3d DCA Watch -- Dark and Stormy Edition.

Here's hoping the Resplendent Ones have added a little Gosling's Black Seal -- pre-swill, of course -- to their coffee this morning as it must feel especially dark and stormy inside the bunker today.

So let's cheer up the concrete denizens and take a look at what they've been up to this week:

Del Monte v. Net Results:

Bye-bye $15.7 million dollar verdict -- that whole pesky "damages" part of the trial can be very tricky:
We affirm the jury’s and trial court’s determinations that Del Monte breached the parties’ consulting contract, but we reverse the jury’s $10,000,000 consequential damages award and the prejudgment interest and attorney’s fees and costs subsequently added by the trial court. This is a business damages case in which the computation of Net Results’ “benefit of the bargain” losses requires grade-school arithmetic rather than a “damages model” long on assumptions and short on facts. The jury’s award is neither reasonably certain nor supported by substantial competent evidence.
 Question to plaintiffs -- you went with the owner of the business as your damages expert?

Judge Salter gives us a nice refresher on basic contract damages in FL:
Florida law and the Restatement (Second) of Contracts10 are aligned regarding the remedies available following a party’s repudiation of the contract and prevention of performance by the non-breaching party. The non-breaching party, here Net Results, may elect between reliance damages (those costs and expenses of preparing to perform, the recovery of which will place the recipient in the position it occupied before entering into the contract) or lost profits (the benefit of the bargain or “expectation interest”). Pathway Fin. v. Miami Int’l Realty Co., 588 So. 2d 1000, 1005 (Fla. 3d DCA 1991). Having elected in this instance to claim lost profits, Net Results can recover only those prospective profits “which would have been possible only if the contract would have been fully performed by the [non-breaching party].” Id.
 Incarnacion v. Thomas:

Judge Lagoa thinks Judge Bailey went a little to far in sanctioning a party for her lawyer's failure to show at a CMC:
While a trial court’s decision to impose sanctions is discretionary, that discretion is not absolute. The imposition of sanctions requires wrongdoing by the party being sanctioned, and the sanction must be commensurate with the offense. See Mercer v. Raine, 443 So. 2d 944 (Fla. 1983); Cossio v. Arrondo, 53 So. 3d 1141 (Fla. 3d DCA 2011); Taylor v. Mazda Motor of Am., Inc., 934 So. 2d 518 (Fla. 3d DCA 2005).

Here, dismissal of Incarnacion’s action for her counsel’s failure to follow the trial court’s pre-trial order constitutes an abuse of discretion. While it is appropriate to strike a party’s pleading “where the offending conduct is flagrant, willful or persistent,” evidence must exist to justify this severest of sanctions. Cossio, 53 So. 3d at 1144 (quoting Kamhi v. Waterview Towers Condo. Ass’n, 793 So. 2d 1033, 1036 (Fla. 4th DCA 2001)). “Absent evidence of a willful failure to comply or extensive prejudice to the opposition, however, the granting of such an order constitutes an abuse of discretion.” Id. The record does not show that Incarnacion was in any manner responsible for her attorney’s non-compliance.
LatAm v. Holland & Knight:

Litigation privilege serves as absolute bar to abuse of process action (but you knew that already).

 Phillips v. Centennial Bank:

Judge Ramirez, dissenting, is not too happy with the bank's counsel or with Monroe County Circuit Judge Taylor:
I dissent because I cannot condone the unprofessional and unethical means used by the bank’s counsel, with the trial court’s complicity, to obtain an amended final judgment in this case. Counsel for Centennial Bank admitted at oral argument that the amended final judgment, which more than doubled the amount of the deficiency judgment, was obtained after an ex parte communication with the judge’s chambers. Either the judge or her staff then advised counsel on how to proceed. Not only was it improper for the trial court to give legal advice, but the advice was wrong—directing counsel to send a letter with a proposed amended final judgment, rather than to file a motion seeking appropriate relief. This was then followed by another ex parte communication—a letter from the bank’s counsel to the judge, that then resulted in a new final judgment two and half times larger than the previous final judgment. The bank did not even send a copy of the letter to the appellant. Incredibly, the majority of this panel is willing to condone and reward such behavior.
Ouch -- better reverse the Goslings to coffee ratio!

But the judge is not done: 
In my view, to affirm what happened here requires that we turn a blind eye to the Florida Rules of Civil Procedure, the Florida Bar Rules of Professional Conduct, and the Code of Judicial Conduct, to say nothing of the Constitutions of the United States and the State of Florida.
Ok, but no traffic safety rules were violated, so it's not all bad.


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