Florida Case Law Update

Florida Case Law Update


The cases referenced in this month’s Florida Case Law Update all deal with the importance of details.


WCI Communities, LLC v. Christine Sheridan , 43 Fla. L. Weekly D854b

Forum Selection Clause in Residential Purchase Agreement Held Mandatory Based on Syntax

Plaintiff, Sheridan, entered a contract with WCI Communities (“WCI”) for the purchase of a newly constructed single-family home.  The contract contained a venue clause which stated:

VENUE: Purchaser and Seller agree that the venue for resolution of any dispute regarding this Contract lies within Collier County, Florida

Sheridan filed a multi-count complaint which included a breach of contract action against WCI in Broward County, Florida.  Because the case was not file din Collier County, WCI moved to transfer or dismiss the complaint based on the venue clause.  A venue (or forum) selection clause is a contractual agreement which designates the court and location where the parties would like to have their legal dispute decided.  Venue selection clauses break down into two types, permissive and mandatory.  A permissible forum selection clause merely represents consent to jurisdiction. R.S.B. Ventures, Inc. v. Berlowitz, 201 So. 3d 719 (Fla. 4th DCA 2016).  However, a mandatory forum selection clause contains exclusive language which requires the litigation be brought in that particular forum.  Id.

The trial court denied WCI’s motion, ruling, “the venue clause lacked exclusivity,” and “the clause is permissive, and not mandatory.”  On appeal, the Fourth District Court relied on prior decisions where it held language which was contained in the WCI contract rendered a forum selection clause mandatory.  See, e.g., Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So. 2d 827 (Fla. 4th DCA 2004).

In explaining its analysis, the Court stated in reaching its decision it focused on the word “the” in relation to the word “venue.”  Specifically, the use of the definitive article “the,” when conjoined with the noun “venue,” (“the venue”) in a forum selection clause indicates exclusivity consistent with mandatory forum selection clauses because the modification refers to only one, to the exclusion of all others.  Therefore, in reversing the trial court’s decision, the Fourth District Court of Appeal looked to the details in the grammatic syntax of the venue clause to determine its mandatory application to the Plaintiff’s claim.


Arvin Peltz v. Trust Hospitality International, LLC et al, 43 Fla. L. Weekly D778a

Third District reverses an award of awarding attorney’s fees to Defendants because the Defendants joint proposal for settlement served on Plaintiff did not include the necessary details regarding apportionment of liability between the two offerors as required by Florida Rule of Civil Procedure 1.442(c)(3). Defendants’ Joint Settlement Offer Improperly Worded Requiring Reversal of Trial Court Order Awarding Attorney’s Fees Following Summary Judgment

Plaintiff sued three Defendants for approximately $94,000 in legal fees for services performed by Plaintiff.  During the course of the litigation, two of the Defendants served Plaintiff with a single, joint proposal for settlement pursuant to rule 1.442 and section 768.69 of the Florida Statutes.  The proposal offered to pay Plaintiff $10,001 in full settlement of Plaintiff’s claims against the two Defendants.  The proposal did not include details regarding the amount of the proposal attributable to each offeror.  Plaintiff rejected the proposal.  The trial court ultimately entered a final summary judgment in favor of the Defendants, and Defendants then sought to recover their attorney’s fees against Plaintiff based on their proposal for settlement.  The trial court entered the judgment and awarded fees and costs in the amount of $52,760.

Section 768.79 of the Florida Statues provides the substantive basis for the recovery of attorney’s fees as a sanction for one party’s rejection of another party’s settlement proposal.  Rule 1.442 provides the procedural framework to implement the statute’s substantive requirements.  See Kuhadja v. Borden Dairy Co. of Ala., LLC, 202 So. 3d 391, 395 (Fla. 2016).  Rule 1.442 requires all joint proposals include details stating the amount offered in terms attributable to each offeror, and Rule 1.442 implements section 768.79’s requirement all settlement offers name the party making it and the party to whom it is being made.

On appeal the Plaintiff argued the Defendants’ joint proposal was invalid, and therefore unenforceable, because the proposal did not include details regarding the apportionment of the $10,001 settlement offer between the two Defendants.  The Defendants’ argued  exceptions[1] to the apportionment rule of 1.442 applied, and therefore there was no requirement to state the amount in terms attributable to each offeror.

The Third District Court of Appeal recognized because the fee-shifting provisions of section 768.79 and rule 1.442 are in derogation of the common law rule each party pay its own fees, the statue and rule are strictly construed, and therefore a proposal for settlement not strictly conforming to all details of rule 1.442’s apportionment requirement is unenforceable.  The appellate court was not persuaded by Defendants’ argument. It found the proposal unenforceable, and reversed the trial court’s award of attorney fees. J.


Competitive Softball Promotions, Inc. v. Yasser Ayub, 43 Fla. L. Weekly D883a

Specific details about where and how a fight occurred resulting in Plaintiff’s injury, determined Appellate Court’s decision to reverse a finding of Defendant’s liability.

Plaintiff, Ayub, was a member of a team participating in a softball tournament run by Competitive Softball Promotions (“CSP”) at a public park owned by the County.  CSP paid the County for the right to use several softball fields at the park, but there were common areas open to the public outside of the rented fields and dugouts.  During a game on the rented fields in the softball tournament, Ayub’s team was involved in a heated altercation with another team, which resulted in both teams being disqualified.  Later that day, a fight broken out between members of the two teams in a common area of the park, outside of the rented softball fields and dugouts.  Ayub was injured during this fight.

Ayub filed a premises liability cause of action against CSP, alleging CSP had a duty to keep its business invitees safe and CSP breached this duty by failing to provide adequate security during the softball tournament.  At trial CSP argued it had no duty to provide security in the common area of the public park where the fight occurred because CSP did not have any control over that area.  After hearing the arguments and the evidence at trial a jury returned a verdict in favor of Ayub in the amount of $319,914.71. CSP filed a renewed motion for directed verdict and new trial, arguing Ayub failed to establish CSP controlled the premises where Ayub was injured, and thus CSP owned no legal duty to Ayub.  The trial court denied the motion, and an appeal followed.

The legal duty to protect invitees from injuries caused by third parties is tied to the defendant’s control over the premises where the injury occurred.  Brown v. Suncharm Ranch, Inc. 748 So. 2d 1077 (Fla. 5th DCA 1999).  Therefore, generally, if the plaintiff cannot demonstrate the defendant controlled the premises where the plaintiff was injured, then the defendant cannot be liable for failing to protect the plaintiff from third-party misconduct. Publix Super Markets, Inc. v. Jeffrey, 650 So. 2d 122 (Fla. 3d DCA 1995).

Control over the premises is demonstrated where the defendant party (be it the owner, an agent, or a lessee of the property) is shown to have the right to control access to the property.  See Brown, 748 So. 2d at 1078.  The details in the evidence presented in this case suggested although CSP exercised control over the field and dugout area where the tournament took place, it did not exercise any control over the common area where Ayub was injured.  Although Ayub presented evidence CSP used the common areas of the public park to collect fees from the members of the softball teams and posted tournament results in the common area, the Court determined limited use of a common area does not demonstrate the type of control necessary to give rise to a duty to provide adequate security against a third party.  See Publix Super Markets, Inc. 650 So. 2d at 125.

Ayub also argued CSP had a duty to secure the area where the fight took place because it was foreseeable there could be a fight outside of the premises of the softball fields which CSP did control.  A duty can arise where the defendant’s conduct creates conditions that cause injuries to invitees that occur beyond the limits of the premises within the defendant’s control, and in those cases the defendant’s duty extends to the foreseeable zone of risk that the defendant’s conduct created. See Almarante v. Art. Ins. Of Fort Lauderdale, Inc., 921 So. 2d 703 (Fla. 4th DCA 2006).  However, in this case, the evidence did not suggest CSP created any conditions that led to Ayub’s injuries, and therefore CSP did not have a duty to secure the common area where the fight occurred.

Therefore, the Third District Court of Appeal found there was insufficient evidence to sustain a verdict against CSP, and the trial court erred in denying CSP’s motion for directed verdict. The case was remanded with instructions to enter a directed verdict in CSP’s favor.


[1] Rule 1.442 does contain an exception to the apportionment requirement in situations where the proposal is made by, or served on, a party that is alleged to be solely vicariously, constructive, derivatively or technically liable, whether by operation of law or by contract.

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