Office of Attorney General Pam Bondi
Appellate Alert
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Date issued: 05/21/2013
Editor: Betsy Stupski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
Appellate Alert 2013-7
May 21, 2013
Florida Supreme Court
Raymond James Financial Services v. Phillips SC11-2513
5/16/13
Section 95.11, Florida Statutes, regarding the limitation of actions applies to arbitration proceedings.
Raymond James required clients to sign an agreement requiring them to arbitrate all disputes arising out of the handling of their investments. After a dispute arose with a client regarding the timeliness of a request to arbitrate, Raymond James filed a declaratory action with the trial court to determine whether the statute of limitations applies to arbitration agreements. The Second District determined that the section 95.11, Florida Statutes regarding the limitation of actions applied only to judicial actions and not arbitration. However the district court certified the following question to the Florida Supreme Court:
Does Section 95.11 Florida Statutes apply to arbitration?
In its analysis, the Supreme Court followed the basic rules of statutory interpretation by reviewing the ordinary meaning of the words in the statute and by giving effect to the legislative intent of the statute. Ultimately the Court determined that the statute of limitations found in section 95.11, Florida Statutes, did apply to arbitration. The Court said, “Arbitration is clearly within the meaning of the term adjudication since the parties to an arbitration are engaging in “[t]he legal process of resolving a dispute” by seeking redress from an “adjudicatory body.” Moreover, the arbitrator is an adjudicator who has the authority and obligation to render a binding decision and resolve the parties’ dispute. Accordingly, a review of the common usage of the terms used, as discussed above, supports our conclusion that the term “proceeding,” as used in section 95.011, is a broad term and includes arbitration.”
SC11-2513
First District Court of Appeal
Lee v. Board of Trustees, Jacksonville Police & Fire Pension Fund 1D12-0587
4/22/13
State agency was liable for attorney fees for its failure to comply with Florida public record law even though the violation was not willful or malicious.
Plaintiff made a public records request to Defendant. Apparently Defendant did not respond appropriately and the Plaintiff sued. Later the Plaintiff requested attorney’s fees but was denied by the trial court because the agency’s violation was not malicious or willful.
The First District reversed saying, “…refusal by an entity that is clearly an agency within the meaning of chapter 119 will always constitute unlawful refusal.”
1D12-0587
Caldwell v. Florida Department of Elder Affairs 1D12-163
4/22/13
Florida Commission on Human Relations properly dismissed Plaintiff’s complaint because her allegations of violations of the Florida Whistle-blower’s Act were conclusory and unsubstantiated.
Caldwell was terminated from the Department of Elder Affairs. After her termination she filed a complaint with the Florida Commission on Human Relations (FCHR), alleging violations of the Florida Whistle-blowers Act. She claimed she had contacted federal agents to report misfeasance and malfeasance occurring in the ombudsman program and was terminated in retaliation. The FCHR dismissed her complaint, determining that it lacked jurisdiction to investigate her complaint because she failed to state a claim for which relief could be granted. Caldwell then filed an appeal.
The First District found that Caldwell’s complaint contained only conclusory allegations that failed to describe any act or suspected act of misfeasance or malfeasance.
1D12-163
Third District Court of Appeal
Kenz v. Miami Dade-County 3D12-571
4/24/13
Statute that shifted the burden of proof was procedural in nature and, therefore, should be applied retroactively.
The issue in this slip and fall case was whether section 768.0755, Florida Statutes should apply retroactively to the action or whether section 768.0710, Florida Statutes, which was in effect at the time of the accident, should apply. The Plaintiff argued that section 768.0755, Florida Statutes, which required a showing of actual or constructive knowledge of a transitory foreign substance on the floor, should not apply retroactively because it made a substantive change to the law rather a procedural one. The Defendants argued that the change was procedural and, therefore, should be applied retroactively. The trial court granted a summary judgment in favor of the Defendants and Plaintiff appealed.
The Third District began its analysis by saying, “… [T]he analysis of whether a change in the statutory law should receive retroactive application requires a determination whether the statute sought to be applied retroactively is substantive in nature, or procedural/remedial in nature. The distinction is important because “a substantive statute will not operate retrospectively absent clear legislative intent to the contrary.” The Court went on to say, “In determining whether a statute is procedural or substantive, this Court has stated that “[s]ubstantive law prescribes duties and rights, whereas procedural law concerns the means and methods to enforce those duties and rights.”The Court ultimately determined that “under Florida case law, issues relating to a party’s burden of proof are generally procedural matters.” ….Actual or constructive knowledge [of a foreign substance] is not a “new” required element of a prima facie case under section 768.0755; rather, it concerns evidence, the burden of producing which is upon the plaintiff, that the jury must consider in determining whether there has been a breach of duty.”
3D12-571
Dan Euser Waterarchitechture, Inc. v. City of Miami Beach 3D13-180
5/1/13
A foreign corporation will not be required to produce a nonresident corporate officer in Florida.
Defendant Dan Euser Waterarchitechture (DEW), a Canadian company, filed a motion for protective order when they were asked to produce a witness in Miami-Dade for deposition. The trial court ruled that DEW’s corporate representative must appear in Florida. DEW then filed a petition with the Third District.
Quashing the trial court order, the Third District stated, “A defendant . . . will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief. Thus, under Florida law a nonresident corporate defendant need not produce a nonresident corporate officer in Florida.”
3D13-180
Fourth District Court of Appeal
DLJ Mortgage Capital, Inc. v. Fox 4D12-2264
4/24/13
Plaintiff did not have a duty to file a privilege log on certain items because it had objected to producing those items on other grounds and the court had not yet ruled on those other grounds.
Parties were involved in a mortgage foreclosure suit. The trial court issued an order finding that the Plaintiff had waived its right to raise work product and attorney-client privilege objections because it failed to file a privilege log. Plaintiff argued that it did not have an obligation to file a privilege log on specified items because it had objected to producing those items on other grounds and the court had yet to rule. The trial court had deferred on ruling on the non-privilege items.
The Fourth District found that the Plaintiff did not have a duty to file a privilege log for those items on which other objections were raised until the court had determined that those items were otherwise discoverable. Accordingly, the Plaintiff did not waive its right to assert privilege on the items described by failing to file a privilege log, because the time for filing the log was tolled until the court ruled on the other objections.
4D12-2264
Fifth District Court of Appeal
Cataldo v. Daytona State College 5D12-2482
4/19/13
The Florida Commission Human Relation’s belated dismissal had the same legal effect as a favorable decision; therefore, Plaintiff could not appeal.
Cataldo filed a complaint for discrimination with the Florida Commission on Human Relations. The Commission issued an order dismissing the complaint but did not issue the order within 180 days. Since the order was made outside the 180 day statutory period, it was treated as a favorable order. Therefore, the court found that it could not be appealed.
The Fifth District dismissed the appeal saying, “Because the Commission’s belated dismissal has the same legal effect as a favorable determination, we see no basis for Cataldo to prosecute this appeal.”
5D12-2482
Walker and Bright House Networks, LLC v. Ruot 5D12-1403
4/19/13
Court should have conducted an in camera review of personnel file before ordering production of the entire file.
Even if the employee is not available to assert his privacy rights, nonparty privacy is still an important concern in determining which part of the file should be produced.
Ruot was in an automobile accident with Walker, a former employee of Bright House Networks. While driving a Bright House van, Walker rear-ended Ruot and his wife. During discovery the Ruots requested a copy of Walker’s personnel file. They argued that the file was discoverable because it might support their negligent entrustment claim and might also help them discover the whereabouts of Walker. Bright House objected but did not have standing to assert Walker’s privacy rights. The trial court did not conduct an in camera inspection but ordered Bright House to produce the entire file. Bright House then petitioned the Fifth District.
The Fifth District said that while Bright House could not assert Walker’s privacy rights, it could object to the production of private information on the ground that the information was not relevant. Also although Bright House could not assert privacy rights, the Court went on to say that nonparty privacy rights were an important consideration and should be weighed in the discovery process.
5D12-1403