ERROR TO AWARD ATTORNEY’S FEES WITHOUT WRITTEN FINDINGS AS TO REASONABLE NUMBER OF HOURS EXPENDED
Palm Beach Polo v. TJ Palm Beach Associates, 34 Fla. L. Weekly D2436 (Fla. 4th DCA November 25, 2009).
NO ERROR IN DISMISSING COMPLAINT FOR FAILURE TO STATE CAUSE OF ACTION EVEN THOUGH COURT PREVIOUSLY GRANTED MOTION FOR DEFAULT
Lincks v. Keenan, 34 Fla. L. Weekly D2436 (Fla. 4th DCA November 25, 2009):
The court dismissed the plaintiff’s fifth amended complaint, claiming that the court should not have dismissed it as to the defendant, because earlier it had granted a default against her. Still, the court dismissed the complaint for failure to state a cause of action.
Because the entry of a default constitutes an admission only to the well-pleaded factual allegations of the complaint, a complaint which fails to state a cause of action cannot be the basis of a judgment against the defendant. Thus, the court did not err in dismissing the complaint against the defendant for failure to state a cause of action, despite the earlier default.
FORUM SELECTION CLAUSE IN CRUISE TICKET REQUIRING CASE BE FILED IN UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT IS ENFORCEABLE
Leslie v. Carnival Corporation, 34 Fla. L. Weekly D2448 (Fla. 3rd DCA November 25, 2009):
On a motion for rehearing en banc, the court advised that it was evenly divided on whether to affirm the circuit court’s ruling. Because the breakdown was even, the effect of the vote was that the panel opinion stands, and forum selection clauses are still considered prima facie valid and enforceable under general maritime law, allowing Carnival to insist that cases be tried in the United States District Court for the Southern District based on the ticket.
The dissenting judges found that the federal court portion of the forum clause at issue was unenforceable because it operated to deprive victims of their constitutional rights to a jury trial without notice and without consent. Because there is no federal jurisdiction on the basis of diversity of citizenship, the dissent said the provision constitutionally is infirm and unenforceable.
THE THIRD DISTRICT CERTIFIED THE QUESTION TO THE SUPREME COURT IN THE NEXT CASE
Spivey-Ferguson v. Carnival Corporation, 34 Fla. L. Weekly D2457 (Fla. 3rd DCA November 25, 2009):
The Third District in this case certified the following question to the Florida Supreme Court:
IS CARNIVAL’S FORUM SELECTION ENFORCEABLE IN CIRCUMSTANCES WHERE, BECAUSE OF THE JURISDICTIONAL LIMITATIONS OF FEDERAL COURTS, THE CLAUSE OPERATES TO DENY CERTAIN PLAINTIFFS, INCLUDING ALL FLORIDA CITIZENS, A RIGHT TO A JURY TRIAL IN FLORIDA WITHOUT NOTICE AND WITHOUT CONSENT TO WAIVING THIS RIGHT AS GUARANTEED UNDER ARTICLE I, SECTION 22 OF THE FLORIDA CONSTITUTION?
JUDGE HAD NO AUTHORITY TO ENTER CONTEMPT ORDER AFTER ISSUING ORDER TO RECUSE HIMSELF – EXCEPTION TO DISQUALIFICATION RULE APPLIES ONLY WHEN COURT PERFORMS MINISTERIAL ACT OF SIMPLY REDUCING A WRITTEN ORAL RULING TO WRITING
Plaza v. Plaza, 34 Fla. L. Weekly D2458 (Fla. 3rd DCA November 25, 2009):
As a general rule, once an order disqualifying a judge is entered, the judge is prohibited from any further participation in the case. The exception to the rule is where a trial judge orally announces a ruling, and subsequently enters an order of recusal, and thereafter simply performs the ministerial act of entering a written order or judgment to “reflect” the prior oral ruling.
If the ruling is anything more than ministerial though, the judge may not make it.
COURT REVERSED DISMISSAL OF PLAINTIFF’S COMPLAINT FINDING PLAINTIFF ALLEGED A PROPER DUTY AGAINST THE DEFENDANT
Herndon v. Shands Teaching Hospital, 34 Fla. L. Weekly D2470 (Fla. 1st DCA November 30, 2009):
Plaintiffs alleged that a surgical nurse employed by the hospital murdered the decedent with an injection of hazardous controlled drugs. Plaintiffs alleged that the hospital had a legal duty to the decedent, and breached it by its negligent hiring and supervision of this nurse (based on a history of stealing controlled substances that the hospital would have known about had it done a competent background check). Plaintiffs also alleged that the hospital should have been mindful that controlled substances had been taken from it in the past while he worked there. This nurse had apparently become infatuated with the decedent, and actually murdered her with a cocktail of controlled substances he injected into her when he found out she was engaged.
On these alleged facts, even though the nurse had taken the Fifth Amendment, the court found that this death was a foreseeable consequence of the hospital’s failure to use reasonable care in hiring and supervision as alleged. The court concluded that such facts and allegations were sufficient to establish a duty, and it was error to dismiss the complaint.
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