Monday, June 25, 2012

New Opinions for June 2012


In Re: Amendments to the Florida Rules of Judicial Administration, --- So. 3d --- (Fla. June 21, 2012) adopted Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Papers) to provide that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) (Service by Electronic Mail (―e-mail‖)), upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail. The rule does permit several limited exceptions to this requirement. A lawyer may file a motion to be excused from e-mail service, demonstrating that he or she [is living in the stone age and] has no e-mail account and lacks access to the Internet at the lawyer’s office. Similarly, individuals who are not represented by an attorney may designate an e-mail address for service if they wish; however, pro se litigants are not required to use e-mail service.


In Re: Amendments to the Florida Rules of Civil Procedure, --- So. 3d --- (Fla. June 21, 2012) approved Florida Rules of Judicial Administration 2.520 (Documents) and 2.525 (Electronic Filing), both governing the filing of any document that is a “court record.” Rule 2.520 provides in general terms that all documents filed in any court shall be filed by electronic transmission in accordance with rule 2.525.  Exceptions are recognized for circuits where the clerk does not have the ability to accept and retain documents by electronic filing, pro se litigants and attorneys exempted from e-mail service.  Also exempted are evidentiary exhibits or nondocumentary materials, documents in excess of 25 megabytes [may include some of Judge Rothenberg’s opinions, see below], when the document is filed in open court, or when a court determines that justice so requires.


Union Carbide Corp. v. Aubin, 2012 Fla. App. LEXIS 9848 (Fla. 3d DCA June 20, 2012) is another comprehensive (32 pages) opinion by Judge Rothenberg erasing a $6.6 million verdict in this asbestos-related claim after concluding that the plaintiff failed to present any evidence demonstrating that the defective design of Calidria Asbestos caused plaintiff’s harm and because the trial court gave erroneous jury instructions.  The trial court was reversed for following a Fourth District opinion involving a Calidria Asbestos claim, instead of a Third District opinion (authored by Judge Rothenberg) involving a lawn mower.  The Aubin opinion criticizes the Fourth’s opinion as “flawed,” but does not certify conflict.


Beggi v. Ocean Bank, 2012 Fla. App. LEXIS 9470 (Fla. 3d DCA June 13, 2012) dismissed for lack of standing a foreclosure appeal by an owner who transferred his interest to an LLC in which he was the sole managing member, but also commented that the issues raised had no merit.


QBE Ins. Corp. v. Chalfonte Condo. Apt. Ass'n, 2012 Fla. LEXIS 1063 (Fla. May 31, 2012) answered the certified question that Florida law does not recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer’s failure to investigate and assess the insured’s claim within a reasonable period of time.  Such a first-party claim must be brought under the statutory bad-faith claims of F.S. § 624.155.  The court also held that the failure to comply with statutory language and type-size requirements did not create a private right of action against the insurer nor did it render a noncompliant deductible void and unenforceable.  Finally, the court held that a contractual provision mandating payment of benefits upon “entry of final judgment” does not waive the insurer’s procedural right to post a bond pursuant to rule 9.310(b) to stay execution of a money judgment pending resolution of the appeal.


 R.J. Reynolds Tobacco Co. v. Mack, 2012 Fla. App. LEXIS 9568 (Fla. 1st DCA June 13, 2012) reversed a verdict for plaintiff in this smoking-related case and held that the trial court erred in excluding the defendant’s alternative causation evidence on the basis that the expert was unable to testify that the alternative causes were more likely than not the cause of the decedent’s cancer. By excluding this evidence, the trial court improperly shifted the burden of proof as to causation to defendant.


Univ. of Fla. Bd. of Trs. v. Stone, 2012 Fla. App. LEXIS 10000 (Fla. 1st DCA June 21, 2012) reversed, in this case of first impression, a jury award of $2.8 million in damages because the trial court erred in ruling that F.S. § 768.13(2)(b), commonly known as the Good Samaritan Act, did not apply.  The statute requires plaintiff to prove liability under a reckless disregard standard and is applicable when the defendant renders emergency services prior to the time the patient is stabilized.


Graney v. Caduceus Props., 2012 Fla. App. LEXIS 10028 (Fla. 1st DCA June 21, 2012) decided that an amendment does not relate back to the original complaint where a third-party defendant is made a primary defendant after the statute of limitations has run.  The court stated that an amendment will relate back (1) where the defendant knew or should have known that the plaintiff was guilty of a misnomer as concerns the correct identity of the defendant; or (2) where the originally named defendant is related to the proper defendant and, through its participation in the proceedings or otherwise, has led the plaintiff to believe the correct defendant was sued.  Here the plaintiff could not establish either prong.


Deutsche Bank Nat'l Trust Co. v. Waldorf, 2012 Fla. App. LEXIS 10116 (Fla. 2d DCA June 22, 2012) reversed another trial judge for dismissing with prejudice a foreclosure action because the bank failed to provide the court with a summary final judgment package prior to the hearing.  The trial court never considered the six factors established almost 20 years ago in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).

BAC Home Loan Servicing, 2012 Fla. App. LEXIS 10119 (Fla. 2d DCA June 22, 2012) reversed the trial court for dismissing with prejudice a foreclosure complaint because plaintiff did not properly verify its complaint in accordance with F.S. § 92.525. As in Trucap Grantor Trust 2010-1 v. Pelt, 84 So. 3d 369, 372 (Fla. 2d DCA 2012), “because rule 1.110(b) specifically provides for a verification based on knowledge and belief, the generally applicable declaration in section 92.525(2) that the facts ‘are true,’ without limitation, does not control.” Thus, the plaintiff properly used the verification language contained in the rule. Further, there is no requirement in rule 1.110(b) that the verification be contained within the complaint, and nothing in the rule prohibits the verification from starting on a separate page.


Mathes v. Mathes, 2012 Fla. App. LEXIS 9689 (Fla. 2d DCA June 15, 2012) is a great example of how much mischief incompetent attorneys can cause in a divorce.  The attorneys failed to make a corporation owned by the husband and the wife a party to the dissolution action but nevertheless persuaded the trial judge to enter numerous provisions in the final judgment affecting the corporation.  Their incompetence continued in failing to obey an order from the appellate court.


Heartland Express, Inc., of Iowa v. Torres, --- So. 3d ---, 2012 Fla. App. LEXIS 10150 (Fla. 1st DCA June 25, 2012) quashed a discovery order compelling  the risk manager to reveal information that could only have been obtained through its risk management investigation.  The trial court was also incorrect in ruling that an attorney cannot instruct a deponent not to answer a question. Florida Rule of Civil Procedure 1.310(c) specifically provides for such an instruction in certain circumstances: “A party may instruct a deponent not to answer only when necessary to preserve a privilege.”  

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