Miscellaneous
Fourth District Court of Appeals – administrative order on extension of time to file briefs
The Fourth District Court of Appeals issued an administrative order on 12/7/11, effective 2/1/12, allowing a notice of stipulated extension of time to file briefs in appeals of FINAL orders in most types of cases. The stipulated extension of time may be up to a total of 120 days for an initial or answer brief and 60 days for a reply brief. More information may be found at ADMINISTRATIVE ORDERS – Fourth District Court of Appeal www.4dca.org/opinions/ADMINISTRATIVE%20ORDERS.shtml.
Rahabi v. Fla. Insurance Guaranty Ass’n, Inc., No. 4D10-846 (Fla. 4th DCA Oct. 12, 2011). At the end of the opinion the 4th DCA ruled that a trial court may permit amendment to add unraised affirmative defense—and, therefore, waived under Rule 140(h)(1)—where later support for defense is acquired, as long as the party seeking to raise the defense can show due diligence.
Kavouras v. Mario City Restaurant Corp., No. 3D11-0612 (Fla. 3d DCA Oct. 12, 2011).
Third DCA granted certiorari review and reversed an order severing for separate trials interrelated legal (jury) and equitable (non-jury) claims due to the risk of inconsistent outcomes. The Court noted “[I]t is well settled that where mixed equitable and legal claims are presented on interrelated facts, the trial court first must have a jury decide the case so as to preserve the parties’ right to a jury trial.”
Lopez-Loarca v. Cosme, No. 4D09-5149 (Fla. 4th DCA Oct. 19, 2011).
A somewhat unusual opinion. May be helpful to those seeking to get a default vacated. Default judgment was vacated after 18 months of “misfilings” by counsel for the party against whom the default had been entered. Court also allowed for a fourth amended complaint to relate back six years to the original filing.
Reported By: Steven Grigas.
Florida Supreme Court Opinion Regarding Arbitration Agreements
Shotts v. OP Winter Haven, Inc. No. SC08–1774 (Fla. Sup. Ct. November 23, 2011)
Personal representative of the estate of deceased nursing home resident sued the nursing home for negligence and breach of fiduciary duties. Defendant nursing home moved to compel binding arbitration based upon admission agreement. Plaintiff argued that the agreement was not enforceable because it was unconscionable and violated public policy. The trial court granted the motion to compel and the district court affirmed. The Supreme Court granted discretionary review.
In its opinion, the Supreme Court held that the trial court, not the arbitrator must determine whether the arbitration agreement violates public policy. Secondly, the court held that any arbitration agreement that substantially diminishes or circumvents remedial statutes such as those in the present violates the public policy of the State of Florida and is unenforceable. Lastly, the court ruled that the limitation of remedies provision in the present case that calls for the imposition of AHLA rules is not severable from the remainder of the agreement. If the provision were to be severed, the trial court would be forced to rewrite the agreement and to add an entirely new set of procedural rules and burdens and standards, a job that the trial court is not tasked to do.
Reported By: Malinda R. Lugo