Florida Bar Annual Convention 2019: Developments in Business Law with Paige Greenlee

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Transcript

The Florida Bar Podcast

Florida Bar Annual Convention 2019: Developments in Business Litigation Law with Paige Greenlee

06/27/2019

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and legal practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Center. You are listening to Legal Talk Network.

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Laurence Colletti: Hello. Welcome to The Florida Bar Podcast, recorded from the 2019 Florida Bar Annual Convention in Boca Raton, Florida. This is Laurence Colletti and I’m the host for today’s show. I’m stepping in for the regular host Christine Bilbrey and Karla Eckardt but fear not I have a wonderful guest joining us fresh, fresh from the Florida Law Update. It’s Paige Greenlee, you’re presenting at the Business Law Update.

Welcome to the show.

Paige Greenlee: Thank you. Thank you for having me.

Laurence Colletti: Excellent. Well, I got a chance but we don’t often get to go to the sessions because we’re usually pinned around the table but not this morning. So I went in, I listened to what you had to say there’s a lot going on during this year and so just to carve that out, you covered some case law from June 2018 to May 2019.

But before we get to that, let’s know a little bit more about you, where do you work, what do you do?

Paige Greenlee: Sure. My name — well, obviously my name is Paige Greenlee, I work for myself now. I’m a veteran of big law but started my own firm, it’ll be five years in October that I’ve been on my own and I do commercial litigation. So this all this business law stuff is right up my alley.

Laurence Colletti: Let’s get to your business law update. So again, just by way of review, June 2018 through May 2019, case law updates and so, I think we should go into the attorneys fees and you had several cases, and I think this is kind of the meat of your presentation.

So let’s start with the first case, Goersch v. City of Satellite Beach.

Paige Greenlee: Yeah, this case addresses whether the safe harbor service of a Rule 57.105 Motion must strictly comply with Florida Rule of Judicial Administration 2.516. And the court ended up deciding that yes, you do have to serve it that way, you can’t serve it by mail, you can’t serve it by email, you can’t serve it by fax to satisfy the requirements of service in advance of filing that motion 30 days later if the offense of pleading is not withdrawn.

So that’s a significant issue, at least the Fifth Circuit has held that way. There is a split among circuits in Florida but better to be safe than sorry, if you’re serving that type of motion, serve it the right way follow the Rule of Judicial Administration.

Laurence Colletti: That’s great advice. All right, let’s move on to a Valencia Golf and Country Club Homeowners’ Association v. is that Community Res Services?

Paige Greenlee: Resource Services.

Laurence Colletti: Resource Services, okay.

Paige Greenlee: Yes, yes, and this I thought was a very interesting case and that I’m surprised that the defendants tried to file a motion for attorney’s fees here because in Florida there’s a general rule that when a plaintiff dismisses a case, the prevailing party is the party that had the case dismissed against them.

And so here, the parties entered into a settlement agreement and that required the plaintiff to dismiss the case, after they were done, the defendant kind of said oh got you, and filed a motion for prevailing party attorney’s fees. The court said no, no, no you both compromise to settle it, no one’s the prevailing party. Bye bye.

Laurence Colletti: All right Allen v. Nunez.

Paige Greenlee: This is a proposal for settlement, which is something that every lawyer cringes, I think when they start preparing them because courts are all over the place on what they enforce and whether they will enforce them but when you’re talking about them with your client, all your client here says I’m going to get my attorneys fees if I win on this proposal for settlement.

So in this case, the plaintiff served an identical proposal for settlement on two different defendants. It was a father and son, the father was the owner of the vehicle, the son was the driver of the vehicle, served the identical proposal for settlement on each of them and that proposals were not accepted by the defendants. The plaintiff prevailed at trial and then moved to enforce the proposal for settlement.

The defendants argued that it was ambiguous because they couldn’t understand whether one of them could settle the entire case by accepting the proposal for settlement. The Florida Supreme Court said that that was a disingenuous argument and enforced the proposal for settlement.

Laurence Colletti: So what was the bottom line?

Paige Greenlee: The bottom line is that you can serve proposals for settlement on two parties that way, as long as it’s clear and unambiguous, you’re good, you’re good to go.

Laurence Colletti: All right moving on. So we’re at Atlantic Civil, Inc. v. Swift, that’s not Taylor Swift right, I’m a big Swifty.

Paige Greenlee: It’s not Taylor Swift.

Laurence Colletti: Okay, just making sure.

Paige Greenlee: Much, much less interesting than a case involving Taylor Swift. This is kind of an opposite situation, there are two defendants in this case, only one proposal for settlement was served and it just apportioned the $50,000 settlement fee between two different defendants, said that each pay $25,000 and that would be in full and final settlement of all the claims.

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They moved to enforce the — plaintiff moved to enforce the proposal for settlement and the court said nope, this one’s not enforceable, it was too ambiguous. Neither side could make a decision about whether they could settle to get themselves out, but because of the way that the proposal is structured.

So be very careful on how you’re crafting these things.

Laurence Colletti: All right, and I think the last one we have here is Brunson v. Ashley.

Paige Greenlee: Yeah and I think this is another common-sense one. This is a recent case that said that when you don’t have a claim for punitive damages in your complaint, you don’t have to specifically address punitive damages in your proposal for settlement. The statute for proposals for settlement requires you to say whether it includes punitive damages or not, but the court held I believe that because there’s clearly no claim for punitive damages in the complaint, there was no reason to address it in the proposal for settlement.

Laurence Colletti: All right, we’re going to leave the attorney’s fees subject behind here. So things can get a lot more interesting now, so we’ve got quite a few cases that we had some colorful fact patterns here. So the first one, diamonds and cruise lines and this one was about inducement and unilateral mistake.

So what was the case that you highlighted in that example?

Paige Greenlee: It’s called DePrince v. Starboard Cruise Services and it’s a Third DCA case from 2018. In this case, the passenger on a cruise ship visited the jewelry shop and wanted to purchase the significant sized loose diamonds.

Laurence Colletti: How big this diamond was, was ridiculous so tell us how big?

Paige Greenlee: 15 to 20 carat loose diamond, why he wanted to make that purchase on a cruise ship is anyone’s guess but he was very specific –

Laurence Colletti: It’s probably because he could.

Paige Greenlee: Very specific as to the clarity and the cuts and he knew exactly what he wanted yet he went to a cruise ship instead of a diamond dealer to do this. So the ship didn’t have anything in their stock that would meet this criteria. So the store manager emailed the corporate office ultimately they get a quote back for two different loose diamonds with prices listed in each — next to each of those but because of the lack of experience of the shop in dealing with diamonds of that size, neither of the sales representatives realized that the price being quoted was a per carat price and not the entire price of this giant loose diamond.

So –

Laurence Colletti: This is a pretty big like disparity that like –

Paige Greenlee: Pretty big mistake.

Laurence Colletti: Yeah.

Paige Greenlee: Pretty big mistake. So against the advice of even a certified gemologist, the passenger here purchased a 20.64 carat diamond for the $235,000 quoted price. The $235,000 was of course per carat. So you can do the math on that one.

Shortly after the sale, the ship realized the error, notified the passenger and reversed the charges on the Amex, he then filed suit to enforce the contract and ultimately after a lot of procedural history, that’s not all that interesting, the court found that there was no need for there to be inducement is not an element of unilateral mistake.

So the fact that the passenger here didn’t appear to really do anything to cause them to sell this diamond at a ridiculous price did not prevent them from raising the defense of a unilateral mistake. The cruise ship won at the end of the day here and he didn’t get his diamond for a bargain.

Laurence Colletti: So no windfall?

Paige Greenlee: No windfall.

Laurence Colletti: Oh wow. All right well I guess, I guess you just don’t get a windfall, you don’t get a windfall.

Paige Greenlee: He’s going to pay – he is going to pay for that diamond.

Laurence Colletti: All right, next ups we’ve got some agency issues here and this is centers around a real estate deal at a tailgate party.

Paige Greenlee: Yeah and I thought this was very interesting. It’s Florida Power & Light Co. v. McRoberts, it’s out of the Fourth DCA. I thought this was interesting because after law school, you don’t really deal that much with a parent authority issues. It just doesn’t come up because people are usually very careful about –

Laurence Colletti: Though I remember is frolic and detour.

Paige Greenlee: Yeah, that’s usually the example you get in law school. This is a little different than that. This involves the tailgate party where we had a real estate broker who was approaching the senior project director of development at Florida Power & Light from all accounts from reading the case. The real estate broker just harassed this guy, the tailgate party for about 30 minutes while they’re hanging out presumably drinking beer outside of FSU Stadium, asked him about FPL’s process for purchasing property; of course expresses an interest in selling some land to FPL.

As they’re walking to the stadium, he tries to kind of seal the deal and says will you pay me a real reasonable real estate commission and he says oh sure. Yes, I’ll do that and the broker put a lot of emphasis on the fact that they shook hands on this deal. So it was literally they shook hands on the deal and not even written down, no terms written on the back of a napkin, no specific terms agreed to.

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For some reason probably because of the football game and perhaps some of the activities that were taking place in the parking lot, the real estate broker disclosed the location of the property to the FPL representatives, so he now knows where the property is that he might be interested in.

The broker proceeds to then ask for the FPL representative’s business card and cell phone number. He said, no, no, don’t call me at work, won’t give him his business card. Call this cell phone number, it ends up being the cell phone number of a third party. When the broker would call the third party that the FPL representative would return his calls after a while, but the broker then proceeded to call FPL multiple times until his calls went unreturned and he just let it go by the wayside.

He then learns FPL purchases the property. He doesn’t get any commission for it. He is not involved in it and he sues them for breach of contract and unjust enrichment. The Trial Court says, no, no, this was not in the ordinary course of business, everything that happened there made it clear. He didn’t have any apparent authority. This was outside of a football game. He wouldn’t give you his business card, he wouldn’t take your calls at the office, he told you not to call him at the office. So no apparent authority and no commission to you.

Laurence Colletti: So, I would question, when you were reading this off, why didn’t the Statute of Frauds kick in here?

Paige Greenlee: Well, it was an oral contract and I assumed it was side, I’m sorry that he sued within the appropriate amount of time, it was an oral contract, it wasn’t to purchase property, it was to enter into a joint venture so the property part of it wouldn’t have made it fall within the Statute of Frauds. I assume that he filed in the Statute of Limitations based upon an oral contract, because there was nothing written.

Every contract doesn’t have to be written, you can sue to enforce an oral contract.

Laurence Colletti: Excellent. See I just learned something there. So all right, this last case I want to ask you about, so this is about arbitration agreements through packaging.

Paige Greenlee: Yes.

Laurence Colletti: And this was interesting as well. So I guess some building materials and open up the building materials and surprise, you’re in an arbitration agreement so.

Paige Greenlee: Yes.

Laurence Colletti: Which case is this?

Paige Greenlee: This is Dye v. Tamko Building Products, and this is actually an Eleventh Circuit case, which is our — I mean our appellate court, our Federal Appellate court here in Florida, and the court that we appeal all of our cases to when you’ve run out of your Federal options in Florida.

So this was specifically applying Florida Law, the court found that homeowners were bound by the arbitration provision that was included in wrapping around shingles that were delivered to a home that they were building that were opened by the roofing contractors, presumably the homeowners never saw them or if they did, they never paid any attention to them, but there was in very big bold language it said caution do not open. By opening you’re agreeing to these terms, mandatory binding arbitration.

So when the homeowners then had an issue with the shingles on the house, they sued the manufacturer, the manufacturer moved to stay in compel arbitration. Eleventh Circuit said you’ve got to arbitrate. Those roofers had the authority, by you hiring them they had the authority to bind you and they accepted those purchased terms and your second arbitration, you can’t litigate in court.

Laurence Colletti: Wow, well, I mean I think an A for effort there?

Paige Greenlee: Yeah, yeah, exactly, a good job, but that’s usually you don’t see that. I mean but it was big bold writing but homeowners probably never saw it, didn’t know they were agreeing to that.

Laurence Colletti: I hope Amazon doesn’t think about doing that I can’t imagine like get the wrong product out of arbitration, what, what is this?

Paige Greenlee: Yes.

Laurence Colletti: All right, well, it looks like we’ve reached the end of our program. I want to thank our guest Paige here for joining us today, and Paige, if our listeners, they have questions or want to follow up a little bit more about what you talked about today, how can they find you?

Paige Greenlee: Absolutely, I can be reached at [email protected] and I am also on Twitter @PaigeGreenlee and I am Facebook, just again Paige Greenlee, and my website is greenleelawtampa.com.

Laurence Colletti: All right. Well that’s all the time we have for this episode of The Florida Bar podcast. Thank you to our listeners for tuning in.

If you like what you heard, please rate and review us in Apple Podcasts, Google Podcasts, Spotify or best yet, your favorite podcasting app. I am Laurence Colletti, until next time, thank you for listening.

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