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3d DCA Watch -- Oops I Did It Again Judge(!) Edition

Ok kiddies it's a fine cool hump day and like many of you, I have brought out my sweaters, vests, boots, scarves, hats, shawls, jackets, gloves, and firewood to celebrate South Florida's descent into sub-70 degree temperatures.

As cool as it is this morning, however, there is an even colder wind blowing north from that heat-controlled, fortified concrete courtroom by the highway, as our resplendently robed judges swill hot coffee yet dispense cold justice, and this week the chilly winds of reversal are all blowing directly into an open window at 73 West Flagler.

So without further adieu let's jump right into this week's oops let's-try-it-again 3d DCA Watch:

Holder v. State Farm:

Whoa! An opinion by Judge Schwartz that I actually agree with. Let's take a closer look:

A State Farm adjuster offered, and non-binding mediation confirmed, a net $65.00 ($9,065.00 in covered losses minus $9,000.00 deductible) for the settlement of Holder?s hurricane damage claim under his homeowner?s policy. A year later, Holder filed suit, whereupon State Farm invoked the binding arbitration clause of the policy. That process resulted in an appraisal award of $50,178.60, which State Farm promptly paid. Although it is obvious that the filing of the action directly resulted in the payment of over 500 times the amount previously offered, the trial judge denied a claim for attorney?s fees under § 627.428(1), Fla. Stat. (2007).

Huh? I mean, what kind of bone-headed decision is that? Who the hail was the trial jud....errr, nice to see you again Judge!! You're looking well, sir!

Well that was somewhat awkward, but enough of that, let's move on:

Dieudonne v. Publix:

Oh man. Here the trial judge granted a motion to dismiss with prejudice of a first complaint by a former Publix employee who was attempting to allege discrimination as to training and wages and ultimately termination based on her age. Publix successfully argued that the EEOC charge only dealt with other employment issues and that the plaintiff did not exhaust her remedies as to the termination charge. Judge Ramirez reversed, reasoning:

Although we agree that the complaint was properly dismissed, the dismissal should have been without prejudice.

Under Florida Rule of Civil Procedure 1.190(a), the plaintiff may amend as a matter of course at any time before a responsive pleading is served. Here, Publix?s motion to dismiss was not a pleading. Thus, Dieudonne could amend her complaint without leave of court. Further, ?[r]efusal to allow an amendment is an abuse of the trial court?s discretion ?unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.?? Gilbert v. Fla. Power & Light Co., 981 So. 2d 609, 612 (Fla. 4th DCA 2008).

As this was Dieudonne?s first complaint, the privilege to amend had not been abused and we are not convinced that amendment would be futile. We therefore conclude that the trial court abused its discretion in not allowing Dieudonne to amend her complaint.

Does it really matter who the trial judge was on this one? I mean, why get so technical about these things, anyone could have ruled this way, everyone has a bad week now and again, let's just forget about the stats this week and focus fresh on the future, shall we?

I don't want to sound too pollyannaish, but if you look at this from the glass-half-full perspective, every week brings another chance of being fully sustained on appeal.

Now you get back in there and make those rulings stick, Judge! And close your window, it's a little cold outside today.

Full post as published by South Florida Lawyers on November 19, 2008 (boomark / email).