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.”


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