The Florida Bar

Florida Bar Journal

Private Judging in Florida: Useful in Business Cases?

Business Law

Although many lawyers may not know it, there is an established procedure in Florida for civil cases to be decided by private judges (trial resolution judges), where the rules of court apply and a right of appeal on all questions of law exists. Enacted in 1999, a little-known provision of the Florida Statutes providing for “voluntary trial resolution” (VTR) before a trial resolution judge, F.S. §44.104 has received little notice and apparently has not been widely used. Despite this, business litigants who think they would benefit from trial before a judge with a sophisticated understanding of the issues arising in business litigation and the time to “get into the weeds” may want to look carefully into this provision. Section 44.104 also provides for “voluntary binding arbitration,” which is beyond the scope of this article.

F.S. §44.104(1) provides that “[t]wo or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to…voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved.”

VTR is open to all civil disputes except for those delineated in §44.104, including, as is pertinent to business cases, “constitutional issues,” and cases with indispensable third parties not agreeing to this procedure.1

The Mechanics of the Statute
VTR occurs when all parties to the dispute request it from the court.2 A trial resolution judge is either chosen by the parties or, in the absence of an agreement, appointed by the court. The parties may agree on any member of The Florida Bar in good standing for more than five years, or, if there is no agreement or cannot be followed, the court appoints the trial resolution judge. The court shall provide for appointment of a trial resolution judge within 10 days of filing.3 The statute further states that the trial resolution judge is to be compensated by the parties pursuant to their agreement. Filing of the application tolls the applicable statute of limitations.4

The statute provides:

The…trial resolution judge may administer oaths or affirmations and conduct the proceedings as the rules of court shall provide. At the request of any party, the…trial resolution judge shall issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may apply to the court for orders compelling attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by law.5

The Florida Evidence Code applies.6 The voluntary trial judge conducts a voluntary trial resolution hearing and “may determine any question and render a final decision.”7

Upon the conclusion of the hearing and the rendering of a final decision, a party may enforce the final decision by filing a petitioning for final judgment in the circuit court in the circuit in which the voluntary trial took place. Upon entry of final judgment by the circuit court, any party may appeal to the appropriate appellate court, but not an appeal on factual findings.8 The harmless error doctrine applies and no further review is permitted absent the presence of a constitutional issue.9 This presumably means that no appeal to the Florida Supreme Court is permitted.

Finally, the statute provides that if no appeal is filed within the time permitted by the rules promulgated by the Florida Supreme Court (as are the Florida Rules of Appellate Procedure), the presiding judge or, if there is none, a judge appointed by the chief judge, is empowered to enter all orders necessary to carry out the terms of the decision, which orders shall be enforceable by the court’s contempt powers; execution on judgments “shall issue” on a party’s request.10 It would be illogical and absurd if the introductory clause, “If no appeal is taken within the time provided by rules promulgated by the Supreme Court,” were read to mean that if there were an appeal and the judgment were upheld, then the trial court would have no authority to enter orders or facilitate execution on the judgment. This would appear to be a case of sloppy draftsmanship.

Use of the Statute
It is evident from the caselaw that parties in Florida have put the VTR provisions of §44.104 to some use,11 but information on its use in specific jurisdictions has been difficult to obtain. A Public Records Act request to Florida’s Office of the State Courts Administrator for “documents showing usage within the State of Florida of the voluntary trial resolution provisions of Chapter 44.104, Florida Statutes” yielded the response: “We have reviewed the records within the Office of the State Courts Administrator and do not have any data specific to [§]44.104.”

Section 44.104(5) states that “[t]he clerk of the court shall handle and account for these matters in all respects as if they were civil actions, except that the clerk of court shall keep separate the records of the applications for voluntary binding arbitration and the records of the applications for voluntary trial resolution from all other civil actions.” Therefore, one would expect that each court’s clerk would be able to provide such data. Nonetheless, a recent Public Records Act request for this information from the circuit court for Miami-Dade County proved fruitless because, contrary to the statute, the clerk’s office had not maintained separate records of VTR applications. Likewise, a request to the circuit court for Duval County yielded a list of cases apparently filed under §44.104, but all labeled “arbitration,” and it was not possible to obtain a copy of the underlying complaint to determine if the case involved a request for VTR or for binding arbitration. It probably can be fairly inferred that the statute has not been widely used for VTR.

Whether or not the statute has been actively used, obviously VTR is authorized by law, and there is reason to believe that it should be encouraged by the courts because any use of this procedure will result in less burden on the courts — an especially positive result in an era of declining budgets for the state’s courts. Further, VTR could be quite attractive to litigants involved in a dispute of sufficient magnitude to justify having to pay the judge to hear the case. It can enable complex or specialized cases to be tried before a judge of the parties’ choosing who has commensurate experience and knowledge of the subject matter of the case. Equally importantly, a private judge has the time to become deeply involved in deciding important issues arising during the conduct of the case, including pleadings, discovery, and expert witnesses. Finally, depending on the schedule of the individual trial resolution judge, cases can be expected to proceed more expeditiously than in most circuit courts. Indeed, it can be expected that potential trial resolution judges can be asked by the parties to agree to be available to a sufficient extent as to increase the likelihood that VTR will proceed more expeditiously than they would before a state court judge.

Are Jury Trials Permitted in VTR?
Courts in two judicial circuits — the Sixth (Pasco and Pinellas counties) and 13th (Hillsborough County) — have issued administrative orders establishing specific procedures for VTR.12 Notably, both circuits provide for use of public court facilities and personnel and for court officials to enable jury trials to be conducted.

Although §44.104 is silent as to the right to trial by jury in such cases, as noted, both the Sixth and 13th circuits operate on the assumption that VTR encompasses the right to a jury trial. Not only is there nothing in §44.104 that would prohibit trial by jury, but the statutory language suggests that the right to trial by jury is preserved in a case using the voluntary resolution procedure. Thus, §44.104(7) specifically states that “[t]he…trial resolution judge may administer oaths or affirmations and conduct the proceedings as the rules of court shall provide.13 Fla. R. Civ. P. 1.430(a) (demand for jury trial; waiver) states: “(a) Right Preserved. The right of trial by jury as declared by the [c]onstitution or by statute shall be preserved to the parties inviolate.” Moreover, a 2013 appellate decision, while not considering whether jury trials are available in VTR, describes, without adverse comment, the fact that a jury trial was held before a trial resolution judge.14

An Ohio case deciding that there is no right to a jury trial in a “private judge” case, State ex rel. Russo v. McDonnell, 852 N.E.2d 145 (Ohio 2006), is not only not binding in this state, but also was decided primarily on the basis of statutory language unique to the relevant Ohio statute:

[The] judge to whom a referral is made under this section [Ohio Revised Code §2701.10] shall try all of the issues on the action or proceeding, shall prepare relevant findings of fact and conclusions of law, and shall enter a judgment in the action or proceeding in the same manner as if he were an active judge of the court.

No such language, which suggests that the Ohio Legislature intended that cases operating under that statute be bench trials, is present in the Florida statute.

In this state, “[q]uestions as to the right to a jury trial should be resolved, if at all possible, in favor of the party seeking the jury trial, for that right is fundamentally guaranteed by the U.S. and Florida constitutions.”15 It is apparent that the right to trial by jury in a Florida court depends on the nature of the claim involved. “This right is not limited strictly to those specific proceedings in which it existed before the adoption of our constitution, but should be extended to proceedings of like nature as they may arise.”16 The phrase “proceedings of like nature” means cases of the kind that would have been triable — had they been maintainable anywhere — in courts of law, when law courts existed independently of chancery and admiralty with their own separate jurisdiction and an identity “in contradistinction to equity…and admiralty….”17

It is hoped that the publication of this article will stimulate interest in VTR under §44.104. If it becomes more widely used and the sky does not fall, practitioners may be more likely to put their (and their clients’) toes in the water.

1 Fla. Stat. §§44.104 (1) (constitutional issue); 44.104(14) (nonconsenting indispensable parties).

2 The statute does not indicate whether the application is to be filed in circuit or county court. Section 44.104(11), dealing with petitions to enter a final judgment from a final decision by a trial resolution judge, requires the petition to be filed “in the circuit court in the circuit in which the voluntary trial took place.” It is assumed in this article that the application is to be filed in the court with jurisdiction over the claim if it were filed as an original action and not intended to proceed under §44.104.

3 Fla. Stat. §44.104(4).

4 Fla. Stat. §44.104(6).

5 Fla. Stat. §44.104(7).

6 Fla. Stat. §44.104(9).

7 Fla. Stat. §44.104(8).

8 Fla. Stat. §44.104(11).

9 Fla. Stat. §44.104(12).

10 Fla. Stat. §44.104(13).

11 See, e.g., Witt v. La Gorce Country Club, Inc., 35 So. 3d 1033 (Fla. 3d DCA 2010) (affirming judgment entered after trial by trial resolution judge).

12 Sixth Judicial Circuit Local 2005-053 PA/PI-CIR; 13th Judicial Circuit Administrative Order No. S-2001-027 (both available on the respective courts’ websites).

13 Emphasis added.

14 Merritt v. OLMHP, LLC, 112 So. 3d 559 (Fla. 2d DCA 2013) (affirming a trial resolution judge’s granting of motion for judgment notwithstanding the jury’s verdict).

15 See U.S. Const., Amendments 7 and 14; Fla. Const. art. I, Declaration of Rights §22. Hollywood, Inc. v. City of Hollywood, 321 So. 2d 65, 71 (Fla. 1975) (holding that private corporation claiming ownership of real property also claimed by city was entitled to a jury trial on issues of dedication and actual possession of property).

16 In re Forfeiture of 1978 Chevrolet Van VIN: CGD1584167858, 493 So. 2d 433, 435 (Fla. 1986) (holding forfeiture cases subject to jury trial).

17 O’Neal v. Florida A&M Univ. ex rel. Bd. of Trustees for Florida A&M Univ., 989 So. 2d 6, 9 (Fla. 1st DCA 2008) (citing Forfeiture; holding claimant under Florida’s Whistleblower’s Act entitled to jury trial).

Richard E. Brodsky owns The Brodsky Law Firm, PL, in Miami. He concentrates his practice on business and securities litigation and regulatory enforcement and litigation. He received his A.B. from Brown University and his J.D. degree from Harvard Law School.

This column is submitted on behalf of the Business Law Section, Alan Howard, chair, and Stephanie C. Lieb, editor.

Business Law