Wednesday, February 15, 2012

Releases 02/15/12


Bendross v. Readon, 2012 Fla. App. LEXIS 2162, 3D11-1526 (Fla. 3d February 15, 2012) held that the doctrine is not apply to a suit alleging that the defendants had improperly attempted to remove members of the Board of Trustees because it was entirely controlled by neutral application of F.S.§ 617.0808, and did not implicate religious doctrine, policies or practices.


In Mejia v. United Auto. Ins. Co., 83 So. 3d 897 (Fla. 3d DCA 2012), the plaintiff voluntarily dismissed his lawsuit and United Auto obtained a cost judgment, which Mejia appealed.  After affirming, the circuit court awarded United Auto appellate attorney’s fees pursuant to F.S.§ 768.79.  The district court granted certiorari explaining that United Auto was not entitled to fees because Mejia’s dismissal had been without prejudice.

In Mercury Ins. Co. v. RPM Medical Ctr., 2012 Fla. App. LEXIS 2165, 3D11-2466 (Fla. 3d DCA February 15, 2012), the court likewise quashed an award of appellate attorney’s fees where it was not conditioned upon the insured ultimately prevailing in the underlying proceeding.

In King v. State, 2012 Fla. LEXIS 302 (Fla. February 9, 2012), the Florida Supreme Court explained that the right of cross examination in a criminal case is not without limitation.  Here, the defendant made statements in questions to the witness that introduced a theory of defense that someone else committed the crime.  To do that, there must be sufficient evidence in the record to support that underlying theory. Questions asked during cross-examination must have a good-faith basis.  The court concluded that the trial court’s decision to strike three questions for lack of sufficient evidence in the record to support those allegations (or defense counsel’s theory) was a reasonable and sound use of discretion.


R.J. Reynolds Tobacco Co. v. Townsend, 2012 Fla. App. LEXIS 2122 (Fla. 1st DCA February 14, 2012) affirmed a jury verdict of $10.8 million compensatory damages, and punitive damages of $80 million, which assigned the tobacco company 51% responsible, for a reduced final judgment in the amount of $46.308 million.  The court held that defendant did not preserve its claim with respect to the plaintiff’s “closing argument” issue because it waited until the end of closing argument to object and it failed to object specifically to distinct portions of the argument.  The court also rejected defendant’s claim that the $40.8 million punitive damages violated due process, but because the trial court reduced it by 49% as with compensatory damages, it reversed for the limited purpose of allowing plaintiff to choose between a new jury trial on punitive damages or acceptance of a remittitur judgment to be established by the trial court.  The court noted that punitive damages are not typically subject to apportionment based on comparative fault.


Sauriol v. Sauriol, 79 So. 3d 204, 2012 Fla. App. LEXIS 1945 (Fla. 2d DCA 2012) reversed an order holding the husband in contempt for sending an email to his wife in violation of a domestic violence injunction.  Although the court issued an order to show cause, the procedures for indirect criminal contempt under Florida Rule of Criminal Procedure 3.840 were not further invoked.  The trial court was obviously trying to punish Mr. Sauriol using civil contempt, which is only available to compensate the losses of the injured party or to coerce compliance.


Chacha v. Transp. USA, Inc., 78 So. 3d 727, 2012 Fla. App. LEXIS 1778 (Fla. 4th DCA 2012) (reversing the dismissal for fraud on the court.  “While we have never explicitly imposed a requirement that a trial court make express written findings of fact supporting its conclusion that a plaintiff perpetrated (or attempted to perpetrate) a fraud on the court, the Florida Supreme Court has recognized such a requirement where a dismissal is based on a violation of a discovery order. See Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004)… We believe that the same reasoning which makes it an abuse of discretion to dismiss an action based on the violation of a discovery order without express written findings of fact applies equally where dismissal is based on a plaintiff’s fraud on the court….  We therefore reverse and remand for the trial court to make express written findings…”).


Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 2012 Fla. App. LEXIS 1772 (Fla. 4th DCA 2012) reversed a summary judgment, explaining that a landowner owes an invitee two duties: (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils. Here, the plaintiff conceded that she knew about the pothole before she fell into it and that her knowledge discharged the defendants of their duty to warn her of the dangerous condition.  But the defendants still owed the plaintiff a duty to maintain the premises in a reasonably safe condition.  The fact that a danger is open and obvious may operate to discharge a landowner’s duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition.  A plaintiff’s awareness of a dangerous condition does not negate a defendant’s potential liability for negligence in allowing the dangerous condition to exist; it may be relevant, however, to a determination of comparative  negligence.


Phadael v. Deutsche Bank Trust Co. Ams., 83 So. 3d 893, 2012 Fla. App. LEXIS 1766 (Fla. 4th DCA  2012) affirmed the denial of a motion to vacate a summary final judgment of foreclosure that asserted lack of standing by the bank.  The defendant never filed an answer.  The court explained that lack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver. The issue of standing cannot be raised for the first time in a motion to set aside a judgment under Fla. R. Civ. P. 1.540(b)(4).  Such a motion is not a substitute for a motion for rehearing or an appeal.  Even where a judgment is entered in favor of a plaintiff that lacks standing, the judgment is merely voidable, not void. A judgment that is merely voidable cannot be set aside under Fla. R. Civ. P. 1.540(b)(4).  The claim that the bank lacked standing at the inception of the suit would, at most, render the judgment voidable, not void.


L. B. v. Naked Truth III, Inc., 2012 Fla. App. LEXIS 1545 (Fla. 3d DCA February 8, 2012) reversed and remanded for a new trial a defense verdict on a negligent security claim.  The plaintiff, who worked as a store clerk on the overnight shift, sued her employer after she was raped by a male customer one night.  The reversal was based on the admission of testimony by the defense expert that the attack was a “victim-targeted” crime which was unforeseeable and unpreventable by any security measures.  The expert was qualified to testify as to security matters not as to the assailant’s motives.  Testimony by a co-worker, however, that the assailant had been at the store three days prior to the incident and asked if the victim was working was admissible under F.S.§ 90.803(3), the state-of-mind exception to the hearsay rule to explain the assailant’s subsequent conduct.

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