New Opinions from April 2012

CO-TRUSTEES PERSONALLY LIABLE

In Jacobson v. Sklaire, 2012 Fla. App. LEXIS 6373 (Fla. 3d DCA Apr. 25, 2012), a divided court affirmed a judgment against the co-trustees for fees and costs assessed against the trust, where the co-trustees had, without court approval, paid their own fees out of the same trust during the course of the litigation.  The dissent would have made the appellees file a separate action against the co-trustees.

http://www.3dca.flcourts.org/Opinions/3D09-1528.pdf

SUMMARY JUDGMENT / AGENCY

In So. Fla. Coastal Elec. v. Treasures on the Bay II Condo Ass'n, 2012 Fla. App. LEXIS 6374 (Fla. 3d DCA Apr. 25, 2012), a divided court reversed the summary judgment granted against a contractor for electrical work performed on a condominium building because the record revealed material issues of fact on an affirmative defense.  The defense was that the contract had been with the developer, not the association. The unresolved issues were whether an agency relationship existed between the association and the developer, and there was confusion as to the names for the two, both called “Treasures on the Bay.”  The dissent complained that the agency theory was never pled.

http://www.3dca.flcourts.org/Opinions/3D10-2329.pdf

ARBITRATION

MV Ins. Consultants v. NAFH Nat'l Bank, 87 So. 3d 96, 2012 Fla. App. LEXIS 6391 (Fla. 3d DCA 2012) reversed the denial of the motion to compel arbitration, holding that arbitration was required not only for the controversy which the parties explicitly agreed to arbitrate, but also those disputes based on other documents that dealt with the same loan and were executed on the same day, but did not contain an arbitration clause.

http://www.3dca.flcourts.org/Opinions/3D11-0898.pdf

DISMISSAL OF APPEAL

Daniels v. JP Morgan Chase Bank, 2012 Fla. App. LEXIS 6378 (Fla. 3d DCA Apr. 25, 2012)

dismissed an appeal filed by a party that had failed to purge the trial court’s finding of contempt and writ of bodily attachment because a party in contempt cannot invoke the authority of the appellate court.  Before the dismissal became effective, the court granted appellant twenty days to comply with the trial court’s orders.

http://www.3dca.flcourts.org/Opinions/3D11-1237.pdf

ATTORNEY’S FEES

Dish Network Serv. L.L.C. v. Myers,  87 So. 3d 72, 2012 Fla. App. LEXIS 6480 (Fla. 2d DCA 2012) reversed a contingent-fee multiplier of 2.0 to award $176,992.64 in fees where the damage award was only $6,000 in a small claims action “run amok.”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/April/April%2025,%202012/2D10-4434.pdf

Opinions released in April 2012

MEDICAL MALPRACTICE / BLOOD BANKS

Fitchner v. Lifesouth Cmty. Blood Ctrs., 2012 Fla. App. LEXIS 5627 (Fla. 1st DCA April 13, 2012) stated on this second appeal that the doctrine of the law of the case could be applied only to a point of law that was actually decided on the first appeal. It did not bar consideration of a point merely because it could have been presented and decided, but was not.  The previous appeal involved whether the act of providing blood amounted to a medical service under the 2003 version of the statute.  On remand, the plaintiff could amend the complaint because the prior appeal involved an interlocutory stage of the trial proceeding and plaintiff had no reason to argue that the statute could not be applied retroactively where the trial judge had ruled that the statute did not apply at all.  On the merits, the court concluded that the statute could not be applied retroactively.

http://opinions.1dca.org/written/opinions2012/04-13-2012/10-2019.pdf

PRODUCTS LIABILITY – SMOKING

R. J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012) affirmed a liability judgment against RJR but reversed the $79 million award ($7 million in compensatory and $72 million in punitive damages).  It rejected the statute of limitations argument that developing COPD should have put the plaintiff on notice of the cancer to which he eventually succumbed.  But the damage award of $7 million compensatory shocked the judicial conscience.

http://opinions.1dca.org/written/opinions2012/04-09-2012/10-6557.pdf

Frazier v. Philip Morris USA Inc., 2012 Fla. App. LEXIS 5476 (Fla. 3d DCA Apr. 11, 2012) reversed a defense verdict because the trial court had denied plaintiff’s motion for a directed verdict on statute of limitations defense.  First, there was no competent record evidence that the accumulated effects of the smoking had manifested in a way which supplied to plaintiff some evidence of the causal relationship to the manufactured product before the undisputed limitations bar date of May 5, 1990.

http://www.3dca.flcourts.org/Opinions/3D11-0580.pdf

CLASS ACTIONS

Baptist Hosp., Inc. v. Baker, 84 So. 3d 1200, 2012 Fla. App. LEXIS 5320 (Fla. 1st DCA 2012) struck a class certification challenging the liens imposed by defendant hospital, on standing grounds, where the plaintiff testified in his deposition that he had no issues with the services he was provided by the hospital or the amount he was billed for those services. He further testified that if he was successful in the suit against the hospital, he did not anticipate a financial gain and he candidly acknowledged that any money he received from the suit would be given right back to the hospital.

http://opinions.1dca.org/written/opinions2012/04-09-2012/11-5236.pdf

SUMMARY JUDGMENT OF FORECLOSURE

Harvey Covington & Thomas, LLC v. W M C Mortg. Corp., 85 So. 3d 558, 2012 Fla. App. LEXIS 5818 (Fla. 1st DCA 2012) reversed a summary judgment of foreclosure where the defendant was seeking discovery regarding affidavits submitted by plaintiff.

http://opinions.1dca.org/written/opinions2012/04-17-2012/10-4047.pdf

STATUTE OF LIMITATIONS / THIRD-PARTY ACTIONS

Graney v. Caduceus Props., LLC, 2012 Fla. App. LEXIS 5814 (Fla. 1st DCA Apr. 17, 2012) a divided court held that a third-party complaint does not relate back to the filing date of the original complaint under Florida Rule of Civil Procedure 1.190(c), reasoning that where the purpose of the amendment is to bring a new party into the suit, the relation-back doctrine does not apply, and dismissal on time-barred grounds is proper.  The court certified conflict with the Gatins v. Sebastian Inlet Tax Dist ., 453 So. 2d 871 (Fla. 5th DCA 1985).

http://opinions.1dca.org/written/opinions2012/04-17-2012/11-2700.pdf

FRAUD ON THE COURT

Pena v. Citizens Prop. Ins. Co., 2012 Fla. App. LEXIS 6179 (Fla. 2d DCA April 20, 2012) agreed that the plaintiffs had committed a fraud on the court but reversed the dismissal with prejudice because the fraud went to an affirmative defense and did not impact the defense to the damages claim.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/April/April%2020,%202012/2D10-2397.pdf

Opinions for the Week ending on March 30, 2012

CLASS ACTION - ENGLE

Philip Morris United States v. Douglas, 83 So. 3d 1002, 2012 Fla. App. LEXIS 4991 (Fla. 2d DCA), rev. granted, 2012 Fla. LEXIS 1084 (Fla. May 15, 2012) affirmed a jury verdict of $2.5 million as damages, but certified the following question: “Does accepting as res judicata the eight Phase I findings approved in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), violate the tobacco companies’ due process rights guaranteed by the Fourteenth Amendment of the U.S. Constitution?”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/March/March%2030,%202012/2D10-3236.pdf

FORECLOSURES

Osorto v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 4870 (Fla. 4th DCA Mar. 28, 2012) reversed the entry on a final judgment of foreclosure because there was still discovery outstanding.

http://www.4dca.org/opinions/Mar%202012/03-28-12/4D10-3631.op.pdf

Castelo Dev., LLC v. Aurora Loan Servs. LLC, 85 So. 3d 515, 2012 Fla. App. LEXIS 4863 (Fla. 4th DCA 2012) affirmed the denial of a motion to confirm an electronic foreclosure sale because the notice of sale was not published in advance of the foreclosure sale as required by F.S. § 45.031.

http://www.4dca.org/opinions/Mar%202012/03-28-12/4D11-1987.op.pdf

MEDICAL MALPRACTICE

Berry v. Padden, 2012 Fla. App. LEXIS 4852 (Fla. 4th DCA Mar. 28, 2012) affirmed the dismissal of the medical malpractice complaint because the plaintiff failed to provide the statutorily required verified written opinion corroborating the reasonable grounds for initiating the medical negligence litigation. “The law is well-established that a properly verified, corroborating medical expert opinion must be provided by the plaintiff to the defendant prior to expiration of the statute of limitations...  In this case, the plaintiffs provided the defendants with only an unverified, corroborating medical expert opinion prior to the expiration of the statute of limitations.”

http://www.4dca.org/opinions/Mar%202012/03-28-12/4D11-779.op.pdf

SERVICE OF PROCESS

Carone v. Millennium Settlements, Inc., 2012 Fla. App. LEXIS 4864 (Fla. 4th DCA Mar. 28, 2012) reversed the denial of a motion to quash service of process because the record contained no competent, substantial evidence to justify the court's denial of the motion.  The return of service was regular on its face, and thus service of process was presumed to be valid. However, the defendant met her burden of overcoming that presumption by clear and convincing evidence where the court found the father’s testimony to be undisputed that: (1) he did not reside in the defendant’s home; and (2) he did not tell the process server that he resided in the defendant’s home. The only evidence which the plaintiffs submitted was the process server’s testimony that “he had no specific recollection of serving court papers upon the Father, but that it is his practice when attempting substituted service to inquire of recipients whether they reside with the parties to be served.” The appellate court concluded that the process server’s “practice” did not constitute competent, substantial evidence to rebut the father’s testimony.

http://www.4dca.org/opinions/Mar%202012/03-28-12/4D11-3334.op.pdf

APPEALS

Clevens v. Omni Healthcare, 83 So. 3d 1011, 2012 Fla. App. LEXIS 4995 (Fla. 5th DCA 2012) dismissed the appeal, rejecting the argument that the order was appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(B), as orders that “grant, continue, modify, deny, or dissolve injunctions.”  The order here declared that certain provisions of the settlement agreement were binding and enforceable, nothing more. The order directed the parties to meet to negotiate further, which was more akin to a case management order regulating the conduct of the parties before the court, than an injunction.

http://www.5dca.org/Opinions/Opin2012/032612/5D10-1695.op.pdf

CHOICE OF LAW

Higgins v. W. Bend Mut. Ins. Co., 85 So. 3d 1156, 2012 Fla. App. LEXIS 4996 (Fla. 5th DCA 2012) affirmed the trial court’s final order entering summary judgment in favor of the insurer in this first-party bad faith action. The case, asking which contract choice of law rule applies to first-party bad faith actions, presented a question of first impression. The court determined that lex loci contractus applied to such actions.

http://www.5dca.org/Opinions/Opin2012/032612/5D10-3747.op.pdf