Friday, August 31, 2012

Four New Opinions


Tricam Indus. v. Coba, 2012 Fla. App. LEXIS 14333 (Fla. 3d DCA Aug. 29, 2012) adopted a “fundamental nature” exception to the rule that a party complaining about an inconsistent verdict must object before the jury was discharged; and then directs a verdict for the defendant.  [See “Defects” in Juan Ramirez, Jr., Florida Civil Procedure, § 21-17 (2d. ed.)]. In doing so, the court relied on two cases out of the Fourth and Fifth Districts.  In dissenting, Judge Schwartz pointed out that the “fundamental” exception can be traced back to the Fifth District decision, which provided no definition for what is fundamental and based its decision on a Third District opinion that lent no support for this exception.  Furthermore, the dissent indicated that even if reversal was warranted, the proper remedy was to remand for a new trial.  How can an appellate court surmise that, if the inconsistency had been presented before the jury was discharged, that the jury would not have resolved the inconsistency in favor of the plaintiff instead of the defendant?  This decision now places the beneficiary of a large, favorable jury verdict in the position of having to object.

Spencer v. EMC Mortg. Corp., 2012 Fla. App. LEXIS 14332 (Fla. 3d DCA August 29, 2012) reversed a summary judgment for the lender because the case should have been dismissed for failure to prosecute under Rule 1.420(e) and because the statute of limitations had long ago expired where the mortgagor defaulted, and the note was accelerated, in 1997.


Bishop v. R.J. Reynolds Tobacco Co., --- So. 3d --- (Fla. 5th DCA August 31, 2012) held that under Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), the supreme court made the “cut-off” date for class inclusion November 21, 1996, and stated that the “critical event [to qualify for Engle class membership] is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.”  The fact that the decedent was told he had weeks to live and went to die in Virginia did not exclude him where he was a resident of Florida at the time the disease first manifested itself.

Josecite v. Wachovia Mtg. Corp., --- So. 3d --- (Fla. 5th DCA August 31, 2012) reversing the denial of a motion to vacate a judicial sale even though the purchase price was not grossly inadequate; the fact that the mortgagee had entered into a forbearance agreement constitute a “surprise, accident, or mistake” under Moran-Alleen Co. v. Brown, 123 So. 561 (Fla. 1929).




Monday, August 27, 2012

New Cases from the DCAs


Union Carbide Corp. v. Aubin, 2012 Fla. App. LEXIS 13921 (Fla. 3d DCA Aug. 22, 2012), originally mentioned in my prior blog on June 25, 2012, the court now denied without discussion, the plaintiff’s motions for rehearing and certification, presumably for conflict with a prior decision of the Fourth District in McConnell v. Union Carbide Corp., 937 So. 2d 148 (Fla. 4th DCA 2006), a decision on which the trial court relied, being an asbestos case dealing with the same product—Calidria Asbestos.  In its footnote 6, the court states:   “To the extent the trial court may have relied on the Fourth District’s decision in McConnell, its reliance was misplaced because the McConnell court’s reading of the [Union Carbide v.] Kavanaugh[, 879 So. 2d 42 (Fla. 4th DCA 2004)] court’s holding was flawed.”  The opinion then goes on to explain how the Fourth District’s 2006 opinion totally “misread” its own opinion from two years earlier:  “Because such a holding would effectively preclude Union Carbide from litigating against future plaintiffs as to whether its reliance on intermediaries was reasonable, it comes perilously close to application of non-mutual, offensive collateral estoppel, which is impermissible in Florida… In any event, the McConnell court neither receded from nor overruled Kavanaugh. As such, Kavanaugh, which is consistent with our analysis in this case, is still good law.”   (Judge May participated in both decisions.).  And yet there was no conflict perceived by the Third District with the McConnell decision. 


Royal Caribbean Cruises, Ltd. v. Cox, 2012 Fla. App. LEXIS 13918 (Fla. 3d DCA Aug. 22, 2012) affirmed the award of attorney’s fees in favor of a seaman pursuant to Florida’s offer of judgment statute, F.S. § 768.79, based on Royal Caribbean Corp. v. Modesto, 614 So. 2d 517 (Fla. 3d DCA 1992), but suggested openly that a motion for rehearing in banc could lead to the court receding from Modesto.


Murphy v. Evans, 2012 Fla. App. LEXIS 13902 (Fla. Dist. Ct. App. 3d Dist. Aug. 22, 2012) reversed as an abuse of discretion for the court to release attorney Evans from two civil contempt orders for failing to comply with prior court orders to produce records of his trust account because the wife had settled the underlying case with the husban.  The court explained that such civil contempt orders can only be reduced if the violator complies with the order that caused the fines.  Here, the attorney never did comply.  He was also permanently disbarred: Fla. Bar v. Evans, 2011 Fla. LEXIS 2815 (Fla. 2011)


LaRue v. Kalex Constr. & Dev., Inc., 2012 Fla. App. LEXIS 13911 (Fla. 3d DCA Aug. 22, 2012) is the Third District’s response to those attorneys complaining about too many PCAs.  The plaintiff claimed that she was orally promised that after three years of employment, she would receive a 25% ownership interest in the defendant company.  In a ten-page opinion, the court, per Judge Rothenberg, affirmed the trial court’s finding that the statute of frauds barred such an action because such a promise was incapable of being performed within one year.  See F.S. § 725.01.


Sherman v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 13900 (Fla. 3d DCA Aug. 22, 2012) – a divided court reversed a finding that the bank was entitled to priority by virtue of equitable subrogation over the Shermans’ previously-recorded mortgage.  The issue causing the dissent was whether granting subrogation worked an injustice to the rights of others.  The majority reasoned that the new loan altered the risks of non-payment accepted by the Shermans when they first extended credit.


Moriber v. Dreiling, 2012 Fla. App. LEXIS 13920 (Fla. 3d DCA Aug. 22, 2012) denied a petition for writ of certiorari to quash an order denying Moriber’s motion to disqualify Dreiling’s counsel for inadvertently receiving a confidential mediation statement, even though counsel agreed to destroy all copies of the mediation statement.  Petitioner nevertheless filed a motion to disqualify on October 12, 2011, which was heard by a special master, who found that there was nothing confidential in the statement.  The master, the trial court and the appellate court all rejected petitioner’s arguments.  In a fifteen-page opinion, Judge Rothenberg explained how her own concurring opinion in Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 724 So. 2d 572, 573 (Fla. 3d DCA 1998) did not support disqualification.  In my opinion, a decision to the contrary would allow mischievous attorneys to send something “confidential” to opposing counsel just to obtain their disqualification.  As it is, this inadvertent email attachment has been the subject of litigation for almost year, diverting attention from any progress on the merits of the case.


Castleman v. R. J. Reynolds Tobacco Co., 2012 Fla. App. LEXIS 13620 (Fla. 1st DCA Aug. 17, 2012) affirmed the summary judgment finding that plaintiffs did not qualify for membership in the Engle class action because they did not fit Engle class description as of November 21, 1996, making their lawsuit untimely.  Although no formal diagnosis is required as of that date, plaintiff did not attribute his illnesses to his history of smoking until 1998; thus, he was not aware of sufficient facts to permit the filing of a non-frivolous tort lawsuit against the tobacco company before 1998.


C.C. Borden Constr., Inc. v. Walding Co., 94 So. 3d 725 (Fla. 1st DCA 2012) reversed an order denying a motion to compel arbitration even though it agreed that the arbitration provisions were ambiguously worded because the trial court failed to resolve all doubts in favor of arbitration and give harmonious effect to all the terms.


Brea Sarasota, LLC v. Bickel, 2012 Fla. App. LEXIS 14229 (Fla. 2d DCA Aug. 24, 2012) reversed the denial of a motion to compel arbitration on the grounds of unconscionability because the agreement of admission to the assisted living facility allowed the patient fifteen days to opt out of the arbitration provision and admission was not contingent on the signing of the agreement.


Emeritus Corp. v. Pasquariello, 2012 Fla. App. LEXIS 14231 (Fla. 2d DCA Aug. 24, 2012) reversed the denial of a motion to compel arbitration based on a ruling that Mr. Pasquariello's durable power of attorney did not authorize his attorney-in-fact, Mrs. Pasquariello, to sign an arbitration agreement in the nursing home admission contract.  The document in fact specifically authorized her to consent to arbitration.


Dage v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 14232 (Fla. 2d DCA Aug. 24, 2012) held that, although plaintiff must own or hold the note at the time of filing suit, such a requirement does not render a judgment void.  The bank’s lack of standing merely made the judgment voidable.


Pitzer v. Bretey, 2012 Fla. App. LEXIS 14226 (Fla. 2d DCA Aug. 24, 2012) rejected the argument that a decision of the circuit court, sitting in its appellate capacity, was not final for purposes of Rule 9.030(b)(2), because across the top it carried a banner that read, "NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED."

Sunday, August 12, 2012

New Opinions and Decisions


Castellanos v. Citizens Prop. Ins. Corp., 2012 Fla. App. LEXIS 13056 (Fla. 3d DCA Aug. 8, 2012) reiterates the Association’s power to assign a post-loss insurance claim to the owners, even though a provision in the condominium documents the unit owners irrevocably granted the Association a power of attorney to compromise claims.  The court also reversed the trial court for decertifying the class.  A dissent by Judge Shepherd thought the Association could not effect such an assignment.


In Friedman v. Benenson Capital Co., 2007 U.S. Dist. LEXIS 37377 (S.D. Fla. Apr. 27, 2007), Judge Hurley ruled that only the named plaintiffs could deposit the disputed rental payments into the court registry pursuant to F.S. § 718.401(1)(d)(1), not the putative class members where the class had not been certified.


LTCSP-St. Petersburg, LLC v. Robinson, --- So. 3d --- (Fla. 2d DCA August 10, 2012) involved another nursing home with an arbitration agreement.  The court reversed that part of the order that refused to enforce the arbitration agreement with respect to the first admission to the nursing home, but affirmed as to all subsequent admissions because the home did not comply with its own contractual requirements.  The court also applied Shotts v. OP Winter Haven, Inc., 86 So. 3d 456 (Fla. 2011) to provisions limiting liability but added that they could be severed from the agreement.

Entrekin v. Internal Med. Assocs. of Dothan, 2012 U.S. App. LEXIS 16655 (11th Cir. Ala. Aug. 9, 2012) dealt with Alabama law but is nevertheless instructive in dealing with the issue of whether a decedent’s agreement with a nursing home to arbitrate any claims that she or her executor may have in the future against the nursing home bind her executor to arbitrate a wrongful death claim against the nursing home.  The court first dealt with the issue of what law to apply and stated:  “Because ‘arbitration is a matter of contract,’ Rent-A-Center, W., Inc. v. Jackson, 30 S.Ct. 2772, 2776 (2010), determining whether a claim falls within the scope of an arbitration agreement ‘is generally a matter of state law,’ Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S.Ct. 1758, 1773 (2010). As a result, when considering whether the arbitration agreement at issue in this case requires the parties to arbitrate the executor’s wrongful death claim, we ‘apply ordinary state-law principles that govern the formation of contracts.’ First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924 (1995).”  It thus decided to apply Alabama law.  Next the court refused to apply a “delegation clause” which made the arbitrator, not the courts, the authority to resolve any dispute relating to the dispute resolution agreement, because the argument was never made to the district court.  Finally, it interpreted Alabama law to state that a decedent can bind the executors of her estate to arbitrate a wrongful death action, reversing the district court’s order to the contrary.


Walters v. Walters, 2012 Fla. App. LEXIS 13207 (Fla. 4th DCA Aug. 8, 2012) affirmed the trial court’s denial of retroactive modification of alimony because the former husband unduly delayed his notice to set the cause for trial.  Although retroactivity is the rule, rather than the exception, the standard of review is abuse of discretion and here there was no such abuse where the former husband’s earnings were sufficient to cover the alimony.  The court properly found him in contempt of court where he unilaterally decided not to pay the full amount of alimony due to the former wife.  The trial court erred, however, in ruling that the wife’s needs had been established at the time of the dissolution, instead of reassessing them upon the filing of the petition for modification.


Nirk v. Bank of Am., N.A., 2012 Fla. App. LEXIS 13206 (Fla. 4th DCA Aug. 8, 2012) held that under F.S. § 48.031(5), a process server must place the required notations on only the copy of the summons, and not on the copy of the complaint.  Prior opinions had created confusion.


Estilien v. Dyda, 2012 Fla. App. LEXIS 13205 (Fla. Dist. Ct. App. 4th Dist. Aug. 8, 2012) quashed an order granting discovery of the defense counsel’s billing records in this personal injury case, where plaintiff was entitled to fees pursuant to a rejected proposal for settlement under F.S. § 768.79.  Plaintiff’s counsel alleged he needed the information to reconstruct how much time he had spent on the case because he worked on a contingency fee basis and did not keep time records.  The order had allowed defendant to redact any privileged information.  The district court nevertheless granted certiorari, stating that counsel’s failure to keep his own billing records was an insufficient basis for ordering production.


Rubrecht v. Cone Distributing, Inc., --- So. 3d --- (Fla. 5th DCA August 10, 2012) granted a new trial where the jury awarded $20,000 in damages and the plaintiff had presented evidence of $414,554 in past medical expenses, based on evidentiary rulings.  First, the trial court erred in allowing the defense to impeach the plaintiff with the contents of an offer of settlement letter his attorney had presented for an auto accident that occurred about a month before the one in issue.  The opinion rejected the argument that the interrogation was not within the limitations of F.S. § 90.408, because the settlement negotiations in the first case did not involve the claim in the second case.  A key issue at trial was whether plaintiff’s claim for damages could be apportion between the two accidents.  It also made no difference that the actual letter was not admitted in evidence.  The trial court also erred in taking judicial notice of statements made in an opinion published by a district court in connection with the treating physician’s divorce, that the physician’s fees came from litigation proceeds pursuant to letters of protection from the patients’ personal injury attorneys.  The trial court then read the quote to the jury at the close of the evidence.  The statements in the appellate opinion were hearsay.  “An appellate opinion is a writing by a judge that derives its substance from many sources.  A statement made in an opinion maybe true only as far as evidence appears in that case; it may be an interpretation of evidence.  A statement made in an appellate opinion cannot substitute for proof of the fact.”

Saturday, August 4, 2012

New Decisions from our Florida Appellate Courts


Castle Beach Club Condo., Inc. v. Citizens Prop. Ins. Corp., 2012 Fla. App. LEXIS 12354 (Fla. 3d DCA Aug. 1, 2012) affirmed the trial court’s order transferring the case to Tallahassee based on the home venue privilege.  The court held that Citizens is a state entity protected by the privilege recognized under Florida common law.  As stated in Carlisle v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362, 364 (Fla. 1977) the “rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.”  But even where none of the policy reasons exist for applying the privilege, the courts nevertheless enforce it.  See Juan Ramirez, Jr., Florida Civil Procedure, § 4-6, at p. 4-20 (2d. ed. 1997).


Am. Fed'n. of State v. Miami-Dade County Pub. Sch., 2012 Fla. App. LEXIS 12356 (Fla. 3d DCA Aug. 1, 2012) held that where a mutual mistake exists between the parties to an agreement, reformation of that agreement does not constitute a modification so as to cause the arbitrator to exceed his jurisdiction.


DePuy Orthopaedics, Inc. v. Waxman, --- So. 3d --- (Fla. 1st DCA August 3, 2012) held, by a divided court, that the employer could obtain an injunction against its former employee pursuant to an assignment of a contract containing a non-compete clause.


Zakhary v. Raymond Thompson PSM, Inc., 2012 Fla. App. LEXIS 12517 (Fla. 2d DCA Aug. 1, 2012) reversing summary judgment because judicial estoppel is only applicable when a party takes a position that is inconsistent with a position taken in a separate judicial proceeding. Equitable estoppel was also inapplicable because plaintiffs had made no representations contrary to the position currently asserted.


Leben v. State Farm Fla. Ins. Co., 2012 Fla. App. LEXIS 12522 (Fla. 4th DCA Aug. 1, 2012) reversed summary judgment for the insurer based on the insureds’ failure to give timely notice of the roof damage following Hurricane Wilma until February 2009, even though they had noticed in 2005 immediately after the hurricane.  The court explained that an insured's failure to comply with an insurance policy notice provision is not fatal to coverage.  Quoting from Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985): “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.”  The record contains a question of fact as to whether State Farm was prejudiced.


Liberty Ins. Corp. v. Milne, 2012 Fla. App. LEXIS 12532 (Fla. 4th DCA Aug. 1, 2012) granted a writ of prohibition to prevent the trial court from exercising jurisdiction to allow a third-party complaint against the insurer after the insured suffered over a $1 million judgment on a $50,000 policy.  The trial Court loses jurisdiction of a cause after a judgment has been entered and the time for motions for rehearing or new trial have expired or been denied.  The insured’s serving a third-party complaint could not revive an underlying action that already had been concluded; any attempt to file a crossclaim or a third-party complaint or to serve process on the insurer was a nullity after the denial of the last motion for new trial.  The insured could still pursue its claim in a separate and independent cause of action.