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SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 61

nospam@example.com (Joseph S. Kashi) — Thu, 24 Dec 2009 17:59:54 -0500

SPECIFIC PERFORMANCE

McMillan v. Shively, ___ So. 3d ___, 34 Fla. L. Weekly D2520 (Fla. 1^st DCA 12/8/09)

Although the plaintiffs’ action for specific performance could not be based upon the defendant’s breach of the express contract between the parties because the action was brought more than one year after the breach, the trial court erred in denying specific performance without considering plaintiffs’ argument that the defendant subsequently breached an implied in fact contract.

DOCTRINE OF FORFEITURE

Chavez v. State, ___ So. 3d ___, 34 Fla. L. Weekly D2521 (Fla. 1^st DCA 12/8/09)

The trial court erred in admitting the murder victim’s statements that her husband threatened to kill her. Florida does not recognize the doctrine of forfeiture by wrongdoing. In any event, the doctrine was inapplicable because of the absence of evidence that the defendant killed his wife to prevent her from testifying.

SINKHOLE INSURANCE; PRESUMPTIONS

Warfel v. Universal Insurance Company of North America, ___ So. 2d ___, 34 Fla. L. Weekly D2527 (Fla. 2d DCA 12/9/09)

Section 627.7073(1)(c), Florida Statutes, provides that the opinions of the insurer’s experts in a sinkhole case are presumed correct. The trial court erred in concluding that this statute shifted to the insured the burden of proving that the opinions of the insurer’s experts were incorrect. The statute creates a vanishing presumption that places the burden on the insured to produce evidence contradicting the opinions of the insurer’s experts. Once the insured satisfies this burden, the jury should not be informed of the existence of the presumption.

APPEALABILITY

Workmen’s Auto Insurance Company v. Franz, ___ So. 2d ___, 34 Fla. L. Weekly D2530 (Fla. 2d DCA 12/9/09)

The insureds sought to establish that they were entitled to stacked uninsured motorist coverage and the amount of the benefits to which they were entitled in the same action. As a result, the trial court’s determination that the insureds were entitled to stacked uninsured motorist coverage was not an appealable, non-final order.

MORTGAGE FORECLOSURE

Citimortgage, Inc. v. Henry, ___ So. 2d ___, 34 Fla. L. Weekly D2530 (Fla. 2d DCA 12/9/09)

“A prior mortgagee” may not “be compelled to be a party by a junior encumbrancer foreclosing his lien.”

SHAREHOLDERS DERIVATIVE ACTION

Karten v. Woltin, ___ So. 2d ___, 34 Fla. L. Weekly D2533 (Fla. 4th DCA 12/9/09)

A minority shareholder, who alleged that his two fellow shareholders formed a competing business and diverted the assets of the corporation to the competitor, was required to bring a shareholder’s derivate, rather than a direct, action.

APPEALABILITY; CONCURRENT JURISDICTION

Pecora v. Signature Gardens, Ltd., ___ So. 2d ___, 34 Fla. L. Weekly D2536 (Fla. 4th DCA 12/9/09)

“An order abating or staying an action pending disposition of another action is not a reviewable non-final order,” but the court may review the order by petition for certiorari.

ARBITRATION

Ballenisles Country Club, Inc. v. Dexter Realty, ___ So. 2d ___, 34 Fla. L. Weekly D2536 (Fla. 4^th DCA 12/9/09)

The developer of, and the corporation formed to own and operate, a country club entered into a subscription agreement that contained two arbitration clauses. The court held that the duty to arbitrate continued after the corporation assumed full control of the board of directors because “the plain language of both arbitration clauses in the Subscription Agreement shows that the parties intended for arbitration to apply to ‘each and every dispute’ arising out of the Subscription Agreement, without time limitation. . . . The mere fact that the arbitration procedure that the parties selected cannot be implemented after all of the company representatives resigned from the board does not limit the broad scope of the arbitration clauses. The legislature provides courts with a procedure for selecting arbitrators should the parties’ agreed method fail for any reason . . . .”

INJUNCTION

Solares v. The City of Miami, ___ So. 2d ___, 34 Fla. L. Weekly D2541 (Fla. 3d DCA 12/9/09)

An emergency motion for temporary injunction to stop the sale of bonds pending the outcome of a lawsuit became moot after the bonds were sold. Dismissal could not be avoided by seeking to enjoin the use of the proceeds from the sale because this relief was not sought in the emergency motion.

CREDITORS REMEDIES; PROCEEDINGS SUPPLEMENTARY

PMI Mortgage Insurance Co. v. Kahn, ___ So. 2d ___, 34 Fla. L. Weekly D2542 (Fla. 3d DCA 12/9/09)

A judgment creditor who institutes proceedings supplementary must pay the fees of a special magistrate, but that expense may be taxed against the debtor.

JUDGES: DISQUALIFICATION

Fernwoods Condominium Association #2, Inc. v. Alonso, ___ So. 2d ___, 34 Fla. L. Weekly D2543 (Fla. 3d DCA 12/9/09)

“It is well settled in Florida that a disqualified judge may enter orders that are part of his/her ministerial duties, including reducing to writing oral rulings made prior to a motion to disqualify . . . .”

WORKER’S COMPENSATION IMMUNITY; ELECTION OF REMEDIES

Petro Stopping Centers, L.P. v. Gall, ___ So. 2d ___, 34 Fla. L. Weekly D2547 (Fla. 5th DCA 12/11/09)

The trial court erred in denying the employer’s motion for summary judgment based upon the doctrine of election of remedies. The employee filed a workers’ compensation claim and settled her claim at mediation. The settlement established that the employee was permanently and totally disabled and was entitled to benefits. The mediated settlement agreement constituted a conclusion on the merits of the employee’s workers’ compensation claim, and “litigating a workers’ compensation case to a conclusion on the merits manifests a conscious intent to choose workers’ compensation benefits to the exclusion of tort benefits.”

COVENANT NOT TO COMPETE

Reinstein Pediatric Gastroenterology, ___ So. 2d ___, 34 Fla. L. Weekly D2550 (Fla. 2d DCA 12/11/09)

Dr. McClenathan was the majority shareholder, and Dr. Reinstein was the minority shareholder, in the P.A. The two doctors and the P.A. entered into a Buy-Out Agreement and an Employment Agreement, both of which contained covenants not to compete. When Dr. Reinstein sued Dr. McClenathan and the P.A. for a declaration that the covenants not to compete were unenforceable, Dr. Reinstein’s employment was terminated, and he opened a competing practice, the P.L. The P.A. filed a separate action for injunctive relief and damages against Dr. Reinstein and the P.L. The lawsuits were consolidated, and the trial court dismissed Dr. McLenathan because the P.A. was the only party seeking to enforce the covenants not to compete. The Buy-Out Agreement empowered the P.A. or any shareholder to enforce the agreement. The appellate court rejected Dr. McLenathan’s argument that he was barred from seeking to enforce the covenant because the P.A. had already filed suit to do so and the empowerment clause was written in the disjunctive. The appellate court concluded that the filing of suit by one party did not preclude the filing of suit by another party, and Dr. Reinhart was entitled to a determination that would be binding on both the P.A. and Dr. McLenathan.

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This synopsis was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.

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Understanding Florida Insurance Law

nospam@example.com (Joseph S. Kashi) — Thu, 24 Sep 2009 16:37:05 -0400

It is possible to obtain insurance covering just about anything you can imagine. But, before you purchase insurance or file a claim, it is important to understand some of the laws governing insurance—the responsibilities of the insurance companies and your responsibilities—to ensure that your future claims will be handled fairly and within the confines of Florida insurance law. When conflicts arise, your best bet is to hire an insurance attorney in Boca Raton or Fort Lauderdale. An attorney with experience defending insurance companies will have a unique viewpoint that will help win your case.No-fault automobile insurance

Since automobile insurance accident claims are very common, it is important to be aware that Florida is a no-fault state. This means that, no matter who caused an accident, each party’s insurance company must typically pay for the property damage and medical expenses for their policyholder. In cases of serious and expensive injury or property damage, the no-fault system may not apply. An experienced insurance attorney in Boca Raton can help determine whether the no-fault insurance laws apply in your situation.

The insurance company’s responsibilities

Regardless of the type of insurance involved, an insurance company has a legal duty to deal fairly and in good faith when handling claim payment. Failure to meet this duty is called bad faith. Some examples of bad faith include the following:

Refusal to provide coverage
Failure to pay claims in full according to the provisions of the insurance contract
Delaying payment
Failing to adequate investigate a claim

If you suspect that you have a Boca Raton bad faith insurance issue, you should seek the services of a competent insurance attorney in Boca Raton to help you obtain legal resolution.

Your responsibilities

From the time they apply for any type of insurance, to the time they file a claim, policyholders also have certain legal responsibilities. Naturally, you are expected to properly complete and file all claim forms as required by the insurance company. But, perhaps your most important responsibility is honesty. When applying for insurance, honesty is the best policy. Deliberately falsifying or concealing information on your application is illegal, and is likely to result in denied claims, or even a Boca Raton insurance fraud case. Similarly, your claims are fraudulent if you do not accurately complete claim forms. If your claim forms are accurate and complete, but your insurance company discovers that the initial application was fraudulent, your claim is likely to be denied, and you could be the subject of an insurance fraud legal case.

Hiring the right attorney

When looking for an insurance attorney in Fort Lauderdale or Boca Raton, keep in mind that your attorney will be fighting lawyers who have years of experience representing insurance companies. To get the best possible legal representation, your attorney should also have experience defending insurance companies. The lawyers at Sperry, Shapiro & Kashi, P.A. all began their careers as insurance defense lawyers. Their extensive experience handling insurance coverage and bad faith cases will provide you with the best representation, whatever the insurance issue may be.

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This overview was submitted by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.

Continue reading "Understanding Florida Insurance Law"

The Importance of Hiring an Insurance Attorney

nospam@example.com (Joseph S. Kashi) — Fri, 11 Sep 2009 17:55:14 -0400

It is all too common to believe that filing an insurance claim automatically gets you the fair compensation you deserve. In fact, like all businesses, insurance companies do not wait to spend more than they have to spend for any claim, large or relatively small. The moment you agree to an insurance claim settlement, your claim is closed. If you seek the advice from insurance lawyer in Boca Raton or Fort Lauderdale before agreeing, you may learn that your claim is worth more than the settlement. With the attorney’s assistance, you may be able to collect for more. In fact, your insurance lawyer in Fort Lauderdale or Boca Raton might be able to avoid a court case by negotiating directly with the insurance company.

What an experienced insurance attorney can do

Insurance attorneys in Boca Raton and Fort Lauderdale know Florida’s specific insurance laws to provide the legal support you need. They can help in many ways, including the following:

Discuss and advise on your case: Insurance attorneys in Fort Lauderdale and Boca Raton can listen to the details of your case and can tell you if the settlement offered by the insurance company is fair. Even if you want to handle the case yourself, getting legal advice will ensure that you know your rights.
Negotiate with the insurance company: Your attorney in Fort Lauderdale and Boca Raton will have a strong understanding of all laws. This will enable your attorney to negotiate from a position of power, potentially resolving the case without the need for a lawsuit.
Represent your interests in court: If a court case is needed to get you the compensation you deserve, your insurance attorney will defend your rights in court.

Finding the right insurance attorney

The key to finding the right insurance attorneys in Boca Raton or Fort Lauderdale is to find a firm with prior experience working for the other side. Attorneys in Fort Lauderdale or Boca Raton who have previously defended insurance companies know how those companies are going to defend in your case and understand how to fight their tactics. With previous experience defending insurance companies, the attorneys at Sperry, Shapiro & Kashi, P.A are an excellent choice when you need insurance lawyers in Fort Lauderdale or Boca Raton.

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SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 40

nospam@example.com (Joseph S. Kashi) — Sat, 15 Aug 2009 14:09:56 -0400

ARBITRATION

Blue Cross and Blue Shield of Florida, Inc. v. University of Florida Board of Trustees, ___ So. 3d ___, 34 Fla. L. Weekly D1365 (Fla. 1^st DCA 7/6/09)

The trial court erred in finding that an arbitrable issue existed because (1) there was no nexus between the appellee’s claim and the four agreements between the parties containing arbitration clauses, and (2) the resolution of the appellee’s claim did not require reference to or construction of any portion of the four agreements containing arbitration clauses.

CHILD CUSTODY: MODIFICATION

Doherty v. Brown, ___ So. 3d ___, 34 Fla. L. Weekly D1375 (Fla. 1^st DCA 7/8/09)

The joint custody agreement entered into by the parents provided for review every six months. During a modification hearing, the trial court speculated that no showing of a substantial change of circumstances would be required in future modification proceedings. Although the trial court declined to modify the primary residence of the child, it stated that in the future, residence might be rotated on an annual basis. The appellate court held that the trial court’s statements about matters that might arise in the future but were unnecessary to resolve the issues before it were dictum, had no binding legal effect, confounded the trial court’s ruling, and did not constitute grounds for reversal.

The appellate court upheld the denial of the mother’s petition for modification. “The trial court’s rejection of portions of the custody evaluation report was a valid exercise of the court’s discretion, and the denial of modification of the child’s primary physical residence was supported by competent substantial evidence other than the custody evaluation report. It is unnecessary to determine whether competent substantial evidence supports a denial of relief to the party carrying the burden of proof.”

SANCTIONS: SECTION 57.105, FLORIDA STATUTES

Long v. AvMed, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1377 (Fla. 1^st DCA 7/8/09)

Long filed an action for injunctive relief although AvMed agreed to pay for her contested medical treatment before Long’s complaint was filed. The trial court dismissed with prejudice Long’s claims for injunctive relief and attorney’s fees on the ground that the lawsuit constituted a mere pretext to collect fees. Long appealed, and the appellate court awarded Section 57.105 attorney’s fees against her as a sanction because (1) her appeal lacked merit, and (2) Long failed to disclose that AvMed agreed to pay for her treatment before her lawsuit was filed.

TORTIOUS INTERFERENCE; DEFAMATION: IMMUNITY; CIVIL CONSPIRACY

Palm Beach County Health Care District v. Professional Medical Education, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1379 (Fla. 4th DCA 7/8/09)

The appellate court reversed a judgment for tortious interference, defamation, and conspiracy in favor of a vendor against the Palm Beach County Health Care District. The District established a program to enhance the skills of emergency medical services (EMS) personnel by paying for continuing education courses. PME was a vendor of continuing education courses for EMS personnel. The District’s Trauma Agency Director wrote a letter about PME to the sanctioning body for medical training courses that resulted in the temporary suspension of PME pending further investigation. In addition, after Palm Beach County Fire Rescue and the City of Greenacres contracted with PME to put on seminars, the Director informed Fire Rescue and the City that the District would not pay for the courses.

The appellate court held that the District was not liable for tortious interference because it was not a stranger to the business relationship between PME and Palm Beach Fire Rescue or the City of Greenacres inasmuch as the District was the source of the funds to pay for the services PME was to provide. “To allow the tort of interference to apply in this case would be to discourage the District from being an aggressive caretaker of public funds.” The fact that the Director may have harbored ill will towards PME was inconsequential.

The Director was immune from liability for defamation because (1) he was an executive official of government, and (2) his publication was made in connection with the performance of the duties of his office. Because the Director could not be held liable, the District could not be held vicariously liable for his actions.

Finally, because the District did not commit an actionable tort, it could not be held liable for civil conspiracy to commit a tortious act.

PROPOSAL FOR SETTLEMENT

Alioto-Alexander v. Toll Brothers, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1383 (Fla. 4th DCA 7/8/09)

Alioto-Alexander sought to hold Toll Brothers vicariously liable for the conduct of its employee, Barr. Toll Brothers filed a proposal for settlement in the amount of $5,000.00 conditioned upon the dismissal of both Toll Brothers and Barr. The appellate court held that the proposal was not invalid for failure to apportion the $5,000.00 between Toll Brothers and Barr because Toll Brothers was the sole offeror. “By its own terms, the proposal for settlement was made by Toll Brothers and Toll Brothers alone was offering to pay the sum of $5,000.00. The dismissal of the entire suit, including the claims against Barr, was simply a condition of the proposal and did not serve to transform the proposal for settlement into one made by multiple offerors.”

UNJUST ENRICHMENT

Delant Construction Co. v. Doral Enterprises Joint Venture, ___ So. 3d ___, 34 Fla. L. Weekly D1384 (Fla. 3d DCA 7/8/09)

When the developer failed to proceed with a construction project, it settled the general contractor’s claim for damages for money owed to the engineer. The developer subsequently sued the general contractor for failing to pay the engineer. The appellate court reversed a judgment for the developer to prevent unjust enrichment because the general contractor settled the engineer’s claim while the developer’s lawsuit against the contractor was pending.

DISQUALIFICATION OF COUNSEL

Schulte v. Angus, ___ So. 3d ___, 34 Fla. L. Weekly D1385 (Fla. 3d DCA 7/8/09)

Schulte moved to disqualify Murphy, who represented his legal adversary, because Murphy had represented Schulte in prior cases. The trial court ultimately denied the motion, and Schulte filed a petition for certiorari. The appellate court denied the petition because Schulte’s motion was predicated upon Rule 4-1.7(a) of the Rules Regulating the Florida Bar, but this rule governs conflicts between a lawyer and an existing client. Apparently, Murphy should have moved under Rule 4-1.9, which governs conflicts between lawyers and former clients.

DISCRIMINATORY PEREMPTORY CHALLENGES

Sparks v. Allstate Construction, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1388 (Fla. 3d DCA 7/8/09)

The trial court abused its discretion by allowing defense counsel to use peremptory challenges in a systematic fashion to exclude African-Americans from the jury in a slip and fall case. Defense counsel struck two jurors because they were bus drivers and, consequently, would be exposed to constant complaints from people. Defense counsel also struck the sister of a police officer and a former police officer because the accident occurred at the Department of Juvenile Justice. Not a single African-American juror was seated until defense counsel exhausted his challenges. The appellate court viewed the challenges as pretextual and reversed and remanded for a new trial.

NOTICE OF TRIAL

Teelucksingh v. Telucksingh, ___ So. 3d ___, 34 Fla. L. Weekly D1390 (Fla. 2d DCA 7/8/09)

A final judgment of dissolution of marriage was reversed because the final hearing was conducted based upon a notice sent to the husband by the wife’s attorney. Florida Family Law Rule of Procedure 12.440(a) provides, “If the court finds the action ready to be set for trial, it shall enter an order setting the action for trial, fixing a date for trial . . . .” “[T]he court itself was required to enter an order setting the action for trial; the Wife’s having sent the Husband notice did not satisfy rule 12.440(1). Accordingly, we reverse the final judgment of dissolution and remand for a new hearing held in accordance with the requirements of rule 12.440(a).”

WAIVER OF ISSUE ON APPEAL

George v. George, ___ So. 3d ___, 34 Fla. L. Weekly D1392 (Fla. 2d DCA 7/8/09)

The husband moved to continue the hearing on the wife’s motion for temporary support. The trial court ruled that the husband’s motion for continuance “would be granted if the husband paid to the wife the sum of [$1500] per month support, without prejudice and to be revisited after hearing the Wife’s Motion for Temporary Support.” The husband agreed to the trial court’s terms and then appealed based upon the absence of an evidentiary basis for the award. The appellate court held that “the Husband agreed to the temporary payments in order to obtain his continuance. We therefore conclude that he has waived the right to raise the issue on appeal.”

ATTORNEY’S FEES: PREVAILING PARTY

Vose v. Gulfside Construction Services, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1393 (Fla. 2d DCA 7/8/09)

Gulfside prevailed against the Voses on Gulfside’s claim for breach of contract, but the Voses prevailed against Gulfside on Gulfside’s claim for a construction lien. Both sides moved for attorney’s fees. The trial court determined that Gulfside prevailed on the significant issues in the case and awarded fees in its favor. The appellate court reversed because the trial court denied the Voses’s request for an evidentirary hearing to determine the prevailing party. Because of the competing claims of the parties, the trial court was required to conduct an evidentiary hearing.

UNINSURED MOTORIST BENEFITS: EXAMINATION UNDER OATH

Hungerman v. Nationwide Mutual Fire Insurance Co., ___ So. 3d ___, 34 Fla. L. Weekly D1398 (Fla. 2d DCA 7/10/09)

After Nationwide paid Hungerman’s PIP claim, Nationwide sought to take Hungerman’s examination under oath and to obtain a release for his medical records in anticipation of a possible claim for uninsured motorist benefits. The court held that Nationwide could do so even though Hungerman had not sought uninsured motorist benefits.

REFORMATION

Enterprise Leasing Company v.. Demartino, ___ So. 3d ___, 34 Fla. L. Weekly D1400 (Fla. 2d DCA 7/10/09)

Gary injured John and Judy in a motor vehicle accident. When the accident occurred, Gary was driving a vehicle that his wife, Lisa, rented from Enterprise. Gary and Lisa were insured by the Windsor Group. The parties agreed to settle Judy’s bodily injury claim. Although John and Judy claimed they intended to release only the Windsor Group, they signed a release discharging Gary, Lisa, American Deposit Insurance Company, the Windsor Group, and all other persons, firms, and corporations. After signing the release, John and Judy sued Gary and Enterprise for their personal injuries, but the trial court entered summary judgment against Judy based upon the release. John and Judy amended their complaint to reform the release, and the trial court entered summary judgment in their favor. The appellate court reversed because John and Judy failed to establish mutual mistake. Although John, Judy, and their lawyer filed affidavits, which established that the release did not conform to John and Judy’s intent, they failed to produce competent evidence of the insurance company’s intent. The only evidence proffered in this regard was the deposition of the insurance company’s claims adjuster, but she was not the claim handler when the release was signed and lacked personal knowledge of the insurer’s intent. The court also held that the insurance company would not be entitled to summary judgment on remand because the release contained both written and preprinted terms. As a result, a question of fact existed whether both John and Judy and the Windsor Group intended to release anyone other than the Windsor Group.

CONTINUANCE

Riley v. Riley, ___ So. 3d ___, 34 Fla. L. Weekly D1404 (Fla. 2d DCA 7/10/09)

A magistrate abused her discretion by denying the husband’s motion to continue the final hearing to enable him to secure new counsel after his prior counsel withdrew.

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Insurance Claim Delay: Your Best Defense Is A Good Offense!

nospam@example.com (Joseph S. Kashi) — Thu, 23 Jul 2009 14:23:54 -0400

At the Law Offices of Sperry, Shapiro & Kashi, P.A., we see many cases in which insurance companies do not handle claims as promptly as they should. This is known as "claim delay." A famous football coach once said, "The best defense is a good offense." Today, many insurance companies are taking this advice by trying to "turn the table" on their insureds. When insurance companies fail to handle Boca Raton bad faith insurance claim as promptly as they should, those companies increasingly try to shift responsibility by blaming the delay on the insureds’ lack of cooperation. If this happens, an Activity Log and confirming letters could be invaluable in proving you behaved properly.

This brings to mind another type of letter you might need to send - the "follow-up letter."

If the insurance company promised to do something by a certain date, mark it on your calendar.
If the insurance company does not keep its promise, send a follow-up letter politely reminding them of what they were supposed to do and asking them to do it.

Your mother’s advice when you were a child to "mind your manners," should be heeded. Even if the insurance company did not promise to take action by a certain time, if you think they are taking too long to
do something, sending a follow-up letter is a good idea.

Following these suggestions does not assure your success. Nothing can, but doing the right things can increase your chances of success. It also can help a lawyer to represent you more effectively, if you hire a lawyer.

By the way, do not throw out your records when your case is over. If you ever make another insurance claim, your insurance company may be interested in earlier claims that you have made and your records may help you answer the insurance company’s questions.

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SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 39

nospam@example.com (Joseph S. Kashi) — Wed, 08 Jul 2009 17:56:17 -0400

AUTOMOBILE MEDICAL EXPENSE COVERAGE; SUMMARY JUDGMENT

State Farm Mutual Automobile Insurance Co. v. Mashburn, ___ So. 3d ___, 34 Fla. L. Weekly D1320 (Fla. 1^st DCA 6/30/09)

Mashburn and Palacios lived together but were unmarried. Palacios bought a car for Mashburn and insured it with State Farm, but Palacios owned the car and was the only named insured. The policy provided medical expense coverage for the named insured, his or her spouse, their relatives, and any other person while occupying the vehicle covered under the liability section of the policy. When Palacios bought a new car for Mashburn, the new State Farm policy provided medical expense coverage for the named insured and any relative but no longer provided coverage for any other person while occupying a vehicle covered under the liability section of the policy. As a result, Mashburn was not entitled to medical expense coverage when she was involved in an accident while using the insured vehicle, and the trial court erred by entering summary judgment on her behalf. On appeal, Mashburn argued that the new policy resulted in a failure or refusal to renew coverage for Mashburn without the statutorily required 45 day notice, but the court refused to consider the merits of this argument because Palacios acknowledged receiving notice of the new endorsement, and Mashburn failed to raise this point in her motion for summary judgment. Mashburn argued that she raised the notice issue in an affidavit, but the court held this was insufficient, and the issue had to be raised in her motion. At oral argument, Mashburn’s lawyer argued that she should have been covered, but the pleadings did not support this argument. As a result, the court reversed and remanded with instructions to give Mashburn the opportunity to raise other theories supporting her claim.

REAL ESTATE COMMISSIONS

Boone v. Pelican Real Estate and Development Co., ___ So. 3d ___, 34 Fla. L. Weekly D1324 (Fla. 1^st DCA 6/30/09)

Before Boone obtained his real estate license, he would receive a 25% referral fee when he referred buyers of condominium units. Because of delays in construction, the contracts for some of the buyers who Boone referred had to be rewritten after Boone obtained his real estate license, and Boone was listed as the sales agent on those contracts. As a result, Boone claimed a full agent’s commission rather than a referral fee. The trial court determined that Boone was relegated to a referral fee, but the appellate court reversed because the trial court applied the “procuring cause” standard, which is inapplicable in a dispute between a broker and his associate. Rather, the doctrine of procuring cause applies to controversies between two brokers or a broker and a buyer or seller. The dispute in the present case should have been resolved according to the terms of the contract between Boone and his broker.

VOLUNTARY DISMISSAL: TWO DISMISSAL RULE

Mieses v. Applebee’s, ___ So. 3d ___, 34 Fla. L. Weekly D1325 (Fla. 1^st DCA 9/18/03)

The claimant filed one piece of paper that dismissed three petitions for worker’s compensation benefits. This filing was treated by the appellate court as three dismissals rather than one for the purpose of applying the “two-dismissal” rule.

IME; EXPERT TESTIMONY; OFFER OF JUDGMENT

Allstate Property & Casualty Insurance Co. v. Lewis, ___ So. 3d ___, 34 Fla. L. Weekly D1326 (Fla. 1^st DCA 6/30/09)

The trial court erred in granting the plaintiff’s motion for new trial in an uninsured motorist case on the ground that the defense doctor’s testimony varied from his written report. According to the appellate court, there was no substantial change between the doctor’s report and his trial testimony, and an expert’s testimony should not be limited to “the exact wording of his or her written report.” In this case, the controversial testimony was elicited by the plaintiff’s lawyer during cross examination, and any prejudice was cured by the trial court’s order limiting the doctor “to the ultimate conclusions stated within his report.”

The appellate court remanded to the trial court to rule on the defendant’s motion for attorney’s fees based upon its offer of judgment. The offer of judgment sought to discharge all claims “which are the subject matter of the above captioned lawsuit.” The court rejected the plaintiff’s contention that this offer was so vague it could cut off “future causes of action unrelated to the subject matter of the instant case.”

CUSTODY AND VISITATION: ADULT CHILD

Gamache v.Gamache, ___ So. 3d ___, 34 Fla. Fla. L. Weekly D1333 (Fla. 2d DCA 7/1/09)

After the trial court awarded primary residential responsibility of an incapacitated minor child to the wife, she moved to Kansas with the child. After the child turned 18, the parents agreed to a rotating custody arrangement, which was ratified by the trial court. When the wife violated the agreement, the trial court held her in contempt of court, but a successor judge set aside the contempt order on the ground that it lacked jurisdiction over visitation and custody once the child attained majority. The appellate court affirmed because the child had never been declared to be incompetent in either Florida or Kansas, and a guardianship had never been established for him. Therefore, under Florida law, the child was considered to be a competent, legal adult although he obviously was suffering from some level of mental incapacity. The trial court lacked subject matter jurisdiction over visitation and custody, and it lacked in personam jurisdiction over the child. This result was not altered by the fact that the child was entitled to receive child support beyond the age of minority under Section 743.07(2), Florida Statutes, because of his incapacity.

CLOSING ARGUMENT

Community Asphalt Corp. v. Bassols, ___ So. 3d ___, 34 Fla. L. Weekly D1342 (Fla. 3d DCA 7/1/09)

The trial court in a personal injury case erred by granting a new trial based upon the defendant’s closing argument. During the trial, the plaintiff’s sister testified about a $1.4 million marketing deal with Red Bull. During closing argument, defense counsel stated, “You should expect more evidence than his sister coming into court. You should expect something from Red Bull.” The trial court overruled the plaintiff’s objection based upon the rule that “when witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness.” The appellate court affirmed because the reference to “something from Red Bull” did not necessarily refer to a witness and, after the objection was overruled, defense counsel went on to say, “You should expect a contract.” The court construed this argument as a permissible comment on the lack of evidence to support the opposing party’s position. The defense lawyer also commented upon the absence of the plaintiff’s coaches to verify his sister’s testimony that he was an Olympic caliber athlete, but the plaintiff did not object, and the court did not consider the comment to be sufficiently prejudicial to warrant a mistrial.

STATUTE OF LIMITATIONS: INJUNCTIONS, SPECIFIC PERFORMANCE

Fox v. Madsen, ___ So. 3d ___, 34 Fla. L. Weekly D1343 (Fla. 4^th DCA 7/1/09)

Madsen sought and obtained a mandatory injunction requiring his next door neighbors to remove the portion of their driveway that violated the declaration of restrictions for their subdivision. The court held that “a mandatory injunction is the proper method of enforcing restrictive agreements on property” and that Madsen’s action was governed by the five year statute of limitations on legal or equitable actions on a contract, obligation, or liability founded on a written instrument, rather than the one year statute of limitations on an action for the specific performance of a contract.

MANDATORY NON-BINDING ARBITRATION; ATTORNEY’S FEES; PLEADING

Cooper v. Marriott International, Inc., ___, 34 Fla. L. Weekly D 1344 (Fla. 4^th DCA 7/1/09)

The trial court in a personal injury case ordered the parties to participate in mandatory non-binding arbitration under Section 44.103, Florida Statutes (2004). The arbitrator awarded $7,500.00 to the plaintiff, but the plaintiff demanded trial de novo, and the defendant prevailed at trial. As a result, the defendant sought attorney’s fees. Although the plaintiff originally acquiesced to the defendant’s entitlement to fees, it subsequently objected on the ground that the defendant did not plead an entitlement to fees. The court held that a claim for fees under Section 44.103 need not be pled prior to the termination of the case and that in any event, the plaintiff waived this argument by failing to object to the defendant’s proposed final judgment, which reserved jurisdiction to award fees and costs under Section 44.103, either before or after the entry of the judgment.

SECTION 57.105 FEES

Department of Children and Families v. S.E., ___ So. 3d ___, 34 Fla. L. Weekly D1346 (Fla. 4^th DCA 7/1/09)

DCF filed a petition for dependency based upon the premise that the mother suffered from Munchausen Syndrome by Proxy. More than 21 days after the mother served a motion for attorney’s fees under Section 57.105 Florida Statutes, DCF sought to drop its Munchausen Syndrome by Proxy claim but continued to press its petition on the basis that the mother posed a threat of harm to her children. The trial court dismissed DCF’s petition and awarded fees to the mother. The appellate court held that the trial court abused its discretion. “Because the [Child Protection Team's] doctors remained convinced throughout the pendency of this litigation that a risk of imminent abuse, abandonment, or neglect existed, despite the withdrawal of the Munchausen Syndrome by Proxy allegations, we find that DCF’s petition for dependency was always supported by the necessary material facts to overcome an award of Section 57.105 fees.”

MEDICAL MALPRACTICE; APPARENT AGENCY; SUMMARY JUDGMENT

Ginsberg v. Northwest Medical Center, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1349 (Fla. 4^th DCA 7/1/09)

The court reversed a summary judgment for the hospital in a medical malpractice case. The hospital contended that it could not be liable for the alleged negligence of two surgeons because the consent form signed by the plaintiff stated, “I acknowledge and agree that the surgeon and physician associates are independent contractors and are not employees or agents of Northwest Medical Center and that Northwest Medical Center does not control the manner or methods by which such procedures are performed.” Summary judgment erroneously was entered on behalf of the hospital because (1) the hospital failed to establish that the consent form was a business record, (2) the plaintiff testified that he did not understand the consent form when he signed it because he was under the influence of pain medication and did not have his glasses, and (3) the hospital did not conclusively refute the plaintiff’s allegations that the hospital held out the two doctors as possessing the authority to act on its behalf and knowingly permitted the two doctors to hold out themselves as possessing the authority to act on behalf of the hospital. The court remanded with instructions to give the hospital the opportunity to establish that the consent form was a business record and to give both parties the opportunity to submit additional evidence on the issue of apparent agency.

APPEALS: SANCTIONS

Affirmative Insurance Co. v. Gomez, ___ So. 3d ___, 34 Fla. L. Weekly D1350 (Fla. 4^th DCA 7/1/09)

The circuit court denied procedural due process of law to the appellant by dismissing its appeal for violation of a court order because the order failed to warn the appellant that failure to comply with the order could result in dismissal of the appeal.

ARBITRATION: FORUM SELECTION CLAUSE

Remington Financial Group, Inc. v. Anchors Aweigh Marine, Inc., ___ So. 3d___, 34 Fla. L. Weekly D1359 (Fla. 4^th DCA 7/1/09)

The trial court erred in failing to enforce the forum selection clause in an arbitration agreement controlled by the Federal Arbitration Act.

GOVERNMENTAL LIABILITY: DUTY; SOVEREIGN IMMUNITY

Labance v. Dawsy, ___ So. 3d ___, 34 Fla. L. Weekly D1362 (Fla. 5^th DCA (7/2/09)

Labance, a visitor in the Robbins’ home, was shot in the hand during an outbreak of gunfire when a deputy sheriff attempted to execute a search warrant at the residence. The trial court erroneously dismissed the complaint for failure to state a cause of action because “Labance adequately alleged the existence of a special relationship based upon the deputy’s creation of a foreseeable zone of risk to the occupants of the Robbins’ residence at the time of the execution of the search warrant.” Once a duty was established, the question became whether the sheriff was entitled to sovereign immunity, but the allegations of the complaint were inadequate to enable to the court to make this determination. Reversal was warranted because the order of dismissal was based upon the absence of a legal duty rather than the failure to allege sufficient ultimate facts. On remand, Labance would be given the opportunity to amend her complaint.

PARENTAL RIGHTS: ILLEGITIMATE CHILDREN

Shuler v. Guardian Ad Litem Program, ___ So. 3d ___, 34 Fla. L. Weekly D1364 (Fla. 5^th DCA 7/2/09)

Shuler impregnated a woman while she was married to another man, and the woman gave birth to a daughter. The Department of Children and Family Services (DCF) filed a petition for dependency and for termination of parental rights against the legal parents (the biological mother and her husband), and the petition was granted. When Shuler’s motion to intervene in the dependency proceeding was denied, he filed a petition to determine paternity, and DNA testing established that he was the biological father. Nevertheless, the trial court denied Shuler’s paternity petition and placed the daughter with DCF for adoption. The appellate court affirmed. “A man who father’s a child with a woman who is married to another man generally has no parental rights or responsibilities to the child. . . . Under Florida’s common law, such men can acquire parental rights and responsibilities through a judgment of paternity; however, that remedy is narrow. . . . [A]s to the biological father of a child born during the course of the mother’s intact marriage: the mother’s husband is the child’s legal father unless and until a court effects the substitution.” In this case, the legal parents’ rights to the child were terminated before Shuler filed his paternity action. Once parental rights were terminated, the child became adoptable. The child’s adoptability did not change because Shuler subsequently was determined to be the child’s biological father.

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 39"

SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 38

nospam@example.com (Joseph S. Kashi) — Tue, 07 Jul 2009 18:13:39 -0400

JUDGES: DISQUALIFICATION

Robinson v. State, ___ So. 3d ___, 34 Fla. L. Weekly D1261 (Fla. 5^th DCA 6/19/09)

The petitioner’s motion to disqualify the trial judge was deemed granted under Fla.R.Jud.Admin. 2.3330(j) because the trial court did not rule upon the motion within thirty days after it was served. As a result, the appellate court granted the petitioner’s writ of mandamus and remanded to the trial court with instructions to reassign the case to a different judge.

MOTOR VEHICLE NEGLIGENCE; INTERVENING CAUSE

Cooke v. Nationwide Mutual Fire Insurance Co., ___ So. 2^nd ___, 34 Fla. L. Weekly D1261 (Fla. 1^st DCA 6/22/09)

Ramirez swerved to avoid a phantom vehicle and struck a tractor trailer parked in the emergency lane. The resulting debris caused a large traffic back-up. As a result, Kindler slowed down and Cooke rear-ended him. Cooke died of the injuries that he received in the accident, and his widow brought a wrongful death action. The trial judge concluded that Cooke’s negligence was an intervening superseding cause and entered summary judgment in favor or Ramirez and the uninsured motorist carrier that stood in the shoes of the phantom. The appellate court reversed. An intervening cause will not insulate the initial tortfeasor unless it is independent and unforeseeable. “The plaintiff’s own negligence does not, of course, serve to abrogate a chain of causation arising from the alleged tortfeasor’s negligence but rather serves as a defensive matter, which may reduce the damages awardable to the plaintiff in an appropriate case.”

NICA

Rodriguez v. Florida Birth-Related Neurological Injury Compensation Association, ___ So. 3d ___, 34 Fla. L. Weekly D1275 (Fla.2d DCA 6/24/09)

The administrative law judge lacked jurisdiction in 2007 to clarify final orders entered in 1995 and 1999 under the Birth-Related Neurological Injury Compensation Act. The parents were entitled to attorney’s fees under Section 766.31(1)(c) for defending against the Division of Administrative Hearings’ motion.

EQUITABLE LIEN; VENDOR’S LIEN; PLEADING

Golden v. Woodward, ___ So. 3d ___, 34 Fla. L. Weekly 1281 (Fla. 1^st DCA 6/24/09)

In 2003, Mr. Woodward sold his home and 7.8 acres of land to his next-door neighbors, the Goldens. Under the agreement, the Goldens were to make monthly installment payments for a period of seven years to be followed by a balloon payment. Payments were to continue to Mr. Woodward’s estate after his death. In 2004, the parties executed a warranty deed and, in 2005, the deed was recorded so that Mr. Woodward would cease receiving tax notices on the property, but the Goldens continued to make payments to Mr. Woodward until he died. After Mr.Woodward’s death, the Goldens ceased making payments, and Mr. Woodward’s personal representative sued under a variety of theories, including the imposition of an equitable lien. The trial court imposed a vendor’s lien on the property, and the Goldens appealed on the ground that the trial court granted relief that was not sought in the pleadings. The appellate court rejected this contention because a vendor’s lien is a type of equitable lien and, thus, the Goldens were on notice that a vendor’s lien was being requested. The personal representative was not required to show fraud or misconduct on the part of the Goldens because he sought an equitable lien to prevent unjust enrichment, rather than on the basis of estoppel. The Goldens’ duty to continue making payments did not merge into the deed because the parties clearly contemplated that payment would continue to be made until completed.

INJUNCTION AGAINST REPEAT VIOLENCE; NOTICE

Quarterman v. Pinkney, ___ So. 3d ___, 34 Fla. L. Weekly D1286) (Fla. 1^st DCA 6/24/09)

The court affirmed an injunction for protection against repeat violence but reversed a provision in the final judgment requiring the enjoined party to pay damages because she “was not given notice that a claim for damages would be heard or an opportunity to present her own case.”

MARITAL HOME; NOVATION; SUPPORT

Yeakle v. Yeakle, ___ So. 3d ___, 34 Fla. L. Weekly 1287 (Fla. 4^th DCA 6/24/09)

The parties stipulated on the record that the husband would receive the marital residence, be responsible for the mortgage, and use his best effort to remove the wife’s name from the mortgage. Contrary to this stipulation, the trial judge ordered the lender to permit the husband to assume the mortgage; however, the trial court did not have personal jurisdiction over the lender. Therefore, the trial court erred because it deprived the wife of the ability to enforce her agreement requiring the husband to use his best efforts to obtain a novation. “The stipulation was not ambiguous or in need of interpretation and the court should have enforced it in the final judgment.” The trial court also erred in imposing excessive financial obligations on the wife, which in totality left her with only 35% of her net income.

PRIEST-PENITENT PRIVILEGE

Monroe v. State, ___ So. 3d ___, 34 L. Weekly D1288 (Fla. 4^th DCA 6/24/09)

A murder confession to a clergyman was not privileged because the clergyman warned the declarant before the confession was made that the clergyman would have to divulge illegal activity to the police. As a result, the declarant did not have a reasonable expectation of privacy.

PEREMPTORY CHALLENGES

Julmice v. State, ___ So. 3d ___, 34 Fla. L. Weekly D1298 (Fla. 3d DCA 6/24/09)

The trial court erred in denying a criminal defendant’s preemptory challenge of a naval officer because the victims of the crime were police officers. The fact that the judge believed the prospective juror’s statement that he could be fair did not make the attempted challenge pretextual.

SANCTIONS

Cinquegrana v. Rowley, ___ So. 3d ___, 34 Fla. L. Weekly D1290 (Fla. 4^th DCA) 6/24/09)

The trial court erred in dismissing the plaintiff’s complaint based upon the litigation misconduct of his lawyer because (1) the defendant requested the imposition of lesser sanctions, and (2) one discovery dereliction was corrected prior to dismissal. On remand, the trial court would be required to consider the imposition of sanctions against plaintiff’s counsel and, if the trial court were to consider dismissal as a sanction for the discovery violations of plaintiff’s counsel, the court would be required to make the findings required by Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).

REAL ESTATE COMMISSIONS; PROPOSAL FOR SETTLEMENT

Eastern Atlantic Realty and Investment, Inc. v. GSOMR, LLC, ___ So. 3d ___34 Fla. L. Weekly D1294(Fla. 3d DCA 6/24/09)

A real estate broker for the prospective purchaser was not entitled to a commission after the tenant exercised its right of first refusal and then assigned its rights to another entity that ultimately purchased the property.

The trial court erred in refusing to enforce the owner’s proposal for settlement to the broker. The proposal was not ambiguous. In exchange for the broker’s dismissal of its claims against the owner, the owner offered to pay $20,000.00 to the broker. In addition, the owner and the tenant’s assignee would dismiss their claims against the broker, and the owner, assignee, and broker would exchange mutual releases of all claims arising out of the pending action in which the owner and assignee sued the broker for tortious interference and declaratory relief, and the broker counterclaimed for breach of agreement and quantum meruit. The trial court erred in concluding that the proposal for settlement was a joint offer from the owner and assignee that required apportionment. Although both the owner and assignee were identified in the proposal, the proposal explicitly stated that the owner was the party making the offer. Furthermore, since the broker did not seek affirmative relief against the assignee, the assignee had no reason to make any payment to the broker.

STATUTE OF LIMITATIONS: ACCRUAL AND TOLLING

Arvelo v. Park Finance of Broward, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1297 (Fla. 3d DCA 6/24/09)

The statute of limitations on a car loan began to run when the purchaser defaulted rather than when the lender demanded a deficiency after repossessing and selling the vehicle. The statute of imitations was not tolled by the partial payment resulting from the sale of the vehicle because this payment was not the product of a voluntary act on the part of the obligor.

MALICIOUS PROSECUTION

Hickman v. Barclay’s International Realty, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1301 (Fla. 4^th DCA 6/24/09)

The court affirmed a summary judgment for the defendant in an action for malicious prosecution arising from a criminal complaint for misdemeanor trespass, battery, and petit theft. The complaining witness was not the legal cause of the criminal prosecution because the police conducted a through investigation of the complaint and consulted with the state attorney’s office. In addition, even the suspect’s account of events would have justified the victim in believing that the suspect was trespassing. Florida law does not recognize a separate tort for negligently swearing out an arrest warrant. An action for malicious prosecution is the sole remedy for this conduct.

VENUE

Tomac of Florida, Inc. v. Gunn’s Quality Glass and Mirror, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1302 (Fla. 4^th DCA 6/24/09)

When a contract does not specify a place for payment, payment is presumed to be due where the creditor is located. This presumption may be overcome only by sufficient evidence of a clear, lengthy, and uninterrupted course of conduct. In the present case, the debtor failed to overcome the presumption because its affidavit stated that payments were made at three locations in two different counties but failed to indicate the frequency of payments at each of the locations.

STATUTE OF LIMITATIONS

Pines Properties, Inc. v. Tralins, ___ So. 3d ___, 34 Fla. L. Weekly D1303 (Fla. 3^rd DCA 6/24/09)

The court reversed the dismissal of a complaint based upon expiration of the statute of limitations because this defense did not appear affirmatively on the face of the complaint.

VACATION OF DEFAULT

Infante v. Vantage Plus Corp., ___ So. 3d ___, 34 Fla. L. Weekly D1303 (Fla. 3d DCA 6/24/09)

The trial court improperly vacated a default judgment on the ground that the complaint failed to state a cause of action. Even if the complaint was technically deficient, it was sufficient to place the defendants on due process notice of the nature of the claims against them.

FORUM SELECTION CLAUSE

Travel Express Investment, Inc. v. AT&T Corp., ___ So. 3d ___, 34 Fla. L. Weekly D1304 (Fla. 5^th DCA 6/26/09)

A forum selection clause which provided that “[t]he parties consent to the exclusive jurisdiction of the courts located in New York City, USA,” was mandatory because of the unambiguous exclusivity provision in the clause.

FEDERAL INTERSTATE LAND SALE FULL DISCLOSURE ACT

Plaza Court, L.P. v. Baker-Chaput, ___ So. 3d ___, 34 Fla. L. Weekly D1305 (Fla. 5^th DCA 6/26/09)

Under the Federal Interstate Land Sales Full Disclosure Act, a preconstruction purchaser of a condominium unit may rescind the contract unless (1) the developer provides the purchaser with an unconditional commitment to construct the condominium unit within two years, or (2) before the purchase agreement is signed, the developer provides the purchaser with a property report, and (3) the developer clearly informs the purchaser, in the purchase agreement, of the purchaser’s right to revoke within two years if the property report is not provided. In the present case, the developer agreed to construct the condominium within two years, but the agreement did not constitute an unconditional commitment because it excused delays occasioned by wind, rain, lightning, and storms. Because these excuses were broader than the defense of impossibility under Florida law, the developer’s agreement to complete construction within two years could not be considered an unconditional commitment. Under the Act, the purchaser is required to exercise its right of rescission within two years, and to file suit within three years, of the date of purchase. In the present case, the purchaser failed to provide notice of rescission within two years but filed suit within the three year statute of limitations. The court excused the purchaser’s failure to satisfy the two year notice requirement because of the developer’s failure to notify the purchaser of the requirement.

MAGISTRATES

Simmons v. Simmons, ____ So. 3d ___, 34 Fla. L. Weekly D1309 (Fla. 5^th DCA 6/26/09)

The appellate court reversed an order adopting the magistrate’s recommendations because “the trial court failed to hold a hearing on the Husband’s timely filed exceptions to the magistrate’s report before entering the final judgment.”

ARBITRATION: WAIVER

Green Tree Servicing, LLC v. McLeod, ___ So. 3d ___, 34 Fla. L. Weekly D1311 (Fla. 2d DCA 6/26/09)

The court receded from its earlier decision in Merill Lynch Pierce Fenner and Smith, Inc. v. Adams, 791 So. 2d 25 (Fla. 2d DCA 2001), and held that “a party’s participation in discovery related to the merits of pending litigation is activity that is generally inconsistent with arbitration. Such activity – considered under the totality of the circumstances – will generally be sufficient to support a finding of a waiver of a party’s right to arbitration.” In the present case, the defendant waived its right to arbitrate by propounding a request to produce and three sets of interrogatories dealing with the merits of the plaintiff’s claims and filing a motion to compel and setting it for hearing. Seven months after propounding its discovery, the defendant withdrew its discovery requests, withdrew its motion to compel, and cancelled the hearing on its motion to compel, but these acts were too little, too late, to mitigate against a waiver.

EQUITABLE DISTRIBUTION; ALIMONY

Austin v. Austin, ___ So. 3d ___, 34 Fla. L. Weekly D1316 (Fla. 2d DCA 6/26/09)

The trial court in action for dissolution of marriage erred by (1) ordering that all marital liabilities be distributed equally without identifying each liability and allocating the responsible party, (2) awarding to the wife marital assets that she had depleted for living and litigation expenses, although she did not engage in misconduct, (3) making an equalization payment to the husband in the entire amount of the overage received by the wife rather than one half the amount of the overage, and (4) awarding permanent alimony to the wife without making specific findings regarding the parties’ income or expenses.

MOTOR VEHICLE NEGLIGENCE

Hirst v. Segrest Farms, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1318 (Fla. 2d DCA 6/26/09)

The plaintiff was riding his bicycle on the sidewalk when he ran into the side of a 22 foot box truck that was exiting from a service station and turning onto the highway. The plaintiff had a blood alcohol level of 0.13% and was under the influence of cocaine and marijuana at the time of the accident. A directed verdict for the truck driver was reversed because of conflicting evidence where and how long the truck had been stopped before the collision and undisputed evidence that the driver had an unobstructed view in broad daylight but failed to see the plaintiff approaching. “Because the evidence was not universally in favor of the defendants and presented potentially varying inferences, it was for the jury to decide who was at fault as well as the percentage of fault to attribute to either [the plaintiff or the defendant].

TEMPORARY SUPPORT: EXCESSIVENESS

Perez v. Perez, ___ So. 3d ___, 34 Fla. L. Weekly D1318 (Fla. 2d DCA 6/26/09)

The trial court abused its discretion by making an award of temporary alimony and child support that would have consumed 86% of the husband’s net monthly income.

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 38"

SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 37

nospam@example.com (Joseph S. Kashi) — Fri, 03 Jul 2009 17:41:30 -0400

EQUITABLE DISTRIBUTION; ATTORNEY’S FEES

Rogers v. Rogers, ___ So. 2d ___, 34 Fla. L. Weekly D1201 (Fla. 2d DCA 6/17/09)

The trial court abused its discretion by assigning to the wife the entire amount of her student loan debt. Although the trial court did not explain the basis for this distribution, the only argument made to support it was the husband’s assertion that it would be inequitable for him to be responsible for half of the student loan debt because the wife would receive all of the benefit. This was not a valid justification for the unequal distribution.

The trial court also erred by awarding to the wife only a portion of her attorney’s fees and making the reduced amount payable in two installments over a one year period because of the absence of findings to support either decision.

DEFAULT

Makes & Models Magazine, Inc. v. Web Offset Printing Co., ___ So. 2d ___, 34 Fla. L. Weekly D1203 (Fla. 2d DCA 6/17/09)

A sued B in Hillsboro County. Two months later, B sued A in Pinellas County. Both cases arose from the same set of operative facts. A did not answer B’s lawsuit because A did not receive the suit papers from its registered agent. B moved for a clerk’s default but mailed a copy of the motion to the wrong address. After the clerk entered a default, B moved for final judgment and sent a copy of its motion to A’s correct address. A moved to vacate the default and dismiss the lawsuit, but the trial court denied A’s motion and entered final judgment for B. The appellate court reversed because B was aware that A was represented by counsel and intended to defend the litigation on the merits. As a result, B was required to serve A with B’s application for default and to present its application for default to the trial court.

MEDICAL MALPRACTICE; CAUSATION

St. Joseph’s Hospital v. Cox, ___ So. 2d ___, 34 Fla. L. Weekly D1204 (Fla. 2d DCA 6/17/09)

Cox claimed that he was the victim of malpractice because a clot-busting drug was not administered when he presented to the emergency room with an ischemic stroke. Because Cox was treated in the emergency room, he was required by Section 768.13(2)(b)(1), Florida Statutes, to show that his health care providers acted with reckless disregard for his welfare. The appellate court reversed a judgment for the plaintiff because the leading medical study reflected less than a 50% success rate for clot busting therapy. As a result, the plaintiff failed to prove causation.

JOINT ENTERPRISE

Erickson v. Irving, ___ So. 2d ___, 34 Fla. L. Weekly D1207 (Fla. 3^rd DCA 6/17/09)

The trial court erred in allowing the defense of joint enterprise to be submitted to the jury in a case involving a drunk driver and his passenger because of the absence of evidence of a joint undertaking, a community of interests, and equal control. The decision to travel together did not establish a joint undertaking. The passenger’s purchase of drinks for the driver and payment of travel expenses did not establish a community of interests. Equal authority to control the vehicle or undertaking did not exist because the passenger was passive and even refused to drive the car.

EQUITABLE DISTRIBUTION; ALIMONY

Vigo vs. Vigo, ___ So. 2d ___, 34 Fla. L. Weekly D1211 (Fla. 3d DCA 6/17/09)

The trial court did not abuse its discretion by finding that the husband intended to make a gift to the wife of one half the husband’s interest in his condominium unit. The unit was purchased during the marriage and maintained with the husband’s non-marital funds. The husband purchased the unit because the wife wanted to be close to her grandchild. The wife attended the closing and signed the mortgage; the husband told the wife he purchased the unit for both of them; both were named on the homeowner’s insurance policy; both names appeared on sales receipts for furniture and accessories; the condominium became the martial residence, and the wife assisted in maintaining it.

The trial court abused its discretion by awarding permanent periodic alimony to the wife because the marriage was short term (7.5years); the wife received a lump sum alimony award in the amount of $250,000.00 for her half interest in the marital condominium; no children were born of the marriage; the parties maintained a modest lifestyle; even though the wife had health problems and limited skills, she was immediately employable and could be retrained over a three to four year period; and the wife maintained a relatively active lifestyle.

WARRANTY

Detroit Diesel Corporation v. Atlantic Mutual Insurance Co., ___ So. 2d ___, 34 Fla. L. Weekly D1217 (Fla. 4^th DCA 6/17/09)

The trial court correctly interpreted a warranty on diesel engines to cover repairs to correct any malfunction resulting from defects in material or workmanship. The mere fact that the warranty listed the major components covered by the warranty did not limit the scope of coverage to defects resulting from a major component or require a major component to be the primary cause of the engine malfunction.

AMENDMENT 7; PRIVILEGE LOG

Columbia Hospital Corporation of South Broward vs. Fain, ___ So. 2d ___, 34 Fla. L. Weekly D1223 (Fla. 4^th DCA 6/17/09)

A hospital was not entitled to certiorari review of an Amendment Seven request for adverse medical incident reports because the trial judge merely ruled that the documents were otherwise discoverable by overruling objections based upon overbreadth, irrelevance and undue burden. The appellate court instructed the hospital to file a privilege log to give the trial court an opportunity to rule on the hospital’s work product objection. A privilege log is not required until the trial court rules that the materials sought are otherwise discoverable.

Irrelevance, overbreadth, and undue burden are not valid objections to the discovery of Amendment Seven materials.

Amendment Seven is not impliedly preempted by the Health Care Quality Improvement Act of 1986 because the Act does not require the states to provide confidentiality for peer review materials.

Amendment Seven does not impair the hospital’s contract with its doctors even though the contract has confidentiality provisions because the impairment is not severe, and it serves the public interest.

ATTORNEY’S FEES

Frazier v. Dreyfuss, ___ So. 2d ___, 34 Fla. L. Weekly D1226 (Fla. 4^th DCA 6/17/09)

The defendant was entitled to recover prevailing party attorney’s fees under a statute because the action was dismissed as a result of the plaintiff’s failure to comply with court orders requiring arbitration.

CONDOMINIUMS; INDEMNITY; ATTORNEY’S FEES

Wendt v. La Costa Beach Resort Condominium Association, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1227 (Fla. 4^th DCA 6/17/09)

The members of the board of directors of a condominium association that were sued successfully by the association for breach of fiduciary duty were not entitled to indemnity for their attorney’s fees. The court certified conflict with a decision of the First District Court of Appeal.

CONDOMINIUMS

Curci Village Condominium Association, Inc. v. Santa Maria, ___ So. 2d ___, 34 Fla. L. Weekly D1228 (Fla. 4^th DCA 6/17/09)

A condominium unit owner was not entitled to make improvements in her backyard based upon oral permission from the president of the association because the declaration required written permission of the association and the president was only one of three directors. The unit owner’s estoppel defense was ineffective: the unit owner could not reasonably have relied on verbal statements because the declaration explicitly required the prior written consent of the board of directors. The unit owner was entitled to a trial on her defense that the association acted arbitrarily and capriciously.

ATTORNEY’S FEES

Fareri v. Farmer, ___ So. 2d ___, 34 Fla. L. Weekly D1241 (Fla. 4^th DCA 6/17/09)

The trial court erred by awarding attorney’s fees without conducting an evidentiary hearing.

INSURANCE BAD FAITH; DISCOVERY; CERTIORARI

Zurich American Insurance Co. v. Trafalgar at Greenacres, Ltd., ___ So. 2d ___, 34 Fla. L. Weekly D1241 (Fla. 4^th DCA 6/17/09)

The court denied the insurer’s petition for certiorari to review an order allowing discovery in an insurance bad faith action because the insurer failed to establish that it would suffer irreparable harm in the absence of immediate review.

MAGISTRATES

Riley v. Lien, ___ So. 2d ___, 34 Fla. L. Weekly, D1258 (Fla. 5^th DCA 6/19/09)

“As the fact-finder, a magistrate can reject testimony that he or she disbelieves.”

APPEALS

F.S. v. Department of Children & Families, ___ So. 2d ___, 34 Fla. L. Weekly D1261 (Fla. 1^st DCA 6/19/09)

The appellate court lacked jurisdiction to review the denial of a motion for reconsideration and rehearing. Fla.R.App.P. 9.130(a)(4) provides, “Non-final orders entered after final order on motions that suspend rendition are not reviewable.”

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 37"

SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 36

nospam@example.com (Joseph S. Kashi) — Mon, 22 Jun 2009 18:53:31 -0400

COMPETENCE OF CHILD TO TESTIFY; HEARSAY

J.B.J. v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1146 (Fla. 1st DCA 6/9/09)

A 4 year-old child should not have been permitted to testify that the juvenile defendant made her “suck his wee-wee” because her answers to questions posed during voir dire were “insufficient to demonstrate the she felt a moral obligation to tell the truth. She failed to provide a definite answer as to whether she would be punished for lying and was unable to explain in her own words the difference between the truth and a lie. Therefore, the trial court erred in permitting the child victim to testify.”

The trial court also erred in allowing a police officer to testify that the victim’s 6 year-old brother observed the victim performing oral sex on the defendant and that the defendant told the brother he would not be able to play with his toys if he told anyone what happened. The officer’s testimony about what the brother observed was not admissible under Section 90.801(2)(b), which permits a prior consistent statement to rebut an expressed or implied charge of improper influence, motive, or recent fabrication. In the present case, defense counsel did not accuse the brother of lying or having been subjected to outside pressure to testify in a certain way. Rather, defense counsel suggested that the brother was repeating what another child had told him rather than testifying what he personally observed. The officer’s statement about the toys constituted hearsay within hearsay. The first level of hearsay was the defendant’s threat to the brother, which would have been admissible as an admission by a party opponent if the brother testified to the threat. The second level of hearsay was the officer’s repetition of what the brother told the officer, and there was no exception for this level of hearsay.

NOTICE

Owens v. Owens, ___ So. 2d ___, 34 Fla. L. Weekly D1149 (Fla. 1^st DCA 6/9/09)

The court reversed an order dismissing the mother’s claim for child support arrearages because she did not receive notice of the proceeding at which the order was entered.

CIVIL RIGHTS

Muhammad v. McNeil, ___ So. 2d ___, 34 Fla. L. Weekly D1149 (Fla. 1^st DCA 6/9/09)

A Sunni Muslin serving a life sentence at Florida State Prison stated a prima facie case for declaratory and injunctive relief and for nominal damages under the Religious Land Use and Institutionalized Persons Act and 42 U.S.C. Section 1983 by alleging that he was denied a non-meat diet during Ramadan in violation of the First Amendment.

SLIP AND FALL; SUMMARY JUDGMENT; WAIVER; PRESERVATION

Lomack v. Mowrey, ___ So. 2d ___, 34 Fla. L. Weekly D1150 (Fla. 1^st DCA 6/9/09)

The trial court erred in granting summary judgment against a plaintiff who tripped and fell over exposed computer cables while cleaning the defendants’ law office. Even if the defendants did not have a duty to warn because the danger was open and obvious, the defendants still had a duty to maintain their premises in a reasonably, safe condition and, whether they did so, was a question of fact. The defendants were precluded on appeal from attempting to apply the reduced standard of care due to and independent contractor because this issue was not raised in the motion for summary judgment nor mentioned in the reconstructed record of the hearing. As a result, the “tipsy coachman” rule was trumped by elementary principles of due process and the express requirements of Fla.R.Civ.P. 1.510.

APPEALABILITY

Frier v. Frier, ___ So. 2d ___, 34 Fla. L. Weekly D1153 (Fla. 1^st DCA 6/9/09)

The trial court denied the father’s motion to dismiss based upon lack of personal jurisdiction over him. In denying the motion, however, the trial court did not rule that it possessed personal jurisdiction but merely that it had jurisdiction “of at least certain issues in the pending action.” Therefore, the order was not reviewable under Fla.R.App.P. 9.130(a)(3)(C)(i) because it did not determine jurisdiction of the person.

APPEALABILITY

M.V.-B v. Department of Children & Family Services, ___ So. 2d ___, 34 Fla. L. Weekly D1157 (Fla. 2d DCA 6/10/09)

After adjudicating that a minor child was dependent as to the father, the trial court rejected the paternal grandparents’ request to transfer custody from a licensed foster care family to the grandparents. The grandparents and the father appealed. The appellate court held that the grandparents lacked standing and that it lacked jurisdiction to review the father’s appeal. “[W]e hold that orders entered in dependency proceedings after the entry of the order adjudicating dependency and before an order terminating supervision or jurisdiction are not appealable pursuant to 9.130(a)(4). When appropriate, such orders may be challenged by common law certiorari.” The court dismissed the father’s appeal because he failed to make a showing “that certiorari would provide a possible remedy.”

SANCTIONS

Laurore v. Miami Automotive Retail, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1160 (Fla. 3d DCA 6/10/09)

The trial court erred by dismissing with prejudice for fraud upon the court a personal injury case. The plaintiff allegedly sustained four cervical herniated discs as a result of a rear-end motor vehicle accident. In answers to interrogatories and his deposition, the plaintiff concealed the fact that before the accident, his employer determined that he was totally disabled as a result of job related mental stress. Because the plaintiff’s undisclosed condition related to his mental health and there was no evidence that his physical injuries did not exist or predated the accident or were caused by some other event, dismissal of the entire case was too harsh a sanction. As a result, the appellate court reversed and remanded with instructions to determine which, if any of the plaintiff’s damage claims should be stricken. Judge Shepherd dissented on the ground that the trial court’s ruling was not clearly erroneous.

TRIAL RESOLUTION JUDGES; LIMITATION OF LIABILITY; ALLOCATION OF FAULT

Witt v. La Gorce Country Club, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1161 (Fla. 3d DCA 6/10/09)

Witt undertook to provide hydrogeologic consulting services and ITT undertook to design and build a reverse osmosis water treatment plant for La Gorce’s golf course. The system failed, and La Gorce sued Witt, his corporation, and ITT. The parties submitted their case under Section 44.104, Florida Statutes to a trial resolution judge, whose findings were incorporated by the circuit court in rendering a final judgment.

The contract between Witt’s corporation and La Gorce contained a limitation of liability provision. The trial court determined that the limitation of liability did not extend to Witt, and the appellate court affirmed. An action for professional liability is based on tort law rather than contract law. As a result the limitation of liability provision in a contract may not operate to reduce the liability of the professional.

The trial court did not err in failing to allocate fault against ITT because (1) there were no findings of fact or conclusions of law by the trial resolution judge as to the existence or degree of any fault on the part of ITT, and (2) Witt did not request an allocation of fault before the final judgment was rendered. As a result, the trial resolution judge did not err by failing to make a Fabre allocation against ITT.

The trial resolution judge’s findings that (1) ITT did not make the misrepresentations of fact alleged by La Gorce, and (2) reliance upon the alleged misrepresentations would not have been justified, were not rendered ineffectual merely because they were included with the judge’s conclusions of law. The same was true of the trial resolution judge’s finding that Witt’s corporation and ITT did not engage in deceptive or unfair trade practices. Under Section 44.104(11), Florida Statutes, the trial resolution judge’s factual findings were binding upon both the trial and appellate courts.

ACCOUNTING MALPRACTICE; EXCULPATORY CLAUSES

Tropical Glass & Construction Co. v. Gitlin, ___ So. 2d ___, 34 Fla. L. Weekly D1163 (Fla. 3d DCA 6/10/09)

Tropical alleged that its bookkeeper succeeded in embezzling funds because its accountants negligently performed monthly bank reconciliations. The accountants obtained a summary judgment in the trial court because their engagement letters contained exculpatory clauses. The appellate court reversed because the engagement letters related to the preparation of tax returns, and an issue of fact existed whether the preparation of monthly bank reconciliations was necessary in order to prepare the returns.

APPEALS; TIMELINESS

United Automobile Insurance Co. v. Buchalter, ___ So. 2d ___, 34 Fla. L. Weekly D1166 (Fla. 4^th DCA 6/10/09)

The county court struck United’s pleadings and entered a default judgment against it as a sanction or discovery violations. United appealed after the county court entered a final judgment. The circuit court dismissed the appeal as untimely on the premise that the time to appeal began to run when the default judgment was entered. The district court of appeal granted second-tier certiorari and quashed the decision of the circuit court. “[T]here is no authority for a non-final appeal from an order striking a defendant’s pleadings and entering a default, even under Rule 9.130(a)(3)(C), since the rule was amended in 2000 resulting in removal of the provision for appeals of orders determining liability in favor of a party seeking affirmative relief. As a result of the amendment, orders determining the issue of liability in favor of a party seeking affirmative relief are not appealable until final judgment.”

PRELIMINARY INJUNCTIONS

Jouvence Center for Advanced Health, LLC v. Jouvence Rejuvenation Centers, LLC, ___ So. 2d ___, 34 Fla. L. Weekly D1167 (Fla. 4^th DCA 6/10/09)

An employer sought a preliminary injunction against a former employee who set up a competing business. The employer alleged that the employee took patient files, proprietary information, and personal property. The trial court issued an injunction, but the appellate court reversed because of the absence of clear evidence that the information was proprietary and the absence of specific findings regarding the four elements that must be established before a preliminary injunction may be entered. The court reversed and remanded for the trial court to make the required findings and to take additional evidence, if necessary.

PERSONAL JURISDICTION

Jetbroadband W.V., LLC v. Mastec North America, Inc., ___ So. 2d ___, 34 Fla. L Weekly D1170 (Fla. 3d DCA 6/10/09)

Under Sections 685.101 and 685.102, Florida Statutes, “if certain requirements are met, parties may, by contract alone, confer personal jurisdiction on the courts of Florida. To satisfy the statutory requirements, the contract, agreement, or undertaking must (1) include a choice of law provision designating Florida law as the governing law, (2) include a provision whereby the non-resident agrees to submit to the jurisdiction of the courts of Florida, (3) involve consideration of not less than $250,000.00, (4) not violate the United States Constitution, and (5) either bear a substantial or reasonable relation to Florida or at least have one of the parties be a resident of Florida or incorporated under its laws.” The due process prong of the statutes is satisfied if the agreement has been freely negotiated and is not unreasonable or unjust.

RECORD ON APPEAL

Cueto v. Mendoza, ___ So. 2d ___, 34 Fla. L. Weekly D1173 (Fla. 3d DCA 6/10/09)

An injunction for protection against repeat violence was affirmed because the appellant failed to provide the appellate court with a transcript of the hearing that culminated in the entry of the injunction.

PEREMPTORY CHALLENGES; REHEARING

Braggs v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1175 (Fla. 3d DCA 6/10/09)

Initially, the appellate court reversed a criminal conviction because the trial court denied a preemptory challenge although the defendant proffered a race-neutral reason for exercising it, and the transcript of the voir dire examination failed to reveal that the trial judge conducted an evaluation of the genuineness of the challenge. On motion for rehearing, the State provided a corrected transcript, which revealed that the trial judge had in fact conducted the required analysis and determined that the race-neutral justification proffered by the defendant was pretextual. As a result, the appellate court affirmed the defendant’s conviction. The court acknowledged “the general proscription against considering new claims raised for the first time on rehearing,” but concluded, “The issue of an accurate transcript is not so much a ‘new claim’ raised for the first time on rehearing, . . . but rather a correction of a misleading record that is critical to the clarification and disposition of the legal claim originally put to this court on appeal.”

COMPARATIVE FAULT

San Marco Realty, Inc. v. Dopieral, ___ So. 2d ___, 34 Fla. L. Weekly D1179 (Fla. 2d DCA 6/12/09)

The jury in a personal injury case found that the defendant was only 5% at fault and that the Fabre defendant was 95% at fault. The trial court granted the plaintiff’s motion for judgment notwithstanding the verdict as to the Fabre defense. The appellate court reversed because conflicting evidence existed on the issue of who was at fault, and the “trial judge is not authorized to act as a ‘seventh juror’ or to substitute his judgment for that of the jury on disputed questions of fact.”

HEARSAY; STATE OF MIND

Krampert v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1179 (Fla. 2d DCA 6/12/09)

Krampert was charged with failing to re-register as a sexual predator. Scienter is an element of this offense. At trial, Krampert sought to testify that he did not believe that he had to re-register because of statements made to him by a deputy sheriff. The trial court erroneously excluded the proffered testimony as hearsay because it was not offered to prove the truth of the statements made by the deputy but to explain Krampert’s state of mind.

VACATING DEFAULTS

Pierce Hardy Limited Partnership v. Harrison Brothers Contracting, LLC, ___ So. 2d ___, 34 Fla. L. Weekly D1181 (Fla. 5^th DCA 6/12/09)

The trial court abused its discretion in denying the defendant’s motion to vacate a clerk’s default and final default judgment. Excusable neglect existed because defense counsel’s legal assistant contacted the clerk and was told a default would not be entered for 48 hours to enable to defense counsel to file a notice of appearance and motion for enlargement of time. Nevertheless, the clerk defaulted the defendant that day. In addition, defense counsel was operating under the mistaken belief that she had obtained an enlargement of time because she had received one for the same client in another case. In addition, defendant acted diligently by moving to vacate within two days after learning of the final default judgment.

VISITATION; REHABILITATIVE ALIMONY; ATTORNEY’S FEES

Lovell v. Lovell, ___ So. 2d ___, 34 Fla. L. Weekly D1182 (Fla. 5^th DCA 6/12/09)

The final judgment of dissolution of marriage prohibited the husband’s new wife from being present during visitation until the children’s therapist deemed it appropriate. Although the children blamed the new wife for break-up of their family, the appellate court reversed this limitation on visitation because of the absence of evidence or findings that exposure to the new wife would be detrimental to the best interest of the children and because the trial court could not delegate the duty to decide on the details of visitation.

The appellate court also reversed an award of rehabilitative alimony that was “sparse on details, but rich in aspiration.” Although the court agreed that the wife would benefit by obtaining advanced degrees, it disapproved of the amount or time period for which rehabilitative alimony should be awarded because of the absence of a specific rehabilitative plan, which it directed the trial court to fashion on remand.

Finally, the court reversed an award of attorney’s fees to the wife because the trial court’s distribution of assets provided both parties with similar ability to secure competent legal counsel.

ATTORNEY’S FEES; SECTION 627.428; CERTIORARI PROCEEDINGS

Garcia v. State Farm Mutual Automobile Insurance Co., ___ So. 2d ___, 34 Fla. L. Weekly D1185 (Fla. 5^th DCA 6/12/09)

The court held that an insured is not entitled to a provisional award of attorney’s fees, contingent upon ultimately prevailing in the case, for pursuing an unsuccessful writ of certiorari. Section 627.428, Florida Statutes, provides for an award of attorney’s fees “in the event of an appeal in which the insured or beneficiary prevails.” Based upon this language, the insured might not be entitled to attorney’s fees even in a successful certiorari proceeding because certiorari is not an appeal.

SANCTIONS: SECTION 57.105

Kenniasty v. Bionetics Corporation, ___ So. 2d ___, 34 Fla. L. Weekly D1187 (Fla. 5^th DCA 6/10/09)

On July 1^st, 2002, the Florida legislature added a safe harbor provision to Section 57.105, Florida Statutes. Under this provision, the party seeking sanctions must serve its motion for attorney’s fees 21 days before filing it. This provision applies to motions filed after the effective date of the amendment even if the lawsuit was filed before the effective date. Notice given by letter, rather than motion, is insufficient because the statute must be strictly construed. Fees are not awardable if the allegations of a complaint are prolix and messy, but nevertheless state a claim.

DISQUALIFICATION OF COUNSEL

Walker v. River City Logistics, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1194 (Fla. 1^st DCA 6/12.09)

The court quashed an order disqualifying the claimant’s worker’s compensation counsel based upon his possession of privileged documents because the employer disclosed privileged documents to the claimant’s public defender in another proceeding, and the employer did not argue that the disclosure was inadvertent. As a result, the privilege was waived and the disqualification of counsel departed from the essential requirements of law.

APPEALS; TIMELINESS

Hollifield v. Renew and Co., Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1196 (Fla. 1^st DCA 6/12/09)

The court granted a petition for writ of certiorari and quashed an order that was re-entered under Fla.R.Civ.P. 1.540(b) to enable the respondent to file a timely notice of appeal because (1) the respondent’s predicament was caused by its lawyer’s mistake rather than the trial court or the clerk, and (2) the reissued order was interlocutory, but Rule 1.540(b) does not apply to non-final orders.

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 36"

SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 35

nospam@example.com (Joseph S. Kashi) — Tue, 09 Jun 2009 18:04:02 -0400

TEMPORARY SUPPORT

Bengisu v. Bengisu, ___ So. 2d ___, 34 Fla. L. Weekly D1103 (Fla. 4th DCA 6/3/09)

“[T]he trial court abused its discretion in awarding [temporary] monthly support which greatly exceeds husband’s monthly income without competent, substantial evidence that husband’s actual monthly income exceeds his stated monthly income.” Upon remand, the trial court was directed “to make the necessary findings based on competent substantial evidence of husband’s income and to award an appropriate amount of temporary support based on those findings.”

APPRAISAL; ATTORNEY’S FEES

Lewis v. Universal Property & Casualty Insurance Co., ___ So. 2d ___, 34 Fla. L. Weekly D1104 (Fla. 4^th DCA 6/3/09)

After Hurricane Wilma damaged their roof, the insureds made a claim under their homeowner’s policy. For more than more than one year, the insurer took the position that the majority of the damage was the result of aging, wear and tear, or construction deficiencies. The insurer offered to pay to replace a small number of tiles and stated that it was closing its file. The parties went to mediation, but an impasse was declared. The homeowners retained a lawyer, who submitted a draft complaint for breach of contract, and the insurer invoked its right to appraisal but expressly reserved the right to deny the claim. The Lewis’s sued for breach of contract and declaratory relief on the issue of coverage. The lawsuit was stayed over the objection of the insured, and the case proceeded to appraisal, which resulted in an award to the homeowners for more than $51,000.00. The trial court denied the insureds request for attorney’s fees under Section 627.428, Florida Statutes, but the appellate court reversed. According to the court, the issue was not whether suit was filed before or after the invocation of appraisal, but whether the lawsuit served a legitimate purpose rather than a pretext for the award of fees. According to the court, the facts in this case were “not indicative of an insured who ‘raced to the courthouse’ or who filed suit simply for the purpose of securing a fee award and, while it is true the trial court never entered a judgment or an order confirming the appraisal award, it is undisputed that the insurer paid the claim. Florida law squarely holds that ‘payment after suit was filed operates as a confession of judgment . . . entitling [the insured] to attorney’s fees.’”

TRUTH IN LENDING ACT

Gancedo v. Carpio, ___ So. 2d ___, 34 Fla. L. Weekly D1105 (Fla. 4^th DCA (6/3/09)

A wife who did not have an ownership interest in the marital home when a second mortgage was executed did not qualify as a “consumer” under the Truth in Lending Act and, thus, was not entitled to the disclosures required by the Act or the extended cancellation period resulting from non-disclosure.

PREJUDGMENT INTEREST

Westgate Miami Beach, Ltd. v. Newport Operating Corp., ___ So. 2d ___, 34 Fla. L. Weekly D1107 (Fla. 3d DCA 6/3/09)

The trial court entered a money judgment in favor of the plaintiff and provided that pre-judgment interest would be entered by separate order. The plaintiff moved to assess pre-judgment interest but did not obtain a ruling before taking an appeal that resulted in an affirmance of the final judgment. When the plaintiff sought to obtain an assessment of pre-judgment interest after the appellate court issued its mandate, the defendant contended that the trial court lacked jurisdiction to grant the requested relief, the trial court agreed, and the appellate court affirmed. A trial court should not enter a final money judgment that leaves the determination of pre-judgment interest for future adjudication. Although such a judgment technically is not final, it will be treated as final and will trigger the time period for filing a notice of appeal. Once an appeal is taken, the trial court will lose jurisdiction to assess pre-judgment interest. This problem may be addressed in either of two ways: (1) motion under Fla.R.Civ.P. 1.530(b) for rehearing to correct improper final judgment, or (2) motion under Fla.R.App.P. 9.600(b) to permit the lower tribunal to proceed with specially stated matters. In the present case, the plaintiff did not exercise either option and, thus, waived its right to pre-judgment interest. The plaintiff’s motion before appeal to assess pre-judgment interest would not be construed as a Rule 1.530(b) motion for rehearing because it did not object to the provision in the final judgment for a later determination of pre-judgment interest. The doctrines of invited error and judicial estoppel were inapplicable because both lawyers and the trial judge were acting under a mistake of law; namely, that jurisdiction could be reserved to award prejudgment interest. Furthermore, neither the doctrine of invited error nor judicial estoppel may be used to confer subject matter jurisdiction.

HOMEOWNER’S INSURANCE; BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

Citizens Property Insurance Co. v. Bertot, ___ So. 2d___, 34 L. Weekly D 1109 (Fla. 3d DCA 6/3/09)

Homeowners sued Citizens for breach of contract and breach of the covenant of good faith and fair dealing. The latter claim was based upon Citizens’ failure to investigate and resolve the insured’s claim within a reasonable time. When its motion to dismiss was denied, Citizens filed a petition for writ of certiorari on the premise that the claim for breach of the covenant of good faith and fair dealing was a premature statutory bad faith claim because coverage and the extent of damages had not been determined. The Third District Court of Appeal noted that federal district courts in Florida had reached conflicting decisions regarding the viability of a claim for breach of covenant of good faith and fair dealing in the context of an insurance policy, and the United States Court of Appeals for the Eleventh Circuit had certified this question to the Florida Supreme Court. Inasmuch as the law was in a state of flux, the court could not determine that the decision of the trial court departed from the essential requirements of law. As a result, the petition for certiorari was denied without prejudice to Citizens to advance its legal theory or to file a new petition if the Florida Supreme Court declines to exercise jurisdiction or fails to answer the certified question.

PIP; CLASS ACTIONS

Altamonte Springs Imaging, L.C. v. State Farm Mutual Automobile Insurance Co., ___So. 2d ___, 34 Fla. L. Weekly F1110 (Fla. 3d DCA 6/3/09)

The court approved a class action settlement, dealing with a PIP carrier’s failure to make correct consumer price index adjustments to the benefits payable to MRI providers, over the objection of an MRI provider that intervened in the case.

PERSONAL JURISDICTION; LEGAL MALPRACTICE

Hirsch v. Weitz, ___ So. 2d ___, 34 Fla. L. Weekly 1113 (Fla. 4^th DCA 6/3/09)

A client could not sue his New York lawyer in Florida for legal malpractice. The lawyer represented the husband in an action in New York for dissolution of marriage. The husband alleged that the lawyer was negligent in approving a settlement agreement. As a result, the wife obtained a judgment in New York against the husband for what the husband regarded as an excessive share of the proceeds from the sale in New York of husband’s business. When the wife sought to enforce the judgment in Florida, the husband alleged that his lawyer committed a tortious act, and breached a contract, in Florida. The appellate court disagreed. The husband was injured in New York when the New York court entered a judgment against him. As a result, if the husband possessed a claim for legal malpractice, it accrued in New York rather than Florida. Similarly, the lawyer did not breach his contract for representation in Florida. “The mere fact that Weitz moved to Florida while his New York divorce was pending and Hirsch continued to work as his lawyer does not bring Hirsch within the provision of the long-arm statute.” Continued communication with the client after he moved to Florida did not subject the lawyer to the jurisdiction of the Florida courts.

SETTLEMENT

Grant v. Lyons, ___ So. 2d ___, 34 Fla. L. Weekly D1114 (Fla. 4^th DCA 6/3/09)

Grant was injured in a motor vehicle accident with Lyons and made a 20 day demand for Lyons’ $100,000 policy limits with AIG. Within the 20 day period, AIG agreed in writing to pay its policy limits but required the execution of settlement documents that were unacceptable to Grant. When Grant rejected the counteroffer and demanded an additional $500,000 to settle, Lyons moved to enforce settlement, and the trial court granted the motion. The appellate court reversed. “Because the settlement documents included (1) a release of all persons liable to the plaintiff and not simply the insurance company and its insured; (2) a warranty that all hospital bills had been paid and none [was] outstanding; (3) a nondisclosure and confidentially agreement, the settlement contained more than the ‘usual’ settlement terms. The insurance company’s response did not constitute an acceptance of the offer made by the plaintiff. The trial court erred in enforcing the settlement.” Significantly, Grant’s medical expenses were in excess of $250,000, and AIG would have required Grant to warrant that all hospital bills had been paid as a condition to receiving the $100,000 policy limits.

57.105 SANCTIONS

Montgomery v. Larmoyeux, ___ So. 2d ___, 34 Fla. L. Weekly D1118 (Fla. 4^th DCA 6/3/09)

The court reversed an award of attorney’s fees under Section 57.105, Florida Statutes, because the motion was filed only two days after notice was served upon the party against whom fees were sought. “Section 57.105(4) could not be clearer in its requirement that a motion seeking sanctions may not be filed with or presented to the court within 21 days of service of the motion. Statutes authorizing awards of attorney’s fees are in derogation of common law and must be strictly construed. . . . As such, Larmoyeux’s failure to comply with the mandatory requirements of Section 57.105(4) did not constitute a procedural trap sprung on the unwary.”

LAY OPINION

Bryant v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1120(Fla. 4^th DCA 6/3/09)

Bryant claimed that he acted in self-defense when he shot and killed the victim. An eye witness should have been permitted to testify during Bryant’s trial for first-degree murder that Bryant appeared to be afraid when he discharged the weapon. The testimony was admissible lay opinion under Section 90.701, Florida Statutes.

PRIVATE MAILBOX SERVICE

Beckley v. Best Restoration, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1121 (Fla. 4^th DCA 6/3/09)

Under specified circumstances, Section 48.031(6) Florida Statutes, permits substitute service “by leaving a copy of the process with the person in charge of [a] private mailbox.” This form of service may be used if “the only address discoverable through the public records to effect service is a private mailbox maintained by the party to be served.” Mailbox service could not be used in the present case because the plaintiff failed to prove that “the only address for the Defendants, which was discoverable through public records, was a private mailbox. . . .

The record reflects that the Plaintiff discovered at least one address through public records at which to serve the Defendants, and unsuccessfully attempted to serve them at that address.”

ATTORNEY’S FEES

Glantz and Glantz, P.A. v. Chinchilla, ___ So. 2d ___, 34 Fla. L. Weekly D1124 (Fla. 4^th DCA) 6/3/09)

The personal representative of an estate retained the law firm to which she was referred by the prepaid legal services program of which she was a member. Based upon the guidelines of the program, the law firm charged $115.00 per hour, a 51% discount from its customary billing rate of $225.00 per hour. Although the probate court found that the discounted fee was reasonable, it “inexplicably reduced the reasonable fee by another 51%. In doing so, it abused its discretion.”

PEREMPTORY CHALLENGES

Ross v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1125 (Fla. 4^th DCA 6/3/09)

“The appellant’s challenge to the State’s use of preemptory challenges against African-American jurors was not properly preserved for appeal, because appellant failed to renew his objection prior to the jury being sworn.”

SERVICE OF PROCESS ON UNINCORPORATED ASSOCIATIONS

Mt. Nebo Missionary Baptist Church v. Glee, ___ So. 2d ___, 34 Fla. L. Weekly D1135 (Fla. 1^st DCA 6/3/09)

Glee filed a complaint to obtain reinstatement as a deacon of Mt. Nebo Missionary Baptist Church, but he served three individuals who were not alleged in the complaint to have authority to act on behalf of Mt. Nebo or to reinstate Glee. “Here, it is uncontested that Mt. Nebo was an unincorporated association and that its individual members were not served notice. Therefore, the trial court did not have personal jurisdiction over Mt. Nebo, and the trial court’s order that [Glee] be ‘reinstated as a deacon in the Defendant’s/Church’ is not binding on Mt. Nebo.”

57.105; ATTORNEY’S FEES

Brown v. Panhandle Citizens Coalition, ___ So. 2d ___, 34 Fla. L. Weekly D1136 (Fla. 1^st DCA 6/3/09)

The court reluctantly reversed an award of attorney’s fees under Section 57.105, Florida Statutes, because the Order awarding fees failed “to set forth findings as to the time reasonably expended.”

ARBITRATION

Newport Richey Medical Investors, LLC v. Stern, ___ So. 2d ___, 34 Fla. L. Weekly D1140 (Fla. 2d DCA 6/5/09)

The trial court erred in ruling that a nursing home arbitration agreement was invalid or unenforceable because the arbitrator designated in the agreement was unwilling to serve. Instead, the trial court, acting under Section 682.04, Florida Statutes, should have designated another arbitrator.

CLASS ACTIONS; INTERVENTION

Ownby v.Citrus County, ___ So. 2^nd ____, 34 Fla. L. Weekly D1141 (Fla. 5^th DCA 6/5/09)

The trial court properly refused to certify a class action “because the proposed class representative failed to establish that he would adequately represent the putative class.” The trial court erred, however, in refusing to allow a member of the putative class to intervene. “The case met all the criteria for class certification except the adequacy of the proffered representative. . . . Although the litigation had been pending for some time, the case had not been set for trial, and there is no indication that the intervention would delay the proceeding.”

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 35"

SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 34

nospam@example.com (Joseph S. Kashi) — Wed, 03 Jun 2009 09:55:47 -0400

ANNULMENT; CUSTODY

Cobo v. Sierralta, ___ So. 2d ___, 34 Fla. L. Weekly D1041 (Fla. 3d DCA 5/27/09)

The trial court should not have annulled the marriage of the parties on the ground that the wife’s prior marriage had not been dissolved because (1) the husband did not overcome the presumption that the current marriage was valid, and (2) the wife lacked adequate legal representation because the wife did not receive temporary attorney’s fees during the course of the litigation. The trial court erred in selecting the husband as the primary residential parent because (1) the record failed to demonstrate that the trial court considered the factors set forth in Section 61.13 Florida Statutes, and (2) the wife lacked adequate financial resources to litigate this issue.

UNINSURED MOTORIST COVERAGE

Diaz-Hernandez v. State Farm Fire & Casualty Co., ___ So. 2d ___, 34 Fla. L. Weekly D1046 (Fla. 3d DCA 5/27/09)

A provision in an uninsured motorist policy that required the insured to join the uninsured motorist in his claim against the uninsured motorist carrier was invalid and unenforceable because it violated the public policy expressed in the uninsured motorist statute, Section 627.727, Florida Statutes. The requirement imposed an additional burden upon the insured, but the purpose of uninsured motorist coverage is to protect the injured motorist rather than the uninsured motorist or the uninsured motorist carrier. The carrier has the ability to resolve questions of liability by calling the uninsured motorist as a witness and may protect its subrogation rights by bringing the uninsured motorist into the lawsuit, but requiring the insured to sue the uninsured motorist benefits only the carrier and not the insured.

REAL ESTATE SALES

Bellon v. Acosta, ___ So. 2d ___, 34 Fla. L. Weekly D1047 (Fla. 3d DCA 5/27/09)

The buyers of a home forfeited their $100,000.00 deposit because they failed to notify the sellers in writing within 20 days that the buyers were unable to obtain a financing commitment. The facts that the buyers were only 5 days late in providing notice and that they kept the sellers informed of the status of their loan application did not alter this result.

REAL ESTATE COMMISSIONS

Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC., ___ So 2d ___, 34 Fla. L. Weekly D1048 (Fla. 3d DCA 5/27/09)

The developer of a condominium project entered into a listing agreement with a real estate broker. The agreement provided for the payment of commissions, in three equal installments, to co-brokers, with the final installment due upon closing. The developer refused to pay the final installment when buyers cancelled their purchase contracts after the developer made substantial changes to the project. The trial court dismissed a class action by a co-broker because the final commissions were not due in the absence of a closing or a default by the developer, and the developer was entitled to make material changes. The appellate court reversed because the amended complaint alleged that the developer failed to pay all commissions due and owing and that the developer defaulted by making material adverse changes to the plans. According to the court, these allegations were sufficient to state a cause of action, and the court was not entitled to consider affirmative defenses when ruling on the defendant’s motion to dismiss.

ARBITRATION

Bland v. Green Acres Group, LLC, ___ So. 2d___, 34 Fla. L. Weekly F1051 (Fla. 4^th DCA 5/27/09)

The court affirmed a finding that the defendant waived his right to arbitration. “Here, the trial court heard evidence that Bland knew of the 2005 suit no later than March of 2006; actively avoided service; never sought to trigger the mediation pre-condition to arbitration; never made a demand to arbitrate under Fla. Stat. Section 684.22(1); waited 11 months after learning suit had been re-filed and over 7 months after appearing to seek to compel arbitration; and engaged in settlement negotiations for years without raising the arbitration clause. These actions are sufficient to waive arbitration.” Judge Farmer dissented in a lengthy opinion.

CONTEMPT

Fiore v. Athineos, ___ So. 2d ___, 34 Fla. L. Weekly D1056 (Fla. 4^th DCA 5/27/09)

The trial court erred in holding the mother in direct criminal contempt of court because her misconduct, the failure to execute and return completed passport applications to the father, did not occur in the actual presence of the court.

ATTORNEY-CLIENT PRIVILEGE

S & I Investments v. Payless Flea Market, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1059 (Fla. 4^th DCA 5/27/09)

A law firm took the deposition of its client after suing her for unpaid legal fees. The client did not assert a claim of privilege during the deposition. As a result, the client waived the attorney client privilege, and a third party who sued the client was entitled to obtain a copy of the deposition transcript.

ARBITRATION

DFC Homes of Florida v. Lawrence, ___ So. 2d___, 34 Fla. L. Weekly D1060 (Fla. 4^th DCA 5/27/09)

Lawrence agreed to purchase a home from DFC. When Lawrence claimed that the contract was illegal, DFC invoked arbitration and prevailed. Lawrence responded by suing DFC for specific performance and objected to the arbitration award. DFC moved to confirm the award, but the trial court refused to do so because it was unclear whether the arbitrator considered and ruled upon all issues. DFC appealed, but the appellate court dismissed for lack of subject matter jurisdiction because the challenged order was not final. After one year of inactivity, Lawrence sought to depose DFC, and DFC moved to compel arbitration. The trial court ruled that DFC waived its right to arbitration, but the appellate court reversed. Although DFC participated in a deposition, made offers to settle the lawsuit, filed a motion to dismiss for lack of prosecution, answered interrogatories, and participated in mediation, all of those actions occurred after DFC invoked arbitration and the arbitrator rendered a decision. The discovery in which DFC participated related to the right to arbitrate. Furthermore, “[a] mere attempt to settle a dispute outside the courtroom cannot be considered inconsistent with a party’s right to arbitration.”

APPEALS

Freeman v. Velez, ___ So. 2d ___, 34 Fla. L. Weekly D1073 (Fla. 4^th DCA 5/27/09)

An appeal of attorney’s fees was premature because the final judgment merely reserved jurisdiction to determine entitlement to, and the amount of, attorney’s fees. The trial court’s determination of entitlement and amount after the notice of appeal was filed did not vest jurisdiction in the appellate court: An appellate court may not review actions of a trial court taken after a notice of appeal has been filed unless those acts are the subject of a new notice of appeal or other appropriate appellate proceedings.

LANDLORD/TENANT

Kosoy Kendall Associates LLC v. Los Latinos Restaurant, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1075 (Fla. 3d DCA 5/27/09)

Based upon Section 83.232, Florida Statutes, the trial court ordered the tenant to deposit monthly rent payments into the registry of the court. When the tenant failed to do so, the landlord was absolutely entitled to an ex parte, immediate default for a writ of possession of the premises. This result was not altered by the subsequent tender of payment. The trial court erred by conducting an adversarial hearing and refusing to issue a writ of possession. The appellate court granted the landlord’s application for mandamus and ordered the trial court to issue forthwith a writ of possession.

INADEQUATE VERDICT; NEW TRIAL

Westminster Community Care Services, Inc. v. Mikesell, ___ So. 2d ___, 34 Fla. L. Weekly D1078 (Fla. 5^th DCA 5/29/09)

When the jury found that the defendant was liable but awarded zero dollars in damages, the trial court entered an order of additur or new trial on the issue of damages only. The appellate court reversed because the new trial should have extended to the issue of liability as well as damages because liability was hotly contested, and the award of zero dollars in damages may have been the result of a compromise on the issue of liability. After several hours of heated and furious deliberations, the jury reported that it was deadlocked. One hour after the court instructed the jury to continue to deliberate, the jury reached its problematic verdict.

AMENDMENT 7

Florida Eye Clinic, P.A. v. GMACH, ___ So. 2d ___, 34 Fla. L. Weekly D1080 (Fla. 5^th DCA 5/29/09)

Fact work product is subject to production under Article X, Section 25 of the Florida Constitution, entitled “Patients right to know about adverse medical incidents Therefore, the defendant was required to produce incident reports concerning infections that were prepared to assist defense counsel in the event of a lawsuit. Opinion work product was not implicated because defense counsel never reviewed the reports in question. The court did not read the constitutional provision “as evincing an intent from the voters to eliminate the privilege of opinion work product.”

MAGISTRATES

Lackner v. Central Florida Investments, Inc., ___ So. 2d ___, 34 Fla. L. Weekly F 1083 (Fla. 5^th DCA 5/29/09)

“[T]here is no Florida authority either expressly permitting or prohibiting a magistrate from conducting a civil jury trial with the parties’ consent. However, the relevant state constitutional provisions, statutes, rules, and interpreting decisions indicate that such a practice is not permitted in the absence of an express grant of authority by statute or rule of procedure. Even if permitted by rule or statute, the order referring the case to the magistrate would also have to specifically grant the authority to preside over the jury trial, and the final order or judgment would have to be entered by the trial court.”

CHILD CUSTODY; GRANDPARENTS

Dubois v. Leon, ___ So. 2d ___, 34 Fla. L. Weekly D1088 (Fla. 5^th DCA 5/29/09)

The court reversed an award of temporary custody of a minor child to the maternal grandparents because the order was based upon the best interests of the child rather than the unfitness of the natural parent.

MASTERS

French v. French ___ So. 2d ___, 34 Fla. L. Weekly D1088 (Fla. 5^th DCA 5/29/09)

The wife filed an exception to the general master’s report and recommendations regarding the issues of alimony and attorney’s fees. At the hearing on her exceptions, the wife filed an affidavit which, for the first time, pointed to errors in the magistrate’s calculation of the wife’s expenses. The trial court refused to consider the affidavit because it constituted an untimely exception to the report and recommendations. The appellate court reversed because the errors were plain on the face of the report, and the trial judge should have discovered them himself based upon his obligation to conduct a careful review of the report and the transcript.

CAVEAT EMPTOR

Brown v. Carter, ___ So. 2d ___, 34 Fla. L. Weekly D1091 (Fla. 2d DCA 5/29/09)

The court reversed a judgment for the buyers of residential real estate to compensate them for the cost of structural repairs because of the absence of evidence that the sellers knew about and failed to disclose the defects. The sellers remodeled their home five years before they sold it. The remodeling consisted of the removal of interior walls on the second floor of the home and the addition of a swimming pool. One year after the remodeling was completed, floor and ceiling deformation was visible. The buyers’ home inspector noted that the pool was an addition, and the buyers’ structural engineer reported deflection in a beam installed after the removal of a bearing wall. Nevertheless, the buyers’ contracted to purchase the home. After closing, the problems intensified, and the buyers’ incurred substantial costs to restore the structural integrity of the home. The trial court awarded those costs to the buyers because of the failure to disclose the nature and extent of the work performed to install the pool. The problems caused by the interior remodeling were not an issue because those were disclosed to the buyers. The appellate court reversed the judgment in favor of the buyers because of the absence of competent, substantial evidence that (1) the sellers knew that the installation of the pool had caused a structural problem, and (2) the installation of the pool actually affected the structural integrity of the home.

JUDICIAL ASSIGNMENTS

Strong v. Ochs, ____ So. 2d____, 34 Fla. L. Weekly D1092 (Fla. 2d DCA 5/29/09)

Judge Bennett presided over a family law case in Division H of the Circuit Court for Sarasota County. Strong moved to disqualify Judge Bennett, and the case was reassigned to a county judge serving temporarily as an acting circuit judge. The acting circuit judge disqualified herself on her own motion, and the chief judge reassigned the case to another county court judge serving temporarily as an acting circuit judge. Strong filed a writ of prohibition to prevent the second county judge from presiding over her case and a writ of mandamus to compel someone other than the chief judge to reassign her case. The district court held that it lacked subject matter jurisdiction over the writ of prohibition. The judicial assignment that Strong challenged complied with an unambiguous local rule, and the Florida Supreme Court has exclusive jurisdiction to review judicial assignments. The proper procedure to challenge a judicial assignment made by a chief judge is to object in the trial court and then seek review in the Florida Supreme Court by petition for writ of prohibition or petition under the all writs power. The district court also held that mandamus could not be used to grant the type of relief that Strong requested.

ATTORNEY-CLIENT PRIVILEGE

Powell v. Solowsky, ___ So. 2d ___, 34 Fla. L. Weekly D1096 (Fla. 3d DCA 5/29/09)

On numerous occasions, Powell consulted Dulberg, a lawyer and social friend, about legal matters. During a lawsuit in which Powell was a party, her adversary deposed Dulberg, who testified that he never represented Powell, although he had assisted her in drafting some letters. During the deposition, Powell objected, based on the attorney-client privilege, to certain questions posed to Dulberg, and the trial court overruled the objections without granting Powell’s request for an evidentiary hearing. The appellate court granted Powell’s petition for certiorari because Powell made a proffer in the trial court that Dulberg requested a referral fee on one matter, which suggested the existence of an attorney-client relationship. As a result, the appellate court remanded for an evidentiary hearing. Whether a person who consults with a lawyer is a client is determined from the perspective of the person, but her belief must be reasonable.

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 34"

SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 33

nospam@example.com (Joseph S. Kashi) — Fri, 29 May 2009 19:11:54 -0400

JUDGES: DISQUALIFICATION

D.H. v. Department of Children & Families, ___ So. 2d ___, 34 Fla. L. Weekly D980 (Fla. 1^st DCA 5/19/09)

The trial judge in a proceeding to terminate parental rights should have disqualified himself because (1) he denied that he was a material witness, thus doing more than determining the legal sufficiency of the motion and creating and adversarial atmosphere; and (2) he stated at pretrial conference that the mother was well known to have psychiatric and psychological deficits, which suggested that he was biased.

APPEALS

Arthur v. Smith, ___ So. 2d ___, 34 Fla. L. Weekly D983 (Fla. 1^st DCA 5/19/09)

The court dismissed an appeal for prematurity because the order under review was “inextricably intertwined with the counterclaims that remain pending.”

ALLEN CHARGE

Nottage v. State, ___ So. 2d ___, 34 Fla. L. Weekly D993 (Fla. 3d DCA 5/20/09)

The trial judge did not commit reversible error by recessing the trial until the following day after giving an Allen charge, but the judge should have admonished the jury at the outset of deliberations not to indicate how they stood during their deliberations.

BAD FAITH: DISCOVERY

Grenada Insurance Co. v. Ricks, ___ So. 2d ___, 34 Fla. L. Weekly D1001 (Fla. 3d DCA 5/20/09)

Ricks claimed that Triangle was negligent. Triangle was insured by Grenada, but Grenada denied coverage. Triangle and Ricks sought to establish coverage and Ricks set the deposition of Grenada’s President in order to discover whether Grenada had a corporate policy to deny a certain category of claims. The court quashed an order allowing the deposition because “potential issues of bad faith or other purported improprieties in defending the claim are wholly impermissible unless and until it is determined that the policy indeed provides coverage.”

JUDGES: DISQUALIFICATION

Kersaint v. State, ___ So. 2d ___,34 Fla. L. Weekly D1001 (Fla. 3d DCA 5/20/09)

The trial judge should have disqualified himself after making statements indicating that he had determined the defendant’s sentence before the sentencing hearing.

APPEALS

Downrite Engineering Corp. v. Overland Carriers, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1002 (Fla. 3d DCA 5/20/09)

An order the merely grants summary judgment without incorporating the traditional words of finality is not a final order subject to appellate review.

OWNERSHIP

GEICO Indemnity Insurance Co. v. Reed, ___ So. 2d ___, 34 Fla. L. Weekly D1005 (Fla. 4^th DCA 5/20/09)

The court reversed a summary judgment for GEICO in a declaratory judgment action to determine the existence of uninsured motorist coverage. The determinative issue was whether the decedent owned the accident vehicle, which was titled in his name, creating a presumption of ownership. Based upon the affidavit of the widow, who swore that she mistakenly titled the vehicle in her husband’s name although it was used solely as a business vehicle by the corporation of which he was the president and sole shareholder, the court determined that an issue of fact existed.

VENUE: FORUM NON CONVENIENS

Cardelles v. Catholic Health Services, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1008 (Fla. 4^th DCA 5/20/09)

The trial court erred in transferring a wrongful death case from Broward County to Dade County on the basis of forum non conveniens because the movants did not submit sworn proof in support of their motion.

CERTIORARI; DISCOVERY

Universal Property and Casualty Insurance Co. v. Stark, ___ So. 2d___, 34 Fla. L. Weekly D1014 (Fla. 2d DCA 5/22/09)

An insurance company was not entitled to certiorari relief from a production order because “it made no claim in the trial court that the material at issue were proprietary. The perfunctory assertion of privilege in its petition to this court, which is without any factual support in the record, is too little too late.”

ARBITRATION; NURSING HOMES

Sovereign Heathcare of Tampa, LLC v. Huerta, ___ So. 2d ___, 34 Fla. L. Weekly D1015 (Fla. 2d DCA 5/22/09)

Contrary to the ruling of the trial court, the decedent’s daughter-in-law had authority under a power of attorney to consent to the arbitration provision in the documents for admission to a nursing home. The catch-all provision of the power of attorney set forth a broad and unambiguous grant of authority, and the specific provisions of the power of attorney included grants of authority to consent to hospitalization and to sign releases or consents to effectuate hospitalization.

APPEALS: FINALITY, TIMELINESS

City of Marco Island v. Dumas, ___ So. 2d ___, 34 Fla. L. Weekly D1015 (Fla. 2d DCA 5/22/09)

The City brought an action in county court to enforce an ordinance. The county court entered an order declaring parts of the ordinance unconstitutional, but the order did not dismiss the proceeding. Thirty-two days later, the court dismissed the charge against the defendant, and the City appealed to the circuit court. The circuit court dismissed the appeal because it mistakenly measured the time for filing the notice of appeal from the date of rendition of the order rather than the date of dismissal of the charges. The district court ordered reinstatement of the appeal because the order “did not expressly adjudicate the merits of the enforcement proceeding or dispose of the action; it merely entered a legal ruling as to an issue in the case.”

BAD FAITH: DISCOVERY

Allstate Indemnity Insurance Co. v. Nelson, ___ So. 2d ___, 34 Fla. L. Weekly D1023 (Fla. 2d DCA 5/22/09)

After Allstate tendered its uninsured motorist limits of $250,000.00 to Nelson, Allstate asked Nelson to execute a release that would absolve Allstate of any further claims, including bad faith. In response to this request, Nelson sued Allstate for (1) enforcement of the settlement agreement, which did not include a release of future claims; (2) Nelson’s damages in excess of the policy limits; and (3) bad faith under Section 624.155, Florida Statutes. After granting summary judgment for Nelson on his first claim to enforce the settlement agreement, the trial court ordered Allstate to produce its claim file. Upon certiorari review, the appellate court quashed the order of production because Nelson’s second claim for damages in excess of the policy limits rendered his bad faith premature.

TIMELINESS OF SERVICE; RECORD ON APPEAL

Robinson v. Shackelford, ___ So. 2d ___, 34 Fla. L. Weekly D1033 (Fla. 5^th DCA 5/22/09)

The defendants moved to dismiss the plaintiff’s action because she failed to obtain service of process with 120 days. The magistrate judge recommended granting the motion. After holding a hearing on the plaintiff’s exceptions and motion for rehearing, the trial court granted the motion based upon the absence of good cause or excusable neglect. The appellate court affirmed because the hearings before the magistrate and the trial judge were not transcribed and, without a transcript of the hearings, the appellate could not determine whether the trial court abused her discretion.

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 33"

SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 32

nospam@example.com (Joseph S. Kashi) — Fri, 29 May 2009 18:59:16 -0400

EX PARTE COMMUNICATIONS WITH TREATING PHYSICIANS

Dannemann v. Shands Teaching Hospital and Clinics, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D945 (Fla. 1^st DCA 5/11/09)

The plaintiff sued Shands Teaching Hospitals and Clinics for the wrongful death of her husband and scheduled the depositions of two physicians employed by the University of Florida Board of Trustees. The physicians to be deposed and their employer were not named as defendants in the wrongful death case. The University Self Insurance Program insured Shands and the University of Florida, and it retained a lawyer to represent the physicians during their depositions. The plaintiff moved to prohibit pre-deposition conferences between the physicians and the lawyer retained to represent them during their depositions. The trial court denied the motion, but the First District Court of Appeal granted the plaintiff’s petition for certiorari and quashed the order of the trial court. According the First District, the patient confidentiality statute, Section 456.057(8), Florida Statutes, “prohibits any nonparty physician from disclosing the decedent’s medical condition and history to the counsel hired by the defendant’s insurer to represent the physician at a deposition.” The court rejected the defendant’s position that its interpretation of the statute violated the physicians’ right to counsel, right to free speech, and due process.

EXPERT TESTIMONY; STATE OF MIND EXCEPTION TO HEARSAY RULE

Dorbad v. State, ___ So. 2d ___, 34 Fla. L. Weekly D946 (Fla. 1^st DCA 5/11/09)

A forensic psychiatrist should have been permitted to testify that the defendant’s calm demeanor after shooting the victim was a manifestation of stress rather than cold blooded behavior.

The victim’s friends should not have been permitted to testify that the victim was afraid of the defendant because he was jealous. Although this evidence was offered under the state of mind exception to the hearsay rule, the victim’s state of mind was irrelevant because it was not contended that she initiated the confrontation.

FULL FAITH AND CREDIT; ADOPTION

Embry v. Ryan, ___ So. 2d ___, 34 Fla. L. Weekly D951 (Fla. 2d DCA 5/13/09)

A Florida trial court was required to give full faith and credit to a same sex adoption from the State of Washington regardless whether the trial court believed that the Washington adoption violated a clearly established public policy in Florida.

CONTRIBUTION

T&S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D953 (Fla. 2d DCA 5/13/09)

When the Clarks sued T&S to recover damages for personal injuries and derivative losses, T&S filed a Third Party Complaint for contribution against Wink. The court affirmed the dismissal of the Third Party Complaint because it viewed the action for contribution as obsolete in view of Section 768.81, Florida Statutes, which limits liability on the basis of a party’s percentage of fault.

CHALLENGE FOR CAUSE

Samuels v. State, ___ So. 2d ___, 34 Fla. L. Weekly D959 (Fla. 4^th DCA 5/13/09)

The trial court did not abuse its discretion by denying a challenge for cause in an attempted murder case. Although the challenged juror had heard something about the case nine years before the trial and believed that the defendant should be punished if he committed the crime, she had not formulated an impression regarding the defendant’s guilt.

IMMUNITY

City of Stuart v. Monds, ___ So. 2d ___, 34 Fla. L. Weekly D961 (Fla. 4^th DCA 5/13/09)

Mr. Monds was employed by the recreation department of the City of Stuart. The city hired Mrs. Monds as an independent contractor to instruct hygiene classes. The Monds sued a city supervisor and assistant recreation director for tortious interference with their employment and negligent violation of Section 448.045, Florida Statutes, which proscribes wrongful combinations against workers. The trial court should have dismissed the claims against the supervisor and director based upon the doctrine of absolute immunity because the conduct complained of occurred within the context of their employment.

CONTEMPT

Anderson v. Department of Revenue, ___ So. 2d ___, 34 Fla. L. Weekly D963 (Fla.4^th DCA 5/13/09)

The trial court ordered the former husband to pay approximately 10% of his child support arrearage within 48 hours to avoid incarceration. The appellate court reversed because the trial court found that the former husband was indigent for purposes of appeal. The finding of indigent status affirmatively established the father’s inability to pay the purge amount.

PROPOSAL FOR SETTLEMENT

Harris Specialty Chemicals, Inc. v. Punto Azul S.A. d.e. CV, ___ So. 2d ___, 34 Fla. L. Weekly D966 (Fla. 3d DCA 5/13/09)

The court rejected the plaintiff’s contention that a proposal for settlement was invalid because it failed to apportion an amount to one of the defendants. “The rule does not require that a settlement proposal cover all claims between all parties involved, or that it settle all claims between the parties to the proposal. The rule merely requires that a settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” (Citations omitted)

FRYE RULE

Andries v. Royal Carribbean Cruises, LTD., ___ So. 2d ___, 34 Fla. L. Weekly D968 (Fla. 3d DCA 5/13/09)

Evidence that a staph infection caused an incurable kidney disease was not inadmissible under Frye v. United States, 293 F.1013 (DC Cir. 1923). The plaintiff presented the testimony of a nephrologist, a specialist in immunological kidney diseases, and published research studies establishing an association between staph infections and kidney disease. The defendant presented the testimony of two distinguished physicians that the cause of the plaintiff’s kidney disease is unknown. The court concluded, “The fact that the precise causation is still under investigation does not make the expert opinions in this case ‘new or novel’ or inadmissible under the more demanding requirements of Frye.” “[I]n this case qualified physicians for the appellant have expressed an opinion that there is a link between recognized medical condition X and sequela Y, those and other observations have been found worthy of further detailed scientific investigation, and the published results of such investigations have focused on the possible etiology. It is precisely this sought of disagreement that under Marsh [v. Valyou, 977 So. 2d 543 (Fla. 2007)], amounts to a duel of competing--and admissible--pure opinions.”

DAMAGES

Marbella Park Homeowner’s Association, Inc. v. My Lawn Service, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D971 (Fla. 3d DCA 5/13/09)

The defendant did not make a single payment under a five year contract for monthly services. The plaintiff sued for breach of contract and obtained a summary judgment for the entire contract price. The appellate court reversed because the plaintiff was entitled to the difference between the contract price and the cost of performance, but the defendant did not produce any evidence of the cost of performing the five year contract.

SUBJECT MATTER JURISDICTION; PIP

DNA Center for Neurology & Rehabilitation v. Progressive American Insurance Co., ___ So. 2d ___, 34 Fla. L. Weekly D978 (Fla. 5^th DCA 5/15/09)

A healthcare provider sued an insurer in circuit court for failing to pay personal injury protection benefits, but the exhibits to the amended complaint reflected that the damages were under $500.00. Subject matter jurisdiction in the circuit court was lacking because the amount in controversy did not exceed $15,000.00, and an action for non-payment of personal injury protection benefits in not within the exclusive jurisdiction of the circuit courts.

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 32"

SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 31

nospam@example.com (Joseph S. Kashi) — Tue, 19 May 2009 18:25:47 -0400

PERSONAL JURISDICTION

Labry v. Whitney National Bank, AB9G,LLC, ___ So. 2d ___, 34 Fla. L. Weekly D885 (Fla. 1^st DCA 5/4/09)

Guaranteeing a mortgage on property located in Florida did not create sufficient minimum contacts under the due process clause of the United States Constitution to support the exercise of personal jurisdiction over non-resident guarantors regardless whether they submitted financial statements to the Florida banks that made the loan.

LIFE INSURANCE

Jackson National Life Insurance Co. v. Lovallo, ___ So. 2d ___, 34 Fla. L. Weekly D886 (Fla. 1^st DCA 5/4/09)

Jackson issued a ten year renewable term life insurance policy to the husband. During the initial term, the husband’s marriage was dissolved. The dissolution decree arguably imbued the former wife with equitable ownership of the policy, and she notified Jackson of this development. Nevertheless, when the former husband told Jackson not to renew the policy, Jackson followed his instruction. The former husband died after the policy lapsed, but the former wife claimed entitlement to the death benefit under the theory that, as the end of the original term approached, she was entitled to notice of the right to renew the policy. The trial court entered summary judgment for the former wife, but the First District Court of Appeal reversed because notice was not required by statute or the terms of the policy. The court distinguished policy renewals from cancellations for non-payment of premiums and noted that Section 627.4555, Florida Statutes (2008), which requires notice of nonpayment of life insurance premiums, took effect on October 1, 1997, but the policy involved in this case was issued in 1994. The court declined to decide whether the communications between the parties constituted a request for renewal or imposed upon Jackson a duty to seek clarification.

CHILD SUPPORT; MODIFICATION; NOTICE

McGrath Taylor v. Caron, ___ So. 2d ___, 34 Fla. L. Weekly D896 (Fla. 4^th DCA 5/6/09)

The trial court erred by reducing the father’s child support obligation during a hearing on the mother’s motion to hold the father in contempt for failing to pay support because the father did not request a departure from his existing obligations and the mother was entitled to notice. The trial court also erred by failing to rule on the mother’s motion for contempt because it presented the only issue raised by the pleadings and by prohibiting the mother from making further motions for contempt.

PERSONAL JURISDICTION

Reiss v. Oceanworld, S.A., ___ So. 2d ___, 34 Fla. L. Weekly D897 (Fla. 4^th DCA 5/6/09)

The defendant’s efforts in Florida to organize opposition to the importation of dolphins into the Dominican Republic from Japan did not constitute the commission of a tortuous act in Florida or establish sufficient minimum contacts with the State of Florida to support the exercise of personal jurisdiction. Although the defendant engaged in telephonic and in excess of 100 electronic communications with people in Florida, any tortious interference with the plaintiff’s business relationships occurred in the Dominican Republic or Japan, the countries in which the plaintiff’s contracts were to be performed.

57.105

Ferdie v. Isaacson, ___ So. 2d ___, 34 Fla. L. Weekly D898 (Fla. 4^th DCA 5/6/09)

The trial court erred in imposing sanctions under Section 57.105, Florida Statutes, against the plaintiff’s lawyer because the judge (1) failed to make an express finding that the lawyer was not acting in good faith based upon the representations of his client, and (2) failed to provide the lawyer with a meaningful opportunity to be heard on the issue of good faith.

ARBITRATION

Sitarik v. JFK Medical Center Limited Partnerships, ____ So. 2d ____, 34 Fla. L. Weekly D900 (Fla. 4^th DCA 5/6/09)

A defendant waived its right to arbitration by actively participating in the merits of the litigation by filing an answer, affirmative defenses, and two motions to dismiss, issuing a subpoena, and propounding discovery, all while failing to make a demand for arbitration.

RELOCATION; SUPPORT; IMPUTED INCOME

Scariti v. Sabillon, ___ So. 2d ___, 34 Fla. L. Weekly D901 (Fla. 4^th DCA 5/6/09)

Although a geographic relocation restriction was not sought in the pleadings, the father could not complain because he tried the issue by implied consent by presenting evidence and arguments in favor of a restriction; however, the trial court erred in concluding that the relocation statute was inapplicable because a primary residential parent had not been designated.

Although a trial court may award support even if support is not sought in the pleadings, this rule did not apply in the present case because a default was entered against the mother for failing to serve any paper in the action. Nevertheless, this issue was tried by implied consent because the father did not object. Contrary to the father’s contention, the trial court’s imputation of $2,031.00 in net monthly income to the mother was not insufficient because she never earned more than $22,000.00 a year before expenses.

PERSONAL JURISDICTION

The Trustees of Columbia University v. Oceanworld, S.A., ___ So. 2d ___, 34 Fla. L. Weekly D902 (Fla. 4^th DCA 5/6/09)

Oceanworld sought to hold liable for tortious interference Columbia University based upon the conduct of its Director of Marine Mammal Research Science Laboratory in Brooklyn, New York. The court held that personal jurisdiction could not be based upon the commission of a tortious act in Florida because another panel of the court in a separate appeal determined that the Director had not engaged in tortious conduct within the State of Florida and that the Director did not have sufficient minimum contacts with the State of Florida to support the exercise of personal jurisdiction. The court reasoned that if jurisdiction did not exist over the agent, jurisdiction could not exist over the principal based upon the acts of the agent. The court also determined that Columbia was not subject to the general jurisdiction of the court because (1)“the activities of a school’s alumni association are not the type of systematic, continuous business activity that results in jurisdiction over the school;” (2) the maintenance of a long distance learning program over the Internet did not result in substantial contacts with State of Florida because only two of Columbia’s students with Florida addresses were enrolled in online courses; (3) contingent remainder interests in property and a mortgage that was satisfied in 1971 did not demonstrate a pervasive, commercial property ownership that would amount to a continuous and systematic business activity in Florida. The court noted that “giving a remainder interest is contingent on the election of the donor and does not depend on the acquiescence or even knowledge of the receiving party;” and (4) filing other lawsuits in Florida, many of which were actions to enforce foreign judgments, did not indicate that Columbia engaged in a pervasive litigation business.

INJUNCTIONS

MI Industries USA, Inc. v. Attorney’s Title Insurance Fund, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D905 (Fla. 4^th DCA 5/6/09)

The court certified the following question as one of great public importance:

“INCIDENT TO AN ACTION AT LAW, MAY A TRIAL COURT ISSUE AN INJUNCTION TO FREEZE ASSETS OF A DEFENDANT, WHERE THE PLAINTIFF HAS DEMONSTRATATED: (1) THE DEFENDANT WILL TRANSFER, DISSIPATE, OR HIDE HIS/HER ASSETS SO AS TO RENDER A TRIAL JUDGMENT UNENFORCEABLE; (2) A CLEAR LEGAL RIGHT TO THE RELIEF REQUESTED; (3) A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS; AND (4) A TEMPORARY INJUNCTION WILL SERVE THE PUBLIC INTEREST?

APPEALS

United Automobile Insurance Co. v. Countyline Chiropractic Center, ___ So. 2d ___, 34 Fla. L. Weekly D205 (Fla. 4^th DCA 5/6/09)

The circuit court, sitting in its appellate capacity, departed from the essential requirements of law by dismissing an appeal because of the appellant’s failure to serve its initial brief within the time ordered by the court. The appellant obtained five extensions of time to serve its initial brief. The circuit denied a sixth motion for extension and directed the appellant to file its initial brief within ten days. Because the order was mailed, the ten day period expired before the appellant received the order. Two days after the deadline expired, the appellant filed a motion for relief from the order and its initial brief, but the circuit court denied the motion and dismissed the appeal. The circuit court violated Fla.R.App.P. 9.410, which entitles a party to ten day’s notice before the imposition of sanctions. By mailing the order requiring the appellant to file its brief within ten days, the circuit court insured that the appellant would not receive adequate, much less ten day’s, notice. The appellant did not engage in the kind of willful misconduct or intentional disregard of a court order that would justify the harsh sanction of dismissal.

MARITAL SETTLEMENT AGREEMENTS; CHILD SUPPORT

Rose v. Rose, ___ So. 2d ___, 34 Fla. L. Weekly D906 (Fla. 4^th DCA 5/6/09)

A marital settlement agreement that provided the father’s duty to pay child support would end with the majority of the child even though secondary education is not yet complete was valid and enforceable, and the trial court erred by modifying the agreement fourteen years after it was incorporated in the final judgment of dissolution of marriage.

VENUE

McCarroll v. Van Dyk, ___ So. 2d ___, 34 Fla. L. Weekly 906 (Fla. 4^th DCA 5/6/09)

The plaintiff sued the defendants for failing to pay commission that he had earned. The plaintiff brought the lawsuit in Palm Beach County, where he resided. The defendants moved to transfer the lawsuit to Broward County, where the business was located and the defendants resided. The plaintiff relied upon the debtor-creditor venue rule, which provides that if “payment of a debt is the performance called for by a contract, the residence of the payee is presumed to be the place of the required performance and thus where the cause of action accrues.” The court held that the debtor-creditor venue rule did not apply in this case because (1) the plaintiff always picked up his checks at headquarters in Broward County, and (2) the debtor-creditor venue rule does not apply in an employment context.

IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; DIRECTED VERDICT; PRESERVATION OF ERROR

Meruelo v. The Mark Andrew of the Palm Beaches, Ltd., ___ So. 2d ____, 34 Fla. L. Weekly, D907 (Fla. 4^th DCA 5/6/09)

Meruelo agreed to purchase a parcel of land from The Mark Andrew and agreed to pay a bonus if he obtained approval to construct a building in excess of 600,000 square feet. The Mark Andrew sued Meruelo for breach of an implied covenant of good faith and fair dealing because Meruelo did not seek approval of a site plan in excess of 600,000 square feet. The jury found in favor of the Mark Andrew, but the appellate court reversed because the contract did not impose a duty on the buyer to seek approval to construct a building of a certain size. Therefore, there was not an express duty to which the implied duty of good faith could relate. The court rejected the seller’s argument that the buyer failed to preserve this issue for appeal by renewing his motion for directed verdict at the close of all the evidence. "When a motion for a directed verdict is made at the close of the plaintiff’s case and denied, it must be renewed at the close of all the evidence to preserve it for appellate review. If the trial court reserves ruling on the motion, the defendant must renew the motion at the close of all the evidence. The only exception is where 'the insufficiency of the evidence constitutes plain error apparent on the face of the record which if not noticed will result in a manifest miscarriage of justice.'" In this case, the court applied the manifest miscarriage of justice exception because the plain language of the contract revealed that the buyer had no duty to seek approval to build in excess of 600,000 square feet.

RELEASE

AXA Equitable Life Insurance Co. v. Gelpi, ___ So. 2d ___, 34 Fla. L. Weekly D911 (Fla. 3d DCA 5/6/09)

The language in a release, “including but not limited to,” followed by an enumeration of certain causes of action did not limit the release to the causes of action specifically listed.

INCONSISTENT VERDICTS

Granada Gardens Association, LLC v. Castro, ___ So. 2d ___, 34 Fla. L. Weekly D912(Fla. 3d DCA 5/6/09)

The jury did not return an inconsistent verdict by finding that the defendants’ negligence was the legal cause of damage to only three of the four plaintiffs. As a result, the trial court erred in directing a verdict in favor of the fourth plaintiff in the amount of his past medical expenses and then resubmitting the case to the jury and granting a new trial when the jury returned a verdict for less than the amount of the fourth plaintiff’s past medical expenses.

PIP

United Automobile Insurance Co. v. Millenium Diagnostic Imaging Center, Inc., ___ So. 2d ___, 34 Fla. L. Weekly

The Third District Court of Appeal answered two questions involving personal injury protection insurance coverage certified by the county court as being of great public importance. "We hold that (1) an insurer, in challenging a PIP claim under section 627.736(7)(a) on the ground that the treatment was not reasonable, related, or necessary may rely on a report obtained more than thirty days after the claim was submitted; and (2) under section 627.736(7)(a), the reviewing physician’s report issued to deny PIP benefits may be based on either a physical examination of the insured by the physician submitting the report or a physical examination of the insured by “another physician,” such as an IME physician." If the insurer erroneously fails to pay PIP benefits within thirty days on the ground that the treatment was not reasonable, related, or necessary, the penalty for the insurer’s mistake is liability for interest and attorney’s fees.

PROPOSAL FOR SETTLEMENT; PREJUDGMENT INTEREST

Lorillard Tobacco Co. v. French, ___ So. 2d ____, 34 Fla. L. Weekly D915 (Fla. 3d DCA 5/6/09)

The plaintiff sought attorney’s fees based upon a proposal for settlement. The court held that prejudgment interest began to run on the date on which the plaintiff obtained judgment for more than 25% of the amount of her proposal rather than the date, five years later, when the trial court overruled the defendant’s challenge to the validity, sufficiency, or good faith of the proposal. To hold otherwise, would provide the defendant with an incentive to delay the determination of the entitlement to fees.

FOREIGN JUDGMENTS; STAY PENDING APPEAL

Tettamanti v. Opcion Sociedad Anonima, ___ So. 2d___, 34 Fla. L. Weekly D917 (Fla. 3d DCA 5/6/09)

The judgment debtor obtained a stay pending appeal after the trial court domesticated an Argentine judgment. The stay was based upon Section 55.607, Florida Statutes, which authorizes a stay pending the appeal of a foreign judgment if the judgment has been stayed by the rendering court. In this case, the debtor was not entitled to a stay under the statute because the debtor did not obtain a stay of the foreign judgment from the foreign court. As a result, the debtor would be required to post a bond under Fla.R.App.P. 9.310(b)(1) in order to obtain a stay.

REAL PARTY IN INTEREST; STANDING

Juega v. Davidson, ___ So. 2d ____, 34 Fla. L. Weekly D917 (Fla. 3d DCA 5/6/09)

An agent has standing to prosecute an action on behalf of the real party in interest.

JUDGES; DISQUALIFICATION

Blake v. Waks, ___ So. 2d ___, 34 Fla. L. Weekly D919 (Fla. 3d DCA 5/6/09)

The court disqualified a probate judge who refused to disburse the net proceeds of the estate to the petitioner, who was acting under a power of attorney, because the judge, “based on nothing in the record or otherwise,” said that she did not trust the petitioner to make the required distribution to his principals.

JUDGES; DISQUALIFICATION

Marquez v. State, ___ So. 2d ___, 34 Fla. Weekly D920 (Fla. 3d DCA 5/6/09)

The court denied a petition for prohibition that challenged the failure of the trial judge to disqualify himself because the certificate of service on the motion for disqualification did not reflect that a copy was served on the trial judge.

EXCULPATORY CLAUSES

JM Family Enterprises, Inc. v. Winter Park Imports, Inc., ___ So. 2d____, 34 Fla. L. Weekly D927(Fla. 5^th DCA 5/8/09)

The court per curiam affirmed the failure to enforce an exculpatory clause. The opinion is devoid of facts or analysis but cites to a number of cases on the subject.

DOMESTIC VIOLENCE

Tacy v. Sedlar, ___ So. 2d ___, 34 Fla. L. Weekly D928 (Fla. 2d DCA 5/8/08)

The trial court erred by modifying a final judgment of injunction for protection against domestic violence to add the teenage child of the parties as a protected party. "At the evidentiary hearing held in this action, [the mother] established no conduct on the part of [the father] that demonstrated domestic violence as related to the parties’ child. Indeed, [the mother] testified that she was not scared--she simply did not want [the father] to have any involvement with the parties’ child. In short, her testimony belied her claim for injunctive relief."

AMENDMENT 7

Lakeland Regional Medical Center v. Neely, ___ So. 2d ___, 34 Fla. L. Weekly D931(Fla. 2d DCA 5/8/09)

The court held that at a hospital could not avoid disclosure of adverse medical incidents based upon the common law work product doctrine and certified to the Florida Supreme Court the following question of great public importance:

"DOES THE RIGHT OF ACCESS GRANTED PURSUANT TO AMENDMENT SEVEN, CODIFIED AS ARTICLE X, SECTION 25, OF THE FLORIDA CONSTITUTION, PREEMPT THE COMMON LAW WORK PRODUCT DOCTRINE AS IT APPLIES TO EXISTING REPORTS OF ADVERSE MEDICAL INCIDENTS?"

EQUITABLE DISTRIBUTION; MARITAL HOME

Kaaa v. Kaaa, ___ So. 2d ___, 34 Fla. L. Weekly D932 (Fla. 2d DCA 5/8/09)

The husband purchased a residence six months before the parties were married. During the course of their 27 year marriage, the parties used the residence as their martial home and used marital funds to pay the mortgage and increase the size of the lot on which the home was situated. The trial court held that the wife was entitled to an equitable distribution award of one half of the mortgage payments and one half of the increased value of the home attributable to the acquisition of additional land but that the wife was not entitled to any portion of the passive appreciation in the home. The court affirmed based upon Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003) but certified direct conflict with Stevens v. Stevens, 651 So. 2d 1306 (Fla. 1^st DCA 1995).

RELOCATION

Coyle v. Coyle, ___ So. 2d___, 34 Fla. L. Weekly D933 (Fla. 2d DCA 5/8/09)

The trial court erred in allowing the mother to relocate from Florida to New York with the two year old daughter of the parties. “[I]nstead of focusing on what was best for the child as required under the statute, the court favored the former wife because she was the primary residential parent, her reasons for relocation were genuine, and relocation would improve the quality of her life, not necessarily the life of the child. This was error.” In addition, the trial court allowed relocation before evaluating whether substitute visitation arrangements could be made to foster a continuing meaningful relationship between the father and daughter. This evaluation should have been performed before deciding whether to permit relocation.

EQUITABLE DISTRIBUTION

Abdnour v. Abdnour, ___ So. 2d ___, 34 Fla. L. Weekly D938 (Fla. 2d DCA 5/8/09)

The husband’s accumulated annual leave at the end of the marriage did not exceed the number of hours the husband had at the beginning of the marriage. As a result, his remaining annual leave hours were not a marital asset subject to equitable distribution.

The husband was not entitled to the cash value of unused sick leave. As a result, his accumulated sick leave hours were not a marital asset subject to equitable distribution.

The difference between the value of the husband’s employment related savings plan at the beginning and at the end of the marriage was marital property subject to equitable distribution.

The husband purchased the marital home two years before the marriage of the parties. It was titled solely in his name, but marital assets were used to pay down the mortgage. The amount of the pay down was a marital asset subject to equitable distribution.

The husband owned a condominium in Illinois in which his disabled father resided. The amount of marital assets used to pay down the mortgage on the nonmarital condominium was a marital asset subject to equitable distribution.

The husband liquidated certain nonmarital investments and deposited the proceeds into an E*Trade cash account with marital funds. Because money is fungible, it loses its separate character once it is commingled. As a result, the entire E*Trade account was subject to equitable distribution.

The court explained that a portion of the premium payment on a variable universal life insurance policy goes towards the cost of the policy and fees, while the remainder is invested in funds in a separate account selected by the owner of the policy. The separate investment account is no different for equitable distribution purposes from securities held in a brokerage account. In this case, the trial court erred in determining that the entire surrender value of the policy was a marital asset subject to equitable distribution. Only those shares in the separate investment account purchased with marital funds were subject to equitable distribution.

A car given to the husband by his grandfather while the husband was in high school was the premarital property of the husband and was not subject to equitable distribution.

Paintings given to the husband by his sister both before and during the marriage were his nonmarital property.

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Continue reading "SYNOPSIS OF FLORIDA CASE LAW, Volume 1, Issue 31"

FLORIDA INSURANCE LAW LETTER

nospam@example.com (Joseph S. Kashi) — Wed, 13 May 2009 18:27:21 -0400

AN INSURED'S DISSATISFACTION WITH ITS LIABILITY INSURER FOR FAILING TO SETTLE THE CLAIM OF A THIRD PARTY AGAINST THE INSURED DID NOT ENTITLE THE INSURED TO ENTER INTO AN UNAUTHORIZED SETTLEMENT WITH THE CLAIMANT.

Continental Casualty Co. v. City of Jacksonville, ___ F. 3d ___, 2008 U.S. App. LEXIS 8919 (11^th Cir. 4/22/08)

Transportation Insurance Company defended under a reservation of rights the City of Jacksonville in a toxic tort case. After conducting its own negotiations, the City stipulated to the entry of a consent judgment for $75 million but capped its own liability at $25 million. Transportation filed an action for declaratory judgment and obtained a summary judgment determining that the City vitiated coverage by breaching the cooperation clause of the policy.

On appeal, the Eleventh Circuit explained that although an insurer may defend under a reservation of rights, an insured may reject such a defense, hire its own lawyer, and seize control of the defense. In this case, however, the City accepted a defense under a reservation of rights. Therefore, Transportation was entitled to control the defense, and the City had the duty to cooperate with Transportation.

The court rejected the City’s argument that it was not required to cooperate with Transportation because Transportation violated its duty to act in good faith by failing to settle the toxic tort case. The court cited Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So. 2d 1289 (Fla. 1991), for the proposition that Transportation’s alleged bad faith failure to settle could not be considered before the City prevailed in the declaratory judgment action. The court found that the City breached its duty to cooperate by settling the toxic tort case without Transportation’s consent and over it objection. Although Transportation repeatedly asked the City to consult with Transportation before making any settlement offers and the City agreed to do so, the City engaged in numerous settlement discussions with the plaintiffs without Transportation’s knowledge or input. The court characterized the City’s conduct as duplicitous and affirmed the summary judgment for Transportation.

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This newsletter was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.

Continue reading "FLORIDA INSURANCE LAW LETTER"