JOINT PROPOSALS FOR SETTLEMENT CONDITIONED ON MUTUAL ACCEPTANCE ARE INVALID AND UNENFORCEABLE BECAUSE THEY PREVENT AN INDEPENDENT EVALUATION BY THE OFFEREE

Attorneys’ Title Insurance Fund v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010):

The defendant served a proposal for settlement offering payment of $12,500.00 to each party in full settlement of a case involving a property dispute.  The offer was conditioned upon being accepted by both offerees.

Following Second District precedent, the supreme court ruled the offer was invalid and unenforceable, because it was conditioned in such a way that neither offeree could independently evaluate or settle his or her respective claim by accepting the proposal.  The conditional nature of the offer divested each party of independent control of the decision to settle. 

The three dissenting judges found that the plain language of Rule 1.442 allows offers of settlement to be conditioned upon a joint acceptance, and therefore ruled the proposal should have been enforceable.

TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING PLAINTIFF’S MOTION FOR NEW TRIAL AS TO TWO DEFENDANTS AND GRANTING IT AS TO A THIRD

Pena v. Vectour of Florida, 35 Fla. L. Weekly D677 (Fla. 1^st DCA March 25, 2010):

Plaintiff was a passenger on a bus that was rear ended.  She sued the owner and driver of the bus, as well as the driver who rear ended her.  The jury found no negligence on the part of any of the defendants, and plaintiff moved for a new trial based on the verdict being against the manifest weight of the evidence.  The trial judge granted the motion as to the rear-ending driver, but denied it as to the bus driver and bus owner.

The court explained that the trial court determines whether a jury’s verdict is supported by the manifest weight of the evidence, and the appellate court is limited to the question of whether the lower court abused its discretion in denying a new trial.  In reaching that conclusion the evidence must be clear and obvious and not conflicting. 

Here, the jury weighed evidence and concluded that the bus driver and company were not negligent.  The court observed that the plaintiff simply disagreed with the trial court’s order and was seeking a more favorable outcome.  The court admonished that it is one “of review,” and not simply another forum “to which the dissatisfied litigant may submit his or her list of grievances in hopes of a more favorable outcome.” 

TRIAL COURT ERRED IN FAILING TO DETERMINE WHETHER STATE’S PURPORTED RACE NEUTRAL REASONS FOR STRIKING TWO JURORS WERE GENUINE OR PRETEXTUAL – NEW TRIAL REQUIRED

Bellamy v. Crosby, 35 Fla. L. Weekly D680 (Fla. 1^st DCA March 25, 2010):

While the trial court found that the state had race neutral reasons for striking certain jurors, the court’s failure to engage in a “genuineness” determination was erroneous.  A court may not simply determine that an articulated reason is “race neutral,” without doing an inquiry into the genuineness of the reason. 

COURT SUA SPONTE AWARDS §57.105 FEES TO SANCTION APPELLANT FOR FILING A MOTION FOR REHEARING AND REHEARNG EN BANC ON A PCA

Unifirst Corp. v. City of Jacksonville, 35 Fla. L. Weekly D689 (Fla. March 25, 2010):

After the appellant filed motions for rehearing, clarification, written opinion and rehearing en banc, the appellee filed a motion for §57.105 fees, acknowledging that it had to do so early (in less than 21 days because the appellate rules required a response in ten).  Even though the motion was filed improperly, the appellate court on its own initiative awarded attorney’s fees. 

The court successfully made its point that a motion for rehearing is not meant to re-argue the merits of a court’s order.  It cited a case stating that it is not an open invitation for an unhappy litigant or attorney to re-argue the same points previously presented.  It is also not designed to address issues already addressed in briefs and at oral argument like was the case here. 

One rather troubling aspect of the opinion, was the court’s acknowledgment that appellant requested a written opinion because it believed that the PCA conflicted with an opinion by another district court.  Rejecting that argument (and in turn, the rule which allows litigants to file such motions), the court stated “it is meritless to argue that an opinion which says nothing more than ‘affirmed’ conflicts with a written opinion issued by another district court.”

I would imagine this decision will have chilling effect on the filing of motions for rehearing and even on those seeking a written opinion (designed to allow ultimate supreme court review based on a conflict).  While it may very well be a reaction to the lack of funding the courts are receiving, and their overloaded dockets, it still will chill legitimate motions.

TRIAL COURT ABUSED DISCRETION IN DISMISSING COMPLAINT FOR FAILURE TO COMPLY WITH ORDERS COMPELLING DISCOVERY WITHOUT MAKING THE REQUISITE FINDINGS OF FACT PURSUANT TO KOZEL V. OSTENDORF

Sanders v. Gussin, 35 Fla. L. Weekly D693 (Fla. 5^th DCA March 26, 2010).

*Available to handle appellate and trial support matters for attorneys throughout the state.

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