with similar circumstances should be clear.”

Can You Revoke Agreement to a Florida Special Magistrate?

Sunday, June 21st, 2009

Yes, according to the Third District in Robert Gielchinsky v. Vibo Corporation (Gersten, Shepherd & Schwartz).  In that case, all parties agreed to the appointment of a special magistrate to address discovery issues.  Later, one of the parties withdrew that agreement to the special master.

According to Florida Rule of Civil Procedure 1.490(c), consent is needed to refer matters to magistrates.  Once withdrawn, then “it logically follows that the matter is no longer appropriate for a special magistrate.”

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