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Litigation Update

The Litigation Privilege

As noted by the Florida Supreme Court in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co:,[i] “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortuous behavior … so long as the act has some relation to the proceeding.”[ii] 

Several recent cases have focused what constitutes a “judicial proceeding”[iii] or what constitutes “a statement made in connection with a judicial proceeding.”[iv]  For example, in Ross v. Blank,[v] the Fourth District Court of Appeal held that a psychologist involved in a divorce proceeding was entitled to absolute immunity for allegedly defamatory statements made about one of the parties to the court appointed psychologist involved in the custody dispute and to the guardian ad litem. In LatAm v. Holland and Knight,[vi] the Third District held that the litigation privilege applied even though the court in which the proceedings were instituted lacked subject matter jurisdiction.[vii]

In Ball v. D’Lites Enterprises, Inc.,[viii] the Fourth District held that allegedly defamatory statements made by a party on its commercial website regarding the subject of the litigation were not made “in connection with the litigation.”[ix]  The Court analogized “the publication of statements on internet to calling a press conference with the media or otherwise publishing defamatory information to the newspapers or other media” for which the Court noted there was no litigation privilege.[x]

Currently pending before the Florida Supreme Court is Delmonico v. Traynor[xi] in which the Fourth District Court of Appeal held that allegedly defamatory statements made by an attorney, while acting as defense counsel during interviews of potential witness, were absolutely privileged as a matter of law,  because “the statements bore ‘some relation” to the proceeding.”[xii] The Court opined that the attorney “should receive the same absolute immunity in questioning potential witnesses before their appearance at deposition or in the courtroom, as if the questioning were during a formalized judicial proceeding.”[xiii] 

In dissent Judge Warner, noted that that:

If the purpose of absolute immunity is to preserve the attorney and party’s right to present their case at trial without fear of intimidation, I do not think that policy is advanced by protecting a lawyer who is defaming a party to a witness outside of a proceeding at a time when both parties are not present and do not have an opportunity to be heard.  In fact, rather than enhance the truth-seeking function at trials, such conduct as alleged here may taint the entire process by influencing with false and defamatory information about an adversary.[xiv]

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[i] 639 So. 2d 606 (Fla. 1994).

[ii] Id. at 608. 

[iii] Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 385 (Fla. 2007), Justice Pariente concurring.

[iv] Ball v. D’Lites Enterprises, Inc., 65 So. 2d 637, 638 (Fla. 4th DCA 2011).

[v] 958 So. 2d 437 (Fla. 4th DCA 2007).

[vi] Case No. 3D10-3042 (Fla. 3d DCA October 19, 2011).

[vii] Id. slip opinion at pp. 9-10.

[viii] 65 So. 2d 637 (Fla. 4th DCA 2011).

[ix] Id. at 639.

[x] Id. at 639-640.

[xi] 50 So. 3d 50 (Fla. 4th DCA 2010); Case No. 10-SC1397 (Fla.).  This case was argued on June 9, 2011 and a video of the oral argument can be viewed at: http://wfsu.org/gavel2gavel/archives/flash/10-1397.php  

[xii] 50 So. 3d at 6-7.

[xiii] 50 So. 3d at 7. 

[xiv] 50. So. 3d at 12.

Health Law Update

Florida Supreme Court Invalidates Nursing Home  Arbitration Agreement as Against Public Policy

By: Melanie R. Leitman, Associate Attorney

Edward Clark was admitted to OP Winter Haven, a nursing home, by his niece, Gayle Shotts. Ms. Shotts signed all of the relevant paperwork on behalf of her uncle, who had suffered brain damage as a result of a car accident many years prior. One of the documents Ms. Shotts signed on behalf of her uncle contained a clause requiring arbitration in accordance with the American Health Lawyers Association arbitration rules for “any dispute that might arise”[1] during Mr. Clark’s stay at the nursing home. The arbitration agreement also prohibited the arbitrators from awarding punitive damages and provided that the terms of the agreement were severable. Upon Mr. Clark’s death in 2003, Ms. Shotts, as personal representative, filed suit against the nursing home and several other related parties alleging negligence and breach of fiduciary duties. The defendants responded to the complaint by moving to compel arbitration and Ms. Shotts objected, arguing that the agreement was void and unenforceable as against public policy. The trial court, concluding that the agreement containing the arbitration clause was “enforceable, not severable and not repugnant to the public policy of the State of Florida[,]”[2] found in favor of the defendants and granted their motion to compel.

Ms. Shotts appealed the trial court’s decision and the Second District Court of Appeal affirmed the trial court’s ruling with respect to the motion to compel but found error in the trial court’s holding that the agreement was not severable.  Additionally, the Second DCA found that the agreement could potentially violate public policy because of its provision prohibiting punitive damages, although because this portion could be severed by the arbitrators, the agreement as a whole was not unenforceable for public policy. Ms. Shotts then appealed to the Florida Supreme Court, raising six issues. The court granted her request for discretionary review and addressed three of her claims.

First, Ms. Shotts contended that under relevant law, the court, not the arbitrator, must decide whether or not an arbitration agreement violates public policy. A review of federal and state law found that when the enforceability argument goes to the arbitration clause itself, courts are the more appropriate entity to resolve the dispute because it goes to the making of the agreement as opposed to the contract generally. Decisions on public policy concerns regarding arbitration agreements fall under the jurisdiction of the courts because if the arbitration agreement is violative of public policy, then no valid agreement exists and there is nothing for the arbitrator to decide.

Second, Ms. Shotts claimed that it was error for the Second DCA to fail to find that the agreement’s limitation of remedies (excluding punitive damages) violated public policy. A review of Florida cases found that all districts but one have found limitation of remedies clauses in nursing home contracts to be either violative of public policy or unconscionable. More specifically, the Legislature provided for certain remedies in the Nursing Home Resident’s Act and the American Health Lawyers Association rules contain provisions which are inconsistent with and thus undermine these statutory remedies.  Thus, the Florida Supreme Court held that “any arbitration agreement that substantially diminishes or circumvents [the statutory] remedies stands in violation of the public policy of the State of Florida and is unenforceable.”[3]

The third of Ms. Shotts’s claims that the Florida Supreme Court addressed involved the severability of the limitation of remedies provision. The district court found that the relevant provision’s potential to violate public policy did not render the entire agreement unenforceable because it was severable. Ms. Shotts disagreed. The Florida Supreme Court first conducted a review of relevant Florida law and found that generally, [w]hether a contract is entire or divisible depends upon the intention of the parties.”[4] More specifically, nearly all of the DCAs have ruled on the issue of public policy implications and severability of limitation of remedies provisions in nursing home contracts, reaching varying results.[5] In examination of the facts of the present case, the Court found that the limitation of remedies clause invoking the American Health Lawyers Association rules to be so inextricably intertwined with the essence of the agreement that it could not be severed without the trial court being forced to re-write the agreement, which is not an appropriate role for the court to take.[6]

Finally the Court addressed the facts of this case in light of the recent United States Supreme Court holding in Rent-A-Center, West, Inc. v. Jackson, where the U.S. Supreme Court held that the arbitrator must decide whether or not an arbitration agreement is unconscionable. The Florida Supreme Court, however, found Jackson to be distinguishable from the case at hand because the agreement that Ms. Shotts signed, unlike the agreement in Jackson, contained no delegation provision.

Justice Polston dissented from the majority opinion, reasoning that the agreement’s language providing for arbitration of “any dispute” is a delegation provision, thus bringing this case under the scope of the Jackson holding. Consequently, the enforceability of the agreement, he argued, along with other disputes arising under same, should have been determined by the arbitration panel and not by the court.

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[1] Shotts v. OP Winter Haven, Inc., 36 Fla L. Weekly S665, S674 (2011).

[2] Id. at S666 (quoting Shotts v. OP Winter Haven, Inc., 998 So. 2d 639, 640-41 (Fla. 2d DCA 2008)).

[3] Id. at S671.

[4] Id. at S672 (quoting Local No. 234 v. Henley & Beckwith, Inc., 66 So. 2d 818, 821-22 (Fla. 1953)).

[5] The First DCA held that such a provision is severable so long as the agreement contains a severability clause. Alterra Health Care Corp. v. Estate of Linton, 953 So. 2d 574, 578 (Fla. 1st DCA 2007). The Second DCA, in the present case and in other cases, has held that severability exists, even in the presence of a nonseverability clause. See e.g., Manor Health Care Servs. v. Stiehl, 22 So. 3d 96 (Fla. 2d DCA 2009). The Fourth and Fifth DCAs both have held that regardless of the presence of language addressing severability, limitation of remedies clauses are not severable. Place at Vero Beach, Inc. v. Hanson, 953 So. 2d 773 (Fla. 4th DCA 2007); Fletcher v. Huntington Place Ltd. P’ship, 952 So. 2d 1225 (Fla. 5th DCA 2007).

[6] The Court relied heavily on the reasoning in Hanson as support for its conclusion on this issue. Id. at S672-73.

Florida Supreme Court Issues Opinion on Access to Judicial Branch Records

On March 18, 2010, after 6 1/2 years of meetings by numerous Court and Bar committees, invitations to comment and oral argument, the FSC amended the Rules of Judicial Administration as they relate to public access to judicial branch records.  In case number SC07-2050, the court amended rule 2.420 to provide procedures for the clerks of court to identify a narrow set of records as confidential, procedures for sealing and unsealing court records, with special  procedures for criminal cases, and related appellate procedures.

Recognizing that not all judicial branch records should be made immediately available for public access, in its opinion the court defines the term "confidential," clarifies those records defined as confidential that may not be released except as provided in the rule or that are exempt from the right of public access under article I, section 24(a) of the Florida Constitution, and which may be released only to the persons or organizations designated by law, statute or court order.  The court also made clear that the restriction to access to confidential information will be implemented in a manner that does not restrict access to the portion of the record that is not confidential.

The supreme court also set forth procedures for the clerks of court to designate court records as confidential and limited some records that must be automatically designated confidential to a "finite set" of nineteen statutory exemptions as well as provided a mechanism for a file to seek judicial determination of confidentiality for those records not automatically designated confidential by the clerk.

One of the more important aspects of the amendment to rule 2.420 is the provisions for requesting a confidentiality determination for criminal trial and appellate records.  A new subdivision of the rule is intended to protect the identities of confidential informants and balances the established policy of protecting public disclosure of information that reveals the identity of a confidential informant or concerns an active criminal investigation with the public's constitutional right to access to court records. 

The court, in an effort to narrowly apply the more restrictive procedures that apply to confidential informants and active criminal investigations, plea agreements, and substantial assistance agreements, put in place a procedure that requires a requestor of confidentiality to file a motion with the trial court and the clerk to treat the motion as confidential pending a ruling on the motion.  To ensure the clerk is not creating "false" or "hidden or secret dockets," the motion must be shown on the clerk's docket by the generic title, "Motion to Determine Confidentiality of Court Records," as are other motions to seal trial court records filed under the rule. 

Finally, in addition to amending rule 2.420, the court amended rules 9.040 and 9.100 and created procedures for sealing appellate court records and for expedited rulings on motions made under the rule.

Prepared by:  Tom Bateman

tbateman@lawfla.com

Florida Supreme Court Update

Florida Supreme Court Report on Foreclosure Cases

On December 28, 2009, Chief Justice Peggy A. Quince, on behalf of the Florida Supreme Court, issued an Administrative Order essentially approving The Task Force on Residential Mortgage Foreclosure Cases’ recommendation to adopt a uniform statewide managed mediation program.  With limited opt-out provisions, the managed mediation program mandates that all cases involving foreclosure of homesteaded residential property be referred to a managed mediation program in each circuit.     

In November alone, an estimated 53,000 foreclosure actions were filed against Florida homeowners.  These cases are flooding Florida’s court dockets and clogging the judicial system.  As the Chief Justice states, “the crisis continues unabated.”  Contributing to the crisis is the fact that borrowers are frequently unable to reach their lender to discuss loan modification or workout options.  Also, borrowers complain that lenders repeatedly lose loss-mitigation paperwork.  The hope is that mandating mediation in residential foreclosure cases will facilitate document exchange and communication between borrowers and lenders and lead to settlement.     

 

Several circuits already require mediation in foreclosure cases.  The Collins Center for Public Policy is the managed mediation program manager for three of these circuits, the 1^st, 11^th and 19^th, and has settled 68% of the cases it has scheduled for mediation.  

Florida homeowners in foreclosure will now have the chance to work out a plan with their lender prior to losing their home.  Both borrower and lender are required to have a representative with full settlement authority present at mediation.  

Floridians that are past due on their home mortgages but have not yet been served with a foreclosure complaint can call the Florida Attorneys Saving Homes program to see if they are eligible for the services of a Florida Bar attorney to assist them in working with the lender to reach a settlement.  The number of homeowners needing assistance far exceeds the number of volunteer attorneys available.  The FASH program is seeking Florida attorney volunteers.

A copy of Administrative Order and Final Report and Recommendations of the Task Force on Residential Mortgage Foreclosure Cases can be found here.

Find out more about the Florida Attorneys Saving Homes program here.

Prepared by:    Monica Evans

    mevans@lawfla.com

    Thomas Howell Bateman, III

    tbateman@lawfla.com

Florida Supreme Court Update

Last week, the Florida Supreme Court issued an opinion in Larson & Larson P.A. v. TSE Industries, Inc., Case No. SC08-428 (Fla. Nov. 5, 2009), which can be found here. 

 

The majority opinion, authored by Justice Canady, held that the two-year statute of limitations for litigation-related legal malpractice claims can begin to run on one of two different accrual dates:  (1) on the entry of the underlying judgment when that judgment becomes final; or (2) on the entry of a subsequent, post-trial sanctions judgment.

 

Justices Polston, Labarga and Perry concurred with Justice Canady’s opinion, to the extent it held that the statute of limitations begins to run on the entry of the underlying judgment.  However, Justices Quince, Lewis, Canday, Polston and Labarga concurred with Justice Canady’s opinion, to the extent it held that the statute of limitations begins to run on the entry of a subsequent, post-trial sanctions judgment.

 

Justice Perry issued a partial concurring and dissenting opinion, stating that, in accordance with the prior precedent of Sivlerstrone v. Edell, 721 So. 2d 1173 (Fla. 1998), the statute of limitations should have run from the date the trial court’s underlying judgment became final for purposes of appeal. 

 

Justice Lewis issued a dissenting opinion, agreeing with the opinion of the lower court in TSE Industries, Inc. v. Larson & Larson, Inc., 987 So. 2d 687 (Fla. 2d DCA 2008), which, pursuant to Silverstrone, held that the statute of limitations begins to run from the date of the entry of a subsequent, post-trial sanctions judgment.  Justices Quince and Pariente concurred in Justice Lewis’ dissent.

 

Prepared by:  Rob Telfer

rtelfer@lawfla.com

Florida Supreme Court Casewatch

Florida Supreme Court rules in Pleus v. Crist, Case No. SC09-565 (Fla. July 2, 2009).

The Florida Supreme Court issued its opinion in Pleus v. Crist, Case No. SC09-565 (Fla. July 2, 2009), which can be found here.

The unanimous opinion, authored by Justice Labarga, grants a Petition for Writ of Mandamus filed by retired Fifth District Court of Appeals Judge Robert J. Pleus, Jr.  Judge Pleus sought a writ of mandamus requiring Governor Crist to appoint his successor to the Fifth District.  The Judicial Nominating Commission ("JNC") submitted a list of six nominees to the Governor, who rejected the list because of its lack of diversity.  The Governor requested the JNC reconvene and consider the application of three African-Americans who had applied to fill the vacancy; the JNC met to consider the Governor's request and resubmitted the original list of nominees to the Governor.  The Governor has not filled the vacancy.

The Florida Supreme Court ruled that the plain language of Article V, Section 11(c) of the Florida Constitution mandates that the Governor, upon receipt of the certified list of nominees from a JNC, make an appointment from that list within 60 days to fill the judicial vacancy.  The Court noted the absence of any language in that provision granting the Governor the authority to reject the JNC's certified list or to extend the time in which the appointment must be made.  The Court granted the Petition, but withheld issuance of the writ.

Florida Supreme Court / Election Law Update

Yesterday, the Florida Supreme Court issued a brief order in Browning v. Florida Hometown Democracy, Inc., Case No. 1D07-6024, which can be found here.   In a 4-2 decision, the Court affirmed the First District Court of Appeal's ruling that the signature-revocation provisions provided in Section 100.371, Florida Statutes, and Florida Administrative Code Rules 1S-2.0091 and 1S-2.0095 violate the Florida Constitution and are void, unenforceable and without effect.

The Court noted it would issue a written opinion at a later time.  Chief Justice Quince, and Justices Pariente, Lewis and Labarga concurred in the order.  Justices Canady and Polston dissented.  Justice Perry did not participate.

Florida Supreme Court Casewatch

Florida Supreme Court rules in Liberty Counsel v. The Florida Bar, Case No. SC09-363 (Fla. June 4, 2009).

The Florida Supreme Court issued an opinion in Liberty Counsel v. The Florida Bar today.  The opinion can be found here.

As you may recall from previous posts, Liberty Counsel sought an injunction to prevent The Florida Bar from permitting the Family Law Section (a voluntary section of The Florida Bar) to file an amicus curiae brief in the Third District Court of Appeal in support of a trial court ruling that held unconstitutional a law that prohibits homosexuals from adopting children.

The Florida Supreme Court, in an opinion written by Justice Pariente, concluded that Liberty Counsel did not meet the requirement for injunctive relief because:  (1) the Bar's actions in permitting the Family Law Section to file an amicus curiae brief did not violate the First Amendment rights of the petitioners because membership in the Family Law Section is voluntary and any such advocacy by a section is not funded with compulsory dues; (2) the Bar's actions do not constitute an ultra vires act requiring the Court to grant an injunction.  Chief Justice Quince, and Justices Lewis, Labarga and Perry concurred.

Justice Polston wrote a dissenting opinion, which was joined by Justice Canady, on the grounds that The Florida Bar did not follow, or did not vote to waive, Standing Board Policy 8.10(a)(3) in approving the request for the amicus curiae brief.  Standing Board Policy 8.10(a)(3) provides that sections of the Bar may not submit an amicus curiae brief in pending litigation if the issue involved "carries the potential of deep philosophical or emotional division among a substantial sefment of the membership of the bar." 

Florida Supreme Court Casewatch

Pleus v. Crist, Case No. SC09-565.

There are new developments in this matter currently pending before the Florida Supreme Court, which involves a retired judge from the Fifth DCA filing a Petition for Mandamus against Governor Crist, to compel him to appoint a successor to the Fifth DCA.

Governor Crist filed his response, which can be found here.  The Governor argues:  (1) Petitioner has no clear legal right to compel the Governor to exercise his judicial appointment power because the scope of the judiciary's authority to compel this power via mandamus is not clearly established; (2) Petitioner cannot establish that the Governor has a clear legal duty to exercise this appointment power because it is unclear whether the Governor retains authority to make an appointment outside of the time period contained in Article V, Section II(c), Florida Constitution; (3) the Governor's power of appointment is inherently discretionary and not subject to mandamus; and (4) Petitioner cannot establish that he lacks an ordinary remedy at law because a declaratory judgment action is more appropriate.

Several amicus curiae briefs have been filed:  the Appellate Practice Section of The Florida Bar, which can be found here; the NAACP, which can be found here; and the Florida Association for Women Lawyers ("FAWL"), which can be found here.

Judge Pleus has filed a Reply, which can be found here.

The Florida Supreme Court has scheduled oral argument in this matter for June 2, 2009.

Florida Supreme Court Casewatch

Pleus v. Honorable Charles Crist, Case No. 09-565

Another interesting and controversial case was filed earlier this week in the Florida Supreme Court.  It can be found here.

Robert J. Pleus, a Senior Judge who recently retired from the Fifth District Court of Appeal, has filed a Petition for Writ of Mandamus against Governor Crist, seeking an Order from the Florida Supreme Court requiring Governor Crist to appoint his successor to the Fifth District.  Judge Pleus's Petition can be found here.

As noted in Judge Pleus's Petition, the Judicial Nominating Commission for the Fifth District Court of Appeal ("JNC") certified six individuals for the Governor to consider in appointing a judge to fill the vacancy caused by Judge Pleus's retirement.  Under Article V, Section 11(c), Florida Constitution, "[t]he governor shall make the appointment within sixty days after the nominations have been certified to the governor."

The Governor asked the JNC to reconvene and certify a new list of nominees, requesting that the JNC "give due consideration to diversity in the nominating process."  The JNC responded that it did not believe it had the constitutional authority to reconvene and reconsider nominees, and certified the same list of six nominees.

To date, the Governor has not filled the vacancy at the Fifth District caused by Judge Pleus's retirement.  We will keep you posted on any further developments.