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). I very much appreciate it. Glad to see so many familiar names on the list as well.

The entire list is here.

The Florida Arbitration Code contains provision F.S. 682.20(1)(c) which states that an appeal may be taken from an order confirming or denying confirmation of an award. So is an Order on Motion to Confirm/Deny Arbitration Award immediately appealable?

No, says the Second, Third, and Fourth District Courts of Appeal. Last year, the Second DCA said so in John Allen Parvin v. Valhalla Properties on Sand Key, LLC et.al.

The Third DCA made the same ruling recently in Infolink Group, Inc. v. James Christopher Kurzweg (Wells, Shepherd, Suarez). In that case, the trial court entered an order confirming the AAA award (should you care, one of the parties posted that award here). An appeal was taken but the appellate court found it had no authority?

What's the problem? According to Article V, Section 4(b)(1) of the Florida Constitution, the Supreme Court decides the rules as to when the intermediate appellate courts have jurisdiction. In the Arbitration Code, that "rule" wasn't made or agreed to by the court -- it's a creature of the legislature. Thus, the courts have been consistently finding it an unauthorized rule. It is readily curable -- the parties just need to get the order and judgment, then take the appeal.

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. Since nothing ever disappears on the Internet, we might as well address it head on.

About a year ago, on July 4, 2008, we castigated an Illinois court for its decision in Estate of Joyce Gott v. SSC Odin Operating Company d/b/a Odin Healthcare Center. Our hearts clearly went out to the lawyer who we felt had been mistreated in the opinion which emphasized that points were waived or wrong. We even blasted the court for giving issues short treatment or none at all.

But our colleague at the Nursing Homes Abuse Blog may have a better perspective. First, he is an Illinois lawyer and, after all, this was an Illinois case. Second, he picked up on what practitioners there are likely concerned about -- a state court holding that an anti-ADR statute could be used to bar arbitration under the FAA. Since we saw that he re-examined the year-old opinion, we figured we might as well. The case even discussed, upon our re-review, the enforceability of statutes which bar arbitration and jury trial waivers since it does not single out arbitration alone.

Florida doesn't have an anti-arbitration statute but there have been attempts to pass such legislation. There may be a legislative shift in the future. If that comes about, we may need to re-visit how other states, like Illinois, have applied these statutes to FAA-invoking arbitration clauses. This case did not make it to the U.S. Supreme Court but there will likely be a anti-arbitration-state-statute-versus-the-FAA case in the near future.

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.

The plaintiff claims that she entered into a contract with the defendant whereby the defendant would negotiate with the plaintiff's unsecured creditors to lower her debt and monthly payment. Something apparently went wrong and the plaintiff both filed for bankruptcy and sued the defendant. Of note, one of her claims was that the defendant violated the Credit Repair Organization Act, 15 U.S.C. 1679 et al. The Plaintiff claimed that the CROA barred arbitration. It appears she was wrong.

There was some initial squabbling over who-signed-what until the defendant appeared with an audio recording of the phone conversation and a completed internet form.

As a backdrop, arbitration is generally favored and statutory claims still fall under that rubrick barring Congress evincing an intention to disallow waiver of judicial remedies. Step one, the CROA doesn't mention arbitration or that it is barred. Step two, while the CROA says that statutory rights can be enforced in court, the 11th Circuit concluded that is not exclusive -- to wit, the Securities Exchange Act of 1934 also gives access to judicial remedies/forums but those claims are arbitrated all of the time under FINRA. Step three, the proposed arbitration forum will provide all substantive rights under CROA.

The arbitration clause appears solid, although we prefer the "arising from or relating to" clause, so its worth repeating here:

"If there is any dispute between the parties arising out of this agreement, the parties agree to submit the dispute to binding arbitration under the auspices of the American Arbitration Association (AAA). If such arbitration is held under the auspices of any other organization,, the arbitration will be held in accord with AAA rules to the extent possible. Binding arbitration means that both parties give up their right to a trial by jury and to appeal except for a narrow range of issues that may be appeared under Texas law. Discovery may be limited by the arbitrator."

We note, as advanced before, that the clause regarding arbitrating "under" or "in accordance with" the AAA rules (or whatever forum you choose) is a good idea.

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). In this first party contract dispute, section 6.4 of the contract was entitled, "Procedures for Indemnity Claims," and was the only place where the contract had an arbitration clause. Again, the subject case was a first party, not indemnity, claim.

The Panel interpreted the contract as requiring arbitration only when there was an indemnity claim. Little case law was cited; this was a custom-tailored question of interpreting rights under the contract between the parties.

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. Here, however, we are interpreting that the omission was intentional.

In this case, we are not given the fact pattern nor the Proposal for Settlement language. Instead, all we know is party A (Harris) was denied attorney's fees on its Proposal to party B (Punto Azul or "Blue Dot"). Azul had convinced the trial court that there was some ambiguity in the Proposal which warranted denial under Rule of Civil Procedure 1.442(c)(3) and/or Florida Statute 768.79.

The Third DCA confirmed that the rule does not require a settlement proposal to cover (a) all claims between all parties or (b) settle all claims between the parties to the proposal. Citing cases from other Districts -- likely intentionally to create some shared precedent -- the Panel concluded that, "courts are urged to use reason and common sense and interpret the offer as a whole to avoid unreasonable results."

Given the historically high failure rate of Proposals when the issue goes on appeal -- typically due to tricky technical issues -- this may be the Third District's way of signaling a more practical, less tricky interpretation method even though the rule/statute is narrowly construed.