Monday, June 11, 2012



Portales v. Another Beautiful Corp., 2012 Fla. App. LEXIS 7614 (Fla. 3d DCA May 16, 2012) held that the trial court did not err in not conducting another hearing on the defendant’s renewed motion for summary judgment where it had already held a hearing and denied it without prejudice to allow the parties to develop the record further. The parties came back before the court two weeks later on a call of the calendar, where the defendant orally renewed its motion for summary judgment, The trial court instructed the defendant to submit a legal memoranda and neither party objected to this procedure. After the submissions, the trial court granted the motion and later heard arguments on plaintiff’s motion for rehearing.  By failing to object, plaintiff waived the objection by acquiescence.


Schwartzberg v. Knobloch, 2012 Fla. App. LEXIS 7829 (Fla. 2d DCA May 16, 2012) reversed the circuit court’s denial of the defendants’ motion to dismiss for lack of personal jurisdiction.  The court explained that a plaintiff may establish personal jurisdiction of an upstream, nonresident parent of a nursing home in three ways. First, the plaintiff may show that the non-Florida parent company independently satisfies the test for jurisdiction under Florida’s long-arm statutes.  Second, the plaintiff may establish facts that justify piercing the corporate veil. Third, the plaintiff may show that the parent exercises sufficient control over the subsidiary to render the subsidiary an agent or alter ego of the parent, thus establishing jurisdiction.  In this case, plaintiff established only that the defendants have indirect ownership interests in the nursing home’s operating and management companies. But nothing about the defendants’ financial interests in the nursing home was related to plaintiff’s claims, thus failing to establish any connexity between those financial interests and the alleged abuse from which her claims arose.,%202012/2D11-2867.pdf


Nastasi v. Thomas, 2012 Fla. App. LEXIS 7833 (Fla. 4th DCA May 16, 2012) held that an order sending the parties to mediation is not a final order nor a nonfinal appealable order.


Yue Yan v. Byers, 2012 Fla. App. LEXIS 7837 (Fla. 4th DCA May 16, 2012) reversed a jury verdict because the trial court abused its discretion in denying the landlord’s motion for new trial based on the lack of reasonable notice of the trial.


Acosta v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 7838 (Fla. 4th DCA May 16, 2012) finding an abuse of discretion in an order denying, without an evidentiary hearing, the defendant’s rule 1.540(b) motion for relief from a final summary judgment of foreclosure.  This did not qualify as a “floating forum selection clause,” which is a clause which, rather than designating a forum by immutable geographical place name, designates the exclusive forum for all litigation regarding the agreement which contains the clause by reference to mutable facts, namely, the location of the main office, headquarters, principal office, or principal place of business of one of the parties to the agreement, or that party's assigns. This did not eliminate uncertainty but instead left it to the whim of the defendants’ choice.


Lash & Goldberg LLP v. Clarke, 2012 Fla. App. LEXIS 7851 (Fla. 4th DCA May 16, 2012) reversed an order denying a motion to compel arbitration where the complaint’s allegations of concerted conduct between parties and non-parties to the arbitration agreement permit the non-parties to insist on arbitration under the agreement.  Although a non-signatory to an arbitration agreement cannot generally compel a signatory to submit to arbitration, the one exception to the rule is that a non-signatory can compel arbitration when the signatory to the contract containing the arbitration clause alleges substantially interdependent and concerted misconduct by both the non-signatory and one or more of the signatories.  This exception is based on the doctrine of equitable estoppel.  Here, although plaintiff tried to spin the legal malpractice count as involving only her independent attorney-client relationship, her complaint generally tied those defendants to the others who were parties to the arbitration agreement.


Whistler’s Park v. Fla. Ins. Guar., 2011 Fla. App. LEXIS 21345 (Fla. 5th DCA May 18, 2011) reversed summary judgment for the insurer relying on State Farm Mutual Automobile Insurance Company v. Curran, 83 So. 3d 793, 803 (Fla. 5th DCA 2011), which held: “[T]o avoid liability under the insurance policy based on non-compliance with the CME clause, it was essential that [the insurer] plead and prove a material breach, which means a breach causing prejudice.”  The court stated that most policies provide that an insurer can demand multiple EUO's [Examinations Under Oath] and unlimited records. “The breadth of this power, combined with the promise of forfeiture if the insured is not compliant, has had predictable results, an example of which can be seen in the recent decision of the Third District Court of Appeal in De Leon v. Great American Assurance Co., 78 So. 3d 585, 591 (Fla. 3d DCA 2011). There, the court concluded that the insurer took advantage of its contractual right to conduct an EUO by ‘unwarranted’ and ‘intrusive’ EUO questioning that the court found to be impertinent, improper and irrelevant to the claim.”  In this case, insurer requested an EUO, but never set a time or place for it. When the insurer raised the failure to submit to an EUO as a defense, the offer to submit was renewed. The insurer never pled or asserted prejudice.  Thus, dismissal without prejudice to allow belated compliance with the EUO provision is the most prudent course of action.


Hewlings v. Orange County, 2012 Fla. App. LEXIS 7986 (Fla. 5th DCA May 18, 2012) held that it is the delay in complying with a records request, not delay in responding to a records request that triggers entitlement to attorney’s fees under the statute.


Wells v. Circle Redmont, 2012 Fla. App. LEXIS 7988 (Fla. 5th DCA May 18, 2012) reversed an order denying the release of personal property and permitting the accumulation of storage fees because when appellant posted a “good and sufficient” cash supersedeas bond in an amount which represented the judgment amount and statutory interest, including amounts sufficient to cover any additional storage fees, appellant became entitled to possession of the personal property and to relief from the accumulation of storage fees.

LACHES (It actually exists!)

Trevett v. Walker, 2012 Fla. App. LEXIS 8132 (Fla. 3d DCA May 23, 2012) reviewed the elements to establish the affirmative defense of laches and applied the doctrine to a boundary dispute.


Gonzalez v. NAFH Nat'l Bank, 2012 Fla. App. LEXIS 8140 (Fla. 3d DCA May 23, 2012) explained that Florida Rule of Civil Procedure 1.140(f) allows the court to strike from any pleading at any time any redundant, immaterial, impertinent, or scandalous matter, but an affirmative defense may not be stricken merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.  Here NAFH Bank challenged only the Gonzalez’s purported lack of evidence to support their defense and then provided non-record evidence allegedly demonstrating that they could not prevail on this defense. This was not an appropriate basis for striking a defense.  But the appellate court then found the defense legally insufficient.

No comments:

Post a Comment