ASBESTOS
/ INTER-DISTRICT CONFLICT
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.
ATTORNEY’S FEES / PROPOSALS FOR
SETTLEMENT / JONES ACT
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.
CONTEMPT
/ SETTLEMENT
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)
STATUTE
OF FRAUDS
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.
EQUITABLE SUBROGATION OF MORTGAGE
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.
DISQUALIFICATION
OF COUNSEL
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.
TOBACCO
CLASS ACTION / STATUTE OF LIMITATIONS
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.
ARBITRATION
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.
ARBITRATION
/ UNCONSCIONABILITY
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.
ARBITRATION
/ POWER OF ATTORNEY
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.
FORECLOSURE
JUDGMENT NOT VOID
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.
APPEAL
UNTIMELY
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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