Arbitration & Mediation

Florida Law Commentary

Posted on March 31, 2011
I want to thank everyone for their time and interest over the years (hard to believe... years...) with this blog. My first post here was just about five years ago. That's pre-Twitter and before Facebook became... well, Facebook. I've gotten great feedback from lawyers, the press, as well as general readers...

Florida Bar News correction

Posted on October 13, 2010
The October 15, 2010 Florida Bar News incorrectly listed my name as a “lawyer on the move.” This is an error. The corrected version is already available online, here.

Christopher Hopkins Moves to Akerman Senterfitt

Posted on June 15, 2010
Friends: I am pleased to report that, effective Wednesday, June 16, I will be moving my law practice to Akerman Senterfitt LLP. Both of Butzel Long's Florida offices are being merged/absorbed into Akerman, the largest law firm in Florida (with 500+ lawyers nationwide)...

Forum Selection Clause in Cruise Ticket Deemed Matter of "Great Public Importance"

Posted on June 13, 2010
The Third District has presented to the Florida Supreme Court a question of great public importance as it relates to the enforceability of forum selection clauses in cruise ship tickets. While the dissenting judge suggests that this is just a "garden variety personal injury case with a contractual twist," the panel (based in Miami) likely recognized the significance of the cruise line industry in Miami-Dade and elsewhere in the state...

To access this complete feed in the blog feed reader login or register for free.

Nursing Home Arbitration: Evidentiary Hearing Required... (and new theory that severing provisions only applies to public policy disputes?)

Posted on June 08, 2010
The fact that the Second District found that an evidentiary hearing was required when the parties disputed the making of a arbitration agreement is certainly not new. The case of FL-Carrollwood Care Center, LLC; Senior Health Management, LLC; Senior Health Management - Gold Coast LLC et al...

Is the Second DCA Giving Defendants Two Hearings on Motions to Compel Arbitration?

Posted on May 24, 2010
A curious, brief opinion came out of the Second District ordering a trial court to hold a "full" evidentiary hearing on a motion to compel arbitration -- yet the request for the evidentiary hearing was made by the defendant at the hearing on their motion...

8th Circuit Declines to Use "Look Through" Approach in Certain Federal Arbitration Disputes

Posted on May 22, 2010
The Eighth Circuit took on a procedurally complex issue regarding federal court jurisdiction over petitions to compel arbitration in the consolidated cases of Northport Health Services of Arkansas v. Wayne Rutherford and Tresa Robinson. Factually, these cases involve underlying state court claims relating to alleged nursing home resident rights violations...

Florida Supreme Court to Hear Oral Argument in Nursing Home Arbitration Case

Posted on May 18, 2010
The Florida Supreme Court will hear oral argument in a nursing home arbitration case, Gayle Shotts v. Tandem Health Care of Winter Haven, OP Winter Haven, Inc.; Tandem Regional Management of Florida, Inc.; et al. A good overall primer on these nursing home arbitration cases is here...

Plaintiff Avoids Proposal for Settlement by Dismissing Without Prejudice

Posted on May 13, 2010
Do plaintiffs have an advantage over defendants when it comes to avoiding fees and costs under a Proposal for Settlement? Perhaps, according to a technical procedural tactic employed in Shannon Smith v. Loews Miami Beach Hotel Operating Company (Wells, Rothenberg, Schwartz)...

11th Circuit Rules "Manifest Disregard" and "Public Policy" are Not Grounds to Vacate Arbitration Award

Posted on May 10, 2010
The Eleventh Circuit recently addressed the question of what standards apply when a court considers a motion to vacate or modify an arbitration award. Consistent with the 2009 Hall Street decision from the U.S. Supreme Court, the panel held that there are only four narrow grounds to review an adverse arbitration award...

Third DCA Notes "Exceptional Issue" but Dodges Arbitration Question

Posted on May 07, 2010
The Third DCA (Cope, Gersten, and Salter) accepted a "writ of mandamus or certiorari" regarding an order on a motion to compel arbitration -- which, within itself is procedurally unusual -- but dodged the main arbitration issue. Typically, the Florida Arbitration Code holds that orders on motions to compel arbitration are appealable...

Analysis of Stolt-Nielsen Dissent (Ginsberg, Stevens & Breyer)

Posted on May 04, 2010
We covered the majority opinion of Stolt-Nielsen v. AnimalFeeds International Corp. last week. This post will analyze the dissent. The dissent takes the position that the Court should have denied the case on procedural as well as substantive grounds -- castigating the opinion as "premature" and "indulging...

Florida International Arbitration Bill Awaits Governor's Signature

Posted on April 29, 2010
The Daily Business Review single-handedly broke a front page story (Florida Would Adopt U.N. Arbitration Model) regarding the state's likely adoption of model international arbitration rules which, based upon a Google News search, no other media outlet has addressed...

US Supreme Court: Bazzle Decision Was Not So Important as Everyone Treats it (but Stolt-Nielsen Hardly Clears Up the Topic)

Posted on April 28, 2010
The U.S. Supreme Court's 5-3 majority opinion sent a clear message that practitioners were far more impressed by the 2003 opinion in Green Tree v. Bazzle than the Court was. The new decision, Stolt-Nielsen, appears to essentially gut the significance of Bazzle but Stolt-Nielsen itself is a weak replacement -- further hobbled by the narrow majority with Justice Sotomayor, who ideologically might have joined the dissent, not participating...

Breaking News: U.S. Supreme Court Hands Down First Arbitration Decision of 2010

Posted on April 27, 2010
The U.S. Supreme Court handed down its first arbitration decision of the year in Stolt-Nielsen v. Animalfeeds Int'l Corp. The issue involved class action arbitration and whether such was permissible when the agreement was silent on class status. We previously covered the case here...

Alabama Court Determines Daughter Without DPOA Had Apparent Authority to Sign Nursing Home Admission Documents

Posted on April 27, 2010
The Supreme Court of Alabama recently held that an adult daughter of a competent nursing home resident could bind the mother/resident to an arbitration agreement as part of nursing home admission paperwork based on the theory that the daughter had "apparent authority" since the mother knew or should have known that forms were signed on her behalf...

Interested in Advertising on This Site?

Posted on April 20, 2010
Calling all law firms, mediation groups, and arbitration firms! Are you interested in advertising on this site? Options are available starting at $99. Why here? * This site ranks #1 in Google and Bing searches for "Florida arbitration," "Florida Mediation Law" and "Florida ADR law" * The site receives 1,000's of visitors a month * The site has had over 1...

Online "EULA" Contract Requires You to Transfer Your Immortal Soul as Term

Posted on April 18, 2010
Our friends at CNET, by way of a Fox News story, advises us of an online purchase contract where the seller slipped in a term to see if people were actually reading it. Here's the contractual term: "By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non-transferable option to claim, for now and for ever more, your immortal soul...

Mary Carter Agreement Not Found With Settling Defendant Who Remained in Case As Cross-Defendant

Posted on April 15, 2010
"Mary Carter Agreements" have been banned in Florida since 1993 yet the question of the existence of one recently arose in the Fourth District's La Costa Beach Club Resort Condominium Association Inc v. Aphonso Carioti, Donald Wendt, Ingeborg Wendt, Kenny Wendt, Clarke Warne, and Marcille Garber (Ciklin, Gross and May)...

Florida Supreme Court Amends Mediator "Marketing Practices" (Advertising) Rules

Posted on April 06, 2010
The Florida Supreme Court has amended Florida Rule for Certified and Court-Appointed Mediators 10.610. The Rule is here. The opinion is here. Bottom line: no false advertising and former judges can barely hint at their prior judicial experience. Taking apart the six-part Rule 10...

CLaw iPhone App -- Florida Rules of Professional Conduct

Posted on April 06, 2010
Sorry for the brief detour from ADR topics, but we've released CLaw, a free iPhone app which includes: 1. Florida Professional Rules of Conduct -- updated with 2010 amendments 2. Southern District federal court guidelines 3. Local bar guidelines from Jacksonville, Miami-Dade, Broward, and Palm Beach 4...

Calculating a Close-Call on Proposal for Settlement (Costs Must Be Incurred Pre-Proposal for Settlement)

Posted on March 23, 2010
The art of drafting a proposal for settlement involves the delicate balancing of procedural compliance, an educated guess as to the "right" amount, and -- after judgment -- the proper math to confirm whether your client "won" the battle of the fees. Historically, most Proposals for Settlement on appeal end up losing...

What is a "Medical Expert" Under Florida Medical Negligence Pre-Suit Requirements

Posted on March 15, 2010
In Florida, a plaintiff is required to undertake a good faith investigation of the potential claim and obtain a written opinion from a medical expert before filing suit against a health care provider. The prospective parties are also required to go through a "pre-suit" discovery process according to Florida Statutes, Chapter 766...

Dispute Over Arbitration Clause in Private School Contract Must Receive Evidentiary Hearing

Posted on March 11, 2010
The Fourth District ruled this week that a contested arbitration clause must be resolved via an evidentiary hearing. The case is The King's Academy, Inc. and Robert Crowley v. John Doe et al. Of note, this case seems identical to Curcio v. Sovereign Healthcare of Boynton Beach, LLC, so there is some surprise that the court did not simply issue a PCA...

Amending Complaint/Claims Will Not Afford New Hearing to Dispute Arbitration or Limitation Clauses

Posted on March 07, 2010
Amending Complaint/Claims Will Not Afford New Hearing to Dispute Arbitration or Limitation Clauses A recent case from the Third District includes some hazy, if not heady, arbitration issues involving class action waiver and unconscionable liability limitations...

Third DCA Employs Equitable Estoppel in Contract Dispute

Posted on February 25, 2010
The Third District issued a fact-dense opinion regarding a real estate development project which involved a non-signatory to a contract invoking an arbitration clause. Florida courts have not addressed "equitable estoppel" in this context since late 2007...

Orlando Theme Parks Push for Parental-Child Liability Waivers

Posted on February 24, 2010
Political season is upon us and we pick up the thread of the enforceability of parental liability waivers signed on behalf of their children who participate in commercial activities. Florida's legislative session begins this week. Fourteen months ago, in January 2009, the Florida Supreme Court rocked the state's entertainment industries by ruling that parents do not have the authority to sign liability waivers / release-of-negligence forms on behalf of their children who want to participate in commercial (entertainment or sporting) activities...

Colorado Supreme Court Upholds Nursing Home Arbitration

Posted on February 19, 2010
We travel to Colorado for this state supreme court case in yet another nursing home arbitration / agreement-signed-by-adult-children case. In Moffett v. Life Care Centers of America, the adult son of a nursing home resident signed the admission agreement and a separate arbitration agreement two days after the resident was admitted to the facility...

"Introducing Broker" Not Party or Third Party Beneficiary Entitled to Arbitration

Posted on February 15, 2010
The Third DCA issued a fairly obvious and non-groundbreaking decision in Francisco F. Galvez Lopez v. Atlas Financial Group, LLC (Ramirez, Rothenberg, and Schwartz) -- although the case may hold the interest of those in investments and/or parties seeking to employ "third party beneficiary" status as a means to invoke arbitration as a non-party to the arbitration agreement...

U.S. Supreme Court Takes Another Arbitration Case, This Time on Who Decides Unconscionability

Posted on February 08, 2010
Looks like the U.S. Supreme Court is going to do some weeding in the garden of arbitration cases. Will they clarify issues to the point that they put a lowly blog like us outta business? I doubt it. But we've got an interesting Spring to look forward to...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.