Tuesday, October 30, 2012

Arbitration Opinion from the 11th Circuit Court of Appeals

Garcia v. Wachovia Corp., 2012 U.S. App. LEXIS 22268 (11th Cir. Fla. Oct. 26, 2012) held that in a case that had been pending in court for more than a year, the bank waived its right to compel arbitration.  This is a claim brought by customers as a putative class alleging the banks unlawfully charged them with overdraft fees.  Conducting discovery for such a lengthy period and litigating a number of motions was (1) acting inconsistent with the arbitration right; and (2) prejudiced the plaintiffs who had incurred considerable expense in engaging in such litigation.  The court also rejected the argument that it would have been futile to move to compel arbitration prior to AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) because that case did not establish new law.

Sunday, October 28, 2012

NEW OPINIONS - October 2012


Hanson v. Fowler, White Burnett, P.A., 2012 Fla. App. LEXIS 17935 (Fla. 3d DCA Oct. 17, 2012) affirmed summary judgment in favor of plaintiff’s former lawyer and his law firm in a legal malpractice action.  With Judge Schwartz dissenting, the court reviewed the litigation in federal court to conclude that the issue which formed the basis of the alleged malpractice was raised, argued and ruled upon in plaintiff’s favor, but no one could have anticipated that the district court on remand would not apply its prior determination.  The dissent pointed out that the client lost a claim because it had not been pled.


Blue Star Palms, LLC v. LED Trust, LLC, 2012 Fla. App. LEXIS 18416 (Fla. 3d DCA May 31, 2012) quashed an order denying a motion to dissolve a writ of lis pendens because there was an insufficient nexus between the claims and the property.  Under the parties’ alleged contract, legal title to the condominium units would be held by the Blue Star entities, with any ownership interest in the properties two levels removed (as membership interests in the parent company). The respondents’ claims for constructive trust and equitable lien failed to show that the allegations were connected to the title of the condominium units held.


R.J. Reynolds Tobacco Co. v. Koballa, 2012 Fla. App. LEXIS 18758 (Fla. October 26, 2012) certified as a question of great public importance whether accepting as res judicata the eight Phase I finding approved in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), violated the tobacco companies’ due process rights.


Soffer v. R. J. Reynolds Tobacco Co., 2012 Fla. App. LEXIS 18385 (Fla. Dist. Ct. App. 1st Dist. Oct. 24, 2012) held that under the preclusive effect of the Engle class-wide findings, a member of the class cannot seek punitive damages as additional relief for negligence and strict liability.  The Engle plaintiffs benefit from res judicata effect of certain factual findings made by Engle, and a lengthy tolling of the statute of limitations.  The trial court in Engle denied as untimely plaintiffs’ motion to amend to seek punitive damages under negligence and strict liability, but limited punitive damages to two intentional tort counts.  The court concluded that, as members of the Engle Class, the plaintiffs “are subject to the posture of the case as it exists, which includes the established prohibition on punitive damages for the negligence and strict liability theories as to all class members; principles of equitable tolling do not revive claims for punitive damages that were not timely presented in the first instance.”  But the court certified the question as one of great public importance.


Philip Morris USA, Inc. v. Barbanell, 2012 Fla. App. LEXIS 18140 (Fla. 4th DCA Oct. 17, 2012), a divided court withdraws the prior opinion reported in this blog on February 24, 2012 by agreeing with R .J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331 (Fla. 1st DCA 2012), also previously discussed in this blog on April 20th, to reach a contrary result. The prior opinion had reversed the trial court for denying defendant’s motion for judgment as a matter of law because plaintiff’s claims were barred as a result of the statute of limitations because the jury had returned a special interrogatory verdict finding that the statute of limitations had run.  The court found the facts even more compelling than in Webb, where the decedent was determined to know or have reason to believe that he had COPD prior to May 5, 1990. As Webb noted, a person with COPD may not develop lung cancer, and it was undisputed that the decedent was not diagnosed with lung cancer until 1991. In this case, the trial court directed a verdict on the affirmative defense that the statute of limitations barred plaintiff’s claim of wrongful death from lung cancer, and the jury made the finding that the decedent did not know or have reason to know that she had COPD prior to May 5, 1990. Therefore, the unspecified injury that the jury determined that decedent was aware of prior to May 5, 1990, was not COPD nor was it the lung cancer.


GEICO v. DeGrandchamp, --- So. 3d --- (Fla. 2d DCA October 24, 2012) held that an order awarding “contingent” attorneys’ fees is not appealable and is it not binding on the finder of fact in any subsequent bad faith proceeding.


Rich v. Kaiser Gypsum Co., 2012 Fla. App. LEXIS 18519 (Fla. 4th DCA Oct. 24, 2012) interpreted F.S. § 90.804, which allows former testimony where it “given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination.”  It used federal precedent to allow such testimony where the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  The court thus allowed testimony from prior cases involving different plaintiffs but with the same defendant, the same ingredient, the same product, the same injury, and the same issues regarding the general use of asbestos.  Furthermore, the testimony was cumulative, so any error was harmless.


Roberts v. Albertson's Inc., 2012 Fla. App. LEXIS 18518 (Fla. 4th DCA Oct. 24, 2012) held that a Medicaid recipient had a right to seek a judicial determination of the equitable lien amount of the settlement and to limit the recoupment of the lien by that amount.


Garvin v. Tidwell, 2012 Fla. App. LEXIS 18508 (Fla. 4th DCA Oct. 24, 2012) concluded that a party may rescind a mediated settlement where it can establish that the opponent violated its discovery obligations.  The court explained that a trial court may rescind an agreement based on unilateral mistake if (1) the mistake did not result from an inexcusable lack of due care, (2) the opponent’s position did not so change in reliance that it would be unconscionable to set aside the agreement, and (3) the court weighs whether the unilateral mistake goes to the very substance of the agreement.  Becauseour system of justice depends on truthful discovery, misconduct in discovery must be discouraged by disallowing the settlement which is the fruit of such misconduct.”


Berkowitz v. Delaire Country Club, Inc., 2012 Fla. App. LEXIS 18504 (Fla. 4th DCA Oct. 24, 2012) reversed a summary judgment in part because the trial court considered unautheticated documents attached to the motion.


D.J.S. v. W.R.R., --- So. 3d --- (Fla. 2d DCA October 24, 2012) reversed an order dismissing a petition for modification of child support for lack of jurisdiction because it was filed after the child reached eighteen years of age.


Bosh v. Mathis, --- So. 3d ---, (Fla. 5th DCA October 26, 2012) reversed an order entered after the court, sua sponte, set the case for a status hearing and heard argument on contested factual issues, then made several rulings that were not noticed, not sought, and not based on the presentation of evidence.

Tuesday, October 16, 2012

New Entries after my Trip to France

Sorry for the lack of postings lately, but my wife and I took a trip to France.  After a brief stop in Paris, we explored the Normandy region, a truly beautiful area.


O'Brien v. Stermer, 2012 Fla. App. LEXIS 17346 (Fla. 3d DCA Oct. 10, 2012) affirmed an order which basically denied the victim of a Ponzi scheme her claim for an implied-in-fact bailment because the assets were never segregated and for failure to conduct an evidentiary hearing because she agreed to have the issue decided by affidavits and other documentary records.

Sunbeam TV Corp. v. Clear Channel Metroplex, Inc., 2012 Fla. App. LEXIS 17184 (Fla. 3d DCA Oct. 9, 2012) refused to grant relief on a motion for stay until the lower court first ruled on it, but extended the temporary stay, encouraging the trial judge to get with it and rule.


Portis v. Seatruck, Inc., 2012 Fla. App. LEXIS 16543 (Fla. 3d DCA Oct. 3, 2012) reversed an order dismissing a case for lack of prosecution but held that it had no jurisdiction over two-year-old order granting summary judgment.  If those orders were final, the time for appeal has long since passed.  If not final, appellant could seek the entry of a final order and perfect her appeal then.

Longleaf C & D Disposal Facility, Inc. v. Green’s Fill Dirt, Inc., --- So. 3d --- (Fla. 1st DCA Oct. 10, 2012) dismissed an appeal of a “Final Judgment” which reserved jurisdiction over a trespass claim, but disposed of a boundary dispute because there was a factual overlap between the pending claim and the claim resolved by the court; as a nonfinal order determining the right to immediate possession of property, the notice of appeal was untimely because the motion for rehearing did not toll the final judgment.


Murphy v. Murphy, 2012 Fla. App. LEXIS 16541 (Fla. 3d DCA Oct. 3, 2012) a divided court reversed the order granting the petition for downward modification of alimony based on the trial court’s conclusion that the wife had entered into a “supportive relationship” as identified in F.S. § 61.14(1)(b)1.  The reversal was based on the fact that the trial court made a series of factual findings that negated its legal conclusion where there was no economic support being supplied to the recipient spouse by the third party cohabitant..


Reider v. Dorsey, 2012 Fla. App. LEXIS 16035 (Fla. Dist. Ct. App. 3d Dist. Sept. 27, 2012) reversed over a $1.5 million verdict because it held that the defendant did not owe a duty of care to the plaintiff when he was struck by an independent third party.


Knecht Properties, LLC v. Carreira, --- So. 3d --- (Fla. 3d DCA September 27, 2012) is a short opinion authored by Judge Rothenberg.  Who said it couldn’t happen?


Rell v. McCulla, 2012 Fla. App. LEXIS 17688 (Fla. 2d DCA Oct. 12, 2012) quashed an order denying a motion to dismiss a malpractice complaint where the plaintiffs failed to comply with the requirement for a corroborating affidavit from a medical expert.  The attorney’s affidavit did not qualify and the doctor’s affidavit never stated that the defendant provided negligent care or treatment or that there were reasonable grounds to believe that medical negligence had occurred.


Koster v. Sullivan, 2012 Fla. App. LEXIS 17423 (Fla. 2d DCA Oct. 10, 2012) held that meeting the requirement of F.S. § 48.21 sufficed to make the return of service regular on its face.  Here the return indicated that the “manner of service” was substitute service on the sister-in-law.  The court rejected the defendant’s argument that the return also had to indicate under F.S. § 48.031(1)(a) that the sister-in-law was 15 years of age or older and informed the person of their contents.  The court certified conflict with the Third District.


Almond Entm't, Inc. v. Bayview Loan Servicing, LLC, 2012 Fla. App. LEXIS 17012 (Fla. 2d DCA Oct. 5, 2012) reversed a summary judgment in a foreclosure action where there was discovery pending, namely the defendant’s attempt to depose a corporate representative on the issue of whether the plaintiff was the owner of the note and mortgage on the date it filed suit.


Slominski v. Citizens Prop. Ins. Corp., 2012 Fla. App. LEXIS 16730 (Fla. 4th DCA Oct. 3, 2012) explaining that when the insured delays noticing the claim, it is the insured’s burden to show lack of prejudice to the insurer.  Here the insured had repaired the property, and the experts’ affidavits were contradicted by their deposition testimony.  Because the depositions were given before the affidavits, they could not be used to defeat summary judgment.  Affirmed.


Fidelity Warranty Servs. v. Firstate Ins. Holdings, Inc., 2012 Fla. App. LEXIS 16726 (Fla. 4th DCA Oct. 3, 2012) reversing that portion of the fees award for attorneys who had voluntarily withdrawn from representation where they were working on a contingency fee agreement.  Furthermore, an attorney who voluntarily withdraws cannot avoid the consequences of his withdrawal by subsequently modifying the fee agreement.  There was no error in awarding interest on the fees it affirmed and using the date of entitlement, but stated that the rate used should have been 6%.


Give Kids The World, Inc. v. Sanislo, 2012 Fla. App. LEXIS 17750 (Fla. 5th DCA Oct. 12, 2012) is a case where the defendant selected plaintiff’s child, a young girl with a serious illness, to grant her wish to visit defendant’s village in the State of Washington.  When the mother was injured, she showed her appreciation to this charitable organization by suing.  The court held that summary judgment should have been granted in favor of the defendant based on the following release language: (1) One provision releases GKTW from “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us . . . which may occur while staying at the Give Kids the World Village.” (2) A second provision releases GKTW from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish…” The court said this language was broad enough to encompass negligence claims arising from the injuries suffered by the mother.