If This is Not Fraud on the Court, I Don't Know What Is

In Jiang v. Tri-Coumty Repairs LLC, Case No. 2022-010631-CA-01 (Fla. Cir. Ct. Apr. 16, 2026), a cellphone video recording of a conversation between plaintiff and defendant was held not protected from use as evidence by Florida Security of Communications Act, as the Court found the plaintiff did not have s subjective expectation that the conversation was not being intercepted where his statements reveal that he was aware of possibility that he was being recorded. Specifically, the plaintiff stated in the recording “Even you record me, you have no permission…so it’s not going to bring to the judge.” The Court found that any expectation would not be objectively reasonable where conversation between the parties took place while plaintiff was on porch of multi-tenant residence and defendant was standing in a driveway plainly visible and accessible to third parties.

Why would a plaintiff fight so hard to keep the recording out? Because he was facing a motion for sanctions pursuant to Florida Statute Sec. 57.105. The Court found that the case required dismissal to preserve the integrity of the Court where plaintiff's recorded statements revealed an attempt to coerce the defendant not to defend lawsuit so as to enable plaintiff to obtain an insurance recovery and an offer of payout for potential settlement proceeds from the defendant's insurer. The plaintiff stated , inter alia, the following: “…If I win the case, you lose the case, I collect $700,000 from the insurance company…I’m thinking about two options. Either let me win the case and I give you some money back. Or for this case, you take your company to bankruptcy, and I give you the money back…let me win the case and give you some money back…”

The Court rejected plaintiff’s attempt to characterize the discussion as a settlement discussion but rather “a coercive attempt to induce Defendant’s non-participation in the litigation so plaintiff could obtain an insurance recovery.” The Court went further and noted “that dismissal for fraud on the court is warranted even where a party may have some legitimate basis for a claim.” The Court considered lesser sanctions and found that they would be inadequate to address the severity of plaintiff’s misconduct and preserve the integrity of the proceedings.

It is difficult to have a motion for fraud on the court granted in Florida. It appears that a recording or some other solid third-party evidence is required to make such a motion stick. Certainly, if this was not fraud on the court, then it is hard to see what would be. If you are interested in receiving a copy of this decision, please reach out to me by email at blog@miamimaritimelaw.co or admin@miamimaritimelaw.co or by phone at 305.377.3700.

Proposals for Settlement in Florida Not Easily Set Aside

In Neeld v. Combs, Case No. 5D2023-1803, 2025 Fla. App. LEXIS 1201 (Fla. 5th DCA Feb. 14, 2025), the trial court determined that the parties' settlement agreement was unenforceable, allowing the plaintiff to withdraw his settlement proposal over four months after acceptance based on an alleged mistake the plaintiff had made with regards to settlement amount. However, the appellate court found that a binding settlement agreement was formed where a proposal for settlement was expressly made pursuant to the provisions of section 768.79 and rule 1.442, signed by plaintiff's counsel, e-filed with the court, e-served on defendant's counsel, and timely accepted by defendant in writing. The appellate court found that the settlement agreement could not be set aside based on the fact that proposal for settlement was the product of a unilateral mistake, as an agreement made pursuant to section 768.79 essentially operates as a consent judgment and common law methods for attacking contract formation are not available to unwind those agreements. The appellate court found no legal basis to allow plaintiff to withdraw his proposal for settlement or set aside defendant's acceptance. The argument that plaintiff's counsel lacked authority to settle for stated amount was rejected, because the proposal was signed and served by counsel and notice of service was filed with trial court, showing objective evidence of counsel's authority to make the proposal existed. The appellate court also noted that the plaintiff offered no objective evidence supporting his assertion that counsel lacked authority and whether plaintiff subjectively intended a different settlement amount is irrelevant to the analysis.

This case may seem basic, but our office has seen an increase in parties looking to back out of the settlement agreements they enter into, claiming the exact same defenses. If you submit a Proposal for Settlement to the other side and it is accepted, you are bound by that offer. Conversely, if you make an offer for settlement and this is advised to the trial court, it will be upheld, with the possibility of fees and costs being assessed if the settlement agreement is wrongfully repudiated by the offeror or offeree.

If you are interested in receiving a copy of this decision or wish to discuss this issue further, please feel free to reach out to us at blog@miamimaritimelaw.co or 305.377.3700.

Florida Court Clarifies Personal Jurisdiction Over Non-Residents

In Pianezza v. Mia Collection Servs.. LLC, 2024 Fla. App. LEXIS 1784 (Fla. 3d DCA March 6, 2024), an action against non-resident principal and employee of foreign limited liability company alleging claims of fraud in the inducement, negligent misrepresentation, breach of express warranty, and conspiracy stemming from LLC's provision of counterfeit merchandise was not dismissed for lack of personal jurisdiction and the defendants appealed. The appellate court found that the corporate shield doctrine did not protect defendants from the trial court's exercise of personal jurisdiction where the complaint sufficiently alleged that defendants committed a tortious act within Florida by directing telephonic and electronic communications into Florida in which they allegedly fraudulently misrepresented the authenticity of merchandise sold to the plaintiff. The appellate court explained that the corporate shield doctrine will not operate to bar personal jurisdiction in Florida over an individual defendant that commits a tortious act in Florida, regardless of whether it was on behalf of a corporate employer.

The appellate court also found that defendants' affidavits were insufficient to shift the burden back to the plaintiff to demonstrate why jurisdiction was proper where, although both defendants denied in their declarations that they directed a phone call, text message, or e-mail to anyone in the state of Florida, they qualified these statements by stating they never did so on their own behalf . The qualification by these defendants failed to negate the allegation that they committed tortious acts in Florida by sending and/or directing telephonic and electronic communications into Florida. This, the court explained, leaves open the inference that they did direct phone calls, text messages, and/or emails into Florida in their capacity as employees of the LLC. The appellate court also found that principal's declaration as a corporate representative on behalf of LLC contained nothing more than legal conclusions, which plaintiff was not required to refute.

The appellate court therefore found that the trial court properly concluded that sufficient minimum contacts existed because defendants knew plaintiff was located in Florida and, therefore, knew their alleged misrepresentations would impact a Florida resident and would cause injuries in Florida. Thus, these non-resident defendants are required to defend the case brought against them in Florida.

If you are interested in receiving a copy of this decision or wish to learn more about the impact of this decision, please feel free to reach out to us at admin@miamimaritimelaw.co or blog@miamimaritimelaw.co.

Prevailing-Party: Revisiting the Right to Attorney's Fees Under the Contract in Florida

A little reported decision with big impact has just come down from the Florida Supreme Court. In Levy v. Levy, No. SC20-1195 (Oct. 7, 2021), the Florida Supreme Court ruled in a marital case that Florida Statute section 57.105(7) was not applicable in a prevailing party attorney’s fee provision. In other words, just because there is a prevailing party attorney’s fee provision in a contract does not mean that the other party that becomes the prevailing party automatically get their attorney’s fees.

In Levy, the former husband filed a motion to compel the former wife to comply with a settlement agreement they had previously entered into. That agreement had a prevailing party attorney’s fee provision. Both sides sought attorney’s fees based on the clause and section 57.105(7), a statute which was thought by operation of law, converts unilateral fee provisions into reciprocal provisions. The trial court ruled against the former husband but the wife was not granted her attorney’s fees as “entitlement to attorney’s fees and costs is only contemplated against the party who is found to be in violation of th[e] Agreement.’” Id. at 3 (citation omitted). The appellate court affirmed on all issues except as to the rejection of the former wife’s request for attorney’s fees.

On appeal to the Florida Supreme Court, Justice J Grosshans, citing a conflict between Levy and another case, Sacket v. Sacket, 115 So. 3d 1069 (Fla. 4th DCA 2013), found that by the plain reading of section 57.105(7), it “only applies to a provision that confers on a party the right to attorney’s fees while not affording a comparable right to the other party.” Levy at 6-7. The court found that the provision in question did not confer a right to fees on one identifiable contracting party to the exclusion of the other party but instead “entitles either party to an award of attorney’s fees upon demonstrating that the other party violated the [contract].” Id. at 7. Thus, both parties had a right to attorney’s fees under the clause and thus, as there was no violation of the contract proven, no attorney’s fees were due to be awarded.

As reported in the Daily Business Review, this ruling is causing some lawyers to worry that the decision will spark a rise in frivolous litigation. This view appears correct as many now need to immediately amend their contracts to adjust to this decision. This ruling requires more contract wordsmithing in what should be a pretty straightforward prevailing party clause. You must now write that the prevailing party is either the offensive or defensive party, as failing to do so, a defensive party, like Ms. Levy, does not get her fees if she wins.

This decision is a siren call for contract redrafts, especially those with prevailing attorney’s fees provisions. If you are interested in receiving a copy of this decision or wish to discuss it further, please feel free to reach out to me at blog@miamimaritimelaw.co, lawofficesofmov@gmail.com or at 305.377.3700.