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."

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