Opinions from the 1st DCA

ATTORNEY'S FEES

In Waddington v. Baptist Med. Ctr. of the Beaches, Inc., 78 So. 3d 114 (Fla. 1st DCA 2012), the court imposed sanctions under F.S. § 57.105 against plaintiff for pursuing an appeal of a summary judgment in favor of the hospital where the action had been based on vicarious liability for a doctor who himself had obtained a favorable summary judgment which had been affirmed, thus constituting the law of the case.

http://opinions.1dca.org/written/opinions2012/01-30-2012/10-6456.pdf

CONDOMINIUMS

In Harbor Condominium Owners Assoc., Inc. v. Harbor Landing, L.L.C., 78 So. 3d 120 (Fla. 1st DCA 2012), the court held that a manufacturer is not a “supplier” as that term is used in F.S. § 718.203(2), which pertains to condominium warranties.

http://opinions.1dca.org/written/opinions2012/01-30-2012/11-2052.pdf

Releases 01/27/12

ARBITRATION

Lepisto v. Senior Lifestyle Newport Ltd. P'ship,  78 So. 3d 89, 2012 Fla. App. LEXIS 979 (Fla. 4th DCA 2012) reversed an order compelling arbitration where the wife enrolled her husband into an assisted living facility and signed the agreement containing the arbitration clause, where it was clear from the layout of the agreement that she was signing only as the Financially Responsible Party, not as the Resident’s Representative.

http://www.4dca.org/opinions/Jan%202012/01-25-12/4D10-16.op.pdf

DEFAULT

In Baleanu v. Sandulescu, 78 So. 3d 98, 2012 Fla. App. LEXIS 976 (Fla. 4th DCA 2012), the court held that where an individual defendant and a corporate defendant are sued, and on the day of trial, the individual appears pro se for himself and for the corporate defendant, it was error for the court to enter a default against the corporate defendant without prior notice, but the final judgment against the individual defendant was affirmed for lack of a transcript.

http://www.4dca.org/opinions/Jan%202012/01-25-12/4D10-2736.op.pdf

MOTION FOR REHEARING

In Brander v. Stoddard, 78 So. 3d 101, 2012 Fla. App. LEXIS 982 (Fla. 4th DCA 2012), the court reversed a dismissal for failure to serve indispensable parties within 120 days of filing the complaint under Fla. R. Civ. P. 1.070(j).  At the hearing, plaintiff’s counsel mistakenly advised the trial court that the indispensable parties had not been served.  Plaintiff moved for rehearing, claiming that the parties had indeed been served.  The motion was summarily denied.  “The invited error rule is inapplicable because [plaintiff] brought the mistake to the trial court’s attention in a motion for rehearing, rather than raising the issue for the first time on appeal.”

http://www.4dca.org/opinions/Jan%202012/01-25-12/4D10-4667.op.pdf

MOTION FOR RELIEF FROM JUDGMENT

Lake Charleston Homeowners Ass'n v. Haswell, 77 So. 3d 922, 2012 Fla. App. LEXIS 984 (Fla. 4th DCA 2012) reversed an order granting a motion for relief from judgment pursuant to Fla. R. Civ. P. 1.540(b)(3), based on the fact that the association misnamed itself in the affidavit in support of its motion for summary judgment.  The trial court found that there was no intent to defraud, but it had been simply an error.  The trial court thus misapplied its findings of fact to the law, which required fraud, misrepresentation or other misconduct.

http://www.4dca.org/opinions/Jan%202012/01-25-12/4D10-4974.op.pdf

SETTLEMENTS

Trout v. Apicella, 78 So. 3d 681, 2012 Fla. App. LEXIS 1049 (Fla. 5th DCA 2012) is another example of an insurance company trying ineffectively to settle a case for the policy limits in an accident involving serious injuries.  The court reasoned that the offer by plaintiff's attorney was an offer for a unilateral contract that required performance by Geico.  "Instead of performing, however, Geico proffered a release that did not just fail to meet the terms of [plaintiff's] offer, it blatantly failed."  Simply stating that the carrier did not consider the release to be a document creating new terms or conditions did not make it so.  Thus, there was no settlement and summary judgment for Geico was improperly granted.

http://www.5dca.org/Opinions/Opin2012/012312/5D11-592.op.pdf

Florida Supreme Court Cases 1/26/12

PRESERVATION

Bright v. State, 2012 Fla. LEXIS 1060 (Fla. May 31, 2012) reiterated the need for a contemporaneous objection at the time an improper closing argument is made, not at the end of the argument.  Here defense counsel failed to lodge a contemporaneous objection to the State’s closing statement. Instead, defense counsel waited until the prosecutor completed her argument to object and move for a mistrial. The court concluded that the objection to the prosecutor’s closing statement was not preserved for appeal. 

http://www.floridasupremecourt.org/decisions/2012/sc09-2164.pdf

PRESUMPTIONS AND SINKHOLES

In Universal Ins. Co. of N. Am. v. Warfel, , 82 So. 3d 47, 2012 Fla. LEXIS 195 (Fla. 2012), the court held that there was nothing in the sinkhole claim process statutory scheme enacted in 2005 to apply that scheme in the litigation context.  Even if the scheme did apply, in the absence of clear language to the contrary, statutory presumptions are governed by F.S.§ 90.303 (the “vanishing” presumption), rather than F.S. § 90.304 (the presumption shifting the burden of proof).

http://www.floridasupremecourt.org/decisions/2012/sc10-948.pdf

Case from the 1st DCA 1/24/12

FORECLOSURES

Blue v. Covington County Bank, 77 So. 3d 909, 2012 Fla. App. LEXIS 805  (Fla. 1st DCA 2012) dismissed the appeal filed by Blue because the trial court reserved jurisdiction to determine the fair market value of the foreclosed property, making the appeal premature.  The court rejected Blue’s argument that the orders were final because the Summary Final Judgment was enforceable against him in the entire amount owed less the amount of the credit. “In post-foreclosure proceedings to establish a deficiency judgment, the trial court must determine the value of property sold in satisfaction of the underlying debt… In light of the reservation of jurisdiction, the trial court’s judicial labor is not complete and the orders are not final. …  Finally, although the Court lacks jurisdiction to address the merits of the appeal, it is worth noting that where a trial court has determined that a hearing is necessary to determine the amount of a deficiency, if any, a mortgagee should not be permitted to attempt to execute on a promissory note following the foreclosure sale and before entry of a deficiency judgment.” 

See http://opinions.1dca.org/written/opinions2012/01-24-2012/11-0204.pdf

Releases from the 5th DCA 01/20/12

EQUITABLE DISTRIBUTION

Robertson v. Robertson, 78 So. 3d 76, 2012 Fla. App. LEXIS 670 (Fla. 5th DCA 2012) held that where the husband registered a domain name in his name ten days before the wedding in order to develop a website, the trial court correctly found that the domain name and the website business were nonmarital property. However, because the husband continued to work on his website, becoming the business from which the family derived the majority of its income, the wife was entitled to have the enhanced value of the business considered as part of the equitable distribution because it was the husband’s efforts during the marriage that enhanced the value of the website business.  

See http://www.5dca.org/Opinions/Opin2012/011612/5D09-4060.op.pdf

STANDING / SANCTIONS

In Deutsche Bank Nat'l Trust Co. v. Lippi, 78 So. 3d 81, 2012 Fla. App. LEXIS 679 (Fla. 5th DCA 2012), the court reversed an order dismissing the bank’s complaint as a sanction.  The bank established standing by being the holder of the note and mortgage in question.  The blank endorsement meant the note was payable to the bearer.  The dismissal did not comply with Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). 

See http://www.5dca.org/Opinions/Opin2012/011612/5D10-946.op.pdf

ATTORNEY’S FEES

Barreau v. Peachtree Cas. Ins. Co., , 79 So. 3d 843, 2012 Fla. App. LEXIS 673 (Fla. 5th DCA 2012) held that where the insurer took almost nine months to make payments under its policy, it was error in not awarding attorney’s fees for the time spent in pursuing the insured’s claims where the record was devoid of any factual basis for the insurer’s belief that the insured had staged the accident.

See http://www.5dca.org/Opinions/Opin2012/011612/5D10-3637.op.pdf

Releases from the 4th DCA 01/18/12

MEDICAL MALPRACTICE

Stubbs v. Surgi-Staff, Inc., 78 So. 3d 69, 2012 Fla. App. LEXIS 531 (Fla. 4th DCA 2012) held that where a hospital orderly instructed plaintiff to move from a test bed to a gurney and then she fell while attempting this due to the orderly’s negligence, the trial court properly dismissed the case for failure to comply with Florida Statutes chapter 766’s pre-suit requirements.  The complaint was based on medical malpractice because it sounded in negligence attributable to the orderly’s provision of medical care and services.

See http://www.4dca.org/opinions/Jan%202012/01-18-12/4D10-691.op.pdf

FAILURE TO PROSECUTE

In DRD Marine Corp. v. Byrd Techs., Inc., 77 So. 3d 867, 2012 Fla. App. LEXIS 525 (Fla. 4th DCA  2012), the court reversed a dismissal for failure to prosecute pursuant to a motion filed in 2010, alleging “large gaps of non-record activity which occurred before 2008.”  First, the defendant did not file the notice required under rule 1.420(e), and second, there was record activity in the ten months immediately preceding the service of the motion.

See http://www.4dca.org/opinions/Jan%202012/01-18-12/4D10-4773.op.pdf

MOTION TO VACATE

In Block v. Tosun, 77 So. 3d 871, 2012 Fla. App. LEXIS 534 (Fla. 4th DCA 2012), the court reversed an order setting aside a 1992 default final judgment that was granted without an evidentiary hearing.  After nearly 18 years of no record activity, defendant was served with a subpoena in aid of execution, prompting the motion to vacate.  The original return of service had been destroyed by the clerk.  The court held that the clerk’s progress docket, together with the fact that a final judgment had been entered, did not warrant the same weight as a facially valid return of service but was sufficient to create a rebuttable presumption which defendant will have to defeat at an evidentiary hearing with credible, admissible evidence that he was not properly served with process.

See http://www.4dca.org/opinions/Jan%202012/01-18-12/4D11-1594.op.pdf

Florida Supreme Court on Attorney's Fees

ATTORNEY'S FEES

In Petty v. Fla. Ins. Guar. Ass'n, 80 So. 3d 313 (Fla. 2012), the court held that attorneys’ fees awarded pursuant to F.S. § 627.428(1), cannot be recovered against FIGA under F.S. § 631.54(3).  FIGA is only obligated to pay for “covered claims” that existed prior to an insurer’s adjudication of insolvency. Therefore, unless the policy provided for attorney’s fees, the insured may not recover them against FIGA. 

See http://www.floridasupremecourt.org/decisions/2012/sc10-2097.pdf

Releases from the 3d DCA 01/18/12

AMENDMENTS AND EXPERT WITNESSES

In Sunbeam TV Corp. v. Mitzel, 83 So. 3d 865 (Fla. 3d DCA 2012), the court reversed a final judgment awarding damages on a discrimination claim in favor of a reporter whose contract Chanel 7 opted to terminate because the trial court erred when, years into the litigation, and the defendant had filed its motion for summary judgment, the trial court permitted plaintiff to change the theory of her case from one of strictly age discrimination to a new claim of age-plus-sex discrimination and allowed a trial to proceed on this theory.  The court also criticized the opinions of plaintiff’s expert witness because the witness condemned the broadcast news industry in general, not the practices at Chanel 7.

FORUM NON CONVENIENS

In Rolls-Royce, Inc. v. Garcia, 77 So. 3d 855 (Fla. 3d DCA 2012), the court reversed an order denying the defendants’ motion to dismiss based upon forum non conveniens.  The case involved the accidental crash in Mexico of a helicopter owned by the Mexican government, with three Mexican citizens inside.  The helicopter was designed and manufactured by Bell Helicopter Textron, Inc.. Rolls Royce manufactured the helicopter’s engine, and various sub-component parts of the engine were manufactured by Goodrich Pump & Engine Control Systems and Simmonds Engine Precision Products, Inc., all Delaware corporations except Simmonds, a New York corporation.  The court rejected plaintiff’s argument that a significant portion of evidence was located in Florida because plaintiffs’ counsel had litigated multiple other cases involving problems with the Bell 407 helicopter and there were “boxes upon boxes” of documents and deposition transcripts from those other cases located in the Miami office of plaintiffs’ counsel. 

STIPULATIONS

In LPI/Key W. Assocs. v. Beachcomber Jewelers, Inc., 77 So. 3d 852 (Fla. 3d DCA 2012), the court reversed because the parties had entered into a pretrial stipulation and no one ever sought relief from the stipulation by making a reasonable motion to withdraw the stipulation supported by a showing of good cause.  The stipulation had been voluntarily undertaken with no indication that the agreement was obtained by fraud, misrepresentation, or mistake of fact.  In seeking relief, defense counsel merely stated that he felt pressured into executing the pretrial stipulation.

Case from the 1st DCA on Arbitration

ARBITRATION

Perdido Key Island Resort Dev. v. Regions Bank, 2012 Fla. App. LEXIS 356 (Fla. 1st DCA January 13, 2012) held that where a promissory note contained a narrowly drawn arbitration provision, but the mortgage note and personal guarantees did not, the obligation to arbitrate did not carry to the guarantors.  The mortgage, however, involved identical parties as the note and contained a clause incorporating all the terms of the note, making the mortgage foreclosure arbitrable. 
See http://opinions.1dca.org/written/opinions2012/01-13-2012/11-4009.pdf

Florida Supreme Court on Amendment 7

In W. Fla. Reg'l Med. Ctr. v. See, 79 So. 3d 1, 2012 Fla. LEXIS 55 (Fla. 2012), a unamimous Florida Supreme Court held that a blank application for medical staff privileges does not fall within the scope of confidentiality protections provided by F.S. §§ 766.101(5) and 395.0191(8), but even if it did, Amendment 7 requires disclosure.  Furthermore, the Health Care and Quality Improvement Act of 1986 (“HCQIA”) does not preempt the disclosure of peer review materials as required by Amendment 7. 
See http://www.floridasupremecourt.org/decisions/2012/sc09-1997.pdf

Releases from the 4th DCA 01/11/12

AUDIT INTERFERENCE

In Schein v. Ernst & Young, LLP, 77 So. 3d 827, 2012 Fla. App. LEXIS 160 (Fla. 4th DCA 2012) the court applied Illinois’ audit interference doctrine, which permits evidence of a client’s negligence where the client interferes with an auditor’s services, but found that there was no evidence that appellants had interfered, so the trial court erred in denying their motion for a directed verdict on this comparative negligence defense.  See http://www.4dca.org/opinions/Jan%202012/01-11-12/4D09-3614.op.pdf

ATTORNEY’S FEES

In Krock v. Rozinsky, 78 So. 3d 38, 2012 Fla. App. LEXIS 161, (Fla. 4th DCA 2012), the court affirmed an award of attorney’s fees and cost in the amount of $163,415, pursuant to a proposal for settlement.  The court found no abuse of discretion in the denial of a third request for continuance, despite appellant’s medical condition.  In reaching its decision, the court listed the factors to be considered, including the fact that: (1) the motion had been pending for almost a year and (2) the issue was such as to require expert attorney testimony, rather than the testimony of the appellant.  See http://www.4dca.org/opinions/Jan%202012/01-11-12/4D09-4815.op.pdf

JUROR INTERVIEWS

Rodgers v. After Sch. Programs, Inc., 78 So. 3d 42, 2012 Fla. App. LEXIS 165 (Fla. 4th DCA 2012) affirmed the denial of plaintiff’s motion to interview four jurors for failure to disclose information because of plaintiff’s lack of diligence in uncovering the information during voir dire.  See http://www.4dca.org/opinions/Jan%202012/01-11-12/4D10-1307op.pdf

FORECLOSURE

In Beaulieu v. JPMorgan Chase Bank, 80 So. 3d 365, 2012 Fla. App. LEXIS 181 (Fla. 4th DCA 2012), the court affirmed the denial of a motion to vacate a final judgment of foreclosure challenging appellee’s standing because it had not proved that it was duly assigned the mortgage note.  Because appellant was defaulted, she could not contest the allegation of the complaint.  The original note and mortgage were filed in the foreclosure action and entitled appellee to the final judgment it obtained.  Appellant’s other challenges were barred because a motion under Rule 1.540(b) cannot be used as a substitute for a motion for rehearing or an appeal.  See http://www.4dca.org/opinions/Jan%202012/01-11-12/4D10-5288.op.pdf

REPLEVIN

In Keybank Nat'l Ass'n v. Passport Marine, Inc., 76 So. 3d 1137, 2012 Fla. App. LEXIS 187 (Fla. 4th DCA 2012), the court reversed a final judgment in a replevin action at a hearing scheduled to determine appellant’s motion for prejudgment possession of a boat under F.S. § 78.067, because the hearing was not noticed as a final hearing.  See http://www.4dca.org/opinions/Jan%202012/01-11-12/4D11-10.op.pdf

FAMILY LAW

In Baudanza v. Baudanza, 78 So. 3d 656, 2012 Fla. App. LEXIS 176 (Fla. 4th DCA 2012), the court reversed the trial court sitting in the family division for dismissing a case for lack of jurisdiction because there had been an adoption of the child subsequent to the dissolution action.  The adoption court had not retained jurisdiction over the matter, while the family division had retained jurisdiction of the parties and the subject matter.  See http://www.4dca.org/opinions/Jan%202012/01-11-12/4D10-4068.op.pdf

In Khan v. Khan, 79 So. 3d 99, 2012 Fla. App. LEXIS 190 (Fla. 4th DCA 2012), the court reversed an order striking a motion for an increase in temporary alimony and attorney’s fees and costs based on a Marital Settlement Agreement in which the parties had agreed to pay their own attorney’s fees in any dissolution proceeding. An agreement that waives or limits the right to request temporary support and attorney’s fees to a spouse in need in a pending dissolution action is a violation of public policy.  See http://www.4dca.org/opinions/Jan%202012/01-11-12/4D11-460.op.pdf

PROHIBITION

Ross v. Ross, 77 So. 3d 238, 2012 Fla. App. LEXIS 186 (Fla. 4th DCA 2012) granted a writ of prohibition barring the trial judge from continuing to preside over post-dissolution proceedings after the judge had granted a motion to disqualify.  See http://www.4dca.org/opinions/Jan%202012/01-11-12/4D11-2707.op.pdf

Releases from the 3d DCA 01/11/12

Only four criminal opinions were released today: two confessions of error and two PCAs with a cite.

Two Cases from the Fifth DCA 1/6/12

DISCOVERY


In Nationwide Ins. Co. v. Nelson, 83 So. 3d 863, 2012 Fla. App. LEXIS 50 (Fla. 5th DCA 2012), the court granted certiorari quashing a discovery order requiring an insurer to produce all home inspection reports that its engineers had generated on its behalf during a three-year period because the discovery request was overbroad and unduly burdensome.  See http://www.5dca.org/Opinions/Opin2012/010212/5D11-876.op.pdf

APPELLATE MEDIATION / SANCTIONS

And in Carden & Assocs. v. C.O.D. Trees P'ship, 83 So. 3d 862, 2012 Fla. App. LEXIS 49 (Fla. 5th DCA 2012), the court granted sanctions for failure to appear at an appellate mediation in violation of the court’s order. Neither the individual appellant nor a representative of the corporate appellant attended the mediation; only their insurance company representative and attorney appeared. The two appellants were ordered to pay as sanctions within 30 days all fees charged by the mediator in connection with the appellate mediation; and, appellee’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation and filing the motion for sanctions.

See http://www.5dca.org/Opinions/Opin2012/010212/5D11-2960.op.pdf

A Case From the Second on Attorney's Fees

ATTORNEY'S FEES


In Alorda v. Sutton Place Homeowners Ass'n, 82 So. 3d 1077, 2012 Fla. App. LEXIS 43 (Fla. 2d DCA 2012), the court reversed an award of prevailing party attorney’s fees for a condominium association that filed suit against an owner for injunctive relief based on the fact that the owners had repeatedly failed to obtain homeowner’s insurance on their unit.  The opinion reasoned that courts cannot award fees based on a prevailing party theory where that party can never prevail because the complaint, on its face, fails to state a cause of action.  See http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/January/January%2006,%202012/2D10-3966.pdf

Case from 1st DCA on Medical Malpractice

MEDICAL MALPRACTICE

In Duss v. Garcia, 80 So. 3d 358, 2012 Fla. App. LEXIS 44 (Fla. 1st DCA 2012), the court affirmed a jury verdict in a medical malpractice action against an obstetrician for allegedly using a fetal vacuum extractor negligently during the delivery causing the newborn to sustain brain injury, leaving him with cerebral palsy. The appeal challenged two evidentiary rulings: (1) the exclusion on plaintiff’s standard of care testimony, and (2) allowing the defendants to bolster their experts’ opinions with authoritative publications.  The First District found no abuse of discretion in the trial court’s rulings.  

As to the first issue, the court stated that any testimony linking breach of the standard of care to the child’s neurological injury went to causation and exceeded the scope of matters on which the expert was qualified to give an opinion at trial.  In any event, plaintiff was allowed to present sufficient other testimony so as to suffer no prejudice from the ruling.  As to the second issue, the trial court did not abuse its discretion in allowing one defense expert to testify that in the medical literature, the expert had never heard of a vacuum assist causing the neurological damage suffered here.  Another expert was allowed to discuss the results of  a study by the National Institutes of Health. http://opinions.1dca.org/written/opinions2012/01-06-2012/10-5460.pdf

Releases from the 3d DCA 01/04/12

DIRECTED VERDICT


In Saewitz v. Saewitz, 79 So. 3d 831, 2012 Fla. App. LEXIS 29 (Fla. 3d DCA 2012), the court affirmed a directed verdict in a suit for conversion and tortious interference with an expected inheritance brought by the daughters of the deceased, against the widow.  Although the daughters presented a prima facie case on liability, they failed to prove damages where they only presented general testimony that the value of the assets in the litigation was “over a million dollars.” 
http://www.3dca.flcourts.org/Opinions/3D10-1570.pdf

JURISDICTION

In Brodeur v. Miami-Dade County, 81 So. 3d 491, 2012 Fla. App. LEXIS 31 (Fla. 3d DCA 2012), the court reversed a dismissal for lack of subject matter jurisdiction of a complaint by a member of a Zoning and Appeals Board where the initial vote on the matter resulted in a three-three tie and it was announced that a tie vote would cause the matter to carry over to the next meeting.  The member then left ill and the board proceeded to reconsider the matter and pass it.  The member was not challenging the  result but the procedure.  See   http://www.3dca.flcourts.org/Opinions/3D11-0503.pdf

The Code has since been amended with language added which would prevent a repeat of the member’s claim.

SERVICE OF PROCESS

In Verabella Falls Condo., Ass'n v. Sosa, 77 So. 2d 815, 2012 Fla. App. LEXIS 36 (Fla. 3d DCA  2012), Judge Emas wrote a concurring opinion discussing service of process on a corporate defendant and drawing a distinction between serving a domestic corporation, which must designate an agent for service of process, and a foreign corporation, which has to be served following the hierarchy delineated in F.S. § 48.081. 
http://www.3dca.flcourts.org/Opinions/3D11-0815.pdf