Sunday, March 11, 2012

Releases for the Week ending March 9, 2012


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.


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.


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.


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.


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


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.


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).


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.

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