The Florida Supreme Court last week amended various criminal, family, and mediator rules. Relative to mediators, the Court revised the appellate process relating to any finding of a violation of the mediator rules.

According to In Re: Amendments to Florida Rules for Certified and Court-Appointed Mediators, the Chief Justice or designee has jurisdiction to review any finding of a violation (or imposition of sanctions). The Rules of Appellate Procedure apply with a 30-day time period to file a notice of appeal running from the date of the finding. The initial brief is due in 30 days thereafter. Findings are reviewed on a "competent substantive evidence" standard without re-weighing evidence or substituting judgment.

If you are a Florida lawyer, please follow the link below to submit a ballot for Florida Trend Magazine's 2009 Legal Elite list.

Follow this link and enter "Christopher B. Hopkins" and "Butzel Long, P.C." for law firm.

I appreciate your support!

Can an attorney settle a case based upon implied or apparent authority? The general rule is "no" and the exception to that rule exists as a matter of law but has never been exercised. So "no" means no.

In Calvin A. Johnson v. Velma Virginia Skarvan, the plaintiff was represented by counsel and was scheduled to attend an independent medical examination (IME) set by the defendant. Apparently the Plaintiff told his counsel he could not attend and counsel reported that his absence might lead to sanctions. Authority was given to settle the case for $7,500.

Counsel apparently could not get the deal done for that amount so he settled the case for $6,500, filed a motion to withdraw and motion to enforce settlement, wherein counsel wrote that there was an emergency and he had to settle. Although we do not have a detailed set of facts, it appears that the Plaintiff was unreachable.

The Fifth District (Pleus, Orfinger, and Torpy) held that the general rule was "the mere employment of an attorney does not give the attorney implied or apparent authority to compromise the client's cause of action or settle the client's claim." The court on to set forth an exception: "an exception to this general rule is said to exist when an attorney is confronted with an emergency which requires immediate action to protect the client's interest and consultation with the client is impossible."

But how good is an exception if it's never been used? Not very good at all: "Although several courts, including our own, have acknowledged this exception... no Florida court has ever found the exception to be applicable. We conclude that it is not applicable here, even assuming that the exception is legally sound."

On a case specific note, this appeal was an issue of law taken up by the plaintiff, pro se. A lot of work for a $1,000 difference in a settlement.

Bottom line: lawyers do not have implied or apparent settlement authority and the circumstances of an "emergency" must be (exceptionally) compelling to even suggest that authority. Recall, in prior cases, we've seen the Fourth District invalidate a verbal hallway agreement and we have seen that same court say that a lawyer's good faith belief of his settlement authority is likewise not good enough.

When I print out a new case, I often flip through to see when the case law begins to get cited. No, I'm not rushing to the end like someone who reads the last page of a book first. It's more of a law school habit.

Court opinions set out the facts first and then the rule of law. A string of case names and citations on the page signals that the court has set the table of facts and precedent so that a feast of new law can be served.

Setting that table, however, can be a chore for the anxious lawyer. The faster the court can dispense with the specific facts of a case (which likely only interest the parties), the greater likelihood that the opinion will have wide application. Maybe to one of your pending cases. Having to state too many facts bogs down a clean, broad-reaching opinion.

With all respect to the parties and lawyers in Lawrence Strominger v. AmSouth Bank, the "when does the case law begin?" test proves that too many facts spoil a good opinion. The four and a half page opinion is just about half facts. Not bad, but the emerging rule is foggy and riddled with opportunities to distinguish. And, as far as precedent, a full reading of the case is probably not worth all the fuss.

But we can cut to the chase here.

In this consumer collection case, the plaintiff brought two lawsuits in the small claims division of county court and ultimately amended and transferred the cases into circuit court, essentially only changing the amount in controversy. Reading between the lines, the defendant figured it was cheaper to litigate in small claims court, no matter what the outcome, so the defendant didn't press the issue of the arbitration clause in the contract between the parties. When the plaintiff sought to amend/transfer, thus ramping up the value of the case, the defendant tried to switch from litigating to arbitrating by filing motions to compel arbitration. Was there waiver?

Well, let's review the case law in Florida. Despite a long precedent of favoring arbitration, the courts have developed a hair-trigger response by finding almost any act in court other than a motion to compel arbitration to be waiver. We've mentioned before, there is a clear opportunity for the courts to draw a bright line "waiver test" based upon the filing of an Answer. But this is not that case.

The Second District (Altenbernd, Casasnueva, and Stringer) picked up on the fact that, while there is no precise definition of active participation, there was also no precedent to put "active participation in litigation" back in the arbitration bottle. Saving a long procedural history, the defendant had filed an Answer (waiver!), undertaken discovery, and even sought summary judgment. As the court put it, "notwithstanding modest shifts in pleadings, strategy or evidence," active participation in litigation is waiver of arbitration.

Careful readers will enjoy the mysterious footnote three, a possible seedling of another appeal, which tempts future litigants with a wispy promise that "a major shift in legal theory or the revelation of earlier concealed evidence or some foundational change in litigation could warrant a basis for a party to demand arbitration...."

We are sympathetic to the defendant, which probably felt roped into a small court case only to end up with two circuit court cases. Arguably, this could become a tactic to lull defendants into litigating a small claims case (because arbitration would not be costworthy) and then file a motion to amend and transfer to circuit court once the trap of "active participation" has been sprung...

Sometimes cases play out like chess games, with each side having their own style and strategy. The game itself turns into a tricks and set-ups designed to distract the opponent in order to expose the queen.

Whether you like the outcome or not, there was some insistent and clever lawyering in the case of David Donan v. Dolce Vita SA, Inc. before the Fourth District (Hazouri, Klein, and Damoorgian).

Dolce sued claiming that Donan breached a contract. An associated lis pendis was deemed improper and Donan obtained an order for approximately $17,000. The main case, by agreed order, was sent to arbitration through the American Arbitration Association. Donan meanwhile moved to execute on the $17k as a "chose in action" claiming the arbitration claim was subject to execution in proceedings supplementary.

Personal tort claims are generally not considered a chose in action but this case appears to be a contract case instead. The statute, Florida Statute 56.29, thus otherwise permits the court to apply the chose to the debt. But isn't it a little odd that the defendant could execute on a debt and essentially buy the arbitration claim against it -- thus presumably dismissing it?

Answer is yes, this would be "inequitable." That said, the Court did not go so far as to necessarily make a new exception, it simply said this was a valid use of judicial discretion to deny the motion at the trial level.

A clever effort and nearly a check-mate.

The case of Nina McKey, Administratrix of Estate of Ruby Irene Brewer v. National Healthcare Corp et al., out of Tennessee, gives us yet another example of a court declining to enforce arbitration in the nursing home setting when signed by a family member who has not been designated or appointed to sign on behalf of the resident. This case turns on specific Tennessee law but does show the court is looking at other familiar cases from other states. That said, we're curious why there is no discussion of enforcement through arguments such as third party beneficiary status.

In this case, the adult daughters sign the resident into the facility and, in doing so, agree to arbitration. Neither daughter has any written authority to sign on behalf of the resident although all sides admit the resident was incompetent. There is an errant form in the nursing home paperwork that says the adult children could sign for the resident. Both trial and appellate court declined to enforce.

Avoiding a long discourse on Tennessee statutory law, the court decided that the requirements were not met because their statute required physician-confirmation of incompetence and some documentation in the physician's records to that end. None existed here.

The court looked at the Texas decision, In Re Ledet, but declined to follow because Texas has different statutory rules. Likewise, the court found that the Mississippi case of Picayune v. Brown was factually different since, therein, there was a physician note regarding incompetence. No reference was made, however, to Florida's Fourth DCA's decision in Blankfeld v. Richmond Health.

The take-away message appears to be that, depending upon the controlling state statute, the greatest likelihood of enforcing arbitration signed by a statutory surrogate is to have written confirmation from a physician that the resident/ward's is incompetent.

Happy First Monday in October. For those who enjoy watching the U.S. Supreme Court terms, they are open for business as of today. You can keep track of the developments at the SCOTUS blog and other sites.

For alternative viewpoints on the upcoming term, take a look at the articles in the LA Times or the Christian Science Monitor.

Meanwhile, to take you back to your law school days, commemorate the new term by perusing an old friend (enemy?), Pennoyer v. Neff.

Despite the fact that I am a member of the three federal court districts in Florida, I rarely suggest to a client to resort to federal court. Why? The expense of discovery and the needless procedures. It appears I'm not alone.

According to a recent survey of nearly 4,000 lawyers, the process of filing in federal court itself has become a weapon: pleading requirements, immediate discovery demands, new e-discovery, and a "total lack of control over discovery." Case in point, we have a case which was removed from state court to federal court and both sides briefed remand. The trial court still required the parties to go through pro hac vice motion practice, discovery, procedure-related orders, and other demands. And then the judge sits on the remand issue for months -- while I fend off a client who is paying high bills but is seeing no results.

So what can be done about it? Well, no clue yet. The two associations which performed the survey are going to the drawing board with ideas about tailoring the Rules of Civil Procedure based upon the type of case, giving the judge more control over discovery or putting in attorney fee provisions (Note: as a general anecdotal rule, attorney fee statutes/rules INCREASE litigation, not the opposite).

For more reading, check out these two similar ABA Journal articles: "Litigation Too Costly, E-Discovery a ‘Morass,’ Trial Lawyers Say" and "OK, Discovery’s a Problem, But What Can Be Done About It?"

Florida state law and federal law differ on several aspects of compelling arbitration. One example is proving waiver of the right to arbitrate. To prove waiver under federal law requires an inconsistent act plus prejudice. Meanwhile, Florida state law has a hair trigger standard where a (poorly defined) inconsistent act alone can amount to waiver.

Slightly less recognized is the difference between federal and Florida state law as it relates to a right to appeal an order on a motion to compel arbitration.

Here are the rules:

Florida law: Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) says that non-final orders which "determine... the entitlement of a party to arbitration" are immediately appealable. While, offhand, we don't recall a recent case discussing the breadth of the rule, an order either granting or denying a motion to compel arbitration can be immediately appealed.

Federal law: we look to the Federal Arbitration Act at 9 USC 16(a)(1)(A) which says that "an appeal may be taken from an order... denying an application under section 206 of this title to compel arbitration." The FAA goes on to say, at 9 USC 16(b): "Except as otherwise provided in section 1292 (b) of title 28, an appeal may not be taken from an interlocutory order— (1) granting a stay of any action under section 3 of this title;(2) directing arbitration to proceed under section 4 of this title; and(3) compelling arbitration under section 206 of this title." Thus, the federal rule only permits an immediate appeal if the trial court denies a motion to compel arbitration. There is no right of immediate appeal if arbitration is granted.

In contrasting the two, we see that Florida law is quick to find waiver of arbitration (prejudice alone) while it gives either party full access to appeal the outcome of a motion to compel arbitration. That actually gives the party opposing arbitration the benefit of the doubt by proving waiver or taking an appeal to dodge arbitration (so much for "arbitration is favored"). In federal court, on the other hand, it is hard to waive your right to arbitration and there is no room for the party opposing arbitration to appeal when the court orders arbitration. Thus, we find that parties seeking arbitration benefit from the federal rules whereas parties avoiding arbitration get lots of chances under Florida state law.

We pick up this thread from Kimberly M. Adams v. Monumental General Casualty Company, recently decided by the Eleventh Circuit. The underlying case involved the purchase of a truck and two arbitration clauses in both the sales contract and the insurance contract. The trial court granted arbitration and then modified the opinion, taking out any reference to the sales contract. Thus, the district court "was not deciding whether arbitration of Adam's complaint was required under the [sales] contract."

Adams appealed and the 11th Circuit found it had no jurisdiction under the FAA, 9 USC 16(b)(2) which governs the appealability of interlocutory orders regarding arbitration ("an appeal may not be taken from an interlocutory order... directing arbitration to proceed").

The 11th disagreed that the district court had "denied arbitration" under 9 USC 16(a)(1)(B). They held that the trial court had compelled arbitration without deciding whether arbitration was also available under the sales contract.

The holding of Adams in a nutshell: "When a district court compels arbitration of a dispute under one contract and is silent about whether another contract provides for arbitration of the same dispute, section 16(a)(1)(B) is not implicated."