3d DCA Watch -- Relation Back to the Future!

Hi kids, the bunker denizens have spoken thusly:

Kopel v. Kopel:

Hey, how cool is it that the appellant is named Bernie Kopell?

Oh, also the 3d reversed a $5 million jury verdict based on a faulty application of the "relation back" doctrine.

Florida Diversified v. Simon Roofing:

Shocking -- mass confusion over how to apply the offer of judgment statute, here in a situation where appellate attorneys' fees were previously awarded:

In a prior appeal from this same underlying case, FDF filed a motion for appellate attorney’s fees based on the same proposal for settlement now at issue. In the prior appeal, Simon Roofing, the defendant, objected to FDF’s motion for appellate attorney’s fees based on the proposal for settlement, arguing that FDF made the proposal in bad faith. This Court, after considering the arguments and the record, ultimately granted FDF’s motion for appellate attorney’s fees. Simon Roofing then filed a motion for rehearing, raising the same arguments now raised in the instant appeal, and suggesting that they had been overlooked by this Court. Again, this Court rejected Simon’s arguments, and denied Simon Roofing’s motion for rehearing.

Accordingly, FDF’s entitlement to attorney’s fees based on its proposal for settlement became the law of the case.

Jones v. Rizzo:

Practice note -- when asserting "excusable neglect," you should provide some sworn evidence.

Bank of NY v. Reyes:

No such thing as a cause of action for "attempted wrongful foreclosure."

Wells Fargo v. Aristo:

Not good when Judge Salter writes something like this:

Then-counsel for Aristo led the trial judge into error.

The Judge also wistfully "relates back" to a simpler time, when opposing counsel would get drunk together at Sally Russell's and settle cases with some purely hetero grabass and a shot of whiskey lawyers would actually call each other:

At the risk of viewing professional courtesy through rose-colored glasses, we can also recall a day when counsel appearing without opposition for a hearing on an obviously-contested matter—one in which the contending pleadings each sought priority to a six-figure sum of money—would first place a telephone call to opposing counsel to confirm that some personal emergency or postal glitch had not occurred.

Sadly, your honor, those days appear gone for good.

3d DCA Watch -- Tomahawk Thursday Edition!

Ok, so the bunker denizens are back at work -- let's see what the (concrete) Rock is cooking:

Reider v. Dorsey:

Judge Shepherd reviews a bar fight involving a tomahawk in which a jury returned a verdict for a $1.5 million:

For the foregoing reasons, Reider did not owe a relevant duty of care to Dorsey when Dorsey was attacked and therefore cannot be held liable for his injuries. The trial court’s order is hereby reversed and remanded for entry of judgment for Appellant Reider.

Oops!  I gave away the ending....

(Doesn't EVERYONE in South Florida keep a tomahawk in their truck?)

19650 NE 18th Ave v. Presidential Estates:

They paved paradise, and put up 173 zero-lot-line homes.

Ooh-la-la-la:

Knecht Properties v. Carriera:

More fun and games at the trial court level figuring out how to apply the offer of judgment statute.

The more things change, the more things.......

Once More Unto the Settlement Offer Breach, My Friends!

Did you know settlement offer law in Florida is hopelessly screwed up and has been for a long time?

Then you haven't been paying attention!

Today's installment is an effort by the mighty 11th to clarify a common defense tactic -- picking off a statutory claim by offering one dollar more than the maximum statutory damages, hah hah you don't have standing anymore because we offered to make you whole.

Anyway, it was before Judge Ryskamp, involves FDCPA, and here is how it was framed:

Appellants Anthony W. Zinni, Blanche Dellapietro, and Naomi Desty appeal the district court’s dismissal of their complaints for lack of subject matter jurisdiction. In each case, an Appellee2 sent an e-mail offering to settle an Appellant’s FDCPA case for $1,001—an amount exceeding by $1 the maximum statutory damages available for an individual plaintiff under the FDCPA.3  Appellees also offered attorneys’ fees and costs in each case, but did not specify the amount of fees and costs to be paid. Appellants did not accept the settlement offers. The district court subsequently granted Appellees’ motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), holding that the offers left Appellants with “no remaining stake” in the litigation. The district court then dismissed Appellants’ complaints with prejudice. We conclude the settlement offers did not divest the district court of subject matter jurisdiction.

The reason?

Simple, kids -- you need to include an offer to have judgment entered against your client, too:

The district court erred in finding Appellees’ settlement offers rendered moot Appellants’ FDCPA claims because the settlement offers did not offer full relief. See id. Each of the Appellants requested that the district court enter judgment in his or her favor and against an Appellee as part of the prayer for relief in the complaint. Appellees’ settlement offers, however, did not offer to have judgment entered against them. Because the settlement offers were not for the full relief requested, a live controversy remained over the issue of a judgment, and the cases were not moot. See Friends of Everglades, 570 F.3d at 1216. 

A judgment is important to Appellants because the district court can enforce it. Instead, with no offer of judgment accompanying Appellees’ settlement offers, Appellants were left with a mere promise to pay. If Appellees did not pay, Appellants faced the prospect of filing a breach of contract suit in state court with its attendant filing fees–resulting in two lawsuits instead of just one.

BTW, the 11ith noted that the Appellants' argument -- successfully adopted by the 11th -- was dismissed by the district judge as "nonsensical."

Guess that's why they have appellate courts?

Florida Supreme Court "Clarifies" Offer of Judgment Statute!

Here's the understatement of the year:

The threat of a potentially unfavorable award of costs and fees, in theory, would promote settlement, reduce litigation costs, and conserve judicial resources.  This statute, however, has not produced the desired outcome as the validity and applicability of section 768.79 and Florida Rule of Civil Procedure 1.442 have produced a significant amount of independent litigation.

Hmm, you think?

And the money quote:

Now properly before the Court, we hold that section 768.79 is substantive for both constitutional and conflict of law purposes.

Stick that in your choice of law provision and smoke it!

BREAKING -- Florida's Offer of Judgment Law Still Messed Up!

Careful readers of this blog know my feelings on Florida's offer of judgment jurisprudence -- it's hopelessly screwed up, to the point where practitioners, litigants and certainly judges can't figure it out and actually make things worse even as they try to clarify or apply or argue about what should be a fairly straightforward legal doctrine.

In walks the 11th Circuit, as bewildered by the miasma surrounding the doctrine as the rest of us, but they have the ability to ask the Florida Supreme Court to "clarify" (yet again) how the hail you apply the stupid thing.

And the good news is they only have four questions(!) about the statute:

First, we ask whether an offer of judgment may be viable when it purports to settle “all claims,” even though it does not explicitly “state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim” as required by Rule 1.442(c)(2)(F). Second, we ask whether the offer of judgment statute, which applies in “any civil action for damages” but generally does not apply to a case seeking both damages and non-monetary relief, applies to a lawsuit seeking damages or, in the alternative, specific performance. Third, we ask whether the FDUTPA’s fee-shifting provision applies to an action with the following procedural history: the plaintiff filed an action alleging a FDUTPA claim and prosecuted that claim for seven months; the district court ruled at summary judgment that he could not pursue the FDUTPA claim because Florida law did not apply, but allowed him to prosecute the action under Arizona’s unfair trade practices law instead; then he lost on the Arizona unfair trade practices claim at trial. Finally, if the FDUTPA’s fee-shifting provision does apply, we ask whether it applies only to fees incurred during the seven months before the plaintiff’s FDUTPA claim was defeated at summary judgment, or also to fees incurred during the subsequent litigation.

Thank goodness the law in this area is otherwise crystal clear!

Florida Supreme Court "Clarifies" Offer of Judgment Statute.

I've said this before, but Florida case law governing the offer of judgment statute, along with its cute little tag along sister Rule 1.442, is hopelessly -- I would say irremediably -- screwed up.

That's why, for example, two DCAs could come up with diametrically opposed outcomes on a nearly identical set of very discrete facts.

How do you think that makes the schleppers feel?

Indeed, if it were within my power, I would just hit the "re-set" button, do a full System Restore and start the whole thing again from scratch.

Which brings us to today's Florida Supreme Court opinion, dealing with whether or not a party who accepts an offer of judgment is the "prevailing party" for purposes of a later fee application -- in this case under Mag/Moss.

Frankly, how the 4th DCA could blow the answer to that question is a complete mystery, but here's what they thought:

The Fourth District affirmed the trial court, holding that ―"[t]here simply was no court-ordered change in the relationship of the parties in this case by the plaintiff‘s acceptance of DaimlerChrysler‘s proposal for settlement." Id. at 1215. The Fourth District found ―that section 768.79(4)‘s provision for enforcement is not the same as the required affirmative court action that either approves of the terms of a settlement or affirmatively retains jurisdiction for enforcement.‖ Id.

This strikes me as profoundly wrong.

It's a freakin' offer of judgment statute, which carries with it certain penalties and legal consequences.  The offer was served, and subsequently accepted, in a court case in which the statute presumably governed the parties' conduct.

Anyhoo, here's what the Supremes held:

Unlike a settlement before an action is filed, any offer made and accepted pursuant to Florida‘s offer of judgment statute is, as illustrated by the very name of the statute, under the auspices of the court in which the offer is made and accepted. A resolution reached pursuant to the offer of judgment statute, as opposed to an extrajudicial settlement agreement that is not subject to judicial enforcement, bears the imprimatur of the court because a party that fails to accept that resolution is subject to judicial penalty and sanctions. See § 768.79(4), Fla. Stat. Further, a settlement produced pursuant to Florida‘s offer of judgment statute is subject to that court‘s full continuing jurisdiction thereafter. The offer of judgment statute would actually provide a basis to further penalize the consumer if this were not the end result. Consequently, a settlement produced under Florida‘s offer of judgment statute necessarily carries judicial implications.

This would seem self-evident, but like a lot of things in Florida, you often have to spell it out, then spell it out again, until some small piece of what you are trying to convey sinks in.

Chief Justice Canady, btw, dissents (not unreasonably, I might add) -- further proving my initial point that the entire area of the law needs to be wiped clean and begun anew.

11th Circuit to Florida Supreme Court: Oy with this Whole Offer of Judgment Business!

Regular readers will know my hate-hate relationship with the bewildering state of Florida offer of judgment law -- a mishmash of old and changing statutes, inconsistent and contradictory opinions, mucked up revisions to the Florida Rules of Civil of Procedure, and a general feeling of dread and creeping doom whenever one is confronted with, or God forbid, perhaps considering tendering such an offer in any piece of complex commercial litigation.

That's why I found this 11th Circuit opinion dealing with these issues such a hoot (h/t meatballer):

 In this offer of judgment case, we certify three questions to the Florida Supreme Court, seeking guidance as to the application of Florida’s offer of judgment statute, Fla. Stat. § 768.79, and Florida Rule of Civil Procedure 1.442.

First, we inquire whether an offer of judgment may be viable when filed under the following circumstances: the offer was filed by a defendant after a jury verdict for the defendant had been set aside by the district court’s grant of a new trial, and after the new trial date had been scheduled, but more than 45 days before the scheduled retrial; and the defendant ultimately prevailed because the appellate court reversed the grant of a new trial and reinstated the initial verdict. Second, we ask whether the term “joint proposal” in Rule 1.442(c)(3) applies to cases where acceptance of the offer is conditioned upon dismissal with prejudice of an offeree’s claims against an offeror and a third party. Finally, we seek a determination of whether the Florida offer of judgment statute applies to actions filed in Florida, in which there exists a contractually agreed upon choice-of-law clause providing for the application of the substantive law of another state. We certify these questions because we are unable to find definitive answers in clearly established Florida law, either case law or statutory.

 You and me both, you and me both.

"I Said Good Day, Sir!"

Dont Waste My Time Again

Do any of you come here for legal analysis and opinion?

Judging from your search terms, let's leave that question unanswered.

But there are a dogged few, a ragtag bunch of judges, judicial staff, ham-and-schleppers and BigFirmers who -- in between copious sessions browsing for cat piano mashups and free x-rated content (sometimes simultaneously) -- actually come here to learn something.

So here's a lesson -- don't waste the Court's time raising new arguments you should have thought about the first time.

For example, if you're the plaintiff and you've just been hit by defendants for a big fee award under an offer of judgment theory, and the Court has "thoroughly and painstakingly" reviewed your arguments (not to pat oneself on the back), don't go back and try to argue entitlement in a motion for reconsideration you big fat dummy:

After this Court thoroughly and painstakingly reviewed the arguments raised by Plaintiff in opposition to the motion, which resulted in a material reduction of the fees and costs requested by Defendant, Plaintiff (still unsatisfied) seeks to start over and have the Court review the matter anew with arguments that could have, but were not, raised in a timely fashion in opposition to the original motion.

Oy, not good so far....

Having obtained only limited success through its original arguments in opposition to the motion for fees, Plaintiff – without any explanation or suggestion why any entitlement arguments could not have been raised earlier – simply asks that the Court exercise its discretion to reopen the matter and consider new legal theories. But the Motion presents no persuasive factual or legal basis for the Court to do so under the circumstances. To paraphrase Judge Birch, this too constitutes a second – but untimely – bite at the apple. The Court will not entertain these untimely arguments now and rests this Order entirely on that procedural basis.

 I said Good Day Sir!

I agree with this as a policy matter.

Also, why would you not raise issues regarding entitlement (the form is bad, the release is bad, not everyone named etc.) as a threshold issue?

The only wrinkle is that the area of law -- offers of judgment/proposals for settlement under Fla. Stat. § 768.79 -- is wildly, hopelessly screwed up, and has been for decades.  There are badly reasoned decisions, conflicting statutes, amendments to statutes, cases that deal with older versions of statutes, you name it.

Good thing our friends in Tallahassee are working hard on cleaning it all up!

Florida Supreme Court Recognizes the Obvious.

I know it's April Fool's Day and all, so I was not expecting the Florida Supreme Court to be so blunt and well....honest in how screwed up offer of judgment law is in the State of Florida:

The expected result of the attorneys‟ fee sanction was to reduce litigation costs and conserve judicial resources by encouraging the settlement of legal actions. See Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 218 (Fla. 2003). The effect, however, has been in sharp contrast to the intended outcome because the statute and rule have seemingly increased litigation as parties dispute the respective validity and enforceability of these offers. See, e.g., Security Professionals, Inc. v. Segall, 685 So. 2d 1381, 1384 (Fla. 4th DCA 1997) (“We regret that this case is just one more example of the offer of judgment statute causing a proliferation of litigation, rather than fostering its primary goal to „terminate all claims, end disputes, and obviate the need for further intervention of the judicial process.‟ ”) (quoting Unicare Health Facilities, Inc. v. Mort, 553 So. 2d 159, 161 (Fla. 1989)).

No s*^t, Sherlock.

I can't even believe there was reasoned debate over whether or not this proposal for settlement was valid:

This offer is conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement.

So you're basically offering a twisted version of the prisoner's dilemma?

Gotta love this crazy State.