Monday, September 3, 2012

New DCA Opinions


Lyons v. Chamoun, 2012 Fla. App. LEXIS 14493 (Fla. 4th DCA Aug. 29, 2012) held that where the Proposal for Settlement was directed to the defendant owner and offered to release the defendant, the proposal was ambiguous because the plaintiff had sued both the owner and driver of the vehicle.  The better practice is to attach the proposed settlement rather than attempt to describe it.  See Juan Ramirez, Jr., Florida Civil Procedure, § 21-5, at n.415.2 (2d. ed.).


Gascue v. HSBC Bank, 2012 Fla. App. LEXIS 14491 (Fla. 4th DCA August 29, 2012) reversed the denial of a motion to vacate summary judgment at a non-evidentiary hearing.  The motion alleged that the defendant had retained counsel who did not appear at the hearing on the motion for summary judgment.  In addition, defendant asserted a meritorious defense that the bank had no standing as it was not the holder of the note and mortgage at the time suit was filed.

Bayview Constr. Corp. v. Jomar Props., LLC, 2012 Fla. App. LEXIS 14505 (Fla. 4th DCA Aug. 29, 2012) denied certiorari relief even though the trial court may have erred in reducing the bond because petitioner had received notice of the evidence that respondents would be presenting at the hearing, but petitioner did not present any affidavits until the day of the hearing.  Affidavits must be served a reasonable time before the hearing.  See Juan Ramirez, Jr., Florida Civil Procedure, § 7-3(f), at n.161 (2d. ed.).

Mellette v. Trinity Mem. Cemetery, Inc., 2012 Fla. App. LEXIS 14477 (Fla. 2d DCA Aug. 29, 2012) reversed a summary judgment in favor of a cemetery that disinterred a body at the request of the mother and sent it for reburial in Texas against the widow’s express wishes.  “Certainly, a surviving spouse’s right to direct the disposition of her deceased’s body is no less invaded when the party to whom she has entrusted the body disinters it and ships it out of state without her knowledge and against her expressed wishes.”  The court also reversed the summary judgment on the count for reckless infliction of emotional distress, saying that “…we cannot say that as a matter of law Trinity’s conduct did not reach the level of outrageousness required to support this tort.”


Hall v. White, 2012 Fla. App. LEXIS 14328 (Fla. 1st DCA August 29, 2012) concluded that the trial court erroneously taxed $84,898.25 in attorney’s fees against the defendant on the plaintiffs’ unpaid wage claim under Chapter 448, F.S., because the plaintiffs failed to meet their burden of proof and because the trial court erred in concluding that the issues and claims in the case were inextricably intertwined. Under F.S. § 448.08, attorney's fees and costs may be awarded to the prevailing party in an action for unpaid wages, but F.S. § 448.08 does not apply to independent contractors. Here, the plaintiffs brought a claim for unpaid wages, but also brought a claim concerning Dr. White’s service as an independent contractor. The jury awarded plaintiffs $916.14 on their unpaid wage claim and $23,707.94 in damages on the remaining claim. The issues in the case were not inextricably intertwined because the claims could support independent actions and were not simply alternative theories of liability for the same wrong.  As to the fees awarded under F.S. § 57.105, the trial court erred in not splitting the fees between the defendant and her attorney.


  1. Proposals for Settlements seemed like such a good idea to help encourage settlements and reduce litigation. However they have become so cumbersome that they invite further protracted litigation. It seems that overall we would be better without them.

  2. I think the Proposals are useful. You only hear about the ones where people screw up. If you read the section in my book (21-5) you should be able to avoid the pitfalls. Don't throw out the baby with the bathwater.

  3. Good Point. You are right, we only hear about the problems and mistakes. Thanks for the reply. Matt