Sunday, April 1, 2012

Opinions for the Week ending on March 30, 2012


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?”
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.
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.
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.”
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.
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.
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.

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