Arbitration & Mediation

Picky Issues Control Proposals for Settlement: Proposal Served without a Certificate of Service is... VOID

Posted on October 08, 2009
Florida courts have been clear, almost to a fault, that the Proposal for Settlement rules are strictly construed. For day-to-day practitioners, that approach has created a minefield of picky technicalities complying with the Rule of Civil Procedure and the statute...

Florida Court Confirms Arbitrator Can Apply Wrong Law -- And You Have No Grounds for Appeal

Posted on October 07, 2009
Is there a "be careful what you wish for" tone in the Fifth District's recent decision where, in declining to accept an appeal out of arbitration, the Panel notes that "arbitration, after all, is a form of alternative dispute resolution..." (their emphasis) That said, there is some legal truth to the statement that arbitration is an alternative dispute forum where there are only five "narrow" grounds for appeal which are rarely invoked with success...

Did Fourth DCA Create An Exception to the "Stockman Rule" Regarding Entitlement to Fees After Chapter 44 Arbitration?

Posted on September 28, 2009
Florida litigants must have a contractual or statutory basis for a claim for attorney's fees and are required, under the "Stockman Rule," to notify the other side of the intent to pursue fees. But what if the entitlement to attorney's fees did *not* exist at the outset of the dispute and only arose during the course of litigation? In this case, there was no basis for attorney's fees until the court sent the matter to non-binding arbitration, the losing party sought trial de novo, and lost...

Attempt to Settle Is Not Waiver of Right to Arbitrate

Posted on September 24, 2009
Florida decisions regarding waiver of the right to arbitrate continue to confound as the state courts are not internally consistent and use a different standard than their federal court bethren. Thus, the same situation results in different outcomes depending on which courthouse you are in, as well as which city you are in...

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Fourth DCA Revisits the "Stockman Rule" on Failure to Plead Claim for Attorney's Fees

Posted on September 21, 2009
A frequent battle among litigants is whether there is a contractual or statutory basis for attorney's fees -- and then whether the prevailing party actually plead a claim for fees. In Save On Cleaners of Pembroke II Inc v. Verde Pines City Center Plaza, LLC, the parties battled over an alleged breach of a commercial lease which included an attorney fee provision for the prevailing party...

Unsigned Addendum and Post-Contract Letter Establish No "Meeting of the Minds" on Arbitration

Posted on September 18, 2009
Given the number of arbitration enforcement decisions in Florida over the last several years, we are suspicious of a decision these days which takes several pages but provides only one case as precedent. You be the judge. The Fourth District (Shahood, Warner and Hazouri) considered the arbitration clause in a residential construction contract in Toll Jupiter Limited Partnership, Toll FL GP Corp...

First District Gives Quick Lesson to Requirements of an Order Granting 57.105 Sanctions

Posted on September 17, 2009
If you are fortunate enough to win a Motion for Sanctions under Florida Statutes 57.105, the one paragraph opinion in Diane Brown v. Pan Handle Citizens Coalition et al. (Per Curiam) may be valuable guidance for proposing an order. The court held that an order granting 57...

Fourth DCA Holds Prematurely Filed 57.105 Motion is Not Valid Under F.S. 57.105(4)

Posted on September 15, 2009
The Fourth District ruled that a Motion for Sanctions under Florida Statute 57.105 must be served on the opposing side 21 days before filing, pursuant to the "safe harbor" provision, and the fact that the motion was not heard until months after will not satisfy the strictly construed statutory requirement...

When "Non-Severability" Means Something Else: Manor Care's Arbitration Agreement, Round 8

Posted on September 03, 2009
The Second DCA issued a nursing home arbitration decision inwhich it delivered the 36th Florida nursing home/arbitration decision and the eighth Florida opinion interpreting one company's form contract. Or so the opinion claims. Needless to say, it's been one we've been anxious to address...

Second DCA Holds That AAA's Recent Refusal to Accept Pre-Injury Arbitration Agreements is Not a Material Term

Posted on August 24, 2009
We are anxious to report on the recent Second DCA opinion of Manor Care v. Catherine Stiehl as PR of Estate of Halloran, but we will have to build up to that case. This (other) recent Second DCA case conveniently builds a nice bridge between the Georgia cases in our prior posts and that new Manor Care case...

Georgia Courts Address Broad vs. Limited Powers of Attorney and Argument that AAA Declines Pre-Injury Arbitration Agreements

Posted on August 21, 2009
We travel across the Florida-Georgia border to take a quick look at two nursing home arbitration decisions with differing outcomes... and to examine the argument regarding arbitration being "impossible" since, as a policy, the AAA will not hear tort cases where a pre-injury trial waiver was signed (and now disputed)...

Non-Lawyer Fails to Argue Unconscionability in Settlement Agreement at Trial, Loses Appeal Over Escalation Clause

Posted on August 18, 2009
It is common to have a time-limit demand and a settlement agreement which states that failure to pay on time results in the defendant/payor consenting to a judgment of a (higher) amount. This is known as an escalation clause. In Lawrence Reznik v...

Eleventh Circuit Holds Carnival's Seafarer's Agreement Arbitration Clause Unenforceable and Not Retroactive

Posted on August 12, 2009
A cruise ship waiter trips, spills coffee on himself, and the result is an outpouring of U.S. and international confusion, swirling the Federal Arbitration Act, Jones Act, Seaman's Wage Act, and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards into one steaming brew...

Third DCA Rejects Prevailing Party Can Claim Attorneys Fees Under Lemon Law

Posted on August 05, 2009
In a tersely phrased three page opinion, Judge Schwartz of the Third District appears to have shrugged off Fourth DCA and Eleventh Circuit precedent while apparently raking the Florida Legislature over the coals for poor writing. Meanwhile, the consumer who won his lemon law automobile claim is stuck with arbitration, trial and appellate attorney fees...

Tugboat Accident Triggers Federal Arbitration Act, McCarran-Ferguson Act, and New York Convention on the Recognition of and Enforcement of Foreign Arbitral Awards

Posted on July 28, 2009
In a decision which could find its way to the U.S. Supreme Court, the Second District held that, as an exception to an exception to a general rule (yes, you read that correctly), disputes over insurance policies involving parties in differing countries (like Lloyd's of London policies) can be arbitrated...

F.S. 57.105 Sanctions Rest on "Insufficiently Supported" Claims or Defenses, Not Necessarily Ones with a "Complete Lack of Justiciable Issues"

Posted on July 25, 2009
The First District came down hard on a plaintiff and her trial and appellate lawyers, setting forth the grounds why sanctions against the party and lawyers was warranted. In Melissa Long v. AvMed, Inc., the First DCA (Hawkes, Lewis and Thomas) found that the plaintiff rushed filing a claim in hopes that they could collect attorney's fees under their statutory claim...

You Didn't Mediate "In Good Faith" !!! (and other ills of a lengthy Report of Mediator)

Posted on July 22, 2009
One of the more painful legal cliches is the constant reference at mediation to one side mediating (or not mediating) "in good faith." Although that expression was deemed meaningless back in 1995, it still lingers in the lexicon of mediation participants...

Fourth DCA Says Single Defendant Can Require Dismissal of Entire Suit as "Condition" to Proposal for Settlement

Posted on July 20, 2009
Our starting place with Proposals for Settlement has been that the courts review them warily. A trend exists that most challenged Proposals for Settlements which go up on appeal are NOT enforced. But, more recently, we suggested there may be a counter-trend, where the intermediate appellate courts seemed to have realized that they put drafting-lawyers up to a near impossible challenge to create a bullet-proof proposal for settlement...

Does This Case Suggest That Summary Judgment Can't Be Granted on Hospital Surgery Consent Forms?

Posted on July 14, 2009
Hospital consent forms get signed every day however our ancedotal legal experience suggests that they are not routinely accepted by the courts. In fact, there is some room to suggest that defense lawyers have gotten the message and rarely press them through the use of summary judgment...

5th DCA Finds "the" and Other Exclusive Language to Create a Binding Forum Selection Clause

Posted on July 12, 2009
It seemed that forum selection clauses were not in vogue in 2008, after getting a fair amount of attention in 2007. The Fifth District revived our interest in mandatory or permissive forum selection clauses, by examining an AT&T contract in Travel Express Investments, Inc...

Fifth Circuit Finds Waiver of Arbitration (Under Federal Law) in Asbestos Case

Posted on July 09, 2009
Given that the federal standard to find waiver of arbitration is much looser than the Florida standard, this case from the Fifth Circuit is worth noting since, indeed, the plaintiff waived arbitration. In Geraldine Nicholas as Administratrix of Estate of James Nicholas v...

Once Motion to Compel is Granted, Failure to Arbitrate May Mean Defendant is Entitled to Fees As a Prevailing Party

Posted on July 01, 2009
Lawyers need to be counsel their clients carefully after a motion to compel arbitration is granted. Depending upon the statutory claims, the failure to proceed with arbitration may lead the defendant to be deemed the prevailing party, entitled to attorney's fees...

Florida Trend Magazine's 2009 Legal Elite

Posted on June 29, 2009
Florida Trend Magazine (July edition) hit the stands last week with its annual list of Legal Elite in the state of Florida broken down by areas of practice. The list represents about 2% of all Florida lawyers. Thank you for those who were kind enough to submit my name (under Appellate)...

Revisiting Our Analysis of an Illinois Case Invovling An Anti-ADR Statute

Posted on June 17, 2009
The downside to hosting a blog is that your posts are sometimes rushed or misguided. We haven't found, in three years, instances where we outrightly wished we might retract a post -- although one may be out there! -- but we did come across an old post which was both a bit testy and a bit off-track...

Eleventh Circuit Rules That Statutes Which Provide For Enforcement in Court Can Still Be Resolved in Arbitration

Posted on June 08, 2009
A clever but likely short-lived legal theory arose in the case of Elizabeth Picard et al. v. Credit Solutions, Inc. a/k/a Credit Solutions of America, Inc. If a statute indicates that any violation can be enforced in court, does this preclude arbitration? According to the Eleventh Circuit, the answer is no...

Arbitration Clause in Discrete Section of Contract Doesn't Apply to All Disputes

Posted on June 04, 2009
If a contract dispute includes an arbitration clause under a provision entitled, "Procedure for Indemnity Claims," should first party claims be arbitrated? No, according to the Second District in Raymond and Michael Tubbs v. Lisa and Richard Hudec(Fulmer, Davis, and Wallace)...

Third DCA Puts a "Blue Dot" on Proposal for Settlements

Posted on June 01, 2009
Is the Third District trying to send a message regarding Proposals for Settlement? So it appears, at least in Harris Specialty Chemicals, Inc. v. Punto Azul S.A. de C.V. et al. (Gersten, Cortinas and Salter) We typically complain when an opinion comes out without a clear recitation of what language works/doesn't work in an arbitration clause or proposal...

Third District Declines to Enforce Sanctions Because "21 day" Safe Harbor Letter Did Not Comply with 57.105(4)

Posted on May 27, 2009
We discussed a recent Fourth DCA opinion where that court set out some pointers for how to handle enforcement of a Motion for Sanctions under Florida Statute 57.105 (see Law Offices of Ferdie v. Isaacson). But what about the standards for the motion and 21-day warning letter? The Third District entered the 57...

Second DCA Continues to Blush Due to the McKibbin Decision -- Enforces Arbitration Under "Catch All" Clause in POA

Posted on May 25, 2009
In the nursing home context, plaintiffs lawyers have (rightfully) seized upon the vagueness of durable powers of attorney in order to argue that the attorney-in-fact is not authorized to sign admission agreements for the resident/ward which contain arbitration clauses...

Fourth District Explains Procedure to Collect Against Law Firm Under Fla. Stat. 57.105

Posted on May 21, 2009
Need a quick outline on what steps need to be taken to collect on a Florida Statute 57.105 "frivolous" claim motion? The Fourth DCA has a short explanation in Law Offices of Ainslee R. Ferdie, Ferdie and Lones, Chartered, et al. v. Lawrence and Lori Isaacson; Promises 10, 11 & 12 d/b/a Your Salon et al...

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