Opinions Released during the Week Ending March 23, 2012

PERSONAL JURISDICTION

Kitroser v. Hurt, 85 So. 3d 1084, 2012 Fla. LEXIS 589 (Fla. 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 on behalf of his corporate employer.

http://www.floridasupremecourt.org/decisions/2012/sc11-25.pdf

WORKER’S COMPENSATION IMMUNITY

Ocean Reef Club v. Leon, 2012 Fla. App. LEXIS 4352 (Fla. 3d DCA March 21, 2012) affirmed an order denying summary judgment to the employer based on tort immunity where the employees claimed that they had notified the employer of their injury, but no one notified the workers’ compensation carrier.  The employer argued that it was the employees’ burden of filing their claims with the carrier, but a majority of the court held that it was the employer’s burden.

http://www.3dca.flcourts.org/Opinions/3D09-2779.pdf

RULE 1.530

Byrne v. Byrne, 2012 Fla. App. LEXIS 4350 (Fla. 3d DCA March 21, 2012) stated that a court had to consider the wife’s reduction in salary brought post-judgment by Florida Rule of Civil Procedure 1.530’s motion to reopen proceedings.

http://www.3dca.flcourts.org/Opinions/3D10-2323.rh.pdf

DISQUALIFICATION OF COUNSEL

Broin v. Phillip Morris Cos., 2012 Fla. App. LEXIS 4357 (Fla. 3d DCA March 21, 2012), reh. denied, 2012 Fla. App. LEXIS 7348 (Fla. April 27, 2012) quashed an order disqualifying several attorneys from representing individual flight attendants against tobacco companies and the Flight Attendant Medical Research Institute, which had been created pursuant to a settlement reached in the initial class action.

http://www.3dca.flcourts.org/Opinions/3D11-2129.pdf

TEMPORARY INJUNCTIONS WITHOUT NOTICE

Harambam Congregation v. Simcha Connection, 2012 Fla. App. LEXIS 4360 (Fla. 3d DCA March 21, 2012) reaffirmed that a defendant that files a motion to dissolve a temporary injunction obtained without notice renders moot all issues relating to notice.  The only way to attack such an injunction is to appeal because once the party has a hearing before a judge, that party has received the benefit of notice and an opportunity to be heard, rendering the lack of notice moot.

http://www.3dca.flcourts.org/Opinions/3D11-2887.pdf

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.

http://www.4dca.org/opinions/Mar%202012/03-21-12/4D10-5155.op.pdf

Releases for March 15, 2012

VENUE

In Brown v. Nagelhout, 84 So. 3d 304, 2012 Fla. LEXIS 552 (Fla. 2012), a unanimous supreme court receded from Enfinger v. Baxley, 96 So. 2d 538 (Fla. 1957), also known as the joint residency rule, in favor of a straight reading of the Florida venue statutes, so that where there are multiple defendants to an action, a plaintiff may choose as venue any county in which any defendant may be considered a resident, without consideration of the residence of his or her codefendants.

http://www.floridasupremecourt.org/decisions/2012/sc10-868.pdf

FORECLOSURE

Fed. Home Loan Mortg. Corp. v. De Souza, 85 So. 3d 1125, 2012 Fla. App. LEXIS 4059 (Fla. 3d DCA 2012) reversed the granting of a motion to vacate the final judgment of foreclosure where the defendant alleged the plaintiff fraudulently represented its right to foreclose, but provided no facts contrary to those proffered in support of the motion for summary judgment.

http://www.3dca.flcourts.org/opinions/3D10-3153.pdf3

ARBITRATION

Apt. Inv. & Mgmt. Co. v. Flamingo/South Beach 1 Condo. Ass'n, 84 So. 3d 1090, 2012 Fla. App. LEXIS 4030 (Fla. 3d DCA 2012) held that where all the counts in the complaint sought equitable relief, including one for equitable accounting, and equitable relief was explicitly exempted from the arbitration clause in the agreement, no arbitrable issue existed and the trial court properly denied the motion to compel arbitration.

http://www.3dca.flcourts.org/opinions/3D11-2646.pdf

SERVICE BY PUBLICATION

Drury v. Nat'l Auto Lenders, 83 So. 3d 951, 2012 Fla. App. LEXIS 4065 (Fla. 3d DCA 2012) reversed a personal judgment based on service by publication, stating that such service only confers in rem or quasi in rem jurisdiction.  It was irrelevant that the defendant may have been evading personal service and might have had actual knowledge of the action.

http://www.3dca.flcourts.org/opinions/3D11-2163.pdf

ARBITRATION / RECUSAL

Block v. Searcy, Denney, Scarola, Barnhart & Shipley, P.A., 85 So. 3d 1122, 2012 Fla. App. LEXIS 4096 (Fla. 1st DCA 2012) reversed an order compelling arbitration where the trial court on the same day also entered a recusal order ex mero motu (like sua sponte).

http://opinions.1dca.org/written/opinions2012/03-14-2012/11-3127.pdf

DEFICIENCY JUDGMENT

Beach Cmty. Bank v. First Brownsville Co., 85 So. 3d 1119, 2012 Fla. App. LEXIS 4133 (Fla. 1st DCA 2012) found that the trial court had abused its discretion in rejecting an appraisal expert’s testimony and denying a deficiency judgment because the trial court cannot reject expert testimony without some reasonable basis in the evidence. The court can only reject undisputed testimony from an expert when (a) it either concerns technical evidence and is so palpably incredible, illogical, and unreasonable as to be unworthy of belief or otherwise open to doubt; or (b) when it concerns non-expert matters and is disputed by lay testimony.  Here the expert testimony was never challenged except through a non-expert’s attempted impeachment of the appraisals.

http://opinions.1dca.org/written/opinions2012/03-14-2012/11-4596.pdf

CONTRIBUTION

Healthcare Staffing Solution, Inc. v. Wilkinson, 86 So. 3d 519, 2012 Fla. App. LEXIS 3847 (Fla. 1st DCA 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.

http://opinions.1dca.org/written/opinions2012/03-12-2012/11-3140.pdf

VERIFICATION

Trucap Grantor Trust 2010-1 v. Pelt, 84 So. 3d 369, 2012 Fla. App. LEXIS 4098 (Fla. 2d DCA 2012) quashed an order denying plaintiff’s motion to amend for not complying with the verification requirements of Florida Rule of Civil Procedure 1.110(b) as insufficient because it was based on “knowledge and belief.”  Because rule 1.110(b) specifically provides for a verification of a mortgage foreclosure action based on knowledge and belief, the generally applicable declaration in F.S. §92.525(2) that the facts “are true,” without limitation, does not control.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/March/March%2014,%202012/2D11-2492.pdf

WAIVER OF SERVICE OF PROCESS

Digiovanni v. Bac Home Loans Servicing, L.P., 83 So. 3d 934, 2012 Fla. App. LEXIS 4117 (Fla. 2d DCA 2012) reiterated that a notice of appearance and a motion for extension of time do not seek affirmative relief.  The court noted that “in his notice of appearance, [defendant’s] counsel did use the phrase ‘hereby make a general appearance on behalf of Defendant.’ However, regardless of how it is titled, in order for a filing to actually constitute a general appearance before the court, it must seek some sort of affirmative relief on the merits of the case.”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/March/March%2014,%202012/2D11-5265.pdf

PRIVILEGE / CERTIORARI

Bennett v. Berges, 84 So. 3d 373, 2012 Fla. App. LEXIS 4119 (Fla. 4th DCA 2012) denied certiorari review of an order directing petitioner’s former attorney to produce certain documents for an in camera review.  Because the trial court may never require disclosure of the documents to the opposing party, the petition was premature.

http://www.4dca.org/opinions/Mar%202012/03-14-12/4D10-4874.op.pdf

WAIVER OF SERVICE OF PROCESS

Byers v. Fia Card Servs., N.A., 82 So. 3d 1166, 2012 Fla. App. LEXIS 4118 (Fla. 4th DCA 2012) finds another judge erroneously denying a motion to quash service of process based on the filing of a motion for extension of time.  Such a motion does not go to the merits and the defendant does not submit to the jurisdiction of the court.

http://www.4dca.org/opinions/Mar%202012/03-14-12/4D11-2807.op.pdf

CONTEMPT

Parris v. Silveira, 82 So. 3d 201, 2012 Fla. App. LEXIS 4129 (Fla. 4th DCA 2012) reversed an order finding appellant in direct and indirect criminal contempt because she was not subject to any order when she was found in civil contempt.

http://www.4dca.org/opinions/Mar%202012/03-14-12/4D11-3006.op.pdf

Releases for the Week ending March 9, 2012

LAW OF THE CASE

Delta Prop. Mgmt. v. Profile Invs., 2012 Fla. LEXIS 487 (Fla. March 8, 2012) reiterated the principle decided in Florida Department of Transportation v. Juliano, 801 So. 2d 101 (Fla. 2001), that a question of law not litigated on appeal may not constitute the law of the case.  Unlike res judicata, the law of the case doctrine does not apply to issues that were raised or could have been raised during a prior appeal.  It applies only to those issues actually raised.

http://www.floridasupremecourt.org/decisions/2012/sc09-2075.pdf

CLASS ACTIONS

In Leibell v. Miami-Dade County, 84 So. 3d 1078, 2012 Fla. App. LEXIS 3602 (Fla. 3d DCA 2012), the court affirmed the denial of class certification to a purported class of property owners of the Venetian Islands for the assessment of $24 annual administration fee per vehicle for the privilege of traversing the toll plaza because the plaintiff constituted only a class of one.

http://www.3dca.flcourts.org/Opinions/3D09-1476.pdf

PRESERVATION OF ERROR

Sanchez v. State, 81 So. 3d 604, 2012 Fla. App. LEXIS 3589 (Fla. 3d DCA 2012) affirmed a conviction where the detective testified, in response the defense counsel’s cross-examination question as to why was the vehicle stopped, that probable cause existed to arrest the defendant on another crime.  Defense counsel timely objected, the trial court sustained the objection, and on its own, offered to give the jury a curative instruction. The wording of the proposed instruction was discussed with the prosecutor and defense counsel, and defense counsel specifically approved the curative instruction.  The defense did not thereafter move for mistrial or argue that the instruction did not cure the error.  Thus, the error was not preserved.

http://www.3dca.flcourts.org/Opinions/3D10-2413.pdf

DISCOVERY

Int'l Yacht Group, LLC v. Miami Yacht & Engine Works, LLC, 83 So. 3d 930, 2012 Fla. App. LEXIS 3565 (Fla. 3d DCA 2012) quashed an order requiring production of  documents requested pursuant to F.S. § 608.4101 and remanded for an in camera inspection.  The court rejected the argument that the defendant did not have to produce documents as to whether plaintiff was a member of the LLC so as to entitle it to the discovery until the time of trial, but concluded that the rest of the documents did not have to be produced until the court determined that plaintiff was indeed a member of the LLC.

http://www.3dca.flcourts.org/Opinions/3D11-1534.pdf

ARBITRATION

Nucci v. Storm Football, 82 So. 3d 180, 2012 Fla. App. LEXIS 3838 (Fla. 2d DCA 2012) found no merit to Nucci's argument that Storm Football waived the right to arbitrate by suing him for injunctive relief in the trial court and conducting discovery in that case.  Nucci consented to arbitration by submitting the waiver issue to the arbitrator in the first instance.  He asked the arbitrator, not the trial court, to dismiss the arbitration and only after he did not succeed in that forum did he raise the issue with the trial court. Having elected to proceed before the arbitrator, Nucci cannot claim that the arbitrator exceeded his authority

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/March/March%2009,%202012/2D10-1838.pdf

TRADE SECRETS

McDonald's Rests. of Fla. v. Doe, 2012 Fla. App. LEXIS 3807 (Fla. 2d DCA March 9, 2012) quashed a discovery order where the owner of the restaurant, McDonald’s, asserted trade secret privilege in a suit against the owner and the operator for premises liability, and McDonald’s alleged it had no control over the operation.  The trial court had ordered production of potential trade secrets information without conducting an in camera review of all the items which included materials the operator did not even possess.  The order was also deficient in that it failed to specify findings to support its determination that plaintiff demonstrated reasonable necessity for production despite the existence of trade secrets.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/March/March%2009,%202012/2D11-619.pdf

STATUTE OF LIMITATION ON A LIEN TRANSFER BOND

Cool Guys, LLC v. Jomar Props., LLC, 84 So. 3d 1076, 2012 Fla. App. LEXIS 3689 (Fla. 4th DCA  2012) affirmed the dismissal of an action against the owner and surety on the transfer of the lien to a surety bond.  The transfer was accomplished during the pendency of the litigation. Plaintiff received notice of the transfer of the lien but did not attempt to bring a claim on the transfer bond until two years later. The owner and the surety moved for summary judgment, asserting the claims on the transfer bond were time-barred given the one-year limitations period in F.S. §713.24(4).

http://www.4dca.org/opinions/Mar%202012/03-07-12/4D10-4206.op.pdf

ATTORNEY’S FEES IN APPRAISALS

Barreto v. United Servs. Auto. Ass'n, 82 So. 3d 159, 2012 Fla. App. LEXIS 3731 (Fla. 4th DCA 2012) distinguished Federated National Insurance Co. v. Esposito, 937 So. 2d 199 (Fla. 4th DCA 2006), which held that an insured was not entitled to recover attorney’s fees when it filed suit after the insurance company had fulfilled its obligations under the appraisal award.  Here, because the insurer paid the full amounts claimed only after suit was filed, it essentially confessed judgment entitling the owner to attorney’s fees.

http://www.4dca.org/opinions/Mar%202012/03-07-12/4D10-4710.op.pdf

Opinions for the Week of March 2, 2012

PRIOR BAD ACTS

In Kopsho v. State, 84 So. 3d 204, 2012 Fla. LEXIS 454 (Fla. 2012), the supreme court held that the trial court properly allowed the State to present Williams rule evidence during the guilt phase that he had previously abducted his wife at knifepoint because the evidence was necessary to show that the crime was premeditated, as the defense was that defendant murdered his wife in the heat of passion.

http://www.floridasupremecourt.org/decisions/2012/sc09-1383.pdf

 “STAND YOUR GROUND” LAW / EVIDENCE

Darling v. State, 81 So. 3d 574, 2012 Fla. App. LEXIS 3132 (Fla. 3d DCA 2012) affirmed the denial of a motion to dismiss under the "stand your ground" law.  Additionally holding that the law specifically requires that the person invoking the defense "not [be] engaged in an unlawful activity." F.S. § 776.013(3).  Thus, in this case, the trial court properly determined that evidence of defendant’s convicted-felon status was admissible so that the jury could properly evaluate whether defendant’s use of force was justified under the circumstances. Although the trial court initially and properly severed the charge of possession of weapon by a felon, subsequently, it became evident that to decide the issue of self-defense the jury should know that defendant’s possession of the weapon was not lawful because he had a prior felony conviction.

http://www.3dca.flcourts.org/Opinions/3D10-0122.pdf

APPRAISAL

United Prop. & Cas. Ins. Co. v. Concepcion, 83 So. 3d 908, 2012 Fla. App. LEXIS 3164 (Fla. 3d DCA 2012) held that the alleged dispute as to whether the insured complied with post-loss obligations created a fact issue which had to be resolved by the court through an examination of the evidence, in this case, by conducting an evidentiary hearing.

http://www.3dca.flcourts.org/Opinions/3D11-0889.pdf

APPEALS

Higgins v. Ryan, 2012 Fla. App. LEXIS 3158 (Fla. 3d DCA Feb. 29, 2012) dismissed an appeal from an order determining the percentages of ownership of a business because it was not a final order determining immediate possession of property appealable under Florida Rule of Appellate Procedure 9.130 (a)(3)(C)(ii).

http://www.3dca.flcourts.org/Opinions/3D11-0457.pdf

PROPOSAL FOR SETTLEMENT

Wolfe v. Culpepper Constructors, Inc., 81 So. 3d 588, 2012 Fla. App. LEXIS 3263 (Fla. 2d DCA 2012) reversed the trial court for concluding that the offer of judgment was invalid because it was a joint offer that could only be accepted by plaintiff were plaintiff to dismiss its then pending claims against both defendants.  The Wolfes' joint offer specifically stated that it was made to resolve all claims and counterclaims pending in the litigation. The settlement amount was $25,000, of which $12,500 would be paid by Mr. Wolfe and $12,500 by Mrs. Wolfe. To accept the $25,000 as the full amount due, including attorney's fees and costs, plaintiff would have to dismiss all claims against both Mr. and Mrs. Wolfe with prejudice. Additionally, plaintiff would have to agree to discharge the claim of lien and notice of lis pendens filed against the real property. Plaintiff rejected this offer of judgment and the final judgment in its favor was $9074.06, which is considerably less than $18,750, or twenty-five percent less than the $25,000 offer.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/February/February%2029,%202012/2D10-3228.pdf

COUNTERCLAIM 

Harbor Cmtys., LLC v. Jerue, 81 So. 3d 568, 2012 Fla. App. LEXIS 3255 (Fla. 4th DCA 2012) held that "where a judgment implicitly resolves the issues raised by the defendant's counterclaim, it is a final judgment even though the judgment makes no explicit reference to the counterclaim." State ex rel. Nixon v. Hoester, 930 S.W.2d 52, 53 (Mo. App. 1996).  Here, the first final judgment implicitly denied defendant’s counterclaim. Therefore, by entering final summary judgment in favor of the plaintiffs on their claim for breach of contract, the first final judgment necessarily rejected the counterclaim that the plaintiffs breached the contract by failing to close on the condominium unit.  The trial court did not have jurisdiction to enter a second final judgment after the first final judgment was affirmed on appeal.  The trial court has no authority to alter, modify or vacate an order or judgment, except under Rules 1.530 and 1.540, Florida Rules of Civil Procedure.  Here, the first final judgment did not reserve jurisdiction to award prejudgment interest and the plaintiffs did not timely file a motion for attorney's fees within thirty days of the first final judgment. See Fla. R. Civ. P. 1.525.

 http://www.4dca.org/opinions/Feb%202012/02-29-12/4D10-4304.op.pdf

JURISDICTION

Walker v. Walker, 80 So. 3d 1128, 2012 Fla. App. LEXIS 3256 (Fla. 4th DCA 2012) reversed the dismissal for lack of subject matter jurisdiction.  The parties were divorced in 2003, and  the court incorporated the parties' marital settlement agreement into the final judgment, which awarded the wife rehabilitative alimony for 10 years and reserved jurisdiction to "modify and enforce" the judgment.  In 2008, the wife filed a petition for modification. The summons was served on the husband.  Chapter 61 vests a circuit court with continuing jurisdiction to enforce and modify an alimony award.  Circuit courts have the subject matter jurisdiction to consider timely petitions for such modification, whether or not the court has expressly reserved jurisdiction in a final judgment.

http://www.4dca.org/opinions/Feb%202012/02-29-12/4D10-5158.op.pdf