Thursday, March 15, 2012

Releases for March 15, 2012


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.


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.


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.


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.


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).


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.


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.


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.


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 thatin 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.”


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.


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.


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.

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