The Judicial Nominating Commission for the Third District yesterday decided on the following nominees for the Governor to select to replace me on the court:
Sunday, May 13, 2012
Monday, May 7, 2012
PLEADING DEFICIENCY DEFEATS THE CLAIM
Feldman v. Villa Regina Ass’n, 2012 Fla. App. LEXIS 6840 (Fla. 3d DCA May 2, 2012) should serve as a prime example of how the pleadings can serve to defeat a viable claim. Here the plaintiff chose to proceed solely on the theory that the injury to his unit was permanent and sought to recover only the diminution in the value of the condominium and loss of use (fair rental value) caused by the water intrusion. On the other hand, plaintiff could have proceeded under the theory that the property can be restored to its original condition at reasonable expense; then the measure of damages should include the cost of repairs or restoration. The jury was asked whether the damage suffered, if any, was permanent as opposed to temporary. The jury found that the damage was temporary, with no diminished value attributable to a permanent injury. But the verdict form also asked the dollar amount of damages due for a temporary injury, which the jury pegged at $1,453,000. The appellate court directed that judgment should be entered for Villa Regina.
DISMISSAL OF FORECLOSURE REVERSED
U.S. Bank N.A. v. Cowell, 2012 Fla. App. LEXIS 6838 (Fla. 3d DCA May 2, 2012). In a case filed in 2006, the trial court dismissed a foreclosure where the bank did not move for summary judgment until the end of 2010. The majority reversed because the administrative memorandum that served as the basis for this dismissal only permits sanctions after multiple deficiencies and did not support dismissal after a single deficiency, as was the case here. However, the concurring opinion reflects multiple deficiencies: first, the long delay in moving for summary judgment was a violation of the administrative order; second, the affidavit was “facially incorrect,” if not outright fraudulent; third, the motion did not mention a previously recorded equitable lien. The most viable explanation for the reversal seems to be the failure by the trial court to make the requisite findings under Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).
ARBITRATION / INJUNCTIVE RELIEF
Ayco Farms, Inc. v. Peeler, 2012 Fla. App. LEXIS 7012 (Fla. 1st DCA May 4, 2012) held that where the parties’ agreement contained a provision stating that disputes between the parties must be submitted to arbitration except that Ayco may seek to enforce the agreement by injunction, the trial court incorrectly found that Ayco had waived its right to arbitrate by filing a motion for temporary injunction.
Zofia Zak Rhodes v. Newport Bldg. & Constr., Inc., 2012 Fla. App. LEXIS 7008 (Fla. 2d DCA May 4, 2012) explained that once a party pays an arbitration award in full, the trial court erred granting a motion to enforce and convert the arbitration decision to judgment and foreclose a mechanic’s lien. Once the defendants paid the arbitration award, it was unnecessary to enforce the lien.
ATTORNEY’S FEES / PROPOSAL FOR SETTLEMENT
Pratt v. Weiss, 2012 Fla. App. LEXIS 6888 (Fla. 4th DCA May 2, 2012) affirmed an award of attorney’s fees made pursuant to a proposal for settlement. The court rejected the argument that the offer was ambiguous because the offer was made on behalf of the single hospital entity allegedly responsible. The release referred to the two companies that owned, controlled, or maintained the single hospital entity allegedly responsible. The defendants’ failure to apportion the offer did not run afoul of the statute, rule or any case law interpreting those provisions.