The Judicial Nominating Commission for the Third District yesterday decided on the following nominees for the Governor to select to replace me on the court:
Antonio Arzola
Darrin Gayles
John Greco
Tom Logue
Jose Rodriguez
Ed Sanchez
Sunday, May 13, 2012
Monday, May 7, 2012
New Opinions as of May 7, 2012
PLEADING DEFICIENCY DEFEATS THE CLAIM
Feldman v. Villa Regina Ass’n, 2012 Fla. App. LEXIS 6840 (Fla. 3d DCA May 2, 2012) should serve as a prime example of how the pleadings can serve to defeat a viable claim. Here the plaintiff chose to proceed solely on the theory that the injury to his unit was permanent and sought to recover only the diminution in the value of the condominium and loss of use (fair rental value) caused by the water intrusion. On the other hand, plaintiff could have proceeded under the theory that the property can be restored to its original condition at reasonable expense; then the measure of damages should include the cost of repairs or restoration. The jury was asked whether the damage suffered, if any, was permanent as opposed to temporary. The jury found that the damage was temporary, with no diminished value attributable to a permanent injury. But the verdict form also asked the dollar amount of damages due for a temporary injury, which the jury pegged at $1,453,000. The appellate court directed that judgment should be entered for Villa Regina.
DISMISSAL OF FORECLOSURE REVERSED
U.S. Bank N.A. v. Cowell, 2012 Fla. App. LEXIS 6838 (Fla. 3d DCA May 2, 2012). In a case filed in 2006, the trial court dismissed a foreclosure where the bank did not move for summary judgment until the end of 2010. The majority reversed because the administrative memorandum that served as the basis for this dismissal only permits sanctions after multiple deficiencies and did not support dismissal after a single deficiency, as was the case here. However, the concurring opinion reflects multiple deficiencies: first, the long delay in moving for summary judgment was a violation of the administrative order; second, the affidavit was “facially incorrect,” if not outright fraudulent; third, the motion did not mention a previously recorded equitable lien. The most viable explanation for the reversal seems to be the failure by the trial court to make the requisite findings under Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).
ARBITRATION / INJUNCTIVE RELIEF
Ayco Farms, Inc. v. Peeler, 2012 Fla. App. LEXIS 7012 (Fla. 1st DCA May 4, 2012) held that where the parties’ agreement contained a provision stating that disputes between the parties must be submitted to arbitration except that Ayco may seek to enforce the agreement by injunction, the trial court incorrectly found that Ayco had waived its right to arbitrate by filing a motion for temporary injunction.
ARBITRATION AWARD
Zofia Zak Rhodes v. Newport Bldg. & Constr., Inc., 2012 Fla. App. LEXIS 7008 (Fla. 2d DCA May 4, 2012) explained that once a party pays an arbitration award in full, the trial court erred granting a motion to enforce and convert the arbitration decision to judgment and foreclose a mechanic’s lien. Once the defendants paid the arbitration award, it was unnecessary to enforce the lien.
ATTORNEY’S FEES / PROPOSAL FOR SETTLEMENT
Pratt v. Weiss, 2012 Fla. App. LEXIS 6888 (Fla. 4th DCA May 2, 2012) affirmed an award of attorney’s fees made pursuant to a proposal for settlement. The court rejected the argument that the offer was ambiguous because the offer was made on behalf of the single hospital entity allegedly responsible. The release referred to the two companies that owned, controlled, or maintained the single hospital entity allegedly responsible. The defendants’ failure to apportion the offer did not run afoul of the statute, rule or any case law interpreting those provisions.
Wednesday, April 25, 2012
New Opinions
CO-TRUSTEES PERSONALLY LIABLE
In Jacobson v. Sklaire, 2012 Fla. App. LEXIS 6373 (Fla. 3d DCA Apr. 25, 2012), a divided court affirmed a judgment against the co-trustees for fees and costs assessed against the trust, where the co-trustees had, without court approval, paid their own fees out of the same trust during the course of the litigation. The dissent would have made the appellees file a separate action against the co-trustees.
SUMMARY JUDGMENT / AGENCY
In So. Fla. Coastal Elec. v. Treasures on the Bay II Condo Ass'n, 2012 Fla. App. LEXIS 6374 (Fla. 3d DCA Apr. 25, 2012), a divided court reversed the summary judgment granted against a contractor for electrical work performed on a condominium building because the record revealed material issues of fact on an affirmative defense. The defense was that the contract had been with the developer, not the association. The unresolved issues were whether an agency relationship existed between the association and the developer, and there was confusion as to the names for the two, both called “Treasures on the Bay.” The dissent complained that the agency theory was never pled.
ARBITRATION
reversed the denial of the motion to compel arbitration, holding that arbitration was required not only for the controversy which the parties explicitly agreed to arbitrate, but also those disputes based on other documents that dealt with the same loan and were executed on the same day, but did not contain an arbitration clause.
DISMISSAL OF APPEAL
dismissed an appeal filed by a party that had failed to purge the trial court’s finding of contempt and writ of bodily attachment because a party in contempt cannot invoke the authority of the appellate court. Before the dismissal became effective, the court granted appellant twenty days to comply with the trial court’s orders.
ATTORNEY’S FEES
Dish Network Serv. L.L.C. v. Myers, 2012 Fla. App. LEXIS 6480 (Fla. 2d DCA Apr. 25, 2012) reversed a contingent-fee multiplier of 2.0 to award $176,992.64 in fees where the damage award was only $6,000 in a small claims action “run amok.”
Friday, April 20, 2012
MEDICAL MALPRACTICE / BLOOD BANKS
Fitchner v. Lifesouth Cmty. Blood Ctrs., 2012 Fla. App. LEXIS 5627 (Fla.
PRODUCTS LIABILITY – SMOKING
R. J. Reynolds Tobacco Co. v. Webb, 2012 Fla. App. LEXIS 5324 (Fla. 1st DCA Apr. 9, 2012) affirmed a liability judgment against RJR but reversed the $79 million award. It rejected the statute of limitations argument that developing COPD should have put the plaintiff on notice of the cancer to which he eventually succumbed. But the damage award of $7 million compensatory shocked the judicial conscience.
Frazier v. Philip Morris USA Inc., 2012 Fla. App. LEXIS 5476 (Fla. 3d DCA Apr. 11, 2012) reversed a defense verdict because the trial court had denied plaintiff’s motion for a directed verdict on statute of limitations defense. First, there was no competent record evidence that the accumulated effects of the smoking had manifested in a way which supplied to plaintiff some evidence of the causal relationship to the manufactured product before the undisputed limitations bar date of May 5, 1990.
CLASS ACTIONS
Baptist Hosp., Inc. v. Baker, 2012 Fla. App. LEXIS 5320 (Fla. 1st DCA Apr. 9, 2012) struck a class certification challenging the liens imposed by defendant hospital, on standing grounds, where the plaintiff testified in his deposition that he had no issues with the services he was provided by the hospital or the amount he was billed for those services. He further testified that if he was successful in the suit against the hospital, he did not anticipate a financial gain and he candidly acknowledged that any money he received from the suit would be given right back to the hospital.
SUMMARY JUDGMENT OF FORECLOSURE
Harvey Covington & Thomas, LLC v. W M C Mortg. Corp., 2012 Fla. App. LEXIS 5818 (Fla. 1st DCA Apr. 17, 2012) reversed a summary judgment of foreclosure where the defendant was seeking discovery regarding affidavits submitted by plaintiff.
STATUTE OF LIMITATIONS / THIRD-PARTY ACTIONS
Graney v. Caduceus Props., LLC, 2012 Fla. App. LEXIS 5814 (Fla. Dist. Ct. App. 1st Dist. Apr. 17, 2012) a divided court held that a third-party complaint does not relate back to the filing date of the original complaint under Florida Rule of Civil Procedure 1.190(c), reasoning that where the purpose of the amendment is to
bring a new party into the suit, the relation-back doctrine does not apply, and dismissal on time-barred grounds is proper. The court certified conflict with the Gatins v.Sebastian Inlet
bring a new party into the suit, the relation-back doctrine does not apply, and dismissal on time-barred grounds is proper. The court certified conflict with the Gatins v.
FRAUD ON THE COURT
Pena v. Citizens Prop. Ins. Co., Case No. 2D10-2397 (Fla.
Sunday, April 1, 2012
New Opinions for the Week ending on March 30, 2012
CLASS ACTION - ENGLE
Philip Morris United States v. Douglas, 2012 Fla. App. LEXIS 4991 (Fla. 2d DCA Mar. 30, 2012) affirmed a jury verdict of $2.5 million as damages, but certified the following question: “Does accepting as res judicata the eight Phase I findings approved in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), violate the tobacco companies’ due process rights guaranteed by the Fourteenth Amendment of the U.S. Constitution?”
FORECLOSURES
Osorto v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 4870 (Fla. 4th DCA Mar. 28, 2012) reversed the entry on a final judgment of foreclosure because there was still discovery outstanding.
Castelo Dev., LLC v. Aurora Loan Servs. LLC, 2012 Fla. App. LEXIS 4863 (Fla. 4th DCA Mar. 28, 2012) affirmed the denial of a motion to confirm an electronic foreclosure sale because the notice of sale was not published in advance of the foreclosure sale as required by F.S. § 45.031.
MEDICAL MALPRACTICE
Berry v. Padden, 2012 Fla. App. LEXIS 4852 (Fla. 4th DCA Mar. 28, 2012) affirmed the dismissal of the medical malpractice complaint because the plaintiff failed to provide the statutorily required verified written opinion corroborating the reasonable grounds for initiating the medical negligence litigation. “The law is well-established that a properly verified, corroborating medical expert opinion must be provided by the plaintiff to the defendant prior to expiration of the statute of limitations... In this case, the plaintiffs provided the defendants with only an unverified, corroborating medical expert opinion prior to the expiration of the statute of limitations.”
SERVICE OF PROCESS
Carone v. Millennium Settlements, Inc., 2012 Fla. App. LEXIS 4864 (Fla. 4th DCA Mar. 28, 2012) reversed the denial of a motion to quash service of process because the record contained no competent, substantial evidence to justify the court's denial of the motion. The return of service was regular on its face, and thus service of process was presumed to be valid. However, the defendant met her burden of overcoming that presumption by clear and convincing evidence where the court found the father’s testimony to be undisputed that: (1) he did not reside in the defendant’s home; and (2) he did not tell the process server that he resided in the defendant’s home. The only evidence which the plaintiffs submitted was the process server’s testimony that “he had no specific recollection of serving court papers upon the Father, but that it is his practice when attempting substituted service to inquire of recipients whether they reside with the parties to be served.” The appellate court concluded that the process server’s “practice” did not constitute competent, substantial evidence to rebut the father’s testimony.
APPEALS
Clevens v. Omni Healthcare, 2012 Fla. App. LEXIS 4995 (Fla. 5th DCA Mar. 30, 2012) dismissed the appeal, rejecting the argument that the order was appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(B), as orders that “grant, continue, modify, deny, or dissolve injunctions.” The order here declared that certain provisions of the settlement agreement were binding and enforceable, nothing more. The order directed the parties to meet to negotiate further, which was more akin to a case management order regulating the conduct of the parties before the court, than an injunction.
CHOICE OF LAW
Higgins v. W. Bend Mut. Ins. Co., 2012 Fla. App. LEXIS 4996 (Fla. 5th DCA Mar. 30, 2012) affirmed the trial court’s final order entering summary judgment in favor of the insurer in this first-party bad faith action. The case, asking which contract choice of law rule applies to first-party bad faith actions, presented a question of first impression. The court determined that lex loci contractus applied to such actions.
Friday, March 23, 2012
New Releases for the Week Ending March 23, 2012
PERSONAL JURISDICTION
Kitroser v. Hurt, 2012 Fla. LEXIS 589 (Fla. Mar. 22, 2012) held that the corporate shield doctrine does not bar personal jurisdiction over an individual defendant where that non-resident individual commits negligent acts in Florida
WORKER’S COMPENSATION IMMUNITY
Ocean Reef Club v. Leon, 2012 Fla. App. LEXIS 4352 (Fla.
RULE 1.530
Byrne v. Byrne, 2012 Fla. App. LEXIS 4350 (Fla.
DISQUALIFICATION OF COUNSEL
Broin v. Phillip Morris Cos., 2012 Fla. App. LEXIS 4357 (Fla.
TEMPORARY INJUNCTIONS WITHOUT NOTICE
Harambam Congregation v. Simcha Connection, 2012 Fla. App. LEXIS 4360 (Fla.
SANCTIONS / MEDIATION
Cox v. Great Am. Ins. Co., 2012 Fla. App. LEXIS 4475 (Fla. Dist. Ct. App. 4th Dist. Mar. 21, 2012) explained that an order imposing sanctions under Florida Rule of Civil Procedure 1.730(c), for breach of a mediation agreement, must contain detailed factual findings describing the specific acts of conduct that justify the imposition of such sanctions.
Thursday, March 15, 2012
New Releases for March 15, 2012
VENUE
In Brown v. Nagelhout, 2012 Fla. LEXIS 552 (Fla. Mar. 15, 2012), a unanimous supreme court receded from Enfinger v. Baxley, 96 So. 2d 538 (Fla.
FORECLOSURE
Fed. Home Loan Mortg. Corp. v. De Souza, 2012 Fla. App. LEXIS 4059 (Fla.
ARBITRATION
Apt. Inv. & Mgmt. Co. v. Flamingo/South Beach 1 Condo. Ass'n, 2012 Fla. App. LEXIS 4030 (Fla.
SERVICE BY PUBLICATION
Drury v. Nat'l Auto Lenders, 2012 Fla. App. LEXIS 4065 (Fla.
ARBITRATION / RECUSAL
Block v. Searcy, 2012 Fla. App. LEXIS 4096 (Fla.
DEFICIENCY JUDGMENT
Beach Cmty. Bank v. First Brownsville Co., 2012 Fla. App. LEXIS 4133 (Fla.
CONTRIBUTION
Healthcare Staffing Solution, Inc. v. Wilkinson, 2012 Fla. App. LEXIS 3847 (Fla. Dist. Ct. App. 1st Dist. Mar. 12, 2012) held that the “entire liability” as used in F.S. §768.31, means the amount of the settlement, not the potential value of the underlying claim. Thus a tortfeasor may be compelled to pay his or her own pro rata share of the amount of the settlement, provided there is no challenge to the reasonableness of the settlement, instead of the potential value of the claim had the case gone to trial.
VERIFICATION
Trucap Grantor Trust 2010-1 v. Pelt, 2012 Fla. App. LEXIS 4098 (Fla.
WAIVER OF SERVICE OF PROCESS
Digiovanni v. Bac Home Loans Servicing, L.P., 2012 Fla. App. LEXIS 4117 (Fla.
PRIVILEGE / CERTIORARI
Bennett v. Berges, 2012 Fla. App. LEXIS 4119 (Fla.
WAIVER OF SERVICE OF PROCESS
Byers v. Fia Card Servs., N.A., 2012 Fla. App. LEXIS 4118 (Fla.
CONTEMPT
Parris v. Silveira, 2012 Fla. App. LEXIS 4129 (Fla.
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