Wednesday, December 28, 2011

Releases from the 3d DCA 12/28/11


In Goldblatt v. C.P. Motion, Inc., 77 So. 3d 798, 2011 Fla. App. LEXIS 20655 (Fla. 3d DCA 2011), the court reversed a judgment for $4,969,339, because it was the product of an unenforceable liquidated damages clause.  The $250,000 per breach liquidated damage  provision was held to amount to an unconscionable penalty.  See


In Giordano v. Romeo, 76 So. 3d 1100, 2011 Fla. App. LEXIS 20660 (Fla. 3d DCA 2011), the court applied the Communications Decency Act, 47 U.S.C. § 230, to provide complete immunity to Xcentric Ventures, LLC, while criticizing its business practice:  “Xcentric appears to pride itself on having created a forum for defamation.”  See


GlobeTec Constr., LLC v. Custom Screening & Crushing, Inc., 77 So. 3d 802, 2011 Fla. App. LEXIS 20635 (Fla. 3d DCA 2011), held that, while a non-signatory is not bound by an arbitration agreement, it also could not sue for fraudulent inducement.  See

Wednesday, December 21, 2011

Opinions from the 3d DCA 12/21/11

In Garcia v. State, 75 So. 3d 871, 2011 Fla. App. LEXIS 20449 (Fla. 3d DCA 2011), the court denied rehearing, but on different grounds than previously, in Garcia v. State, 35 Fla. L. Weekly D 2328 (Fla. 3d DCA October 20, 2010).  The court now reversed because the trial court did not follow the third step as required by Melbourne v. State, 679 So. 2d 759 (Fla. 1996), and prevented the criminal defendant from exercising his peremptory challenge of a juror.  See


In State v. Estrada, 2011 Fla. App. LEXIS 20454; 36 Fla. L. Weekly D 2771 (Fla. 3d DCA 2011), the court reversed the trial court for granting a sworn motion to dismiss where the cannabis weighed 26 pounds at the time of arrest (trafficking quantity), but had lost two pounds (non-trafficking quantity) 17 months later when the defense expert weighed it.

In Novastar Mortg., Inc. v. Vargas, 76 So. 3d 369, 2011 Fla. App. LEXIS 20457 (Fla. 3d DCA 2011), the court reversed the trial judge for granting a motion under Rule 1.540(b) that was unsworn, citing Carnero v. National Home Mtg. Corp., 941 So. 2d 395 (Fla. 3d DCA 2006).
In Univ. of Miami v. Francois, 76 So. 3d 360, 2011 Fla. App. LEXIS 20459 (Fla. 3d DCA 2011), the court reversed, holding that a release of an initial tortfeasor barred plaintiff’s claim against a subsequent tortfeasor where the release did not specifically reserve the right to proceed against the subsequent tortfeasor.  See
In DTRS Intercontinental Miami, LLC v. A.K. Gift Shop, Inc., 77 So. 3d 785, 2011 Fla. App. LEXIS 20453 (Fla. 3d DCA 2011), the court reversed, strictly applying F.S. § 83.232, which entitles the landlord to immediate possession where the tenant fails to pay the rent into the court registry.  See
In Estela v. Cavalcanti, 76 So. 3d 1054, 2011 Fla. App. LEXIS 20460 (Fla. 3d DCA 2011), the court reversed the trial judge for allowing service by publication even though counsel for the defendant had provided plaintiff with an address in Costa Rica and the plaintiff never attempted to serve him there.  See

Monday, December 12, 2011

Florida Supreme Court on its own Jurisdiction


The Florida Supreme Court, in  Pino v. Bank of N.Y., 76 So. 3d 927, 2011 Fla. LEXIS 2853 (Fla. 2011), held that once a question has been certified to be one of great public importance, and after the petitioner has filed his initial brief on the merits, the supreme court does not have to accept a joint stipulated dismissal from the parties and can deny a dismissal of the proceedings where the court believes that the case transcends the individual parties to the action. 
The Fourth District, sitting en banc, had certified the following question:  Does a trial court have jurisdiction and authority under Rule 1.540(b), or under its inherent authority, to grant relief from a voluntary dismissal where the motion alleges a fraud on the court in the proceedings but no affirmative relief on behalf of the plaintiff has been obtained from the court?
The decision on the merits is still pending.

Thursday, December 8, 2011

3d DCA Case on Appraisals


In State Farm Fla. Ins. Co. v. Gonzalez, 76 So. 3d 34, 2011 Fla. App. LEXIS 19530 (Fla. 3d DCA 2011), the court states that the proper way to confirm an appraisal award is by complaint, not by petition.  On a loss that occurred in 2005, and an appraisal award entered in April 2008, the homeowner filed a petition to confirm the award.  Instead of answering the petition, the insurer set the petition for hearing.  The Florida Third District Court of Appeal reversed because a petition can only be filed "when so designated by a statute or rule."  See Florida Rule of Civil Procedure 1.110(a).  It remanded with instructions to allow the insureds to file a complaint, which would relate back to the filing of the petition.  See