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 57.105 fray with Anchor Towing, Inc. and Miguel De Grandy, P.A. v. Florida Department of Transportation and Sunshine Towing, Inc.

In that case, Sunshine's lawyer sent a "detailed letter" to opposing counsel demanding they withdraw certain objections and, if not, Sunrise threatened to file a motion under 57.105. The Opinion (Gersten, Cope and Suarez) did not indicate whether a draft of the Motion was attached to the letter but did state, "the letter that Sunrise's counsel sent... does not meet the mandatory notice requirements of section 57.105(4)." The court went on to point out that this is not the same as the statutorily-required motion which is required to be served on opposing counsel and later filed with the court.

Also of note, filing the motion with the court after the proceedings concluded does not comply with the statute. The order granting the motion was reversed.

For a good primer of Florida Statute 57.105, check out the 2006 Trial Advocate Quarterly article at www.FloridaLawCommentary.com (right column, under "articles").

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.

At this point, the case law fairly clearly indicates that it is a case-by-case analysis. In fact, in Jaylene, Inc. v. Moots, the Second DCA articulated a fairly clear standard. However, prior to Jaylene, the waters were muddied by a very poorly written opinion in McKibbin v. Alterra -- which the Second DCA has backed away from and marginalized to the point that it likely holds no precedential value.

In the event you need some background on the McKibbin-Jaylene history, see this prior post. The First District figured it out in the February 2009 opinion of Five Points v. Mallory. The Second District again tried to sweep up the mess a little in March in Carrington Place v. Estate of Milo.

In Sovereign Healthcare of Tampa, LLC a/k/a Bayshore Pointe Nursing & Rehab Center v. Estate of Florinda Huerta by and through Dennis Huerta, we see what appears to be the final gasp of the McKibbin debacle.

The Resident signed a durable power of attorney (DPOA or POA) in 2001 and then was admitted to the nursing home in 2006. The daughter-in-law had the POA and used that authority in signing the admission agreement, which contained an arbitration clause.

The Plaintiff argued that the POA document was not sufficiently broad and the trial court agreed that sufficiency of POA's to waive trial "had not yet been fully resolved by the court..." It cited McKibbin, which, as we've criticized before, gives no indication as to what language is enforceable or not. As evidenced by Jaylene, the Second DCA has figured it out too.

So, the Huerta Panel (Davis, Whatley and Kelly) dutifully again acknowledged that the McKibbin opinion, without reciting the POA language at issue, concluded that it was only examining that specific POA. In short, it was an opinion just for that case and was not precedent.

Instead, the test for trial courts is whether (a) the POA makes a specific grant of such authority (to waive trial or agree to arbitration or (b) unambiguously makes a broad, general grant of authority to the attorney in fact.

We view Huerta as a sign that the entire Second DCA may be moving in the direction of this test articulated above because there is consistency among Jaylene, Milo and now Huerta but little overlap in the Panel Members: Jaylene (Wallace, Kelly, Khouzam), Milo (Davis, Northcutt, and Villanti) and now Huerta (Davis, Whatley, and Kelly).

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.

In this case, there was a contract dispute between a hair salon and manager. In a termination letter, the owners wrote that depositing the last checks would release all claims. The checks were cashed but suit was filed. The owners won summary judgment relying upon accord and satisfaction. They also filed a Motion for Sanctions Under F.S. 57.105.

The way it was handled below was bungled so we'll simply focus on what the Fourth District wanted to happen:

1. Timely serve/file motion and prevail;
2. Trial court shall make (a) an express finding that the claim was frivolous AND (b) an express finding that the attorney was not acting in good faith;
3. Trial court's findings must be supported by competent substantive evidence and, therefore, there has to be a full evidentiary hearing on both issues (resulting in those express findings);
4. Florida Statute 57.105 does not have a mechanism to force the attorney to pay costs -- only fees. That does not stop a party from seeking fees as the prevailing party, just not out of opposing counsel.

An anesthesiologist failed to raise arbitration in a lawsuit but then piggy-backs when another party seeks arbitration. Unfortunately, the doctor had already participated in arbitration. Oh, and, months before, he had taken the position in a different case that the arbitration clause did not apply to him. Huh?

It appears the Fourth District (Damoorgian, Gross, and Farmer) did not want to spend much more time on the issue than necessary in their clean, but simple, two page May 6, 2009 opinion in John Sitarik, M.D. v. JFK Medical Center, Hospital Corporation of America (HCA, Inc.), Sheridan Healthcorp, Inc. et al.

The Opinion does not describe the underlying suit but simply says that the defendant, Dr. Sitarik, obtained an order granting arbitration from the now-deceased trial judge Winikoff. However, at the trial level, the doctor filed an Answer & Affirmative defenses, issued a subpoena, responded to discovery and never actually raised the issue of arbitration until another party did.

The Panel correctly picked up that the Raymond James v. Saldukas case holds that active participation waives arbitration. "Active participation" includes attacking the pleadings, which the Answer and Affirmative Defenses presumably did.

A separate dispute, involving similar parties, was appealed and decided in back in March, here.

For some background on waiver of arbitration, see this prior post and related links.

The First and Fourth Districts have handed down strong opinions this month on Florida personal jurisdiction, indicating that non-Floridians cannot be haled into court here if there sole minimum contacts involve (1) guaranteeing bank loans made here, (2) infrequent emails/phone calls into Florida, (3) schools having alumni groups in Florida, and (4) correspondence school/distance learning students in Florida.

In Ed Labry, Bill Benton and Kevin Adams v. Whitney National Bank, AB9G, LLC, Steven R. Bradley, Jon D. Laplante, and Brad Zeitlin, non-Florida guarantors of a defaulted Florida bank loan were not subject to personal jurisdiction since the guarantors lacked the sufficient minimum contacts with the state of Florida, despite it being a Florida contract.

In the companion cases of Diana Reiss, Ph.D. v. Ocean World, S.A. and The Trustees of Columbia University in New York City et al. v. Ocean World, S.A. Earth Island Institute, Emory University, et al., personal jurisdiction kept an environmental activist and a major university out of a Florida lawsuit over the sale of Japanese dolphins to a Dominican Republic amusement park.

In Reiss v. Ocean World, the appellant disputed personal jurisdiction because she was not a resident in Florida and did not do business in the State. The Plaintiffs tried to use emails and phone calls to people in Florida and involvement in Florida activist organizations as a basis for personal jurisdiction. The court held there was no tortious act which occurred within Florida; likewise, the communications into Florida were not tortious and therefore there was no jurisdiction.

In the second case, Columbia University v. Ocean World, the school objected to jurisdiction as well. The claim was that Columbia was subject to Florida jurisdiction because it owned property in Florida, had an alumni group in Florida, had "distance learning" students in Florida, and had filed lawsuits in Florida. Here too, the court held that the "minimum contacts" were not satisfied because the school's Florida actions were not connected to the plaintiff's cause of action.

For a refresher on the Florida Long Arm Statue (F.S. 48.193), in personam jurisdiction, and infamous cases like Venetian Salami, International Shoe, and Worldwide Volkswagen, feel free to take these three cases for a spin.

As a general rule, when an appellate court opinion contains few legal citations, that decision will likely not mean much to anyone other than the parties to the dispute.

But what about when an opinion has NO CITATIONS AT ALL? Rare, yes. Precedent setting? We doubt it. So let's dispose of this oddity. Time will tell as to its significance.

In Foxfire Properties, LLC and Sugar Loaf Environmental Holdings, LLC v. Foxfire Owners Association, Inc., the Second District (Fulmer, Northcutt, and Villanti) slept-walked through addressed varying interpretations of an arbitration clause.

Here's the deal: an HOA was next to a golf course. The golf course wanted to zone a vacant parcel to be a residential area and the HOA objected. They resolved their differences with a Covenant and Restriction which said (a) the golf course could cease to operate if new laws made it unfeasible or (b) if a panel of three arbitrators determined the continued operation of the golf course was unfeasible.

All was fine for a few years until the golf course changed hands and the new owners sought to shut down the golf course and terminate the Restriction by claiming new laws or regulations made operation unfeasible. About two years later, they switched tactics and said, pursuant to section (b), that arbitrators should decide.

Waiver was not addressed since (1) the trial court made no findings and (2) it appeared that litigation under section (a) and arbitration under section (b) could happen at the same time.

The trial court felt that (b), a decision by arbitrators, required that course to be actually operating at the time of arbitration; the appellate panel, however, did not see those explicit words or requirements and reversed.

A class action case involving plaintiff flight attendants suing tobacco companies for second-hand smoke exposure has resulted in an appellate decision which sets out the period for pre-judgment interest when a plaintiff serves a valid Proposal for Settlement.

In Lorillard Tobacco Company v. Lynn French, the plaintiff airline attendants served a low-value $2,676 Proposal for Settlement in 2002, which the defendant did not accept. Ultimately, she was awarded a half million dollars. The parties settled on the amount of attorney's fees and costs owed. It appears, at some point five years later in the case, the defendants fought the Proposal as not in good faith, but lost. There was no discussion in the opinion about the validity of the wording of the Proposal, which is unusual for appeals of Proposals.

The Third DCA (Gersten, Cortinas and Salter) held that the general rule is that prejudgment interest begins to accrue on the date the entitlement to attorney's fees is fixed through agreement, arbitration award or court determination. The Third District Panel opined that Rule 1.442 and Florida Statute 768.79 made it clear that entitlement to fees occurred when the following qualifying conditions were met: (1) written Proposal for Settlement and (2) in case of a plaintiff, the plaintiff recovers 125% of the offer. Hence, in this case, the qualifying conditions occurred in 2002 and prejudgment interest ran from that year.

For more information on Proposals for Settlements, see the 2008 article, "Building A Better Proposal for Settlement" at FloridaLawCommentary.com (right column, under Articles).

Thirty years ago, Florida courts addressed the question of "who to sue?" when a person is injured in an accident and then, while being treated, suffers further injury from medical negligence. Not much changed in that area of the law until long term care litigation arose in the 1990's.

The case of Villa Maria Nursing and Rehabilitation Center, Inc. v. South Broward Hospital District d/b/a Memorial Hospital West revives some of these issues. It also may provide some instruction on the interpretation of release language in "Stuart v. Hertz" situations.

Before we get to that April 2009 opinion, here's a brief primer:

Under the 1977 case of Stuart v. Hertz Corp., the personal injury plaintiff can sue the defendant driver for all injuries. The public policy concern was that a simple auto accident case should not be burdened with the complexities of a med mal case.

Three years later, in 1980, the Florida Supreme Court indicated that a separate cause of action for equitable subrogation was the preferred way to handle any claims between the defendant driver and health care provider. A detailed article on that issue is here.

Nursing home litigation brought back this "my-fault-then-yours" scenario since often a resident is allegedly injured at a nursing home and then may suffer further injuries at the subsequent hospital or facility.

In the 1999 plaintiff-friendly case of Beverly Enterprises-Florida, Inc. v. McVey, the Second DCA concluded that the nursing home could not list the subsequent hospital as a Fabre defendant because it was a "Stuart v. Hertz" subsequent, not joint, tortfeasor. Thus, the plaintiff could recover all of its damages from the nursing home alone. Despite the suggestion in this article, that McVey would turn into an important case, it never grew to any significant precedent (prior to the statute changes).

Five years later, in 2004, the Fifth District ruled in a decubitus ulcer case that damages were to be apportioned between the nursing home and the subsequent hospital under the theory of a continuing tort. That opinion, Jackson v. York Hannover Nursing Centers, did not mention the McVey case and there appears to be little law clarifying the distinctions between the two cases. Thus, plaintiff lawyers cite McVey while defense lawyers cite Jackson.

Back to the April 2009 Villa Maria v. Memorial West case. Again, the nursing home resident has a decubitus (sacral) ulcer and went from nursing home to hospital. The nursing home settled the case for $325k and looked to bring that "preferred" equitable subrogation claim against the hospital.

The trial court granted summary judgment in favor of the hospital but the appellate court revived the suit, claiming that it should have only been dismissed without prejudice so the facility could comply with the pre-suit note "condition precedent" requirements in Florida Statutes 768.28(6)(a).

Interestingly, the release between resident and facility said that it released the facility, hospital, and others for all damages resulting from the admission "including future developments thereof or in any way growing out of or connected with said transactions and/or incidents, including the subject sacral/buttock wound(s)."

The 4th DCA held that that damages allegations in the lawsuit and the release language sufficiently confirmed the reason why the facility made payment to the plaintiff AND that the release did, indeed, cover the hospital.

For SCOTUS watchers, when Scalia and Ginsburg agree on something, its probably rock solid. But then again, when CJ Roberts and Souter both dissent...

We're going to give the nod to the Scalia-authored majority in Arthur Andersen LLP v. Wayne Carlisle et al., the third arbitration-related opinion out of the U.S. Supreme Court this term. Each opinion has been pro-arbitration.

The question was whether non-signatories to an arbitration agreement could appeal, under the FAA, the denial of a Motion to Compel Arbitration/Motion to Stay Litigation. The federal courts had been split on the issue. Of note, the Eleventh (11th) Circuit had previously ruled in Becker v. Davis and Falcon Financial that non-parties did have standing to appeal. So that remains good law.

So let's take a look at the three provisions of the Federal Arbitration Act: Section 2 holds that written arbitration agreements are valid but for grounds under state law. Section 3 holds that a lawsuit should be stayed pending arbitration "under an agreement in writing." Section 16 says the movant may take an interlocutory appeal from an "order... refusing a stay of action."

The majority focuses on the "under an agreement" language to hold that any party moving for arbitration is entitled to a stay of litigation, regardless of whether the movant is a signatory or not.

Justice Scalia wrote that the jurisdiction over thee appeal must be focused upon the category of the order, not the strength of the grounds for reversal. Moreover, determining whether an appeal can be taken under Section 3 is "immeasurably more simple and less factbound" if any movant, signatory or not, can appeal. He points out that requiring only signatories to appeal would muddy the waters in cases where the agreement isn't signed.

The Souter/Roberts/Stevens dissent suggested that the "longstanding congressional policy limiting interlocutory appeals" should carry the day, finding that intermediate appeals were "extraordinary interruptions to the normal process of litigation." They found that third party beneficiary status to enforce a contract is "a weak premise" to allow an appeal. Procedure over substantive rights. The dissent likewise grasped for the same concept as the majority: they claimed that "signatory? yes-no" was the appropriate bright line rule.

In short, any movant can appeal the loss of a motion to compel arbitration under the FAA, regardless of signatory status.

By the way, in the event you want a list of "traditional" state contract law grounds for non-signatories to appeal, this Opinion offered: assumption, piercing the corporate veil, alter ego, incorporation by reference, third party beneficiary, waiver, and estoppel.