Donna Greenspan Solomon, Esq. Named Again as Florida Super Lawyer

Donna Greenspan Solomon, Esq. has been selected to the 2017 Florida Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines, and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices without expanding their overhead. Donna is one of only three attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

Foreclosure Plaintiff Must Have Standing to Enforce the Note, as Opposed to the Mortgage, at the Inception of Proceeding

In Wells Fargo Bank, N.A. v. Russell, 3D15-593 & 3D15-305 (Fla. 3rd DCA July 6, 2016), the Third District Court of Appeal reversed the trial court’s final summary judgment in favor of the mortgagors/appellees.  The final summary judgment had been granted based on an affirmative defense that Wells Fargo lacked standing to enforce the note and mortgage when it filed the initial complaint.

In Russell, a copy of the note, with an undated endorsement in blank by the original lender, was attached to the complaint.  The trial court found that Wells Fargo lacked standing when it filed suit, however, because an amended complaint showed an assignment of the mortgage to Wells Fargo almost four years after the complaint was filed.

According to the Third District, the mortgagors/appellees “apparently assume[d] that the recordation of the assignment of mortgage to Wells Fargo in 2011 must mean that the note was held by the assignor (rather than by Wells Fargo) prior to that time, but the pleadings and exhibits relied upon by the [mortgagors/appellees] themselves concede the contrary, and the original promissory note endorsed by the original noteholder was filed well before the assignment of mortgage.”  The Third District noted that case law focuses on standing to enforce the note, as opposed to the mortgage, because “the mortgage generally passes as an incident to the debt.”

The Third District referred in a footnote to the Legislature’s codification of the requirements for establishing possession of the promissory note in residential foreclosure cases.  See § 702.015, Fla. Stat. (2013).  The statute applies to cases filed on or after July 1, 2013.  In 2014, the Florida Supreme Court adopted rule 1.115 of the Florida Rules of Civil Procedure to give effect to section 702.015.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as a freelance business litigator for those wishing to expand the bench strength of their practices without expanding their overhead. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

For Arbitration Waiver to Be Unconscionable and Unenforceable, It Must Show at Least Modicum of Both Procedural and Substantive Unconscionability

In MuniCommerce, LLC v. Navidor, Ltd. (Sic), 184 So. 3d 635 (Fla. 4th DCA 2016), the Fourth District Court of Appeal found that the trial court failed to apply the plain language of an independent sales agent agreement in compelling mediation and arbitration between a company and its agent.  The agreement required mediation and arbitration except where the agreement was terminated based on the company’s good faith determination that the sales agent’s conduct constituted unsound business practices.  The agent argued that this waiver of mediation and arbitration based on the company’s unilateral determination of the agent’s conduct was unconscionable and unenforceable, and the trial court agreed.

In reversing, the Fourth District noted that for a waiver to be unconscionable, the waiver must show at least a modicum of both procedural and substantive unconscionability.  Here, the waiver did not allow the company to terminate for any reason to unilaterally avoid mediation and arbitration.  Further, the waiver was not so “outrageously unfair” as to be substantively unconscionable.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices without expanding their overhead. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

Glasswall, LLC v. Monadnock Const., Inc.

In Glasswall, LLC v. Monadnock Const., Inc., 187 So. 3d 248 (Fla. 3d DCA 2016), the Third District Court of Appeal held that the arbitrator, not the court, will decide the issue of arbitrability where the arbitration agreement includes “clear and unmistakable” evidence that the parties intended to submit the issue to an arbitrator, even where there is no specific language to that effect.

The Court agreed with the trial court that the parties’ contracts evidenced such a clear and unmistakable intent because the agreements explicitly incorporated the Construction Industry Arbitration Rules of the AAA.  The Construction Industry Rules in effect at the time of the parties’ agreement provide that the arbitrator has the power to rule on his or her own jurisdiction, including the arbitrability of a claim.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Expert and Business Litigation Specialist. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

A.K. v. Orlando Health, Inc.

In A.K. v. Orlando Health, Inc., 186 So. 3d 626 (Fla. 5th DCA 2016), the Fifth District Court of Appeal found that an arbitration agreement violates the public policy where it fails to adopt the statutory provisions required by Florida’s Medical Malpractice Act, chapter 766, Florida Statutes (2012).  The Court certified conflict with Santiago v. Baker, 135 So.3d 569 (Fla. 2d DCA 2014).

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

Wells v. Halmac Development, Inc.

In Wells v. Halmac Development, Inc., No. 3D15-1081 (Fla. 3rd DCA April 13, 2016), the Third District Court of Appeal found that the trial court abused its discretion in failing to award section 57.105 attorney’s fees.  The party’s counsel knew or should have known that the party did not have any reasonable basis in law to seek an order from the trial court declaring the party to be the prevailing party, contrary to the express determination of the arbitrator.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

Estate of Reinshagen v. WRYP

In Estate of Reinshagen v. WRYP ALF, LLC, No. 5D15-4194 (Fla. 5th DCA April 29, 2016), the Fifth District Court of Appeal reversed the trial court’s order compelling arbitration, relying on its prior decision in Estate of Novosett v. Arc Villages II, LLC, No. 5D14–4385 (Fla. 5th DCA Mar. 11, 2016).

In both Reinshagen and Novosett, the arbitration agreement contained a limitation of liability provision, placing a cap on non-economic damages and precluding the recovery of punitive damages.  The Fifth District found that this provision was against public policy and void.  The Court also found that the provision was not severable, despite a severability provision, because it constituted the “financial heart” of the arbitration agreement.

Prior to Novosett, the Florida Supreme Court had held that a similar limitation of liability provision violated public policy and was not severable.  See Gessa v. Manor Care of Florida, Inc., 86 So. 3d 484, 489 (Fla. 2011).  However, unlike Reinshagen and Novosett, Gessa did not contain a severability provision.  Accordingly, both Reinshagen and Novosett certified the following question to the Florida Supreme Court as one of great public importance:

DOES THE COURT’S HOLDING IN GESSA V. MANOR CARE OF FLORIDA, 86 So.3d 484 (Fla.2011), CONTROL WHERE, AS HERE, THE CONTRACT CONTAINS A SEVERABILITY CLAUSE?

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

Deutsche Bank Trust Co. Americas v. Beauvais

Following a rare en banc oral argument, the Third District Court of Appeal reversed its prior decision and released a new en banc opinion in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575 (Fla. 3d DCA April 13, 2016).  In its split 6-4 decision, the Third District held that dismissal of a foreclosure action accelerating payment on one default does not time-bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action (i.e., within the five year statute of limitations governing mortgage foreclosures).  Significantly, the court held that whether dismissal is “with” or “without” prejudice is irrelevant to a lender’s right to file subsequent foreclosure actions on subsequent defaults.

In Beauvais, the bank appealed a final summary judgment that denied foreclosure of a mortgage securing a $1.4 million promissory note. The bank filed a complaint in 2012, alleging entitlement to relief by virtue of the debtor’s failure to pay an installment payment, as well as “all subsequent payments.”  Previously, in 2007, the bank’s predecessor had also filed suit based on default and had elected to accelerate the payment of the balance due on the note and mortgage.  The 2007 action was dismissed without prejudice when the predecessor bank failed to appear at a case management conference.  The trial court found that the 2007 lawsuit had triggered the statute of limitations such that the 2012 action was time-barred.  The Third District’s prior decision had affirmed the trial court.

Now, however, the Third District has found that reversal is required pursuant to the Florida Supreme Court’s decision in Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004).  In so doing, the Third District agreed with the Fifth District Court of Appeal in U.S. Bank Nat’l Ass’n v. Bartram, 140 So. 3d 1007, 1014 (Fla. 5^th DCA 2014).  Notably, however, the Florida Supreme Court has granted review in Bartram.  A decision is pending.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

Knowles v. Bank of New York Mellon

In Knowles v. Bank of New York Mellon, No. 4D15-630 (Fla. 4th DCA March 30, 2016), the Fourth District Court of Appeal reversed the trial court’s final judgment of foreclosure in favor of the appellee bank.  The bank had conceded error based on case law issued after trial; specifically, Jelic v. LaSalle Bank, Nat’l Ass’n, 160 So. 3d 127, 130 (Fla. 4th DCA 2015), and Balch v. LaSalle Bank N.A., 171 So. 3d 207, 209 (Fla. 4th DCA 2015).

In both Jelic and Balch, the Fourth District Court of Appeal reversed a final judgment of foreclosure, in part due to lack of evidence that the party transferring the note into a trust had any intent to transfer an interest to the trustee.  In both Jelic and Balch, the Fourth DCA remanded for entry of an involuntary dismissal.

In Knowles, the bank conceding error requested remand for a new trial.  However, the Fourth DCA found that the proper remedy, as in Jelic and Balch, was remand for entry of an involuntary dismissal.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

American Management Services & Fedorak v. Merced

In American Management Services & Fedorak v. Merced, No. 4D15-1385 (Fla. 4th DCA March 2, 2016), the Fourth District Court of Appeal reversed the denial of a motion to compel arbitration.  The appellate court found that the trial court erred by failing to set an expedited evidentiary hearing on substantial disputed issues regarding the making of the arbitration agreement.

An employee had sued her former employer, alleging negligent and intentional infliction of emotional distress, violation of the Florida Whistleblower Act, and violation of the Florida Civil Rights Act.  The employer filed a motion to compel arbitration, alleging that the employee electronically signed an arbitration agreement upon applying for employment.

The employee opposed the motion, asserting in a sworn affidavit that she never executed the arbitration agreement. In response, the employer filed a sworn declaration that the employee had typed the date, her name, and full social security number in an online application. The trial court denied the motion, stating there were factual issues that needed to be resolved after additional discovery. The Fourth District found that it was error to deny the motion pending further discovery without setting an expedited hearing.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.