Saturday, February 25, 2012

Opinions for the Week of February 24, 2012


Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 2012 Fla. LEXIS 428, 37 Fla. L. Weekly S 130 (Fla. Feb. 23, 2012) held that a district court may exercise its discretion to grant certiorari review of a circuit court decision reviewing an administrative order, so long as the decision under review violated a clearly established principle of law resulting in a miscarriage of justice, even if the circuit court decision was based on precedent from another district.


Regions Bank v. Capital Square, 83 So. 3d 900, 2012 Fla. App. LEXIS 2621 (Fla. 3d DCA 2012)  reversed the trial court for failing to give the requested Fabre instruction in a suit against the bank for negligence and statutory conversion for not stopping plaintiff’s employee from diverting its checks as part of an embezzling scheme.  The court held that the denial of the instruction asking the jury to apportion blame against plaintiff’s own accountants was error where the bank had properly raised the issue in its affirmative defense.


Dolan v. Dolan, 81 So. 3d 558, 2012 Fla. App. LEXIS 2620 (Fla. 3d DCA 2012) reversed the dismissal where the wife had responded the husband’s petition addressing the merits and did not raise the sufficiency of the service of process.  A year later, the wife filed another motion to dismiss, this time raising lack of service.  The husband moved to amend his petition.  The trial court again denied the wife’s motion, but at a later hearing in which it granted the motion to amend, the court gave the husband five day to serve the wife with the amended petition.  The district court reversed because the issue of service had been waived more than a year before.  Furthermore, the issue was not waived by not filing a motion for rehearing.


Fong v. Courvoisier Courts Condo., 81 So. 3d 562, 2012 Fla. App. LEXIS 2581 (Fla. 3d DCA 2012) held that where an injunction had been improperly entered a year earlier and no appeal was taken, and then the matter comes back on a motion to dissolve, the trial court properly denied the motion because now the Fongs were required to show a change in circumstances, not that the injunction was improperly entered.


Agate v. Clampitt, 80 So. 3d 450, 2012 Fla. App. LEXIS 3011 (Fla. 2d DCA 2012) reversed on a case that was filed in 2004 and added that because the cause was being remanded for further proceedings and there was no imminent trial date set, plaintiff should be permitted to amend their complaint to add a claim of quantum meruit, because it was based on the same conduct and transactions upon which the suit was based, so defendant should not be unduly prejudiced and plaintiff had not abused the privilege.


Newbold-Ferguson v. AMISUB (North Ridge Hosp.), Inc., 85 So. 3d 502, 2012 Fla. App. LEXIS 2653 (Fla. 4th DCA 2012) reversing a defense verdict so that the plaintiff may “amend the complaint to clearly allege that the hospital had a non-delegable duty to provide competent emergency care to the plaintiff’s husband, and must plead the specific source of the hospital’s non-delegable duty that the plaintiff seeks to rely upon – an implied contract, an express contract, a statute, an administrative regulation, or some combination thereof.”


Philip Morris USA, Inc. v. Barbanell, 2012 Fla. App. LEXIS 2657 (Fla. 4th DCA Feb. 22, 2012) concluded that from the presented evidence, the jury had the right to conclude that the decedent “knew, or should have known in the exercise of reasonable care, prior to May 5, 1990, that she had been injured, and that there was a reasonable possibility that her injury was caused by cigarette smoking.”  Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000). Where there are “conflicting reasonable inferences” that “can be drawn from the record,” then the issue becomes a “question of fact for the jury to resolve.” Carter, 778 So. 2d at 938. The jury resolved the conflicting reasonable inferences regarding the statute of limitations in favor of defendant, and, as such, the trial court should have entered a judgment in accordance with the jury’s finding. Although the decedent was not diagnosed with cancer until 1996, “[t]he critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1276 (Fla. 2006).  (May 5, 1990, signifies the date four years prior to the filing of the Engle class action).  THIS OPINION WAS WITHDRAWN ON REHEARING


Lewis v. State, 80 So. 3d 442, 2012 Fla. App. LEXIS 2666 (Fla. 4th DCA 2012) reversed a conviction where the investigating officer was allowed to testify on direct that he developed a suspect after speaking with two non-testifying witnesses and that from the name he received, he generated a photo line-up and that defendant was the target. Such testimony constituted harmful error.


Best v. Educ. Affiliates, Inc., 82 So. 3d 143, 2012 Fla. App. LEXIS 2659 (Fla. 4th DCA 2012) affirmed an order compelling arbitration where there was no transcript of the proceeding of the hearing on the motion to compel.  While appellants did proffer some affidavits with their motion for rehearing, the trial court was not compelled to consider evidence proffered for the first time in a motion for rehearing. Appellants also argue that the court erred in compelling arbitration because the arbitration agreement was invalid on its face due to its limitation on remedies, contrary to public policy. The court rejected this argument because the arbitration agreement expressly delegated to the arbitrators the determination of the validity of the agreement, relying on Rent-A-Center, West, Inc. v. Jackson, 130 S.Ct. 2772, 177 L. Ed. 2d 403 (2010).

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